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    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES S. LYON, Appellant.

      Wrongful conversion of public funds —1875, chap. 19 — when one member of a firm may be convicted under it, though he was absent from the State when the money was received and had no knowledge of it — felony and misdemeanor — the common-la/w distinction between, is not wholly abolished in this State— 2 B. 3., 702, sec. 30 — to what cases the definition of felony there given applies.

    The defendant was indicted, under chapter 19 of 1875, and convicted of receiving and converting to his own use on September 14,1875, the sum of $2,200 owned by the city of Buffalo with intent to defraud that city. It was shown upon the trial that for several years prior to the day stated the defendant had-been engaged in carrying on business in the city of Buffalo with one Bork, That they had earned on the real estate business under the firm name of' Lyon, Baker & Co., and subsequently under that of Lyon, Bork & Co., and; had carried on the banking business under the name of Lyon & Co. The two-firms had a common office and common clerks, but separate desks and books.. Bork became the treasurer of the city of Buffalo in February, 1872, and continued to hold that office until December 31, 1875, when he was suspended by the mayor. On September 13, 1875, the sum of $2,200 in currency belonging to the city was taken from its treasury by the firm of Lyon & Co., and appropriated and used by that firm in and for the purposes of its business, and the said sum was not repaid to the city. At the time this was done the defendant was not in the city of Buffalo, hut was in Utah Territory, and had been there for some weeks, and he had no personal knowledge of the transaction at that time. It did not appear that the defendant had been at any time in the office of the city treasurer while Bork was city treasurer, or that he personally took or received any money that came from there; but it was shown that he was in full vigor of manhood, had a large business experience, and that when fe, the city he was daily at the firm’s office attending to business and looking after its interests.

      Held, that to render the wrongful taking and receipt of the said money by the firm the act of the defendant, it was necessary for the people to show that it was done by his direction, or pursuant to some understanding to which he was a party.
    That to establish this fact the prosecutor might offer evidence to show that there had been an arrangement made oy or between him and Bork to *s£ke the moneys of the city from its treasury for the purposes of the business of the two firms, from time to time,as they should require them; that they had adopted that as a system for supplying the firms with funds.
    That the fact that the firms were at the time Bork was suspended indebted to the city in a sum exceeding $400,000, and had been largely indebted for several years prior thereto, and that it appeared from the books kept by the firms that large amounts of the moneys of the city had been repeatedly received by the two firms and were used for the purposes of their business, were admissible to show that a combination existed between the defendant and Bork, and knowledge by the defendant of such wrongful acts.
    That when sufficient evidence had been given to justify the inference that such a combination or conspiracy had been entered into between the defendant and Bork, that then the acts and statements of the latter in aid and furtherance of that common purpose were admissible as against the defendant.
    That such acts, and statements made by Bork to the defendant informing him of what had been and was being done, were competent as bearing upon the question of the defendant’s knowledge and of his motive and intent.
    'The act under which the defendant was indicted and convicted (chap. 19 of 1875) provided that any person committing the offense with which the defendant was charged should “ be punished by imprisonment in a State prison for a term not less than three years or more than ten years, or by a fine not exceeding five times the loss resulting from the fraudulent act or acts which he shall have so committed, aided or abetted, * * * or by both such imprisonment and fine.” The prisoner’s counsel requested the court to direct a verdict for the defendant upon the ground that the offense with which the defendant was charged was a felony, and that as he was indicted as a principal he could not be convicted as it was shown that he was not actually or constructively present when the money was taken, aiding and abetting in the commission of the offense.

      Held, that the request was properly denied, as the offense for which the defendant was convicted was, within the meaning of that term in the rule referred to, not a felony but a misdemeanor.
    Section 30 of 2 Revised Statutes, 703, providing that “ the term felony when used in this act, or in any other statute, shall be construed to mean an offense for which the offender on conviction shall be liable to be punished by death, or by imprisonment in a State prison,” does not in terms or by fair implication declare that every offense punishable by imprisonment in a State prison is a felony, nor does it assume to define or apply the meaning of that term otherwise than when used in a statute. (Per Bradley, .1.)

    The common-law distinction between a felony and a misdemeanor, to quite an extent, still exists in this State. (Per Bradley, J.)

      Appeal by the defendant from a judgment of conviction, rendered at the Erie Oyer and Terminer, and from an order denying the defendant’s motion for a new trial.

      F. Brimdage, for the appellant.

      Edward W. Hateh, district attorney, for the respondent.
   Bradley, J.:

The defendant, by indictment found against him at the Erie Court of Sessions, in November, 1877, was chai-ged with receiving, converting, etc., $2,200 owned by the city of Buffalo, with intent to defraud that city, on the 14th day of September, 1875.

This presentment was made pursuant to chapter 19, Laws of 1875, which provides that “ every person who, with intent to defraud, shall wrongfully obtain, receive, convert, pay out or dispose of, or who with like intent by willfully paying, allowing or auditing any ■false or unjust claim, or in any other manner or way whatever, shall aid or abet any other in wrongfully obtaining, receiving, converting, paying out or disposing of any money, funds, credits, or property held or owned by this State, or held or owned officially or otherwise for or on behalf of any public or governmental interest by any municipal or other public corporation, board, officer, agency, or agent of any city, county, town, village or civil division, subdivision, department or portion of this State shall, on conviction of such offense, be punished by imprisonment in a State prison for a term not less than three years or more than ten years, or by a fine not exceeding five times the loss resulting from the fraudulent act or acts which he shall have so committed, aided or abetted, * * * or by both such imprisonment and fine.” He was found guilty, andby the judgment of the court sentenced to four years’ imprisonment in the State prison at Auburn. He brings this appeal and in his behalf it is contended that errors to his prejudice were committed at the trial. It appears that in 1852 the defendant engaged in the real estate business, so-called, in the city of Buffalo.

In 1857 Joseph Bork as clerk went into the service of the defendant, and one Baker who was then associated with him in the business, and in 1866 Bork became a member of the firm then known as Lyon, Baker & Co. In 1870 they formed another company having the firm name of Lyon & Co., consisting of Lyon, Bork and one Wright, for the purpose of banking business. These two firms occupied the same room and had clerks common to .both, kept separate sets of books, and occupied different desks. Early in the year 1872 Wright went out of the latter firm, and about the first of February that year Bork’s interest became one-third in both firms, which were composed of the same persons, and continued so until the 1st of February, 1874, when Baker sold out his interest to Westcott and McManus, and the name of the firm of Lyon, Baker & Co., was changed to that of Lyon, Bork & Co., and the business of both firms was carried on until the last of December 1875, when it was quite abruptly terminated. Bork on 6th day of February, 1872, was elected treasurer of the city of Buffalo, qualified; and entered upon the duties of the office about the fifteenth of the month. Was re-elected in November, 1874, for the term of two years from the first Monday of January following. He entered upon this term of his office in January, 1875, and continued to act as such until he was by the mayor of the city suspended from office on the 31st day of December, 1875.

Prior and up to about the time of the election of Bork, in 1872, there had been an officer of the city known as receiver of taxes, which office was abolished, and thereafter the duties of it were vested in the treasurer of the city, and when Bork went into office, in 1872, he made that business a department in his office, and one Werrick .cashier in that department. Bork was engaged in the business of the two firms, and soon financial relation was eréated and carried on to quite a large extent between the treasurer’s office and the two firms in a manner which will hereafter be briefly mentioned. The jury were authorized to find, and necessarily did find, that on the 13th day of September, 1875, the sum of $2,200 in currency belonging to the city was taken from its treasury by and to the firm of Lyon & Co., and appropriated and used by that firm m and for the purposes of its business, and was not repaid to the city. Bork on the day following (fourteenth September) drew his check for that amount on Lyon & Co., which was never presented for payment nor paid, but was left and remained in the city treasurer’s office. The testimony tends to show that somebody went from the office of the firm after and obtained the money in question for the firm. It does not appear what particular person did it, but it is evident that it was done by the personal direction or authority of Bork or by him. He says his recollection is “that the $2,200 was borrowed on the thirteenth of September at the treasurer’s office by some one from Lyon & Go’s, office.” The defendant ■ was not then in the city .and had no personal knowledge of this transaction at that time. To charge him with the offense, evidence of transactions and circumstances extending throiigh the entire period from the time Bork became city treasurer was given, which developed a remarkable history of peculation bearing directly on Bork as such treasurer, and by which was taken and diverted from the city treasury upwards of $400,000.

