text:
    THOMAS REDDINGTON, Appellant, v. THE MARIPOSA LAND AND MINING COMPANY OF CALIFORNIA, and others, Respondents.

      Foreign corporation — service of summons upon — “ Managing agent ” — meaning of in subdivision 3 of section 432 of the Code of Civil Proced/nre.

    The defendant was a foreign corporation, organized under the laws of California, and having its office and place of business in that State; it had a president, secretary and treasurer, all of whom resided there,- it had no place of business in New York, except a branch office, at which, its stock could be transferred . and assessments be received for transmission to California; one Brumagim was employed to take charge of this office, and to transfer stock and receive and transmit assessments, as directed by the defendant’s officers. He had nothing to do with the general business of the company or with its books and papers.

      Feld, that he was not “ a managing agent of the corporation " under subdivision 3 of section 432 of the Code of Civil Procedure, authorizing service of the summons upon the ■ corporation by the delivery thereof to a managingagent of the corporation.
    The term,1* managing agent,” as therein used, means one who is invested with* general powers involving-the exercise of judgment and discretion, as opposed to an ordinary agent, who acts in an inferior capacity and under the direction; and control of superior authority, both in regard to the extent of his work and the manner of executing it.
    Appeal from an order of the Special Term, denying a motion made by the plaintiff, to compel ap inspection of the books and. papers of the defendant corporation. t

      Charles H. Williams, for the appellant.

      Edgar Swain, for the respondents.
   Ingalls, J. :

The motion was denied, upon the ground that there had not' been such a service of the summons in the action as to confer jurisdiction, and to commence the action, consequently the order for an inspection of books and papers could not be regularly granted. The defendant is a foreign corporation, having its principal office in California, and having a president, secretary and treasurer, all of whom resided in California. The service of the summons must fail, unless the court can see that the plaintiff brings his case within the third subdivision of section 432 of the Code of Civil Procedure, which provides as follows : “ 3. If such a designation is not in force, or if neither the person designated, or an officer specified in subdivision first of this section, can be found with due diligence, and the corporation has property within the State, or the cause of action arose therein, to the cashier, a director or, a managing agent of the corporation within the State.” The service of the summons herein was made upon one Jocob H. Brumagim, who resided in the city of New York, and who stated in the affidavit, read in opposition to the motion, his relation to the company, as follows :

“ That said Mariposa Land and Mining Company of California, is a foreign corporation, duly organized under the laws of the State of California, and having its office and place of business in. California, and having no office or place of business in the State of New York, except a branch office for the transfer of its stock, and to receive assessments to be transmitted to California.

Deponent further says that, from his acquaintance with the business, property and effects of said Mariposa Land and Mining Company of California, said company, to the best of deponent’s knowledge, information and belief, had not on the 26th day of March, 1879, the day upon which said summons was served upon this deponent, and has not since had, and has not now, any property within the State of New York.

That at the time of the service of said summons on deponent said company had and still has a president, secretary and treasurer, all of whom then resided, and still reside in California, and were not within the State of New York, and deponent was not at the time of the service of said summons, and is not now the president, secretary or treasurer of said company, or an officer of said company, and does not and never did perform functions corresponding 'to either of said offices, and had and has nothing to do with the general business or affairs of the company, or with the books or papers in which its transactions are recorded, deponent having been at the time of such service, and still being, merely employed to take charge of the branch transfer office in this city, and to supervise the transfer of stock and the receipt and transmission to California of assessments paid here, as deponent is directed by the officers of said company.

Deponent further says that when said summons was served upon him he ivas neither the cashier, a director nor managing agent of said corporation within this State, and had and has no power or right to act or answer for the said company in any respect, and that he is advised and believes that this action has not been commenced against the company, and that this court has not'acquired jurisdiction in the premises.

That at the time of such service deponent informed the person making such service that he had no authority to accept service of said summons for the company ; that the office of the company was at San Francisco, and that the office in New York was an office simply for transferring stock ; that the person serving said summons stated that he was instructed to leave the summons.”

We do not perceive that the other facts materially conflict with the statement of Brumagim — at all events they are not overcome. Hence arises the material question upon this appeal, viz., whether Brumagim can be regarded a managing agent of the corporation, within the meaning of said statute, so as to authorize the service upon him of a summons, in order to commence an action in this State. The duties which wore assigned to Brumagim by the company were restricted in regard to their nature and extent, and the performance of such duties was subject to the direction and control of the company. We do not perceive that any exercise of independent judgment was confided to him, and he seems to have acted entirely in a subordinate capacity. We are convinced that Brumagim could not properly be regarded a managing agent of the company, within the contemplation of the statute, so as to render valid the service upon him of process against the corporation, and thereby confer jurisdiction upon the court and bind the company. It is quite clear that the Legislature attached importance to the term managing agent, and employed it to distinguish a person who should be invested with general power, involving the exercise of judgment and discretion, from an ordinary agent or employee, who acted in an inferior ■capacity, and under the direction and control of superior authority, both in regard to the extent of the work and the manner of executing the same. The distinction thus attempted to be drawn we deem reasonable, and in harmony with the obvious purpose of the ¡statute in regard to the service of process upon a foreign corporation. ' It would indeed be a great hardship to allow actions to be ■commenced against foreign corporations by the service of a summons upon an inferior agent or servant, who, by reason of ignorance or heedlessness, would bo quite likely not to apprehend the purpose of such service, and therefore, neglect the same. We therefore conclude that the service, to be rendered effectual within the purview of said statute, must be made upon one of the officers specified therein, or upon a person whose powers and duties correspond to the term managing agent as we have endeavored to define it. Brumagim was not, in our judgment, a managing agent of the corporation, and hence the service of the summons upon him was not effectual for any purpose. It may be doubted whether the corporation is shown to have had any property within this State at the time the summons was delivered to Brumagim, so as to comply with another requirement of the same stated. (Barnes v. The M. and N. W. R. R. Co., 12 Hun, 126.)

The appellant insists further, that the defect in the service of the summons was not brought to the attention of the court, by any party who was entitled to be heard. We do not think this proposition sound, for two reasons : First. The plaintiff caused to be served upon Brumagim the summons, and the papers for the various motions, upon the assumption that he represented the corporation ; and he should not refuse to allow the same person to show that the plaintiff was laboring under a mistake in regard to the powers of the person upon whom such service was attempted. Second. There having been made no such service of process, as is required to confer jurisdiction upon the court in regard to the foreign corporation, the court properly refused to proceed in the action whenever the facts -came to its knowledge, from any source, showing such jurisdictional defect. We refer to the following decisions bearing upon the question, who should.be regarded a managing agent: Brewster v. The Mich. Cen. R. R. Co. (5 How. 183) ; Flynn v. The H. R. R. R. Co. (6 id., 308) ; Sterett, etc., v. D, and R. G. R. Co. (17 Hun, 316) ; Waite’s Prac., vol. 1, p. 512.

• The order must be affirmed, with costs and disbursements.

Present — Davis, P. J., and Ingalls, J.

Order affirmed, with costs and disbursements.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    CHARLES T. PARKER and others, Appellants, v. ARCHIBALD BAXTER and others, Respondents.

      Rale upon a promise to pay the next day — title of vendee — rights of one ad/oancing money on the faith of the borrower's ownership of the property — what gives alien on idle property to such a lender — Reference — notice to terminate, cannot be given after report made.

