text:
    Christian T. Christensen, Resp’t, v. Amos F. Eno, impleaded with the Illinois and St. Louis Bridge Co., App’lt.

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Corporations—Liability op shareholder to whom stock is issued as a gratuity.
    The liability of a shareholder to pay for stock does not arise out of his relation, but depends upon his contract, express or implied, or upon some statute; and, in the absence of either of these grounds of liability, a person to whom shares have been issued as a gratuity has by accepting them committed no wrong upon creditors, nor does he make himself liable to pay the nominal face of the shares as upon a subscription or contract.
    2. Same.
    The courts of Missouri, under a statute authorizing a creditor of a corporation, who shall have had an execution against it returned unsatisfied, to issue an execution against any stockholder to the amount of his stock, “ together with any amount unpaid thereon,” granted such an application against a director and stockholder who had received, bonus stocks and bonds, holding that the amount of 40 per cent credited on the stock could be regarded as the amount paid under the statute. This statutory remedy, of course, is not available in this state.
    Appeal from a judgment of the supreme court, general term, first department, affirming judgment of special term in favor of plaintiff, who was a judgment creditor of the Illinois and St. Louis Bridge Co., a corporation organized under the laws of Missouri and of the United States statutes. It had a capital of four million dollars, divided into 40,000 shares. An arrangement was made with brokers to sell the bonds to the amount of capital, allowing a bonus for selling the whole or a part. Two million and a half were sold by them, and one and a half by the company. The amount unsold, viz: $300,000, was distributed by the company among its stockholders, under the following resolution: “ Resolved, That certificates be issued to the stockholders for the twenty per cent stock bonus to which they are entitled as purchasers of the one and a half millions of bonds, and that no deduction be made on account of the two and one-half per cent commission paid for the sale of these bonds.” Defendant Eno received at that time as stockholder twenty-five shares of stock, by the certificate of which it was stated that it was paid up to the extent of $40 per share, while in fact he had not paid anything.
    Afterwards the bridge company made another series of bonds to the amount of two million dollars secured by mortgage, and divided one million among its stockholders to replace money paid in on their stock. The company called in the remaining $60 per share on the twenty-five shares issued to Eno, but he never paid it. He received $6,875 of the bonds above referred to, for which he paid nothing. Judgment was given that plaintiff, a judgment creditor against Eno for $1,000, which was the amount of his unpaid subscription with interest, and $5,332.18, the value of the second mortgage bonds with interest. This was affirmed on appeal to general term, and defendant appealed to this court.

      William Mann, for app’lts; C. E. Tracy, for resp’t.

       Reversing 35 Hun, 669 mem.

   Andrews, J.

The judgment below proceeds on the ground that the forty per cent credited as paid on the •twenty-five shares of stock of the Illinois and St. Louis Bridge Company, issued to the defendant Eno in 1871, but which was not in fact paid, and also the sum of $5,332.18, realized by him on the sale of second mortgage bonds of "the company, received as his share on the distribution of the same among .stockholders, pursuant to the resolution of the company of December 20, 1871, were equitable assets in the hands of the defendant Eno, applicable to the payment of the debts of the corporation, and which the plaintiff, as a judgment and execution creditor, may reach in this action, and have applied to the satisfaction of his judgment. It is very plain, upon the facts, that the plaintiff, in asserting this claim cannot stand upon any right existing in the-corporation itself to proceed against the defendant Eno. The transactions by which he acquired the shares as paid-up shares to the extent of forty per cent of their nominal amount, and received the bonds, created no obligation as between him, and the company to pay the amount unpaid on the stock, or to account to the company for the bonds or their proceeds. As between Eno and the company it was not intended that the former should be accountable to the company for the amount unpaid on the stock or for the bonds. Viewing the transactions in the light most favorable to the plaintiff, the credit on the stock, and the transfer of the bonds were intended as a gratuity to the stockholders who had been called upon to pay calls on their original subscriptions in excess of what was expected, and of what was represented would be necessary at the commencement of the enterprise. There can be no doubt that, as between the corporation and its stockholders, these transactions were binding according to the actual intention. The corporation itself would have no standing to demand that the defendant Eno should pay the forty per cent on the stock which it acknowledged had been paid, or that he should account for the proceeds of the bonds. The claim of the plaintiff, therefore, must be maintained, if at all, not in the right of the corporation, or by way of equitable subrogation to any right of the corporation against Eno, but in hostility to the arrangement between them under which he received the stock and bonds. The plaintiff, to entitle himself to the relief demanded, is compelled to maintain that, as a creditor of the corporation, he has rights superior to those of the corporation itself, and may hold the defendant to account for the unpaid forty per cent on the stock as though he had been a subscriber therefor, and for the proceeds of the bonds as though he had purchased them of the corporation, or had sold them on its account.

So far as respects the claim to recover the forty per cent, unpaid on the twenty-five shares of stock, we understand it is placed by the learned counsel for the plaintiff mainly on the proposition that the ‘ capital stock of a corporation is a. trust fund for the security of creditors, which cannot be given away or distributed among stockholders so long as debts of the corporation remain unpaid, and that the transaction in question was a violation of this principle. The general principle asserted is doubtless well founded; but, if it had an appropriate application in the" present case, the plaintiff would encounter some difficulty, under the authorities in this state, in maintaining a separate action, as an individual creditor of the corporation, to reach assets which constitute a trust fund, not for the protection of one creditor only, but equally for all the creditors of the corporation. Griffith v. Mangam, 73 N. Y., 611, and cases cited.

But, passing this, we are of opinion that the forty per cent, credited on the twenty-five shares of stock issued to the defendant Eno cannot be considered as, and does not constitute, a trust fund applicable to the payment of creditors. The capital of a corporation consists of its funds, securities, credits, and property, of whatever kind, which it possesses. The word “ capital,” applied to corporations, is often used interchangeably with the words “capital stock,” and both are frequently used to express the same thing—the property and assets of the corporation. Strictly, the capital stock of a corporation is the money contributed by the corporators to the capital, and is usually represented by shares issued to subscribers to the stock on the initiation of the corporate enterprise. See Burrall v. Bushwick R. Co., 75 N. Y., 212, and cases cited. It may be admitted that the liability of subscribers on unpaid stock subscriptions constitutes an asset of the corporation which cannot be surrendered or given up by the corporation without consideration, to the prejudice of creditors. 'It is not claimed that there is any express prohibition in the charter of the bridge company against issuing shares purporting to be fully paid, without actual payment. The charter authorizes books of subscription to the stock to be opened. The most that could be claimed from this provision is that by implication it prohibits'the issue of stock except to actual subscribers who should undertake to pay the nominal amount of the shares when required. There is no pretense that the defendant Eno ever subscribed for the twenty-five shares of bonus stock, so called, or entered into any engagement to pay the forty per cent, credited thereon. This was distinctly contrary to the intention of all parties. The plaintiff seeks to charge him as though he had subscribed for the stock, and entered into a contract obligation with the company to pay the forty per cent. We can see no ground upon which he can be made to respond to the creditors of the company as upon an unpaid subscription.

