text:
    The People, Resp’ts, v. James Sands, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Criminal law—What evidence necessary to support conviction.
    For the conviction of a person accused of the commission of a crime the law requires such evidence as to convince the jury beyond a reasonable doubt that the crime charged in the indictment has been committed, and that the defendant was the person guilty of the offense, or one of them
    Appeal from a judgment of the court of general sessions convicting the defendant of the crime of larceny in the second degree, and also from an order denying a motion for a new trial.

      George H. Curtis, for app’lt; Bandolph B. Martine, district attorney.
   Daniels, J.

The defendant was charged in the indictment with having feloniously taken from the person of the complaining witness a watch, chain and locket, worth between $200 and $250. He was a passenger on a Third avenue car from Thirty-eighth street to Grand street. Just before he reached the latter street, he testified that he looked at his watch to ascertain the time, and that the Grand street car going westerly was laden with passengers, having a number of persons on its rear platform. That he passed the ladies who were with him up the steps, and took his own station at the lower end of the rear platform. He rode in this position until he had passed about two blocks west of Broadway, when he was able to and did go inside the car, and take his seat by the ladies he was accompanying. He then desired to ascertain the time in order to know whether they would reach the station of the Pennsylvania Railroad before that assigned for the departure of the train, and discovered that his watch, chain and locket had been stolen.

From this evidence, it is quite clear that the jury had sufficient proof before them to support the- conclusion that the watch, chain and locket had been taken from him while he stood upon the rear platform of the car. Indeed, no other conclusion would be consistent with the evidence he gave, and which appeared to be entirely rehable. The necessary point for the determination of the case therefore is, whether the defendant was proven to have been implicated in the theft.

This witness stated that there were 'three persons standing on the rear platform, near the position taken by him, who pretty well filled up the space. One of these persons, who was the larger of the three, stood with his back against the witness, while the two others, he testified, were facing him, one on the same side of the platform, another to his left. His recollection was that a man left the car, and while doing so he was pressed very hard by the larger of the three men. That the three were pushed up against him apparently to give room to the man behind them to get off, and his testimony was: At the same time the man whose back was against me, pressed back against me and squeezed me severely, so that I was somewhat in danger of going over the rail. When the passenger had left the car, it was proceeding at the usual rate of a horse car, these three persons, including Sands and the man whose back was against me, and the other man that was facing me, got off the car while it was moving, substantially at the same time, as near as three men could get off a car while it was moving. While I was standing there, only these three men were near where they could touch my body. I observed the three men crowd up around me. They were all three against me, as I understood it.” He testified further in answer to the question : “You recollecting stating now in so far as you saw, Sands was never in a position where he could put his hand in your pocket.” (Answer.) “ I mean to say that that is not the fact; I mean to say that when they crowded against me, he was in such a position, but when he wqs standing at the door he could no, have done it.” The witness"was positive in his testimony that Sands was one of these three persons. He added, upon that subject: ‘"If I had ttie slightest doubt m the world, I would not identify him. I would not testify. I have no doubt.” And he added further that, “ It was no longer than half a minute after the men left the car in this manner, that he discovered the watch to have been stolen.” The evidence was in no respect deficient in the w¡ay of presenting a case for the consideration for the jury.

The strong probability indicated by it is, that the watch, chain and locket were stolen by oné of these three persons, and that the other two were acting in concert with him at the time. Their position upon the platform of the car, the fact that they closed upon the complaining witness as the passenger was leaving the car, and the large man was pressing him against the rail, and the three left the car together when the watch had been taken, would leave very little room for doubt that the watch was stolen at the time the man was leaving the car, and when it was taken, these three person having accomplished their object, left the car together.

It would be difficult to make out a stronger case by circumstances than that which was presented by those to which the witness testified in the course of his examination.

For offenses of this description are most expertly committed. They are rarely detected or proved by positive evidence, but are dependent upon circumstances to establish and present them. There was no good reason for supposing that the witness had overstated any of the facts or the condition of the convictions resting upon his mind produced by them. His evidence was carefully given and the critical cross-examination pursued alternately by the different counsel for the defendant failed to weaken either of material statements made by him. The case is not affected by anything that has been said in Ormsby v. The People, 53 N. Y., 472, nor either of the other authorities which have been cited in the brief of the defendant’s counsel. What was essential in this as in all other criminal cases is, that the evidence should be such as to produce in the minds of the jurors a conviction beyond a reasonable doubt that the crime charged in the indictment had been committed, and that the accused was the person, or one of the persons by whose act it wás committed.

That is all that the law either does or reasonably can exact. If it required more, immunity would necessarily be given to crime, particularly to those of this discription. They are skillfully as well as covertly committed and with one or more confederates. In submitting the case to the jury it was very carefully laid before them under the evidence for their consideration and the observance of all legal rules applicable to it, was enjoined upon their consideration as a solemn duty.

After hearing the testimony the jury concluded the defendant to be guilty. And it must be added that a reading of the testimony leaves no substantial reason for dissenting from their conclusion. No other question has been raised in the case than the sufficiency of the testimony to submit the case to the jury and sustain a verdict of guilty.

That it was sufficient not only appears from the entire-scope and direction of the evidence, but from the pointed statements of the witness which have already been extracted, from his evidence.

Both the judgment and the order should be affirmed.

Van Brunt, Oh. J., and Brady J , concur


source: Caselaw Access Project

author: Brady, J.

license: Public Domain

text:
    Richard S. Roberts et at., Appl’ts, v Augustus Brandies and ano., Resp’ts.

      (Supreme Court, General Term, First Department

      Filed May 13, 1887)

    Accobd and satisfaction—What will be sufficient.
    Although the payment of a lesser cannot discharge a greater sum, yet the same amount in a new form, as a note or a chattel, will he sufficient for the purpose of discharging the debt, on the principle of accord and satisfaction; so also a part payment, together with even a slight new consideration, will be regarded as sufficient.
    Appeau from judgment on verdict of jury in favor of plaintiffs.

      G. S. P. Stillman, for app’lts; Thornton, Earle & Kiendl, for resp’ts.
   Brady, J.

The plaintiffs recovered a judgment against the defendants in the state of New Jersey for $578.72, which was still unpaid in the year 1882, and nearly ten years interest had accrued. In that year one Morehouse was authorized by the plaintiffs to settle and collect the judgment. In pursuance of the authority thus reposed in him he accepted the defendants $260 in cash and three promissory notes of $100 each, at six, twelve and eighteen months, which were sent to and received by the plaintiffs. On receipt of the money and the notes, Morehouse gave to the defendant a receipt to Brandies & Co. for notes and the sum of money paid,, in which it was stated that when the uotes were paid they were to be in full satisfaction of the judgment recovered by the plaintiffs against Brandies and Shaffer, and that such judgment would be canceled of record. The three notes given by defendant were paid, and it appears that after the payment of these notes the defendant Brandies applied for the satisfaction piece of the judgment, which was not at first refused, but subsequently refused upon the ground, it would seem that Morehouse had no authority to make the compromise which he had, or accept a smaller sum than the judgment.

There appears to be but one exception in the case presented for our consideration, and that was taken to proof of the transaction between the defendant Brandies and the plaintiff’s attorney Morehouse, upon the ground that no agreement could be made for the vacating or discharging the judgment without showing that it was paid in full. The authority of Morehouse was denied by the plaintiffs, but this question was submitted to the jury upon the evidence in relation to it, which was conflicting, and decided against the plaintiffs, as the verdict indicates. The amount of the judgment, with the interest added, being in excess of the amount accepted in full satisfaction of the debt, the question really presented in this case is whether that payment thus made was a discharge of the debt.

The proposition that the payment of a lesser sum cannot he a satisfaction for a greater one seems to have originated in Pinnell's Case (3 Ca. Reps., 238), wherein it was so resolved by the whole court, although it was said that the giving of a horse, hawk or robe, etc., in payment was a good accord and satisfaction. This adjudication was followed by Cumber v. Wayne, 1 Strange, 426, and a series of cases, all resting upon the doctrine of that case. It has since been questioned, and indeed it may be said, assailed, .and very slight reasons for departing from it accepted, as the history of the doctrine would demonstrate, if time were taken to follow the various adjudications bearing upon the subject. In the court of Queens Bench, however, in Foakes v. Beer, decided in the Queens Bench division in 1883, it was said that the decision in Cumber v. Wayne depended upon a mere technicality, and further, that judges had long tried to escape from the doctrine, which was a reproach to English law, namely, that a creditor may not make a valid agreement to take , in payment a smaller sum than the amount of his debt. Upon appeal, however, the conclusions at which the learned judge arrived were reversed, and it was held that the plaintiff’s right was the same as if no agreement of compromise had ever existed, and this judgment, on appeal to the house of lords, was affirmed. See Foakes v. Beer, 9 App. Cases, 605. The cases of Pinnell and Cumber against Wayne were referred to, and although the .house of lords considered themselves bound by the rule established in the Pinnell Case and enforced it, nevertheless it is apparent that it did not meet with their approval, and, as suggested in the opinions, slight reasons were regarded as sufficient for a departure from its rigor when the opportunity presented itself. The same spirit has prevailed in this state, where it has been held that although the payment of a lesser can not discharge a greater sum, yet the same amount could in a new form, such, for example, as an endorsed" note, which is paid, or a chattel which is accepted in payment, be sufficient for the purpose of discharging the debt, as either would be good as an accord and satisfaction. In this case there was a new consideration. In Douglass v. White (3 Barb. Ch., 624), it was held that-if the defendant, in addition toan agreement to pay a part of the debt, gives the plaintiff anything which in judgment of law can be considered a benefit and the creditor accepts it as a satisfaction of the whole liability, it is a good accord and satisfaction.