    The plaintiffs having sold certain corn to the defendants, Baxter & Co., delivered to them the shipping receipts therefor, upon their promise to pay the price thereof, on the next day; Baxter & Co. procured bills of lading of the corn, by which it was consigned to the Bank‘of Liverpool, and drew a bill of exchange-upon the said bank for ¿62,600, to the order of Brown, Shiply & Co., of London, directing the amount thereof to be charged as advised. This bill was discounted by the defendants, Brown Brothers & Co., the money being actually advanced upon it. Baxter'& Co. also wrote to the bank, inclosing the bill of lading, and stating that the corn had been shipped, and the draft drawn against it.
    It was shown that the words “ as advised,” contained in the draft, referred to the advices given in this letter, and that this had been the course of business between Baxter & Co. and the bank for a long time, the defendants, Brown Brothers, having knowledge of these facts and discounting the draft upon the faith thereof.
    Baxter & Co. having failed to pay for the corn, and the plaintiffs having brought this action to recover it, held, that the defendants, Brown Brothers & Co., had acquired an equitable title to the corn, to the extent of their advances, and that such title was superior to that of the plaintiffs.
    In an action involving conflicting claims to the proceeds of property sold, the referee filed his report in favor'of one of the defendants, but failed to decide whether certain of the defendants were entitled to costs. Upon defendants giving notice of a motion before the referee, to decide this question, the plaintiffs served a notice that they elected to terminate the reference, as more than sixty days had elapsed since the original submission. Subsequently, on motion of the defendants at Special Term, an order was made sending the case back to the referee, in order that he might pass upon this question.
    On an appeal from this order, held, that it was proper, and should be affirmed.
    Appeal from a judgment recovered on the report of a referee, and from an order “referring the action back ” to the referee, to determine whether costs should be allowed to certain defendants.
    The controversy in this action is as to the right to certain moneys that, at the time of its commencement, were in the hands, of the defendants, Brown Brothers & Co., accruing as follows

      The plaintiff claimed to be entitled to retake certain corn which they had sold to the defendants, Baxter & Co., on the ground that Baxter & Co. had failed to pay for it as agreed.
    The defendants, Brown Bros. & Co., claimed to be the equitable owners thereof by reason of certain advances made by them to Baxter & Co., under the belief that they were the owners of the corn.
    One of tno vessels on which tc.e corn had been partly xaden sailed from New York on the 7th of August, 1875, bound for Liverpool. The other vessel, containing the other part of the corn, yet remained in the port of Now York. The plaintiffs replevied the corn laden on this latter vessel, but made only Baxter & Co. their general assignee, and the master of the ship defendants. In the execution of the wilt, the sheriff of New York took the corn out of the vessel. The defendants, Brown Bros. & Co., thereupon claimed title to the said corn, and right to the possession thereof, and brought their action to procure the application of the corn to the payment of a bill of exchange-drawn against the consignee, which had been purchased and held by them.
    Thereupon an agreement between tne plaintiffs and Brown Bros. & Co. was made, under which the corn was sold, and the proceeds thereof, being in all $12,955yf, were received by Brown. Bros. & Co., subject to the descision in this action, which was. thereupon instituted under the agreement between the plaintiffs and Brown Bros. & Co.
    The referee decided, as matter of fact, that the corn had been actually delivered to Baxter & Co. by plaintiffs, and that the purchase was not fraudulent on the part of Baxter & Co., and that if it had been, the plaintiffs had, nevertheless, lost their rights to the proceeds of the corn as against the defendants,, Brown Bros. & Co., who alone were entitled to retain them.
    In giving his report, the referee made no finding as to whether Baxter & Co. and their assignee should have costs. The defendants thereupon gave notice of a, motion, before the referee, to' have this question determined by him. The plaintiffs thereupon .served a notice that they elected to treat the reference as ended, as more than sixty days had then expired since the original submission of the cause, and the Browns then withdrew their motion. ’The defendant Johnson, assignee, thereupon made application to “the court to have the cause “referred back to the referee,” to .have the question as to costs determined by him. The courts by its order of August 23, 1877, so ordered.
    The referee thereupon reported in favor of awarding costs to •defendant Johnson, assignee, defendants Baxter & Co. declining •costs.

      A. P. Whitehead and M. W. Divine, for the appellants.

      Clarkson N. Potter and James P Lowrey, for the respondents.
   Daniels, J.:

The controversy in this action presents the right to the proceeds of the sale of upwards of 16,000 bushels of corn, sold by the plaintiffs to the defendants, Baxter & Co. A contract for the sale of 20,000 bushels of corn was entered into between these parties on the the 22d day of July, 1875. It was to be delivered during the succeeding month of August, at the option of the .sellers, and the’purchase price was to be then paid in cash. The .second day of August the plaintiffs notified Baxter & Co. that they were ready to deliver the corn, and on the fifth of that month Baxter & Co. designated two vessels which were to receive and transport it. The next- day the plaintiffs delivered the corn upon those vessels, and received the measurers’ and ships’ receipts for the same. These receipts entitled them, or the persons to whom they might be transferred by them, to the bills of lading, and for the purpose of disposition, therefore, represented .the corn itself. The purchasers sent their clerk for these receipts, but they were not -delivered to him because of difficulty in securing payment for the price of property previously sold. In the afternoon of that day the plaintiff, Parker, called at the defendants’ place of business with the receipts indorsed in blank, and after receiving from Mr. Baxter the assurance that the price of the corn should certainly be paid on the next day, which was Saturday, and the customary day for settling transactions of that nature, he delivered the receipts so indorsed, together with bills.or invoices of the prop erty, to tlie defendant Baxter, for his firm of Baxter & Co. This-was what the law denominates a symbolical delivery of the corn, and although the bills for it were made out under printed headings, which contained the statement that the terms of sale were cash- on delivery, and that merchandise thereby billed was not to-be deemed and taken as delivered, nor the title passed until paid for, without regard to possession, as the terms were not included in the-actual contract for the sale, the title passed, irrespective of those terms to Baxter & Co., on the delivery of the receipts. To prevent the vesting of the title in Baxter & Co., there should have been some stipulation or understanding between the parties at the time when the final contract was entered into, providing for that-circumstance, but there was none ; for the agreement made provided for an unqualified transfer of the receipts as they had been indorsed, without any restriction whatever concerning the effect that should have on the title to the corn. That was thereby placed in the possession and subject to the disposal of Baxter & Co., solely upon the faith of the promises exacted, and received, that the .purchase price■ should be paid on the following day. The passage of the title was not made conditional on such payment, neither was any allusion made to the terms mentioned at the head of the bills, nor any expectation, or intention expressed that they must be regarded as entering - into the contract of sale in any manner whatever, and that omission clearly distinguishes this from the cases in which the title was held not to pass, even in favor of a subsequent bona fide vendee. In those cases the stipulation that the title should uot pass before payment was made was clearly and.explicitly agreed upon, and the courts, by their decision, simply preserved and maintained the validity of that stipulation. Here there was no element of that nature, but the sale and delivery were wholly unqualified.

At the time when the delivery was made Baxter & Co. were deeply involved in debt, and actually and largely insolvent. But no representations of their pecuniary condition were made to-induce the sale and delivery of the corn, and no other evidence given from which it could be inferred that they did not, when they procured it, intend to pay for it, as they agreed to do. They did not do it, but their failure was excused by the state of the market which, on the following day, rendered the free sale of foreign exchange on the shipment of grain an impracticable expedient. This inability deprived them of tho power to fulfill the •agreement made for the payment of the price of this corn, and resulted, on the same day, in a general assignment for tho benefit •of their creditors.

Upon this evidence tho learned referee did not consider himself justified in concluding that they purchased the corn with the design not to pay for it, and this- court cannot properly hold that this view was not the one which the state of the evidence warranted him in adopting. But if it should be considered that tho 'omission to find the existence of this design was erroneous, it would not aid the plaintiffs in their effort to reach the proceeds •of the corn, if the learned referee was right in tho further conclusion adopted by him, that the other defendants, Brown Brothers, advanced money upon it by discounting Baxter & Co.’s draft. For where title may bo obtained by fraud on the sale of personal property, as long as it remains in the vendee, undivested by a rescission of tho sale, he may sell or pledge it to a bona fide pur- • chaser or pledgee advancing value upon it, who will after that be able to hold it against the original vendor, who was induced to part with it by means of the fraud of the first purchaser. The title, ■in such a case as that, will pass, and for the time constitute the vendee the owner, and persons dealing bona fide with him, while 'the title remains in that condition, will be protected against the claims of the original owner to repossess himself of the property. (Western Transportation Co. v. Marshall, 37 Barb., 509; Lacker v. Rhoades, 45 id., 499; Western Trans. Co. v. Marshall, 4 Abb. Ct. App. Dec’s, 575; Barnard v. Campbell, 55 N. Y., 456; S. C., 58 id., 73.) For that purpose it is sufficient that advances may be made or some other consideration parted with upon the faith of the title of the person in tho actual possession of the property (id., 79), and tho same result would follow even though the vendors may have retained a mere lien on the corn for the payment of the purchase price on the following day. (Ballard v. Burgett, 47 Barb., 646, 648—650; Rawls v. Deshler, 3 Keyes, 572.). But whether there was such a lien after the unqualified delivery which was made of this corn, may very well be regarded as at least involved in doubt. (Hankins v. Baker, 46 N. Y., 666, 671.) In no view, however, did any such interest in, or control over, the corn remain in the plaintiffs as would enable them to recover it, or its proceeds, where that would disturb or divest the security of a pledgee in good faith and for value. And whether Brown Brothers, who are the other claimants of the proceeds of the corn, acquired such a security upon it by what was done between themselves and Baxter & Co., is the remaining subject to be considered in the disposition of this appeal.

