text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN PARR, Appellant.

      Evidence — the opinion of a witness, as to who is the person alluded, to in a libelous publication, is not admissible — meaning of the term ‘ ‘ infamous crime ” — a libel is not one.

    Upon the trial of the defendant for an alleged libel upon one Leo Oppenheim, it appeared that Oppenheim’s name was not mentioned in the libel, but it was claimed by The People that he was the person intended, and that he was pointed out by the'words “the Pearl street tailor” and by the name “ Leo.” A witness, called by The People, who was asked, “ When you read this article did you recognize its application to any particular individual? ” answered “ I did.” To the question, “ Who was the person that you recognized that this article referred to?” he answered “Leo Oppenheim.”

      Held, that the court erred in admitting the evidence against the objection and exception of the defendant.
    That it was for the people to show facts from which the jury might infer that Oppenheim was the person intended by the defendant, and that the opinion of the witness should not*have been received.

      People v. Oroswell(3 Johns. Cases, 340); Genet v. Mitchell (7 Johns., 120); Hayes v. Ball (72 N. Y., 420) distinguished.
    Libel is not an “infamous crime” within the meaning of that term as used in section 68 of the Code of Civil Procedure, conferring upon the Court of Special Sessions, in the city of Albany, jurisdiction to try and determine all cases of petit larceny charged as a first offense, and all misdemeanors, “not being infamous crimes,” committed within the city.
    Appeal from a judgment of tbe Court of Special Sessions in the city of Albany, convicting tlie defendant, John Parr, of the crime * of libel, and sentencing him to imprisonment in the penitentiary tor the term of six months.
    The libel was published by the defendant in a newspaper called “ The Owl.”

      Edward J. Meegan, for the appellant.

      Hugh Reilly, district attorney, for the respondent.
   Learned, P. J.:

This was a prosecution for an alleged libel upon Leo Oppenheim. His name was not mentioned in the libel, but it was claimed by the people that he was intended, and that he was pointed out by the words “ the Pearl street tailor,” and by the name “ Leo.” On the trial a witness was asked, on behalf of the people, “When you read this article did you'recognize its application to any particular individual ? ” He answered “ I did.” Then he was asked, “ Who was the person that you recognized that this article referred to ? ” and he answered, “ Leo Oppenheim.” These questions were duly objected to and exception taken. Similar questions were put to two other witnesses; objections made and exceptions taken.

This evidence was improper. It was for the people to show facts from which the jury might infer that Oppenheim was the person intended by defendant. The testimony of witnesses that they recognized Oppenheim, as referred to, was only the statement of their opinion. And this matter was not one for experts. Their opinion must have been based upon facts known to them. They should have testified only to such facts.

If this kind of testimony were proper, then the defendant could have called witnesses to testity that they did not recognize Oppenheim as the person referred to. But such testimony would be plainly improper. This principle is distinctly decided in Van Vechten v. Hopkins (5 John., 211); Gibson v. Williams (4 Wend., 320); Maynard v. Beardsley (7 id., 561, in the Ct. of Errors); Weed v Bibbins (32 Barb., 315); and by implication in Wright v. Page (36 id., 441). Two cases were cited by the people as sustaining the court below, viz: People v Croswell (3 Johns. cases, 340), and Genet v. Mitchell (7 Johns., 120). In the former no question or decision was made upon this point. The whole discussion is upon the right of a jury to determine the whole issue, and on the right of defendant to show the truth of the statement alleged to be a libel. In the other case the court recognize Van Vechten v. Hopkins as sound law. The testimony given by the witness had not been objected to, and was quite immaterial.

It is said by the counsel for the people that the judgment should not be reversed, because there is evidence that defendant admitted to a witness that Oppenheim was intended. But we cannot say that the jury would have believed the evidence as to this admission, if it had not been fortified by the illegal evidence of the opinions of witnesses.

We are referred to the language of the court in Hayes v. Ball (72 N. Y., 420), as supporting the position of the people. The .question now under consideration was not involved in that case. It is very possible that in the case of verbal slander, if all the persons who heard the alleged slander testify that they understood the words in a sense entirely harmless, this may be a good defence; because, in that case, the defendant has not conveyed to the mind of any person a charge or disgraceful statement in respect to the plaintiff.

But the present is a very different case. Here is a libelous publication. The attempt is not to show that it was understood by all readers in a harmless sense. But the attempt is to show that it is aimed at a particular person by the opinion of several who read it. It is unquestionably proper and important to show that fact. But it must be shown by circumstances surrounding the parties. The circumstances which induced the belief in the minds of the witnesses that Oppenheim was the man intended, would have perhaps produced the same belief in the minds of the jury. At any rate the defendant was entitled to the judgment of the jury on that point.

A question is raised as to the jurisdiction of the Court of Special Sessions of Albany. It has jurisdiction, among other things, of “all misdemeanors, not being infamous crimes, committed within the city.” (Sec. 68 Code Crim. Proc.)

The defendant claims that the publication of a libel is an infamous crime.

The repeal, by chapter 593, Laws of 1886 of section 31, title 7, chapter I, part 4, Revised Statutes, has left us to the common law to determine what are infamous crimes. It is quite unfortunate that so important an exception should be expressed in words which have always been somewhat vague in their meaning.

The question what crimes were infamous used to be important principally because a conviction for any of such crimes excluded the convicted person from being a witness. That rule is abrogated. (Penal Code, 714; Code Civ. Proc., 832.)

Still, the words “infamous crimes” in section 68 above cited, must apply to such crimes as were infamous at common law.

Blackstone mentions, as making one infamous, “ treason, felony, perjury or conspiracy, or if, for some infamous offense, he hath received judgment of the pillory, tumbrel or the like, or to be branded, wliipt or stigmatized, or if he be outlawed or excommunicated, or hath been attainted of false verdict, prcerrmnire or forgery.” (3 Bl. Com. 370, 364.)

If the punishment inflicted were to determine the question of infamy, then the publication of a libql might have been an infamous crime. (Tutchin's Case, 14 State Trials, 1095.)

But the better opinion is, that it is the nature of the crime, and not the punishment, which determines the question, and that an infamous crime C an offense “ implying such a dereliction of moral principle as carries with it a conviction of a total disregard to the obligation of an oath.” (Per Sir Wm. Scott, quoted in 1 Green. Ev. 373; Abbott’s Law Dict., title “ Infamous Crimes.”)

In that section Greenleaf gives as the enumeration of infamous crimes: treason, felony and the crimen falsi. The publication of a libel certainly is not within the first or the second. Nor is it within the third, the crimen falsi; which implies some fraud or deceit, and which of itself must indicate a bad and immoral character.

Now, on the contrary, the publication of a libel, while it may sometimes be done with a very bad. intent, does not necessarily imply disgraceful or immoral motives. It is not necessary to refer to the many well known convictions in England of men influenced by patriotic motives, which prove this assertion. Certainly, the crime is not one which involves,' necessarily, deception or dishonesty. On the contrary, its publicity is of the essence of the wrong.

We do not think, therefore, that the publication of a libel is, in its nature, an infamous crime; though it may sometimes show a malevolent or a contemptible spirit.

The judgment and conviction should be reversed, and new trial granted.

BooKbs and Landon, J.-T., concurred.

Judgment and conviction reversed, new trial granted.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    PATRICK PRENDERGAST, Respondent, v. THE VILLAGE OF SCHAGHTICOKE, Appellant.

      Board of health — expenses incurred, in abating a nuisance arre to be charged upon the occupant — 1850, chapter 834, as amended by chapter 169 of 1854; chapter 790 of 1867 and chapter 761 c/1868.
    Sections 3 and 4 of chapter 334 of 1850, conferred upon hoards of health power to make regulations concerning the suppression and removal of nuisances, and provided that persons violating them should bé deemed guilty of a misdemeanor. By chapter 790 of 1867 these sections were so amended as to confer upon the hoard the power to make orders in special or individual cases, and as amended they authorized the hoard, when its orders were not complied with, to suppress a nuisance, and directed that the expense thereof should he a charge on the occupant, or any or all oí the occupants, and that it might be sued for and recovered by th'e board and made it a hen upon the property.
    Section 5 of the act of 1850, which provided that “all the expenses” incurred by the boards in the execution of the act should be a county charge, was amended by chapter 169 of 1854, so as to charge the town with so much of tho said expenses as should exceed the sum of $300. Chapter 761 of 1868 amended this section by providing that “all expenses incurred by the several boards of health, in the execution and performance of the- duties imposed by this act, shall be a charge only on their respective cities, villages and towns,” to be audited, levied and collected as other city, village and town charges.

      Reid, that the provisions added to section 4 by the act of 1807, charging the expense incurred in abating a nuisancé upon the occupants of the property, and giving a remedy by action against them and a lien on the premises, was not repealed or affected by the passage of chapter 761 of 1868.
    That the latter act must be construed to apply to such expenses only as were not covered by section 4 as amended by the act of 1867.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury directed by tbe court at the Rensselaer Circuit.
    The action was brought for work claimed to have been performed by the plaintiff in abating an alleged nuisance pursuant to the directions of the board of health of the defendant the village of Schaghticoke.

