author: Herrick, J. MAYHAM, P. J. (dissenting).

text:
    The People, Resp’t, v. Alexander B. Terwilliger, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Evidence—Rape.
    The case of rape is an exception to the rule that the evidence of a witness cannot he corroborated or confirmed by proof that such witness stated the facts testified to on the trial, on some previous occasion when not under oath.
    3. Same—Disclosure.
    While the rule requires that the disclosure of the crime should be made at the first suitable opportunity, yet there are circumstances which will excuse delay.
    3. Same—Corroboration.
    It is not necessary that the prosecutrix should be corroborated upon all the material points of her testimony.
    4. Same.
    There should be supporting or corroborating evidence fairly tending to prove, first, that a rape has been actually committed; and second, evidence tending to prove that the defendant is the person who committed it.
    8. Same.
    A disclosure within proper time is some corroboration.
    6. Same.
    The corroborating evidence need not be such as to exclude every hypothesis except that of guilt.
    7. Same.
    The consent of the female need not be corroborated.
    8. Same.
    That the defendant had the opportunity at least to commit the offense charged, is corroborative evidence tending to connect him with the commission of the crime.
    Appeal from a judgment of conviction entered upon a verdict, finding the defendant guilty of rape on the person of Edna Clear-water.

      William Lounsberry, for app’lt; F. A. Westbrook, for resp’t.
   Herrick, J.

The main questions in this case upon which the defendant relies for a reversal of the judgment of conviction are, first, the reception of the evidence of the complainant, that she disclosed the facts of the assault to her father and mother for the first time, a week after it took place; second, that her testimony as to such assault was not sufficient to warrant a conviction under § 283 of the Penal Code.

The case of rape is an exception to the rule that the evidence of a witness cannot be corroborated or confirmed by-proof that such witness stated the facts testified to on the trial, on some previous occasion, when under oath. People v. O'Sullivan, 104 N. Y., 481; 5 St. Rep., 702.

And while in that case the court held that the evidence was inadmissible, because the disclosure was not promptly made, and that the reason upon which the rule is based for the reception of such evidence requires that the disclosure should be recent, and made at the first suitable opportunity; yet, the court goes on to say: “ There may be circumstances which excuse delay, as when the prosecutrix is under the physical contról of the defendant, when she is among strangers, and there is no one in whom she can confide; when she is induced to silence by threats, and is so far within the power or reach of the defendant that the threats may be executed.” In such and other like cases delay may be excused, and the disclosure may be proved, and all the facts submitted to the jury for them to determine what weight shall be given to the disclosure, and what effect the delay shall have.

In this case the prosecutrix was a girl sixteen years of age; she was away from her home, some eleven miles distant, with her grandfather, an old gentleman of the age of about seventy years.

The defendant induced her, with the consent of her grandfather, to accompany him to his house, some three miles distant, to sit up with his mother-in-law, who was sick; and in taking her to his house, it is claimed, the assault was committed. He threatened to kill her if she disclosed the fact to any one. That night she spent at his house with his family; the next day she returned to her grandfather’s; the only person there at the time being her grandfather, and a cousin of his, who appears to have been an old lady; her grandmother, also an old lady in feeble health, was absent from home at the time, but returned prior to the prosecutrix leaving for her own home.

Tne prosecutrix did not tell her story of the assault to any one until she reached her home, seven days after this alleged occurrence, and then before she had removed her outer garments she told what had happened to her.

There may be some question as to whether the objections and exceptions are sufficient to raise the point under discussion, the fact that she told her mother was testified to by the prosecutrix, without objections or exceptions by the defendant. The fact that she disclosed it to her father'and mother was testified to by both of them without objection. The question in that respect that was objected to was, after the testimony was given, that she made the disclosure to them, and was as follows:

“ Q. Did not she say who committed it; I do not ask who it was? Question objected to, as irrelevant, immaterial and hearsay. A. Objection overruled, and the defendant excepted. A. She did.”

But for the purpose of this case it will be assumed that such objection is sufficient to raise the point.

It seems to me that the prosecutrix, under all the circumstances appearing in the case, her youth, the fact that she was a considerable distance from her home, with old people, to whom it would not be natural for her to confide what had befallen her, the fact that she was within a comparatively short distance of the defendant, who had threatened to kill her if she disclosed what had occurred ; that she expected shortly to return to her parents; her natural guardians and confidants; that immediately upon her return home, before she had removed her “wrap,” she told her mother what had occurred; this, it seems to me, brings it within the line of exceptions to immediate disclosure spoken of in the case of People v. O'Sullivan, supra.

It was proper that it should he submitted to the jury, leaving them to determine what weight should be attached to it under all the circumstances, and was therefore properly admitted.

As to the second ground relied upon for a reversal, the question is, to what extent it was necessary to corroborate the testimony of the prosecutrix.' Section 283 of the Penal Code says: “ That no conviction can be had for abduction, compulsory marriage, rape or defilement, upon the testimony of the female, abducted, compelled or defiled, unsupported by other evidence.”

It does not seem to me that under that section of the Code, that it is necessary that the prosecutrix should be corroborated upon all the material points of her testimony.

I have been referred to no case giving a construction to the section in question except the case of the People v. Plath, 100 N.Y., 590, and the rule in that case has been very much modified in later decisions. People v. Kearney, 110 N. Y., 188-94; 17 St. Rep., 165; People v. Elliott, 106 N. Y., 288; 8 St. Rep., 703; People v. Ogle, 104 N. Y., 511-15; 5 St. Rep., 740; People v. Everhardt, 104 N. Y., 591, 5 St. Rep., 793; People v. Cullen, 5 N. Y., 886; 23 St. Rep., 559.

It will be noticed that the section in question is indefinite as to the character and extent of the supporting evidence required.

Without discussing at length the decision of the People v. Platt, it seems to me that the essential principle established by that case is contained on page 597: that,

“In one form or the other, however, proof must be given aside from that of the female, tending to establish the commission of a crime, and that it was perpetrated by the person accused, before a conviction can be lawfully had,” and within the spirit of that language it seems to me that a safe construction of the section would be to hold that the support or corroboration required by it should be the same that is held to be necessary for the corroboration of an accomplice under § 899 of the Code of Criminal Procedure ; that section reads as follows: “A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.”

Prior to this statute the rule in the state permitted the jury to convict a defendant upon the uncorroborated testimony of an accomplice. People v. Costello, 1 Denio, 83; but it was the uniform custom of judges to advise the jury that the evidence of the accomplice should be received with great caution, and it rarely happened that a conviction was had upon his unsupported evidence. The rule now embodied in the statute is substantially the rule which before the statute, courts were in the habit of stating to the jury for their guidance although, as has been said, it was not enforced as a rule of law.”

It is plain that independently of the statutory rule corroborative evidence to have any value must be evidence from an independent source of some material fact tending to show not only that the crime has been committed, but that the defendant was impli cated in it, and such is the doctrine of the best considered cases. But neither the doctrine hitherto declared by the courts, nor the rule embodied in the statute, requires that the whole case should be proved outside of the testimony of the accomplice. Such a rule would render the testimony of an accomplice in most cases unnecessary and would defeat the policy of the law7 which permits the use of the accomplices as witnesses in aid of and in the interest of public justice.” People v. Houghkerk, 96 N. Y., 149-62.

It lias also been held that “ the law is complied with, when. there is some evidence fairly tending to connect the defendant with the commission of the crime charged, so, that the conviction will not rest entirely upon the evidence of an accomplice. People v. Elliott, 106 N. Y., 288-92; 8 St. Rep., 703; People v. Everhardt, 104 N. Y., 591: 5 St. Rep., 793; People v. O'Sullivan, 104 N. Y., 481; 5 St. Rep.,702.

Under these circumstances, I think a fair and prudent construction of § 283 of the Penal Code, therefore, to be that there should be supporting or corroborating- evidence fairly tending to prove, first, that a rape had been actually committed ; and second, evidence tending to prove that the defendant is the person who committed it; and assuming such to be the true construction to be placed upon the section referred to, it seems to me that in this case there was sufficient corroborative or supporting evidence to submit the case to the jury.

The prosecutrix is corroborated as to a rape having been committed upon her by the fact that she was in such a situation with the defendant that he had an opportunity to commit the crime. Another witness, her grandfather, testified that' she went away with the defendant in his carriage. She locates the place of the assault in a piece of woods off the public highway; the next day the tracks of a wagon are found throngh such woods, entering from the side coming from her grandfather’s house and leaving it and entering on the highway again on the side going towards the defendant’s house.

