text:
    M. Francis Wager, App’lt, v. Thomas B. Link et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 12, 1890.)

    -Mortgage—Covenant by subsequent grantee to assume—When mortgagee CANNOT TAKE BENEFIT OF.
    One S. gave a mortgage to plaintiff and subsequently conveyed by quitclaim deed to K., who gave a bond to plaintiff as collateral security, which required the exhaustion of the remedy against the premises before suing upon such bond. Thereafter K. conveyed to defendant, the deed containing an assumption of the mortgage. Held, that as between K. and D. the former did not become principal debtor, but remained a surety only, and that as K.'s bond was unconnected with the sale to him and gave S', no right of action, the agreement between defendant and K. was merely personal between them and gave no right of action to plaintiff.
    Appeal by plaintiff from judgment and order refusing to grant a judgment for deficiency against defendant Link, and which gave such defendant costs.

      H. R. Harder, for app’lt; Orín Oambell, for resp’ts.
   Learned, P. J.

This is an appeal by the plaintiff from that part of a judgment of foreclosure which, denie d him a personal judgment for deficiency against Link, and which gave Link costs.

Jennie Sully, in 1869, executed the mortgage in question to plaintiff. In June, 1873, she conveyed the premises to Kellogg by a quit-claim deed. In February, 1874, Kellogg executed to plaintiff a bond conditioned to pay amount of the Sully bond and mortgage ; stating therein that his bond was collateral to the bond and mortgage, and requiring the obligee to exhaust his remedy against the premises before suing the bond of Kellogg.

In April, 1875, Kellogg conveyed the premises to Link by full covenant deed, subject to the payment of the bond and mortgage, by the terms of which deed Link assumed and agreed to pay said bond and mortgage as part of the purchase money.

The sole question is whether the obligation thus incurred by Link enures to the benefit of the mortgagee, so that he can recover thereon.

Link had no knowledge of the bond executed by Kellogg to plaintiff. Mrs. Sully’s deed to Kellogg was on record; and as Link purchased from Kellogg he would be chargeable with knowledge of the contents of that deed, and conversely would be entitled to assume from that deed that Kellogg was under no obligation to pay the plaintiff’s mortgage. Link therefore cannot be said to have knowingly contracted with Kellogg for the indirect benefit of the mortgagee, being ignorant that Kellogg was under any obligation in respect to the mortgage.

"When a mortgagor conveys the premises, and in the deed the purchaser agrees to pay the mortgage, then equitably the purchaser becomes the primary debtor, and the mortgagor becomes the su'rety.

In such case the purchaser is liable to the mortgagee. But in the present case Kellogg, the purchaser, did not by the purchase become the principal debtor. Indeed he did not enter into any agreement with Mrs. Sully either at the time of the purchase or afterwards.

Kellogg’s bond to the plaintiff was a distinct matter, and gave Mrs. Sully no rights against him. In fact that bond is expressly collateral to the Sully bond and mortgage, and cannot be enforced until the obligee has exhausted his remedy against the premises.' Thus, Kellogg stands in a very different position from that of a purchaser who by his deed has agreed with the mortgagor and vendor to pay the mortgagor.

To go one step further, when a purchaser who has thus become the primary debtor himself conveys to one who by the deed assumes the debt, then such second purchaser in his turn becomes in equity the primary debtor and liable to the mortgagee. Such liability, however, depends on the fact that his grantor was at the time of the sale the person primarily liable in equity to pay the mortgagee.

In the present case, as has been shown, Kellogg never became the primary debtor in equity and never assumed any liability to Mrs. Sully, the mortgagor. The mortgagee, in order to hold Link liable to him, must deduce such liability through the mortgagor. If Mrs. Sully could sue Link, then the plaintiff could sue him.

But as Kellogg’s bond to the plaintiff was a personal matter unconnected with the sale by Mrs. Sully to Kellogg, and one which gave her no right of action, it follows that Link’s agreement with Kellogg was merely personal between them and gave no right of action to any one but Kellogg himself.

Keilogg took the agreement from Link for his own protection; and, as Kellogg was only a surety, and as he did not obtain this security from the principal debtor, Mrs. Sully, the creditor has no claim to it.

Of course there is no question made here that Link is liable to Kellogg on the clause in the deed. The question, is, whether the plaintiff hás any right to the benefit of that clause.

We think he has not for the reasons above stated. The doctrine which we have set forth is laid down in the cases of Vrooman v. Turner, 69 N. Y., 280; Turk v. Ridge, 41 id., 201; Carter v. Holahan, 92 id., 498.

We think that the error of the plaintiff is in assuming that the liability of Kellogg on his bond to the plaintiff was' of such a character that any security which Kellogg took would he for the plaintiff’s benefit; but Kellogg being himself only .a surety could take for his individual protection any security, except, perhaps, from the principal debtor. And the security thus taken would not of necessity be for the benefit of the creditor.

Judgment appealed from affirmed, with costs against appellent

Landon, J., concurs; Mayham, J., not acting.


source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    The People ex rel The American Surety Company, v. Edward Wemple, Comptroller.

      (Supreme Court, General Term, Third Department,

      Filed December 12, 1890.)

    1. Taxes—Corporations—Insurance companies.
    The American Surety Company is an insurance company, although it does not so designate itself in its name, and is liable to taxation under § 5 of chap. 361, Laws 1881.
    3. Same—Exemptions—Laws 1886, chap. 679, § 4.
    The exemption from taxation other than that provided for therein, in § 4 of chap. 679, Laws 1881, applies only to Are and marine companies, and does not exempt such companies as relator from other and existing taxation.
    Certiorari to review an adjustment and assessment of taxes made by the comptroller upon the relator under the corporation tax laws.
    The relator claims that it is not an insurance company within the meaning of § 5 of chap. 542, Laws 1880, and that if it is, it is exempt from any taxes on its premiums or business by virtue of § 4 of chap. 679, Laws 1886.

      John J. Crawford, for app’lt; I. H. Maynard, for resp’t.
   Learned, P. J.

The relator is incorporated under chap. 463 of the Laws of 1853 and amendatory acts. The second department of the first section of that act, us amended by chap. 485, Laws of 1879, includes companies for guaranteeing the fidelity of persons holding places of public or private trust. And tl^at is the business of the relator, as appears by its certificate.

It is quite clear then by the relator’s own certificate and by the statutes above cited, that it is an insurance company, although it does not so designate itself in its name.

But the statutes mention the guaranteeing fidelity as one branch of insurance for which companies may be incorporated.

Section 5 of chap. 361, Laws of 1881, imposes a tax of eight-tenths of one per cent, of gross amount of premiums of every insurance company except life insurance companies and purely mutual beneficial associations. This relator is not one of the excepted companies and is therefore liable to the tax unless relieved by some other statute.

The relator relies on chap. 679, Laws of 1886, § 4. The latter part of that section provides that the personal property, franchise and business of all insurance companies shall be exempt from taxation except as provided in the act. Hence the relator claims to be exempt from the tax above mentioned.

The relator’s conclusion is correct if that section really includes all insurance companies. To understand its meaning we must examine the whole act. The title is An act to provide for the taxation of fire and marine insurance companies.” Thus the object as expressed in the title is limited.to fire and marine insurance companies; Section 1, enacts that every fire and marine insurance company shall pay a tax of one-half of one per cent, on the gross amount of business.

Section 2, enacts that every such insurance company shall make an annual return of the amount of premiums.

Section 3, imposes a penalty on any officer of a company required to make such return who neglects to do so, and gives an action to recover the tax.

Section 5, declares the taxes imposed shall be paid into the treasury for account of the general fund.

Section 4, begins by declaring that “ the lands and real estate of such insurance companies shall continue to be assessed and ' taxed ” etc. Then follows the clause relied on by the relator; “ but the personal property, franchise and business of all insurance companies shall be exempt from all assessment or taxation except as in this act prescribed.”

Now no argument is needed to show that this act has reference only to fire and marine insurance companies. The very § 4 begins by stating that the lands and real estate of such, that is, fire and marine insurance companies, shall be assessed and taxed. This of course has no reference to such a company as the relator.

Then it proceeds “but the personal property, franchise and business of all insurance companies,” etc. Now although the word such” is omitted before the words insurance companies, yet the meaning is plain.

The statute was dealing solely with fire and marine insurance companies and its provisons apply to those companies only. This is made more plain by the latter part of this section, where it says “ shall hereafter be exempt from all assessment and taxation, except as in this act prescribed.”