      Henry A. Merritt, for the appellant.

      Edgar L. Fursmcm, for the respondent.
   Learned, P. J.:

Chapter 324, Laws of 1850, provides for appointment of boards of health. Section 3 defines their powers. . In subdivision 3 it is said they may make regulations concerning “ the suppression and removal of nuisances.” Subdivision 8 authorizes them to employ persons to carry into effect their regulations. Section 5 says that all expenses (except their compensation) shall be a county charge. Section 5 was modified by chapter 169, Laws of 1854, making all over a certain amount chargeable to the towns. This was repealed by chapter 161, Laws of 1868, hereafter mentioned.

Chapter 790, Laws of 1867, very largely amended sections 3 and 4 of the first-named act, extending and amplifying the powers of the boards. By subdivision 6 of section 3, thus amended, the board might make orders in special or individual cases not of general application.

Section 4 of the original act only made a person guilty of a misdemeanor who violated their regulations. As amended, it authorized the board, when its special orders, duly served or posted, were not complied with, to enter the premises and suppress or remove the nuisance. “And the expense thereof shall be a charge upon the occupant, or any or all the occupants of said premises, and may be sued for and recovered, with costs, by said board in the name of such board.” Further provision is made for the sale of the premises where the judgment is not collected.

How it must be observed that, notwithstanding this amendment to sections 3 and 4, section 5 remained undisturbed. That is the section which declared that the expenses of the board should be a charge partly on the counties and partly on the towns. Therefore, it appears that section 5 was in harmony with section 4, as thus amended. So that the expenses of the board, referred to in section 5 (then slightly amended by the law of 1854, above mentioned), were something different from the expense of removing or suppressing a nuisance. This latter expense was expressly provided for in great detail by section 4, as amended by the aforesaid law of 1867. Then came chapter 761, Laws of 1868, which repealed the aforesaid law of 1854 and again amended section 5 of the original law, saying that “ all expenses incurred ” (using the same language as in the original section) should be a charge on the respective cities, villages and towns.

Now it is claimed that the effect of the amendment of the original section 5 (a section which in varying forms has been in force since the passage of the original act) is to take away the provisions of section 4, as amended by the law of 1867, aforesaid. It seems to us that this is not a proper construction. Section 5 of the original act, in one form or another, has been in force all the time. It was in force when the law of 1867 amended section 4. At that time it provided that the expenses incurred, to the amount of $300, should be a charge on the county, above that on the town.

When, therefore, leaving that section undisturbed, the act of 1867 provided specially for the case of expenses in entering into premises after notice and suppressing or removing a nuisance; giving a remedy by action and a lien on the premises, it is plain that this was an expense not intended in the general provision of section 5, then in force. The amendment of section 5, by the act of 1868, does not change this reasoning. The amended section 4 still remains, with its special provisions for. the special case. The occupant and the premises still remain as much liable as they ever were. If the act of 1868 had been an entirely new enactment there would have been room for the argument that it was intended to change the provisions of section 4, in respect to the payment of expense incurred pursuant thereto. But it is only a modification of an original section.

It may be urged that the words of the act of 1868 aro “all expenses.” But such were the words of the original section 5 in the act of 1850 (chap. 324), and neither the omission of the word “ all ” in the act of 1854, nor its insertion in the act of 1868, is material, because, while section 5, amended in 1854, required that the counties and towns should pay the expenses incurred by the boards of health, the act of 1867 so amended section 4 as to make the premises and the occupant liable in the special ease therein provided. Thus such expense' was evidently excepted from the general provision of section 5, and the act of 1868 only changed the liability for those general expenses, so that a part thereof should no longer be chargeable on the county. But “ expenses incurred ” still meant what the same words meant when the act of 1867 had been passed. Prior to the act of 1867 there was no próvision for imposing any expenso on a person or on property. The only compulsory power was that disobedience was a misdemeanor. The act of 1867 changed this, and gave the board power to collect this expense in question from the person or property properly chargeable. There has been nothing intended to abandon that principle.

The defendants insist also that the power to remove and abato nuisances is by the village charter given to the trustees. (Chap. 512, Laws 1867, tit. 3, § 3, sub. 22, p. 1334.) The corporate name was changed to Schaghticoke. (Laws 1881, chap. 75.)

That subdivision makes the expense a lien on the lot. Tho defendants also cite section 3 of miscellaneous provisions of said act, page 1351, as showing that the village is forbidden to contract any debt or liability, except as therein limited.

In the view we have taken, it is unnecessary to inquire as to the effect of the special provisions of this charter. The question seems to be settled in People ex rel. Boltzer v. Daley, (44 Sup. Ct., 37 Hun, 461.)

In accordance with tbe provisions of section 4, as amended by the act of 1867, above mentioned, the board of health, in October, 1881, passed a resolution that certain parties be notified to remove a certain alleged nuisance, and that if this was not done the board would remove it and charge expense to the parties. Notice was served on those parties and they did not remove the alleged nuisance.

November 1,1881, the board accepted a bid of plaintiff for building a culvert to drain a swamp or marsh. This swamp or marsh was the alleged nuisance. December 17, 1881, the board of health audited plaintiff’s bill, and a bill of one Hasbrouck, amounting in all to $523.12. They notified the trustees, December 20,1881, and requested them to levy' a tax for $523.12.

Subsequently, they served another norice on the trustees with plaintiff’s bill attached, amounting to $613.12, and requested the trustees to levy a tax therefor. The original contract with plaintiff seems to have been for $480. Other work was done by him under the direction of the president of the board, worth $120.

Now, without examining several questions that are made, viz.: whether the swamp was a nuisance; whether the board was properly constituted, and the like, it appears to us that this expense of suppressing and removing a nuisance is governed by the aforesaid section 4, as amended by the act of 1867. It is an expense to be paid by the occupant or charged upon the premises.

Such was the view of this board when they served their notice of October upon the parties. This is a just view. The suppression of a nuisance should be at the expense of the nerson who maintains it, and not at the expense of the village.

We think that the act of 1868, which amended section 5, did not affect the provisions of section 4, as amended in 1867. But that the expenses meant in section 5, have always been, and are such as-have not been specially provided for by section 4, as amended, or otherwise.

In construing these acts, we must treat the amendments as if they were incorporated into the statute, and must read the statute as a. whole.

Reading the act of 1850, with sections 3, 4 and 5 as they now stand, we have the special provision of section 4 for the expense of suppression of nuisances, making such expense a liability of the occupant and a charge on the premises.

Then following we have section 5 as to expenses incurred by the boards to be charged on the villages, etc. We must consider that this section is qualified by that which precedes and applies to expenses not provided for by section 4.

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

Booses and Landón, JJ., concurred.

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


text:
    PETER H. PULVER and Others, Respondents, v. SAMUEL S. SKINNER, Appellant. J. WRIGHT OLMSTEAD, Respondent, v. SAME, Appellant. ERASTUS DARLING and Another, Respondents, v. SAME, Appellant.

      Bond — right of one, not a party to it, to enforce an agreement by the obligor to pay a debt, due to the claimant from the obligees ancestor.

    In consideration oí the conveyance to him of certain real and personal property, Robert Clements assumed and agreed to pay certain indebtednesses of his grantors’, W. and B. Van Vranken, and to save them harmless therefrom. After Robert’s death, his administrator, John Clements, entered into an agreement with one Skinner, the defendant herein, as executor (no testator being named), by which it was agreed that John Clements should convey, or cause to be conveyed, the said property, to Skinner, and that Skinner should pay such indebtedness. Subsequently the widow and all the heirs of Robert Clements, (except a minor) conveyed the real estate to the defendant Skinner, as executor of Peter Skinner, deceased, in consideration of $11,000 and a bond to be executed by him, and covenanted that the minor would convey, which he subsequently did.
    In consideration of this conveyance, Skinner executed to .1 ohn Clements, administrator of Robert, and attorney in fact for the widow and heirs, a bond, reciting the existence of the claims against the estate of Robert and specifying them; the conveyance was on the express agreement that Skinner would pay the debts and save said estate harmless. The condition was that the obligor should pay, or cause to be paid, the aforesaid claims and save the said estate harmless, and within four months deliver receipts for such payments to the obligee, and by the bond he further agreed “to and with the owners of said claims to pay all that is justly due them, not exceeding the aforesaid amounts.”

      Held, that an owner of any of the said claims could maintain an action against the defendant, upon the bond, to recover the amount due to him from the Van Vrankens.