The defendant is seen with a female in his carriage between the woods and his house, about one-half mile from his house, the prosecutrix comes to his house in the evening in his company ; when she arrived there the defendant’s sister-in-law says her hair was ruffled up and she took down her front hair and rolled it up, and she took off her shoes and .shook the dirt out of them. She looked very downhearted and didn’t have anything at all to say, and she kept wiping her eyes occasionally, and I thought she was crying.” She testified that when the assault was committed upon her one of the buttons upon her drawers was torn off; about eight days after the alleged commission of the offense the woods were searched, and in the locality where she located the assault a button was found.

When she arrived at her father’s house a week after the transaction she immediately informed her mother what had happened; the next day she was examined by a physician, who found that the hymen has been ruptured ; he thinks recently ruptured, cannot tell how recently, but thinks within two or three weeks.

A disclosure within proper time it has been said is some corroboration. People v. O'Sullivan, supra.

It is true that all these things may be true, and yet she may have consented, and thus the crime not have been committed. But it is not necessary that the corroborating evidence should be such as to exclude every hypothsis except that of guilt. People v. Ogle, 104 N. Y., 511-15 ; 5 St. Rep., 740; People v. Elliott, 106 N. Y., 278-92; 8 St. Rep., 703.

There are inferences, however, to be drawn from evidence that bears upon the question of consent. If she had consented she would probably not have been looking downhearted, wiping her eyes, and presenting the appearance of crying, after she had arrived at the defendant’s house; neither would she in all human probability have told her mother she had been assaulted if she had consented to it, such a statement is conceivable, if the fact had been discovered and she was trying to justify her conduct to her parents; and it is for the reason that it is presumed that a female will not falsely testify to her own disgrace, that her statement made recently after the alleged commission of the offense are received in evidence and are held to be corroborative.

In addition it may be said that to require corroboration as to whether a female consents or not, would be exacting something that in most cases would be impossible of fulfillment; it is a crime that is not committed in the presence or hearing of people, so that they can neither see or hear the struggle of the victim; her condition afterwards, it is true may show the effects of her struggle, but she may resist and still not be able to show bruises or wounds in corroboration. She need not be corroborated on every material fact, “nor need the corroborating evidence be wholly inconsistent with the theory of the defendant’s innocence.” People v. Elliott, 106 N. Y., 283-92; 8 St. Rep., 703.

It seems to me that the facts above recited, all of which are testified to by witnesses other than the prosecutrix, constitute sufficient corroboration to warrant a submission of the case to the jury.

Opportunity for the commission of the crime is a material fact; that is found; the recent laceration or rupture of the hymen is a material fact, and there is testimony as to that, and these alone it seems to me are sufficient to bring the case within the Code.

On the second, as to whether there was any corroborating evidence tending to show that the defendant was the person who committed the assault. We have these facts, that the defendant asked her grandfather to permit her to go with him to his house on the night in question, that they left the house together, that the defendant was seen that evening about a mile from the woods where it is claimed the assault was committed, and on the road leading to his house the witness testified that the woman who was riding with him -“ was sitting half way out of the wagon, and seemed ready to jump,” so that we have testimony independent of the prosecutrix, that on the night the assault was alleged to have been committed, the defendant was in her company, so that he had the opportunity at least to commit the offense charged. I think that is corroborative evidence tending to connect him with commission of the crime, and it is material evidence.

In the case of Lindsay v. People, 63 N. Y., 143-57, the accomplice testified that the prisoner and himself removed the body of the murdered man at night from the place where it had been concealed during the day. The wife of the accomplice testified that her husband was absent from his house until a late hour that night, and the court held that her testimony corroborated the accomplice in material facts, “it was a fact so material to the whole story told by the witness, that had it been proved that he was in the house during the hours mentioned his whole story would have fallen to the ground and proved false.”

The evidence that the defendant was with the prosecutrix on the evening in question, was very material, and applying to it the test of materiality suggested in the case of Lindsay v. People, by proof that on the evening in question he was at home, or far distant from the place of the alleged assault, so that it would have been impossible for him to have committed it, the whole .story of the prosecutrix would be discredited and her case destroyed.

I think, therefore, there was evidence corroborating the prosecutrix not only as to the fact that she had been assaulted, .but also corroborating evidence tending to prove that the defendant was the person who committed the assault, and that, therefore, the judgment of conviction should be affirmed.

MAYHAM, P. J. (dissenting).

An appeal from an order denying a motion fora new trial on newly discovered evidence, having been dismissed and the order affirmed, we are brought to the consideration of the appeal from the judgment of conviction in this case.

The appellant insists that the evidence fails to establish the commission of the offense charged because the circumstances attending the transaction as sworn to by the prosecutrix establishes her consent, and there is no corroboration of a forcible ravishing against her will, as sworn to by her. Section 283 of the Penal Code prescribes in definite and concise language, the rule of law upon that subject as follows :

“ No conviction can be had for abduction, compulsory marriage, rape or defilement, upon the testimony of the female abducted, compelled or defiled, unsupported by other evidence.”

The question raised upon the first point is as to the sufficiency of the evidence in corroboration of the offense charged in support of the testimony of the prosecutrix.

The principal evidence of the offense is the testimony of the prosecutrix. She was in her seventeenth year at the time of the alleged offense. From her evidence it appears that on the evening of the alleged assault, she started at the solicitation of the defendant, to ride with him in a two-wheeled vehicle, from the home of her grandfather, where she was living, to the residence of defendant, a distance of about three miles. That passing along the highway, he turned therefrom into a wood road leading into the woods, and drove eighty-seven paces, and then told the prosecutrix to get out, and she did. Defendant did not inform her what he wanted'her to get out for, except to turn around,

She testified that he assisted her to get out of the cart, and that after she got out he choked her, threw her down, and that against all the resistance she was able to make, he ravished her against her will.

This was clearly proof enough if corroborated as required by the provisions of the Code to constitute the offense charged. If her story is to be believed, she used all the physical power she possessed, and her voice to cry out in the defense of her chastity.

But, as we have seen, her evidence alone, unless corroborated by evidence bearing upon the crime itself, is not sufficient to convict.

The learned district-attorney insists that such evidence is found in her appearance and conduct at defendant’s after she arrived there that evening.

Mrs. Upright, who was at defendant’s when she came there, swears that prosecutrix “hair was ruffled, and she took down her front hair, and rolled it up, took off her shoes and shook the dirt out of them, that she looked very down-hearted and didn’t have anything to say ; kept wiping her eyes occasionally, and witness thought she was crying. She didn't say anything much, only when I talked to her.” The evidence shows that she stayed there all night, and she and this witness sat up with a sick lady.

It is also insisted that her statement to her father and mother, about nine days after this occurrence, is also a corroboration, as is the wagon track leading into the wood-road, which was discovered some days after the occurrence. The finding of a button, which she swears resembles the one she claims defendant tore off of her drawers, at the place at which she claims the offense was committed; and the testimony of the physician who examined her person about eighteen days after the alleged occurrence, found the parts in a healthy condition, not inflamed, no hymen present, and red about the remains of the hymen, tending to show that its rupture was recent, but by no means fixing the time of the same.

In a case of this character it is not enough to show adulterous intercourse between the prosecutrix and the accused.

The gravamen of the crime is the forcible ravishing by the defendant against the will and without the consent expressed or implied of the prosecutrix; and however reprehensible voluntary intercourse between a married man and this prosecutrix is, and however deserving of condemnation and execration he may be for planning and creating the opportunity of this act, unless it was committed against the will of the prosecutrix, by overcoming by force and fear, all the physical and mental power of resistance by the prosecutrix: then the crime for which he was convicted is not established; and the burden of proving this rests with the people, for where the act complained of is capable of two constructions, or interpretations, one criminal, and the other not, the' law will presume the latter until the former is proved.

We have said that the facts sworn to by the prosecutrix as to the actual commission of this crime, if corroborated by evidence either direct or circumstantial, so as to establish their truth, are sufficient to convict.

• But are not all of the circumstances relied upon by the prosecutrix as corroborations consistent with the innocence of the defendant of the crime of rape ?

Assuming that the tracks of the wagon leading into the wood-road and returning corroborate the fact that he drove into the woods; that fact in itself is just as consistent with the idea of illicit intercourse with the consent of the prosecutrix as with the motive and design on the part of the defendant to commit a felony, by forcibly ravishing the prosecutrix, and more so when we take into account the fact that he was in near proximity to a traveled public highway, and was within easy hearing distance of the same. By her own testimony she consented by her failing to object to his driving into this wood-road, although she swears she knew he was driving into the thicket in a byroad and secluded place, and on her arrival at the point where she alleges this offense was committed she voluntarily, on his invitation, got out of the carriage.

The People claim that the finding of the button supposed to have been 'torn or ripped off from her drawers, is evidence in cor-. roboration of the statement that she was out of the carriage, and on the ground, but that circumstance would seem slight evidence of force, and in no way inconsistent,’ with the mutual effort to remove the obstruction which that garment furnished to a voluntary connection. The cloth does not appear to have been tom in removing the button.