This evidence tended to show and justified the conclusion that while the firm of Lyon, Baker & Go., and the members of it, had some property, the banking firm of Lyon &' Go. was not supplied with any capital by the members, but its disbursements were dependent upon moneys received in the course of its business from other sources; that it did considerable business, and from time to time as necessity required currency was taken from the city treasury and used by the firm for its purposes, some of which was repaid, but during the period of nearly four years money so taken from the ■treasury and not repaid amounted to about $50,000; that the firm of Lyon, Baker & Go., and Lyon, Bork, & Go., doing a real estate and insurance business, represented a large number of property owners, residents and non-residents of the city, whose interests in that respect they looked after, collected rents, paid taxes, etc., and for such disbursements for some of them the firm did receive rents, and from others of them obtained money; that when the payment of city taxes was required in each of the years 1872,1873, 1874 and 1875, instead of paying the amount of the taxes for them into the city treasury, the firm, through the aid of Bork, the treasurer, caused those taxes to be' marked off the list as paid, had them receipted, charged the amount to those persons assessed, made checks in name of Lyon, Baker & Co., and Lyon, Bork & Go., on Lyon & Go., for the amounts which were taken by Bork, and the money used in the business of the firms.

Those checks were never presented for payment nor was the money paid into the treasury. The taxes thus disposed of included those of the firm and its members on their property, and amounted to over $60,000 in 1872, $27,000 in 1873, and upwards of $117,000 in 1874, and something more than $25,000 in 1875 ; that the facilities to obtain money for the treasury was greatly increased by the issue of bonds during those years by the city pursuant to statutes for various purposes, and a large amount of them was in fact so issued. Bork, as treasurer, had charge to some extent of the negotiation of them, and did sell a large amount of those bonds in New York city aided by agencies there, and by his direction some of the proceeds from time to time were there placed to the credit of the firm of Lyon & Co., with the banking correspondents of the firm, and drawn out by it and used for the purposes of its business, and some of the bonds were purchased by Lyon, Baker & Co. of the comptroller of the city of Buffalo, and paid for by the check of that firm on Lyon & Co., taken and retained by Bork as treasurer, and the bonds so purchased used by the firm as security for loans of money, which moneys were used by it in its business, and the checks were never presented for payment nor paid, nor were the amounts of proceeds of bonds so credited to and drawn out and used by the firm ever paid into the treasury. The amount realized and appropriated by the firm from the proceeds of the city bonds was large, and the evidence tends to show that it exceeded $100,000.

This is but a brief sumtiary of the system used to take and divert moneys from the treasury of the city by these firms for their business purposes. While they did not have the most approved method of keeping accounts, some of these transactions were sufficiently spread on the books and memoranda of the firm to show something of many of them, and from which, aided by other circumstances, information might be derived that their liabilities to the city of Buffalo were large. Those transactions were largely represented by four accounts appearing on the books of the firms and designated as “ Teller’s Check Account,” “ Deposit Account,” “Joseph Bork, Individual Account,” and “Lyon & Co.’s Account,” which were explained on the trial as showing liabilities to the city of $384,000, and with an additional account relating to such liabilities they were increased in amount to upwards of $400,000 at the close of business in December, 1875. It is unnecessary here to refer more particularly to the system of keeping the designated! accounts than to add that the “teller’s check account,” so far as related to the matters in question, represented checks issued by the teller of the banking firm of Lyon & Co. to Bork, on account of moneys which came to it through him, and in some instances when he had given his check to obtain the benefit of money for this firm. The proceeds of city bonds which he caused to be credited to Lyon & Co. constituted a large portion of the amount for which teller checks were so issued. The amounts would be credited to him and the teller’s cheek issued. Those matters in this account went into no other account on the books of the firm. ■ These teller’s checks were kept in drawer in the office of Lyon, Baker & Co., and Lyon, Bork & Co., and when their business was closed those checks wrnre found there, and the liability of that account appearing on the books was $98,316. There was another, sometimes called the “ margin-book account,” upon which entries were made daily of such cash items as went into the accounts on the books. And the firm also kept a memorandum slip upon which entries were made of moneys which did not go on to the books. Upon this slip the evidence tends to show that some of the amounts taken from the city treasury for temporary relief were entered, and that it contained the necessary information of the sources from which the sums there entered as received came. This slip was kept in the money drawer.

The accounts of the defendant with the firms showed him quite largely in arrears. The evidence tends to show that early, in 1872 the defendant commenced to overdraw his account with Lyon, Baker & Co., and continued to do so ; that on 1st February, 1874, his over-drafts were $25,0n0 ; on 1st February, 1875, $27,000, and on 30th December, 1875, $52,000, but this included moneys drawn for which he was responsible in addition to his individual over-drafts, and that not allowing him credits for profit during the four years the over-drafts would amount to $80,000, and that his over-drafts after the 17th February, 1875, including those sums drawn during that time which he was liable to pay, amounted to upwards of $25,000; that while the books of Lyon & Co. showed a balance duo Lyon, Baker & Co., and Lyon, Bork & Co. (which were treated as one firm), the checks drawn by the latter firms on Lyon & Co., and held by Bork in the city treasury, exceeded that balance over $144,000 when the business closed in December, 1875; that the estimated indebtedness of the firms to the city in 1873 was $150,000, and in September, 1875, nearly $330,000, and the entire liabilities “ of the firms then $460,000; that at the termination of their business in December, 1875, the entire liabilities ol the two firms, as appeared by their boohs, amounted to upwards of $660,000, and that the amount of money they then had on hand was $757.26. It also appears that at times Lyon & Co. had overdrawn their accounts with their correspondents in the city of New York, and especially was that quite largely so in the months of June, July,. August and September, 1875, without means of their own to take care of their account, and the proceeds of city bonds .sold were to quite an extent used to rescue them from default there. And that of the $2,200 in question, $2,000 was sent to New York on 13th September, 1875, for a like purpose.

This is a general outline of the situation and transactions of the firms of which the defendant was a member, deducible from the testimony (which the jury were authorized to find), so far as may be material for consideration.

The learned counsel for the defendant, by various exceptions taken on the trial, raised the questions and insisted there, and contends here, that the evidence was insufficient to charge the defendant with the offense alleged, in the indictment, and did not present any question for the jury, and that the testimony relating to the several transactions and situation of the firms, and of Bork as a member of them, not bearing directly upon the facts in relation to the $2,200 in question was incompetent.

The charge against the defendant is the receiving and converting the $2,200 with intent to defraud, etc., and no evidence was competent that did not bear legitimately in some degree on the question of his guilt or innocence of that offense.

Abstractly considered evidence tending to show that he was or might be chargeable with any other crime than that charged in the indictment was not admissible. The alleged offense was committed, . if at all, at the time the $2,200 was received and appropriated and at no other time. The defendant was then in Utah Territory and had been for some weeks, and to make the act his it was necessary for the people to show that it was done by his direction or pursuant to some understanding to which he was a party, and by such understanding, combination. or conspiracy, as to charge him with criminal intent. He was a member of the firm which received and applied the money to its business purposes. Some member of the firm had personal- knowledge where the money came from and had the purpose of taking and using it. The defendant did not .personally know anything about that particular transaction. The prosecution had the right to give evidence tending to show that there had been an arrangement made by or between him and Bork, to take from the treasury of the city of its money for the purposes of their firm business from time to time as they should require; that they had adopted that as a system for supply of currency, and it was proper to present by evidence circumstances which tended in that direction, and when sufficient appeared to justify the inference of such a combination or conspiracy between the defendant and Bork, then evidence of the transactions of the' latter in aid and furtherance of that common purpose was competent. Having given evidence tending to prove that from time to time from February, 1872, and quite frequently, money of the city had been taken to and used by the firms, the people were justified in the effort to show that it was done with the knowledge and consent of the defendant with a view to the establishment of a purpose on his part, in common with that ot Bork, to make the relation of the latter to the city treasury available as a means of supply. This legitimately led to inquiry into the manner of keeping accounts by the firms, and somewhat of their business transactions and financial condition. It did not appear that the defendant was at any time in the office of the city treasury during the entire period, or that he personally did any act of taking or receiving any money that came from there, but it did appear that he was in full vigor of manhood, had a large business experience, and when in the city was daily at the firms’ office attending to business and looking after'its interests, and it might be inferred that he had some knowledge on the subject derived from the books and memoranda of the firms and other circumstances. Then there is evidence tending to prove conversations between him and Bork (which if true) could not fail to show that he had knowledge of those transactions, and the manner in which supplies for the firms came from the money of the city.

Those conversations were had in each of the years 1872, 1873, 1874 and 1875, one of which., of 1872, was in effect an understanding that Bork as treasurer should hold the checks of Lyon, Baker & Co. for the amount of city taxes of the principals or clients of the firm, as well as the amount of its taxes and those of its members, so as to enable it to have the use of the money in its business, which method was adopted; that on other subsequent years as before mentioned, and in a conversation of 1873, between them* reference was made by Bork to the fact that they then owed the city treasury $15,000, in such manner as to convey such information.