      Vrooman v. Turner (69 N. Y., 380) distinguished.
    . Appeal by the defendant from a judgment entered at the Saratoga county Special Term.
    In 1882 William and Benjamin Van Vranken conveyed to Robert Clements real and personal property, in consideration whereof he assumed and agreed to pay certain indebtedness of the Van Vrankens, and to keep them harmless therefrom. Robert Clements subsequently died, and John Clements was appointed liis- administrator. Subsequently an agreement was made between John Clements, administrator, and Samuel S. Skinner, the defendant, named therein as executor (but not of any person), reciting the conveyance by the Van Vrankens and the assumption of their debts by Robert Clements, and the intention of the parties that the real and personal property should be transferred to Skinner, as executor, upon his assuming and paying the said indebtedness; and then containing an agreement that John Clements would convey, or cause to be conveyed, said property, and that Skinner would pay such indebtedness. It was agreed that this should be done within nine months.
    Subsequently, and within nine months, the widow and heirs of Robert Clements (excepting a minor heir) conveyed said real estate to said Skinner, as executor of Peter Skinner, deceased, in consideration of $11,000 and of a bond executed by him, and covenanted that the minor should convey. In consideration thereof, Skinner, the same day, April 12, 188é, executed to John Clements, administrator of the estate of Robert Clements, and as attorney, in fact, of the widow and heirs-at-law, a bond in the penal sum of $6,080.28. The bond recites that there exist certain claims against the estate of Robert Clements, specifying them; that the widow and heirs have conveyed to the obligor certain real estate on the express agreement, as a part of the consideration, that he would pay the debts and save the estate harmless. The condition is that the obligor will pay, or cause to be paid, the aforesaid claims and save said estate harmless, and within four months will deliver receipts for such payments to the obligee. And the bond continues : “ And for the consideration aforesaid the party of the first part agrees to and with the owners of said claims to pay all that is justly due them, not exceeding the aforesaid amounts.”
    Subsequently the heir of Robert Clements, who was a minor at the time of executing the deed, conveyed his share. These actions are by creditors named in the bond to recover their claims.

      Jacob W. Clute and L. Varney, for the appellant.

      James Van Voast, for the respondent.
   Learned, P. J.:

The first point is, that the first action is by Wait, Pulver & Rockwell, while the creditors named in the bond were Wait & Pulver. But evidence was given tending to show that the claim in question was contracted in dealings under the name of Wait & Pulver. The amount of the claim is that stated in the bond, and the claim itself is traced from its origin in an indebtedness of William and Benjamin Van Vranken. The obligation assumed by defendant was not that of a mere guarantor. He was to pay the debts, and as between him and the estate of Robert Clements he became principal debtor. It was enough to show that this was one of the claims he became liable to pay.

Some stress was laid by the defendant on the fact that the conveyance was executed to him as executor. But that is immaterial. He chose to take the conveyance in that form. Even if it had been made, at his request, to a third party, still the consideration for his bond would have been sufficient. Nor is it material that the minor heir did not convey at the time when the bond was given. The defendant accepted the covenant of the other heirs, and that covenant has been performed.

The next; and the principal point, is whether this is a case in which these creditors can sue upon an agreement to which they are not actual parties.

We do not think it necessary to go over all the cases bearing on this point and to show the distinctions which run through them. It is enough to call attention to the position of the parties. The widow and heirs of Robert Clement held this property. Robert Clement, in his life-time, was personally bound to pay these Yan Yranken debts, and the property was probably liable therefor also in equity. At any rate, on his death this property became liable to pay his debts. It is not necessary to say that the debts were strictly a lien, but they could through proper proceedings be enforced out of the property. At the same time the widow and heirs were not personally liable for the debts.

Under this condition of affairs they transfer this property to the defendant, on his express agreement, not merely to appropriate the same to these debts, but himself to pay the debts and to save the estate harmless. For this he has received and retains an ample consideration. If the obligee had been liable for the debts the case would have been plainly within Barlow v. Myers (64 N. Y., 41). But it is urged that, as the widow and heirs were not personally liable, Skinner is not by the bond liable to the creditors, under the rule laid down in Vrooman v. Turner (69 N. Y., 280). In the opinion given in that case, the right of the third party to have an action upon the promise is said to depend first, on the intent of the promisee to secure some benefit to the third party, and second, on some privity b%tween the two, the promisee and the third party, and some obligation or duty owing from the former to the latter.

There can be no question, in this case, of the intent of the promisee to secure a benefit to these creditors. The last clause of the bond is an express agreement of the defendant, “ to and with the owners of these claims, to pay all that is justly due them.” The bond was not one of mere indemnity to the obligee. It was for actual payment to the creditors.

We must then inquire whether there was a privity between them, and an obligation or duty owing from the promisee to the creditors.

As administrator and as widow and heirs of Robert Clement, the parties named in the bond were in privity with the creditors of Robert Clements. There was not, it is true, a personal obligation on them to pay the debt. But we think that there was some obligation or duty resting on the administrator and on the heirs in respect to the creditors. It was the duty of the administrator, in default of sufficient personal property, to cause the real estate to be applied to the debts. And the heirs themselves might be sued by the creditors in respect to any land of the deceased in their possession, and might be made personally accountable for any which they had sold. (Code, sec. 1848, et seq.)

Thus, heirs do not stand in a position simply like that of the owner of an ecpiity of redemption who is not liable for the mortgage debt. He clearly has no duty towards the mortgagee. If he sells the property, he does not become liable for the debt. The lien is fixed, and he cannot disturb it. Rut the heir who sells may, in some eases, become personally liable. It may then be justly said that the heir is under some obligation or duty to the creditor of the deceased, within the principle applicable to these cases.

When, therefore, in performance of that obligation, the heirs have.thus provided for the payment of these debts, it is equitable that the creditors should be allowed to have the benefit of that arrangement, although not actually parties to the instrument.

Here the heirs have made a specific appropriation of this land as a consideration for the payment of these debts. And the principle that a third party may have an action on a contract made for his benefit could seldom have a more beneficial application.

The judgment should be affirmed, with costs.

Bocees and Landon, JJ.

In each case judgment affirmed, with costs.


text:
    In the Matter of the Estate of ADOLPH R. VAN DERMOOR, Deceased.

      Surrogate’s Court — when money received by an executor under a policy of insurance on the life of the testator is not assets of his estate.

    Upon the application of the petitioner, the widow of one Van Dermoor, an order was made by a Surrogate’s Court directing the executor of Van Dermoor to pay to the petitioner the money received by him, under a policy of insurance upon the life of the deceased which made the amount insured payable “to the said assured, his executors, administrators or assigns, * * * for the benefit of his widow, if any. ”

      Meld, that the money belonged to the widow, and was received by the defendant, not as assets of the estate of the deceased, but that he received it as a trustee under the policy for the widow.
    That the order should be reversed, as the surrogate had no jurisdiction to make it.

      Appeal by William Van Dermoor, as executor of Adolph R. Van Dermoor, deceased, from a decree of the Surrogate’s Court of Schenectady county, requiring the executor to pay Nancy E. Van Dermoor, the petitioner herein and the widow of the testator, $1,727.69, the proceeds of a life insurance policy issued upon the life of the testator by the New England Life Insurance Company.

      Jacob TV. Chute and Alonzo P. Strong, for William Van Dermoor, the executor, appellant.

      W. T. I. Sanders, for Nancy E. Van Dermoor, petitioner, respondent.
   Learned, P. J.:

The question whether the surrogate had jurisdiction to order the executor to pay this money to the petitioner involves an inquiry into the nature of the alleged liability of the executor to her. The deceased had taken out a policy on his life. The amount insured was made payable “ to the said assured, his executors, administrators or assigns, * * * for the benefit of his widow, if any.” The money has been paid to the executor, and the petitioner is the widow of the deceased. A question is made whether she is entitled to the money. But, without stating the facts on which that depends, we are first met with the question whether her’s is such a claim that the surrogate could order its payment, even assuming that it was valid.

In one part of the opinion of the learned surrogate, speaking of the phrase personal estate,” in a certain paper, he said: It means the estate which goes into the hands of the executor to be administered under the will, and does not include the insurance money.” Thus he indicated that the insurance money was not a part of the estate which goes into the hands of the executor to be administered under the will. If this view be correct, it would seem to follow that he would have no jurisdiction over the matter. But he must have considered that, as the money was in the hands of the executor and did not belong to the estate, the estate owed it to the petitioner. For, in another place, he says that the estate, is delator to the petitioner. And he assumes that he has “ power to enforce the payment of this indebtedness.”

The counsel for the executor insists that if the petitioner’s claim is valid, then the amount received from this policy was not assets of the estate, to be accounted for under the jurisdiction of the surrogate. In this we think he is correct.

If there were no beneficiary named in the policy, probably the amount received would be assets. But where there is a beneficiary, we think the amount received is not assets, for it belongs to the beneficiary, and not to creditors or legatees. And it belongs to her (if at all), not by virtue of any will of the testator, or of • any administration of his estate, but by a contract of the company, under which they were to pay it (as she claims) for her benefit. The executor, therefore, has, in this particular (if the petitioner is right), no will of the testator to execute.

The executors in such a case take the money as trustees for the beneficiary. And they are not trustees under the will; they are trustees under the policy. Hence they are in no sense testamentary trustees. The surrogate has no power to compel them to pay over the money. (Marston v. Paulding, 10 Paige, 40; Woodruff v. Young, 38 Sup. Ct. [31 Hun], 420.)

