text:
    The First National Bank of Sing Sing, Resp’t, v. Caleb Knevals et al., Assignees, App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Bills and notes — Renewal.
    C., of the firm of IT. & C., executed a mortgage to H. as security for firm notes, payable to H.’s order,indorsed and discounted by him at plaintiff bank for IT. & C.’s accommodation, at whose request they were renewed. When the mortgage was executed, H. made a collateral agreement, in writing, not to record it, and to return it as soon as the notes were paid or otherwise satisfied, and that he would take care of such notes as had been indorsed by IT. & C. for his benefit. C. had the legal title to the mortgaged premises, but IT. had an equitable interest. When the notes given in renewal became due plaintiff refused further renewal unless the mortgage held by H. was assigned to it as security. This was done with C.’s consent, and new notes given. The'money received from their discount was paid to H , who paid it by check to IT. & 0., who deposited it in their general account, and, therefore, paid the original notes. In an action by the bank to foreclose, Held, that the taking up of the original notes was not a discharge of the obligation which they evidenced, but that such obligation was renewed by giving of the new notes, and the discount thereof by plaintiff, at the time the mortgage was delivered to it as security.
    2. Mortgage — Assignment. ■ **
    The plaintiff refused to accept the assignment of the mortgage in the form first presented, because of a certain clause, and delivered it back to have it stricken out,such return being within the understanding of all parties. Reid, that the fact that before notice of C.’s dissent H. delivered the new assignment to plaintiff, coupled with the fact that it discounted the i enewal notes upon the faith thereof, is conclusive upon the validity of the assignment. •
    3. Same — Evidence op custom.
    Evidence as to the custom of banks and business men as to holding col-laterals pledged for notes as security for renewal, has no bearing on the construction of the agreement of H. contemporaneous with the mortgage, and is inadmissible.
    Appeal from judgment of foreclosure, entered on report of referee.

      Calvin Frost, for app’lts ; Samuel Watson, for resp’t.
   O’Brien, J.

This action is brought for the foreclosure of a mortgage upon real estate situate in the city of New York. The defendants, Prince W. Nickerson and Charles W. Nickerson, father and son, were during the year 1889, and previous thereto, copartners in business in the city of New York under the firm name of P. W. Nickerson & Co. On October 10, 1889, Charles W. Nickerson executed a bond and mortgage to Schuyler Hamilton, Jr., for $40,000, which mortgage was assigned by Hamilton to the plaintiff on the 15th of February, 1890. On the 17th of March, 1890, the firm, of Nickerson & Co. made a general assignment for the benefit of creditors to the defendants, Knevals and Frost, who, by their answer, attacked the validity of the mortgage, and the plaintiff’s right to pnforce payment thereof, upon the grounds, first, that the mortgage was procured from the Nickersons by reason of threats made by Hamilton to institute criminal proceedings against them, growing out of their retention of some $9,000 received in the discount of certain promissory notes for Hamilton; second, that the defendant, Charles W. Nickerson, who executed the mortgage, was not the owner of the property, which belonged to his father, Prince W. Nickerson ; third, that at the time of the delivery of the bond and mortgage, Charles W. Nickerson was not indebted to Hamilton in any sum whatever, but that, as the state of the account between them would show, while Hamilton had indorsed for the firm of Nickerson & Co. notes to the amount of about $40,000, they, on their part, had indorsed for Hamilton notes for twice that amount, which were then outstanding and unpaid; fourth, that the notes for which the mortgage was given as security were paid and satisfied; fifth, that it was an unlawful preference to the bank to appropriate the individual property of Prince W. Nickerson, who was then insolvent, having personal liabilities, to the payment of a copartnership indebtedness.

Upon the facts, some of which were undisputed and others disputed, the referee found, as claimed by the appellants, that the legal title of the lands covered by the mortgage was in the name of Charles W., but his father, Prince W. Nickerson, had an equitable interest therein, and that the legal title remained in Charles W. until after the assignment of the mortgage to plaintiff. That the bond and mortgage were made and executed as security for the payment of nine promissory notes made by Nickerson & Co., to the order of Hamilton, which the latter indorsed and had discounted by the plaintiff for the accommodation of Nickerson & Co.; and that, when the notes became due, eight of them were renewed by plaintiff,-at the request of Hamilton, for the benefit and accommodation of Nickerson & Co.; the money received from the discount of such notes and the renewal thereof being paid over by Hamilton to Nickerson & Co. That when the notes given in renewal became due plaintiff refused further to renew the same, or discount other notes in the place thereof, unless the bond or mortgage in question, then held by Hamilton as security for the payment of such notes and the money borrowed of plaintiff thereon, were assigned to the plaintiff; and it was thereupon agreed between the plaintiff Hamilton and Charles W. Nickerson that such bond and mortgage should be assigned to the plaintiff as security for the payment of the notes and of the money borrowed thereon, and which bad been discounted for the benefit of Nickerson & Co., of which firm Charles W. Nickerson was a member; such notes and money borrowed thereon amounting in the aggregate to $45,000. That in pursuance of such agreement, and with the knowledge and consent of the mortgagor, such mortgagé was assigned to the plaintiff,‘and upon the faith of such assignment and security the plaintiff, at the request of Charles W. Nickerson, representing the firm of Nickerson & Co., did renew seven of said notes, amounting in the aggregate to $40,000, the eighth note not coming due until after Nickerson & Go. had failed, and made a general assignment for the benefit of creditors. That the notes, to secure which, and the money borrowed thereon, the bond and mortgage were given, were not paid, but were renewed by the plaintiff, and that such renewals, as security for which the mortgage was assigned to plaintiff, have not been paid, and that such money borrowed has not been paid, and that such notes are now held by the plaintiff, and they amount in the aggregate to $45,000, besides interest. It also appeared in evidence that at the time the bond and mortgage were delivered to Hamilton, the latter signed a paper, in which he agreed that he would not record the mortgage, but would return it as soon as the notes were paid or otherwise satisfied; further agreeing to take care of such notes as had been indorsed by Nickerson & Co. for his, Hamilton’s, benefit. The appellants insist that the terms of this collateral agreement made by Hamilton were known to the plaintiff’s president prior to the assignment of the bond and mortgage to it, and upon this is based the claim that knowledge was thus brought home that it was intended as security for the particular notes referred to in Hamilton’s agreement, which, as insisted, having been paid by Nickerson & Co., discharged the obligation, and entitled them to have the mortgage cancelled and satisfied.

Upon conflicting testimony, the referee found against the appellants on the question of notice to the plaintiff bank, and also found against them upon the fact of payment of the original notes for which the mortgage was originally given as security. We see no reason for disturbing the conclusion reached by the referee, it being peculiarly a question of fact which, upon conflicting evidence as to whether the plaintiff had notice of Hamilton’s collateral agreement, was resolved in plaintiff’s favor. We think, also, that the conclusion of the referee is sustained; that the transac-tion resulting in the taking up of the original notes was not a discharge or satisfaction of the obligation which they evidenced, but that such indebtedness or obligation was renewed by the giving of the new notes, and the discount thereof by the plaintiff, at the time the assignment of the mortgage was delivered to it as security for such discount. It is conceded that the money received from the plaintiff upon such discount was paid to Hamilton, and by the latter given to Nickerson & Go. Instead, however, of directly applying the Hamilton check to the taking up of the original notes, it was deposited in their general account in their bank, and out of such general account the original notes were paid.

We do not think that any real distinction can be made upon this ground; nor should the Nickersons be allowed to take advantage of the circumstance that, instead of directly appropriating the money for the purpose for which it was obtained, they should have placed it in their general account, and then gone through the form of drawing particular checks therefrom in payment of the original notes. ' The entire transaction makes it clearly evident that the Nickersons were desirous of having the original notes renewed, which the plaintiff was reluctant to do except upon receiving collateral security for such renewals; and that-it was for the purpose of satisfying the bank’s demand in this respect that the Nickersons consented to the assignment of the mortgage by Hamilton to plaintiff. Had the original assignment, which was presented about February 13, 1890, to the plaintiff, been accepted, no possible question could arise. But a point is sought to be made that, upon the refusal of the bank to accept the assignment in the form in which it was then presented, containing, as it did, a clause which might seem to obligate the bank to further renew the notes, the delivery of the assignment back to have this clause stricken out was tantamount toa refusal on the part of the bank to accept the assignment, and that thereafter the Nickersons refused to consent to Hamilton’s assignment to the bank. The answer, however, to this is to be found in the fact that the return of the assignment for correction, with a request that a new one should be delivered free from the objectionable clause, was within the understanding of all the parties; and the fact that before notice of Nickerson’s dissent Hamilton delivered the new assignment to the plaintiff, coupled with the fact that thereafter the bank discounted the renewal notes made by Nicker-son & Go. upon the faith of such assignment, is conclusive upon the validity of the assignment There is evidence, further, to support the view that, subsequent to the date when the new assignment was delivered to the bank, the mortgagor appeared there with Hamilton, the assignment being then present, and without any suggestion of the invalidity of such assignment the discount of the renewal notes was obtained. If the doctrine of estoppel is ever to be applied, it seems to us it should be here upon the facts presented.

So far as concerns the bank, the same remark is applicable to-the defenses seeking to show the invalidity of the bond and mortgage itself in the hands of Hamilton prior to the assignment to-plaintiff. Thus the claim made that it was procured by threats on the part of Hamilton is not available to the Nickersons, nor to their assignees, as against the bank, in view of the fact that in their dealings with the plaintiff both the Nickersons and Hamilton assumed a position consistent only with their holding out to the bank the validity of the bond and mortgage, and upon the faith thereof obtaining the accommodation which resulted in an extension of their indebtedness beyond a period when they became entirely unable to liquidate the same, by reason of their insolvency.