The vendees, Baxter & Co., on the authority of the receipts endorsed and delivered to them by the plaintiffs, on the seventh of August, procured bills of lading for the com from the masters of the vessels having it on board, by the terms of which it was consigned to the Bank of Liverpool, and they drew their bill of exchange on the bank for £62,600 sterling, to the order of Brown, Shipley & Co., of London, directing the amount to be charged “ as advised.” This bill was discounted by the defendants, Brown brothers, for the benefit of the drawers, and the money, exceeding the amount of the proceeds now in controversy, was actually advanced upon it. In order to create the advance a charge on the corn and its proceeds, further evidence was given, showing that Baxter & Co., on the seventh of August, wrote the Bank of Liverpool, the consignee, stating that the corn had been shipped to it; that the draft had been drawn against the shipment, and the bill of lading was also forwarded with the letter. It was conceded that the phrase, as advised, contained in the draft referred to the advices given by this letter. And it further appeared, that this been the course of business, for a long time previous to this transaction, between Baxter & Co. and the bank, and that infor-mation of it had been communicated to the defendants, Brown .Brothers, whom, the referee found, discounted this draft, in view and on the faith of that understanding. The drawing and discounting of the draft alone would not give the defendants discounting it, as was the fact, on account of their London correspondents, any lien or charge upon the com, or its proceeds. For the bill standing by itself would not affect the fund expected to be created .by tne sale of the property (Chapman v. White, 2 Seld., 412). But the letter which was connected with the bill, by the refer* ence made in it, extended the nature of this transaction beyond that of the mere discounting of a bill of exchange ; the defendants receiving and paying their money, on the faith of it, were justified in concluding that property had been shipped to the consignee, out of the proceeds of which the bank had been required and was to pay the draft. And the referee has found, from the evidence, that the discount was made with knowledge of, and in reliance upon, that arrangement. Direct evidence of these facts was not given, but circumstances were proved from which that was reasonably concluded, and they were sufficient to establish the fact that when the bill was discounted it was done on the understanding that its payment had beeii provided for from the proceeds of the property sent forward, and which had formed the subject of advices, to that effect, sent to the consignee and drawee of the bill. The letter and the bill, and the knowledge of the course of business, so far qualified the nature of the direction and request made in the bill, as substantially to render it an order on the bank for a corresponding amount of the proceeds of the corn, and which, by the agreement with the consignee, was precisely that percentage for which the shippers were entitled to draw. That created a charge, or lien, upon the corn and its proceeds in favor of the parties discounting the bill under these circumstances. It was an equitable assignment which the law requires to be sustained, in favor of the parties advancing their money on the faith of the arrangement, against the right now asserted by the plaintiffs. To create such an assignment the law requires only an engagement to pay out of the particular fund. (Burn v. Carvalho, 4 Milne & Craig, 690; 18 Eng. Chy., 690.) It was more than a simple direction, by the shipper to the consignee, to apply the property to the payment of the bill, for the bill itself was negotiated and discounted on the distinct understanding that-the proceeds of the corn should be applied to its payment, and the nature of the transaction was such that the bank was in no other manner obligated or expected to pay or provide tor the bill. The case, in this respect, was substantially a repetition ot Frith v. Forbes (4 De Gex, Fisher & Jones, 65; Eng. Equity, 409), where it vas held that the proceeds of the property, against which the drafts, were drawn, had become hypothecated for their payment. This authority has been since considered to have carried the principle defining an equitable assignment, as far as it can, with propriety, be extended. But its authority has not been restricted, or abridged, while it has been confined within the limits indicated by the circumstances there shown. In the following case of Robey v. Ollier (27 Law Times, 362), it was stated, in the opinion of the master of the rolls, that, “in ordinary cases, where a. shipper consigns a cargo to his agents, he may impose on the consignees the terms, that they shall not accept the consignment without, also, accepting the bills drawn against it, and he may require the cargo, or the proceeds, to be applied to meet those bills.” But that case, at the same time, was held to be distinguishable from the preceding authority, because of the circumstance that the drawer of the bill was only one joint owner of the property shipped, and for that reason he could not charge it to the prejudice of the other parties, who were entitled to indemnity first out of its proceeds. The case of Entwistle (3 Law Reports [Chanc. Div.], 478), was, also, distinguished on another ground, not existing in this case. It was a controversy between the vendor and vendee, in no respect entrenching on the rule, which, according to Frith v. Forbes (supra), should be held to govern a transaction of this description. And Morton v. Naylor (1 Hill, 583); Hoyt v. Story (3 Barb., 262); Marine and Fire Ins. Co. v. Jauncey (1 id., 486), and Lowery v. Steward (25 N. Y., 239), sanction the same result.

It can hardly be necessary to add, that the rights of the parties were not changed by the consignments being broken up through the interposition and seizure, by the plaintiffs, of a portion of the corn. For as long as that became previously charged with superior equities, in favor of the defendants, who made the advances on the faith of its security, the plaintiffs did not possess the legal authority over the property to divest the tight which had been created in their favor. The charge made, necessarily, affected the property itself. For it entitled the creditors to insist upon its being carried forward to, and sold by, the consignees, so-that they might be reimbursed, through the arrangement for its disposition, which had previously been made. The rights of the creditors had become paramount to those of the plaintiffs by means of the power of disposition, which the latter had given to their vendees, and after that no act of either could defeat the validity of the security the creditors held for the restoration of their advances. The judgment was warranted by the evidence, and it should be affirmed.

The case was, on motion, sent back to the referee to determine the right to costs claimed by other defendants. The report on the issues, fully determining them in all other respects, was completed within the time permitted for that purpose. For that reason the power to terminate the reference, by notice under the authority of section 1019, of the Code, did not exist. It is only where there has been a failure to deliver the report; within the prescribed time, that the notice can be made effectual, and as there was no such failure here, the notice given was inoperative. The order sending the case to the referee again, for this further determination, seems to have been authorized, and it should accordingly bo, in like manner, affirmed.

Brady, P. J., and Ingalls, J., concurred.

Judgment and order affirmed.


author: Potter, J.:

text:
    JAMES M. MITCHELL, Respondent, v. CASSIUS H. READ, Appellant.

      Partnership — secret renewal of lease by one partner — when it enures to the benefit of the firm— Good will — pertains to the lease — measure of damages thei'efor when one partner has had all the benefit of the lease — how determined.

