text:
    Yette Reich, as Administratrix, etc., Resp’t, v. Henry A. Peck et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Appeal—Conflicting evidence.
    A verdict, on conflicting evidence, will not be disturbed, unless the preponderance of evidence is so great as to indicate that it was induced by passion, prejudice or misapprehension.
    2. Negligence—Imputable.
    It is not a proper case for the application of the rule of imputable negligence, where the facts are insufficient to show that the deceased was in any way responsible for the conduct of his associates.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.

      Jos. K. Murray, for app’lts ; George A. Mott, for resp’t
   Dykman, J.

The plaintiff in this action is the widow and administratrix of Marcus Reich, deceased, and this action is brought to recover the damages resulting from his death. While the deceased was fishing from a small boat at anchor in Hempstead harbor with two other men, the boat was run down and upset by a schooner belonging to the defendants, and then sailing in the harbor under direction of a captain in the defendants’ employ, and the intestate of the plaintiff was killed. Two questions were involved in the trial of the case: First, whether the deceased was guilty of negligence which contributed to the catastrophe; and, second, whether his death was caused by the mismanagement and negligence of the captain of the vessel. There was testimony introduced on the part of the plaintiff which tended to show mismanagement and carelessness on the part of the captain, and the testimony offered on behalf of the defendants tended to show that the schooner was carefully and properly managed, and that she would have cleared the small boat if a sudden gust of wind had not struck her when she was near it, and driven her upon it. The questions were properly submitted to the jury, and the plaintiff obtained a verdict for $4,500. The defendants have appealed from the judgment, and also from the order denying a motion for a new trial on the minutes of the court; but it is not a case for the interference of an appellate court. It cannot be said that the evidence on behalf of the defendants predominates. The testimony of the captain of the schooner seems to be sufficient to exonerate him from blame; but it was submitted to the jury, and failed to secure the adoption of that body of fact triors. We cannot reverse because we think the verdict might have been the other way. Where no rule of law is violated, and the verdict is supported by testimony, and the preponderance of evidence is not so strong the other way as to indicate the presence of passion, prejudice or misapprehension, the verdict must stand.

The counsel for the defendants requested the trial judge to charge the jury that, “if there was any negligence by his companions in the rowboat which contributed to the accident, such negligence is chargeable, as matter of law, to the deceased, and the plaintiff cannot recover.” That request was denied, and there was an exception. It did not appear from the evidence who owned the boat, or whether it was hired, or how the men came together, or what part each took in the management of the boat, further than that the deceased was in the middle of the boat and did the rowing, Rahm,dropped the anchor, and Riguet was told not to mind anything, and just to sit in the stern of the boat. The facts are insufficient to show that the deceased was in any way responsible for the conduct of his associates in the boat, and it .is not, therefore, a proper case for the application of the rule of imputable negligence. We detect no error in the record, and the judgment and order denying the motion for a new trial should bé affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    William M. Peard, App’lt, v. City of Mt. Vernon, Resp’t.

      {Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Municipal corporations—Obstruction in street.
    A city is not liable for injuries resulting from the obstruction of a street by snow thrown from the sidewalks and car track, where the authorities . could not, by the exercise of ordinary care and diligence, have removed such obstruction.
    Appeal from a judgment dismissing the complaint.

      Joseph S. Wood, for app’lt; David ¿¡wits, for resp’t.
   Dykman, J.

This is an action for negligence, based upon the following facts: First street in the city of Mt. Vernon runs east and west, and through the center is laid a single-track horse railroad. The street is forty-seven feet wide, exclusive of the sidewalk. From the curb on the south side of the street to the south rail of the railroad it is ten feet, between the rails there is a space of about five feet, and from the north rail to the north curb the space is about 32 feet. The winter of 1892 and 1893 was very severe, and during that winter the railroad company had removed the snow, as it fell, from its track, and heaped up a mass of snow on both sides of its tracks. During the two weeks preceding the accident there were snowstorms and frequent rains, which froze as they fell. The snow was banked up from the- railroad and sidewalk upon the street, and at the time of the accident there was an accumulation of snow and ice which had been frozen together for some time. At the place of the accident the bank was about fifteen inches high. The plaintiff in his testimony said: “As a matter of fact, the entire length,of the street, on the 8th day of March, on each side of the car track, was banked up by a large embankment of snow and ice-frozen solid. When I entered the street, I saw it was in a bad condition.”

On the 8th day of March, 1893, the plaintiff was riding in a surrey along First street, going east, on the north side of the railroad. His vehicle was drawn by one horse, which was driven by a driver. There was an empty coal wagon a few feet in front of the plaintiff’s carriage, and the plaintiff’s driver undertook to pass the coal wagon on its right. When the head of the plaintiff’s horse reached the hind wheel of the coal wagon, the driver of that wagon started his horse on a trot, and the horse of the plaintiff started suddenly aside. That sudden movement caused the horse to slip, and in his struggles to regain his feet the hind wheels of the surrey were forced upon the tracks of the railroad. The surrey was overturned, and the leg of the plaintiff was broken. The cause was tried at the circuit, where the plaintiff was nonsuited, and he has appealed from the judgment entered against him.

The snow which had accumulated in the street where the plaintiff received his injuries had been thrown from the bed of the railroad and from the sidewalk. It had been solidified by the falling rain, which froze as it fell, and it had become a solid, compact body of snow and ice. The railroad company is a legally organized corporation, possessing a charter right to operate its railroad through the street in question. Not only has it such right, but it is under a legal obligation, to do so in the interest of the public. Where the end is required, the means are authorized. As the railroad corporation is required to move its cars over the road, it is authorized to remove the snow from the track to prevent its obstruction, and enable it to operate its road. Such right is analogous to the duties of owners of property upon a street in a city, or village. Both are under obligations to remove the snow,—the one from its tracks, and the other from his sidewalk. Dixon v. Brooklyn City & N. R. R. Co., 100 N. Y. 170. In the severe winters of this climate, however, it not unfrequently happens that the sidewalks of a city or village are suddenly covered with ice which it is not practicable to remove; and in such a case neither the owners nor the municipal authorities are guilty of negligence if they await the return of mild weather to dissolve the ice, and relieve the street. Taylor v. City of Yonkers, 105 N. Y. 206; 7 St. Rep. 332. There is no reason why that rule should be extended in this case. It was lawful and proper to throw the snow from the sidewalk and the railroad into the street; and during a week or two prior to the accident there used to be snowstorms almost every day, and frequently rain, which froze as it fell. “ It was a very severe winter.” And the street, from the north rail of the railroad to the curbstone, was filled with solid snow and ice at least fifteen inches deep. So, we have the case of a constant accumulation of snow and ice for about two weeks previous to the accident, without proof of any intermission between the storms. In fact, the positive proof that there had been falls of snow and rain every few days leads to the conclusion that the intervals between the storms were quite limited in duration. There had been no opportunity to remove the obstruction subsequent to its accumulation, even if its removal had been practicable; but with the resources available, and the diligence exacted by the law from municipal corporations, it was entirely impracticable. The removal of the solid mass of ice which rested upon the street would require time which was not allowed, and an expenditure of money beyond the resources available for that purpose. During our inclement winters the streets of cities and villages of this state are obstructed as this one was, and accidents resulting therefrom are chargeable to natural causes, unless it is made to appear that they have been negligently permitted, or could have been obviated by the exercise of ordinary care. We have already seen that no ordinary care could have preserved this street from ice and snow which accumulated therein, and it follows, therefore, that the plaintiff failed to prove a breach of duty on the part of the defendant. Without proof of such breach, there could be no recovery. In the opinion in the case of Kaveny v. City of Troy, 108 N. Y. 571; 14 St. Rep. 18, are these words: “ Something more-than the presence of ice, due to the results of a low winter temperature, must be shown to make the city chargeable with negligence. The fact that for more than ten days preceding the accident to the plaintiff the mercury had been below the freezing-point was established without contradiction, and that the city did not accomplish impossibilities or display unreasonable and extraordinary diligence furnishes no ground of liability.”

That language is applicable and appropriate in this case. Here, the stormy and inclement weather prevailed for two weeks before the accident, and the ice in the street was entirely due to a low winter temperature. Municipal authorities are not insurers of travelers on the public ways, and they are not required to meet, every emergency. There duties are not imperative. They are required to do no more than to exercise ordinary care and use ordinary diligence in any situation where they may be placed. The cases of Kaveny v. City of Troy, 108 N. Y. 575; 14 St. Rep. 18; Taylor v. City of Yonkers, 105 N. Y. 206; 7 St. Rep. 332, and Harrington v. City of Buffalo, 121 N. Y. 147; 30 St. Rep. 719, are sufficient authority for the statements in the foregoing opinion.

The judgment should be affirmed, with costs.

All concur.


author: Dykeman, J.

text:
    Elizabeth Holz, Resp’t, v. Woodside Brewing Company et al., App’lts. (Two cases.)

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Bills and notes—Indorsement.
    Evidence that an indorsement on a note was made to secure a credit for the maker with the payee, is sufficient to overcome the presumption that the payee was the first indorser.
    Appeal from a judgment, entered on a verdict in favor of plaintiff in each case.

      AT. Hallheimer, for app’lts; Jaclcson & Burr {Jas. A. Burr, of counsel), for resp’t.
   Dykeman, J.

