author: O’Brien, J.

text:
    The People, Resp’ts, v. John M. D. Fanshawe, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Arson—Intent.
    The fact that defendant set fire to his room in a lodging house for the purpose of destroying his personal effects, in order to defraud an insurance company, and not to destroy the building insured, does not change the character of the offense, and he may be convicted of arson in the first degree, and a refusal to charge the jury that an intent to destroy the building was a necessary element of the crime is not error.
    3. Same—Penal Code, § 490.
    Section 490 of the Penal Code does not qualify the definition of arson in the first degree, but limits and qualifies the broad language of the section defining arson in the third degree.
    3. Same—Jury.
    A juror having testified that before he would convict a person of arson^ in the first degree upon circumstantial evidence, it would have to be such as to leave no doubt whatever upon his mind, was asked by the recorder, “ Suppose the court was further to instruct you that if all the circumstances as they were developed by the evidence in the case pointed in one direction, beyond a reasonable doubt, and if it did it was to be received and treated in the same way as you would that direct evidence, would you do so?” and answered, “I don’t think I would,” whereupon the court sustained the challenge, and defendant’s counsel excepted. Held, that there was no error in the exclusion of the juror.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of court of general sessions convicting defendant of arson, and affirming orders denying motions for arrest of judgment and a new trial.

      Charles W. Brooke, for app’lt;

      Henry B. B. Stapler, for resp’ts.

       Affirming 47 St. Rep., 331.

   O’Brien, J.

The defendant was convicted of the crime of arson in the first degree, upon proof, sufficient for the consideration of the jury, that he wilfully and maliciously set fire to a lodging-house in the city of Ñew York, in the nighttime, and. in which there were lodging at the time fifteen or twenty persons. The defendant had a room in the house, and the proof tended to show that the fire originated in this room. He had a trunk in the room containing his personal effects, which were insured for one thousand dollars, and this property was partially destroyed before the fire in the room was ex-tinguished. The proof tended to show that this property was insured for much more than its value,1 and it appeared that though the defendant, in his proofs of loss, stated the value at over $1,500, the claim was settled with the insurance company for $350. The defendant’s counsel assumes, as we understand him, that the intent was to destroy the trunk and other personal effects insured for the purpose of defrauding the insurance company, but insists that the defendant could not be convicted of arson in the first degree if he set the fire in his room with this intent. His position is that a lawful conviction could not have been obtained upon the facts, as it was not charged in the indictment, nor established by any proof whatever, that the defendant set the fire with the intent to destroy the building. It is obvious that if the learned counsel is right in his contention, that an intent to destroy the building set on fire is a necessary element in the crime of arson in the first degree, then this conviction cannot be upheld. It is clear that such intent was not a necessary element of the crime as it existed at common law, or under any statutory definition prevailing in this state prior to the enactment of the present Penal Code. At common law, the offense was defined as the 'wilful and malicious burning of another’s house. 4 Black. Com., 221; 2 Bishop’s Crim. Law, chap. 2, § 8 ; 2 Wharton’s Crim. Law, § 1658. It has always been regarded as an offense of great malignity, and was formerly punishable with death. Even under our statute, prior to the Penal Code, arson in the first degree was classed among capital crimes, and was punished in the same manner as murder in the second degree. 3 R. S. (7th ed.), 2472. It was always looked upon as a crime that endangered human life, and the security of human habitations, and hence deserving of severer punishment that any offense aimed at the destruction of property merely. The statutory definitions of the crime, that have long existed in this state, have embraced different degrees, many of which were framed, doubtless, for the protection of property. But the act of setting fire to a dwelling-house in the night time, in which human beings were lodged, has always been classed as an offense ranking with murder in its enormity, and its dangerous consequences to society, and it was never supposed that the particular intent or motive that prompted so dangerous an act was a necessary element of the crime, so long as the act itself was wilful and malicious. When it was shown that a person wilfully set fire to a house in the night where human beings were at the time, it was supposed that this act alone evidenced such moral depravity and such a reckless disregard of human life as to constitute the offense, irrespective of the actual motive from which the act proceeded. So that, if it be true that the defendant in this case set fire to his room for the purpose of destroying the property insured, in order to defraud the insurance company, and not to destroy the building, this would not change the character of the offense, as the law on this subject has heretofore been understood.

All this the learned counsel for the defendant contends has been changed bj the provisions of the Penal Code, and thus it becomes necessary to inquire whether the legislature intended to have, in fact, worked such an important change in the law by the passage of that statute. 1 While it was intended to define all criminal offenses, it was a revision of prior laws on this subject and a substitute for the scattered and fragmentary legislation that preceded it, and must be construed with reference to the law which it replaced. Where an offense is defined in the same language as was employed before, or substantially the same, it will be presumed that no change was intended, unless the legislative intent in that direction is clear. People v. Jaehne, 103 N. Y., 193; 3 St. Rep., 11; People v. Stevens, 109 N. Y., 162; 14 St. Rep., 808; People v. Richards, 108 N. Y., 144; 13 St. Rep., 515; People v. Palmer, 109 N. Y., 110; 15 St. Rep., 78. Prior to the enactment of the Penal Code arson was defined by statute in this state and divided into four degrees, and many of the acts embraced within the different degrees of the crime were obviously inj uries to property merely. In the Penal Code the fourth degree has been dropped out, and all acts amounting to arson are concisely stated in three sections, defining three degrees of the crime. Section 486 declares that a person who wilfully burns or sets on fire in the night time a dwelling-house in which there is, at the time, a human being, is guilty of arson in the first degree. This case is certainly within the words of that section unless it is limited and modified by some other provision. In the two following sections the second and third degrees of the crime are defined, and then the punishment is prescribed in the next section. Then follows § 490, which reads as follows: “ The burning of a building under circumstances which shows beyond a reasonable doubt that there was no intent to destroy it, is not arson.” The learned counsel for the defendant insists that this provision must be read in connection with § 486, which defines arson in the first degree, and when thus read, the intent to destroy the building is an essential element of the crime which must be alleged and proved. As before observed, arson does not belong to that class of offenses which requires a specific intent to do the particular thing charged in distinction from general malice. 2 Bishop on Grim Law, § 14. But if such an important change has been made in the law as is claimed by the defendant’s counsel, it is plain that the defendant could not have been convicted of arson in any of its degrees, as defined in the Penal Code, and his offense, at most, amounts to nothing more than a mere misdemeanor under § 637, for wilfully setting fire to a building under circumstances not amounting to arson in any of its degrees. Bearing in mind the fact that the Penal Code was a revision of pre-existing statutes on the subject of crimes, and that no change in the law can be presumed to have been intended unless clearly expressed, and recalling the condition of the law on the subject of arson in the first degree as it existed prior to the enactment of the Penal Code, it is impossible to believe that any such result was intended in the enactment of § 490. The thought which was in the legislative mind must prevail when it can be ascertained, though apparently contrary to the letter of the statute, and it must be a clear case that would warrant the courts in holding that the legislature intended to reduce the offense of which the defendant was convicted from one of the highest known to the law to a misdemeanor. There is nothing in the nature of the crime, or in the law on the subject, as it has existed for centuries, that would be likely to induce the law-making power to introduce such an element into the definition of arson in the first degree. Neither can it be supposed that the legislature enacted § 490 without some purpose in view, and while we are quite clear that the purpose was not to change the nature of the crime of arson in the first degree, it is not so easy to ascertain just what was intended.

It is safe enough to say, however, that it was enacted from abundant caution, in order to exclude from the operation of the previous sections, in which the different degrees of arson are defined, acts which never constituted the offense, and, possibly, some acts which did. It is quite possible that it was an unnecessary precaution, as the courts would, doubtless, hold that the three sections referred to contained the whole law on the subject, and that a criminal statute could not be enlarged by construction to include acts not specifically enumerated. It was always the law that to set fire to or burn a house by negligence or mischance or accidentally while in the commission of a mere civil trespass was not arson, 2 Bishop’s Crim. Law, § 15 ; but it has been said that if a person set fire to or burn a house while engaged in the commission of a felony it is arson, though there was no intent to set the fire or burn the building. Id., §§ 14, 15. The legislature, no doubt, inten'ded to exclude all such cases from the definition of the offense by the enactment of § 490. It was provided by § 488, defining arson in the third degree, that “a person who wilfully burns or sets fire to * * * a building, structure or other erection, under circumstances not amounting to arson in the first or second degreds, is guilty of arson in the third degree.” This was a new definition of the crime, expressed in broad and comprehensive language, which, in the judgment of the legislature, might be construed to include acts which before did not amount to arson, and hence, § 490 was passed as a precaution against such a result. There was no intention to qualify the definition of arson in the first degree, as expressed in the previous section, but to limit and qualify the broad language of the section defining'arson in the third degree. It follows that the offense of which the defendant was convicted was sufficiently charged in the indictment, and the 2-efusal of the trial court to charge the jury that an intent to destroy the building was a necessary element of the crime was not erro2\ There is an exception in the case to the decision of the court sustaining a challenge to a juror on the pa2’t of the People which it may be p2-oper to notice. This juror had testified that before he would convict a person of arson in the first degree upon ch’cumstantial evidence, it would have to be such as to leave no doubt, whateve2', upon his mind; very precise and exact. He explained his meaning further by stating that he did not refer to a reasonable doubt only, but to any doubt whatever.