The appellants strenuously insist that there is a preponderance of evidence in favor of the view that the final discount made by the plaintiff was not a renewal of the original notes, but a new loan; and that, as the mortgage was given to secure a former loan, evidenced by notes, which were paid, it could not be regarded as collateral for the notes discounted by the bank subsequent thereto. If we assume, as found by the referee, that the plaintiff had no notice of the collateral agreement made between the Nickersons and Hamilton at the time of the delivery of the bond and mortgage to the latter, the question of whether the final transaction between them and the bank was' a renewal of former notes or a new loan is entirely immaterial, for reasons which may be briefly stated. If renewals of the original notes, then the conclusions of law reached by the referee are correct. If, on the other hand, we regard the transaction as a new loan made by the bank to Hamilton and the Nickersons, then plaintiff’s rights are equally secure. The bond and mortgage expressed as the consideration an indebtedness from the Nickersons to Hamilton of $40,000, and upon application to the bank it refused to do anything for the accommodation of the parties until it obtained this bond and mortgage as collateral security for any further transactions. Therefore, no matter what may have been the agreement between the Nickersons and Hamilton, notice of which was not brought home to the bank, if, as found in this case, they applied to the plaintiff for additional accommodation, and in conformity with the condition upon which that was to be extended they agreed to and finally, delivered an assignment of the bond and mortgage, the bank, in taking the same, relying upon the faith of its validity, and without notice of any flaws in Hamilton’s title thereto, upon discounting the notes and giving the money therefor, took exactly as would a purchaser in good faith, without notice, for a valuable consideration.

In addition, upon these facts the doctrine of estoppel already adverted to would clearly apply, because the Nickersons and Hamilton, with full knowledge of the motive actuating the plaintiff in parting with its money, could not haye stood by with knowledge of the defects in the validity of the bond and ihortgage and permitted the bank to part with its money for their .mutual accommodation, and then he allowed to come into a court, and claim that by an arrangement between them the security in the hands of the plaintiff was invalid. It is sufficient, however, to say that, upon the facts as found by the referee, which are sustained by competent evidence, there is abundant law for maintaining his conclusions.

The only exception taken to the referee’s ruling upon the evidence relates to his sustaining the objection of plaintiff to questions put to a witness for the defendants as to the custom of banks and business men as to holding collaterals pledged for notes as security for renewal. It is insisted that this was pertinent as to the construction of the agreement of Hamilton contemporaneous with the mortgage. We think this ruling was right, for two reasons : First, that it was incompetent and immaterial to prove any such custom; and, secondly, whether pertinent or not' were the action one between Hamilton and the Nickersons, we fail to see, in view of the conclusion reached by the referee, how it could have in any way affected or had a bearing upon the plaintiff’s rights. An examination of the entire record will show that there is no serious question of law presented, the whole case having turned upon the findings of the referee upon the facts, which, if sustained by the evidence, inevitably lead to the conclusions reached by him favorable to the plaintiff. It would serve no useful purpose to take up seriatim the assignments of errors to the referee’s refusals to find, and the exceptions taken to such facts as he did find, it being sufficient to say that there was evidence tending to support every finding made by him, and sufficient to justify the rejection of those proposed by the defendants and refused, and that as to none of these was the evidence so preponderating in defendant’s favor that we would be justified in setting them aside upon the ground that they were against the weight of evidence.

Having reached the conclusion, therefore, that the findings were supported by the evidence, and that the referee’s conclusion of law was the. logical deduction therefrom, we are of opinion that the judgment appealed from should be affirmed, with costs.

Yah Bruht, P. J. and Barrett, J., concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    In the Matter of Valentine Muller.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Contempt — Commitment—Habeas corpus.
    In a commitment for contempt by a court of general jurisdiction all the preliminaries to warrant the imprisonment need not be set out. Where the_ commitment recites the jurisdictional facts required by the Code, its validity is not affected by a failure to recite the service of the order requiring performance of the acts for failure to do which the party was adjudged in contempt, and it cannot be held invalid on that account in habeas corpus proceedings.
    Appeal by Balthazar Schmidt from order discharging Valentine M.uller from imprisonment for contempt.

      F. J. Bischoff, for app’lt; August P. Wagener, for resp’t.
   O’Brien, J.

The relator applied for his discharge by writ of habeas corpus, alleging, among other things, that he was held by virtue of a commitment for civil contempt, which did not recite all the jurisdictional facts, and was, therefore, void. The point suggested, and the ground upon which the relator was discharged, was that the commitment did not recite that the order requiring him to pay the amount specified was ever served upon him, or any demand made upon him to comply therewith. This was held to be fatal, and the relator was discharged. Upon the return the commitment shows that it was issued by the court of common pleas in a proceeding had to punish the relator for contempt. Ho question can arise but that the court had jurisdiction of the subject matter and of the person of the relator. All the other facts required in the Code are recited, and the question left for determination is whether the failure to recite the service of the original order, in the commitment itself, rendered the latter void.

We think that this case in principle is controlled by that of Seaman v. Duryea, 11 N. Y., 324, which, in effect, holds that it is not requisite that the process of commitment should recite all the facts and proceedings necessary to confer jurisdiction; that it is sufficient if upon its face it appears to have been issued in a proceeding of which the court had jurisdiction, states in substance the cause of the commitment, and specifies the act or duty to be performed, and the expenses to be paid. In this connection we think it important to keep in view the distinction between an appeal, which would involve all the proceedings, and in which the steps leading up to the final commitment would be set forth and presented for review, and a proceeding initiated by habeas corpus, for the purpose of inquiring into the regularity of the commitment, and which presents simply the question of its validity on its face. As held by Ingraham, J., in Davison's case, 13 Abb. Pr., 138, headnote, if it appears on the return to a writ of habeas corpus that the prisoner is detained in custody for a contempt specially and plainly charged in the commitment, by some court having authority to commit for the contempt charged, it is the duty of the officer conducting the proceedings forthwith to remand the prisoner into custody. In a commitment for contempt by a court of general jurisdiction all the preliminaries to warrant the imprisonment need not be set out. The proper remedy in case of irregularities in proceedings by which a party has been adjudged guilty of contempt by a court of general jurisdiction is by motion in the court in which the judgment was rendered. An examination of this commitment will show that such jurisdictional facts as are required by the Code are recited in the commitment, and we do not think the validity of the commitment is affected by the failure to recite the evidence, or «the preliminary steps which led up to the granting of the writ, one of which was the service of the order requiring him to do the acts for failure to do which he was punished as for a contempt. We are of opinion, therefore, that the order should be reversed, and the sheriff directed to retake the relator into his custody.

Van Brunt, P. J., and Follett, J., concur.


author: Follett, J.

text:
    The South Publishing Co., App’lt, v. The Fire Association of Philadelphia, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Service — Foreign insurance companies — Superintendent o:f insurance.
    A designation of the superintendent of the insurance department by a foreign insurance company as its attorney for service of process against it, is a designation of such superintendent as a public officer, and not as an individual, and a service made upon a clerk designated by him to receive process, authenticated by an admission by the superintendent, is valid and binding on the company.
    Appeal from an order setting aside the alleged service of the summons herein upon the defendant, and from an order to the same effect after a reargument had been granted and heard upon additional papers.

      Herbert H. Gibbs (Wm. H. Arnoux, of counsel), for app’lt; Michael H. Cardozo, for resp't.
   Follett, J.

The defendant is a fire insurance corporation, organized under the laws of the state of Pennsylvania. Section 1 of chapter 346 of the Laws of 1884, of this state, provides:

“ No fire, fire-marine, life or casualty insurance company or association, organized or incorporated under the laws of any other state of the United States or of any foreign government shall, directly or indirectly, issue policies, take risks or transact business in this state until it has complied with the insurance laws, and having first appointed in writing the superintendent of the insurance department of this state to be the true and lawful attorney of such company in and for this state, upon whom all lawful process in any action or proceeding against the company may be served with the same effect as if the company or association existed in this state. A certificate of such appointment, duly certified and authenticated, shall be filed in the office of the superintendent of the insurance department, and copies certified by him shall be deemed sufficient evidence in regard thereto. Service upon such attorney shall thereafter be deemed a service upon the company or association.”

The defendant was authorized to transact business in this state, and on July 7, 1884, duly appointed “ the superintendent of the insurance department of said state, or his successor in office, its true and lawful attorney in and for the state of New York, on whom all process of law, whether mesne or final, against said Fire Association, may be served in any action or special proceeding against said association in the state of New York, subject to, and in accordance with, all the provisions of the statutes of said state of New York now in force. * * * And the said attorney is hereby authorized and empowered, as the agent of said association, to receive and accept service of process in all cases as provided for by the laws of the state of New York, and such service shall be deemed valid personal service upon such association.” It is evident from the language of the statute that the .legislature intended that the superintendent as a public officer, and not as an individual, should be the one designated on whom process should be served. Such was the defendant's construction of the act, as appears from its power of attorney, and the learned counsel for both parties agree that this is the interpretation which should be given to the statute. August 18, 1892, the summons and complaint in this action were served upon the defendant by. the sheriff of the county of Albany, by delivery to and leaving copies with a clerk in the office of the superintendent at Albany, the superintendent then being absent. On the same day, a registered letter, covering the summons and complaint, was mailed to the defendant. The superintendent signed a written admission of service, which, on the 13th of September, 1892, be duly acknowledged and delivered to the plaintiff. The clerk with whom the summons and complaint were left was specially designated by the superintendent to receive the service of processes, and forward them to the defendants for whom intended. The motion to set aside this service is upon the sole ground that it was not made personally upon the superintendent. Necessity requires and the statutes authorize many of the duties of the various departments of the government of this state to be performed by deputies and clerks specially assigned by the heads of departments for such purposes.

