author: Bookes, P. J.:

text:
    GEORGE H. WENTZ, Plaintiff, v. THE ERIE RAILWAY COMPANY, Defendant.

      Passenger — Lay-oner ficJcet—right of railroad to limit time of use of-Baggage-master ■—powers of.

    This action was brought to recover damages for the wrongful expulsion of the plaintiff from the cars of the defendant, upon his refusal to pay the fare demanded of him by the conductor. The plaintiff claimed that he was entitled to remain by virtue of a lay-over ticket, which provided that it should be used within five days from its date, which time had expired. Before entering the train the plaintiff had his baggage checked by the baggage master, who, at the same time, punctured his ticket. Held (1), that, as the time within which the ticket was to be used had expired, the plaintiff was rightly ejected upon his refusal to pay the fare; (2), that the acts of the baggage master did not constitute any waiver of the terms and conditions of the ticket.
    Motion on the part of the defendant for a new trial, on exceptions ordered to be heard in the first instance at General Term.
    The plaintiff was ejected from a' passenger train on the defendant’s road by the conductor for refusing to pay his fare. He put his right to remain on the train, on his possession and presentation to the conductor of a lay-over ticket, giving the holder the rights of a passenger, “ if used within five days from date,” which time had expired six days before the transaction complained of occurred. Immediately prior to his going upon the train, the plaintiff presented the ticket to the baggage master at the station, who checked his baggáge and punctured the ticket in the usual way. The judge at the circuit held, that, inasmuch as the baggage master had recognized the ticket as valid by checking the plaintiff’s baggage, on its production to him at the station, the plaintiff was therefore rightfully on the train ; and his expulsion by the conductor, on his refusal to pay fare, was wrongful, and entitled him to Recover ; and further, that the only question for the jury was the amount of damages to be awarded. The jury assessed the plaintiff’s damages at fifty-one dollars.
    As an excuse for not using the ticket within the time limited for its use, the plaintiff attempted to show that the defendant’s trains did not run, by reason of a strike by their employes; but the evidence made the case, on this branch of it, against the plaintiff. Under the ruling of the court, however, this became unimportant.

      Hart & McGuire, for the plaintiff.

      JD. O. Robinson and E. F. Babcock, for the defendant.
   Bookes, P. J.:

The defendant had the right to limit the time within which the passenger ticket should be recognized by the conductor as valid. .This is now firmly and finally settled. The time limited by the. ticket held by the plaintiff, and on which he claimed the right of a passenger, had expired ; therefore, unless such limitation had been duly waived, or the time therein specified had been extended, the plaintiff was subject to the call of the conductor for his fare, and the latter had the right to eject him on his refusal to pay. But it is insisted that the limitation specified on the-face of the ticket was waived by the baggage master’s recognition of it; and that it remained in force at the time of the plaintiff’s expulsion from the train. The learned judge so held at the circuit. This ruling was, as I think, erroneous. The duties devolving upon the baggage master, pertained to baggage only; nor did it appear that he assumed to exercise any other. He did- simply what he was employed to do by the company, and was asked to do by the plaintiff: checked the baggage. With the regulation which required him to puncture the ticket, the plaintiff had no concern. That was a matter wholly between the" employer and the employe. The baggage master had no right to sell or dispense passes or tickets to passengers, or to change or waive the terms, conditions or limitations of such as were issued by those authorized to deliver them. He was a special agent. His duties pertained to matters of a special character: those connected with the baggage department.. He had no supervision over passengers. He could neither give nor refuse them any personal lights or privileges as passengers on the train. With the rules and regulations under which the trains were run, and by which passengers were bound while on the train (having no connection with the baggage), he had no concern. Nor were any rights, privileges, rules, or regulations pertaining to the person of passengers, ostensibly within the scope of his duties. There were other officers, whose employment and recognized agencies embraced the performance of duties belonging to those matters. The rule that the apparent authority conferred by a principal upon an agent, will be held to be the real authority as between the principal and those dealing with the agent in good faith, has no application here. The apparent authority of the baggage master extended only to due attention to the baggage of passengers ; nor did he assume to possess or exercise any other. He could not be presumed to have any other powers than those which the nature of the business in which he was engaged, required to be exercised; and those did not extend to the right of the person of passengers on the train. It. follows from these considerations of the case, that the learned judge was in error, in holding that the baggage master might, and in this case did, bind the defendant to a waiver of the limitation specified on the ticket for its use. The plaintiff showed no right to remain on the train without answering the call of the conductor for payment of his fare. On his refusal to pay fare, the conductor could lawfully expel him from the ears. This conclusion necessarily leads to the granting of the motion for a new trial.

The case need not be considered on the plaintiff’s excuse for not using the ticket within the time limited for its use. It is, however, difficult to see, how even a direct refusal by the defendant to carry the plaintiff on the ticket within the time specified thereon, would justify him in remaining on the train at a future time, without answering the conductor’s call for fare. But it is not proposed to discuss that subject here.

Present — Bookes, P. J., Laudos- and Countbyaias, JJ.

New trial granted, with costs to abide the event.

       Elmore v. Sands, 54 N. Y., 512.


source: Caselaw Access Project

author: Bocees, P. J.:

license: Public Domain

text:
    EBENEZER ROBERTSON, Executor, etc., Respondent, v. JOHN H. HILLMAN and others, Appellants.
    Will— construction of words ‘ ‘ right of doweo' ® in.

    The plaintiff’s testator, by his will, gave to his wife an annuity of forty dollars in addition to her “right of dower;” he then devised all his real estate to his son Isaac, except his “wife’s dower,” on condition that he should pay certain legacies bequeathed to his other children; all the rest, residue, and remainder of his estate, including his “ wife’s right of dower, after her decease,” he gave' to his grandchildren, authorizing his executor to sell his “wife’s right of dower after her decease,” for the purpose of dividing the same. Held, that by the words “right of dower,” the testator intended the one-third part of his real estate, and that the wife was entitled to the' use thereof during her life, and that the grandchildren were entitled thereto upon her- decease.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      D. A Boies and Lourie & Gilson, for the appellants.

      James Gilson, for the respondent.
   Bocees, P. J.:

The object of this action is to obtain construction of the last will and testament of Matthew Hillman, deceased.

The question in the case arises on the various clauses of the instrument by which disposition was made of the testator’s real estate. The testator first gave his wife an annuity of forty dollars, in addition to her right of dower.” He next gave certain sums to his children, except Isaac, specifying the amount to each respectively : all of which, including the annuity to his wife, were made a lien on his real property. He then devised all his real estate to Isaac, except his “ wife’s dower,” on condition that he, Isaac, should pay and satisfy the legacies in full; and all the rest, residue and remainder -of his estate, he gave to his grandchildren in equal shares, declaring that this devise was to include his “ wife’s right of dower after her deceased These provisions were followed by an express authority to the executor to sell the wife’s right' of dower at her decease,” with a view to a division of the proceeds of sale among the grandchildren.

The rules of interpretation applicable to wills, are supposed to be well understood. The first and -generally the principal point to be determined, is the intent of the testator. To ascertain this, the will must be read and considered in its entirety, with all its provisions; and further, it is always to be presumed that the words employed, were used in their strict and legal acceptation, unless from the context, it shall appear that they were used in a different sense; in which case, the sense in which they were used, will control their construction. Now it seems quite manifest that the testator supposed that there was something valuable reserved for his wife’s use during life, of which he could make disposition at her decease. This something was denominated in the will, “dower” and “right of dower.” Thus, in express terms, he devised to his grandchildren his “ wife’s right of dower after her decease; ” and he authorized his executor to sell and convey such “ right of dower at her decease,” with a view to the distribution of the proceeds of sale. He therefore intended to give his grandchildren something which he denominated “dower” and “ right of dower.” Such intent is plain and unmistakable. It was, too, in his mind, an interest in real property, for he speaks of it in connection therewith, as an exception from the devise to Isaac of “ all his real estate,” and contemplated its transfer by deed. To this extent, then, the intent is manifest. He pttrposed to give his grandchildren real property, which would be discharged from use and enjoyment by his wife on her decease. Now, what he so intended to devise, and in terms did devise, he called or designated his wife’s right of dower.” This brings us to consider the case uuder the rule that the words employed must be presumed to have been used in their strict and legal meaning, unless from the context it shall appear that they were used in a different sense.

Certainly, the terms “ dower ” and “ right of dower,” were not here used in their strict legal sense. The testator could not devise his wife’s right of dower; and we cannot suppose he attempted what he knew he could not accomplish. Therefore, those terms must have a meaning, as here employed, other than according to their strict legal signification. He intended something in their use.

That something must, if possible, be ascertained, to escape the alternative of holding that the devise is void for uncertainty, a result which, as all the cases declare, must be avoided if it can be. The learned judge, at Special Term, held that the devise was operative, according to the intent of the testator, as a,devise of one undivided third part of the farm whereof he died seized, to take effect in possession on the decease of his widow; and, after careful study of the case, I am of the opinion his conclusion is a sound one.

In ■the first place, dower is understood by both the learned and unlearned to apply, as regards quantity, to one-third of the property to which it relates. It is fair to assume, I think, that the testator had this quantity — this measure and proportion — of his real property in mind, when he spoke in his will of his wife’s dower and right of dower. Thus he understood her rights to pertain to one-third of his real estate. He seems further to have understood that this quantxm — this third — belonged to her for life, and that it would remain, on her decease, a distinct and existing item or piece of property, which he could devise to whomsoever he thought fit. He held it in mind as separate and distinct property — one-third of the farm — to be used and employed by his widow during life. So he declared that the devise of the rest, residue and remainder of his estate, of whatsoever name or nature, should include this property, after his wife’s decease; and authorized his executor to sell and convey it, at her decease,” with a view to a division of the proceeds of sale among his grandchildren. In this way, and under this construction, the instrument may have effect given it in all its parts; whereas, in the view urged by the appellants, a portion of it must be disregarded and rejected, as uncertain, meaningless and void — an alternative to be adopted only under stress of imperative necessity.