    Prior to April, 1869, the plaintiff and defendant were keeping the Hoffman House in New York, as co-partners, under an agreement, by which the partnership terminated May 1, 1871, .at which time the lease of the premises also expired. During the continuance of the lease the defendant, without the knowledge or consent of the plaintiff, procured in his own name a new lease of the hotel, to commence upon the expiration of the existing lease to the firm, and claimed to be solely entitled to the benefits arising from such new lease. In March, 1870, plaintiff brought this action to have the lease declared partnership property, and to have the same assigned to the firm, and for other relief. Upon the trial judgment was given for the defendant, on the ground that the plaintiff had no interest in the lease. This judgment was affirmed at the General Term, but reversed by the Court of Appeals.
    After the decision upon the first trial, and before an appeal had been taken, the plaintiff! on March 13, 1871, brought an action to have the firm dissolved, and all the assets thereof, including furniture, goodwill, etc., sold. A receiver was appointed, who sold all the furniture, stores, etc., to the defendant, Ihe sale being confirmed by a judgment entered in the action on October 26,1871, which ■ .judgment declared that the partnership had been dissolved, and all the property converted into cash, “ except certain leases claimed to be co-partnership property of the plaintiff and defendant, which are the subjects of a former action between them, now on appeal,” and further declared that “no judgment or decree respecting them is made in this action.”
    'On appeal from a judgment adjudging the new lease to be partnership property, recovered by the plaintiff' on the second trial of this action, held, that the judgement rendered in the second action was not a bar thereto.
    'That the good will was not transferred by the sale of the furniture and personal property, but that the same pertained to, and could not be sold separately from the lease.
    'That the term of the renewal lease having expired, and the defendant having received the sole benefit therefrom, the plaintiff could recover of the defendant the damages he had sustained in the premises.
    That in ascertaining the damages, it was proper to ascertain the profits of the hotel in the past, the 'rents required by the renewal lease, and to take the opinion of experts and men experienced in the hotel business in New York, as to what the new lease, with good will and furniture were worth, over and above the rent reserved, after deducting the price received for the furniture.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      G. W Gotteritt and William O. Bartlett, for the appellant.

      A. J. Vanderpoel and J. E. Burrill, for the respondent.
   Potter, J.:

This is an appeal from a judgment in favor of plaintiff, upoira trial before the court without a jury. .

The complaint shows that the plaintiff and defendant were partners in the business of keeping a hotel, in the city of New York, and known as the Hoffman House!

That they held the hotel and premises under a lease, which Vvould expire on the 1st day of May, 1871, and that the co-parttiership between the parties, by the terms of their agreement, Would expire at the same time.

That during the continuance of the lease, and of the co-partnership, the defendant, without the knowledge or. consent of the plaintiff, procured, in his own name, a lease of the hotel and premises for another term, to commence at the expiration of the lease to the partnership, and claimed the sole and exclusive right, and benefits under the new lease.

The plaintiff asked the judgment of this court, declaring that the lease to the defendant, and the advantages and good will for the new term, belonged to the co-partnership, and not to defendant alone, and directing the defendant to assign and transfer said lease to the co-partnership.

Upon the first trial of the action the court held, that the plaintiff had no right or interest under the new lease, and judgment was rendered accordingly for the defendant.

Upon an appeal from this judgment to the Commission of Appeals, the same was reversed and a now trial directed; the court holding that the new lease, and the good will incident thereto, belonged to the co-partnership. This case is imported in 61 N. Y., 128.

Upon the second trial the evidence of the plaintiff’s right was: substantially the same as upon the first, and the plaintiff' had a recovery.

Of course, the law of this case, upon the second trial and upon - the present appeal, is as pronounced by the court of last resort, and, therefore, the only question for consideration is, whether there were any new or additional facts upon the second trial which should render the law, so declared, inapplicable to the case made upon the second trial.

It was proved, upon the second trial, that on the 13th of March, 1871 (just after the decision upon the first trial, and before any appeal had been taken therefrom), that the plaintiff in this action commenced another action against the defendant herein, alleging that owing to the disagreements between the parties, in relation to the manner in which the new lease to the defendant had been taken, and his exclusive claim thereunder, and other matters, the partnership between the parties should be dissolved, and that the assets thereof, consisting of the leases, furniture, fixtures and personal property upon the leased premises, debts and credits, -and good will belonging to the co-partnership, should be sold, etc.

That a receiver ivas appointed in said second action, who was directed, by the court, to sell the furniture, wines and stores to "the parties, or either of them, or to any other person, and that accordingly the receiver did sell the furniture, leases and stores do the defendant, and that the receiver executed a bill of sale to dhe defendant of the fixtures, furniture and other household articles belonging to said firm, and then being in said hotel, and, also, the books of account and debts due the firm, and that tho plaintiff, also, executed a bill of sale, or instrument, for the purpose of assuring and confirming said sale by the receiver ; that this sale was confirmed by the court in the decree, or judgment, in said second action, on the 26th day of October, 1871, in which judgment, entered upon the application of the defendant, it is declared, that said co-partnership has been dissolved by aflluxion •of time, and that all the property and effects of said partnership Rave been, by the receiver, converted into cash, “ except certain leases, claimed to be co-partnership property of the plaintiff and defendant, which are the subject of a former action between them, now on appeal before the General Term,” etc.. And that in said decree it was, also, adjudged, “ that it appearing that the so-called renewal leases, embraced in the complaint herein, have been subjects of adjudication in said suit, now on appeal, no judgment or decree respecting them is made in this action.”

The defendant contends that the sale of the furniture and personal property of the firm, by the receiver, and the judgment in the second action, is a bar to the claim of the plaintiff in this action to recover his share of the value of the renewal leases and the good will incident to the premises leased.

We have seen, by the express terms of the judgment in the second action, that no judgment or decree was made respecting the renewal leases, nor was there any side of them made by the receiver, ar.d the judgment recites, “ that tho receiver has converted all the property and effects into cash, except certain leases claimed to be co-partnership property of the plaintiff and defendant, which are tho subject of a previous action,” etc.

It is plain that these renewal leases, which the court of last resort held the plaintiff has an interest in, have not been sold or disposed of by the receiver, and that the defendant has enjoyed them exclusively for his own benefit and profit. Whatever there was of good will appertained to the leases and formed an element of their value. (61 N. Y., 128.) Good will, however it may be defined generally, does not exist separate and independent, of a substantive or principal subject.

It always appertains to something else, and is as various as the subjects are to which it appertains. It is the greater probability that patronage will be bestowed upon a subject of purchase, or at a place of business, in respect to which a habit has been formed.

In respect to a newspaper, the greater probability that its readers and subscribers will follow their habit, and continue to buy and read the newspaper under the old name, but with a new editor, rather than read or subscribe for a newspaper bearing a different name. (Boon v. Moss, 70 N. Y., 465.)

In the case under consideration, the greater probability that, travelers and transient persons will continue to stop at a hotel to-which they have become wonted, and with the ways to and from which and with its accommodations and surroundings they are' already familiar.

Good will, then, as used in this case, means the greater probability of patronage of this hotel, and forms an element of value in the hotel and premises covered by these leases.

Good will, pertaining to the leases of the hotel simply, could, not exist, nor be sold, separately from the leases.

Boon v. Moss (70 N. Y., 465) is an authority, both upon the nature of good will and that the sale of the furniture and personal property, by the receiver, did not transfer the good will.

The term of the renewal leases of the hotel having expired,, and the-defendant having solely received the advantage of said term, no sale thereof, for the joint benefit of the parties, could be made.

The only mode of compensating the plaintiff for this deprivation of his right by the defendant, was a recovery of the damages, sustained by the plaintiff.

The allegations and prayer of the complaint were broad enougk. to admit of such recovery under the circumstances of the case.

No question is raised by defendant in that regard.

The only remaining question, therefore, to bo considered is, as to the mode of ascertaining the damages which the plaintiff had sustained.

The plaintiff was entitled to the value of the renewal leases of the hotel, with its furniture, on the expiration of the old lease, for the purpose of keeping a hotel at that place for the term of the new leases.

A sale of the leases, etc., for the purpose of ascertaining their value, and converting the same into money, was impracticable. The mode adopted in this case was, to ascertain the profits of the hotel in the past — the rents required to be paid under the renewal leases, and to take the opinion of experts, and men experienced in the hotel business in Now York city, as to what the new leases, with good will and furniture, were worth over and above the rent reserved in the leases, or would have sold for at public auction.

That was, substantially, the form of the question put to the witness upon the subject of value.

We perceive no error in it.. It is true the question, in terms, embraced good wall and furniture; but we have seen that good will pertains alone to the leases, and is necessarily an element in their value. It is true the furniture had been sold separately from the leases, probably at a less price in consequence, and .the plaintiff had had his share of such price as it brought. That price was proved, and could easily be, and was, in fact, set off against a corresponding amount of damage.