By statute, the superintendent of insurance is authorized to appoint deputies, employ clerks, prescribe the duties to be performed by them; and under this general power he had authority to designate a clerk with whom processes intended for him might be left at the department. In case a summons so served is subsequently brought to the attention of the superintendent, and he admits service, it is binding on defendants. The design of the statute was to afford a certain and easy method by which the courts of this state may acquire jurisdiction of foreign corporations, who, as a favor, are permitted to carry on their business within this state; and it should be liberally construed, so as to advance the remedy which was intended to be provided for those having occasion to bring actions against such corporations. In this case the defendant authorized the superintendent to receive and accept service of process in all cases as provided for in the laws óf the state; and the superintendent having power, under those laws, to appoint, deputies and clerks, and prescribe their duties, we think the service in this case, authenticated as it was by the written admission of the superintendent, duly acknowledged, was valid.

The order should be reversed, with ten dollars costs and printing disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., and O’Brien, J., concur.


author: Macomber, J.

text:
    The People, Resp’ts, v. Austin J. Camp, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    1. Kidnapping — Confinement in insane asylum — Good faith.
    A father who, honestly believing that Irs daughter is insane, takes measures to have her placed in an insane asylum, cannot be held guilty of kidnapping merely because he did not exercise that care and discretion, which a jury may say an ordinarily prudent person should exercise.
    2. Same.
    Where the defendant, acting under the certificate of two reputable physicians, and the approval of the county judge, publicly took his-daughter to a public institution for the insane, it cannot be said that his act was done ‘ ‘ without authority of law,” or that her confinement was “secret;” and his conviction cannot be sustained by proof that she was sane at the time.
    Appeal by the defendant, Austin J. Camp, from a judgmenfeentered in Cayuga county, on the 3d day of July, 1891, on the conviction of the defendant at the oyer and terminer of the crime of kidnapping under § 211 of the Penal Code; and also an appeal by him from an order of the oyer and terminer denying his motion for a new trial.

      Frank D. Wright, for app’lt; A. P. Rich, for resp’ts.
   Macomber, J.

The defendant was indicted at the oyer and terminer of Cayuga county,' in October, 1890, for the crime of kidnapping. The trial came on in that court at the May term in 1891, when the defendant was found guilty of the crime charged in the indictment, under § 211 of the Penal Code. Judgment was entered in pursuance of a verdict, but not till after a motion liad been made for a new trial and denied. The defendant was sentenced by the court to confinement in the state’s prison for two- and one-half years. From that judgment and from the order denying the defendant’s motion for a new trial this appeal is taken.

The person alleged to have heen kidnapped was Adah Baird,, a woman aged twenty-nine years, who was one of the three children of the defendant She was, at the age of seventeen, married to one Several J. Baird; and, after cohabiting with her husband for five years, she left him, for good cause, and with her child took up her abode with her father in Moravia, IT. Y. After remaining with her father some time, she removed to the house of her grandfather, Jeremiah Camp, of the same village, who was a man of considerable property, but was, in a measure, helpless through blindness.

The People claimed upon the trial that the taking up of the residence by Adah Baird with her grandfather, and the expressed purpose of the latter to convey to her his house and lot then occupied by him, together with considerable sums of money, were acts inimical to the defendant, and furnished a sufficient motive for his subsequent conduct. While on the other hand much evidence is given to show serious aberrations of mind on the part of the daughter, justifying the belief that she was so far of unsound mind as to be incapable of properly caring for herself. On the 2d day of August, 1890, after conferring with a justice of the peace in regard to the matter, and being advised by the latter to see the county judge of Cayuga county in the premises, the defendant called upon the county judge and stated the case in regard to his daughter, who was represented by him to be insane. At such time the county judge said that he should appoint two entirely competent and disinterested physicians to inquire into the mental condition of the defendant’s daughter, namely, Dr. Allison, then in charge of the state hospital for the insane at Auburn, and another reputable and well-known physician by the name of Dr. Harter.

These physicians after the examination of Adah Baird, and after a conference with the defendant, in regard to her previous conduct, executed and delivered to the d efendant the usual certificate of insanity under chap. 446 of the Laws of 1874, and this certificate was duly approved by the county judge on the 5th day of August, 1890, and thereupon the defendant, having been furnished with such certificate and approval by the county judge, took his daughter to the state hospital for the insane at Htica, where she was detained for twenty-five days, and was then, by the doctors in charge of that infirmary, discharged as a sane person.

The section of the Penal Code under which the defendant was indicted is as follows: Sec. 211: A person who willfully, 1, Seizes, confines, inveigles or kidnaps another, with intent to cause him, without authority of law, to be secretly confined, or imprisoned within the state * * * is guilty of kidnapping, ana is punishable by imprisonment for not more than fifteen years.”

The learned justice at the trial ruled and decided in various forms that however honest the defendant may have been in his belief of the actual insanity of his daughter, yet if in instituting the proceedings culminating in her involuntary confinement in the state hospital at Htica, he did not exercise ttiat care and discretion which an ordinarily prudent man should exercise under like circumstances, the jury could convict him of the crime charged in the indictment

At the close of the People’s case in chief, on deciding the motion for a direction of a verdict for the defendant, the learned judge said: “ If he, the defendant, believed here Adah Baird, to be insane, then the question would have to be submitted to the jury, whether, under all the circumstances, the facts were such tending toward her insanity as would lead men of ordinary prudence and caution and discretion to believe that she was insane. That will be the question. His belief must be founded, as I said before, upon such a state of facts that an individual acting honestly, first, would believe her to be insane ; next, upon such a state of facts that a person of ordinary prudence, caution, discretion and intelligence would be led to believe, under the circumstances,- that she was insane. That he must have reasonable grounds of belief.”

In his charge to the jury, the learned judge further said: “ There is another question which I desire to call your attention to, and that is, whether the defendant had probable cause to believe that his daughter was insane. That does not depend so much upon the fact whether she was insane or not, if the apparent facts were such that a discreet and prudent person would be liable to believe that she was insane, and he acted upon that belief in good faith, then he would not be guilty of the crime, although she may not have been insane at the time. Upon the question whether the defendant had probable cause for instituting the proceedings, you are instructed that the true inquiry is, not what the actual facts were as to the insanity of the defendant’s daughter, but what did the defendant have reason to believe, and what did he believe in reference thereto, at the time he made the complaint. In other words, was there any foundation for making the complaint and was there any foundation for him, having known his daughter all her lifetime, in believing that she was insane.”

At the close of the charge, the learned counsel for the defendant asked the court to instruct the jury as follows: “ That if the jury have any reasonable doubt over the question submitted to them as to whether Camp had reasonable grounds to believe that his daughter was insane, that the doubt must be given to the defendant and they must acquit.” That proposition was charged. It will thus be seen that the verdict of guilty rendered by the jury may have been and probably was, under the facts disclosed, based upon the ground that while the defendant was sincere and honest in his motives, being desirous as the father of the supposed insane person to act solely for her good and that of her family; yet unless he exercised the care, prudence, foresight and circumspection which an ordinarily prudent man, under the standard to be erected by the jury themselves, should exercise, then they could find the defendant guilty of the charge made in the indictment. This we deem to be such an error as calls for a reversal of the judgment, irrespective of the contention made by the district attorney heretofore stated. This doctrine annihilates, as it seems to us, that essential element to a conviction of a person upon a criminal charge, namely a criminal intent. It is inconceivable that if the accused acted honestly and under such lights as he possessed, but still not with that- degree of intelligence and care which the jury, perhaps in an arbitrary way, might say an ordinarily prudent person should exercise, he could be convicted of the crime of kidnapping under this statute.

Furthermore, this doctrine assumes that the jury may find the motive, which so often plays an important part in criminal trials, was good and commendable.

If this doctrine were upheld, we should have, therefore, presented the anomalous situation of a conviction upon a criminal charge of a person who, actuated with honest motives for the benefit of a member of his family, instituted, without malice and without criminal intent, proceedings under a statute designed for the protection of the unfortunate. .With great deference to the learned justice presiding at the trial, we are constrained to hold that this ruling, though it may be applicable in a civil action to recover damages for false imprisonment, cannot be sustained under our criminal laws. Malice and negligence cannot thus be confounded together. Malice, says Wharton, Grim. Laws, 126, “ arises from an evil purpose, negligence from a failure of purpose, malice is imputable tú a defect of the heart, negligence to a defect of intellect.” “ Malice imports an evil intent, or wish or design to vex, annoy, or injure another." Penal Code, § 718, subd. 3.

Though in other portions of the charge of the learned justice, the jury was explicitly instructed that a criminal intent on the part of the accused must be found before he could be convicted of crime, yet it seems to us that the jury must have understood, •from the rulings and instructions hereinbefore quoted, that the defendant might be convicted of the crime of kidnapping if he failed to exercise a proper degree of foresight in the premises before instituting the proceedings for taking his daughter to the state hospital; and, for aught that we can find in the record, the verdict may have been found solely on that ground.

The foregoing views necessarily lead to a reversal of the judgment appealed from and to a new trial.