The surrogate places his authority on section 2472, subdivision 4 of the Code of Civil Procedure. But that authorizes him to enforce the payment of debts and legacies and the payment or delivery of money or property belonging to the estate.

Now, the petitioner’s claim is neither a debt nor a legacy. The liability, if any, to the petitioner did not arise until the receipt of the money, and hence not until after the testator’s death. Hence it is not a liability of the estate, inasmuch as it was not a liability of the testator {Austin Vv. Munro, 47 N. Y., 360); and, as she claims, this money does not belong to the estate. And the concluding clause of the section declares that the jurisdiction must be exercised in the cases prescribed by statute. Section 2481, subdivision 5, does not extend the jurisdiction, nor does subdivision 11 of the same section, as its provisions are limited to matters within the cognizance of the court. The provisions of the statute under which the petitioner seems to have proceeded are sections 2717 and 2718; but these apply to the payment of a debt or of a legacy.

There would be a further difficulty if this case were either a debt or a legacy, viz. — that letters were issued October 31, 1885, and the petition was presented January 19,1886 — while a petition by a creditor cannot be presented until six months have expired, and that by a legatee not until a year. And, further, a written answer, duly verified, wras filed, setting forth facts showing that it was doubtful whether the petitioner’s claim was legal.

The surrogate held that these facts raised only a question of law, and hence he had jurisdiction. If it were necessary to examine this point we should be doubtful whether this was correct. But, in the view we have taken, section 2717 is not applicable to this claim, and, therefore, we need not consider the meaning of section 2718.

We have avoided any expression of opinion as to the validity of plaintiff’s claim, and even any statement of the facts on which it is controverted, because we are satisfied that the surrogate was without jurisdiction.

The decree of the surrogate is reversed, with costs below and of the appeal against the petitioner.

Bookes and Landon, JJ., concurred.

Decree reversed, with costs of court below and of appeal against petitioner.


author: Landon, J.: Learned, P. J.

text:
    JOHN QUACKENBUSH, Appellant, v. HENRY QUACKENBUSH, SANDFORD QUACKENBUSH and LEVI WALRATH, Respondents.

      Will — when residuary legatees and devisees do not become personally liable for legacies the payment of which is charged on the residuary estate — statute of limitations — when the right tp foreclose a lien to secure a legacy charged on the pyroperty is not barred by it.

    Adam Quackenbush died in June, 1886, leaving a will by wbicb, after providing for tbe maintenance of bis wife during ber life, be among other tilings gave to bis daughter Betsey $200 one year after bis decease. All tbe rest, residue and remainder of bis estate, not therein otherwise disposed of, and after tbe payment of bis debts and legacies, he gave, devised and bequeathed to bis three sons and to their heirs and assigns forever, after tbe payment of legacies, which legacies be made a lien on all his real and personal estate until paid and satisfied. The testator left personal property sufficient to pay the debts and legacies, but the sons, who were named as executors, refused to qualify, and the estate was never administered, although the sons took the property and converted it to their own uses.
    In 1883 this action was commenced by the plaintiff, to whom Betsey had assigned her claim to the legacy, to enforce the payment thereof by a foreclosure of the lien and a sale of the premises.

      Held, that the residuary legatees and devisees did not, by accepting and using the property, become personally liable to pay Betsey her legacy. (Learned, P. J., dissenting.)
    That Betsey’s right of action against an administrator of the testator’s estate would not be barred, as no judicial settlement had been had.
    That any action brought by an administrator of the deceased, if appointed against the residuary legatees as wrong-doers in converting the personal property would, however, be barred by the statute of limitations.
    That Betsey consequently had no remedy other than the lien on the land by which she could collect her legacy.
    That her equitable right to foreclose the lien would, under the circumstances of this case, subsist for at least twenty-two years from the death of the deceased.
    That the action could be maintained.
    Appeal from a judgment dismissing the complaint entered in Montgomery county, upon the report of a referee.
    Adam Quackenbush died June 10, 1886, leaving a will by which he gave to his widow, Peggy, her support during life, with a right to occupy part of the homestead, and made it a lien on all his property, real and personal. To Betsey, his only daughter, he gives $200, one year after his decease. To his youngest son, Sand-ford, $255, providing the four notes signed with his sons John and Henry, for $160, are unpaid at his death; if paid, Sandford is to have $100 one year after his death. The will then provided, “ All the rest and residue of my estate, not herein otherwise disposed of, and after payment of my debts and legacies aforesaid, I give, devise and bequeath to my three sons, named John, Henry and Sandford, and to their heirs and assigns forever, share and share. alike, after the payment of the legacies above mentioned; and which legacies I hereby make a lien on all my real and personal estate until paid and satisfied.
    This action was brought in February, 1883, by the plaintiff, to whom Betsey had assigned her claim, to enforce the payment of the legacy by foreclosing the lien given upon the real estate of the deceased by a sale thereof.

      H. Link, for tlie appellant.

      Wendell & Van Deusen, for Henry Quckenbush, respondent.

      B. A. Ransom, for Sandfcrd Quackenbush and Levi "Walrath, respondents.
   Landon, J.:

The referee held that the statute of limitations barred the plaintiff’s action. This conclusion seems to rest upon the proposition that the defendants, Henry and Sandford Quackenbush, who, with the plaintiff, are the residuary legatees and devisees under the will of Adam Quackenbush, by accepting the devise and bequest to them became personally liable for the payment of the legacy of $200, to their sister Betsey. The legacy was, by the terms of the will, payable one year after the testator’s death, which occurred June, 1866, and therefore the right of action accrued to her against them upon their personal liability in June, 1867, and hence was barred either by the six or ten years’ limitation ; that the lien upon the land devised was controlled by the same limitation. (Loder v. Hatfield, 71 N. Y., 92.)

If, however, it is not true that the residuary devisees became personally liable to pay Betsey her legacy, then the above conclusion does not follow, and the only remedy available to Betsey to recover her legacy was by the due course of administration to enforce its payment out of the personal property of the testator, and that failing or being shown to be unavailing, then to foreclose her lien upon the land. In the latter case, her remedy would not be barred until at least six years after the judicial settlement of the 'administrator’s or executor’s account. (Code Civil Pro., § 1819.)

The legacy to Betsey is not, by the terms of the will, made payable by the residuary legatees or devisees out of the residuary estate; nor is it made payable by them as the condition of the gift to them of such estate; nor is it in any way to proceed from the residuary estate. The residuary estate is carved out of what shall be left “ after payment of my debts and legacies aforesaid.” By accepting the residuary estate the defendants were not confronted with any payment to Betsey charged upon that estate or upon themselves; and therefore could not, by accepting it, be held to have promised payment. But the testator made that legacy a “ lien on all my real and personal estate until paid and satisfied.” The estate that came to the defendants’ hands came with the lien upon it. That lien confers the right upon Betsey to have the aid of a court of equity to enable her to sell the estate if necessary for her payment. This action is to foreclose that lien. The lien is not the security for any personal obligation of the defendants, but for the gift of the testator, and is enforceable because no other remedy remains to the legatee to enforce payment of the legacy.

The testator left ample personal property to pay debts and legacies. This personal property was the primary fund for the payment of this legacy. The portion of it necessary to pay this legacy was not bequeathed to the residuary legatees. If they could take it at all they could only rightfully take it as executors in the first instance, and for the purposes of administration.. They declined, although named as executors, to take out letters testamentary, and no administration has ever been had upon the estate. They nevertheless took the persona] property and converted it to their own use. They took it as wrong-doers, not as legatees or executors. As wrong-doers the will did not make them personally liable to Betsey. This did not give Betsey the right to sue them to recover her legacy. It gave her the right to have an administrator appointed, and such administrator would have had the right to recover from them this personal property or its full value. (2 R. S., 81, § 60; Id., 449, § 17; Muir v. Trustees, eta., 3 Barb. Ch., 477; Brown v. Brown, 1 id., 195; Wever v. Marvin, 14 Barb., 376.)

Such proceeding has not been resorted to. We know of no statutory prohibition to a resort to it now. But the statute of limitations (Code Civil Pro., § 392), if such an administrator should now be appointed, would date his appointment within six years from the death of the testator, and his action, if now brought against the residuary legatees to recover the personal property or its value which was of the estate, would be barred by the second six years. (Code Civil Pro., §§ 382, 3343, sub. 10.)

Betsey, therefore, is in this position: Since there has been no judicial settlement, her right of action against .the administrator for her legacy is not barred. The lien of the legacy upon the real estate exists, by the express terms of the will, so long as her light to enforce the payment of the legacy exists. She can enforce that lien against the real estate when her remedy against the personal becomes unavailing. It has become unavailing because the statute of limitations would bar any action to be brought by an administrator, if he should be appointed. She, therefore, has no other remedy to collect her legacy than by foreclosing her lien.

