author: Dykman, J.

text:
    Thomas Watts, Rec’r, Resp’t, v. Horatio R. Wilcox et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)
    1. Depositions—Examination before trial.
    The judge to whom an affidavit to procure an order for the examinatiofi Í of a party in a pending action is presented is obliged to make the or$OT/ unless it is apparent that the testimony sought is immaterial, unnecessary or improper, or that the examination is desired merely for annoyance'or delay. V
    ‘2. Same.
    An order for the examination of defendants before trial should not be vacated on the ground that they had previously been fully examined in proceedings supplymentary to execution, as the proceedings are entirely different and the statements made on such former examination are available only as admissions and cannot be considered the equivalent of the testimony sought under the erder.
    Appeal from order denying motion to vacate an order for the ■examination of the defendants, except defendant Blye.

      Bacon & Merritt, Lewis K Carr and Adams, Wilcox & Macklin, for app’lts; W. F. O'Neill, for resp’t.
   Dykman, J.

This is an appeal from an order denying a motion to vacate an order for the examination of some of the defendants in this action before the trial thereof.

The affidavit upon which the order for the examination was based is full and complies with all the requirements of § 872 of the Code of Civil Procedure, and § 873 says at its commencement: “The judge to whom such an affidavit is presented must grant an order for the examination if an action is pending,” as it was in this case.

Therefore when the affidavit was presented to the judge he was obliged to make the order and the plaintiff could insist upon his doing so as a matter of right. Webster v. Stockwell, 3 Abb. N. C., 115.

We do not intend to hold that the judge to whom an affdavit is presented is deprived of all discretion. He may examine the paper to ascertain whether the testimony sought is material and necessary, and if he can see that it is immaterial and unnecessary or improper, or that the examination is desired merely for annoyance or delay, he may deny the application. Jenkins v. Putnam„ 106 N. Y., 272; 8 St. Rep., 710.

The order for the examination was properly made in the first instance, and the power of the judge to issue the same was properly exercised, and the motion for its vacation was based upon an affidavit designed to show that the examination of the defendants was unnecessary because they had. all been previously examined in proceedings supplementary to execution, that such examination was full and the statements made therein were extant and available to the plaintiff.

We think the reasons assigned are insufficient to require or justify the vacation of the order. There is a wide difference between an examination in supplementary proceedings and the examination of a witness for the procurement of testimony to be used and read upon the trial of an action, and they piroceed upon entirely different lines.

The one is for the discovery of property and the other is for the discovery of evidence.

The examination under this order will be conducted for the purpose of eliciting testimony relevant to the issues involved in this action, which can be read in evidence upon the trial, whereas the former examination was made with no such view, and can be made available only as admissions against the party examined.

In no view can tire former depositions of these parties be considered as the equivalent of the testimony which the plaintiff is entitled to elicit under the order for their examination in this action.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    Anna M. Arnold, Resp’t, v. The Norfolk & New Brunswick Hosiery Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1893.)

    Bes adjudicata—Fraud.
    Plaintiff recovered judgment by default in an action for royalties under an exclusive license of a patent. In a subsequent action for royalties, where the defense of fraud in procuring the agreement to pay such royalties was set up, Meld, that the former judgment was not conclusive on that question; that it was not litigated in the former action, as there was no issue before the court in that case.
    Appeal from judgment in favor of plaintiff, entered on verdict directed by the court, and from order denying motion for a new trial.

      Walter D. Edmonds, for app’lt; Frank F. Blackwell, for resp’t.
   Dykman, J.

On the 10th day of April, 1882, the parties to this action made a written agreement by which, among other things, the defendant agreed to pay to the plaintiff $500 a month as royalties for the exclusive right to use certain patents and patent devices in relation to knit fabrics, and this action is brought to recover $3,000 for such unpaid royalties.

Before the commencement of this action the plaintiff brought a suit against the defendant for the recovery of royalties under •the same agreement, to which the defendant interposed no defense, and judgment was entered in favor of the plaintiff by default for over $11,000. ,

Now the defendant claims to have evidence sufficient to show that the agreement under which the plaintiff claims was induced and procured by fraud, and that defense is set up in the answer in this case as a defense to this action, and it is said also in the answer that the defendant repudiated the agreement upon the discovery of the fraud.

Upon the trial of this action the plaintiff introduced in evidence the record of the former judgment against the defendant, and moved the court to direct a verdict in her favor for the amount claimed in the complaint, with interest, upon the ground that the judgment was res adjudicata as to all matters relating to the contract and res adjudicata to the defense in this action.

The motion was granted, the defendant excepted, and the court directed the jury,to find for the plaintiff $3,087.75, to which the counsel for the defendant also excepted.

We think the decision at the circuit was erroneous. Fraud vitiates every transaction into which it enters, and if the contract in question was procured from the defendant by fraud, it will be destroyed, and an opportunity should be afforded to establish that defense.

It was not litgated in the former action, and could not have been, because there was no issue before the court, and a former judgment is not conclusive as to questions not within the issues before the court. Fairchild v. Lynch, 99 N. Y., 359, 368.

There have been many decisions upon the question of res adjudícala, and they are not all reconcilable with themselves or with right, reason and justice, but it is sufficient for us that this question now presented to us has not been determined adversely to the defendant and we are at liberty to decide it according to the dictates ■of justice.

There never has been an adjudication of this question and if this judgment is affirmed the defendant will be deprived of all opportunity to demonstrate the fraud, and the plaintiff will reap a large reward for the successful imposition.

We cannot subscribe to such a result; we will let in the light, upon this contract. If it be honest its fairness can be made to appear, and if it be vicious it will be nullified and we will not stifle inquiry.

The judgment and order denying a motion for a new trial should be reversed and a new trial should be granted, with costs to abide, the event.

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


text:
    Josephine Vandewater, Adm’rx, Resp’t, v. The New York & New England Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Railroads—Statutory signals.
    Notwithstanding the repeal of the former statute in relation to railroad signals, a railroad company is not free from the obligation to sound the bell or whistle at a highway crossing. The penalty imposed by § 421 of the Penal Code upon an engineer for a failure to ring the bell or sound the whistle when approaching a travelled street or road implies a direction or imposes a duty to do so, although it .imposes no affirmative duty upon, him.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.
    Action to recover for the death of plaintiff’s husband, who was-killed while attempting to cross defendant’s tracks at a farm crossing.

      W. C. Anthony, for app’lt; Wood & Morschauser, for resp’t.
   Dykman, J.

On the 16th day of August, 1890, William Pi Yandewater, the husband of the plaintiff, was killed by a locomotive engine upon the defendant’s railroad at a farm crossing west, of the station at Fishkill Yillage, Dutchess county. The crossing is nearly at right angles with the railroad, and the deceased was driving North while the engine which struck him came from, the east, drawing a pay car only.

There was no claim that any alarm was sounded for the farm.! crossing, but there was a claim that the usual alarm was given, as the train approached the station at Fishkill Yillage. There; was evidence tending to show that no such alarm was given.

The trial judge charged the jury that the deceased had the-right to assume that the company did its duty with respect to the-crossing, and if it did not sound the bell or blow the whistle, audit was accustomed to do so at the village station, and it did not do that and the two things combined caused the accident, if the-deceased was killed by reason of the omission to do those things,, then the jury might find a verdict of negligence against the companv upon it

There was an exception to that portion of the charge, but we-cannot sustain it. We are not prepared to. hold that a- railroad company is now free from the obligation to sound the bell or whistle at a highway crossing. We have found no authority for such a position, and we do not think the statute should receive such a construction. It is as follows: “ A person acting as engineer driving a locomotive on any railway in this state, who fails to ring the bell or sound the whistle upon such locomotive, or cause the same to be rung or sounded, at least eighty rods from any place where such railway crosses a travelled road or street on the same level (except in cities) or to continue the ringing such bell, or sounding such whistle at intervals, until such locomotive and the train to which the locomotive is -attached shall have completely crossed such road or street, is guilty of a misdemeanor.” Penal Code, § 421.

This statute imposes no affirmative duty upon an engineer driving a locomotive, bqt pronounces him guilty of a misdemeanor if he fails to ring the bell or sound the whistle; and quite singularly also his guilt does not follow as the result of an affirmative act, but upon his failure to do a certain thing.

But the statute must receive a reasonable construction, and although it contains no language requiring an engineer to ring the bell or sound the whistle, yet as it makes a failure to do .so a misdemeanor, it must be construed to contain an implied requirement for the performance of the duty. The legislature intended to accomplish something by the enactment of the law, and the design plainly was to secure the ringing of the bell or the sounding of the whistle at the designated place, and that was the purpose of the former statute, which is now repealed.

We might go further and assume that the reason for the repeal of the former statute upon the subject was, the section of the Penal Code in question took its place, secured its purposes and rendered it unnecessary.

It has been many times decided in this country and in England that a penalty in a statute implies a prohibition, though there be no prohibitory words in the act. Griffith v. Wells, 3 Denio, 226; Best v. Bauder, 29 How., 489.

So by analogy to that principle it may be said here that the penalty in this law implies a direction or imposes a duty, though there be no imposition of a duty in the statute.

In this view of the statute the portion of the charge under examination was free from error.

Respecting the conduct of the engineer after the horse of the deceased was discovered, or after he might have seen him by the exercise of vigilance, the testimony presented a proper question for the jury.