There is still a suggestion by the appellants’ counsel, not above considered, to wit: that the testator must have intended to devise the entire farm to Isaac, inasmuch as he made the various pecuniary legacies to his other children liens thereon — that is, on the whole farm. But this, as it seems to me, loses its force when we reflect that those legacies were, by the terms of the will, to be paid off and satisfied by Isaac, as a condition of the devise to him. Whatever of value he was to receive, was burdened with the payment of those legacies.

On the whole, I am of the opinion that the construction given to the will by the learned judge at Special Term is the proper one, and that the judgment should be affirmed with costs, to be charged, the same as by the-judgment appealed from, on the third devised to the grandchildren.

Present — Bocees, P. J., Landon and Countryman, JJ.

Ordered accordingly.


text:
    BEROSUS COOK, Appellant, v. HENRY E. CLARK and another, Impleaded, etc., Respondents.

      Mortgage requiring annual payment of interest — eomtruetion of.

    Where a bond, bearing date the 28th day of June, 1871, was conditioned for the payment “ of the sum of $500 on the 1st day of April, 1873, with interest annually on the first day of April in each year,” held,, that the first interest came due April 1st, 1872.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    This action was brought to foreclose a mortgage, dated- June 28th, 1871, and was commenced December 23d, 1872. The mortgage was accompanied by the bond of the mortgagor, executed to accompany it; which instruments were conditioned for the payment “ of the sum of $500, on the 1st day of April, a. d. 1873, with interest annually, on the first day of April in each year.” The referee before whom the case was tried, held that “ no amount of principal or interest was due upon the bond or mortgage when the action was commenced,” and directed judgment of dismissal of the complaint, with costs. The plaintiff excepted to the finding of fact," whereby the referee found that there was no interest due on the 1st day of April, 1872; and, on the settlement of the case, requested him "to find that interest was due on that day. The referee refused to find as requested.

      S. S. Burnside, for the appellant.

      Bouie c& Shumway, for the respondents.
   Bookes, P. J.:

The question in this case, is, whether interest became due on the bond and mortgage on the 1st day of April, 1872. Those instruments bore date June 28th, 29th, 1871, and were conditioned for the payment of $500, on the 1st day of April, 1873, “ with interest annually on the first day of Ajpril vn each yecvr.” In construing this condition, effect must be given to the intention of the parties; and that intention must be determined from the language employed by them to express their purpose. Also, the condition must be so construed as to give efficacy to every part of it, if possible. It may be well, first, to see what was intended by the parties, as to-which there can be no possible controversy: (1) The entire principal of $500 was to be paid by one payment on the 1st day of April, 1873; (2), it was payable with interest — that is, with interest from the date of the bond; and (3), the interest was to become due on the first day of April. Thus far there can be no question. The language of the condition is explicit on these three points. Now, it was further provided that the interest should become payable “ annually, on the first day of April, in each year.” The learned referee read the condition as if these words had been omitted; that is, as if it had simply provided for the payment, as therein expressed, of the sum of $500, on the 1st day of April, a. d. 1873, with interest; ” omitting the next following words above given. I am not satisfied with this reading of the condition. I think the parties had some meaning which they intended to express by those words. , If so, we must determine such meaning and give it effect. Now, the words, “ with interest anmially, on the first day of April in each year,” carries the idea, as I think, that interest was to be paid every year on the first day of April. One of the definitions given by Worcester to the word “ annually,” is, every year. Under this signification of the word, the meaning is plain. The interest was payable on the first day of April in every year. That the parties so intended is apparent from the subsequent words, “ on the first day of April in each year.” Such is the language of the condition. Why add the words “ in each year,” after April, unless it was intended that the interest should be paid the next following April. More than one April was referred to when payment was to be made. It was to be made April first in each year ; that is, each April between the date of the bond and the day on which the entire debt was to be satisfied. It would be an absurdity to hold that provision was made and intended for the payment of interest after the period when the entire debt was to be paid. So, by April in each year, the two Aprils which would occur while the debt remained unpaid, must have been intended. This case is made to depend, for its fair and just construction, on its own peculiarities of language. Ho other can be found, probably, precisely like it, which has received consideration by the court. In French v. Kennedy the question was, whether interest was payable at the time fixed for payment, on the entire debt, or on the several installments as they became due. In Fake v. Eddy’s Ex., the question was as to the time interest commenced. It was determined that it did not commence at the date of the bond, giving due effect to certain words there employed; and interest was allowed from May first, subsequent to its date, which was in that case held to be the time for the commencement of the interest, according to the intention of the parties. In Fellows v. Harrington the question was, also, as tp when interest commenced. That being determined, the construction of the condition was plain. In the case at bar, interest commenced, unquestionably, at the date of the bond ; and the true reading of the condition, as I think, is that the interest was payable on the first day of April in each year ; ” that is, on each first day of April, occurring during the time payment of the principal was postponed. I prefer this construction because in consonance, as I believe, with the intention of the parties, rather than that adopted by the referee, which, in effect, renders very significant words meaningless. If this conclusion be sound, the judgment appealed from must be reversed.

Present — Bookes, P. J., Landon and Countryman, JJ.

Judgment reversed and new trial ordered, costs to abide the event; and reference discharged.'

       7 Barb., 452.

       15 Wend., 76.

       3 Barb. Ch., 652.


text:
    MARY McLAUGHLIN, Respondent, v. NICHOLAS SMITH AND ANOTHER, APPELLANTS.

      Code, see. 80, sub. 13—Transfer of case from County Courrt to Swpi'eme Cou/rt— Costs..

    This action, which originated in Justice’s Court, was certified to the Supreme Court by the county judge, in pursuance of section 30, subdivision 13, of the Code. Upon the trial the plaintiff was nonsuited; subsequently, on a motion made on a case and exceptions, the justice before whom the trial was had, set aside the nonsuit and granted a new trial, costs to abide the event. Upon appeal to the General Term this order was reversed, with costs. Upon an appeal from an order afiirming a taxation of costs by the clerk, held, (1), that, as the first appeal to the General Term was, in effect, an appeal from an order of the County Court, it was to be considered as a motion, and the defendant was only entitled to ten dollars costs thereon; (2), that the motion for a new trial was to be considered as though it had been made in the County Court, and that defendant was only entitled to ten dollars costs on the denial thereof.
    Proper form of an order reversing an order of the court below granting a new trial, stated.
    Appeal from an order made at the Special Term, denying a motion for a retaxation of costs.
    The action originated in Justice’s Court, where the plaintiff demanded and recovered judgment for $100 damages, besides costs. The defendants appealed to the County Court, but not on questions of law only; therefore the action was in that court for retrial. Thereupon, the county, judge, being disqualified, certified the case to the Supreme Court, pursuant to subdivision 13 of section 30, of the Code of Procedure. The action came to trial at the circuit, Mr. Justice J. Potter presiding, when the plaintiff was nonsuited, and judgment of dismissal of the complaint, with costs against the plaintiff, was entered. Thereupon, the plaintiff made a case with exceptions, and moved thereon, before Mr. Justice Potter, at Special Term, for a new trial, which motion was granted; the non-suit was set aside, and a new trial was ordered, with costs to abide the event. From this order the defendant appealed to the General Term of this court, which reversed the order made at Special Term, with costs. The defendants then made out and presented a bill of costs for adjustment, claiming costs the same as if the case had originated in this court; but the county clerk allowed only such costs as the party would have been entitled to, in case the motion for a new trial on the case and exceptions had been made in and decided by the County Court. On a motion at Special Term, in the nature of an appeal, the action of the clerk in refusing to adjust the costs as claimed by the defendants was sustained, and the motion for readjustment was denied.

      J. M. Carroll, for the appellants.

      John Stewart, for the respondent.
   Bocees, P. J.:

The proceedings taken in this court, down to the appeal from the order setting aside the nonsuit and granting a new trial, were such as might have been taken in the County Court, in case the county judge had not certified the action to this court. A motion for a new trial, on a case and exceptions, may be made in the County Court, and it may be made before or after judgment has been entered. The costs allowed on a motion for a new trial in the County Court, on a case and exceptions, are specified in section 371, and are comprised in one item of ten dollars for the argument of the motion. Had this action remained in the County Court, and the motion for a new trial been made in that court, it is quite obvious that the only allowance for costs of the motion to the prevailing party, would have been the item of ten dollars allowed by section 371 for the argument, unless, indeed, in and by the order itself, ordinary motion costs had been expressly awarded. Let us pause here and inquire whether any other costs could be allowed to the prevailing party, in case the motion had been made in thin court, by reason of the action being certified here by the «county judge, pursuant to section 30. This inquiry has been answered by several decisions. These cases hold that notwithstanding the proceedings and decision are in the Supreme Court, under the certificate of incapacity of the county judge to act, yet costs must be allowed and taxed at the same rate as if the case had been disposed of in the County Court. In Humiston v. Ballard, it is said, per Potter, J., that in certifying an action in the County Court to the Supreme Court, for the reason that the county judge is incapable of trying it, though for the purpose of trial the jurisdiction is vested in the Supreme Court, yet the judge at the circuit is but the substitute for the county judge, and the proceedings therein are to be the same as might have been had in the County Court if such cause had remained therein. We are bound to respect these decisions, which have been acquiesced in and accepted as sound ever since the Code was adopted. Therefore, down to the time when the order granting a new trial was made by Justice Potter, the case, for all purposes as to the allowance of costs, was to be considered the same as if it had remained in the County Court, and the order on the motion for a new trial had been made in that court. Our attention is called by the appellants’ counsel to the clause in section 371, which declares that the fees arid costs specified therein, and no other, shall be allowed on appeal to the party entitled to costs as therein provided, “ when the new trial is in the County Court;” and it is urged that it follows, by implication at least, that when the trial is not in County Court, but is in the Supreme Court, costs of the latter court should be allowed. But, according to the decisions above cited, the appeal must be recognized as an appeal to the County Court, and that the cause is tried in the Supreme Court on the appeal to the County Court, by virtue of the certificate of the county judge. So, it is held that the case is to be treated in all the proceedings as if the cause had remained in the County Court. It must be remembered, too, that when the clause referred to was incorporated into section 371, provision was made for the allowance of costs when new trials could be had on appeals in the County Court; and this doubtless led to the employment of those words. It was no more than saying that the following costs, and no other, shall be allowed to the party entitled thereto, when a new trial is had pursuant to the authority there given. Especially should this construction be given, in consideration of the fact that it was then the settled rule, that all proceedings in the Supreme Court, when certified there by the county judge, were to be regarded as if had in the County Court, in so far as the allowance of costs was concerned. Had it been intended by the legislature to limit or quality this well settled rule, such intention would have been definitely expressed, and not left to inference.

