author: Daniels, J.;

text:
    ALFRED A. FREEMAN, Executor, etc., Appellant, v. HARRIET A. COIT and FLORENCE A. FREEMAN, Respondents.

      Parent and child — when a father may charge the costs of maintaining his child to the latter’s estate — A husband may charge the funeral expenses of his wife to her sepa/rate estate,but not the charges for medical attendance during her last sickness — Allowances by surrogates — abuse of the power.

    Appeal from a decree of the surrogate of the county of New York.
    The court at General Term said: “The decree was entered upon the settlement of the accounts of the appellant, as the acting executor of the estate of his wife, Sarah A. Freeman, and it is objected to as erroneous, by each of the parties to the accounting. But while the respondents have not appealed from it, they are still at liberty to specify any items in the account as to which they believe the decree to be erroneous against them.
    “This is allowed by Bule 51 of the Supreme Court rules, which was in force at the time when this appeal was taken, and the provision made by it upon this subject is sufficiently broad to provide all the means of correction required in the disposition of this appeal. And a like authority, although not so specific in its terms, has also been provided by section 2587 of the Code of Civil Procedure.
    “ The will of the testatrix was executed by her on the 23d of December, 1873, and she died on the 23d day of December, in the year 1876. After providing for the payment of four legacies, she devised and bequeathed two-thirds of her real and personal estate to her executors, to be invested on bond and mortgage, in trust, to pay to and for the support, maintenance, and education of such child, or children, as she should leave surviving her, the income thereof ; and to pay the principal with all its accumulations to such child or children, when the child or children respectively attain the age of twenty-one years. At the time of her decease she left but one child, .who was born in the year 1875, and is the infant respondent in this appeal. She seems to have been a person of delicate health, requiring an unusual degree of care and attention, and her father, who is the appealing executor, charged in his account for her support and maintenance the sum of $2,500. The first item of $1,000 was charged for this purpose to November 1st, 1877; the second for a like amount, to the same date in 1878, and the third, being the sum of $500- in April, 1879. The fact of the expenditure of these sums, in and about the care and attention given to this infant child, does not appear to have been disputed upon the hearing, but their allowance was resisted, and they were rejected by the surrogate, for the reason that he, as the father of the infant, was himself bound to support, provide for and maintain her. And such, undoubtedly, is the general rule of law upon this subject. But no authority has been found, neither has any been cited, requiring this principle to be so stringently applied as to exclude the right to apply the income of the infant’s estate to this purpose, when that has been provided for in such terms as were employed by the testatrix, the mother of the infant, in her will. It is not necessary to refer to the authorities in detail, which have been relied upon to justify the ruling made by the surrogate, under which these items were excluded from this executor’s account, for in neither one of them, nor by the general rule existing upon the subject, has the right to apply such income when so directed, to the support and maintenance of the infant, been denied. The general rule has been stated to be that, ‘ the father is bound to support his minor children if he be of ability, even though they have property of their own.’ (2 Kent Com. [7th ed.], 182; Smith v. Geortner, 40 How., 185; Matter of Kane, 2 Barb, Oh., 375 ; Matter of Burlce, 4 Sandf. Ch., 617.)
    “ But in the present instance the intention of the testatrix, that the child surviving her should receive the immediate and continued benefit of the income of her two-thirds of the estate, has been clearly expressed in the will, and that intention, by the statute, as well as the general principle of law applicable to wills, is required to be observed and carried into effect. Her direction was positive that the income of this two-thirds should be devoted to the support, maintenance and education of the child, and under this decided and unequivocal direction her father, as executor, was clearly authorized to make that disposition of the income of this portion of the estate, so far as it was required for this purpose. An authority of this nature has been derived from similar clauses contained in marriage settlements and ante-nuptial • agreements. (Ransorne v. Burgess, L. R., 3 Eq., 173; Stocken v. Stocken, 4 Simons, 152; Meacher v. Young, 2 Mylne & 3L, 490.)
    “ It is true that this authority in these cases has been derived from the facf of a contract having been made upon the subject, but no. greater effect can reasonably be attributable to such terms when they may be employed in such an instrument, than should be given to them when the same unequivocal use has been made of them in. a will. And this view has finally been adopted in England, where, by chapter 145, section 26 of 23 and 24 Yietoria, the law has been so changed that in all cases income of this nature may be applied to the maintenance and education of the infant. The reason of the rule includes all cases alike, where such a provision has been made, and under the statute of this State requiring the intention of the person making the will to be carried into effect, the principle may properly be made as extended as this in the administration of the laws of this State. (2 R. S. [6th. ed.], 1130, § 2.)
    “ The amount paid out by the father of the infant, for her support, care and maintenance, was certainly large, she being at the time only in her second, third and fourth years; but as the circumstances concerning her health have been disclosed, and the care required to be devoted to its preservation and improvement, the expenditures cannot be said to exceed what in good faith might have been devoted to the promotion of these objects. The evidence as it was given will bear the construction that the father was not culpably extravagant, although he may not have been frugally careful in the amount expended for this purpose. Certainly, as the infant advances in age, a stricter accountability will be required from him in the disposition of the income of her property, but under the circumstances as they have been presented, the expenditure' which he made, and amounting in all to the sum of $2,500, should have been allowed by the surrogate. * * *

      “ Charges were made by the appealing executor for expenditures made as funeral expenses attending the decease and burial of his wife. These were in part allowed and in part disallowed by the surrogate. Both parties have complained of the decision made by him upon this subject, and it has been claimed that the husband was bound to defray the expenditures required for the burial of his wife, and that certainly is the general rule prevailing upon this subject. But as it has been acted upon in this State, where the expenditures have been made by the husband, and the deceased wife has left a separate estate owned by her, he has been allowed to reimburse himself from such estate. (Patterson v. Patterson, 59 N. Y., 574; MoQue v. Garvey, 14 Hun, 526.)
    “ The latter case was a determination upon the precise point by the General Term of the second department; but the surrogate, not being satisfied with the reasoning supporting it, declined to follow it. That, however, was not a sufficient justification for rejecting so much of these charges as was disallowed. It was the determination of an appellate tribunal having authority over such an adjudication, and, to some extent certainly, it was supported by the decision of the Court of Appeals in the preceding case, and it should consequently have been followed in the disposition of the controversy relating to this part of the accounting. Not only the bill of the undertaker, which was allowed, should be retained, but in addition to that the residue, amounting to the sum of fifty-two dollars and fifty cents, should have been allowed in the accounting.
    “ The distinction between these charges and those for medical services -during the last illness of the deceased is not very decided, but still it exists, for the husband was bound to provide his wife with what became necessary for her and was suitable for her station and his condition in life. (2 Kent Com. [7th ed.], 128.) And the charges for these medical services were clearly within this principle. They were made to him and paid by him, and were properly disallowed and rejected as parts of his account. * * *
    “ But on the affirmance no costs should be allowed to either of the parties, because of the large allowances made to them by the surrogate out of this small estate. This practice of subjecting estates, as well as the parties to other litigations, to the payment of large allowances has been carried to such an extent as to require the condemnation of the-courts. It is unjust to the parties entitled to participate in the distribution of the property committed to the administration of the law, and it is oppressive and burdensome to those engaged in the settlement of honest differences and disputes concerning their rights to property or the .protection or security of their persons.
    “ The manner in which the discretion created over this subject by the statutes of the State' has been exercised has become a just subject of reproach, and where it can be arrested and restrained within the proper bounds designated by the language of the statute, by an appellate tribunal, it should uniformly be done. But as no appeal has been taken from this portion of the decree, this court has no power to interfere with these particular allowances further than to withhold any additions by the way of costs, as that has been already directed.”

      Oharles M. Hall and William I). Eoulhe, for the appellant.

      J. E. Dana, for the respondent, H. A. Coit.

      A. II. Stoiber, for guardian of Florence A. Freeman, respondent.
   Opinion by

Daniels, J.;

Davis, P. J., concurred.