After some further examination the learned recorder propounded to him the following question: “ Suppose the court was further to instruct you that if all the circumstances as they were developed by the evidence in the case pointed in one direction, beyond a reasonable doubt, and that was toward the guilt of the accused, and if it did it was to be received and treated in the same way as you would that direct evidence, would you do so ?” The juror answered: “ I don’t think I would.” Whereupon the court sustained the challenge and the defendant’s counsel excepted. It needs no argument to prove that instructions such as are mentioned in the question from court to jury would be improper, but it does not follow that the question can be made the basis of a legal exception, as it was intended to test the extent of the juror’s prejudice against circumstantial evidence. It was another way of inquiring whether the juror would convict at all upon circumstantial evidence. The exception was not to the question, but to the decision excluding the juror, and as he had stated before the question was propounded, in substance, that he would hesitate to convict, even where the circumstances were of such a character as to establish guilt beyond a reasonable doubt, there was no error in the result within the recent decisions of this court. People v. McQuade, 110 N. Y., 297; 18 St. Rep., 288; People v. McGonegal, Dec., 1892, 48 St. Rep., 900.

There are some other exceptions in the record, but we think that they have been fully considered in the court below as well as the questions here discussed and correctly disposed of. The record does not disclose any error that entitles the defendant to a new trial.

It follows that the judgment must be affirmed.

All concur.


source: Caselaw Access Project

author: Andrews, Oh. J.

license: Public Domain

text:
    Nellie C. Gibney, Adm’rx, Resp’t, v. The State of New York, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    State—Negligence—Canals.
    Plaintiff’s child fell into the canal through an opening which the state negligently left in a bridge; the father plunged in after his child, and both were drowned. Held, that the death of both was the consequence of the negligence of the state, for which it was liable.
    Appeal from judgment of the court of claims awarding damages to claimant.

      S. W. Bosendale, Att’y-Gen’I, for app’lt;

      Edwin G. Angle, for resp’t.
   Andrews, Oh. J.

We have decided on the appeal brought from the award of damages for the death of the infant son of the plaintiff, that the evidence authorized a finding of negligence on the part of the state authorities in permitting the opening in the bridge, through which the boy fell into the canal, to remain unguarded, and also the further finding that there was no contributory negligence on the part of the parents of the child, and we, therefore, affirmed the award. The present appeal is from an award made for damages sustained by the widow and next of kin, arising from the drowning of the plaintiff’s husband and the father of the child, in an attempt to rescue the child from the canal, into which the child had fallen.

The material facts are undisputed. The plaintiff, with her husband and child, in an evening in August, while crossing the bridge, met an acquaintance and the parents stopped to talk with him. The child remained within a few feet of them and suddenly fell through the opening in the railing of the bridge into the canal below. The father, as soon as he discovered that the boy was gone, plunged into the canal to recover the child and both father and son were drowned.

It is contended by the attorney-gen era! that the negligence of the state in permitting the bridge to remain in an unsafe condition, while it may have been the cause of the death of the boy, cannot be regarded as the cause of the death of the father, although it occurred in an attempt to save the life -of the child. It is, doubtless, true that except for the peril of the child, occasioned by his falling through the bridge into the canal, there would have been no connection between the negligence of the state and the drowning of the father. But the peril to which the child was exposed was, as has been found, the result of the negligence of the state, and the peril to which-the father exposed himself was the natural consequence of the situation. It would have been in contradiction of the most common facts in human experience if the father had not plunged into the canal to save his child. But while the immediate cause of the peril to which the father exposed himself was tlie peril of the child, for the purpose of administering legal remedies, the cause of the peril in both cases may be attributed to the culpable negligence of the state in leaving the bridge in a danger- < .us condition. There is great difficulty in many cases in fixing the responsible cause of an injury. When there is a break in the chain of causes by the intervention of a new agency, and then an injury happens, is it to be attributed to the new element, and is this to be treated as the originating cause to the exclusion of the antecedent one, without which no occasion would have arisen for the introduction of a new element? It is impossible to formulate a rule on the subject capable of definite and easy application.

The general rule is that natural and proximate results of a wrong are those only of which the law can take notice. But where a consequence is to be deemed proximate within the rule is. the point of difficulty. In this case these elements are present: culpable negligence on the part of the state; the falling of a child into the canal through the opening which the state negligently left-in the bridge ; the natural and instinctive act of the father in plunging into the canal to rescue the child; the drowning of both ; the fact that such an accident as that which befell the child might reasonably have been anticipated as the result of the condition of the bridge, and the further consideration that a parent or other person seeing the child in the water would incur every reasonable hazard for its rescue. We think it may be justly said that the death both of the child and parent was the consequence of the negligence of the state, and that the unsafe bridge was in a legal and judicial sense the cause of the drowning of both.

We can perceive no sound distinction between this case and the Eckert case, 43 N. Y., 502. In that case the railroad train was being propelled at a dangerous speed. The negligence was active. In this case it consisted of an omission, that is, in the failure to originally construct the bridge properly, or permitting it to become dangerous. We do not perceive how the difference in the circumstances of the negligence affects the question of proximateness between the cause and the result so as to distinguish in this respect the two cases.

The Balloon case, 19 Johns., 381, and the case of Thomas v. Winchester, 2 Seld., 397, give support to our conclusion.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Maynard, J., not sitting.


text:
    Lillie S. Taylor, Resp’t, v. The Granite State Provident Ass’n, Impl’d, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    Service—Foreign corporation.
    The relation of attorney and client does not constitute such an agency as is designated by § 432 of the Code, and no jurisdiction of a foreign corporation can be obtained by service upon one who has merely acted as its attorney.
    Appeal from judgment of the supreme court, general term, second department, affirming order denying defendant’s motion to set aside judgment, and affirming order denying defendant's application to resettle order.

      Edward Hassett, for app’lt;

      Alpheüs T. Bullcley, for resp’t.

       Reversing 47 St. Rep., 882.

   O’Brien, J.

The defendant moved to set aside the judgment entered against it in this action and the service of the summons, on the ground that no jurisdiction was obtained of the person of defendant, as no sufficient or legal service of process had ever been made upon it. The motion was denied, and the defendant then moved for a resettlement of the order, which was refused. Orders were entered upon both motions, from which an appeal was taken, and they were affirmed at general term. The order denying the motion for resettlement was so far a matter of discretion that it is not reviewable here, but the denial of the motion to vacate the judgment and set aside the service of the summons presents a question of law, and we have jurisdiction to review it The defendant is a foreign corporation organized and existing under the laws of the state of Mew Hampshire and has never appointed an agent in this state for the purpose of receiving service of process. It appears from an affidavit attached to the summons that it was served upon one John M. Townsend, an attorney at law, residing in Poughkeepsie, on the 30th of. December, 1891. The cause of action arose and the venue was laid in Dutchess county. The defendant did not appear in the action, but other defendants residing in that county did, and upon their answers a trial was had and judgment entered against all, including this defendant, against which the main relief was demanded. The action was one calling for equitable relief, and the judge who tried it at the special term found as a fact that the process was served upon a managing agent of the defendant, upon what proof does not appear, and he proceeded to render judgment against the defendant for the relief demanded in the plaintiff’s complaint. There is also attached to the judgment roll an affidavit of the plaintiff’s attorney, in which it is stated, among other things, that the summons was served upon Townsend, and that he was, at that time, acting as the defendant’s managing agent or cashier; that more than twenty days had elapsed since the service and no appearance had been made.