No assessment or taxation is prescribed in the act for any insurance companies other than fire and marine. When, therefore, the act declares that companies shall be exempt from all assessment or taxation except as in the act prescribed, it evidently referred only to those companies for which assessment and taxation was prescribed by the act

The final clause of the section enforces this view. It provides that the section shall not affect the fire department tax. This is a. tax which has nothing to do with such companies as the relator.

We think there is no question as to the meaning of the statute. The language of all the sections points plainly to fire and marine insurance companies as the only subjects of the legislation. It. substituted a new rate of taxation in respect to those companies for previous rates. Having done this it exempted those companies-(except as to land) from other taxation.

But it did not establish any new rate of taxation for such companies as the relator, and it did not exempt such companies as the relator from other and existing taxation.

Whether the word “ such ” was omitted by stratagem or by accident, or whether the person who drafted the statute thought its meaning sufficiently clear without that word we do not know.

But we have no doubt that the action of the comptroller was legal and correct, and his proceedings are confirmed, with $50 costs and disbursements.

LANDON and Mayham, JJ., concur.


author: Dykman, J.

text:
    The People, Resp’ts, v. The Long Island R. R. Co , App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Railroads—Laws 1884, char. 489, § 3.—Penal Code, § 154.
    As § 3 of chap. 439, Laws 1884, prescribes no penalty for disobedience of any order made under its authority, obedience to an order made thereunder must be enforced under § 154, Penal Code.
    2. Same—Costitutional law.
    Section 3 of chap. 439, Laws 1884, is not unconstitutional as delegating legislative powers to the judges. It merely provides a means of determining the necessity of a flagman or gate at a particular place, and when such necessity is found the law requires their presence.
    (Barnard, P. J., dissents.)
    Appeal from judgment of conviction rendered against defendant at a court of sessions.
    Defendant was indicted for a misdemeanor in willfully omitting to operate certain gates erected at some street crossings in Sag Harbor. It was convicted and a fine of $500 was imposed.

      H. B. Hinsdale, for app’lt; Wilmot M. Smith, dist att’y, for resp’ts.
   Dykman, J.

“At any point where a street, highway, turnpike, plank road or travelled way is crossed at the same level by a railroad, or at any point where a horse railroad is crossed by a steam railroad, the supreme court or county judge may, upon the application of the local authorities, and upon ten days’ notice to the railroad corporation whose road so crosses, order that a flagman be stationed at such point or that gates shall be erected across such street, highway, turnpike or plank road, and that a person be stationed to open and close such gates when an engine or train passes, or make such other order respecting the same as it deems proper. Such order shall only be made after the refusal or neglect of such corporation to station such flagmen or erect such gates, after having been requested so to do by such local authorities.'’ Chap. 439 of the Laws of 1884, § 3.

The Long Island Eailroad Company operates a portion of its railroad through the village of Sag Harbor, and under the statute above recited the county judge of Suffolk county, on the tenth day of January, 1887, made an order requiring the Long Island Eailroad Company to immediately erect gates across the travelled roadway of Bridge street, in that village, on the southerly side of the main track of the company, and also across the travelled roadway of Water street, in the same village, and to station a person or persons, from May 1st to November 1st in each year, at or near such gates, to open and close the same when an engine or train passed or repassed.

The gates were erected in obedience to such order, but upon complaint of neglect and omission to operate the same an indictment was found by the grand jury of Suffolk county against the company for a wilful omission to station a person at or near such gates to open and close them when engines and trains were passing.

A trial was had under such indictment and the company was convicted and fined $500 for such offense.

From, that conviction the company has appealed.

The indictment was based upon § 154 of the Penal.Code, which is as follows : “ Where any duty is or shall be enjoined by law upon any public officer or upon any person holding a public trust or employment, every wilful omission to perform such duty, where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor.”

The section of the law placed at the head of this opinion prescribes no penalty for disobedience of any order made by the county judge and provides no method for its enforcement, and, therefore, so far as any order is made in pursuance of its provisions imposing a duty upon any public officer or any person or corporation holding a public trust or employment, obedience thereto must be enforced under § 154 of the Penal Code.

Under such construction and application of the statutes the indictment charges an offense, and is sufficient to sustain the conviction.

The great objection to § 3 of the Laws of 1884 is that it delegates legislative power to the judges, and is, therefore, unconstitutional.

It is quite true that the duty of posting flagmen and placing gates at railway crossings can only be imposed by the legislature, but as we understand, the statute in question it only provides a means to determine the necessity of a'flagman or a gate at any particular place, and when such necessity is found by the judge the law requires their presence. In the same way the legislature must authorize the location and construction of railroads ; but there is a statute which prohibits the construction of a railroad upon and along any highway without the order of the supreme court, Laws of 1864, chap. 582, but it has never been supposed that any legislative power was delegated to the court by that statute.

Such laws are only designed to provide for a judicial determination of the cases in which legislative enactments shall have operation, or, in other words, to determine the necessity for such operation.

In relation to the indictment and the testimony, we find both sufficient to sustain the conviction, which should be affirmed.

Pratt, J., concurs; Barnard, P.'J., dissents.


author: Barnard, P. J.

text:
    John Power, Ex’r, Resp’t, v. Gertrude Burmester et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Executors and administrators—Appointment cannot be questioned COLLATERALLY.
    Defendant renounced her right to administration, but was subsequently appointed administratrix after an appointment of the public administrator. Thereafter a will was found and probated, and letters thereunder were granted to plaintiff. She was ordered to pay over the moneys in her hands to plaintiff, and on refusal to do so this suit was brought on her bond. Held, that the surrogate having jurisdiction of the estate and her person, her appointment could not be assailed collaterally, and that her sureties ■w_re bound by the surrogate’s order fixing the amount of the defalcation..,

      Appeal by defendant John Speckman, from judgment in favor of plaintiff, entered upon trial by the court without a jury.
    Action on an administratrix’ bond.

      J. K Van Nostrand (Sawyer & Getty, of counsel), for app’lts; Lewis J. Conlan, for resp’t.
   Barnard, P. J.

Dina Overbeck, a resident of the city of Brooklyn, died, as was supposed, intestate, in June, 1887. The defendant, Gertrude Burmester, was next of kin to deceased. She renounced her right to administration, and the public administrator was appointed in June, 1887. In July, 1887, the defendant Burmester presented a petition to the surrogate of Kings county, stating the death of Dina Overbeck intestate, that she was the only next of kin and resided in Kings county, and asked to be appointed administratrix. Letters of administration were issued to her, and the defendants Speckman and Towsma became her sureties. The administratrix Burmester, received a considerable sum of money as administratrix, which she refuses to pay over to the plaintiff, who was subsequently appointed the executor of the deceased, she, in fact, having left a will. The surety denies his liability because the appointment of Gertrude Burmester was void. The surrogate had jurisdiction of the estate and of the person of Mrs. Burmester. The appointment cannot be assailed collaterally. Kelly v. West, 80 N. Y., 139.

The sureties are estopped from denying liability, the principal having, and without fraud, made the engagement Kimball v. Newell, 7 Hill, 116.

The surrogate’s order fixing the amount of the administratrix’ defalcation bound the sureties as well as the administratrix. Scofield v. Churchill, 72 N. Y., 565.

The judgment should, therefore, be affirmed, with costs.

Dvkman and Pratt, JJ., concur.


text:
    James T. McCormick, Resp’t, v. George W. Venable et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Chattel mortgage—Notice to subsequent mortgagee—Reviling.
    A chattel mortgage was given to plaintiff’s assignor in March, 1887, and. filed. A subsequent mortgage was given to defendants in May, 1888, and filed. Plaintiff’s mortgage was not refiled. It was shown that defendants' agent was informed of plaintiff’s mortgage in 1887, and in the fall of 1888 stated that the defendants’ mortgage would not interfere with the first mortgage. Defendant admitted that he knew there had been a prior mortgage, but not that it was unpaid. M> Id, that the evidence was sufficient to show notice of the prior mortgage, and therefore defendants’ mortgage was subject to it even if not filed or renewed.
    Appeal from judgment in favor of plaintiff.
    This action was brought to obtain a permanent injunction to restrain the defendants from foreclosing a chattel mortgage which they held on bar-room furniture and fixtures in store Ho. 196 Rockaway avenue, Brooklyn.

      Hugo Hirsh, for app’lts; Wm. M. Benedict, for respt.
   Barnard, P. J.

On the '16th of February, 1887, one Lucey executed and delivered to Peter H. Ahlers a chattel mortgage on certain bar-room fixtures and appurtenants for $550. The mortgage was filed in the proper office in Brooklyn, March 4, 1887. On the 26th of May, 1888, Lucey executed a mortgage on the same property to the defendants, which was properly filed the next day. This mortgage was for $600. The plaintiff owns the rights of Ahlers. The Ahlers mortgage contains a clause which prohibits the removal of the mortgaged property from the building, which is owned by Ahlers. This Ahlers mortgage has never been refiled, but the court found that the defendants’ mortgage was taken by them with full knowledge of the existence of the Ahlers mortgage.