The next question that arises, relates to the costs of the appeal to the General Term from the order granting a new trial. On the hearing of this appeal, the order granted at Special Term by Justice Potter, was “ reversed with costs.” The question now is, what costs were the appellants entitled to under this order of reversal. According to the decisions in the cases above cited, the order made by Mr. Justice Potter must be considered the same as if made by the County Court. The Special Term was merely substituted for the County Court, in hearing and deciding the motion. As was said by Mr. Justice Potter, the judge at the circuit (Special Term) is but the substitute for the county judge. It follows that the appeal must be considered the same as an appeal from an order of the County Court; and if it is to be so regarded, it must be considered as a motion, in so far as the question of costs is concerned. This is settled in Woodbury v. Morton and in Crosby v. Brown, f In these cases it was decided that on such appeal the successful party could not have costs as allowed by subdivision 5, of section 307 of the Code, because the case was expressly excepted therefrom; and in Crosby v. Brown, the court held that no costs of appeal could be allowed, inasmuch as none were awarded by the order.

In the case at bar, it seems that the clerk allowed to the appellants ten dollars costs of motion, and ten dollars costs on the appeal. Those allowances were not authorized by the orders; still, no objection was made thereto, and the error or mistake is not before the court for correction. Had the order of reversal at General Term been full and formal, the appellant would doubtless have been entitled to the amount allowed him by the clerk: twenty dollars in all. The order of reversal did not, as entered, dispose of the motion below. It should have been allowed and entered as follows: Order appealed from reversed, with ten dollars costs of

appeal; and motion for new trial on case and exceptions denied, with costs. Under such denial with costs, ten dollars for argument of motion, given by section 371, would have been allowable. But these are formal matters of no moment here.

The question submitted to us, is, whether the appellants on the appeal now before the court, may have costs on the motion for a .new trial, and on the appeal from the order granted on that motion, the same as if those proceedings had been taken in a cause originating in the Supreme Court.

We are of the opinion that he cannot; but must be limited to such costs as he would have been entitled to, had the motion for a new trial been heard and disposed of by the County Court.

The order appealed from must be affirmed, with ten dollars costs.

Present—Bocees, P. J., Landón and Countryman, JJ.

Order affirmed, with ten dollars costs.

       Code, section 30, subdivision 13; section 366, subdivisions 5 and 6.

       Subdivision 6, mpra.

         4 How., 314; 8 id., 305; 16 id., 337; id., 538, 541; 40 id., 40, 43.

       40 How., 43.

       44 How., 56.

       44 How., 149.

        Supra.


text:
    WALTER S. CHURCH, Plaintiff, v. JAMES KIDD and others, Defendants.

      Code, § 268—Motion for new trial under — Beal property—when trust may he shewn by parol — evidence to qualify an absolute cormeyance of—Equity cases—judgment —not reversed for technical errors — Account stated—who not hound try.

      A motion at General Term, under section 268 of the Code, for a new trial, where the decision to be reviewed is interlocutory and provides for a reference, should be made before proceeding with the reference directed by the interlocutory order.
    When a person takes an absolute conveyance of real property at the request and for the benefit of another, who at the time has an interest therein to be protected, he will be deemed the trustee of the party for whom he undertook the purchase; and on tender to him of the purchase-money and interest, he will he compelled to convey the property to the one equitably entitled to it. Equity will not allow a party to retain property thus obtained upon the faith of a verbal contract, and the arrangement made between the parties may be shown by parol evidence.
    In equity actions the court will always look at the entire case and see whether substantial justice has been done, and where that appears it will affirm the judgment, notwithstanding the admission of testimony which, in ordinary actions at law, might have necessitated a new trial.
    A statement of account made between trustees and third persons interested in the trust property, in which there is an agreement to pay interest upon a sum (made up of a principal sum and interest and a bonus thereon, the latter not yet being legally due, though in such account stated to be) found to be due such third persons, there being no authority in the trustees from their cestui que trust to make such agreement, is not binding on the cestui que trust, although for several years after he obtains knowledge of such account stated, he gives no notice to such third persons of his dissent therefrom. »
    In equity actions the granting or withholding of costs, rests entirely in the discretion of the court.
    This is a motion for a new trial, on a case and exceptions, under section 268 of the Code of Procedure.
    The motion is made by the defendants, other than the representatives of Hr. Cagger’s estate. The latter do not join in the motion. The action was brought for the purpose of having the rights of the plaintiff declared and decreed in certain leases, title to which was originally taken by James Kidd and Peter Cagger; and which title was, at the time of commencing the action, in Hr. Kidd and the heirs of Hr. Cagger, then deceased. An accounting was also demanded.
    The defendants, other than Hr. Kidd and the representatives of Hr. Cagger’s estate, were made parties because of their claims for the repayment of advances made by them on the security of the leases, under contracts with Kidd and Cagger. Issue being joined, all the defendants having appeared and answered, the case was tried by and before Hr. Justice Ingalls at Special Term, without a jury. He found and decided all the material issues of fact in favor of the plaintiff; and, on the 26th of August, 1812, the interlocutory decree made by him was entered, whereby the rights of the parties in and to the leases were declared; and a reference was ordered to take and state the account, as regarded the collections upon the leases, and the payments made to the defendants on their advances, etc., with a view to the entry of final judgment in the action. The parties thereupon proceeded with the accounting before the referee; and that officer has made his report, whereon final judgment may now he entered at any time, on due application to the court at Special Term. In the meantime, a case with exceptions has been made and settled, embodying the evidence and proceedings before Hr. Justice Ingalls, with his decision of the case on the. interlocutory order or decree.
    The facts in the case are: that on the 21st day of July, 1853, Stephen Yan Rensselear entered into a contract in writing with the plaintiff, Walter S. Church, and one Oscar Tyler, for the sale by Yan Rensselaer to Church and Tyler of the interest and estate of Yan Rensselaer, as landlord, in certain lands in Albany county, which were leased in fee, with reservation to Yan Rensselaer of certain rents, services, etc., in the several leases specified. By the. terms of this contract, Church and Tyler were to pay in cash $10,000 on its execution. The residue of the purchase-money, which was to be ascertained by a valuation of the leases to be made in a manner specified in the contract, was to be paid with interest in five years from the date of the contract, i. e., on July 21, 1858.
    On the 1st of August, 1853, Stephen Yan Rensselaer entered into a similar contract, in writing, with Church and Tyler, for the sale of other leases of the like nature, the purchase-price for which was to be paid in six years from the date of the contract, i. e., on August 1, 1859.
    Under both of these contracts Church and Tyler were entitled to, and received assignments of, the interest and estate of Yan Rensselaer in certain of these leased lands, as payments were made under the contract.
    On the 2d of April, 1855, Oscar Tyler assigned, by an instrument in writing, to Walter S. Church, all his rights and interests in and arising from the two contracts before mentioned.
    In the year 1862, Walter S. Church having failed to perform the covenants and conditions of the two contracts, and to make the payments therein required, and being in financial embarrassment, and unable to make his payments 'under these contracts, a new contract in writing was entered into, on the first day of March of that year, between Stephen Yan Rensselaer of the first part, and Walter S. Church, James Kidd and Peter Cagger of the second part, whereby Yan Rensselaer agreed to receive the sum of $150,000 ($75,000 in cash and the remaining $75,000 with interest in two years from the date of the contract), and when that sum and inter- - est were paid in full, to execute a transfer and assignment of such . of the leases as should remain unsold. After the execution of this contract, Church assigned all his interest therein to Cagger and Kidd.