After a full examination of the case we have failed to find any errors, and the judgment and order denying a motion for a new trial should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not’sitting.


text:
    Harriet E. Quereau, Resp’t, v. Henry L. Brown, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Judgment—Demubbeb.
    A decision overruling a demurrer to the complaint and allowing the defendant twenty days to answer requires an intermediate judgment to enable the defendant to' appeal if he so desires, and defendant is not in default so as to permit the entry of a final judgment until such intermediate judgment has been entered.
    Appeal from order directing final judgment in favor of plaintiff.

      Frost & Manser, for app’lt; Silas J. Owms, for resp’t.
   Dykman, J.

is an appeal from an order directing final judgment in favor of the plaintiff against the defendant, Henry L. Brown, who demurred to the plaintiff’s complaint.

The demurrer was overruled, with leave to the defendant to answer within twenty days on payment of costs. An order to that effect was entered, but no interlocutory judgment.

The defendant did not answer within the twenty days after the service of the order, and thereupon the plaintiff made motion for final judgment against the defendant Brown, which was granted, and this appeal is from that order.

The order is érroneous. The defendant desired to appeal from the decision overruling the demurrer, but could not do so until an interlocutory judgment was entered.

The decision upon the demurrer granted the defendant leave to answer, and required an intermediate judgment, and the defendant was not in defaq.lt until such judgment was entered. Code of Civil Procedure, § 1021; Liegeois v. McCrackan, 22 Hun, 69; 2 Rumsey’s Practice, 236, 237; Gray v. Rothschild, 13 Civ. Pro., 359.

Under the old Code the appeal could be taken from the order, but now that is changed, and the appeal must be from the judgment. Gray v. Rothschild, supra; Metropolitan Nat. Bank v. Bussell, 14 Abb. N. C., 99; Cambridge Val. N. Bank v. Lynch, 76 N. Y., 514.

The order should be reversed, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs.

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


author: Barnard, P. J.

text:
    In the Matter of Opening, etc., of Ogden Street, in the City of Middletown.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Eminent domain—Commissioners—Disqualification—Code Civ. Pro., §46. • '
    Three commissioners to appraise and assess the expense of a street extension were appointed under chap. 535, Laws 1888, which requires only that three disinterested persons be appointed. Held, that § 46 of the Code had no application to such commissioners, and that a commissioner did not cease to be disinterested merely by reason of standing in the relation, of brother-in-law to a person whose interest was likely to be affected by the proceeding.
    2. Same.
    Section 46 of the Code does not include commissioners among and along with judges and officers exercising judicial or quasi judicial functions.
    Appeal from order of the county judge of Orange county removing a commissioner appointed in this proceeding.
    This proceeding was commenced to condemn lands for the extension of a street in the city of Middletown, and three commissioners, including Henry W.' Wiggins, were appointed to appraise and assess the damages and benefits. Pending a hearing before the commissioners, and during an adjournment, motion was made and granted, to remove Wiggins on the ground that his wife and the wife of one Boak were sisters, and that Boak was interested in land beyond the extension, and therefore possibly liable to assessment, and that therefore Wiggins was disqualified to act as commissioner.
    The following is the opinion of the county judge:
    Beattie, J.—The statute forbids a judge from sitting or taking part in the decision of any case or matter, if he is related by consanguinity or affinity to any party to the' controversy within the sixth degree. Code, § 46.
    The statute is simply an extension of the common law maxim that “ no man can be judge in his own case.” Broom’s Legal Maxims, 119.
    It is true that ordinarily the statute applies solely to judges eo nomine. People v. Wheeler, 21 N. Y., 86; People ex rel. Howlett v. Mayor, etc., 63 id., 291.
    It has been held, however, “ that where the persons are not judges or justices in name, then the inquiry is, whether they are acting judicially in the proper sense; that is, whether they are substantially a court.” Foot v. Stiles, 57 N. Y., 407.
    The commissioners appointed in this matter are officers created by the constitution. Matter of Ryers, 72 N. Y., 1.
    Any attempt by the legislature to vest in any other court or tribunal the authority given to such commissioners would be unconstitutional. Matter of the Village of Middletown, 82 N. Y., 196.
    The commissioners are public officers appointed to discharge important j udicial functions; they are to hear the parties, take evidence and make determinations. Matter of Kendall, 85 N. Y., 302; Foot v. Stiles, 57 id., 407.
    It is positively alleged in the moving affidavit that Mr. Boak has a partnership interest in the lands affected by this proceeding. The allegation is not denied. It follows, therefore, that as the co-partners of Mr. Boak are parties to the proceeding because of their interest in the lands, he is also a party.
    It is conceded that Mr. Boak and Mr. Wiggins married sisters. They are therefore related to each other within the degree named in the statute. Paddock v. Wells, 2 Barb. Ch., 332.
    The rights of the public and of individuals are dependent upon the regularity and validity of such proceedings. I think the objection would be fatal to any determination of the commission, and a commissioner should be appointed in the place of Mr. Wiggins.

      William F. O'Neill, for app'lts ; S. S. Oowdey, for resp't.
   Barnard, P. J.

This is an appeal from an order of the county judge of Orange county removing one Henry W. Wiggins from his office as commissioner in the above entitled proceeding, to which said office he had previously been appointed by the said county court, for the reason that Wiggins was a brother-in-law of one A. Y. Boak, who was a silent partner with the firm of Bull & Youngblood in the ownership of certain lands affected, or likely to be affected, by the said condemnation proceedings.

The appointment of Mr. Wiggins as one of the three commissioners was made under chapter 535 of the Laws of 1888 (and the subsequent amendments thereto), entitled “ An act to incorporate the city of Middletownand in § 7 of title 6 of this act the appointment of three disinterested freeholders is required. No further qualification is demanded of the commissioners except that they shall be disinterested; and we are of the opinion that the county judge of Orange county erred in holding that § 46 of the Code of Civil Procedure applies to commissioners of this nature, or that by reason of standing in the relation of brother-in-law to a party whose interest is likely to be affected, a commissioner thereby-ceases to be disinterested without proof of some direct interest of his own in .the affair.

In the Matter of Dodge & Stevenson Mfg. Co., 77 N. Y., 101, the learned court in its opinion says: “ This language does not seem appropriate to such a case as the present, but rather to a case where there are parties adverse to each other, or at least where some question is to be determined between two or more parties; but passing this question, it is very certain that to exclude a judge from sitting in any cause, by reason of kinship, such kinship must exist between him and some person who is actually a party to the cause. It is not enough that he is related-to some person, not a party, who is or may be interested in it or affected by his order. Interest on the part of a judge disqualifies him from sitting, but interest on the part of a relative of the judge does not.”

We are furthermore of the opinion that the section of the Code referred to does not include commissioners among and along with judges and officers exercising judicial or quasi-judicial functions. This commission was solely for the purpose of looking into the general necessity and bearing of the proposed street extension, and their decision was subject to the subsequent scrutiny and oversight of the court, both as to the amount of damages and in every other respect. This provision of the Code needs to be strictly construed, as under a liberal construction it could be made to apply to almost every class of court appointees or elective officers of towns or municipalities, exercising a power in any respect resembling the judicial. The People v. Wheeler, 21 N. Y., 82; Foot v. Stiles, 57 id., 399; Matter of Southern Boulvard, 3 Abb. Pr., N. S., 447; The People v. The Mayor, 63 N. Y., 291.

The order appealed from should, therefore, be reversed, with costs and disbursements of the appeal.

Dykman and Pratt, JJ., concur.


text:
    Edwin Somerville, Resp’t, v. The City Railroad of Poughkeepsie, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Negligence—Street railroad—Snow.
    Defendant, by means of a snow plow, threw the snow from its tracks in a narrow street, and a ridge was thereby formed. Plaintiff, in attempting to pass another team while driving on said street, was crowded on the ridge, his sleigh slipped thereon and upset and he was injured. Feld, that the act of defendant was extremely careless and that a verdict in favor of plaintiff would not be disturbed.
    Appeal from judgment of county court in favor of defendant, entered on verdict, and from order denying motion to set aside the verdict and for a new trial. ■

      Silas Wodel (Henry M. Taylor, of counsel), for app’lt; J. Morschauser (0. Morschauser, of counsel), for resp’t.
   Barnard, P. J.

The action is one in which the plaintiff seeks to recover for injuries sustained in consequence of the negligent act of the defendant. Was neglect upon defendant’s part proven ? The defendant operates a street railroad, a portion of .which is on Main street The defendant, after a snow storm, by means of a snow plow threw the snow from within its tracks upon that portion of the street outside the tracks. This caused a ridge of snow outside'the rails of some two and one-half feet higher than the center of the defendant’s track.

The use of the street outside of the railroad tracks packs down the snow so that there is a hard slippery ridge of snow higher than the street and higher than the railroad. The plaintiff driving along the street was, by the slipping of his sleigh on this ridge, upset and injured.

The act of the railroad company was extremely careless and the street was thereby rendered dangerous to those traveling upon if. The street is not wide enough for two teams to safely pass on each side of the- defendant’s road. One is necessarily crowded upon this ridge and the result which happened to plaintiff is likely to happen to others similarly placed in the street Was the plaintiff guilty of neglect which contributed to the injury ?

The bare statement of the case absolves him from an inference of legal neglect The question then became one for the jury and their finding is in favor of the plaintiff upon this issue. The evidence supports the finding. The driving part of the street was extremely narrow. The plaintiff met a team and turned out so as to let this team pass. This forced him upon the ridge of snow' made by defendant and the accident happened because the plaintiff’s sleigh slipped down the incline and was overturned and the plaintiff injured. The plaintiff was. free from fault if he exercised due care in the management of his team.