The principal point upon the appeal is whether the proof of notice is sufficient. The evidence upon this point supports the finding.

Ahlers testified that he told the defendants’ agent, in the fall of 1887, that he held a mortgage on the property in question, and what was due upon it. This statement is supported by a son of Mr. Ahlers. In the fall of 1888 the defendants’ agent is proven to have stated to Ahlers, senior, that the defendants’ mortgage would not interfere with the Ahlers mortgage, and that he knew of its existence.

The interview in 1888 is also testified to by one John Horan. The common mortgagor,. Lucey, testifies that the plaintiff’s (Ahlers) mortgage is unpaid. That he told the defendants it was unpaid, and that he could give none to interfere with it. The defendants knew of the mortgage, had seen the record and knew that it had not been refilled. The defendants’ agent, Hays, admits knowledge of the existence of the first mortgage, but denies only that the amount due upon it was stated to him.

The defendant Yenable admits knowledge or information that there had been a prior mortgage, but that he did not know it was unpaid. His testimony seems to be based upon the record that there was no unpaid mortgage because it was not renewed. Notice of the prior mortgage made the defendants’ mortgage subject to it, even if not filed or renewed. Gildersleeve v. Landon, 73 N. Y., 609, and cases therein cited.

Ths exceptions taken, whether well or ill taken, hurt no one. None of these bear upon the question of notice of the first mortgage, and they are, therefore, insufficient to .set aside the finding on that question.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Pratt, J.

text:
    The People ex rel. John M. Sammis v. The Board of Supervisors of Queens County.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Highways—Buildings—Laws 1873, chap. 773.
    Since the passage of chap. 773, Laws 1873, either the consent of the owner or the certificate of the highway commissioners is essential to the laying out of a highway through buildings, and in the absence thereof the board of supervisors has no power to appoint commisssoners to lay out such road.
    2. Same.
    Where the highway commissioners investigate the subject and thereupon refuse to make the certificate, it cannot be said that they could not, or would not, act within the meaning of chap. 314, Laws 1838.
    Certiorari to review a resolution of the board of supervisors appointing special commissioners to lay out a road in the village of Oyster Bay through premises of relator, on which there are buildings used for the purposes of trade.
    On two separate applications for that purpose the highway commissioners met in January and May, 1890, viewed the premises, heard the parties, and after consideration refused to grant a certificate of the necessity of such road. In March, 1890, a jury also rendered a verdict against it. The'applicants then applied to the board of supervisors, pursuant to chap. 314, Laws 1838, as amended by chap. 164, Laws 1848, for the appointment of special commissioners to lay out the same proposed road, and the resolution in question was made.

      Thomas Young, for relator; A. N. Weller (Charles 11. Street, of counsel), for resp’ts.
   Pratt, J.

It seems plain that prior to 1873 the proposed highway could not have been laid out over the relator’s property without his consent That act only authorized such a laying out upon the certificate of the commissioners of highways. Laws of 1873, chap. 773 ; Thompson on Highways (3d ed), 220; 2 R S., 1238 and 1239 (Banks’ 7th ed.).

In this case no such certificate was obtained, but was refused by the commissioners, and there was, therefore, no power vested in the board of supervisors to appoint commissioners, and the commissioners so appointed had no power to lay out the road.

This road falls under the act of 1873, and under the previous act of the Law of 1838, as amended by chap. 164 of Laws of 1848.

The law of 1873 was made expressly to apply to such an application as this, and it contains an express prohibition against laying out such road except upon the condition before referred to, viz, certificate of commissioners of highways. Whatever may have been the powers of the board of supervisors prior to 1873, it is plain that since that act either the owner’s consent or the certificate of the highway commissioners are essential to the laying out of such a road.

It cannot be claimed that the Act of 1838 was intended to provide a method by which a road could be laid out through buildings without the owner’s consent; but it was the object of the Act of 1873 to effect that purpose, but only upon the conditions therein expressed.

It may be further said that irrespective of the Act of 1873 we do not think a case was made for action upon the part of the board of supervisors for the reason that it did not appear that the road was important, and that the commissioners of highways could not or would not act within the meaning of the Act of 1838.

If the foregoing views are correct it follows that the action of the board of supervisors was without authority and must be reversed.

Proceedings and order laying out highway reversed.

Barnard, P. J., and Dykhan, J., concur.


text:
    In the Matter of the final accounting of Nathaniel Niles, Adm’r.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Subboqate’s courts—Costs.
    It is within the discretion of the surrogate, where there has been a contest, to allow a sum not exceeding $70 as costs and in addition thereto $10 for each day in excess of two spent on the trial besides disbursements, and where the amount allowed is within these sums his order is final and conclusive on the'question of costs.
    Appeal- from order of surrogate of Kings county awarding costs to Nathaniel Niles, as administrator of Chauncey S. Stevens.
    The administrator appealed from a decree of the surrogate directing him to pay certain sums to the widow and daughter of decedent, and the court of appeals sent the case back for further proceedings in conformity with certain principles set forth in its opinion and awarded him costs in all courts to be paid from the estate. He applied to the surrogate to be allowed $3,941.26 as costs and disbursements, including $70 on contest; $1,090 for 109 additional days on the trial and $970 for ninety-seven days occupied by his attorney in preparing the accounts and for trial
    Upon this application the appellants objected to the allowance by the surrogate of any greater sum than seventy dollars as costs besides actual disbursements, and requested, in case the surrogate held that additional costs should be allowed, the privilege of an oral examination of Mr. Niles or his attorney for the purpose of ascertaining the correctness of his bill of costs for time spent in preparing the accounts, and on the trial, and also as to the disbursements. The request was denied, the objections overruled and the bill allowed as presented.

      Charles Lyons, Jr., for app’lts ; Joseph N. Tuttle, for resp’t.
   Pratt, J.

It was clearly within the discretion of the surrogate to fix such a sum to be allowed as costs in addition to disbursements as he deemed reasonable, not exceeding $70, where there has been a contest, and in addition he may allow the sum of $10 for each day in excess of two spent upon the trial.

It cannot be said that there has been an abuse of discretion when the amount • allowed is within the statute, as it is in this matter.

We think, however, under the circumstances disclosed in this case, an allowance of the $70 as costs, in addition to disbursements, would have amply answered the demands of justice. Not only would that sum have been a sufficient allowance, but it would have complied with the decision of the court of appeals in this matter.

We cannot, however, review an order clearly within the discretion of the surrogate where there has been no abuse of said discretion.

There seems to be no remedy for the appellant in this matter unless it be a reargument before the surrogate, as that order is final and conclusive on the question of costs.

Order affirmed, with costs.

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


author: Andrews, J.

text:
    In the Matter of the Petition of Rollin M. Squire, Com'r.

      (Court of Appeals,

      Filed January 13, 1891.)

    Eminent domain—New Yobk aqueduct—Laws 1883, chap. 490, § 11.
    The language of the 11th section of chap. 490, Laws 1883, authorizing the commissioners to’ award damages to the owner of lands contiguous to land taken “ which maybe affected by the construction and maintenance ” of the aqueduct and its appurtenances, applies only to permanent injuries to the land from the completed works and their use thereafter, and would not cover injuries claimed to have been received through the use by the city of an adjacent lot for an engine house and coal depot and the consequent annoyance to a neighbor through noise, soot and smoke.
    Appeal from judgment of the supreme court, general term, second department, affirming finding of commissioners that claim of Asbury Lester should be disallowed.

      James A. Deering, for app’lt; D. J. Dean, for resp’t. •

       Affirming 32 N. Y. State Rep., 716.

   Andrews, J.

The appellant, Asbury Lester, presented a claim ■for damages to his property in the city of New York, contiguous to lands actually taken for the purpose of a public aqueduct, under chapter 490, of the Laws of 1883.

Section ll of the act authorizes the commissioners to award •damages to the owner of lands contiguous to land taken “which may be affected by the construction and maintenance ” of the aqueduct and its appurtenances. The lot adjacent to the lot of the ■claimant was taken by the city, and upon it was erected an engine house and fixtures, and coal was deposited thereon to be used in the construction of the aqueduct, but so far as appears the appropriation of the lot for that purpose was temporary, and was to be continued only "while the work was in progress. The claimant has a house on his lot, which he occupied as a residence, and he was seriously incommoded by the noise and by soot and smoke from the engine on the adjacent lot, and the dust from the coal •deposited thereon.