This is an equitable remedy, and if, as we doubt, the statute has begun to run against it, it did not begin to run until the legal remedy, through administration, became unavailing; it did not so become until twelve years after the death of the testator. Her equitable remedy subsists at least for ten years more (Code Civ-il Pro., § 3S8), or, in this case, twenty-two years from the testator’s death.

We think the action is not barred. T>he plaintiff is the assignee of Betsey; he was one of the residuary devisees and legatees; he mortgaged his undivided one-third of the real estate to his brother, the defendant Henry, who subsequently purchased it upon a sale under this mortgage. Henry thus became the owner, subject to the lien in favor of Betsey. We see no reason why she could not subsequently sell this lien to the plaintiff. The defendant W alrath purchased the land after the commencement of the action, and upon indemnity against the lien. He is in no better position than his grantors.

Judgment reversed, reference discharged, new trial granted, costs to abide event.

Bookes, J., concurs for reversal.

Learned, P. J.

(dissenting):

The testator, after providing a maintenance for his widow, gave a legacy of $200 to his daughter Betsey, and another to his youngest son. He then gave all the residue, after the payment of my debts and legacies as aforesaid,” to his three sons, share and share alike, “ after the payment of the legacies above mentioned, and which legacies I hereby make a lien on all my real and personal estate, until paid and satisfied.” He made these three sons executors.

Although this does not in express words say that these residuary legatees are to pay the pecuniary legacies, still I think that a fair construction of the language, under the decisions, imposed a personal liability on these residuary legatees, in case they accepted their devise and bequest, especially if they did so without administering on the estate.

The devise and bequest is “ after the payment of the legacies.” The three sons claimed to own each one-third of the farm, and so possessed and enjoyed it. The personal property was allowed to remain thereon. And there is abundant proof that they accepted the residuary devise and legacy ; although no letters testamentary were issued. Now it is true that, in many cases where acceptance of a devise charged with a legacy has been construed to make a personal liability to pay, there have been express words to the effect that the devisee was to pay the legacy. (Gridley v. Gridley, 24 N. Y., 130.)

And here the testator, first speaking of the residue, after payment of debts and legacies, gives it both real and personal to his sons “ after the payment of the legacies above mentioned.” That is, they were to have the residue on condition that they should pay the legacies ; which were also made a charge on the real and personal. They, too, were the executors.

Whether the legacies were payable out of personal or real was immaterial, because the whole residue, went to the'se sons. And when, without taking out letters testamentary, they accepted this devise and legacy, and took all the property under this clause of the will, being entitled thereto only “ after the payment of the legacies,” they became personally bound to make such payment.

It may be noticed that in speaking of the residue, the testator describes it as the residue after “ debts and legacies,” Then when he gives this residue to the sons, he says after the payment of the legacies.” The words are not a mere idle repetition. He did not require the sons personally to pay his debts. But he did require them to pay these legacies.

In this view the action was barfed and the judgment should be affirmed with costs.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


author:
Learned, P. J. :
      Landon, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents v. MICHAEL KURTZ, Appellant.

      Confession of a prisoner — not admitted when induced by a promise that the accused shall obtain the benefit of a State’s witness — when the question whether such promise was made should be submitted to the jury — Code of Criminal Procedure, sec. 305.
    In March, 1886, the defendant was arrested in Florida by a special offioer of the district attorney of Rensselaer county and an employee of the Pinkerton Detective Agency, for an offense committed in the city of Troy in February, 1884, for which he and another person were indicted in February, 1886. At Washington the party were joined bj’’ Robert A. Pinkerton, and at Albany by the district attorney. On arriving at Troy, on Sunday, March 20, the prisoner was taken to the office of the district attorney, where he made a confession to the district attorney in Pinkerton’s presence, which was given in evidence on his trial, which occurred on March twenty-fifth. While the party was coming from Washington to the district attorney’s office Pinkerton talked with the defendant about the case, the defendant saying to him several times, “ What benefit amito get out of this thing?” to which Pinkerton replied that there could be no promise made to him; that the only benefit that he could get out of the thing, as far as Pinkerton could see, was the benefit that any State’s witness would get. When they were in the district attorney’s office at Troy Pinkerton said to the prisoner, in the presence of the district attorney: “ If you want to make a statement to the district attorney you can do it; you can use your own judgment as to whether you want to make a statement or not; the district attorney will make you no promises. ”
    The district attorney, who was himself sworn as a witness for the people, testified that he said, “Any statement you may make must be voluntary, and you can make one or not as you please,” and also stated that he had directed the officers having charge of defendant not to allow any one to speak to him or to accompany him on the way up, and that the defendant was not taken before a magistrate until he was taken into court the next day. At Jersey City the defendant was taken out of the rear end of the train and not brought through the passenger depot, and was thereby prevented from seeing his counsel. While' the evidence given upon the trial showed that the crime had been committed, there was nothing to connect the defendant with it (other than the fact of his presence in Troy at the time), except his confession.

      Held, that the confession was not so clearly shown to have been voluntary as to render it adniissible under the provision of section 395 of the Code of Criminal Procedure, excluding confessions “ made upon a stipulation of the district attorney that he (the accused) shall not be prosecuted therefor.” (Landon, J., dissenting.)
    The prisoner’s counsel asked the court to charge that if the jury found that the alleged statement was made on a stipulation of the district attorney that the prisoner should not be prosecuted therefor, they must reject it. The judge refused so to charge, but did* charge that they might take into consideration any evidence there might be in the case tending to show that such a stipulation was made, in determining whether the statement or confession made in the district attorney’s office was or was not true.

      Held, that although it was not necessary to decide the question in this case, the court were of the opinion that the judge erred in refusing to so charge.
    That while the court must decide preliminarily the question as to whether threats or promises induced the confession, yet where this is a question of fact, depending on conflicting evidence, it should be submitted to the jury.
    Appeal from a judgment entered upon the conviction of the defendant, upon his trial under an indictment charging burglary and grand larceny.
    Upon the trial of the defendant, the offense was in great part proven .by his confession, made to one Pinkerton and the district attorney. The admissibility of this evidence was contested by the defendant on the ground that the defendant was induced to make the confession by the promise of the district attorney that he should not be prosecuted. Pinkerton was asked by the defendant’s counsel:
    Q. What, if anything, did you say to him about being a witness for the people ? A. I said if he desired to make a statement to the district attorney that he could do so; that he must use his own judgment, as Mr. Rhodes would make him no promises; and Mi1. Rhodes said that the statement must be voluntary, that he could make no promises. Q. Please repeat just what you said from Washington to the district attorney’s office; if you mentioned a fact to him about making a statement to the district attorney ? A. On a number of occasions, when talking with him in regard to this case, he would say, “ What benefit am I going to get out of this thing?” And I would say to him that there could be no promise made to him; that the only benefit that he could get out of the thing, as far as I could see, was the benefit that any State witness would get. Q. You did tell him that he would get that benefit ? A. No; I said the only benefit that I could see he would get would be a benefit under the law that any State witness would get.
    In charging the jury the court said: “ The question whether the alleged confession or statement was made in the hope of some benefit to come, or by reason of fear, or under some threat, or supposed stipulation with the district attorney that he should not be prosecuted, so far as the competency or admissibility of that evidence is concerned you have nothing to do with. That was a question of law which the court has already passed upon, and whether it was disposed of correctly or incorrectly is of no sort of consequence to you, and is a question which you are not sitting here to review. But I charge you that you may take into consideration any evidence there may be in this case, if you find there is any, tending to show that any such hope or fears were induced in the mind of the defendant, or such alleged stipulation with the district attorney was made, in determining whether the statement or confession that he made in the district attorney’s office was or was not true.”
    The defendant’s counsel requested the court to charge that: “ If the jury find the witness, Pinkerton, held out to the defendant the hope that in giving the statement to the district attorney he should receive the benefits of a witness for the State, the jury may, from that circumstance and the other circumstances of the case, find that the alleged statement was made upon a stipulation of the district attorney, that he should not be prosecuted therefor, and if they so find they must reject it as evidence in the case. The court: I decline that, but I say they may consider that upon the question of whether the statement, if made, was true or false.”

      Peter Mitehell and Charles E. Patterson, for the appellant.

      La Mott W. Rhodes, district attorney, for the respondent.
   Learned, P. J. :

The defendant and another were indicted in February, 1886, for burglary in the third, and grand larceny in the first, degree. The indictment also charged that the defendant had previously been convicted and sentenced in Massachusetts for a certain offense, which, if committed in this State, would have been a felony.

The alleged offense for which defendant was indicted was com mitted February, 1884. He was arrested in Florida in March, 1886, by a special officer of the district attorney of Rensselaer county, and also an employee of the Pinkerton detective agency. At Washington, Robert A. Pinkerton joined them, and they all came through to Troy, the district attorney joining them at Albany. On arriving at Troy, Sunday, March twentieth, the prisoner was taken to the district attorney’s office. He was arraigned March, twenty-second, tried March twenty-fifth, and convicted.

While in the district attorney’s office, on Sunday, he made a confession to the district attorney, in Pinkerton’s presence. This confession was given in evidence on the trial; and without it there would be substantially no proof of defendant’s guilt, as the court held. The most important question raised in the case is as to the admissibility of this confession, and as to a certain part of the charge relative thereto.