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

Decree modified as directed by opinion, and affirmed as modified, without costs to either party.


source: Caselaw Access Project

author: Brady, P. J.;

license: Public Domain

text:
    THE OREGON STEAMSHIP COMPANY, Appellant, v. GEORGE K. OTIS, Respondent.

      United States mail — right of. one person to take a contract to ca/rry it, as the agent and for the benefit of another — Referee —power of, to allow an amendment to the complaint.

    Appeal from a judgment., entered on the report of a referee, dismissing the plaintiff’s complaint.
    The complaint alleged that the defendant, on or about the 2d of March, 1874, as the agent of the plaintiff, made a certain agreement with the United States for the transportation of its mails on route known as No. 46,101, between San Francisco, in California, and Portland, in Oregon, and back, and that at various times the defendant had collected and received from the United States certain sums of money, of which sums he had paid the plaintiff, at various times, various amounts, and that the defendant had not paid over to the plaintiff or accounted for a certain sum which had been duly demanded.
    The defendant denied that he had ever made or entered into the contract as the agent of the plaintiff. The referee found that the defendant did not make or enter into the agreement as the agent of the plaintiff, but, on the contrary, that the defendant entered into the contract personally. Rut the referee finds that the mails were in fact carried by the plaintiff upon its steamships, running between the ports of San Francisco, California, and Portland, Oregon. He also finds that the defendant has received certain sums, and that he had paid certain sums to the plaintiff, who had, prior to the commencement of the action, demanded from the defendant the amount stated in the complaint.
    The court at General Term said: “From the opinion of the referee, which appears in the case, it is quite evident that he found against the plaintiff on tlie question of agency, upon the proposition that as the contract for carrying the mails was one between the defendant and the United States, accompanied by the affidavits and certificates required by the laws of Congress, it was the contract of the' defendant and not of the plaintiff, and which was not assigned and was not capable of assignment under such laws.

      “ This was an erroneous view of the ease. The evidence establishes pri/ma facie that the contract was taken by Otis on behalf of and for the benefit of the plaintiff, he acting in the transaction as its representative. And there is nothing in the provisions of the statute (see Rev. Stat. United States [2d ed., 1878], §§ 3941 to 3953) which prohibits such a contract being made between the parties. It is true that section 3963 declares that no contractor shall assign or transfer his contract, and that all such assignments shall be null and void; but there does not appear to be anything to prevent a person who obtains a contract from the United States to carry the mails from agreeing that he will do so as the agent of another. And the evidence in the case was abundantly sufficient prima facie to show, as already suggested, that the defendant, in making the contract, did it on behalf of the plaintiff, and that he was used for that purpose to facilitate the execution of the bond and the giving of the security required by law. The theory, therefore, upon which the referee declared that he was not the agent was one of law and not of fact. ’ He certainly was influenced by the proposition that, haviiig taken the contract in his own name, he was not the agent of the plaintiff for that purpose.
    “An application to amend was made to the referee, and the amendment designed in form and substance to allege that the defendant made and entered into the1 contract to carry the mails, as already stated, and that the plaintiff carried the mails in fact, and performed all the service required by the contract for him, and that in consideration of such service it was agreed that, of the moneys to be received from the United States under the Contract, the plaintiff should have ninety-seven and one-half per cent and the defendant the remainder, to wit, two and one-half per cent, and no more.
    “ The effect of these allegations was to change in name the alleged relations of the plaintiff and the defendant, but not to change the claim ; in substance that was the same in effect. In the' original complaint the defendant was to have two and one-half per cent for his agency. By the amended complaint the plaintiffs were to receive for their services all but two and one-half per cent of the amount received from the government, so that the claim was not changed in substance; it was a change in the form of stating it merely. The learned referee seems to have regarded the amendment as such an entire change of the action as is prohibited by law, and to have refused to allow it to be made on the ground of a want of power. We entertain no doubt of the power. (Smith- v. Rathbun,,' 75 N. Y., 122 j Hatch v. Central Nat. Ba/nk, 78 id., 487; Harris v. Tumbridge, 83 id., 487.) He said the amendment changed the action from one for money had and received, to an action for work, labor and service performed by the defendant at its request. This is true, but it is a matter of form only. The amendment does not substantially change the claim. The claim is the same whether it be urged against the defendant as an agent, or for services rendered, in both aspects arising as it does under the same contract, which forms the basis of the claim' that such contract was obtained by the defendant on behalf of the plaintiff as its agent. It rests upon the evidence which was given, and can be formulated out of it. The fact found by the referee, namely, that the mail service was accomplished by the plaintiff, is a strong item of evidence on jfche subject. If the referee had denied the application to amend in the exercise of his discretion, we doubtless could not have interfered with it; but it was not so disposed of, as already suggested, but from a want of power to allow it.”

      George H. Aclams, for the appellant.

      John Sessions, for the respondent.
   Opinion by

Brady, P. J.;

Daniels, J., concurred.

Present — Brady, P. J., and Daniels, J.

Judgment reversed and amendment allowed, with costs of appeal to abide the event. If, however, the amendment be such in its effect as to destroy all the defense and the defendant withdraws his answer and declines to answer anew, then it is to be allowed only upon the payment of the costs of the action.


text:
    In the Matter of the Final Accounting of HORACE GRAY and Others, Executors, etc., of RICHARD WARREN WESTON, Deceased.

      Executors — what time is allowed them within which to sell and dispose of the securities of the testator —• when they are changeable with moneys expended by them in paying off incumbrances on the testatoi'’s real estate — Allowances by the surrogate should not exceed, $2,000 in all.