The remedy sought in this proceeding is purely statutory, and "the only question is whether the injury which the claimant suffered is within the statute, for which the commissioners were authorized to award compensation.

We are of opinion that the language of the eleventh section, .authorizing damages to the owner of lands “ which may be affected by the .construction and maintenance ” of the aqueduct and its appurtenances, applies only to permanent injuries to the land from the completed works and their use thereafter. It may be supposed that the legislature understood that the construction of the aqueduct would injuriously affect rights appurtenant to contiguous lands, and that the structures which were to form a part of the aqueduct system might interfere with the enjoyment or impair the value of such contiguous lands, and that for consequential injuries merely sustained in consequence of the construction and maintenance of public works under legislative authority the parties would not under the general rule of law have any redress.

It was, we think, to meet this class of cases that the provision in question was made. It would require very clear language to impose a liability upon the city for damages for the temporary inconvenience which would be occasioned to adjacent lot owners from the prosecution of the work and during the course of construction.

The view we have taken is illustrated by the cases which have arisen in England under the “ Lands’ Clauses Consolidation Act ” and “ The Railways’ Clauses Consolidation Act,” of 8th and 9th Yict. The sixty-eighth section of the act first mentioned authorized compensation “ in respect of any lands or any interest therein which shall have been injuriously affected by the execution of the works.” The sixth section of “ The Railways’ Clauses Consolidation Act ” requires compensation to be made for all lands taken “ or injuriously affected by the construction ” of a railway.

In Ricket v. Directors of Metropolitan Railway Co., L. R., 2 Eng. & Ir. App. Cases, 175, the plaintiff claimed to recover compensation for temporary obstruction of the highway during the construction of the defendant’s railway, which prevented free passage of persons and resort to the plaintiff’s inn. The clauses in the two acts mentioned were elaborately considered by the judges and the cases reviewed, and it was held that the case was not within the act Lord Chelmsford, referring to the words “ injuriously affected by the construction,” etc., said that they “appear to me to apply not to temporary, but to permanent works, of companies,” and Lord Cranworth was of opinion that “ the injury must be an actual injury to the land itself, as by lowering the foundation of the buildings on it, or obstructing its light or its drains, making it inaccessible by lowering or raising the ground, or by some such physical destruction,” to bring a case within the act.

We think the injury of which the appellant complains was not within the language of the eleventh section of the act of 1883, and that the claim was properly disallowed.

The order of the general term should, therefore, be affirmed.

Order affirmed, with costs.

All concur.


text:
    The People, Resp’ts, v. James A. Flack and William I. Flack, Imp’ld, App’lts.

      (Court of Appeals,

      Filed January 13, 1891.)

      1. Conspiracy—Penal Code, § 168.
    The mere fact that á conspiracy has for its object the doing of an. act which may he unlawful, followed, by the doing of such act, does not constitute the crime of conspiracy, unless the jury find that the parties were actuated by a criminal intent. The actual criminal or wrongful purpose must accompany the agreement and if that is absent the crime of conspiracy has not been committed.
    2. Same—Criminal intent a question eob jury.
    Both the wrongful act and criminal intention must be found by thejwy to justify a conviction for crime. However clear the proof may be or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to the jury.
    3. Same.
    The character of the acts done, the design with which they were done, and whether fraudulent or not are questions for the jury.

      4. Same—Charge to jury—Appeal.
    On the one hand the court will not fasten upon an isolated clause in the charge which may seem to be erroneous, as a ground for reversing a judgment, where the charge as a whole states the true rule of law and it can be seen that no injury resulted from the alleged error; so on the other hand, where the whole drift of a charge on a particular question is erroneous, the error will not be cured because expressions may be found in the charge which, standing alone, would free it from the objections urged.
    (Earl and Cray, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of oyer and terminer convicting defendants, James A. Flack and William I. Flack, of a misdemeanor.

      George F. Danforth, for app’lts ; John W. Goff, for resp’ts.

      Reversing 32 N. Y. State Rep., 215.

   Andrews, J.

This is an appeal by James A. Flack and William I. Flack from a conviction of the crime of conspiracy. The indictment contains sixteen counts, which may be divided into two classes. The first class charge the defendants, together with three other persons, with falsely instituting and maintaining an action for divorce in the name of Mary E. Flack, the wife of James A. Flack, against her husband without her knowledge or consent. The second class charge the defendants with deception and imposition upon the court, and the procuring of a judgment of divorce in the said action by illegal and fraudulent practices.

The indictment is founded upon the statute, which, omitting clauses not now material, makes it a misdemeanor for two or more persons to conspire “falsely to institute or maintain an action or special proceeding, or to commit any act for the per-. version or obstruction of justice or of the due administration of the law.” Penal Code, § 168. The action of Flack v. Flack was commenced April 22, 1889, by the service of a summons and complaint upon the defendant therein. The complaint purported to be verified by the plaintiff, Mary E. Flack. It alleged the intermarriage of the parties in 1850, and charged that the defendant since said marriage had committed adultery with one Susan T. [Reynolds, and that since the 1st day of October, 1888, and for several years prior thereto, be had lived in adulterous intercourse with the said Susan T. Eeynolds, at 319 West Twenty-ninth street, in the city of Mew Yoik. The complaint also contained the usual averments that the adultery charged was committed without the connivance, privity, or procurement of the plaintiff; that five years had not elapsed since its discovery by her, and that she had. not voluntarily cohabited with the defendant thereafter.

The complaint demanded judgment dissolving the marriage between the parties, with a provision therein for the reasonable support and maintenance of the plaintiff. The counts in the complaint charging a conspiracy between the defendants falsely h> institute and maintain the action without,the knowledge and consent of Mary E. Flack, the nominal plaintiff, was sought to be supported on the trial mainly by her testimony. She testified in substance that she never consented to or authorized the bringing of the action, and while it is inferable from her testimony that she suspected her husband’s infidelity, she testified that she had no knowledge until after the judgment of divorce was rendered, either that such an action had been brought or that her husband had committed adultery as charged in the complaint. She admitted that she did consent that her husband might .procure a “ bill of separation,” but not that he should procure a divorce. She .denied the signature, purporting to be hers, to the affidavit, annexed to the complaint, and also the signature to the affidavit of regularity, taken by the referee and annexed to the judgment roll. She admitted that she signed certain papers on several occasions presented to her by her son, but testified that she supposed, that they related to the separation which had been spoken of between herself and her husband and son, and that she signed them on that understanding and representation. The jury might, undoubtedly have found upon the evidence that Mrs. Flack was deceived into verifying the complaint and signing the affidavit of regularity, but there is very little room to doubt upon the whole evidence that whatever may have been the fraud practiced upon her, the signatures to these papers were her genuine signatures.

The evidence of James A. Flack, taken before the grand jury, was read in evidence by the prosecution on the trial of the indictment, and the defendant, William I. Flack, was sworn as a witness; on his own behalf. They denied any conspiracy or fraud, and testified that the suit was commenced and prosecuted with the full knowledge and acquiescence of Mrs. Flack.

The evidence given on the trial to sustain that part of the charge, that the defendants conspired to falsely maintain the action for divorce, did not proceed upon a denial of the fact of adultery charged in the complaint. On the contrary it was proved on the part of the prosecution, and was conceded by the defendants, that the defendant James A. Flack had for more than fifteen years before the trial lived in adulterous intercourse with a woman whose real name was Sarah Cherry, but who had passed by the name of Susan T. Raymond, and by whom he had a son who, at the time of the trial, was about fifteen years of age. The claim on the part of the people was that this woman was intentionally misnamed in the complaint, which falsely stated the name of the adulteress to be other than her real name, and also that they induced two witnesses who knew of the adulterous intercourse between James A Flack and the woman Raymond, and by whose depositions taken before the referee the adultery charged in the complaint was proved, to suppress the real name, and to testify that the person with whom James A. Flack lived in adulterous intercourse was known to them as Susan T. Reynolds. It is also claimed that they were induced to swear falsely that they had known Mrs. Flack for five years. It was not denied, indeed, it was conceded, that the testimony of these witnesses was perfectly true as to the material fact of the adultery, and the adulterous intercourse at the place and during the period named in the complaint, and that the only misstatements were as to the identity of the name in the "depositions with that of the real adulteress, and in respect of .the time the witnesses had known Mrs. Flack.

"These two witnesses testified on the trial of the indictment that they had never known Mrs. Raymond to pass by the name of Reynolds, and they gave as a reason for suppressing the true name in their depositions, that Mrs. Raymond, who, as agent for James A. Flack, presented the depositions to them for their signatures, on her attention being called by them to the discrepancy, said “it was all right, the name Reynolds, a covering for the boy’s sake; it was done for the boy, leaving out the name Raymond, and the name Reynolds was put in instead of Raymond.” The defendant James A. Flack, in his evidence before the grand jury (which was introduced by the people) testified that the woman Raymond "went at times by the name of Reynolds.