These two suits are brought upon promissory notes made by the Woodside Brewing Company, payable to the order of the plaintiff, for $1,000, and indorsed by the four other defendants. Both notes bear the same date, and are alike in all respects, except the time of payment. The note in action No 1 was payable in one year, and the note in action No. 2 was payable in fifteen months. The complaint in both actions averred that the note was indorsed by the four defendants for the purpose of obtaining credit for the maker upon the note, and the proof upon the trial fully sustained the allegations. A verdict was directed by the trial judge in favor of the plaintiff in both cases, and the indorsers have appealed from the judgment entered in both cases.

Much learning has been displayed in the consideration of the liability of the indorsers of promissory notes made in form like the notes upon which these suits are prosecuted. It was ever a principle of commercial law that indorsers of promissory notes became liable upon their indorsements in the order of the appearance of their names upon the back of the paper, the person to whose order the paper was payable being considered as the first indorser, and the maker being liable to all the indorsers. The earlier cases in this state where notes like these fell under the consideration of the supreme court evince an effort to hold the indorsers liable in a character which they did not assume, and to an extent which the form of the paper did not justify. Commencing with the case of Herrickc v. Carman, 12 Johns. 160, such indorsements were treated as guaranties, and such indorsers were treated as guarantors or makers, until the case of Hall v. Newcomb, 3 Hill, 234, and 7 Hill, 416, where the principle was declared erroneous, and the previous cases were overthrown. Since that time the decisions have been in harmony with the principles which underlie the relative obligations of the different parties to promissory notes, and the contract which the law writes over the name of every person who places his name upon such paper. Lawful obligations are incurred by the voluntary assumption of legal liability. They may be either expressed or implied. A person may write his name upon a note in silence, and then the liability which he incurs is implied from the position his name occupies upon the paper. He is presumed to place his name with reference to the responsibility which the law attaches to the position, and it is beyond the dominion of the law or the courts to augment or dominish the burden he assumes. When, therefore, a person indorses a promissory note which contains in its body the name of another as payee, he incurs the liability of a second indorser, because that is the implication of the law from the position of his name, and no other or greater liability can be imposed upon him. Our views upon that subject are expressed quite fully in the case of Strong v. Sheffield, 66 Hun, 349; 50 St. Rep. 665. If, therefore, the liability of the indorsers and the rights of the plaintiff were measured by the note alone, she could not recover against them, because their names would appear subsequent to her name on the note if it was placed in its regular order, in blank thereon ; and, by paying the note, either of the indorsers could demand payment from her upon her previous indorsement. Such is the effect of the decisions in the cases which are quoted upon the brief of the appellants. But the proof introduced by the plaintiff has removed this case from the domain of such decisions. The action whs brought by the plaintiff as holder of the paper in question, and the production of the note was prima facie evidence of her title thereto; but it became necessary for her to repel the inference arising from the form of the note. To meet that necessity, proof was introduced to show that neither of the indorsers could maintain an action against the plaintiff as first indorser. That proof was made by proving that the notes in suit were given to retire a note of $5,000, made by the Woodside Brewing Company to the plaintiff, upon which an action was about to be commenced, and to obtain an extension of the time of payment for the larger portion of that note, and to prevent the suit upon the same ; that a payment of $1,000 and the accrued interest were delivered to the plaintiff, and accepted by her, as a settlement; and that she thereupon delivered the old note to the attorney for the brewing company. That evidence was sufficient to overcome the presumption which, as we have stated, would arise against the plaintiff from the form of the note, and to show that the indorsers were, privy to the consideration between .the maker of the note and the plaintiff, and never expected nor intended that the plaintiff should be responsible to them for the payment of the note in any event. The evidence further showed that the defendants who indorsed the notes did so to secure a further credit for the brewing company, and the extension of the credit and the surrender of the old note were a sufficient consideration for the making and indorsement of the new notes. The relation between the plaintiff and these indorsers is the same in legal effect as it would have been if the plaintiff had been an accommodation indorser for them. Moreover, had the plaintiff indorsed these notes without recourse to her, such indorsement would have •carried out the intention of the parties, and then the notes would no longer yield aprima facie presumption of liability of the plaintiff to the other indorsers, as we have seen they otherwise did. Moore v. Cross, 19 N. Y. 229. The foregoing views are sustained by the cases of Coulter v. Richmond, 59 N. Y. 478; Meyer v. Hibsher, 47 N. Y. 268; McPhillips v. Jones, 73 Hun, 516; 56 St. Rep. 164. The judgment should be affirmed in both cases, with costs.


text:
    The People, Resp’t, v. Orrin Friday et al., Def’ts.

      (Supreme Oourt, General Term, Second Department,

      Tiled December 10, 1894.)

    Appeal—Cbiminal cases.
    A conviction, secured on the testimony of a witness, who claimed at the time of the trial that he was innocent, but afterwards plead guilty under indictment for the same offense, will be reversed.
    Appeal from a judgment of conviction for burglary in the third degree.

      A. M. & G. Card, for app’lt; Horace D. Hufcut, Dist. Atty., for the People.
   Dykman, J.

These three men were indicted by the grand jury of Dutchess county for burglary in the third degree. The specific-allegation in the indictment was that on the 2d day of January, 1894, they feloniously broke open the henhouse of John W. Free,, with intent to steel his goods and chattels, and did steal and carry away 80 barnyard fowls, of the value of $50. Orrin Friday was tried separately on the 6th day of August, 1894, and was convicted and sentenced to the state prison for two years. Upon his trial, John Bruce was called as a witness by the people, and testified that Friday came to his house in the morning of January 3d, about 4:30 o’clock, with a load of bags containing chickens, and that he (Bruce) had nothing to do with it (meaning the stealing of the chickens). The next morning Bruce withdrew the plea of not guilty which he had previously interposed to the indictment, and pleaded guilty thereto. Bruce requested the court to suspend sentence upon him, because he had testified against Friday upon his trial, and aided in convicting him. To that request the court-replied “ that he should consider it; that he could not see how a man could swear one day that Friday was the guilty party, and after Friday was convicted, that he should then plead guilty, and ask for sympathy from the court.” The court did, however, reverse the sentence upon Bruce. Thereupon Friday and his lawyer made affidavits reciting the foregoing facts, and his counsel made a motion to the court for a new trial thereon. The motion was-denied, and the defendant has appealed from the judgment of conviction, and from the order denying the motion for a new trial.

It will be convenient to consider first the appeal from the order. 'It is by no means certain that the defendant would have been convicted without the testimony of Bruce. If the case had been sent to the jury destitute of that evidence, it would have been quite weak and doubtful. Starting with the conceded guilt of Bruce, the circumstances might have received an explanation consistent with the innocence of Friday. The chickens were found in the, house where Bruce resided, although it belonged to Friday, and he had the use of a room or two in the house. That fact, therefore, weighs as heavily against Bruce as it does against Friday. The fact that there were feathers in the top of the boot of the defendant ou the day of his arrest is entitled to only slight consideration, especially as it does not appear what kind of feathers they were, further than that there was one large feather. There were feathers in the room where the chickens were found, and the defendant was there. These feathers may have adhered to the boots there. Moreover, there were feathers in the court room, where the feathers adhered to his boot. There was a square box wagon at Bruce’s place, with blood on the axle and running gear, and the defendant had such a wagon. It is fair to assume that the chickens were brought to the house in that wagon, but that assumption does not aid us, as our inquiry relates to the person who did the business. So the least that can be said in favor of the defendant is that, without the testimony of Bruce, the case made against, the defendant would have been doubtful, and he had a property right in the doubt of which he has been deprived. The case went to the jury with the testimony of Bruce that he was innocent, but with his guilt established the case presents a very different aspect. The testimony and the surrounding circumstances point much more directly to Bruce than they do to Friday. As the defendant must be allowed the benefit of doubts in all stages of his case, and as we conclude that there will be a doubt about his guilt with the conceded guilt of Bruce, we think he should be allowed an opportunity to present his case to the jury upon the facts as they exisl, unclouded by the false testimony of Bruce.

In view of our conclusion to grant a new trial'upon the motion of the defendant, it is not necessary to make an extended examination of the appeal from the judgment. The evidence, as it stood with the testimony of Bruce, was sufficient to support the verdict, but the record discloses this occurrence upon the trial: Jacob Osterhout was a witness for the prosecution, and in his direct examination, in speaking of an interview he had on the 3d day of January — the day after the larceny—with Judson Friday, the son of the defendant, who was indicted with his father, the witness said: “ He looked like a boy who had just come out of a hen roost. Q. What do you mean by that ? A. He looked sneaking, if you know how that is. (Defendant moves to strike out his answer about looking sneaking. Motion denied. Exception.) ” The first exclamation seems to have been voluntary, and the responsibility for it rested only upon the witness, and, if promptly stricken from the record, it might have been harmless; but when the public prosecutor eluded an explanation or further opinion, it was little less than an outrage upon the rights of a man undergoing a criminal prosecution. It is impossible to suppose the remark harmless, for it was palpably harmful. The jury may well have assumed it to be legitimate proof, and the description would present a hideous picture to the mind of any juror. We think the exception presents an error which is fatal to the conviction.

The judgment of conviction and the order denying the motion for a new trial should be reversed, and a new trial granted.

All concur.


author: Brown, P. J.

text:
    Merritt A. Jones, Resp’t, v. Charles H. Butler, App’lt.