      It was claimed on the trial, by W. S. Church, that this contract was entered into, and this assignment taken by Kidd and Cagger, at his request and on his behalf, and that Cagger and Kidd agreed to act for him, and that, subject to the repayment of the advances to be made, as hereinafter stated, Kidd and Cagger held the title to this property as his agents.
    For the purpose of raising the money necessary to make the first payment of $75,000 to Tan Rensselaer, an agreement in writing was entered into on the 1st day of March, 1862, and after the assignment by Church of -his interest in the contract, between James Kidd and Peter Cagger of the first part, and Dean Richmond, Harmon Pumpelly, Charles L. Austin, John K. Porter and Peter Cagger of the second part, wherein it was provided that Dean Richmond should pay the sum of $25,000, Peter Cagger and John K. Porter together the sum of $25,000, Harmon Pumpelly the sum of $15,000, and Charles L. Austin the sum of $10,000; and in consideration of such payment, each of such advancers should receive the sum thus advanced by him and interest thereon, and, in addition thereto, a sum equal to fifty per cent upon such sum so advanced, out of the collections of rent under the leases above mentioned, and the proceeds of any sale of the leased lands, after first deducting therefrom certain expenses, etc., and the remaining $75,000 which was to be paid to Tan Rensselaer under the contract with him of March, 1862, above mentioned.
    On the 2d day of May, 1864, the entire purchase-money having been paid to Tan Rensselaer, a deed of conveyance of the premises mentioned and described in the aforesaid contract between Tan Rensselaer and Cagger, Kidd and Church, was executed by Stephen Tan Rensselaer and wife to James Kidd and Peter Cagger, Walter S. Church’s interest having been transferred to James Kidd and Peter Cagger, as above stated.
    After the execution and recording of this deed, and in the year 1864, complaints were made by the advancers that the work of settling up and disposing of the leases was not prosecuted with diligence, and threats were made to have a receiver appointed to close up the business so that the advancers might recover the amount due to them. In consequence of these threats and complaints,, soon after January 1, 1865, a statement was made of the account of each advancer, crediting him. with the amount advanced with interest up to January 1, 1865, and adding thereto fifty per cent on the amount advanced ; and at the foot of this account was a statement that on an adjustment had, the sum therein. mentioned, i. e., the amount advanced with interest and the fifty per cent added, was found due, and that on such sum interest was to he paid semiannually until the principal sum should be paid. This statement was signed by Peter Cagger for himself, and for James Kidd as" his cotrustee; and the different accounts so stated, with this agreement written under them, were sent about the time they were made to the different advancers; and in pursuance of this statement of account, interest was twice paid on the total amount, i. e., the amount advanced and interest, and the bonus of fifty per cent to the advancers, and receipts were taken from them specifying that such payment was for the interest of that sum. • After the first two payments the amount realized from the leases was always more than sufficient to pay the interest, and payments were made in excess of the interest due, and generally on account.
    There is some dispute as to when Walter S. Church first became aware of this statement and the payments of interest made under it, he swearing that it was not until a year after it was made, and till just after the second payment of interest, while certain facts in the case tend to show that Church was aware of the transaction at the time, or almost immediately after it took place.
    It was admitted that after it was known to Church that this statement had been made, he gave no notice to Kidd, Austin, Pumpelly, Richmond or Porter of his intention to repudiate it, though he did make objections thereto to Cagger, which were not, however, communicated to them. It was not until after the death of Cagger, Austin and Richmond, and just prior to the commencement of this action (April, 1871), that he claimed to the advancers that this was an unauthorized statement of account, and that the advancers should not be allowed to credit to interest on the bonus, any of the moneys received by them from these leases.

      Lyman Tremain, for the defendant Richmond.
    A motion for a new .trial at General Term, after interlocutory decree in an equity case, is the proper mode of bringing before the court for review the merits of the case. (Code, § 268; Stanton v. Miller, 1 N. Y. Supreme Court R., 23; S. C., 65 Barb., 58.) The costs of this action are in the discretion of the judge at Special Term, and such discretion is reviewable at General Term. (People v. Central Railroad Co, 29 N. Y., 418; Downing v. Marshall, 37 id., 380; Witmore v. Parker, 52 id., 466.) The judge, erred in allowing Church to testify as to transactions, conversations and agreements had by him with Cagger, deceased. (Code, § 399.) Parol proof that the , purchase was made for plaintiff’s benefit, or on his account, is inadmissible. (Botsford v. Burr, 2 Johns. Ch., 409; Bartlett v. Pickersgill, 4 East, 577, note; Bannet v. Dougherty, 32 Penn. St., 371; Nixon’s Appeal, 63 id., 279, 282.) Parol evidence of a trust, in contradiction of the terms of an absolute deed,fmust be clear and unequivocal. (McGinity v. McGinity, 63 Penn. St., 38, 44; Todd v. Campbell, 32 id., 250, 252.) Here the complaint charges, and the proof shows, that the deed was given to Kidd and Cagger. (Swinburne v. Swinburne, 28 N. Y., 571; Lounsbury v. Purdy, 18 id., 515.)

      George W. Miller, for the defendants, Kidd and Pumpelly.
    The pretended interest claimed by the plaintiff in the residuum of the leases in question, could not be established by parol, however clear the existence of the fact may have been, without a plain violation of law. But if the fact be that such a parol agreement was made with Kidd and Cagger as Church swears to, it has no legal validity, and cannot be enforced, and the complaint should have been dismissed for that reason. (2 R. S., 135, § 6; Levy v. Brush, 45 N. Y., 589; Ryan v. Dox, 34 id., 307.) The transaction was in a legal sense intended to hinder, delay and defraud the creditors of Church, and he is not in condition to invoke the aid of the court. A transaction which has the effect of hindering, delaying and defrauding creditors is not only illegal but immoral, and a particeps criminis cannot, by aid of any court, derive any benefit from it in any form. (Nellis v. Clark, 4 Hill, 424, and kindred cases; Sweet v. Tinslar, 52 Barb., 271; Stewart v. Ackley, 52 id., 283.)

      Marcus T. Hun, for the defendant Austin.
    When the intention is to hold a fund itself as security for a payment, courts of equity will always recognize the interest and enforce the rights of the party in the fund. (Hendricks v. Robinson, 2 Johns. Ch., 283-314; 17 Johns., 438; Van, Hoozen v. Corey, 34 Barb., 1; Seymour v. Canandaigua & Niagara Falls R. R. Co., 25 id., 284; Rorrbach v. The Ætna Insurance Company, 1 hi. Y. Sup. Ot. R., 345; Morrill v. Noyes, 3 Am. Law Reg. [LT. S.], 18; Holroyd v. Marshall, 9 Jur. [N. S.], 215 [foot of page]; Pinch v. Anthony and others, 8 Allen, 536; Hall v. The City of Buffalo, 1 Keyes, 193.) The court, in admitting evidence subject to be retained or stricken out, and in not deciding before the termination of the trial to strike it out, must be presumed to have retained it and acted upon it. (Berriant v. Sanford, 1 Hun, 625; Clussman v. Merkel, 3 Bos., 407; Sharpe v. Freemam,, 45 N. Y., 804.) The declarations of an agent which are part of any res gestee which is the subject of inquiry, are receivable against the principal; and when the acts of the agent will bind the principal, his declarations respecting the subject-matter will also bind him, if made at the same time and constituting part of the res gestee. They must be made not only during the continuance of the agency, but in regard, to a transaction depending at the very time. (1 Greenl. Ev., § 113; Luby v. The Hudson River R. R. Co., 17 N. Y., 131; Anderson v. Rome, W. & O. R. R., 54 id., 340.) On the question of estoppel, see Story on Agency [7th ed.], § 127; id., § 93; L. R. [3 Eng. and Irish App.], 255; Wendell v. Van Rensselaer, 1 Johns. Ch., 353; Kelly v. Scott, 49 N. Y., 595; Tilton v. Nelson, 27 Barb., 605; Sharpley v. Abbott, 42 N. Y., 448; 2 Story Eq. Jur. [10 E. & L.], § 1284, a. The agents have acted within the general scope of their employment. (Booth v. Bierce, 40 Barb., 114.) The statement of account and agreement to pay interest were valid and binding on the parties. 1st. It was an account stated, and can only be set aside by reason of fraud or mistake. (Lockwood v. Thorne, 11 N. Y., 170; Chubbuck v. Vernan, 42 id., 432; Rock v. Bonitz, 4 Daly, 120; Johnson v. Hartshorne, 52 N. Y., 178.) 2d. It was sustained by the sufficient consideration that it was given to prevent litigation and settle a dispute as to the rights of the parties. (Crass v. Hunter, 28 N. Y., 389-394; Russell v. Cook, 3 Hill, 504; Supervisor v. Browne, 4 Lans., 24-33; Organ v. Stewart, 1 Hun, 415.) 3d. It will be enforced by a court of equity, after the parties have mutually assented to its validity for seven years and have acted upon it; and the court will not give Church equitable relief, without first requiring him to do equity in carrying out his agreements. (Smallcombe’s Case, L. R. [3 Eng. and Irish Appeal], 255; id. [3 Eq. Cases], 769.) The assignment was fraudulent. An insolvent debtor, he was to retain possession of the property assigned. (Smith v. Acker, 23 Wend., 653; Griswold v. Sheldon, 4 N. Y., 587; Edgell v. Hart, 9 id., 213.) Church makes an assignment and retains out of the property assigned a support for himself. (Edgell v. Hart, 9 N. Y., 213; Griffin v. Barney, 2 id., 370.) The granting or withholding of specific performance is within the discretion of the court, and it will not be granted when it would be against conscience and equity to do so. (Story Eq., § 742; 1 Sugden on Vendors [8 Am. ed.], 319; Peters and others v. Delaplaine, 49 N. Y., 362, 367; Seymour v. Delancey, 6 Johns. Ch., 222; Sherman v. Wright, 49 N. Y., 227, 231; St. John v. Benedict, 6 Johns. Ch., 111; Nellis v. Clark, 20 Wend., 24, 29; see also Jones v. Read, 3 Dana, 540; Walker v. Miles, 3 Dev. S. C., 519; Wright v. Wright, 2 Litt. [N. S.], 12; Sweet v. Tinslar, 52 Barb., 271; Stewart v. Ackley, 52 id., 283.) The undisputed existence of certain facts in the case, will authorize the court to decide as matter of law, that the fraudulent intent existed. [Cunningham v. Freeborn, 3 Paige, 564; Edgell v. Hart, 9 N. Y., 213.) The intent to delay is as much a violation of law as the intent to defraud. (Nicholson v. Leavitt, 4 Sandf., 252, 283; Hendricks v. Robinson, 2 Johns. Ch., 300.) The court is asked to aid a dishonest debtor in his efforts to crawl out of the entanglements of his own fraud.