In Boyd and Sedan v. Hitchcok (20 Johns., 76), it appears that three indorsed promissory notes were given by the debtor for a part of his debt and accepted in satisfaction of the whole debt, and the court held that there was a beneficial interest acquired and a valuable consideration received by the plaintiff, which created a valid discharge on the principle of accord and satisfaction. To the same effect are Kellogg v. Richards (14 Wend., 116), Frisbie v. Larned (21 Wend., 450), Howard v. Norton (65 Barb., 167). See, also, Pardee v. Wood, 8 Hun, 584. In this case.it appears that when efforts were first made by Morthouse to collect the judgment, the defendant Brandies with whom the entire transaction was conducted and consummated, had no means and was working on pay, but the negotiations nevertheless resulted in the giving of the money paid and the notes, the defendant Brandies stating that he thought he could borrow the money. As it has been observed, the notes which were given in satisfaction of the judgment were signed: “A. Brandies & Co,” and which appears to be a different firm from that against which the judgment was obtained.

This circumstance brings the compromise within the principle cited and particularly that of Boyd and Sedan v. Hitchcock (supra). It is said in these adjudications that very slight, new considerations are regarded as sufficient to overcome the rule established by the Case of Pin nell, and it is for this reason that the .acceptance of a note-indorsed by a third party or any new liability given has been regarded as sufficient to accomplish that object. There is another element which affects the question and that is-that the payment made was in excess of the judgment, aside from the costs and the interest, and it has been held that interest being recoverable as damages for non-payment-of principal, the receipt of the principal due to the creditor is a bar to any claim for interest thereon. Cutter v. Cary, 92 N. Y., 166; Jacob v. Emmett, 11 Paige, 142, and Hamilton v. Van Voorhees, 44 N. Y., 246.

For these reasons, we think the judgment should be affirmed, with costs.

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


author: Van Brunt, P. J.

text:
    Edward Van Orden, Resp’t, v. William D. Andrews, App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Evidence—Competency op.
    In an action brought to recover compensation for work alleged to have-been performed in accordance with the terms of a contract, it was claimed, that the terms of the agreement had not been complied with by the plaintiff. Certain leaks appeared in a sheathing which it was the part of the plaintiff to construct in such a manner as to be water-tight. These, it was claimed by him, were caused by the negligent acts of the defendant; and evidence was adduced proving that this particular variety of sheathing had in other circumstances proved effectual for the purposes which it was-here designed to fulfill. Held, that such evidence was properly admitted.
    Appeal from judgment entered upon a verdict and from an order denying motion for a new trial.

      Jesse Johnson, of counsel, for app’lts; W. T. 3. Williken, of counsel, for resp’t.
   Van Brunt, P. J.

The appellant bases his appeal upon the grounds that there is no evidence that the plaintiff had complied with his contract and that error was committed in the admission of evidence.

The plaintiff gave evidence tending to show that in the-month of October, 1884, the defendants were engaged in furnishing an additional water supply for the city of Brooklyn, and it became necessary to build a pumping house, which was to be located on swampy ground about five feet below the ordinary level of moisture.

Mr. Wundrain was an engineer in the department of city works in Brooklyn and had charge of the construction, of these works.

At the request of Mr. Wundrum, Mr. Van Orden, one of the plaintiffs, went to Springfield, Long Island, where said works were to be constructed, and met Mr. Wundrum and Mr. George H. Andrews, one of the defendants.

Mr. Andrews pointed out to Mr. Van Orden an excavation in a swamp which his men were then working upon, and said to him that they wanted to make that about a foot deeper than it was, and that they wanted to build a brick pump-house and engine-room there, and that they wanted him to put his water-proof material under the bottom of that excavation and bring it up on the sides after they had built the walls just the same as he had done on a job over in Hoboken for the Hamburg Packet Company, and asked what will it cost to do that ?

Mr. Van Orden said he would look over the situation"and send an estimate.

The parties then had some talk about the foundation and as to who should keep the water out while work was going on, in the course of which Mr. Andrews told Mr. Van Orden that Mr. Wundrum had charge of this for them and that whatever he did or said was to be the same as if he did it. Mr. Van Orden prepared an estimate and submitted it, and after considerable bargaining, an agreement was arrived at.

After the foundation- was done, the brick walls were started, and Mr. Van Orden saw them run a cross wall about-two-thirds of the way down, and he told Mr. Wundrum. that he did not know about those corners where the partition wall was going to cross, and that if he did not give a. straight line that he would have trouble—that he might have dampness. That if they wanted it tight they must run their wall straight on the outside, and they said that they could not do that, and held a sort of council of war amongst the masons, and one of them said he could fix the corner so that there would be no trouble, and they said that they would take all the risk of that. After the walls were up, the water-proofing was carried up four or five feet all around in absolute perfect order, and the job was finished about November twenty-ninth. '

About a week or ten days afterwards Mr. Van Orden went down to the pumping-house at the request of Mr. Andrews, and he showed him some places where he said the water-proofing had blistered from the walls, and Mr. Van Orden said that this was occasioned by the failure to fill up against the sheathing as Mr. Andrews had promised, to do.

Upon another part of the building it was found that the sheathing had been injured by workmen.

Repairs were made and the sheathing, by direction of Mr. Andrews, was carried up further than the original contract provided. Mr. Andrews called upon Mr. Van Orden about twenty-ninth of July, and said that they had a very good job there, but there was a small leak, which he thought he could fix easily. Mr. Van Orden went down, and after examination and. discussion with Mr. Andrews as to whether there was a leak, it was tested and found to leak.

Arrangements were made to dig around the building, and it was found that the filling put in by the defendants around the building, instead of being sand, was stones, brickbats and wood which had knocked holes in the water-proofing, and that the water-proofing had been torn off below the pipes. Repairs were made. Wundrum examined the work and pronounced it a good job.

Mr. Andrews again sent for Mr. Van Orden about a week or ten days after, and showed a small leak, which was found to have been caused by the water-proof being cut, which was repaired.

Mr. Van Orden then requested to have permission to re-examine the west wall, so as to be sure that that was all right, which Mr. Andrews refused to allow the plaintiff to do, and- the plaintiff left the job. The building was visited afterwards and found dry, although water on outside.

Workmen also were examined showing the quality of the work, and that the water-proofing was injured in many places by the carelessness of the defendant’s servants, and proof was offered to show, which was objected to) that this sheathing had been used in other places and found water tight.

The defendants offered evidence tending jo show that the sheathing was never tight, that it always leaked, and claimed that the evidence of the defendants’ witnesses as te their examination was worthless, because at the time of their examination the pumping machinery was in operation, which exhausted the water around the building and caused it to be dry.

The learned court charged the jury that it was the duty of Mr. Van Orden to make a water-tight flooring, and that before he was entitled to recover he must satisfy them that the work was skillfully performed and water-tight, and also that if they came to the conclusión that it was watertight and that it was not through any negligence or want of skill on the plaintiff’s part that it subsequently leaked, then the plaintiff was entitled to recover, but if they found that the work was not water-tight, then the plaintiff could not recover.

The learned court then charged the jury, at the request of plaintiff’s counsel, that if the contract was modified by an agreement that the plaintiff should not assume the risk of the extended wall, that to that extent he was released from the guarantee

This proposition was excepted to, and it is claimed that as there is no evidence that the water came in there, such a modification could not reheve the plaintiff.

The plaintiff gave evidence from which the jury could very well find that the sheathing was water-tight when properly applied.

They] also proved that the work was well done, and from the evidence the jury had a right to assume that if there was a leak that it did not arise from any imperfection of the plaintiff’s work.

The proof of the piaintiff tended to establish that the work after it was done was injured by the negligence of the defendant in not filling in around the sheathing properly, whereby the sheathing was injured.

The court submitted all these questions arising upon the conflicting testimony, and the jury found for the plaintiff, and this verdict we see no sufficient reasons to disturb.

The objection as to the working of the sheathing, when applied to other places, is not well taken.

The plaintiff, had a right to prove that the sheathing was water tight, had been proved to be so by repeated trials and that the material used was capable of making a watertight sheathing when properly applied.

