text:
    Henry Eugene Alexander, App’lt, v. Joseph A. Donohoe et al., Impleaded, etc., Resp’ts.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Pleadings—Complaint.
    A plaintiff should not be allowed to frame his complaint in. such ambiguous language as to mislead the opposite party and the court, and then complain that he has been held to one of two possible constructions rather than the other.
    2. Corporations—Stockholder’s action.
    A stockholder of a mining corporation, who, suing in his own behalf and that of others similarly situated, seeks to set aside various transactions and conveyances of corporate property, sues primarily in right of the corporation.
    3. Same.
    In such action, any defense which a defendant would have, if the corporation itself was the actual plaintiff, may be interposed to bar the stockholder.
    4. Same—Former adjudication.
    Where, in a former action brought by this defendant against the corporation and another, both defendants interposed as a defense substantially the same matters now relied upon by the plaintiff in this action, a judgment rendered in that action without collusion, bars a recovery in this action.
    5. ■ Same.
    Where plaintiff was formerly the holder of trust certificates which he exchanged for stock prior to the rendition of said judgment, he cannot be reinstated in his position as a certificate holder and thereby avoid the bar' of such judgment, without offering to surrender his stock before the commencement of the action, in his complaint or at the trial.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at special term.

      Edward C. Perkins, for app'lt; Frederic B. Goudert, for resp’ts.

      Affirming 52 St. Rep. 21.

   Earl, J.

The complaint in.this action covers 158 pages of the printed record, besides the judgment roll in the action of Donohoe against the Mariposa Land and Mining Company of California and The Farmers’ Loan and Trust Company, which is annexed to the complaint and forms part thereof, and which covers nearly 400 pages more. The facts alleged are so numerous and complicated that it is impracticable to state all or even the substance of them here, and a few only of the most important of them can be presented.

The Mariposa Company is a corporation organized prior to the year 1868, under the laws of this state for the purpose of owning and operating the mining property known as the Mariposa estate situated in California, and consisting of seventy square miles of land. The company had issued coupon bonds secured by a mortgage upon its estate and it owed a floating debt and had issued preferred and common stock. John W. Brurnagim held the legal title to the estate which he had acquired for his brother Mark Brurnagim at a cost of $300,000, and the company was in default in the payment of interest upon the mortgage. On the 25th day of April, 1868, John.W. Benjamin conveyed the estate to Mark Brurnagim and Edward B. Walworth and John J. McEwen, as trustees, and to their successors and assigns forever, subject to the payment to him of the sum of $300,000, upon certain trusts mentioned in the deed of conveyance, among which were the following: To apply the net proceeds of the mining operations carried cn upon the estate to the payment of the $300,000, to the payment of dividends at ten per cent, per annum upon certificates to be issued by the trustees to an amount not exceeding $4,000,000, .to be known as Mariposa certificates, to the payment of a dividend not to exceed ten per cent, per annum upon the preferred stock of the Mariposa Company, to the .payment of the principal of the Mariposa certificates under certain conditions, and upon certain contingencies to sell the estate- at public auction, and to apply the proceeds of the sale as in the trust deed mentioned, among other things upon the trust certificates, and the preferred and common stock of the company. Wads-worth resigned as trustee, and the defendant John A. Stewart was appointed in his place. After the 1st day of July, 1868, the holders of the bonds.of the Mariposa Company, and its other creditors and stockholders as provided in the trust deed, to a very large extent, exchanged their bonds, debts and stocks for the Mariposa certificates issued by the trustees, and at the same time paid certain assessments as provided in the trust deed, and in that way trust certificates were issued to the amount of $4,000,000. The plaintiff, in March and April, 1870, purchased 100 shares of the preferred stock of the company at the par value of $100, and trust certificates of the par value of $10,000. ' In March, 1871, the Mariposa estate was sold for taxes and purchased for Donohoe and Kelly in the names of five other persons, and title was perfected in them. . In June, 1871, the Mariposa Land and Mining Company of New York was organized under the laws of this state with a capital of $15,000,000, divided into preferred and common stock, for the purpose of taking title to the Mariposa estate. The stock of that company was exchangeable for the trust certificates and for the stocks and bonds of the Mari posa Company upon certain conditions specified, and in November, 1871, the plaintiff surrendered to it his trust certificates and his shares of stock in the Mariposa Company and paid in addition an assessment of $500, and he received for his certificates, stock and money 247-J- shares of stock in the new company, and his holdings of stock in that company amounted in March, 1873, to 250 shares. The nominal holders of the Mariposa estate under the tax title conveyed the estate to Mark Brumagim, and he subsequently conveyed it to John W. Brumagim. The trustees under the trust deed of 1868 also sold the estate at public auction, • and at such sole John W. Brumagim became the purchaser, and he subsequently conveyed the estate to the new corporation upon certain terms and conditions' specified. In 1874 the Mariposa Land and Mining Company of California was incorporated under the laws of California with a capital stock of $15,000,000, and the prior corporation conveyed the Mariposa estate to that corporation. The stock of the New York corporation was exchangeable for the stock of the California corporation, and the plaintiff and other stockholders exchanged their stock in the New York corporation for stock in the California corporation. Subsequently the Mariposa estate owned by the California corporation was sold under judgments and tax sales and purchased for the defendant Donohoe, and title was perfected under such sales, and thereafter the estate was conveyed to the California corporation, and to secure a portion of the purchase price it executed a mortgage upon the estate to Donohoe, and subsequently it also executed a mortgage to the Farmers’ Loan and Trust Company to secure the payment of bonds issued by it. Default having been made in the payment of the money secured by the mortgage to Donohoe he commenced an action to foreclose his mortgage, making the Mariposa Land and Mining Company of California and the Farmers’ Loan and Trust Company defendants. Those defendants defended that action and it resulted in a decree of foreclosure, and the estate was sold under that decree, and at such sale in August, 1882, was purchased by one Wensinger for Donohoe and Kelly, and he subsequently conveyed the estate to Donohoe, who still later sold it for $300,000.

Thereafter this action was commenced, and in his complaint the plaintiff alleges that all the dealings of Kelly and Donohoe with the Mariposa estate, during more than twelve years, were fraudulent and intended to injure and defraud the plaintiff and others similarly situated with him, and his prayer for relief, covering about eighteen printed pages, is, in substance, that all the conveyances, mortgages, judgments, sales and other transactions above mentioned, and many transactions not here mentioned, be declared fraudulent and void and set aside, and that Kelly and Donohoe account for the whole estate and all its proceeds.

We must notice particularly the attitude of the plaintiff in this action, and the right in which he presents himself to the-court in his complaint. He alleges, in the opening paragraph of his complaint above quoted, that he sues as a stockholder of the Mariposa Laud and Mining Company of California; and in a subsequent portion of the complaint further alleges: “All other stockholders of the Mariposa Land and Mining Company of California, as assignees of and successors to the right, title and interest in and to the said Mariposa estate, originally held by the holders of the Mariposa trust certificates under the said trust deed of April 25, 1868, and of the first preferred stock and other stocks of the defendant, the Mariposa Company, have an interest in common with this plaintiff in the relief sought in this action ; but such holders are very numerous and the names of very many of them are unknown to this plaintiff, and they are so many in number that it is impracticable to bring them all before the court in this action or to join them by name as parties hereto ; and the plaintiff, therefore, brings this action, not only in his own behalf, but also on behalf of all other stockholders of the said Mariposa Land and Mining Company of California, as assignees of and successors to the aforesaid right, title and interest in and to the said Mariposa estate, similarly situated with this plaintiff who may come in and' contribute to the expense of this action;” and in the last paragraph of the complaint preceding the prayer for relief the plaintiff further alleges:

“This plaintiff has not applied to the said defendant eorporatious, the Mariposa Land and Mining Company of New York and the Mariposa Land and Mining Company of California, nor to the said trustees, to induce them to bring action to set aside the aforesaid fraudulent contracts and conveyances, nor to remove the cloud on the title to the Mariposa estate caused thereby, nor to compel an accounting by the said Kelly and Donohoe for the moneys received by them out of the said estate as hereinabove described, nor to enjoin the further transfer of the alleged title to the said estate, for the reason that the trustees, directors and officers of the said corporations, and a majority of the said trustees, have either been parties to the said fraudulent acts and doings sought to be avoided and set aside, or have been fraudulently or improvidently consenting thereto, and it would be a useless form to request them to take action for the protection and enforcement of the rights of this plaintiff, and of those similarly situated with him ; and this plaintiff, and'those similarly situated with him, are afraid and unwilling to intrust the conduct of this suit, or of any similar suit, to them, or to any of them whose acts are sought to be impeached, as aforesaid, and should not in equity be compelled so to do.”