It will be seen, by reference to the .answers of the witnesses, that their estimates generally were based upon the value of the leases, and the prices they would have brought at a public sale. Moreover, the case was tried by the court without a jury, and it can be seen, from the findings and the opinion, just what elements and considerations entered into the damages awarded, and we do not perceive any legal rule violated in the mode of ascertaining, nor any injustice to the defendant, in the amount of the damages.

Judgment should be affirmed, with costs.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


author: Davis, P. J.:

text:
    PIETRO BALBO, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Challenge for principal cause and for favor — when properly overruled — when juror not disqualified by reason of his having formed an opinion— chapter 427 of 1873 — Confession not inad/missible because made while the prisoner is in illegal custody — Sight to arrest one who has committed murder, without process.

    Upon the trial of the plaintiff in error, an Italian, upon an indictment for murder, a juror was challenged for principal cause, on the ground that he had formed an opinion prejudicial to the prisoner. The juror having been sworn testified, that at the time of the occurrence he had read of it in a newspaper and had then formed an opinion, which he supposed he still had ; that he knew nothing about the case, and did not suppose he had any impression on his mind which would prevent his acting fairly and impartially; that he had no doubt he could give a verdict upon the evidence that should come from the witnesses, without being influenced or biased by any opinion.

      Held, that the court properly overruled the challenge for principal cause.
    The prisoner’s counsel then challenged the juror to the favor, and requested that the examination of the juror, already taken, be made applicable thereto, which request was granted. The juror then testified, that he had some business with Italians, and was not particularly fond of them ; did not think much of them, judging from those we have here; that his opinion, as to the guilt or innocence of the prisoner, was positive and clearly marked at the time, and he thought it was still; that he had not tallied the matter over, but had probably read the newspaper to his family; that he thought the statements he read, and from which he formed his opinion, were the evidence taken on the coroner’s inquest; that he had no particular interest in the case or knowledge of its circumstance; that he would believe a contradiction if he read it in the next day’s paper; that he had an impression rather than an opinion; that he read the account casually, and it slipped out of his mind and was afterwards revived; that it would require strong evidence to remove the opinion he then entertained; that he believed he could give full'weight and effect to the evidence as though he had no opinion. The court, upon this evidence and “from observation of the appearance of the juror, his age, intelligence, his manner on the stand, and his answers to the questions,” overruled the challenge. Held, no error.
    The prisoner, after the killing, fled from the city of New York, where it occurred, finally stopping at Wheeling, W. V., where he was arrested by an officer of the New York police force, with the co-operation and assistance of the i„cal police, but without any process, put in irons and taken to New York; while on the cars he was asked by the officer if he killed his wife and said, “ Yes.”

      Held, that conceding that he was illegally held in custody at the time he made the confession, that fact did not invalidate it or render it inadmissible.

      Qu&re, whether at common law the arrest of a prisoner guilty of a felonious homicide, without process, is not lawful as ag-ainst him, wherever made.

      Writ of Error to the Oyer and Terminer to review the conviction and sentence of the plaintiff in error of murder in the first degree. The prisoner was charged with killing his wife, at the city of New York, on September 30, 1879.

      F. 3. Buckingham, for the plaintiff in error.

      B. K. Phelps, for the defendant in error.
   Davis, P. J.:

Three grounds of error are alleged on the part of the prisoner :

First. That his challenge of Edward H. Betts, one of the jurors, was improperly overruled.

Second. That the exception to the admission of the confessions of the prisoner should have been sustained ; and

Thirdly. That the evidence failed to show the premeditation and deliberation required by the statute to constitute murder in the first degree.

The juror Betts, when called was first challenged by the prisoner’s counsel for principal cause, on the ground that he had formed an opinion prejudicial to the prisoner. He was sworn as a witness on that challenge, and testified after learning the nature of the case on trial that at the time of the occurrence he read of it in a newspaper, and had formed an opinion at the time ; that he supposed he had that opinion still; that he knew nothing about the case, and did not suppose he had any impression on his mind which would prevent his acting fairly and impartially in the case. He was then asked: “ Have you any doubt that you can give a verdict upon the evidence that shall come from the witnesses ? ” He answered : “ Certainly, I can do that. Q. Without being influenced or biased by any opinion ? A. I think so.”

Upon this evidence the court overruled the principal challenge. He was then challenged to the favor, and the prisoner’s counsel requested that the examination of the juror already taken be made applicable to the challenge to the favoi\ The request was granted. On further examination, he testified in substance that he had some business with the Italians; that they were a race he was “not particularly fond of, and did not think much of judging from those we have here; ” that his opinion, in regard to the guilt or innocence of the prisoner, was still in his mind, and it was a positive and clearly marked opinion at the time, and he thought it. was still; that he had not talked the matter over with any other-person, but probably had read it to his family at the time in the-morning paper ; that he thought he indistinctly remembered that-the statements he read in the paper were the evidence taken before the coroner’s inquest, and he thought it was from those statements that he formed his opinion ; that he read about it just as he read other items in the newspaper ; that he had no particular interest in the case, and had no knowledge of the circumstances of the case, except so far as he had read them in the papera ; that, if the statement which he saw in the papers was. contradicted in the next day’s paper, he would believe the contradiction ; that his impression was based upon the assumption that there probably is some truth in any report he saw in the papers ; that he made a distinction between an opinion and an impression ; that he should call it an impression as to the truth or falsity of what he saw in the newspapers, if he just read it casually and it slipped out of his mind and was then afterwards, revived ; that he did not know that he had anything more than that in his mind about this case; that he knew nothing about, what the prisoner’s defence was ; that all he remembered about it was that a man killed his wife in Rose street; that it would require strong evidence to remove the opinion that ho now entertained in regard to the case. To the court he answered that he. did not mean to say anything different from what he had said before, that while he might have these views in his mind, he did not suppose it would bias or influence or prejudice him in any maimer in the consideration of the evidence in the case ; that he believed it would not; that he believed he could give full weight and effect to the evidence, the same as though he had no opinion.

Upon this evidence and as the case states “from observation of the appearance of the juror, his age, intelligence, his manner-on the stand, and his answers to the questions,” the court found that he was fair and impartial and unprejudiced, and held the challenge not true, to which the prisoner then and there excepted.

It is very clear, within all the cases since the enactment of chapter 475 of the Laws of 1872 (Laws of 1872, p. 1133), that the challenge for principal cause was properly overruled. Indeed, no exception was taken to the decision of the court on that challenge on behalf of the prisoner. At the request of the prisoner’s, counsel, all the evidence taken to that challenge was regarded as taken also upon the challenge to ihe favor.

The Court of Appeals, in Greenfield v. People (74 N. Y., 277), construed chapter 427 of the Laws of 1873 (Laws of 1873, p. 681), as providing that both challenges, for principal cause and-to the favor, can be reviewed by an appellate court on questions, of law and questions of fact. But this liberal construction of that statute does not change the duty of the court, in reviewing questions of fact, to consider that the trial court passes primarily upon-the questions with great advantage of circumstances that cannot possibly appear in the return of the written evidence. That' court has, as formerly triors always had, where the challenged' juror was made the witness of the challenger, the opportunity of' observing his appearance, demeanor and manner of testifying, and of being governed in some degree by those material circumstances. In this case, the bill of exceptions shows that the court passed upon the challenge as well “from observation of the appearance, of the juror, his age, intelligence, manner on the stand and his. answers to questions,” as from the evidence offered on the challenge, and from these several things found as matter of fact that the challenge was not true. We have no doubt that this was a. correct mode of discharging the duty of the court in passing upon the challenge to the favor; and, although some of the phrases off the several statements of the witness might, if detached and considered by themselves, bring the case within Greenfield v. The People, above cited, yet, considered as a whole in the light of the circumstances above mentioned, we are of opinion that the court properly held that they failed to establish that the juror was not legally competent, within the provisions of chapter 475 of the-Laws of 1872, above cited.