Assuming that the transaction as to the company was ultra vires, or that it could not give away its shares, the transaction in that view was simply a nullity, and Eno got nothing as against anyone entitled to question the transaction. But it did not convert him into a debtor of the company for the forty per cent. He entered-into no contract to Eay it. He has received nothing on account of the twentyve shares, and it is not claimed that the charter in terms imposes the liability claimed. The unissued shares of a corporation are not assets. When issued, they represent a proportionate interest in the shareholder in the corporate property—an interest, however, subordinate to the claims of creditors. There are unquestioned public evils growing out of the creation and multiplication of shares of stock in corporations not based upon corporate property. The remedy is with the legislature. But the liability of a shareholder to pay for stock does not arise out of Ms relation, but depends upon Ms contract, express or implied, or upon some statute: and, in the absence of either of these grounds of liability,, we do not perceive how a person to whom shares have been issued as a gratuity has, by accepting them, committed any' wrong upon creditors, or made himself liable to pay the nominal face of the shares as upon a subscription or contract. Seymour v. Sturgess, 26 N. Y., 134; In re Western of Canada Oil Co., 1 Ch. Div., 115; Waterhouse v. Jamieson, L. R., 2Sc. & Div., 29.

The question as to the right of the plaintiff to compel the defendant to account for the sum realized by him on the sale of the bonds is affected by the fatal difficulty that the defendant has received nothing from the corporation except its promise to pay, which has never been performed. The plaintiff has withdrawn nothing from the funds of the company on account of the bonds (unless it may be a sum represented by a single interest coupon), and creditors have not been prejudiced by the transaction. It is alleged, and it was offered to be proved, that the property of the company had been sold on the foreclosure of the first mortgage.

It is unnecessary to consider what the right or liabilities of the defendant would be, in respect to the bonds, as between himself and other creditors of the corporation on a distribution of assets, or if it had appeared that the corporation had paid the bonds issued to the defendant. The situation, in either of these aspects, is not presented. This is not a case of following assets of a corporation wrongfully transferred. The defendant has received none of the funds or assets of the company available to creditors. The loss on the bonds falls on those who have purchased them relying on the credit of the corporation. The situation of the general creditors has not, so far as appears, been affected by the fact that- the company received nothing for the bonds.

The statute of Missouri, the state from which the bridge company in part derives it existence, authorizes a creditor of a corporation who shall have obtained judgment against it, upon which an execution has been returned nulla bona, to issue execution thereon against any stockholder to an extent equal in amount to the amount of stock held by him, “together with-any amount unpaid thereon.” The courts of Missouri, on an application under this statute for leave to issue execution against a person who was a director and stockholder in the bridge company who had received bonus stock and bonds, granted the application, and came to the conclusion that the forty per cent credited on the stock could be regarded as the amount paid thereon within the statute, and that the amount received on the bonds was also recoverable. Skrainka v. Allen, 7 Mo. App., 435, and 76 Mo., 384. The statutory remedy is, of course, not available in this state. Lowry v. Inman, 46 N. Y., 120. The court seems to have given much weight to the fiduciary and trust relation existing between a director of a corporation and its. creditors. That relation did not exist between the defendant Eno and the creditors of the company. He was a. stockholder simply, and no trust relation exists between a stockholder in a corporation and its creditors. The decision in Missouri may stand on its special circumstances, but it is not controlling in the case before us.

We are of opinion that the judgment appealed from is erroneous, and that it should therefore be reversed and a new trial ordered.

All concur.


source: Caselaw Access Project

author: Ruger, C. J.

license: Public Domain

text:
    Asa Ellwood et al., App’lts, v. Albert Northrop, Resp’t.

      Court of Appeals,

      Filed June 7, 1887.

    1. Ejectment—Title—Executor—Mortgagee in possession.
    Casper J. Lieb, in 1846, by will divided a farm held in trust for him, between his two daughters, for life, and to their male heirs. It was subject to a mortgage to one Depau, provision for the payment of which was made by his will. His son-in-law, Walrath, as executor, divided the lands. His daughter, Peggy Ellwood, occupied her share to 1856 and died in 1870 Her sons bring this action of ejectment, and defendants set up a deed from Walrath in 1856. The trial court dismissed the complaint, holding that defendant succeeded to Walrath’s rights as mortgagee in possession as owner of the Depau mortgage, founded merely upon a receipt found among Walrath’s papers after his death. Held, error, that any presumption of an indebtednes from Lieb to Walrath for payments by him on the mortgage would be rebutted by the voluntary division of the farm, and by his failure to make any claim therefor.
    2. Same—Adverse possession.
    That the deed from Walrath conveyed no interest. (1) Because it was. void by reason of Peggy’s adverse possession. (2) Because Walrath did not have possession at time of conveyance. (3) Because he held no mortgage at that time
    3. Infant—Sale of real estate of—Title through such sale.
    Where one rests upon a title acquired through the sale of infants real estate, he must establish the fact by affirmative evidence that every requirement of the statute necessary to confer jurisdiction upon the court to-order a sale of the infants property has been complied with.
    Appeal from supreme court, general term, fourth department.

      D. O’Brien, for app’lts; John Lansing, for resp’t.

       Reversing 36 Hun, 640, mem.

   Ruger, C. J.