The question of fact whether or not there was a ridge of snow and ice made by defendant and the extent of the plaintiff’s injury, were the subject of contradictory evidence upon the trial. An appellate court is bound by the finding of the jury unless there be preponderating evidence against the verdict.

No such case is presented and the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Pratt, J.

text:
    George Babcock, App’lt, v. John R. H. Clear, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Covenant—Not to engage in business.
    On the sale of his interest in a business to plaintiff defendant entered into a covenant not to engage in. the same business directly Or indirectly, as principal or agent, within a certain radius. He thereaiter engaged in delivering goods for a rival dealer,- and solicited custom from some of his old customers. Held, a breach of the covenant, and that calling himself a laborer did not affect the question.
    Appeal from judgment in favor of defendant, entered upon dismissal of complaint.
    This action, was brought to restrain the defendant from, directly or indirectly, carrying on the ice business in Tarrytown, or North Tarrytown, or their vicinity, within a radius of ten miles of the premises formerly occupied by plaintiff and defendant while co-partners, and for such damages as the plaintiff, had suffered.
    The plaintiff and defendant had formerly been co-partners in the ice business, with ice houses and a principal place of business,. on Sheldon avenue, about a mile from the principal business street of Tarrytown.
    On October 27, 1888, plaintiff bought defendant’s interest in the co-partnership and as a part of the consideration therefor the defendant covenanted with the plaintiff as follows :
    “ And the said John R. H. Clear covenants and agrees to, and with the said George Babcock, that he will not at any time hereafter engage directly or indirectly, or concern himself in carrying on or conducting the ice business, either as principal or agent, within ten miles of the premises heretofore occupied by the parties hereto, in the town of Greenburgh.”
    The defendant thereafter engaged as the agent of one Ward Wheeler, another ice dealer in Tarrytown, and, as such agent, solicited the customers of appellant (formerly customers of the co-partnership) to take ice from said Wheeler, offering to undersell appellant, and delivered ice for said Wheeler.

      E. T. Lovatt, for app’lt; W. F. Purdy, for resp’t.
   Pratt, J.

The defendant for a good consideration covenanted' with the plaintiff not to “ engage directly or indirectly or concern himself in carrying on or conducting the ice business, either as principal or agent, within ten miles,” etc., of a certain place.

He is now and for a long time has been engaged in riding upon an ice cart delivering ice and doing such other parts of the ice business as he is directed to do by a rival ice dealer of the plaintiff, within the limits specified in the contract.

It appears that he has solicited some of his old customers and others to buy ice of his present employers at prices below those of the plaintiff.

We think that although this is a covenant that must be strictly adhered to, that the acts of the defendant clearly fall within the spirit and terms of it; merely calling himself a laborer does not signify to take the case out of his covenant.

He was undoubtedly hired because he was acquainted with his former customers and could prevail upon them to patronize his present employer.

To pretend to be "a laborer was a mere cover to engage in the ice business in a way which would injure the plaintiff in the most effectual way.

If his work had been cutting ice or loading it or taking care of horses, or even keeping the books, so long as he did not solicit custom as agent of his employer, it might not violate his agreement, but to engage in selling and delivering even as agent was clearly a breach of his covenant.

Judgment reversed, with costs.

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


author: Lawrence, J.

text:
    The People, Resp’ts, v. William P. Cannon, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Bottles—Constitutional law.
    Chapter 377 of the Laws of 1887, an act to protect the owners of bottles, as amended by chapter 181 of the Laws of 1888, is constitutional.
    8. Same—Good faith not a defense.
    The fact that the defendant purchased the bottles in question in the due course of business, and without knowledge as to the true owner, is not a defense to him upon an indictment under this statute.
    3. Same.
    The act does not place unreasonable restrictions upon the lawful business of dealers in bottles.
    Appeal by the defendant from a judgment of conviction of a misdemeanor rendered against him in the court of general sessions in and for the city and county of Hew York.

      A. W. Tenney, for app’lt; Thomas G. M TJcclesine, for resp’ts.
   Lawrence, J.

defendant was tried and convicted of a misdemeanor before the recorder and a jury for having in his possession twenty-five bottles with the following words and figures blown or impressed thereon, to wit: “ A Liebler Bottling Co. Begistered, 402 and 404 W. 126th St., N. Y.,” ánd a monogram of the letters “ A. L. B. Co. ”

He was sentenced to pay a fine of $12.50, and to be imprisoned in the penitentiary for a term of sixty days.

The indictment under which the'deféndant was tried and convicted was found under the second section of the act entitled “An act to protect the owners of bottles, boxes, syphons and kegs used in the sale of soda water, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, beer, white beer or other beverages,” being chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888.

The first section of the act of 1887, as amended, provides that, “ any and all persons and corporations engaged in manufacturing, bottling or selling soda waters * * * lager beer, weiss beer, etc. * * * in bottles, syphons etc., with his, her, its or their name, or names, or other marks or devices, branded, stamped, engraved, etched, blown, impressed, or'otherwise produced upon such bottles, etc., used by him, her, it or them, may file in the office of the clerk of the county in which his, her, its or their principal place of business is situated, and also in the office of" the secretary of state, a description of the name or names, marks or devices, so used by him, her, it or them respectively, and cause such description to be printed once in each week, for three weeks successively, in a newspaper published in the county in which said notice may have been filed as aforesaid, except that in the city and county of New York, and the city of Brooklyn, in the county of Kings, such publication shall be made for three weeks, successively, in two daily newspapers, published in the cities of New York and Brooklyn, respectively. ”

Section 2 of said act, under which this indictment is found, is as follows:

“ It is hereby declared to be unlawful for any person or persons, "corporation or corporations, to fill with soda water, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer, or other beverages, or with medicine, medical preparations, perfumery, compounds or mixtures, any bottle, box, syphon, tin or keg, so marked or distinguished, as aforesaid, with or by any name, mark or device, oi which a description shall have been filed or published, as provided in § 1 of this act, or to deface, erase, obliterate, cover up, or otherwise remove or conceal any such name, mark or device thereon, or to sell, buy, give, take or otherwise dispose of of traffic in the same, without the written consent of or unless the same shall have been purchased from the person or persons, corporation or corporations, whose mark or device shall be, or shall have been in or upon the bottle, box, syphon, tin or keg so filled, trafficked in, used or handled as aforesaid.
“Any person or persons, or corporations, offending against the provisions of this section shall be deemed guilty of a misdemeanor, and shall be punished for the first offense by imprisonment not less than ten days, nor more than one year, or by a fine of fifty •cents for each and every such bottle, box, syphon, tin or keg so filled, sold,' used, disposed of, bought or trafficked in, or by both such fine and imprisonment, and for each subsequent offense by imprisonment not less than twenty days nor more than one year, or by a fine of not less than one dollar nor more than five dollars for each and every bottle, box, syphon, tin and keg so filled, sold, used, disposed of,' bought or trafficked in, or by both such fine .and imprisonment, in the discretion of the magistrate before whom the offense shall be tried.”

Upon the trial, a stipulation between the People and the ¡defendant was read in evidence, which is as follows :

1. The defendant, William P. Cannon, now is, and, at all the times herein mentioned, was a dealer in second-hand articles, to wit: in second-hand bottles in the city and county of Hew York.

2. In the month of September, 1887, the A. Liebler Bottling Company was duly organized • and incorporated under and by virtue of the laws of the state of Hew York, to wit: pursuant to and in conformity with the act of the legislature of the state •of Hew York, passed on the 17th day of February, 1848, entitled "An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,” 'and the several acts of the legislature amendatory thereof; and said corporation was so as aforesaid organized and incorporated under the •corporate name and style, “A. Liebler Bottling Company.”

3. At all the times mentioned herein, the said corporation has had, and now has, its principal place of business in the city and •county of Hew York ; and, at all said times,- has been and is now •engaged in bottling, selling and delivering lager beer, soda waters .arid aerated waters, in bottles, with its name and certain marks .and devices blown and impressed thereon.

4. Prior to the 1st day of March, 1888, the said corporation did duly file in the office of the clerk of the county of Hew York, .and also in the office of the secretary of state of the state of Hew York, a description of the name, marks and devices so used by it, and did duly cause said description to be printed and published for three weeks successively in two daily newspapers published in the said city of Hew York, to wit: in “ The Daily Register,” and in the “ New York Journal of Commerce," as provided by a certain act of the legislature of this state, entitled “An act to protect the owners of bottles, boxes, syphons and kegs used in the sale of soda water, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, small beer,lager beer, weiss beer, beer, white beer, or other beverages,” passed May 18, 1887, and known as •chapter 377 of the Laws of 1887.

5. That the description of the name, marks and devices so filed and published as aforesaid is and was as follows, to wit: “A. Liebler Bottling Co., Begistered, 402 and 404 W. 126th street, H. Y.," and a monogram of the letters “A. L. B. Co.”

6. On the 30th day of September, 1890, at the city and county of Hew York aforesaid, the said defendant, William P. Cannon, had in his possession, and there was then and there found in his jDossession, twenty-five certain bottles which, and each of which were and was then and there marked and distinguished with and 'by the >;ame of the said corporation and the said marks and devices of which a description had been filed and published as aforesaid, and upon which and each, of which said bottles there was then and there the said name, marks and devices of the said corporation, as above described, blown and impressed.

