author: Bischoff, J.

text:
    The Broadway & Seventh Ave. R. R. Co., App’lt, v. Lewis Metzger et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed August 3, 1891.)

    1. Lease—Renewal.
    A provision in a lease for one year of a privilege of another " provided the owner does not desire possession of the premises for building purposes ” contemplates a possible desire on the part of the lessor to resume possession for the purpose of erecting buildings remotely contemplated by him, and not the leasing of the land to another who covenants to erect buildings which are to revert to the lessor at the expiration of such lease.
    2. Same—Notice.
    Where a provision for renewal of a lease requires the lessees to advise the owner or his agents of their intention to stay, an oral notice given to a clerk of the agents authorized by them to receive it is sufficient.
    8. Same—Delegation oe authority to receive notice.
    The receipt of such notice being merely mechanical, requiring the exercise of neither judgment nor discretion, it may be delegated by the agents to their clerk, and the fact of his authority may be inferred from the extent of his employment and his acts in relation to the premises in question.
    Appeal from judgment of a district court in favor of defendants.
    Summary proceedings to recover possession of land leased to plaintiff by one McGreery.

      Osborn E. Bright, E. Randolph Robinson and William Sulzer, for app’lt; William H. Arnoux and C. N. Bovee, Jr., for resp’ts.
   Bischoff, J.

—The lease, dated November 4, 1889, was made by McCreery, as lessor, and respondents, as lessees, and demised the premises for one year, from February 1, 1890, to February 1, 1891, and contained the following provision: “And the said tenants have the privilege of remaining for one year more, viz., from February 1, 1891, to February 1, 1892, provided the owner does not desire possession of the premises for building purposes.” When the lease was entered into, Mr. McCreery was the owner of the premises therein described, and it does not appear that at that time the lessees were aware of any contemplated change of ownership, or of any project of building upon the premises by persons other than the owner. The only reasonable interpretation, therefore, which could be given the language quoted, is that it comprehended a possible desire on the part of McCreery to resume possession for the purpose of erecting buildings, then remotely contemplated by him. This is its plain and obvious import, the sense in which it is most favorable to the lessees, and therefore the sense which must be held to control. Lowber v. Le Roy, 2 Sandf., 202; Dwight v. ÆtnaInsurance Co., 103 N. Y., 341; 3 N. Y. State Rep., 115; Hoffman v. Insurance Co., 32 N. Y., 405; White v. Hoyt, 73 id., 505; Johnson v. Hathorn, 2 Abb. Ct. App. Dec., 469. Mc-Oreery’s desire to gain possession, not for himself, but for a third person, as his subsequent lessee, who has covenanted to erect buildings which, upon the expiration of his lease, are to revert to the lessor, cannot be regarded as having been in the contemplation of the parties at the time when the lease between McCreery and the respondents was entered into, except upon a distorted process of reasoning, and is not within the operation of the clause above mentioned. That McCreery did not- desire possession for himself to enable him to carry out his own building projects was made conclusively "apparent upon the trial from the lease introduced in evidence, by which he granted a leasehold estate therein to the appellant for the term of forty-two years, commencing immediately upon the expiration of the term originally demised to the respondents, thus depriving himself of the right to claim possession; and from the further fact that the negotiations for that lease commenced in September, 1890, by which is manifested an absence of desire to resume possession. Nor is there any force in the contention of appellant’s counsel that the evidence taken upon the trial in the court below fails to show notice by respondents of their election to continue their lease for the additional year as required pursuant to its terms. The lease provided that, should the lessees desire to remain in possession for a further year, they “ must advise the owner or his agents of their intention so to stay not later than November 1, 1890.” Both Metzger and Schiff, the respondents, testified that before November 1, 1890, they gave oral notice of such election to one Louis Phillips, a clerk in the employ of L. J. & I. Phillips, the agents of McCreery, while upon the demised premises in the business of his employers.

If Louis Phillips was authorized to receive notice for his employers, oral notice was sufficient, as no particular form of notice was prescribed by the lease. McEwen v. Insurance Co., 5 Hill, 101. But appellant contends that this notice was ineffectual: First, because L. J. & I. Phillips could not delegate their authority to receive it to a clerk ; and, second, that, though the power to delegate be conceded, it does not appear that Louis Phillips was authorized by his employers to receive such notice. Both grounds are erroneous. The giving of notice by the respondents at once extended the existing lease over the additional year; no further lease was needed; no assent on the part of the lessor or his agents to the extension was required; and the refusal by the lessor or his agents to receive notice could not have impaired the respondents’ right to the extended term. House v. Burr, 24 Barb., 525. The receipt of respondents’ notice of election was thus an act purely mechanical, requiring the exercise of neither judgment nor discretion, and it is well settled by authority that the performance of such acts may be delegated by an agent to another. Grinnell v. Buchanan, 1 Daly, 538; Bank v. Norton, 1 Hill, 501; Weaver v. Carnall, 35 Ark., 198; Bodine v. Insurance Co., 51 N. Y., 117, 123; Powell v. Tuttle, 3 id., 396; Lewis v. Ingersoll, 3 Abb. Ct. App.Dec., 60; Story Ag. § 14, et seq. The law does not fail to recognize the fact that in the great variety of human affairs and the complex nature of business enterprises the execution of matters of detail must, in a great measure, rest upon persons employed in subordinate capacities, and the rule delegatus non potest delegare is therefore never extended to the employment of servants in the performance of merely ministerial or mechanical duties, Smith M. & S., 299, and a “ clerk ” is a servant whose authority to act for his master is to be measured and ascertained by the law generally applicable to the relation of master and servant. Wood Mast. & S., §2.

The evidence was abundant to show that Louis Phillips was authorized by his employers to receive respondents’ notice of election to extend their lease for the additional year. It was not necessary to establish that fact by specific instructions to Louis Phillips to receive the particular notice under consideration, but his authority to receive it can be inferred from the extent of his employment. Smith Mast. & S., 275; Wood Mast. & S., § 267 ; Story Ag., § 56. Louis Phillips, examined as a witness for appellant, says.that in part performance of his duties he assumed “general charge” of the particular .premises occupied by the respondents, and this implies that he was authorized to represent his employers in all matters connected with the premises, to the extent to which they could lawfully delegate their own authority to him, including, as above shown, the receipt of respondents’notice. Again, the course of business dealings between L. J. & I. Phillips and the respondents clothed Louis Phillips with apparent general authority to represent his employers in all matters connected with the demised premises which could be lawfully delegated to him. In all their transactions concerning the demised premises, and until some time after the oral notice to Louis Phillips, the repon dents had never met the lessor or either of his agents. They were throughout represented by Louis Phillips. It was Louis Phillips with whom the negotiations for the lease under which respondents were in possession were had. It was from him they learned the conditions upon which the lessor had consented to make a lease to them, and it was to him they stated their assent to the terms finally agreed upon. He attended the execution of the lease by the respondents, received delivery of it for the lessor or his agents, and on behalf of the lessor or his agents made delivery of the copy executed by the lessor in exchange. He collected the rents. He received notice from the respondents of" needed repairs, reported the same to his employers, and in turn informed the respondents of his employers’ decision respecting the repairs, and at the time of the notice Louis Phillips was upon the demised premises in the business of such repairs representing his employers. These facts fully justified the respondents in assuming that Louis Phillips was authorized to receive notices affecting the demised premises intended for his employers, and in the absence of all evidence tending to show that the respondents, at the time of giving the particular notice under consideration, had knowledge that the authority of Louis Phillips did not extend to its receipt, his want of authority in that respect cannot be subsequently asserted to effect a loss to the respondents of the benefits intended to be secured by the notice, Goodrich v. Thompson, 44 N. Y., 333 ; Leslie v. Insurance Co., 63 id., 27, 33. We have carefully examined the exceptions taken by appellant to the rulings upon the trial, as well as those to the justice's charge and refusals to charge, but as we construe the material clauses of the lease to the respondents, and from the view which we entertain of the power of McOreery’s agents to delegate their authority to receive notice of respondents’ election to Louis Phillips, their clerk, it does not appear that appellant has sustained any harm from the errors alleged. The verdict was in accord with justice, and consistent with the law and the evidence, and the judgment is affirmed, with costs.

Pryor, J., concurs.


source: Caselaw Access Project

author: Coffin, S.

license: Public Domain

text:
    In the Matter of the Guardianship of Louis H. Patterson, a minor.

      (Surrogate’s Court, Westchester County,

      Filed July, 1891.)

    Guaedians—Borro.
    The fact that the estate or fund has been diminished by unavoidable ■ losses or payment of claims, furnishes no ground for reducing the penalty of the botid given by a general guardian, even though the guardian is obliged to compensate the surety in proportion to the amount of the bond.
    Application to reduce amount of guardian’s bond.
    In October, 1887, William Patterson, of Albany, was appointed the general guardian of the above named minor. The penalty of the bond given by him, based upon the rental value of certain real estate owned by the minor in the city of Yonkers, and of his personal estate, valued at $600, was fixed at $2,100. He filed such bond with the Fidelity & Casualty Company of the city of New York as surety. The guardian now presents a petition stating, erroneously, that the amount of the penalty of the bond is $2,500, and “ that the only property which has come into the hands of your petitioner as general guardian of said Louis H. Patterson, and not paid out and accounted for, is the sum of $153.46, received by him September 13, 1889.” He also alleges that the real estate has been sold by order of the supreme courf, and his ward’s share thereof deposited with the county treasurer of Westchester county to the credit of said ward, to be paid to him on his attaining the age of twenty-one years; and “the petitioner prays that upon executing a new bond with sufficient sureties in the sum of $-, he and his surety may be released and discharged from the above mentioned bond of $2,500, and that an order to that effect may be entered.”