    Appeal from a decree of the surrogate of the county of New York.
    The appeal was taken by the children of the testator, from the decree settling the accounts of the respondents, as executors.
    The testator directed the executors to convert all the rest, residue and remainder of his estate, real and personal, except particular portions otherwise disposed of, into money, and to divide the net proceeds into three equal shares, one of which he gave and bequeathed to them in trust, with power to invest and keep the same invested in bonds or securities of the government of the United States, whereof the interest was payable in gold, or in such other securities as to them should seem most for the benefit of the fund designed to be created, and to apply the interest, income and profits of such share to the use of his son Warren, until he should attain the age of twenty-five years, and then the share was to be paid over and transferred absolutely to him. The other two shares were in like manner directed to be invested and held in trust, one for the benefit of each of his two daughters during her natural life. In case of the decease of the son under the age of twenty-five years, and upon the expiration of the life estates provided in trust for his daughters, the testator made other dispositions of this property, which are not required to be considered in the determination of.this appeal, for they have no particular bearing upon, or appliation to, the points controverted by the parties. These points relate to certain acts of the executors in the administration of the estate, and to their failure to convert certain assets into money, under the power invested in them by the will.
    .The executors, were required, as soon as might be after the decease of the testator, to pay and discharge all his just debts. He died on the seventh day of May, 1873, and they received their letters testamentary on the tenth of the following month.
    The court at General Term said : “ One of the principal subjects of controversy related to the shares of the St. Louis and Iron Mountain Railroad Company. These were 1,500 in number, 1,000 were found among the papers of the testator, and the other 500 were, as has already been stated, in the hands of his brokers, Ward, Campbell & Co. These shares in 1872, brought the sum of $102 each in the market, but at the time when the executors were appointed, their market value had fallen to the price of eighty dollars a share. Their value continued from that time until February, 1874, to be upon a descending scale.
    “ At that time the price advanced to the sum of sixty-seven dollars a share, but it soon fell off again, and in June, 1874, a year after the executors had received their appointment, the price had decreased to fifteen dollars a share. For this decrease, resulting in a large loss to the estate, it was claimed that the. executors had become responsible, and that they should be charged to that extent by the surrogate. But he, as well as the auditor, took a different view of this subject, and rejected the claim. The position taken in its support was that the executors had been peremptorily required to convert these shares as a part of the residue and remainder of the estate into money, and having failed to do so they had become liable for the loss. But while this direction was given in the will, ho time was specified in which the conversion of the shares into money was required to be made. That was accordingly committed, therefore, to a certain extent, to the discretion and good judgment of the executors. In exercising this authority they were necessarily required'to consider the purposes, and objects designed tobe promoted by the conversion of the estate into money, and that was that it should be divided and invested as the testator directed it to be done for the benefit of his children. It was not intended that any exercise of discretion should indefinitely postpone the making of this change in the testator’s property, but within the limits which it might be discreet and advisable to adopt, the testator left his personal representatives to follow their own judgment; and for conforming to that in good faith, when the legal limits within which it could be exercised were not transcended, the executors would not be liable. The testator selected for these officers three of his well known and trusty friends, whom he made legatees under his will. Two of them had been his business partners, and they all appear to have been in a peculiar degree the recipients of his confidence. The trusts reposed in them were confidential in their character, and required experience, intelligence, fidelity and good judgment for their proper performance; and in carrying these shares the executors consulted others whose judgment and conclusions would be generally considered reliable and safe, and at the same time they themselves deemed it to be the only judicious and proper course that presented itself for their adoption. The circumstances under which they acted in this respect were also peculiar. The stock had fallen very considerably in value while it was held by the testator himself, and he did not, because of that circumstance, lose his confidence ■ in it and consider it proper to sell it. On the contrary, a memorandum left by him with the 1,000 shares, indicated it to be his judgment that they might be safely held. After his decease this downward tendency in the price continued to characterize the market value of the stock, and on the 18th day of September, 1873, what has been often designated as the great financial panic, or business crisis, occurred, seriously depressing the saleable value of this species of securities. This was but a little more than three months after the executors had received their letters, and to this time surely there had been no such default on their part as, under the direction given to them, would render them responsible for the loss sustained on this stock. And after that it was the part of prudence to hold the stock for some anticipated improvement in its value. That improvement did come in February, but not to such an extent as to convince the executors that it was their duty to sell, or that the interests of the estate would be promoted by such a disposition of this property. They accordingly held it for further advances, but which, however, they failed to realize, for the market again fell off until in June the shares would sell for no more than fifteen dollars each. In this state of affairs it cannot be held that the executors acted improperly, for their conduct was such as prudent, cautious and intelligent business men would have deemed to have been proper if they had been managing their own personal affairs. And in the absence of any mandatory direction depriving the executors of this authority, it was their duty to exercise it, and for such an exercise of it no liability on their part for this loss can legally be held to have arisen. The legal measure of the executors’ liability under such circumstances has been the subject of frequent consideration in courts of justice, and where they have not delayed their action beyond the period which it has been deemed prudent to adopt as a proper measure of legal restriction, they have been exonerated from liability for losses which have resulted to the property committed to them, when it appeared, as it does in this case, that they carefully and attentively retained it because it could not be discreetly or judiciously sold. {Thompson v. Brown, 4 Johns. Ch., 628; Buxton v. Buxton, 1 Mylne & Cr., 80; Davenport v. Stafford, 14 Beav., 319; Lansing v. Lansing, 45 Barb., 183; Kvng v. Talbot, 40 N. Y., 76 ; Marsden v. Kent, 5 Ch. Div. L. R., 598; Pinchará v. Woods, 8 Grat., 140 ; McCabe v. Fowler, 84 N. Y., 314.)
    “ But the exercise of this measure of discretion, and the protection afforded by it to the executors, must necessarily be limited in point of time, and in the English courts the proper boundary for it has been usually considered to be the period of one year {Bate v. Blooper, 5 De Gex, M. & G., 338; Morgam, v. Morgan, 14 Beav., 72, 89, 91; Hughes v. Ernpson, 22 id., 181; Wightwicie v. Lord, 6 H. L. 217, 226), where the House of Lords considered this to be the proper measure of such a restriction.
    “ This rule, however, has not been universally applied, for in the case of Buxton v. Buxton .a delay of one year and seven months in making a sale was, under the circumstances, which were peculiar,, considei’ed not to render the executor chargeable for the loss occasioned by it. And. in Mcvrsden v. Kent, fifteen months was, for a like reason, not regarded as an inexcusable length of time. In this State, while an executor may render his account after one year from the date of his appointment, he is not obliged to do so before the expiration of eighteen months. After that time he may be compulsorily required to account, or proceedings for that purpose may be taken at his own instance. (3 R. S. [6th ed.], 99, § 63 ; Id., 101, § 73; Id., 103, § 85.)
    “ And it has been suggested .that, under these provisions, executors are not chargeable for omittiug to sell the estate committed to their hands for that purpose, when they do not delay the sale beyond this designated time. But it is not necessary here to hold that such a legal consequence must result from the provisions of the statute, although they may be attended with a fair, implication of that character. For even under the English rule, as it has generally been applied, limiting the time within which the executors may exercise their discretion over this subject to one year, they could not be rendered liable for the loss sustained by the depreciation of .this stock. For while it did not in that time descend to its lowest figure, which was the sum of ten dollars a share, in September, 1874, it afterwards appreciated and advanced to the price of twenty-two dollars a share, and it continued to be of that value to the 25th of April, 1879, when the hearing before the auditor was closed. The estate, consequently, has lost nothing by the omission to sell the stock since June, 1874. * * *
    “ The testator owned the undivided half of about sixty-five acres of land, with a residence upon it, situated at Dobbs Ferry. This was obtained by himself and Gray, one of the executors, from a creditor, at a nominal cost to the parties of about $225,000. It was subject to two mortgages, one for $4,000 and the other for $50,000. This undivided interest was not sold by the executors because of the difficulty, if not the impracticability, of finding a person who would purchase it. And the property was accordingly retained down to the year 1877, when the proceedings for the accounting were instituted. The estate may not have been subjected to loss by the mere omission to sell this property, for it did not certainly appear that any actual loss had been created by that circumstance. But during the time the executors held it, these mortgages were paid off, the smaller one in June, 1873, and the larger one in June, 1877, and the sum of $27,000' of the funds of this estate were used in making such payments. The debts secured by these mortgages was neither of them obligations existing against the testator. They were simply charges upon the property -itself, the payment of which he does-not appear in any form to have assumed. The executors, therefore, could not use any portion of his estate to extinguish these incumbrances under the clause in the will directing them to pay the testator’s debts. "What they had to do with this property, and all they had to do with it, was to convert it into money. That was the clear and. unambiguous direction contained in the will. No authority of any different character was given to them concerning this property, b.ut their sole and simple duty, as the testator defined it, was to sell it. But that they wholly failed to do, and in addition to these payments made to relieve the estate from the mortgages, they paid in the way of expenses for taking care of, insuring and preserving, and for taxes upon it during the years 1873,' ’74, ’75, ’76, ’77, the aggregate amount of $12,576.90. Of this amount, $5,133.93 was paid during the fiz’st eighteen months of their administration, and in which some sale of this place ought justly to have been made. And if that should be allowed to the ■executoz’s for the cost of keeping the pznperty during that period of time, it will still leave a loss to the estate of $7,442.97 for expenditures made on account of this pz-operty after the year of 1874. . For this expenditure no authority, .either express or implied, was given to them by the terms of the will. They were simply required to pay the testator’s debts, and convert this, as a part of his residuary estate, into money. And as instruments • of this nature are required to be construed, that did not authorize them either to pay off the mortgages upon this propez-ty with the funds of his estate, or to make these expenditures for the purpose of keeping it on hand. Good faith in these respects will not protect them, for what they did exceeded their authority. They had no right to •appropriate the funds of the estate in that manner; and even though they may have done so, as they probably did, with the best intention, expecting in that manner to realize pecuniary advantages to the testatoz’’s estate, as the result pznved to be an adverse one they are not entitled to pz’otection. In Albany Fire Ins. Co. v. Bay (4 Oomst., 9), it was held that a power to mortgage lands could not be iznplied from a power to sell. And applying a like principle and diz’ection in this case, would exclude the power either to pay off these mortgages or to make these expenditures; for in doing so the executors were neither paying the debts of the testator nor converting his property into money. They transcended the authority given to them, and necessarily imposed the consequences of their expenditures upon themselves. (.Ackerman v. Emott. 4 Barb., 626; King v. Talbot, 40 N. Y., 76; Adair v. Brimmer, 74 id., 539 ; Rinqqóld v. Rinqqóld, 1 Harris & Gill, 11: Heinemann v. Heard, 50 N. Y., 27.) * * _*
    “ The diversion of the funds of the estate to the payment of these mortgages, and defraying these expenses being unauthorized by the will, the amounts so diverted should be charged against the executors, subject to their right to reimburse themselves out of the proceeds arising from the sale of this undivided interest, to the extent of one-half of the actual incumbrances upon the property and the amounts paid out upon it in the years 1873 and 1874. That reimbursement should be allowed to them, for the reason that the mortgages were legal incumbrances upon the property when it passed into their hands, and the expenses paid by them in 1873 and 1874 were for the extinguishments of demands arising within the period of eighteen months, during which this property should have been sold after the letters testamentary had been issued to.them.
    “ By the decree the surrogate allowed the counsel for the executors the sum of $7,500 -as a reasonable counsel fee. And to the counsel representing the present appellants a like allowance of $1,000 .was made. And to the guardian ad litem of the infant party an allowance of $2,000 was made. The propriety as well as the legal right to make these allowances is brought before this court by the appeal, for it has been taken without qualification from -the entire decree. (Noyes v. CMldren’s Aid Society, 70 N. Y., 481, 485.)
    “They weré made upon the authority of the Laws of 1870 (chap. 359, § 12), and while that was in terms repealed by the Laws of 1880 (chap. 245), the repeal was so far qualified as to render it inapplicable to this proceeding. (Laws 1880, ch, 245, pp. 373, 375, subd. 5.)
    “ But as this section of the act of 1870 has been construed, it has been considered as subordinate to the subsequent statutory provisions declaring that the allowances shall not exceed the sum of $2,000 to any party, or to all parties, if more than one, on either side. (Code of Proc., § 309.)
    “ TMb prohibition has been held applicable to the Surrogate’s Court of the county of New York. (Down v. McQourkey, 15 Hun, 444; Hv/rd v. Warren, 16 id., 622.)
    “ And these authorities have been followed in the disposition of a more recent case not yet reported. And it would clearly involve an inconsistency of construction if this restraint should be required to be observed by other courts, and not be operative upon that of the surrogate. But even if such an inconsistency should be sanctioned as a matter of discretion, the restraint prescribed by the legislature for the purposes of all other classes of litigation should be applied as equitable and proper to cases disposed of- before the ¡surrogate. These allowances in- neither view can be .sanctioned. 'They are without authority and entirely improper.