The moving papers contain the affidavit of the defendant’s president, in which he swears that Townsend never was an agent, cashier or director, or connected with the defendant in any way, except as attorney of record in a suit to foreclose a mortgage held by defendant against the plaintiff. Townsend himself swears in the most positive way to the same fact, as does also the defendant’s superintendent of agents. The latter goes farther and swears that in November, 1889, one Pells and another were appointed agents for defendant in the county of Dutchess and five other counties in the vicinity, and that no subsequent appointment had been made, and Pells himself swears to the same fact, and further, that the defendant never had any other agent in the territory, and that Townsend never was such agent. The plaintiff produced and read various affidavits in opposition to the motion, in which numerous acts on the part of Townsend are detaled that might lend to show, in the absence of explanation, that he was such an agent as is designated in the Code, upon whom process could be served, but after careful examination of these affidavits, we think that the acts described are consistent with the relation of attorney and client, which relation, it is admitted by the defendant’s officers, existed, and still exists, and that they really do not establish any other relation. The affidavits, or some of them, also contain positive statements to the effect that Townsend was, at the time of the service of the summons, a managing agent or cashier of the defendant, but as the persons making the statements could not possibly know the fact, they must be'regarded as mere expressions of opinion, which cannot overcome the clear and positive statements of the defendant’s officers who had knowledge of the facts. Where there is conflicting evidence with respect to a disputed fact arising upon a motion, it is the province of the court in which the motion was made to settle the conflict, and this court will not interfere with the result. But w'hen the moving affidavits in this case are analyzed and properly construed, they present no real conflict with the positive proof of the defendant as to the real relations that Towmsend held to the corporation when the process was served upon him.

The court did not obtain jurisdiction of the defendant by the service of process upon Townsend, unless he was within the meaning of § 432 of the Code “ the cashier, a director, or a managing-agent of the corporation, within this state.” A- managing agent must be some person invested by the corporation with general powers involving the exercise of judgment and discretion, as distinguished from an ordinary agent or attorney, who acts in an inferior capacity and under the direction and control of superior authority, both in regard to the extent of his duty and the manner of executing it. Reddington v. Mariposa L. & M. Co., 19 Hun, 405; Sterett v. Denver & R. G. R. R. Co., 17 id., 316. The relation of attorney and client, which is all that appears to have existed in this case when the process was served, does not constitute such an agency as is designated in the provisions of the Code referred to, and hence no jurisdiction of the defendant’s person was obtained by the service made.

That part of the order appealed from, which affirmed the order denying the motion to set aside the service of the summons and to vacate the judgment, should be reversed, and the service set aside and the judgment vacated, and the appeal from that part of the order which affirmed the order denying the motion for a resettlement should be dismissed, without costs to either party in this court.

All concur.


author: Peckham, J.

text:
    George E. Matthews et al., App'lts, v. The Associated Press of the State of New York et al., Resp'ts. George Bleistein, President, etc., App'lt, v. The Associated Press of the State of New York et al., Resp'ts.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. News agencies—By-laws prohibiting its members from publishing NEWS FROM OTHER AGENCIES.
    The by-law of the defendant prohibited its members from receiving or publishing the regular news dispatches of any other news association covering a like territory and organised for a like purpose with defendant’s association. Held, that the United Press Association came under the prohibition of said by-law, as while defendant appoints and engages agents in the strict sense of the term only within this state, by contracts with other associations it receives them fiom all parts of the globe.
    2. Same—Restraint of trade.
    Said by-law was not invalid as being a contract in restraint of trade, or as restricting the liberty of the press, or as interfering with a vested interest in property, and is valid and enforcible.
    Appeals from orders of the supreme court, general term, fifth department, reversing orders continuing an injunction.

      Ansley Wilcox and Oharles B. Wheeler, for app’lts;

      8. M Payne, for resp’ts.

       Affirming 40 St. Rep., 593.

   Peckham, J.

The plaintiffs- appellants herein procured at special term an injunction against the defendant, The Associated Press, etc., restraining it from suspending the plaintiffs from any of the rights or privileges of or in the Associated Press, and from withholding from the plaintiffs (who are printers and publishers of newspapers at Buffalo in this state) the regular telegraphic news and reports procured and furnished by the Associated Press to its members, for or on account of any alleged violation by the plaintiffs of the provisions of the twenty-fifth by-law of the'association. The plaintiffs are members of the association. Upon appeal from the order granting the injunction the general term reversed the same upon the ground that the action to obtain a permanent injunction could not be maintained upon the facts set forth in the complaint and affidavits. The plaintiffs appealed from the order of reversal to this court.

. The record shows that the defendant, the Associated Press of the State of New York, was incorporated by virtue of an act of the legislature of this state, passed April 24, 1867, chap. 754 of the Laws of that year, and entitled “ An act to incorporate the Associated Press of the State of New York.” In the act the objects of the association are stated “ to be the mutual protection of members of the press, procuring and supplying its members with telegraphic news, upholding and elevating the character and standing, and the promotion and maintenance of the general interest of the profession and its members.’’

Some time subsequent 'to its formation the defendant adopted a by-law known as number twenty-five, a part of which is as follows: “25. No member of this association shall receive or publish the regular news dispatches of any other news association covering a like territory and organized for a like purpose with this association.’’ The by law then proceeds to provide a penalty for the violation of this provision in the form of a suspension of all the rights and privileges of the association, after an opportunity has been given the accused party to be heard.

It also appears from the complaint that there is an United Press Association which is organized and engaged in procuring and supplying its members with telegraphic news from various parts of the world, and the plaintiffs are members thereof, and by means of its reports and dispatches furnished to them, the plaintiffs receive and publish in their newspapers other and different telegraphic news from different parts of the world than that procured and furnished by the defendant corporation, and the plaintiffs are thus enabled to increase the reading matter published in their newspapers and to give fuller’and more complete telegraphic news of matters of general and public interest than plaintiffs would otherwise be enabled to do by publishing only the regular news and dispatches of the corporation defendant. The plaintiffs allege that the United Press Association is not one which covers a like territory, and that it is not organized for a like purpose with the defendant corporation within the meaning of the by-law in question, but that it covers a far wider territory and is organized for a more extended purpose. It is alleged that the defendant corporation only has agents for the collection of news within the state of New York, and that the news which it procures from other portions of the world is collected by other news or press agencies and delivered to the defendant corporation under contracts made by it, whereas the United Press Association has agencies for the direct collection of news for it from various parts of the world, outside as well as inside the state of Mew York. It is alleged that the defendant corporation is about to enforce the above mentioned twenty-fifth by-law as against the plaintiffs on account of the receipt and publication by the plaintiffs of the news and telegraphic dispatches collected and sent to them by the United Press Association. The membership in the United Press Association and also in the defendant corporation is a valuable property right.

The plaintiffs, upon the argument of the appeal here, have raised two questions: (1) Whether the by-law in fact prohibits the receipt and publication by them of the dispatches of the United Press Association; (2) if it do, whether it is legal and enforcible.

As to the first question :

I think the by-law does, in fact, prohibit such receipt and publication, because the United Press Association covers a like territory and is organized for a like purpose with the defendant corporation.

There is no limit in the charter or act of incorporation of the defendant by which it is confined to any particular territory in the procuring and supplying of its members with telegraphic news. The act leaves it entire freedom to obtain such supply from the whole world. There is no by-law which has been calledi to our attention that imposes any limit. As there is neither cbaiter nor by-law which limits the territory that the defendant corporation may cover in the execution of its object and purpose, so the record discloses no limitation in that territory arising from the practice of the corporation. It in truth obtains, serves and supplies its members with npws from all over the world. It accomplishes this object in- different ways; sometimes directly by means of agents strictly so called, and at other times by means of contracts through or with other news agencies which themselves directly employ agents for the collection of news. In this way the defendant corporation secures news from all over the world and supplies it to its members.

The fact that the defendant appoints and engages agents in the strict sense of the term only within and for the state of New York is not conclusive proof that its territory for collecting news is limited to that state. The record shows that it performs the purpose of its incorporation, not alone by obtaining news from these so-called agents, but that by virtue of contracts entered into by it with other associations, it contracts to and does receive from them the news which they collect from the principal portions of the civilized world, and in thus contracting for the supply of, and the receiving such news, the association or associations with which such contracts are made are thereby and for that purpose, and to that extent, constituted the agents of the defendant corporation. In that way it is covering a vast territory and it is thereby fulfilling the object of its incorporation, the procuring and supplying its members with telegraphic news.