The juror seemed to be conscientious and intelligent, and, although some of his answers seem to conflict with others, yet they are all easily reconciled to the general idea that his reading-of the circumstances of the killing had produced an impression on his mind to the effect that the prisoner had killed his wife, and that that impression, on the circumstances being again recalled, was revived, and would remain until shown to be without foundation, but that it would not affeet his ability to pass upon the evidence offered in the case, and determine the question of the guilt or innocence of the prisoner without being influenced or affected by his impression or opinion.

It cannot be doubted but that the Legislature intended that the rule, which in terms is applied to challenges for principal cause, should be extended by the courts to challenges to the favor, and that where the court was able to find from the evidence on the latter challenge that the juror is indifferent, within the rule provided by the act of 1872, he should be accepted. Any other construction makes the act a mere delusion, to embarrass and hinder the administration of justice. We consider the facts of this case clearly within the case of Pender v. The People (18 Hun, 560), and Cox v. The People , lately decided by this court, and that no error was committed by the court below in finding the challenge not sustained.

As to the second alleged ground of error, the facts appear to be that the prisoner, immediately after the killing of his wife, left the city and went by rail to various points, finally stopping at Wheeling, West Virginia. He was tracked to the latter place by an officer of the Now York police force, aud there, with the approbation and assistance of the local police of Wheeling, he was arrested without process, put in irons and started for New York. While on the cars he was asked by the officer if he killed his wife, and he answered “Yes,” and added that “ she did not like him, and when ho would go near her she would say: ‘ Go away, you black man I don’t like you.’ ” He also stated that he “.only gave her one jab; only cut her once.”

It appeared affirmatively, by the testimony of the officer, that he did not hold out any inducement, or make any promises or threats of any kind to lead the prisoner to make the confession. Two points are made on this state of facts : The first point is in substance, that the confession was not a voluntary one because of the attending circumstances under which it was made, and therefore that it should not bo received in evidence.

It is urged, secondly, that the arrest of the prisoner at Wheeling and his transportation under arrest to this city were unlawful, and that no confession made while in such unlawful custody can be received. The arrest was not however, unlawful under the laws of this State which have no extra territorial force. Whether it was unlawful or not under the laws of West Virginia, would depend upon statutes which have not been brought to- our notice.

It is not clear that at common law the arrest, without process,, of a prisoner guilty of felonious homicide, is not lawful as against him wherever made. But this question need not be discussed.

In the case of Rex v. Thornton (1 Moody C. C., 27), which was a decision upon the submission of a case reserved presenting this exact proposition, it was held that the confession was admissible though obtained from a person in illegal custody ; and we think, upon sound principle that the mere naked fact of the illegal custody of an accused party cannot of itself be deemed sufficient ground for the exclusion of his confessions. It has been held in several cases in this State, that the confession of a party charged with crime while under arrest or in confinement, is competent as evidence against him, unless obtained by the inducement of threats or promises. (People v. Rogers, 18 N. Y., 9; People v. Wentz, 37 N. Y., 303, and cases therein cited ; Cox v. People .) These suggestions dispose of both of the points ; and it may be added also that there were no circumstances preceding the confession so likely to make it untrue, that the court was called upon to exclude it from the jury. (People v. Wentz, supra.)

The exception to the evidence of confession in this case were not thei'efore well taken.

Upon the third alleged error, to wit: that there was not suffi cent evidence to establish the deliberation and premeditation required to constitute the crime of murder in the first degree, we are of opinion that there was evidence sufficient to justify the court in sending that question to the jury. The evidence was submitted to the jury, by the court, in an extremely clear and impartial manner, and no exceptions were taken to the charge.

The jury had a right to find deliberation and premeditation from the purchase by the prisoner of the knife with which the killing was done, not long before the commission of the crime ; from its use in the night time, and in the bed of the deceased ; from the unhappy relations existing between the prisoner and his wife,'and her family ; from his jealousy of her, which seemed to be not wholly without probable cause ; from the nature, the great number, and the terrible severity of the wounds inflicted ; from the circumstances though slight tending to show previous preparation for flight, and from the undisputed fact of his flight immediately after the perpetration of the crime. We are unable therefore to see any error which calls for our interference in this case.

The judgment and conviction should be affirmed.

Brady and Barrett, JJ., concurred.

Judgment and conviction affirmed.

       See post page 430.

         See post page 430.


author: Davis, P. J. :

text:
    CHASTINE COX, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      .Killing while committing a felony — intent to kill, immaterial — chapter 333 of 1876 — As to alleging property stolen to belong to different parties in different counts— What counts for murder may be joined — Juror — when notineompetent by reason of opinion — Challenge to the array — need not be verified — demur- • rer to — when sustained — Conviction not reversed for errors in procuring the jury.

    'Under chapter 333 of 1876, making the killing of a human being, by a person engaged in the commission of any felony, murder in the first degree, the question of intent to kill is wholly immaterial, and a conviction thereunder cannot be escaped by showing that the intent of the accused was not to kill, but to defend his own life or person, or to escape arrest, or avoid pursuit.
    IThe accused was indicted for the murder of a Mrs. Hull, some of the counts . charging that the killing was done while he was engaged in the felony of stealing certain specified articles of her property, and some that he lulled her while stealing certain property belonging to her husband. It appeared that all the articles were taken at one time, and that a portion of them had been given to Mrs. Hull, and the residue were part of her personal ornaments and presumably the property of her husband.

      ISeld, that it was proper to charge in some counts that the property belonged to her, and in others that it belonged to her husband.
    .Eelcl, further, that .it was not error to set out in the indictment several common law counts for murder.
    ¿A juror, upon the trial of a challenge to the favor, testified that he had- read of the case in the papera and formed a decided opinion, which it would require evidence to remove, and that he would enter the jury box with it still existing, and that it would require evidence to dislodge it; that he generally believed what he read in the papers, if it founded reasonable, until contradicted; that if accepted as a juror he did not think he would permit what he had read to affect his judgment ; that he verily believed he could decide the case according to the evidence produced in court, and that alone; that his opinion was based upon the truth of what he had read; that he did not know whether the account was true or not; that there was nothing to keep the opinion in his mind when the trial .had begun and evidence been introduced; that he believed the prisoner to be guilty from the statement, in a general way. The court, from the answers which the juror made, and from his appearance before it, overruled the challenge.

      '.Held, no error.
    VWhile the prisoner was at the station-house, and after the watch of the deceased had been found upon him, he was asked by an officer where the rest of the . jewelry was, and replied that he knew nothing about it. Subsequently, the . question being repeated, he asked, “Will you do me a favor.” The officer isaid, “ I will if I can; I sympathize with you, or I pity you; you are in a bad fix.” The prisoner then asked him to send his clothes to his mother and not let her know what had happened. The prisoner then, in answer to a question by another person, made a detailed statement of what he had done.
    . lETeld, that his confession was properly admitted on the trial.
    "'The counsel for the prisoner interposed an unverified written challenge to the array, in which he referred to each step necessary to the selecting and drawing of the jury, and alleged, substantially, that it had not been done in the manner . and form required by the statute. An oral demurrer, interposed by the district attorney, was sustained by the court, in part, at least, because the chali lenge was unverified. On the following day, and after three jurors had been drawn and examined, but before any had been sworn, the court, of its own motion, offered to allow the prisoner’s counsel to renew his special jilea, leaving • it unverified, and the district attorney offered to traverse it and consented to ■ proceed at once to the trial of the issue thus joined, and to allow the jurors drawn to stand aside ; the court stating that it was done so that there might be no possible prejudice to the prisoner. To this proposition the counsel for the prisoner refused to consent, and the trial jiroceeded.
    • On a writ of error to review the conviction, held, that this offer of the court and district attorney took away the right of the prisoner to insist that he was injured, in fact, by the action of the court, and compelled him to stand upon . errors of law, strictissimi juris.