7. Said corporation has never given or granted to any person or persons, corporation or corporations, a written or oral consent that said person or persons, corporation or corporations, or any one, could or should sell, buy, give, take, or otherwise dispose of, or traffic in, any bottles having blown and impressed upon them the name, marks and devices aforesaid.

8. Said corporation has never sold or given away any bottle or bottles having blown and impressed upon them the name, marks and devices aforesaid.

9. The said defendant, William P. Cannon, prior to the 30th day of September, 1890, purchased, at the city and county of New York, the said twenty-five bottles.

10. When said defendant so purchased 'said twenty-five bottles he did not then know in what manner or from whom said bottles-had been obtained by said person from whom he purchased the same.

11. Said twenty-five bottles were purchased as aforesaid by said defendant in the open market, in the samé manner and way-in which he was accustomed to purchase bottles in the course of. his business as a dealer in second hand bottles, to wit, from any one bringing bottles to his place of business for sale.

12. None of said twenty-five bottles were in existence prior to' the 1st day of April, 1888.

The only other proof presented upon the trial was the evidence of one Linker, a detective, who testified that on the 20th day of September he found in the possession of the defendant twenty-five bottles, which were then produced and admitted in evidence. Thereupon the prosecution rested, and the defendant’s counsel moved that the jury be directed to acquit the defendant on the ground that the facts proved have shown the commission of no crime by the defendant, for the reason that the statute declaring it. to be a misdemeanor to use or traffic in bottles so marked as indicated is unconstitutional, and that its provisions are in violation of the provisions'of the constitution which secure to every man the right to his property, the right to keep it, and not to-have it taken away from him without due process of law.

The defendant’s counsel also asked the court to dismiss the indictment and acquit the defendant on the further ground that the acts under which the defendant is indicted place restrictions. upon lawful and legitimate business, and prefer one class of business to another, which is against public policy and is unconstitutional. He also asked the court to dismiss the indictment and acquit the defendant on the further ground that the acts under which the indictment had been found are unconstitutional in authorizing the searching of defendant’s premises, and the seizure and removal therefrom of said twenty-five bottles by virtue of a search warrant, when said bottles had not been stolen or purloined, but had been purchased and paid for by the defendant, in the open market, and in the regular course of his business.

These several motions were denied, and proper exceptions taken to the ruling of the recorder. The defendant was then examined as a witness in his own behalf, and having testified as to his-business, and its location, further stated that he purchased the twenty-five bottles in question prior to September 30, 1890 ; that he did not know from whom he purchased them; that he did not ° purchase thprn from the A. Liebler Bottling Company, nor did he know how the person from whom he purchased them became possessed of them. He further testified that he purchased the bottles in the course of his business, and in the open market. .

The defendant then rested and the court was asked by his counsel, upon the facts conceded in the stipulation as well as upon the facts established by the oral evidence in the case, to charge the j ury that the act of the legislature under which the indictment was framed is unconstitutional, and that therefore the defendant had committed no crime.

Upon the grounds stated in his original motion to dismiss, he again asked the court to advise the jury to acquit, and on the same ground he also asked the court to dismiss the indictment, and acquit and discharge the defendant.

These several requests being refused, exception was duly taken to such refusal, and after the charge by the recorder, the jury found the defendant guilty, and the judgment already referred to was pronounced against him.

As long ago as 1847, the legislature passed an act in relation to the sale of bottles used by the manufacturers of mineral waters, and others, ■ which, after providing that the descriptions of the bottles should be filed in the office of the secretary of state, and of the clerk of any county in which said articles should be bottled, or sold, and for the publication in a newspaper of the description of the name and marks so used and sold, imposed a penalty upon any person who should sell any bottles marked or stamped as in the first section of the act described, and gave a right of action therefor to the person whose mark shall be stamped on the bottles so sold, who should have complied with the provisions of the first section of the act, and any bottle dealer or keeper of a junk shop who should purchase such bottle, from any person, was made liable to the penalties imposed by the second section.

The act of 1847 was amended by chapter 117 of the Laws of 1860, which declared it to be unlawful for any person, or persons, thereafter, without written consent of the owner thereof, to fill with mineral waters, etc., any such bottle so marked or stamped, or to sell, dispose of, buy or traffic in any such bottles so marked or stamped, etc., and, in addition to the penalty prescribed by the previous act, it was provided that: “ The fact of any person other than the rightful owner thereof, without such written permission, * * * using such bottles for the sale therein of any mineral water or other beverage, shall be presumptive evidence of the unlawful use and purchase of such bottlesand the section went on to provide that any owner, or agent of such owner, who should make oath or affirmation that he had reason to believe that any of his bottles stamped and registered as aforesaid were being unlawfully used by any person, or persons, selling or manufacturing mineral water, etc., or that any junk dealer or vendor of bottles shall have any of such bottles secreted upon his premises, or in. any other place, the magistrate might issue a search warrant to obtain the same, and should have power in a summary way to-bring the person accused before him, and if the magistrate should find on summary examination that such person had disobeyed or violated any of the provisions of the act, he might proceed to impose a fine, and if the same be not paid to commit said person to prison for a term not to exceed fifteen days.

Under this last act the case of Mullins v. The People, 24 N. Y., 399, arose, and the only remark that we find in regard to the constitutionality of the act under consideration was made by Selden, Ch. J., in delivering the opinion of the court, in which, after-stating “that at common law the presumption from the facts-proved would clearly be that Mullins came lawfully into possession of the bottles,” the learned judge said : “Hence, although in view of the interpretation which I have given to the statute, there-is no objection to its constitutionality, still I see no evidence in the case upon which the conviction can properly rest.” And the court held that the judgntent appealed from reversing the conviction of the magistrate should be affirmed. This case, which is-referred to by the counsel for the People in his points, gives us very little aid in determining the question presented on this appeal. It was, however, held by Mr. Justice Barrett, in Re Grifenhagen, N. Y. Law Journal, May 27, 1890, that the act under which this defendant was indicted was constitutional.

In the case of the People ex rel. Fellows v. Hogan, 123 N. Y., 219; 33 St. Rep., 48, the court of appeals, in disposing of the case, held that it was needless for them to consider the constitutional question, as to which they expressed no opinion.

It will be observed that this case does not arise under § 4 of the-acts of 1887 and 1888, relating to the proceedings by the magistrate upon the application for the issuance of a search warrant,, and the only question which is presented by the record before us is whether the second section of the act, and amendatory act, prohibiting the selling, buying, giving, taking or trafficking in said-bottles without the written consent of the persons from whom they shall have been purchased is constitutional.

Although it may seem harsh that an innocent vendee of bottles,, stamped and registered as required by the acts, should be deemed guilty of a misdemeanor, we cannot say that the provisions of the-second" section are in conflict with the constitution. It does not deprive the defendant óf his property without due process of law, because upon the fair construction of the stipulation upon which this cause was tried the bottles in question had been the property of the said corporation, which had never given a written or oral consent that any one should sell, buy, etc., the same, nor had said corporation sold or given away any bottles having blown andi impressed upon them the names, marks and devices referred to» in the stipulation and in the indictment. The fact that the defendant purchased the property in the course of his business, and in open market, cannot avail him as a defense in this action, there being no such thing as a market overt in this country.

The defendant, therefore, could obtain no better title to the property than that which was possessed by the person from whom he purchased them, and we do not think it was unconstitutional for the legislature to declare, as it has done, by the third section of the act as amended, that the possession of the bottles having the name, mark or device thereon of such owner, without his written consent, should be presumptive evidence of the unlawful use, purchase and traffic in such bottles, etc. Nor do we think that it can be successfully urged that the acts in question placed unreasonable restrictions upon the defendant’s lawful business. It is conceded by the record that the filing and publication of the marks was complete prior to the 1st day of March, 1888, and that, none of these bottles were in existence before April 1, 1888, and that the purchase was made by Cannon prior to the 30th day of September, 1890, on which day the bottles were found in his possession. We think the counsel for the People is therefore right in his contention, that the only restriction which was placed upon the conduct of the plaintiff's business is similar to that which exists in an ordinary trade-mark case, which prohibits one party from selling goods bearing the trade-mark of or the colorable imitation of the trade-mark of another party. Neither does the fact that the defendant purchased the property in question without any criminal intent or guilty knowledge' aid on this appeal. See People v. Kibler, 106 N. Y., 321; 8 St. Rep., 707; People v. West. 106 N. Y., 293 ; 8 St. Rep., 713.

The cases of the People v. Marx, 99 N. Y., 377; Matter of Application of Jacobs, 98 id., 98; The People v. Gillson, 109 id., 389; 16 St. Rep., 185, and similar cases relied upon by the appellant’s counsel, do not, in our opinion, have any application to the-case at bar, for the reason that in those cases the court proceeded upon the fact that the obnoxious legislative enactment prohibited a branch’ of industry not injurious to the community, and not. fraudulently conducted, solely for the reason that it competed with, another. No such element exists in this case.

The object of the legislation under consideration was not only to protect the owners of bottles stamped as specified in the act, but to prevent the public from being imposed upon, by having those bottles filled or sold, or bought by other parties who might, use them and palm them off upon the public as being filled by the owners who had registered them, or by parties who had lawfully derived their title from such owners. Although the act may in some of its features seem to be harsh, in regard to an innocent purchaser, we cannot, in the language of Andrews, J., in delivering the opinion in Bertholf v. O'Reilly, 74 N.Y., 516, pronounce a law invalid “for the reason simply that it violates our notions of justice, is oppressive and unfair in its operation, because in the opinion of some, or all of the citizens of the state, it is not justified by public necessity or designed to promote the public welfare. We repeat that if it violates no constitutional provision, it is valid and must be obeyed. The remedy for unjust or unwise-legislation not obnoxious to constitutional objections is to be found by a change by the people of their representatives, according to the methods provided by the constitution.”