The button-hole was not torn out, but there was a tear in the drawers a short finger’s length. Prosecutrix after the alleged occurrence as she swears, replaced the drawers on her person placing a pin in the place of a button, and wore them to defendant’s that night and for some days thereafter in the same condition, audit is to be observed that the identity of and injuries to these drawers, rest solely in the uncorroborated evidence of the prosecutrix. -

I do not see how under such circumstances the condition of that garment is a corroboration of the criminal charge against the defendant. If they had been exhibited to some other person, and their condition examined before they were removed from the prosecutrix, any rents or marks of violence or force on them might furnish some evidence in corroboration; but I find no evidence’ that any person saw them until they were presented in court-.

Again, her appearance at the defendant’s that night as described by Mrs. Upright, is urged as a corroboration. “ Her hair was ruffled, and she took down her front hair and rolled it up.” She took “ off her shoes and shook the dirt out.” But it will be observed that the prosecutrix does not, in her testimony, make any claim that the disordered condition of her hair, or the dirt in her shoes, was the result of the alleged assault of the defendant, or of their encounter in the woods, so that this testimony fur-nishes no coroboration of the evidence of the prosecutrix upon that event, and her down hearted appearance, and occasional wiping of her eyes, sworn to by this witness, might have been from a sense of injury inflicted against her will, or a consciousness of her own voluntary acts of impropriety. No reason was given by her at that time, for her appearance, or conduct, nor does she speak of it in her testimony. Under such unexplained circumstacces this testimony furnishes no corroboration of the prosecutrix’s charge of rape.

It is also claimed by the learned district attorney that the statement of the prosecutrix to her father and mother of this offense, several days after the alleged occurrence, is a corroboration. If this evidence was competent, which we doubt still after such a lapse of time after the happening of the alleged event, we think it falls far short of a corroboration of the prosecutrix’s testimony as to the commission of this crime.

The theory upon which the declaration of the injured party is received as evidence is that they were made so nearly contemporaneous with the injury that the person making them is deemed to be smarting under the immediate consequences of the wrong and has not had time to manufacture a story, but acts solely upon impressions and impulses born of the injury.

It can hardly be successfully maintained that declarations of the party charging the injury, seven days after.it occurred, and not made in extremis, can be treated as evidence in corroboration of the evidence of the prosecutrix of the principal offense. The only remaining evidence to be considered upon this point is that of the doctor. He made an examination of the complainant the 9th or 10th or 16th of October after the alleged occurrence. He formed an opinion from that examination andan examination made by him on the 20th of October that the hymen had been ruptured recently, and while he cannot state the exact time he puts it positively within two months. Does this evidence amount to a corroboration that she was forcibly ravished on the 2d of October, 1892. We think not. The same conditions would have been present if she had submitted to voluntary intercourse. There was no inflamation of the parts, and no evidence of excessive violence disclosed by his examination.

On “the whole evidence, on the part of the prosecution, we find nothing that corroborates the testimony of the prosecutrix that she was forcibly ravished at the time alleged.

Such evidence was indispensable, as we have seen from the provisions of the Code, to a conviction of the defendant in this case. Upon this point we have not considered the evidence offered by the defense, in opposition to this charge, for the reason that, if a prima facie case had been made out by the prosecution, the conflict raised by the evidence of the defense, would have presented a question of fact which would be solely for the jury, with whose • verdict on such conflict, this court would not interfere on appeal.

In The People v. Platt, 100 N. Y., 592, the court of appeals laid down the rule which must govern in the construction of § 283 of the Penal Code. In that case, Euger, Oh. J., says: “In cases where corroboration is required, there has been some diversity of opinion in the authorities as to the particular facts which should be corroborated, and the extent of the corroboration needed in order to comply with the rule; but it is now conceded to be the general rule that it should tend to show^the material facts, necessary to establish the commission of a crime and the identity of the person committing it.”

Tested by this rule we fail to see that the prosecutrix is corroborated by any evidence tending to prove that she was forcibly ravished by the defendant.

Without that evidence, standing upon her testimony alone, however positive the same may be, the law does not allow a conviction of either of the grave and henious offenses mentioned in § 283 of the Penal Code.

If we are right in our conclusion, this conviction, for the reason above stated, must be reversed, and no examination of the other exceptions taken by the appellant need be considered.

The conviction must be reversed and a new trial ordered before the Ulster county sessions, under the provisions of § 527 of the Code of Criminal Procedure.


source: Caselaw Access Project

author: Putnam, J. Herrick, J. Mayham, P. J.

license: Public Domain

text:
    Orrando P. Dexter. App’lt, v. Warren Joseph Alfred, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Costs—Question op title.
    Where the allegation of ownership in complaint is admitted in answer, and the answer avers only that the defendant thought that the place, where the trespasses were committed, was a legal highway, the question of title is not raised. „
    2. Same.
    In such case, if the plaintiff recovers only nominal damages, the defendant is entitled to recover the costs of the action.

      John P. Badger, for app’lt; Cantwell & Cantwell, for resp’fc.
   Putnam, J.

This action was brought to recover damages for thirty-three alleged unlawful trespasses. The defendant in his answer does not deny plaintiff’s title to the premises described in the complaint, and admits one or more trespasses; but alleges that, in pursuance of chapter 114 of the Laws of 1890, one Henry Foster, commissioner of highways of the town of Waverly, proceeded to lay out a higway where the alleged trespasses were committed, talcing the steps required by statute to lay out such highway, and ' the defendant believing that the same-was legally laid out, and before the court had decided the said act under which the proceedings were taken unconstitutional, was directed by said commissioner to cut some fallen trees at said place, and in obedience to said direction entered the premises on one occasion. Other matters are set up in the answer in the way of mitigation of damages.

The jury rendered a verdict for the plaintiff for six cents damages, and the defendant was awarded the costs of the action.

The plaintiff on this appeal claims that the question of title was raised by the answer and upon the trial and hence, that recovering a verdict for six cents, he was entitled to the costs of the action.

We think that under the answer the plaintiff’s title to the premises in question was not controverted. The allegation in the complaint that plaintiff was the owner of said premises was not denied in the answer and, hence, such allegation stands admitted in the pleading. Nor does the answer allege that the place where the alleged trespasses were committed was a legal highway. It alleges that the highway was laid out under chapter 114 of the Laws of 1890, and “ that this defendant verily believed that said highway so laid out as aforesaid was a legal highway, and properly opened to public travel; and that while said defendant so thought, and before the courts had passed upon the constitutionality of said act, the said commissioner of highways ordered" and commanded this defendant to cut some fallen trees out of said highway, which the defendant did, in or about the latter part of January, 1890, in pursuance of said command.” It is evident that the answer does not mean to aver that there was a legal highway where the alleged trespasses were committed, but rather that defendant at the time so thought. Nor was the question of title raised on the trial. It is difficult to see how it could be raised under the pleading.

As the answer, therefore, does not controvert plaintiff’s title to the premises, or allege a legal highway, it follows that plaintiff recovering only nominal damages, defendant was entitled to recover the costs of the action.

We think, however, that some evidence was improperly received on the trial. The witness Webb testified as follows: “I

recollect an occasion a short time before Mr. Dexter bought thisEichard Giles’s lot in question when there was conversation between Mr. Alfred and Eichard Giles about going across the premises. It was in my office. Giles was then the owner of the land. I think it was along in the fall of 1889 or about that time.”

Q. State the substance of the conversation.

“ Objected to by plaintiff as incompetent, immaterial and hearsay-” .

. Objection overruled. Plaintiff excepted.

“A. Mr. Giles and Mr. Alfred were in my office in relation to this particular matter. Mr. Giles told Mr. Alfred that he could go across over his land, draw logs right along, and gave me instructions to draw up a writing to that effect.

Plaintiff moved to strike out the evidence on the ground that at most it was only a license which was revoked by the sale to Dexter, and the evidence was immaterial and incompetent.

“ Motion denied. Plaintiff excepted.

“That is the substance of it; Mr. Alfred wanted to cross the land, and Mr. Giles told him he could do it and wanted me to draw up a writing; there was a writing drawn; Mr. Giles was to come in and sign it, but he did’nt execute it.

“ Plaintiff moved to strike out the testimony as to the writing.

“ The motion was denied and plaintiff excepted.

“ Plaintiff moved to strike out the testimony of the witness Webb as to the conversation with Richard Giles on the grounds stated in the objections at the time, and also on the ground that there is no evidence that Giles owned the land or had any authority to give anybody permission to cross.

“Motion denied. Plaintiff excepted.”