The law on this subject is now contained in 'section 395, Code Criminal Procedure. In People v. McGloin (91 N. Y., 241) the court examined many of the former decisions. But it is not intimated that these cases affect the provisions of the Code. Indeed, it is stated that as the crime in that case was committed after the Code took effect, it was governed by its provisions. (See same case, 35 N. Y. Sup. Ct. [28 Hun], 150.)

Then the question must be : Was this confession “ made under the influence of fear produced by threats ; ” or was it “ made; upon a stipulation of the district attorney that he should not be prosecuted, therefor ? ”

That the defendant was under arrest and that the confession was made to an officer, are circumstances which do not exclude it. (People v. Wentz, 37 N. Y., 308 ; Cox v. People, 80 N. Y., 500.)

We have examined the evidence and we see no proof of threats. The defendant urges that there was an excited crowd at.Troy •; that the defendant was detained in the district attorney’s office; that he was not informed of his right to have counsel: that the influence of the detectives was exerted to induce á confession.

Now, while we are not called upon to commend the course of proceedings of these detective agencies, we are yet unable to see that there was such evidence in this case that the court could properly have excluded the confession as made under the influence of fear produced by threats.

The next position is, that it was made upon a stipulation of the district attorney that defendant should not be prosecuted therefor. While Pinkerton was coming up from Washington to the district attorney’s office, he talked with defendant about the case. Several times the defendant said to him, What benefit am I to get out of this thing?” The context shows that this meant, “ What benefit am I to get out of making a confession?” And such an mquiry^ made by the prisoner, indicates that Pinkerton had suggested that he should make a confession. Otherwise the prisoner would not have inquired about the benelit to be obtained by this thing.” Pinkerton replied, that there could be no promise made to him ; that the only benefit that he could get out of the thing, as far as Pinkerton could see,was, the benefit that any State’s witness would get.

"When they were in the district attorney’s office at Troy, Pinkerton said to the prisoner in the presence of the district attorney : If you want to make a statement to the district attorney you can do it; you can use your own judgment as to whether you want to make a statement or,not; the district attorney will make you no promises.” What need of promises by the district attorney when his agent, Pinkerton, had intimated to the prisoner that confession would give him the benefit which any State’s witness would get ? Why was not that intimation withdrawn by the district attorney ?

The district attorney, who was himself a witness for the people, states that he said: “ Any statement you make must be voluntary, and you can make one or not, as you please.” He further states that he had directed the officers having charge of defendant not to allow ,any one to speak to him or to accompany him on the way up, and that defendant was not taken before a magistrate until he was taken into court the next day.

There is much ground to look with suspicion upon this confession. The prisoner had been brought from Florida without his wife, who had been particularly mentioned as not to accompany him, and under directions by the district attorney that no one should be allowed to come with him but the officers. At Jersey City he had been taken out of the rear end of the train, and had not been brought through the passenger depot. He had been thus (and probably with intention) prevented from seeing his counsel. He was kept in the district attorney’s office at Troy, and had no counsel, and apparently no one was allowed to come into that office except the officers and the detective and the district attorney. There he was induced to make his confession, and it was written down.

In the case of Flagg v. People (40 Mich., 706), a confession was obtained in the district attorney’s office under very similar circumstances, the detective telling the prisoner he had better make a statement; and the confession was held inadmissible. The court remarked: “ A more serious offense was committed in the efforts to obtain a confession than the respondent was guilty of, even if his confession was true as it was a perversion of the process of the law, —poisoning of the fountains of justice.”

Pinkerton had been in communication with the district attorney about this case, and the district attorney had given instructions to Pinkerton in regard to the prisoner. Pinkerton, then, was not a merely unofficial person. He was, to some extent, acting for the district attorney; and what he did and said might be deemed to come from the district attorney, unless it were positively disavowed. It would be most unreasonable, under the circumstances, that what Pinkerton said should not be considered as said in behalf ©f the district attorney. And simply to say, “your statement must be voluntary,” did not so repudiate what the detective had previously said as to take away from the mind of the prisoner the influence which had been exerted. (Porter v. State, 55 Ala., 95.) In that' case two confessions had been made under promises. Before obtaining the third the district attorney assured the prisoner that he could make no promises, etc. But the court held that the third confession was inadmissible; that it should have been explained to the prisoner that the former confessions could not be used against him.

Now, in the present case, the district attorney did' not disavow to the defendant the intimation which Pinkerton had previously made that the prisoner might -have the benefit of being a State’s witness.

We must then consider the language which had been repeatedly used to the prisoner, on the way from Washington, viz., that the only benefit he could get (by confession) was the benefit that any State’s witness would get. What did that mean to the prisoner who had been jointly indicted with Porter? Could he not fairly infer that, if he confessed, he would get the benefit which a State’s witness would get ? If, for instance, the district attorney had himself said to the prisoner: “ The only benefit you can get by confession is the benefit any State witness would get.” What would this language fairly mean ?

It is one of the arts of the detective to intimate, without using straightforward language. Did not Pinkerton mean that the priaoner should believe that confession would give him the privilege of a State’s witness ? And if the prisoner did not so believe, how came he to male that full confession but four days before his trial?

The alleged crime was not recent. It had been committed two years before. The result of the trial showed that, while there was proof that the crime had been committed, there was nothing to connect defendant with it, except his presence in Troy at the time, exclusive of his confessson. It is difficult, then, to believe that the defendant would have confessed, unless under some strong inducement.

A confession made under promise that the prisoner might be used as a State’s witness must be rejected. And it was rejected where the proof was that the district attorney testified: He may have said to him that he might be used as a State witness.” (State v. Johnson, 30 La. Ann., part II, 881.)

Confession on a promise that if the prisoner will turn State’s evidence he shall not be prosecuted, was rejected. (Womack v. State. 16 Tex. App., 178; Rex v. Rudd, 1 Leach, 115 ; People v. Whipple, 9 Cow., 707.)

Confession made where a person in authority induced the prisoner to believe he would get off better is inadmissible. (By Judge Cooley in People v. Wolcott, 51 Mich., 612.)

In Commonwealth v. Taylor (5 Cush., 605), the prisoner was in custody of three constables. Two then said they could make him no promises, but if he would make a disclosure, they would use their influence to have it go in his favor. The prisoner made no statement. The next day, without any further promises, he made a-confession to the third constable. It was held error to admit the confession. It must be shown that the confession was voluntary before it can-be received. (1 Green. Ev., 219; Rex v. Warringham, note to Rex v. Baldry, 2 Den. C. C., 431.)

The prosecutor, it was said, was bound to satisfy the court that the confession was not obtained by improper means. Thus, where the court below had held that the prisoner must show that threats had been made in order to exclude the confession, the judgment was reversed, and the appellate court held that affirmative proof must be given that the confession was voluntary. (State v. Garvey, 28 La. Ann., 925; Stephen’s Dig. of Evidence, art. 22.)

The learned judge, in commenting upon this language of Pinkerton, said that it “ was a statement that under proper circumstances he might — there could be a case in which lie could receive some benefit. It was very far from being an inducement.” But what proper circumstances were implied? The State witness, it is understood, is to confess and to testify against his associates íd the crime. There has been no refusal on the prisoner’s part to testify against Porter, indicted with him. What else was he to do to have the promised benefit ? What was he to understand from Pinkerton’s language ?

Now, it certainly cannot be right for the people to take the position that their officer, or one employed by him, used language so deceptive that the defendant believed he had a promise, while, after all, no promise was made him. That was the claim made in State v. Johnson (ut sivpra), where the district attorney testified : “ I may have said to him that he might be used as a State witness.” It certainly cannot be permitted that afterwards the district attorney may decide not to use the prisoner as a State’s witness, but to convict him on his confession thus obtained.

The language of the Code, which we are to consider under the light of these adjudged cases, is not accurate. The confession of a defendant is declared to be admissible unless made upon a stipulation of the district attorney that he shall not be' prosecuted therefor. This grammatically means a stipulation that the defendant shall not be prosecuted for the confession. The crime is not mentioned in the section. But the section evidently refers to the practice of permitting one charged with crime to become what was formerly called “ an approver,” or now a ¡State’s witness. (See 4 Bl. Com., 330; Rex v. Rudd, Cowp., 331.)

Now it is not necessary to inquire whether a promise by the district attorney that the accused shall not be prosecuted for the crime is legally binding. Certainly the section means that if, by assurance from the district attorney that the prisoner shall not be prosecuted for his crime, the prisoner has been induced to make a confession thereof, that confession shall not be used as evidence against him. And in looking at this question we must remember the principle of morals, that a promise must be taken against the promissor in the sense in which he believed, or should have heliaised. it was understood by the promisee. It cannot be permitted that the district attorney, or any one who may justly be believed to act for him, can use language which he must have thought would be understood by the prisoner as an assurance of freedom from prosecution, and can thereby obtain a confession; and yet that the people can use that confession, because before the confession was actually made the district attorney said he could make no promises.