The jury had the right to infer if this sheathing was proved to their satisfaction to be water-tight when properly applied, and if it was also proved to their satisfaction that it was properly applied, that the leaks came from the parts as to which the defendants, through Wundrum, agreed to take the risk, or through some place where the sheathing had been injured by the carelessness of the defendants’ servants, the plaintiff’s proofs tending to show that it was so injured in many places, which were repaired.

If there had been no evidence of this kind and no evidence as to the defendants taking the risk as to any part of the wall, it would certainly follow that the evidence that a leak existed would prove conclusively that the fault was the plaintiff’s. But the jury could find, from the evidence, that a leak did exist, and yet that it was not caused by the negligence of the plaintiff. The cases cited by the defendants’ counsel does not seem to conflict with this view.

The case of Fillo v. Jones (4 Keyes, 328), so strongly relied upon by the appellants’ counsel to sustain his exception, seems to be exactly in point as claimed, but sustains the ruling of the learned court below instead of showing it to be erroneous.

In that case, which was an action brought to recover damages alleged to have resulted from the spontaneous combustion of certain fireworks known as “signal lights,” kept by the defendant on the premises, evidence was admitted, under objection by the defendant, as to the circumstances attending two fires that occurred several years before, and the opinion of the witness was given that those fires were occasioned by the spontaneous combustion of fireworks, and the court held that the evidence was improperly admitted, being altogether foreign to the issues of the action, no effort being made to connect the events by showing that the fireworks of the defendant were similar to those that occasioned those fires.

An expert was also examined in that case and was permitted to testify that he had analyzed other signal lights, made two years before by the same manufacturer, and to give results; this was held error because no proof was given that the signal lights analyzed were composed of the same materials as those alleged to have caused the fire.

In the case at bar the proof is that the water-proof material used in other places was the same as that used in defendants’ building.

No error was, therefore, committed upon the trial, and judgment and order appealed from must be affirmed.

Brady and Daniels, JJ., concur.


text:
    Solomon Marx, Resp’t, v. Robert W. Tailer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Usury—Does not ■ necessarily give a creditor of a mortgagor a RIGHT TO SET ASIDE MORTGAGE AS FRAUDULENT.
    The fact of the usurious character of a loan to secure which a mortgage is executed, does not render the transaction fraudulent, and does not necessarily give a creditor the right to intervene to set aside the security.
    2 Conveyances made in fraud of creditor -may be set aside in one action.
    Conveyances made to different grantees, in pursuance of a design to defraud the creditors of the grantor, may be attacked by a judgment creditor in a single action, there being but one cause of action, although' affecting different individuals.
    3. Same—What causes of action improperly joined.
    The mere fact that certain conveyances made are deemed to have been in fraud of creditor of the grantors, and that they also executed a mortgage to secure a usurious loan, does not without further circumstances connecting the transactions render these causes of action proper to he joined in the same complaint.
    Appeal from interlocutory judgment overruling demurrer to complaint.

      E. B. Whitney, for appl’t; S. Untermeyer, for resp’t.
   Van Brunt, P. J.

The defendant, Tailer, demurred to the complaint herein upon the ground, amongst other things, of misjoinder of causes of action, the alleged cause or causes of action in which he was interested being joined with other causes of action which did not in any way affect said Tailer. The court below held that but one cause of action was set up in the complaint, although affecting various defendants, and overruled the demurrer, and from the judgment thereupon entered this appeal is taken.

Upon an inspection of the complaint it would appear that at least two causes of action are distinctly .set forth. Certain allegations in reference to certain property in Fiftieth street, in the city of New York, form the basis of •charges against the defendant, Tailer, of having entered into an agreement with Bernard Spaulding to loan certain sums of money in connection with the purchase of that property at usurious rates of interest. The allegations of the complaint state in detail the circumstances attending the purchase of the property, the scheme which was entered into in order to evade the usury law, and the manner in which the title was taken for that purpose, and judgment is claimed adjudging certain conveyances to the defendant, Tailer, to be held as security for money loaned and certain of the mortgages held by him described in the complaint to be usurious and void as against the plaintiff.

The complaint, after the completion of the allegations in respect to the property held by defendant Tailer, and in respect to the mortgages held by the defendant Tailer, goes on and alleges that subsequently the defendant Spaulding conveyed certain of his property to one Steen, and that the said Steen conveyed the same to the wife of said Spaulding, which conveyances were made without any valuable consideration and for the express purpose of defrauding his creditors; that mortgages were executed upon said property upon which but a small sum had been advanced by the mortgagee; that after the recovery, of the plaintiff’s judgment, the defendant Spaulding bought certain other property and caused the title to be taken in the name of his wife, the defendant, Rosanna Spaulding, with intent to defraud his creditors; and that said land was subsequently conveyed by Bernard Spaulding and his wife, Rosanna, to their son, James B. Spaulding, with the intent to defraud the creditors of said Spaulding, and that mortgages were executed upon the property in furtherance of the design to defraud the creditors of said Bernard Spaulding. The complaint also .contains an allegation that Rosanna Spaulding, after the conveyance of the title of the premises deeded to her, executed and delivered to the defendant Tailer an instrument in writing whereby she authorized Tailer fco collect the rents, issues and profits of the land and apply the same towards the mortgages which he held upon the same.. The complaint also alleges the conveyance of another piece of property from said Bernard Spaulding to Bosanna Spaulding in fraud of creditors, and asks judgment that-these various conveyances may be set aside, and that the mortgages may be declared void as against the plaintiffs, and that a receiver of the property be appointed.

It would appear that the cause of action alleged against the defendant Tailer in connection with the deeds and mortgages which he holds is entirely independent and distinct, ana proceeds upon an entirely different theory from the cause of action based upon the fraudulent disposition of property by the defendant Spaulding.

There is no allegation that the transactions with Tailer had any connection with or formed any part of the scheme by which Barnard Spaulding put some of his property in the hands of his wife and some in the hands of his son for the purpose of defrauding his creditors. The allegations against the defendant, Tailer, are simply that he made a usurious agreement with Spaulding in respect to the property in Fiftieth street, and prays judgment declaring the mortgages executed in pursuance of this agreement, usurious, and the conveyance given to secure the balance of the money to be a mortgage although absolute on its face.

It is needless upon the decision of this demurrer for us to decide whether the plaintiff can maintain an action to set aside these mortgages without tendering or offering to pay the amount which may be equitably due thereon. But it is clear from a careful reading of the complaint that the allegations affecting Tailer’s deed and mortgages have no relation whatever to the other conveyances of property made for the purpose of defrauding creditors. Merely because a man executes a mortgage for a usurious loan, does not make the transaction fraudulent, nor does it necessarily give the creditor the right to intervene to set aside the security. Buckingham v. Corning, 91 N. Y., 525; Munay v. Judson, 9 N. Y., 73.

It is undoubtedly true that conveyances made to different grantees in pursuance of a common- design to defraud the creditors of the grantor may be attacked by a judgment creditor in a single action, but there the cause of action upon which the whole fabric of the right of recovery rests in the fraudulent intent or scheme of the grantor to dispose of his property with intent to hinder, delay and defraud creditors, and although there may be divers conveyances in perfecting this scheme, still the whole foundation of the action is the scheme itself, and hence there is but one cause of action although it may affect different individuals differently. In the case at bar the cause of action alleged against the defendant, Tañer, proceeds upon the ground of usury and has no connection or relation to the cause of action set up against the other defendants which is based upon the scheme of Spaulding to so place his property that it cannot be reached by creditors. The only allegation affecting the good faith of Tailer is that he made a usurious agreement with Spaulding by which he received $122,000 of mortgages having ad • vanced but $110,000. It seems therefore, to be apparent that Tailer was not interested in any of the othep causes of action mentioned in the complaint and that his dealings with the defendant, Bernard Spaulding, had no relation whatever to the scheme of Spaulding to defraud his creditors although some of the property upon which he held mortgages was subsequently conveyed by Spaulding in pursuance of that scheme. If the plaintiffs have any standing in court to attack these mortgages as usurious it must be done by a separate action against the defendant, Tailer.

The judgment overruling the demurrer must be reversed, and the plaintiff allowed to amend on payment of the costs-of the demurrer and of the appeal.

Daniels. J. concurs.


text:
    David Kearr, Resp’t, v Gertrude Sossan, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Party wall—Agreement to pay por assignable.
    The defendant made an agreement with plaintiff’s assignor to pay half of the value of a certain party wall when she should use the same. Subsequently said assignor assigned all his right, title and interest in the said agreement and party wall to the plaintiff. In a suit to recover half of the value of said wall, held, that the plaintiff was entitled to recover for the reason that the compensation being personal to the grantor, between whom and the defendant the agreement in reference to the party wall was made, there was an assignment of the same and of all interest in the agreement as to the party wall and in the party wall itself. Han't v. Lyon, 90 N. Y. 663, and other cases distinguished.
    Appeal from judgment overruling demurrer to the complaint.

      O liarles E. Souther, for app’lt; Thomas J. Falls, for resp’t.
   Brady, J.