      George PL. Foster, for the appellants.

      Aaron L^ennington Whitehead and John Fuer, for the respondents.
   Opinion by

Daniels, J.;

Brady, J., concurred; Davis, P. J., taking no part.

Decree modified as directed in opinion, and affirmed as modified, without costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN MOHR, Respondent, v. THE BOARD OF POLICE COMMISSIONERS, Appellant.

      Police commissioners — power of; to try, and remove members of the force — the testimony must be taken before at least one of the commissioners who unite in the removal.

    Appeal from an order of the Special Term, reversing the action ■of the commissioners, and reinstating the relator.
    Charges were made against the respondent of conduct unbecoming .-an officer, and they were investigated on December 31,1879, before Charles F. MacLean, then one of the police commissioners of the city of New York. The board of police commissioners, however, did not act on the charges and the proceedings consequent upon them until April of the following year, when, at a meeting of the commissioners, the board, then consisting of Messrs. French, Wheeler, Yoorhis and Nichols, Mr. MacLean being no longer a ■commissioner, the relator was removed.
    On his application made at the Special Term, this determination ■of the board was annulled, and he was reinstated. From the order ■declaring such resfilt this appeal is taken.
    The court at General Term said: “We have held that the ¡examination may be conducted in these matters before one commissioner, and submitted by him to the others; but we have not declared in any case that the testimony may be taken before a commissioner and a removal had after he shall have Ceased to be a member of the board, and therefore by commissioners none of whom participated in the investigation or trial. We went far enough when it was declared that one commissioner might take the testimony. We think it would be a violation of the statute conferring the power of investigation or trial and removal, to hold that it could be done by commissioners, neither of whom actually participated in the investigation, and neither of whom knew anything about it or its incidents, except what could be derived from the minutes of the proceedings which took place before a person who, at the time of their action, had ceased to be one of their body. It is essential that at least one of the commissioners acting upon the charges shall be present during the investigation of them, so that a part of the tribunal shall have participated in the trial.”

      Frank A. Irish, for the appellant.

      Douglas A. levien, Jr., for the respondent.
   Opinion by

Brady, P. J.;

Daniels and Barker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Per Curiam.

text:
    JACOB MACK and Another v. JACOB COHN, Impleaded, etc.

      Attorney — when he is not liable to punishment for a failure to pay costs awarded against him.

    Application for the punishment of Charles S. Schampain for the non-payment of costs awarded against him, on the determination of an appeal from an order.
    The order from which the appeal was taken, denied a motion made for an order requiring Schampain, as an attorney, to deliver to the substituted attorney succeeding him, a copy of the entries in the register kept by him, showing substantially what had taken place in the progress of the litigation up to the time of the substitution. From this order an appeal was taken to the General Term, where it was reversed, and the order applied for by the motion was made. This determination was made “ with ten dollars costs and disbursements for printing on this appeal to be adjusted.”
    The court at General Term said : “ This was all the adjudication made on the subject of costs against the attorney, from whom the information to be supplied by the entries in his register was sought. And it was no more than the usual award of costs against an unsuccessful party to a legal proceeding. There was no adjudication that the costs were intended to be imposed upon him for any misconduct on his part as an attorney or counselor of the court. But for the reason that he had been unsuccessful in his efforts to sustain the order denying the motion, he was required to pay the ordinary costs following that result. lie did not misconduct himself in endeavoring to sustain the order. He was entirely justifiable in so doing, by the order which had been made in his favor, from which the appeal was taken. And the adjudication made by the court in reversing the order contains no intimation that either his refusal to furnish a copy of his entries or such resistance to the appeal was, in any respect, considered to be improper. In this respect the case very essentially differs from that of Matter of Kelly (62 N. Y., 198), where the attorney was required to pay the costs of the proceedings .because they had been prosecuted with improper motives. This adjudication brought that case within the latter clause of paragraph 15 of the Code of Civil Procedure. But without it the preceding part of the section is applicable, declaring that ‘ a person shall not be arrested or imprisoned for the non-payment of costs awarded otherwise than by a final judgment, or a final order, made in a special proceeding instituted by a State writ.’ This was not so instituted, and as no actual misconduct could be affirmed simply' from the effort made to sustain the order from which the appeal had been taken, the attorney is not liable to personal arrest or punishment for the failure to pay the costs and disbursements-' .recovered against him.
    “ The authority already referred to sustains that view, and the cases of EUis v. Biee (77 N. Y., 610), and Fischer v. Badb (81 id., 235), are also to the same effect.”
    The motion made must accordingly be denied, with ten dollars costs.

      Benno Loewy, for the motion.

      Isaac D. Egbert, for Schampain.
   Opinion

Per Curiam.

Present — Brady, P. J., Daniels and Barker, JJ.

Motion denied, with ten dollars costs.


author: Ingalls, J.;

text:
    THE MARKET NATIONAL BANK OF NEW YORK, Appellant, v. THE PACIFIC NATIONAL BANK OF BOSTON, Respondent.

      Judicial notice —a court or judge cannot take judicial notice that a bank located in a foreign State is insolvent.

    Appeal from an order vacating an attachment, and from an order resettling such order.
    The papers upon which attachment was granted showed that the défendant was a foreign corporation, and the attachment appears to have been granted on that ground •; the papers also contained the following statement: “ That deponent is informed that the defendant is in embarrassed and failing circumstances, and so believes.” The order, as resettled nunc fro Pune as of the date when the same was made, was made to read as follows: “ A warrant of attachment having been granted by me on the 19th day of November, 18S1, in the above entitled action, against the property of the defendant, and the said warrant having been granted inadvertently, the fact being then judicially known to me that the defendant, a national banking association, had suspended payment and was insolvent, and application having been made to me to Vacate said warrant of attachment ; now, therefore, due notice having been given to the plaintiff’s attorneys, and they having appeared before me, and being duly apprised of the inadvertence under which said warrant was granted,. and of the judicial knowledge possessed by me of the insolvency of said defendant, and the fact of such insolvency not being controverted, the said warrant of attachment, granted by me on the 19th day of November, 1881, on the part of the defendant herein is hereby discharged, vacated and set aside.”

