text:
    Annie Kress, Appl’t, v. Bridget Morehead, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    1. Practice—Supplementary proceedings—Authority of attorney— AFFIDAVIT.
    It is not necessary that the preliminary affidavit in proceedings to examine the judgment debtor in proceedings supplementary to execution should show authority in the attorney to institute the proceedings. If the officer to whom application for the order is made, has doubts of the attorney’s right to act, he may require evidence, but an order will not he set aside for such supposed defect.
    2. Same—Sufficient designation of court.
    The affidavit in a certain case alleged that the judgment was recovered in the justices’ court in the town of Middletown, before F. 0. Vitt, justice of the peace. Held, that further particularity was uncalled for.
    ,3. Same—Sufficient designation of party in whose favor judgment was rendered.
    The affidavit in said case did not disclose in whose favor the judgment was rendered. But it appeared that it was rendered against the defendant, there being but two parties to the suit. Held, sufficient.
    4. «Same—Title of county judge.
    The proper title is county judge of-county, not judge of the county court of-county.
    '6. Same—Costs—How paid by judgment creditor.
    A creditor who has not been guilty of had faith should not he compelled to pay money to his debtor. Such costs as are granted against him should be deducted from the judgment.
    Appeal from an order dismissing a motion for an order to examine a judgment debtor in proceedings supplemental to execution.

      J. T. King, for app’lt; William, M. Mullen, for resp’t.
   Pratt, J.

No opinion was filed in the court below, but we are apprised by affidavit of appellant’s attorney that the proceedings were dismissed on the ground that the pre-. liminary affidavit did not show authority in the attorney to institute the proceeding.

The statute does not require proof of such authority. Miller v. Adams, 52 N. Y., 414.

If the officer to whom application for the order was made entertained doubt of the attorney’s right to act, he might reasonably have required evidence upon that point.

But after jurisdiction had been properly exercised, an order to set aside for such supposed defect was erroneous.

The criticism made upon the preliminary affidavit in that it does not aver that F. C.Vitt is justice of the peace of "the town of Middletown,” is equally without merit.

The affidavit alleges that the judgment was recovered in the justice’s court in the town of Middletown. That would probably have been sufficient without specifying the name of the justice; but when the affidavit went further and recited that it was recovered before F. C. Yitt, justice of the peace, further particularity was uncalled for.

So it is said the affidavit does not disclose in whose favor the judgment was rendered. But as it appears that it was rendered against the defendant, and that there were but two parties to the action, a sole plaintiff and a sole defendant, the objection is clearly frivolous.

Objection is made that defendant is required to appear before the "judge of the county court of Eichmond county,” whereas the proper title of the officer intended is "county judge of Eichmond county.”

If the description of the person before whom defendant was required to appear was so uncertain that he could not be identified, that would be a fair answer to urge to a motion to punish defendant for contempt in failing to appear.

But no such vagueness could affect the jurisdiction of the court. For is it seen why any error in the order should not be at once corrected, and without costs.

Supplementary proceedings after judgment are meritorious and should be favored.

Sufficient strictness to prevent injustice is not misplaced, But a creditor who has not been guilty of bad faith should not be compelled to pay money to his debtor. Such costs as are granted against him should be deducted from the judgment.

Order reversed, with ten dollars costs and disbursements.

Barnard, P. J., and Dykman, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People ex rel. Rome, Watertown and Ogdensburgh Railroad Company, App’lts, v. Seth Jones, as Assessor et al, etc., of the Town of Kendall, Resp’ts.

      (Court of Appeals,

      Filed July 1, 1887.)

    Taxes and assessment-boll—Ho verifed—Laws 1880, chap. 369, § 9— ' 1. R. S., 894. § 27.
    The assessment-roll of 1883, was sworn to by respondents before a notary, August 28_, 1885, in the first instance, but was not delivered to the supervisor until September 11th. On October 17. 1885, the assessors verified the roll before a justice of the peace, and the roll remained with the supervisors for fifteen days for public inspection Held, that such verification after it had been delivered to the supervisor and before it had been in any way produced by him before or acted upon by the board of supervisors, was a compliance with the statute—1 R S., 394, 27, and that the provisions of said[statute as to the time of verification are directory only.

      The facts appear in the opinion of Smith, P. J., 6 N Y. State Rep., 112, ante.

      Wm. B. Hornblower, for app’lts; John Cunneen, for resp’ts.

       Affirming 6 N. Y State Rep 112.

   Per Curiam.

Without passing upon the validity of the first oath taken by the assessors herein, we are of the opinion that the verification of the roll by them after it had been delivered to the supervisor, and before it had been in anyway produced by him before or acted upon by the board of supervisors, was a compliance with the statute, and in this respect, and to this extent, the provisions of the statute as to the time of verification are directory only. This is the only question argued, and the order appealed from must be affirmed, with costs.

All concur, except Andrews, J.. not sitting.


author: Per Curiam. Rapallo, J.

text:
    The People of the State of New York, Resp’ts, v. John M. Schuyler, App’lt.

      (Court of Appeals,

      Filed July 1, 1887.)

    1 Criminal law—Insanity as a defense—Premeditation.
    The insanity of a defendant charged with crime, or the absence of deliberation and premeditation, are questions of fact for the jury, and where their determination is based upon a preponderance of the evidence, the court of appeals has no occasion or power to interfere.
    3. Same—Evidence—Privileged communication—Code Civ. Pro., § 884.
    When a party seeks to exclude evidence of communications to a physician as a privileged communication, under Code Civ. Pro., § 884, the burden is upon him to bring the case within its purview. He must make it appear, if it does otherwise appear, that the information which he seeks to exclude was such as the witness acquired in attending the patient in a professional capacity not bnly, but lie must also show that it was such as was necessary to enable him to act in that capacity.
    3. Same—Jail physician.
    A witness was called who has been, for six months before tne trial, the jail physician, and had examined the defendant at the request of both parties. He “saw to the defendant, as he did to the others, when he needed it.” An hypothetical question as to prisoner’s insanity was then put to him, with the direction that he exclude all knowledge he had of the defendant personally, and based on facts which occurred before the defendant came to the jail. Feld, competent; that the witness was not asked, to testify to the mental condition of the defendant while in the jail, or to disclose any information he acquired while he was there.
    4. Same—Evidence.
    The prisoner’s wife stated, on direct examination, that the night before the crime he came home sick, that at his request she put a board at the foot of the bed, so that he could press his head against the head-board, etc. The district-attorney ofEered to prove that witness, the day after the homicide, had stated that she never saw anything peculiar in her husband before that time, and that he slept as usual the night before. Feld, competent; that such evidence went no further than her examination fairly justified, and was a proper contradiction of what she had testified to. Rapadlo & Andrews, JJ., dissenting.