But there is another and a more radical reason why the conviction of the defendant cannot be upheld. Upon the trial it was proved that the defendant acted throughout under the provisions tif chapter 446 of the Laws of 1874, prescribing the steps necessary to be taken for the confinement of insane persons in the insane asylums of the state. Indeed, the indictment alleged that there was procured by the defendant the prescribed statutory certificate of two reputable physicians declaring the defendant’s daughter to be insane before her detention at the state hospital at Utica. Though the approval indorsed on such certificate by the county j udge is not alleged in the indictment, yet the same was proved, and could doubtless have been put in evidence as a part of the People’s case, being a material and necessary part of the warrant of authority to the hospital authorities for the detention of the patient for more than five days.

The learned district attorney has presented to us an argument to the effect that this indictment may be sustained, and the conviction of the defendant upheld, simply by proving to the jury that the daughter was in fact sane at the time that the defendant instituted these proceedings for her incarceration. We cannot assent to the conclusion reached by this argument, for the reason that it is contrary to the statute itself under which the defendant was indicted. Hor do the authorities upon which be mainly relies, Ayers v. Russell, 50 Hun, 282; 20 St. Rep., 323; Hurlehey v. Martine, 31 St. Rep., 471; the latter affirmed by the court of appeals, 128 N. Y., 657; 40 St. Rep., 978, which were civil actions to recover damages for false imprisonment, in any respect support the contention that a person may be convicted under the statute by such evidence alone. In order to sustain a conviction under the statute, there must be made to appear, besides the actual unwilling detention or imprisonment, two things: First. The seizure and confinement must be shown to have been, in the words of the statute, “ without authority of law.” This language “ without authority of law ” has no reference whatever, as counsel seem to think, to “due process of law.” If the statute is observed, as was done in this instance by the defendant whose acts were regulated by its provisions, how can it be said that the imprisonment by the defendant of his daughter was “ without authority of law ? ” The two reputable physicians certified to the daughter’s insanity, and the county judge duly approved thereof under the statute, and the same was placed in the defendant’s hands before he took any steps towards her restraint or removal to the state hospital. In no sense can the act, with which the defendant is charged, be said to have been done “ without authority of law.” The burden of proof rested with the People to establish their allegation in this; regard, and they failed to do so.

Secondly. The imprisonment or confinement must be shown to have been done “secretly.” The phrase of the statute is, “to be secretly confined or imprisoned within the state.”

In this respect, also, the People failed to establish any case against the defendant. Nothing could have been more public than the taking of the supposed insane person, and her detention in one of the public institutions provided by the state for insane persons.

The People having failed to make a case against the defendant in the two particulars last mentioned, the motion that the court advise the jury to acquit the defendant should have prevailed. As it is manifest that no stronger case can be made out Jby the People, a new trial seems to be unnecessary.

It follows that the judgment and conviction should be reversed.

Judgment and order appealed from reversed and the defendant discharged.

Dwight, P. J., and Lewis, J., concur.


author: Rumsey, J.

text:
    Esek Page et al., App’lts, v. Albertus Larrowe, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Chattel mortgage — Future crops.
    At the time of making a lease of farming land the lessee, to secure a prior indebtedness to the lessor, gave her a chattel mortgage on all his share of grain, etc., growing or to be sown and grown on said farm. After entering into possession under the lease he sowed buckwheat, and when the same was harvested he sold it to defandant, who made it into flour, which he sold. In an action by assignees of the chattel mortgage for conversion, Meld, that said buckwheat so sold to defendant was not covered by the mortgage.
    Appeal from judgment of the Steuben county court, reversing judgment of a justice of the peace in favor of plaintiffs. The following is the opinion of Rumsey, J., acting as county j udge, in this and five other actions brought by plaintiffs against different parties.
   Rumsey, J.

This case, with five others, is an appeal from a judgment rendered by a justice of the peace, and it has been certified into this court. The facts are quite simple. In November, 1886, one Teeter rented of Ella M. Tucker a farm, by lease to begin March 1, 1887. At the time of making the lease Teeter owed Mrs. Tucker $505. To secure this sum he gave her a chattel mortgage upon all of his share of grain, potatoes, straw, hay and stock that is growing or to be sowed or grown on the farm which he had leased.

The debt to secure which the mortgage was made was due in part January, 1889. Tucker went into possession of the farm under his lease in March, 1887, and in proper time that spring he sowed buckwheat and planted potatoes. He cut the grass growing upon the farm as it became fit. Afterwards and in the fall of 1887 Teeter sold to Larrowe eighty-four bushels of the buckwheat, which Mr. Larrowe made into flour and sold. The chattel mortgage was afterwards sold to the plaintiffs, who sued Larrowe for the conversion of the buckwheat. The point is made by Larrowe in this appeal, which he takes from the judgment against him in that action, that the grain had no existence and had not even been sown when this mortgage was made, and, therefore, the mortgage was void. The fact is, that not only was the grain not in existence, but the term of the lessee, Teeter, bad not begun, when he made this mortgage. The mortgage was not made to secure the rent, but a debt which had no connection with the rent.

In examining the point raised by defendant, it is to be remembered that the action was originally brought in a justice’s court, and, therefore, no equities of the parties' can be regarded or protected, Cressey v. Sabre, 17 Hun, 120.

The single question is, what are the legal rights of the parties.

The rule at law with regard to the validity of chattel mortgages is well settled that such a mortgage can operate only on property actually in existence at the time of giving the mortgage and then belonging to the mortgagor, or potentially belonging to him as an incident to other property of his then in existence. If he does not own the goods mortgaged, or if they do not potentially exist, the mortgage is void at law. Brunswick, etc., Co., v. Stevenson, 21 St. Rep., 862.

Property is said to belong to one “ potentially ” when it is the ordinary increase or growth of other property which he has, as fruit or grass from his farm, or milk from his cow, or wool from his sheep. Conderman v. Smith, 41 Barb., 404; Farmers' Loan & T. Co., v. Long Br Imp. Co., 27 Hun, 89.

In this case Teeter, when the mortgage in question was made, had not sowed the buckwheat. Indeed, he did not sow it until June, 1887. So far as crops subsequently put in are concerned, the case is like that of Cressy v. Sabre, 17 Hun, 120, and within the rule of that case the judgment against Larrowe must be reversed. Milliman v. Neher, 20 Barb., 37; Williams v. Briggs, 16 A. L. J., 387; 22 Am., 653 note.

But the plaintiffs claim that the case of Cressey v. Sabre has been overruled by the later case of Smith v. Taber, 46 Hun, 313; 14 St. Rep., 644. That case, however, does not overrule Gressey v. Sabre, but the opinion expressly says that the two cases are not alike. In Smith v. Taber the tenant, under whom the purchaser claimed, had agreed in the lease that the plaintiff, who was his landlord, should have a lien upon the title to all the crops to secure the rent, and that fact is relied upon by the court to take the case out of the rule of Cressey v. Sabre. But that is not the state of affairs here. The mortgage to Mrs. Tucker had nothing to do with the rent, but was entirely a separate matter. Had the lease under which Teeter took the right to put in the crops provided that the title to them, should vest in the landlord, and had the plaintiffs claimed under that contract, a different question would have been presented and the case would have been within Smith v. Taber. But that state of affairs is distinguished by the court in Cressey v. Sabre. In those cases the right of the landlord to the crops is not put upon the ground that the provision in the lease operates as a chattel mortgage, but that the crop becomes the property of the landlord as soon as it begins to exist by virtue of the contract which brings it into being, Andrew v. Newcomb, 32 N. Y., 417, 419, and the tenant never had any title to it. Such is clearly the ground upon which the court puts the decision in the case of Smith v. Taber in distinguishing it from Cressey v. Sabre. But that is not the case here, for when the crop was sowed it belonged to Teeter, and his mortgage was void because it was given before the property had come into existence. These considerations control also the case of Herbert, so far as the plaintiffs were allowed to recover for the potatoes planted by Teeter. But the rye bought by him presents a different state of facts. That was put in by Mrs. Tucker before the lease of Teeter, and it belonged to her, and it passed to plaintiffs by the chattel mortgage made by her, which was duly filed. As to the rye the judgment against Herbert must be affirmed.

Besides the two cases against Larrowe and Herbert, spoken of above, the plaintiffs recovered four other judgments for hay which had been cut by Teeter, in the summer of 1887, on this farm, and had been by him sold to the several defendants against whom the judgments were recovered. Hone of these defendants are shown to be purchasers of the hay in good faith for value paid at the time, and, therefore, the only question presented is whether the hay, which was cut in the summer of 1887, was intended to be covered by the mortgage which Teeter gave to Mrs. Tucker. As we have seen, the hay, which was made from grass growing upon that farm, was potentially the property of the person owning the farm, and it might have been mortgaged as the property of such owner in the fall of 1886. The question, then, is whether Teeter was such owner in the fall of 1886. The lease was dated Hovember 20, 1886, which was the date of the mortgage, and it took effect on the 1st day of March, 1887. Between the date of the lease and the 1st day of March, 1887, Teeter had an interest in the term, as it is called. Young v. Dake, 5 N. Y., 463, 467; Leake on Real Prop., 314.

Such an interest, however, is a right and not an estate in the land, notwithstanding such right is in the lessor. Doe v. Walker, 5 B. & C., 111.

The estate of the lessee continues during the term granted, and that term does not begin until the time at which the lessee has the right to go into possession. Until that time, therefore, the lessee Teeter was not, in any sense, the owner of the farm. How, as we have seen, one can be said to be the potential owner of property only when he is the actual owner of other property, of which the potentially owned property is a natural incident of growth. In this case, while the hay was the natural incident of the farm, Teeter had no interest in the farm when he made the mortgage, and, therefore, was not the potential owner of the hay. For that reason he did not, by his mortgage, create a lien on the hay.