      The court at General Term said: “ This order purports to resettle the order granted January 20, 1882, and- consequently must rest upon the facts substantially as they were presented to the judge when he vacated the attachment; otherwise, under the pretense of resettling an order, a new motion would be entertained, and another order substituted based upon additional facts. W e are convinced that the learned judge, in vacating the attachment, relied upon public rumor in regard to the pretended insolvency of the defendant, as such fact was not disclosed by the papers or in any reliable form upon which the attachment was granted, and no such ground was relied upon. Indeed the orders, in effect, support this view, and the question is therefore presented, whether judicial notice can be taken by the court, or by a judge thereof, that a bank located in a foreign state is insolvent or in failing circumstances, and base upon such information an important decision. We have not been able to - discover an adjudication which extends the rule of evidence in this respect far enough to sustain the orders in this case. To justify a court or judicial officer in acting upon knowledge or information thus acquired, it can only be in regard to a matter which has become notorious, and of general public interest and concern, and not in regard to a transaction, custom or event of mere local or private interest, possessing little notoriety. (Smith v. Miller, 43 N, Y., 1T1; Slater v. Jewett, 85 id., 63, 68; Agawam Bank v. Strever, 18 id., 502; Porter v. Waring, 69 id., 250.)

      Abram Wakeman, for the appellant.

      F. R. Qoudert, for the respondent.
   Opinion by

Ingalls, J.;

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

Orders reversed, with costs and disbursements, but without prejudice to any proceedings of defendant to modify or vacate attachment.


author: Davis, P. J.

text:
    Euphemia S. Coffin, Respondent, v. Jane L. Brooks, Appellant, Impleaded, etc.
   Judgment modified, and affirmed as modified, without costs. Opinion by

Davis, P. J.


author: Ingalls, J.

text:
    Adelaide M. Thomson, Appellant, v. Patrick Cashin and others, Respondents.
   Judgment and order affirmed, with costs. Opinion by

Ingalls, J.


text:
    The Mechanics’ and Traders’ National Bank, Appellant and Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York and others, Respondents and Appellants.
   Judgment affirmed, with costs. Opinion by

Ingalls, J.


text:
    Mary Martin and others, Appellants, v. Catharine Martin, Respondent, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Ingalls, J.


text:
    Marie Dold, Plaintiff, v. George A. Haggerty and others, Defendants.
   Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements. Opinion by

Ingalls, J.


text:
    Marcus Fleischauer, Respondent, v. John F. Doellner, Appellant, Impleaded, etc.
   Judgment and order affirmed, with costs. Opinion by

Ingalls, J.


author: Daniels, J.

text:
    John Riegelmann and others, Appellants, v. Rosina Riegelmann, Individually and as Executrix, etc., of John Riegelmann, Deceased, and others, Respondents.
   Decree reversed; order entered as directed in opinion. Opinion by

Daniels, J.


author: Brady, P. J.

text:
    The People of the State of New York ex rel. John J. McCarthy v. The Board of Police.
   The relator must be restored. Ordered accordingly. Opinion by

Brady, P. J.


author: Brady, P. J., and Daniels, J.

text:
    In the Matter of Salome Loew to Vacate an Assessment, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinions by

Brady, P. J., and Daniels, J.


text:
    In the Matter of John R. Voorhis to Vacate an Assessment.
   Order affirmed, with ten dollars costs and disbursements. Opinions by

Brady, P. J., and Daniels, J.


text:
    David B. Duncan and David Duncan, Respondents, v. Isaac B. Guest, Appellant.
   Plaintiffs should be required to elect between the attachment and the order of arrest. If the plaintiff declines to make this election within ten days after the entry and service of the order to be entered herein, then the order appealed from is discharged. If the election be made of the order of arrest it will,be affirmed, otherwise it is reversed, no costs to either party. Opinion by

Brady, P. J.


author: Brady, J.

text:
    Florence M. de Meli, Respondent, v. Henry A. de Meli, Appellant.
   Orders affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Francis E. Burrows, Plaintiff, v. Nathaniel K. Thompson, Defendant.
   Judgment affirmed, with costs. Opinion by

Brady, P. J.


text:
    In the Matter of William Doll, an Attorney, etc.
   Application dismissed, without costs. Opinion

Per Curiam.


text:
    Algernon S. Sullivan v. The Remington Sewing Machine Company.
   Motion to resettle denied.


text:
    James B. Irwin v. Denis J. O’Connor and another.
   Judgment

. modified as to defendant Annie A. O’Connor by directing a dismissal of the complaint in her favor, without costs, and the final judgment as to Denis J. O’Connor reversed and the case referred to another referee to take proof and make the computation required under the contract of the parties; no costs to either party. Opinion by

Daniels, J.


author: Daniels J.

text:
    Lewis J. Phillips and others, Executors, etc., Respondents, v. Maria Davies, Appellant, Impleaded, etc.
   Judgment affirmed. Opinion by

Daniels J.


text:
    Maria Davies, Appellant, v. David Davies and others, Respondents.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    In the Matter of Stephen P. Russell, Jr.
   Order to be entered striking the name of Stephen P. Russell, Jr., from the roll of attorneys and counselors of the several courts of this State. Opinion

Per Curiam.

1


author: Boardman, J.: Learned, P. J.:

text:
    GEORGE H. WILLETT, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Evidence — statements of a prisoner made after his arrest— when they a/re admissible as having been voluntarily made — letters found in the prisoner’s possession — when they cannot be received in evidence against hint —failure of the accused to deny statements made by a witness before the coroner’s jury — when the fad of his silence will not authorise an inferenceofhis acquiescence in them.

    One Willett was arrested upon a charge of murder and taken to the district attorney’s office, where he had a conversation with Hotchkiss, a detective. Willett made a statement voluntarily and with knowledge that Hotchkiss was a detective. Thereafter at a second and third interview the prisoner made similar and further statements, those of the third interview being reduced to writing and signed by him. On the second and third occasions he was told by the dis trict attorney that he need not make the statements unless he was willing to do so; that if he was innocent he did not see that it would do him any harm; that if he was guilty it would probably be used against him and that it might hang him.
    Held, that the statements were voluntarily made and were properly admitted in evidence upon his trial.
    That where there is no conflict in the evidence as to the circumstances under which such statements were made, the admissibility of such statements should be decided by the court and not be left to the jury.
    Semble, that the rule is the same even when the evidence is conflicting.
    Upon Willett’s arrest letters were found in. his trunk from the deceased and also from the sister and the daughter of the deceased, which tended to show that the writers of them knew that improper relations had existed between Willett and the daughter. No letters from Willett in answer to, or calling forth the said letters were produced or proved to have been written.

      Held, that the court erred in allowing the letters to be received in evidence against the prisoner.

      It seems, that the letters might have been received for the sole purpose of showing that Willett had notice of the statements therein contained, as bearing upon the question of motive, but that they could not be admitted as evidence of the truth of the facts stated. (Per Learned, P. J.)
    A witness, upon being examined before the coroner’s jury, testified that, on the night of and shortly after the murder, a stranger called at her house and asked the way to Sandy Hill, and also for a glass of water. In order to test the memory and correctness of the witness, the prisoner and a number of strangers were placed around a room, and the witness upon being asked to pick out the individual she saw at her house that night, designated the prisoner. She was then seated, and a number of persons passed behind her in such manner that she could not see them, each one repeating the question as to the road to Sandy Hill and asking for a drink of water. The witness again recognized the prisdner by his voice. In neither instance did he deny that he was the person she saw that night. Upon the trial these experiments were admitted in evidence upon the theory that from the prisoner’s silence at that time the jury might infer the truth of the witness’ statement that he called at her house that night.