The complaint contains allegations as to the trust deed of 1868, and the trust certificates issued under that deed, and the claim is therein made that certain acts of Donohoe and Kelly mentioned were frauds upon the trustees under that deed and the holders of the trust certificates. But no claim is there made by the plaintiff for relief in his existing right as a cestui que trust under the trust deed. But the claim is for relief from those frauds in his capacity as a stockholder of the California company and as such succeeding to the rights he held as cestui que trust.

If there is any fair and reasonable uncertainty as to the attitude which the plaintiff meant to assume in his complaint, and whether he meant to postulate his claim for relief upon his position as a stockholder in the California Company or as the holder of the trust certificates, that doubt should be resolved against him. A plaintiff should not be permitted to frame his complaint in such ambiguous language as to mislead the opposite party and the court, and then complain that he has been held to one of two possible constructions rather than the other.

Suing as a stockholder the plaintiff’s right of action is a derivative one. He sues, not primarily in his own rights, but in right of the corporation. The wrongs of which he complains are wrongs to the corporation. They were not aimed at him and did not involve his personal, individual rights. He suffers as a member of the corporation, and it is the party to sue for and recover damages for the wrongs, or equitable relief against the frauds alleged. The complaint is that all the alleged frauds running through twelve years in the end culminated in final wrong and injury to the corporation, and for relief of such wrong and injury a stockholder could only sue in case the corporation upon his demand, or what is equivalent thereto, refused or neglected to sue. Homes v. Oakland, 104 U. S. 450. ,Amd in such an action any .defense which a defendant would have if the corporation itself were the actual plaintiff, may be interposed to bar the stockholder.

The plaintiff is, therefore, estopped by the adjudication in the foreclosure action above mentioned of Donohoe v. The Mariposa Land and Mining Company of California and The Farmers' Loan and Trust Company. In that action both defendants interposed as a defense substantially the same matters now relied upon by this plaintiff for relief in this action. And in that action substantially the same issues where tried as are presented by the pleadings in this action, and the adjudication then upon all the issues was against the defendants there. The judgment in that action was rendered without any collusion after a real litigation by a court of competent jurisdiction, and no allegations are made against it on account of which a court of equity in a collateral action would have jurisdiction to set it aside. The judgment binds this plaintiff as a stockholder of the California corporation and bars his recovery in this action. Morowetz on Corporations, § 865; Stephen v. Fox, 83 N. Y. 313; Herring v. N. Y., L. E. & W. R. R. Co., 105 id. 340; 7 St. Rep. 547; Hawkins v. Glenn, 131 U. S. 319.

But we may take the most favorable view of the complaint which its phraseology will permit, and that is that the plaintiff stands both upon his rights as a cestui que trust under the trust deed of 1868, and his rights as a stockholder in the California corporation, and still'the complaint was properly dismissed. He exchanged his trust certificates for stock in the Mariposa Land and Mining Company of New York, and then exchanged that stock for stock in the California company. So long as that exchange stands, he cannot regain his position as a certificate holder. He cannot claim to be both the holder of the certificates and the holder of the stock. It is only by repudiating the exchange as void on the ground of alleged frauds that it is possible for him to regain his position as a certificate holder, and so far as he seeks now to stand upon his right as a stockholder, he actually ratifies and confirms the exchange. He can in no degree assert his right as a stockholder and yet claim the right of a certificate holder, and thus escape the bar of the foreclosure judgment.

But the difficulty with the plaintiff’s claim that he may now occupy the position of a certificate holder and thus escape from the bar of the foreclosure judgment is, if possible, still more fundamental. More than twelve years before the commencement of this action, the plaintiff exchanged his trust certificates for the stock of the Mariposa Land and Mining Company of New York, and about eight years before he exchanged that stock for the stock of the California company, and so at the time of the trial of this action he had not, for nearly twenty years, been a holder of any trust certificates, and during all that time he had been a stockholder in one or the other of the two corporations, enjoying-whatever advantages that position gave him. He has never surrendered his stock nor demanded the return of his certificates, and he has never rescinded in any legal way the transactions by which his trust certificates were transmuted into stock. He did not offer in his complaint to surrender or give up his stock, and did not even there ask for any rescission of the exchanges mentioned. Even if he was not bound to rescind the transactions claimed to be affected with fraud, and to offer to surrender his stock and demand to be reinstated in his position as a certificate holder before the commencement of this action, or even in his complaint, he was at least bound to do these things at the trial, and there he utterly failed to do them. There he stood upon the allegations contained in his complaint, and the complaint, as we must now assume, was dismissed upon all the grounds which could be made against it.

It is said, that the judgment in the foreclosure action can form no bar to the maintenance of this action because Kelly wa's not a party, to that action. But he was a party thereto in interest, and Donohoe stood in that action for both himself and Kelly. That action was prosecuted for Kelly’s benefit, and, therefore, he was bound by and also has the benefit of any adjudication made therein.

We are, therefore, of opinion that the complaint was properly dismissed and that the judgment should be affirmed, with costs.

All concur except Andrews, Ch. J., and G-ray, <7., not voting.

Judgment affirmed.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    Frederick Palmer, App’lt, v. Mary L. Culbertson et al., Resp’ts.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Evidence—Pakol.
    Parol evidence is admissible to show that a deed was intended as an advancement.
    2. Will—Advancement.
    An advancement can be made by a conveyance by intestate to his son’s wife.
    3. Same.
    In such case, it is incumbent upon the other children to establish, by satisfactory evidence, that it was made ,to her as an advancement of her husband’s share.
    4. Same.
    The land advanced, in case a life estate is reserved in it, must be deemed to have been given at the time of the intestate’s death.
    5. Same—'Valuation.
    The consideration mentioned in the deed was presumed to have been inserted as the value of the land in the estinlation of the parties at the time of the conveyance.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, which affirmed a judgment in favor of defendants entered upon the report of a referee.

      S. Hubbard, for app’lt; K A. Nash, for resp’ts.

         Affirming 48 St. Rep. 505.

   Earl, J.

The learned counsel for the plaintiff claims that there was no evidence sustaining thé findings' of the referee as to the alleged advancement to the plaintiff. But a careful reading of the evidence satisfies us that there was abundant evidence. The plaintiff within a few days after- his father’s death admitted to a number of persons who were called as witnesses for the defendants that his share of his father’s real estate had been conveyed to his wife, and substantially that he had no interest as heir in the land left by his father. These admissions by fair implication embrace the purpose for which the conveyance was made and received, and that the plaintiff lcnew such purpose and acquiesced in the conveyance for that.purpose. There is also evidence that the plaintiff consulted the attorney who drew the deed to his wife and was with his father when the deed was drawn, and that the deed was actually delivered to him. All this evidence is rendered very probable and greatly strengthened by the fact that the 59 acres conveyed without any consideration was equal in quantity and value to one-fourth of the real estate then owned by the intestate.

It is quite true, as claimed by the plaintiff’s counsel, that so far as reliance is placed upon the admissions of the plaintiff, all that he said in making the admissions must be considered and weighed in determining the force, bearing and extent of the admissions.' But all that was said by the plaintiff being considered by the referee, it was for him to draw the inferences and determine what he meant to admit and what the truth as to the facts admitted really was.

It was competent for the defendants to show by parol evidence that the deed was intended as an advancement, and such is the rule in all the states, except a few where by statute a different rule of evidence is prescribed. 4 Kent’s Com. 418.

There can be no doubt that an advancement could be made by the conveyance to his wife. If the conveyance had been made to him, under the circumstances disclosed in this record, it would, without any direct proof, have been presumed to have been made as an advancement. Astreen v. Flanagan, 3 Edw. Ch. 279; Proseus v. McIntyre, 5 Barb. 424; Sanford v. Sanford, 61 id. 293. But as the convejmnce was made to his wife, it was incumbent upon the defendants to establish, by satisfactory evidence, that it was made to her as an advancement of the plaintiff’s share. Delly v. Love, 60 Md. 603; Stewart v. Pattison, 8 Grill (Md.), 46; Rogers v. Moyer, 59 Miss. 524; Rains v. Hoy, 6 Lea (Tenn.), 303.