      Amasa J. Parker, for the plaintiff.
    Where the arrangement is made to protect an existing and vested interest, it may be made by parol. (Levy v. Brush, 45 N. Y., 596.) Fraud is now by statute a question of fact, and must be proved as such, both against the person conveying and the person taking a fraudulent conveyance. (2 R. S., 137, § 4; Dygert v. Remerschnider, 32 N. Y., 629; affirming, 39 Barb., 417; Auburn Bank v. Fitch, 48 id., 344; Ruhl v. Phillips, 48 N. Y., 125.) The defendants were not assignees, nor did they act in a representative capacity, but only for themselves. (Penny v. Black, 6 Bosw., 50, 57.) The defendants are not entitled to recover interest on the fifty per cent bonus. This bonus was only an usurious interest, agreed to be paid for loaning the money, and the simple question is whether interest can be recovered on interest. (7 How. Pr., 256; 1 John’s Ch. R., 14; 11 Paige, 228.) Indeed the interest money ought to have been recovered back. (Boyer v. Pack, 2 Denio, 107.)
   Bookes, P. J.:

This motion is made under the clause of section 268 of the - Code, which provides that when the decision filed under section 267 does not authorize a final judgment, but directs further proceedings before a referee or otherwise, either party may move for a new trial at General Term; and for that purpose may, within ten days after notice of the decision being filed, except thereto, and make a case or exceptions, as in said section is provided in case of an appeal. This case fell within the clause of section 268, above cited, and the defendants had the right, consequently, to make a motion for a new trial at General Term on a case and exceptions. But it is insisted that they were bound to diligence, and should have made the motion before proceeding with the reference directed by the interlocutory order.

The clause of section 268 giving, the right to make this motion, was introduced into that section by amendment in 1867. Its object was to- facilitate proceedings, and more particularly to save the labor and expense of the reference until the case could be reviewed at General Term on the questions, which, as decided, constituted the basis of that proceeding. In Stanton v. Miller, Judge Talcoit says, that the amendment of 1867 was adopted to avoid the delay and expense of the further contemplated proceedings, which would be useless if it should turn out that any error had been committed on the trial, or in the interlocutory decision; and he adds, that to proceed with the trial of the matters referred,

“ would involve much expense and delay, the whole of which would have been uselessly incurred, if it should turn out that the justice at the circuit had erred in the admission or exclusion of evidence, or in his findings of fact or conclusions of law.”

In this case over two years have elapsed since the .interlocutory decree was made and entered, and the parties have gone on with the reference before the referee to its termination. That officer has made his report, and the case is in readiness for the entry of final judgment. It was to save the labor and expense attending the reference, anticipatory of a reversal of the interlocutory decree, that the privilege was given to parties at this stage of the case to make the motion. If nothing was to be gained either in dispatch or in the avoidance of labor or expense, there was no necessity for the amendment introduced into the Code in 1867; for parties might secure all that could be attained by the motion, on appeal after final judgment. Here, as it appears, the labor'and expense of the reference have been incurred; and now to entertain the motion at this late day, and in the present condition of the case, would be to allow a practice subversive of the purpose which induced the amendment, pursuant to which this proceeding is taken. The party desiring the benefit of this provision should be diligent in seeking its advantages. If he lie by until they are lost, the motion is without merit. Therefore laches unexcused, and especially the proceeding with the reference to its conclusion, should, in consideration of its object, be deemed a waiver of the right to the benefits of this provision ; otherwise the whole purpose of it is defeated. Nor can it be urged that action on the order of reference could not be avoided, if the adverse party insist on proceeding; for a stay would be granted by the court, when it should be made to appear that there was an intention to make the motion so soon as the case and exceptions were settled, and that the party was acting in good faith, with no purpose to cause unnecessary delay. I am of the opinion that the defendants, under the circumstances of this case, might well be held to have lost their right to make this motion, because of the unexcused delay; and for the further reason that it is not made until after the reference under the interlocutory order has terminated, and the referee has made his report.

But the motion has been fully argued on the merits; and the counsel for the defendants expressed apprehension lest their case might be in some way imperiled, unless the questions involved in it, should be considered on this application. We have therefore concluded to disregard the objection above suggested to the hearing of the motion, and the case will be examined as presented on the proof and exceptions,

In the examination of the questions presented on this motion, it will be necessary to consider them with reference to the defendants separately, to some extent, inasmuch as they are not all affected by them alike. The position of the defendants, Kidd and the representatives of Cagger’s estate, is quite different from that of the other defendants. The former defendants have the legal title to the leases in controversy, and contest the plaintiff’s right to any interest whatever in them. The other defendants are only interested to protect their rights as advancers of money on the security of the leases, which rights are not disputed by any one, except as regards a claim by them for an allowance of interest. It may be well therefore to examine the ease, first, as between the plaintiff and the defendants, Kidd and the representatives of the Cagger estate. The plaintiff in his complaint charged that he had a reversionary interest in the leases in controversy, which were conveyed by Mr. Van Rensselaer to Kidd and Cagger, and which were held by them under an absolute conveyance in fee. This averment, as regarded the plaintiff’s right to the leases, was denied by the defendants, Kidd and the heirs at law and personal' representatives of Cagger. The learned judge on the trial found in favor of the plaintiff on this issue. He found and decided that the leases in controversy were the property of the plaintiff^ subject to the payment to the defendants of certain moneys in the findings specified; that Kidd and Cagger held them as trustees of the plaintiff for the purpose of paying and satisfying those moneys; and that Kidd and Cagger were bound to convey and deliver them to the plaintiff, with the rents due and to grow due thereon, so soon as the several amounts secured thereby should be paid, either by collections therefrom, or by the plaintiff from his own funds. These findings, inserted in the record at length and in due form, are challenged as unsupported both in fact and law.

The first question which here arises, is, as to the character of the evidence by which the plaintiff sought to establish his alleged right in the leases, which were held by Kidd and Cagger by absolute conveyance. The conveyance of the leases to the parties last named, neither stated nor intimated that the plaintiff had, or was to have, any interest in the property thereby conveyed. It was in form a simple and absolute conveyance of the leases to Kidd and Cagger, with all rights growing or to grow out of them. Hor was there any paper executed and delivered by Kidd and Cagger to the plaintiff expressly declaring his rights as charged in the complaint and found by the learned judge on the trial; but the evidence given to establish the plaintiff’s claim rested in parol. It consisted of oral statements of the parties, and of memoranda, letters, receipts and recitals in instruments executed by those defendants, which tended to establish the plaintiff’s right to the leases substantially as averred. in the complaint. The judge held this evidence competent, and gave it effect. It is insisted that the plaintiff’s alleged rights in the leases could not be established by such evidence; that its admission was erroneous, and the effect given it was in disregard of the statute of frauds. It is answered that the case is in principle like' that of Ryan v. Dox. In this case it was held, that where a party takes an absolute conveyance of real property, at the request and for the benefit of another, who at the time has an interest therein to be protected, he will be deemed the trustee of the party for whom he undertook the purchase, and on tender to him of the purchase-money and interest, he will be compelled to convey the property to the one equitably entitled to it; and further, that such equitable right may be established by parol. The soundness of this decision has been repeatedly recognized; and especially is it recognized in the recent case of Levy v. Brush, If, therefore, the case at bar be within the principle of the case cited, the statute of frauds can have no application ; otherwise it is fatal to the plaintiff’s right of action. ISTow a distinction must be observed between a case where the party has an interest in the property to be protected when the conveyance thereof is made, and a case where the party has no such interest. In the latter, where he has no interest to be protected, the case would faff within the statute. But in the former, where he has an interest, he will be protected in his rights, although the agreement between him and the person taking title, rests in parol. “ In such cases equity will not permit a party to retain property obtained on the faith of a verbal contract, and consummate a fraud’ by retaining the property and refusing to perform the contract.”

To the same effect is the decision in Stoddard v. Whiting, which case, in many of its features, is like the one at bar. The question now arises, had the plaintiff an existing, vested interest in the leases when the contract was entered into between Yan Rensselaer, of the one part, and Church, Kidd and Cagger, of the other part, dated March 1, 1862, and when Kidd and Cagger subsequently took the conveyance ? That he then had an interest in the leases, seems beyond peradventure. He held contracts with Yan Rensselaer, by which, on due performance on his part, the latter was bound to convey them to him. These contracts were parti/performed on his part. He had already paid to Mr. Yan Rensselaer a very considerable amount on the purchase-price agreed by him to be paid, and the contracts were, beyond question, of great value to him.' This cannot be well denied. It was of the utmost importance to him that his interest should be protected from forfeiture; and such protection might be secured by an oral agreement with Kidd and Cagger, in the way it is here alleged and found to have been done. It was competent to establish the plaintiff’s right and interest in the leases by parol, in this case, notwithstanding Kidd and Cagger took and held the leases under an absolute conveyance from Yan Rensselaer'.

It is further urged that improper evidence was received, against the defendants’ objection, to establish the arrangement between the plaintiff and Kidd and Cagger, in this : that the plaintiff,was allowed to testify to personal transactions and communications between himself and Mr. Cagger, who was then deceased, contrary to the provisions of section 399 of the Code. The representatives' of the Cagger estate are not before the court on this motion. This question may therefore be considered without regard to their rights.

It will be seen, on an examination of the rulings of the court, that the evidence admitted was competent as against the defendant, Kidd, inasmuch as it had reference to transactions and communications wherein the latter participated. Such was the cáse in most instances where objections were urged against the plaintiff’s testimony as incompetent under the provisions of the section cited. Thus the evidence was competent as against Kidd. The defendants, Kidd and Cagger, were not partners in this matter. As represented in the conveyance to them, they were tenants in common of the property conveyed. It was therefore admissible for the plaintiff to' testify to what occurred between himself and Kidd; and the evidence could not be excluded on Kidd’s objection, because Cagger, who was dead, was present and took part in the matters of inquiry. What was said and done between the plaintiff and Kidd, pertinent to the issue, might be proved by the former. But all evidence which by possibility might be objectionable under the provisions of section 399, may be stricken out of the case, and there would still remain abundant proof to sustain the findings of the court. It would still remain well established by evidence of undoubted admissibility, that the plaintiff was to have the leases, or all that remained of them, after the defendants’ just claims upon them were fully satisfied.