■ It follows, therefore, that the judgment of the court below ■should be affirmed.

Yak Brukt, P. J., and O’Briek, J., concur.


text:
    Evan Jones, App’lt, v. Morgan Jones et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Deed—Mental capacity.
    Upon the question of the mental capacity of a grantor the court charged the jury that the grantor had a disposing mind if he had mental capacity to comprehend the nature and quality of his act, the nature and extent of his property and of the claims to his bounty, both the claims of the grantee and those of his other relatives. Held, correct.
    '2. Same—Burden op proop.
    Where an act is attacked on the ground of mental disability, the burden of proof lies upon him who alleges it. Sanity is presumed.
    3. Same.
    One who claims under a will must prove the execution and publication of the instrument and the mental capacity of the testator, but the law presumes a man to be compos mentis and one who denies it has the burden of proof.
    Appeal by the plaintiff from a judgment rendered at circuit, on the verdict of a jury, in favor of the defendant, and also from an order denying motion to set aside the verdict and for a new trial.

      John K Parsons and David B. Ogden, for app’lt; Jacob F. Miller and Joseph H. Choate, for resp’ts. ■
   Lawrence, J.

This is an action of ejectment, plaintiff claiming that he is seized in fee, and entitled to the possession of an undivided one-third part in certain premises, particularly described in the complaint.

The property consisted of several distinct parcels, each parcel being particularly described in a separate paragraph of the complaint, but by an order entered before the trial of the action, the parcels of land described in the first, second and third paragraphs were withdrawn.

The plaintiff claims as heir at law of John Jones, who died on the 15th day of June, 1883, leaving no direct descendants, but leaving two brothers, the parties to this action, and the children of a deceased brother as his only heirs at law; and the plaintiff claims, as one of such heirs at law, to be seized in fee and entitled to the possession of an undivided one-third part of the property mentioned in the complaint, as amended. John J ones, in whom the- title was vested, executed certain deeds in August, 1879, to the defendant Morgan Jones, in and by which he conveyed all his right, title and interest to the property in question to the defendant Morgan Jones, and Ann Jones, the wife of Morgan Jones, .has by ■certain mesne conveyance become possessed of the title thereto. John Jones also on the 17th of April, 1882, executed a will in and by which he gave and bequeathed to his brother, Morgan Jones, all the real and personal estate that he might be seized of at the time of his death, after paying his debts and funeral expenses. The theory of the plaintiff is, that both the deeds and the will under which the defendants claim title are invalid and of no effect, because John Jones at the time of making the same,, was either the subject of undue influence, or lacked the mental capacity to execute either of the instruments in question.

The learned justice who tried the case at circuit instructed the-jury, that their form of verdict if for the defendant, should be “ no cause of action,” and also submitted to them a special question in addition to their general verdict, which he directed them to answer “Yes” or “no; ” that question being, “In August, 1879, did John Jones have mental capacity to execute the deed to Morgan Jones.” The jury rendered a verdict for the defendant, “no cause of action,” and as to the special question submitted by the court, they answered “yes.” The case comes before us on exceptions taken to the refusal of the justice to charge certain requests submitted to him by the plaintiff, and also on exceptions to various portions of the judge’s charge; and' it may be stated generally that the questions raised by those exceptions are as to the burden of proof and as to whether the judge was correct in the rule which he laid down to the jury as to the degree of mental capacity necessary to be possessed by a testator in making a disposition of his property by will. The plaintiff also claims that the learned justice took from the jury all questions of fraud and undue influence, and left it to the jury to determine only the question of mental capacity, and further, that the court erred in refusing, to submit to the jury the question'whether the deeds were not intended merely as security and not as absolute conveyances of the fee. With respect to the exception last stated we deem it sufficient to say that the evidence of Shiels in respect to-his conversation with John Jones, as to the transaction with Morgan, relates to a declaration made after the conveyances had. been executed and delivered, and it was not competent to go to the jury upon the question whether conveyances absolute upon their face were really intended as mortgages; besides the evidence itself shows that the witness understood John Jones in-making the declaration to mean, that he had secured Morgan against loss , by selling, deeding or conveying to him his property. We think the learned justice was correct in his charge to-the jury in respect to the mental capacity which it was necessary for John Jones to have possessed in August, 1879, to make good and valid conveyances of the premises in question.

The learned justice said upon that subject: “ Did John Jones in August, 1879, having a disposing mind? That is a vague expression; it means this: Did he have mental capacity to comprehend the nature and quality of his act; to comprehend the nature and extent of the claims upon his bounty, both those of Morgan Jones and of his other relatives ? Mark that definition, for it is of the first importance in this case, and I will repeat it to you: John Jones had a disposing mind, as it is called in the law, if he had mental capacity to comprehend the nature ■and quality of his act, to comprehend the nature and extent of his property, and to comprehend the nature and extent of the •claims to his bounty, both those of Morgan Jones and his other relatives. You will remember that I do not submit to you the question whether John Jones was sane or insane. That is utterly immaterial to you here, except as it bears upon the question of whether he had a disposing mind within the definition I have "given you.” This question the jury answered in the affirmative.

In Jackson v. King, 4 Cowen, 207, it was held that a voluntary deed is good as against the grantor’s heir, and that where an act is sought to be avoided on the ground of mental disability, the proof lies with him who alleges it; that until the contrary appears, sanity is to be presumed, but that after a general derangement is ■shown, it then is incumbent upon the one who insists that "the •act is valid to show sanity at the very time when it was performed.

Tested by this rule with the evidence in the case before us, we think the jury may well have found, as their verdict indicates, that John Jones was perfectly aware of the nature and effect of the deeds, and of what he was doing at the time of their execution, and that no such general mental derangement was shown by the witnesses as to shift the burden of proof as to mental soundness, or unsoundness, from the plaintiff to the defendants.

We do not think that any such confidential relation existed between John Jones and Morgan Jones at the time of the execution of the deed as to compel us to hold, under the authorities cited by the appellant’s counsel, that the burden of proof in respect to the validity of the deeds was upon the defendant, Morgan Jones, nor that any such evidence of undue influence in procuring the execution of the deeds was put before the jury as to require the justice before whom the cause was tried to charge them that the burden of proof had shifted, and that in order to sustain the deeds it was necessary for the defendants to show that John Jones was not of such infirm intellect as not to understand the nature and character of the transaction. If we áre right in this conclusion under the submission of the question as to the capacity of John Jones to execute the deeds, the verdict of the jury was right and should be sustained, and the case might be rested upon the validity of the deeds alone. The learned counsel for the appellant took exception to the charge of the justice in respect to the mental capacity necessary to be possessed by a testator -for the purpose of executing a will, and he further claims that the learned justice was in error, because he did not discriminate between the mental capacity needed to support a gift of land or a deed, without adequate 'consideration, and a will or testamentary disposition.

In charging the'jury, the justice said: “There is a rule of law I shall give you to aid-you in determining this case. Every man is presumed to be sane. He is presumed to have a disposing mind, and in order to recover in this action the plaintiff mustshow to you, by a fair preponderance of evidence, that John Jones did not have a disposing mind at the time of the execution of these papers. If John Jones had such a disposing mind at that time, .at the time of the execution of the deeds, and at the time of the -execution of the will, and you shall find the will was valid, then the defendants’ rights stand upon two grounds, both upon the •deeds and upon the will. If the evidence before you, however, is of even balance, as to whether he had a disposing mind, then your verdict must be for the defendants.

“ If the plaintiff, however, has shown to you by a fair preponderance of evidence that John'Jones did not have a disposing mind .at the time of the execution of the deeds and the will, then the plaintiff is entitled to your verdict.” And in a previous part of his charge he said: “You will determine whether in April, 1882, John Jones had this disposing mind, so he was able to make a will of his property, because his will transferred all his property to Morgan Jones. If you shall find that he was able to make a will of his property, if he did have that disposing mind, then the defendant must prove another fact before he can rest his title solely upon that will. He must prove that will was validly exe■cuted. The rule of law is that when a will is executed the testador must state that that is his will, and he must request the wit-messes to sign the will as subscribing witnesses.”

The appellant’s counsel contends that as-to the will the burden ■of proof, was at all times upon the defendants, and that the learned justice did not sufficiently draw the attention of the jury to that fact. Tt was determined in the case of Delafield v. Parish, ■ 25 IST. Y., 1, that the person propounding an alleged testamentary paper must prove not only the execution and publication of the instrument, but also the mental capacity of the testator; so that if, upon consideration of the evidence on both sides, the •court is not satisfied that the supposed testator was of sound .and disposing mind and memory, probate must be denied; but it was also held that at common law, and under our statutes, the legal presumption is that every man is compos mentis; and the burden of proof that he is non compos mentis rests on the party who alleges that ‘an unnatural condition of mind existed in the testator. He who sets up the fact that the testator was non ■compos mentis must prove it.

■It was further held that in law the only standard as to mental -capacity, in all who are not idiots or lunatics, is found in the fact whether the testator was compop mentis or non compos mentis, as those terms are used in their fixed legal meaning, and such being the' rule, the question in every case is had the testator, .as compos mentis, capacity to 'make a will; not had he the capacity to make the will produced. If compos mentis, he can make any will, however complicated; if non compos mentis, he •can make no will; not the simplest.