Through its own agents and by virtue of its contracts with other press associations the defendant corporation achieves the collection and supplying of news to its members which has been collected from substantially the same territory over which the United Press Association has collected its news. It is plain that the result is that both associations cover the same territory.

I also think it plain that the United Press Association is organized for a like purpose with the defendant corporation. The plaintiffs controvert this view on the ground, as they allege, that the United Press is organized for a more extended purpose, and this alleged fact is based upon the further allegation that the United Press has agencies for the direct collection of news for it from various parts of the world outside as well as inside the state of New York, while the defendant coiporation only has agents for the collection of its news within the state of New York, and all its other news comes to it through contracts with news or press associations or other agencies, and is thus delivered to the defendant corporation. In this view of the two associations I see no difference of purpose. Both are securing news from all parts of the world and such is the object of both. One secures its object by directly appointing or employing so-called agents, while the other secures its object by direct agencies in some cases of limited territorial area and in other cases by contracts with other press or news agencies covering a large territory. The purpose of each is the same and the result in each case is the same. Each supplies the news to its members and each has obtained it from a territory bounded only by civilization itself.

The fact that plaintiffs, by using the United Press Association, are thereby enabled to publish different and more full and complete telegraphic news does not alter the other fact that the two associations are organized as stated for the same purpose and that they cover the same territory.

(2.) As to the second question: I think the by-law is valid andenforcible.

The plaintiffs allege that it is beyond the power of the association to enact; that it is unreasonable and oppressive; that it tends, and was expressly intended to restrain trade and competition, and to create a monopoly; that it is an unlawful interference with vested property rights, and impairs a member’s right to contract; that it creates a restriction upon the liberty of the press. None of these objections strike us as having force. The first ground taken, that it is beyond the power of the company to pass such a by-law, depends for its correctness upon the conclusions arrived at respecting the validity of the other grounds. If the by-law be unreasonable or oppressive, or If it tend improperly to restrain trade, and. thereby to create a monopoly, or if it be an unlawful interference with a member’s right to contract, or if it restrict the liberty of the press, in all, or any of these cases, the by-law would be beyond the power of the company to adopt or pass, and it would be illegal. The assertion in the moving papers, that the by-law tends, and was intended to restrain trade, does not in any way affect the question. The court must itself construe the bylaw, and must decide as to its tendency, while the intention with which it was passed by those voting for it is entirely immaterial upon this aspect of the case.

We do not think the by-law improperly tends to restrain trade, assuming that the business of collecting and distributing news would come within the definition of a trade. The latest decisions of courts in this country, and in England, show a strong tendency to very greatly circumscribe and narrow the doctrine of avoiding contracts in restraint of trade. The courts do not go to the length of saying that contracts which they now would say are in restraint of trade are, nevertheless, valid contracts, and to be enforced; they do, however, now hold many contracts not open to the objection that they are in restraint of trade, which a few years back would have been avoided on that sole ground, both here and in England. The cases in this court which are the latest manifestations of the turn in the tide are cited in the opinion in this case at general term, and are Diamond Match Co. v. Roeber, 106 N. Y., 473; 11 St. Rep., 47; Hodge v. Sloan, 107 N. Y., 244; 11 St. Rep., 770; Leslie v. Lorillard, 110 N. Y., 519; 18 St. Rep., 520.

So that when we agree that a by-law which is in restraint of trade is void, we are still brought back to the question, what is a restraint of trade in the modern definition of that term? The authority to make by-laws must also be limited by the scope and purpose of the association. I think this by-law is thus limited, and that it is not in restraint of trade as the courts now interpret that phrase. Some of the grounds showing the reasonableness of the by-law are well and clearly set forth in the opinion delivered by the learned judge at the general term. Here are a number of persons who are owners of or interested in various newspapers in the state outside of the city of Hew York. They enter into business relations with each other, to a certain extent, through the form of an organization known as a corporation, and for the purpose, among others, of collecting and supplying themselves with telegraphic news. The greater the number belonging to the organization the larger will be its income and the greater amount it will be able to spend for making the collection of news and the more efficient and valuable such collection will be. To suppress competition in such chosen field among themselves and to thus •enhance the value of the property and the conveniences arising from the extended use of the means and opportunities of the association, it would seem most appropriate to provide that the members of such association should not take news from any other. The division of the business among two or more associations tends directly towards the making of the membership in each less valuable than it otherwise would be, and the membership being less valuable the association itself would tend to decrease in members and to grow less efficient in service and less capable of fulfilling promptly one of the great objects of its existence, the procuring and supplying of news to its members. Thus a by-law of the nature complained of would have a tendency to strengthen the association and to render it more capable of filling the duty it was incorporated to perform. A business partnej’ship could provide that none of its members should attend to any business other than that of the partnership, and that each partner who came in must agree not to do any other business, and must give up all such business as he had heretofore done. Such an agreement would not be in restraint of trade, although its direct effect might be to restrain, to some extent, the trade which had been done.

It seems to me this by-law is a natural and reasonable restraint, upon the members of the association, appropriately regulating their conduct as members thereof with respect to the business which the association was specially organized and incorporated to' transact. Its success must greatly depend upon the number of its members and that, in its turn, must depend upon the efficiency, reliability and promptness with which it collects and distributes its news.

This by-law, I think, plainly tends to aid the association in the accomplishment of this object.

As to the objection that the by-law restricts the liberty of the press, I think there is no force whatever to it. For the purpose of efficiently conducting the business of procuring and supplying the news to its members, the association provides that no one of its members shall take or publish news from any other association. In what way the liberty of the press is in the least degree restricted by such by-law, I am unable to see. The constitutional provision regarding the liberty of speech and of press has nothing whatever to do with such a provision, and no argument can make it plainer than does the reading of the constitutional provision itself.

The ground that the by-law interferes with a vested interest in property does not appear by these papers.

If the by-law were passed before any member of the association had becomp a member of the United Press Association, then clearly there would be no interference with vested rights of property in the latter association. The papers do show that the bylaw was not passed until subsequent to the time when the United Press Association came into existence, but they do not show that at the time of its passage either or any of the plaintiffs had become members of the United Press Association.

We do not, therefore, intend to decide in this case as it now stands that one who had already and legally become a member of the United Press Association before the passage of the by-law in question could thereby be unfavorably affected in the assertion of his right of membership in the United Press Association, or placed in the position of availing himself of its privileges at the risk of suspension or expulsion from the association adopting the by-law.

A by-law which disturbs a vested right may not be valid. Kent v. Quicksilver Mining Co., 78 N. Y., 159, 182, 183; 1 Morawetz on Corp., § 496. And although a corporation may. have the power to adopt by-laws, yet one of its members who acts upon a subject not touched by any by-law, might, perhaps, claim, that a subsequent by-law upon the subject, which if valid as to him,. would practically render valueless a portion of his property, should not, as to him, be so treated or regarded. See, also, Wynehamer v. People, 13 N. Y., 378. We do not decide this proposition for the reason that it is not before us.

The grounds in opposition to the by-law, which have been discussed, we think, are unavailing, and the orders of the general term reversing the orders refusing to dissolve the injunction should be affirmed, with costs.

All concur.


author: Earl, J.

text:
    William E. Coffin et al., Resp'ts, v. The President, etc., of the Grand Rapids Hydraulic Co., App'lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Bills and notes—Burden of proof.
    Where the answer admits the making of the note in suit, but alleges that it was made pursuant to certain agreements which were not set out in the complaint, the burden of proving such agreements is on the defendant.
    3. Same—Appeal.
    The point that the note contained the condition that bonds deposited as security should be returned before payment was due, cannot be raised for the first time on appeal to this court.
    3. Same—Agreement—Covenant as to unity of action.
    A covenant in a collateral agreement that in a certain event the members of a syndicate should act as a unit, is only made for the benefit of such syndicate, and cannot be taken advantage of by defendant, who is not a member.
    Appeal from judgment of the New York superior court, general term, affirming judgment entered on verdict directed by the court.

      Frederick B. Coudert, David Keane and F. T. Lovatt, for app’lt;

      Carlisle Norwood, for resp’ts.

       Affirming 46 St. Rep., 851.

   Earl, J.