It is not necessary here to refer to the circumstances in detail which tend to establish knowledge on the part of defendant. But the testimony was such as to authorize the jury to find, that the defendant was well advised of the transactions of receiving and using the money of the city by the firms in their business, and that this was so frequent and continuous during the period of nearly four years, and of such magnitude as to justify the conclusion, that it was adopted as a business system for the firms, with the understanding and purpose common to the defendant and Bork that it should be done and continued for financial relief of their firms when required. The methods were entirely consistent with such purpose. „

The various transactions and circumstances extending through the time of the existence of these firms, subsequent to February, 1872, were not given upon the trial to prove that the $2,200 was taken and used in September, 1875, nor in the least to bear upon that fact, which must be established or fail upon the proof relating to it alone; but were shown as bearing upon the question of knowledge and intent. The intent of the defendant to defraud was a necessary ingredient to constitute the alleged crime. Those facts and circumstances proved were not independent collateral transactions (such facts are not admissible), but they were associated transaction,s facts and circumstances relating to knowledge and purpose, and to afford light guiding to motive and intent. Such evidence was properly received. (People v. Wood, 3 Park. Crim. R., 681; Bielsohofsky v. People, 3 Hun, 40; affirmed, 60 N. Y., 616; Coleman v. People, 58 id., 555, 560; Weyman v. People, 4 Hun, 512; affirmed, 62 N. Y., 623; Pierson v. People 79 id., 424; affirming, 18 Hun, 239; Pontius v. People, 82 N. Y., 340, 347; affirming, 21 Hun, 328; Mayer v. People, 80 N. Y., 364; People v. Shulman 80 id., 373, note, and cases cited by Earl, J.; Commonwealth v. Merriam, 14 Pick., 518, 520; Commonwealth v. Tuckerman, 10 Gray, 173; Commonwealth v. Coe, 115 Mass., 501.) This comes within the exception well established, to the general rule of evidence, and necessarily so because motive and intent cannot ordinarily be shown by direct testimony, and resort must be had to external acts and transactions to characterize purpose.

The propositions of the counsel for the defendant are recognized as correct in the abstract, that the transactions of Pork in the matters of the firm, or otherwise relating to the use of the money of the city, are not properly subjects for consideration as testimony, and they were not so unless they came within a common purpose of and between him and the defendant, and that other acts and conduct of either Pork or defendant are not admissible for the purpose of proving that the $2,200 referred to in the indictment were received and appropriated. And this was the view taken by the court at the trial.

It was there held, and the court upon the testimony was permitted to hold, that it was sufficient to justify the inference that a common purpose and combination existed between the defendant and Pork within the scope and line of which those transactions came, and. the trial court faithfully observed the well defined limitation of the general rule which excludes evidence of collateral facts even on questions of intent (Coleman v. People, 55 N. Y., 81; People v. Dowling, 84 id., 478; People v. Gibbs, 93 id., 470; People v. Thoms, 3 Park. Cr. R., 256, 270; S. C., 3 Abb. Ct. App. Dec., 571) and kept within the exception of admissibility. Put in some instances testimony tending to prove combination between the defendant and Pork was also evidence of intent, and necessarily properly so, to be effectual as to the latter when and not until the former was sufficiently established.

And the court at the trial did not fail to recognize the principle that excluded the consideration ¡of other conduct and transactions upon the question whether or not the act charged in the indictment was in fact committed by the defendant. (Copperman v. People, 56 N. Y., 593; affirming, 1 Hun, 15; Coleman v. People, 55 N. Y., 90, 91; S. C., 58 id., 555, and cases above cited.)

But by repeated instructions during the progress of the. trial, the court advised the jury of the qualified purpose of testimony received, and of the proper limitation that should be applied to its effect, and this was so carefully and frequently done by the court, as to guard the defendant against prejudice arising from any misunderstanding by the jury of their duty to apply such limitation in their consideration of the evidence.

The learned counsel for the defendant contends that the court ■should have directed a verdict for the defendant, because he was not present and had nothing personally to do with the taking and -converting the $2,200 in question.

This contention involves the inquiry whether the crime charged in the indictment is a misdemeanor or a felony. He insists that it .is the latter. At the time the offense is charged to have been committed, and in fact when the act upon which the charge is made was committed, the defendant, as before remarked, was not in this ■State. And assuming that the crime charged is a misdemeanor, then it follows that the defendant was necessarily treated in the indictment as principal, for all persons in any manner engaged in commission of a misdemeanor are principals ; there are in such case no accessories. (Whart. Crim. Law, § 131; People v. Clark, 4 Denio, 129, 130.) The actual personal presence of the one charged at or near the place of commission of such crime, is not required to render him a principal offender and punishable as such, whether the crime be committed through an accomplice or other .agency. (People v. Adams, 3 Denio, 190, 207; affirmed, 1 N. Y., 173; People v. Hall, 57 How., 346.) The absence of-the defendant from the State, required no more proof to establish his guilt, .than would have been required if he had been in the city and in the office of the firm, and had not actually participated in the par- ■ ticular act in question. In either case it would depend upon his relation to the’ transaction arising out of the fact whether the instrumentality could be treated as his. He did not actually direct to be done this specific act, nor was it necessary that he should to constitute his guilt, if, as the jury have found, there was a common purpose existing between him and Bork; a systeui or scheme to ■ appropriate the city money for the purposes of the business of their firm, which may be characterized as a conspiracy, then the act of one would be tbe act of both and each, while that purpose and relation continued. And having reached that conclusion the question of intent to defraud the city within the meaning of the law, was a less difficult one for the jury. The purposes of acts may to some extent be deemed characterized by their consequences. It may be assumed at all events, that there was sufficient to justify the conclusion that the defendant knew that it was the duty of certain constituted authorities of the city to designate banks in which its moneys should be deposited by the treasurer; that the firm of Lyon & Co. was not a designated depository of them, and that those moneys had no business in that firm, and it had no business with them.

In view of all the circumstances, some of which have before been referred to, the jury were authorized to charge the defendant with receiving the $2,200 with the intent to defraud the city of Buffalo. If, however, the offense charged is felony, the conviction cannot stand. The indictment charges him as principal, and he could not be convicted as an accessory merely, under it. (Wharton Cr. L., 114; People v. Katz, 23 How., 93, and cases there cited.)

To constitute a principal in a felony the person charged must be present actually or constructively aiding in some manner in the commission of the a.ct, or the act must be done in his absence •through some agency or instrumentality, innocent in itself, which includes an innocent person employed by him for the purpose. (Wixson v. People, 5 Park. Cr. R., 120; People v. Adams, 3 Denio, 190, 207-8; McCarney v. People, 83 N. Y., 409, 412, 413.) The evidence does not bring the defendant within the rule required to make him a principal, in his absence, but an accessory only, if the crime is to be treated as felony. But at common law this is not a felony. That definition was there applied to public offenses which •occasioned as their punishment total forfeiture of lands or personal estate or both, and to which capital punishment might have been -added in some degrees of guilt (4 Bl. Com., 95), which rigors have been modified and removed by statute. The question arises whether the statute providing that “ the term felony when used in this act or in any other statute shall be construed to mean an offense for which the offender on conviction shall be liable to be punished by death or by imprisonment in a State prison” (2 R. S., 702, § 30), was designed to define the crime of felony, or to give a definition to the term felony when used in a statute with a view to the interpretation and effect of the statute in which the word did or might appear. That provision of the Revised Statutes has had some attention of the courts, and has seemingly given some conflict to their decisions upon the question. In some of the cases expressions have been used and some decisions made to the effect that pursuant to that provision, the crimes which may be punishable by imprisonment in State prison are felonies, although not such at common law, and are not in terms declared felonies by the statute creating them. (Andrew v. Dieterich, 14 Wend., 31, 36; People v. Van Steenburgh, 1 Park. Crim. R., 39, 45, 46; Klock v. People, 2 id., 676, 685, 686; People v. Borges, 6 Abb., 132, 134.) And in other and later cases it is held that the definition of the crime in the respect in question is not so governed by that section of the Revised Statutes as to make all crimes felonies which may be punishable by imprisonment in State prison when the word felony is not in the statutes creating or declaring them. (Fassett v. Smith, 23 N. Y., 252; Foster v. People, 50 id., 604; Nickelson v. Wilson, 60 id., 369; Thorne v. Turck, 94 id., 90, 95; Keyser v. Harbeck, 3 Duer, 373, 386; People v. Adler, 3 Park. Crim. R., 254.)