This was an action o_ ejectment to recover an undivided three-fifths part of a parcel of 130 acres of land in Jefferson county, as male heirs of one Peggy Ell-wood. The plaintiffs claim to have acquired title to such land under the will of their grandfather, Casper J. Lieb, who died in March, 1846. By such will Leib demised to his daughter Peggy Ellwood 130 acres of land, being part of a farm of 325 acres purchased by him of Eli Watson, the conveyance of which was made to Adam W. Walrath in “trust for my sole use, benefit and behoof,” “for and during her natural life, in trust for the male heirs of her body, to have and to hold the same from and after the death of their said mother Peggy.” The remainder of the farm was devised to his daughter Mary, wife of said Adam W. Walrath, substantially upon the same terms and conditions as attended the devise to Peggy. By the will, which was originally executed in 1839, provision was made for the payment of a mortgage upon the farm for $1,500 held by one Depau, by applying thereon moneys due the testator from one Brown upon a mortgage held by him against Brown for a larger sum. Adam W. Walrath was made one of the executors of the will, and he, after the death of Leib, entered upon 'the performance of his duties, :and, so far as appears, fully administered the estate. Immediately upon the death of Leib the farm was surveyed, and a division was made among the devisees, Mary z) with her husband continuing to occupy the part devised to her, which was previously occupied by her husband, and Peggy taking possession of the 130 acres devised to her, and continuing to occupy them until 1856. She died in 1870, and this action was commenced in 1881.

The defenses to the action, as, stated in the answer, were substantially as follows: (1) A denial of any knowledge or information sufficient to form a belief that plaintiffs, as tenants in common, were seized and possessed of an estate of inheritance in fee-simple absolute of said premises. (2) Certain proceedings taken in May, 1856, under the statute for the sale of infant’s real estate, whereby the defendant claimed that his grantee acquired the title of the plaintiffs to the lands in dispute. (3) That neither the plaintiffs nor their ancestors were seized or possessed of the premises within twenty years before the commencement of the action. (4) That the defendant and his grantors have been in adverse possession of the premises for a period exceeding twenty-five years, under a claim of title founded upon a deed thereof dated April 11,1856, from one Adam W. Walrath, who was claimed to hold the title thereto.

On the trial the defendants, among other conveyances, put in evidence a quit-claim deed of the premises, dated April 11,1856. for the consideration of one dollar, from Adam W. Walrath to one Wooliver, the defendant’s remote grantor. The trial court found all of the issues of fact made by the pleadings for the plaintiffs, but also found that the defendant, under this deed from Adam W. Walrath, succeeded to all of his rights to such land, among which was the right of mortgagee in possession as owner of the Depau mortgage. It refused to find, upon the plaintiff’s request, that Walrath was not in possession of the premises in dispute at the date of his deed, to which refusal the plaintiffs excepted. The uncontradicted evidence established the fact that Peggy Elwood entered into possession of the 130 acres in 1846, under the devise from her father, and continued in such possession, with the knowledge and consent of Walrath, until 1856, and held such possession under a claim of title at the date of Walrath’s deed to Wooliver. Baker v. Lorillard, 4 N. Y., 257. The entire evidence upon which Walrath was held to be a mortgagee in possession was admitted against plaintiff’s objection, and consisted of the facts that after his death, in 1881, his widow found among his papers the Depau mortgage, with an endorsement thereon reading as follows “Received January 23, 1843, of Adam W Walrath, one dollar, in full discharge of the above and within mortgaged premises, which mortgage has been duly assigned to me. Stephen W. Brown, [l. s.]” This discharge was duly acknowledged on the same day by Brown before a supreme court commissioner. There was also found among the papers an assignment of the same mortgage from Brown to Walrath, dated May 10, 1842. This assignment was also acknowledged by Brown on the same day he executed the discharge of the mortgage. It does not appear that Walrath ever claimed any interest under this mortgage, or ever entered into possession of the property, or claimed to hold it by virtue of such mortgage, or by any other right or tehure whatever. It also appears that the mortgage held by Lieb against Brown for $4,000 was satisfied of record on January 24, 1843, almost simultaneously with the satisfaction of the Depau mortgage. The evidence also shows that when Lieb purchased the Watson farm, in 1836, he paid the whole consideration therefor, with the exception of the amount of the Depau mortgage and a small balance of about $250, and the title therefor was taken in the name of Walrath as trustee for Lieb, with the view of protecting it from anticipated claims of Lieb’s wife, with whom he was then at variance. Thereafter both Lieb and Walrath lived on the farm until Lieb’s death in 1846. Lieb was the purchaser in fact of the farm, and, as conceded both by the trial court and the general term, took an absolute title in fee to the same under the conveyance thereof by Watson to Walrath, and an agreement of trust simultaneously executed therewith between Lieb and Walrath. As between Walrath and Lieb, the latter was primarily liable for the payment of the Depau mortgage, and., if any presumption of an indebtedness from Lieb to Walrath could arise under the circumstances of this case for payments made thereon by Walrath, it would be fully rebutted by the voluntary division of the farm between the devisees of Lieb after his death, with Walrath’s assent, and without any claim on his part of an interest therein, and the administration of the estate of Lieb by Walrath, as executor thereof. As such executor he had the right to retain, as a creditor of the estate, so much of the assets as were necessary to discharge his debts, (2 Williams, Ex’rs, 896, 897), and, in the absence of any claim on the part of Walrath during his life that the debt had not been paid, a conclusive presumption arises that the debt, if it ever existed, had in fact been paid.

We have therefore reached the conclusion that Wooliver took no interest in the premises in question by his deed from Walrath, (1) because it was void by statute by reason of Peggy Ellwood’s adverse possession of the premises conveyed, at the time of its execution; (2) because Walrath did not have possession of the property at the time of the conveyance; (3) because he held no mortgage thereon at that time.

The trial court, therefore, erred in dismissing the complaint on the ground that the defendant was a mortgagee in possession. The court, at general term, however, did not pass upon this question, but affirmed the judgment upon the ground that the proceedings by which the interest of the plaintiffs in the land was sold, in 1856, were a substantial compliance with- the provisions of the statute relating to the sale of infant’s real estate, and that the conveyance executed by the special guardian appointed in such proceedings vested the title in Wooliver, the grantee through whom the defendant derived his title. We are unable to concur with that court in this conclusion. The common law does not-recognize any mode by which an infant can be deprived of his title to real estate against his consent, or that of some person duly authorized to act on his behalf. Rogers v. Dill, 6 Hill, 415; Forman v. Marsh, 11 N. Y., 551; Baker v. Lorillard, 4 id., 257. The statute has, however, provided a method by which such an interest may lawfully be sold; but, this being a special proceeding, its requirements must be strictly pursued in order to validate such a sale. The statutes in force in 1856, at the time of this sale, were substantially as follows: By section 170, article 7, title 2, chapter 1, part 3, Revised Statutes (2 Edmund St. at Large, 202, 203), power was given to the court of chancery, upon the application of any infant seized of real estate, to order the sale or disposition of his property in the manner therein directed. The mode of procedure was prescribed to be as follows (section 171): The appointment of some suitable person as special guardian of the infant for such proceedings (sec-, tion 172); the execution by such guardian of a good and" sufficient bond for the faithful performance of the trust) reposed in him (section 174). Upon the filing of such bond’ (the court was authorized to proceed “in a summary manner, by reference to a master, to inquire into the merits of the application.” Section 175. If it thereby satisfactorily appeared to the court, for any of the reasons set forth in the statute, that a disposition of any part of the real estate of the infant was necessary and proper, it was authorized to -order its sale or disposition by such guardian. Section 177. Upon an agreement for a sale or other disposition of the property being made by the guardian in pursuance of the order therefor, he was required to report it on oath to the court, and, if it was confirmed, a conveyance thereof was authorized to be executed under the direction of the court. Section 178 then provides. “All sales, leases, dispositions and conveyances made in good faith by the guardian in pursuance of such orders, when so confirmed, shall be valid and effectual as if made by such infant when of full age.” The powers conferred upon the court of chancery were subsequently extended to county courts by the Code of Procedure.