It is provided in the Revised Statutes (Part 2, chap. 2, sect. 25) that the value of property advanced “shall be estimated according to the worth of the property when given.” The referee found the value of 59 acres at the time of the conveyance to be equal to one-quarter of the value of the whole farm as the intestate then owned it, and they must have borne the same relative value at the time of the death of the intestate, and such is the effect of all the evidence as to value. The counsel for the plaintiff contends that as the intestate reserved a life estate in all but three acres, the value of such life estate should have been deducted to reach the “worth of the property when given.” We think the land in which the life estate was reserved must be deemed to have beengiven at the time of the death of the intestate when the gift could first vest in possession. Any other construction of the language used in the section would work absurdity and might lead to injustice. On the one hand, if the value of the land is to be estimated as of the date of the conveyance, it might be unjust to a party situated like the plaintiff to take the actual value of the acres conveyed, disregarding the life estate ; and on the other hand, it would be unjust to the other children when all the children came into their shares at the same time, to wit, the death of the intestate, to estimate the value of the plaintiff’s share diminished by a life estate which had then-ceased to exist. The purpose and object of the section require the construction we give to it. But there is a further answer to this claim. In the earlier part of the section it is provided tha.t “ the value of any real or personal estate so advanced shall be deemed to-be that, if any, which was acknowledged by the child by an instrument in writing.” The- consideration mentioned in the deed to plaintiff’s wife, the payment of which is acknowledged, is $4,720, which is the total of eighty dollars per acre for the 59 acres. We must presume that this sum was inserted in the deed as the value of the land in the estimation of the parties at the time of the conveyance. The wife in taking the conveyance, stood for the plaintiff. He assented to the conveyance and knew its contents. Her acknowledgment of the value must be deemed his acknowledgment, and as the sum mentioned is beyond any dispute equal to one-fourth of the value of the whole farm, as it then existed, all controversy about value is foreclosed by force of the statute.

The defendants were not bound to show that this advancement was made in full of the plaintiff’s share in both real and personal estate. Here land alone was in controversy, and it was sufficient for them to show that the advancement was in full of plaintiff’s share in the land of his father, leaving him to share with the other children in the personal estate.

We have thus covered all the material points mentioned in the argument on behalf of the plaintiff. Other exceptions taken are not of sufficient importance to need particular attention now.

The judgment should be affirmed, with costs.

All concur, except Andrews, Oh. J., not sitting.

Judgment affirmed.


author: Peckham, J.

text:
    Charles R. Frace, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Negligence—Question eor jury.
    Where, in an action for damages caused by Are alleged to have been kindled by sparks from defendant’s engine, evidence was uncontradicted that the “ straight stack spark arrester” was in general use on many of the large railroads and that it arrested sparks as well as known kind, tlio submission to the jury oí the question as to defendant’s negligence in the adoption of a proper system or kind of spark arresters, is error.
    2. Same.
    To justify verdict in such case, the jury must find that the building was destroyed by reason of the fire being communicated thereto directly from the engine, or without the assistance of other agencies.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.

      James H. Stevens, for app’lt; Clarence A. Farnum, for resp’t.

       Reversing 52 St. Rep. 102.

   Peckham, J.

Among other questions of fact submitted to the jury, which, if found in favor of the plaintiff, a verdict for him might be based, was the question whether the system of spark arresters used by defendant was suitable and whether defendant was guilty of any negligence in using that system.

The jury were permitted by the charge of the learned judge to say that the system of spark arresters was not a. proper one, and that it was not one of the most approved devices known for the prevention of the escape of sparks or cinders from the engine. The evidence was entirely uncontradicted and tended solely to one result, viz., that the straight stack spark arrester was. at least as good as any system that was known. Some of the witnesses said that it was the improved spark arrester, as good as any spark arresters that were known to railroad men. It began to come into use about 1880 and was much used for freight trains. There was the straight stack without the extension. There were also some with an extension and there were diamond stack engines, but the latter were, perhaps, not quite so good as others. The straight stack without the extension was the kind of spark arrester that was used on the engine in question. The fact was testified to by witnesses for the defendant who were among its employees, but they were men who were not responsible for the system of spark arresters that was adopted or in general use upon defendant’s road, and they were testifying upon a subject well known among all men familiar with railroad engines and the system of spark arresters in existence or adopted by different railroads, and if there had been in fact the least doubt upon the question regarding which they testified, evidence contradicting or explaining their testimony could have been easily adduced.

In the plaintiff’s complaint there was an allegation that the defendant had not equipped or provided the engine with a kind of spark arrester that was reasonably safe and such as was in common use by the railroads of the state and had been for a long time to the knowledge of defendant, and which it was its duty to put upon and provide its locomotives with for the protection of property along the line of its road.

Upon the trial the plaintiff gave no evidence to sustain this particular allegation, and the only evidence in the case came, so far as this issue is concerned, from the defendant, and that was to the effect already stated. The real issue made by the plaintiff, and to which his evidence was directed, was that of negligence in regard to the condition of this particular spark arrester and its being out of repair and its meshes too large, so that sparks of an unnecessarily large size escaped therefrom and in fact set the fire in question.

The engine had just been equipped with this new spark arrester, the change having been made from the diamond stack kind. In the case of Flinn v. N. Y. C. & H. R. R. R Co., 142 N. Y. 11; 58 St. Rep. 431, the diamond stack spark arrester was used and the claim was made by the plaintiff in that case that the defendant should b.o held liable because it had not adopted the straight stack spark arrester, sucli as was used upon this engine. Here the claim seems to be just the opposite, and the jury was permitted upon the evidence in the case to find that the straight stack system was not a good one and the diamond stack should have been used. Thus, whichever kind may be used by a railroad company, it is open to the plaintiff to claim that it was the other that should have been used, and the question must, therefore, be submitted to the jury.

Wo think the court can take judicial notice of the fact that diamond stack and straight stack spark arresters are in very general use upon the railroads of the country and that they are both well-known systems for arresting sparks, while no system that has yet been invented can wholly prevent the emission of live sparks from an engine under certain circumstances. In the Flinn case we held that the defendant could not be found guilty of negligence in failing to introduce upon its road the straight stack extension (thé kind actually used in the case at bar) within the time then existing since its invention, even assuming that the straight stack was an improvement on the old diamond stack form. Here the jury is permitted to find, in opposition to the whole evidence in the case, that the straight stack extension is not a proper system of spark arrester. We hold it was error to submit to the jury the question of defendant’s negligence in the adoption of a proper system or kind of spark arrester.

The case is not within the principle decided in Cornish v. Farm. Buildings Fire Ins. Co., 74 N. Y. 295. In that case it was held that the testimony of experts, although uncontradicted, is not conclusive, except in cases where none but experts are capable of determining the question. That was a case depending upon special' circumstances, and the jury was called upon to judge whether the general principles governing somewhat similar cases, as testified to by the experts, were applicable to the case before them. It was a question as to what really increased the risk in an insurance against fire, and although a question of fact, insurance men who were engaged in the business of insuring property or procuring policies of insurance thereon, were called as witnesses to state whether the risk was in fact increased by permitting a building under the circumstances to remain*’unoccupied. Although tbo experts testified that the risk was thus increased, yet it was, of course, but a matter of judgment or opinion, and upon a question that the jury must itself decide. So, although the expert evidence was admissible upon that issue and was also uncontradicted, it was held by this court not to be conclusive.

The evidence in this case is of a much more comprehensive nature. The question was whether there was any other system better or as well known, and which, indisputably, was more suitable than the one used by defendant for the arresting of sparks. The witnesses testified that this particular system was in general use on many of the large railroads, and on some was almost exclusively employed, and that it, in fact, arrested sparks as well as any kind that was known. The plaintiff gave no evidence tó the contrary, and these facts stood proved bv the evidence of seemingly respectable, intelligent and credible witnesses, and the proof was uncontradicted.

We think there is so much difference in the kind of evidence given in the two cases as to render that of Cornish, supra, inapplicable to the case at bar. .

The error necessitates the granting of a new trial for the reason that we cannot possibly say that the jury based their verdict upon some other fact, and not upon a finding that the system of spark arresters was improper and inappropriate. As there must be a new trial, the question of the liability of the defendant for the burning of the hotel will again arise. We think the charge of the learned judge upon this part of the case was as favorable to the defendant as it could properly ask. The question was left as one of fact, under all the circumstances, as to whether the burning of the hotel were not the natural and direct result of the sparks from the engine. In this case the court committed no error to the prejudice of the defendant. The Ryan Case, 35 N. Y. 210, should not be extended beyond the precise facts which appear therein. Even if correctly applied in that case, the principle ought not to be applied to other facts. See Webb v. Rome, W. & O. R. R. Co., 49 N Y. 420; Pollett v. Long, 56 N. Y. 200; Lowery v. Manhattan Railway Co., 99 N. Y. 158; O'Neill v. N. Y., O. & W. R. R. Co., 115 N. Y. 579; 26 St. Rep. 269.