In People v. Park (41 N. Y., 21, 24), James, J., in holding that burglary in the third degree was within the statutory definition of the term felony, says : “ This is not in conflict with Fassett v. Smith, as that related to obtaining goods by false pretenses, the punishment for which was in the alternative, State prison, county jail or fine; and hence not within the statutory definition of felony,” and he might have added that burglary at common law was a felony.

In People v. Bragle (10 Abb. N. C., 306), Westbrook, J., says, without much consideration, that “ the crime charged was a felony because under it, if convicted, the accused could be sent to the State prison.” And the Court of Appeals affirmed the conviction without considering the question. (88 N. Y., 585.)

The cases do not furnish a very clearly defined interpretation of the section referred to. But it seems to have come from the necessity arising out of the repeal bj" statute of the common-law definition of felony, which was done before and carried into the-Revised Statutes. (2 R. S., 701, § 22.) Originally and at comm on. law, the definition was that which the term imported, and when that was abolished it became -necessary to have a meaning applied to it whenever it then or thereafter appeared in the statutes. Severity will not be given to the purposes of a penal statute beyond or greater than its terms require, nor will a statute be construed to increase or multiply the cases to which the term felony may be applied, unless such construction is' supported by express words or necessary implication. (Commonwealth v. Barlow, 4 Mass., 439; Commonwealth v. Carey, 12 Cush., 246, 252.) That section does not in terms or by fair implication declare that every offense punishable by imprisonment in a State prison is a felony, nor does it assume to define or apply the meaning -of that term otherwise than in statutes where it is used. (23 N. Y., 257, supra.)

The common-law distinction between a felony and. misdemeanor, to quite au extent, still exists in this State. But the courts without the aid of express provision to that effect have treated it as the legislative policy or intent, that those common-law felonies which do not come within the statutory definition of the term felony are misdemeanors. (Shay v. People, 22 N. Y., 317; People v. Rawson, 61 Barb., 619; People v. Finn, 87 N. Y., 533; affirming 26 Hun, 58.) This is construction-or modification in the direction of relief against the more severe consequences of felony, and does not furnish any support to a construction of the section which would include within that term those offenses not felonies at common-law. These views lead to the conclusion so far as relates to the interpretation of that section of the Revised Statutes, that those offenses known as felonies at common law which come within the statutory definition of the term are such still, and those which do not are not unless made so by the use of the term in some statute other than this section referred to, yet there may be some exceptions established by the courts to that rule which may be treated as modifications of the common-law.

The crime charged in the indictment is a misdemeanor.

The contention of the' counsel for the defendant that if he intended to repay the money to the city treasury, he was relieved from the charge of intent to defraud, and entitled to a verdict of acquittal cannot prevail. When the defendant voluntar'!;,- received and appropriated tbe money of the city, knowing it to be such, the law permitted the presumption of fraudulent intent and the offense was complete. His purpose to repay at some future time could not justify the act.

The support of that proposition would defeat the purposes of the statute. (Commonwealth v. Tenney, 97 Mass., 50; Commonwealth v. Mason, 105 id., 163; Commonwealth v. Coe, 115 id., 481.)

The evidence of the previous good character of the defendant put that fact into the trial, and it was like any other pertinent fact proved entitled to consideration by the jury, and might, as stated in the request to charge, alone raise a doubt. (Remsen v. People, 43 N. Y., 6.) The court had charged the jury on that question and submitted to them that fact as one to be considered by them as fully as necessary (Stover v. People, 56 N. Y., 315), and was not required to adopt the language of the request and charge specifically that “ good character may raise a doubt in the minds of the jury, when without it none would exist.5” (Moett v. People, 85 N. Y., 374; affirming 23 Hun, 60.) It is deemed unnecessary to make reference here to the other exceptions taken on the trial, and state the result of the examination of them, further than to express the opinion that they were not supported by any error of the trial court.

The judgment and order appealed from should be affirmed.

Smtth, P. J., and Haight, J., concurred; Baksee, J., not sitting.

Judgment and order affirmed, and the decision and return remitted to the Court of Oyer and Terminer of Erie county.


source: Caselaw Access Project

author:
Bradley, J.:
      Haight, J.

license: Public Domain

text:
    In the Matter of the Petition of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY, Appellant, for the Appointment of Commissioners to Appraise Certain Lands of HARRIET A. BENNETT and Others, Respondents.

      Taking of land by a raik'oad company — rale by which the property ts to be valued — - agreement between an owner and the company for a sale of the land and for the transfer of other interests therein at a price to be fired by commissioners named by • them — in such a case the court cannot appoint new commissioners on reversing the report of those named by the parties.

    The petitioner being desirous of acquiring the title to certain real estate, for the ■ purpose of erecting thereon trestles and warehouses for the transfer and delivery of freight, entered into negotiations with the owners thereof, which resulted in the making of a written agreement for the purchase and sale of the property. The agreement provided that the petitioner should institute proceedings under,the general railroad acts to ascertain' the value of the premises and the compensation to be paid; that three persons, named therein, should be appointed commissioners “ to ascertain and determine the compensation which ought justly to be made by the company to the party or parties owning or interested in the said property, and the decision of the majority of them shall be binding upon, both parties as the decision of all. It being understood ” * * that said-commissioners shall be governed in estimating the said valuation and compensation by the rules of law applicable to proceedings under said statutes (except as they may be modified by this agreement) * * * said commissioners shall > take into consideration the capability of the premises and property for any use ■ whatever; and they shall determine such compensation without delay and upon their own knowledge and information, as well as upon such evidence as may be produced before them; * * * no damage shall be allowed because - of injury to the Bennett elevator property, or any adjoining or adjacent premises or property or any compensation allowed for anything except the-actual value of the premises or property.” It further provided “that all rights,of appeal given by law shall be reserved to either party.”
    The premises to be taken were known as the Union elevator property, and they adjoined what was known as the Bennett elevator property, all fronting on Buffalo creek. The contract contained agreements for the use of the dock, front, and for connections to be made by the railroad company with the-Bennett elevator, and for furnishing free access thereto; and provided that upon the payment of the purchase price the railroad company was to receive a deed of the premises, containing covenants of seizin and quiet enjoyment- and transferring certain rights of the grantor in an adjoining basin and alley-In proceedings instituted under the general railroad act the three persons named as commissioners in the agreement were appointed to appraise and ascertain the damages, and from their report, fixing tiie compensation at $460,375, this appeal was taken.

      .Held, that the provision in the agreement, authorizing the commissioners to take into consideration the capability of the premises and property for any use whatever, was only declaratory of the rule which applies to such cases, and that the compensation must be limited to the then market value of the property for any legitimate uses to which it could be applied.
    ’ That as it appeared from the testimony taken that the commissioners had been influenced in fixing the amount of the compensation by estimating the amount of income which the property would yield in case it should be enlarged, and in case additional connecting railroad facilities were furnished, and provided an agreement for mutual protection against competition existing between the owners of elevators at that place should continue in force, that they had adopted an erroneous principle of valuation, and that their award should he set aside.
    'That, as the parties had agreed upon the persons who were to determine the compensation by the agreement made prior to the application to the court, and as by that agreement interests were to.be transferred, protected and preserved, which could not arise or be considered in proceedings instituted under the statutes and without regard to the agreement, the court had no power to change the commissioners and appoint new ones, and that the matter must be • sent back to those named by the parties for a rehearing. (Haight, ,1., dissenting, holding that the court had power to appoint new commissioners.)
    Appeal from an appraisal and a report of commissioners appointed in this proceeding, and from tbe order of confirmation made by tbe Erie Special Term.
    This is a proceeding on the part of the petitioner to acquire land 'situate in tbe city of Buffalo for tbe purpose of tbe erection of trestles and warehouses for the transfer and delivery of freight from and to the petitioner’s railway. Negotiation between tbe parties resulted in a written contract made between tbe company and tbe respondents Bennett, whereby tbe company agreed to purchase, and they to sell tbe premises in question. And tbe company agreed to take proceedings as provided by chapter 140, Laws 1850, as amended, and by any other acts supplementary thereto, in this court, for tbe purpose of ascertaining tbe value of the premises and the compensation which should be paid for them. It was also “agreed that in said proceedings Nelson IL Hopkins, Robert Dunbar and Brigham Clark, shall be appointed commissioners to ascertain and determine the compensation which ought justly to be made by tbe company to tbe party or parties owning or interested in tbe said property, and the decision of the majority of them shall be binding upon both parties as the decision of all. It being understood * * * that said commissioners shall be governed in estimating the said valuation and compensation by the rules of law applicable to proceedings under said statutes (except as they may be modified by this agreement), * * * ■ said commissioners shall take into consideration the capability of the premises and property for any use whatever, and that they shall determine such compensation without delay and upon their own knowledge and information, as well as upon such evidence ns may be produced before them, * * * no damage shall be .allowed because of injury to the Bennett elevator property, or any adjoining or adjacent premises or property, or any compensation .allowed for anything except the actual value of the premises or property.”
    The premises in question were known as the Union elevator property, and adjoining it on the east is the Bennett elevator property, all fronting on Buffalo creek; and it was provided by the •contract that each of the respective owners of those properties should have the right with boats and vessels engaged in commerce to overlap the docles of the other, but that the Bennett elevator •should have priority in that respect, except as against vessels first .arriving and actually engaged in loading or unloading coal from and .to the coal shutes of the Union elevated dock until such loading or unloading was completed, and that the commissioners should take into consideration such rights to be enjoyed by the Union elevator property and the burden to which it will be subjected by them. It was also agreed that the company should within thirty days make proper •connection between the Bennett elevator and the main tracks of its road so as to give the elevator good railroad connection with the petitioner’s railroad with suitable approaches for receiving and ■shipping grain to and from the elevator, and to furnish it such connection as it may from time to time have with the tracks of the New York Central and Hudson River Railroad Company in Erie ■street, and to allow free ingress and egress over its tracks connected with those of that company; that the petitioner take grain of the Bennett elevator on the usual terms, and that either party may after May 1, 1881, terminate those railroad connections on six months’ notice, and until that day the Bennett elevator shall have the preference of all grain of the boats running in connection with tbe petitioner’s road at established rates; but if notice be given by it, and the business be taken away from the elevator, then the petitioner will furnish tracks of its road so as to connect the Bennett elevator with the tracks of the New York Central and Hudson River Railroad in Erie street, the company to maintain a crossing for wagons and teams for the benefit of the elevator at a place specified. That on the payment of the purchase-money Harriet A. Bennett, the owner, will execute and deliver to the company a deed of the premises in question with covenants of seizin and for quiet enjoyment ; that the respondents Bennett will then assign to the company a certain grant made by the common council of the city of Buffalo, so far as it relates to Dart Basin alley, and all their rights to that alley; also all their rights of property in certain lands in and adjoining Evans’ ship canal and described in a petition of the company for appraisement. The contract also provided “ that all rights of appeal given by law shall be reserved to either party.”
    After making this contract the company took proceedings under the statute'for the appointment of commissioners and an appraisal of the value of the premises, and upon its petition, in the usual form, the persons designated as such in the contract were appointed by order of the court. After hearing the proofs two of the commissioners made a report, in which the other one did not join, appraising the value of the premises and the amount of compensation to be paid by the petitioner at $469,375, which report having been affirmed this appeal was taken.