This action was brought to recover upon three promissory notes, and the complaint contains a separate count for each note. One note was for $30,000, dated the 15th day of May, 1889, payable in one year with interest at six per cent per annum. The second was a similar note for $40,000, dated the '20th day of June, 1889; and the third note was similar for $2,000, dated the 16th day of April, 1890. The notes are not set out in the complaint, but in each count it is alleged that “ the defendant gave a certain promissory note in writing, whereby it promised one year after date to pay Coffin and Stanton, agents, etc., these plaintiffs, or order, the sum ” named, with interest, and delivered the note to the plaintiffs; that the note had not been paid, and the amount thereof remained wholly unpaid. The defendant, in its answer, admits the making of the notes described in the complaint, but alleges that they were made, executed and delivered under and pursuant to an agreement between the plaintiffs and the defendant, which is annexed to and made part of the answer. It denies that the notes had not been paid, but alleges, on the contrary, that they had been paid and satisfied. It also alleges the making of another agreement bearing date the 11th day of June, 1890, which is also annexed to the answer. The action was brought to trial at a circuit, and at the close of the evidence the court directed a verdict in favor of the plaintiffs. The defendant assails the judgment entered upon that verdict upon various grounds, which we will separately notice.

1. Upon the trial the counsel for the plaintiffs, claiming that the execution and delivery of the notes were admitted by the answer, proved the interest thereon and rested. The defendant’s counsel then moved to dismiss the complaint upon the ground that the notes were not proved, and the court denied the motion. In this there was no error. The complaint alleges the making and delivery of the notes to the plaintiffs and the answer admits those allegations, but alleges that they were made and delivered pursuant to an agreement which is annexed to the answer. That was affirmative matter to be proved by the defendant ; and, therefore, the court committed no error in the ruling complained of.

2. The defendant put the notes in evidence, and they were all similar except as to dates and amounts. The note set forth in the first count of the complaint is as follows :

“ Stock Note — Thos. G. Hall, Stationer & Printer, 65 Exchange Place, N. Y.

“$30,000.

New York, May 15, 1889.

“ One year from date, and upon return of security given, we promise to pay to Coffin & Stanton, Agts., etc., or order, thirty thousand dollars, for value received, with interest at six per cent per annum, having deposited with them as collateral security: 60,000 Grand Rapids Hydraulic Company Six Per Cent Bonds, with authority to sell the same, or other security subsequently substituted, at the board of brokers, or at public or private sale, at their option, on the nonperformance of this promise, and without further notice; applying the net proceeds to the payment of this note, including interest, and accounting to us for the surplus, if any. In case of deficiency, we promise to pay to said Coffin & Stanton, Agts., the amounts thereof forthwith after such sale, with legal interest.

“ President and Directors of ti-le Grand “ Rapids Hydraulic Company,

“ By M. R. Crow,

“ Presiderit.”

It is now claimed that the plaintiffs could not recover upon the notes without alleging and proving a return of the bonds delivered with them as collateral security for their payment. Assuming that the plaintiff ought to have returned the bonds or tendered them to the defendant before the commencement of the action, no' such defense is alleged in the answer, and no such defense was, in any way, insisted upon or alluded to upon the trial. Therefore, it is not available here. The notes were by their terms due and payable, and if the defendant intended to rely upon the defense that the bonds had not been returned before the commencement of the action, it should, by appropriate allegations in its answer, have given the plaintiffs notice of that defense.

3. The defendant claims that the notes and the syndicate agreement, “A,” under and pursuant to which they were given, should be construed together as part of the same instrument. We do not think this claim entirely well founded. The notes constitute separate, independent, entire and complete agreements. The syndicate agreement executed at or about the same time may, undoubtedly, be read for the purpose of qualifying the rights of the plaintiffs as holders of the note, and when we come to read that agreement we find nothing therein which qualifies their rights, except what has been called the “ unit clause,” and that is as follows: “ In the event of the nonpurchase of the water works system of the city of Grand Rapids, Mich., and nonpayment of the note by the Grand Rapids Hydraulic Company, or its assigns, then the syndicate shall act as a unit for their mutual interests.” There were four other parties to the syndicate agreement besides, the plaintiffs and the defendant; the water works system of the city of Grand Rapids had not been purchased, and the notes in suit had not been paid, and, therefore, it may well be claimed that this clause in the syndicate agreement came into operation. But it is difficult, if not impossible, to tell precisely what the par-; ties meant by it, and what scope in construing the whole agree-' ment it should receive. Does it mean that the parties must act as a unit in enforcing payment of these notes, so that if one of the parties dissented the obligation of the defendant to pay could not be enforced, and thus that four parties to the agreement should be placed at the absolute mercy of one party? We can scarcely believe that such was the intention of the parties in inserting that clause in the agreement, and it can have full force and effect without giving it such a meaning. But further, the agreement contained in the clause was not made with the defendant. It is an agreement between the members of the syndicate, and whatever its force may be it has operation between them only, and they only can insist upon its performance and enforce it. It is in no way an agreement with the defendant, or for its benefit. It is a stipulation which it can in no way insist upon or enforce. A still further answer to this claim is that no such defense is set up in the answer. There is no allegation there that this action was. commenced in violation of the unit clause.

The syndicate agreement contained another clause, as follows: “ Í3 oho agreed that such firm or individual signing this agreement shall take up, pay for and carry their or his proportionate amount of loan made to and bonds purchased of said The Grand Rapids Hydraulic Company, as stated herein.” There is no allegation in the answer that the plaintiffs or any party to the syndicate agreement violated that clause.

Hence we conclude that there is nothing in the agreement which furnishes a defense to this action, and that the trial judge did" not err, when the defendant offered to put it in evidence, in excluding it on the ground that it did not furnish a defense to the action.

4. Upon the trial, the defendant offered to put in evidence agreement “ B.” annexed to the answer, and it was excluded by the trial judge upon the ground that it did not furnish any defense to the action. That agreement was not signed by the defendant, and it was not a party thereto. It is a bondholders’ agreement and was made for their protection, and signed solely by them. It contains stipulations binding them as between each other, and it is not perceived how the defendant can enforce or avail itself of any stipulation contained therein. If the plaintiff violated any of the stipulations contained in that agreement, the other parties thereto might have some remedy against them, but the defendant could not have. It is provided, in that agreement, that it ‘‘shall not be binding until it is signed by all the holders of the bonds of the said Grand Eapids Hydraulic Company, and all the bonds and past-due coupons, to be delivered to the trustee, are deposited under this agreement.” There is no allegation in the answer that that agreement, by its terms, had ever become operative, or that all the bondholders had signed it, or that all the bonds and past-due coupons had been deposited under the agreement. But even if the agreement became operative, and the defendant could in any way be treated as a party thereto, the answer does not show a breach of the agreement on the part of the plaintiffs. The only stipulation in the agreement which is referred to in the answer as having been violated by the plaintiffs is the following:

“ It is further understood and agreed by the holders of the said bonds, respectively, that they shall surrender and cancel all the notes of the Grand Eapids Hydraulic Company, now held by them, including all notes indorsed by M. E. Crow, of New York, or signed or guaranteed by said M. E. Crow, that are connected with said Grand Eapids Hydraulic Company, and that the fifty per cent, par value of bonds retained by them, respectively, shall be received and accepted by them in full payment and satisfaction of all such claims, notes and demands.”

There is no allegation in the answer that the plaintiffs had ever been asked to surrender 'and cancel these notes, or that they had refused to retain, or been permitted to retain, the fifty per cent of the par value of the bonds mentioned. There is no allegation that the other bondholders who signed the agreement at the same time with the plaintiffs had ever surrendered fifty per cent of their bonds, as provided in the agreement, and, therefore, the answer does not show that the plaintiffs were in default. There is no reason to suppose from anything appearing in the answer that the bondholders’ agreement ever became operative, and there is no allegation in the answer that the defendant was a party thereto, or that it was made in any way for its benefit, or that it had any interest in the performance thereof. Therefore, the court did not err in holding that the answer showed no defense based upon that agreement

5. The trial court exercised its discretion in refusing to permit the defendant to amend its answer upon the trial, and it has been settled by repeated decisions of this court that we have no jurisdiction to review the exercise of that discretion.