KTo evidence whatever was offered of any compliance with the provisions of the statute above set forth, except the presentation to the Jefferson county court of a petition for an order of sale, and the appointment of such guardian, and the execution by him of a bond, and the approval thereof by the county judge. None of the provisions so carefully framed by the statute to inform the court of the circumstances of the case, and the propriety of the sale, were pursued or regarded by the parties conducting the proceedings. As appears from the evidence, no reference to a master, or to a referee who is made the substitute for one, was ever made, and the court was never informed of the situation and value of the land, the reasons for its sale, the name of the intending purchaser, the price to be obtained, the manner of its payment, or any of the circumstances which would enable it to exercise its judgment in pronouncing upon the propriety or prudence of the intended sale, or its ■effect upon the interests of the infants. KTo order was ever made by the court, except that appointing a special guardian for the purposes of the petition.

It is quite obvious, from the plain reading of the statute, ■that it was intended thereby that the judgment of the court upon all of these questions should be the condition of any authority in the special guardian to execute a conveyance. It is impliedly required that a conveyance shall be preceded by a contract of sale, and that such contract shall be reported by the guardian on oath to the court. Upon confirmation of such report, and only in that event, is there any áuthority under the statute for the transfer of an infant’s title to real estate. Stilwell v. Swarthout, 81 N. Y., 109; Rea v. McEachron, 13 Wend., 465. This view is further confirmed by section 178 of the statute, which, by necessary implication, forbids any other sale, and declares all sales, dispositions, and conveyances which are not made in pursuance of such orders, so confirmed, shall be void. Under the. provisions of the statute, no general authority can be conferred upon a special guardian to sell and convey an infant’s real estate, but every sale must be specially reported to the court, and specially approved by it, and special authority to make the particular conveyance must be obtained in order to vest the title in a purchaser.

It is a principle of elementary law that statutory provisions in derogation of the common law, by which the title of one is to be diverted and transferred to another, must be strictly pursued, and every requisite thereof having the semblance of benefit to its owner must be complied with in order to divert his title. Atkins v. Kinnan, 20 Wend., 241; Battell v. Torrey, 65 N. Y., 299; Stilwell v. Swarthout, 81 N. Y., 109.

In Re Valentine (72 N, Y., 186), which was a proceeding under the statute for the sale of the real estate of a lunatic, Judge Church says: “The petition in this case was proper, and gave the court jurisdiction to proceed and determine the subject-matter involved, but it conferred jurisdiction to proceed, not according to the discretion of the court, but in accordance with the statute. The statute provides that on the presenting of such petition it shall be referred. In this case no reference was made, and there was no hearing of the parties interested, and no report. We think that this requirement is substantial, and cannot be dispensed with, and that its omission constitutes a fatal defect in the proceedings.”

In Battell v. Torrey (65 N. Y,, 296), in proceedings under the statute to sell or mortgage the real estate of an infant, which resulted in a mortgage, it was held that the mortgage executed was void because the provisions of the statute were not complied with. The court said: “The right to execute such a mortgage is, by the statute authorizing such proceedings, made to depend upon a confirmation by the court of the agreement reported. Then in the language of the statute, if it be' confirmed, a conveyance shall be executed under the direction of the court.”

These authorities seem to be in point upon the questions involved in this case, and must be deemed to be controlling upon its determination. The plaintiffs were by reason of their infancy, not only incapable of conveying their land, but incompetent to consent to or validate any of the proceedings taken to procure its disposition. They stood in the position of parties hostile to the proceedings, and objecting to every step taken therein.

The burden of proof to show that they have acquired the infant’s title rests upon the defendant, and he must establish the fact by affirmative evidence that every requirement of the statute necessary to confer jurisdiction upon the court to order a sale of the infant’s property has been complied with. In the absence of proof thereof, there are no presumptions in such proceedings that material requirements of the statute have been performed by the special tribunal having authority to act in the case. Its jurisdiction is made conditional, and the circumstances upon ,which it depends must be made to appear by proof.

The other questions in the esse were properly disposed of by the courts below.

The judgments rendered by the general and special terms must be reversed and a new trial ordered, with costs to abide the event.

All concur.


author: Andrews, J.

text:
    Isaac W. Bennett, Resp’t, v. The Agricultural Insurance Company of Watertown, N. Y., App’lt.

      (Court of Appeals,

      Filed June 21, 1887.)

    1. Insurance (fire)—Authority of agents to fill in blanks.
    An insurance agent who is accustomed, with the knowledge of the company, to fill in the answers of applicants, and being informed by plaintiff that his house is unoccupied, incorrectly inserts his answer, acts within the scope of his authority, and makes the misstatements as agent of the company and not of the applicant.
    2. Same—Unoccupied dwelling.
    When the company insure a vacant building it charges an equivalent for its undertaking, and where assured has voluntarily put a tenant in possession, he does not forfeit the insurance by again leaving the house unoccupied.
    Appeal from supreme court, general term, fourth department.

      A. H. Sawyer, for app’lt; D. A. King, for resp’t.

       Affirming 34 Hun, 627, mem.

   Andrews, J.