      ■Appeal from the judgment of the supreme court, general term, fourth department, affirming the conviction of the prisoner of the crime of murder in the first degree.
    The indictment charged the prisoner with having, on the 3d of July, 1885, at the town of Morris, Otsego county, with a deliberate and premeditated design to effect her death, killed Amy Schuyler by violently hurling her head against a wooden block, thereby crushing in a portion of her skull, and thus causing her death. The defense was insanity.
    The deceased was a daughter of the prisoner and his wife, Minnie Schuyler, and was about three years of*age. Evidence was given, on the part of the prisoner, that he had resided at Morris for four or five years, and was a quiet, Eeaceable and gentlemanly man. This was not controverted y the prosecution. It appeared, by the evidence of Minnie Schuyler, the mother of the deceased, that on the morning of the 3d of July, on leaving his home for his place of business, which was near by, he kissed her and his two children, as was his custom, and that he was always kind to the children, and particularly to Amy, for whom he showed partiality. When he went away, his wife asked him to bring home some berries.
    The evidence on the part of the prosecution showed that he did not return until about two o’clock in the afternoon, which was much later than his usual hour for dinner; that an altercation immediately ensued between him and his wife, which was followed by their throwing dishes at each •other; that he then struck her, and she ran out into the yard through the wood-shed, which was in the rear of the house, he following her. Their next door neighbor, Sweet, saw the affray through the window, and cried out to him: “John, hold on.” As he spoke, the prisoner looked up at the witness, and Mrs. Schuyler ran out of the wood-shed door, the prisoner right after her. As he came out of the ydoor, he said to witness: “This is a family affair, and neighbors need not interfere.” Witness then reproved him .for striking his wife. The witness repeated the charge and the prisoner again denied it. Mrs. Schuyler then spoke, ■.and said: “John, you lie; you did strike me;” and she pointed to blood upon her face. Witness then turned away, and -the next thing he saw was Schuyler going back into his house. He went a few steps, and came out again. She was then going away from the wood-shed door, towards the road, and the prisoner asked her whether she was going to take care of those young ones, and she said: “Ho, I am not.” Other witnesses said her reply was: “Ho, I am not while you are here.”
    He then turned back, and entered the wood-shed door, out of Sweet’s sight, and the next thing Sweet saw was the prisoner coming out of the wood-shed door holding the child "by both its ankles, head down, and he struck its head three times on a large wooden block which stood near the woodshed. The mother, Sweet, and several neighbors who had been attracted by the fracas were then in sight, and their testimony substantially agrees with that of Sweet. There was no claim that the prisoner was intoxicated. ,As he dashed the child’s head against the block, he exclaimed, “ See here !” The space of time which elapsed between the prisoner entering the door of the wood-shed and reappearing with the child was very brief. Sweet testified that it was not more than four or five seconds, and this was not controverted. It all happened while the wife was walking from the wood-shed door towards the road, and she had gone but a short distance when the child was killed.
    After having killed his child, he laid the body down by the block, and walked to the front of the house, then turned back, and took the body in his arms, and carried it into the house, laid it on a lounge, and then went to the front of the house, and said that he had killed the baby, and expected to’ hang for it. He asked some one to go in, and close its eyes and mouth, and to look after the younger baby, and proceeded towards the village. Meeting Mr. Gardner, a deputy sheriff, he surrendered himself, and said to him that he had killed the child, and that it would not have happened but for the neighbors. He was taken to a hotel, where he remained in custody several hours while the papers for his commitment were being prepared. During this time he conversed with several persons, and he was afterwards conveyed by' wagon in charge of Gardner and Mr. Taylor, a former deputy sheriff, to the jail, twenty-two miles distant, occupying about four hours in the trip. His declarations to these witnesses, as well as to those with whom he conversed at the hotel, were put in evidence by the prosecution.
    At the hotel he said to Hall: “I have killed my child, and expect to hang for it.” He began crying and lamenting, saying: “I have killed that dear child, and the child was not to blame.” “ My poor little Amy ! I have killed my child, my poor little innocent child;” that his temper got the best of him. To Dr. Hall he said “ They say I have killed my child. Is she dead ?” He also said, if it had not been for Sweet it would not have happened. Ralph Murdock, who appears to have been an intimate friend of the prisoner, came to see him at tho hotel, and the prisoner put his arms, around his neck, and said: “Ralph, don’t be down on me for this, it was done in a passion, and what’s done can’t be undone;” and repeated- “It was a sad, sad caper.” And later on he said that Sweet 'caused it. When told that he would not be tried before January, he expressed regret that he would have to wait so long. In the wagon he sat with Taylor on the back seat, and was handcuffed to him. He was sobbing and crying, and repeatedly exclaiming: “ Is it Possible that I have killed that poor little child ?” Taylor testies that the prisoner slept on the way, or seemed to be asleep» and would start up occasionally, and speak of his child every time he roused up, and moan: “ Oh, my poor little child !”
    Minnie Schuyler, the wife of the prisoner, was called for the defense, and related the origin of the quarrel with her husband on the occasion in question. She testified that, when he came home to dinner, she stood in the front door, and he came along swinging his pail in such a manner that she thought he had no berries in it, (in which she proved to have been mistaken,) and she reproached him with being so late, and keeping her waiting at a time of day when she had so much to do. An angry altercation then ensued. She says he looked so strange—so funny—that she accused him of having been drinking, which he denied. He sat down, and she told him to help himself to the dinner. He looked very staring, eyes glassy, very pale, and lips blue. She made some remark. He picked up a cup and saucer, and threw it, and she picked up a saucer, and threw it at him, and he then grabbed her. She told him not to talk so loud, as the neighbors would hear, and he shut down the window. She ran into the back room, and he struck her, and she fell. Then Sweet spoke to him, and she relates the rest according to the testimony of the witnesses for the prosecution. She says that she told him twice that he lied, and that she spoke unkindly to him'—very unkindly. She was asked whether, from what she saw of him then, and heard him say, she believed that he was rational or irrational then; but, on objection by the prosecution, the question was excluded. The witnesses for the prosecution describe him as having looked very pale at the time of the commission of the crime.
    The evidence on the part of the defense to sustain the plea of insanity was to the effect that, when he was eleven years of age (he was twenty-seven at the time of the killing), he had a sun-stroke, from the effect of which he was confined to his bed for several days; that he had been a weakly child from his birth, and was troubled generally with costiveness; that he had been beaten on the head with stones; that he had been brought home insensible from other injuries; that there were some depressions in his skull; that ever since the sun-stroke he had suffered severe headaches, which caused him to manifest great pain, accompanied and followed by pallor; that a week or ten days before the homicide, in playing ball, he had violently butted his head against that of another person, and was thereby felled to the ground with much force; that from that time to the second of July he complained of severe headaches, and his wife testified that on the night before the homicide, on retiring, he complained of a severe headache, and when he retired she procured for him a board, against which he pressed his feet, while he pressed his head against the head-board of the bed, and lay thus for several hours. She describes these headaches as very violent, and his actions as strange while he was suffering from them. On the morning of the day of the homicide, which was a hot day, he worked for a considerable time hoeing in his garden in the sun, wearing a black skull cap. Afterwards, during the morning, he had a heated discussion on politics with a neighbor, in which he became much excited, and was in this condition when he came home, and was received by his wife in the manner which she described.
    There was a great deal of testimony on these and other points; and, on the part of the defense, five physicians— Drs. Hall, Pilgrim, Crane, Hills, and McClellan testified— four of them in answer to a hypothetical question detailing facts in evidence, and which was not objected to by the prosecution as assuming any fact not in evidence, and Dr. Hall testifying from what he saw on the day of the homicide—that in their opinion he was insane at the time of the commission of the act; two of them saying they had no doubt about it. Three of these physicians were acquainted with the prisoner, and had seen him frequently at his residence; but they agreed that, when they saw him after his ■arrest, he was sane—their theory being that his brain was diseased in a manner liable to develop into insanity under peculiar excitement, and Dr. Hall expressing the opinion on cross-examination that he was delirious at the time of the homicide. This evidence was met by the prosecution by the testimony of four physicians who had never seen the prisoner until after he had been confined in the jail; and who, in answer to an hypothetical question framed by the prosecution, and which was objected to by the defense as assuming facts not in evidence, and omitting facts in evidence, expressed the opinion that he was sane. To some of this evidence exceptions were taken by the defense which are referred to in the opinion, and exception was also taken to the admission of evidence as to declarations of the mother of the deceased for the purpose of impeaching her credibility.

      Nathaniel C. Moak, for app’lt; Chas. T. Brewer, districtattorney, for resp’t.

       Affirming 43 Hun, 88.

   Per Curiam.

The able and satisfactory opinion pronounced m the court below renders it unnecessary that much should be written now. A brief presentation of our views will be sufficient to justify the conclusion we have reached.

The killing by the defendant of his child was upon the trial undisputed, and his sole defense was insanity. The crime was committed on the. second day of July, 1885, and the defendant was then twenty-seven years old. It does not appear that before that date he said or did anything indicating unsoundness of mind, nor does it appear that at any subsequent time he gave any sign whatever, by word or deed, of insanity. From the moment of the commission of the crime all his acts and conversations were perfectly sane and rational He at once recognized the moral quality of his act, and was perfectly aware that he had violated the law and was liable to be punished. Down to the trial of this action it does not appear that he ever claimed that he killed his child while unconscious or irrational, or laboring under any delusion, but his avowal was that he had done it in a passion. Four physicians were called on the part of the defense, who testified that they had examined the defendant; and, in answer to an hypothetical (question assuming such facts justified by the evidence as his counsel saw fit to insert therein, stated that he was insane at the date of the crime. Four physicians were called upon the part of the people, who, in answer to a hypothetical question put by the district-attorney, which contained such facts justified by the evidence as he saw fit to insert therein, testified that he was sane. There was thus a question of fact as to the defendant’s sanity for the jury; and with their determination thereof, based, as we believe, upon a preponderance of the evidence, we have no occasion or power to interfere.

It appeared that the crime was committed when the defendant was in a great passion. Upon the evidence there was ground for claiming that there was the absence of that deliberation and premeditation which are the necessary elements of the crime of murder in the first degree. But it was not claimed upon the trial that there was not sufficient evidence of the presence of these elements for the consideration of the jury; and their determination, justified by the evidence, also concludes us.

During the progress of the trial numerous exceptions to the rulings of the court were taken on behalf of the defendant. We have carefully examined and considered them all, and we agree that all but two are unfounded; and as to the two only there is difference of opinion among the members of this court. To them, therefore, we will briefly direct attention.

Among the expert witnesses called on behalf of the people to give evidence as to the condition of the defendant’s mind at the time of the crime was Dr. Bassett. He testified that for six months preceding the trial he was the jail physician, employed by the board of supervisors of the county; that, as_ such, he had medical charge of all the prisoners in the jail, that during that time he examined the defendant at the request of both parties, and " kept an eye on 1¿he case,” and had him under his observation; that he assumed the obligation of attending the prisoners in the jail, and “ saw to the defendant, as he did to the others, when he needed it.” After these statements the court remarked to the district- attorney ■ “You cannot gi ve any testimony based upon any fact that he learned, either from the defendant or in .regard to the defendant, at any time when the relation of patient and physician existed.” An hypothetical question was then stated to the witness, from which was excluded all knowledge which he had of the defendant personally, and which was based entirely upon facts which occurred before the defendant came to the jail, concluding as follows; “ Assuming those facts to be proved, and without any reference to anything except those stated, was this man, if he did the act, sane or insane at the time he committed that act?” This question was objected to on the part of the defendant because the witness held the confidential relation of physician and patient that it is practically impossible to-eliminate the position in which he stands, and decide upon a question in this case: and the question put is in this case, as they claim, upon the facts in this case, and therefore that the testimony of this witness is incompetent and improper. The objection was overruled, and the witness answered, “ Sane.”

It is claimed that this question and answer were incompetent under section 834 of the Code, which provides as folows; “A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity ” When a party seeks to exclude evidence under this section, the burden is upon him to bring the case within its purview He must make it appear, if it does not otherwise appear, that the information which he seeks to-exclude was such as the witness acquired in attending the patient in a professional capacity not only, but he must also show that it was such as was necessary; to. enable him to act in that capacity Edington v. Ætna Life Ins. Co., 77 N. Y., 564, Here there was no proof that the defendant was at any time sick during the six months in which the witness was the jail physician, or that the witness ever attended or prescribed for him as a physician, or that he derived any of the information upon which the question or answer thereto could be based while attending him as a physician. It was assumed by the defendant’s counsel and by the court that the mere fact that the witness was the jail physician created the relation of patient and physician between him and the defendant, and that the mere existence of that relation was sufficient to exclude evidence. But the assumption by the court was beneficial rather than harmful to the defendant. It restricted the examination of the witness and embarrassed him in giving his evidence. An erroneous ruling in defendant’s favor could not render incompetent evidence, which in its nature was competent, and the case is like that of a correct decision made by a judge under a misconception of the law It does not appear, and cannot be inferred, that the defendant, in consequence of this erroneous assumption, omitted to prove anything which he otherwise could or would have proved.