This action was brought to enforce a contract in reference to a party wall between one Vanderbilt, and the husband of the defendant on her behalf and in reference to her property as alleged in the complaint. The agreement, though set out in the record, does not seem to form a part of the complaint.

It is alleged, in order to charge the defendant who is not a party to the agreement, that at the time it was made her husband was her agent and managing her property, and made and signed the agreement with her consent and direction, and for her use and benefit. The wall which was provided for was erected by Vanderbilt, who subsequently conveyed the premises to the plaintiff, and assigned by the deed all his right, title and interest in the said agreement and party wall to the plaintiff.

It is insisted on behalf of the appellant, that the plaintiff by virtue of his deed acquired no right of action against her, as the covenant was one which did not run with the land, and she relies upon the case of Cole v. Hughes (54 N. Y., 446); Scott v. MacMillan (76 id., 141), and Hart v. Lyon (90 N. Y., 663), in all of which it seems to be decided that when the owner of land builds a party wall under an agreement under seal between him and the adjoining owner, providing that when the wall shall be used by him, he shall pay one-half of the value of the same, the right to compensation is personal to the former, and does not pass by the conveyance of his land. Assuming this to be the law, the plaintiff in this action is still entitled to recover, for the reason that the compensation being personal to the grantor, between whom and the defendant the agreement in reference to the party was made, there is an assignment of the same, and of all interest in the agreement as to the party wall and in the party wall itself.

That was sufficient upon the allegations of the complaint to carry any right of action which accrued to the former owner by reason of the use of the wall, which was constructed under the agreement 'mentioned.

There can be no question that such a claim as this is assignable, and therefore the rule resting upon the absence of privity of estate, and that the covenant does not run with the land, is not available. The allegations are sufficient to put the defendant to her answer on the proposition that the agreement was made with her assent, and by her directions, in her husband’s name, relating as it does to her separate estate.

For these reasons, we think the judgment appealed from must be affirmed.

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


author: Daniels, J.

text:
    Charles Guidet et al., App’lts, v The New York, Lake Erie and Western Railroad Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Fraudulent representation—PResumption oe innocence.
    In an action for damages for fraudulent representations concerning work to be performed under a contract between the plaintiffs and the defendant, Held, that where different inferences may be drawn from the same state of circumstances, it is the duty of the court to presume in favor of innocence rather than of intentional and guilty misconduct. Bryce v. Lorillwd Fire Ins. Go., 55 N. Y., 240, distinguished.

      Appeal from a judgment entered on the report of a referee.

      William Hildreth Field, for app’lts; W. W. Macfarland, resp’t.
   Daniels, J.

As the action was tried before the referee it was for damages for fraudulent representations concerning work to be performed under a contract between the plaintiffs and the defendant. That part of the work to which the action related consisted of piling on the northerly side of the ship basin at Harsimus Cove in Jersey City. A plan of the work and material was made out by the engineer of the defendant and inspected by the* plaintiffs before the contract was made. They bid for this work, and their bid having been accepted, a written contract was executed between . themselves and the defendant for its performance. They performed the work included in the contract and received from the defendant the compensation agreed to be paid for that performance, and the present action was brought to recover for the increased cost of the labor of putting down piling because of the failure of the plans exhibited to accurately describe the ground where the piling was to be and was in fact placed. The inaccuracy of description consisted in placing the ground line too near the water. It was in front of the third piles instead of, as it should have been, in front of the eleventh, and the labor and cost of putting down the piling was shown to have been enhanced by this circumstance to the extent of $3,587.05.

But no evidence was given on „he trial beyond this misdescription to prove that the water line of the work was intentionally misrepresented. How the plan came to be drawn and made in the condition in which it was, and containing this erroneous description, was not made to appear, but it was urged in favor of the plaintiffs that the defendant’s engineer was so completely chargeable with knowledge of the locality as to warrant the inference that it had been misdescribed for the fraudulent purpose of obtaining a lower bid or estimate of the work than would have been made if the water line had been accurately - resented and described.

But the facts as they were proven did noc support this inference, for the misdescription may very well have originated in a mistake on the part of the engineer, or through his indifference or carelessness in not observing or measuring the ground as he should have done before the plan itself was made and shown. The probability of the inaccuracy resulting from one of these sources is certainly, to say the least, as great as it is that it was caused by a wrongful intention to misrepresent the state of the ground where this work was to be performed. In fact, where different inferences may be drawn from the same state of circumstances, it is the duty of the court to presume- in favor of innocence, rather than of intentional and guilty misconduct. Stan v. Peck, 1 Hill, 270, 272; Sultz v. Hoagland, 85 N. Y., 465.

And this view impressed itself so strongly upon the mind of the learned referee before whom the trial took place as to lead him to conclude that the fraudulent presumption required to maintain an action of this description must be excluded from the case. It is not necessary to inquire whether the action might or might not have been maintained upon what transpired after the true description of the locality had been discovered, and for extra work under the contract, for the suit has not been brought upon that theory, but the complaint presented a cause of action for fraud, and that was stated to be its construction by the plaintiff’s counsel, in opening the case for trial before the referee, the evidence, although proving the representations made by the plan to have been untruthful, failed to establish the further fact that it was so known at the time to-the engineer, or any other agent or officer of the defendant, or that the untruthful representation was made with the intention of deceiving the plaintiffs. And without such evidence a right to recover in the action was not made out.

It has been urged for the purpose of maintaining the appeal that the plaintiff’s right to recover is sustained by what was decided in Bryce v. Lorrilard Fire Insurance Co. (55 N. Y., 240), but that case contains nothing supporting this position.

It might very well have authorized a rescission of the contract if the plaintiffs had elected to rescind it when they discovered that the locality where the piling was to be driven, had been untruthfully described. But they evidently elected not to avail themselves of that privilege.

They discovered as soon as the work was there undertaken, the existence of this misdiscription of the locality, and could then for that reason have refused to proceed until the inaccuracy had been corrected and removed. But they did not do that. On the contrary they proceeded with the performance of the contract, on the faith and expectation it is true, that justice would be done to them by the company on account of this difference. By proceeding in this man ner and completing the work, and receiving the contract compensation to be paid for it, they deprived themselves of the right to rescind the agreement. And by bringing their action for fraud they were not in a condition to avail themselves of the assurance given by the persons acting on behalf of the company, that justice for this difference, should be meted out to them.

The case appears to have been an unfortunate one for the plaintiffs, for the work probably involved a further expenditure of the amount claimed by them, beyond that which they intended to incur,'by reason of the inaccuracy of the plan. The case is one which naturally appeals strongly to a common sense of justice in favor of the plaintiffs, but as they elected to place it by their complaint and the opening statement made upon the trial, and the manner in which it was tried, upon a theory which the evidence does not sustain, the court has no power to relieve them.

The judgment should be affirmed.

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


text:
    People ex rel. Knickerbocker Fire Insurance Co., App’lts, v. Michael Coleman et al., Commissioners of Taxes.

      (Supreme Court, General Term, First Department,

      Filed May, 13, 1887)

    1. Taxes and assessments—Stock of corporations how valued.
    The capital stock of a corporation is to be assessed for the purposes of taxation, at its actual value, which may be other than its market value.
    2. Same—Valuation of land—Deduction for real estate.
    The commissioners, for the purpose of determining the actual value of the capital stock of the relator, appraised its real estate at §125,000 (a valuation not claimed to be in excess of its actual value), but in making the deduction for real estate, required bylaw, only $75,000, the assessed value, was deducted. Held, that this was not error.
    The relator is an insurance company, and its shares of stock, at par, amounted to §210,000. The highest rate at which such shares sold in the open market during 1884, was ninety; but the respondent assessed the same as of the actual value of 146, for the purposes of taxation.
    This value was arrived at by valuing the gross assets at $374,872, including $125,000, as the value of the real estate, and making deductions amounting to $67,125,46, leaving the net value of the appellant’s assets, or capital stock, to be $307,747, or $146 per share of $100.
    From this amount the respondents deducted, as required by law:
    K. S. stocks........................................§186,840
    The assessed value of the real estate................ 75,000
    And 10 per cent on the capital..................... 21,000
    $282,840
    Leaving a balance of $24,904, for which the relator was assessed.

      The relator sought to review this assessment by certiorari, and it was confirmed by the court, and the relator, duly appealed from such judgment of confirmation.

      8. B. Brownell, for counsel of relator and app’lt; George S. Golemam, of counsel for respondent.
   Van Brunt, P. J.

It is apparent that the only question which was presented to thé court below was as to the right of the respondents to value for the purposes of taxation the capital stock of the relators at other than its market value.

The case of the People ex rel. v. Asten (100 N. Y., 597), and the cases there cited seems to settle this question, and it is not open for discussion.

The capital stock of a corporation is to be assessed at its actual value, the court say, and the commissioners of taxes act judicially in fixing such value, and they have the authority to act in accordance with their own knowledge and with such information as they are able to obtain from the sales in the market or otherwise by ascertaining the value of the property which the stock represented and by determining the dividend earning power of the corporation.