      That the mere -unaccepted, proposition did not have the effect of curing any error . that might have been committed in sustaining the demurrer.
    That the fact that the challenge was unverified was not a ground of demurrer.
    That the demurrer was, however, properly sustained, as the challenge was bad because of the alternative character of its allegations; they impliedly admitting that everything, not done in the particular mode required by the statute, might nevertheless have been done in some other way, which the law to prevent a failure of justice would accept as sufficient.
    Irregularities in reference to the working of the machinery, provided by statute for procuring jurors, offer no ground for reversing a conviction, unless it appears that the defendant was in fact injured or prejudiced thereby.
    Writ ok Error to the Court of General Sessions of the city and county of New York, to review the conviction of the plaintiff in error of murder in the first degree.
    The murder was committed by Cox, after he had broken into the house of the deceased, in order to steal certain articles of jewelry from the room.
    One of the jurors, on the trial of a challenge to the favor, testified, in substance: that he had read of the case in the papers and formed a decided opinion, which it would require evidence to remove, and that he would enter the jury box with it still existing, and that it would require evidence to dislodge it; that he generally believed what he read in the papers, if it sounded reasonable, until contradicted ; that if accepted as a juror he did not think he would permit what he had read to affect his judgment; that he verily believed he could decide the case according to the evidence produced in court, and that alone; that his opinion was based upon the truth of what he had read ; that he did not know whether the accoimt was true or not ; that there was nothing to keep the opinion in his mind when the trial had begun and evidence been introduced ; that he believed the prisoner to be guilty from the statement in a general way.

      W. F. Howe, for the plaintiff' in error.

      D. C. Hollins, for the defendants in error.
   Davis, P. J. :

The plaintiff in error was indicted, tried and convicted of the crime of murder in the first degree, in the General Sessions for the city and county of New York. Section 3 of chapter 337 of the Laws of 1855, provides that “every conviction for a capital offence, or for one punishable as a minimum punishment by imprisonment in the State prison for life, shall be brought before the* Supreme Court and Court of Appeals * * * from the said court of General Sessions of the peace in and for the city and county of New York, by a writ of error with a stay of proceedings as a matter of right; and the said appellate court may order-a new trial if it shall be satisfied that the verdict against the* prisoner was against the weight of evidence or against law, or that justice requires a new trial whether any exception 'shall have* been taken or not in the court below.”

The intent of this statute was declared by the Court of Appeals, in Ferris v. The People (35 N. Y., 126), in which Davies, Ch. J., in delivering the opinion of the court, says : “ The provisions of this act make it therefore the imperative duty of this court, in a. case like the present, to examine carefully the whole record, and if satisfied that the verdict is against the weight of evidence or not authorized by law, or if it shall be of opinion that justice requires a new trial, then the same shall be granted whether.or not any exception shall have been taken in the court below. The whole case is, therefore, to be considered here as res nova, and the judgment is to be affirmed or reversed as the court shall be of opinion whether or not substantial justice has been done. The clear intent of this statute is to impose on the court a disregard of technicalities and irregularities not working any prejudice to the* prisoner, and to decide the case according to justice and the-very right of the matter,”

This very sensible construction of the statute has not since-been overthrown, and it is our duty to apply it to the case at bar. A very careful examination of all the proceedings on the trial of the plaintiff in error leads us to the strongest possible conviction, that “ substantial justice has been done,” and that it is our duty to disregard the “technicalities and irregularities” occurring, or alleged to have occurred, in the progress of the trial, because we are convinced that they worked no prejudice to the prisoner;; and to decide the case, in the language of the Court of Appeals; in the case above cited, “ according to justice and the very right, of the matter,” and not upon judicial technicalities.

The prisoner is charged, in several counts of the indictment, with killing one Jane L. De Forest Hull, while he was engaged in the felony of stealing certain specified articles of her property and in certain other counts with killing her-while engaged in stealing certain property of her husband, Alonzo C. Hull. The indictment also contained several common-law counts for murder. The evidence clearly established, both by the prisoner’s confession and by facts quite sufficient independently of the confession to have convicted him of the charge, that he burglariously entered the house of Alonzo C. Hull for the purpose of committing the crime of larceny, and while engaged in that crime, in the room where Mrs. Hull was sleeping, the noise made by him awakened her, and thereupon he committed acts of violence, for the purpose of preventing her outcries or rcsistiuicc, which caused her death. 'The present statute, in this State, declares that the killing of a human being, unless it be manslaughter or excusable or justifiable homicide as therein provided, shall be murder in the first degree, '“when perpetrated by a person engaged in the commission of any felony.” Under this definition the question of intent to kill is wholly immaterial. . It is enough to establish that the killing was actually perpetrated by a person engaged in the commission of a felony, by the use of some degree of force or violence ; and the question of design to kill was by the amendment of the statute by chapter 333 of the Laws of 1876 made wholly immaterial. No person therefore, who kills another, while he is engaged in committing a felony, can escape conviction of murder in the first degree by showing that his intent was not to kill, but to defend his own life or person, or to escape arrest, or avoid pursuit, or simply to maim or wound or frighten, or do any violence short of death. The law makes the killing while engaged in committing a felony, murder in the first degree independently of all question motive.

There was no misjoinder or other error, in uniting the several counts of the indictment. It was proper to charge the larceny in which the prisoner was engaged, as of the property of the husband in some counts, and of the wife in others ; first, because it was matter of legal doubt as to which of them some portions of such property belonged; and, secondly, because the , larceny, in fact, was a single acr of taking, and it appeared that some portion of the property belonged to Mrs. Hull by gift. For instance, the watch and chain and other portions were part of her personal ornaments, and presumably the property of the husband in the absence of proof to the contrary. No possible harm to the prisoner could arise from the fact that the property is described in the several counts in the mode above stated ; and so in respect to the joinder of the common-law counts of murder. It has long been the sot-died law of the State that a conviction of murder under the statutes might properly be had where the ' indictment charges murder at common law. The change of murder into degrees does .not affect that question, in our opinion, any more than the change of manslaughter into several degrees under the Revised. Statutes, affected the right to convict of any degree under the common-law indictment of murder. The degree of homicide is matter of proof, to be established 'by evidence on the trial and where the proof justifies a conviction of homicide in any degree, the conviction may be had accordingly, whether it be for either of the degrees of murder, or either of the degrees of manslaughter.

Two jurors were challenged to the favor by the prisoner. They were each examined quite at length by the respective counsel and by the court on the question whether they had formed opinions of the guilt of the accused. The court overruled the challenges and they were sworn in as jurors. We think the challenges, as challenges for principal cause, were properly overruled under "the provisions of chapter 475 of the Laws of 1872, and although, that statute is not decisive upon challenges to the favor upon the ground of indifferency of the person proposed as a juror, it-necessarily imparts to the question a legislative construction as toindifferency founded upon an impression or opinion in reference "to the guilt or innocence of the accused. In Thomas v. The People (67 N. Y., 218), the Court of Appeals passed upon the sufficiency of a challenge in a case almost precisely analogous to that now before us, and we think that decision is not affected by the subtle distinction made by the same court in Greenfield v. The People (74 N. Y., 277, etc). In the latter case the opinion of the juror was derived in part from the reading of a portion of the testimony of a former trial of the same case, and the court seem to have been of opinion that the source of the opinion intensified its effect to such an extent that the juror could not pass properly upon the same evidence when presented to him on a new trial, although he swore that he could do so. (And see Pender v. The People, 18 Hun, 560.)