      Held, that the prisoner was under no obligation to deny the truth of the statement made by the witness before the coroner’s jury, and that the court erred in admitting the evidence. * ■
    "Writ of error to the Court of Oyer and Terminer, in Warren county, to review the trial and conviction of the plaintiff in error of murder in the first degree, and also an appeal from the judgment, entered upon the said conviction.

      Hughes c& Horthrup, for the plaintiff in error.

      H. A. Howard, district-attorney, and John L. Hill, for the defendant in error.
   Boardman, J.:

The prisoner was convicted of murder in the first degree on the 10th day of October, 1881. The Code of Criminal Procedure took effect September 1, 1881. (Sec. 963.) But as this indictment was found and proceedings were had therein prior to that date, all further proceedings must be conducted as if the Code had not been passed. (Sec. 962 of the Code of Crim. Proc.) Hence this review must be made by virtue of, and under, the writ of error allowed by the learned justice who presided at the trial, although for safety an appeal was taken on behalf of the prisoner under the Code of Criminal Procedure. The trial occupied the attention of the court for about three weeks. The return to the writ of error contains nearly 3,000 folios, notwithstanding, as we are advised, much of the evidence has been omitted. It would be strange if, in the course of so long and exhausting labors, the trial court should not have committed some one or more errors, and learned counsel are always ready with innumerable objections and exceptions to secure a vantage ground for future use in case of disaster. Under the Code of Criminal Procedure (§§ 542, 684), technical errors or defects, or exceptions, not affecting the substantial rights of' the parties, will be disregarded' if the language of the legislature shall be followed by the courts. By such a rule the great mass of these exceptions would go for nothing,- as purely technical and in no rational way affecting the verdict or the rights of the prisoner. But judges may, in the future, disregard the power evidently intended to be given by the legislature for the more sure and effectual administration of criminal law and hold, as now, that no exception, in a capital case, is too trivial to receive the wise and careful consideration of the court of review, if by possibility it might have had an influence upon the minds of the jurors or affected their verdict: “A tender regárd for life and liberty ” may^ constrain courts to protect prisoners from the verdicts of juries, where, by possibility, such verdicts may have been influenced by errors in the admission or rejection of evidence. In such case the guilt or innocence of the accused, the actual or probable effect of the erroneous rulings, the exceeding difficulty of attaining such absolute degree of accuracy as shall satisfy the intellect of all appellate courts and judges, all these considerations will be disregarded and the administration of criminal law will continue to be reproached with its weaknesses, its delays, its inefficiencies and its evasions of justice. The rights of the people, their lives and the safety of their persons and property, are entitled to be looked after with as much tenderness and respect as the lives and liberties of criminals, under the verdict of juries. Every judge, who has had experience in the trial- of causes, knows how many and how difficult are the questions constantly arising which he must decide with a moment’s reflection only. He who tries a cause, better than any other, knows that the administration of justice is not always attained by absolutely accurate means! Public opinion recognizes as the truth, that learned and devoted counsel, abundant means, or warm and efficient friends, will enable a criminal to escape his just judgment, while his poor and friendless brother in crime is promptly tried, convicted and punished.,

Upon the evidence produced upon this trial the guilt of the prisoner must be assumed. The person who shot John B. Pair was guilty of the crime of murder. That is conceded. The evidence embraced in the return tends very strongly to show that the prisoner was in the immediate vicinity at the time of the murder; that he had the instrument by which it might have been done; that he had an adequate motive; that the relations between him and the dead man were unfriendly, and that his appearance, conduct and declarations after the murder furnished evidence of his guilt. If, then, no errors were committed, if the prisoner’s counsel has taken no valid exceptions to the rulings and decisions of the court during the trial, the conviction must stand.

Not long after the murder the prisoner was arrested and carried before the district attorney and into his office. A conversation was there had between the prisoner and detective Hotchkiss, in which the former gave the details concerning his coming from Chicago to Port Edward and G-lens Palis. That statement was voluntary and under no influence calculated to induce false statements. The prisoner was told by Hotchkiss that he was a detective and would like to have a talk with him if he had no objection. He said, all right, he-had none. He knew who Hotchkiss was and what he wanted, namely, to get out the facts as far as he could. No inducement or promise or encouragement was held out to him. He was not urged to tell, but did it as willingly and freely as was possible. It seems clearly covered by People v. Wentz (37 N. Y., 303); Kelley v. The People (55 id., 571); Murphy v. The People (63 id., 596, 597).

At a second and third interview the prisoner made similar and further statements, those of the third interview being reduced to writing and signed by him. On these occasions the district attorney was present and used on the second occasion this language:. “ That he need not make that statement if he was not willing; that if he was a guilty man it might hang him as it would probably be used against him.” The prisoner replied he had no objection to making the statement and thereupon made it. On the third occasion, when the statement was reduced to writing and signed, the district attorney said “ that he need not make this statement if he did not choose to, was not perfectly willing, and that if he was guilty he better not make it, because it would be used in evidence against him, and perhaps he better not make it, or words to that effect, and if he was an innocent man he could-not see that it would do him any harm, but if he was guilty it might and would be probably used in court againt him.” The prisoner expressed his willingness and desire to make this statement. The statement was thereupon made, reduced to writing, and after being read over to him signed. In the body of the statement, at the end of it, is this language : “ I have made this statement voluntarily and- of my own free will, and after having been written down it has b,een carefully read over to me and I find it to be true in every particular.”

These statements were objected to as incompetent and inadmissible under the circumstances, because involuntary and under the duress of arrest, etc. The objection was overruled and an exception was taken. If the statements so made were incompetent and they were wrongly received as evidence, the conviction must be reversed, because the evidence so submitted for the consideration of the jury was very important and must have had an important bearing on the verdict.

The important question to be decided was, whether the prisoner voluntarily and of his own free will made the statement ? If he was advised or induced, or frightened into the act, the evidence was not competent.

It must, however, be observed that the declarations proved were not confessions of guilt but assertions of innocence, from which, in connection with other evidence, inferences of guilt may be authorized. ■ The declarations may, therefore, more readily be believed to have been voluntary.

It would be a useless labor to examine the many cases touching the admission or rejection of this kind of evidence. It would be difficult in many cases to reconcile them. Wharton, in his work on Criminal Law (§ 685), says the settled law may now be held to be, that confessions made, even to constables or police officers, cannot be excluded, unless it appear that there was a threat of harm or a promise of worldly advantage employed by an authoritative person.” So in many cases that might be cited, such evidence has been rejected when drawn out by expressions like these: You had better tell the whole truth; if you are guilty it will be better for you to say so; if you make any disclosures I will do what I can for you (Com. v. Taylor, 5 Cush., 605); it will be the worse for you if you do not confess; I can do nothing for you unless you tell all you know (Rex v. Partridge, 1 Car. & Payne, 551). The counsel for the prisoner relies much upon Regina v. Drew (8 Car. & Payne, 140; 34 E. C. L. R., 654). But that case was overruled by the Court of Criminal Appeal (Reg. v. Baldry, 2 Den. C. C., 430; S. C., 5 Cox C. C., 523), after a very full and careful discussion of prior decisions. The decision in Baldry’s case (12 Eng. L. and Eq., 591), made in 1852, has continued as authority to the present time. There the officer said to the prisoner, he need not say anything to criminate himself ; what he did say would be taken down and used against him.” (Earle, J.) Unless there was a threat or a promise to induce it, the confession ought not to be excluded. He adds: “ In many cases where confessions have been excluded, justice and common sense have been sacrificed, not at the shrine of mercy, but at the shrine of guilt P All the judges held that the language used was not a threat and did not promise any advantage or harm. The language is very like that used in the present case, and it is not apparent how a threat or inducement can be inferred in the one case and not in the other. The authorities are very fully reviewed in 1 Wharton’s Criminal Law (§ 685, etc.), and leave little doubt that the admission of the prisoner’s statement was correct.