D. M. Darrin, for app’lts ; O. S. Searl, for resp’t.

But the plaintiffs claim not only under a mortgage made by Teeter, but also under one made by Mrs. Tucker, in November, 1886. She was then the owner and in possession of,the farm. A mortgage made by her on the grass growing on the farm, which should thereafter be made into hay, if properly filed, was good as to third parties, whatever may have beén its effect upon the rights of Teeter, or however it may have made her liable to Teeter upon her implied covenant for quiet enjoyment.

It follows that the plaintiffs claim the hay under the chattel mortgage of Mrs. Tucker.

Judgment appealed from affirmed, with costs, on opinion of Rumsey, J., and on authority of Rochester Distilling Co. v. Razy, 48 St. Rep., 301.

Dwight, P. J., Macomber and Lewis JJ., concur.


text:
    Ada Evoy, Resp’t, v. The Expressmen’s Aid Society, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Process — Amendment—Error in name op dependant.
    The action was brought against defendant as a foreign corporation. The answer alleged that defendant was a voluntary association and not a corporation. It appeared that a number of persons were engaged in business under the name of the Expressmen’s Aid Society, one of whom was served. Held, that as the action was brought against the right body of persons, but under the wrong name, plaintiff having been misled by their use of such name, it was proper to allow an amendment of the summons by substituting the names of the persons constituting the association as defendants.
    Appeal by the defendant, Expressmen’s Aid Society, from an order made at special term of Erie county, and entered September 9, 1892, amending the summons by inserting as defendants, in place of Expressmen’s Aid Society, the names of sundry persons composing a voluntary association doing business under the name of Expressmen’s Aid Society.

      E. C. Sprague, for app’lt; Duckwitz, Thayer & Jackson, for resp’t.
   Macomber, J.

This action was brought to recover the sum of $2,000 upon a certificate of membership and insurance, issued in the name of the defendant to the husband of the plaintiff, payable to the plaintiff as the wife of the insured; James G. Evoy. The allegation of the original complaint was, that the defendant was a foreign corporation organized under and by virtue of the laws of the state of Ohio. The answer alleged, that the defendant was a voluntary association and not a corporation. A motion was accordingly made by the plaintiff to amend the title of the summons, so as to substitute in the place of Expressmen’s Aid Society the names of the persons constituting this voluntary-association. The moving affidavits show that the defendant had no president or secretary residing in the state of New York.

We think the order in this case was properly made. The appeal is taken in the name of the “ Expressmen’s Aid Society.” The order as made and entered required the respondent to serve-all the defendants named as constituting the persons forming the voluntary company. There is no doubt but that the plaintiff intended'to sue the company doing business under the name of the “ Expressmen’s Aid Society.” She made a mistake in the name of the parties conducting the business in the name of that company. The person served was a member of the voluntary association. The action appears, therefore, to have been brought against the right body of persons, but under the wrong name, and hence it was eminently proper for the court to make the amendment asked for in the notice of motion. There is no such corporation as the “ Expressmen’s Aid Society,” but there is a body of men doing business under that name, one of whom, it was shown was served with the original process in the action against the “ Expressmen’s Aid Society.” The case is unlike those relied upon by the learned counsel for the appellant where a party had actually sued a real corporation for a cause of action existing against a copartnership. But there is no such complication in the papers on this appeal. Indeed, opposition to the motion seems to have been rather technical than substantial; for even if the appeal had been taken by the parties who were brought in and substituted in the place of the defendant, they would hardly be expected to succeed, for the reason that their own conduct by using the name of “Expressmen’s Aid Society,” in the transaction of their business, misled the plaintiff. Much, less could the appeal be expected to be successful when taken in the name of a corporation that had no existence whatever. The special term, we think, properly refused to impose any terms of making the amendment. This manifestly was upon the ground that the plaintiff had been misled by the conduct of the parties carrying on the business in the name of the “ Expressmen’s Aid Society.”

The order appealed from should be affirmed.

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

Dwight, P. J., and Lewis, J., concur.


author: Lewis, J.

text:
    The Penn Mutual Insurance Co., Resp’t, v. Edwin C. Bradley, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    1. Principal and agent — Estoppel—Foreign insurance companies.
    One who has received moneys as agent in this state for a foreign insurance company cannot, when called upon for payment, he allowed to set up as a defense that such company was not authorized to do business in this state.

      2. Same — Pleading—Counteeclaim.
    _ In an action for such moneys, an allegation in the answer that the plaintiff has failed and refused to pay defendant the compensation provided for by the agreement set forth in the complaint, which is reaffirmed as part of the answer, and that there is due from plaintiff a certain sum, does not constitute a counterclaim, and it is not error to refuse to find such allegation as a fact because of a failure to reply thereto.
    Appeal by the defendant, Edwin G. Bradley, from a judgment entered against him and Harvéy BE. Bartholomew and Nelson S. Williams, as co-partners, in the Cattaraugus county cleric’s office, on the 11th day of January, 1892.

      Rufus Scott, for app’lt; J. R. Jewell, for resp’t.
   Lewis, J.

There is but one cause of action stated in the complaint. It was so held by this court upon an appeal from an order made in this action where that question was presented, and that is for money had and received by the defendants for the plaintiff while they were acting as plaintiff’s agents in procuring life insurance and collecting premiums, which premiums they failed to pay to the plaintiff and converted to their own use.

The appellant contends that the plaintiff was not entitled to recover the premiums for the reason that the company was not authorized to do an insurance business in the state of New York. There are two answers to this contention. The plaintiff’s complaint alleges that it was authorized to do an insurance business in the state of New York, and that allegation is admitted in the defendant’s answer to be true, and the defendants having received the money, as plaintiff’s agent, they are not at liberty, when called upon for payment, to set up such a defense.

The' referee did not err in refusing to find as facts the allegations in the third count of the defendant’s apswer because the plaintiff had neglected to reply thereto.

The facts stated do not constitute a counterclaim, and, therefore, nothing was admitted by plaintiff’s failure to interpose a reply.

The count is as follows :

“ Third answer: For third and other answer and as counterclaim the defendant alleges, upon information and belief, that the plaintiff failed and refused to pay the said defendants the compensation provided for by the terms of said written agreement set forth at folio five, of the complaint and herein admitted and now reaffirmed as part of this answer, and that there is due the defendant from the plaintiff therein the sum of $1,200, no part of which has ever been paid.”

If that portion of the complaint referred to should be incorporated into the defendant’s said third answer, it would still fail to state a cause of action.

The report of the referee is fully sustained by the evidence, and no reason appears for a reversal of the judgment.

The judgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.


author: Daniels, J.

text:
    The Thames & Mersey Marine Insurance Co., Limited, Resp’t, v. Kate E. Dimmick, Ex’rx, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    1. Attachment — Recitals—Correction of.
    Where the affidavits for an attachment set forth that defendant has been tried and convicted of an offense, which conviction was reversed by the general term, but affirmed by the court of appeals, and that on hearing of such affirmance defendant immediately fled to Canada, a recital in the attachment that he has departed from the state with intent to defraud creditors is at most an irregularity without injury to the defendant or subsequent attaching creditors, and, therefore, to be amended as a matter of course or disregarded.
    3. Same.
    Such facts show that he deparled to avoid imprisonment and with an intention not to return, and hence show non-residence.
    Appeal by the Continental Insurance Co., a subsequent attaching creditor, from an order made by Judge Daniels October 1, 1890, denying its motion to vacate the attachment procured by the plaintiff, and ordering that said attachment be amended nunc pro tunc. Also motion to dismiss said appeal.
   The following is the opinion below:

Daniels, J.

This action was brought to recover money charged to have been unlawfully obtained, and for money misappropriated by the defendant, Lorenzo Dimick, while acting as an insurance agent for the plaintiff, and an attachment was obtained therein against Ms property on the 5th day of October, 1887. His property was seized by the sheriff by virtue of the attachment. While the attached property was in this manner held by the sheriff, and on the 3d day of November in the same year, another attachment was obtained in favor of the Continental Insurance Company in an action commenced by it against the same person, under which the same property was again attached by the sheriff, and on the 12th day of December, 1887, motion papers were served in behalf of the second attaching creditor to vacate the first attachment, and this motion was denied in February, 1888, on account of the insufficiency of the affidavits made to show the issuing and service of the second attachment. Leave was given to amend this motion, and further motion papers were served soon thereafter, and that motion has been continued until it was recently and finally submitted for decision.

The affidavits presented in favor of the Continental Insurance Company now sustain the necessary facts to entitle it to make this motion, and the notice by an amendment permitted to be made fully presents the objections deemed to exist to the papers upon which the plaintiff’s attachment was issued. Upon the argument of the motion the plaintiff’s counsel proposed to read further affidavits' in support of its attachment, and in case they should be received, the counsel for the Continental Insurance Company presented still further affidavits to meet and avoid those in this manner offered for the plaintiff. But as the affidavits served with the notice of motion go no farther than to prove that the Continental Insurance Company had acquired the rights of an attaching creditor, and was, therefore, regular in making its motion, further affidavits on the part of the plaintiff cannot be received. Where the motion is founded solely upon objections to the original papers, as this motion has been, there neither the Code, nor the practice which has grown up under its provisions, permit the preceding attachment to be sustained by the use of additional affidavits to those on which it has been issued, Code Civil Pro., § 682-3; Sutherland v. Bradner, 34 Hun, 519; Ruppert v. Haug, 87 N. Y., 141; Head v. Wollner, 58 Hun, 615; 25 St. Rep., 645; Buhl v. Levy, 41 Hun, 61; 2 St. Rep., 270, and it necessarily follows, as these affidavits must be rejected, that a like disposition must be made of those proposed to be read in reply, and the motion must be decided upon the effect of the affidavits upon which the plaintiff’s attachment was obtained.