In the case at bar it is true that the stock sold in the market at ninety, but, as above stated, the market value is only one of the elements tobe considered by the commissioners in determining the “actual value of the capital stock” of a corporation for the purposes of taxation.

There is no evidence that in the valuation of the assets the respondents placed execssive or unwarranted value upon any of the items going to make up the aggregate, nor is any complaint made upon the ground, but the only claim advanced is that the market value was ninety, and the commissioners could not assess at a higher value. This position, as has been seen, is not well taken.

It is now claimed, however (a point which does not appear to have been raised below) that the respondents in appraising the assets of the corporation for the purpose of determining the actual value of capital stock, appraised the real estate at $125,000 (a valuation not claimed to be in access of its actual value), but that in making the deductions of real estate, only $75,000 was allowed, and that was error

The court of appeals in the case of People ex rel. v. Asten (supra), seems to have disposed also of this objection.

In the case cited, the real estate was valued for the purpose of ascertaining the actual value of the stock at what it cost, and being assessed only at one-half of such cost, such assessed value only was deducted as required by law.

This the court held was not error as the assessment of the real estate at one-half of what it actually cost did not affect the value of the stock, and only the assessed value could be deducted.

In the case at bar it is not claimed that the real estate' was not worth the $125,000 at which it was valued, nor that there was any excessive valuation of the assets, hence no error was committed by the respondents in their assessment, and the judgment appealed from should be affirmed with costs.

Daniels and Brady, JJ., concur.


author: Lawrence, J.

text:
    The Hampshire Paper Co., Resp’t, v. James M. Hunt, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887)

    1. Replevin—Possession by assignee—In what capacity to be sued.
    Though an assignment has been made,’and the property sought to be recovered has passed into the possession of the assignee, it is proper to bring the action of replevin against him individually, as the property is in his possession.
    3. Practice—When verdict should be directed.
    The jury should be directed to bring in a verdict in accordance with the instructions of the court, when the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence.
    3. Sales—Complete acceptance necessary.
    The acceptance of goods must be complete and unconditional, or else-there is no sale. If anything remains to be done by either or both of the parties, the contract remains executory, and the title does not vest in the purchaser.
    Appeal from a judgment entered upon a verdict under the direction of presiding Justice Van Brunt, in favor of plaintiff.
    The plaintiff is a manufacturing corporation, and the defendant is the general assignee of the firm of Evans & Darling, for the benefit of creditors. The action is in replevin. The plaintiff claimed the possession of two lots of Bristol boards, and took possession of them under the writ. The defenses to the action are-
    1. A general denial.

      2. That the defendant held the goods as assignee, but was-sued as an individual; and
    3. That the goods had been sold and delivered to the assignors by the plaintiff, and were in their possession when the assignment was executed.
    It appears from the evidence that the firm of Evans &■ Darling gave an order to the plaintiff to furnish them with certain goods mentioned in exhibit A. It appears that under that order the plaintiff sent to Evans & Darling twice the amount of goods called for;
    Southworth, the treasurer of the plaintiff, testified that “after shipping the paper, Evans & Darling both said it exceeded the quantity, and they did not know that they could take it all in account. That was the latter part of May; I should say 1885. I sailed for Europe the 20th, and told them I was going away and I would like to have the thing settled up. They said the bills were checked off; that we sent them twice what the order called for. Darling said he could not accept it. I said will you not accept it if I give you extra time? He said no, he would be willing to hold it there, and if I wanted to sell it he was perfectly willing, and possibly in the winter he might take it into account. In the meantime it was distinctly understood it was to be our goods. Evans & Darling never gave a note for this excess of goods, as far as I know, or ever paid for it, or ever promised to pay for it.
    Evans, one of the assignors, states that he was aware that “the goods received by our firm were largely in excess of the order given, and that the goods in suit are a part of that excess.”
    Darling denies that he said he would not receive the excess, but upon the court saying: “The question is whether you would take them as a delivery to you?” he answered, “No, sir; I made no such statement.” He also testified that he told Southworth: “We wish to consider the purchase the same as we would any purchase to have the goods until we had used up the previous portion, the portion which we had bought, and commence using those goods as soon as the previous amount had been used up.” He also testified: “The excess—I did state that the excess was considered by the firm—not exactly considered, but I told him that we meant to retain the excess, and use them the same as if we had received them- or had ordered them at the time, and we wanted to pay for them on that basis at the time we commenced using them. Southworth did not make any definite answer, either agree or disagree to my proposition. At that time he urged our firm to give notes for these goods, he wanted us to give notes dated first of July I told him we would settle for the goods we purchased as soon as we could check the goods off. Regarding the payment of these other goods, Southworth made the proposition to settle by notes, and I acting for the firm, wished to settle it upon the basis of goods purchased. His proposition was that the notes would fall due about November. What I wanted to do was not to give the notes until we commenced to use the foods. The only thing more I can remember was that, when, outhworth left, the matter was in statu quo. There was no settlement made.”
    Several letters between the parties were also put in evidence, from which it will also appear that no definite arrangement was ever made as to the time at, nor the manner in which the goods were to be paid for.

      James B. McVickar and Bobert 8. Budd, for app’lt; Arnoux, Bitch & Woodford and Haley Fiske, for resp’t.
   Lawrence, J.

We are of the opinion that the motion made by the defendant’s counsel to dismiss the complaint at the close of the plaintiff’s testimony was properly denied. The testimony so far from proving that the goods belonged not to the plaintiff, but to the firm of Evans & Darling, established just the reverse.

The second ground stated for dismissing the complaint, to wit, that no sufficient demand had been shown to have been made upon the defendant, was untenable. And even if there was any insufficiency in the proof as to the demand at that time, the testimony of the defendant himself supplies the defect. As to the third ground, upon which the motion-to dismiss the complaint was based, to wit, that the defendant should have been sued as assignee and not personally, we agree with the respondent’s counsel that as the plaintiff found the goods in the defendant’s possession, they could properly maintain an action against him as an individual for their recovery.

Nor was there, in our opinion, any fact to go to the jury upon the question of title, and the direction of the learned judge that a verdict be rendered for the plaintiff was therefore right. It has frequently been held that the acceptance of goods must be complete and unconditional or else there is no sale, and that when anything remains to be done by either or both the parties the contract remains executory, and that the title does not vest in the purchaser. See Hough v. Brown, 19 N. Y., 111, 113.

In delivering the opinion of the court in that case. Com-stock. J., in discussing the question whether it should be left to the jury to say what was the meaning of a certain letter which had been introduced in evidence, and which it was claimed amounted to an acceptance of the proposition of the other party, says: “But upon a careful consideration of the letter we are of the opinion that it was not intended and cannot be construed as the consummation of a contract, and on this ground, we think that the jury should have been instructed in the manner requested by the defendant. If it was intended to leave it to the jury to say, what was the meaning of the letter, the error is plain, because the construction of language clearly ascertained, whether in writing or not, belonged to the court and not to the jury.” See, also, Briggs v. Sizer, 30 N. Y., 647; Trever v. Wood, 36 id., 307; White v. Corlies, 46 id., 467.

The proposition of the defendant’s counsel, that if, upon any construction of the facts, the jury might have found for the defendant, the justice erred in directing a verdict for the plaintiff, we do not regard as sound. The latest case upon this subject is Dwight v. Germania Life Ins. Co. (7 East. Rep., 638), in which the court say: “If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to evidence, then it is the duty of the court to direct a verdict,” and the court, after citing several other cases, quotes with approval from the opinion of Judge Allen, in Baulec v. N. Y. and Harlem R. R. Co. (59 N. Y., 366), in which it is stated that “it is not enough to authorize the submission of a question as one of fact to a jury that there is some evidence. A scintilla of evidence, or a mere surmise that there may have been negligence on the' part of the defendants, would not justify the judge in leaving the case to the jury.” See, also, Hyatt v. Johnston, 91 Penn. St., 196; The Improvement Co. v. Munson, 14 Wall., 442.

If this case had been submitted to the jury, and they had found for the defendant, we are constrained to say that it would have been the duty of the court to have set it aside, and that therefore tested by the cases above referred to, the direction given at the trial was right.

Again, it seems to be plain both from the oral and the written evidence, that the minds of the parties at no times met, and that, therefore, no contract was ever entered into, and that the title to the goods remained in the plaintiffs, and this was a question for the court and not for the jury.

There were some exceptions taken in the case to the-rulings of the court which should he noticed. At folio 64, the schedules annexed to • the assignment were offered in evidence, but were excluded by the court as irrelevant and immaterial. Those rulings we deem to have been correct. It is difficult to see how the schedules of the defendants’ assignors could affect the title of the property. Those schedules were merely statements of the assignors, not assented to by the plaintiff, and of course Evans & Darling' could not make evidence for themselves. These remarks, also dispose of the exceptions taken at folios 70 and 83 of the case. The bill which was offered at folio 69 was also properly excluded, on the ground that it appeared to be a. bill of another party.

The exceptions at folios 78 and 79 should not be sustained, because the evidence was immaterial and merely cumulative.