In these remarks we are not criticising the action of the district attorney. Yery possibly he did not know what Pinkerton had been inducing the prisoner to believe. But he failed to use such language in his own interview that we can feel assured that all well-grounded expectation of obtaining immunity by confession had been taken from the prisoner’s mind. “A confession is deemed to be voluntary if (in the opinion. of the judge) it is shown to have b,een made after the complete removal of the impression produced by an inducement, threat or promise which would otherwise render it involuntary.” (Stephens’ Dig. of Ev., art. 22.)

It is important that crime should be punished, but it is still more important to uphold sacredly the principle that no one shall be compelled, or under promise of immunity from punishment induced, to accuse himself. It is still more important to protect all, guilty as well as innocent, against confessions improperly obtained; “ the weakest and most suspicious of all testimony, ever liable to be obtained by artifice, false hopes, promises of favor, or -menaces; seldom remembered’ accurately or reported with due precision, and incapable in their nature of being disproved by other negative evidence.” (4 Black. Com., 357; Rex v. Baldry, 2 Den. C. C., 431.) In these views we are of the opinion that the confession was not shown to be so clearly voluntary under the aforesaid section that, it-was admissible.

It is hardly necessary to discuss at length the other question bearing on this subject, but we will speak of it briefly. The prisoner’s counsel asked the court to charge that if the jury found that the alleged statement was made on a stipulation of the district attorney, that the prisoner should not be prosecuted therefor, they must reject it. The judge refused, but charged that they might consider that upon the question whether the statement if made was true or false. Similar questions were presented in various forms and exceptions were taken.

Now, a confession is not conclusive when it is perfectly voluntary. The jury may still consider all the circumstances upon the question whether it was true or false. There might be facts proven which would show that a voluntary confession was false, and the jury would have a right to consider these facts on the question of the falsity of the confession. On the other hand, a confession obtained contrary to section 395 must be rejected, even though it he true.

The position of defendant’s counsel is that though the court were justified in admitting the confession, where the evidence was conflicting as to the manner in which it was obtained, yet that the jury should reject it if they should find that it was obtained contrary to that section. To illustrate: If a writing were offered in evidence against a prisoner, purporting to be written by him, and if the question were in dispute whether or not it was so written, the court might admit it in evidence, leaving the jury finally to decide whether it was the prisoner’s writing or not, and thus to admit or reject it.

The learned judge, in replying to the requests of defendant’s counsel, did not say that there were no circumstances connected with the confession for the jury to consider, hence there evidently were such circumstances, but he charged them that the circumstances were to be considered in determining whether the confession was ti-ue or false, and not in determining whether it should be accepted or rejected.

The question here presented does not seem to have been decided in this State. In some States it has been decided favorably to the defendant’s position. In Commonwealth v. Piper (120 Mass., 185) it was said : When a confession is offered in a criminal ease, and the defendant objects that he was induced to make it by threats or promises, it necessarily devolves upon the court to determine the preliminary question whether such inducements are shown. * * * But if there is any conflict of testimony, or room for doubt, the court will submit this question to the jury with instructions that, if they are satisfied that .there were such inducements, they shall disregard and reject the confession.” This doctrine had been recognized in Commonwealth v. Cuffee (108 Mass., 285); Commonwealth v. Cullen (111 Mass., 435); Commonwealth v. Smith (119 Mass., 305), and it was subsequently applied in Commonwealth v. Culver (126 Mass., 464).

The same doctrine is distinctly laid down in People v. Barker (27 N. W. Rep., 539) by the Supreme Court of Michigan, where the trial court, after having admitted the confessions, charged the jury to reject them if they found that they were not voluntary. This was held to be correct.

In Stallings v. Georgia (47 Georgia, 572) a confession was admitted. The court charged: If you do not believe the confessions were freely and voluntarily made, etc., you will have to reject the confession wholly from your consideration.” This was held correct.

In Holsenbake v. Georgia (45 Ga., 43) it was held that a decision of the judge that confessions are admissible is only prima facie. It is his duty to instruct the jury that if they were not freely made they should reject them as evidence.

In Earp v. Georgia (55 Ga., 136) a confession induced by a promise went to the jury without objection. Defendant’s counsel requested the court to charge that in order to make the confession evidence it must appear to the satisfaction of the jury that it was voluntary, etc. The court refused. Held, error. To this line of cases it is possible that State v. Vann (82 N. C., 631) is an exception. The doctrine contended for by the defendant there seems to be established in these States. It appears to us sound. Whether threats or promises induced the confession may sometimes be a question of fact, depending, perhaps, on conflicting evidence. The court must decide preliminarily. But it is reasonable that then the question of fact, if there be any doubt, should be submitted to the jury. It is not necessary to decide that point in this case in the view wo have taken. But it is one of so much importance that we have given it a careful examination.

We need not pass upon the other questions in the case.

The judgment and conviction should be reversed, and new trial granted.

Bookes, J., concurred.

Landon, J.

(dissenting):

I am unable to concur. The rule respecting the admission of confessions has, as I think, been limited by section 395, Code of Criminal Procedure.

That section says, the confession “ can be given in evidence, unless made under the influence of fear produced by threats, or unless made upon a stipulation of a district attorney that he shall not be prosecuted therefor.”

Unless ’this confession was made under the fear, or upon the stipulation defined by this section, the confession can be given in evidence.” That it was not made under the influence of fear produced by threats, or upon any stipulation of the district attorney, seems clear from the fact that it was made under the influence of hope inspired by a promise suggested by the officer having him in custody, that the defendant would, if he made the confession, have the benefit of a State’s witness.

The distinction between a confession made under the influence of fear produced by threats, and a confession procured through seductive influences must have been present to the minds of the legislature. The former is practically a violation of the constitutional provision that no person shall in any criminal case be compelled to accuse himself; the latter is open to no such criticism, but presents simply a question of governmental ethics or policy, over which the legislature has power. That it is a departure from the long established common law rule may be conceded, but the legislature made that departure, and the courts must respect it. If there were otherwise any doubt upon the question it would seem to be settled by the language of the couimissioners in tlieir first report of the penal code to the legislature. This report may be found in assembly document 150, for 1855. Section 449 of that report is the original draft of the present section 395. In submitting it the commissioners said : “ There is, perhaps, no rule of evidence in criminal cases, which has given rise to more discussion in the courts than that which relates to confessions. It is proposed by this section to declare the rule, so that there may be no doubt hereafter, and at the same time to open the door to confessions in many cases where they are now excluded. The law has been too tender in this respect. It should be its policy, as the commissioners conceive, to let, in all the light possible, trusting to the discretion of juries to distinguish between the false and the true. Confessions not excluded by this rule may be given in evidence, with all the circumstances attending them, and the jury will give such credence to the evidence as its own character and those circumstances may justify.”

There was no conflict in the testimony respecting the circumstances under which the confession was made. In no aspect of it could the inference be reasonably drawn that the confession was made under the influence of feal produced by threats; and the district attorney, who refused even to make a promise, as I think, made no representation or statement that could be considered ecpiivalent to a stipulation. Nor do I think this would be suggested, except upon a construction of the statute which the legislature seems to have tried to prevent.

It was, therefore, the duty of the trial court, upon this testimony, to hold that the confession was admissible, and it was proper to instruct the jury that their only duty with respect to it was to consider its truth and effect.

Judgment and conviction reversed and new trial granted.


text:
    WILLIAM H. SMITH, Respondent, v. WATSON MULFORD, MARSHALL FRANCIS and DWIGHT BRANDOW, Appellants.

      Witness — cross-examination to impeach his character — he cannot he ashed upon what charge he has been wrested.

    Upon tlie trial of this action, brought to recover damages for an assault and battery alleged to have been committed by the three defendants, one of them, who was called as a witness in behalf of himself and the other defendants, testified on his cross-examination that he had been arrested, hut did not know how many years ago. He was then asked, “What was the charge ?” the plaintiff’s counsel stating that he offered this evidence with reference to the character of the witness. The court, against the objection and exception of the defendants’ counsel, allowed the witness to answer and state what the charge was.

      Held, that it erred in so doing.

      People v. Imng (95 N. Y., 541); People v. Orapo (16 N. Y.„ 288) followed; Qonnors v. People (50 N. Y., 240) limited.

      Appeal from a judgment in favor of tbe plaintiff, entered at the Greene Circuit on the verdict of a jury, and from an order denying a motion for a new trial, made upon a case and exceptions and upon the ground of newly discovered evidence.

      Sidney Crowell, for the appellants.

      Halloclc, Jennings & Chase, for the respondent.
   Learned, P. J.:

This is an action to recover damages for assault and battery, alleged to have been committed by JVlulford, Francis and Brandow. There is no doubt about the affray. The principal matter in dispute was whether plaintiff or defendants commenced the fight.