6. These notes appear to have been given to the plaintiffs as agents, and they were, undoubtedly, given to them for money loaned to the defendant by them and the other members of the syndicate. They took and held the notés, not only for themselves, but as agents or trustees of the other members of the syndicate. Upon the trial the defendant offered to show that the plaintiffs were not the sole persons interested in these notes, and objected that they alone could not maintain this action. But no such defense is alleged in the answer. The notes were given to the plaintiffs describing them as “agents, etc.,” and there is no allegation of any kind in the answer that they were not the proper persons to receive and enforce payment of the notes. As it did not allege in its answer that the plaintiffs did not have legal capacity to sue upon the notes, it must be deemed to have waived that defense, even if it existed. Code Civ. Pro., §§ 488, 498, 499. The plaintiffs could, therefore, maintain this action as trustees of an express trust under § 449 of the Code.

In the disposition of the objections which we have thus noticed, we think we have covered all the material objections taken by the defendant upon the trial, and we find no reason to disturb the judgment.

The judgment- should be affirmed, with costs.

All concur.


text:
    Lewis H. Baumgartel, Resp't, v. The Providence Washington Ins. Co. of Providence, R. I., App'lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    Insurance (Fire)—Other insurance—Waiver of terms by agent.
    Defendant’s policy prohibited other insurance under penalty of forfeiture, unless by consent indorsed thereon, and also provided that no officer of the company cou d waive any conditions of the policy, unless by indorsement of such waiver.. Plaintiff met the agent in the street and informed him that he had $1,000 additional insurance, and the agent replied “ All right: I will attend to it,” but failed to do so before the fire occurred. Held, that even if this did amount to a promise by the agent to make the indorsement on the policy, still, as the plaintiff never presented the policy or asked him to make it, he could not recover.
    Appeal from judgment of the supreme court, general term, third department, reversing judgment for plaintiff entered upon the verdict of a jury.

      I. N. Ames, for app’lt;

      Harwood Dudley, for resp’t.

       Reversing 89 St. Rep., 627.

   O’Brien, J.

The policy of insurance upon which the plaintiff recovered contained the following stipulations and conditions, which form a part of the contract between the parties:

“ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.”

With reference to this and the other conditions specified, the following provision is inserted at the end of the instrument:

“This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon, or added hereto, and no officer, agent, or other representative of this company, shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indoi’sed hereon, or added hereto, and as to such provisions „ and conditions no officer, agent, or representative, shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon, or attached hereto, nor shall any privilege or permission .affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

The contract indemnified the plaintiff against loss or damage by fire to the extent of $1,000 for one year from September 26, 1887, upon a stock of goods in a tailoring establishment, which was destroyed by fire August 15, 1888. On the 12th of April, 1888, the plaintiff, without notice to the defendant, and without its knowledge or consent, applied for and obtained other insurance ■upon the same property in another company. On the trial, the plaintiff testified that about a week after he had procured the last policy, while on his way to the post-office, he saw the defendant’s local agent, who had issued and delivered to him the policy in ■suit, in the street talking with another man; that he, the plaintiff, walked up to him and said: “1 have another insurance out for .$1,000.” When the plaintiff said that, the agent turned to Mm and said: “All right, I will attend to it.” That is all that was said, and the plaintiff proceeded, as he says, about his business. It does not appear that the plaintiff had, at the time, the policy with him, or that he ever afterwards applied to the agent to give the written consent to the subsequent insurance which is required by the conditions of the policy. The stipulation with respect to further insurance is one of the conditions upon which, by the agreement of the parties, the liability of the defendant depended in case of a loss during the term of the insurance. The parties have also agreed upon the mode in which the condition could be complied with or waived, namely, by writing indorsed upon the policy in the form of a consent to the other insurance. The agent had power to give this consent only in the manner prescribed by the contract. But there is not in the case any proof even of verbal consent by the agent that the plaintiff might procure further ■and additional insurance. Such insurance was procured without ■any consent whatever, and it was not till a week after that the agent had any knowledge on the subject. The knowledge of the agent that the subsequent insurance had been obtained did not satisfy the conditions of the contract.

In order to continue the policy, after the new insurance, the consent of the defendant was essential, and the agent could not give such consent, so as to bind the company, except in writing, indorsed upon the policy, or attached thereto, and unless this permission is so written or attached, the contract provides that the plaintiff would not claim any right or immunity on account of it. The effect of such stipulations in a contract of insurance as well as the manner in which they may be modified or waived by agents of the company has been so thoroughly discussed, and so clearly pointed out, that a reference to some of the more recent cases on the subject is all that is needful here. Allen v. German Am. Ins. Co., 123 N. Y., 6; 33 St. Rep., 216 ; Quinlan v. Providence W. Ins. Co., 133 N. Y., 356; 45 St. Rep., 200; Messelback v. Sun Fire Office, 122 N. Y., 583; 34 St. Rep., 549; Walsh v. Hartford Ins. Co., 73 N. Y., 5.

Under the doctrine of these cases we see no escape from the result which the parties to the contract stipulated should follow the breach of the condition with respect to subsequent insurance, unless consent was given in the manner provided. The fact, so well known, that in many cases parties procuring policies of insurance never read them, or inform themselves in regard to their terms and conditions, does hot justify courts in absolving them from the clearly expressed obligations of the contracts into which they have freely entered. In this respect contracts of insurance stand upon the same footing as other contracts. The judgment was sustained at the general term, not upon the ground that the condition had been performed or that there was a waiver of the condition, but by an application of the doctrine of estoppel. It was held that what the agent said was equivalent to a promise on his part to make the necessary indorsement on the policy and that the company could be required to specifically perform this promise, but since no such circuity was necessary, the law would regard as done what ought to have been done, and thus declare the rights of the plaintiff by holding that the condition had been complied with, or, at least, that the defendant was in no condition to insist upon a forfeiture; at most, the language of the agent amounted to nothing more than his personal promise to do something in the future and neither he nor the company could be held to be in default, with respect to such promise, until the plaintiff had presented the policy to him and requested him to make the indorsement. In case of a refusal to do what he had promised to do, it may be that the plaintiff’s reliance upon the promise and any changed condition of the parties with respect to the new insurance, in consequence, would be sufficient to induce a court of equity to compel performance. But as the case stands upon the record it is difficult to apply the doctrine of estoppel. There was no statement of an existing fact upon which the plaintiff relied to his prejudice, and which it would be inequitable to permit the other party to deny. Grant that there was a promise by the agent to make the indorsement on the policy, still the plaintiff never presented the policy to him or asked him to make it Until then it could not be said that the agent refused to carry out the promise. It is not denied, on the part of the defendant, that the agent had power to indorse the consent on the policy, and his promise to do it was within the fair scope of his powers. But the act which was necessary to continue the policy in force was never performed, and the conversation between the plaintiff and the agent imputed nothing more than an understanding that at some future time the plaintiff would produce the policy and the agent would make the necessary indorsement. If the plaintiff understood by what was said that the agent would at some time seek him out and give the written consent in the manner required, the company would not be responsible for the neglect of the agent in that respect. It is seldom that any difficulty would arise with respect to such conditions in a policy of insurance if the policy holder would exercise that reasonable vigilance and intelligence which the law exacts of all parties in the performance of contracts.

For these reasons the judgment of the general and special terms should be reversed and a new trial granted, costs to abide the event.

All concur.


author: Per Curiam.

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

      (Court of Appeals,

      Filed January 17, 1893.)

    Homicide—Circumstantial evidence—Alibi.
    Defendant’s wife was found dead near the railroad station on May 2d, her throat cut from ear to ear. Near her was found a razor, a cuff button and a broken cane, all proven to be the property of defendant. Then-married life had been an unhappy one. There was proof of defendant's having been on the train with deceased, though in a different car; that they had disembarked at W. at 8.20 p. m. on May 1st. That defendant was absent from his boarding place in W. up to 9.50 p. m. Defendant asserted an alibi that he was in F., six miles distant, for two hours, on the public streets, though only one witness saw him; that he called upon a friend, and went into a church; but no one saw him. - Held, that the verdict of guilty was-not against the weight of evidence.
    Appeal from judgment of the Queens county oyer and terminer, convicting defendant of the crime of murder in the first degree. <

      John J. Trapp, for app’lt;

      John Fleming, district attorney, for resp’ts.
   Per Curiam.

We fail to discover in this record any sufficient grounds for a reversal of the conviction. The verdict, in our judgment, was not against the weight of evidence, or against law, nor does justice require that a new trial shall be had. § 528, Crim. Code. The minutes are exceptionally free from errors. The defendant was accorded every right and privilege to which an accused person is entitled under the law, and the only point relied upon by the learned counsel for the defendant at the argument was the inadequacy of the proofs to support a judgment where the forfeiture of a human life must be the penalty of its enforcement.