The inquiry related to the condition of the defendant’s mind at the lime of the commission of the crime, about eleven months before the trial, and not to anything which occurred or appeared during the time he was confined in the jail; and the witness was not asked to testify as to the mental condition of the defendant while _ in the jail, or to disclose any information he acquired while he was there. He did not in fact disclose any such information, and it is utterly impossible for us to perceive how the evidence of the witness could have been excluded under that section.

It is true, he said it was very questionable whether he could exclude, in answering the hypothetical question, the knowledge which he had obtained of the defendant while in the jail, and that he was unwilling to say, in giving his opinion as to the condition of the defendant’s mind at the time of the commission of the crime, that he could eliminate' from his mind such knowledge. But he nowhere in his evidence intimated that he had any knowledge which he had obtained from the prisoner while attending him in a professional capacity, or that he had received any information whatever from him which was necessary to enable him to attend him as a physician, or that he ever prescribed for him as a physician. The hypothetical question was therefore, in any view of the case, a competent question to put-It does not appear that, in answering it, the witness took into consideration any improper elements; and, if he was influenced by the knowledge he acquired of the defendant by seeing him in the jail, that circumstance did not render his evidence incompetent. He was not bound to eliminate from his mind that knowledge in answering the question; and, even if he could not, that did not render his answer incompetent. A proper question having been put and answered, the court was not, upon anything appearing in the record, bound to strike it out. The objection, therefore, to the evidence given by Dr. Bassett, and the rulings of the court in reference thereto, present no error requiring the reversal of this judgment.

The object of the section referred to was to prevent the disclosure by a physician of his patient’s ailments and infirmities, and it may be queried whether it makes him incompetent to testify that his patient was free _rom disease of any kind; and was not Dr. Bassett, therefore, competent, under any view of the case, to testify that the defendant was not insane, but sane? And when the defendant called experts, who had examined him, to testify as to his mental condition, and to show that he was insane, did he not waive his privilege under the section'referred to, and throw open the inquiry as to his mental condition? In other words, can &. party, himself upon a trial, expose his ailments, and make them the subject of inquiry, and then object that his physician shall tell anything he knows about them? We do not deem it important to answer these questions at this time, and leave them to he solved when the exigencies of some future case may require it.

The defendant’s wife was called as a witness in his behalf, and testified, among other things, that, the night before the commission of the crime, the defendant came home at nine o’clock, sick at his stomach, and with a severe headache; that he undressed, and went to bed, and that she put a board at the foot of the bed, so that he could press his feet against it, while his head would be against the head-board, and that he lay there for hours. On her cross-examination her attention was called to a time when the district-attorney and one Morrills were present with her at the court-house, and she testified that she recollected having a' conversation there. She was then asked questions and gave answers as follows: “Did you say to Mr. Barber [thedistrict-attorney,] in the presence of Mr. Morrills, that you had never seen anything strange or unusual in John’s conduct? Answer. I don’t remember of saying so. Question. And that he was not affected by the ball play? A. I never said so. Q. And that he went to sleep as usual the night before the homicide, and ate as usual? A. Ho, sir; I did not say that, as I remember, because it is not true. I don’t remember of saying it.” Her attention was then called to another occasion, the day after the commission of the crime, when the district attorney, Mr. Fairchild, and Mr. Sweet were present; and she was asked questions and gave answers as follows: “ Question. Did you say then to the district attorney, in the presence of Mr. Fairchild and Mr. Sweet, that you had never seen anything strange or unusual in John’s conduct? Answer. I do not think I said so. Q. That he went to bed as usual the night before? A. I did not say so, for it was not true. Q. You deny now that you said to Mr. Barber that he went to bed the night before and slept as usual? A. I don’t remember talking to Mr. Barber the next day. I remember talking to him in his office in January. Q. Did you say that to him there? A. Ho; I don’t believe I did. Q. You didn’t say anything of the kind? A. I don’t believe I said so at all.”

Mr. Sweet was subsequently called, and testified that, on the occasion referred to on the cross-examination of Mrs. Schuyler, when he, Fairchild, and the district attorney were present, the day after the commission of the crime, she stated that she never saw anything peculiar in her husband before that time; and he was asked this: “Question. Did she say that, the evening before, he came home, went to bed as usual, slept all night, so far as she knew?” And he answered: “Yes, sir; she did.” This question and answer were not objected to. Subsequently Fairchild was called as a witness; and, his attention being called to the interview with Mrs. Schuyler the day after the homicide, he was asked this question by the district attorney: Did she there say to us that Mr. Schuyler went to bed about 9 p. m. the preceding evening in his usually healthy condition, and slept all night, so far as she knew?” This was objected to by the defendant as improper and incompetent, and that there was no ground laid for the contradiction of Mrs. Schuyler, and any statements she then made could not be binding upon or used against the defendant. The objection was overruled, and the witness answered: “ She did.”

Morrills was called as a witness, and, his attention being directed to the interview with Mrs. Schuyler when the district attorney was present, was asked this question: “Did she say to me (the district attorney) in your presence, on that day, that she had never seen anything strange or unusual in John’s conduct?” This was objected to by the defendant’s ■ ,'ounsel as incompetent and improper. The objection was overruled and the witness answered: “I think she said she had not, more than he had headaches once in a while. She spoke about that.” He was then asked this question: “Did she say that he went to bed and slept as usual the night before the homicide?” And he answered: “I think she did.”

In the examination of these witnesses, Sweet, Fairchild and Morrills, no error was committed. The evidence was given merely for the purpose of contradicting and discrediting Mrs. Schuyler. She had testified, on her direct examination, that the defendant came home, the night before the crime, sick; that he undressed and went to bed; and that she put a board at the foot of the bed, so that he could press his feet against it, with his head against the headboard, and that he lay there for hours. The object of the district attorney was to show that she had made statements out of court at variance with this evidence, and the object of her cross-examination vzas to show that she had stated out of court that, instead of going to bed in that unusual manner, he went to bed as usual the night before and slept as usual. After she had substantially denied making such statements, or any statements of that kind, these witnesses were called for the purpose of contradicting her, and we think no error was committed in receiving their evidence. That evidence went no further than her examination,, fairly justified, and it was a proper contradiction of what she had testified to.

Upon the whole case we do not believe that any error was committed upon the trial prejudicial to the defendant, and the judgment should be affirmed.

Rapallo, J.

(dissenting.) The atrocity of the act committed by the prisoner was such as necessarily to excite the indignation of the jury as well as of the court; but its unnatural character, in view of the previous character of the man as a quiet and peaceable person, and of his affection for his child, renders it difficult, if not impossible, to conceive that he could have been, at the time, so far in possession of his faculties as to be capable of the deliberation which by our statute is made an essential element of the crime of murder in the first degree. There was undoubtedly sufficient evidence of the intent to kill, and sufficient also to satisfy the former statutory requirement of premeditation; but in view of the conceded facts, and of the position taken by the prosecution, no case was made for the submission to the jury of the question of deliberation. The evidence, as well as the claims of the prosecuting attorney, rebut the idea that the prisoner deliberately premeditated and intended the death of his child, and clearly characterize the act as one of momentary frenzy resulting either from temporary insanity, or anger working on an enfeebled brain to such a degree as to render the patient incapable, for the moment, of deliberating or exercising his reasoning powers. His conduct and exclamations after he had recovered from his paroxysm, and which were put in evidence by the prosecution, show that in the commission of the act he did violence to his own nature and affections. His lamentations over the death of his innocent child, the manner in which they were expressed, so soon after the commission of the fearful deed, his anxiety that the punishment which he supposed that he merited should not be'deferred, all show, (and this is the evidence on the part of the prosecution) that he was not himself when he committed the act, and that he condemned himself as soon as he returned to consciousness. No intoxication is claimed by the prosecution, or could be claimed.

The claims of the prosecution on the trial, as shown, not only by the examination of the witnesses, but as summarized in the charge of the judge, were in accordance with what the prisoner said to his intimate friend, Ralph Murdock, when at the hotel after the arrest: “Ralph, don’t be down on me for this. It was done in a passion, and what’s done can’t be undone.” The learned judge, in charging the jury, stated the claims made by the prosecution and the defense. The defense claimed that the pallor of the prisoner was one of the evidences of his insanity. The judge stated to the jury that it was' claimed by the prosecution that the prisoner, at the time, “ was angry; that he was pale from anger; that the expression of his eyes and his demeanor were from anger; that all the symptoms and appearances established by the evidence in the case were -the symptoms of anger rather than those of insanity.”