It was not material to the case that a former owner had given defendant license to cross over the land. Such evidence was entirely irrelevant. The complaint alleges that notice had been given by plaintiff to defendant before the alleged trespasses, that he, plaintiff, was the owner of the premises and forbidding any trespass .thereon, and this allegation is not denied. The evidence so objected to and received may have influenced the verdict of the jury.

We are also unable to see in what view the testimony that the Shanley & Alfred Lumber Co., had 40,000 logs cut at the end of the road so attempted to be laid out, and which there was no practical way of getting out except over said road can be deemed competent. The fact that defendant, or the co-partnership to which he belonged, had no other way of moving their logs except over the road so attempted to be laid out, did not justify a trespass on plaintiff^ premises without his consent. We are unable to see that the fact so allowed to be proved tended to mitigate damages. This testimony may also have influenced the verdict.

On account of the receipt of this evidence the judgment should be reversed and a new trial granted, costs to abide the event.

Mayham, P. J., and Herrick, J., concur.

Herrick, J.

The judgment being reversed the orders for costs naturally fall with it; the appeals in the matter of costs heard at the same term of this court, we see no occasion for passing upon at this time.

Mayham, P. J.

I think the allegations in the amended answer from folio 38 down to and including the words “ took place ” in folio 41 were sufficient prima facie to show that the locus in quo was a public highway ; and thus raise question of title to land, which, if pleaded in justice court would have ousted the justice of jurisdiction, and that the statement in the answer that the “ defendant verily believed that said highway so laid out as aforesaid was a legal highway,” was not such a necessary part of the pleading as to overcome- the positive allegations of fact, that this entry was upon a public highway as set out in the answer.

The defendant having taken the responsibility of pleading a public highway in justification of his entry, his belief as to its legality becomes quite immaterial, and could not be the subject of proof on the trial

But as illegal evidence was offered and received on the trial, the judgment should, for that reason, be reversed.


author: Herrick, J.

text:
    The People v. George W. Hess.

      (Supreme Court, Special Term,

      Filed December 26, 1893.)

    1. Carrasal uaw—Stay.
    Stays are not granted in criminal actions until after a careful examination and a determination by the justice making the examination, that, in his opinion, there is a reasonable doubt whether such judgment of conviction will stand.
    8. Same.
    The judge cannot form such opinion without a careful examination of the whole case.
    8. Same.
    There may be exceptional cases, where a part of the record, or a portion of the evidence, may reveal a palpable error, or present a point so sharply, as to render it unnecessary to examine the whole case.
    Application for a stay in a criminal case.

      Eugene Burlingame (J. H. Clute, of counsel), for deft; Edward A Qvfford, dist.-att’y, for the People.
   Herrick, J.

The defendant has been convicted of manslaughter in the first degree, and upon such conviction sentenced to confinement in the states prison. He appeals from the judgment of conviction and applies for a stay of proceedings pending such appeal.

In civil cases where it appears that the rights of the parties will not be prejudiced thereby, stays of proceedings, pending appeals, are freely granted; the same liberality, however, 'is not exercised in staying proceedings upon conviction for crime, for the reason that such liberality would seriously prejudice the administration of criminal justice. The beneficial administration of the criminal law requires both certainty and promptness; continual delays, and the spectacle of convicted criminals at large, weakens the administration of justice, and brings it into contempt, for that reason stays are not granted in criminal cases, until after careful examination, and a determination by the justice making the examination, that in his opinion there is a reasonable doubt whether such judgment of conviction will stand. The defendant is not entitled to the stay as a matter of right. People v. Holmes, 3 Parker Cr. Rep., 567; People v. O’Reilly, 9 Abbott’s N.C., 91.

The application is made under § 527 of the Code of Criminal Procedure, which provides that upon appeal, execution of the judgment shall be stayed upon filing A certificate of the judge who presided at the trial, or of a justice of the supreme court, that in his opinion there is reasonable doubt whether the judgment should stand.”

In determining whether there is a reasonable doubt as to whether the judgment will stand or not we must consider that other portion of § 527, reading as follows: “ And the appellate court may order a new trial, if it be satisfied that the verdict against the prisoner was against the weight of evidence, or against law, or that justice requires a new trial.”

Practically this requires an examination of the whole case; in the language of another, “This devolves the duty upon the judge to whom the application for certificate is made, to form an opinion whether the judgment should stand, and such judge cannot form such opinion without a careful examination of the whole case, involving the indictment, the evidence and the proceedings upon the trial and the charge of the trial court to the jury, who rendered the verdict that the defendant was guilty.”

“ Under a liberal and just construction of the language of this section, a judge is called upon to review the entire evidence, the charge of the trial court and the law of the whole case, for he is required by it to form an opinion whether the judgment should stand and the appellate court is required to set aside the judgment and order a new trial, if it be satisfied that the verdict was against the weight of the evidence or against law, or that justice requires anew trial whether any exception shall have been taken in the court below.” People v. Sharp, 9 St. Rep., 157, Potter J.

That, I think, is a correct statement of the general rule. I do not mean to say that there may not be exceptional cases, where a part of the record, or a portion only of the evidence, may not reveal a palpable error, or present a point more sharply, as to render it unnecessary to examine the whole case. There are exceptions to all general rules ; but ordinarily, upon exception to the rejection or reception of evidence, it cannot be determined whether the defendant has been injured thereby, except upon a review of all the evidence in the case; neither can the effect of a particular portion of the trial judge’s charge be ordinarily determined except by reading the whole charge, and possibly, in addition, the evidence in the whole case.

In the case now before me, I have but a few pages of the evi- • dence, in a case, the trial of which I am told occupied nearly two weeks; a memoranda of an exception to a part of the charge, without the charge itself; an affidavit of one of the defendant’s counsel, detailing various transactions during the trial, and an affidavit of the district-attorney in opposition thereto, giving a different account of what took place upon the trial.

The evidence and portions of the record before me, do not bring the case within the exceptions to the general rule that I have heretofore suggested, and I am not able to form an opinion from them that “ there is reasonable doubt whether the judgment should stand; ” there is not sufficient evidence before me to form any opinion upon the merits of the case, or to enable me to determine whether any of the alleged errors may have prejudiced the defendant, and for that reason I must decline to grant the certificate asked for.


text:
    Ellen Safford, App’lt, v. The Village of Green Island, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Negligence—Cause.
    Under an allegation that the injury had been caused by reason of the negligence of the defendant in allowing a ridge to remain across the sidewalk in the village, the plaintiff must establish, in order to recover, that the accident would not have occurred hut for the presence of such ridge.
    Appeal from a judgment in favor of the plaintiff.

      Edward W. Douglass, for app'lt; Smith & Wellington (George B. Wellington, of counsel), for resp’t.
   Herrick, J.

It appears in this case that a ridge had been formed across the sidewalk by excavating to put in a water pipe, and the earth afterward filled in had not been sufficiently packed down, but formed a ridge from four to six inches in height; this ridge was covered with ice, and in the language of the plaintiff’s daughter “ So that the ridge was slippery, glary, glassy; it was clear ice, glassy ice; shiny like the surface of glass, and very slippery.”

The thermometer had been below zero for some days prior to the accident in question, and the streets of the village were generally slippery.

It is impossible to determine from the evidence whether the plaintiff would or would not have fallen except for the ridge upon the sidewalk; the jury could have merely guessed whether it was the ridge or the ice, or both combined, that caused the accident.

The, defendant was not responsible for the slippery condition of the sidewalk, or for the ice upon the ridge, and such being the case, and the plaintiff not establishing that the accident would not have occurred but for the presence of the ridge she was not entitled to recover, and the nonsuit was proper. Taylor v. City of Yonkers, 105 N. Y., 202; 7 St. Rep., 332 ; Hunter v. N. Y. O. & W. R. R. Co., 116 N. Y., 615, 24; 27 St. Rep., 729; Grant v. P.& N. Y. C.& R. R. Co., 133 N. Y., 657 ; 45 St. Rep., 303.

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


author: Mayham, P. J.

text:
    John F. Montignani, Adm’r, etc., Resp’t, v. Mary T. Blade, et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Will—Unlawful suspension
    Where, by a will, the estate vests in the son of the testator, if alive, if dead, then in the grandson, if alive, and, if both die within ten years, then, immediately on the happening of that event, vests in such other person as may he under the will entitled to it, even though the ten years’ limit has not expired, the provision is valid.

      2. Same.
    A clause, which is limited only by a definite period of time, not dependent upon the expiration of two lives in being, is within the prohibition of the statute.

      3. Same—Trusts.
    If a valid trust is created, it will not fail for want of a trustee, as the court will appoint one.
    4. Same.
    Where the testator appoints his executors as trustees, gives them an estate for a number of years, and names the final beneficiaries, a trust is created.
    This action was brought by the administrator with the will annexed of Barnabas Staats for a judicial construction of such will and the direction of the court as to the administration and disposition of the estate devised and bequeathed therein, and this appeal is from a judgment and decree entered in such action.