We have given the testimony a careful perusal, and are unable to perceive any inherent or fatal weakness in it. Although circumstantial, it is of the most satisfactory and conclusive character, and demonstrates, we think, to a moral certainty, that the crime charged in the indictment was committed, and that the defendant was the author of it.

The murdered woman was the defendant’s wife, and was found upon the morning of May 2, 1892, in the edge of a small pond about six hundred feet from the station on the Long Island Railroad at Winfield. The body was rigid, and had been dead several hours, unquestionably since the previous evening. The throat was cut from ear to ear. Both carotid arteries, both jugular veins, both pneumo-gastric nerves and all the tissues from the anterior artery to the vertebral column, including the larynx, had been completely severed, so that the head was attached to the body only by means of the vertebrae of the spine. There were plain indications that the weapon had been twice applied. The deceased was a woman of slight physique, weighing not more than one hundred pounds, and was then in an advanced stage of pregnancy. The nature of the wound was such that it might be regarded as incredible that it could have been self-inflicted. It was plain that a homicide had been committed, and there were two concurring but independent lines of proof, either of which, if believed by the jury, was sufficient to charge the defendant with responsibility for its commission. Both he and his wife had been living at "Flushing, six miles distant from Winfield. He was in the employ of the railroad company as a gateman, and was boarding at a private house in the village, while she was a servant in another family. When last seen, according to the proof, she was leaving the station at Win-field in company with a man whose description was that of the defendant at about 8.20 in the evening of May 1st and shortly after the arrival of a train which passed Flushing a few minutes after eight. Defendant was absent from his boarding place from about seven fifty to nine fifty that evening, and if during this time he went down to Winfield and was the person who started from the station there with his wife towards the place where her body was found, it must be conceded that there can be no doubt of his guilt. Aside from the evidence of two women who saw the deceased go from the station in the company of a man they did not know, but who had the appearance of the defendant, it was shown by the testimony of a police officer of Flushing that the defendant went towards the depot with his wife about the time the eight o’clock train left; by the conductor that he was on that train and had a ticket for Winfield ; and by the bralteman that he was on the train and got off at Winfield, and by the doorman at Winfield that the wife was also on the train and stopped there. These witnesses all appear, from their examination, to be intelligent men; their testimony is given in a clear, direct and positive manner ; it is not shaken upon cross-examinatian; and they seem to be devoid of all feeling or prejudice against the defendant. Each saw him from a different point of observation; was personally well acquainted with him; he was dressed in a manner to attract some attention, and it is, at least, highly improbable that all three were mistaken. Opposed to this array of proof the defendant asserts an alibi, and insists that during the two hours in question he remained in Flushing, mainly upon the public streets, and, with a single exception, no man is produced who saw him during that time. He says that he went into the house of a friend and called to the family who were upstairs, but no one heard him ; that he went into a church where services were being held and remained some time, but no one saw him to identify him, although there were several persons in the church who knew him. But one witness claims to have seen him during this time, about half past eight o’clock, but his evidence is not clear, and he may have been mistaken as to the exact time. In its entirety, the proof of the alleged alibi was weak, incongruous and improbable, and entirely insufficient to impair the force of the direct and positive testimony of the five witnesses who saw him on his way to Winfield and while there.

There was another species of evidence- which may properly have had equal weight in establishing the defendant’s guilt.

There was found near the body of the murdered woman a razor, a cuff button and a broken cane. If these articles were the property of the defendant, .they furnished very strong evidence that he was present at the time of the murder and participated in it. It is very clear from the testimony that they all belonged to him, or were in his possession just before the homicide occurred. The button matched an odd one found in his room; all his shaving utensils were at his boarding house, except the razor, which, he claimed, was at the place where he worked, on the railroad, only a few miles away, but which he did not produce, and apparently made no effort to produce it. He admitted he had the cane, or one just like it, on the evening of the murder, but claimed that it was mysteriously taken from his hand while standing on the sidewalk at Flushing, by some one hurriedly passing by, who immediately disappeared, and was not seen or heard of afterwards; but to a witness for the People he stated that he loaned the cane to his wife to walk with, because she was lame from rheumatism. The defendant evidently appreciated the force of these damaging facts, but his explanation of them was so unreasonable and improbable that it may have discredited his entire defense in the minds of the jury.

The People’s case was fortified by very convincing proof of a strong motive. Defendant’s marriage had proved uncongenial and irksome. He had no affection for his wife; was not desirous of her companionship; treated her with contempt; did not live in the same household with her ; was constantly upbraiding her, and accused her of infidelity, which he alleged as a reason for seeking a divorce, which was not obtained. From some passages in his correspondence it is probable that the real grounds of his dislike for her had reference more to the gratification of his passions than to any want of virtue in her. She had three times procured his arrest on the charge of abandonment; and it is evident that he had become possessed of an absorbing desire to be free from her, and no way seemed to be open, except by means of her death.

Deliberation and premeditation were also proven. It may fairly be inferred that the wife was induced to go to Winñeld upon the pretext that he intended to go to housekeeping with her there and for the purpose of looking at the house which he proposed to rent; they occupied separate coaches upon the train so that he might not be seen in her company; he did not go into the station with her, but waited outside until she joined him, which all indicated that he had some secret purpose for avoiding observation; and he took with him the razor with which the fatal wound was inflicted. He also produced a letter which he claimed his wife had left under his pillow with a bottle of poison, when they stopped over night in Hew York on one occasion, which purported to contain a confession of infidelity on her part, and indicated a frame of mind which contemplated self-destruction. It was shown that the letter was not in her handwriting, and it might properly be argued that it was fabricated by the defendant and was intended to support the theory of suicide in case of her death by violence, and that the razor was left near the body for the purpose of sustaining a claim of this kind.

We have thus recounted the principal facts proven in this case. There were many other circumstances pointing in the same direction, all of which are in our judgment inconsistent with any other hypothesis than that of the guilt of the defendant; and in discharging the duty imposed upon us by the legislature, which requires a review of the facts by this court as well as the law in capital cases, we are constrained to concur in the statement of the learned trial judge, when passing sentence, that on the evidence adduced in this case it was impossible for any mind with any degree of intelligence to doubt as to the defendant’s guilt

The judgment of conviction must be affirmed.

All concur.


author: Andrews, Ch. J.

text:
    Jeremiah Hailey, Resp’t, v. Sophia Ano, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Former adjudication—Trespass.
    The pendency of a trespass suit does not prevent a purchase of the land upon which the tiespass was committed pQ7id6ut& lite, or give to a judgment for damages subsequently recovered thereon the effect of an adjudication binding tile title of such intermediate purchaser.
    2. Same.
    Where there is nothing in the pleadings to put a party on inquiry, the doctrine of lis pendens is not applicable.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment entered upon a verdict of the jury directed by the court for the plaintiff.

      J. P. Kellas, for app’lt;

      S. L. Wheeler, for resp’t.

       Reversing 42 St. Rep., 49.

   Andrews, Ch. J.

This is an action of trespass. The complaint alleged an unlawful entry, by the defendant, upon lands of the plaintiff, on lot twenty, Franklin county, in 1889, and the cutting and carrying away hay therefrom, and demanded damages in the sum of $200.

The answer contained a general denial of the complaint, and alleged that the defendant was the owner of the land upon which the alleged trespass was committed, and had a right to cut and carry away the grass. The action was originally commenced in justice’s court, and on plea of title being interposed, the action there was discontinued, and a new action for the same cause was brought in the supreme court

The contest on the trial turned on the true location of the line between lots nineteen and twenty. It appeared that plaintiff had been in possesion of lot twenty for more than twenty years, and that in 1882 he took a contract of purchase from the owner,'under which he held possession at the time of the alleged trespass. The defendant is the wife of Francis Ano, who, in 1880, went into possession of eighty acres, or lot nineteen, adjoining lot twenty, under, as may be inferred, a contract of purchase from one John Rowley, the owner, who- on the 10th day of June, 1885, conveyed the eighty acres to Francis. On the 20th of July, 1885, Francis Ano and his wife conveyed forty acres of the land to their daughter Lena, and forty acres to their son Joseph, but upon what consideration the record is silent. In 1889, Lena and Joseph conveyed the land to their mother Sophia Ano, the defendant.

The hay cut by the defendant in 1889 was cut from about six acres of land, either on lot twenty or on lot nineteen, the question from which lot it was taken depending upon the true location of the line between the respective lots. Evidence was given in support of the claim of each party as to the true location of the line.