For the error above stated the judgment must be reversed and a new trial granted, with costs to abide the event.

All concur, except .Andrews, Ch. J., not sitting.

Judgment reversed.


author: Finch, J.

text:
    New York Real Estate and Building Improvement Company, App’lt, v. Thornton Motley, Resp't.

      (Court of Appeals,

      Filed October 9, 1894.)

    Lease—Act of 1860.
    Where the lease provides as to the matter of rent for two contingencies only, neither of which happens, the act of 1860 applies, in case of injury by fire rendering the premises untenantable. ,
    Appeal from judgment of the general term of the court of common pleas for the city and county of New York, entered upon an order, which affirmed an order of the general term of the city-court of New York, which affirmed a judgment in favor of defendant entered upon a verdict, and also affirmed an order denying a motion for a new trial.
    The lease contained the following provision: “ It is further agreed by and between the parties hereto that, if without fault, neglect or improper conduct of the party of the second part, his agents, servants or tenants, the premises hereby leased, or the building, shall be damaged by fire, the elements, or otherwise, the party of the second part shall continue to pay rent only for such portion of the leased premises as he can reasonably occupy during the time required to make the necessary repairs, but, if the building shall be so damaged or destroyed as, in the judgment of the parties of the first part, to require to be rebuilt, then from the time of the happening of said events, or either of them, this lease and the term hereof shall wholly end and determine, and the premises be vacated and fully surrendered, and the rent shall be paid up to such time.”
    Plaintiff sought to recover rent claimed to have accrued after the repairs were completed. The parties stipulated that the fire was not caused by the fault of either.

      N. B. Sanborn, for app’lt; David Leveniritt, for resp’t.

      Affirming 52 St. Rep. 938.

   Finch, J.

Nothing would need to be added to the very satisfactory opinion of the general term in this case were it not for the elaborate criticism to which it has been subjected in the argument of the appellant. The question was whether the emergency contemplated by the act of 1860 (chap. 845), which is an injury by fire making the premises untenantable, was covered and provided for by the terms of the lease between the parties, and for that reason taken out of the scope and operation of the statute. The lease does provide expressly for two contingencies. One of them is such a destruction of the building as requires it to be rebuilt, in which event all rent ceases and the lease terminates. The other is an injury by fire which admits of a partial occupancjr, in which-event the accruing rent is to be measured by the proportion •of available occupancy. But what occurred was something different from either described contingency. The fire did not compel a re-building on the one hand, nor did it leave a partial occupancy which would carry some part of the rent with it, but the premises demised became wholly untenantable. As .Judge Pryor tersely states it: “A stipulation for a proportional payment for a partial occupancy is clearly no provision for an event which prevents any and all occupancy.” To that proposition the appellant objects, and insists that a fair construction of the lease provides for a suspension of the rent while the premises are untenantable, and founds his argument upon an inference derived from the use of the word “only” in the sentence which reads “shall continue to pay rent only for such portion of th.e leased premises as he can reasonably occupy during the time required to make the necessary repairs.” His argument is that if no proportion of the 'premises is tenantable then none of the rent is payable during the period of repairs, but revives when that period ends; that is to say, out of a provision which contemplates no removal but only an inconvenience, a stipulation is evolved which requires a removal during the period of repairs, and then a removal back after they are finished. If so onerous a burden had been in terms proposed it is quite probable that the lease would have been refused. Any removal is a serious injury ,to the business man, and to double it is an evil he would naturally avoid. The statute on the one hand and the re-building clause in this lease both contemplate that where the tenant by reason of fire, is obliged to remove from the premises because they have become wholly untenantable he shall not be obliged to return at some unknown and indeterminate period measured by the landlord’s completion of his repairs, and it would be a very unjust, and, I think, unreasonable construction, that a stipulation for lessening the rent where no removal was necessary should inferentially be extended to one in which a removal was inevitable.

I think, therefore, that the case was correctly decided, and the judgment should be affirmed, with costs.

All concur. Judgment affirmed.


text:
    Michael H. Haffey, App’lt, v. Sarah Lynch, Resp't.

      (Court of Appeals,

      Filed October 9, 1894)

    Vendor and purchaser—Specific performance.
    Where there was a defect in the title at the commencement of the action, but the same has ceased to exist and the vendor’s title is valid and perfect at the time of trial, vendee is entitled to a judgment for specific performance.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at special term.

      Charles H. Strauss, for app’lt; Henry If. Anderson, for resp’t.

       Reversing, 52 St. Rep. 762.

   Earl, J.

At an auction sale of the defendant’s real estate the plaintiff purchased a parcel of land described in the complaint at the price of $7,800, and paid ten per cent, of the purchase price besides certain fees and expenses. The parties signed a written contract specifying the terms of sale and the time and place of full performance by the parties. By the written contract the defendant was to convey the land “ by the usual deed containing full covenants with warranty.” The defendant did not tender to the plaintiff such a deed as he claimed he was entitled to, and then he commenced this action against her to compel the specifie performance of the contract. Upon the trial of the action it appeared that she liad at the time of the sale such a title to the land as she was bound to give. But subsequently one Nathaniel Jarvis, Jr., claiming the land in fee, brought an action of ejectment against her to recover the land and filed a lis pendens. The plaintiff knew of this claim, and the Us pendens when he commenced this action, and solely on account of the existence of the Ks pendens, and such knowledge thereof the court refused specific performance and dismissed the complaint. We think the learned court fell into error, and that upon the undisputed facts found it should have given to the plaintiff judgment for specific performance.

We must first notice the issue joined by the pleadings. The plaintiff alleged in his complaint the contract; that he had performed the same and was ready and willing to perform the same upon receiving such a conveyance as he was entitled to; that after several postponements of time for the performance of the contract at the request of the defendant, her attorney tendered to him a deed of the land, at the same time saying to him that she could not give him a valid and marketable title, to the land because it was incumbered; that he rejected the deed on the ground of the alleged incumbrance upon the land, at the same time notifying her that he was ready and willing to perform on his part if she would give him such a deed as he was entitled to ; that she refused to give him such a deed ; that the title to the land was incumbered and rendered unmarketable by the Us pendens filed in the ejectment action; that the defendant could at all times have obtained the cancellation and discharge of the lis pendens and could have conveyed to him such a title as the contract entitled him to. She, in her answer, admitted the making of the contract, denied that he had performed or was ready and willing to perform the contract on his part, admitted the commencement of the ejectment suit and the filing of the Us pendens-, alleged that she had tendered to him such a deed as she was bound to give ; denied that she was at any time unable or unwilling to convey the land, and alleged that she could at all times since the execution of the contract have conveyed the title of the land to him according to the contract had she been so’ disposed, and that she has at all times been ready and willing so to do.

It thus appears that the issue between the parties was as to the performance of the contract, the plaintiff alleging that he had performed and was ready and willing to perform, and the defendant alleging that she had performed and was ready, willing and able to perform on her part.

On the trial the plaintiff was the sole witness sworn, and the trial judge after finding the ownership of the land by the defendant, and the making of the contract, found as follows: “ That the plaintiff has in all things’performed all the terms and conditions of said contract, and has been, on his part, ready and willing to fulfill the same, and accept a conveyance of the fee of the said property.” “ That the said defendant, through her attorneys, has, prior to the commencement of this action, refused to make said conveyance under the said agreement, notwithstanding the plaintiff’s frequent requests therefor.” “ That such refusal on the part of the defendant to make such conveyance, was due to the fact that one Nathaniel Jarvis, Jr., had, after said sale, but before the day fixed for the delivery of the deed thereunder, commenced an action in ejectment in this court against said defendant, claiming the ownership of the premises in question, and had filed a notice of the pendency of said action in the office of the clerk of the city and county of New York, on March 6th, 1889.”

“ That thereafter, and before the trial of this action, the said ejectment suit was brought to trial, and the complaint therein was dismissed, and from the judgment entered on which dismissal an appeal was taken to the general term of this court, which court affirmed said judgment; and no appeal from said order of the general term has been taken to the court of appeals, and the time to do so has now expired.”