The confessions of the prisoner were admitted in evidence under exceptions. The first confession was made at the station-house in Boston to the police officer who arrested the accused, and it was objected that it was made under such inducements or influence::, as should have excluded it. The watch of Mrs. Hull had been found upon the prisoner’s person. The officers then asked him where the rest of Mrs. Hull’s jewelry was ? The prisoner replied, that he knew nothing about Mrs. Hull’s jewelry ; afterwards the officer repeated the question, and the prisoner said : “ Will you do me a favor ? ” The officer replied, “ I will if I can ; I sympathize with you, or I pity you ; you are in a bad fix.” The prisoner then requested that the officer would send his clothing and things to his mother, and not let his mother know that anything bad had happened to him. No promise or threat was made, nor any inducement hold out to the prisoner, except such as may be inferred from the expression, “ I sympathize with you, or I pity you; you are in a bad fix.” The prisoner then, in answer to a question put by the witness Balch, who asked him to tell them about the murder, went on to make a detailed statement of how he entered the house and what he did. The inquiry in such cases always is, as was said by Grover, J., in The People v. Wentz (37 N. Y., 303, 309), "was the confession made under circumstances making it reliable for truth ? and if so, it is admissible irrespective of the means by which it was obtained.” (People v. McMahon (15 N. Y., 384, and cases cited.) In The People v. Wentz the prisoner had been arrested and was confined in jail when his confession was made. A police officer went into his room and told him he was in a bad box, and had got caught at last, and asked him who the others were, and then the defendant made the confession. In that case Davies, Ch. J., examines the authorities at length on the subject of confession, and he cites with approval the test given by Lord Denman, Ch. J., in Arnold’s Case (8 Car. & Payne, 621), which is, whether any inducement was held out to the prisoner to confess himself untruly guilty.” We think it manifest that nothing was said or done, by the officer or any person, to lead the prisoner to believe that his offence would be more leniently dealt with if he confessed, or that any favor would be shown to him in consequence of his so doing. In his subsequent confessions to other parties, which were objected to on the ground that they were made after the supposed inducements held ■out by the officer, the prisoner said that he expected to suffer the penalty of the law; and again that he expected to' be hung. 'These statements, instead of showing that his mind had been ■affected with the hope of lenity in consequence of confession, tend rather to contradict the idea. Wo think the confessions were ■clearly admissible within the cases above referred to.

Various exceptions were taken to the charge and to the refusals to charge as requested. Wo have examined each of them carefully, and are unable to discover any error in them calling for .interference with the judgment.

This brings us to what is regarded as the principal question in the case, to wit, that arising upon the challenge to the array of the first panel of jurors. This challenge was put in writing; it was orally demurred to by the district attorney, and the demurrer was sustained by the court. The challenge was not verified by oath. The decision of the court seems to have been put in part, at least, upon the absence of a verification. So far as it rested on that ground, we think it was erroneous, because the want of verification is not proper ground for a demurrer. The court might have refused possibly, if the challenge was regarded as a dilatory plea, to have received it without verification, on the objection of the district attorney. But it is not material to determine whether the challenge should or should not have been verified, because, as has already been said, the absence of verification is no ■ground of demurrer.

On the following day, and after three persons had been drawn and examined as jurors, but before any juror had been-sworn, the court of its own motion stated to the counsel for the prisoner that it had come to the conclusion to allow him to renew his special plea or challenge to the array, leaving the same unverified, .and to allow the district attorney to traverse the challenge and proceed to the trial of the issued raised thereby. The court said “I do this in order that there may be no possible prejudice in the case to the prisoner at the bar.”

The district attorney then offered, in the event of the prisoner’s.renewing the challenge, to traverse it and to consent to proceed at. once to the trial of the issue thus joined, and that the jurors called, but not sworn stand aside for that purpose. In short, everything-was done, both by the court and district attorney, so far as offers are concerned, to tender to the prisoner and his counsel an opportunity for a trial and hearing of the questions of fact and law alleged in his challenge to the array ; but ho on behalf of his client refused' to consent to the proposition. This course is supposed to have^ cured any error that occurred in sustaining the demurrer to thchallenge, and in one view it certainly docs so. That is to say, it takes away the right of the prisoner to insist that he was injured in fact by the mode of procedure on the part of the court, and compels him to stand upon errors of law strictissimijuris. For it is obvious that the court, in making the offer to reverse the decision upon the demurrer, and to put the prisoner where he stood when the challenge was interposed, and enable the questions, presented by the challenge to be tried or heard, was animated by a desire to protect and secure all the rights that the prisoner was entitled to claim. It is doubtful, however, whether enough was. done to take away the right to allege error. If the court had proceeded so far as to reverse its decision upon the demurrer, and to-allow and receive a traverse, and the prisoner’s counsel had refused to proceed to trial upon that issue, the right to allege error would, have been taken out of the case ; but such an effect does not follow from a mere unaccepted proposition, and hence we think we are bound to consider the correctness of the decision anade on the demurrer. We think that in strictness of law theruliaag of the court, iaa sustaining the demurrer’, was correct. Thechalleoage nowhere alleged that aio lists of jurors had been madeaoad filed iaa the proper office ; and that aao lists were open to theinspectioaa of the public or the prisoner ; aaad that aao ballots had beeia prepared and placed iaa the general boxes; and that aao panel, of jiarors had beeai drawn for the court aaad beeaa opcaa to the inspectioai of the piablic or parties iaaterested ; aaad that aaoaae had been summoned and were present ; but, on the contrary, it assumed, by the absence of negation that all these things had been done, but not done in strict conformity to the directions of the statute. The allegations of the challenge were bad for their alternative character, or as negative pregnants, because of the necessarily implied concession that everything alleged therein not to have been done in the particular way described, had been done, or might have been done by the proper officers in some other way,, which the law, to prevent a failure of justice, would accept as. sufficient. Without going further into a detailed examination of the specific allegations of the challenge, enough has been said to indicate one ground on which, we think, the demurrer wns properly sustained. But we regard it as well settled, by authority, in this State, that irregularities in reference to the working of the machinery provided by statute for procuring jurors, offer no ground for reversing a conviction, unless it appears that the defendant was in fact injured or prejudiced thereby. (Ferris v. The People, 35 N. Y., 125; Priery v. The People, 2 Abb. Ct. of App., 229; Dolan v. People, 64 N. Y., 485.) Such injury or prejudice might be claimed to appear if the challenge had averred that no persons for jurors had been selected, that no list had been prepared, no ballot had been placed in the boxes, and no panel had been drawn, but that a body of men had been summoned without any of the requirements of the statute having been, in any manner, pursued. But it is not enough to allege that these various things had not been done in exact technical conformity to the language of the statute.

In the case of Friery v. The People (supra), the court say r “ The statute respecting the selecting, drawing and summoning of jurors, was not intended, per se, to secure impartial jurors to litigants. The purpose and object of the statutory system was to' secure a due and uniform distribution of jury duty, and to guard the great body of jurymen from the fraud or favoritism of the drawing ,or summoning officers. The statutes establish a mode for these ends, and are directory to those whose duty is to select, draw and summon.”

“By this system, the courts are supplied with jurors to aid in the administration of the laws. If it were held that the statutes in reference to the selecting, drawing and summoning of persons to serve as jurors were other than directory, if a failure to •comply with any of the many directions therein contained were •to be deemed sufficient to vitiate the whole panel, the consequence would be that the whole fabric of justice would fall to the ground. Suppose, for example, the clerk omits to give public notice of the drawing, or the drawing takes place hi the absence of those officers required to attend and witness it, after there had been an adjournment and a notification by the clerk to attend on the adjournment day, are these irregularities ground for vitiating the whole panel ? If so, the business of every court in the State might be impeded, if not wholly stopped.

“The officers named in the statute, charged with the duty of attending the drawing as witnesses, by a neglect of such duty, would deprive the court of jurors to aid in the administration of the laws. The system contemplates no such result, but, on the contrary, was designed and intended to promote a directly opposite purpose. The omission to properly work the statute machinery 'by the drawing and summoning officers, is a question between the people and those officers. The machinery may be perverted so as to injure litigants, but in such a case it is the acts of perversion that become cause for challenge, and not, the mere omission to properly work the machinery, when no injury or prejudice comes to litigants.” (2 Abb. Ct. of App. Dec., 230.)

We think this case, and the other decisions above cited, dispose •of the question raised by the demurrer upon its merits, and that the decision, therefore, of the court below was correct.

The result of these views is, that the conviction and judgment must be' affirmed; and, the date fixed for the execution of the ¡sentence having passed, this court should proceed, under the statute, to cause a day to be fixed for its execution.

Brady, J., concurred.

Present — Davis, P. J., Brady and Ingalls, JJ.

Conviction and judgment affirmed. Becord remitted to the court of General Sessions, with directions to proceed on the judgment, and fix a day for its execution.