It seems to us that in this case the defendant satisfied every rule laid down in the Parish will case. They produced the will, which was properly attested, and proved by the subscribing witnesses that it was executed by the testator. They also gave evidence which showed, or tended to show, that the testator fully •comprehended the nature of the instrument and was satisfied with its contents. This fully satisfied the rule laid down in Delafield v. Parish, supra, and the burden of proof rested upon the plaintiff to show that the testator was non compos mentis at the time of the execution of the" instrument.

Several exceptions were taken during the trial to the ruling of the court in respect to the admission or rejection of evidence,, which we have examined, but do not think that' any error was-committed by the court in respect thereto! Finally, we are of opinion upon the whole case that it was fairly tried and fairly submitted to the jury, and the jury having determined the questions submitted to them in the defendant’s favor, we think that, the judgment entered upon the verdict ought not to be disturbed.

Judgment affirmed, with costs and disbursements to the respondents.

Yan Brunt, P. J., and O’Brien, J., concur.


author:
Van Brunt, P. J.
      O’Brien, J.

text:
    Albert M. Crouter, Resp’t, v. Annie E. Crouter et al., Def’ts. Asher Weinstein et al., Purchasers, App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. PABTITION—JTJRISBICTION—GUARDIAN AD LITEM.
    Where, in an action of partition, an order appointing a guardian ad litem for an infant defendant is entered before the expiration of six weeks, after personal service without the state, the court does not acquire jurisdiction. t.
    2. Same—Pubohaseb—Merchantable title.
    Whether such an order is void or voidable, a purchaser having a right, to a title free' from reasonable doubt, will not be compelled to take property sold in an action where such a defect exists.
    Appeal from order directing purchasers to complete a purchase made at a partition sale.

      H. A. Forster and Eugene Smith, for app’lts; K H. Arnoux, for resp’t; Theron L. Carman, guardian ad litem.

   Van Brunt, P. J.

The grounds of the objection to the title in question were, first, that the affidavit upon which the order of publication was granted was not sufficient to give the court jurisdiction, and second, that the entry of the order appointing the guardian ad litem for the infant defendants before the expiration, of six weeks after personal service without the state was a nullity,, and that the court for that reason did not acquire jurisdiction over the infant defendants"; and that the guardian’s bond was not in proper form to the People of' the .state of New York.

It will only be necessary in the disposition of this appeal to consider the point as to the entry of the order appointing the guardian ad litem before the'service of the summons had-been completed. It appears that the infant defendants were personally served with the-summons, complaint, order of publication and notice on October-31 and November 1, 1890, in New Jersey, and that the order appointing the guardian ad litem was made on the' 8th of December,, much less than six weeks from the date of the service without the state. •

Section 440 of the Code requires a summons to be served, under an order for service by publication, by publication in two newspapers not less than once a week for six successive weeks, or -at the option of the plaintiff, by service of the summons and of a copy of the complaint and order without the state upon the defendant personally. And § 441 provides that for the purpose of reckoning the time within which the defendant must appear or ■answer, service by publication is complete upon the day of the last publication pursuant to the order, and service without the state is complete after the expiration of a time equal to "that prescribed for publication.

Therefore the service became complete upon the infant defendants six weeks after the 31st of October and the 1st of ¡November, 1890.

Section 471 of the Code provides that the infant defendant must appear by guardian, who must be a competent and responsible person appointed upon the application of the infant if he is of the age of fourteen or upwards, and applies within twenty days after personal service of the summons, or after service thereof is complete, as prescribed in § 441, or if he is under that age, or neglects so to apply, upon the application of any other party to the action, or of a relative or friend of the infant.

It is well established that the jurisdiction of the court over infants depends upon the service of process upon those infants. Therefore, the jurisdiction of the court over the infants in question did not exist until the summons had been completely served upon them, which the Code says is six weeks after the publication or "personal service out of the state. The guardian in question was appointed long before this period had expired. Therefore, the ■court had ho jurisdiction of the infants at the time of such •appointment.

It may be true that that jurisdiction was acquired when the service became complete by expiration of time. But that jurisdiction subsequently acquired could not breathe life into acts done prior to the acquirement of any authority to act

The claim that the'limitations in the Code were simply for the purpose of reckoning the time within which the defendant must appear or answer, and that the party is served upon the day of the first publication, but only for the purpose of answering he is not completely served until the six weeks have expired, cannot prevail, because, as already suggested, jurisdiction is not acquired until everything has occurred which is necessary to constitute ■complete service; and by § 471 the fact that in case of service by publication there is progression in the service is recognized, 'because it speaks of application being made 'within twenty days ■after personal service of the summons, or after service thereof is complete. A personal service under an order of publication out of the state is no more a complete service at any time before these six weeks have expired than is a service by publication in newspapers a complete service after the first publication. The two are placed upon precisely the same footing. Complete publication, if publication in a newspaper is ordered, must occur before the service is complete, and in the case of personal service out of the state six weeks must elapse before the service is complete. " As has been already stated, as the court only acquires jurisdiction by a complete service, the appointment of the. guardian was premature.

In the disposition of this appeal it is not necessary to consider the question as to whether this fact renders the judgment void or simply voidable. It is urged upon the part of the respondents that this was a mere irregularity which was cured by the proceedings in partition and the final judgment and order confirming the sale, and if that is not true, it is amendable. But the cases of Me-Murray v. McMurray, 66 N. Y., 175, and Croghan v. Livingston, 17 id., 218, cited by the respondents, show that this contention is not true, and that the most that can be said is that it is possible that the judgment may not be absolutely void but simply voidable. But if voidable, what right has the court to compel the appellants to take this title? And if amendable, what right-has the court to-insist that they shall complete their purchases, no amendment being had. The respondents come into court claiming their proceedings to be regular, and ask the appellants to take their title; and then say even if the court should be of the opinion that their proceedings were irregular, yet as they are amendable the appellants should be compelled to take the title. We do not see upon what theory, even if these irregularities are amendable, these appellants can be compelled to run the risk of an amendment. It was the duty of the respondents, when these irregularities were pointed out, if they were amendable to have procured the amendment and then offered the title, so that the question could come up as to whether the title was good or not. But with these irregularities, if they are only such, upon the record without amendment the court is asked to make an order compelling these appellants to complete, thus throwing upon them the risk of having the title, perfected and the irregularities cured.

It is well established that on judicial sales the purchaser is entitled to have a title free from reasonable doubt. Can it be said that a title is free from reasonable doubt which requires amendment of proceedings to make it perfect, such amendment never-having been made?

It is true that the respondents offer in their points to have the-proceedings amended in the particulars to which attention hasbeeen called.

But it seems to be too late upon an appeal to the general term, to make an offer of that description. If the offer had been made in the court below, the court might have allowed the matter to, stand over, although this would be of doubtful propriety, and after the amendments were made and the title perfected compelled the purchaser to take. But they did not do that. They have insisted upon their legal right to compel these appellants to take-title notwithstanding these irregularities which, perchance, thécourt might refuse ever to cure.

The order should be reversed and the motion denied, with ten dollars costs and disbursements of this appeal and ten dollars costs-of the motion below.

O’Brien, J.

The premature order appointing guardian was an irregularity only, and could have been cured by amendment had the plaintiff, when his attention was called to it, made a motion to that end, or had the order amending it been entered on motion to compel purchaser to take. As the record stands the irregularity thus exists, and I, therefore, concur in result.


author:
Patterson, J. Van Brunt, P. J.
      O’Brien, J.

text:
    Augustus F. Holly, Ex’r, App’lt, v. Kaufman Hirsch, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Vendor and purchaser—Title.'
    One Brett contracted to sell lands to one Pinkney, and after the latter had paid part of the purchase money Brett died without conveying. He left a will, in which he gave his executors a power of sale over his real estate. He devised all his real estate; to some of the devisees in fee, to others in trust. Pinkney paid or secured the rest of the purchase price, and the executors of Brett deeded to him. A mesne grantee of Pinkney sold the premises at auction to one Hirsch, who objected to the title, upon the ground that the fee was in the devisees of Brett and was not in his executors. Meld, that the question was in reasonable doubt and that the-purchaser should not be compelled to perform, as he was entitled to a merchantable title. . .
    Appeal from judgment of special term dismissing the complaint.

      S. P. Nash, for app’lt; Samuel Biker, for resp’t
   Patterson, J.

This action was brought for the specific performance of a contract for the sale of land situated in the city of Hew York; and the defense set up is that the defendant could not get a merchantable title such as he should be required to take from the party plaintiff.

The facts lying at the foundation of the case appear to be the following, viz.: Mr. Holly, as executor, etc., of Hathaniel Thurs-ton under the terms of a. power of sale contained in Mr. Thurs-ton’s will, sold the land in question at auction to the defendant in the year 1890. Mr. Hirsch refused to complete the purchase. The specific objection he urged was that the donee of the power of sale never had the legal title of the premises and consequently could not give a sufficient conveyance thereof. That objection .arose out qf the following circumstances: In the year 1879 one .Martin W. Brett was the owner in fee simple absolute of the land in question. On Hovember 6, 1879, he contracted to sell that, with other lands, for a stipulated price to one John M. Pinkney, and the day fixed for the consummation of the contract by the delivery of the deed and the payment of the balance of the purchase money was the 6th day of December, 1879. Pinkney had paid at the time of the execution of the contract of sale $1,000 on account of the purchase price. Mr. Brett died on Hovember 22, 1879. He left a will which was duly admitted to probate, and in and by such will he gave" his executors a power to sell his real and personal estate at publiq,or private sale and at such times and on such terms and conditions as they should deem most for the benefit of his estate. As appears by the fifth finding of fact Mr. Pinkney after the death of Brett paid or secured in pursuance of the terms of the contract of sale, and to his, Brett’s, executors, the balance of the unpaid purchase money of the said land, amounting to about $49,000, and such executors executed and delivered to him a deed in the usual form of executor’s deeds for such premises. Mr. Brett left several children and grandchildren. who were his devisees under the will. To some of his children-proportionate estates in fee'were given in his real estate; and as to others and several of his grandchildren trusts were created in what might be called their shares.