The unobjectionable admissions and statements of Kidd and Cagger; the memoranda made by them, or of which they were cognizant; the letters, receipts and recitals in agreements with which they were connected, and the manner in which the business pertaining to the leases was conducted, afford abundant proof to sustain the conclusions declared by the learned judge in his findings. It is quite apparent on a full reading of the case, that the admission of the evidence objected to did.not, as in fairness it could not, work any harm. It was held in Platt v. Platt, that in equity actions the court will always look at the entire case, and see whether substantial justice has been done; and where that appears, it will affirm the judgment, notwithstanding the admission of testimony which, in ordinary actions at law, might have necessitated a new trial. There seems to be no. ground for a new trial on Mr-Kidd’s application, by reason of the admission of improper evidence.

It is further urged that the entire arrangement between the plaintiff and Kidd and Cagger, was entered into with a view to hinder, delay and defraud the plaintiff’s creditors, and therefore that he has no standing in court to enforce the agreement. This alleged defense is not set up in the answers. But it is unsupported in point of fact. It is very manifest that the arrangement was entered into, in order to save the contracts with Van Kensselaer from forfeiture. Had a forfeiture been permitted, there would have been nothing growing out.of them either for the plaintiff or his creditors. The inducement to action was the preservation of" the plaintiff’s rights, rather than to hinder, delay or defraud his creditors. Undoubtedly the plaintiff was under great pecuniary embarrassments. It was. this perplexity which necessitated his action in calling Kidd and Cagger to his aid. It is not a little difficult to perceive how the rights of the plaintiff’s creditors could be prejudiced by an arrangement which preserved to them what, without it, would have been lost. It is quite plain, I think, that the parties in this action had no intent — as such action manifestly did not further that purpose •—■ to hinder, delay or defraud the plaintiff’s creditors.

With the questions above considered, the defendants., other than Kidd and the Caggers, have, as I think, no concern. As regards Kidd and the Caggers, they have the absolute legal title; and those questions are important to them in the defense of such title. But the other defendants claim only as advancers and lien-holders; and it is of no consequence to them, who shall be adjudged to own the leases, so be it that their rights in them are recognized and protected. Therefore they can have no interest in the issue between the plaintiff on the one side, and Kidd and the Caggers on the other, as to their ultimate ownership.. Those parties, both plaintiff and defendants, admit alike the superior right of the advancers and lien-holders to the leases; and the decision of the court gives to them the full extent of their claim, except as to an allowance for interest which will presently receive attention. Thus it seems that the defendants, the advancers and lien-holders, are not in a position to insist upon the objections above urged by the counsel for Mr. Kidd. Their rights, as advancers and lien-holders, are in no way injuriously affected by the rulings above considered. They are not harmed by them; hence, cannot be heard to complain. But were it otherwise, and admitting their rights to be affected by those objections, the same .considerations which led to the conclusion that they were ineffectual as to Kidd on his motion for a new trial, will render them unavailing, also, to the advancers and lien-holders.

But, in point of fact, the decision rendered, fully recognizes the rights of the latter, and makes all needful and proper provision for the security and ultimate payment of the money due them. It follows that all further questions which can affect their interest, will arise on the accounting ordered by the interlocutory decree; and were there no special directions given therein, to control that proceeding, the case would require no further attention at this time. But this decree does contain a direction as to the allowance of interest, binding on the referee who is to take and state the accounts, and the correctness of this direction is properly challenged here. This subject will now be considered.

According to the decision, the advancers were not entitled to interest on the bonus of fifty per cent on their advances, agreed to be allowed them in and by the instrument on which their 'claims are based. It appears that the first sum of $75,000 paid to Mr. Tan Rensselaer on the contract executed by him, Church, Kidd and Cagger, was made up as follows: Dean Richmond advanced $25,000; Porter and Cagger together advanced $25,000; Harmon Pumpelly advanced $15,000; and Charles L. Austin advanced the remaining $10,000. These sums were to be repaid to those advancers from collections to be made upon the leases, etc., with interest thereon; and also, as stated in the agreement, “ the additional sum of fifty per centum of the amount respectively advanced by them: that is to say, to Dean Richmond the sum of $12,500, being fifty per centum of the amount contributed by him; to John K. Porter and Peter Cagger the sum of $12,500; to Harmon Pumpelly the sum of $7,500; to Charles L. Austin the sum of $5,000.” The bonus to these advancers was in all respects the same as interest. It was interest, as it was a premium to be paid for the use of money. In consideration of the money advanced, the advancers were to have for its use and employment in the way agreed upon, the ordinary bonus of seven per cent, with an additional bonus of fifty per cent on the sums advanced. The question now is, was interest allowable in taking and stating the accounts of the advancers on this bonus ? I am content to adopt the reasoning and conelusi on of Mr. Justice Ingalls on this question, as given in his opinion at Special Term. He considered the question in all its bearings, as here presented, and reached the conclusion that even the alleged promise by Kidd and Cagger to allow interest on the bonus, did not authorize its allowance on the accounting with the advancers, ordered in this case. The learned judge reasons as follows:

The agreement which provides for the payment of such bonus, does not create any obligation to pay such interest. It provides for the payment of the principal sums advanced and interest thereon, but no direction to pay interest upon such bonus. It is therefore' not a fair inference that the parties originally contemplated such „ payment, else we may infer a provision to that effect would have been inserted in the agreement. Tkerd is no evidence of an express promise on the part of the plaintiff to pay such interest. Without such promise, or something equivalent thereto, the law will not recognize a liability to pay the same. It is well settled that compound interest is not collectible, without a special agreement to pay the same, and that, too, after the original interest has become due and payable. I do not perceive why the bonus of fifty per cent, so far as the right to compute interest thereon, can be regarded in a more favorable light than an agreement to pay interest upon a principal debt. And hence, there should, at least, be an agreement to pay interest thereon, after such bonus became due and payable. No such agreement on the part of the plaintiff is established. It is insisted by the defendants that a statement of the account in their favor by -Messrs. Kidd and Cagger, was made, including such interest up to a certain date, and that the same was entered in a book kept in the office of plaintiff, and a copy of such statement was furnished the defendants or some of them, and under such circumstances as should have brought knowledge thereof to the plaintiff and that such facts are equivalent to an express promise by the plaintiff to pay interest upon such bonus until the same should be fully paid. If we assume to be established, what the defendants thus claim, I do not think they have been successful in bringing their case within any principle, which the law recognizes, which entitles thém to charge and collect interest upon the bonus. It neither amounts to such a promise to pay such interest as the law requires to create a liability, nor can it be properly held to be such a consolidation of the bonus with the original indebtedness, as to constitute one principal sum upon which interest can be computed. In regard, however, to the payments of interest upon such bonus which had been actually made to the parties who advanced their money, by Messrs. Kidd and Cagger, the trustees, prior to the time, the plaintiff protested to Mr. Cagger against the payment of such interest, and prior to the change in the form of the receipts taken from the parties who had made the advances, I feel justified, from all the circumstances, in holding that such payments of interest have been substantially adopted by the plaintiff, or at least that his repudiation thereof has not been so prompt and of such a character, as should entitle the plaintiff to recover the same of such parties, or to be allowed the same on the accounting. The plaintiff should have promptly notified such parties that he objected to such payments of interest, and claimed either that it be refunded or applied upon his indebtedness. The protest which he claims to have lodged with Mr. Cagger, was not sufficient. There is no doiibt but that compound interest may be retained, when the same is paid voluntarily by a party.” .

This presentation of the question by Mr. Justice Ingalls is deemed quite satisfactory and conclusive.

It is further urged that costs should have been allowed to the advancers against the fund. In equity actions the granting or withholding of costs, rests in the discretion of the trial court. Mor can it be well maintained that the discretion of the court in this case, in refusing costs to the defendants, was not fairly and judiciously exercised. The defendants failed in nearly all the important questions in the case, both of fact and law; hence, have no claim to be recompensed by an allowance of costs. As regards the defendants — the advancers and lien-holders — their rights were stated in the complaint, substantially, as found by the judge. On the claim for an allowance of interest on the bonus, put forward by the advancers, they have failed. Indeed, as to the advancers and lien-holders, they were only interested in the litigation to the extent of having a fair and just accounting, in order to have the amount due and unpaid to them respectively, accurately and definitely determined, as their superior right to the lease's and to their avails, as security and for the purpose of payment to them of their just and full claims, was not controverted by any one.

After a careful examination of the case, I am of the opinion that the moving parties have no just cause of complaint; that the findings and decision of the court, at Special Term, are well supported, both in fact and law; hence, the motion for a new trial must be denied.

Present — Bocees, P. J., Landon and Countryman, JJ.

Motion .denied, with costs.

       Stanton v. Miller, 65 Barb., 58.

        Supra.

      3 R. S. (5th ed.), 137, § 6.

       34 N. Y., 307.

       45 N. Y., 589,596.

       Levy v. Brush, supra, per Grover, J.; 74 Penn., 311; 73 id., 458; 55 id., 369.

       46 N. Y., 627

       Stoddard v. Whiting, supra, on page 632.

       2 N. Y. S. C. Rep., 25, 26.

       Van Benschooten v. Lawson, 6 John. Ch., 313; Toll v. Hiller, 11 Paige Ch., 328; State of Connecticut v. Jackson, 1 John Ch., 13; Boyer v. Pack, 2 Denio, 108; Van Rensselaer v. Jones, 2 Barb., 644; 41 id., 22, 23, 24; 17 How., 265, 257.