      John G. MiTbu/rn, for the appellant.

      E- G. Sprague, for the respondents.
   Bradley, J.:

Some peculiarity is given to this proceeding by the contract made by the parties, and in what respect and to what extent it has a bearing upon any question which the case presents will be considered. The important proposition has relation to the determination by the commission of the amount that the petitioner should pay as compensation or as the purchase:price of the property.

The premises are 171£ feet in length fronting on Buffalo creek, and about 120 feet in depth, extending back to Joy street in the city of Buffalo. By their supplemental report, which they were required by the order of the. court to make, the two commissioners say that from the testimony of witnesses in whose evidence they had confidence, it was apparent that thp land was fairly of the value of $410,000, and the buildings on it $60,000,; making the total of $470,000. This appraisal gave as the value of the land, exclusive of the structures on it, nearly $2,400 per lineal foot.

The difference in value, as given by the opinions of the witnesses, is so great as to invite inquiry into the basis upon which their estimates were made. The witnesses, including Mr. Bennett on the part of the respondents, state the value of the land at from $2,000 to $3,000 per foot, and the Union elevator structures from $60,000 to $75,000. And those on the part of the appellant put the value of the land at from $300 to $450 per foot and xhe elevator structures at from $25,000 to $27,000; thus making a difference in estimates of value of the entire property of about a half million of dollars. And when compared with other sales of property in that locality before then, and then recently made so far as the same appeared, the value as appraised by the commission was exceptionally large, and so large as to evince that circumstances had given a sudden rise in values of property tüere, or that the method of estimate was peculiar to the property in question.

This property is well and favorably located for commercial purposes. It is near the mouth of the creek. The water opposite has good width so as to enable vessels to turn around, and because it is so near the mouth of the creek, vessels can with greater facility approach the dock, load, unload and depart, than farther up the creek, where there is liability to interruption and delay from other craft. These are some of the considerations applied by the witnesses to this property to appreciate its value, which are, said not to be applicable to some other-properties on the creek in that vicinity. But it is difficult to account for this difference in value, given by men of intelligence and judgment as the witnesses appear to be, except by assuming that they adopted radically different theories of estimate. The respondents are entitled to be allowed the fair market value of the property, and that is the basis upon which the estimate should be made and allowed by the witnesses and the commission. (In re William and Anthony Streets, 19 Wend., 678; 690; T. and B. R. R. Co. v. Lee, 13 Barb., 169; Black River, etc., R. R. Co. v. Barnard, 9 Hun, 104; In re N. Y., L. and W. Ry. Co. v. Arnot, 27 id., 151; N. Y. W. S. and B. Ry. Co. v Dudleston, 29 id., 609.) And to aid in ascertaining such value recent sales of property of like character and situation may be shown. (Shattuck v. Stoneham Branch R. R. Co., 6 Allen, 115; Benham v. Dunbar, 103 Mass., 365; Green v. Fall River, 113 id., 262; Chandler v. J. P. Acqueduct, 122 id., 305, 306; Gardner v. Brookline, 127 id., 358, 363.) Such value is to have relation to the time in question and is not confined to any particular use, but the then market value may be given as for any use for which the property is the most advantageously adapted or may be used. (Boom Co. v. Patterson, 98 U. S. [8 Otto], 403; Dickenson v. Fitchburg, 13 Gray, 546; College Point v. Dennett, 5 T. & C., 217; In re N. Y. C. and H. R. R. R. Co., 6 Hun, 149, 154; N. Y., L. and W. Ry. Co. v. Haskin, 29 Hun, 1.)

The provisions of the contract that the commissioners should take into consideration the capability of the premises and property for any use whatever, and that no compensation shall be allowed for anything except their actual value, are only declaratory of the rule which the law applies to such cases and limits that compensation to the then market value for any legitimate purpose for which the property is adapted. And such estimates of value must be made on a basis reliable in view of existing conditions, and not on speculations of future developments and property relations. (Burt v. Wigglesworth, 117 Mass., 302; In re N. Y., L. and W. Ry. Co. v. Arnot, 27 Hun, 151.)

In view of the power existing in the sovereignty to give the right to take private property for public uses, it may be said that individuals hold their property subject to the exercise of that power. (Matter of Furman street, 17 Wend., 669; 13 Barb., 171, supra.) It is not the policy of the law to make the taking of property for such purposes a matter of profit to the owner, nor is it done for his benefit (B. R., etc., R. R. Co. v. Barnard, 9 Hun, 104, 106), but to give him full compensation to be measured upon a proper basis for the injury occasioned to him, which does not entitle him to anything for the benefit to the corporation taking it as distinguished from such inj'ury to him. (Black River, etc., R. R. Co. v. Barnard, supra; In re Boston, etc., R. R. Co. v. T. and B. R. R. Co., 22 Hun, 176, 179.)

The question whether or not erroneous principles wei’e applied in making the award may be indicated somewhat by the testimony. By that of the witnesses making the higher estimates it appears that their opinions of value were based largely upon the earnings which under certain assumed conditions might in their judgment be made with the property. It appears that there are thirty-six or thirty-eight elevators at Buffalo of various capacity; th'at the Union elevator has that of 50,000 or 60,000 bushels-of grain, which is comparatively small; that it has not for many years done much business, and that from one-third to one-half of all the elevators are idle, but they have a revenue from the earnings of those in operation, which arises out of a combination under the management of an association known as the Western Elevator Company, by which all elevators in the association have awarded to them shares respectively according to their capacity and business facilities.

The Bennett and Union elevators together had an award of forty shares, of which the latter was treated by Mr. Bennett as representing fifteen, said to be worth $1,000 each in 1883. This arrangement is consummated through this association to escape competition and make the elevator business more profitable than it otherwise would be. The respondents proceeded to prove, subject to the objections and exceptions of the appellant, the amounts earned annually by the first-class elevators of the city, and that with the requisite expenditure, the capacity of the Union elevator could be so| increased as to produce a profitable (stated) income on the amount of the expenditure, and their estimated value of the premises for elevator purposes, and that by operating it in connection with the Bennett elevator by the improved means of self-trimming spouts and two legs, one of them portable, the quantity of grain which could be handled in a single season might be increased to 25,000,000 bushels; that the respondents Bennett had an offer from Yanderbilt to give some connecting facilities with the Ne w York Central, etc., railroad; and that although this property was not of itself sufficient in extent for a coal yard, it may be valuable as such in connection with the coal shutes on adjacent property of a railroad company.