      Mills & Bridge, for petitioner, cite § 2821 of the Code.
   Coffin, S.

—It is not discovered that the section of the Code cited by counsel has any bearing upon the power of the surrogate to make the desired order. It simply relates to the power to appoint a guardian, while the prayer of the petitioner is for an order to substitute a new bond (say $400) for one of a larger amount, filed on obtaining the letters, in the first instance, by the guardian already appointed.

By §§ 2597, 2598, etc., of the Code, provision is made for the increase of the penalty of the bond of an executor, administrator or guardian, but none is found relating to. the reduction of the penalty. It is claimed, however, that if the court has power to increase, it has power to diminish. But the first, as is seen, is given by statute, while none is conferred as to the latter. Nor can any good reason be assigned why the amount of the penalty of a bond, based upon ascertained facts as to the value of an estate, should be reduced. The fact that the estate or fund has been diminished by unavoidable losses, by the payment of debts or legacies, or payments on account of distributive shares or other like causes, furnishes no ground for such reduction. To the extent of such losses and payments the liability on the bond would be diminished, and there would be no reason to ask it Were such power, as is here asked to be exercised, assumed by this court, probably similar applications would be very frequent and numerous.

The reason for this application, it is understood, is not for the benefit of the ward, but of the guardian. He has to pay the Fidelity & Casualty Company, which is his surety, its charge for acting as such on the bond originally given. This does not concern the ward, for, as held by me in the case of Jenkins v. Shaffer, 6 Dem., 59 ; 19 N. Y. State Rep., 900, the expense is personal to the guardian, and is not a proper item of charge against the ward’s estate. If this be so, and the guardian is unwilling to incur the expense, he should seek relief by resigning or in such other mode as he may be advised.

The prayer of the application is denied.


text:
    In the Matter of the Final Judicial Settlement of the Accounts of Charles C. Lloyd and Edward B. Butler, as Ex’rs of Charles H. Butler, Dec’d.

      (Surrogates Court, Westchester County,

      Filed June, 1891.)

    Executors and administrators—Accounting—Vouchers.
    If an item of an executor’s account is objected to for which there is a proper voucher, the voucher may be impeached by the objector by showing that the signature is a forgery; that the amount it represents was not due to the person who executed it, or that the amount has not been paid.
    Settlement of accounts.
    The executors having filed their account with vouchers in support thereof, the widow, Mrs. Adelaide L. Butler, who is the residuary legatee, objected to a credit claimed by the executors for the sum of $3,566.87 for money paid to S. F. Kneeland, their counsel, for services claimed to have been rendered. The voucher of Mr. Kneeland for that sum was, among others, filed on the 18th day of February, 1891. This voucher states the character of the services claimed to have been rendered and the dates when rendered, but does not state the value of each item, and sums up the whole, including expenses, in the above amount Much testimony was taken concerning the value of the services, during the taking of which it was proved that all the payments made by the executors to their counsel, up to the time of filing the account and vouchers in this proceeding, was $650.

      Kneeland, Stewart & Epstein, for ex’rs; Frost & Manser (C. Frost, of counsel), for residuary legatee; C. W. Horton, special guardian for minors, legatees.
   Coffin, S.

—The account shows that this estate was of the value of nearly $300,000, and it was to be expected that any competent counsel who advised and assisted the executors in the discharge of their duties should be suitably rewarded for his services. Much testimony has been taken in regard to their value, but as the matter stands it does not seem necessary for the court to enter upon the unpleasant and unsatisfying task of fixing such value, nor of determining whether certain of the items are properly chargeable to the executors. Ordinarily, when a duly verified account has been presented with proper vouchers for credits claimed, it is all that can be required of the accounting party. If, however, an item be objected to for which there is a proper voucher, the voucher may be assailed by the objector. He may show that the signature thereto is forged ; that the amount it represents was not due to him who executed it; that it has not, in fact, been paid, or that only a portion of it has been paid. In short, he may impeach the voucher. Among the numerous cases on this subject, reference is made to Metzger v. Metzger, 1 Brad., 265; Clock v. Chadeagne, 10 Hun, 97; Swenarton v. Hancock, 22 id., 43; Austin v. Munro, 47 N. Y., 360; Budlong v. Clemens, 3 Dem., 145; Matter of Collyer, 1 Connoly, 546; Matter of Swart, 25 N. Y. State Rep., 88 ; and see § 2733 of the Code. In this case the voucher has been successfully impeached. It represents, and they swear in the affidavit annexed to the account that the executors have paid to counsel for services rendered, and for which they ask to be allowed as expenses paid by them in the discharge of their official duties, the sum of upwards of $3,500, when the proof is that they had so paid only $650. They can be allowed only what they have actually paid, and not what they may be liable to pay. If they were to be allowed the larger sum, it is possible they might never pay the difference, and so gain it to themselves from the estate. This cannot be permitted.

As has often been remarked in like cases, this is not a question as between client and counsel, but as between the executors and the estate. The impeachment of the voucher and of the affidavit verifying the account is not understood to be based upon any charge of fraud on the part of the executors or their counsel, but rather upon a misapprehension by them of the law on the subject.

The item objected to must be reduced to the amount actually paid. The executors will be allowed costs as if there had been no contest, to be adjusted, and the contestant will be allowed costs of the contest, in like manner to be adjusted.


text:
    In the Matter of Proving the Last Will, etc., of Eliza Strong, Deceased.

      (Surrogate’s Court, Westchester County,

      Filed June, 1891.)

    Will—Execution—Signature op witness.
    One of the witnesses to a will, who was incapacitated to write by reason of a felon on her hand, requested her husband, who was the other witness, to sign her name, and he did so. Held, a sufficient signing by the witness to comply with the statute, and that the will was valid so far as its execution was concerned.
    An alleged will of the deceased, bearing date February 23, 1874, was propounded for probate by Edward Strong, named as executor therein. There are, in the proper place, the names of two persons as subscribing witnesses. The proof shows that the testatrix signed the alleged will in the presence of those persons; that she duly published it as such to them, and requested them to sign it as witnesses. That thereupon Darius A. Secor, one of the witnesses, and husband of Sarah Secor, signed his name by writing it, but Mrs. Secor, the other witness, who could write, but was incapacitated to do so then by reason of a felon upon her right hand, requested her husband to write her name also, which he did at the tima .This was all done in the presence of the deceased. Subsequently, and after the death of Miss Strong, Edward Strong, chief legatee named, took the paper' to Mrs. Secor, who, at his request, erased her name, so written by her husband, and then wrote her name herself.

      A. R. Dyett, for ex’r; John F. Lambden, for contestant.
   Coffin, S.

—The question as to whether the alleged will was sufficiently executed according to the requirements of our statutes on the subject, inasmuch as the names of both witnesses were written solely by one of them, is alone presen tea for adjudication. In this respect it will be seen that while the statute requires that the will shall be “ subscribed ” by the testator at the end of the will, it also provides that “ there shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will at the request of the testator.”

Thus there is a change from the word “subscribed,” as applied to the act of the testator, to the words “ sign his name,” as applied to the act required of the witnesses. Whether it was intended by the legislature to treat the words “ subscribe ” and “ sign ” as synonymous is fairly open to question. If it did not so intend why did it not use the same word in each instance ? The word “ subscribe,” according to the best lexicographers, is to write underneath, while “ sign ’’ is defined to affix a signature to. And it was held in the English courts that the word sign, as used in the statute of frauds, was sufficiently complied with if the party wrote his name on the paper in any place, so that even if he commenced by writing, “ I, John Jones," and wrote his name in no other place, it was held a sufficient signing within the statute; but the word subscribe clearly means a writing at the end or foot And, while they have given a very liberal, if not loose, construction of the word “ sign,” in so far as the statute of frauds affecting contracts was concerned, yet in the case of wills, where the witnesses are required to subscribe as such, they exacted some physical act to be done by the witnesses, either by writing their own names or making their marks. Moore v. King, 3 Curteis, 243 ; 1 Jarm. on Wills, Randolph & Talcott’s ed., 215. But that statute expressly permitted the signature of the testator to a will to be made by some other person in his presence and by his direction. The 1 R. L., 364, allowed the same thing. Under these statutes it was held that the sigtiature of the testator or of the witnesses by making a mark was sufficient Baker v. Dening, 8 A. & E., 94; Jackson v. Van Dusen, 5 Johns., 144. Many other and more recent cases establish the same principle. But the question still remains, is the name of one or each of the witnesses, written by another, a sufficient compliance with the requirement of the statute? In the Goods of John White, 2 Notes of Cases, 461, it appeared that a husband, a witness, signed not only his own name, but also that of his wife, the other witness. There was no evidence that the wife had, in fact, become a party to the subscription, and the execution was held to be insufficient. Here, however, the wife was present as a witness, and because of her temporary disability to write her name, requested her husband to write it for her, which he did. All this occurred at the time of the execution of the will by the testatrix and in her presence, and although the latter did not also request the husband to write the wife’s name, yet by her silence she sanctioned the act

Surrogate Bradford, eminent for learning and industry, seems to have inclined to the opinion that an attesting witness must take some physical part in the act of signing, in order to a compliance with the statutory requirement of signing his name Campbell v. Logan, 2 Bradf, 90-97; Meehan v. Rourke, id., 385-392. This is probably in accord with the tenor of English decisions on the subject, with some few exceptions; but while the precise question has not, so far as known, been determined by the courts of this state, yet in some of our sister states a subscription by a witness in the manner it was done in this instance has been held sufficient. In Massachusetts, in the case of Chase v. Kittredge, 1 Allen, 49-59, Gray, J., says: “A subscription of the name or mark of a witness by another person in the presence of himself and the testator might possibly be a literal compliance with the statute; but not being in the handwriting of the witness, would create no presumption of a lawful execution and attestation, without affirmative evidence that it was so made.” Here we have such affirmative evidence. See, also, Horton v. Johnson, 18 Ga., 396. In Upchurch v. Upchurch, 16 B. Mon., 102 (Ky.); and in Jesse v. Parker, 6 Gratt, 57 (VA), it was expressly held that such a signing of the witness’ name as occurred in this instance was a sufficient execution under a similar statute. In the latter case, we have presented the singular fact of a will being sustained where the body of the will, the name of the testator, of the three witnesses required in that state, were all in the handwriting of one person. As was well said in that case: “Wherethe attestation is by mark, the validity of such an attestation does not depend upon the fact of the witness making his mark, or doing some manual act in connection with the signature, but upon the signing of the name of the witness by his authority.”