The counts of the second class, viz.: those charging deception and imposture on the court and the procuring of the judgment of divorce by illegal and fraudulent practices, were sought to be supported, mainly, by proof of certain acts and transactions not disclosed on the face of the judgment record in the divorce action, but proved by witnesses relating to papers embodied in the record and upon which the judgment was founded.

The judgment, although regular upon its face, was, as was claimed by the prosecution, fraudulent by reason of the circumstances disclosed by this evidence.

It appears that on or about the 2d day of July, 1889, Mr. Meeks, who, on the 10th of June, 1889, had been appointed by an order of Judge Bookstaver referee in the action of Flack v. Flack, applied to the same judge, upon the request of Ambrose.Monell, the attorney of record of the plaintiff in the action (Monell being then ill and absent from the city of Mew York), for judgment of divorce, pursuant to the prayer of the complaint ill the action. The application was made upon papers, including the original summons and complaint, duly verified, affidavit of default, order of reference, oath of referee, deposition of Mary E. Flack, proofs taken by the referee and the referee’s report. The judge, after examining the papers, declined to grant the application, for the reason that Ambrose Monell, the attorney of record of Mary E. Flack, the plaintiff, was known to him to be the official attorney for the "defendant, James A. Flack, then sheriff of the county of Mew York. There is some discrepancy in the testimony as to what further occurred on that occasion between the judge and Mr. Meeks. What the latter did is substantially u'ncontradicted. He took the papers and went to the office of Benjamin Wright, a reputable attorney, and stated to him the case and the objection of the judge, and requested him to appear as plaintiff’s attorney in place of Monell. Wright, after much persuasion, finally consented to do so, on being assured that he would be furnished with an authority from Monell to appear for Mrs. Flack.

The papers originally presented to Judge Bookstaver were then changed and reformed. The original summons signed by Ambrose Monell, as attorney for the plaintiff, was torn from the complaint and a new summons was attached thereto signed by Wright, as attorney for the plaintiff, and which differed from the original summons in the name of the attorney only; the signature of Monell as attorney signed to the complaint was erased and that of Wright was written by him over the erasure; the affidavit of default made by Monell on the 22d of May, 1889, was detached from the other papers and a new affidavit of the same tenor, purporting to have been made by Wright on the same 22d of May, was drawn and signed and sworn to by Wright; a new order of reference, purporting to have been made on the 3d day of June, 1889, “on the motion of Benjamin Wright, attorney for the plaintiff,” appointing Joseph Meeks referee, was drawn and also a new form of decree, stating that the judgment was ordered on motion of Wright, instead of Monell as in the other.

" The new papers and such of the original ones as had not been changed were then fastened together and subsequently were presented to Judge Bookstaver, who then granted the order for judgment and judgment for absolute divorce was thereafter entered.

If the judge had granted judgment .upon the application first made no question could have arisen as to its regularity except that it would have been open to the plaintiff to contest the authority to bring the action in her name. None of the questions would then have arisen which were made the subject of investigation on the present trial, growing out of the changes made in the papers. These changes, though made apparently for the sole purpose of accomplishing the substitution of Mr. Wright as attorney for the plaintiff in place of Mr. Monell, in order to meet the objection of the judge, were nevertheless wholly irregular and unauthorized, and the roll as finally made up did not represent the actual truth. Mi1. Wright was not legally'substituted as attorney in place of Monell and was not authorized to appear for the plaintiff in the action; • the affidavit of the service of the summons relates to a different summons from that annexed to the roll; the new summons had never in fact been served, and the affidavit that twenty days had elapsed since the service thereof was untrue; the proofs of adultery were taken under the order of reference of June 10, 1888, and not under the order of July 3, 1888; the referee’s report reported acts performed by him as referee before the order of reference contained in the roll was made. This series of blunders, irregularities, or frauds, whichever they were, were committed by Meeks, one of the defendants, in connection with Wright. Both were sworn as witnesses on the trial. They differed in respect of some of the details, but both unequivocally denied any intentional fraud upon the plaintiff in the action or upon the court, and asserted that their only purpose was to effect a substitution of Wright in place of Monell, and that they had no idea that the rights of the parties to the action would be in any way affected or prejudiced by what was done.

We are of opinion that errors were committed by the learned trial judge in his charge to the jury, which require a reversal of the judgment below. Before proceeding to a particular consideration of the objectionable features of the charge, a brief reference to the law of conspiracy will aid in understanding the points upon which our judgment proceeds. The gist of the crime of conspiracy consists in a corrupt agreement between two or more individuals to do an unlawful act, unlawful either as a means or as an end. Bishop’s Grim. Law, § 171, et seq., and cases cited. The agreement may be established by direct proof or by inference, as a deduction from conduct which discloses a common design on the part of the persons charged to act together for the accomplishment of the unlawful purpose. At common law, the crime of conspiracy was complete when a corrupt agreement was made, although not followed by any overt' act and no step had been taken in furtherance of the object of the conspiracy. The statute of New York has modified the common law in this respect, by requiring that to constitute the crime of conspiracy there must be both an agreement and an overt act to effect the object of the agreement, except where the conspiracy is to commit certain felonies specified. Penal Code, § 171.

The formation of a common design by two or more persons is never simpliciter a criminal conspiracy. This may be, and often is, perfectly innocent The criminal quality resides in the intention of the parties to the agreement, construed in connection with the purpose contemplated. The mere fact that the conspiracy has for its object the doing of an act which may be unlawful, followed by the doing of such act, does not constitute the crime of conspiracy, unldss the jury find that the parties were actuated by a criminal intent In many cases this inference would be irresistible; in others the jury might find that although the object of the agreement and the overt act were unlawful, nevertheless the parties charged acted under a misconception or in ignorance, without any actual criminal motive. If that conclusion should be reached by the jury, then whatever other criminal penalties the parties might have incurred, the crime of conspiracy would not have j)een established and the defendants would be entitled to an acquittal. The actual criminal or wrongful purpose must accompany the agreement, and if that is absent the crime of conspiracy has not been committed.

This principle of the law of conspiracy is illustrated in the case of The People v. Powell, 63 N. Y., 88, which was the case of an indictment for a conspiracy by the defendants, commissioners of charities of Kings county, to purchase supplies without advertising for proposals, as required by statute. The court charged that if the jury should find that the defendants entered into an agreement to purchase supplies without advertising, and did purchase them in pursuance of such agreement, the case against them was made out. This court affirmed the order of the general term, which reversed the judgment of conviction for misdirection in the charge, this court saying, “ but to make an agreement between two or more persons to do an act innocent in itself a criminal conspiracy, it is not enough that it appears that the act which was the object of the agreement was prohibited. The confederation must be corrupt. The agreement must have been entered into with an evil purpose, as distinguished from a purpose simply to do the act prohibited, in ignorance of the prohibition. This is implied in the meaning of the word conspiracy.” And later on it was said, “it was open to the jury to find upon the evidence that no criminal intention existed, and if this had been found, to have acquitted the defendants.”

The conspiracy charged in the Powell case was to do an act mala prohibita merely, and the reference to that fact in the opinion was to show the distinction between a direct indictment for doing an act prohibited by law, but innocent in itself, which, as was held in Gardner v. People, 62 N. Y., 299, might be supported irrespective of motive or intent, and an indictment for conspiracy to do the same act where the criminal intention is an essential and1 indispensable element It is alike the general rule of law and the dictate of natural justice that, to constitute guilt, there must not only be a wrongful act, but a criminal intention. ' Under our system (unless in exceptional cases), both must be found by the jury to justify a conviction for crime. However clear the proof may be, or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to the jury. Jurors may be perverse, the ends of justice may be defeated by unrighteous verdicts, but so long as the functions of the judge and jury are distinct, the one responding to the law, the other to the facts, neither can invade the province of the other without destroying the significance of trial by court and jury. The general rule that in criminal cases the question of criminal intent must be submitted to the jury, however significant the facts may be, has frequently been declared by this court.