      Geo.. EL Malory, for pl’ff, resp’t; Robert G. Sherer, for Mills T. C. Staats, app’lt; Geo. H. Stevens, for Mary T. Blade, app’lt; Allen McDonald, for Barnabas E. Staats; Eugene D. Flannigan, for Belle T. Staats.
   Mayham, P. J.

This action was tried by the learned judge principally upon agreed facts, stipulated by the counsel for the respective parties, and the main contention on this appeal arises out of the determination of the trial court upon the second, third, fourth and fifth disposing clauses of the testator’s will.

If that determination is correct, then there is little or no difficulty in the administrators administering the estate under the will and law as laid down by the learned trial judge.

Each of these disposing clauses except the fifth suspended the alienation of the property devised and bequeathed for a period of years, nor depending upon the continuance of two lives in being, and each assumed to create a trust to continue during the period of such suspension.

The trial judge held that such suspension was illegal and that property so sought to be devised and bequeathed was not by said clauses in the will disposed of by it, and that the same lapsed and reverted into and became a part of the estate of the deceased.

It is insisted by the counsel for the appellant Barnabas E. Staats that the bequest to him in the second disposing clause of the will of the stock in the Wells, Fargo Co. Express,” is not subject to the objection, that it is subject to an illegal trust created in the will, and that the vesting or alienation of the same is not by that clause suspended for more than two lives in being.

That clause reads as follows: “ I hereby bequeath and give my son Barnabas E. Staats all my shares of stock in the Wells Fargo Company Express to be held in trust by my executors ten years from and after my decease, then to be delivered and transferred to him, if deceased, do and continue the same to his son William, now in his eighth year of age. The dividends shall be collected, when and as declared by my executors until transferred and delivered and paid to my son, or, if deceased, to his son William, if both are deceased before the ten years have expired, then transfer and deliver the said shares to my daughters Lydia Anna Staats and Mary Yates Staats each share and portion equal. If either daughter is deceased, her portion shall be transferred and delivered to the remaining daughter. If both are deceased, then this bequest shall be given to my daughter-in-law, wife of my son John H. Staats, or their heirs, and my daughter-in-law, Harriet Staats, or her heirs, each share and portion equal.

This language, though somewhat inartificial and obscure, does not extend the period of the suspension of alienation beyond the life of testator’s son, Barnabas, and grandson, William.

If both of these lives expire before the limitation of ten years fixed for vesting in one of them ” have expired, then transfer and deliver said shares, each share and portion equal.” The clause then provides for the vesting at that time of this stock if any of the persons first named are dead. There can be little doubt but that this clause limits the suspension to the time of the death of Barnabas and his son William if both die before the expiration oftthe ten years.

It will be observed that this disposing clause is independent of any other, and its execution does not impair any other rights under the will, except as it may diminish the residuum of the testator’s estate.

Was this provision of the will an illegal suspension of the power of alienation or an illegal accumulation of the income of the stock ? In Dodge, ex'r, v. Pond, 23 N. Y., 69, it was held that: “ A testator, without violating any law, may. not only suspend the absolute ownership of his estate during the continuation of any two lives in being. at his death, but may dispose of the income annually as it accrues during this period of suspension ; he may also give vested legacies and provide for their payment at a future period. The court also held in that case that it is no violation of the statute against accumulations for a testator after rendering his estate inalienable for two lives to give a pecuniary legacy, payable at a future period, in such a manner as to show that he intended that they should be paid exclusively from income as it accrued, leaving the corpus of the estate to pass unimpaired to the residuary legatee.

In Schemerhorn v. Cotting, 131 N. Y., 58; 42 St. Rep., 608, Peckham, J., in discussing a question similar to the one raised on this clause, uses this language: “ A limitation of a trust estate for an arbitrary period of time, such as fifty years, is valid, provided a termination at an earlier period is called for by the expiration of two lives in being at the time of the creation of the trust.

If provision is made for such termination, the income of the estate may, in the meantime, be divided among any number of successive lives.”

Applying the principal of these decisions to the provisions of the second disposing clause in the will under consideration, it cannot be held void for an alleged suspension of the vesting of this stock or of the suspension of the power óf alienation. We must, therefore, hold that the conclusion of the learned judge upon this disposing clause in the will was erroneous, and the clause must, therefore, be upheld as a valid disposition of these stocks. This is upon our construction of the clause, that the trust estate terminates with the death of the two lives in being at the time of the creation of the estate, if they die within the ten years.

If they' or either of them are still living at the end of the ten years, then the estate vests in Barnabas, if alive, if dead, then in William, if alive, and if both die within the ten years, then immediately upon the happening of that event, it vests in such of the other persons as may be under the will entitled to it, even though the ten years limit has not expired. This construction we believe to be in harmony with the intention of the testator, and not in violation of any rule of law.

Hor do we believe that the limitations over after the death of Barnabas and his son, within ten years, too remote to enable them to take in the order of their survivorship as designated in the will. On the happening of such event, the title would devolve on the person entitled to take co instanter.

We think the third disposing clause comes clearly within the prohibition of the statute, as it is limited only by a definite period of time, not dependent upon the expiration of two lives in being, and is, within the provisions of the statute, absolutely void.

Upon this clause we are urged by the learned counsel for the beneficiaries to follow what is claimed to be the manifest intention of the testator, and uphold the bequest.

But we are not at liberty to violate the plain language of the statute, and the well authenticated and authoritative adjudication to uphold the intention of the testator.

In Underwood v. Curtis, 127 N. Y., 525 ; 40 St. Rep., 255, it is held that a provision by which the possession of personal property and the legal estate therein, is vested in a trustee during the continuance of the trust, the absolute ownership of such property is suspended and the validity of the trust, the duration of such suspension, must be limited to two lives in being, and not to a term of years, however short. Smith v. Edwards, 28 Hun, 223. As to the fourth disposing clause in said will, the learned counsel for Mary Staats, now Mary Staats Blade, insists that the devise of the real estate therein made, is absolute, and that no trust is created in fact as to the same. The language of that provision is as follows :

“I hereby bequeath to my daughter, Mary Yates Staats, the house and lot Ho. 52 Elm street, now occupied by myself, also all the furniture and house-keeping articles and utensils therein, for her own occupancy and use, to be held in trust by my ex-, ecutors seven years from and after my decease. I also bequeath to said daughter all my shares of stock in the Hew York Central & Hudson River Railroad Co., the dividends, when declared, shall be collected by my executors and paid to said daughter.

At the expiration of the seven years the foregoing bequests shall be transferred and delivered to said Mary Yates Staats as and when so bequeathed by her and practicable. If this daughter is deceased before the expiration of the seven years these bequests shall be delivered to, or disposed of, as my daughter Lydia Anna Staats, and my son John J. Staats shall request and direct; the proceeds shall be paid to my daughter Lydia Anna Staats and my daughter-in-law, Willa F. Staats, and my daughter-in-law, Harriet Staats, each share and portion alike, as near as can be done, and satisfactory to all concerned.”

By this provision it is contended, that no valid trust was created as to the real estate. The testator named in his will two persons as executors, and while it appears that the persons named did not qualify, it is also true that if- a valid trust was created, it would not fail for want of a trustee, as the court would appoint one. We must therefore look at the provision under consideration, to ascertain whether a trust was created.

The language is — “I hereby bequeath to my daughter Mary Yates Staats the house at Ho. 52 Elm Street, now occupied by myself, also all the furniture and house-keeping articles therein for her own occupancy and use, to be held in trust by my executors seven years after my decease.”

It is quite clear that, but for the concluding paragraph of the above quoted provisions of the clause, this daughter would have taken a fee in the real estate. But the court in attempting to give effect to this provision, must read and give effect to all of its parts, and is not at liberty to expunge that part in which the testator attempts to create a trust.

If he had failed in that attempt, we may give effect to the balance of the provisions'of the clause. But has he failed ?

He names his executors as trustees. He gave them an estate for seven years; and names the final beneficiaries. This is all that is required to - create a trust. Greene v. Greene, 125 N. Y., 510; 36 St. Rep., 30.

Iu that case, however, it was held that no trust was created for the reason that the legal and trust estate were sought to be given to the same persons, and that the legal estate dominated and merged the trust estate and no trust was therefore created.

But in the case at bar the trustees and beneficiaries are not identical, and the estate is sought to be suspended for seven years and at the end of that period was to vest in Mary, if living, and if not, in some other person. Clearly by the provisions of that -clause the power of alienation was suspended for seven years.