The maxim qui facit per alium facitper se has, doubtless, its limitations; but it is difficult to discover why it is not applicable here. The frauds in the execution of wills which the statute was designed to guard against will in no way be facilitated by the sanctioning of this mode of execution. Still, where we consider that the art of writing is so common that there can be little trouble in finding witnesses who can write their names, it is desirable that wills should be witnessed by such persons, especially in view of the fact that should they make their mark, or sign by the hand of another, and they should predecease the testator, there would be no possibility of proving their handwriting, and then the will could not be admitted to probate, unless other persons should chance to be present who could testify to the facts. For the statute provides that in case the witnesses be dead, the will may be established by proof of the handwriting of the testator and of the subscribing witnesses. Code, § 2620.

At first my impression was that the execution of this will was insufficient; but a further examination of authorities and subsequent reflection have led to a different conclusion. It is, therefore, held to be a valid will, in so far as its execution is concerned


author: Dykman, J.

text:
    Richard R. La Bau et al., Resp’ts, v. Frank Huetwohl et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Receiver-Ejectment.
    The appointment of a receiver of rents and profits pendente lite is im* proper in an action of ejectment brought against one in possession under a contract of sale. Such, remedy is inconsistent with the nature of the action and the relief sought.
    Appeal from order appointing a receiver of the rents, issues and profits of a dwelling house and lot.
    Action in ejectment to recover possession of said premises. The plaintiffs are heirs and devisees of one Julia Ann Abrams, who devised said premises to plaintiffs’ mother for life, with remainder to plaintiffs. The will gave a power of sale to the executor in a certain event, to be determined by the executor and life tenant. The life tenant died without exercising the power of sale, and thereafter the executor contracted to sell the premises to defendant Huetwohl, who entered into possession under the contract, and made repairs and improvements.

      Carpenter & Roderick, for app’lts; Peck & Meld, for resp’ts.
   Dykman, J.

—This is an action of ejectment, and the defendant is in possession of the premises under a contract to purchase the same. He occupies a portion of the dwelling house, and has rented other portions thereof to two tenants. He has expended money in repairs and improvements upon the premises.

After this action was commenced, the plaintiffs made an application to the court for the appointment of a receiver of the rents of the property, and the motion was granted, and the defendant appealed from the order.

So far as the equities between the parties are involved, the defendant occupies the position of advantage. He made an honest contract for the purchase of the premises, and paid some money in the full belief that he could obtain a perfect title, and went into possession and made improvements under the influence of the same belief

If, therefore, he can now reimburse himself for his outlay, it is equitable and just that he should be permitted to do so by the use of the property pending the suit for its recovery.

Our decision, however, is placed upon other grounds.

The case of Thompson v. Sherrard, 35 Barb., 593, was very similar to this. The action was ejectment for the recovery of real property; the defendant Bobert Sherrard was in the occupation of a certain portion of the house, and the other defendants occupied other portions of the house and paid rent to Sherrard.

A receiver of the rents was appointed at the special term in that case as in this, and upon appeal to the general term the order was there reversed, and the court held the appointment of a receiver to be improper, and inconsistent with the nature of the action and the relief sought

That decision was followed in the subsequent cases of Guernsey v. Powers, 9 Hun, 78, and Burdell v. Burdell, 54 How., 91.

The law will not take the property of a defendant from him pending an action for its recovery, and that wise and salutary rule would be violated if a receiver could be appointed to take the rents. Even in an action to foreclose a mortgage on land, a receiver is not appointed where the defendant is personally in the occupation of the premises.

Our conclusion is, that the order should be reversed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


author: Pratt, J.

text:
    In the Matter of the Application of William Shay, App’lt, for a Writ of Mandamus Against The Trustees of the New York & Brooklyn Bridge, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Mandamus-Veterans.
    On application for a writ of mandamus to compel the reinstatement of relator, the moving affidavit stated that he claimed his rights as a veteran, which were not regarded. The answering affidavits showed that he gave no notice of his rights until the commencement of legal proceedings, some months later. Feld, that an issue was thereby created which prevented the issue of a peremptory mandamus.

    Appeal from order of special term, denying application for a peremptory mandamus requiring the trustees to reinstate the applicant to his position as carpenter on the bridge.

      Sidney Williams, for app’lt; James C. Bergen, for resp’ts.
   Pratt, J.

—The applicant makes affidavit that he was discharged from work August 6, 1881; that on the 7th he claimed his rights as a veteran, which were not regarded.

The opposing affidavits are to the effect that he gave no notice of his veteran rights till the commencement of legal proceedings, many months later.

The special term correctly held that an issue was thus created, which prevented the issue of a peremptory mandamus.

Order affirmed, with costs.

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


text:
    John E. Breichbiel, as Overseer of the Poor of Orangetown, App’lt, v. George H. Powles and Ella T. Powles, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Disorderly persons—Recovery on bond.
    Defendant Powles was adjudged a disorderly person and ordered to give a bond to indemnify the town against his wife and children becoming chargeable upon the public. The bond provided they should not become a charge upon the public for one year, or if they did. the sureties agreed to pay $250 to the town. Feld, that the bond was one of indemnity, and that only the amount actually paid out for the support of the wife and children could be recovered thereon.
    2. Appeal—New trial.
    An order of county court granting a motion on the judge’s minutes to set aside a verdict upon exceptions and because the verdict is excessive and contrary to law and the evidence, is not appealable.
    Appeal from order of the county court setting aside a verdict and granting a new trial.
    The following is the opinion rendered by the county judge:
    Weiant, J.—This action was brought to recover the amount of an undertaking given by the defendant, George H. Powles, upon an adjudication that he was a disorderly person under § 899 of the Code of Criminal Procedure.
    The undertaking was in the sum of $250 “ that the wife and children of said George H. Powles will not for one year become a charge upon the public, or in case of a failure of such undertaking we, the said George H. Powles and Ella T. Powles, will nay to the town of Orangetown the said sum of $250.”
    A verdict was rendered for the full amount upon a direction of the court if the finding was that the plaintiff had proven certain facts constituting a breach of the undertaking. A motion for a new trial was made by the defendant and I am called upon to determine that motion.
    Two questions are presented for determination.

      First. Whether or not the undertaking was given in conformity to the requirements of the statute. Second. If so, then whether a recovery for the whole amount of the undertaking was legal, or should the sum have been limited to the amount sufficient to indemnify the town for the expense that it had incurred in furnishing support to the wife and children.
    Section 901 of the Code of Criminal Procedure provides that if a magistrate is satisfied that the defendant is a disorderly person he may require him to give security by written undertaking, with one or more sureties, to the following effect:
    1st. If he be a person described in the first or second subdivision of § 899, that he will support his wife and children, and will indemnify the county, city, village or town against their becoming in one year chargeable upon the public.