Assuming this to be all true, as claimed by the prosecution, taken in connection with the undisputed testimony of Sweet, that between the time of the last provocation, which appears to have incensed the prisoner, when he re-entered the wood-shed, and the time when he reappeared holding the child by its ankles, and dashed its head upon the block, not more than four or five seconds elapsed; that it all happened while his wife was walking away from the wood-shed towards the road, and had proceeded but a very short distance; that the prisoner was pale from anger; and considering the circumstances in connection with the other evidence on the part of the prosecution, is it possible to say that the evidence was such as to authorize a verdict of deliberation and premeditation, or even the submission of that question to the jury? A man pale with rage seizes on the instant his favorite child, of tender years, and publicly, in the presence of his wife and neighbors, brutally dashes its head against a block, and immediately afterwards realizes what he has done, invokes death as the proper punislnnent for his crime, arid pathetically laments the death of his child; and this, a man of ordinarily quiet and peaceable disposition. If these facts do not indicate temporary msanity in a person whose physical condition is such as to render him susceptible to such a paroxysm, they at least show such a, momentary suspension of his moral faculties and reasoning powers as to render him, for the time, incapable of that deliberation which the law demands that the prosecution should establish. But, strange*to say, that point was not taken on the part of the defense, and no exception raising it is contained in the case. This court is consequently powerless to correct any error which may have been committed in that regard; and although, in my opinion, a conviction of murder in the first degree was not justified under the conceded facts, and the verdict should have been in the second degree, irrespective of the defense of insanitv. the only remedy for this error rests with the executive.

With regard to the defense of insanity, the evidence was such as would have justified a finding either way. Consequently the verdict of the jury is conclusive upon this court unless some of the exceptions taken by the defense are sustained. In my judgment, under the circumstances of this case, these exceptions should be considered with careful attention, not because there is anything the case which should incline us favorably towards the prisoner, but because, in my judgment, at least his conviction of murder in the first degree is not warranted by the present statute, and if any legal ground exists for having him retried, and a proper verdict rendered, it should be made available.

One of the four physicians examined as experts on the part of the prosecution, Dr. Bassett, was the physician employed in the jail where the prisoner was confined after his arrest for the homicide, and it was his duty to attend and prescribe for the prisoners when ill. He had never known the prisoner before, and did not know his antecedents, upon which the physicians called by the defense had predicated their opinion that the prisoner’s brain was diseased. Dr. Bassett testified that he had been for forty-two years_ a physician and surgeon, and had examined the prisoner while in jail, commencing about the first of December (six months after the homicide), and had kept his eye on the case ever since; that he was the physician of the jail, appointed in November, and had acted as such down to the time of the trial; that he saw to the prisoner whenever he needed it, as he did to the other prisoners; that he assumed the obligation of attending to those patients in the jail; that the prisoner was one of them, whenever he required attendance; and that that relation still existed. Thereupon the prisoner’s counsel objected to any testimony of the witness, and the court instructed him that he could not give any testimony-based upon any fact that he learned either from the prisoner, or in regard to him, at any time when the relation of patient- and physician existed. The district attorney then asked the following question: “Question. Eliminating from your answer all consideration of any evidence that you obtained as to his condition from any talk with him, or from anything that you observed in him when you were attending him as jail physician, you may state is he sane or insane?” This question being objected to, the court asked the witness: “ Is it possible for you to eliminate the knowledge you have obtained there?” The witness answered: “ It is very questionable.” The court then said: “ I guess we will not take the evidence. I don’t believe he can do it.” The district attorney then asked him whether he could, and the witness answered that he was not willing to say that he could separate the two; that it intermingled in such a way that he did not think he could separate them. The district attorney then read to the witness a long hypothetical question of five printed pages, different from that which had been asked of the witnesses for the defense, and asked him to throw out of the case everything except the facts which he there assumed to be proved; and, after reading the question, asked the witness: “ Assuming those facts to be proved, and without any reference to anything except those stated, was this man, if he did the act, sane or insane at the time he committed that act?”

This question was objected to on the ground that it assumed facts not proved, specifying them; also because the witness held the confidential relation of physician and patient, and it was practically impossible to eliminate the information obtained in that relation. The court overruled the objection, and allowed the question, and the witness answered, “Sane.” Being cross-examined, the witness-stated that he thought it was a practical impossibility for him to eliminate from his own mind the convictions formed as the physician of the prisoner, and thus answer the hypothetical question. Being reminded that he had answered it, he said that, when it was ruled that he should answer, he supposed that he must answer; that he withdrew his answer, and did not wish it to be treated as an answer. The district attorney objected, and the court held that it could not strike out the answer, and the prisoner’s counsel excepted.

I think the substance of the statement of the witness was-that it was impossible for him to answer the hypothetical question without being influenced in his answer by the convictions he had formed while attending the prisoner as his physician; that consequently his testimony had been based in part upon what he had thus learned; and that, when this was made to appear by the cross-examination, the judge erred in holding that he could not strike out the answer which the witness had given, as he supposed, under compulsion, and that the court not only had the power to strike it out, but ought to have done so. The witness was the most experienced physician examined in the case, and his testimony must have had great weight with the j'ury.

The ruling of the trial judge is sought to be sustained on the ground that it was not distinctly proved that the witness had attended the prisoner as his physician. I do not think that this is a fair criticism. There was no suggestion, even upon the trial, of any such ground. If there had been, then the proof on this point could have been made still more explicit than it was; for Dr. Babbitt, the predecessor of Dr. Bassett as jail physician, and who acted as such during the first five months of the prisoner’s confinement, stated that he prescribed for the prisoner several times, and, like others, considered him his patient. Dr. Bassett testified that he saw to the prisoner whenever he needed it, as he did to the other prisoners; that he assumed the obligation of attending those patients in the jail—and the prisoner was one of them —whenever they required attendance, and that relation still existed. The objection was placed on the express ground that the confidential relation of patient and physician existed between the prisoner and Dr. Bassett, and this was in no way disputed; but, on the contrary, the district-attorney in his question assumed that that relation existed, for he asked the witness to eliminate from his mind information obtained by Dr. Bassett while he was attending him as physician; and the court also assumed and held that the relation had been sufficiently proved,—first by excluding the examination of Dr. Bassett, and next by asking him whether it was possible for him to eliminate the knowledge thus obtained, and at first excluding the witness on the ground that the court did not believe that he could eliminate the privileged matter.

After all this it would nave been idle for the prisoner’s counsel to go into details to show that Dr. Bassett had attended the prisoner as his physician, a fact which appeared to be conceded by court and counsel. It would be very unfair to deprive the prisoner of the benefit of his objection on the ground that he had not been sufficiently definite in his proof of the fact thus assumed and conceded.

I think there was also error in the admission of the question to George W. Fairchild, a newspaper editor, who had testified that he went with the district attorney, Mr. Barber, to Mr. Sweet’s house to see the prisoner’s wife, and there had a talk with her in presence of Mr. Sweet. The district attorney then asked the witness the following question: “Did she then say to us that Mr. Schuyler went to bed about nine p. M. the preceding evening in his usually healthy condition, and slept all night, as far as she knew?” The prisoner’s counsel objected to this question as improper, incompetent, and that no ground had been laid for the contradiction of Mrs. Schuyler, or any statements she made there, and that they could not be binding upon or used as evidence against the prisoner. The objection was overruled, the defendant excepted, and the witness answered: “She did.” I think this exception was well taken. The only ground laid for the question as a contradiction was in the question to Mrs. Schuyler: “Did you say to Mr. Barber, in the presence of Mr. Fairchild and Mr. .Sweet, that he went to bed as usual the night before?” to which she made a negative answer. A contradiction of that answer would not have been very material; but the statement as testified to by the witness, and as recited in the question, was a very material contradiction, and entirely different from that as to which she had been asked on her cross-examination. She had testified to his severe headache that night, and her arranging a board against which to brace himself so as to press his head against the head-board of the bed, and other facts quite inconsistent with his then being in his usual health, and she had not been asked as to any statements in regard to the state of his health when he went to bed. The prisoner’s wife was a very important witness in his behalf, and many facts depended upon her testimony alone. Any impeachment of her credibility was therefore highly prejudicial to the defense.

For the errors pointed out I think there should be'a new trial on which the degree of the crime may be considered.

Andrews, J., concurs.


text:
    Mary M. Boyle, Resp’t, v. Josiah W. Boyle et al., App’lts.

      (Court of Appeals,

      Filed June 14, 1887.)

    1. Lien—Of attorney—Partition.
    Defendant retained an attorney in a partition suit, under a verbal agreement that he should have a lien on his share, to he paid from the proceeds of sale, and afterwards assigned his interest to other parties. Held, that the attorney had the first lien.
    2. 'Same—Bond of indemnity.
    Defendant, who was an administrator, gave his surety a lien upon his interest in the estate, to protect the latter against liability. The surety was put to expense in compelling defendant to make a proper accounting. Held, that such loss was not covered by the bond.
    Appeal from supreme court, general term, first ■ department, affirming an order of the special term, confirming the report of the referee as to the priority and amount of hens in an action for partition of lands.
    Maria Mansfield, dying in 1883, an action of partition of her real estate was brought by the heirs at law, and the share of William W. Mansfield was deposited with the chamberlain of the city of ¡New York, “to the end that the parties entitled thereto may make such application therefor as they may be advised.” Mansfield retained Andrew J. Rogers in the action, agreeing to pay him $400, less any costs and allowances awarded to Rogers in the judgment, to be paid out of the proceeds of the sale.
    Letters of administration on Maria Mansfield’s estate were issued to William W. Mansfield, June 1, 1887, Henry J. Welch being one of the bondsmen, and to secure him Mansfield gave a bond of indemnity making such loss, if any occurred, a lien upon his share of the estate. Mansfield not returning an inventory to the surrogate, and otherwise misbehaving himself, was arrested and imprisoned for contempt, by order of the surrogate, but finally, and through proceedings brought by Welch, was forced to and did make & proper accounting, and his account was adjusted by the surrogate. The appellant, Annie L. McCahill, also had a lien on the estate for $1,000 loaned Mansfield, August 17, 1883, and for which he gave her an assignment of all his interest in the estate. A referee found that Rogers, Welch, and McCahill had liens in the order named, and his decision being affirmed at special and general terms, this appeal was brought.