“ That the said plaintiff has expressed his consent at the trial of this action to accept from the defendant a conveyance of said land by the usual deed containing full covenants with warranty, subject to the reservations contained in the eighth paragraph, of the said terms of sale.”

“ That less than three years have passed since the rendering of j udgment and the filing of the judgment roll in the said decision of Jarvis v. Lynch."

And he found, as conclusions of law, “ that the sale having been made in good faith, and the question as to the title of the said premises having arisen since the sale, the defendant should not be compelled to give a warranty deed or procure a policy of title insurance of the Lawyers’ Title Insurance Company, insuring the title to the said premises to the plaintiff.” “ That the defendant is entitled to judgment dismissing the complaint upon the merits of the action.” “That such judgment should be without prejudice to the right of the plaintiff to bring an action for damages for breach of the contract set forth in the complaint.” •

The plaintiff has been defeated in his action thus- far on the ground that it was impossible for the defendant to perform her contract at the time of the commencement of the action, and that he knew it was. She did not set up such a defense in her answer, but, on the contrary, alleged that she was able and ready to perform her contract, and there was no proof showifig that it was then impossible for her to perform the contract. There was no evidence showing what basis, if any, the claim of title to the land by Jarvis had. It may have been colorable and not real or substantial. It did not appear that she had made any effort whatever to remove the incumbrance of the lis penclens. It was her duty to perform the contract and to. make all reasonable efforts to remove any obstacle which stood in the way of her performance.

The plaintiff was not in fault for refusing to accept a deed which the defendant at the time declared would convey an incumbered title. He was entitled to a marketable title. Moore v. Williams, 115 N. Y. 586; 26 St. Rep. 259; Vought v. Williams, 120 N. Y. 257; 30 St. Rep. 899.

It is a general rule in equity that the specific performance of a contract to convey real estate will not be granted when the vendor, in consequence of a defect in his title, is unable to perform. In such cases specific performance is denied because the court can not enforce its judgment and because also it would be oppressive to the vendor. But if the defect in the title existed at the date of the contract, or was due to some fault or to some act of the vendor subsequent to the contract, the court will generally entertain an action for specific performance and retain jurisdiction for the purpose of awarding damages for the breach of the contract. But where, as in this case, the defect in the title arises after the making of the contract, without any fault of the vendor, and the vendee knew of the defect in the title when he commenced his action the court will not retain the action for the purpose of awarding the damages. Wiswall v. McGowan, Hoffman’s Ch. 125; Moore v. Elmendorf, 11 Paige, 277. This rule was adopted because the vendee should not commence a fruitless action in equity simply to recover there his damages for a breach of contract. The rule has been modified since the Code practice which authorizes the joinder of legal and equitable causes of action, and while the equitable relief will be denied in such a case, now the action will be retained and the issue as to the breach of contract and damages will be sent to a jury for trial. Sternberg er v. McGovern, 56 N. Y. 12.

But this rule was adopted in equity not solely because at the time of the commencement of the action the defects in the title existed to the knowledge of the vendee, but also because the case was such that at the time of the rendition of the judgment the court could not grant- the equitable relief. The rule and the ground upon which it is based have no application to a case where the defect has disappeared at the time of the trial and the court can then give an effective judgment for the equitable relief demanded, and no case can be found prior to this where an equity court has denied specific performance, because the vendor’s title was defective at the commencement of the action, but valid and perfect at the time of the trial. In such a case why should not the vendor perform ? He is able to, and the vendee is entitled to performance unless some other defense has intervened, and the court is able to enforce performance. Here the plaintiff was willing to take such a title as the defendant could convey at the trial. The ejectment suit had finally resulted in favor of the defendant. The lis pendens had ceased to be operative, and could, if necessary, have been removed. The fact that Jarvis could have paid the costs and taken a new trial under the statute is of no importance. There was final judgment against him, and the contingency that he might take a new trial is of no more importance than the contingency that some other person might at some time commence an action to recover the same land. Equity courts, in awarding relief, generally look at the conditions existing at the close of the trial of the action and adapt their relief to those conditions. The plaintiff, in an equity action, as a general rule, should not be turned out of court on account of any defense interposed to his action, if at the time of the trial the facts are such, that, if he then commenced his action, he would be entitled to the equitable relief sought. ' ,

If a vendor has no title or a defective title to land which he contracts to sell, and subsequently obtains a perfect title, he can be compelled by his vendee to perform his contract. Fry on Specific Performance [3d ed.], 480. And why should the vendor not be compelled to perform if he perfects his title while the action for specific performance is pending ? A perfect title by the vendor is no part of the vendee’s cause of action, and he is just as much entitled to the equitable relief, and the equity court is just as competent to give it, whether the title of the vendor was perfected before or after the commencement of the action.

It does not appear that any tiling occurred after the commencement of the action which should bar the relief asked by the plaintiff. There are no complications growing out of the lapse of time, and no material change in the situation of the parties or of the land in controversy.

We, therefore see no reason to doqbt, upon the facts found, that the plaintiff was entitled to specific performance of the contract; and the judgment should be reversed and a new trial granted, costs to abide event.

Finch, O’Brien and Bartlett, JJ., concur; Peckham and Gray, JJ., dissent; Andrews, Ch. J., not sitting.

Judgment reversed.


author: O’Brien, J.

text:
    The People ex rel. Frederick L. Taylor, App’lt, v. Gerrit A. Forbes, Justice, etc., Resp’t.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Appeal—Appealable order.
    An order made in proceedings to punish for contempt, may be reviewed by certiorari.

    2. Witness—Privilege prom testifying.
    No one shall be compelled, in any judicial or other proceeding against himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him as admissions tending to prove his guilt or connection with any criminal offense of which he may then or afterwards be charged, or the sources from which or the means by which evidence of its commission or of his connection with it may be obtained.
    8. Same.
    Nothing short of absolute immunity from prosecution can take the place of such privilege.
    4. Same.
    The witness must judge for himself as to the effect of his answer, and if, to his mind, it may constitute a link in the chain of testimony, sufficient to convict him when other facts are shown, or to pul. him in jeopardy, or subject him to the hazard of a criminal charge, indictment or trial, he may remain silent.
    5. Same.
    He does not, by answering the general questions as to his connection with the affair, waive his right to remain silent.
    6. Same.
    Where it is not so perfectly evident that the answer called for cannot incriminate, as to preclude all reasonable doubt or fair argument, the privilege must be recognized and protected.
    Appeal from order of the general term of the supreme court, in the fourth judicial department, which dismissed a writ of certiorari issued upon application of the relator.

      Frederick Collin, for app’lt; S. D. Salliday, for resp’t.

       Reversing 59 St. Rep. 887.

   O’Brien, J.

The relator was adjudged guilty of contempt by the justice presiding at a court of oyer and terminer held at Ithaca, in March, 1894, for refusing to answer certain questions propounded to him as a witness before the grand jury. The general term, upon certiorari, has affirmed the determination.

At the outset the objection is made by the learned counsel for the respondent that the order is not reviewable. This position is based upon the language of § 515 of the Code of Criminal Procedure, as amended by chapter 372 of the Laws of 1884, abolishing writs of error and certiorari, and enacting that judgments and orders in criminal cases and orders in special proceedings of a criminal nature may be reviewed only by appeal. But we think that the special proceedings of a criminal nature;” referred to in this section, are those designated as such in that Code; that is,-the various sp.ecial proceedings enumerated apd provided for in part sixth of the Code of Criminal Procedure. By § 962, that Code applies to criminal actions and to all other proceedings in criminal cases, which are therein provided for. Proceedings for contempt are not provided for iu that Code, nor is a criminal contempt there defined, or the punishment therefer prescribed, except in § 619, which refers to cases of disobedience to process and refusal to answer as a witness ; and in these cases the remedy is referred to the procedure prescribed incivil cases provided for in the Code of Civil Procedure. The offense of which the relator was convicted is created and the procedure and punishment prescribed by §§ 8 and 9 of this Code, and the manner of reviewing the determination is to be found there. Sec. 2148. This section clearly contemplates that an order made in contempt proceedings may be reviewed by certiorari, and such has always been the practice. People ex rel. Munsell v. The Court of Oyer and Terminer, 101 N. Y. 245; People ex rel. Choate v. Barrett, 56 Hun, 351; 30 St. Rep. 728; S. C., 121 N. Y. 678; People ex rel. Negus v. Dwyer, 90 id. 402. It was not intended that any change should be made in the practice in such cases by the amendment to § 515 of the Code of Criminal Procedure. Full force is given to the language of that section by confining it to such actions and special proceedings as are defined and regulated by that Code; and as no provision is there made for proceedings to punish for contempt or to review any order made in such proceedings, the practice is governed by the same procedure as applies to ordinary cases where private lights are involved, the determination to which may be reviewed by means of the writ of certiorari; and so, we think, that the record is properly before us for review. The merits of the case, or the power of the court to punish the relator for contempt, upon the facts and circumstances disclosed, must, therefore, be considered.