    2d. “In all other cases that he will be of good behavior for the space of one year;” or, “ that the sureties will pay the sum mentioned in the undertaking, which must be fixed by the magistrate.” How, it appears from a comparison of the language of the undertaking with the words of the statute that the words “ that he will support his wife and children ” are omitted from the undertaking. It is claimed that this is not a substantial departure from the statute, and if so, that as the undertaking complies with a part of the condition the defendant has no reason to complain, as it narrows the ground of liability and it entitles the plaintiff to recover only upon his proving a breach as to that particular part as to indemnity of the town against the wife and children becoming a charge upon the public. I very much doubt the right of the magistrate to take an undertaking embodying but a portion of the statutory obligation; it is not like that of an alternative condition, as in the case of the People v. Tilton, 13 Wend., 597, nor of a divisible condition, as, in Perkins v. Stimmel, 42 Hun, 520; 4 N. Y. State Rep., 459.
    Especially is that true in this case, for a part of the same statute regulating the prosecution of disorderly persons, § 904 of the Code of Criminal Procedure, provides what shall constitute a forfeiture of such undertaking, and if a portion of the condition is to be omitted and one portion is only inserted the statute prescribing what shall constitute a forfeiture, it is apparent, cannot be made applicable. The acts therein specified as constitu'ting a forfeiture of an undertaking contemplate and must mean one wherein the conditions prescribed by the statute is contained. But what shall constitute a breach of the undertaking contained in this case a part only of the condition ? Will the commission of either of the acts specified in subds. 1 and 2 of § 899 constitute a forfeiture of an undertaking conditioned only that the sureties will indemnify against the wife and children becoming a public charge ? It is doubtful. Would such a construction be in accord with the undertaking that the sureties executed ? One would scarcely so understand. A man might well “ abandon his wife and children without adequate support or leave them in danger of becoming a burden upon the public or neglect to provide for them according to his means,” or “threaten to run away and leaving his wife or children a burden upon the public,” either of which, according to § 904 of the Code of Criminal Procedure, would constitute a forfeiture if the undertaking conformed to the statute, and would probably be a breach of that part of the condition that he will support his wife and children, but it seems quite clear that neither would constitute a breach of that part only of the condition that he “ will indemnify the county, city, village or town against their becoming within one year chargeable upon the public.” Nor do I think that this is a case where it may be contended that because the undertaking was less onerous than that which the statute prescribes, that it may be held valid. The cases so holding are those wherein the departure from the language of the statute has not been substantial and no further burdens have been imposed. Bulkley v. Boyce, 48 Hun, 259; 17 N. Y. State Rep., 940. No officer shall take a security by color of his office in any other case or manner than such as are provided by law. 3 R. S. (7th ed.), 2374, § 59 ; Commissioners of Charities v. O'Rourk, 33 Hun, 349; Toles v. Adee, 84 N. Y., 222; Cook v. Freudenthal, 80 id., 202.
    The purpose of this statute was to make the duty of the officer and the right of the parties certain and plain and to prevent oppression or abuse of authority by disabling public officers from imposing terms or making contracts as conditions of official action except such as were sanctioned either by the statute or the common law. Cook v. Freudenthal, 80 N. Y., 208. What right had this magistrate to dispense with a condition the statute required him to impose in the undertaking as a condition of discharging the defendant?
    In Winter v. Kinney, 1 N. Y., 368, cited in Cook v. Freudenthal, supra, Wright, J., says: “Where a person is in custody and the officer, instead of taking the obligation for his release specifically provided by statute, takes one of his own volition more or less onerous to the prisoner, he asserts by virtue of his office an illegal claim or right or authority to take it”
    In the case of Toles v. Adee, supra, Judge Andrews, writing the opinion, says at page 234, “That public policy requires that officers armed with bailable process for the arrest of defendant should, in taking bonds or other securities for their enlargement, be held to a strict compliance with the statutory requirements, neither accepting less nor demanding more than the law prescribes.”
    The views above expressed, it seems to me, receive additional force if, as it seems, an undertaking, if executed in conformity to the statute, is to be construed as penal and the forfeiture is of the whole amount of the undertaking. People v. Pettit, 3 Hun, 416; People ex rel Van Aken v. Millham, 100 N. Y., 273; People v. Tilton, 13Wend., 597.
    The motion for a new trial is, therefore, granted, unless the plaintiff stipulates that the verdict may be reduced to twenty-eight dollars, the amount of the expense incurred by the plaintiff in behalf of Orangetown, as it may be that the undertaking might stand as an indemnity; if he so stipulates the motion is denied.

      A. A. Demarest, for app’lt; Garrett Z. Snider, for resp’ts.
   Pratt, J.

—The bond in suit was one of indemnity. Such is the plain import of the language, which cannot be extended by the court to meet any supposed requirement of the statute. A surety cannot be held to a larger responsibility than the language of the bond requires.

The county judge was, therefore, right in requiring the plaintiff to stipulate to reduce the verdict to twenty-eight dollars as a condition upon which the verdict might stand. The plaintiff not stipulating, the verdict was properly set aside.

But there is a more serious difficulty in appellant’s way. This is an appeal from an order of the county court granting a motion “ made upon the judge's minutes to set aside a verdict upon exceptions, and because the said verdict was excessive and was contrary to law and the evidence.”

Under the authority of the case of Hand v. Dorchester, 43 Hun, 33, this case cannot be reviewed by the general term of this court, and it should be dismissed, without costs, for the reasons stated in that case by Mr. Justice Follett

It is so ordered.

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


author: Barnard, P. J.

text:
    James W. Todd, App’lt, v. Morton R. Doremus, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Justices court—Adjournment—Jurisdiction.
    Plaintiff failed to appear on the return day of the summons, but sent word that he desired an adjournment; the justice refused defendant’s motion to dismiss and adjourned the case. On the adjourned day the complaint was put in and a judgment by default taken. Held, error; that the justice by adjourning before issue lost jurisdiction of the action.
    Appeal from a judgment and order of the county court of Westchester county, reversing the judgment of a justice of the peace in favor of plaintiff.

      C. H. & J. A. Young, for app’lt; Frank M. Buck, for resp’t.
   Barnard, P. J.

—The plaintiff is an assignee of a claim for goods sold by J. H. & 1ST. H. Martin to the defendant. He procured a summons from a" j ustice of the peace returnable on the 5th of January, 1891. At the return day the plaintiff did not appear but sent word that he desired an adjournment until some later period The defendant appeared by counsel and asked to dismiss the proceedings because the plaintiff had failed to appear.

This application was denied and the case was adjourned “ on motion of the court" until the 12th of January, 1891, at which day the plaintiff proved his case and took judgment

The defendant failed to appear. The complaint was not put in until the adjourned day.

The practice is settled upon the point presented. The statute requires that the plaintiff shall appear within the hour after the return hour. The issue is then to be joined. Code, § 2934.

The adjournment may be had after issue joined either upon the application of the plaintiff or of the defendant or upon the motion of the justice himself.

When the justice adjourns the case without an issue he loses jurisdiction of the action even if the plaintiff appear and ask an adjournment to obtain counsel. Duel v. Sykes, 13 N. Y. Supp., 166; 35 N. Y. State Rep., 768.

If there be no appearance judgment must be given for defendant Code, § 3013; Wilcox v. Clement, 4 Denio., 160.

In this case there was no appearance and no issue and no refusal of defendant to plead because there was no complaint put in. The justice therefore lost jurisdiction of 'the case and the judgment of the county court should be affirmed, with costs.

Dykmajv and Pratt, JJ., concur.


text:
    Patrick Cudahy et al., App’lts, v. Clarke D. Rhinehart, Sheriff, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Sheriffs—Attachment—Refusal to indemnify.
    The refusal of an attaching creditor to indemnify the sheriff, when called upon to do so, where the title to the attached property is in dispute, works an abandonment of the attachment as to such property in favor of a junior creditor who does so.
    2. Same—Indemnity bond.
    Where an attaching creditor, in writing, directs the sheriff to search for certain specified articles, and gives therewith a.bond general inform, such bond applies only to the property specified in the writing.
    3. Same—Estoppel.
    A sheriff is not estopped from objecting to the lack of proof that the goods which produced the fund in his hands were the property of the judgment debtor as against a judgment creditor who did not indemnify him.
    Appeal from part of a judgment rendered upon a trial by the court without a jury in favor of plaintiffs.
    Action to recover damages for a false return of execution in an action brought by plaintiffs against John H. Bani and Patrick H. Turner. The court rendered judgment in favor of plaintiffs for $520, and refused to allow judgment for the residue of plaintiffs' ■claim.
    The defendant, as sheriff, received three attachments against Bani and Turner, plaintiffs’ being the second in order. The title to certain property found by defendant being disputed, he demanded indemnity, which was given by the first and third attaching creditors, and he then levied under their attachments. Thereafter plaintiffs gave him a letter directing him to search for 100 tierces of tallow, and also a bond of indemnity general in form. The tallow was not found. The property levied upon was sold, and the proceeds of sale paid to the first and third creditors.
    The following opinion was delivered by the trial judge :
    Bartlett, J.—Chief Justice Brake, in his well known treatise on Attachments, laws down the law upon which the defendant relies in the present case, as follows:
    If there are several attaching creditors of the same property, and some give indemnity and others refuse to do so, the latter will be precluded from claiming the avails of the attached property, even though the attachments under the original writ were prior to those of the parties who gave indemnity. Drake on Attachment, 6th ed., § 189.
    The leading authority in support of this proposition is Smith v. Osgood, 46 N. H., 178.
    The opinion of the supreme court of New Hampshire in that case proceeds on the ground that the fruits of the litigation ought to go to those who have taken pains to secure them, rather than to those who stand by and make no effort to that end.
    I think the reason is applicable to the case at bar. The sheriff was justified in requiring indemnity from the several attaching creditors.
    The first and third indemnified him. He then levied on a portion of the goods. The evidence does not satisfy me that there was any earlier levy.
    It is true the deputy, Mr. Ringrose, speaks at first of having made a levy on August 16, 1889, but when all his testimony is read together it indicates that, although he saw some of the goods on that day, there was no actual levy until later, after the creditors, other than the plaintiffs, had given their indemnity bonds. As to the proceeds of the property thus taken I will follow the New Hampshire case of Smith v. Osgood, supra, and hold that the plaintiffs lost the priority of their attachment by failing , to indemnify the sheriff.
    But the plaintiffs subsequently did execute and deliver bonds of indemnity to the sheriff on the 17th and 23d of September, and on the 1st of October the sheriff made a further levy on five cases of goods. I cannot see why the plaintiffs were not entitled to their priority so far as these goods were concerned.
    After giving the bonds they were in the same position as the other attaching creditors in reference to goods subsequently levied upon, and could insist that the proceeds of such goods should be applied to their attachment in its order.
    The evidence does not show what amount was realized on this last .day, although it is stated in the brief of plaintiff’s counsel to have been about $500. Whatever it was, the plaintiffs are entitled to recover such proportion thereof as would have been applicable upon their attachment as the second in order of the three warrants in the hands of the sheriff. If the parties cannot agree as to the figures, further testimony will have to be taken on that point.
    Judgment accordingly.

      John J. Macklin, for app’lts; Hobbs & Gifford and Charles Putzel, for resp’t.
   Pratt, J.

—The court at special term correctly held that if there are several attaching creditors of the same property, the title to which is in dispute, and some give indemnity to the sheriff and others refuse to do so, the latter will be precluded from claiming the avails of the attached property, though their attachments may be prior in time to those who give indemnity. Smith v. Osgood, 46 N. H., 178; Parker v. Smith, 2 Liv. Law Mag., 770.