It does appear from these affidavits that the plaintiff had a just cause of action against the defendant Dimick for the recovery of money fraudulently obtained by him, and which he misappropriated while he was acting as and in the capacity of the plaintiff’s agent, and that the amount stated to be owing by him was over and above all counterclaims known to the plaintiff or to its managing agent in the United States, by whom one of the principal affidavits was made. It was then added that this defendant had been indicted, tried and convicted on one of the fraudulent charges made against him. That he had afterwards appealed from the judgment to the general term, which reversed his conviction, and the case was then appealed to the court of appeals, which reversed the order of the general term and affirmed the conviction by a decision announced on the 4th day of October, 1887. It was then stated, on information and belief, that on the decision becoming known at the city of Buffalo, where the defendant then resided, he had absconded and fled to Canada, where he then was, and that he had departed from this state to evade his sentence of five years imprisonment, and also for the purpose of defrauding his creditors. That he did leave this state in this manner is manifest from the further affidavit made by Frank B. Grimm, who, as a detective, was employed to follow and watch his movements. He swore that Dimick entered the office of his counsel shortly after one o’clock, on the same day, where he remained three or four minutes, and that “he then came out, went tó Niagara square, I following him, took a car on Niagara street to Hertel avenue; at the barns on Niagara street, I got out of the buggy in which I was following him ; got aboard the car and rode on the rear platform, he riding on the front platform; at Hertel avenue Lorenzo Dimick got out and walked down to the ferry, and I followed him ; in order not to attract his attention, I went out to the end of the dock, leaving the said Lorenzo Dimick about the waiting-room ; when I returned to the waiting-room he had gone and I could not find him, though I diligently searched for him; he was not in the neighborhood ; I saw a small row-boat out in the river with a passenger in the stern, and I afterwards learned that that man was Lorenzo Dimick.” This affidavit so far confirmed the affidavit of the managing agent as to establish the fact that this defendant had left the state and escaped to Canada to avoid imprisonment under the sentence pronounced upon him under his conviction upon the indictment. This departure was, evidently hasty and intended to be permanent, following information of the affirmance of his conviction. It does not appear that he took his property with him, or made any disposition of it, ■or of any part thereof, before or in anticipation of his flight. All that was shown was that it was probable that he had heard of the decision of the court of appeals against him, and that upon the impulse produced by that information he fled to Canada to avoid punishment. That was evidently his sole motive, and the facts, therefore, failed to support the conclusion that it was any part of his design by his flight to defraud his ■creditors. His object was to avoid punishment and that alone.

If it had been to-defraud his creditors the step would probably have been taken before. But so far from contemplating it, he remained in the state as he previously had, until knowledge of this adverse decision came to him, and then immediately took his departure into a foreign country. One construction only can be placed upon this act, and it is that which has already been stated.

The attachment was obtained the day following the defendant’s flight. And to comply with the requirements contained in § 641 of the Code of Civil Procedure, that it must briefly recite the grounds for it, the statement was made in it “ that the defendant, Lorenzo Dimick, a resident of this state, had departed therefrom with intent to defraud his creditors.” That he, as a preceding resident of the state, had departed from it, was true in fact, but that this departure was the result of an intention to defraud his creditors did not follow, but was an incorrect assertion. And, so far as the attachment may have depended upon this recital, it was irregular. First National Bank of Marietta v. Bushwick Chemical Works, 25 St. Rep., 830; 17 Civ. Pro., 229.

But this error in the recital, irregular as it is in this respect, will not require the attachment to be vacated, either on the defendant’s application, or that of the subsequent attaching creditor. Por the motion to vacate by either has not been expressly provided for on account of a defect of this nature contained in the .attachment itself. But it has been provided that it “ may be founded only upon the papers upon which the warrant was granted," which are clearly distinguished from the attachment by the reasonable as well as clear import of this language, “ or it may be founded upon proof by affidavit, on the part of the defendant,” which in like manner provides for the employment of means differing from the attachment itself. And these are the only modes in which the motion has been specially provided. Code Civ. Pro., §§ 682, 683. In the first case it has been restricted to the papers on which the warrant has been issued, and in the second to affidavits served on behalf of the moving party, when it may be resisted by further affidavits in support of the attachments. The motion to dismiss because of an erroneous recital in the attachment must, therefore, depend, if it can be maintained at all, on the general practice provided for the correction of mere irregularities, and when it may be so made it becomes subject to the power of the court to alllow them to be corrected.

This power is very broad, so much so as to include this objection. By § 721 of the Code of Civil Procedure, various defects are enumerated which may be corrected and supplied, and § 722 has been made to include any others of like nature not being against the right and justice of the matter, which must, when necessary, be supplied and the proceeding amended. And the following section has still further broadened this authority by including within it any process, pleading or other proceeding. The attachment is a proceeding, and the authority to amend it has-been extended to a mistake in any respect, and then it .has been directed that “ in every stage of the action the court must disregard an error or defect in the pleadings or other proceedings which does not affect the substantial rights of the adverse party.”

This misrecital in no respect produced any injury to the defendant, or the Continental Insurance Company. But so far as each are interested, it was entirely and completely harmless. It was, at most, an irregularity without injury, and, therefore, to be either amended as a matter of course, or disregarded; and these directions have been so understood and followed in other cases, Kibbe v. Wetmore, 31 Hun, 424; Viadero v. Viadero, 7 id., 313, and they may properly.be here applied.

It is not important that the defendant in the attachment, or his executrix, against whom the action has been revived since he became deceased, is not a party to the motion, for that has not been made, essential to the exercise of the authority by these sections of the Code provided. But whenever the proceeding containing any of the defects referred to is brought before the court, it is to be corrected or the defect disregarded. Presenting the objection founded on the mistake, or defect, will at once bring the power to amend into activity, to be followed and applied to its correction. And that this is a proper case for the correction follows from the fact that the affidavits proved the fact to be that Dimick, although previously a resident of the state, had departed from it under circumstances evincing his intention to be not to return again, but to remain away from the state, and that at once terminated his residence in the state.

From that time and his arrival there, he became a resident of Canada, which was the ground upon which the Continental Insurance Company obtained its attachment. No length of residence was necessary to produce this change, but it was effected when he left this state, as he must be inferred to have done, and took up his residence in Canada to avoid the punishment he had incurred for the violation of its laws. The case is unembarrassed by the uncertainty which was presented in Mayor v. Genet, 4 Hun, 487; affirmed, 63 N. Y., 646, for his departure from the state could not surely be made to appear, but yet it was held that he had probably departed from its boundaries and could be held to have become a resident of some other state or country. In this case no reason arises for doubting the fact that this defendant did leave this' state and proceed to another country, intending there to take up his immediate residence and to remain, which at once ended his residence here and transferred it to Canada.

Butler, Stillman & Hubbard (Ansley Wilcox, of counsel), for app’lt; Evarts, Choate & Beaman (Henry W. Hardon and Treadwell Cleveland, of counsel), for resp’t.

The residue of the recital in this attachment has also proceeded so far as to suggest the making of a change of residence by the debtor; for it is said that he “ has departed therefrom,” and the additional fact that this was with the intent to defraud his creditors indicates the departure to have been permanent for the time, from which it might be plausibly inferred that he had ceased to be a resident of this state. But without depending upon this criticism, it must, under the authorities, as well as the statutes, be held that whatever error or misrecital has taken place has been in no way injurious to the defendant or the Continental Insurance Company, and must be either disregarded or allowed to be amended.

The motion will, therefore, be denied, without costs; and if the plaintiff shall elect to amend this recital, it will be allowed to be ¿.one by stating the non-residence of the defendant in its attachment, on payment of ten dollars costs of opposing the motion.

Plaintiff’s motion to dismiss appeal denied, with ten dollars costs and disbursements.

Order appealed from affirmed on opinion of Daniels, J., at special term.

Dwight, P. J., Macomber and Lewis, JJ., concur.


author: Dwight, P. J.

text:
    Edgar D. Mather, App’lt, v. Emeline D. Martin, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Bills and notes — Inconsistent defenses — Weight of evidence.
    In an action upon a note made by defendant in her business name to her own order and indorsed by her, the answer denied that it was given for any consideration, but alleged that it was given under a mistaken belief that plaintiff held another note on which she was holden, and was given in payment thereof; also that it was given in consideration of the surrender of a note of a third person upon which defendant had not been charged as indorser. On the trial her agent testified that said note was made and delivered to plaintiff as a mere memorandum to show on the books of the bank for the note of such third party which had been entrusted to him to trY to collect; which was denied by plaintiff. Said agent on discovering that the last mentioned note had not been protested, made no suggestion that defendant’s note had been made under any mistake or misunderstanding or ask its return, or return the other, and defendant on the last day of grace waived notice of protest. Deld, that a verdict in favor of defendant, involving a finding that the note was made as testified by the agent, was against the weight of evidence.
    Appeal by the plaintiff from a judgment dismissing his complaint, entered on the verdict of a jury at the Ontario circuit, and from an order of the same court denying his motion for a new trial on the minutes of the court; 'also from an order of the Monroe special term denying his motion for a new trial on the ground of newly discovered evidence.