The defense, based upon the statement in the application for insurance that the house, at the time of the application, was occupied as a residence by a tenant, when,_ in fact, it was vacant and unoccupied, was met on the trial by evidence on the part of the plaintiff that the application was taken by Kellogg, the solicitor and agent of the defendant, who furnished the printed form of application used by the defendant, and propounded the questions to the plaintiff, and assumed to enter in writing in the blanks left for that purpose in the application his answers; and that, although Kellogg was correctly informed by the plaintiff that the house was unoccupied, but that when occupied it was occupied by a tenant or hired man, he untruly represented the plaintiff as answering "that the house was occupied as a residence by a tenant, and that the plaintiff, supposing that the answers given by him to the questions were correctly entered, signed the application without noticing the misstatements. There was a conflict of evidence as to what occurred. The agent Kellogg testified that the answers were entered as given. The referee, ■ however, found upon this issue in favor of the plaintiff, whose testimony was corroborated by several witnesses, and the finding, having been sustained by the general term, is conclusive in this court.

The agent Kellogg, in taking the application, was acting within the scope of his authority. He had been accustomed, with the knowledge of the defendant, to fill in the answers of applicants for insurance in the printed forms of application used by the company. Upon the case as it stands, it must be assumed that he was informed by the plaintiff that the house was occupied. His error in incorrectly inserting the plaintiff’s answers cannot be imputed to the plaintiff, or deprive him of the benefit of the policy. If the plaintiff, as found by the referee, answered the questions truly, he is absolved from responsibility. The misstatements in the application were, as between the parties, those of the defendant’s agent, and not of the plaintiff, and did not constitute a breach of warranty by the assured. The authorities in this state are quite decisive in support of this view. Rowley v. Empire Ins. Co., 36 N. Y., 550; Flynn v. Equitable Life Ins. Co., 78 id., 568; Grattan v. Metropolitan Life Ins. Co., 80 id., 281.

The referee, pursuant to the prayer of the complaint, reformed the application by inserting the answers as given by the plaintiff, as of the date of the application, and the evidence justified this relief.

The defendant insists that, treating the policy as having taken effect as a valid contract of insurance upon an unoccupied dwelling, there was a breach of a condition subsequent contained in the policy which rendered it void. The policy was issued in August, 1876, for the term of three years. In April, 1878, a tenant was let into possession of the house, and occupied it until November, 1878, when he moved out, and the house remained unoccupied from that time until the fire, July 17, 1879.

The claim is that although the house was insured as unoccupied, yet, as the plaintiff afterwards, during the fife of the policy, occupied it for a time by a tenant, he could not thereafter discontinue the occupation during the subsequent life of the policy, and leave the premises vacant, without forfeiting the insurance. The policy contains these, among other, conditions: “If the dwelling house or houses hereby insured shall cease to be occupied by the owner or occupant in the usual and ordinary manner in which dwelling houses are occupied as such, or be so unoccupied at the time of effecting insurance, and not so stated in the application, then, and in every such case, or in either of said events, this policy shall be null and void until the written consent of the company at the home office is obtained.” The defendant bases his contention upon the first of the conditions above quoted. It is plain, we think, that this condition was intended to protect the company against an increase of risk, by leaving premises vacant which were occupied at the time the insurance was effected, and that it has no application to a risk taken on an unoccupied dwelling house.

The cost of insurance is regulated by the hazard, and when the company insure a vacant building, it charges am equivalent for its undertaking, and, if the contract contains no provision limiting the vacancy, it may continue during the whole time of the policy, and the premium presumably covers the risk. The condition in question imposes no obligation upon the owner of a dwelling-house, insured as vacant property, to occupy it for any period during the running of the policy; ana it must be conceded that if the plaintiff had permitted the house to remain vacant during the whole time after the policy was issued, to the fire, there would have been no defense founded upon the condition in question. The claim is that the plaintiff, having voluntarily put a tenant in possession, although he was not bound to do so, could not thereafter terminate the tenancy without forfeiting the insurance. We think this construction of the condition is not admissible. The conditions which precede the one in question relate to acts or conditions occurring subsequent to the contract, which change the risk and increase the hazard. The condition in question is of the same character. It does:not permit the owner of a dwelling-house, insured as an occupied house, to increase the hazard by allowing it to become vacant without the consent of the company. If it is unoccupied when insured, the subsequent condition applies that the fact of non-occupation must be stated in the application. The fact of non-occupation was stated in the application as reformed, and was known to the agent, who should have stated in the application as originally furnished. As between the company and the plaintiff, it must be deemed to have been stated.

The question as to notice of loss was properly decided.

We think the judgment is right, aud it should therefore be affirmed.


author: Peckham, J.

text:
    The People ex rel. John W. McCabe v. The Board of Fire Commissioners of the City of New York.1

      (Court of Appeals,

      Filed June 21, 1887.)

    1. Certiorari—Appeal—Code Civ. Pro. , § 2140
    The right to decide upon the return to a certiora/ri, whether there was any competent proof of all the facts necessary to be proved, is given to the general term by section 2140 of the Code, and this court has no power to review and reverse it, if the evidence was of such a character as to call reasonably and properly for the exercise of such discretion.-
    2. Consolidation Act, § 3, par. 5, No. 13, general orders, 1881
    Section 3, paragraph 5, of general orders 13, of 1881, providing that the officers of the fire department shall “ be responsible for any want of judgment skill, neglect or failure which may cause unnecessary loss of life, limb or property,” does not apply to a case where such loss might ham resulted, but did not.

      Appeal from supreme court, general term, first department. •

      D. J. Dean, for the hoard, app’lt; Elihu Root, for the people.
   Peckham, J.

The relator was second assistant chief of the fire department of the city of New York.' On the 14th of July, 1886, charges were preferred against him by the chief of the department, charging him, first, with incapacity, in that, being in command at a fire which occurred in Third avenue, at One Hundred and Twenty-fifth street, at or about 6:25 p. M. of July 5 of that year, he did unnecessarily send, or cause to be sent, at 7:25 P. M., the telegraphic signal known as the “ simultaneous call,” thereby summoning to the station 767, in Harlem, all of the fire-extinguishing apparatus and uniformed force of the department then in quarters on Manhattan Island, north of Fourteenth street, excepting engines 14 and 16, and the second sedition of engine company 26; thereby, without due cause and reason, uncovering and depriving of all fire-extinguishing apparatus, and seriously endangering life and property, in a large and important section of the city during the celebration of Independence day, when fires are invariably of very frequent occurrence, and when it was of the utmost importance that no part of the fire-extinguishing apparatus should unnecessarily be out of quarters, and that he did thereby evince an incapacity or want of skill in performing the duties of second assistant chief of department, in violation of section 440 of the New York city Consolidation Act of 1882. The second charge was that he sent out such simultaneous call, under the circumstances above detailed, “without due cause and reason, and for want of judgment or skill on his part, which may have caused unnecessary loss of life, limb or property, uncovering and depriving of all fire-extinguishing apparatus, and seriously endangering life and property in a large and important section,” etc., as in first charge alleged. The accused was duly served with a copy of the charges, and cited to appear before the board at a certain time and place. Pursuant to such citation, he did appear in person and by counsel, and, after pleading not guilty to the charges, the trial was in due course proceeded with. Witnesses were sworn and examined on the side of the prosecution and defense, and, the testimony being closed, the board, after deliberation, and on the 21st of July, 1886, found the relator guilty of both charges, and sentenced him to be dismissed from the force of the department, to take effect from 6 o’clock p. m. of that day.