For these reasons we are of the opinion that the judgment, below should be affirmed, with costs.

Potter, J., concurs.


text:
    The People, Resp’ts, v. John Foley, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887).

    Bobbery—Festal Code, §§ 225, 226—Degree of force.
    Under sections 225, 226 of the Penal Code, when the property is taken-by force, the degree of force is immaterial in order to constitute the crime of robbery.
    Appeal from a judgment of the general sessions.

      C. M. Curtis, for app’lt; McKensie Semple, for resp’t.
   Brady, J.

The appellant was convicted of robbery in the-second degree. The complainant, at the police court, to which the appellant had been taken as the suspected criminal, selected another as the person who robbed him, but when he had a full view of the appellant, at once declared to be the culprit. There can be no doubt that at first he designated another as the person who took his property from him, but this error was explained, and seemingly in a manner satisfactory to the jury, to whom the question was properly left. The complainant, after his identification of the appellant, adhered to his statement that he was the man, and was not at all in doubt about it. If he had not committed the error mentioned in selecting another person, no question could be properly presented against the accuracy of his judgment and knowledge on the subject.

When such discrepancies mark the trial the credibility of the witness—the value—the reliability of his evidence must be left for the decision of the jury whether contradicted or not. There is no other method of disposing of the charge to which the testimony relates, and we must accept the result unless some established rule of law has been violated or the preponderance of evidence is clearly in favor of the appellant.

We cannot order a new trial, although the evidence be not strictly satisfactory to us to warrant the conviction and the grave consequences which ensue from it. Here the appellant denied the commission of the offense charged, but he was found in the vicinity in which the robbery took place, and had before been convicted of a felony His testimony was doubtless received with great misgivings and it may be that the evidence of identity, though regarded as slight, was magnified in strength and importance by the appellant’s unfortunate history. His appeal has not been prejudiced or slighted on this account. He must be meted the full measure of justice, and have considered add applied to his cause all the rules of law which would control that of any other person. If there was ought in it calling for a new trial, it would be granted without the least hesitation. His counsel is right in expressing this view.

His conviction for robbery in the second degree was correct. Sections 225 and 226 leave no doubt upon that subject. When the property is taken by force, the degree of force is immaterial. This is the rule now whatever it may have been heretofore.

The judgment must therefore be affirmed.

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


text:
    The People, etc., Resp’ts, v. Frank Sheppard, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Abduction—Penal Code, § 282—Proof of age necessary.
    _ Under section 282 of the Penal Code, the intercourse having been established. the prosecution are bound to show beyond a reasonable doubt, by proper evidence, the age of the complainant.
    2. Evidence—Proof of age—Entries in family bible.
    Entries in the family _ bible while admissible to prove a fact in a matter of pedigree are not admissible to prove the age of a person when that fact is the one at issue.

      Appeal from judgment of general sessions.

      Wm. F. Howe, for app’lt; John D. Lindsay, for resp’ts.
   Brady, J.

The defendant was indicted under section 282 of the Penal Code, for that he did feloniously take, receive, harbor and use one Marie Sherman, who was then and there a female under the age of sixteen years, to wit, of the age of fifteen years, for the purpose of sexual intercourse; he, the said Prank Sheppard not being then and there the husband of the said Marie Sherman, against the form of the statute in such case made and provided.

The section referred to declares that a person who takes, receives, harbors or uses a female under the age of sixteen years for the purpose of sexual intercourse, not being her 'husband, is guilty of abduction The intercourse having been established by proper proof, or admitted, as it was in this case, the prosecution were bound to show beyond reasonable doubt and by proper evidence the age of the complainant.

The complainant, who had formerly worn a long dress, with her hair arranged as to rest upon the top of her head, was put upon the witness stand in short clothes, with her hair braided in a childlike way, for inspection by the jury as to her age, under the provisions of law permitting that ceremony. Whether in the administration of the criminal law such a device was justifiable, may perhaps be a matter of taste, but the principles of natural justice would seem to dictate the propriety of presenting the complainant in a garb similar to that in which she was seen by the defendant, and particularly as the central question of the case turned upon her age. In this case, the propriety of the course suggested Would seem to be the more impressive from the facts that she herself (as she admitted during her cross-examination) had proclaimed herself to be over sixteen years of age, not only to the defendant but to others, and that she was also shown to have used long dresses, with her hair arranged upon the top of her head, the effect of which was to make her look much older than she did in the garb in which she appeared before the jury.

We are are not now dealing with the great value of the section under which the conviction was had for the preservation of the virtue of the young. We are simply considering the practical administration of criminal justice by a strict observance of its rules of evidence as we ought, in view of the grave consequences to the defendant resulting from a conviction. This seems to be peculiarly our duty, since it appears that the short dress of the complainant was furnished by the Society for the Prevention of Cruelty to Children (a society of great usefullness), even though it was not intended by the circumstance mentioned to affect the jury in any possible respect. Perhaps in the view that is taken of the appeal it may not be at all important, but it may be that the attention of the society being thus called to the matter, there will be no cause for even suggestion on the subject in the future.

Upon the trial it appeared that the father of the complainant was living, notwithstanding which, an entry in what was said to be the family bible, as to the time of the birth of the complainant, was admitted in evidence against the strenuous objection of the appellant’s counsel. We have not been referred to any authority which justified that pro-proceeding. On the contrary it appears that in one case cited on behalf of the people, viz.: the Berkeley Peerage case (4 Camp., 401), the father of the infants whose ages were in question was dead. And in Phillips on Evidence (4 Am. Ed., with Cowen & Hills notes), at p. 255 it is stated that although “An entry in a family bible has been considered to derive credit from the circumstances of its being entered in a book which is kept as the ordinary register of families and as admissible, therefore, on account of its publicity in the family, without proof that such entry was made by a member of the family,” it is nevertheless said to be hearsay evidence admissible in matters of pedigree only.

The rule is distinctly stated in Greenleaf on Evidence, § 104, as follows “An entry by a deceased parent or other relative, made in a bible, family missal, or any other book, or in any other document or paper, stating the fact and date of the birth, marriage or death of a child, or other relative, is regarded as a declaration of such parent in a matter of pedigree.” Although it is stated in the margin to have been held that the declarations of the deceased parent as to the place of birth of a child were inadmissible. This case involves no question of pedigree The admission of the family bible was therefore error.

It may probably be claimed that it was properly received for the reason that the whereabouts (to use the language of the learned counsel for the people) of the father were not known, that he had deserted his family and it was impossible to bring it any closer to him. It appears in the case that after his wife’s death he left Hew "York to work on some road in Pennsylvania. But the record does not disclose any effort on the part of any person connected with the prosecution to discover the locus in quo of the father, non constat, but that he might have been in the city of Hew "York. This is not regarded as a sufficient reason for admitting the bible in contravention of the established rule as shown in the citation made.

It is declared in section 527 of the Code of Crim. Pro., that an appellate court may order a new trial if satisfied that justice requires it whether any exception was taken or not in the court below.

We think that for the reasons given injustice was done and that a new trial should be ordered.

"Van Brunt, P. J., and Daniels, J., concur.


author: Potter, J.

text:
    Simon Belgard, Resp’t, v. Thomas McLaughlin et al. App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Evidence—Transcript of judgment recorded in a district court COMPETENT TO PROVE RECOVERY.
    _ Where it is necessary to prove the recovery of a judgment before a justice of the peace or in a district court of New York city, the transcript filed in the county clerk’s office is competent to prove the fact.
    2. Judgment creditor’s action—Form of judgment setting aside a TRANSFER AS FRAUDULENT.
    Where a judgment creditor brings his action simply to set aside a transfer as fraudulent, it is sufficient that the judgment declare the instruments fraudulent and void as against the plaintiff’s judgment. All that the plaintiff can claim in his action is the removal or annulment of the transfer as far as it obstructs the enforcement of his judgment, and beyond this he has no right or concern.

      Marshall P. Stafford, for resp’t; John Pardy, for app’lts.
   Potter, J.

This is an appeal from a judgment at special term in an action by a judgment creditor of defendant Thomas J. McLaughlin to set aside an alleged fraudulent transfer of real estate situate in the city of New York, and known as No. 511 West Twenty-ninth street, made by him to Margaret Stoker, and by her to Susan McLaughlin, the wife of defendant' Thomas.

The defendants contend that the judgment was not properly proved and that the evidence of fraudulent intent m making the transfer was insufficient to support the finding in that respect and that the judgment should have declared that the conveyance was fraudulent and void as against the plaintiff’s judgment and as to /that should have simply declared that the transfer was ineffectual.

The judgment was recovered on or about the 23d day of July, 1885, in one of the district courts of the city of New York, for the sum of $187.37, upon a promissory note made by the defendant, Thomas McLaughlin on the 30th day of January, 1885. A transcript of such judgment was filed and the judgment docketed in the office of the clerk of the city of New York, and an execution issued thereupon by such clerk to the sheriff of said city and county, and by him returned unsatisfied, before the commencement of the action.