In McKenna v. The People, 81 N. Y., 360, which was the case of indictment for murder, it was held that, however clear the circumstances might be, the question of guilty intent must be left exclusively to the jury, and in that case a conviction fop manslaughter was reversed for error in the instruction to the jury, “that the jury, if they believed the evidence offered in behalf of the people to be true, would be justified in finding the prisoner guilty." This court said that the charge may have been understood by the jury as involving the opinion of the court upon the intent, as well as the other elements of the crime, and was likely to mislead and prejudice them, but that in any view “ it was stated much stronger than it ought to have been, and was calculated to make an erroneous impression upon the minds of the jurors." « •

In People v. Baker, 96 N. Y., 340, this court reversed a conviction of the defendant for obtaining money and property by false pretences. The trial judge charged the jury, “if you find that the defendant made the representations charged in the indictment, and that they were false, and that the defendant knew that they were false when he made them, then the law presumes the fraudulent intent.” This was held to be error, the court, in its opinion by Earl, J., saying: “ The crime of false pretences is not made out by simply showing that the representations charged in the indictment were made, and that they were false, and that the defendant knew them to be false. The jury, from these facts and from all the other facts, may infer a fraudulent intent, but the law does not infer a fraudulent intent; that is to be found as a fact by the jury, and is not an inference of law.” The presumption that a person intends the ordinary consequences of his acts is, as applied to criminal cases, a rule to aid the jury in reaching a conclusion upon a question of fact and is not a presumption of law, Filkins v. The People, 69 N. Y., 101, and on the trial of an indictment the intent is traversable and the defendant may testify as to his intent. Kerrains v. The People, 60 N. Y., 221; People v. Baker, supra.

The learned trial judge, in his charge to the jury, after adverting to the rule that the jury were the exclusive judges of the facts, and that the responsibility for their determination devolved exclusively upon them, and after defining the law of conspiracy, proceded as follows: “ 1 now hold in my hands the document which has brought you here to-night, and has brought me here; the judgment roll in this action. I feel bound to say to you, gentlemen, that this judgment record is a record of a fraudulent divorce. Of this there can be.no doubt whatever. It would be a misapplication of language to call it an irregular proceeding. It is unquestionably fraudulent, and the two questions for you to determine are, first, whether the suit which resulted in this decree was fraudulently and falsely instituted; if it was, then the other question is immaterial except as to one defendant. If it was not falsely or fraudulently instituted, then the other question for your consideration is, was this fraudulent decree obtained by fraudulent means; and in that I mean fraudulent means used by these defendants. Now, when I pronounce this a fraudulent decree, I do not mean to characterize the conduct, of the defendants, which I mean to leave exclusively to you, but I would not be performing my duty faithfully if I told you that the preparation, for instance, of a summons, and its signature by an attorney without any authority from the plaintiff, was a mere irregularity.”

i The judge then referred to the various steps taken in the preparation of the roll, the substitution of a new attorney, the erasure of the name of Mon ell in the original complaint, and the writing in of the name of Wright, the attaching of the affidavit of service of the^ original summons and complaint to the new summons prepared by Wright, and concluded this summary as follows: “ In the same way I might go through the entire record. There it is. We cannot get away from it. It is a bald, naked fact that it is fraudulent, and the question is, are these defendants responsible for it in the sense of the conspiracy act.” Later on in the charge the learned judge, recurring to the circumstances connected with the preparation of the judgment roll, said: “ These were not irregularities. They were devices which must be characterized as fraudulent and upon them the final decree was obtained.” It seems impossible to treat the charge as anything less than an instruction to the jury that the acts connected with the preparation of the roll were fraudulent and that it was left to the jury simply to determine whether they were performed by the defendants, or whether if performed by one of the defendants, the others were responsible therefor under the law of conspiracy.

The claim that the learned, judge intended simply to charge that by reason of the facts disclosed the judgment was void for want of jurisdiction, is wholly unwarranted. It attributes to the learned judge a want of precision in the use of language which has'no justification. It is plain that he intended (what he did in express terms) to brand the acts referred to as fraudulent devices resorted to to obtain the decree of divorce, and that when taking the roll in his hands he declared to the jury that it was the record of a fraudulent divorce, he intended to characterize the acts which led to the decree and by reason of which the judgment was procured as fraudulent. In this we think the judge invaded the proper province of the jury. The character of the acts done, the design with which they were done, and whether fraudulent or not, were questions for the jury.

The defendant Meeks and Wright, the attorney, both denied any fraudulent intent. It could not be ruled as matter of law that what they did were fraudulent devices to procure the decree. It was for the jury to say whether those acts were blunders or frauds. The question at issue was whether the acts were done in pursuance of a fraudulent conspiracy to wrong the plaintiff in the action, or to impose upon and deceive the court into granting the judgment. Whether the procedure was authorized by law or the practice of the court was proper and important to be considered by the jury upon the. question of criminal intent, but however irregular or unauthorized the proceedings were, the inference of intent to be drawn therefrom was one of fact, and not of law. The objection to the charge to which we have adverted was not, we think, obviated because here and there in the course of his protracted charge are to be found expressions in which the learned judge seemed to qualify the expressions referred to. It is a rule founded upon good sense and the most obvious propriety, that in construing a charge either in a civil or criminal case the whole charge is to be considered together, and that a judgment will not be reversed for an erroneous instruction which was corrected by the judge where it appears with reasonable certainty that the jury were not misled. The rule is adopted in the interest of substantial justice. On the one hand, the court will not fasten upon an isolated clause in the charge which may seem to be erroneous, as a ground for reversing a judgment, where the charge as \ whole states the true rule of law and it can be seen that no injury resulted from the alleged error; so on the other hand, where the whole drift of a charge on a particular question is erroneous, the error will not be cured because expressions may be found in the charge which standing alone would free it from the objections urged.

The learned judge in his main charge made no reference to the question of criminal intent as an element of the crime of conspiracy. It would seem that he was of opinion that the law presumed a criminal intent if the acts done were unlawful. We think valid exceptions were also taken to the instructions upon this subject and to rulings made subsequent to the main charge. The record shows that one of the counsel for the defendants, after the main charge had been concluded, said to the court: “You do not mention the presumption of innocence.” The court, after instructing the jury upon the point to which its attention had been called, then said: “ I ought to say, not as a supplement to the proposition, but as an independent proposition, that ignorance on the part of the defendants, or any of them, of the meaning of this statute (Conspiracy statute), cannot be a shield to them if you believe they have committed the acts. If you believe beyond a doubt that they have committed the acts which constitute the offense as I have defined it to you, then they are guilty." On exception being taken to this instruction, the court said: “I refer to that because' you will recollect that each of these defendants, when put upon the stand, were asked if they had conspired, if they had perverted the law, or ■ perverted the administration of justice, and William I. Flack at one time said he did not know what that meant. Of course, gentlemen, this is of no consequence. The question is whether they have done the acts which bring the case within the language of the statute, the perversion of justice or of the due administration of the law.” The court in these instructions disregarded the fundamental rule that a criminal intention must accompany the act in order to constitute crime, and that the act, while it may be the basis for the inference of a criminal intention by the jury, and is frequently irrefragable evidence of such intent, if unaccompanied by such criminal intent is not crime. It is claimed that the error in the instructions mentioned was corrected by what subsequently occurred. Immediately following these instructions the following colloquy occurred between the judge and counsel: “ Mr. Russell: I ask your honor to add to that, that although they have done the acts, unless they did them with a criminal intent they cannot be convicted. The court: Of course. Mr. Russell: The criminal intent is not necessarily to be inferred from the doing of the act The court: It is for the jury to say whether any other consideration can be given to the guilty act than that. Mr. Russell: I will except to that language. The court: I will charge in the language you have requested. Mr. Russell: That, although the defendants may have committed the acts alleged, they cannot be convicted of a criminal conspiracy unless they did the acts with a criminal intent The Court: Yes. Mr. Fellows: The jury may find the intent from the act itself if they so choose. The Court: Yes; if a man commits larceny he may say he did not intend to, but if the act indicates a guilty intent, of course that is the end of it.”

Assuming that if the discussion upon the point of criminal intent had been closed at this point, it would have corrected the error in the previous charge, it was not so closed. The jury, after they had retired, returned to the court and requested of the court a definition of criminal intent. The court replied that “a criminal intent is the doing of an unlawful act, intending to do it.” After further colloquy between the court and the jurors and counsel, the-court, referring to what constitutes crime, said: “If he (a defendant) has no moral sense, or is ignorant of the law, he is still guilty. If he does the unlawful act, and intends to do such act, and is a sane man,” and to this an exception was taken. This instruction made the question of guilt to depend solely upon the intentionally doing of an unlawful act. It was a substantial reaffirmance by the judge of the doctrine of the charge that although there was no intention on the part of the defendants to do anything wrong, if the acts done werd within the conspiracy act, and the intention was to do these acts, the defendants were guilty. For reasons hereinbefore stated this instruction was erroneous. It was given at a critical period of the trial, and if by any close criticism the language of the judge might be deprived of its apparent meaning, it is impossible to say that the jury were not misled thereby.