The case grew out of the conduct of certain of the students at Cornell University on the 20th of February, 1894. That was the date of the customary annual banquet by the freshman class of the college. It is supposed, and is perhaps a fair inference from what appears in the record, that other students at the college, and especially those of the sophomore class, conspired to disturb the banquet by a new form of that species of annoyance or outrage popularly known as hazing,” which constitutes such a great reproach to college life, and is so disgraceful to all who participate in it. During the evening, while the banquet was in progress, a quantity of chlorine gas, of such poisonous power, was injected into the dining hall and the adjoining kitchen, that it caused the death of a colored servant in the kitchen, and many of the students attending the banquet were _ also seriously affected by it. The result1 was produced by placing two jugs in a room just below the banqueting rooms, containing the essential chemicals and substances for the generation of the gas, which was conducted into the kitchen and dining hall above by means of a rubber tube, fastened over the mouth of each jug, and passing upward through holes for that purpose bored in the ceiling and floor above. The act was of such an unusual and peculiar nature, and it was followed by such serious consequences, that public sentiment demanded the detection and punishment of its authors and perpetrators. The grand jury was instructed by the court to institute an inquiry with the view of ascertaining the person or persons responsible for the offense, and the relator was subpoenaed before them as a witness. The district attorney appeared before them and participated in the examination of the witnesses, and, during the investigation, the questions which the relator declined to answer were propounded to him. The court convicted the relator summarily as for contempt “ committed in the immediate view and presence of the court,” upon the statement as-to what- occurred in the grand jury room by the district attorney and without any further judicial inquiry as to the facts. There cord contains that part of the examination of the relator before the grand jury wherein the alleged contempt was committed. It discloses the fact that the witness was pressed by the district attorney to answer the questions, and having been brought before the court during the progress of the examination, was in substance instructed that the questions were of such a character thaj; he was, under the circumstances, bound to answer. He testified in the broadest terms, in reply to questions propounded to him, that he had no connection whatever with the transaction, on the evening of the banquet, and which was the subject of the inquiry. These questions were general and so framed that he could easily see their bearing and tendency. They gave him an opportunity to deny in general terms that he was the author and perpetrator of the offense or in any way connected with it, but when questioned as to particular facts and circumstances, he refused to answer. The order of commitment contains upon its face a statement of the proceedings in the grand jury room which constituted the contempt of which the witness was convicted. From that it appears that the relator refused to answer questions framed evidently for the purpose of ascertaining the person or persons who placed the jugs in which the gas was generated in the room under the dining hall. He was asked if he knew where the jugs were purchased, who purchased them, when purchased, and to whom they were delivered after they were purchased. These questions were framed in various forms and sometimes repeated. After .testifying that he was a student at the university, that his home was in New Jersey, that he boarded at No. 6 Cook street, in Ithaca, he was asked who his room mate was. He then stated to the district attorney : “I wish to throw myself upon the privilege which the law allows me and decline to give evidence, on the ground that it may tend to criminate me.” He was then asked the following question: “Do you say that it will tend to criminate you to state who your room mate is ? ” His only reply was: “ I wish to throw myself upon my privilege and decline to give evidence, on the ground that my answer may tend to criminate me.” The witness was then brought into court, and after consultation with the presiding judge he returned to the grand jury room and testified that his room mate then and since he came to college was Carl Dingens, that both of them had taken a course in chemistry, and, substantially, that they were familiar with the methods of generating chlorine gas. Other questions having more or less relation to the transaction, on the evening of the banquet, were asked and answered, but none of them gave the information sought to be obtained by the questions before referred to, which he declined to answer. On a report of these facts to the court by the district attorney an order was directed to be entered whereby the relator was adjudged guilty of contempt for refusing to answer, and that for such contempt he be imprisoned in the county jail until purged of the same, not exceeding thirty days.

The broad question thus presented upon these facts is whether the relator was in fact guilty of such conduct as subjected him to the power of the court to punish for contempt, or simply exercised a right secured to him by law. It must be assumed that-the act by means of which a deadly gas was conducted into the rooms above, resulting in the loss of life, was of such a character and perpetrated with such intent as to subject the author, or any one who aided or assisted, to criminal punishment. The relator, though in fact he may be innocent, was so situated with reference to it, and so related to the circumstances and results, that it is apparent that at some point and in some way it became, under all the circumstances, not only prudent, but necessary and proper, to claim the privilege of refusing to disclose the information sought to be elicited by the questions. He was a student in the college. He belonged to the sophomore class and the class in chemistry. Ho boarded at the house from which the jugs were taken by some one. His room mate, at least, seems to have been one of the persons suspected as being in some way connected with the transaction. He was so surrounded by elements of circumstantial proof that the answer to any of the questions might form a link in the chain sufficient to subject him to the hazard of a trial upon a criminal charge. Whether innocent or not, there was a combination of facts and circumstances that brought him perilously close to the charge which was the subject of investigaiton, and the answer which he was required to give might have completed the chain of proof. He was thus placed in a position where he might lawfully claim the protection of the law and remain silent.

After the Constitution of the United States had been adopted, it was deemed important to add to it several amendments, and one of them, art. 5, provides, among other things, that no person “ shall be compelled, in any criminal case, to be a witness against himself.” It was also incorporated into the Constitution of the state, art. 1, § 6, and more recently into the Code of Civil and Criminal Procedure, Code Civil Pro., § 37; Code Crim. Pro., § 10. These constitutional and statutory provisions have long been regarded as safeguards of civil liberty, quite as sacred and important as the privileges of the writ of habeas corpus or any of the other fundamental guaranties for the protection of personal rights.

When a proper case arises they should be applied in a broad and liberal 'spirit in order to secure to the citizen that immunity from every species of self accusation implied in the brief but comprehensive language in which they are expressed. The security which they afford to all citizens against the zeal of the public prosecutor, or public clamor for the punishment of crime, should not be impaired by any narrow or technical views in their application to such a state of facts as appears from the record before us. The right of a witness to claim the benefit of these provisions has frequently been the subject of adjudication in both the Federal and state courts. The principle established by these decisions is that no one shall be compelled in any judicial or other proceeding against himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him as admissions tending to prove his guilt or .connection with any criminal offense of which he may then or afterwards be charged, or the' sources from which or the means by which evidence of its commission or of his connection with it may be obtained. The cases cover the point so completely that no comment or explanation is necessary, and it wonld not be useful to quote at much length from the language in which the decisions are expressed. It will be quite sufficient for every purpose of the opinion to note where they may be found. Counselman v. Hitchcock, 142 U. S. 547; Emery Case, 107 Mass. 172; State v. Newell, 58 N. H. 314; Ex parte Biscowitz, 84 Ala. 463; Minters v. People, 139 Ill. 363; Temple v. Commonwealth, 75 Va. 892; Printz v. Cheney, 11 Iowa, 469; People v. Mather, 4 Wend. 230; People v. Hackley, 24 N. Y. 84; People v. Sharp, 107 N. Y. 427; 12 St. Rep. 217; 1 Burr’s Trial, 245. The question was fully discussed at an early day by Chief Justice Marshall on the trial of Aaron Burr, and every phase of it so completely explained and exhausted that his views were followed in the subsequent decisions. A single quotation from the language used will illustrate the scope and extent of the immunity which the witness can lawfully claim: “Many links frequently compose that claim of testimony- which is necessary to convict an individual of a crime. It appears to the court to be the true sense of the rule that no witness is compelled to furnish any one of them against himself.' It is certainly not only a possible, but a probable case, that a witness by disclosing a single fact may complete the testimony against himself and to a very effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself would be unavailing, but all other facts without it would be insufficient. While that remains concealed in his own .bosom he is safe, but draw it from thence and he is exposed to a prosecution. The rule that declares that no man is compellable to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this description * * *”