      (Supreme Court, General Term, Second Department,

      Mled December 10, 1894.)

    Costs—Interlocutory judgment.
    Upon entry of interlocutory judgment sustaining a demurrer witli leave to plead anew, the costs will he limited to proceedings after notice and before trial and a trial fee.
    Appeal from an order and interlocutory judgment sustaining the demurrer to portion of the answer, and from an order denying a motion to retax costs.

      Geo. 0. Holt, for app’lt; Henry L. Brant, for resp’t.
   Brown, P. J.

The questions raised by the demurrers in this action were decided by this general term adversely to the defendant’s contention in Jones v. Mail & Ex. Publishing Co., 62 St. Rep. 61; 30 N. Y. Supp. 335. We are of the opinion, however, that in the taxation of costs the plaintiff was properly allowed the item for proceedings before notice of trial. The judgment is interlocutory and not final. The defendant is allowed to amend his answer. When the case if finally determined, if plaintiff succeeds, he will be entitled to that item; but, upon sustaining a demurrer with permission to plead anew, costs should be limited to those allowed for proceedings after notice and before trial, and a trial fee. Kniering v. Lennon, 51 St. Rep. 907; 22 N. Y. Supp. 775; Thompson v. Stanley, 22 N. Y. Supp. 897. There is a conflict of authority on this question, but we approve the ruling in the cases cited.

The judgment should be affirmed, with costs, with leave to the defendant to amend his answer in twenty days on payment of costs; and the order denying a retaxation should be reversed, with ten dollars costs, and the clerk directed to retax the costs by striking out of the plaintiff’s bill the item of twenty-five dollars for proceedings before notice of trial.

All concur.


text:
    Broadway Savings Institution of the City of New York, Resp’t, v. Town of Pelham, App’lt.

      (Supreme Court, General Term, Second Department,

      Mled December 10, 1894.)

    1. Towns—Certificates of indebtedness.
    In an action on a certificate of indebtedness, the town may show that it was issued in excess of the amount authorized by chap. 193 of 1877, and that the signatures thereto were forged.
    3. Same.
    A purchaser of such an instrument, though in good faith, must see to it that it is authorized by the statute under which it purports to have been issued.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.
    This action was brought to recover the amount of eight certificates of indebtedness of the town of Pelham, purporting to have been issued in accordance with the provisions of chap. 193, Laws 1877, entitled “ An act" to amend chapter 610 of the Laws of 1874 entitled an act-to authorize the sale of lands for the nonpayment of taxes and for the collection of unpaid taxes in the several towns of the county of Westchester.” This statute required collectors of taxes of 'the towns of Westchester county, within ten-days after the expiration of their warrants, to make and deliver to the supervisors of their respective towns a sworn statement of the amount of taxes remaining unpaid at the expiration of their warrants. Upon receiving from the collector such a statement, the supervisor was required, on or before the 1st day of May next after such return, and under the direction and authority of a board of town officers consisting of the supervisor, the justice of the peace, and the town clerk, or a majority of them, to borrow, upon the credit of the town, a sum not exceeding the amount of the unpaid taxes so returned. For the sum so borrowed he was authorized to issue certificates of indebtedness of the town, signed by himself, and countersigned by the town clerk. The town clerk was directed to keep a record of the certificates and of their amounts and times of payment. Three of the certificates in suit bore date April 23, 1892, and were sold to the plaintiff on the 28th of the same month. The balance of them bore date of May 18, 1892, and were sold to the plaintiff on that day. Each certificate recited that it was issued in accordance with the provisions of the statute above referred to, and was signed by the supervisor of the town, and purported to have been countersigned by the town clerk. The answer of the town denied the allegation of the complaint in reference to the execution of said certificates and their delivery to the plaintiff, and alleged that no authority for issuing them was ever given by the proper town authorities as 'required by the statute; that the amount was largely in excess of the unpaid taxes for the year for which they purported to have been issued, and that certificates for the correct amount had theretofore been issued by defendant, and sold and paid, and that the signatures upon the certificates purporting to be that of the town clerk were forgeries. Upon the trial the court excluded all testimony offered to prove the allegations of the answer, and directed a verdict for the plaintiff for the full amount claimed. From the judgment entered upon the verdict this appeal was taken.

      Martin J. Keogh, for app’lt; William H. Robertson, for resp’t.
   Brown, P. J.

In excluding the testimony offered by the appellant the court decided that the facts pleaded in the answer were immaterial to the controversy between the parties, and, if proved, would not have constituted a defense to the action. In substance it held that the town was bound by the recital in the certificates issued by the supervisor, and by his representations as to the genuineness of the signature of the town clerk. We may therefore examine the case upon the assumption that, if the evidence offered by the appellant had been admitted, the jury would have determined the facts to be as set forth in the answer, and for the purposes of this appeal we shall presume that the several certificates sued upon were issued without authority or direction of the board of town officers named in the statute; that the signature of the town clerk thereto was forged; that the aggregate amount of the certificates sold to plaintiff was largely in excess of the unpaid taxes for the year 1891, and that for the actual amount of unpaid taxes for that year genuine certificates had been issued and sold and paid by the town. The proposition that the recitals in the certificates were conclusive upon the appellant as to the-facts therein stated cannot be sustained under the decisions of this state. So much has been written in the judicial opinions on this subject that it is unnecessary to do more than cite the authorities, and in our own state it is settled that one who purchases instruments of the character of those in suit, although he does so in good faith, must see to it that they are authorized by the statute under which they were purported to have been issued. Starin v. Town of Genoa, 23 N. Y. 439; People v. Mead, 36 N. Y. 224; Town of Venice v. Woodruff, 62 N. Y. 463; Cagwin v. Town of Hancock, 84 N. Y. 532; Craig v. Town of Andes, 93 N. Y. 405. The facts are also insufficient to bring the case within the rule applied by the supreme court of the United States in the cases cited.by the plaintiff. Commissioners v. Aspinwall, 21 How. 541; Town of Coloma v. Eaves, 92 U. S. 484; Northern Bank of Toledo v. Porter Tp. Trustees, 110 U. S. 608. In those cases it was decided that the facts which a municipal corporation issuing bonds was not permitted against a bona fide holder to question in face of a recital in the bond of their existence were those connected with or growing out of the discharge of the ordinary duties of its officers as were invested with authority to execute them, and which the statute conferring the power made it their duty to ascertain and determine before the bonds were issued. Northern Bank of Toledo v. Porter Tp. Trustees, p. 617, 110 U. S. In Anthony v. Jasper Co., 101 U. S. 693, it was said: “ Purchasers of municipal bonds are charged with notice of the laws of the state granting power to make the bonds- they find on the market. This we have always held. If the power exists in the municipality, the bona fide holder is protected against mere irregularities in the manner of its execution, but, if there is a want of power, no legal liability can be created.”

I know'of no authority in that court to the effect that a municipal corporation is not permitted to assert and prove against a bona fide holder of its bonds the fact that they were not authorized by any legislative authority. In Northern Bank of Toledo v. Porter Tp. Trustees, supra, the authority of the township to make a subscription to the railroad was, by the statute, made dependent upon the fact that county commissioners had not been authorized to make a subscription, The bonds in suit recited that they had been issued “ in pursuance of the provisions of the several acts of the general assembly of the state of Ohio, and of a vote of the qualified electors in said township,” and it was contended by the plaintiff that the town was estopped by that recital from asserting as a defense the fact that the condition upon which the authority of the town to make the bonds depended did not exist. The contention was overruled, and the bonds were declared invalid, the court saying: “ The question of legislative authority in a municipal corporation to issue bonds cannot be concluded by mere recitals.” When an instrument refers on its face to a statutory power, every holder is made chargeable thereby with notice of the statute and its limitations. The rule of law governing cases of this character is very clearly stated in the case of The Floyd Acceptances, 7 Wall. 676, as follows: “In each case a person dealing with the agent, knowing that he acts only by virtue of a delegated power, must, at his peril, see that the paper on which he relies comes within the power under which the agent acts. And this applies to every person who takes the paper afterwards, for it is to be kept in mind that the protection which commercial usage throws around negotiable paper cannot be used to establish the authority by which it was originally issued. Whenever negotiable paper is found on the market, purporting to bind the government, it must necessarily be by the signature of an officer of the government, and the purchaser of such paper, whether the first holder or another, must, at his peril, see that the officer had authority to bind the government.”

In numerous cases the supreme court of the United States have held that mere informalities or irregularities in the fulfillment of a condition precedent to a grant of power to an agent, or in the exercise of that power, when granted, would not render the bonds invalid in the hands of an innocent holder; but no case has gone to the extent of upholding the bonds when there was a total want of power in the agent who issued them. The rule applied by that court is limited to instances in which the officer issuing the bonds is also permitted by the statute to determine whether a fact made a condition precedent to the exercising of his power exists. .In such a case his recital is a decision, and binds the municipality..