Suppose we assume that it was not, and that Mary was vested with the title on the death of the testator, and that acting upon that assumption, she during the seven years should assume to a lien or mortgage this real estate, and die before the expiration of the seven years; if this clause is upheld, would not Lydia Anna Staats be in a position to claim a devolution of this property to her, and thus defeat the conveyance made by Mary ? We see no aspect'of this provision of the will in which we can hold that there is not an illegal suspension of the power of alienation, and the vesting of the estate, real and personal, sought to be devised and bequeathed by this clause in the will, and must concur with the trial judge in holding it void.

It is quite clear that the word “bequeathed” as used in this clause, as applied to both real and personal, is used without regard to its technical signification, but that could not defeat the manifest intention of the testator, had there been no illegal suspension of vesting or alienation of the property sought to be passed under the will.

We have carefully read the case and examined the very elaborate brief, furnished by the respondent, and all of the appellants, and fully concur in all the conclusions of fact, or law of the learned trial judge, except as to second disposing clause of the will of .the testator.

The decree should be reversed so far as it declares the bequests in that provision void, and in all other respects affirmed, with costs of the estate to the appellant Barnabas E. Staats, and as to all the other parties, the appeals be dismissed, and the decree affirmed without costs, to either party, as against the other.


author: Ward, J.

text:
    In the Matter of the Application of Robert G. Woods for a Writ of Mandamus Requiring the County Board of Canvassers of the County of Niagara to Correct its Errors in Relation to the Election of School Commissioners in the Second District of said County.

      (Supreme Court, Niagara Special Term,

      Filed November, 1893.)

    1. Elections—Corrections.
    Under § 133, chap. 680, of 1892, the supreme court can only correct such errors as the board itself made.
    2. Same—Board of county canvassers.
    The board of county canvassers has no power to pass upon the constitutionality of a statute.
    3. Same.
    Such board cannot reject any vote that comes to it, certified in due form by the local inspectors as having-been cast at the election.
    Application for a writ of mandamus.

      Richard Crowley and Judge Potter, of counsel for the petitioner Robert Gr. Woods; D. L. Brong, counsel for the resp’ts The Board of County Canvassers, and Mr. Ransom, counsel for 0. N. Hoffman, who was permitted to file an affidavit in the proceeding.
   Ward, J.

This is a proceeding for a mandamus under § 133 of chapter 680 of the Laws of 1892, which, among other things, provides as follows:

“ The supreme court may, upon affidavit presented by any, voter, showing that errors have occurred in any statement or determination made by any county board of canvassers, make an order requiring such board to correct such errors, or show cause why such correction should not be made. If such board fail or neglect to make such correction, or to show cause as aforesaid, the court may compel such board by writ of mandamus to correct such errors.”

At the recent election held on the 7th of November, among the offices to be filled thereat was that of school commissioner for the second school commissioner district in the county of Niagara. The principal candidates before the people, and who had been duly nominated, were the, petitioner Woods, who had been nominated by the republicans, Charles N. Hoffman, who had been nominated by the democrats, and Ruth A. Frost, who liad also received a nomination for that office; that there were voted in said school commissioner district at said election for the office of school commissioner for the petitioner 1,425 votes, and for Hoffman 1,444 votes, and a less number for the lady candidate; that included in and forming a part of the 1,425 votes so voted for the petitioner for said office, there were thirty-nine ballots that had been cast by females, of the kind and description specified in § 2 of chapter 214 of the Laws of 1892, each indorsed “ School Commissioner; ” that included in and forming a part of the said 1,444 so cast for the said Hoffman for said office there were seventy-nine ballots that had been voted by females under the said act, each indorsed “ School Commissioner; that the inspectors of the several election districts in said school commissioner district duly canvassed the vote cast at their respective districts, made proclamation thereof, as required by statute, and certified their returns as required by statute. These returns came duly before the' respondents, the canvassing board of Niagara county, and the returns embraced the 118 votes cast by females as aforesaid.

The canvassing board of the county, in the discharge of its duties, proceeded to make the canvass of the school commission, district as required by law. The petitioner, Woods, appeared before them and protested against their counting or allowing the votes oast by the females, upon the ground that they were invalid. The board disregarded his protest and counted their votes the same as other votes, and made a statament and determination of the election for school commissioner of the second district of all the votes cast for commissioner in that district, and such statement declared that of said votes 1,425 were voted for the petitioner, Woods, 1,444 for the said Hoffman, and 635 for Ruth A. Frost, with some scattering votes, which do not affect the question here, and they also certified and determined that the said Hoffman was duly elected school commissioner for the said district.

It is apparent that had the said female votes been excluded, as the petitioner desired, he would have had a small majority over Mr. Hoffman, and would have been entitled to a declaration of election in his favor. His contention now is that the law under which the females were permitted to vote was unconstitutional, and therefore void; that the votes thus counted that had been given by the females were not votes; that it was demonstated to the board of canvassers by the returns made by the local inspectors just how many such votes there were, and for whom given, and therefore they had the absolute proof that the female votes were cast by persons not qualified to vote, and that they should not have counted them or included them in their canvass and determination of such vote, and that the court on this motion should correct this error, and direct the board to re-assemble and issue a new certificate declaring the petitioner elected.

The reason given why such votes were void is that the statute referred to was unconstitutional and void, and the counsel for the petitioner boldly state that it was the duty of the canvassing board to so have declared and passed upon the constitutionality of this statute.

This is a new question. While numerous authorities were presented to the court covering almost every other question, none were produced affirming the principle that the canvassing board, being merely an administrative body, could exercise the high judicial function, the highest, perhaps, known •to our jurisprudence, of determining the cc nstitutionality of a statute of the state.

By chapter 214 of the Laws of 1892, entitled “ An act to determine those who have a right to vote for school commissioners,” it is provided by § 1: “ All persons, without regard to sex, who are eligible to the office of school commissioner, and have the other qualifications now required by law, shall have the right to vote for school commissioners in the various commissioner districts of the state the second section provided for the registration of such voters, and the third section referred to the duties of inspectors and the separate ballot box, etc.

By chapter 9 of the Laws of 1880 it is provided that: “Mo person shall be deemed ineligible to serve as any school officer, or to vote at any school meeting, by reason of sex, who has the other qualifications now required by law.”

The first question I will consider is, what is the power of the court in this summary proceeding, under the statute of 1892, above given?

The statute provides that the court shall correct the errors of the board of'county canvassers. Can the court go further than to place itself in the position of the board as a ministerial body, without judicial powers, and say what it would have done in the place of said board, or had the right to do ? One of the learned counsel for the petitioner insisted that if the court reached the conclusion that the board erred upon the legal question as to Whether the ballots cast by the women were valid, that the court could direct the reconvening of the board and the certificate to the petitioner, for the reason that the act was unconstitutional, while the board itself might not have the power to pass upon the constitutional question.

This is a dangerous doctrine. There is no usurpation so great as judicial usurpation, and the doctrine, once permitted, that the judge may substitute his judgment and will in the place of the canvassing board, and direct them to do what they had not themselves the power to do, we cannot tell where the mischief will end in the tremendous contests and excitements growing out of the elections in this country. I think the judge can only correct such errors as the board itself made.

This leads to the inquiry as to the power of the board to pass upon the constitutionality of this statute. When was it ever heard or claimed before that a mere ministerial body, composed, not of lawyers, not of judges, but of supervisors of towns and villages not learned in the law, could assume to decide as aforesaid one of the gravest questions that could come before a court of justice?

The courts have spoken upon this question in no uncertain terms, and have held that a ministerial officer can not refuse to perform a duty enjoined upon him by a statute on the ground that the statute is unconstitutional. People v. Stevens, 2 Abb. Pr., 348; Smyth v. Titcomb, 31 Maine R., 272 and 285; Merrill on Mandamus, § 66; People v. Salomon, 51 Ill., 39; Barrett v. Barber, 11 La. Ann., 672.

The court, placing itself in the position of this board, must hold that the board could, not raise this objection. It is no answer for a ministerial board to make in refusing to perform a statutory duty that the statute is unconstitutional, unless it has been so declared by the court of last resort in the state, or at least by an appellate court, after full consideration.

Assuming for the moment that an election board could pass upon the constitutionality of a statute, where would the mischief end ? Into what countless labyrinths and perplexities would it lead us ? These boards are not free from public excitement or political prejudice. In close elections the temptation would be very strong to make a constitutional objection a pretext for almost any wrong, and thus the security of the means by which our elections are declared and certified would be seriously impaired, if not overthrown.

The statute as to counting and certifying the votes of electors for the various offices is very plain and concise. The local inspectors must count the votes they receive and certify them; the county canvassing boards must upon those returns declare the result. They have power to have corrected clerical errors made by the local boards, or send for complete returns under the statute, but the power is nowhere given in the statute for the canvassing board to reject any vote that comes to it certified in due form by the local inspectors as having been cast at the election.