All the leading authorities were elaborately reviewed in the recent case of Counselman v. Hitchcock, supra, in the supreme court of the United States. In that case the grand jury was engaged in the investigation of certain alleged offenses by railroad companies against the recent act of congress for the regulation of interstate commerce, and the witness, a commission merchant and dealer in grain, refused to answer certain questions as to the tariff of rates allowed to him by some of the railroads, on the ground that'it might tend to criminate him. The case in all its essential features was similar to this, and the court, sustaining the privilege contended for in behalf of the witness, held that the object of the constitutional provision was to insure that a person shall not be compelled, when acting as a witness in any investigation, to give testimony which may tend to show that he himself has committed a crime, and that its meaning was that a witness is protected from any compulsory disclosure of the circumstances of his offense, or the source from which, or ’the means by which, evidence of its commission, or of his connection with it, may be obtained, or made effectual for his conviction, without using his answers as direct admissions against him. This conclusion was reached, although there is a general Federal statute providing that in such cases the testimony given by the witness at the investigation shall not be given in evidence against him, subsequently, in any civil or criminal proceeding. U. S. R. S. § 860. It seems that in such cases nothing short of absolute immunity from prosecution can take the place of the privilege by which the law affords protection to the witness. The testimony which the relator voluntarily gave before the grand jury, in general terms exonerating himself from all connection with the transaction, seems to have had great weight with the learned trial judge. It was argued that the relator could not possibly be put in peril by his answer to the question, since he had already testified that he had no connection with the transaction. But this conclusion was not warranted by the facts. The testimony of the witness might be ever so strong and clear in favor of his innocence, but it did not conclude the public prosecutor, in the absence of some constitutional or statutory provision securing the relator from prosecution. The general statements of a person charged with crime in regard to his innocence avail but little against incriminating facts and circumstances. His protestations of innocence and his broad general denial of any knowledge of or connection with the transaction might be overcome by facts and circumstances, if the district attorney could be permitted to draw them from the witness. Any one who has had much experience in the conduct of criminal trials is aware of the fact that, frequently, the most dangerous proof' that a person charged with crime has to meet, are his own statements made for the purpose of warding off suspicion or of satisfying others with regard to his innocence. It is not unusual on such trials to confront the accused with his own declarations made for the very purpose of exonerating himself from all suspicion, but which, when all the evidence is collected, are so far at war with all the facts and circumstances as to furnish evidence of guilt. The witness, by answering the general questions as to his connection with the affair, whether his answers were true or false, did not waive his right to remain silent when it was sought to draw from him some fact or circumstance which in his judgment might form another link in the claim of facts and capable of being used under any circumstances to his detriment or peril. The circumstances relating to the purchase of the jugs and the means employed to place them under the banquet room were important as furnishing a clue that might lead to the identification of the guilty person or persons, and the witness was or appeared to be so related to the transaction that' he might lawfully refuse to furnish the same, notwithstanding his general statements to the effect that he had nothing whatever to do with them. The witness who knows what the court does not know, and what he cannot disclose without accusing himself, must in such cases judge for himself as to the effect of his answer, and if, to his mind, it may constitute a link in the chain of testimony, sufficient to convict him, when other facts are shown, or to put him in jeopardy, or subject him to the hazard of a criminal charge, indictment or trial, he may remain silent. While the guilty may use the privilege as a shield it may be the main protection of the innocent, since it is quite conceivable that a -person may be placed in such circumstances, connected with the commission of a criminal offense, that if required to disclose other facts within his knowledge he might, though innocent, be looked upon as the guilty party. Adams v. Loyd, 3 H. & N. 363.

But it is urged that the relator made use of the privilege, not in good faith, for his own protection from any peril, actual or apprehended, but as a pretext for shielding his friends or associates, and that the facts and circumstances before the learned judge presiding at the oyer and terminer were of such a nature as to warrant him in so deciding as a matter of fact, and that such finding is not reviewable here. The weight of authority seems to be in favor of the rule that the witness may be compelled to answer when •he contumaciously refuses, or when it is perfectly clear and plain that he is mistaken, and that the answer cannot possibly injure him, or tend in any degree to subject him to the peril of prosecution. But the courts have recognized the impossibility in most cases of anticipating the effect of the answer. Where it is not so perfectly evident and manifest that the answer called for cannot incriminate, as to preclude all reasonable doubt or fair argument, the privilege must be recognized and protected. Janvrin v. Scannon, 9 Fost. 280. In this case, however, considering the relations of the witness to the subject of the inquiry, and the character and scope of the questions, such a conclusion was not possible. There is no evidence in the record that can, in any reasonable view, sustain such a finding. Our conclusion is that the relator was not guilty of contempt in refusing to answer the questions, and this renders it unnecessary to consider the question whether the witness was in the immediate presence and view of the court so aS to authorize it to proceed summarily.

The order of the general term and the determination of the court of oyer and terminer should be reversed and the relator discharged.

All concur, except Andrews, Ch. J., not sitting, and Finch, J., not voting.

Ordered accordingly.


text:
    Augustus W. Blazo, Resp’t, v. William P. Gill, App’lt.

      (Court of Appeals,

      Filed October 9, 1894.)
    1. Contract—Construction.
    Where the parties enter into a contract whereby plaintiff agrees to supervise and build a house for defendant, to contract for the work and charge everything at the exact cost, for which he is to furnish vouchers, plaintiff acts as agent for defendant and, as such, is bound simply to act in good faith and in the usual way in making expenditures.
    2. Same.
    What it is necessary to show in order to a recovery for such expenditures. ■»
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which affirmed a judgment in favor of -plaintiff entered upon the report of a referee.

      George G. Reynolds, for app’lt; Jbsiah T. Marean, for resp’t

      Affirming, 53 St. Rep.154.

   Earl, J.

The plaintiff was a practical builder, and the defendant, desiring to build a dwelling house, in August, 1888, entered into written contract with him as follows:

In consideration of the sum of one dollar ($1.00) to me in hand paid, the receipt of which is hereby acknowledged, and a further sum of one thousand ($1,000) to be paid on the completion of the house herein described, I agree to supervise, build, finish and complete the house as per the plans annexed, signed and delivered, bearing even date with this and according to the specification as per memo, attached. I will contract for the building of the said house in all its details with the greatest economy and charge everything at the exact cost for which I will get vouchers, and I further agree that I will give my best attention to the construction of the same in conference with Mr. A. Korber. Mr. Gill agrees to give in addition to each, Mr. Korber and Mr. A. Blazo, a further independent sum of five hundred dollars ($500.00) each, on completion of the said house.”

According to estimates made at the time it was supposed the house would cost about $16,000. The plaintiff acting as agent for the defendant under the contract employed men and purchased materials and completed • the house at a cost of several thousand dollars more than the estimates, and he claims that there is due him a balance of about $2,000 for moneys paid by him for work and materials. The defendant disputes the amount demanded by the plaintiff, claiming that all the work and materials for which the plaintiff claims reimbursement did not go into the building.

Before the commencement of this action the plaintiff rendered to the defendant a statement of all the moneys expended by him upon the building with the particulars thereof and the vouchers showing such payments, and upon the trial he proved the expenditure of all the money claimed by him, showing a balance of about $2,000 due him. He did not, however, prove the actual rendition of all the work and delivery of the materials for which he paid. His contention is that he acted as agent for the defendant and that it was sufficient for him to show that he employed men and purchased materials in the usual way without showing the actual number of days each man worked, and that the materials purchased by him were actually placed in the building. The contention of the defendant is that the plaintiff was bound to make proof of all the work done upon the building and materials furnished as if his action were to recover directly for such work and materials.

We think the proof of the plaintiff’s claim was sufficient. He was the agent of the defendant, and as such bound to act in good faith and in the usual way in making his expenditures. He could order material, and when the bills therefor were rendered, standing for the defendant and doing as he would have done, he could pay for them upon evidence satisfactory to him that the materials had been delivered, taking proper vouchers for such payments; and upon the trial the vouchers thus taken and rendered to the defendant were sufficient prima facie evidence of such payments, and the plaintiff was not obliged to furnish common-law evidence that every cartload of brick, stone or lumber was actually delivered at and used in the building. And as to the labor it was sufficient for him to show that he employed men upon the building under foremen who kept their time, and that he made payments according to the time thus kept. Any other rule would place an agent disbursing money for his principal in an embarrassing position, and would be impractical. It is plain that as to payments by the plaintiff all the contract between the parties contemplated was that he should take vouchers therefor, and present them to the defendant. He did not complain at any time that the plaintiff did not furnish proper vouchers for any of the payments made by him. His sole claim was that he was not satisfied that he had had the benefit of all the labor and materials paid for by the plaintiff. He had been presented with the vouchers and the items of the plaintiff’s claim, and yet upon the trial he was not able to show that a single item was improper or that the plaintiff did not in good faith pay every dollar for which he claimed reimbursement.