One of the witnesses who estimated value at $2,000 per foot for the land, says : “ I have no particular knowledge of market prices of property, but base it on what I think it 'might be made to pay by improving it as an elevator.” Another one, giving like estimate of value, says it would not be worth that detached from the adjacent land before referred to of the railroad company, that that is what makes this property valuable.” And another adds that if it were not for the association, which protects against competition, the value of elevator property would be less. The references made to the earnings of other elevators, first-class elevators, with a view of proving the income of the property in question, after its capacity is increased by the expenditure of the necessary amount for that purpose, is not a reliable or approved basis for an estimate of value, but it becomes matter of Speculation, dependent on too many circumstances, to be entitled to consideration as evidence of value. And the same may be said of contemplated relation to and operation with other property and projects in view, for connecting facilities with channels of transportation not within the control of the owner of the property in question. (Burt v. Wigglesworth, 117 Mass., 302, 306; Gardner v. Brookline, 127 id., 358, 362; In re William, etc., Streets, 19 Wend., 690; N. Y., L. and W. Ry. Co. v. Arnot, 27 Hun, 149, 154.)

It appears that some of the elevators are under the control and management of large railroad corporations, which bring to their respective elevators all the birsiness they can control. The .fact that some of these earn $100,000 and upwards each, during one season, furnishes no very reliable information that another of like capacity would have the same favorable circumstances to supply it with business. Then the increased income that is dependent upon the aid of the Western Elevator Company in relieving against competition, is not within the control of the respondents, and its continuance cannot be assured. The income depends upon the extent of business done, and that is again dependent on the existence of the business to be done, and so fars as relations with others in respect 'to the use of property or means and facilities which may furnish or increase business at a particular locality are contemplated, they are dependent on the consummation and then on continuance, and when an attempt is made to found an estimate of value, based on income upon those conditions, too many contingencies intervene to make suck opinions evidence, or to furnish any legitimate aid to the tribunal required to determine the value of property. It cannot be seen- that this character of testimony did not have its influence with the copunission, if it did not entirely control their action in reaching a result. The commissioners were required to view the premises, and were at liberty to exercise, their judgment, guided by correct principles, in ascertaining the value. The provision of the contract, that they shall determine the compensation upon their own knowledge and information, as.well as upon such evidence as may be produced before them,” neither requires or permits anything more than the law in effect directs and authorizes. (Laws 1850, chap. 140, § 16, as amended; Laws 1864, chap. 582; In re Boston Bowl, 27 Hun, 409.) And although in their supplemental report the commissioners say that they did not rely entirely upon the evidence but upon their own knowledge they add, that after considering all the .evidence it was apparent to them from the testimony of the witnesses in whose evidence they had confidence the property was fairly of the value of $470,000. Nor does the clause in the contract that the commissioners shall take into consideration the capability of the premises and property for any use whatever” enlarge' the rule which the law applies in such cases. (Boom Co. v. Patterson, 98 U. S., 403, and other authorities before cited.)

In view of all the testimony it is difficult to escape the conclusion that the commissioners reached their result by the application of erroneous principles to the appraisal of value of the property in question, and that the amount of compensation awarded by their report was by that means increased considerably m excess of the fair market value of the property. The contract of 4th of May, 1883, fixed the rights of the parties to it as vendor and vendee, except only so far as related to the purchase-price, and it is as of that date that the value is to be estimated. (Matter of Munson, 29 Hun, 336).

This is a very proper. case for the ' direction of appointment of new commissioners if the power exists to' do so. The parties by the contract named the persons to be appointed as such to appraise the compensation or purchase-price to be paid. It is contended by the counsel for the appellant that by their appointment and i:eport the purposes of the agreement, so far as relates to those persons as commissioners, have been accomplished, and that inasmuch as the contract provided that proceedings should be taken under the statute to appraise the compensation, and they were so-taken, and as w all rights of appeal given by law ” were by it reserved, to the parties, the power of this court to direct the appointment of new commissioners, in the event that the appraisal and award are set aside, exists as one of the incidents of the appeal. v

The statute provides that “ on the hearing of such appeal the court may direct a new appraisal before the same or new commissioners in its discretion.” (Laws 1850,. chap. 140, § 18.) This question would have been free from difficulty if commissioners had been appointed pursuant to stipulation or agreement made in the proceeding, and merely naming the persons agreed upon, but this may be deemed something more and different. The contract is one of sale of the premises not made in a legal proceeding, but before any proceeding is instituted, and as part of the arrangement under which the voluntary agreement for the sale was made, the persons-are named who shall in the usual manner provided by law ascertain the amount of the compensation. The court in the first instance-might have refused to appoint those persons as commissioners, and may yet revoke the order of their appointment.

It is not necessary here to say what the effect of either such refusal or revocation might have been or would be on the contract of the parties in other respects. It will be observed that the contract contains various stipulations. The title is to be taken by warranty deed. The grantor practically is to indemnify against incumbrances (if any) other than those provided for and to be paid out-of the fund» There are interests to be transferred, taken, protected-and preserved by the terms of the contract, and which cannot come from the proceeding independent of it, and which in legal effect distinguish this from an ordinary proceeding under the statute to acquire land» While it is unnecessary here to determine whether or not the court has the power to proceed in disregard of the contract, it must be assumed that it is binding on the parties to it, and that the court, in proceeding in affirmance of the contract and in recognition of the force of its provisions, must observe the limitations contained in it upon the exercise of power in the proceeding, and it is-questionable whether any other than that given by it can in that view be exercised.

The reservation to the parties of all rights of appeal necessarily includes the power of the court to review, reverse and set aside orders and awards appealed from. But we are not prepared to-say that it goes so far as to embrace the power of the court to direct a new appraisal before new commissioners. The contract provided that the persons named “ shall be appointed commissioners to ascertain and determine the compensation,” etc. That language would seem to continue to speak and declare the purpose of the parties until the amount of compensation is finally ascertained, and to thus qualify the statutory power of the court in the proceeding. There-is a condition implied in the investment of judicial powers, even by voluntary agreement, that the result shall come from the faithfully exercised judgment of those charged with the duty, and when that is not had the party aggrieved is not without remedy. As a rule the court cannot modify or alter a contract voluntarily made expressing the purpose 6f the parties to it.

If the direction of the new appraisal by other commissioners may be treated as a modification of an existing operative agreement of the parties, it is not within the legitimate power of the court in recognition of that contract to give such direction. It is usual for the courts to give effect to the agreement of parties fairly made. (D. and H. C. Co. v. P. C. Co., 50 N. Y., 250.) There is no occasion now appearing to enable or -justify the court in treating this proceeding as independent of that contract. And it is treated as effectual for the purposes of the conclusion reached here in that, respect, which is, that .in view of the agreement between the parties this court cannot, now and on this appeal, direct a new appraisal before new commissioners, and therefore give no direction in that respect. And in that view this conclusion is put on the ground of want of power. It is deemed unnecessary for the purpose of a rehearing before commissioners to express consideration of any other question presented by counsel.

The order of confirmation should be reversed and the appraisal and report set'aside.

Barker, J., concurred; Smith, P. J., not sitting

Haight, J.

(dissenting):

The award in this case was $470,000 for one hundred and seventy-one and one-half feet of land on Buffalo creek. I am of the opinion that the award is greatly in excess of the true value of the premises in question, and that the commissioners adopted a wrong basis in coming to their conclusion. A new appraisal. should be directed before new commissioners, provided this eourt has the power to so order. Such power exists under the statute in the discretion of the court, and it only remains to be determined whether or not it has been taken away by the agreement of the parties.

Before instituting these proceedings the petitioner entered into an agreement with the Bennetts to purchase the lands in question. None of the other parties joined in the agreement. By the tertns thereof the petitioner agreed, with due diligence, to take proceedings as provided by chapter 140 of the Laws of 1850, as amended* etc.., in the Supreme Court for the purpose of ascertaining the value •of the premises and of the erections thereon, and of obtaining the title in fee thereto, eto.

It then provides that in the proceedings Nelson X. Hopkins, Robert Dunbar and Brigham Clark shall be appointed commissioners to ascertain and determine the compensation, -etc. It then provides that all rights of appeal given by lom shall be reserved to either party. The petitioner was to pay $2,250 on the execution of the contract, and the further sum of $20,000 within ten days thereafter, and the $20,000 was to be deducted from the amount of the .award.