If any other system prevailed, endless controversies would arise before these ministerial boards, which would impede the celerity with which those returns should be brought in and determined, and in many instances make the elections a farce or a fraud, and the courts have with great unanimity sustained the proposition that these ministerial boards must simply follow the statute directing their action, and not assuming in any manner judicial functions in the discharge of their duties.

But assuming for the moment that the court will award a mandamus where a statute is unconstitutional to prevent obedience to it. There must be a clear case, there must be no doubt of its unconstitutionality.

The question of the constitutionality of this law is not free from difficulty, and in view of the importance of the question involved it may not be unprofitable to glance for a moment at-this question without attempting to decide it.

The counsel for the petitioner present upon this argument the opinion of Mr. Justice Williams “ in the matter of the cancellation on the registry list of the names of certain women ” who were registered in the counties of Onondaga and Oneida and claimed the right to vote for school commissioners. The learned judge, in a short opinion, reaches the conclusion that the act of 1893 authorizing women to vote, is unconstitutional, and it is said that several other judges of this court have reached a similar conclusion, and that conclusion seems based upon the definition of an elector in § 1 of article 2 of the constitution as “ every male citizen,” etc., and the provision of § 2 of article 10 of the constitution, which is as follows:

“All county officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of the respective counties or appointed by the boards of supervisors, or other pounty authorities, as the legislature shall direct. All city, .town and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose. All other officers, whose election or appointment is not provided for by this constitution, and all officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the legislature may direct.”

It being conceded that the office of school commissioner was created by the legislature after these constitutional provisions had gone into effect, it is assumed that it comes within the scope of the last portion of the section just quoted, “ all officers that are now or hereafter may be elected by the people.”

There is no doubt but what the school commissioner is an officer, and that he holds an office under the laws of this state, nor is there any doubt but what all the boards of education and trustees of schools and other school officers that are elected by the people at elections are officers, and if the position of the learned judge proves that the school commissioner is within this prohibition of article 10, it goes much further, and affects all other school officers that have been elected at popular elections at which women have voted. The board of education, therefore, of the city of Lockport, which is elected by the voters of the city, women participating, and who appoint the trustees of the various school districts, and whose duties are simply that of school officers, are not legally elected if such election was Contributed to by women.

It is a fact that the great educational interests of this state, especially the common school or free school system of the state, the most important of all systems, the system by which our people are educated, is utterly ignored by the constitution, except in a single paragraph, to be found in § 1 of article 9, which is as follows:

“ The capital of the common school fund, the capital of the literature fund, and the capital of the United States deposit fund, shall be respectively preserved inviolate. The revenue of the said common school fund shall be applied to the support of common schools; the revenue of the said literature fund shall be applied to the support of academies, and the sum of $25,000 of the. revenues of the United States deposit fund shall each year be appropriated to be made part of the capital of the said common school fund,” and is a recognition of an existing school system which the statutes have provided.

Why this significent omission ? The constitution makers evidently designed that the whole common school system should be left untrammeled, both as to its scope and existence, as to the creation of its officers, and as to the methods of educating the people, leaving it to the legislature, as “ the legislative power is absolute and unlimited, except as restrained by the constitution. Bank of Chenango v. Brown, 26 N. Y., 467; People v. Flagg, 46 id., 401.

It may be argued that the constitution no more intended to cripple the legislature in providing the instruments to carry on the education of the people, to wit, its officers, than it had as to its means of raising money for that purpose or providing the general machinery by which the people were to be educated. Therefore it is said that the officers mentioned to be thereafter elected, as provided by § 2, of article 10 of the constitution, has no reference to school officers, but only to such officers as are created for the political relations and divisions of the state, and in regard to the subjects which the constitution in and of itself takes away from the legislature or takes control of in the limited manner indicated by the constitution itself. A school officer, in a city like Rochester, with 150,000 people, elected by the people, in which the women participate, is quite as important an officer as a school commissioner in a rural district with half the population of that city, and yet no question has been made but what women had the right to participate in the election of the city and village officers for school purposes.

The duties of the school commissioner are as strictly confined to the school system and to educational purposes as that of any other school officer, and are a part of the system created by the legislature for the management of the schools.

The supreme court of Michigan, in the case of Eva R. Belles v. William A. Burr and others, reported in 76 Michigan Reports, p. 1, is a case where a married woman brought an action for damages against the election board in the city of Flint, Michigan, for refusing to receive her vote at an election for school trustees in the city of Flint, held, although the constitution of that state provided that at every election every male citizen thereof should be entitled to vote, and there was no provision authorizing females to vote, that she was a legal voter, and .she should have recovered damages, and they put it upon the ground that the same constitution provided that the legislature should provide for and establish a system of primary schools, whereby a school should be kept without charge for tuition, etc., and that a school should be maintained in each school district at least three months in the year, etc., and that the statute having provided for a general common school system and the election of school officers under that provision of the constitution, the school officers which they provided for were not the kind of officers for which male electors could exclusively vote, although in that clause of their constitution, as in ours, the right of suffrage was confined to male citizens.

Now, the only difference between that condition and ours is that our constitution, instead of providing that the legislature should provide a school system, has, by its omission to touch the subject at all, further than above stated, left the legislature free to-act upon that subject. Therefore, this Michigan case is an authority for the position which was taken by the respondents in this proceeding that the women were entitled to vote for school commissioner.

The same position, with a similar constitution as that of Michigan, has been taken by the supreme court of Illinois, in Plummer v. Yost, decided January 19, 1893, and reported in 33 Northeastern Reporter, at page 191.

A proceeding by action in which all the parties are interested can be brought, and the right to this office be tested and these questions fully and deliberately disposed of in the proper place to determine this matter. The court will not in this summary proceeding do so.

The proceedings which elicited the opinion of Judge Williams and others that this statute was unconstitutional, were preventive and taken to strike from the registry the names of the women that had become registered and claimed the right to vote. The very fact that these preventive proceedings were taken (in the face of the certainty that these female votes could be traced not only to those who gave them, but the persons for whom they were given by the canvassing boards) may be a concession that after the votes get into the ballot box they must be treated like other votes by the ministerial boards. What these learned judges would have said upon the state of facts here presented, as to whether a writ of mandamus should issue, is not at all to be determined from their opinions as to the constitutionality of this-law.

The application for a writ of mandamus to the canvassing board must be denied, and the proceedings of the petitioner dismissed, but without costs, as the questions are new, and an order may be1 prepared and entered accordingly.


author: Per Curiam.

text:
    Edward Kelly, App’lt, v. Josiah Partridge, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    Appeal—be-argument.
    A motion for a re-argument will be denied, where no material fact of the case has been overlooked or misapprehended, and the decision stands well upon reason and authority. -
    Motion for re-argument or leave to go to court of appeals.

      Edward S. Johnson, for motion ; George Wilcox, contra.
   Per Curiam.

After-examination of the brief for a re-argument or leave to appeal farther, we are still of the opinion that no material fact of the case- has been overlooked or misapprehended, and that the decision stands well upon reason and sobriety. It is quite obvious that the moving papers fail to comply with the requirements of Rule 16.

Keither the magnitude of the interests nor the importance of the legal questions involved, is such as to justify recourse to the court of appeals.

Motion denied, with costs.


author: Daly, C. J.

text:
    Arthur J. Robbins et al. v. Simon Arendt et al.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    Appeal—Permission.
    Where the questions involved are novel and of general interest, an appeal to the court of appeals may be permitted.
   Daly, C. J.

While I do not doubt the correctness of the decision reached by this court, I am in favor of permitting an appeal to the court of appeals as the questions involved are novel and, as they arise under the mechanic’s lien act, are of general interest to owners of property and mechanics and persons furnishing materials.


author: G-iegerich, J.

text:
    John Kelly, Resp’t., v. Frank T. Walton, App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    1. Contract—Services.
    Under a contract for services at a specified sum per month with privilege to the employe to leave the employ at any time, a recovery can be had for the exact time worked.
    2. Appeal—Conflicting evidence.
    The finding of a justice will not be disturbed, simply because there is a conflict of evidence.
    Appeal by the defendant from a judgment of the district court in the city of JSTew York, for the eighth judicial district, in favor of the plaintiff.
    The opinion states the facts.

      Richard J. Morrison, for app’lt; Robert .Goeller, for resp’t.
   G-iegerich, J.