Authority to issue the certificates in suit depended (1) upon a return by the town collector of unpaid taxes to the supervisor ; (2) a direction to the supervisor from the board of town officers named in the statute to borrow upon the credit of the town a sum not exceeding the amount of unpaid taxes. Those were conditions precedent to the power of the supervisor to act, and, unless both concurred, the supervisor was without legal authority to borrow money upon the credit of the town, and to issue its certificates of indebtedness. Neither fact existed in this case, and consequently the .certificates were void. The recital in the certificates that these conditions existed could not bind the town under the rule applied in the supreme court of the United States, for the reason that neither the supervisor nor town clerk was charged by the statute with the duty of determining those facts. If the condition did not exist, then the power granted by the statute did not become operative, and it could not be said that there was legislative authority for the borrowing of the money. On this precise point the distinction exists between the case at bar and Gifford v. Town of White Plains, 25 Hun, 606, upon which plaintiff relies. In' Gifford's Case the condition required by the statute existed. There was a return by the collector, and a direction by the town board to the supervisor to borrow the money. But the amount named in the resolution of the town board was subject to reduction by the supervisor to the extent of the amount of money in his hands applicable to the payment- of the unpaid taxes. What that amount was no one knew but the supervisor, and he necessarily, by the resolution of the town board, was made the person to-determine it. Issuing a certificate in proper form was held to be-equivalent to a determination by the supervisor that he had not exceeded his authority. It was a decision which bound the townr and so long, therefore, as the total amount* of the certificate did not exceed the amount authorized by the town board, or tho amount stated in the collector’s return, a bona fide purchaser of the certificate was protected. And the plain distinction between, the two cases is that in that case there was legislative authority and in the case before us -there is none.

The statute further made it the duty of the town clerk to keep a record of the certificates, and the amount and time of their payment. This record was open to inspection, and an examination of it would have disclosed to the plaintiff the fact, not only that the particular certicfiates in suit were unauthorized, but also that the-power of the town officer had been exhausted by borrowing the-actual amount of the unpaid taxes upon other genuine certificates. We think the plaintiff is chargeable with notice of this provision of the statute, and its failure to make an examination of the record deprives it of the standing of an innocent holder of the securities. Thompson v. Town of Mamakating, 37 Hun, 400; Id., 106 N. Y. 674; 11 St. Rep. 881. In respect to the amount of the certificates, no distinction can be drawn between the case at bar and that last cited. In that case it appeared that the town was authorized by statute to issue bonds to the amount of $175,000. The bond sued upon was in excess of that amount, and had been issued by mistake. Although the plaintiff was a purchaser for value, without notice of the defect, the right to- recover was denied upon the ground that he was chargeable with notice of the limitation put by the statute upon the power of the town commissioners, and was bound to ascertain, at his peril, that all the conditions requisite to the execution of their power had been observed and performed. In this case, if it had appeared, as defendant offered to show, that the total amount'of unpaid taxes for the year 1891 was less than $3,000, the plaintiff, under the authority of the case cited, was chargeable with notice that the certificates, amounting to $4,000, purchased on the 18th of May, were unauthorized by statute, and were, for that reason, void.

We are of the opinion that the evidence offered by the appellant to sustain the allegation of the answer was admissible, and if the facts therein alleged, and which we have assumed in this opinion to be true, had been established, the conclusion would necessarily have followed that the certificates were void. The conclusion we have reached renders it unnecessary to consider the question as to the forgery of the town clerk’s signature. If the condition did not exist under which the legislature had alone authorized the town to borrow money and issue certificates, the genuine signature of the town clerk, if signed to them, could not give to them validity.

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

All concur.


text:
    Thomas L. Storm et al., as Trustees, etc., Resp’ts, v. New York and New England Railroad Company, App’lt.

      (,Supreme Gourt, General Term, Second Department,

      Filed December 10, 1894.)

    Appeal—Judgment.
    Where the facts decided by the court are within, the issue made by the pleadings, but the proper judgment has not been rendered thereon, the appellate court has power to modify the judgment and conform it to the facts proven.
    Appeal from a judgment in favor of plaintiff.

      Walter G. Anthony, for app’lt; Haclcett & Williams, for resp’t.
   Brown, P. J.

This action was brought in equity to restrain the appellant from using its tracks across land claimed to be owned by the plaintiff, and to compel the removal of the same, and to recover damages for the trespass. In its answer the defendant prayed that, in case the complaint was not dismissed, the court would fix the amount which the plaintiff was entitled to recover for past and future damages, and direct that on payment thereof the plaintiff be decreed to deed to defendant the lands occupied by it, and which were the subject of the action. The case was brought to trial at special term, and the court found that the difference in the value of the land with and without the railroad was $1,500; and it awarded plaintiff judgment for that sum and costs, and provided that if it was not paid the plaintiff might bring an action of ejectment against defendant for the land. The appellant does not now dispute the plaintiff’s title, or claim that the damages are excessive. Its claim is that the court should have assessed the damages as for a trespass solely, and that the award of the value of the land taken was erroneous. The facts decided by the court were within the issue made by the pleadings, and if the proper judgment had been rendered the appellant would have no cause for complaint. The court has power, upon this appeal, to modify the judgment, and conform it to the facts proven, and this should now be done. The judgment should be modified so as to provide that, upon payment of the damages within 30 days after service of a feopy of the judgment, plaintiff convey to the defendant—by deed to be approved, as to form, by a justice of the court—the land occupied by it, and that, in case the damages are not paid within the time aforesaid, plaintiff have leave to maintain an action in ejectment to recover the land, and that, so modified, the judgment be affirmed, without costs of appeal.

All concur.


text:
    Hiram Farrington, App’lt, v. Mayor, Aldermen and Commonalty of the City of New York et al, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Orders—Conclusiveness.
    An order, confirming the report of aqueduct commissioners, is conclusire upon the parties and cannot be collaterally attacked.
    Appeal from an order, sustaining the exceptions to and overruling the referee’s report, and directing payment of the award.

      Francis Larkin, for app’lt; Jas. B. Lockwood, for resp’t.
   Brown, P. J.

The order appealed from has determined that the respondent is entitled to an award made to the appellant, by commissioners of appraisal appointed pursuant to chapter 490 of the Laws of 1883, for land taken for the purposes of the aqueduct constructed to supply the city of New York with water. The award was made in a report dated August 18, 1891, and was confirmed by an order of the supreme court dated October 24, 1891. The land taken was a part of a farm owned, at the time of the appointment of the commissioners, by Nathan L. Culver, and upon which the petitioner held a mortgage. The statute referred to vested the title to the land proposed to be acquired for the aqueduct in the city, upon the filing of the oath of the commissioners of appraisal. The oath was filed in October, 1884, and shortly thereafter Culver conveyed the farm to the petitioner. Both parties filed claims before the commission, and appeared before them by counsel. In 1884 Culver died. The commission assessed the value of the land taken and all damages sustained at the sum of $1,444, and awarded $100 to Culver, and the balance to the petitioner.

The petition states that the city of New York, having been forbidden paying said award to the petitioner, paid it to the Mercantile Trust Company. The petitioner thereupon moved at special term for an order directing the trust company to pay said award to him. This motion was opposed by the respondent, who is Culver’s administratrix, and the court determined that she was entitled to have the whole award paid to her. Without expressing any opinion upon the merits of the controversy, we are of opinion that the order confirming the commissioners’ report is conclusive upon the rights of the parties, and that the remedy of the respondent, if she felt aggrieved by the report of the commissioners, was to appeal from the order confirming it, and that while such order stands unreversed no inquiry can be made collaterally into the respective rights of the parties. The statute referred to requires the commissioners of appraisal to make a report containing a description of the real estate taken, and a statement of the sum determined upon by them as compensation to be paid by the city to the owner or persons entitled to or interested in each parcel taken, and a statement of the respective owners or persons entitled thereto. § 12. The counsel for the city, or any person interested in the proceeding, was authorized to move for the confirmatian of said report, and to give notice therefor. § 14. Upon confirming the report, the court was required to direct to whom the money was to be paid, and it was further provided that the report, when confirmed, should be “ final and conclusive as well upon the mayor, etc., of Hew York as upon owner and all persons interested in or entitled to said real estate whomsoever.” § 15. The city was required to pay to the respective persons named in said report, in whose favor any sum was reported, the sum so reported, within four months after the confirmation of the report, and in default of payment, and after demand upon the comptroller of the city, such owner or interested person could sue the city in any court having cognizance thereof. § 16. Section 21 provides for appeals from the order of confirmation and a review by the appellate court of any determination of the special term. The claim of the respondent that the report of the commissioners is not binding upon her because she did not apper before them cannot be sustained. She has no rights in the matter except such as she acquires as the legal representative of her intestate. The statute required all claims to be presented to. and filed with the commissioners within three years after the filing of the commissioners’ oath. Culver filed his claim with the commissioners, and they thereupon acquired jurisdiction to determine its validity, and the amount which he was entitled to be paid by the city. The fact that Culver filed such a claim, within the period limited by the statute, and that jurisdiction was acquired by the commissioners to determine it, is vital to the rights which the respondent now asserts. She never has made any separate claim to the' commissioners, and the time within which claims could be presented has long since expired. The legal effect of the order confirming the report was that of an adjudication upon the rights of the parties, and the respondent’s remedy, if she was aggrieved by the report, was to appear and oppose its confirmation, and, if her objections were overruled, to appeal.. And the order of confirmation is an insuperable obstacle to the assertion by her of any right to the money awarded to the appellant. The order appealed from must be reversed, with $10 costs and disbursements; but, in order that the respondent may not be denied the right to be heard, the motion of the petitioner will not be granted if within 30 days the respondent procures the order confirming the report to be vacated, so far as it affects the award in question, and obtains leave to be heard upon its confirmation. If such relief in not obtained by the respondent, then petitioner’s motion will be granted.

All concur.