      H. M. Field, for app’lt; J. H. Metcalf, for resp’t.
   Dwight, P. J.

On the 28th day of October, 1890, the defendant gave to the plaintiff a promissory note for $501.50, made by her in the name of the “ Cbapinville Wheel Works,” which was the name in which she did business, payable one month from date, to her own order, and indorsed by her in her individual name. On the last day of grace, for no apparent purpose except to save protest fees, she voluntarily sent to plaintiff a written waiver of demand and notice to charge her as indorser. Being sued on the note in this action, she put in a verified answer by which, after admitting all the allegations of the complaint except the conclusion of indebtedness, she denied that the note was given for any consideration whatever, but alleged that it was given “ under a mistaken belief that the plaintiff held a certain other note which' this defendant was hoi den to pay, and that this note was given in payment thereof; that she had taken several notes of a corporation known as the • “ Auburn Wagon Company. Limited,” which she had procured to be discounted by the plaintiff at his banking house in Shorts-ville, among which was one for $500,xpayable at the National Bank of Auburn, which fell due on the 9tli day of October, 1890, which she had before maturity indorsed and delivered to the plaintiff, but which was not presented for payment at the time and place when and where it was made payable, and that she had never been charged as indorser thereon; that on the 28th day of October, 1890, the plaintiff presented to her agent the last mentioned note, which became due on the 9th day of October, 1890, “ stating that the same had been returned to him and he wished the defendant to look it up, and requested that this defendant should give her note to the plaintiff for that amount, as he wanted some security in his bank to show for it; that the agent of the defendant, supposing that the note the plaintiff held was another note of said wagon company for $500, which had been discounted to the plaintiff and which was due, said agent had this defendant make, and said agent delivered to the plaintiff the note mentioned in the plaintiff’s complaint; that the only consideration for the making and delivery of said note mentioned in the plaintiff’s complaint was the surrendering of the note of the “ Auburn Wagon Company, Limited,” which became due on the 9th day of October, 1890, and upon which this defendant had not been charged as an indorser, and was not in any way liable or hoi den to pay.” And for a further answer and defense, she set up a counterclaim for damages in the amount of the note in suit with interest from its date, which damages she alleged she had sustained by reason of the neglect of the plaintiff to cause the note of the wagon company to be duly presented for payment, when, as she alleges, it would have been fully paid.

It is apparent that these several defenses, though verified in a body, cannot all be true. Certainly, the defendant could not have sustained the damage alleged by the failure of the plaintiff to present and demand payment of the wagon company note, of which she had already had the avails, unless she had, at least, become liable to pay the note in suit; nor- is it quite apparent that the first and second defenses are consistent with each other.

But, however this may be, it is quite certain that neither of the defenses alleged in the answer is consistent with one ground of the defense as made on the trial and submitted to the jury. We have seen that the theory of the answer was either that the note in suit was given in payment of a supposed note ‘‘ which the defendant was holden to pay," or that it was given in consideration of the surrender of the note of the wagon company, due October 9, upon which the defendant had not been charged as indorser and which she was not liable to pay. Whereas the defense testified to by the agent of the defendant, and submitted to the jury, was to the effect that the note in suit was not given even in payment of any supposed note, nor in consideration of the surrender of the specified note of the wagon company, but on the contrary was made, indorsed and delivered to the plaintiff not as a note at all, but as a mere memorandum to show on the books of the bank, for the note of the wagon company which the plaintiff merely entrusted to the defendant’s agent to see if he could collect it for him.

Probably if the evidence on the part of the defendant, which tended to establish this extraordinary defense, had been objected to on the ground that it was contrary to the allegations and admissions of the answer, it would have been excluded; or if at a later stage of the trial the attention of the court had been called to the state of the pleadings in that respect, the evidence in question would not have been submitted to the jury as the possible basis of a verdict for the defendant. But there was no such objection to the evidence nor any exception to its submission to the jury, nor was there any exception taken on the trial which points to error which would be fatal to the judgment.

Nevertheless we think this verdict ought not to stand because it is contrary to the just weight of the evidence, even upon the new issue made on the trial. In that respect the evidence on the part of the defendant seems to us to be as inconsistent with admitted facts and with the presumptions to be drawn therefrom, as it is with the admissions of the answer. The defendant’s agent himself testifies that he discovered, immediately after the wagon company’s note was delivered to him, that it had not been protested, and that he asked for and received an explanation of that fact from the plaintiff, but made no suggestion that the note in suit had been made and delivered to the plaintiff under any mistake or misunderstanding in that respect. He did not ask- to have it returned on that ground, nor offer to return the wagon company’s note upon the surrender of which it had been given.

On the contrary, he retained the latter note, took it to Auburn and put it into the hands of attorneys there for collection or judgment. The wagon company having gone into the hands of areeeiver, the note was afterwards returned to the defendant and held by her without offer to return it to the plaintiff, or request for the return of the note in suit, until after the trial of this action, and on the last day of grace of the latter note, without any request from the plaintiff, she gave to him written notice of waiver of demand and notice to charge her as its indorser.

In the face of these facts, taken in connection with the inherent improbability of the theory of the new defense first propounded on the trial and the. positive testimony of the plaintiff to the contrary, we think the verdict of the jury, which, under the charge of the court, involved a finding that the note in suit was not made and delivered as a note, but as a mere memorandum to serve the purposes of the plaintiff’s bookkeeping, was so far contrary to the just weight of the evidence as to indicate prejudice or partiality on the part of the jury, and that on that ground the motion for a new trial should have been granted.

The judgment and order denying the motion for a new trial on the minutes should be reversed and a new trial granted, upon payment by the plaintiff of the costs of the circuit at which the action was tried.

So ordered, with costs of the appeal to abide the event.

Macomber and Lewis, JJ., concur.


author: Hatch, J.

text:
    Martha Taylor, Resp’t, v. Henry D. Kirkover, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed February 3, 1893.)

    Lease — Pbooe op making.
    In an action for rent under an alleged oral lease for six months, the evi- . dence tended to show that defendant, who had occupied the premises for two years, sent his wil e to plaintiff with a request that they might rent them for six months and perhaps longer ; that plaintiff replied that she wished to sell, and if she did not do so would rent to them ; that defendant made an arrangement with the agent employed to sell the property by which he could remain by the month. Feld, that a finding that there was a lease for six months was against the weight of evidence.
    Appeal from a judgment entered upon the report of a referee.

      Geo. T. Wardwell, for resp’t; John Cunneen, for appl’t.
   Hatch, J.

The complaint herein alleged that the plaintiff prior to May 1,1890, leased to the defendant certain premises, specifying them, for the term of six months from said May 1st, for and at the agreed price of one hundred dollars a month payable on the first day of each month. That defendant took possession of and occupied said premises under this agreement and has made defaults in payment for four months, whereby there became due and owing to plaintiff the sum of $400, with interest thereon, from the several dates when payment fell due, for which sumf with interest, plaintiff demanded judgment. The answer is a specific denial of the complaint. Upon the trial plaintiff gave evidence which she now claims is sufficient to uphold a recovery under the allegations of the complaint. Upon a submission of the case the referee found the agreement as alleged in the complaint, and ordered judgment for plaintiff based thereon. At the close of the proof plaintiff moved to amend her complaint, as stated, “ to conform to proof, so that if the court finds that no agreement was made for the renting either for six months or from month to month, the complaint shall allege a renting for a year from May 1,1890.”

This motion was denied and the case disposed of upon the theory of an agreement for a term of six months, and entry thereunder, as alleged in the complaint, and default made in payment. The plaintiff having tendered this issue and the referee having ruled that there was none other in the case, this appeal is to be disposed of upon such theory and none other. Nealon v. Grand Trunk Railway, 5 St. Rep., 256; McKechnie v. Ward, 58 N. Y., 546; Vail v. Long Island R. R. Co., 106 id., 283; 8 St. Rep., 701.

While it is true that it appears from the testimony that defendant was in the prior occupation of the premises under a written lease, yet it is equally true that when the written lease was offered in evidence the defendant objected upon the ground that it was irrelevant The fact that the referee overruled the objection and received the lease in evidence cannot now be made the basis to uphold a recovery for rent based upon a holding over after the expiration of the term. First, for the reason that the complaint and referee’s finding excludes any theory of holding over after the expiration of the term, and second, the evidence was entirely irrelevant for that purpose. It was doubtless competent as showing the relation of the parties and the referee’s findings show it to have been limited to that purpose, otherwise it would have been error to receive it, as it was not within the issue. This, therefore, removes from our consideration much of the argument of respondent’s counsel and leaves the disposition of this case to stand or fall based upon a consideration of the testimony which furnished the ground of the finding.

It is barely possible, by indulging in some presumptions of doubtful propriety, to spell out enough from plaintiff’s testimony to say that a contract of rental for six months was made. It is not essential, however, to pass upon this question in the view we take of the testimony. The burden of proof was upon plaintiff to establish, by a satisfactory preponderance of evidence and circumstances, a contract of rental as alleged in the complaint Her proof upon that subject is found in the testimony of herself and two daughters, Mrs. Oornwell and Mrs. Bartlett, and is to this effect: That defendant was in the occupation of the premises at the time of the claimed contract, and had been for two years prior thereto. Plaintiff testified that she first proposed that defendant should continue in possession for another year; this was not accepted. A few weeks prior to May 1, 1890, defendant’s wife called upon plaintiff and said; “ They would like to retain the house for at least six months and perhaps longer; that they would be away most of the summer, but that they would prefer keeping their furniture there. * * * I said to her that I was very anxious to sell the house, but that if it was not sold they could stay and I would be very glad to have them.”