      De Witt C. Brown, for Mrs. McCahill; John W. Goff, for Henry J. Welch; Jas. C. De La Mare, for A. J. Rogers

       39 Hun, 658, mem.

   Per Curiam.

We are satisfied with so much of the order appealed from as directs that the claim of Mr. Rogers, as attorney in the partition suit shall be first paid out of the proceeds in the hands of the court, but we are not satisfied with the priority awarded to Welch. He was surety upon Mansfield’s bond as administrator, and to protect him against that liability the assignment relied upon was made. But no such liability ever occurred. Mansfield, in the end, settled his accounts, and was discharged, and the decree shows that he paid out in funeral expenses more than the whole amount of the estate. Welch’s loss did not come from his liability on the bond, but first from his effort to be discharged as surety, for which Mansfield was not accountable, and second, from his own interference in an endeavor to make Mansfield account. The expenses he incurred were the product of his own fears, and not contemplated by the indemnity, or fairly within its terms. While its language is quite broad, it plainly does not cover an expenditure not created by the suretyship, but by his own hostile endeavor to to be rid of it. The purpose is stated to be to guard the bondsmen “from any loss or error that might arise from or be caused by said Mansfield’s administration of said personalty.” There was no such loss. The administration resulted in none. It came from W elch’s fears that there might be one, and his own voluntary action and expenditure. The language expressing what is to be paid out of the share assigned is, “such loss, expense, sum, or sums of money as the said Henry J. Welch and Patrick J. Evans may incur or be put to from any loss, error, mishap, or cause whatsoever in relation or regard to their suretyship on the said bond.” Here, again, is contemplated some loss flowing from liability as surety, and which is incurred or put upon them from that cause. It is expressed again, “ for any loss or expense they or either of them sustain or incur by reason of their surety-ship on my said bond.” No such loss occurred. Welch could have remained surety, and relied upon his indemnity. He chose not to do so. He sought to be relieved from the risk. That was his privilege; but the cost of it was not within his indemnity. He incurred further expenses in hostility to Mansfield. The result proved they were needless. Welch has his judgment against Mansfield, but is not entitled to be paid in preference to Mrs. McCahill.

So much of the order as gives him that preference should be reversed; the order modified so as to give Mrs. McCahill preference in payment next after Rogers; no costs of this appeal to be allowed either party.

All concur.


text:
    Buffalo Lubricating Oil Co. (Limited), Resp’t, v. Standard Oil Co. of New York, Impleaded, App’lt.

      (Court of Appeals,

      Filed July 1, 1887.)
    Corporations—Conspiracy by, actionable.
    An action may be maintained against a corporation to recover damages, for conspiracy.
    Appeal from judgment of supreme court, general term, fifth department, affirming judgment and order of Erie special term, affirming appellant’s demurrer to complaint.
    The complaint stated that plaintiff, from July, 1881, to July, 1882, carried on the business of refining oil and manufacturing lubricating oils, owning lands ana extensive machinery, etc., employing skilled labor, etc., etc., and doing an extensive business. That the Standard Oil Company, of Cleveland, Ohio, up to that time controlled the business of refining oil. That it organized the Acme Oil Company, and that it bought out'two-thirds of' the Vacuum Oil Company’s stock, and hired its employees, binding them not to compete with the Standard Oil Company. It further alleged that the defendants conspired together with other persons to prevent any other persons or corporations from carrying on this business, and to drive out any one already in, or who. attempted to engage in it. That the Vacuum Oil Company organized the Standard Oil Company of New York for this very purpose, and it carried out such scheme, getting control of and crowding out certain companies, which were enumerated. The complaint further alleged that all the defendants conspired to injure the plaintiff, by various means, stating them, such as by abusive letters, threatening prosecution to those who should buy oil of plaintiff, on the ground of infringement of patent rights, persuading plaintiff’s employees to leave it of to injure it by doing their work negligently, and that plaintiff was injured thereby, etc., etc.

      George J. Sicard, for app’lt; Adelbert Moot, for resp’t.

       Affirming 38 Hun, 634, mem.

   Per Curiam.

We entertain no doubt that an action against a corporation may be maintained to recover damages caused by conspiracy. Morton v. Metropolitan Life Ins. Co. 34 Hun, 367; affirmed 103 NJ. Y., 645; Reed v. Home Sav. Bank, 130 Mass., 443. Krulivitz v. Eastern R. Co., 140 Mass., 575, Western News Co. v. Wilmarth, 33 Kan., 510. If actions can be maintained against corporations for malicious prosecution, libel, assault and battery, and other torts, we can perceive no reason for holding that actions may not be maintained against them for conspiracy It is well settled by the authorities cited that the malice and wicked intent needful to sustain such actions may be imputed to corporations A careful scrutiny of the complaint has convinced us that sufficient facts are alleged to show that this appellant was a party to the conspiracy set forth, and that sufficient facts are therefore alleged in the complaint to show a cause of action against it.

The judgment should therefore be affirmed, with leave to the appellant to withdraw its demurrer and answer the complaint, upon payment, within twenty days, of the plaintiff’s costs subsequent to the interposition of the demurrer.

All concur.


author: Finch, J.

text:
    Joseph B. Moors, App’lt, v. Henry P. Kidder et al., Resp’ts.

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Bill of lading—Title of assignee of—Letter of credit.
    Baring Bros., through K. P. &Co,, their American agents, issued letters of credit to one Swain, he agreeing to pledge the goods purchased therewith to them, with right to take possession, etc. Swain purchased shellac in Calcutta, the bill of lading being sent to IC. P. & Co. This Swain obtained from them, indorsed in blank, upon the pretense that he wished to enter the goods in their name at the bonded warehouse; but he, through his broker, had them entered in his own name, and obtained a loan from plaintiff upon the warehouse receipt. Baring Bros, having seized the goods, this action of replevin was brought, held, that the Baring Bros, were owners and not mere pledgees, and had the title to the goods. Following, Farmers? and Meet,. Bk. v. Logan, 74 3ST. Y., 573. Batallo, Earl and Peckhaih, J. J., dissenting.
    3. Same—Factor’s Acts.

      Meld, that the settlement of the fact of ownership disposes of the case as affected by the factor’s acts of this state and Massachusetts.

      Appeal from, the supreme court, general term, first department, affirming a, judgment of the circuit, dismissing plaintiff’s complaint, in an action brought to replevy ninety-five cases of shellac. Plaintiff’s claim was founded upon an hypothecation of the goods to him by Paul M. Swain to secúre the payment of a loan. The defendants, Kidder, Peabody & Co., as agents for Baring Bros., who were also made defendants, also claimed the shellac as security for money advanced to Swain in payment of its purchase-price, by the following letter of credit:
    “Kidder, Peabody, & Co., 40 State Street,
    “ Boston, August 3, 1881.
    “ Messrs. C. C. Bancroft & Co., Calcutta:
    “Dear Sirs—You are hereby authorized to value on Messrs. Baring Bros. & Co., London, for account of Paul M Swain, Esq., Boston, Mass., by bills at three (3) months’ sight for the cost of any shipment of goods via San Francisco and thence overland, or at tíiree (3) to six (6) months’ sight for the cost of goods by any other route direct, or under through bills of lading to Boston or New York, to the extent of three thousand pounds sterling (say £3,000 stg.), and we hereby agree with the drawers, indorsers, and bona fide holders, respectively, of the bills drawn by virtue of this credit, that the same shall be duly honored by Messrs. Baring Bros. & Co., upon presentation at their banking-house in London, if drawn and negotiated within six (6) months from this date, and if accompanied by bills of lading for such goods filled up to the order of Messrs. Baring Bros. & Co., and by invoice of the same to their order for the account of whom it may concern.
    “A duplicate of such invoices with consular certificate attached, together with one bill of lading, to be sent direct to us either by vessel or mail.
    “Very respectfully, your obedient servants,
    [Signed.] ' “ Kidder, Peabody & Co.”
    Swain agreed with the defendants in accepting the letter to provide funds in London to meet any bills which might be drawn by virtue of the credit, and to give security to Baring Bros, for the amount of the bills if required, and pledged all property which might be bought with the proceeds of the letter of credit to the Baring Bros, for any moneys due them, said property to “be held subject to their order or demand, with authority to take possession and dispose of the same at discretion for their security or reimbursement, and so to take possession and dispose of the same, either by themselves or their agents, or by Messrs. Kidder, Peabody & Co.” Swain also agreed to indemnify defenders for any bond given to any custom house, etc. Bancroft & Co., on this purchased the shellac for Swain, and drew their draft on Baring Bros, for its price. The shellac was shippped, and in due time reached New York, and was placed in a bonded warehouse. Kidder, Peabody & Co. delivered the bill of lading to him with a blank endorsement, on his representation that he wanted to enter them at the custom house and store them in the name of Baring Bros. & Co., and gave them the following receipt:
    Boston, Kov. 18,1881.
    " To Messrs. Kidder, Peabody & Co., Boston•

    Gentlemen—I acknowledge receipt from you, as attorneys for Messrs. Baring Brothers & Company, of invoice and bill of lading of S S T Mirzapore
    D C One hundred cases of shellac.
    M
    CM R 15678 5-6

    Kew York.
    Shipped by C. C. Bancroft & Company on board S. S., C. o. Manchester, at Calcutta, and consigned to the order of Messrs. Baring Brother & Company, and indorsed by you, as their attorneys, to me. Such invoice and bill of laaing are delivered to me for the purpose of enabling me to enter the goods referred to in them at the custom house.
    And I hereby agree to place .the goods on storage for Messrs. Baring Brothers & Company, and subject to their order, and so thar they may be applied to the due performance of the agreement contained in the receipt signed by me for your letter of credit on them, Ko. 2,419, or any other-letter of credit on them, through which such goods have been purchased, we agreeing to keep them covered by insurance against fire for account of and loss payable to Messrs. Baring Brothers & Company.
    It is understood that the said goods are to be warehoused in the name of Messrs. Baring Brothers & Company, and warehouse receipts therefor handed to you for them.
    Very respectfully,
    Your obedient servant,
    (Signed) PAUL M. SWAIK.”
    The bill of lading was delivered to Swain with a blank indorsement, and he took it to William A. Brown, a custom house broker, who secured the transfer of the shellac to the credit of Swain, and the latter applied to plaintiff for a loan upon it, and on an order from plaintiff the warehouseman delivered the shellac to plaintiff, who then made the loan to Swain. The defendants taking possession of the shellac, this action was begun.