Mr. Pinkney, after taking the executor’s deed, conveyed the land to one Dempsey, and Dempsey was the immediate grantor of. Thurston, the plaintiff’s testator. At the death of Mr. Brett the situation of the parties to the transaction was this: Brett had been the trustee of the title for the purchaser, Pinkney, and the latter could have had, but for Mr. Brett’s death, a decree for specific performance on tender of the balance of the purchase money. It was a partly executed contract. Under such circumstances the title to the land passed to the devisees of Brett, but subject to the right of the purchaser to demand a conveyance from such devisees on full performance of his part of the contract. This resulted from the provisions of. § 45 of the statute of wills, which." enacts that a bond, agreement or covenant made by a testator for a valuable consideration to convey any property devised or bequeathed in any will previously made shall not be deemed a revocation of such provision, devise or bequest, either at law or in equity ; but such property shall pass by the devise or bequest subject to the same remedies on such bond, agreement or covenant for specific performance or otherwise against the devisees or legatees as might be had at law against the heirs of the testator or his next of kin, if the same had descended to them. That is merely to say, that notwithstanding the trust for the benefit of the purchaser the title went to the devisees-subject to the right of Pinkney to claim specific performance; and the statute points out the precise way in which that may be required. Section 169 of the statute enacts that the court of chancery shall have power to decree and compel a specific performance by an infant heir, or other person, of any bargain, contract or agreement made by any party who may die before the performance thereof, by any person interested in such bargain, contract and agreement, and on being satisfied that specific performance of such contract or agreement ought to be decreed or compelled.

The deed was taken by Pinkney from the executors under their power of sale, and evidently in t.he belief that a complete title to both the legal and equitable estates could be conferred by the execution of such a power. And the precise point now involved is whether or not the executors had capacity, as the property was-situated at the time of the execution of the deed to Pinkney, to make a conveyance under that power.

The point is made by the defendant in this action that the proper legal title could only be given by the devisees and that the executors could not execute the power of sale as to this land, for the reason that it was taken out of the testator’s estate by the contract of sale, and that a good and sufficient deed to confer a valid record title, to which the defendant here would certainly be entitled, could only be given by the devisees under the will of Mr. Brett, and in accordance with the terms of the statute referred to.

We think the coricrete question arising in this case is to be disposed of by authority. We are not to decide it upon an equitable construction of the power "given to the executors of Brett’s will to sell land for any purpose which might seem to them beneficial to the estate. If we were able to treat it as an original question, and to determine it according to the equities, we might be able to hold that when the executors made their deed and received the $49,000 balance of the purchase money, they entered into a new contract, and sold the land and received the purchase •money within the purposes of the power granted for the benefit •of the testator’s estate.

But we think that the whole subject has been disposed of by adjudications of the courts which seem to be absolutely binding upon us; and we do not regard what has been decided in those cases as being mere dicta; for it is evident that the learned judges by whom the cases to be adverted to were decided, had in mind the precise point which is raised in this case, and that the adjudications made, which we conceive to be binding upon us, were after full advisement and thorough consideration of what was involved in them.

The power of sale contained in Mr. Brett’s will seems to have been quite like that considered by the court in Lewis v. Smith, 9 N. Y., 502, and it was there held that a power of sale contained in a will authorizing the executors to sell all the testator’s fast estate,” by which is meant, of course, landed property, did not embrace lands which had been sold by contract by the testator in his lifetime, the purchase money being unpaid and the title still remaining in him at the time of his death. Or in other words, it was held that under such circumstances the power of sale could not be used by the executors; that as the interest which remained in the vendor was simply a right to the money due on the contract, it was not real but only personal estate, and therefore the power of sale -would be inapplicable.

But the question came up distinctly in the case of Roome v. Phillips, 27 N. Y., 357, and we are of opinion that that case is of controlling authority. We do not see that the observations of the court are to be regarded merely as dicta on the point now presented. That was an action for specific performance.

It is true that the main question involved was as to the power ■of an administrator with the will annexed to execute a power of .sale of land. But as the case came before the court, the whole ■subject was considered, and one of the -grounds upon which, the decision was placed was distinctly that the power of sale conferred . upon the executor by the will had become inapplicable to the land there involved by the sale of that land made by the testator in his lifetime.

The power of sale there under consideration was, in its terms, ' quite similar to that conferred by Mr. Brett on his executor, to wit: to sell and convey all" the testator’s real estate either at public or private sale, upon such terms as he may think proper and most beneficial to his estate. ■ It was there considered that the manner of sale, and the terms, had been conclusively determined by the testator before the will took effect by his death; that a sale had actually been made, and that the power did not look to the conveyance of the naked title to lands, of the beneficial interest in which the testator had divested himself in his lifetime. And the whole argument was summed up in the following words, that the power could not apply because “.simply the duty which the executor was appointed to perform respecting the land could not. be performed by him, because, at the death of the testator, there was no such land to be sold.” And this was decided in view of and by reference to § 45 of the statute above alluded to.

This enunciation of the law was concurred in by all the judges, and was stated by Judge Denio as one of the controlling reasons-for the decision of that case, and did not arise as a collateral matter, but, as we think, was intended to be a decision of the court, upon that subject

We have not overlooked the cases cited by the learned counsel for the appellant with reference to the construction to be given to powers of this kind.

There is a strong disposition of the courts to construe them equitably in certain particular cases ; and the case of the Mutual Life Ins. Co of N. Y. v. Woods, 121 N. Y., 302; 31 St. Rep., 45, is an instance of that disposition. That was a case of an action for specific performance of a contract for the purchase of land, and. the effect of a power of sale was involved. The plaintiff claimed under a deed on a foreclosure of a mortgage executed by a former owner of the property and under a deed executed by the executors of the will of that former owner. This conveyance evidently was intended to cut off remaining interests in land which might, not have been affected by the foreclosure. The court did hold it to be sufficient to give the plaintiff a valid title such as the defendant was bound to accept, but in that case the precise question which is now before us was not raised, nor is any reference made in the opinion of the court in the Eoome case which seems to lay-down the positive rule.

The case of Biden v. James, 3 St. Rep., 734, is cited as an authority sustaining the position of the plaintiff. But that does not meet the precise question raised here, and we do not think it is applicable.

Without expressing any opinion as to what might be our views upon the subject now before us, if it came up as an original question, we conceive ourselves to be concluded by the authority of the cases in the court of appeals referred to, and, therefore, the judgment of the court below must be affirmed, with costs.

Van Brunt, P. J.

I am of the opinion that even upon the-plaintiff’s own showing the question involved is a debatable one, and, therefore, the title is not free from reasonable doubt, and. such as a purchaser should be required to take.

O’Brien, J.

If appellant’s view of the law should finally beheld to be the correct one, two reasons suggest themselves why the purchaser should not be compelled to take title. The fact is that-the question is not at present free from reasonable doubt, and the second is that if now resolved in appellant’s favor it would not be a binding adjudication on the devisees who are not before the court and whose rights are involved. I, therefore, concur in the result.


author: O’Brien, J. Van Brunt, P. J.

text:
    Nellie E. Farrell, Resp’t, v. Albert Friedlander et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Malicious prosecution—Probable cause.
    In an action against a firm for malicious prosecution it appeared that, there was no dispute as to the facts which induced one Corwin, a partner-in the firm, to cause a search warrant to be issued under which the premises, of the plaintiff were searched. Held, that the question of probable cause, was one for the court alone and that it was error to submit it to the jury.
    Appeal by defendants from a judgment in favor of the plaintiff on a trial at circuit, and from an order denying a motion for a new trial.

      Charles Donohue, for app’lts; T. F. Neville, for resp’t.
   O’Brien, J.

The action was brought to recover damages for the alleged malicious prosecution by defendants'of the plaintiff. In the year 1880, the defendants, as partners, were engaged in the-manufacture of cloths, and the plaintiff was a designer in their employ. For some time prior to the alleged wrongful prosecution, the defendants missed, upon various occasions, large quantities of silk and other articles, which, as -the evidence showed, were, to» some extent, subject to plaintiff’s control. Finally Mrs. Elizabeth Deery was arrested for the larceny of some cloaks belonging to-defendants, which were found upon her person and at her residence. When arraigned before one of the police justices she stated that the stolen property had been obtained'by her through the assistance-of the plaintiff, and that out of the material that had thus been-furnished various garments had been made by her at the plaintiff’s direction.

-It also appeared that Mrs. Deery and plaintiff were acquainted,, having formerly worked together at H. B. Claflin & Company’s, and the plaintiff had been employed by the defendants upon-her recommendation. Claiming to be influenced by these-considerations, the defendant, Corwin, caused a search warrant to be issued, and in company with a police officer went to the plaintiff’s apartment, and after an examination found no goods belonging to them in her possession. In addition to this circumstance-that no goods were found in her possession, the plaintiff showed that she was of good character, and had been engaged at a salary of forty dollars a week for many years .by wholesale houses, and out of her earnings had maintained herself, father and four or five brothers and sisters.