The first charge, it will be seen, refers to the act of the relator as coming within section 440 of the consolidation act, which provides for the government and discipline of the fire department, and that it shall be such as the board may from time to time, by rules, regulations and orders, prescribe. The section gives the board power, on conviction of a member of the force of, among other things, incapacity, to punish the offending party by reprimand, forfeiting and withholding pay, or dismissal from the force. The second charge is founded, in addition to the violation of the said section of the consolidation act, upon section 3, paragraph 5, of general orders No. 13, O. B. C., series of 1881, which provides that every officer and member of the uniformed force of the department shall conform to the following rules: “Section 3. Be responsible for any want of judgment, skill, neglect or failure which may cause unnecessary loss of life, limb or property.”

There is no pretense of any evidence showing that any want of judgment, skill, neglect or failure of the relator did, as matter of fact, cause unnecessary or any loss of life, limb or property. Upon the proper construction of the language used in the rule above quoted, we agree with the learned general term. The want of judgment or skill for which, under that rule, the officer must be responsible, is a want from which unnecessary loss of life, limb or property has resulted. In this case no loss at all resulted from any want of judgment or skill on his part. The general term properly held, therefore, that there was no evidence whatever which sustained the conviction upon the second charge, so far as it alleged a violation of the rule of the board. The charge itself is not in accordance with the rule; for it alleges a responsibility for want of judgment, etc., which “may have caused unnecessary loss,” while the rule is “which may cause unnecessary loss, ” etc. The charge was in relation to a past act, and in using the words “may have caused,” evidently meant that there was, at the time of the performance of the act, a possibility of such loss occurring from such want of skill, although none in fact occurred. The rule itself is a general one, and provides for future contingencies occurring after its passage, and uses language which plainly shows that it refers to those cases only where unnecessary loss of life or property actually resulted from the want of judgment or skill. After striking out any alleged violation of the rule in question, the two charges are substantially identical, and limit the accusation to a general charge of incapacity.

A large amount of evidence was taken, which, in relation to the actual facts occurring, is not substantially contradict-In the view we take of our it is, however,, wholly unnecessary to enter at length upon a discussion as to what the evidence proves. The charge of incapacity was confessedly based upon the one act embraced in the written charges of sending out, under the circumstances, the “ simultaneous call.” Prior to this time the relator had been regarded as ¿"'capable officer, fit, in the opinion of his chief, to be trusted with command at fires, and in truth he had been frequently so trusted, and no hint had ever been suggested of his unfitness for such command. In sending out the call, it is not pretended that he did otherwise than act under an emergency upon his best judgment; but in so doing, in the opinion of several of the witnesses, he very greatly erred, and showed positive incapacity. From the facts proved there were inferences to be drawn as to whether or not he was incapable. Looking at all the evidence, and taking all the facts into consideration, and drawing what it regarded as the natural and proper inference therefrom, the general term came to the conclusion that such facts did not warrant the inference of incapacity which the board of commissioners drew therefrom, and hence, as it had the right to do, it reversed the finding of the board on the facts, and reinstated the relator.

This right is given to that court by section 2140 of the Code, which provides for a review of the determination by common-law certiorari by the court granting the writ; and, upon the hearing on the return, that court may inquire, among other things, whether there was any competent proof of all the facts necessary to be proved; and, if so (subdivison 5), “whether there was upon all the evidence, such a preponderance of proof against the existence of any of those facts that the verdict of a jury affirming their existence, rendered in an action in the supreme court triable by a jury, would be set aside by the court as against the weight of evidence.” From the decision of the general term, that court, it is plain, in reversing the decison of the board, acted under the subdivision just quoted, of the section above referred to. The board of fire commissioners have appealed from this determination of the general term, and we are asked to review and reverse it.

We think we have no power to do so. The evidence taken in the proceedings is such that a court, guided by the ■rules governing it on applications to set aside a verdict of a jury as against the weight of evidence, would have that power. It is an application addressed to the sound discretion of the court, guided, of course, by well-known legal principles, but still largely dependent upon its discretion, and to be exercised upon a careful review of all the evidence, its legitimate bearing, and the proper weight to be given it. Generally, in granting or refusing such apphcacation, no error of law is committed. If the evidence be of such a character as to call reasonably and properly for the exercise of this sound discretion of the tribunal issuing the writ, its decision either way will not be reviewed here unless our jurisdiction has been en||rged, in common with that court, by the section of the Code above alluded to. Prior to its adoption, this court in a series of decisions which somewhat amplified its jurisdiction in reviewing the determination of the other courts upon writs of certiorari, still confined its powers of review to the inquiry whether the tribunal making the determination had jurisdiction, and whether there was any evidence tending to support its determination, and whether any rule of law affecting the rights of the party had been violated. Since the adoption of that section, many appeals have been brought here for review, and the expressions of the judges as to the power of the court have been quite uniform in opposition to any such jurisdiction as is now invoked; but yet, in most of them, the section in question has not been adverted to or brought to their attention, and there has been as yet no authoritative decision of the question with the section distinctly brought to the attention of the court.

In People v. French (92 N. Y., 306), the question to be reviewed here arose prior to September 1, 1880, the time when this part of the Code went into effect, and it was held that, by its express provisions, the review was to be had upon the law as it stood when the question arose. But this court was asked in that case to take jurisdiction, and review the facts under that section. It was decided that no review could be had thereunder, for the reasons above stated. Ruger, C. J., continued his opinion after such statement, and said:

“But beyond this it is quite apparent that section 2140 has no application to appeals to this court from decisions made upon the hearing of common-law certioraris. The provision quoted is by its terms confined to procedings occurring at the hearing upon the return of the writ, and must necessarily be confined to the court in which such hearing is had. The general scheme for the distribution of judicial powers established by the laws and practice of the state does not contemplate the review by this court of disputed questions of fact, and it will not entertain such questions in the absence of express provisions of law authorizing such review.”