      E. R. Robinson, for app’lt; Chas. B. Alexander, for resp’ts.

       Affirming 34 Hun, 534.

   Finch, J.

The entire argument of the appellant turns upon the proposition that Swain was the general owner of the shellac, and the Barings merely pledgees. Upon that assumption the argument runs smoothly to its conclusion, and encounters no serious obstacle. But the grave trouble is in the assumption itself, and the authorities which clash with it. The general subject was very thoroughly discussed in Farmers’ and Mechanics’ Nat. Bank v. Logan (74 N. Y., 573), and whether the doctrine there declared covers the facts now presented, and whether they have or do not have vital distinguishing features, are the real subjects for our consideration. The doctrine stated was, in substance, that where a commercial correspondent, however set in motion by a principal for whom he acts, advances his own money or credit for the purchase of property, and takes the bill of lading in his own name, looking to such property as the reliable and safe means of reimbursement up to the moment when the original principal shall pay the purchase price, he becomes the owner of the property instead of its pledgee, and his relation to the original mover in the transaction is that of an owner under a contract to sell and deliver when the purchase price is paid. The authorities which sustain, and the reasons which justify, the doctrine need not be repeated, and it is required only that we determine whether it applies to and settles the case in hand.

There are some facts in the cited case which are not in this, and there are some in this which were not present in that, and to these and their effect attention must be directed. In that case the purchase was made by the brokers or agents of him who, as the ultimate vendee, may be termed conveniently, if somewhat inaccurately, the principal. Such brokers were buyers and sellers on commission, and it is said were the commercial correspondents to whom the rule refers, and who needed and received its protection, while here the only commercial correspondents were Bancroft & Co., at Calcutta, who are not before the court, and whose rights are not in question. But Bancroft & Co. were the sellers, and not the buyers, of the shellac, in their relation to the parties concerned. They passed their title either to the Barings or Swain; and, while they were commercial correspondents in-some sense, they were not such within the rule under discussion, for they advanced nothing on the credit of the property, and parted with title instead of taking it. The Barings, although bankers, were equally commercial correspondents, and they took title through the bill of lading, and bought the property on their own credit. But, if Bancroft & Co. be treated as the commercial correspondents, the case is not changed. Like Sears & Daw m the Logan Case, they bought the shellac on their own credit or with their own money, and got reimbursement by drawing upon the Barings, transferring title to them by the invoice and bill of lading to their order, as Sears & Daw did to the discounting banker in the Logan Case. The difference in the manner of making the advances is not material. In each cáse the bankers became owners or pledgees.

In the Logan Case the purchasing correspondent took from the vendor a bill of sale as well as a bill of lading to his own order, but the Barings took only the bill of lading if the invoice to their order was not tantamount to a bill of sale. We do not deem that difference, if it was one, at all material. The title passed as effectually by the latter paper alone as if it had been preceded by the former, for we have uniformly held that the bill of lading is the evidence of title, and is sufficient to vest the ownership and absolute control in him to whose order it is drawn. The purchase in the case citéd seems to have preceded the shipment so as to make natural and convenient a bill of sale covering the interim. If it had been intended in this case to vest the general ownership in Swain, and make him the purchaser, a bill of sale to him, or an invoice to his order, might naturallly have been made, but as to the Barings the purchase and the shipment were practically coincident.

In the cited case, again, the bill of lading, as attached to and sent forward' with the discounted draft, had stamped upon it a statement addressed to the original principal that the wheat, and the insurance of it, were pledged to the plaintiff as security for the payment of the draft, and that the wheat was put into his custody, in trust, for that purpose, not to be diverted to any other use until the draft was paid, and that, upon his accepting and paying the draft, the claim of the plaintiff would cease. This appears to have been an effort to put in words upon the bill of lading the legal meaning of the transaction. It was not necessary to tiie certainty or scope of that legal meaning, and amounted only to a prosecution A similar distinction was sought to be drawn in the cited case itself between it and Bank of Toledo v. Shaw, 61 N Y., 283, and 69 N. Y., 624. In that the bill of lading was, when forwarded, accompa,nied by a letter explicitly directing the property to be delivered only upon payment of the specified purchase money. The comment of the court in the Logan Case was: “ Such agreement was but putting into terms the legal effect of the transaction in the case before us; for we have shown by authority that the taking of the bill of lading in the name of the plaintiff for its account and the discount of the draft by it on the strength thereof did transfer to it the title to the wheat.” Indeed, it seems to me that the title of the then plaintiff was rather weakened than strengthened by the matter stamped upon the bill of lading, for it speaks of the transaction as a pledge, when in truth it was an ownership, and it appears to be for that reason that the court, in upholding the banker’s title, founded on the bill of lading, speak of the latter “even with the modification thereof made by the matter stamped upon it” and “even as modified,” So that the absence of the special indorsement in the case at bar, at least, does not weaken the bearing of the Logan Case upon it.

But a much more important suggestion made by the appellant is founded upon the terms of the written agreement-between Swain and Kidder, Peabody and Co. as agents of the Barings, which was intended to govern and control the entire transaction. They issued a letter of credit addressed to Bancroft & Co., and authorizing them, for account of Swain, to value on the Barings by bills for £3,000, and promised to accept and pay those bills “ if accompanied by bills of lading for such goods filled up to the order of Messrs Baring Bros. & Co., and by invoice of the same to their order for account of whom it may concern.” Swain on his part agreed to provide funds in London to meet such bills as should be drawn, at their maturity, and that “ all property which shall be purchased by means of the within credit, together with the bills of lading for the same, are hereby pledged and hypothecated to Messrs. Baring Bros. & Co. as collateral security for the payment as above promised, and shall be held subject to their order on demand, with authority to take possession and dispose of the same at discretion for their security and reimbursement. ” The argument upon this provision rests upon the words “pledged and hypothecated” and “collateral security,” and avers, as a consequence, that Swain was, within the contemplation of parties, general owner of the shellac, and the Barings merely pledgees. It is observable that Swain did not so-understand it; for in his testimony he said: “Kidder, Peabody & Co. were the owners of these goods till they arrived in Boston.” It has already been mentioned that a similar expression was used by the plaintiff in the Logan Case in the matter stamped upon the bill of lading describing the wheat as “pledged” to the plaintiff, and as “security” for the payment of the draft, and so little did the use of the inapt words affect the plain and unequivocal substance of the transaction in the mind of the court that the use of the word " pledged” was not even made the subject of remark. It is further quite evident that, from the moment of the shipment and the delivery of the bill of lading, the absolute jus disponendi was in Kidder, Peabody & Co. by the very terms of Swain’s agreement. They were at liberty to “ dispose ” of the property “ at discretion,” and either for “ security” or reimbursement. It is also to be noted that what is spoken of as “pledged” is not merely the goods or the property, but the bills of lading also. These documents carry the title as well as the right of possession, and the pledge or hypothecation is expressly applied to both The meaning assuredly was that the title should pass. Very likely, as is suggested for the defendant, the transfer was rather in the nature of a mortgage in which the title passes than in that-of a pledge in which the pledgeor is general owner. Here, then, we have a case where no title was attempted to be given to Swain, where it was given to the Barmgs by the ill of lading to them, where they paid for the property by their own credit and money, where it was the very pith of the adventure that the shellac should furnish the means of meeting the price, where the invoice was to be made to their order, where the possession was to be theirs, where they were to have the right of disposal at discretion, and Swain was to have no control until the payment of the draft. In such a case he could not be general owner, and an inference to that effect from an inapt expression cannot be indulged. So far, the case, in our judgment, cannot be distinguished from that against Logan, upon the authority and reasoning of which the Barings must be deemed owners, and not merely pledgees.

The settlement of that point disposes of the case as affected by the factors’ acts of this state and Massachusetts, except in a single respect. It is not pretended that plaintiff is protected under the provision which makes the transfer by an agent intrusted with the evidence of title, and which has been made upon the faith thereof,” valid under some circumstances, even against the real owner; for the bill of lading, with its indorsement, was not shown to the plaintiff, and in no manner affected his action. But the appellant insists that there was evidence enough to go to the jury that Swain was intrusted with the property for the purpose of a sale, or of obtaining advances upon it, and so, under the factors’ act, the plaintiff’s title as pledgee is to be protected. The course of business brought the shellac to the custom-house, and into the " general order ” stores. From that custody it could only be removed by some action of Kidder, Peabody & Co. by force of their bill of lading. Swain applied for the papers to Mr. Collins, who was their merchandise clerk, and who testifies. I asked what he was going to do with the papers, and he said he wanted to enter them at the custom-house, and warehouse them for account of Baring Brothers & Co.” Collins repeated that request to Peabody, who gave his consent. Thereupon Swain signed a receipt for the papers, which specifies explicitly this one sole purpose for which they were put in his control, and thereupon they were indorsed in blank to enable Swain to make the entry, and to warehouse the goods as agreed. Instead of doing that, Swain entered them ■ in the name of his broker, and then pledged them to plaintiff as security for a loan, the pledgee trusting to the representations of Swain and the warehouse receipt which he obtained. Peabody, so far as he was a party to the occurrence, fully corroborates Swain, and the latter was not thereafter called to deny, and did not deny, their version of the transaction. All that was later shown in rebuttal was a copy of the complaint in an action begun by Kidder Peabody & Co. against Swain and Casey, who was the warehouseman. The opinion of the general term shows so fully that the statements of that complaint taken together were in no manner inconsistent with the evidence given for the defense as to make a repetition needless; and we may confine our attention to the evidence of Swain, and what it is claimed to establish.