The question on this appeal relates to the correctness of the ruling of the trial judge, that a certain judgment rendered in a former action brought by the present plaintiff, against Francis Ano, concluded the question of' title to the six acres in the present action. The trial judge directed a verdict for the plaintiff in this action, on the question of title, on the ground that the judgment in the former action was a conclusive adjudication as against the present defendant, Sophia Ano, upon the question of title.

For a proper understanding of the question presented some facts need to be stated. The former action was brought in the supreme court in 1884. The plaintiff, in his complaint, alleged that the defendant (Francis Ano) in July and August of that year wrongfully entered upon premises owned and occupied by the plaintiff on Lot 20,” county of Franklin, and took therefrom a quantity of hay, the property of the plaintiff, of the value of $200, and converted it to his own use, wherefore the plaintiff demands judgment for that sum, etc. The defendant (Francis Ano)_ answered by a general denial and set up that at the time complained of he was the owner and in possession of the lands from which the hay was taken, and was the owner of the hay. The answer is under date of October 10, 1884. No judgment was entered until November, 1888. It appears from the recitals in the judgment that at the November term of the court in that year, the cause being-on the calendar was moved for trial by the plaintiff, and that the attorneys for the parties thereupon agreed in open court that the plaintiff have judgment on the merits for,forty dollars damages and costs, and it was so 'adjudged. It will be observed that when the former action was commenced neither party thereto had the legal title to any land on lots 19 and 20. Both were in possession of the land occupied by them under contracts with the respective owners. After the commencement of the former action, Francis Ano, the defendant, obtained a deed of the 80 acres on lot 19, his deed being dated June 10, 1885. The plaintiff, so far as appears, has never obtained a deed of lot 20. It is also important to notice that the judgment in the former action was rendered three years after Francis Ano had conveyed the 80 acres to his children. It does not appear that when they took their deeds they had any knowledge of the pendency of the suit against Francis Ano. The deed to the present defendant was given after the rendition of the judgment.

We shall assume, in determining the question now presented, that the controversy in the former suit related to the same identical premises which are involved in the present controversy. It is settled in this state that under an issue of soil and freehold, in an action of trespass quare clausum fregit, the verdict and judgment on that issue determines the title as between the parties at the time of the alleged trespass, and that in a subsequent action of trespass between the same parties, where the same title is put in issue, the former judgment is conclusive. Burt v. Sternburgh, 4 Cow., 559. The same rule obtains when the second action is ejectment. Dunckle v. Wiles, 5 Den., 296. If the title existing in either party, when the former judgment was obtained, was determined before the second action, or a new title had been acquired by the party against whom the judgment was rendered, this may be shown in avoidance of the estoppel of the former judgment. Dawley v. Brown, 79 N. Y., 390. The rule that estoppels barred parties and privies would, we suppose, affect a grantee of a party to the judgment in the trespass suit, who acquired title from such party after the judgment.

In Dunckle v. Wiles, which was ejectment, and where the defendant relied upon a judgment in a former action of trespass between his grantor and the plaintiff as an adjudication upon the title, it was held that the defendant was entitled to the same benefit from the former judgment as his grantor would have been if he had been the defendant. If this was a correct principle, it would seem that the converse of the proposition is also true, viz., that a subsequent grantee would be bound by a former judgment in trespass on the question of title against his grantor.

But the circumstances of the present case present a very different question.

When Francis Ano conveyed the eighty acres to his children, the first action was pending, but there was no judgment, and consequently at that time no estoppel, since obviously the estoppel by verdict and judgment can only arise when these events have transpired. The point to be determined is whether, having purchased pendente lite, they were bound by the judgment subsequently rendered. We have been unable to find any authority in support of the proposition that the purchaser of land pending a suit in trespass between the grantor and another, in which the issue of title has been made, takes subject to the judgment which may be subsequently rendered in that action, or that he will be concluded thereby. The doctrine of the common law that in case of an alienation pending a real action the alienee takes subject to the judgment which may be rendered therein, which doctrine was adopted by courts of equity in analogous cases, though it often operated with great hardship, was founded upon a definite policy. It is clearly set forth in Gaskell v. Durdin, 2 Ball & Beatty, 167 : “ The rule of the court undoubtedly is that any interest acquired in the subject matter of a suit pending the suit, is so far considered a nullity that it cannot avail against the plaintiff’s title; and if this rule were not attended to, there would be no end of any suit; the justice of the court would be evaded and great hardship and inconvenience to the suitor necessarily intervene.” And in Hopkins v. McLaren, 4 Cow., 678, Senator Colden stated the reason of the rule to be that “ if a transfer of interest pending a suit were to be allowed to affect the proceedings, there would be no end of litigation ; for as soon as a new party was brought in, he might transfer to another and render it necessary to bring that other before the court, so that a suit might be interminable.” See, also, Murray v. Lylbur, 2 Johns. Ch., 444; Parks v. Jackson, 11 Wend., 444. The frequent hardship resulting from the rule of lis pendens, without any provision requiring notice to be filed, led to statutory enactments on the subject, requiring notice of Us pendens to be filed in certain actions and making the commencement of an action constructive notice only from the time of such filing. Sheridan v. Andrews, 49 N. Y., 478, and statutes cited.

Section 1670 of the Code of Civil Procedure, which is in substance a re-enactment of former statutes, authorizes a notice of lis pendens to be filed in an action “ brought to recover a judgment affecting the title to or the possession, use or enjoyment of real property. ” An action for damages for trespass on real property is no.t within this section. The object of the action is the recovery of damages, and the title of the premises upon which the trespass was committed may or may not be affected or involved in the litigation. The action is not brought to procure a judgment affecting the title or possession of the land, although the judgment may, in certain cases, be evidence of title.

The contention is that, notwithstanding the action of trespass is not one wherein notice of lis pendens can be filed, yet a purchaser pendente lite must take notice at his peril of a pending action of trespass to which his grantor is a party, and that the doctrine of lis pendens, as formerly understood before there was any statutory regulation, applies. But the case is not within the principle upon which that doctrine was based. The purchase of the land from a defendant against whom an action for trespass is pending does not affect the plaintiff's claim or right of action. He can recover his damages as if no sale of the land had been made, and his remedy can be pursued unimpaired by the transfer of the land. The transfer is productive of none of the consequences which the doctrine of lis pendens was intended to prevent. That doctrine prevented the acquisition pendente lite of an interest in the “ subject-matter ” of the suit to the prejudice of the plaintiff, because otherwise (in words already quoted), “ there would be no end of any suit; the justice of the court would be evaded and great hardship and inconvenience to the suitor would be necessarily introduced.”

The grantees of Francis Ano acquired by the deed no interest in the “ subject matter ” of the pending litigation. The interest which the plaintiff can claim is that by the transfer of the land pendente lite the question of title may be open to contestation unless the doctrine of lis pendens applies. We are not bound to any authority on the question now considered, and we think it would be unwise to apply the doctrine of Us pendens in such a case as this. It would embarrass the transfer and alienation of land, without any compensating benefit, putting upon a purchaser the risk of ascertaining that no suit was pending for trespass upon lands-purchased.

An inspection of the pleadings in the former action, which resulted in favor of the plaintiff against Francis Ano, would have given the purchasers of lot 19 no notice that the controversy related to the line between lots 19 and 20. The complaint describes the entry as upon lot 20. The purchase was of eighty acres of lot 19, and the pleadings did not disclose that the controversy concerned any boundary between the lots. It was said in Lewis v. Mew, 1 Strobh. Eq. (So. Car.), 180, that for a Us pendens to affect a purchaser, there must be something in the pleadings at the date of the purchase to point his attention to the property purchased as the identical property or parcel of the identical property in litigation.

See, also, Herman on Estoppel, § 189.

It is certainly reasonable in a case like this that where there is nothing in the pleadings to put a party on inquiry, the doctrine of lis pendens should not be applicable. The theory that parties are presumed to be cognizant of what is passing in the sovereign courts of justice, assumes that by consulting the records of the courts the fact may be ascertained. But we think the pendency of a trespass suit does not prevent a purchase of the land upon which the trespass was committed pendente lite., or give to a judgment for damages subsequently recovered thereon the effect of an adjudication binding the title of such intermediate purchaser..

This leads to a reversal of the judgment and a new trial.

Judgment reversed and new trial granted, costs to abide event,

All concur.