In People v. Police Com’rs (93 N. Y., 97), Miller, J., uses the language of this section without referring to it, but, assuming the application of the rule, held that no cause for action was shown. That was a case where the board dismissed a member of the force, and the general term affirmed the determination, and this court refused to interfere.

A reference to some of the sections which precede and follow the one in question strengthens the correctness of the view taken 92 N. Y., supra. Section 2138 provides that the hearing must be had at a general term of the court, and either party may notice for such hearing after the return is complete. By section 2141 the court may make a final order annulling or confirming, wholly or partly, or modifying the determination reviewed as to any or all the parties, and by section 2144 the final order of the court must be entered in the office of the clerk where the writ was returnable; but, before it can be enforced, an enrollment thereof must be filed. For that purpose the clerk must attach together, and filo in his office, the papers upon which the cause was heard, a certified copy of the final order, and a certified copy of each order which in any way involves the merits, or necessarily affects the final order. All these sections clearly provide for the order which is made upon the original hearing before the court granting the writ, and do not in anywise provide for the hearing upon an appeal here. We are quite clear, therefore, that oar jurisdiction is not enlarged by the section of the Code under consideration.

As there was enough in the evidence to call for the exercise of the discretion of the supreme court in reversing on the facts as against the weight of evidence, we cannot interfere with its determination on that question. We do not mean to say that, under no circumstances, could we review such determination. In cases involving a plain violation of the well-known rules governing applications for a new trial on the ground that the verdict is against the weight of evidence, or where it could be seen that there was an abuse of the discretion of the court, and possibly in some other cases this court might review the decisions of the lower court. But here is no such case.

The appeal must, therefore, be dismissed, with costs.

All concur.
      Affirming 43 Hun, 554; 6 N. Y. State Rep., 658.


text:
    Daniel Vail, Resp’t, v. The Long Island Railroad Company, App’lt.

      (Court of Appeals,

      Filed June 28, 1887.)

    1. Appeal—Must be on grounds stated in complaint.
    The judge upon the trial found that plaintiff who rested his right to recover exclusively upon his title, owned one-sixth of certain premises, and. restrained defendant from using them for the purpose of a side track. The general term without passing upon the question of title affirmed the judgment upon grounds not suggested in the complaint nor on the trial,
      Held, error, that it would he unjust to affirm a case upon a ground so far foreign to the issue presented hy the pleadings.
    3. Deed—Construction of—Condition precedent.
    Plaintiff’s grandfather deeded the premises in question to the town of Riverhead “ to be used as a highway with the privileges thereunto belonging, for such purpose only.” Held, that the deed conveyed the fee of the land, and not an easement merely, and that said clause operated at most as a condition subsequent, the fee remaining in the grantee until breach of condition and re-entry hy grantor.
    .3. Same—Highways—Town may take land fob, by voluntary grant.
    The acquisition hy a town, hy voluntary grant, of a fee in land for highway purposes, is not ultra vires.

    Appeal from supreme court, general term, second department.

      E. B. Hinsdale, for appl’t; T. M. Griffing, for resp’t.

       Reversing 31 Hun, 173, mem.

   Andrews, J.

The complaint alleged an unlawful entry by the defendant on the lands of the plaintiff for the purpose of constructing a side track of the defendant’s road thereon, to be used in connection with its depot at River-head, and for depositing cars, engines, and freight, and loading and unloading cars.

With a view to equitable relief by injunction, it was averred that the acts of the defendant would occasion great injury, annoyance, and nuisance to the plaintiff, his family, business, and dwelling-house ; the latter being only 111 feet from the main track of the defendant’s road. The defendant, in its answer, among other things, put in issue the plaintiff’s title to the land over which the side track was being constructed. The judge before whom the action was tried, found that the plaintiff was owner in fee of an undivided sixth part of the land occupied by the side track, and that the defendant had no title thereto, and ordered judgment in favor of the plaintiff restraining the defendant from occupying or using the premises for its track. The plaintiff in his complaint, and upon the trial, rested his right to recover exclusively upon his legal title to the land, and the invasion of his right as owner by the act of the defendant. This was the issue tried, and was found by the "court for the plaintiff, and the judgment was based upon and pursued the complaint and finding. The correctness of the judgment must depend, therefore, upon the correctness of the finding upon the question of title. The general term, without passing upon the question, affirmed the judgment on the ground that, independently of the question of the ownership of the soil, the plaintiff had rights as abutting owner in the highway over which the track was laid, which were affected by the act of the defendant, and entitled the plaintiff, on account of the special injury suffered by him, to maintain the action. Mahady v. Bushwick R. R., 91 N. Y., 148. But this ground was not suggested in the_ pleadings, nor, so far as appears, on the trial. The complaint made no reference to a highway, and the fact that the defendant’s side track was in the highway appeared for the first time on the trial. It would be very unjust to affirm the case upon a ground so foreign to the issue presented by the pleadings. The plaintiff must therefore stand or rail upon the question of legal title.

It is conceded that the land embraced in the highway was originally owned by one Charles Vail, the father of the plaintiff, who died leaving a will, which was duly proved, by which he devised to his six children, as residuary devisees, his lands not specifically devised. The specific devises in the will did not embrace the part of the highway over which the side track of the defendant isdaid. To meet this prima facie evidence of title to the locus in quo in the six children of the testator, the defendant put in evidence a deed executed in 1848 by the testator and others to the town of Riverhead, conveying to the town a strip of land fifty feet wide and 326 feet in length, for the consideration of $67 90, “ to be used as a highway, with all the privileges thereunto belonging, for such purpose only, with the appurtenances, and all the estate, title, and interest of the said parties of the first part therein.” The deed contains the usual covenants of warranty. It is claimed by the plaintiff that the words in the deed, “the above-granted premises to be used as a highway, with the privileges thereunto belonging,” for such purpose only,” restrict the operation of the deed so as to make it a grant of an easement only in the land, leaving the fee in the grantor. We are of opinion that the deed conveyed the fee of the land, and not an easement merely, and that the clause restricting the use of the land conveyed for highway purposes only, operated at most as a condition subsequent. When a conveyance in fee is made upon a condition subsequent, the fee remains in the grantee until breach of condition, and a re-entry by the grantor. The deed expressly conveys all the estate, title, and interest of the grantors in the premises conveyed. The consideration is not nominal. The covenants of seizin or warranty run to the grantee, ‘ ‘ his (its) heirs and assigns, forever. There are no words limiting the estate conveyed, or which rebut the statutory presumption that the grantors intended to convey all their estate in the land. 1 Revised Statutes, 748, § 1. The possibility of reverter merely is not an estate in land, and until the contingency happens the whole title is in the grantee. Craig v. Wells, 11 N. Y., 315; Nicoll v. New York and E. R. Co., 12 id., 121; 4 Kent. Comm., 370; Kenney v. Wallace, 24 Hun, 478. Towns are authorized to purchase and hold lands for the use of the inhabitants. 1 Revised Statutes,-820 The acquisition by a town, by voluntary grant, of a fee in land for highway purposes, is not ultra vires. The city of New York, under the act of 1813, is authorized to acquire the fee of lands for streets, but subject to a trust for street purposes, and, under the general statute, towns are not prohibited from taking a conveyance of a fee for highway purposes, and the power given includes such a. conveyance.