_ Invariably the manner of dealing between the parties was like that developed in this case, so far as the written agreements were concerned. These were in two forms. One of them, that which we have described, which intrusted the shipping papers to Swain solely that he might enter and warehouse the goods in the name of the Barings; and the other, which recited their sale, and gave them into the custody of Swain, to make delivery, and collect the proceeds which were stipulated to “belong” to the Barings, and to be handed over to them. Swain could not name a single instance in which one or the other of these papers was not signed by him, but it was sought to show by him that the action under them was loose, and he was permitted to act differently. He said that he had been in the habit of entering the goods sometimes in his own name, and of selling or pledging the goods and paying the proceeds long after, to meet the drafts maturing in London. Under the second form of receipt a sale was contemplated, and payment of proceeds over to Kidder, Peabody & Co., and that they did not demand them immediately upon the sale, and often accepted them later, although in time for the drafts, shows simply their confidence in Swain, but did not make their money his, and serves sufficiently to explain Peabody’s alleged admission that Swain had been permitted to do as he pleased. And it is noticeable that the one single instance in which Swain says he can remember the facts of the deviation from the written stipulation was one under the second form of receipt, in which, after a sale, he did not deliver -over the proceeds promptly upon obtaining them. But he admits that he never had any consent to warehouse the 'goods in any other name than that of the Barings, and, out ■ of thirty-four instances in which the papers were put in evi-. dence, Swain, with the aid of the books, was able to name but four instances in which he warehoused in his own name and pledged the goods. He does not pretend that the fact came to the knowledge of Kidder, Peabody & Co., and any such knowledge is denied by them. The argument here is that they must have known, and the jury might have found that they did know. Our opinion is with that of the courts below, that such a finding would not have been warranted. All that Swain’s evidence tends to show is that in transactions under form No. 1 he often did not at once turn over the warehouse receipts, and was not questioned about them, and in transactions under form No. 2 was not immediately called upon for the proceeds received. There was not enough to destroy the force and work a modification in the written stipulations of the parties, and no verdict to that effect would have been justified.

The judgment should be affirmed, with costs.

All concur except Rapallo, Earl and Peckham, JJ., dissenting.


text:
    Lydia A. Gage, Resp’t, v. Village of Hornellsville, App’lt.

      (Court of Appeals,

      Filed July 1, 1887.)

    1. Costs—Municipal Corporations—Actions por—Negligence by—Code Crv Pro., § 3245.
    Cases for the recovery of damages for injuries sustained by reason of the negligence of the servants of a municipal corporation are not within purview of section 3245 of the Code. That section refers to actions ex contractu, not to those ex delicto.

    2. Same—Fiscal oppicer op village.
    The chief fiscal officer, of a village is the treasurer.
    Appeal Horn supreme court, general term, fifth department.
    Action for damages sustained by the defective condition of a sidewalk in the village of Hornellsville. The claim was presented to and rejected by the board of trustees.

      I. W. Near, for app’lt, George N. Orcutt, for resp’t.

       Affirming 2 N. Y. State Rep., 345.

   Per Curiam.

We held that cases for the recovery of damages for injuries sustained by reason of the negligence of the servants of a municipal corporation were not within the purview of section 2, chap. 262, Laws of 1859. Taylor v. City of Cohoes, 105 N. Y., 54. The provisions of that section were substantially embodied in section 3245 of the Code. There is no such change in the language of the latter section as requires or will permit us to change our decision, and construe it differently from the former section. We simply decided in Baine v. City of Rochester (85 N. Y., 523), that under section 3245 a claim against a municipal corporation arising ex contractu must have been presented to its chief fiscal officer before the commencement of the action in order to entitle the plaintiff to costs, and thus actions ex delicto against municipal corporations are left to stand, as to costs, upon the prior decisions. We do not agree that a claim against this municipality could, under the section of the Code, be presented to its board of trustees. The chief fiscal officer of such corporation is the officer who receives, keeps and disburses the moneys of the corporation, and such an officer is the treasurer.

The order should be affirmed with costs.

All concur.


author: Earl, J.

text:
    Frederick E. Wilcox, Resp’t, v. James Campbell. App’lt.

      (Court of Appeals,

      Filed July 1, 1887.)

    Mortgage—Sale subject to—Liability op grantee assuming mortgage.
    Where a mortgagor conveys a part of the land subject to the mortgage, which the grantee assumes, and thereafter the former sells the rest of the land to a third party, if the mortgage is foreclosed, such third party may maintain an action against the grantee, who assumes the mortgage, and the value of the land will be the measure of damages.
    Appeal from, judgment of supreme court, general term, fifth department, affirming judgment of special term in favor of plaintiff.

      J. A. Stull, for app’lt; Q. Van Voorhis, for resp’t.

       Affirming 35 Hun, 254.

   Earl, J.

Prior to the ninth day of November, 1874, Barton J. Conklin owned a parcel of land in the city of Rochester, being 187 feet front on North St. Paul street, and 420 feet deep; and he had executed a mortgage thereon to a savings bank to secure the payment of $3,000, and interest. On that day he conveyed the land to Jane E. Wilcox, subject to the mortgage to the savings bank, which she assumed and agreed to pay, and at the same time she executed to Conklin a mortgage for $2,000 upon the land to secure a part of the purchase price. On the twelfth day of February, 1877, Mrs. Wilcox executed to the defendant a deed of the northerly 107 feet of the land, she retaining the remaining eighty feet thereof. The deed was subject to the two mortgages which the defendant assumed and agreed to pay as part of the purchase price. On the twenty-sixth day of August, 1878, Mrs. Wilcox, by a quit-claim deed, making no mention of the mortgages, and expressing a consideration .of _ one dollar, conveyed the eighty feet of the land so retained by her to Lucius C. Bingham. Some time in 1878 the savings bank commenced a foreclosure of its mortgage for $3,000 upon the entire parcel of land, and on February 12, 1879, the foreclosure proceedings resulted in the sale of the whole parcel of land, including - the eighty feet deeded to Bingham, and the 107 feet deeded to the defendant, and the proceeds of the sale were all used to satisfy the mortgages. Thereafter, Bingham, by a written instrument, for a valuable consideration, assigned to the plaintiff all his claim for damages, and all his causes of action against the defendant by reason of his failure to pay the mortgages. This action was subsequently commenced by the plaintiff to recover damages against the defendant because his assignor’s land was sold in consequence of the failure of the defendant to keep his covenant to pay the mortgages, and upon the trial judgment was given for the plaintiff, which has been affirmed by the general term.

After the conveyance by Mrs. Wilcox to the defendant, he became the principal debtor to the mortgagees, and she remained simply surety for him, and every one having notice of the relation between them was bound to respect it._ The parcel of land conveyed to the defendant was primarily liable for the payment of the two mortgages, and the parcel of eighty feet was secondarily liable, and simply remained security for the payment of the defendant’s obligations. Wadsworth v. Lyon, 93 N. Y., 201. He, as principal debtor was bound to protect both her and her land from any liability on account of his debts. After her conveyance of the parcel of land to Bingham, it was still simply security for the defendant’s debts; and Bingham obtained the entire title thereto simply incumbered by a mortgage to secure obligations which the defendant was primarily liable to pay. The duty rested upon him as principal debtor to protect that land from sale; and when it was sold in consequence of his default, and its value applied in discharge of his obligations, he became liable to Bingham for the damages thus caused to him. That cause of action, by assignment, became vested in the plaintiff, and it does not depend upon any principle of subrogation. It was a direct liability to Bingham, growing out of the defendant’s default, and of a breach of duty which he owed. Bingham was brought into relations with the defendant by the conveyance to him, and the ownership by him of the land bound as surety for the defendant. Bingham, if aware of the foreclosure action, could have appeared therein, and procured a sale of that portion of the land which was conveyed to the defendant first in discharge of the mortgages; and if that portion did not sell for enough, then he could have paid the balance due upon the mortgages to save his land; and the sum thus paid would have been the measure of his damages. Instead of paying such balance, he could have permitted his land to be sold, and certainly, to the extent of its proceeds applied in discharge of the foreclosure judgment, he would have had a claim against the defendant. But under the circumstances of this case, both mortgages being liens upon the land, Bingham was not under any obligation to the defendant to take any steps in the forclosure action; and if by the default of the defendant, he was deprived of his land, the value of the land is the fair measure of his claim against the defendant. He must have been a party to the foreclosure action, and it was his duty to appear therein to protect his own interests, as well as those of his surety. The rule which requires a party exposed to injury or damage to make his loss as small as he reasonably can, did not impose upon Bingham the obligation to raise $5,000 for the payment of the two mortgages for the purpose of protecting himself and his land from the consequences of the defendant’s default.

It does not appear whether these two parcels of land were sold in a body, as described in the two mortgages, or whether they were sold separately, and that portion conveyed to the defendant sold first. Hor does it appear how much the parcel of land conveyed to Bingham brought upon the sale. Ho question was made upon the trial about the rule of damages, and therefore, if an improper rule was adopted by the court, which is denied, it is not a subject of review here.

Upon the whole case we see no reason to doubt that the judgment is free from error, and that it should be affirmed, with costs.