Upon the trial, plaintiffs offered in evidence the transcript of the judgment. The defendants objected, upon the ground that the transcript was no evidence of the judgment. It does not appear specifically for what purpose the plaintiff offered the transcript.

He had already proved the judgment by calling the defendant Thomas to prove his answer, in which the recovery of the judgment was admitted, and that the recovery was upon a note made by him for $176.31, and there was no objection to this evidence upon behalf of any of the defendants. The transcript may have been offered and received for the purpose of showing that it was filed and docketed, and that the execution was duly issued to the sheriff, and returned by him to lay the foundation of a judgment creditor’s action. For that purpose it was proper to prove the transcript.

But if it be assumed that the judgment had not been proved, and that there was a necessity for its further proof as to all or some of the defendants, we are inclined to think the transcript from the district court, followed by the filing and docketing of the same in the county clerk’s office, would be legitimate evidence of the existence of a judgment of the court of common pleas, and of the authority to issue the execution by the clerk of that court. Sections 3017, 3022 and 3220 of Code Civ. Pro., in relation to courts, justices of the peace and justices’ courts of cities.

The case of Dickenson v. Smith, 25 Barb., 103, 106, cited by appellant’s counsel, indecisive of this question.

In that case the plaintiff sought to prove his title to lands against the defendant, the former owner of the lands, under a judgment rendered by a justice of the peace, a transcript of which was filed, the judgment docketed in the office of the clerk of the county, and a sale of the lands by the sheriff under an execution issued by the clerk upon such judgment. The court, in the opinion in that case, held that a certified copy of the transcript and docket was properly received in evidence, and that it was necessary that the transcript or other evidence, should show the proceedings before the justice to give jurisdiction to remove a valid judgment in order to authorize it to be filed and docketed; that the judgment when docketed became á judgment of the county court; that it is not necessary to show the jurisdiction of the justice in order to establish the validity of such judgment; they become judgments by virtue of the statute, etc.

This case was cited with approval in Stephens v. Sonter (51 Barb., 542).

This proof was properly received and raised a presumption of jurisdiction of the justice over the person of the defendant and the validity of the judgment. The defendant was allowed to testify that the summons was not served upon him, so far as he knew, but the person who is alleged to have made the service testified positively that he served the summons upon the defendant, and this positive testimony, together with the surrounding circumstances and the presumption above mentioned, conclusively establish the fact that the defendant was served with the summons in the action in which the judgment was rendered.

We have read the evidence in this case with some care, and are satisfied that findings of the trial court are abundantly supported by the evidence. But the appellant complains that the form of the judgment is not in accordance with the relief sought or the practice in this class of actions. The judgment provided simply that the deeds which are decided to be fraudulent and void be set aside.

This action was brought by plaintiff alone, and not in his behalf and such other creditors as might come in and join him in the action. There is no proof of any judgment against Thomas McLaughlin except the plaintiff’s. All that, the plaintiff can properly claim in this action is the removal or annulment of the transfer, so far as they obstruct the enforcement of his judgment; beyond that he has no right, or concern with these transfers. If there were numerous or several creditors who had come into this action or had brought creditors’ actions to set aside these deeds, the judgment might properly declare the deeds fraudulent and void, setting them aside and appointing a receiver, but in actions brought by a single judgment- creditor to remove the fraudulent and illegal obstructions in the way of enforcing his execution, it is sufficient that the judgment declare that the deeds are fraudulent and void as against the plaintiff’s judgment and execution, and that plaintiff’s judgment is a. lien upon the premises conveyed, and that the same bp sold to satisfy under execution the plaintiff’s judgment. Cole v. Tylor, 65 N. Y., 73; Kennedy v Barandon, 4 Hun, 642; Union Nat. Bank v. Warner, 12 id., 306.

An appeal was not necessary to correct this informality. It could have been done upon motion. The judgment should be modified by this court or the same should be sent to the-trial court for reformation.

If done by this court upon this appeal, the order should be that the judgment as modified be affirmed, with costs.

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


author: Lawrence, J. Van Brunt, P. J.

text:
    James E. Heller et al., Resp’ts, v. The Allentown Manufacturing Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887).

    Counterclaim—Construction op contract out op which the counterclaim grew.
    Where, by the terms of the contract between the parties, the defendant, agrees to abide by certain measurements, he will be prevented from claiming a loss thereby, provided the plaintiffs act in good faith.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury directed by the justice presiding at the circuit.

      Benjamin F. Dos Passos, for app’lt; Lewis Johnson, for-resp’t.
   Lawrence, J.

When this case was last before the general term, it was held that the counterclaim interposed by the defendant could not be sustained, because the contract between the parties prevented the defendant from alleging it. Our examination of the case leads us to the conclusion that no error was committed upon the trial. The defendant contracted to pay upon the European weight return, and having paid the amount of the invoice in accordance with such contract, it is estopped from questioning that return, there being no evidence of any fraud on the part of the plaintiff in the transaction. See Plumb v. Cattaraugus Co. Mutual Ins. Co., 18 N. Y., 393, 394; Heller v. Allentown Manufacturing Co., 39 Hun, 547.

The result in this case is a harsh one for the defendants; but there is no reason on that ground for undertaking to alter the plain provisions of the contract between the parties, or for attempting to make a new contract for them. We do not regard the case of Parker v. Piers (29 Fed. Rep., 300), as in point, for the reason that in that case the party sought to be held did not bind himself to take the goods upon the measurement or weight of another party. In this case the terms were cash against German analysis and European weight return, on delivery of goods ex vessel at New York. Both parties, so far as the case discloses, acted here in good faith, and we therefore think the learned justice below was right in holding the defendants to the strict letter of "their contract, there being no pretense, so far as we can discover, that the bill rendered by the plaintiffs was not in accordance with the German analysis and European weight return.”

The judgment appealed from must therefore be affirmed, with costs.

Van Brunt, P. J.

I concur. Upon the previous appeal in this case, the contract was construed independent of the evidence as to its meaning, and it was held to mean that the defendant was to pay according to the German analysis and European weight return, and therefore the defendant was. not entitled to recover for shortage.

This decision, until reversed, is the law of this case.

Potter, J., concurs.


author:
Van Brunt, P. J.
      Lawrence, J. (dissenting).

text:
    Artemas H. Holmes, App’lt, v. David H. Moffat, Jr., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Fraudulent representation—Evidence competent to rebut the CHARGE OP FRAUD.
    When the charge is that the defendants either did not believe or had no reason to believe to be true, certain representations which they made, it is-competent for them to show what information they had upon the subject, the character and means of observation of their informants, and also to show not only what their informants said on making their inspection, but also what they did upon the faith of the knowledge which they had. acquired.

      2. Evidence—Objection to admissibility of evidence must not be GENERAL.
    If the objection to the admission of certain evidence be general, there will be no error in its admission, provided it was admissible for any purpose.
    Appeal from judgment entered on verdict of a jury in favor of defendants and from an order denying motion for a new trial.

      George H.'Adams, for app’lt, Robert Sewall, for resp’t.
   Van Brunt, P. J.

This was an action to recover damages upon the ground of fraud which consisted in inducing the plaintiff to buy certain mining shares by means of fraudulent representations made by the defendant, as to the value of the property owned by the company whose shares the plaintiff was induced to purchase.

The learned justice who presided at the trial of this case at the circuit, presented the question of fraud in two aspects:

First. Did either, of the defendants represent, either orally or in printed documents, as facts within their own knowledge, conditions of this mine which they knew to be untrue, or in respect to which they had no knowledge; or

Second. Did either of the defendants make representations as upon information as to the condition of this mine, which they did not believe to be true, or had not reasonable ground to believe to be true.

It is claimed as a ground of error upon this appeal that the admission of evidence upon the part of the defendants Moffat, of the visits of mining experts and others to the mine, and of the report that they made to him of the value of the mine, was error.

It is to be observed that one of the grounds of the plaintiff’s action was fraudulent representation of facts, which the defendants either did not believe to be true, or had no reason to believe to be-true.

In answer to this charge, the defendants had a right to show what information they had upon the subject, the character and means of observation of thé informants, and they had also the right to show by the acts of persons who had visited the property, not only what they said in respect to it, but also what they did, apparently, upon the faith of the knowledge which they had acquired by a personal examination of its merits, which acts had come to their knowledge.

The fact that these gentlemen had visited the mine was the subject of comment upon the part of the plaintiff, and it seemed to impress him as a favorable symptom of value that the property was thought well of by them.

It was not claimed as error upon the part of the plaintiff that this question was submitted to the jury; upon the contrary, the propriety of such submission was acquiesced in.

In fact the whole of the testimony of the plaintiff himself shows that he knew that as to many of the conditions of this property the representations were not made as matters of fact, but as matters of beliefj therefore the evidence above referred to was competent to show not only that the defendants believed that which they represented, but that they had good reason for such belief.