There was no conflict of evidence concerning the language used by Hotchkiss and Howard before the statements of the prisoner were made; therefore it was the duty of the court to decide upon the admissibility of the evidence and not to leave that question to the jury. Such, doubtless, is the rule even where the evidence is conflicting. (Whar. Cr. Law, § 698.) Lord Campbell, C. J., in Reg. v. Baldry (supra), of this rule of law, says: “ If the matter were res integra, I should, perhaps, have doubted whether it might not have been advisable to allow the confession to be given in evidence and let the jury give what weight to it they pleased.” However the rule maybe the evidence was admitted, as we hold, properly for the consideration of the jury. If the court afterwards allowed the jury to reject such evidence, if they believed it was obtained by improper inducements, the court erred in the interest of the prisoner and against the people. Such an error is not available to the accused. The various statements of the prisoner were obtained from him freely and voluntarily, and they were competent evidence.

On the night of the murder a stranger came to the house of Mrs. Wing, about four and a-half miles from Glens Falls, at about eleven o’clock at night, and asked the way to Sandy Hill and also for a glass of water. Mrs. Wing was called before the coroner’s jury and identified the prisoner as the person she saw that night as she believed. During the pendency of the proceedings before the coroner and in his presence, and in the presence of the jury, certain experiments were tried to test the memory and correctness of Mrs. Wing in such identification. The prisoner and a number of other strangers were placed around a room and Mrs. Wing was brought in and asked to pick out the individual she saw at her house that night and she designated the prisoner. Again she was seated so as not to see the persons who passed behind her, each one repeating the expression as to the road to Sandy Hill and asking for a drink of water, and she was asked to detect, if she could by the voice, the person who used the same language on the night after the murder at her house. Mrs. Wing recognized the prisoner by his voice under such circumstances. In neither instance did he deny that he was the person she saw that night. These experiments so made were admitted in evidence upon the trial upon the theory that his silence might be the basis in the minds of the jury for inferring the truth of Mrs. Wing’s assertions ;■ that it was his duty to deny them if not true, and if he did not his silence might be construed against him. It may be inferred, as is said by the judge in his charge, that the proceedings before the coroner’s jury during these experiments were informal, still the prisoner was under arrest as the murderer and the inquest was being taken to ascertain the cause of the death, by whom committed, and the experiments were made before the coroner and the jurors to ascertain what value could be placed upon the evidence of Mrs. Wing.

The court submitted to the jury to find, first, whether the prisoner understood that he was at liberty to speak if he chose; and, secondly, if he did so understand whether he ought to have denied Mrs. Wing’s statement at the peril of having his silence construed into an admission of guilt. A s has been already indicated the first proposition submitted to the jury was erroneous. That was a ques: tion to be decided by the court. But such submission did not harm the prisoner and is not, therefore, the subject of an exception. The evidence was in fact admitted. Was it competent? The answer depends chiefly upon the character of the experiments made. If they were made to affect the judgment and confirm the belief of the jurors in the evidence of Mrs. Wing; if they were given to corroborate and sustain the accuracy of her memory, the coroner and jurors being present and witnessing it to satisfy themselves thereby of her accuracy, then it would seem to be legitimately a part of a judicial proceeding or investigation. Such evidence was not admissible to sustain Mrs. Wing or corroborate her evidence. It could serve no purpose except as evidence of an implied admis.sion inferable from his neglect to deny Mrs. Wing’s statements made upon such experiments. Was her statement one of an absolute fact, or of her belief founded upon the prisoner’s appearance and voice. If the latter he was not called upon to deny, because it was doubtless true she believed what she said. But if we assume that it was the assertion of the fact that he was at her house, as stated, was the evidence admissible? It is conceded that it was not competent if a part of a judicial proceeding. The court upon the trial so indicated. Was the prisoner called upon to deny ? Did he suppose he was at liberty to deny ? What would his denial be beyond a denial of the accuracy of the result of the tests then made ?

The evidence shows the progress of a judicial investigation before the coroner, at which the prisoner was present'under arrest. The experiments were tried as aids to the discovery of the truth and to assist the- jurors in reaching a correct conclusion. The min utes of the evidence, taken at that time, contain also some of these details. Evidently it was treated by those present and was, in fact, a part of the proceedings, although somewhat informal by reason of the things being done. Doubtless the evidence so acquired was weighed and used by the jurors. So the prisoner might well and properly have thought that an interruption by him would be out of place and improper. In such case his silence was involuntary and furnished no evidence of acquiescence in the statements of Mrs. "Wing. (1 Green. Ev., § 197 and note, 215; Whar. Or. Law, § 696 ; Boscoe Or. Ev., 52.)

The conduct, demeanor and casual and free 'declarations of persons accused of crime are, however, competent and often cogent evidence against them. Such was the declaration of Houseman, the accomplice of Eugene Aram, affirming with confidence that certain bones accidentally discovered were not those of Daniel Clark, whereby he was suspected of having had something to do with the disappearance of Clark, and was afterwards brought to confess his crime. (Wills Circ. Ev., 68.) So in the case of Dr. Webster, who asked if they found the whole of Dr. Parkman’s body, thereby indicating his knowledge that it had been cut in fragments. (Bemis 1 Bep., 178.) The demeanor and appearance of the accused when being charged with the crime or upon trial, may often afford satisfactory evidence. (Bose. Or. Ev., 52; Burrill Circ. Ev., 502.) Still such evidence is generally of slight value and of little effect, and should be used by courts and juries with great caution.

But, pit seems to us, a more serious error was committed when the letters of third persons, found in the possession of the prisoner, weré admitted in evidence against him without proof that they were answers to letters of the prisoner or of his letters in answer to the same. Such letters are the declarations of third parties and, as hearsay, are not evidence of any facts. (Whar. Cr. Ev., §§ 644, 682; 1 Gr. Ev., § 124; Rex v. Plumer, Rus. & Ry. C. C., 264.) Indeed, the court held these letters were not evidence of any facts, nor were they claimed to be part of the res gestee. But they were received as evidence of information, which came to the prisoner and some evidence of how he understood things were. In other words, the letters were allowed to show the prisoner in possession of certain alleged fa^ts which might constitute a motive for his crime. These letters were all written some little time before the murder. Some of them were from Jennie Pair, a daughter of the deceased, one from Mrs. Terrialt, a sister of the deceased, with whom Jennie •staid a part of the time, and one from the deceased himself. In no case is there any evidence of letters from the prisoner to the various persons, to which these letters were answérs, nor that he answered them. Some of the letters of Jennie indicate the existence of a correspondence between her and George, but Ms letters are not produced, and the only knowledge of their contents are derived from Jennie’s letters. The letter of the deceased, as well as some' other evidence, leads us to infer that this letter was in answer to one from George to him, but the latter is not produced. There is no evidence of correspondence between George and Mrs. Terrialt. The letter of the deceased to George was written more than two months before the murder. It cannot be said, then, to be information upon which George acted. It may have been notice ■of the state of mind of John B. Pair, but it is not evidence of •that fact. So far as notice was necessary of such fact, it was abundant before George left for the west. There could be no •doubt of the existing hostility between them. So it was proving, by the written declarations of a third person, notice and motive which was capable of direct evidence.

The letter of Mrs. Terrialt is still less capable of being treated as evidence against the prisoner. It is possible that one of Jennie’s letters, in connection with the intercepted letter of George, may be •evidence of -the improper relations existing between them. But George’s letter is dated May 12, 1880, while Jennie’s, containing the same symbols, was dated October 11, 1880. Besides there is no evidence she ever saw his letter or knew its contents. She was a competent witness and could have been, put upon the stand to prove their impure relations. Perhaps she would have denied it. But that would scarcely be a reason why it might be proved by her written declarations. Hence, we conclude the letters of John B. Pair, Mrs. Terrialt and Jennie Pair were not competent evidence against the prisoner under the facts established. They are mere hearsay. (2 Whart. Law of Ev., §§ 1127, 1103, 1151; Smiths v. Shoemaker, 17 Wall., 630; Com. v. Eastman, 1 Cush., 189; Rex v. Horne Tooke, 25 How. St. Tr., 120.)