The case last cited seems exactly in point Here, as there, the title to the attached property being ambiguous, the sheriff refused to sell without indemnity, which the senior attaching creditor refused to give. There would be no propriety in giving the fund thus produced to the creditor who refused to act. The refusal to indemnify must be held to work an abandonment of the attachment as to the property in question in favor of the junior creditor, who was willing to take the risk.

We think, however, that the court below should have given a more extended application to the doctrine than was done.

It appears that the plaintiffs being informed that one hundred tierces of tallow might be found, instructed the sheriff to seek for them, and gave him indemnity to make the seizure. His instructions being in writing admit of no dispute; they were limited to the one hundred tierces, which were not found.

Later, certain other property was found, and on the indemnity of a creditor junior to the plaintiff was sold.

The sheriff having paid the proceeds to the indemnitor, the plaintiff now claims to recover from the sheriff $520, the amount thus paid, and in the court below prevailed.

We have carefully examined the testimony, and are not able to find that it affords any support to the claim now made that the indemnity given by the plaintiff could have been applied to any other property than the one hundred tierces.

The indemnity bond was general in its terms, and did not specify the particular property intended to be taken in reliance upon it. But the written instructions by which it was accompanied are explicit, and are limited to the one hundred tierces. It follows, that plaintiffs were erroneously allowed to recover the $520, proceeds of property attached upon the indemnity of the junior creditor.

Another point should not be overlooked. The plaintiffs introduced no proof that the goods which produced the $520 were the property of the judgment debtors.

The sheriff is not estopped from objecting to the lack of proof. As against the creditor for whom and by whose instructions he acted and whose indemnity he received, he could not raise that • question. The plaintiffs do not occupy that position.

The judgment appealed from must be reversed upon the facts and new trial ordered, with costs to appellant

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


text:
    The People ex rel. George H. Nichols et al., Resp'ts, v. The Board of Supervisors of Queens County, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    •County—Protection of property—Mandamus.
    In a proceeding for a mandamus to compel the hoard of supervisors to audit and allow a claim for moneys advanced to the sheriff to pay officers employed by him to protect the works of relator from threatened destruction and injury by strikers the proof showed acts of violence to those who continued to work which occurred at a little distance from the works, but it was not established that at all hazards the works were threatened. Held, that whether the employment of the officers was necessary was a question for the j my, and that a direction of a verdict for the relators was error.
    Appeal from order for a peremptory mandamus, entered upon a verdict directed by. the court
    Proceeding for a mandamus to compel the board of supervisors to audit and allow a claim presented by relators for money advanced to the sheriff to pay certain officers employed by the sheriff to protect the property of relators during a strike of their workmen. The moneys were advanced in pursuance of a promise by the sheriff that relators should be reimbursed by the county, and he assigned to them his bill against the county for reimbursement An alternative mandamus was procured and a trial had thereon, at which the court directed a verdict for relators.

      James W. Covert, for app’lt; Sanford H. Steele, for resp’ts.
   Barnard, P. J.

—There was an issue of fact presented by the evidence which should have gone to the jury. The petition stated that the sheriff of Queens county employed deputies and officers for the defense of the property of the Laurel Hill Chemical Works. That the Laurel Hill Works gave notice to the sheriff that certain evil disposed persons had collected in the vicinity of the works and threatened to destroy or injure the same. That the deputies and officers were necessarily paid for this service. That the money paid was advanced to the sheriff by the relator Nichols and that the sheriff has assigned the claim to the relator. The return denies any unlawful assembly of persons with an intent or with any threats of destruction or injury to the Laurel Hill Chemical Works. The return expressly denies that the said special deputies and officers were needed to protect the works from destruction or damages and that the expenditure therefore was necessarily made.

The proof upon the trial tended to show that there had been what is termed a strike on the part of the employes and that a considerable body of the retiring workmen and others had collected around the works. There was proof tending to show acts of violence; one to a boy who was bringing a dinner pail to his father who was working for the company after the strike. Another act of violence was the fact that a driver on one of the trucks of the relator’s company was stopped. These acts were seven or eight hundred feet from the works. There was no proof which established at all hazards that the works were threatened. The acts of violence may have been solely addressed to the prevention of other workmen supplying the place of the retiring workmen and with no intention of injury to property. It was for the jury to say whether the employment of the officers was necessary. The sheriff was bound to protect the property of the company by “legal means.” Chapter 428, Laws of 1855, § 3.

The sheriff had the right to call for aid from the military, chapter 275, Laws of 1878, amending revised statute. If this force had been called out the pay of the force would have been a county charge. Whether or not the sheriff could make the county liable by using money advanced by the threatened company to hire men cannot be presented until it is found whether the advance was necessary to protect the property of the company.

The order directing verdict and the judgment thereon should be reversed and a new trial granted, costs to abide event

Pratt, J., concurs; Dykman, J., not sitting.


text:
    The Lawrenceville Cement Co., App’lt, v. S. Webber Parker et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Fraudulent conveyance—Consideration.
    In an action to set aside as fraudulent as to creditors a conveyance by defendant to his son, it appeared that the property was worth $50,000, and was subject to a $10,000 mortgage; that the son had advanced his father $4,000; that in consideration of the conveyance, debts of the father to the amount of about $13,000 were released, and that the son gave a mortgage of $30,000 to secure a debt of the father. Held, that a sufficient consideration was shown, and that the evidence justified the conclusion that there was no intent to hinder or defraud creditors.
    2. Mortgage—Banks.
    A mortgage given to the cashier of a bank to secure an indebtedness to the bank in pursuance of a previous arrangement between it and the mortgagor, is a valid security in favor of the bank.
    3. Trial—Refusals to find.
    A refusal of several requests to find in a single sentence is equivalent to a refusal of each singly, and is as valid as if marked against the margin of each one singly.
    4. Same.
    A refusal to find as requested is not equivalent to a finding to the contrary.
    Appeal from judgment dismissing the complaint upon the merits.
    Action to set aside two deeds executed and delivered by the defendant, S. Webber Parker, to his son Charles Warren Parker as fraudulent. The property conveyed consisted of about 382 acres of land at Mamaroneck, which the supervisor of the town testified was worth about $50,000. There was a mortgage on said land for $10,000. The conveyances were made in pursuance of a previous agreement by which the property was to be conveyed to Charles on his arriving at full age, in consideration of which his mother released her dower and gave up notes to the amount of $3,054 held by her against her husband, and his grandfather released a claim of $10,000 against the grantor. Charles had previously advanced his father $4,250, the proceeds of sale of some horses belonging to him, and at the time of the conveyances gave a mortgage on the premises for $30,000 to one Burns, the cashier of the American Exchange National Bank, to secure an indebtedness of his father to the bank, .which Burns assigned to the bank. The court found that there was no intent to hinder or delay creditors; that the conveyances were valid; that the mortgage to Burns was a valid and existing lien, and that the bank was the owner thereof. Plaintiff presented numerous requests to find, at the end of which the court noted “ all refused,” but did not mark the refusal on the margin of each request

      Wm. H. Arnoux, for app’lt; B. Doran Killian, for S. Webber Parker, resp’t; Wilson Brown, Jr., for Charles W. Parker, resp’t; Michael H. Cardozo, for Edward Burns, resp’t.
   Pratt, J.

—We think the evidence in this case justified the learned trial judge in his conclusion that there was no intent to hinder, delay or defraud S. W. Parker’s creditors by any party.

There were divers claims against S. W. Parker which were released in consideration of his conveyance to C. W. Parker, and the latter, as another element of the consideration, gave his bond for $30,000, and his mortgage to Burns covering the premises, to secure this $30,000, which the grantor actually owed to the American Exchange Bank, of which Burns was cashier. Burns accepted this mortgage for the bank, with its privity and discount, pursuant to a previous bona fide arrangement made between it and the Parkers.

We see no difficulty in recognizing this mortgage as a valid security in favor of the bank, though it was given to Burns in his own name. Price v. Brown, 98 N. Y., 388, was a case where a mortgage was given to a mortgagee for $50,000, of which $5,000 was for the .benefit of another, and the court enforced the implied trust, although it was made out wholly by parol proof. At all events, we fail to see how this question concerns the plaintiff.. It was not harmed in any way. There was a $30,000 debt to the bank by the elder Parker, which had been secured by his grantee pursuant to a previous bona fide agreement.

We are not disposed to interfere with this decision because the trial judge refused all of the plaintiff’s requests, or propositions of fact, in a single sentence instead of marking his refusal against the margin of each one singly. That was a refusal of each singly. If any refusal was erroneous, the error may be pointed out and is available for plaintiff quite as certainly under this form of refusal as if the trial judge had dealt with each one separately; But no such error has been pointed out

The proposition that the findings are inconsistent is too fanciful to be real. It is based on theory; indeed it is plainly argued as a general proposition that the legal effect of a refusal to find is to find the contrary. We cannot assent to this proposition. A judge may properly refuse a proposition because the fact has been already found, either upon the adversary’s propositions or in the decision 'itself. There is no inconsistency on such a record. So, too, it may be refused because it was immaterial. The trial judge is not bound to state the reasons for a refusal It is enough if his refusal may be fairly justified in any view of the case.

We have examined the exceptions to the judge’s rulings during the trial, and see no occasion to question their propriety. The admission of the Warren release, although executed after the suit was commenced, did no harm. The bargain had been previously made that Warren would release S. W. Parker if he would convey to C. W. Parker, and the grantor was, in law, released the moment he accepted the offer by making the conveyance. The writing was merely a performance of the oral agreement. The real question was whether or not the oral bargain was in fact made, and that is covered by the finding that it was made and that there was no fraudulent intent. ¡Nor do we find any matter which seems to be worthy of serious consideration in the refusal to strike out a part of S. W. Parker’s answer. The facts were all developed, so that, even if there was any technical misstatement, it was corrected. The other alleged errors concerning which complaint is made have been already incidentally considered.