The judgment should be affirmed, with costs.

All concur, except Andrew's, Ch. J., not sitting.

Judgment affirmed.


author: Bartlett, J.

text:
    Esther Y. McCarthy, Resp’t, v. Eugene McCarthy, App’lt.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Divorce—Adultery—Proof.
    Where tlie uncorroborated testimony of prostitutes is the only evidence to sustain a charge of adultery in an action for divorce, slight corroboration is sufficient where defendant fails to take the stand on his own behalf.
    2. Same—Rule 73.
    It is not incumbent upon the plaintiff, iñ a litigated case, to prove affirmatively the requirements of rule 73 of the supreme court.
    3. Same—Alimony.
    It is within the discretion of the court to provide that alimony should be paid from the time the action was begun.
    4. Evidence—Divorce—Section 831.
    Where charges and counter-charges of adultery are tried together, testimony competent on either issue must be admitted. .
    Appeal from judgment of the general term of the supremq court in the fourth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.

      J. K. Fuller, for app’lt; Louis Marshall, for resp’t.

      Affirming, 51 St. Rep. 941.

   Bartlett, J.

This is an appeal from the judgment of the general term, fourth department, affirming the judgment of the Onondaga county special term, entered upon the report of a referee, granting the plaiutiif an absolute divorce from the defendant, and awarding her the custody of the only child of the marriage. • The order confirming the report of the referee and directing judgment against defendant authorized the referee to take evidence and certify the same to the court with his opinion as to what sum should be paid by the defendant to the plaintiff for the education and maintenance of the child and the support of the plaintiff. The referee heard witnesses at length, and reported to the court, as his opinion, that the defendant should pay for the purposes indicated in the order of reference the annual sum of five hundred dollars, and that such payment should commence from the date this action was instituted. The report of the referee was confirmed and the final judgment provides for the payment of the sum suggested. The appellant seeks to review upon this appeal not only the main issues in the case, but the question of permanent alimony.

The defendant in his answer set up counter charges of adultery against his wife, and the issues thus presented by the pleadings were litigated in a bitter and protracted manner before the referee, who, upon conflicting evidence, found the plaintiff not guilty of the charge of adultery made by her husband, and upon evidence, substantially uncontradicted, found the defendant guilty.

■The learned counsel for the defendant insists, with great earnestness, that the evidence warranted a judgment against the wife, and that the judgment condemning the husband ought not to stand as it rests on the uncorroborated evidence of prostitutes; and for the further reason that when plaintiff rested her case she had.not proved that the alleged acts of defendant’s adultery had been committed without her consent, connivance, privity or procurement; and that she had not voluntarily cohabited with the defendant since, knowledge of the facts. It may be observed in passing that the defendant’s counsel requested the referee to find that there was no sufficient proof of adultery on the part of either plaintiff or defendant in this action, and that the referee so found as to the plaintiff and refused so to find as to defendant.

As to the first contention, that the evidence warranted a judgment against the plaintiff, it is sufficient to say that the referee found on this point, and the general term affirmed, upon conflicting evidence, and this court is bound by the findings below. As to the suggestion that the case against the defendant rests on the uncorroborated evidence of prostitutes, we are of opinion that as to the charge sought to be proved that the defendant, in the absense of his wife, took two abandoned women to his residence and passed the night with one of them in his marriage bed, was sufficiently corroborated by surrounding circumstances to warrant the finding of the referee.

As to the charges of adultery sought to be proved in the cities of Binghamton and Auburn in this state, we think there is sufficient corroboration in the letters of the defendant addressed to the co-respondent. Slight corroboration as to both charges is sufficient in view of the fact that the defendant failed to take the stand in his own behalf.

The views we now express are in harmony with the rule laid down in Moller v. Moller, 115 N. Y. 466; 26 St. Rep. 207, cited by defendant’s counsel.

We will now consider the point that the motion to nonsuit the plaintiff, made at the time she rested her case, should have been granted oii the ground that under the final ruling of the referee on questions reserved, it did not appear that the defendant’s acts of adultery were without her connivance, and that she had not cohabited with him after knowledge of the facts.

The plaintiff was allowed to furnish this proof in her own testimony, which was objected to as incompetent under § 831 of the Code-of Civil Procedure, and subsequently stricken out by the referee. We, therefore, have presented in this case the question whether, in a litigated case, it is incumbent upon the plaintiff to make affirmative proof of the usual allegations inserted in a complaint for absolute divorce to the effect that the adultery of defendant was committed without the connivance, etc., of plaintiff, and that plaintiff has not voluntarily cohabited with the defendant, etc.

We are of opinion that the provisions of the Code of Civil Procedure and rule 73 of the supreme court, when read together, do not require the plaintiff to make such proof as a part of his prima facie case in contested actions. The allegations referred to are inserted in the complaint in order to comply with the provisions of rule 73 in case defendant makes default.

Eule 73 reads as follows, viz.: “And when the action is for a divorce on the ground of adultery, unless it is averred in the complaint that the adultery charged was committed without the consent, connivance, privity or procurement of the plaintiff; that five years have not elapsed since the discovery of the fact that such adultery has been committed, and that the plaintiff has not voluntarily cohabited with the defendant since such discovery, and also where, at the time of the offense charged, the defendant was living in adulterous intercourse with the person with whom the offense is alleged to have been committed, that five years have not elapsed since the commencement of such adulterous intercoui'se was discovered by the plaintiff, and the complaint containing such averments be verified by the oath of the plaintiff, in the manner prescribed by the Code, judgment shall not be rendered for the relief demanded, until the plaintiff’s affidavit be produced, stating the above facts, and in case of a reference the plaintiff shall be specifically examined on oath as to each of these particulars.”

It is to avoid 'the necessity for the affidavit in case of default that the allegations referred to in the rule are inserted in the complaint. As to the proof of the material allegations of the complaint in case of default, the subject is dealt with by § 1757 of the Code of Civil Procedure, which provides that, if the defendant makes default in appearing or pleading, the plaintiff, before be is entitled to judgment, must nevertheless, satisfactory prove the material allegations of his complaint.

Section 1758 of the Code of Civil Procedure provides that in either of the cases therein named the plaintiff is not entitled to a divorce, although the adultery is established ; it then names the various grounds set forth in rule 73 as already quoted.

It is obvious from reading the two sections of the Code referred to and rule 73, that the grounds set forth in § 1758 are matters of affirmative defense in a case that is litigated, but in the event of defendant suffering a default the plaintiff cannot obtain judgment' without negativing those possible defenses by his sworn complaint or affidavit. It is further insisted by defendant’s counsel that this case is filled with reversible error and we are cited, without further comment, to many folios of th§ case as sustaining the statement. We have examined this record with care and are of opinion there are no erroneous rulings which should lead to the reversal of this judgment. The most important of defendant’s exceptions were taken during the examination of plaintiff, it being insisted that much of her testimony was incompetent under § 831 of the Code. It must be kept in min'd that two distinct issues were being tried simultaneously before the referee, to wit, the charges of plaintiff and the countercharges of defendant. We have recently had occasion to comment upon the inherent difficulty of ruling upon an offer of evidence when it is competent as to one issue and incompetent as to the other. Woodrick v. Woodrick, 141 N. Y. at page 462. Testimony competent on. either issue must be admitted. De Meli v. De Meli, 120 N. Y. 485; 30 St. Rep. 704.

The case at bar is another illustration of the embarrassments arising from such a situation and shows that a separate trial of the issues would secure, a more satisfactory result. We do not deem it necessary to discuss in detail the various exceptions in this case; it is enough to say we find no reversible error.

Finally, it is insisted there was error in fixing the amount and time of payment of the permanent alimony. The court below reached its determination as to amount on conflicting evidence and in the exercise of a judicial discretion. We are of opinion that there was evidence to sustain the judgment of the court below, and there is nothing to show that the discretion was abused and arbitrarily exercised. It was within the discretion of the court to provide that alimony should be paid from the time this action was begun. Burr v. Burr, 10 Paige, 20; Forrest v. Forrest 25 N. Y. 518.

The judgment should be affirmed, with costs.

All concur, except Andrews, Ch., J., not sitting.

Judgment affirmed.