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

text:
    The People ex rel. William Barnes et al., App’lt, v. Court of Sessions of Albany County, Resp’t.

      {Supreme Court, General Term, Third Department,

      Tiled December 4, 1894.)

    I. Contempt op court—Affidavit.
    An affidavit charging contempt, which sets out the articles and states that they are false and grossly inaccurate reports of proceedings of the court, is not subject to the objection that it does not state or point out wherein they were false or grossly inaccurate.

      2. Same.
    Such affidavit is sufficient, if it states that such articles were false and grossly inaccurate reports of proceedings of the court.
    3. Same—Order to show cause.
    In such case, the court may, of its own motion, make the order to show cause, and such order need not be founded on affidavits.
    4. Same—Admissions.
    An answer, which merely denies the publication of any false or grossly inaccurate reports of proceedings of said court, admits all the other allegations of the charge.
    5. Witness—Privilege.
    After testifying in his own behalf, the defendant cannot refuse to answer questions on the ground that they tend to criminate him.
    6. Certiorari—When lies.

      Certiorari lies to review a conviction for a criminal contempt.
    Certiorari to review the determination of the court by holding the relators guilty of criminal contempt, and imposing penalties therefor.
    Hale, Bullcely & Tennant (Matthew Hale, of counsel), for relators; James W. Baton, Dist. Atty., for def’t.
   Herrick, J.

This case comes before us upon a writ of certiorari to review a proceeding to punish the relators for contempt, in having published a false and grossly inaccurate report of the proceedings of the court of sessions of Albany county. The proceeding is one founded upon § 8 of the Code of Civil Procedure. The contempt charged is a criminal contempt. The practice of courts for the punishment of criminal contempt does not seem to be regulated by statute, any further than as prescribed by § 10 of the Code of Civil Procedure, which reads as follows: “ Such a contempt, committed in the immediate view and presence of the court, may be punished summarily; when not so committed, the party charged must be notified of the accusation, and have a reasonable time to make his defence.”

The provisions of title 3 of chapter 17, §§ 2266 to 2292, inclusive, of the Code of Civil Procedure, refer, I think, to the practice in cases of civil contempt, and do not apply to the cases enumerated in § 8, unless some of the acts set forth as contempts in § 8 are also included among those enumerated in § 14, and have resulted in the rights or remedies of a party to a civil action or special proceeding being defeated, impaired, impeded, or prejudiced thereby, and the offending party is sough to be punished as for a civil or private contempt, upon the motion of the party injured. The distinction between criminal and civil or private contempts is very clearly set forth in People ex rel. Munsell v. Court of Oyer Terminer, 101 N. Y. 245. The provisions of the Code of Civil Procedure in relation to criminal contempts are similar to those of the Eevised Statutes, which they supersede, so that the decisions upon questions of criminal contempt arising under the Eevised Statutes are applicable to cases arising under the Code of Civil Procedure. It will be observed that the only requirements, when the contempt is not committed in the presence of the court, ¡are that “the party charged must be notified of the accusation, and have a reasonable time to make his defense.” The form and manner of the notice is not specified. The practice has been to proceed by an order to show cause. People v. Freer, 1 Caines, 518; Conover v. Wood, 5 Abb. Pr. 84. An affidavit seems to be unnecessary, and it has been held that the court may proceed, upon its own motion, to make the accusation. People v. Court of Oyer & Terminer, 27 How. Pr. 14-18. It has been held that, where the proceeding is by an order to show cause, it is unnecessary to file interrogatories before the final adjudication. Pitt v. Davison, 37 N. Y. 235-243; Mayor, etc., of City of New York v. New York & S. I. Ferry Co., 64 N. Y. 622. Although these cases were cases of civil contempt, the principle applies in criminal cases as well. The court below proceeded by an order to show cause. The court having directed the district attorney to take measures to bring the publisher and author or the publishers and authors of said newspaper articles before the bar of said court, the district attorney prepared an affidavit upon which an order to show cause was granted, directing the relators to show cause why they should not be punished for contempt of court, in writing and publishing the articles referred to in the affidavit of the district attorney. The proceeding resulted in the court fining the relators for the contempt charged against them.

It is elementary law that every court is the judge as to whether a contempt has been committed against it. Ex parte Chamberlain, 4 Cow. 49; Conover v. Wood, 5 Abb. Pr. 84; Mitchell's Case, 12 Abb. Pr. 252. The contempt in that case was of the most outrageous character, and the only question open for discussion by this court is as to whether there was sufficient before the court to justify the court in finding that the relators were the peisons guilty of the contempt that had been committed against it. This leads us to a review of the proceedings had in the court.

After the parties accused of contempt have been notified of the ■charge against them, and brought into court, and a reasonable time given them to make their defense, the trial, if it may be so called, is necessarily of a somewhat summary character; and, while all necessary safeguards to protect the innocent should be preserved,, yet the same technical precision of pleading and evidence that is required in the trial of indictments before a jury is not required. The proceeding is one conducted on behalf of the public, to maintain the dignity of the court and the public respect, without which courts are useless; and upon a review of such proceedings the appellant court will not be ready to reverse the proceedings taken by a court to preserve its self-respect and maintain its dignity, unless it pretty clearly appears that injustice has been done, or the rules of law promulgated for the protection of the liberty of the citizens have been plainly violated.

The affidavit of the district attorney, referred to in the order to show cause, set forth the publication of several articles in a newspaper published in the city and county of Albany, reflecting upon the presiding judge of the court of sessions of Albany county, and which articles, it was alleged in said affidavit, were grossly false inaccurate reports of the proceedings in said court. The articles in question appear to be set forth in full in said affidavit. In his. affidavit, the district attorney alleged, upon information and belief, that the defendants (the relators here) were the editora, proprietors, and managers of the newspaper named in his affidavit, and the writers and publishers of said articles. The order to show cause was issued on the 25th day of April, 1894. The relators, appeared in court, in person and by counsel, on the 4th day of May, following. As before stated, the hearing in proceedings of this character is necessarily somewhat summary, and, in determining whether sufficient appeared before the court to justify it in coming to the conclusion that the defendants were the persons responsible for the writing and publication of the articles in question, we must bear in mind that the court was acting as court and jury both, and was judge both of the law and the facts ; and we must try and place ourselves in the position of the court at that time, in order to judge how the proceeding, demeanor, and conduct of the defendants appeared to the court, and how far the same would justly and properly influence the judgment and opinion of the court in arriving at the conclusion that the persons then before it were in truth and fact the parties responsible for the newspaper articles in question. On coming into court in response to the order to show cause, the counsel for the defendants “moved to dismiss the proceedings on the ground that nothing was stated in the affidavit which gives the court any jurisdiction of the proceedings; that the only statute which gave jurisdiction to any court to punish for criminal contempt was § 8 of the Code of Civil Procedure, and that the affidavit did not show the commission of any act coming within the provisions of that section, or any subdivision thereof; also, that the affidavit did not state or point out wherein the article alleged to be published by the defendant was. false, or grossly inaccurate; that the affidavit, like an indictment or a complaint in a civil action, should point out wherein the report is false, and wherein it is grossly inaccurate; and that, until defendants are apprised of what is charged against them in that respect, they ought not to be put upon their defense in a proceeding-of this kind.”

The first objection may be well termed frivolous. The affidavit sets forth the publication of grossly abusive articles in relation to the proceedings of the court of sessions. The affidavit of the district attorney states that such articles were grossly false and inaccurate reports of the proceedings. It is unnecessary to cite authorities, or to demonstrate by argument that a court has jurisdiction of a proceeding to punish for a contempt persons who are charged with publishing false and inaccurate reports of the proceedings of that court. The Code of Civil Procedure (§ 8) expressly makes such a publication a criminal contempt.

The second objection, that the affidavit did not show the commission of any act coming within the provisions of § 8, or any subdivision thereof, is equally untenable. As before stated, the affidavit sets forth in full certain articles in relation to the proceedings of the court, alleged to have been published in a newspaper printed in the city of Albany, and which articles the affidavit states to be grossly false and inaccurate reports of the proceedings of said court,—an amply sufficient allegation to bring it within the section of the Code claimed to have been violated.

The next objection is that the affidavit did not state or point out wherein the articles alleged to have been published were false or grossly inaccurate. It is sufficient answer to that to say that the-affidavit characterizes all the articles as grossly false and inaccurate. In addition, the court did, of itself, then and there announce to the defendants and their counsel the particular things stated in the articles for which it proposed to hold them to answer, and that portion was pointed out to them in the following words: “ That, portion of it in which they charge this court with assigning Henry Peckham to defend a repeater, a person charged with repeating, and also Mr. Andrews, stating that they were both counsel for the-citizens’ committee, or some committee,—Honest Elections committee, or something of that sort. That portion I shall require them to reply to.”

As we have seen, it was not necessary that the order to show cause should be founded upon any affidavit. The court could make an order of its own motion, and bring the defendants into court, and notify them of the charge against them. Here an affidavit was made, setting forth several newspaper articles; they are brought into court; and then and there the court orally notifies them what particular portion of those articles it proposed to hold them to answer for. The court gave them what might, perhaps, be termed a bill of particulars.