Assuming that the jury should find that the defendant James A. Flack instituted the divorce suit without actual authority from Mrs. Flack, nevertheless the jury had a right in passing upon the question of criminal intent to consider whether he supposed that her consent to a bill of separation justified a proceeding for an absolute divorce. So also in respect to the misnaming of the adulteress in the complaint and in the depositions prepared for the witnesses, and in inducing them to swear to them, the jury might consider whether the real purpose was “ a covering for the boy’s sake," without any criminal design. They had a right to consider also whether the acts of Meeks and Wright in making up a new judgment-roll and procuring the judge to grant the decree were fraudulent acts or were performed, as they testified, without any fraudulent purpose, however unjustifiable or unauthorized those acts may have been.

For the reasons stated we think the defendants are entitled to a reversal of the judgment of conviction.

Judgment reversed and new trial granted.

All concur, except Earl and Gray, JJ., dissenting.


author: Finch, J.

text:
    Henry W. Gray, Resp’t, v. George T. Green, App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

    Limitation—Partnership—Accounting—Action by liquidating partner.
    While the bare fact of a dissolution may not at once give a right to an accounting where a partner has been.appointed liquidator, yet where the parties were partners in 1870, the dissolution occurred in 1871, plaintiff became by agreement the liquidating partner and claimed that defendant had largely overdrawn his account, but did not begin his action for accounting until more than ten years after, the right of the liquidating partner to collect the overdraft accrued at once upon the dissolution and the action would be barred by the statute of limitations.
    Appeal from judgment of the supreme court, general term, iirst department,-affirming judgment for plaintiff entered on report of referee.

      0. 0. Suydam, for app’lt; Chas. C. Shelton, for resp’t

      Reversing 25 N. Y. State Rep., 622.

   Finch, J.

The only question presented for our consideration is whether the plaintiff’s cause of action was barred by the statute ■of limitations. That the parties litigant "Were partners in 1870, that a dissolution by mutual consent occurred in the next year, and that plaintiff became by agreement the liquidating partner, are the fundamental facts about which there is no dispute. More than ten years after that dissolution this action was brought by the liquidating partner for an accounting and payment of such balance as should be ascertained. The complaint alleges that upon the dissolution the defendant had become possessed of and retained assets of the partnership exceeding in amount his partner-ship interest, and that such excess, to be ascertained on an accounting, was due and payable to the plaintiff. Of course, if this cause of action accrued immediately upon the dissolution, if it could have been asserted on the next day effectively, and could not then have been defeated as premature and without adequate foundation, the postponement beyond ten years was fatal, and the judgment -obtained and affirmed by the general term should be reversed.

The right to an accounting and settlement may accrue upon the dissolution, and does accrue at least where some material necessity exists and no other fact or circumstance bars or postpones the remedy. That debts are outstanding and unpaid, and assets unconverted and unrealized, is no necessary difficulty, for a receiver may be appointed to wind up the business, and the rights of the parties as against each other be accurately adjusted: so perfectly that at the close of the receiver’s duties what each party is to receive of a surplus, or ought to contribute to a deficiency, will remain merely a matter of arithmetical computation.

Such a judgment, too, may provide for contingencies and emergencies, and permit future applications accordingly if required by the turn of events. It is not denied by the general term that such--an action may be brought immediately upon the dissolution where neither party is made liquidator by agreement, where their rights clash from an essential difference, and a receiver is asked for to serve in that capacity; but it is claimed that a different rule applies where one of the partners is .appointed by the rest to wind ■ up the business, and so no receiver is needed.

Undoubtedly there are cases of that character and governed by that rule, and many of them are cited by the appellant, and in the opinion of the general term. But they stand upon a ground which has no relation to the present case. They were actions brought against the liquidator to review his conduct and settle'his accounts. He became, by force of his appointment, a sole trustee for the partners, and held the assets exclusively, but subject to a due performance of his trust. In that capacity he was entitled to a reasonable time within which to perform the work to which he had been assigned; and for partners voluntarily to make him a trustee on one day, and call lnm to account as such on the next, for acts which he had been allowed no opportunity to perform or omissions which were inevitable and blameless, would be almost absurd. And, therefore, when an action is brought against a liquidator as such for an accounting, the plaintiff must wait a reasonable time before his right of action can at all accrue. So, also, where the suit is against the estate of a deceased partner for contribution, since the very nature of the remedy invoked implies, that the business has been so far settled as to demonstrate the need of contribution, and indicate the amount required. But these reasons and necessities have no proper application to a case in which the action is brought by the liquidating partner and not, against him; and where, not his account as trustee merely is to be settled, but the accounts of all the partners with each other. That was the situation here. The liquidator, by the agreement, became the authorized agent of the partnership to wind up the business. As such agent it was his duty to collect and realize the assets of the firm, and turn them into money. One of the partners was debtor to the partnership.

He had largely overdrawn his account, and very much beyond what his interest in the partnership profits could possibly repay. The duty of the liquidator is to collect that asset. He owes that duty to the creditors as well as to himself, and is not bound to' wait until, perhaps, the defaulting partner becomes bankrupt, but may proceed at once and maintain an action for the settlement of the partnership affairs in which the overdraft may be established and realized. Why should he not ? His right of action is not. based upon his own conduct subsequent to the dissolution, but. upon his right as partner and liquidator, and that right exists at the moment of dissolution, and is in no sense the mere product and result of after occurring events.

If we examine the issues framed by the pleadings more narrowly, I think we shall see that the cause of action accrued at the date of the dissolution, even if it should be held that no right to an accounting flows from that fact alone. There were assets, enough to pay the debts. The whole capital was nearly exhausted in that process, and was almost entirely contributed by the plaintiff. He claimed that a large amount had been overdrawn by the defendant which should be restored to the firm and to the depleted capital. That claim the defendant denied and insisted that a settlement was made at the date of the dissolution. What had uncollected or unpaid debts to do with this radical disagreement which existed immediately upon the dissolution ? On what principle can it be said that plaintiff’s cause of action did not at once accrue ? Suppose that he had sued at that date, and served the identical complaint before us, and the defendant had demurred upon the ground that it contained no cause of action, can we imagine ourselves sustaining that demurrer, The parties disagreed; that disagreement was vital and substantial; and either party had. a right to bring it at once to a determination.

The doctrine of the general term rests, as I understand it, solely upon the force and effect of the voluntary agreement which conferred the power and duty of liquidation upon the plaintiff. The court say that such agreement places in his hands the unfinished business of the partnership and its management and adjustment, and if an action had at once been brought the agreement would have been a defense. But I think the result asserted flows from a misunderstanding of the true scope and range of the agreement. Did anyone ever suppose that it remitted to the judgment and decision of the liquidator the rights of the partners as between themselves, or that it put a stay of proceedings upon an inquiry as to those rights ? They are outside of the agreement; they do not depend upon it; and, as rights, are wholly unaffected by it. The agreement relates to the assets, their collection and disbursement, . and the chosen liquidator may be entitled to a reasonable time for the performance of that duty before being called to account for the manner of its performance or the consequences of its nonpterformance, but that fact cannot affect the right of either partner to have an accounting between themselves where they disagree ■about their respective rights in the assets whether collected or uncollected, and especially where one stands debtor to the partnership and yet denies the debt.

I have examined all the cases which were cited in the opinion of the general term. Among them I have found but one which upholds the doctrine asserted. The others wefie cases of contribution, or actions against the liquidating partner, or, as in Virginia, dependent upon the peculiar words of statutes, or were disposed of upon grounds immaterial to the present inquiiy. But the case of Hammond v. Hammond, 20 Geo., 556, does appear to go -even beyond the doctrine of the general term, and was a case where, as here, the liquidating partner sued. The court held that no accounting could be had by either partner as against the other so long as any business of the partnership remained to be done, and put the doctrine upon the ground of agency, arguing that each partner was agent for the other, and the agency could not be settled until it ended. But the partners had relative rights, one against the other, founded upon the partnership and what happened prior to the dissolution and before the new and much narrower agency flowing from that' event even came into existence, and we think it would be a very dangerous and disastrous doctrine to hold that those rights must be left in jeopardy and at odds, and equity be powerless to settle them until, the last doubtful debt should be collected or abandoned.