      17 How., 211; 46 id., 1.


author: CotTNTBTMAN, J. I Habdin, J.:

text:
    CHARLES SHAW, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Declarations made in extremis—when not admissible—hearsay evidence—Oowrtof Oy&r and Terminer—constitution of.

    Upon the trial of the plaintiff in error, on an indictment charging him with the murder of his wife, witnesses were allowed to testify, against his objection, to declarations of his wife, made in exti’emis, to the effect that he and another person were the cause of her suffering; that she expected that he and this person caused her death. Held, that the declarations were not statements of facts, but were simply the opinions and conjectures of the deceased, and that they were improperly received in evidence.
    The theory of the prosecution was, that the accused had poisoned his wife and three children, in order that he might live with one Sarah Briggs; the theory of the defense was, that the poison was administered by the wife in a fit of jealousy, caused by suspicions of improper intimacy between the accused and Sarah Briggs. The defense offered to prove declarations of the deceased, “ that she had poison and knew how to use it,” and that rather “than Mrs. Briggs should have her children, she would put them all under the sod,” which declarations were excluded by the court. Held, that their exclusion was error. ' ^
    Upon the commencement of the trial the court consisted of the presiding justice, the county judge, and the justices of the peace. After a portion of the evidence had been taken, the court adjourned from Saturday until Monday. On the assembling of the court on Monday, one of the justices was absent, but on the following day he resumed his seat and took part in all the subsequent proceedings. Held, that, as the justice who was absent on Monday did not hear the evidence taken on that day, and as the same was not read over to him, he was not qualified to take part in the proceedings of the court; and that, as the court was therefore improperly organized, a new trial should he granted. (Per Hardin, J.)
    Writ of error to the court of Oyer and Terminer of Washington county, to review the conviction of the'plaintiff' in error of murder. The plaintiff in error, Charles Shaw, was indicted at the February term of the Oyer and Terminer for 1873, for the murder of his wife, Julia Ann Shaw, by poisoning with corrosive sublimate; and Sarah Briggs was jointly indicted with him, as accessory before the fact. At the same term three other indictments were found against the plaintiff in error, as principal, and Sarah Briggs as accessory, for the murder, by poisoning with corrosive sublimate, of Elizabeth Shaw, Marietta Shaw, and Harriet Shaw respectively, who were the children of the plaintiff in error and Julia Ann Shaw. The plaintiff in error was tried at the October term, 1873. It was the theory of the prosecution, on the trial, that the deaths of Julia Ann Shaw and the three children were all caused by corrosive sublimate, mixed in whisky and administered to them by the prisoner at the same time, on the 13th day" of January, 1873, and on various occasions thereafter, during their illness, until his arrest. Elizabeth, Marietta, and Harriet died in January, and Julia Ann, the mother, February 5th, 1873. The alleged motive to the crime was, that the prisoner had become enamored of Sarah Briggs, and desired to be rid of his wife that he might form closer, permanent relations with her. The theory of the defense was, that the sickness and deaths of the mother and children were caused by improper food, innocently taken: sausages in a state of chemical change," eliminating what is described as “sausage poison”—the same food making others also seriously ill; or if the deaths were the results of criminal agencies, that the poison was, in fact, administered by the wife and mother herself, Julia Ann Shaw, in a fit of jealousy, caused by her suspicions of improper intimacy between the prisoner and Sarah Briggs. The prosecution accordingly proved, under the prisoner’s objections and exceptions, the entire transactions, including the acts of the prisoner toward the children, so far as his wife was connected therewith, and the alleged effects produced upon the children as well as the wife, by the potions administered to them, including the post-mortem examinations and chemical analyses of their remains. They also proved acts of intimacy, between the prisoner and Sarah Briggs, declarations and threats of the prisoner made previous to the illness of any of the members of his family, indicative of an intention to part with or to removeiiis wife out of the way, as an obstruction to the gratification of his desires. They also offered in evidence the declarations of the wife as to the cause of her sufferings, made during her illness and after she had abandoned hope of recovery. The prisoner’s counsel objected to the evidence as hearsay, incompetent and inadmissible, and on the ground that no proof had been made to bring them within the rule of dying declarations. The court overruled the objections, and the prisoner excepted. One of the witnesses then testified to the following declarations: “ She said that Charles and the Briggs woman was the cause of all this suffering, the cause of all this. * * * She remarked once that Charles and the Briggs woman knew all about this—something to that effect.” Another witness was permitted ■ to testify, under the same objection and exception, as" follows: “ I talked with Mrs. Shaw only once about the causé of her sickness; she said she expected it . was Charles and Mrs. Briggs.” The prisoner’s counsel offered to prove, in his defense, the declarations. of his wife several days before her illness, while talking in an excited manner about her husband and Sarah Briggs, “ that she (the wife) had poison and knew how to use it; and that rather than Mrs. Briggs should have her children, she. would put them all under the sod; ” and also “ that rather than Mrs. Briggs should be stepmother to her children, she would put them under the sod.” The counsel for the people objected to this evidénce as immaterial, irrelevant, and hearsay. The court sustained the objection and rejected the evidence, to which ruling the prisoner’s counsel excepted. Various other objections were made, and'exceptions taken, during the trial, by the prisoner’s counsel to the reception and exclusion of evidence. The jury found the prisoner guilty of murder in the first degree.

      Charles Hughes and D. M. Westfall, for the plaintiff in error.

      M. JD. Grover and James Gibson, for the defendants in error.
   CotTNTBTMAN, J. I

The declarations of the deceased, received in evidence, were shown to have been made in extremis, within the rule rendering them admissible as dying declarations. But in two instances they were, nevertheless, erroneously received, for the reason that the declarations were not narratives of facts, but were conclusions or conjectures of the deceased as to the cause of her illness. In one instance the declaration was, that the defendant and Mrs. Briggs were the cause of all her sufferings; and, in the other, in answer to an inquiry of the cause, that she expected it was Charles (referring to the defendant) and Mrs. Briggs. No facts were stated to the witnesses testifying to these declarations, directly or indirectly connecting the defendant with her misfortune, or from which an inference could be drawn by the court or jury concerning his connection with the alleged crime; but the declaration, in one instance, was a bare assertion of her opinion that he was the cause, and in the other a mere expression of her suspicion to the same effect. Neither of these- statements would have been competent evidence if the deceased had been alive and examined as a witness under oath; and they were therefore equally inadmissible as dying declarations. The limitations of the rule allowing the reception of this kind of evidence, should be strictly observed. It is even more important to exclude an opinion, declared in articulo mortis, than in an ordinary case, where the witness may be subjected to a cross-examination. In the latter case, the grounds of the opinion may be ascertained, and, if unfounded or untenable, the error exposed; while, in the former, there is no opportunity or means of testing its accuracy. The bare assertion and reiteration of- an inference or conclusion, which may have been honestly but mistakenly entertained, and may have been-founded on mere suspicion or conjecture, were, in this case, committed to the consideration of the jury as "equivalent to. positive statements of the fact, made on the personal knowledge of the declarant. The evidence was clearly incompetent, arid may have had a material influence on the verdict. It would be exceedingly hazardous, at least, to assume that it did not, or to speculate upon the probable weight attached to it in the deliberations of the jury. It is urged that the defendant is not in a position to avail himself of these errors, as the objections and rulings were made and exceptions taken to the questions, which it is claimed were proper in form, and not to the answers of the witnesses; and it is-insisted that if the answers or any portion of them were improper, it was incumbent on the defendant .to have moved to strike them out, and thus have raised the points as to their incompetency. This criticism, if technically correct, should hardly be entertained in a capital ease ; but it is not well founded in fact. The questions called for the conversations of the deceased “ about the cause of her sickness or condition; ” to which the defendant .objected as “incompetent and inadmissible,” among other grounds; and the answers were directly responsive to the questions. The defendant is therefore entitled to raise the points and review these erroneous rulings.