The plaintiff urges, however, that it cannot be claimed that this evidence was admitted only to show that having these statements made to them, the defendants depended upon them in making their representations to plaintiff, and were therefore acting in good faith, because there was no such qualification placed upon its admission and no intimation made to the jury in any way that such testimony must be limited to such an effect. This claim might have been well founded had the proper objection been taken.

The objection to the admission of the evidence was general and if it was admissible for any purpose, there was no error in its admission.

If the plaintiff desired to limit the effect of its admission, he was bound to ask the court for such limitation both in the objection to the admissibility of the evidence and in the requests or exceptions to the charge of the court.

If the court in its charge did not limit the effect of the evidence, it was not requested so to do, and if its attention was not called to the fact no error was committed by the omission.

The same may be said of the objections now taken as to the language of the court in respect to the .evidence as to the truth of defendant’s representations.

If there was any misstatement of the evidence or misapplication of the same, no exception to the charge was taken for that reason and we may well assume that had the attention of the court been called to any such circumstance, the error would at once have been rectified.

The objection that the technical meaning of the term y ore in sight ” or “ reserves ” was not brought to the plaintiff’s attention and was not known to him at the time of defendant’s representations and that therefore evidence as to its meaning was not admissible, is not well taken.

The question was as to the good faith of the defendants and if in their conversations with the plaintiff they made use of expressions or terms which were in use and to them meant a certain a condition of things and by which they intended to convey information of that condition and they did not know or had no reason to suppose that these terms conveyed a different impression to the plaintiff, they cannot be held to have intended to convey a false impression, which is the whole foundation of this kind of action.

The claims of the parties in respect to this part of the case were fully and fairly stated by the court to the jury, and their verdict is conclusive upon the subject.

The only other exception to the admissibility of evidence, were the exceptions which were taken to the evidence of certain miners who worked in the mine and as to their estimate of reserves and ore in sight and their belief, and the reasons for their belief.

It is true that the learned court, in charging the jury, directed them to disregard this evidence, but we are of the opinion that he might well have omitted this instruction, as it seems, to us that the evidence was not incompetent.

The claim was made that the mine was doctored for the purpose of deceiving those that might visit for the purpose of ascertaining its value.

That excavations were purposely made so as to create a false appearance as to the value of the mine.

To meet this charge the defendants examined as witnesses-the very men who worked in the mine and who must inevitably have known the fact if any such scheme had been attempted to be carried out. They show' by these witnesses what they saw, what they believed and the reasons for their belief, and the confidence which they had in their belief by their acts in buying this stock at a price just as large as the plaintiff paid- for his.

This evidence was clearly competent. These men knew whether there had been an attempt to give the mine a false appearance of richness. They were as competent to judge certainly as the defendant, as to what the appearance of the mine was and the prospects which it held forth, and the fact that they acted upon conclusions based upon this knowledge, was evidence of their good faith.

The learned court made no error in respect to the instructions to the jury as to the effect of the capitalization of the company at $20,000,000.

The plaintiff did not believe, when he bought this stock at $20 per share, that anybody supposed that because the par value of stock was $100, that $20,000,000 was the actual present market value of the property owned by the company. He knew that the valuation was speculative, depending upon developments, and that human nature is not so charitable as to sell for $20 what will bring $100 in the market.

The capitalization of the company, under the circumstances under which the plaintiff bought, could not and did. not induce him to enter into this speculation.

It was the prospect of the rise in the value of the property owned by the company that induced the plaintiff to buy, as plainly appears by the evidence in this case.

The jury having found that the defendants have acted in. good faith, and that whatever loss has been incurred was through no fault or misrepresentation of theirs, we cannot disturb their conclusion.

The judgment appealed from should be affirmed, with costs.

Bartlett, J., concurs.

Lawrence, J. (dissenting).

Without adverting to the numerous questions which were discussed upon the argument of this appeal, there is one ground upon which I am of opinion that this judgment should be reversed.

The learned justice who presided at the trial admitted evidence that certain miners at Leadville had clubbed together, and put money into the stock at twenty dollars a share, and that they used to talk about the values of the mines at dinner times and that the miners said it was the biggest mme in the whole world, and did not know where the mineral would run to, and also that we, i. e., the miners, thought there was almost no limit to it, and if the ore had held out as it promised from the developments, “I should say the property should be worth from thirty to forty millions ”

In charging the jury, the learned justice said- “I desire here though, to withdraw from your consideration one particular fact which was put in evidence in these interrogatories answered in the commission. That is the fact that certain miners in Colorado made a pool and purchased stock themselves in this company. I withdraw it from your consideration, as I do not believe if to be proper or material evidence, and without saying one word in regard to the manner in which it got in here yesterday, because there is no question but what it was an open and above board transaction, yet I do not think my attention was directed to it withthat degree of care that it should have been; and therefore it having got in, I think it my duty to say to you that that particular portion of the answer to the seventh interrogatory which I have stated as to these miners making up a pool for the purpose of purchasing this, stock is not before you as evidence at all.’’

The evidence referred to by the learned justice was received under the objection and exception of the plaintiff’s counsel, so that he is entitled to raise the question upon the appeal, whether its reception in the first instance injuriously affected his client’s rights.

In Erben v Lorillard (19 N. Y., 299) it was held that where evidence had been erroneously received under exception, if it might have affected the verdict, the error could not be cured by the judge, in his charge, directing the jury to disregard it; and that for such error, the party against whom the evidence was received would be entitled to a new triaL See opinion of Groove, J., pp., 302 and 303, and of Denio, J., p. 303, see also Newman v. Goddard, 3 Hun, 70; Tabor v. Van Tassel, 86 N. Y., 643.

In this case the court cannot say that the evidence in question could not and did not affect the verdict of the jury.

It follows therefore that the judgment and order should be reversed and a new trial granted, with costs to abide the event.


author: Per Curiam

text:
    Isaac Bijur et al., Ex’rs, etc., App’lts; Paulina Bijur et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Practice—Will—Construction of—What must appear.
    In an action to construe a will and codicil, it was neither alleged in the complaint nor found in the findings of the court that the codicil was-ever admitted to probate and the record contained no evidence of that fact, an infant being interested in the question to be adjudicated upon. Held, that proper proof must be before the court before any attempt at adjudication was made.
    Appeal from judgment of the special term construing will of Asher Bijur deceased.
   Per Curiam

The record which is presented upon this appeal is in such a condition that it is impossible for the court to consider the will and codicil of the testator. It is neither alleged in the complaint nor found in the findings of the court that the codicil has ever been admitted to probate, and the record contains no evidence of that fact. There being an infant interested in the question to be adjudicated upon, proper proof should be before the court before any attempt at adjudication is made.

It is possible that the whole record may not have been presented; but as the court below made no finding upon this subject, it must be necessarily remitted back in order that proper proof be taken or if the proof has been taken a finding made in respect to the admission of the codicil to probate.

Ordered accordingly.


text:
    E. Crawford Sandford, Appl’t, v. Harriet A. Sandford, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.

    Contempt—Alimony—Payment of-—Proceedings to enforce-necessary allegation—Code Civil Pro.¡ §§ 1769, 1772, 1775, 2266 to 2282.
    In proceedings instituted for the purpose of punishing a person for the non-payment of alimony it must affirmatively appear whether he has any real or peí sonal property and that payment cannot be enforced by the sequestration of such property. Order to punish for contempt cannot be maintained without such proof.
    Appeal from an order granting an attachment for contempt in not paying alimony

      William B. Tullis, for appl’t; .Albert Day, for resp’t.
   Brady, J.

The affidavit upon which the order was made herein to punish the plaintiff makes no suggestion whether the plaintiff had property or not, and the order does not declare that the conduct-of the defendant was calculated to, and actually did impair, impede, or prejudice the rights or •remedies of the respondent. The proceedings to punish a plaintiff for the non-payment of alimony are initiated by sections 1769, 1772, 1773, of the Code and embrace sections 2266 to 2232 also. If it appears presumptively to the satisfaction of the court that payment of the alimony ordered, cannot be enforced against the party directed to pay by sequestration of his personal property, and the rents and profits of his real estate, the proceedings to punish him may be taken under the sections lastly mentioned, and to which the defendant resorted m this proceeding.

It does not appear whether the plaintiff has any real or personal property, and it does not presumptively appear from anything contained in the record that payment cannot be enforced by the sequestration of such property, and consequently the order made is not maintainable. In Rahl v. Rahl (14 Weekly Digest, 560), the necessity of allegations in reference to the requirements stated was recognized. See also Isaacs v. Isaacs (61 How. P. Rep., 369.)

It is not necessary to consider in addition the point taken by the appellant, that it should also appear as adjudicated, that the misconduct of the plaintiff tended to and did impair the rights of the defendant, inasmuch as the proceeding is fatally defective in substance, as suggested.

The Code contemplates the appropriation of the property of the party first, and if that be not sufficient to pay the amount, then to punish by mandatory process. Cases supra. For these reasons, the order appealed from must be reversed, but as the plaintiff has not answered the application on the merits, no costs will be allowed.

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