It will be observed that, up to this point, no question is raised as to the affidavit being insufficient, as a matter of evidence, to-charge the defendants with the authorship or publication of the-articles in question, or that they were connected therewith by legal evidence. The only objections that are raised are as to the jurisdiction of the court to entertain the proceedings, and as to whether the facts set forth in the affidavit constitute a criminal contempt, and that the affidavit does not specify what portions of the articles-published are grossly false and inaccurate. There is not a hint or suggestion that the defendants were not guilty of the publication of the articles in question, the only question raised being whether they constitute an offense. The objection that some of the allegations were upon information and belief was not raised in any way before the court. It was claimed by the defendants that the affidavit was like an indictment or complaint in a civil action, and' their objections being overruled, and the court having pointed out. to them the specific portions of the articles which it claimed to be-false and inaccurate reports of its proceedings, the defendants then made a verified answer to the accusation made against them. Instead of pleading not guilty, or making a general denial, as to an indictment or complaint, where it is intended to deny all that is-alleged in the indictment or complaint, they answer only a part of' the moving paper, which they have designated as corresponding to-an indictment or complaint, but which may more properly be likened to an information. Their answer is a singular document, and reads as follows: “The above-named defendants, each of them, hereby deny, each for himself, that he has been guilty of the publication of any false or grossly inaccurate report of any of the proceedings of said court.”

Under all rules of pleading or of evidence, it seems to me that this must be regarded as an admission of everything charged against them, except that which is specifically denied, and so it must have appeared to the court. It is a negative pregnant,—a .a negative big with affirmative meaning. The affidavit alleged the publication of several articles in a newspaper; that such articles were grossly false and inaccurate reports of the proceedings of the court; and that the defendants were “ the editors, proprietors, .and managers of said paper, and the writers and publishers of said articles.” Merely denying that they had been guilty of publishing any false or grossly inaccurate proceedings of the court was, in effect, an admission of the publication of such articles in the newspapers named, and that they were the editors, proprietors, .and managers of the'newspapers, and the writers and publishers of the articles set forth in the affidavit they were answering. The court had specified the particular portions of the articles they were to be held accountable for, and, in simply using the language of the Code which defines the offense, in making their denial, their answer was evasive. In the case of Yates v. Lansing, 9 Johns. •395-414, it was held that, where there is a refusal to answer to a charge against one for contempt, it is an admission by the defendant that the complaint is well founded. Upon the same principle, I think it must be held that when he does answer he must be held to admit those things which he does not deny. If we treat the proceeding as a motion being heard on affidavits, it- seems to me the result is the same. Considering it as a motion, it may be, if the defendants had come into court, and challenged the sufficiency of the allegations made against them, that as matter of law the allegations in the moving papers and the statement of the court were not legally sufficient to hold them responsible as writers and publishers of the articles in question, and had thus raised the question of the sufficiency of the allegation upon information and belief to hold them, that the court might have held, and properly so, that there was not sufficient to hold them responsible. But they did not elect to take any any such proceedings. They did not keep silent as to the facts, when called upon to make answer to the charge of being guilty as the authors or publishers of the articles in question. They chose, as it were, to go upon the stand and be sworn, by filing their verified answer, and thereby placing themselves in the same situation that the defendant in either a civil or criminal action is placed when he becomes a witness in his own behalf, either by being sworn and giving oral testimony, or by giving testimony by affidavit or pleading. The rule that a defendant making answer to a complaint against him admits those things stated in the complaint that .he does not in his answer deny, is not simply a rule of pleading. It is a rule of evidence as well. And where, upon the hearing of a motion, the party answering the moving affidavit or affidavits only denies a portion of the allegations of fact alleged in them, he must be held to admit all those which he does not deny. It seems to me, therefore, that the attitude of the defendants before the •court,—the answer to the accusations filed by them.—tested by any rule of the pleading or of evidence, or the construction ordinarily given to language used, compels us to hold that they were the publishers of the article in question, and that the only issue presented to the court was whether they were, in truth and in fact, false or grossly inaccurate reports of its proceedings. Whether they were false or grossly inaccurate, that court knew. As we have heretofore seen, it was the judge as to whether, in that respect, contempt had been committed against it. The court of sessions might well have proceeded to judgment upon the answer so filed, because, as we have already seen, it was unnecessary to file interrogatories. But, out of abundant caution, it caused interrogatories to be propounded to the defendants, and gave them ample •opportunity to purge themselves of the contempt charged against them. Separate interrogatories were propounded to each of the •defendants. It is unnecessary, for the purposes of this discussion, to set forth the interrogatories propounded to each, and their answers thereto. They are, in substance, alike, and a consideration of those propounded to one of the defendants, together with his answers thereto, will be sufficient to dispose of the questions relating to all of them. The following interrogatories were propounded to the defendant Barnes: Q. 1. “ Who compose the editorial staff •of the Albany Morning Express, and what are the duties of each member of the editorial staff, respectively ? ” Q. 2. “ Who compose the editorial staff of the Albany Evening Journal, and what are the duties of each member of the staff, respectively ? ” Q. 3. “ Is not John Hastings managing editor of the Albany Morning Express ? ” Q. 4. Does not George N. South wick sometimes write editorials for the Albany Morning Express? ” Q. 5. “Do you know from statements made by the writer, or in any other way, who wrote the editorial in the Albany Morning Express of the issue of April 21, 1894, and on the fourth page of said issue, entitled, ‘ The Disgrace of Clute ’ ? ” Q. 6. Did George N. Soutliwick write that editorial ? ” Q. 7. “ Did John Hastings write that ■editorial?” Q. 8. “If you answer the two preceding interrogatories in the negative, or say that you do not know, please state whether any one besides yourself wrote that editorial, and, if so, who? ” Q. 9. Do you know from statements made by the writer, or in any other way, who wrote the news article in the Albany Morning Express of the issue of April 21, 1894, and on the eighth page of said issue, entitled, 1 His Action Needs Explanation ’ ? ” Q. 10. “ If you answer the preceding interrogatory in the negative, or say that you do not know, please state whether any one besides yourself wrote that article, and, if so, who? ”

To these interrogatories the defendant Barnes made the following response: “ The above-named defendant, William Barnes, Jr., in response to the interrogatories filed herein, denies that he has been guilty of the publication of any report of its proceedings which was believed or intended by this defendant to be false or grossly inaccurate, and disclaims any intention on his part to be guilty of such contempt, or of any such false or inaccurate publication.” “ This defendant, in response to the fourth interrogatory filed, and to be administered to this defendant, answers the same, ‘I do not know.’ ” “ As to each and every of the other interrogatories filed and to be administered to this defendant, this defendant, acting under advice of counsel, hereby declines to answer the said interrogatories, or any or either of them, upon the-ground that answers to such interrogatories might tend to expose this defendant to a criminal prosecution, or might furnish evidence which could be used against him on such prosecution; and this-defendant is privileged, under the constitution and laws of this-state, from answering the same.”

If the defendant had chosen to assert what he claims to be his rights under the constitution, and refused to be sworn as a witness, it may be that he would have been sustained in such contention, but he made no such objection; or if he had confined himself to answering the single interrogatory that he did answer, and then making the objections to the others that he did, he would then, perhaps, have come within the case of People ex rel. Taylor v. Forbes, 143 N. Y. 219-230; 62 St. Rep. 175. But prior to answering or raising his objection he made a voluntary statement, which is not, and does not profess to be, in answer or response to any of the interrogatories propounded to him, but is intended as testimony or statement in his own behalf. He first made himself a witness in his own behalf, then answered the question he thought safe, and then raised his constitutional privilege as to the others. The question of privilege is raised too late. A defendant cannot go upon the stand as a witness, and give testimony that is, or is intended to be, for his own benefit, and refuse to answer questions that may tend to convict or criminate him. Stover People, 56 N. Y. 315. It will be observed that the defendant does not deny that he is the publisher, proprietor, or manager, or the writer of any of the articles in question, but denies “ that he has been guilty of the publication of any report of its proceedings which was believed or intended by this defendant to be false or grossly inaccurate, and disclaims any intention on his part to be guilty of such contempt, or of any false or inaccurate publication.” As I have shown in discussing the answer filed by the defendants, this is an admission of the publication, or of responsibility for the publication, of the article in question, and upon the most favorable construction for the defendants, can only be said to raise the question as to their correctness as reports of the proceedings of the court of sessions; there being added to it now a disclaimer of any belief by the defendants that they were false, and a disclaimer of any intention of being guilty of contempt, or of publishing any false or inaccurate report. In so-far as this response raises a question of intention, it is no defense or justification of the defendant’s action; it is simply a matter in palliation. People v. Freer, 1 Caines, 518; Ex parte Chamberlain, 4 Cow. 49. The testimony thus offered by the defendant in his own behalf, coupled with his refusal to answer the other question propounded to him, amply justified the court in holding him guilty of the offense charged. They were put in a position to purge themselves, if they were innocent. If innocent, they could deny that they were the publishers of the newspaper in which such articles appeared, or that they were the writers or authors of such articles. But when they elected to deny any intention of publishing any false or inaccurate reports, and deny the publication of any report of the proceedings of the court which they believed to be false, and remained mute as to the matters of fact set forth in the affidavit, and refused to answer the interrogatories propounded to them, it must be assumed, under the rules of evidence, that they did so because they could not truthfully deny the facts alleged, and could not truthfully answer the interrogatories propounded to them without avowing their guilt. The silence of a party where he has an opportunity to deny a statement in which he is interested is taken as an admission, and must be so regarded on the trial. 1 Tayl. Ev. 809. Having volunteered to give testimony oh his own behalf, there is no reason why he should not be held to the same rules that prevail in relation to any defendant •charged with crime who becomes a witness in his own behalf. He cannot elect to give testimony as to such parts of his case as he may choose, and refuse as to others, and if he does so refuse the presumption is that he does so because he cannot truthfully answer without confessing his guilt. Stover v. People, 56 N. Y. 315; Andrews v. Frye, 104 Mass. 234 Thus the court below, after a full consideration of the defendants’ case, both upon the answer filed by them and upon the testimony given by them in response to the interrogatories filed, adjudged, not only that the contempt had been committed against the court, but that the defendants were the persons guilty thereof. It was a trial upon the merits, as much as any such proceedings well can be,—an adjudication both upon the law and the facts,—and, there being some evidence to sustain the finding of fact, this court will not disturb it. The only defense offered upon the part of the defendants was that they had no intention of committing any contempt, or of publishing any false or inaccurate report of the proceedings of the court, and that they did not believe that they had done so. This, as before stated, was simply a palliation of the offense, and seems to have been taken into consideration by the court in imposing sentence in the case,—a very moderate one for the gross nature of the •offense committed. I can see nothing in these proceedings which would warrant me in saying that the court was not justified in holding that the relators were responsible for the publication or writing of the articles in question. I do not see that in so holding the court violated any rule of law that is necessary for the protection of the liberty of the citizen. The defendants have been granted ample opportunity to purge themselves of the contempt charged, and they have failed to do so. The certiorari should therefore be quashed, and the decision of the court of sessions affirmed.