While, therefore, we do not say at present that the bare fact of a dissolution at once gives a right to an accounting where one or more partners have been appointed liquidators, we do say that the ■additional facts alleged in this complaint would have enabled the plaintiff to have maintained his present action at once upon the dissolution. Granting that the defendant’s interest in profits could equitably reduce his overdraft, and the amount of profits and so his interest in them would be affected by the total of debts and the soundness of assets, and yet his overdraft remained, due instanter to the partnership, which he was liable at once to pay ; which he ought at once to pay; which the liquidating partner as such was immediately to realize and receive. The facts show that he needed it even for the purposes of the trust The assets proved insufficient to pay the debts without realizing the sum due from the defendant. ' The plaintiff’s counsel admit that fact, and assert it as a reason for delay in collections which could only be made by incurring expenses. The right of the liquidating partner to an accounting with a view to demonstrate and collect the overdraft accrued, therefore, at once upon the dissolution.

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

All concur.


text:
    William L. Conyngham, App’lt, v. John Duffy, Resp’t.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Limitation— Supplementary pbocbedings1.
    The limitation applicable to an order for the examination of a judgment debtor in supplementary proceedings is ten years from the return of an execution unsatisfied, even though the right accrued before the Code of Civil Procedure was enacted which changed the time from twenty years to ten.
    2. Same.
    The old limitation was preserved only where it was invoked before the expiration of two.years from the effectual enactment of the new Code.
    Appeal from judgment and order of the supreme court, general term, second department, reversing order of special term.

      Abbott Brothers, for app’lt; S. S. Marshall, for resp’t.

       Affirming 52 Hun, 615, mem.

   Finch, J.

It has been determined by the court below that the limitation applicable to an order for the examination of a judgment debtor in supplementary proceedings is ten years from the. return of an execution unsatisfied, even though the right accrued before the Code of Civil Procedure was enacted. Under the Code of Procedure the limitation was twenty years, § 292, and while that was in force, and in October, 1875, ‘judgment was obtained against the defendant and execution issued, which was in due season returned unsatisfied. In July, 1888, an order was granted by the county judge of Westchester county for the examination of the judgment debtor, more than twelve years having elapsed since the return of the execution unsatisfied. A motion to vacate' the order was made and denied by the county judge, whose order' was reversed on appeal by the general term, and from that decision the creditor appeals to this court.

Since the Code of Civil Procedure has changed the limitation to ten years, and was in force when the order was granted, § 2435, it became the only existing limitation and the one to be observed,, unless the older one of twenty years, under which the right accrued, has been in some manner preserved. Acker v. Acker, 81 N. Y., 143. That is the creditor’s contention and he relies upon § 3352 of the present Code. That provides that none of its provisions, other than those in chap. 4, shall render ineffectual any right or limitation lawfully accrued at an earlier period. This section preserves to the creditor the twenty years’ limitation, unless the new limitation is contained in or given by the terms of chap. 4, and that becomes the final question.

The appellant contends that chapter fourth prescribes no limitation for the granting of such an order, and has nothing to with supplementary proceedings; that their limitation is fixed by chapter 17, and that depending upon the terms of that chapter, they fall within the protection of § 3352. It has been said in the supreme court that chapter 4 has no application to supplementary proceedings, Bean v. Tonnelle, 24 Hun, 354, and our attention is called to the explicit declaration of § 414 of that chapter making its provisions inapplicable to “a case where a different limitation is specially prescribed by law.”

But I am unable to see that a different limitation is prescribed. By § 388 of chapter 4, ten years is fixed as the limitation in all cases not specially prescribed in the first two titles, and while the chapter speaks of actions and the time at which the causes of action accrue, the latter sections, 414, 415, include special proceedings and the accruing of rights to institute the same. And hence it follows that by chapter four a limitation for the institution of summary proceedings is fixed at ten years from the accruing of the right.

Section 2435, in a later chapter, fixes the same limitation and not a “ different ” one, and since it is not different, it fails to exclude supplementary proceedings from the operation of chapter four, and so the further provision of § 414 applies, as I think was the legislative intention, which preserves the old limitation only where it is invoked before the expiration of two years from the effectual enactment of the new Code. This order, therefore, not made until after the expiration of such two years, lost the benefit of the repealed limitation, and was governed by the new one of ten years.

The order of the general term should be affirmed, with costs.

All concur.


author: Peckham, J.

text:
    James R. Purdy, Resp’t, v. The Rome, Watertown & Ogdensburgh R. R. Co., App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

    Railroad—Negligence—Release from damages by employee—Consideration for—When no bar.
    Where plaintiff had been in the employment of defendant for a number of years as baggageman on a passenger train, and in obedience to a letter left his train in the depot and went into the office, saying to the ass'stant superintendent: “I came up to sign that paper," (which was a general release of defendant from all liability to plaintiff for any negligence), but did not read it and after signing it immediately went back to his train, Held, that there was no consideration for the execution of the paper by plaintiff, and the paper was void and no bar to a subsequent action by him for injuries received through such negligence.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment of circuit entered upon verdict of jury in favor of plaintiff, and order denying new trial on the minutes.

      Edmund B. Wynn, for app’lt; George S. Kloclc, for resp’t.

       Affirming 23 N. Y. State Rep., 469.

   Peckham, J.

After a careful consideration of all the evidence in this case we are brought to the conclusion that there was sufficient to go to the jury upon the two questions of the negligence of the defendant and the freedom of the plaintiff from any contributory negligence.

There is one other point made by the defendant which arises upon the so-called release put in evidence by it, and in which the plaintiff agrees and covenants that the company shall in no case be liable for any damage to the person or property of the plaintiff by reason of its own negligence, or that of defendant’s agents or servants.

Some question was made on the trial, and by the evidence of plaintiff, as to whether the release when he signed it was filled up, and thereupon became a perfect instrument duly executed in form and substance. It is now claimed that the defendant did not ask, in proper form and time, to go to the jury upon that question, but waived it by its motion for nonsuit, and hence it cannot now be heard to insist that it was for the jury to pass upon as a fact.

We think, however, that if such a question were material, there was a sufficient request to have it submitted to the jury, and if there were error in the decision the exception was valid.

In deciding that the release was no bar, the court assumed that it had been formally executed as a complete instrument, and hence took no account of the plaintiff’s evidence on the subject. It is proper for us to make the same assumption, and if we then find the release was no bar to the maintenance of the action, the question of fact upon which defendant asked to go to the jury becomes of no moment.

The plaintiff had been in the employment of the defendant for a number of years prior to the execution of the paper. At that particular time he was engaged in performing the duties of a baggageman on a passenger train. It does not appear that he was when first employed engaged for any particular time, nor for any particular service. It was a general employment, and he was subject to the orders of the company. He was working for it as a baggageman in 1879, and continued as such up to and after the execution of the paper in August, 1881. The assistant superintendent of the defendant (who was the man that procured the execution of the paper) said, “ there was no compulsion about signing the contract, nor any new consideration for it. He simply signed the contract and the defendant kept on employing the plaintiff as a baggageman.” In other words, continued the already existing employment. The plaintiff says he went up to the office of the superintendent in Watertown and left Ms train in the depot waiting for his return. He was gone but a few moments, and went to the office in obedience to a letter he had received, and when he went into the office he said to the assistant superintendent: “I came up to sign that paper.”

The plaintiff says he did not read it, but signed it at once and went back to his train. The paper reads as follows: “ Whereas the Borne, Watertown & Ogdensburgh Bailroad Company have employed J. B.-Purdy in the capacity of general servant at a stipulated rate for his services:

“ How therefore, in consideration of such employment and the compensation agreed to be paid therefor, the said J. B. Purdy hereby covenants and agrees that in no case shall the said railroad company be liable to the said J. B. Purdy for any damage or injury to the person or property of the said J. B. Purdy by reason of the negligence of the said railroad company, its agents, servants or employes, and that the said J. B. Purdy accepts such employment with full knowledge and notice of all the risks involved therein.”

Upon this evidence we think it clear that there was no consideration for the execution of the paper by the plaintiff. He was already in the defendant’s employment; no new employment was tendered to or accepted by him, and there was no promise that the employment he was already engaged in should continue after the execution of the paper for one moment of time nor was its execution made a condition of the continued employment of the plaintiff.

It constituted a simple gratuity on the part of the plaintiff to the defendant, relieving it from a liability or responsibility which then existed in favor of plaintiff, and in obtaining which the defendant surrendered and promised nothing. , The plaintiff was in precisely the same position he was prior to its execution, excepting he had given up to the defendant all claim upon it which he otherwise might have by law, and he had received not one particle of consideration for such surrender of his legal rights.

We think the paper was void for lack of consideration.

In thus deciding we do not intimate that if the defendant had given some kind of a consideration for the paper, it would have been valid.

It might even then be urged that public policy forbids the exaction of such a contract from its employees by railroad and other corporations, and upon that question we desire to express no opinion at the present time.

The judgment is right, and should be affirmed, with costs.

All concur, except Gray, J., not voting.