This action was brought by the plaintiff to recover eleven and one-half days’ wages alleged to have been earned by him as a waiter in the defendant’s hotel. The defendant, by his answer, interposed a general denial. The principal question litigated upon the trial was, whether or not the plaintiff was hired for a specified period of time. The plaintiff and his witnesses testified that he was not hired for any fixed period, that he could leave the defendant’s employ at any time and that he was entitled to compensation for the exact number of days and hours he worked. The defendant and his witnesses, on the other hand, testified that the plaintiff was hired by the month. The justice reached the conclusion, “ that the waiters in the restaurant were paid at the rate of twenty-seven dollars per month, and that the head waiter could discharge them at any time or hour he saw fit, and the waiters would only be paid for the exact time they worked, viz.: so many days and so many hours, as the case might be, and that the waiters could leave at any time of the day or hour of the day they saw fit, and would be paid only for the exact days and hours they worked, at and after the above rate per month.” We think that this conclusion is amply sustained by the evidence.

Inasmuch as the plaintiff could leave the defendant’s employ at any time, the manner and circumstances under which he left it, are, therefore, immaterial upon this appeal.

The only remaining grounds upon which the defendant seeks to reverse the judgment are those involving facts, in respect whereof there is a conflict of evidence. We have repeatedly held that the finding of the justice will not be disturbed simply because there is a conflict of evidence, Lynes v. Hickey, 4 Misc. Rep. (Del.), 522; 54 St. Rep., 120; 24 N. Y. Supp., 731; Weiss v. Strauss, 39 St. Rep., 78 ; 14 N. Y. Supp., 776 ; Dempsey v. Paige, 4 E. D. Smith, 219, and, therefore, we will not interfere with the justice’s determination of the facts herein.

As we are satisfied from a careful consideration of the evidence that the decision of the justice was in all respects correct, the judgment should be affirmed, with costs.


author: Gtegerich, J.

text:
    Charles F. Mattlage, Resp’t, v. David Lewi, App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    Monet paid—Mistake.
    In order to maintain an action for money paid under mistake, it must appear that the defendant has actually received money, or that which the parties have treated as money. That plaintiff has conferred a benefit upon the defendant by reason of such mistake is not sufficient.
    Appeal by the defendant from a judgment of the district court in the city of New York for the first judicial district, rendered upon a trial before the justice thereof without a jury.
    Action to recover moneys paid under mistake.
    The facts are stated in the opinion.

      Fred. 0. Leubuscher, for app’lt; H. Aplington, for resp’t. .
   Gtegerich, J.

The plaintiff, by mistake, paid to the New York Mercantile Exchange the annual dues on a ticket of membership thereof, standing in the name of one W. B. Pope, and held by the defendant as collateral security for a loan. The defendant first learned of the mistake when he offered payment for the dues on said ticket to the superintendent of the said exchange, who informed him that he (defendant) could not pay them a second time, .as they had already been paid by somebody else. Thereafter return of the amount paid by the plaintiff to the said exchange for such dues was demanded of the defendant, who refused to pay the same. This action was then brought. The defendant pleaded the general issue. Upon the foregoing state of facts the justice rendered judgment in favor of the plaintiff, and the defendant has brought this appeal. The judgment, in our opinion, cannot be sustained without a disregard of well settled rules. In order to maintain an action for money paid under mistake, it is not sufficient for a plaintiff t o prove that he has conferred a benefit upon the defendant by reason of such mistake. It must appear that the defendant has actually received money, or that which the parties have treated as money. It is not sufficient that the defendant received a credit in account to which he is not entitled. Keener on Quasi-Contracts, p. 139, and cases cited. See Brundage v. Village of Port Chester, 102 N. Y., 494; 2 St. Rep., 398. In the case at bar the money was not received by the defendant. The mistake was made by persons other than himself, and he did not in any manner contribute to the occurrence of the same.

Applying to this case the foregoing principles, it follows that the judgment should be reversed and judgment absolute for dismissal of the complaint should be directed in favor of the defendant, with costs.


author: Glegerich, J.

text:
    Aaron S. Shapiro, Resp’t, v. Arthur W. McLaughlin et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    Judgment—Pboobs.
    The judgment must conform to the allegations and the proofs.
    Appeal by the defendants from a judgment of the district court in the city of New York for the fifth judicial district, rendered upon a trial before the justice thereof, without a jury.
    The opinion states the nature of the action and the material facts.

      i rederich L. Gilbert, for app’lt; Grossman & Vorhaus, for resp’t,
   Glegerich, J.

This action was brought to recover the sum of $81.25, as a share of a certain expected commission alleged to have been promised plaintiff by defendants. The defendant pleaded a general denial. The testimony of the plaintiff shows that the defendants promised to give him twenty-five per cent of their commissions in case they procured a loan for $25,000 upon, certain real property situate pin this city, the application for which was placed with defendants by the plaintiff in behalf of another; that the plaintiff was to receive nothing in case $26,000 was loaned ; that $25,000 was loaned; that the amount earned by the defendants was $125, out of which the plaintiff should get $31.25, twenty-five per cent, of said .sum. The defendant, Arthur W. McLaughlin, was the only witness called by the defendants; he denied that he ever agreed to pay the plaintiff any part of his commission on the loan in question. The justice rendered a verdict in favor of the plaintiff for twenty dollars damages, besides $3.50 costs.

It is obvious that the judgment' is not consistent with the proofs. Precisely a similar question arose in Fuld v. Kahn, 4 Misc. (Delehanty), 600; 54 St. Rep., 134, and this court decided that the recovery was not secundum allegata et probata.

Applying the principles of the decision in that case to the one before us the judgment should be reversed and a new trial ordered, with costs to abide the event.


author: Bischoff, J.

text:
    Patrick H. Curran, Resp’t, v. Nathan Weiss et al., Appl’ts.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    1. Negligence—Adjoining occupants.
    The lower occupant of a building has a right to rely upon his neighbor's observance of ordinary care and is not bound to guard against its omission.
    2. Pabty—Assignment.
    An assignee, who has the legal ownership of a demand, is entitled to recover upon it, notwithstanding the fact that the assignor expects to share in the recovery.
    Appeal from a judgment for plaintiff recovered in the district court in the city of Hew York, for the first judicial district. Action to recover damages for the negligence of defendants, or their servants, which resulted in the overflow of a water-basin and injury to a stock of merchandise belonging to plaintiff’s assignor, the latter being at the time the tenant and occupant of the lower, and defendants the tenants and occupants of the upper portion of the same building.

      Campbell & Murphy, for resp’t; Louis J. Vorhaus, for app’lt.
   Bischoff, J.

The facts of the overflow and leakage of water from defendants premises to those of plaintiff’s assignor, and damage to the latter’s stock of merchandise, abundantly appear from the evidence and were conceded on the trial. Likewise it appeared on the trial that the overflow was the direct result of the want of repair of. an automatically closing faucet attached to the basin, and by means of which it was supplied with water, and the omission to remove the stopple from the gap of the basin. These last mentioned facts unequivocally established negligence on the part of the defendants or their servants. Killion v. Power, 51 Pa. St. Rep., 429; Moore v. Goedel, 34 N. Y., 527, 532.

Defendants’ assumption that the duty of McKeown, plaintiff’s assignor, to check the supply of water to their premises over night by means of a “cut off” located upon the premises of the latter was wholly unwarranted. McKeown’s lease did not impose such a duty upon him. Heither had he led defendants to believe that he would observe it. Samuel Weiss, one of the defendants, refuted any such inference by his admission that McKeown told him long before the overflow that he would do as he pleased about turning the water on or off. McKeown cannot, therefore, be said to have been guilty of contributory negligence because he failed to check the water supply. He had a right to rely upon defendants’ observance of ordinary care, and was not bound to guard against its omission. Anselment v. Daniell, 4 Mis., 143; 53 St. Rep., 133.

The legal ownership of the demand in suit having been transferred to plaintiff, he was entitled to recover, notwithstanding the fact that the assignor expected to share in the recovery. Sheridan Mayor, etc., 68 N. Y., 30.

Judgment affirmed, with costs.


text:
    Richard Siegman, Resp’t, v. Sarah W. Keeler, App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    Appeal—Re- argument.
    The requirements of rule 16 of general term, common pleas, stated and enforced.
    Motion for re-argument of appeal.
   Per Curiam.

A motion for re-argument is allowed only where it appears that some question decisive of the case, and which was presented by counsel upon the argument, has been overlooked by the court; or that the decision is inconsistent with some statute, or with a controlling decision, to which the attention of the court was not drawn through the neglect or inadvertence of counsel Rule 16, Geni. Term, N. Y. Com. Pis.

The opinion handed down at the time of the decision of the appeal herein, 4 Mis., 528; 54 St. Rep., 125, refutes the claim that either of the grounds above specified exists, and the plain purport of this motion is no other than to secure a second hearing upon the same points and facts which have been exhaustively examined and discussed in the opinion of the court.

Motion for re-argument denied, with costs.