These remarks do not, however, apply to the letter of the prisoner addressed to Jennie Pair and intercepted. That is evidence, in the same manner as any other declaration, against him.

It is also-believed that-the learned judge erred in his instructions to the jury touching the inferences that might be drawn from the evidence furnished by these letters and the right or duty of the prisoner in respect thereto. In effect he left it for the jury to say whether certain inferences might be properly drawn from Jennie’s letter, and tells them the prisoner had a knowledge of his own letter, to which Jennie’s was an answer, and that, if he desired, he could give an explanation; “ that he had the right to produce that letter if in existence, or if not in existence he would have the' right, if in his power, to show what the letter contained. And in considering the letter from Jennie to him you have the right to take into consideration his knowledge of what the letter contained, and his ability to produce it or give its contents.”

This came very near saying that the jury might take into account the neglect of the prisoner to put himself on the stand to explain facts pressing upon him, and thereby creating a presumption against him. That would be in direct violation of the statute (chap. 678, Laws of 1869). (Ruloff v. People, 45 N. Y., 221, 222; Com. v. Harlow, 110 Mass., 411; Com. v. Maloney, 113 id., 213.)

We have reviewed such important questions as will necessarily arise on any future trial. Since, for the errors indicated, a new trial must be had, it is not deemed essential to examine the very many exceptions presented by the prisoner’s counsel. , Doubtless many of the points excepted to will not again be presented in objectionable form.

The conviction and judgment should be reversed and a new trial granted.

Learned, P. J.:

Concurring in the result of my Brother Boardman’s opinion, I am not willing to say that the letters found in the prisoner’s possession were not admissible solely for the purpose of showing notice to him of the statements therein contained; not as evidence of the truth of those statements. But as bearing on the question of motive it seems to me to have been proper to prove what statements had come to the prisoner’s knowledge which might excite his ill-will towards the deceased.

By the charge, however, the letters were made evidence of the truth of the statements therein contained or of matters thereby implied. Thus the letters found in his trunk are said to be proper evidence of the illicit intercourse. I do not think that is correct. A letter written to a man .charging him with wrong-doing is not evidence against him of the wrong-doing, even if he preserves the letter. But it might show that the person who wrote it had thus done an act tending to irritate the person to whom it was written.

I should also be inclined to think that the submission of the letters to the jury by consent was a waiver of the objection that they were not properly admitted, though, of course, not a waiver of the improper effect given to them by the charge.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment and conviction reversed, new trial granted.

Order to be settled by Boardman, J.


author: Boardman, J.:

text:
    In the Matter of CALEB DEMELT, a Supposed Lunatic.

      Committee of lunatic— a failure to give notice of tiie application for Ms appointment to all the next of Mn does not deprive the court of jurisdiction— Code of Civil Procedure, secs. 2825, 2385 — inquiry cannot be made as to the past condition of the alleged lunatic.

    The failure of the court to require notice of an application for the appointment of a committee of an alleged lunatic to be given to the husband, wife or one or more of the relatives of the lunatic, as required by section 2325 of the Code of Civil Procedure, where sufficient reasons for dispensing therewith áre not set forth in the petition or accompanying affidavit, does not deprive it of jurisdiction over the matter, but is a simple irregularity which may be cured or disregarded.
    It is sufficient if upon the hearing of a motion, made by the alleged lunatic, to set aside the order appointing the commission, all the parties interested have an opportunity to be heard.
    Since the adoption of section 2335 of the Code of Civil Procedure the inquiry must be confined to the incompetency of the person at the time the inquisition is held, and it is erroneous to include in it a statement that the incompetency existed for any definite period prior thereto.

      Appeal from an order made at a Special Term confirming an inquisition and appointing a committee of the person and estate of one Caleb Demelt, and bringing up for review an intermediate order denying an application to set aside an order appointing a commission under which the inquisition was found.

      William Austin and S. D. IlalUday, for Caleb Demelt, Zeruah Dunning and Deborah A. Yan Derzee, the appellants.

      J. Z>. Smith, for Elias J. Demelt the petitioner, respondent.
   Boardman, J.:

The alleged lunatic and two of his children appeal from an order confirming the inquisition, whereby Caleb Demelt is found to be a lunatic, and to have been so a lunatic for three years then last past, which order also appoints a committee of the person and estate of said Caleb Demelt. The appellants also propose to bring up for review an intermediate order denying tneir application to set aside the order appointing a commission in this matter under which the inquisition was found.

The objection to the latter order arises from the neglect to give notice to one or more of the relatives of the alleged lunatic of the presentation of the petition, and the neglect to show any sufficient reasons for dispensing therewith as is required by section 2325 of Code of Civil Procedure. The language of that section requires such notice to be given, unless sufficient reasons are shown in the petition or affidavits to excuse it. It was not done in this case. Was such neglect jurisdictional or a simple irregularity which could be cured or disregarded. We think it is not jurisdictional. The old Court of Chancery had the care and custody of all lunatics, and it was the duty of the chancellor to provide for their safe keeping and maintenance and to see that their property was not wasted or destroyed. (2 B,. S., 52, § 1.)

This jurisdiction was, upon the abolition of the Court of Chancery, conferred upon the Supreme Court, and is continued by section 2320 of the Code of Civil Procedure. The jurisdiction thus possessed by the courts could be exercised without restriction or limitation. (In re Mason, 1 Barb., 436, 441; Parsee Merchant's case 11 Abb. [N. S.], 217.) The modes of proceeding devised by the courts or enacted by the legislature are in aid of the exercise of the power of the court and to guard against wrong or injustice. The history of this jurisdiction and the mode of its exercise is fully illustrated by the learned Chief Judge Daly in the Parsee Merchant's case (supra, 216, etc.), where it is said that the interests of the heirs and next of kin will not' be considered in considering what is most conducive to the interests of the lunatic either in the care of his person or in the management of his estate.

The new provision of "the ^ Code is doubtless introduced for the protection of the court against imposition and the alleged lunatic against wrong. The court has the power, for reasons satisfactory to the judge, to waive' the notice, which would not be reasonable if service of the notice -went to the jurisdiction.

In the present case a motion was made by the alleged lunatic to set aside the order. appointing the commission. All his children were then heard by their affidavits and the motion was denied. The reasons for the denial are not given, but it may be assumed it was because the court was satisfied that no wrong had been done in ordering the commission, and that if it had been a hearing on the original presentation of the petition no reason was shown why a commission should not be appointed as had theretofore been doné. It was, in effect, a waiver of the service of the notice as required and an excuse of the irregularity complained of. While the language of the Code is not, we think, mandatory, the requirement is so prudent and reasonable that courts should never permit a default by reason of a disregard of its provisions, except in extreme instances. In this case the default was opened and the lunatic and his two daughters appeared to resist the application against the son, who was the petitioner.

The order of confirmation and the inquisition are, however, erroneous in one respect. By section 2335 of Code the inquiry must be confined to the competency of the alleged lunatic at the time when the inquisition is taken. This is a new provision and varies from the former practice where the inquiry was also made and found as to the length of time the lunacy had existed. (2 Barb. Ch. Pr., 234.) This may not now be done, and so far as the inquisition finds that Caleb Demelt has been in a state of lunacy for the space of three years last past before such inquisition, and during that time has made contracts or disposed of his property, it is erroneous and the findings are unauthorized by law. In these respects the motion to confirm the inquisition should have been denied. The change of the law was doubtless overlooked and the entire finding confirmed. For this reason the order of confirmation must be reversed so far as it relates to the lunacy, mental capacity and acts of Caleb Demelt prior to the date of the inquest, and the 'findings on those subjects contained in the inquisition must be stricken out as unwarranted, illegal and improper. In other respects - the order of confirmation is affirmed. Costs-are not allowed to either party. If counsel do not agree on form of order the same shall be settled by Boardman, J.

Learned, P. J., and Bockes, J., concurred.

Order denying motion to set aside order affirmed. Order confirming inquisition modified as stated in opinion, and as modified affirmed; no costs. Orders to be settled by Boardman, J.