It was also an error to exclude the declarations or threats of the deceased, made several days prior to the illness of herself and children, that she had poison and knew how to use it; and that rather than Mrs. Briggs should have her children she would put them all under the sod. It is insisted, for the prosecution, that these declarations were no part of the res gestee, and are strictly within the rule excluding hearsay evidence. The case has many remarkable features. It was the theory of the prosecution that the deceased and four of her children were poisoned at one time and in the same manner, three of the children and the mother dying from its effects, while the other child finally recovered. Evidence was therefore given of the acts of the accused toward the children as well as the wife, and the effects produced on alhof them by the potions which were administered, including the postmortem examinations and chemical analyses of their remains. The dying declarations of the wife were received ; some of them, according to the testimony, directly tending to inculpate the accused as the person who administered the poison, and others delivered later to the coroner completely exonerating him from all criminal responsibility. It was also proven that the defendant had repeatedly threatened the life of his wife, prior to her illness, and made other declarations indicative of personal hostility and evil designs ; and as a motive to the crime, evidence was received tending to show the existence of illicit relations between the defendant and Sarah Briggs. On the other hand, upon the assumption that the deaths were the results of criminal agencies, it was the theory of the defense, that all the poison was administered by the wife and mother herself, under the exasperating influences, if not an actual delirium, of jealousy. The issue therefore on this branch of the case was direct and clear, that the poison was administered either by the accused or the deceased, the prosecution endeavoring to prove the former and the defense the latter theory. It is true the defendant also contended that the deaths had ensued from innocent causes, as the reception of deleterious food into the system, which had, in the process of chemical change, generated the poison. But in the event the jury were satisfied that criminal means had been employed, it was equally important and indispensable to the accused to show, if he could, that he was not the criminal. How could he do so more effectually than by proving that the real criminal was the deceased herself? All of the acts and declarations of the accused and the deceased, tending to throw light upon the cause of death, or upon any criminal relations of either of them with the proximate cause, were accordingly proper and original evidence: the acts and declarations of the accused, in favor of the prosecution, to prove his alleged guilt, and the acts and declarations of the deceased, in favor of the defense, to sustain the theory of suicide. The prosecution were properly permitted, in support of their theory, to give in evidence the threats of the accused against the life of the deceased, but it was equally proper and essential to the lights of the accused, that he should have been allowed to prove the threats of the deceased against her own life and the lives of her children. This was the best evidence, in the nature of things, that could be produced. Indeed it was the only evidence, and therefore admissible from necessity. There is no difficulty with this question on principle or the rules of evidence. It is riot necessary to regard these threats as a portion of, or as characterizing the principal transaction, and therefore admissible as a part of the res gestee, although the rule limiting this class of evidence merely to contemporaneous acts and declarations, is properly undergoing material modification. Bnt it "was original-evidence as distinguished from hearsay. The term hearsay, in its legal sense, as defined by the elementary writers, denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests, also, in part, on the veracity and competency of some other person, f The narrative given of a past transaction by the deceased, before she was under apprehension of death, as testified to by a witness who heard it, would clearly fall within the rule as hearsay, because, in determining the material question whether the narrative was true, it would be necessary to consider the credibility of the witness, and the veracity of the declarant. But the declarations of third persons, not under oath, do not always relate to past transactions, and are not therefore necessarily hearsay. Very often the material fact to be ascertained from the evidence simply is, whether the alleged threat or declaration was made, and not whether as a statement or narrative it was really true. In such a case the mere fact whether the declaration was made, depends solely on the credibility of the witness who testifies that he heard it, and such testimony is, therefore, strictly and properly original evidence. Now, it was a material fact, under the issues in this case, whether the deceased had ever threatened to resort to poison for the purpose of self-destruction, or the destruction of her children. It was, if true, an independent fact, of more or less importance, according to the circumstances, although it did not follow that she had actually carried the threat into execution. Her threat to commit suicide (whether in direct terms or by implication would only affect the weight of the evidence), was as competent and material for the defense as were the threats of the accused against her life for the prosecution. The utterance-of the threat is received in evidence as a fact or circumstance indicating an intention on the' part of the person making it to commit the crime; and, if the intention be clearly shown, a probability is thereby created, that, upon a favorable opportunity, it would be carried into effect. But this result, or probability, is wholly a matter of inference for the court or jury, in determining the weight to be given to the fact that the threat was made, in connection with the other evidence in the case. "Until the fact is established, there is no ground for the inference, and the proof of the fact depends exclusively on the amount of credit to be given to the witness. This precise question does not seem heretofore to have been the subject of judicial investigation in this State. The rule, however, above stated, was recognized, arid similar declarations admitted, by a very eminent authority on evidence, from his great learning and experience as a nisiprius magistrate, the late Judge Edmonds, in the case of People v. Knapp. Similar declarations were also held admissible, and the general doctrine considered and approved by the Court of Appeals, in the recent case of People v. Stokes. And in other States, whenever the question has been judicially examined, the same general conclusion has been adopted. For these errors the conviction and judgment must be reversed, and a new trial granted.

Habdin, J.:

Courts of Oyer and Terminer shall be composed of a justice of the Supreme Court, who shall preside, the county judge and the justices of the peace, designated as members of the Court of Sessions, and the presiding justice, and any two of the other officers above mentioned, shall hayq power to hold said court.

TJnder this provision the court was properly organized, when the trial was commenced before a circuit judge, the county judge of Washington county, and the two justices of the peace, designated as justices of the sessions of said "county. Several days were devoted to the taking of evidence, and an adjournment over Sunday had, before a court regularly and properly constituted. When the court reassembled, Justice Stebre was absent, and the court proceeded, composed of one justice of the peace, the county judge and the circuit ■ judge. The evidence taken on Monday, and during the absence of Justice Steers, was taken before a court composed of three of the officers named in the statute, having “ power to hold said court.” If the trial had continued to its close before the court thus constituted, it may be conceded that it would have been regular, and no error could have been predicated upon the absence of Justice Steere. But on Tuesday morning, after his absence from the court on Monday, and without having heard the evidence given during Monday, and without having read the evidence thus given during his absence, and without the evidence being again given, Justice Steere returned to the court-room, resumed his seat upon the bench, joined the court, and took part in its deliberations and all the subsequent part of the trial. Whenever an objection was made by the prisoner’s counsel to evidence, and it became necessary for the court to deliberate upon the proper ruling, Justice Steere took part, it must be assumed, and his voice and vote were as potential in affecting the rights of the prisoner, as well as the interests of the prosecution, as the vote of the other justice of sessions, the county judge or even the circuit judge. The latter three had heard all the evidence given upon the trial, and therefore could intelligently and understandingly pass upon the question involved in the deliberation. Certainly their understanding and intellects were better prepared, by reason of having heard the whole evidence, than was Steere’s who had not heard the evidence taken on Monday, when he was absent from the court-house. His vote and voice upon any question arising upon the trial after his return, may have produced a different result from what they would, had he remained during the whole trial, heard the whole evidence, and given his reflective judgment to it, preparatory to voting and speaking in the deliberations which ensued after his return to the bench which he had, so far as the parts of the trial which took place on Monday, vacated and abandoned ? It is not for us to speculate, in a case where the life of a prisoner is involved, as to the extent of the influence of the vote and voice of one who has not heard the whole evidence. The prisoner is entitled to the full benefit of the understanding and judgment of those who take part in the judicial deliberations which affect his life; he is entitled to all the forms of law, to all the provisions of the Constitution by which his rights are secured. Where life is involved, the law humanely provides that the prisoner stands upon all his rights, and does not and cannot waive them.

The learned counsel for the people insist that no error was committed by reason of the absence during a portion of the trial of Justice Steere. But we cannot say that no injury was done to the rights of the prisoner, for it manifestly appears that it may have done him some injury, It is provided by statute, that no judge shall decide “ or take part in the decision of any question which shall have been argued in the court when he was not present and sitting therein as a judge.” Though the technical language of that section may not apply here, yet the same reasons exist for holding that Steere should not take part in the decisions, necessary to be made, after his return to the trial, as apply under the statute above cited to prevent a judge from deciding when he has not heard the argument. We are referred to Corning v. Slosson, by the learned counsel for the people, where it was held, that three judges might hold a General Term and render a decision, when only two of them had heard the argument of the cause. In that case two constituted a majority of the court, and it was assumed that in the decision they concurred, and that they had conferred with their associate who heard the argument, but did not sit when the decision was handed down, and that the judge who had not heard the argument, and did sit to constitute a quorum when the decision was handed down, took no part in the decision. Here it must be assumed that Justice Steere participated in the trial, which resulted in the prisoner’s conviction and sentence of death; that at one stage of the trial, to wit, when the sentence was pronounced, he was essential to constitute a quorum. It was held in the case in 45 New York (supra), that asking the prisoner what he had to say, why the sentence of the court should not be pronounced, was part of the trial, and that its omission was error, and such a one as called for a reversal and a new trial, and that the court could not say that a regular and legal trial had been had, and under the amendment of 1863 remitted the record for the proper sentence and judgment. Also in People v. Lake it was held to be error in a court of Oyer and Terminer, to permit a physician who did not hear all the evidence relating to the mental condition of the prisoner, to give opinions as to her sanity, founded on the portions of the evidence heard by him. By parity of reasoning it may be said to be erroneous for a member of the court to 'take part in the deliberation, consultation and rulings,- when he has not heard the whole evidence given upon the trial, The participation of Justice Steers in the trial after his absence from the court-house, while the whole of Monday’s evidence was given, was against the provision of the law and Constitution giving a jury trial before a regularly constituted court, the members of which should hear all the evidence and proceedings. It certainly is-against public policy to allow a party to be deprived of his life by a tribunal, of which it can be said, that a portion thereof has not heard the whole evidence and proceedings which result in the sentence of death.

These views as well as those expressed in the elaborate and able opinion of brother Countryman, lead me to vote for a reversal of the conviction.

Bocees, P. J., and Hardin, J., concurred in the opinion delivered by Countryman, J.

Conviction and judgment reversed, and new trial granted.

      1 Greenl. Evidence, §159; Roscoe’s Crim. Evidence, 28, marg.; Wharton’s Crim. Law, § 678.

       Insurance Company v. Mosley, 8 Wall., 397; Hanover R. R. Co. v. Coyle, 65 Penn., 402; Ransom v. Hoigh, 2 Bingh., 99; Commonwealth v. M’Pike, 3 Cush., 181.

       1 Greenl. Ev., § 99; 1 Phill. Ev., 185.

       1 Edmonds’ Select Cases, 177.

       53 N. Y., 164, 174.

       State v. Goodrich, 19 Verm., 116; Keever v. The State, 18 Ga., 194, 224-228; Commonwealth v. Wilson, 1 Gray, 337; Campbell v. The People, 16 Ill., 17; Cornelius v. Commonwealth, 15 B. Mon., 539.

       Vol. 4, N. Y. Stat. (Edms. ed.), 566, sec. 38.

       People v. McKay, 18 John., 212; Cancemi v. People, 18 N. Y., 128; Arundell’s case, 6 Coke, 14; People v. White, 22 Wend., 167; S. C., 24 id., 520; Safford v. People, 1 Parker Cr. R, 474; Shepherd v. People, 25 N. Y., 406; Blend v. People, 41 id., 606; Messner v. People, 45 id., 1; Stokes v. People, 53 id., 164; Dohring v. People, 2 S. C. R, 458.

         Shorter v. People, 2 Comst., 193; Willis v. People, 5 Parker, 647; People v. Fernandez, 35 N. Y., 49; Fralich v. People, 65 Barb., 48; Stokes v. People, 53 N. Y., 164.

       2 Revised Statute (Eds. ed.), 284, section 2.

       16 N. Y., 294.

       2 Kern., 362.

       McCann v. People, 3 Park. C. R., 272.