Mrs. Cornwell testified that she was present, in the spring of 1890, when Mrs. Kirkover called; was in adjoining room and heard the conversation. Mrs. Kirkover said “ she wanted the house for six months anyway and perhaps longer. She said nothing about going away, but that is all I remember. I do not know what my mother said.” Martha Bartlett testified that she was with her sister. Mrs. Kirkover said she came to see if “ Mrs. Taylor would rent the house for six months longer. My mother said that if she did not sell it she would rent for six months longer. Mrs. Kirkover said she would take it. I heard all of the conversation.” On cross-examination witness stated: “My mother did say that if she could not sell the house she would rent it. I can’t remember whether or not my mother said she was very anxious to sell the house. I think she did say so, and that she would rent it if she did not sell.” Witness was positive this conversation was in February or March.

Respondent makes no claim that there is further testimony to support the contract than such as is herein referred to.

Upon the part of defendant it was testified by Mrs. Kirk-over that she was sent by the defendant, in February, 1890, to rent the house for six months from the 1st day of May, and wanted a definite answer at the time, and if plaintiff gave a favorable answer to rent it; that in pursuance of it she called upon plaintiff, and told her she was sent by her husband “to see if she would let us have the house for six months, and if she would give us the answer then, that we would take it. Mrs. Taylor said that if she rented to anybody that she would be very glad to let us have it; that she did not wish to rent it for that length of time, as she preferred selling it.” On cross-examination witness said: “ I will not say that Mrs. Taylor did not say that if she did not sell she would be glad to have us stay.” This witness informed defendant that plaintiff would not rent for six mouths.

William E. Otto, one of a firm of real estate dealers, who was employed by plaintiff at this time to rent the premises, testified that in the spring of 1890 he called upon plaintiff, and that she informed him that she had seen defendant; that he did not wish to rent for a year; that witness then advised her not to rent for less than a year at that time, and that she then decided not to rent it for less than a year; that, on the 1st of May, if not then rented, it might do to rent it for less than a year than not at all. A sign “For Rent” was upon the premises at this time. Nothing was then said by plaintiff that she had rented to defendant. There was also a letter written by plaintiff to the witness’ firm, bearing date March 19, 1890, introduced in evidence, in which plaintiff stated “ that Mrs. Kirkover called here yesterday, and said they would not care to take the house for a year, but would do so for six months if I would let them. This would leave it without a tenant in the time of year when it is least likely to rent. I heard of a party who wants < a house in this vicinity for a term of years, and it may be our house might suit them. I shall know more about it in a day or two. In the meantime I trust you will do what you can to rent it.” This letter was written in answer to a letter written by the agents the day before, informing plaintiff that no reply had been received from Mr. Kirkover in answer to a letter written by them.

Defendant testified that he sent his wife to rent the house last of February, 1890, and corroborates his wife’s testimony as to the directions he gave and the information he received from her. That he thereafter saw Otto, and informed him that he would not rent it for a year, and Otto refused to let him have it for six months. Shortly after this the property was taken out of the hands of the Ottos, and given to one Ferguson for sale; defendant saw him, and offered to take the house by the month, each to give the other thirty days notice to quit.

Ferguson desired defendant to see plaintiff, and he did so, informing her of the arrangement; that she replied that any arrangement made with Ferguson was satisfactory to her; that he continued to occupy the premises under this arrangement, gave the thirty days notice to quit, and moved out, paying rent to July 1st, and caused the keys of the house to be sent to plaintiff.

Julius H. Haffner testified that he was employed by Ferguson as bookkeeper, etc.; that it was his recollection that plaintiff brought the keys to the office; that they had been since used to go through the house, and that Ferguson gave to plaintiff defendant’s check for rent Robert Ferguson testified that he talked with plaintiff about selling her property, also renting it; she informed him that Mrs. Kirkover and herself had been talking for some time about renting the house, but she was more interested in selling it, and said she had not rented it This was in March ; but that she had a talk with Mrs. Kirkover after. That he talked with defendant about renting the house, and also about quitting.

This constituted substantially defendant’s testimony. Plaintiff denied that she ever authorized Ferguson to rent, but employed him to sell. She also denies that defendant told her of the arrangement with Ferguson, or that she assented to it, but admits having a conversation with him in which he stated he would move out on thirty days notice if sold, and was unable to recall all the conversation. She also testified that the letter written Otto was written before the conversation with Mrs. Kirkover, but admits that she told the latter that Otto had advised her not to rent for six months. The referee found that defendant made the arrangement with Ferguson to rent the premises from month to month in the latter part of April, 1890, subject to the approval of plaintiff, and refused to find that defendant communicated the arrangement to plaintiff, or that she assented thereto. He then found that before the 1st day of May, 1890, a contract of rental was made for six months. I am of opinion that the latter finding is against the weight of testimony given upon the trial.

It is quite clear that there was but one conversation had between plaintiff and defendant’s wife, as the plaintiff only testified to one conversation, and in that she is corroborated by her daughters. It, therefore, becomes important to see when that took place. Plaintiff says it was a few weeks prior to May 1st, and in her letter that it was March 18th. Mrs. Cornwell says it was in the spring of 1890, and Mrs. Bartlett places it in February or March. This certainly was when the contract was made, if made at all. Defendant’s testimony is to the effect that this interview took place the last of February. There is no room in this testimony to find that more than one conversation was had, and as I view the testimony the date of that is fixed prior to March 19th. It was upon that date that plaintiff wrote the letter to Otto. She had then conversed with Mrs. Kirkover the day before, for she says so. This date corresponds with her oral testimony, is almost identical with that of Mi’s. Bartlett and is in substantial harmony with the statement of defendant and his wife. The date of the interview thus being fixed, by almost undisputed testimony, what is the conclusion that then rested in the mind of the plaintiff ? Clearly that she had not rented the premises, for she then states that she had failed to agree with Mrs. Kirkover, was seeking another party and called upon Otto to rent it. If her written declaration stood alone in connection with the other circumstances, it would be sufficient to my mind to show that no contract was made, but in addition to this is the testimony of Otto that she orally informed him that she had not rented it, and determined not to, for less than a year. And sometime after, when she had taken the property out of the hands of Otto, she informed Ferguson that she had not rented it, and this was certainly sometime after the interview with Mrs. Kirkover. Under such circumstances the declaration of plaintiff that the interview was after the letter was written is not of sufficient force to overcome it. She must have been clearly mistaken in that regard, for therein she contradicts every witness who was sworn upon that subject, as well as the circumstances, and her own letter. The findings of the referee in this light show a strange incongruity, as he first found that defendant made his arrangement with Ferguson the last part of April, 1890, and then before the 1st of May rented for the six months.

We may infer that what rested in the mind of the referee was that defendant arranged with Ferguson, but that such arrangement was not ratified by plaintiff, and that thereafter he made the contract for six months. But, as we have already seen, the contract, if it was made, must have been some weeks prior to last of April, upon practically undisputed testimony. The first finding is, however, important, as it shows that defendant understood he had not then rented, and the testimony shows that plaintiff understood she had not leased. Under these circumstances I am unable to see how the finding of a contract can be supported. Where the evidence fails to establish the cause of action, or the finding is against the weight of the testimony, it should be set aside. I am of opinion the rule must be applied here. Browne v. Berger, 14 St. Rep., 60; Bruyn v. Russell, 38 id., 50; Long v. Fong, 25 id., 28; Stilwell v. Mutual Life Ins. Co., 72 N. Y., 388.

The judgment appealed from is reversed, and a new trial ordered before another referee, with costs to abide the event.

Titus, Oh. J., and White, J., concur.


text:
    Robert W. Wilson et al., Resp’ts, v. Herman Boasberg, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed February 3, 1893.)

    Appeal — Exception.
    An exception to a decision overruling an objection to evidence made after it is given is unavailable on appeal where no motion to strike out x such evidence was afterwards made.
    Appeal from a judgment in favor of plaintiffs, rendered upon the verdict of a jury.

      Frank M. Loomis, for resp’ts; Daniel McIntosh (Adelbert Moot, of counsel), for appl’t.
   Hatch, J.

The only point pressed upon our consideration, on the oral argument of this case, related to the admissibility of certain evidence. The brief of defendant, however, urges that the verdict is contrary to law and the evidence given. As to the latter proposition, we are of opinion that the evidence given was sufficient to warrant the verdict rendered. The charge is not returned, and it must, therefore, be assumed that it was unexceptionable, and as there was evidence beyond a mere scintilla, we are not able to say that the verdict rendered thereon was unreasonable, or that there was an absence of evidence corroborating the witness who took the ring, if that were necessary. The error urged in the reception of evidence arose in this wise: The witness had purchased a diamond ring of a jeweler about twenty-three years before; this ring he pawned to plaintiffs; it was stolen from plaintiffs’ safe by a young man who sold it to defendant; the particular question at this juncture was its value. Witness was asked:

“Q. What was the amount you paid for the ring? A. Three hundred and fifty dollars.”

Defendant’s attorney, after question and answer, made a general objection, which was overruled by the court, and an exception was taken. Ho motion was thereafter made to strike out the testimony. We are of opinion that no question is thus presented. In Hangen v. Hachemeister, 114 N. Y., 572; 24 St. Rep., 526, the court, upon a similar state of facts, said: “ The exception is not available here, for the reason that the objection was not made in time, and there was no motion to strike out the evidence taken.”

The evidence was, doubtless, inadmissible, but had the objection been made in time, or had the grounds been stated, the court probably would have excluded it, or, as is quite likely, plaintiff would not have insisted upon it. These reasons have been held sufficient to cure the assigned error. Fountain v. Pettee, 38 N. Y., 184; Ward v. Kilpatrick, 85 id., 417; Hoffman v. Conner, 76 id. 121.

Ho legal error being found, the judgment appealed from is affirmed, with costs.

White, J., concurs; Titus, Ch. J., not sitting.