If this is an ordinary contract for the sale of lands then these proceedings were unnecessary, for the Bennetts could contract to sell their interest in the premises, and if they could not agree on the amount that should be paid it was competent for them to agree with the railroad company to leave it to the persons named to fix the amount. It does not appear to me.that such is the effect of the contract, for it specifically provides that these proceedings shall be instituted with due diligence and for the purpose of obtaining the title in fee. It is apparent, therefore, that che petitioner was to proceed under the statute. The parties then agree upon the commissioners. It is' the usual practice for the parties to agree upon the commissioners if they are able to, and if they agree it is usual for the court to appoint the persons so agreed upon; but the court is not bound to appoint such persons, and may in its discretion appoint individuals who have not been agreed upon. Besides, in these proceedings there were other parties who had not joined in the agreement, and they had and still have the right to be heard upon the question as to who shall appraise their interests. It thus appears to me that the agreement as to the commissioners was but the ordinary stipulation of the parties as to the persons who should serve in the first instance, subject to the approval and appointment by the court after hearing and considering the claims of the other parties.

Again, the contract specifically provides that “ all the rights of appeal given by law, shall be reserved to either party.” One of the rights given by law is to have this court exercise its discretion upon the question as to whether or not the new appraisal shall be made bymew commissioners. If all the rights on appeal are preserved this is one, and this court still has the power to direct that the new appraisal shall be before other commissioners; to hold otherwise is to nullify in part this provision of the agreement.

The order should be reversed, and the appraisal and report of commissioners set aside and a new appraisal directed by new commissioners to be appointed by the Special Term upon notice to all the parties appearing in these proceedings.

Order of confirmation reversed and appraisal and award set aside; directions for a .new appraisal before new commissioners refused upon the sole ground that this court has not the power, for the reason that the parties have by their contract agreed upon the commissioners.


author: Bradley, P. J.:

text:
    ANN FITZGERALD, Appellant, v. CHARLES QUIRK QUANN, Respondent.

      Slander — in action for slanderous words spoken by a wife the husband must be-made a defendant— Code of Civil Procedure, sea. 450.
    When an action is brought to recover damages for'slanderous words uttered by a married woman her husband must be joined as a defendant.

      It seems, that the provisions contained in section 450 of the Code of Civil Procedure, that “in an action or special proceeding a married woman appears, prosecutes or defends alone, or joined with other parties as if she was single,” was only intended to relieve her from the common-law disability-of- defending separately when joined with her husband, and to allow her to appear and defend sui juris as if she were unmarried.
    Appeal from an order made at the Livingston Circuit setting aside a verdict in favor of the plaintiff, and dismissing the complaint as to the defendant Charles Quann, and from the judgment entered thereon.
    The action was brought to recover damages for slanderous words alleged to have been spoken by the wife of the respondent, Charles Quirk Quann. He and his wife were joined as defendants. The plaintiff had a verdict at the Livingston Circuit against both of the defendants. Subsequently, on a motion made on the judge’s minutes, the verdict was set aside and the complaint dismissed as against the husband, with costs, the court holding that the husband was improperly joined with his wife as a defendant.

      S. Hubbard, for the appellant.

      James Wood, for the respondent.
   Bradley, P. J.:

The question presented is whether the husband may or’ may not properly be joined as a defendant with his wife in an action for the tort of the latter, having no relation to her separate property. This depends upon the interpretation given to section 450 of- the Code of Civil Procedure, which provides that in an action or special proceeding a married woman appears, prosecutes or defends, alone or joined with other parties as if she was single. It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property.” The learned justice at Special Term in support of his conclusion sought the reason of the rule which at common-law made the husband a. necessary party defendant with the wife in actions for her torts, .and held that the reason having ceased, the legislative intent fairly derived from that section and consummated by it was to require, that the wife for the purposes of all actions to which she may be a party be treated as a feme sole.

It has not been the policy in this State for courts to move any in advance of the clearly expressed legislative purpose to remove the common-law disabilities, rights or liabilities of coverture, or to modify the marital relations (Tait v. Culbertson, 57 Barb., 9; Bertles v. Nunan, 92 N. Y., 152), while in some of the States the courts have determined that the reason for the common-law ule relating rto the marriage relation in certain respects had been removed by statute, and therefore the rule itself had ceased to exist although the legislature had not by any act in terms abrogated it. And notably in Illinois it was held that the effect of the statute giving the wife the right to acquire, own, control and dispose of property, etc., free from any interference of her husband, was to relieve him from liability to be joined as a defendant with her in actions for her personal torts. (Martin v. Robson, 65 Ill., 129; 16 Am. R., 578.)

At common law the husband and wife were treated as one person and as having but one will between them, and that in the husband. By the marriage the wife was deemed to surrender to him absolute power of disposition of her personal property, and to collect her choses in action and appropriate to his own use the proceeds, and only such of them as he did not collect were retained by her if she survived him. She could not, at law, make any contract or alone be a party to an action, nor in any manner, except through her . husband, defend one in which she was joined as defendant. Of this he had entire control; yet she, as well as he, was charged in - execution issued on the judgment recovered. (McKinstry v. Davis, 3 Cow., 339.) In all actions for debts owing to and by the wife dum sola, and for torts committed by and against her before and during coverture, brought while the marriage relation continued, the husband and wife had to be joined as plaintiffs or defendants ; and in all those cases if the husband died before judgment, leaving the wife, the actions survived to her; but if she died leaving him .surviving they abated (except that he might, as administrator, continue actions so brought bj him and wife to recover such debts). (Checchi v. Powell, 6 Barn & Cres., 253; Gage v. Reed, 15 Johns., 403; Williams v. Kent, 15 Wend., 361; Goulding v. Davidson, 26 N. Y., 606; Ball v. Bullard, 52 Barb., 141, 143, 144.) And the same rule would apply to rights 'of action not commenced for sucli causes. But if judgment was recovered against husband and wife in any such action his liability to pay it was fixed,’ and his estate was charged after his death with its payment. (Heard v. Stamford, 3 P. Wms., 409, 411; Cole v. Shurtleff, 41 Vt., 311; Burton v. Burton, 5 Harring., 441.) And he was without relief in equity. (Heard v. Stamford,, supra.) This liability of the husband continued only during coverture. (Head v. Briscoe, 5 C. & P., 484.)

This was the general situation at law before the first of the series of statutes known as the married women acts was passed in this State. Those of 1848 and 1849 removed the disability of married women so far as to enable them to acquire, own and dispose of- property the same as if unmarried, but as incident to that right she could • not alone sue at law (Morgan v. Andrut, 18 How., 371), until section 114 of the Code of Procedure was given by the amendment of 1849. Then followed the acts of 1860 and 1862, which enlarged their property rights, enabled them to carry on business, appropriate the proceeds of their services, etc., to sue and be sued in all matters relating to their separate property, and to sue for injuries to their persons or character the same as if they were single. And although for all torts relating to her property she could sue and be sued alone (Rowe v. Smith, 55 Barb., 417; affirmed, 45 N. Y., 230; Baum v. Mullen, 47 N. Y., 577), and for personal wrongs committed against her she could sue alone (Ball v. Bullard, 52 Barb., 141), yet she could not be sued alone for any personal tort committed by her, but the common law in that respect still remained in force without the aid of the restrictive clause of section 114 of Code of Procedure. (Tait v. Culbertson, 57 Barb., 9.) The purpose of that section was only to remove disability, and beyond that it was merely declaratory of the common law and did not restrict its operation. But it is said that, the -husband was joined as defendant with the wife as matter of necessity merely (which involves to some extent the reason for the common-law doctrine which required it), and that both the necessity and the reason are gone, and by the force of section 450 • of Code of Civil Procedure be cannot be so joined. "When the reason upon which a rule of law is founded is clearly defined and is removed the rule itself disappears. (Brown’s Legal Maxims [5th ed.], 133, marg., 118; Berley v. Rampacher, 5 Duer, 186.) But the maxim eessante ratione legis cessat ipsa lex cannot be applied to the common-law rule which required the husband to be joined with the wife as defendant in such case. If it might be deemed an arbitrary one, the inquiry into the reason of it involves the consideration of all the rights, obligations, duties, liabilities and disabilities given by the common law to the marital relation. And so far as observed, no writer has yet authentically furnished satisfactorily all the reasons which may have influenced the various conditions of coverture imposed by the common law. It cannot be said that the reasons have ceased to exist in the sense which is required to enable the courts to declare that the rule does not remain. (Brown v. Clark, 77 N. Y., 369.)