The judgment must be affirmed, with costs to each respondent.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    In the Matter of the Claim of Mary L. Van Slooten, App’lt, v. Charles H. Wheeler, Ex’r, Resp’t.

      (Supreme Court, General Term,Second Department,

      Filed July 2, 1891.)

    1. Decedent’s estates—Gtet.
    On a reference of a claim against an executor to a diamond ring alleged to have been given to claimant by the testator, the evidence of the claimant and her witnesses tended to prove that the ring was delivered by deceased to the claimant; that he several times declared that he had given it to her; that she retained possession of it until his death when the executor requested to see it, and on her handing it to him he retained it and ■ went away; that he subsequently promised to return it but had not done so. The evidence as to the gift was not contradicted, but the executor testified that he told the claimant that objections were made to her wearing the ring at the time of testator’s death, and that she had better put it into the estate where it belonged, and that she then voluntarily gave it to him. Held, that the evidence was sufficient to show a consummated gift, and that the claim was made out.
    ¡8. Same—Check—Mortgage.
    Claimant held a mortgage on certain real estate of the deceased which he sold. Prior to the sale claimant released her mortgage and deceased gave her a check for its amount, telling her to keep it and if anything happened to him to give it to his executor, who would attend to it. Claimant and her witnesses testified that after testator’s death she gave the check to the executor. The executor denied having received the check, but upon being called upon to produce it did not deny having possession of it, but replied: “ We do not produce it.” There was no evidence to show payment of the mortgage or the check. Held, that the claim was made out.
    Appeals from orders of special term, confirming reports of referee in favor of respondent
    Reference of disputed claims against an estate.

      Merritt E. Haviland (Martin J. Keogh, of counsel), for app’lt ; Hubbard & Rushmore and John D. Pray, for resp’t.
   Dykman, J.

—Harry B. Dodge died in the city of Brooklyn on the 3d day of June, 1886, leaving a last will and testament, and after his death Mary L. Van Slooten, formerly Mary L. Miner, presented two claims against his estate to the executor of his will One was a specific claim for a diamond ring and the other was a claim for $20,000 and interest thereon from May 15, 1886. Both claims were rejected by the executor, and were thereafter referred to a referee for determination under the statute The referee reported adversely to the claimant, and she has appealed from the judgment entered upon his report

The claimant based her claim to the ring upon a gift of the same to her by the deceased, and she gave evidence before the referee sufficient to establish a gift of the ring either inter vivos or causa mortis.

The ring was delivered by the deceased to the claimant, and she retained possession of it until after his death without any revocation of the gift, and that was sufficient to vest the title to the same in her. He expressed his intention to make a gift of the ring to the claimant, and accompanied that expression by delivery, and that was sufficient to constitute a valid transfer of the property. Bedell v. Carll, 33 N. Y., 581; Beaver v. Beaver, 117 id., 428; 27 N. Y. State Rep., 405. One of the witnesses, who was a mutual friend of the parties and a relative of the claimant, testified as follows in respect to the presentation of the ring: “ My cousin came into the room wearing the ring, and she showed it to me, and when Mr. Dodge came back she handed the ring to him, and he says, Look at me and smile, and says, This ring is for May, it matches one of her ear-rings exactly; after awhile I am going to get a ring and have this made into an ear-ring, it matches hers; he says, I am not going to live long, and little old woman it is for you; it is for you whether it is made into an ear-ring or not” Subsequently the same witness stated: “ I heard him say that the ring was hers; that he had given it to her, and that it was his intention to have it made into an earring for her; and if anything should happen to him, the ring was for May. The day we went to Coney Island, my cousin wore it that day.”

Another witness testified on the same subject: “ The way I knew about the ring was, that when I was there to ask about the money, he put his hand up to his head. I said, Mr. Dodge, I would not mind having a ring like that, or that ring, and then he said it did not belong to him; it is May’s.”

Another witness, Mrs. Halstead, testified she had often seen the claimant wearing the ring before Mr. Dodge’s death, and she was then wearing it.

Two other witnesses testified to the same effect. Another witness testified as follows: “ While she (the claimant) was fixing his head, she put her hand out" (illustrating), “her left hand, to put her left band on his head, and she said, see what a beautiful present I have had given me, and he looked up and smiled. This was before the first attack of paralysis.”

The claimant testified, in her own behalf, that from the date of the ride to Ooney Island, which was April 21, 1886, she kept the ring in her possession until after the testator’s death

Another witness testified that she had seen the claimant wearing the ring for the first time in Mr. Dodge’s presence, about two months before his death She last saw it on claimant's hand about a week before his death.

After the death of the testator, the claimant delivered the ring to the executor, and her version of the conversation which then occurred is as follows:

“ He then asked to see the ring I had on, as he expressed it. I said, What ring ? He said, That, pointing to this ring. I held up my hand, and he says, Take it off. I took it off and handed it to him, and then he called Mr. Wilcox and left the house.” She also testified that on several occasions she asked Mr. Wheeler if he would give her the ring, “ and he said he would. It appeared that she had, through her attorney, made a request of the executor for permission to purchase the ring, but that letter, and the circumstances under which it was written, was fully explained by the person who wrote it
The foregoing testimony with respect to the gift of the ring was not contradicted, and the only contradictory evidence offered by the executor was his own version of the transaction and the conversation at the time of the deliveiy of the ring to him. In his testimony he says that, while calling at the house of the claimant, he took her into an adjoining room and said to her: “May, there is a good deal of feeling existing in relation to your having possession of this ring. Mrs. Morgan and Ned Dodge are very much incensed that you should be wearing it at the time of Mr. Dodge’s death. It seems to me it is the proper thing for you to do to put it into the estate, where it belongs,” and then he said, “ She voluntarily took it off her finger and handed it to me, and I put it in my pocket, and we quietly bade her good evening and left, and ! put it into the inventory as a part of the assets of the estate.”

It is to be observed that the executor, according to his own version of the conversation, did not deny the right of the claim- . ant to the ring, and he did not inform her that her right and title to the ring was questioned or denied by any one. He simply stated to her that the two persons whom he named were incensed because she wore it at the time of the death of Mr. Dodge. Her ownership was not denied or challenged in any way at that interview, and she delivered the ring to the executor with the under-' standing on her part that it was to be returned to her again. She did not indicate any intention to yield up her right to the ring or surrender herproperty therein. She gave it to him voluntarily upon his demand, but that simple act unaccompanied by any declaration of an intention to part with the same permanently, or to yield up her right to it, cannot be construed as a waiver of her claim or a surrender of any of her rights.

The uncontradicted testimony on the part of the claimant makes a plain case of a consummated gift, which was sufficient to vest the title to the article in the claimant, and our conclusion is that the report of the referee was erroneous upon that question.

In relation to the claim bf $20,000, it appeared that the claimant held a bond and mortgage of Mr. Dodge upon certain property of his in Brooklyn for $20,000, payable on demand, which mortgage was satisfied of record on the 22d day of April, 1886; that the testator sold the premises after the same was so released from the mortgage on the 1st day of May, 1886, and it also appeared from the testimony, and was found by the referee, that between the 1st and the 12th days of May, 1886, the deceased Harry E. Dodge signed and delivered to the claimant his check for $20,000, payable to her order under the name of Mary L. Miner. It nowhere appeared that this check was ever paid. Neither did it appear that the bond and mortgage was paid, unless this check, made at that time for the same amount, was given in payment of the same, which seems to us to be a reasonable inference, especially in view of the fact that, if the check of $20,000 had been paid, evidence of such payment might have been produced by the executor, who was in possession of the papers of the deceased.

In relation to this check, there was a significant fact occurred upon the trial before the referee, when the claimant’s counsel called upon Mr. Wheeler to produce a certain check, dated between the 1st and 12th of May, 1886, drawn to the order of Mary L. Miner, the claimant, and signed by-Harry E. Dodge, called for in the notice to produce. Due service of the notice was admitted, but the counsel for the executor stated, “We do not produce it” He did not say we cannot produce it because it is not in our possession, but his language is significant, and implied that he did notproduce it because he would not and not because he could not This occurrence upon the trial is rendered more significant when taken in connection with the testimony of the claimant that she delivered the check to the executor, Mr. Wheeler, after the death of Mr. Dodge. The testimony upon this subject on the part of the claimant was this The same mutual friend gave evidence respecting the ring; a Miss Fitchett stated that she visited the parties about the first of March, 1886, and that she had conversations with Mr. Dodge, in which he remarked, “ that my cousin had a mortgage on his Henry street house, and that he had an opportunity of selling the house, and he thought he would sell it and pay her the mortgage; spoke of that to me on several occasions.” Again, she says in the second conversation he said, “ that Mrs. Miner had a mortgage on the Henry street house, and that he had an opportunity to sell the house, and he thought he would do so and pay her the mortgage ; pay her the $20,000.

Then she said the last conversation was, “ One day he came home about one o’clock; my cousin was out We were in the sitting room alone for a long time. He spoke of the mortgage that day, * * * he remarked that he was going to sell the house to pay her the $20,000 mortgage.”

Another witness, who was a servant and went to live in the family about the 6th of May, testified, that one day he came up stairs and heard Mr. Dodge say to Mrs. Miner, “ I will give you the check, and if anything should happen to me you can give it to Mr. Wheeler and he will attend to it for me”

He further testified that Mr. Dodge said I will give you a check to the amount of $20,000 for some property on Henry street I don’t remember just what it was, it was about a check for $20,000 for property on Henry street

The same witness testified further that Mr. Dodge delivered the check to the claimant, and that after Mr.. Dodge's death he heard the following conversation between the claimant and Mr.. Wheeler, the executor. “ I heard Mrs. Miner say, Here is the check which Mr. Dodge gave me on the mortgage, and wished me to give it to you, and you were to get it cashed for me. Mr. Wheeler took the check from Mrs. Miner.”