Putnam, J., concurs.

Mayham, P. J.

(concurring)—Proceedings having been heretofore instituted in the court of sessions to determine whether the relators had been guilty of contempt of that court, in publishing certain alleged libelous articles reflecting upon that court, on the 12th of May, 1894, the court made the following order or determination : ‘‘ On all of the papers in the proceedings, the parties appearing in person and by counsel, and after hearing Matthew Hale, Esq., of counsel for the defendants, and James W. Eaton, Esq., district attorney of the county of Albany, we did determine and adjudge that the said William Barnes, Jr., Greorge N. South-wick, and Arthur Lucas to be guilty of criminal contempt of court, and did sentence said William Barnes, Jr., Greorge N. Southwick, and Arthur Lucas, as a punishment for said offense, to each pay a fine of one hundred dollars, or in lieu thereof to each stand committed to the Albany county jail for the period of thirty days.”

This order of conviction was duly signed by the county judge presiding at such court of session, and by the associate justices of sessions, and was attested by the signature and seal of the clerk of that court. For the purpose of reviewing that conviction and determination, the relators, on the 12th day of July, 1894, applied to the special term of this court for, and obtained, an order that a writ of certiorari issue out of this court, directed to the court of sessions of Albany county, and staying all proceedings in execution of the conviction pending such certiorari; and on the same day a writ of certiorari was issued and allowed by the justice holding such term, directed to the court of sessions of Albany county, among other things commanding that court to certify and return to the supreme court, at the office of the clerk of Albany county, all and singular the proceedings, decisions, and actions.of the court of sessions in the premises, and all the evidence, documents, records, or papers before it, or which were submitted to it, concerning the same, and all the affidavits offered to and filed with such court of sessions in relation thereto, with the ruling and decisions of the court thereon, to the end that the decision and action of such court of sessions may be reviewed. To this writ the court of sessions made and filed a return setting forth that on the 25th of April, 1894, James W. Eaton, district attorney of the county of Albany, presented his affidavit, duly verified, also a newspaper, Albany Morning Express, dated April 21,1894, extracts from which were made a part of the affidavit, upon which affidavit and extracts the court made an order requiring the relators to show cause before it on the 27th day of April, 1894, why they, and each of them, should not be punished for a_ contempt of court. The affidavit of James W. Eaton, district attorney of Albany county, set out the fact that on the 20th day of April, 1894, the grand jury reported several indictments to the court of sessions, at which Hon. Jacob H. Clute, county judge of Albany county, presided, among which were indictments against John Hughs and William Doyle for assault in the second degree, and John Donally for violating the election laws, and, on being arraigned in such court of sessions, Judge Clute assigned Henry W. Peckham, a member of the bar, to defend Hughs and Doyle, and Albert L. Andrews, also a member of the bar, to defend Donally, upon the indictments against them, respectively. The affidavit also showed that on the morning of the 21st day of April, and while the court of sessions was still in session, the Albany Morning Express, a daily newspaper printed in the city of Albany, where such court held its sessions, contained an article reflecting upon the presiding judge, and upon his integrity, and tending to influence popular passion concerning the cases, and concerning the assignment of counsel in the same, and thereby intended to impede and obstruct the administration of justice and to impair the respect and authority of the court; such publication being a grossly false and inaccurate report of the proceeding of the court, and which affidavit set out the article so published, a portion of which is as follows :

“ The Disgrace of Clute.
“ County Judge Jacob H. Clute added to his unsavory notoriety yesterday by assigning Arthur L. Andrews and Henry A. Peckham to defend men who were arrested on election day, charged with attempting to vote illegally. Messrs. Andrews and Peckham have been prominent among the lawyers whose services have been given freely and without charge to prosecuting violators of the election laws. Of this fact, Jacob H. Clute, of course, was fully aware, not only because their activity in the interest of honest elections has been a matter of current news, but also because they have appeared" before Judge Clute’s own tribunal in the performance of their duty. In the light of these facts, the low-down character of the judicial trick to which Jacob H. Clute descended may be realized.”

The affidavit also referred to the following article, published in such paper:

“His Action Needs Explanation.
“Judge Clute Assigns Committee of 50's Counsel to Defend Alleged Repeaters—He Names Messrs. Arthur L. Andrews and .Harry Peckham—Both Men have been Indefatigably Active in Securing Evidence against Violators of the Election Law— Nobody has yet Suggested that Perhaps Judge Clute is Labor- ' ing under the Delusion that He is the Chief Comedian in a Earce Company * * *.
“ Yesterday, when the grand jury returned with indictments against several of the men charged with infraction of the election laws, this same Judge Clute gave proof that he still has a peculiar conception of the duty of a public official. He designated to defend two of the men so accused Messrs. Arthur L. Andrews and Harry Peckham, lawyers who, as counsel for the committee ¡of fifty, have been indefatigable for many weeks in their efforts to ^secure the conviction of any who might be guilty of crooked work in connection with the election.”

The affidavit further states: “ That, as deponent is informed and believes, the above-named defendants are the editors, proprietors and managers of said paper, and the writers and pub* lishers of said articles. That a complete copy of said paper, containing said articles, is herewith filed, marked 1 Exhibit A,’ and made a part of the papers to be used upon this application. That no previous application has been made for the order hereby asked.' Wherefore, deponent prays that an order to show cause issue from this court, requiring said defendants, William Barnes, Jr., .George H. Southwiclr, John Hastings, and Arthur Lucas, to show cause before this court, at some time herein stated, why they, or each or any of them, should not be punished for contempt of this court in the writing and publication of the articles hereinbefore set forth.”

The return also contained the order to show cause, the proceedings had thereon before the court of sessions, and the answers of the several defendants on oath, each denying that he had been ' guilty of any publication of any false or grossly inaccurate report of any proceedings of said court. Interrogatories were then propounded to each of the relators separately to which answers were severally made, none of which directly denied the allegations in the affidavit of Mr. Eaton, charging, on information and belief,, that the defendants were the editors, publishers and managers of the said paper-, and the writers and publishers of the articles charged as contumacious. The effect of the determination of the ■court was that the relators were in contempt of court, and that they ha.! not purged themselves of such contempt by their answer to the order to show cause, or on their answers to the interrogatories. It is now urged by the learned district attorney that conviction for criminal contempt cannot be reviewed on certiorari, and that the exception contained in § 2148 of the Code of Civil Procedure, passed in 1880, of criminal contempts of court, has been repealed by chapter 372 of the Laws of 1884 (§ 515 of the Code of Criminal Procedure), which provides as follows: “Writs of error and certiorari in criminal actions and proceedings, and special proceedings of a criminal nature, as they have heretofore existed, are abolished; and hereafter the only mode of reviewing a judgment, or order in a criminal action, or proceeding, or a special proceeding of a criminal nature, is by appeal.”

The language of this section is so broad and comprehensive that, but for the recent decision of the court of appeals in the case of People ex rel. Taylor v. Forbes, 143 N. Y. 219; 62 St. Rep. 175, I should have little doubt in holding that the remedy, in a case like this, is by appeal, and not by certiorari. But the authority of that decision cannot be ignored by this court, and I see no way of distinguishing it, in principle, from the case, at bar. Both are certiorari from conviction for a criminal contempt, neither of which is enumerated in the Code of Cz'iminal Procedure; and the court of appeals hold that the “ special proceedings of a criminal nature ” referred to in § 515 of the Code of Criminal Procedure are only those designated as such in that Code. We must, therefore, consider and determine whether or not this covictiom can be sustained upon the merits.