Mulford was called as a witness in behalf of himself and the other defendants. On cross-examination he testified that he had been arrested, but how many years ago he did not know. Then he was asked by plaintiff’s counsel, “ What was the charge ?” Defendants objected. Plaintiff’s counsel stated that he offered this evidence with reference to the character of the witness. The objection was overruled, defendant excepted, and the witness answered and told what the charge was, the defendants claiming that this was error.

Undoubtedly, decisions have been conflicting on this point. But the case of People v. Irving (95 N. Y., 541) seems to hold that in cross-examination, specific acts, within the discretion of the court, may be inquired into, tending to impair the moral character of the wfitness; but that accusations cannot. Such is the doctrine of People v. Crapo (76 N. Y., 288); Ryan v. People (79 N. Y., 594) ; Kober v. Miller (45 Sup. Ct. [38 Hun], 184).

The distinction seems to be logically sound. An arrest is only an accusation. Every one is presumed to be innocent till he is proved to be guilty.

To use the fact of an arrest as a ground of discrediting a witness may be logically to presume him guilty until proven to be innocent.

The case of Connors v. People, (50 N. Y., 242), is cited by the plaintiff as being directly in point. But in People v. Crapo, (ut supra), the learned judge who wrote the opinon in Connors v. People speaks of that case, and of Brandon v. People (42 N. Y., 269,) and says that the question of relevancy on the point of credibility was not presented. So that the case of People v. Crapo must be considered to overrule anything incidentally said in those earlier cases.

The plaintiff further says, that the witness had already stated that he liad been arrested. JBut this did not prevent the defendants from objecting to any more irrelevant testimony. It seems to us that under the late decisions to which we have above referred,the testimony was inadmissible. At the same time we think it would be better to leave the range of such questions to the discretion of the trial judge. That the witness had been arrested was a part of the history of his life, as much as that he had lived in such a place. No real harm was done by the admission of this evidence. The witness could have explained that he was falsely accused and wrongfully arrested, if the facts were. so. And whether he explained or not, any judge who has tried cases, knows that practically it would make no difference with the verdict of the jury, that this witness stated that he had been arrested, and mentioned the ground of arrest. These nice distinctions as to what may, and what may not, be given in evidence on such a cross-examination, are of no practical use and really do harm.

But we are compelled to reverse the judgment and grant a new trial, costs to abide event.

BocKes and LandoN, JJ., concurred.

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


author: Bocees, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY DORR, Appellant, v. JOHN BOYD THACHER, Mayor of the City of Albany, Respondent.

      Licenses for places of amusement — in Albany a discretionary power is rested in the mayor —1883, chap. 298, title 3, sea. 14, subs. 15 and 20 — when its exercise will not be reviewed by the court.

    By subdivisions 15 and 20 of section 14 of title 3 of chapter 298 of 1883, the charier of the city of Albany confers upon its common council power “ to pass general, permissive, restrictive or prohibitory ordinances * * * in relation to the regulation of places of public amusement ” which “shall be licensed by the mayor, under such regulations for the safety of the public attending them as the common council may by ordinance determine.” Section 1 of chapter 30 of the ordinances of the common council provides that “no theatrical or musical entertainment * * * place of amusement * K' * shall be had, maintained or kept unless license therefor is first duly obtained.” * * Section 2 of the said ordinance provides that “ the mayor may issue licenses for the keeping, having and performing of the entertainments above enumerated, upon payment to him ” of certain sums specified in the said section, which sums the mayor is by the next section authorized, in his discretion, to reduce.
    Upon an appeal from an order denying a -motion made by the relator for a peremptory writ of mandamus requiring the mayor to grant a license for a musical entertainment, to be given by the relator at his place of business, which had been refused by the mayor upon the ground that as the relator kept a saloon' where ale and spirituous liquors were sold, musical entertainments there would, in his judgment, have a demoralizing influence :

      Held, that the order should be affirmed.
    That the granting or withholding of the license applied for by the relator was, under the provisions of the charter and ordinances of the city, a right and power vested in the mayor, to be exercised by him entirely in his discretion.
    Appeal from an order made at tlie Albany Special Term denying a motion for a peremptory mandamus requiring the mayor of Albany to issue an amusement license to the relator.
    The relator, who keeps a saloon in the- city of Albany, applied to the mayor for a license to there furnish, free of charge, to his customers, vocal and instrumental music. He presented a petition, signed by his neighbors, asking that such license be granted, and offered to pay to the mayor the sum of twenty-five dollars, the highest fee fixed by the city ordinance for such licenses. The mayor refused to grant the license, because in his opinion no such license should be granted to any place where liquor is sold.

      A aron B. Pratt, for the appellant.

      JD. Oady Herrick, for the respondent.

       Decision handed down December 13, 1886.

   Bocees, J.:

This is an appeal from an order of the Special Term, denying a motion for a mandamus requiring the defendant, mayor of the city of Albany, to grant to the relator a license for musical entertainments at his place of business in said city. The refusal by the mayor to grant the license was put on the ground that its issuance rested in his discretion, and that inasmuch as the relator kept a saloon where ale and spirituous liquors were sold, musical entertainments there would, in his judgment, have a demoralizing influence, and therefore he deemed it unadvisable to grant such license. The only question presented on this appeal is whether the granting or withholding of licenses for musical entertainments rests in the discretion of the mayor.

The act providing for the government of the city of Albany (chap. 298, Laws of 1883), confers powers upon the common council to pass general permissive, restrictive or prohibitory ordinances * * * in relation to the regulation of places of public amusement ” (sub. 15 and 20 of sec. 14, title 3 of said act), which, as there declared, “ shall be licensed by the mayor, under such regulations for the safety of the public attending them as the common council may by ordinance determine.”

This power was exercised by the common council by the adopting of chapter thirty of its ordinances, section 1 of which provides that no “ theatrical or musical entertainment * * * or place of amusement * * * ■ shall be had, maintained or kept, unless license therefor is first duly obtained ; ” and section 2 provides that “ the mayor may issue licenses for the keeping, having and performing of the entertainments above enumerated,” on payment of twenty-five dollars therefor; or by section 3 of a reduced fee in his discretion.

Now, by the city charter, places of amusement are required tobe licensed by the mayor under such restrictions as the common council should by ordinance declare; and that body has by ordinance declared on what condition he may grant such licenses, to wit: On payment of a license fee of twenty-five dollars, or of a reduced fee, in his discretion.

Thus it is manifest, that the entire subject of licensing places of theatrical or musical entertainment devolved upon the mayor by a just and fair construction of the city charter and ordinances, the right to issue or withhold a license in such case resting in his discretion, regulated or restricted only by the payment of a specified license fee; and even this fee was in his discretion as to amount, save as it should not exceed twenty-five dollars. This was a matter of police regulation, wbicli should in all propriety be exercised in each individual instance by sound judgment.

It was not intended that a license should be granted to every one who should apply for it and tender the license fee, whatever might be his character, or whatever might be the character of the proposed entertainment or amusement.

The policy of the law was clearly to the contrary of this. So the right and power was conferred upon the mayor to discriminate and himself determine who should have license, judging of the character, associations, surroundings and business of the applicant, and also as to the kind or description of the proposed.entertainment or amusement, whether it would or would not be in accordance with good order and sound morality. The language of the ordinance is, in strictness, permissive, not mandatory. “ The mayor may issue license,” etc. That it was intended to be permissive is apparent, as we conclude, in view of the object and end to be answered by an .observance of the right conferred. It is true the word “ may” in a ¡.statute is sometimes to be construed “must” or “shall,” and is jjtken held like the latter words, mandatory.

ÍThis construction will obtain when the statute directs the doing f a thing for the sake of justice or the public good, or when to ead it otherwise would defeat or subvert the purpose of the act. These reasons not existing, the ordinary sense of the word “may” is the legal one, and then the word must be held to be permissive, not mandatory. (Warner v. Beers, 23 Wend., 156 ; Williams v. The People, 24 N. Y., 409.) In this last case Judge Dento says: “ The primary and most common use of the word may certainly is that contended for, namely, the giving permission to perform the act referred to; and where there is nothing requiring it in the connection of the language or in the sense and policy of the provision, I do not think we should be warranted in giving the word an unusual or even a secondary meaning.” This language has direct application to the case in hand.

There is certainly in this case nothing “in the connection of the language or in the sense and policy of the provision ” requiring that the word “ may ” should have any other than its ordinary meaning. Indeed the sense and policy of the provision here brought under notice admit, as we think, of no other meaning, as it is plain beyond peradventure that neither protection of public interests or of private right require that “may” should be held to be mandatory. As respects private right, the relator shows no other right than such as pertains to each individual citizen as such. There is manifestly no constitutional question involved in the case, if for no other reason than because the entire subject is one of police regulation.

In conclusion, we are of the opinion that the granting or withholding of the license applied for by the relator was, under the provisions of the city charter and ordinances of the common council, a right and power vested in the mayor, to be .exercised by him entirely in his discretion.

Order appealed from affirmed, with ten dollars costs and' disbursements for printing.

LeaeNbd, P. L, and LaNDON, J., concurred.

Order affirmed, with ten dollars costs and printing disbursements.