Another witness, Sarah Smith, also a servant in the family, testifies as follows: “ The first conversation about the mortgage was on Saturday night at dinner. He (the testator) came in and was sitting down talking over his business, and mentioned about the mortgage on the Henry street property, and he said that he had a chance to sell it. I heard this as I was coming out of the pantry.”

Again the same witness said, “ He (the testator) called her (the claimant) as she was in the middle of the room, and he asked her what did. she do with the check for the Henry street mortgage, .and she says, I think I have it with the other papers in my desk. He said, Well, I want you to go and get it, ana put it by itself, so that it will not get misplaced, so that if anything should happen to me you will know where to put your hand on it. All right, she said, I will go and get it now, and get an envelope to put it in, and she got an envelope and put it in that.”

Another witness, Mrs. Chertizza, testified to a conversation on the same subject as follows: “ I asked him (the testator) if he could not loan me $5,000, that I was in trouble, the mortgage on my house was about to be foreclosed, Mr. Noble needed money, and I had no one else to turn to but Mr. Dodge, as he was my best friend. He said he had just given Mrs. Yan Slooten a twenty thousand dollar mortgage on the house, and he could not spare it just then.” On the re-direct, the witness said: “ He had to pay her the mortgage, and he had no money he could loan me at the present time," and again he said, “ he had to give her the mortgage what was on the house; I don’t know when he mortgaged the house.”

Another witness, William Mower, testified as follows : “ I had sold a house and I made the remark to him (the deceased) that I had sold a house, and he said that I should try and get a customer for him; told me that the house was not paying; that he had lost so much on it; I asked him how much of a mortgage was on it, and he told me $20,000. * * * He told me that Mrs. Miner had the mortgage.” Subsequently, after the house had been sold, the witness testified to a conversation in May, after Mr. Dodge had had the second attack of paralysis, as follows: “ It - was shortly after he had sold his house, and I told him it was a quick transfer; quicker than the one that I had sold. * . * * Then he told he had cancelled the mortgage of $20,000 on Henry street, and he was very glad he had sold it. * * * He said that he had cancelled that mortgage, and given a check for it of $20,000 to Mrs. Miner; he told me.”

Another witness, Laura Halstead, testified that in May, 1886, not very long before the testator’s death, she saw a check on the claimant’s bureau, and that the check was written on one of the banknotes of Clark, Dodge & Co., and was some time in May, between the first and middle. It was “ payable to the order of Mary L. Miner, $20,000. Harry E. Dodge.”

The witness further testified that the check was written on a blank like this contained in the testator’s check book on the banking house of Clark, Dodge & Co. She. also stated that she knew Mr. Dodge’s handwriting.

The testimony of the claimant in respect to the conversation with Mr. Wheeler, the executor, when she delivered him the check after the death of Mr. Dodge, is as follows:

“ I gave Mr. Wheeler an envelope with the check in it, that Mr. Dodge gave to me. I told Mr. Wheeler there it was. I gave him the envelope, and I told him what the envelope contained. I told him there was the check that Mr. Dodge had given me, and that Mr. Dodge had told me to give it to Mr. Wheeler, and have Mr. Wheeler attend to it for me. He took the check and went away.”

She further stated that the check was for $20,000, and its date was between the 7th and 12th of May, and it was in the handwriting of Mr. Dodge.

Mr. Wheeler asked me what was in the envelope and I said a check that Mr. Dodge gave me for the payment of a mortgage, and the check was for $20,000.

Another witness, Sadie Dye, referring to the same occasion when the claimant gave the check to the executor, testified as follows: “ All I heard was, Mr. Wheeler, there are the papers that Harry gave me to give to you, and the check which you are to collect,”

The foregoing is substantially the testimony in support of the claim of the plaintiff for $20,000, and if it stood uncontradicted it would be sufficient to establish the debt.

It is entirely natural and harmonious with all the known and established facts. There was a bond and mortgage and there was a check, and the claimant and the deceased were together where they would naturally speak of them, and the persons who gave the testimony were in a position to witness the transactions and conversations which they detail.

There is no inherent improbability or impossibility in the testimony and it is all consistent and free from contradiction, and the cross-examination was endured without variation or contradiction or misstatement.

Moreover, there is no intimation derogatory to the character of the witnesses, and they were free from interest in the litigation.

Under such circumstances, there is no reason why the testimony is not entitled to respect and belief.

It is true the executor contradicted the testimony so far as he could, but its weight was too much to be overcome by the testimony of a single witness.

Let us take another view. The claimant held a bond and mortgage against the deceased, which she satisfied about the time he sold the property. After the sale he gave her a check for $20,000, and the only consistent inference is that the check was given forth e debt which had been evidenced and secured by the bond and mortgage. It was for the same amount and given at the same time, and there is no trace of any other transaction or indebtedness between the parties.

There is no claim that the check has ever been paid, or that the mortgage debt was paid in any other manner.

So we have an indebtedness of the deceased to the claimant of $20,000 without dispute as to its validity.

The case, upon the uncontradicted evidence, may be stated thus: “ The deceased was indebted to the claimant in the sum of $20,000, secured by a bond and mortgage. She satisfied the mortgage without payment of the debt. He then gave her his check for the indebtedness, and the check has never been paid; that leaves the original debt uncanceled and due and owing, and a valid claim against the estate of the deceased.

In this view, the testimony of the executor denying the receipt of the check from the claimant is neither controlling nor material. The claimant and one of her witnesses says she delivered the check to him in accordance with the instructions of the deceased, and it is to be assumed that she had parted with the paper in some manner, for it was not in her possession at the time of the trial, and the defendant did not deny its custody when called upon to produce it there, but his counsel made the evasive reply already quoted.

If he did not receive it, it is lost or mislaid; and as it was payable to the order of the claimant from an account standing in the name of the deceased at the bank, there is no danger of its payment now; and as the present claim is based upon the original debt, the failure to produce the check does not affect the case.

The only effect of the testimony of the executor is to discredit the evidence of the claimant and her witnesses; and as we have already seen, the claim is established independently of evidence. In fact, it is established independently of the check. With the bond and' mortgage established and unpaid, the claim is made out.

After a most careful examination, we think both of the claims were established and should have been allowed.

The judgment should be reversed and a new trial granted. Barnard, P. J., and Pratt, J., concur.


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    In the Matter of the Petition of Francis Marvin, a Taxpayer, to Compel the County Treasurer of Orange County to Comply with the Provisions of Chap. 907, Laws 1869. In the Matter of the Petition of Richard S. Tuthill, a Taxpayer. In the Matter of the Petition of Samuel D. Roberson, a Taxpayer.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Town bonds—Sinking fund—Parties.
    Upon the death or expiration of office of a county treasurer, pending a proceeding to compel the application of railroad taxes as required by the provisions of chap. 907, Laws 1869, it is proper to substitute his successor in office as defendant.
    2. Same—Defense. '
    A denial by the county treasurer that the money was in his hands will not authorize the court to dismiss the proceeding until it has ascertained the facts.
    Appeals from order made in the above entitled proceedings substituting William M. Murray, the present county treasurer, as defendant in the place of James C. Williams, deceased.
    Proceedings brought by taxpayers of the towns of Deerpark, Minisink and Crawford, in the county of Orange, to compel the county treasurer to execute the provisions of chap. 907, Laws 1869, as amended by chap. 283, Laws 1871, by applying the taxes paid by the Port Jervis & Monticello railroad to the payment of bonds issued by said towns respectively; the petitions showing that Williams, as treasurer, had unreasonably refused and neglected so to do. Williams’ term of office expired and he shortly afterward died.

      Bacon & Merritt, for app’lt; Lewis E. Carr, for Marvin, resp’t; Greene & Bedell, for Tuthill and Roberson, resp’ts.
   Barnard, P. J.

—The term of office as county treasuer of James C. Williams expired on the 31st of December, 1890. William M. Murray was elected treasurer of Orange county in the fall of 1890, and succeeded Williams at the expiration of his term. Before the term of Williams expired a proceeding had been commenced, under chap. 907, Laws of 1869, as amended by chap. 283, Laws of 1871, before the county- judge of Orange county to compel the application of taxes upon railroads as directed by that act.

The act authorizes the county judge to make an order compelling the application.

The petition stated that certain taxes, which were the subject of the controversy, had been collected and not applied as directed by the act

The county treasurer made answer that the moneys had been applied under direction of the board of supervisors.

The county judge ordered a referee to report the facts. The proceeding was pending before the referee when Murray assumed office, and on the 24th of January, 1891, Williams died.

The county judge, on application of the applicants, has made an order substituting the present county treasurer as defendant. The order was right The original petition is sufficient to give the court jurisdiction of the case.

It avers that the moneys were collected year by year and not appropriated as required by law.

The denial of the county treasurer that the money was in his hands would not authorize the county judge in dismissing the application until he had ascertained the facts.

The referee was ordered to obtain them, and even if an appropriation of the moneys by the supervisors were held to be a discharge of the present county treasurer' personally, it would not necessarily discharge the county from making good the moneys which were not appropriated according to law.

The moneys were received ex officio, and if paid over the present county treasurer would hold them by virtue of his office. Matter of Spaulding, 125 N. Y., 194; 34 N. Y. State Rep., 980.

If the funds were not legally paid out, they are still in the treasury.