On the return of the order to show cause, the defendants in that proceeding appeared in person and by counsel, and moved that the order be vacated and set aside, which motion was denied; and the presiding judge, in denying the motion, called the attention of the defendants to the charge in the publication that he, as presiding judge, had assigned Henry W. Peckham and Arthur L. Andrews to defend men who were arrested on election day charged with attempting to vote illegally, and that Peckham and Andrews, whose services had been given to prosecuting violators of the election laws, had been assigned by the court to defend violators of the election laws, whereas the persons whom Mr. Peckham was assigned to defend were indicted for an assault, and Arthur L. Andrews was not counsel for the committee of fifty, to prosecute election frauds, as charged in such publication, and that the report published in the Express was not a true publication of the proceedings in court, and was therefore a contempt. It seems that the portion of the articles on which the court rested the charge of contempt is mainly found in the commencement of the published articles, which seem to form the basis of the assault upon the court, of which the balance of the article is full. It commences as follows:

“ The Disgrace of Clute.
“ County Judge Jacob H. Clute added to his unsavory notoriety yesterday by assigning Arthur L. Andrews and Harry A. Peckham to defend men who were arrested on Election Day, charged with the attempt to vote illegally.”

The article then proceeds to allege that those lawyers had been engaged in prosecuting violators of the election laws, and that the judge was cognizant of that fact. It then proceeds as follows: In the light of these facts, the low-down character of the judicial trick to which Jacob H. Clute descends may be realized. He .avails himself of’his power as county judge to place these two worthy lawyers, who have fought to prevent suffrage stealing in Albany, in the dilemma of defending election criminals, or else subjecting to a fine of $500 and imprisonment for thirty days for contempt of court.”

The affidavit of the district attorney, used before the court in obtaining the order to show cause, shows that the indictment against John Hughs and William Doley, whom Peckham was assigned to defend, were not for violation of the election law, and that they were not charged with attempting to vote illegally, but that such indictment was for an assault not connected with election, or committed on election day. It would seem to follow, therefbre, that the article complained of was not a substantially correct account of a judicial proceeding in court, which would be a privileged and lawful publication, but was upon its face, false, and used as the pretext for making a most offensive and disgraceful attack upon the court of sessions while such court was in session; tending to hold it up in a most unfavorable and ridiculous light before the public, and in a manner well calculated to impair the public confidence and respect for that important tribunal, charged, as it is, under the law, with trial of most of the criminal-offenses in the administration of the criminal law in that county. Can the court, under such circumstances, vindicate its good name, and punish as for a contempt- for the publication of a false report, of its proceedings, and a false, scurrilous, and censorious attack made upon its integrity, through a public newspaper? If it has such authority, the charge made against it in this case would seem to justify its exercise. Section 143 of the Penal Code defines criminal contempt of courts, and, while it makes them misdemeanors, it does not take from the court the power of inflicting summary punishment. Subdivision 7 of that section makes the publication of any false or grossly inaccurate report of its proceedings a contempt of court. Assuming, therefore, that the relators, by this publication, are brought within the definition of “ criminal contempt,” as defined in the subdivision above referred to, did the court in this proceeding acquire jurisdiction of the subject-matter and of the persons of the relators, so as properly to enable it to impose the penalty? Section 10 of the Code of Civil Procedure, after specifying the causes of criminal contempt, among which is the one charged in this case, provides : “ Such a contempt, in the immediate view and presence of the court, may be punished summarily ; when not so committed, the party charged must be notified of the accusation, and have a reasonable time to make defense.”

The alleged offense in this case was not committed in the presence of the court, and the accused parties were entitled to, and were given, reasonable time to make their defense. The affidavits and order to show cause were duly served upon the relators, and no question seems to be made of the sufficiency of the notice; and all of the defendants, as we have seen, appeared before the court in person and by counsel. There is therefore no serious question as to the jurisdiction of the court. Nor do we 'think the determination of the court of sessions as to the relators’ participation in the publication of this contumacious libel can be questioned here. The production of the printed article in the paper in which it was printed proved the publication, and the affidavit of the district-attorney established, prima facie, the participation of the relators in its publication. That prima facie case was in no way affected by the evasive answers of" the defendants, or by any proof offered by them. That question was fairly raised, and might have been controverted by the relators, either by their answer or answers to the interrogatories filed, or by independent proof before the court. It is true that they were not bound by these answers to criminate themselves, and that no legitimate conclusions or inferences of guilt can be drawn from the assertion of their privilege, but the facts of the existence and assertion of such privilege do not relieve them from the prima facie case made against them by the affidavit of the district attorney. On the whole case, I think the order and conviction for contempt of court must be affirmed, and the writ of certiorari quashed, with $50 costs and printing disbursements. Let an order be entered accordingly.


text:
    Adrian Vanderveer, Resp’t, v. John Suydam, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Brokers—Commissions.
    A broker, employed to sell land within a specified time, is entitled to commissions, where he procures within such time a purchaser who is willing to buy, and communicates such fact to the owner ; and the latter cannot, by deferring the time of meeting with such purchaser until after the expiration of the agent’s term of employment, defeat his right.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an-order denying a motion for a new trial.

      J. T. Marean, for app’lt; Edwin M. Grout, for resp’t.
   Brown, P. J.

The complaint in this action alleges the employment of the plaintiff by the defendant to procure a purchaser of a farm in the town of Flatbush, Kings county, upon certain specific terms, and that plaintiff procured a purchaser in Mr. Cyrus E. Staples, who was ready and willing to purchase the farm on the terms designated. The employment of the plaintiff was not denied by the answer, but it was alleged that the sale of the farm were to be made subject to a lease thereof for agricultural purposes, and with a reservation of the homestead so Idng as defendant’s mother should live, and that plaintiff's employment expired on March 25, 1893. The answer denied that plaintiff procured' a purchaser upon the terms aforesaid within the time limited. Upon the issue thus made the parties went to trial, and the disputed questions relating to the terms of plaintiff’s employment were settled in his favor by the verdict of the jury. It appeared from the plaintiff’s testimony that in February and the early part of March there had been some effort on his part, with the defendant’s consent, to sell the property. Defendant was willing to sell, but would not name a price, and offers of $1,500 to $2,000 per acre had been made and refused. Finally defendant said he would sell for $2,500 per acre, whereupon plaintiff told him that his customer would not come to an agreement unless the offer was put in writing. Defendant thereupon signed a paper, of which the following is a copy :

“Office of Adrian Yanderveer, Real Estate and Mortgage Loans, Flatbush Avenue, cor. Linden Boulevard.
“Flatbush, L. I, March W, 1893.
“ In consideration of the sum of one dollar ($1.00) to me paid, the receipt thereof I hereby acknowledge, I agree to sell to A. Yanderveer personally, or to whom he may introduce, the plot of land known as the 1 Cornelius Suydam Farm,’ situate on the northwest corner of road leading from Flatbush to Flatlands neck and Suydam’s lane, said farm containing about 50 acres, for the sum of twenty-five hundred (2,500) dollars per acre, and I agree to accept the following terms, subject to possession of the homestead on said land: Five thousand dollars in cash on signing agreement, forty per cent, in cash on delivery of deed on or before thirty days from date of agreement, and to accept a purchase-money mortgage of sixty per cent, bearing interest at the rate of five per cent, per annum for the balance of the purchase price. This option to expire on Saturday, March 25, 1893, at twelve o’clock noon. “John Suydam.”

There was a motion to dismiss the complaint at the close of plain.iff’s testimony upon the ground that a purchaser was- not procured before the expiration of the option. This motion was properly denied. The plaintiff and Staples both testified that he (Staples) was ready to take the property upon the terms offered. Staples testified that he agreed with plaintiff to take the property on March 20th or 21st, and to meet defendant at Mr. Lott’s office and sign the contract; and the plaintiff testified that he communicated that fact to the defendant on the 2'lst of March, and that defendant agreed to go on the following day to Mr. Lott’s office and close the bargain. If this testimony was true—and we must, in view of the verdict, assume it to be true—defendant could not, by deferring his meeting with Staples until after the date fixed in the option, defeat the plaintiff’s recovery. By procuring a purchaser willing to buy the land upon the terms offered, and communicating that fact to defendant, and arranging for a meeting to execute the contract before the option expired, plaintiff had done all that the contract required him to do, and all that it was possible for him to do. The defendant requested the court to charge the jury that “a reservation of the possession of the homestead without any limitation as to the time was equivalent to a reservation of the title.” This was refused, the court saying: There is no provision reserving it in that way. * * * I decline to interpret the contract to the jury. I leave it to them as matter of fact to say what the arrangement was. The option is simply evidence to be considered by them in determining what the actual paroi contract was between the parties.”

There was no error in this ruling. The court had already, at defendant’s request, charged that the option was not the contract between the parties, and there was no claim in the answer that the expression in that paper, “ subject to possession of the homestead,” was a reservation of the title to that part of the farm. The claim was that it related to the occupation of the property by defendant’s mother during her life. It was of no importance to the case to determine what the precise legal effect of those words would have been in a deed or contract of sale of the land. The question at issue was, what was the defendant’s contract with the plaintiff ? The option expressed the terms upon which a purchaser must take the land. The expression used in relation to the homestead was ambiguous, and it was competent to give evidence that would explain its meaning. The evidence tended to show that defendant did not claim a reservation of title or of possession during even his mother’s life. Staples testified that in his conversation with defendant it was not mentioned that the possession of the homestead should be reserved during the life of defendant’s mother, but only for a designated time. What the terms were, and what was intended by the use of the expression in question, was, therefore, a fact to be determined by the jury, and not a question of law for the court.

The judgment and order must be affirmed.

All concur.