All concur.


author: Earl. J.

text:
    Caleb E. Whitaker, App’lt, v. John M. Masterton, Resp’t.

      (Court of Appeals,

      Filed June 28, 1887.)

    Manufactubino cobpobations—Annual eepobt—Liability of tbustbes—Laws 1848, Chap. 40.
    An annual report, which, in giving the amount oí paid in capital, states: that “ all of which has been paid in cash, patent rights, merchandise, machinery, accounts, etc., necessary to the business, and for which stock, to-the amount of the value thereof, has been issued by the company.” Held, to be in form a full compliance with section 12, chap. 40, of the Laws of' 1848. as amended. The section does not require the report to specify how much of the stock was paid for in cash and how much in property.
    Appeal from supreme court, general term, first department.
    The Imperial Skirt Manufacturing Company, organized under the act of 1848, chap. 40, gave its notes to plaintiff for $13,000, and not paying them plaintiff obtained judgment. The' judgment not being fully paid, plaintiff began this action against defendants as trustees, alleging:

      First. That defendants, as such trustees, aid not within, twenty days from January 1. 1878, file the annual report required by the statute, although they did file a report, but that it did not state the proportion of capital paid in, nor the amount of 'stock issued for money and how much for property.

      Second. That such report was false in a material representation.

      Third. That the defendants, in organizing the corporation, conspired to deceive and defraud the plaintiff.

      Geo. V. N. Baldwin, for app'lt; Flamen B. Candler, for resp’t.

       Affirming 35 Hun, 669, mem.

   Earl. J.

The trial judge found that there was no fraud or conspiracy as alleged by the plaintiff in the second and third causes of action, and the findings against the plaintiff' in reference to those causes of action being based upon sufficient evidence, and having been affirmed by the general term, conclude us, and we have no power to review or interfere with them. Our sole duty, therefore, is to determine whether the court below erred in reference to the first cause of action.

It is undisputed that the defendants, as trustees of the corporation, made, filed, and published a report on the eighteenth of January, 1878, which is as follows:

“ Amount of the capital of the company, $50,000; amount, of the capital paid in, $50,000, all of which has been paid in cash, patent rights, merchandise, machinery, accounts, etc., necessary to the business, and for which stock, to the amount of the value thereof, has been issued by the cornpany. Amount of the existing debts of the company does-not exceed $38,500.
“ John M Masterton, President.
' R S. Masterton,
“ E. D. Smith,
“ A. Masterton,
“ Majority of the Trustees.”

The contention of the plaintiff is that this report was-wholly inadequate and inoperative, because it did not state the proportion of the capital paid in, and what amount thereof was paid in ca.sh, and what amount in property; and therefore it is claimed that the report did not comply with section 12 of chapter 40 of the Laws of 1848, which, as originally enacted, provided that every corporation organized under that act should annually within twenty days from the first day of January, make, verify, publish, and file a report, stating “the amount of capital, and of the proportion actually paid in, and the amount of its existing debts;” and that, if any corporation should fail so to do, all its trustees should be jointly and severally liable for all its debts then existing, and for all that should be contracted before such report should be made.

As we have repeatedly held, this section is highly penal, and it should be construed like other penal statutes. Its scope should not be enlarged by construction or implication, and the courts should not impose the penalty except in cases where the plain language of the section requires it. Whitney Arms Co. v. Barlow, 63 N. Y., 62; Wiles v. Suydam, 64 id., 173; Bonnell v. Griswold, 80 id., 138; Brackett v. Griswold, 103 id., 425. The report made by the defendants was in form a full compliance with the section referred to. It stated the amount of the capital; that it was all actually paid in; and the amount of the existing debts of the company. That was all that was required to be stated, and the penalty was imposed for an omission to make publish, and file a report containing such matters, The penalty could not be incurred, as we have held, if the report in form complied with the section, unless it was false, in which event liability was imposed by section 15.

The act, chapter 333 of the Laws of 1853, purports to be an act amending the general manufacturing act of 1848, and section 2 of that act provides as follows: “The trustees of such company may purchase mines, manufactories, and other property necessary for their business, and issue stock to the amount of the value thereof in payment therefor; and the stock so issued shall be declared and taken to be full stock, and not liable to any further calls; neither shall the holders thereof be liable for any further payments under the provisions of the tenth section of the said act; but in all statements and reports of the company to be published, this stock shall not be stated or reported as being issued for cash paid into the company, but shall be reported in this respect, according to the fact ” This section imposes no penalty for non-compliance with its requirements, and section 12 of the manufacturing act cannot be so incorporated into this section, or this section so incorporated into that, as to make the penalty prescribed by that section applicable to this.

There was no violation of this section in the report which these defendants made. They stated that all of the capital was paid in, some of it in cash, and the balance in the property mentioned; and thus the report was according to the fact. This section does not require the report to specify how much of the stock was paid for in cash, and how much in property. It would be too rigorous to hold that, for a failure to make such specifications, trustees are to be held liable for .all the debts of the corporation. This is made clearer by a reference to the act, chapter 510 of the Laws of 1875, which is an act simply amending section 12 of the act of 1848, by re-enacting the same with amendments; and the section, so far as is material to this case, was not changed. It still requires a report to state only “ the amount of capital, and the proportion actually paid in, and the amount of its existing debts,’’ and for a failure to make such report the trustees are made liable for all the debts of the corporation. If it had been the intention of the law-makers to impose the penalty for non-compliance with the act of 1853, it is to be supposed that such intention would have been embodied in some form in this section as amended. But, with the statute of 1853 before them, they specified in the section as amended precisely what the report should contain, and for what the penalty should be incurred.

There is no good reason for extending the penal provisions ■of section 12, as amended, to cases not plainly within the language used. The capital is required to be paid in cash or property, and stock can be issued only for cash and the .actual value of the property. It, therefore, cannot be very important, in any case, to creditors to be informed by the report of a corporation how much of its capital was paid in cash, and how much in property. The capital of a manu - facturing corporation is not kept in cash, but is invested in property, and it cannot usually be very important to creditors to know whether á corporation upon its organization received property, or whether it received cash which was subsequently invested in property. If property necessary to the business of a corporation is taken at its value, it is frequently better than cash. Such a report as this is sufficient to put creditors upon inquiry. They can see by it that some portion of the capital was paid in cash and some in property, and they can by inquiry ascertain what the truth is. We cannot, therefore, say that the legislature intended to inflict upon trustees of a manufacturing corporation a penalty for not specifying in their report how much of the capital stock of the corporation was issued for cash, and how much for property. And, while this point has not been precisely decided in this court, our present views in reference to it receive much countenance from the following decisions: Bonnell v. Griswold, 80 N. Y., 128, and 89 id., 122; Pier v. Hanmore, 86 id., 95.

We are therefore of opinion that the judgment should be affirmed.

All concur.


author: Per Curium.

text:
    FIRST DEPARTMENT, GENERAL TERM.
    Filed May 13, 1887.
    SAMUEL WEEKS and another, App’lt, v. JACOB W. CORNWELL et al., Resp’t.
    Receiver—Order appointing—Power under order.
    Appeal from order modifying preceding order..

      E. M. Shepard, for app’lt; Flamen B. Candler, J. M. Peters, A. H. Stoiber & Abner C. Thomas, for resp’t.
   Per Curium.

The order appointing the receiver was made upon the hearing oí the counsel for the parties in interest, and it directed the receiver to lease the premises or any part thereof for a term not extending heyond the 1st of May. 1886. This was a restriction upon his authority to lease which he had no power to transcend. And as the order was made upon the hearing of the parties it was conclusive upon this subject. And on the application of the receiver himself without notice to either of the parties in interest the court had no power to modify this order by removing this restraint. Accordingly the ex parte order permitting the receiver to lease the premises for a term not extending beyond the 1st of May, 1889, was unauthorized, and the persons who took the lease from him under this order are chargeable with notice of the inability of the court to make it, as it was done, without notice. They derived whatever title they have through these proceedings and were bound to ascertain the title of the receiver before they dealt with him in taking these leases. What he was authorized to do was to lease for a term not extending beyond the 1st of May, 1886. By the order from which the appeal is taken, so far as the leases complied with this authority they have been sustained. Beyond that they are incapable of being sustained. Ample provision is made in the order for the protection of the lessees, and the order should be affirmed, with ten dollars costs and disbursements.


text:
    NATHANAL HOOPER et al., Resp’t, v. CHARLES McC. BEECHER, App’lt.
    Stay of proceedings—Authority for order.
    Appeal from order granting a stay.

      Franklin Bien, for app’lt, Charles E. Tracy, for resp't.
   Per Curium.

We think the order appealed from should be modified by limiting the stay to ten days after the entry and service of a copy of the order of the general term upon the mot'on for reargument.

Section 1351 of the Code the for such an order.

The order as so modified should be affirmed, without costs to either party.


text:
    WILLIAM MOORES, App’lt, v. JOHN TOWNSHEND, Resp’t.
    Complaint—Dismissal of—When no adjudication on the merits. >
    Appeal from judgment dismissing complaint-

      Robert B. Wensley, for app’lt; John Townshend, for resp’t.
   Per Curiam.

The defendant being in possession of the premises, claiming under a lease, and there being no proof as to the value of the lease under which he claimed title, and the lease being the subject matter of the litigation there-was no proof as to the value of the' subject matter, and consequently no basis for an allowance The granting of an allowance was therefore improper

The insertion in thu judgment of the statement that the complaint was dismissed upon the merits seems also to have been without warrant, as the plaintiff substantially submitted to a dismissal of the complaint upon the trial and there was no adjudication upon the merits

The judgment appealed from should therefore be modified by striking therefrom the words on the merits ’ and as so modified affirmed, with taxable, costs only, in the court below, and without costs of the appeal to either party.