While the common law. is not so rigid a system as to wholly' disregard changed circumstances of society, and has sufficient elasticity to develop new principles to meet new cases, the courts do not assume to abrogate a well settled principle of it. And whether reasons exist for a change or modification of the common law in any particular is a question peculiarly for the legislature. To justify the conclusion that the provisions of section 450 of the Code of Civil Procedure either permit a married woman to be sued alone, or require that the husband should not be joined with her in an action like this, that statute must, by fair interpretation of its terms,, be sufficient to so permit or require. This the language does not necessarily do if there is any substantial difference in effect between appearing and defending alone, and being sued alone. By the learned opinion at Special Term it appears that the position taken was that there was no liability of the husband in such case. If that is entirely correct, then if the terms of the statute permitted it, it would in effect also require that the wife be a sole defendant, for in such case the right would not survive the necessity to j oin him. The contention of the defendant’s counsel is that the purpose of this section was to sweep away completely the common law rule-requiring the husband to be joined; that the husband, by that - rule, was in no sense liable for the personal torts of the wife, and that be was joined by mere necessity occasioned by disability of the wife, and reference is made to Capel v. Powell (17 C. B. [N. S.], 743), decided in 1864, where an action was brought after dissolution of marriage against those who had been husband and wife for a personal tort committed by the latter'during coverture. The court held that the action could not be maintained against him;' that his liability to be sued in such cases continued only during coverture, and Erle, C. J., in his opinion, said: “Where the husband is joined for conformity, if he dies the action goes on .against the wife, but if the wife dies the action abates. It is clear to demonstration, therefore, that theie is no cause of action against the husband. He is not liable for the wrong, but is joined only by reason of the universal rule that the wife during coverture cannot be either a sole plaintiff or a sole defendant.”

There is no occasion to criticise the decision of the Court of Common Pleas made in that case, nor the opinion of the chief judge so> .far as related to the necessity of the existence of coverture to permit the husband to be joined, and to the matter of survivorship. They .are well established propositions, but farther than that it perhaps was not necessary for him to go for the purposes of that case. (See cases above cited and Head v. Briscoe, 5 C. & P., 484; Wright v. Leonard, 11 C. B. [N. S.], 265, 266; Rowing v. Manly, 49 N. Y., 201.) Although the personal tort of the wife is not that of the husband and no imputation for the wrong is against him, the ground upon which his liability to be joined with her as defendant was placed , is not very clearly defined. Judge KeNT says that the husband is liable for the torts of the wife (2 Kent’s Com., 149), and .such is generally the expression given by text and judicial writers • on the subject. Mr. Bishop, in his work “ On the Law of Married Women,” says, that to say he is liable for her torts is an inaccurate ^statement; that the liability is that of the wife, not his, and that he is /joined because the suit cannot be maintained against the wife alone. (Yol. 2, § 254; see, also, Cooley on Torts, 115.) Bacon .states it, that the husband is “answerable for all her torts and trespasses during coverture, in which cases the action must be joint ■against them both.” (Bac. Abr., Baron & Feme, L.) The fact that “ the husband and wife are one person in law, and her legal ..existence suspended during the marriage” (1 Bl. Com., 442), may Lave been a reason of bds liability, snob as it is. As bas been already •observed, precisely tbe same character of liability during tbe marriage relation existed of tbe busband for debts contracted by tbe wife ■dum sola as for her personal torts. It rested on the same doctrine .and the effect of survivorship tbe same. His relation to those debts •at common law, and as bearing upon tbe question under consideration, may perhaps be somewhat illustrated by authority.

In Miles v. Williams (1 P. Wins., 249, 257) it was held that the discharge of the husband in bankruptcy during coverture discharged the debt of the wife contracted by her before marriage. The bankrupt act, under which he was discharged, provided that “ the bankrupt shall be discharged from all debts by him due and owing .at the time he became bankrupt.” In Lockwood v. Salter (5 Barn. & Adol., 303) decided in 1833, the same was held (S. C., 2 Nev. & M., 255 ; see Bright on Husband and Wife, 3); but in Sparkes v. Bell (8 Barn. & Cress., 1; S. C., 2 Man. & Ry., 124), decided in 1828, it was held that after judgment against husband and wife, recovered on an ante-nuptial debt of the latter, the discharge of the husband under the insolvent act did not entitle the wife, taken in execution with him, to be discharged from custody unless it appeared -that she had no separate property, and the court there said “ the debt in question was originally the debt of the wife, by the marriage it became the debt of the husband and wife.”

In Vanderheyden v. Mallory (1 N. Y., 452, reversing 3 Barb. Ch., 9), it was held ‘.that the discharge of the husband under the general bankrupt act of 1841 discharged during coverture the debt of his wife contracted before the marriage. The provision of that act was that the bankrupt shall be entitled to full discharge from all his debts. That suit was brought in chancery to reach some separate property of the wife. The court held that it could not be maintained and dismissed the bill. It is difficult to reconcile •the theory expressed by the dictum of the chief judge in Capel v. Powell, that the husband is not liable, with the doctrine and consequences applied as appears by adjudications. The solution of the .situation seems to be that by the common law the husband during coverture was liable for the torts and ante-nuptial debts of the wife. That such liability did not necessarily rest on him as debtor, nor did it impute to him any personal wrong on his part, but his liability was as husband and because he was such; and. it is not important that such liability was arbitrarily imposed by law, and continued only during coverture,, and that it afforded no vested right before judgment against him to recover, after dissolution in any manner of the marriage relation.

Thai, it was nothing short of such liability, and more than a mere necessity to join him as party, is evidenced by the fact that when in such a case a judgment is recovered against him, he and his estate after his death are chargeable with its jiayment, and without any relief as against the separate estate of the wife; also that his discharge in bankruptcy bars action during coverture. The tort is personal to the wife only; the right of action for- it abates with her death, and survives against her alone on the death of the husband or other termination of coverture. The right of the person aggrieved by her tort was at common law to prosecute to judgment the husband while he remained such, and to collect of him the judgment. It is difficult by any qualification to treat that less than a right while the rule of,the common law remains. (Hill v. Duncan, 110 Mass., 238, 239.) The statute in question (Code Civil Fro., § 450), does not provide either that the husband may not be joined as defendant with the wife or that she may be sued akae. The amendment or annex of 1819 to this section does not restrict the import of the original section, nor does it by relation or implication entitle it to any new or different meaning. While all statutes on this subject are in pari materia and to be treated as -one, in aid of the interpretation of each, they are not as a whole exceptions to the rule which requires that those in derogation of the common law are to be construed as innovations on it, no further than they by express terms or by fair implication declare. (Perkins v. Perkins, 62 Barb., 531.) The common law unity of husband and wife and disabilities by coverture still exist in many respects in this State, and in all respects except so far as the legislative purpose to modify and remove them has been expressed by statute. (Bertles v. Nunan, 92 N. Y., 152.)

In the provision of the section that “a married woman appears or defends alone,” etc., a purpose may be seen to remove her disability, when the husband is joined with her as defendant, to control the defense in her own behalf, which she could not do at common law; although in a proper case she might go into equity where severalty of husband and wife was recognized and obtain leave to defend. This section (450) gives her the right to do so at law without the aid of a court of equity. (Janinski v. Heidelberg, 21 Hun, 439.) The interpretation of that section has had consideration in some other cases. In Hoffman v. Lachman, the Special Term of New York Marine Court; in Berrien v. Steel, the Special Term in First Department (1 N. Y., Civ. Pro. R., 278, 279 notes); in Fitzsimons v. Harrington (Id., 360), the Genesee Special Term, and in Trebing v. Vetter (2 McCarthy Civ. Pro. R., 391.) The Genera Term of Brooklyn in City Court held that the common law rule in question was not removed by the Code of Civil Proceedure (~ 450). In Muser v. Miller (65 How., 283; 3 N. Y. Civ. Pro. R., 388) the Special Term of the New York Superior Court, on a motion to vacate an order of arrest, FRI DMAN, J., held that the common-law rule in that respect was abrogated by operation of that section, and approved the decision and opinion of phe Special Term in the case at bar. And the Oneida Special Term, in Laude v. Smith (6 N. Y. Civ. Pro. R., 51), did the same. But Muser v. Miller has since been overruled in that respect by the General Term of the same cdurt in Muser v. Lewis (not reported), and SEDGwIOK, 0. J., in delivering the opinion, held that the husband was properly joined as defendant, and that the provisions of the ~.rst part of section 450 had no relation to the way in which the wife might be sued, but merely relieved her from the common-law disabilit1* of defense where her husband was joined with he~ as defendant, and permitted her to appear and defend sui june as if she were unmarried.

No legislative intent is found in that section to require that a married woman be made a sole defendant in an action like this. The statute of Massachusetts (St., 1871, chap. 312), under which he decisions there are made, completely abrogates this common-law rule. (Hill v. Duncan, 110 Mass., 238; 118 id., 58.)

From the views above given the conclusion follows that the ju~gment and order appealed from should be reversed.

Present - SMITH, P. J., BARKEa and HAIGHT, JJ.

Judgment and order reversed.