The present county treasurer represents the treasury, and was properly made a defendant to the proceedings in the place of his predecessor in office.

The order should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


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    Michael J. Hynes, App’lt, v. William A. Campbell, Impl’d Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Assignment nor creditors—Accounting.
    In the absence of proof of bad faith on the part of an assignee all necessary costs and disbursements incurred by him on his accounting are chargeable to the trust fund.
    Appeal from so much of the order confirming the report of the referee herein as allows costs and disbursements to the assignee.

      T. F. Hascall, for app’lt; William R. Barricklo, for resp’t.
   Barnard, P. J.

—The plaintiff is a judgment creditor of Daniel Yan Winkle, one of. the defendants. Yan Winkle assigned to William A. Campbell, the other defendant, for the benefit of his creditors. The plaintiff was a preferred creditor in the order of distribution under the assignment. This action is brought by the plaintiff for himself and others similarly situated for an accounting. A decree has been entered and an appeal is brought by each party. The plaintiff appeals from that part of the judgment which gives seventy-five dollars costs to assignee and which allows him his disbursements. The general rule is, that all necessary costs and disbursements are chargeable to the trust fund. The amount allowed to the assignee was a moderate sum and the expenses were all incurred after the account was filed. There was no evidence of bad faith upon the part of the assignee, even in the particular case where he was decreed to be wrong, so as to make it proper to put the costs upon him personally. Code, § 3246.

The part of the judgment affected by the plaintiff’s appeal, should be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.


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    Michael J. Hynes, Resp’t, v. William A. Campbell, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Assignment fob creditors—Distribution—Liability of assignee.
    Shortly after the execution of an assignment for creditors a composition agreement was executed by which the unpreferred creditors took a percentage of their claims, and the assignee sold certain of the assets and received a portion of the purchase price which he applied to the payment of the unpreferred creditors under the agreement. The purchasers failed to complete the purchase, and the property was not delivered. Held, that the assignee in paying the unpreferred creditors before the balance of the purchase price was paid did so at his own risk, and must account for said sum as assets.
    Appeal from order confirming report of referee, finding a certain sum in defendant’s hands as assignee for the benefit of creditors of Daniel Van Winkle.

      William B. Barricklo, for app’lt; T. F. Hascall, for resp’t.
   Barnard, P. J.

—The plaintiff is a judgment creditor of the defendant Daniel Van Winkle. He is also a preferred creditor under the assignment made by Van Winkle to defendant Campbell. Soon after the assignment a composition deed was entered into whereby certain of the unpreferred creditors agreed to accept twenty cents-in satisfaction of their debts. This agreement included nearly all the unpreferred debts of Van Winkle. The stock and business of the assignor was such that the firm of Karst & Costello wished to form a company and buy it in gross for a sum sufficient to pay all the debts under this composition The amount was fixed at $8,500. Karst & • Costello paid $2,500 in cash to Campbell with which to pay the unpreferred debts, which he did so far as the same would go and which sum nearly paid up the unpreferred claims against Van Winkle. The balance of the $2,500 was used for the estate expenses. Karst & Costello then refused to carry out the agreement The property was not delivered and the $2,500 was not returned. Karst & Costello were not among the creditors of Van Winkle but were to be interested in the company to be formed. The assignee is liable to account for this $2,500. It was an executory sale of the stock to Karst & Costello.

It is true it was based upon an expectation that the company’s scheme would have been carried out, but it was a receipt of part payment for the sale. The motive which led the firm to require the payment of the unpreferred creditors with this part payment has no relevancy. The assignee was bound to execute the assignment, and if he paid unpreferred debts before the balance of the $8,500 was paid he did so at his own risk. The $2,500 belonged to the trust estate and the referee properly held it to be assets.

The judgment should be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.


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    In the Matter of the Application of The Kings County R. R. Co., App’lt, to Acquire Property of Eliza J. Smith, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Eminent domain—Railroads—Report.
    The report of commissioners of appraisal in proceedings to take easements in a street for a railroad will not he disturbed where they follow neither set of witnesses, but form their judgment upon information obtained through an inspection of the premises.
    2. Same—Evidence.
    In such proceeding evidence as to the causes and amount of the diminution to the property is admissible, although it includes statements that noise and vibration are elements of depreciation, as such evidence is proper for the information of the commissioners, who may allow for the damages caused by the privation of light, air and access, and reject the residue.
    Appeal from order of special term, confirming awara oi commissioners.

      Leslie W. Russell and Welton Percy, for app’lt; Smith, Woodward & Buckley (Chas. J. Patterson, of counsel), for resp’t.
   Dykman, J.

—This is an appeal by the railway company from the award of commissioners appointed to ascertain and appraise the compensation to be made to the owners and persons interested in the real property described in the petition in this proceeding, and from the order confirming such report.

It was the object of the proceedings to condemn the easements in Fulton street adjacent to the property in question, and the commissioners awarded $4,000 for such easements.

The appellant complains of the size of the award and assigns some technical errors, but the means which are available to the commissioners in these proceedings, and the advantages derived by them from sources which are not disclosed to the appellate court, entitles their conclusions to so much respect that their reports are rarely disturbed for excess or insufficiency, and this case is an illustration of the wisdom of such reluctance.

The question for the determination of the commissioners was the damage resulting to the property from the construction and operation of the railroad in the street opposite thereto, and there was a wide difference in the testimony of the witnesses examined on that subject.

The commissioners followed neither set of witnesses, but evidently formed their judgment and based their conclusion upon knowledge and information derived from their view of the premises and the other sources which the law placed at their disposal.

Witnesses were permitted over the objection and exception of the appellant to state the causes and the amount of the diminution to the property, and that is now assigned as error, and the especial objection seemed to be directed to the statements of the witnesses that noise and vibration were elements of depreciation is the value of the property.

Our view is adverse to the contention of the appellant. The right to an award for damages was based upon an unauthorized and illegal use of the street in front of the premises of the respondent, and it was proper to take into consideration as elements of damage the depreciation caused by the deprivation of light and air, and the impairment of the easement of access.

To ascertain the amount of depreciation of the property of the respondent chargeable to those causes a general examination and inquiry was proper and necessary, so that upon a general survey of all the causes of diminution that portion which was attributable to the privation of light and air and convenience of access might be ascertained and allowed, and the residue rejected. In this view the testimony was admissible for the information of the commissioners, who are not confined to the ordinary rules of evidence for the acquisition of the facts upon which they base their report.

Our conclusion is that the report and order appealed from should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


author: Dykman J.

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    In the Matter of the Application of The Kings County R. R. Co., App’lt, to acquire property of Joseph Bryan, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Appeal from order of special term confirming award of commissioners.

      Leslie W. Russell and Welton Percy, for app’lt; Smith, Woodward S Buckley (Chas. J. Patterson, of counsel), for resp’t
   Dykman J.

—What has been said above in relation to the case of Eliza J. Smith has equal application to this case, which is similar to that case in all respects.

The report and order should be affirmed, with ten dollars costs and disbursements.'

Barnard, P. J., and Pratt, J., concur.


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    The People ex rel. Nicola Trezza, App’lt, v. A. A. Brush, Warden, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Criminal law—Double punishment.
    Relator was convicted of the crime of murder in the first degree and sentenced to be executed, but the execution was stayed by an appeal to the court of appeals, which affirmed the conviction, and he was resentenced.. Pending the stay he was kept in solitary confinement. Held, that even if such confinement was improper pending appeal, his return thereto after resentence would not constitute a second punishment for the same offense; that the stay was only of the execution, and not of the right to detain the relator.
    Appeal from order dismissing a writ of habeas corpus granted upon the petition of Nicola Trezza, and denying his application for his discharge from imprisonment in the state prison at Sing Sing and remanding him to the custody of the warden of said prison.

      A. H. Dailey, for app’lt; James W. Ridgway (John F. Clarke, of counsel), for resp’t.
   Barnard, P. J.

—The appellant was convicted of murder in the first degree in Kings county and sentenced to be executed within the week beginning 21st of July, 1890. An appeal was taken and the time fixed for the execution of the appellant passed by the appeal operating as a stay of execution by law. On the 24th of February, 1891, the conviction was affirmed by the court of appeals. On the 6th of March, 1891, the convict was resentenced to death during the week beginning on the 20th of April, 1891, “in the mode, mannér and way, ana at the place prescribed and provided by law.” The prisoner was, pending the appeal, in the state prison at Sing Sing, and upon the second sentence was again taken there. A writ of habeas corpus was applied for by him and this application was denied. . The prisoner claims that he is entitled to his discharge because he suffers punishing twice, in this, that pending the appeal he was kept in solitary confinement, and upon the second sentence he is returned to the same confinement The point is without foundation even if the solitary confinement pending appeal was improper; it was ended with the second sentence and now such confinement is legal.

The stay of execution in the statute stayed physical death, and it may be that on application by the convict the solitary confinement might have been ordered to cease as well as the death penalty ; but such confinement was not within the provisions of law that a person cannot be convicted or punished twice for the same crime. The confinement was entirely right The prisoner was delivered to the warden of the state prison in accordance with law. The stay by the appeal was only of the “ execution ” until the determination of the appeal. Code Crim. Pro., § 528.

The right to detain a convicted murderer in the state prison was not stayed, but the enforcement of the death penalty only by this section.

The sentence itself was proper. The mode of inflicting death upon the prisoner is minutely provided for by statute. Code Grim.-Pro., § 491; chap. 489, Laws of 1888.

The sentence was that the execution was to be carried out in the mode, manner and way provided by law for the execution of the sentence. The justification for the death is under the law and a sentence could add to the force of the statute so as to protect the warden.

The writ was properly denied and the order should be affirmed.

Dykman and Pratt, JJ., concur.