It was also shown that the defendants, by reason of their business having fallen off, were desirous of being freed from the contract which they had made with the plaintiff to pay her the salary mentioned for the entire year of 1880, and in furtherance of the wish, they had changed her employment, and for a portion of the time had refused to pay her salary, out -of which a lawsuit arose between the parties, no doubt engendering feeling. It is these facts upon which plaintiff relies to justify her allegation that there was want of probable cause, and to support her charge of malice against the defendants in procuring the search warrant.

The two questions presented upon the appeal are, first: Was there evidence sufficient to go to the jury as to Freidlander’s responsibility for the act of his partner, Corwin, in the procuring of the warrant; and, second did the judge err in charging the jury as to the principle which should guide them in determining what did or did not constitute probable cause. As to the first, the evi- ’ dence shows that it was the defendant Corwin that appeared before the police justice on the occasion of Mrs. Deery’s examination. He it was to whom the latter stated the fact of plaintiff’s complicity in the theft, and it was he that immediately thereupon swore to the affidavit upon which the warrant was obtained, and, who afterwards accompanied the officer to plaintiff’s residence to conduct the search.

The defendant Freidlander denied that he had anything to do with causing the prosecution of plaintiff; nor was it shown that he, in any way, up to the time of the issuance of the warrant, approved or co-operated with his partner Corwin. The only theory therefore upon which his liability for the act of Convin could be predicated, would be that he was responsible for Corwin’s act while acting within the scope of his partnership business in doing Ml he did to recover the stolen property. It is true there is a line of cases which go to the length of holding, in regard to the law relative to the joint liability of partners, as stated in Abbott’s Trial Evidence, p. 217, that “ If the act itself was one within the scope of the business, and done as such, then it is not material that the other partners are ignorant and innocent, nor that it was willful; otherwise, if the act was wholly foreign to the business. If the act was presumptively a partnership act, because, though not in the line of trade, it was incidental to the exercise of an implied power, as where a partner in collecting a debt due the firm directs an officer to make a tortious levy, then the act of one partner is presumptively that of all, and evidence that they, with knowledge of the fact, received the benefit of it is conclusive against them.”

"it will be noticed, however, that the principle underlying the liability of one partner for the torts of another is governed by the principles of the law of agency, and like the liability of a master for the tortious act of his servant, is confined within the limits of the implied authority with which each partner is vested by virtue of the partnership relations. Undoubtedly, as 'stated by Mr. Abbott, where one receives the benefit of the tortious act of his partner, or where the act was presumptively a partnership act or incidental to the exercise of an implied power, there the other partners, upon the well settled prineiplés of agency, would be. liable. I can find, however, no case which goes to the extent of holding that the malicious prosecution of offenders has been admitted to be within the power constructively delegated to one. partner as the agent of another.

In Mali v. Lord, 39 N.Y., 381, which was a case where a superintendent and clerk called a policeman at the store of their employer and directed him to arrest and examine the person of a lady suspected of stealing goods, the court said: “ The inquiry is-whether a merchant by employing a clerk to sell goods for him in his absence, or a superintendent to take general charge and management of his business at a particular store, thereby confers authority upon such clerk or superintendent to arrest and detain and search any one suspected of having stolen and secreted about his person any of the goods kept in .the store.” The conclusion, reached was that he was not; the reason being that it will not be presumed that a master, by entrusting his property to a servant, and conferring power upon him to transact his business, thereby authorizes him to do any act for bis protection that he could not lawfully do himself if present. The principle of agency which underlies the question of the master’s liability for the act of his servant is analogous to that- upon which the liability of one partner for the acts of another is predicated. The cases are numerous that it is only for acts relating to the copartnership business, or which fall within the express or implied powers or duties of a copartner, that, one becomes the agent for his copartners. I do not think it can be claimed that a prosecution undertaken by one partner without consultation with and approval by his copartner,, can hold the latter liable, because it cannot be assumed that a malicious prosecution by one even in regard to supposed thefts, of. partnership property is within the scope of his partnership authority so as to make him, in respect thereto, the agent for his copartners. There being in the case, therefore, no evidence to show that the defendant Friedlander was in any way consulted,, took part in, knew of or approved of the prosecution undertaken by Corwin, he should not be held responsible for the latter’s tortious act. Judgment here having been against joint tort-feasors, as, it may be reversed as to one, it is doubtful if it can be permitted to stand as against the others.

Lewis v. Kahn, 25 St. Rep., 595, is authority for the proposition, that a judgment entered on a verdict against joint tort feasors^ cannot be held to stand as to one and be reversed as to the other for erroneous instructions as to the latter, but will be reversed in toto. If, however, the' judgment in all other respects was free from error, we should be reluctant to disturb it, and this brings-us to a consideration of the second principal question presented on this appeal, as to whether the learned trial judge was in error upon the question of probable cause. At the beginning of his charge the trial judge correctly stated the rule of law, by reading-from a report the definition of probable cause as laid.down by the courts of this state, as follows: “All the books agree that proof of express malice is not enough without showing also want of probable cause. Probable cáuse has been defined, a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the'belief that the person accused is guilty of the offense with which he is charged. However innocent the plaintiff may have been of the crime laid to his charge, it is, however, for the defendant to show that he had reasonable ground for believing him guilty at the time that the charge was made.” Subsequently, however, the learned judge inadvertently fell into an error in charging as follows : “ The rule in a criminal prosecution is that no person can be convicted on the evidence of an accomplice, unless that accomplice is corroborated by other testimony in material matters; in this case Mrs. Deery, if her story is to be believed at all, was an accomplice, and it is for you to say from the evidence whether she was corroborated so as to satisfy you as jurors upon your oaths that there was any justification whatever for the complaint which was made by the defendants.” This position of the learned judge was emphasized when .requested by the defendants to charge as follows: “If the jury believe the testimony of the witness Deery, the plaintiff cannot recover.”

The judge stated as follows: “ I charge in regard to that, as I have already said, that in a criminal prosecution no verdict can be had against the defendant on the testimony of an accomplice alone, unless that accomplice is corroborated as to some material facts, and the same rule substantially prevails in regard to actions of tort.” To the charge made and to the refusal to. charge as requested, exceptions were duly taken. It seems to us that it was error for the trial judge to charge the jury that in a criminal prosecution no verdict can be had agai.nst the defendant on the testimony of an accomplice unless that accomplice is corroborated as to some material facts, and that the same rule substantially prevails in regard to actions of tort, and that for this reason if Mrs. Deery’s testimony is believed by the jury, it would not be sufficient basis for the existence of probable cause. It must be remembered that the action was based upon what took place in 1880, and that the Code of Criminal Procedure which contains the present rule as to the testimony of accomplices was enacted on .June 1, 1881. It is true that since that time and at the time of the trial, the rule under § 399 of that Code was that a conviction could not be had on the testimony of an accomplice, unless corroborated. Prior, however, to that date, such was not the rule. People v. Everardt, 104 N.Y., 591; 5 St. Rep., 793; People v. Doyle, 21 N. Y., 578.

In the latter case it was stated : There is no rule of law which prevents a conviction on the testimony of an accomplice alone. The utmost caution should undoubtedly be exercised, but juries are nevertheless at liberty to convict on the unsupported testimony of a confederate in crime.” And in the People v. Everardt, supra, Earl, J., says: “ Prior to the enactment of § 399 of the Code of Criminal Procedure, it was the custom of judges to direct juries that they should not convict the defendant of crime upon the evidence of an accomplice unless such evidence was corroborated ; .and. yet it was the law in this state that a defendant could be -convicted upon the uncorroborated evidence of an accomplice if rthe jury believed it.”

It will thus be seen that the rule laid down by the learned judge was given a retrospective operation, and as applied to oc•currences in 1880, the defendant’s liability was measured by a principle that, at that date, was as yet unknown to the law. Apart, however, from this consideration, because we might as.sume that the learned , judge was stating the law as it existed at the date of the trial, and that view might have found support, we think that the whole charge is susceptible of a construction that destroys the distinction between evidence necessary to convict a ■criminal and the evidence necessary to show reasonable cause for the prosecution. All the authorities are uniform in holding that these questions are distinct and independent. As shown by the portion read from the report by the learned judge himself, it becomes apparent that the evidence required of defendant-to show probable cause in order to justify the prosecution is entirely different from the character or strength of the evidence which would be necessary to convict one of crime. We think, moreover, that it was error to refuse to charge the request that if the jury believed the testimony of Mrs. Beery, that then the defendants were •entitled to a verdict,.for the reason that her testimony went to support the version that she gave in the police court, that plaintiff was an accomplice with her in stealing defendants’ property. It -was undoubtedly therefore a sound proposition of law that if the woman Beery was to be believed, there was probable cause for the prosecution, and as said in Molloy v. The L. I. R. R. Co., 36 St. Rep., 626, that where there is no dispute as to the facts, the •question as to the existence of probable cause is one for the court.

We áre of opinion, for the reasons given, that the judgment ■should be reversed, and a new trial ordered, with costs to "appellant to abide the event.

Van Brunt, P. J.

I concur in result. There was no question for the jury upon the question of probable cause; that question depended upon the information which Corwin had before he acted. 'There was no dispute in respect to that, and consequently the question of probable cause was one for the court, and not the >ry. .

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