We are of opinion that the plaintiff failed to establish title to the land over which the track of the defendant was-laid, and the judgment should therefore be reversed and a new trial ordered.

All concur.


author: Earl,

text:
    The People of the State of New York, App’lts, v. Joseph Elliott, Resp’t.

      (Court of Appeals,

      Filed June 28, 1887.)

    1. Criminal law—Evidence — Corroboration of accomplice — Code Crim Pro., §399.
    An accomplice testified that defendant met him in Hew York and planned a forgery, went with him to Rochester and handed him the draft, that he took it to the hank and obtained credit on it, and drew against it by direction of the defendant, and divided the money obtained with him. The evidence offered in corroboration was that defendant had served a term in the state prison for forgery, that he and the accomplice were acquaintances in Hew York, and were associated in Rochester, and defendant passed under an assumed n<ime. Defendant, when arrested, by his talk showed that some one in Rochester was connected with the crime, and that he knew all about it. Held, that all these circumstances had some tendency to corroborate the evidence of the accomplice and satisfied Code Crim. Pro . § 399.
    2. Same.
    It is not necessary that the corroborative evidence of itself should be sufficient to show the commission of the crime or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime.
    3. Same—Jury to decide.
    The court should he satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of the crimes and, when there is, it is for the jury to determine whether the corroboration is sufficient to satisfy them of defendant’s guilt.
    Appeal from supreme court, general term, fifth department, reversing judgment of Monroe county court, entered on verdict of jury convicting defendant of forgery in second degree, and as a second offense, and sentencing him for fifteen years.

      George A. Benton, district attorney for the People; P. Chamberlain, Jr., for resp’t.

       Reversing 8 N. Y. State Rep., 223.

   Earl,

The defendant was indicted for the crime of , forgery in the second degree, charged as a second offense, in uttering a forged draft for $3,900 purporting to be drawn by a Montreal bank upon the National Bank of the Republic of New York. He was convicted and sentenced to imprisonment in the state prison at Auburn for the term of fifteen years. The principal evidence against him at the trial was that of an accomplice, and it is claimed on his behalf that the testimony of the accomplice was not sufficiently corroborated, and upon that ground the supreme court reversed the conviction, and granted a new trial.

The accomplice testified, among other things, that he met the defendant in New York in July, 1885 ; that an arrangement was there made between them, in pursuance of which they went to Eochester, and there the defendant planned the crime, and handed him the forged draft to obtain the money from the Flour City Bank; that he took the draft to that bank, and obtained credit for it on the fourteenth day of August, and on the next day he drew a check upon the bank, by direction of the defendant, and obtained $2,500, of which sum he paid the defendant $2,000. It appeared upon the trial, by evidence other than tho testimony of the accomplice, that the defendant had been tried and convicetd of the crime of forgery in the city of New York, on the thirteenth day of November, 1818, and was sentenced for a term of four years to the state prison at Sing Sing, and that he served out his term; that he and the accomplice were acquaintances and associates in the city of New York before going to Eochester ; that the defendant was in Eochester, and Charlotte, near Eochester for some days prior to the commission of the offense, and that he registered under an assumed name as J. W. Clay, of Patterson, New Jersey, at two different hotels in Eochester, and at a hotel in Charlotte ; that they were together at Charlotte,' where the defendant introduced the accomplice to another person, and that he admitted he was in Eochester, and he was seen there during the week when the forgery was committed. He had no apparent business in Eochester, and gave no explanation of his presence there. The president of the Flour City National Bank testified that he thought he had seen him in the bank. He did not specify the time when that occurred ; but as the inquiry related to no other time, and there was no evidence that the defendant was in Eochester at any other time, the fair inference is that it was about the time of the commission of the offense. After his arrest, the defendant falsely declared that he had never seen the accomplice, arad that he did not know him. He was arrested for the offense by a detective in the city of New York, and before he was informed for what he was arrested, he asked the detective if any one else had been arrested on the same charge. He told the detective that Inspector Byrnes said he “would get twenty years.

One Wilkes, who was also arrested at the same time and was present, said that if he (Elliott) got twenty years, “they could do nothing with him;” and Elliott said to Wilkes, “If I go, you will go;” and Wilkes said: “No,, there wasn’t no man living could tell anything about him.” Defendant said he was satisfied there was some “squealing;” that there was a “give-away.” He asked the detective if he had any one in Rochester under arrest. The detective asked, “Why?” He said he wanted to know; ‘ that there must be somebody who had done some talking. ” The detective then asked him why he did not get the money at the German-American Bank instead of at the Flour City Bank; and he answered: “ Is that what you want me for?” The detective said, “Yes,” and the defendant said: “If that is what you want me for, I can show that I am not the party, if you want me for getting the money there;” and he stated further to the detective that he “would stand up in any place, with whiskers on or off, and see if they could identify him as the man.” Again, he said: “No, you are mistaken. I did not do it, but I know who did.”

All these circumstances certainly have some tendency to corroborate the evidence of the accomplice, and they seem to us to satisfy the requirements of the section of the Criminal Code referred to. Each circumstance, taken by itself, is quite inconclusive; but, when considered together, they certainly furnish some corroborative evidence. It is not necessary that the corroborative evidence of itself should be sufficient to show the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime. Nor need the corroborative evidence be wholly inconsistent with the theory of the defendant’s innocence. The court, before it should submit the case to the jury, should be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of the crime; and, when there is, then it is for the jury to determine whether the corroboration is sufficient to satisfy them of the defendant’s guilt. As we said in People v. Everhardt, 104 N. Y., 591: “The law is complied with if there is some evidence fairly tending to connect the defendant with the commission of the crime, so that the conviction will not rest entirely upon the evidence of the accomplice. See also, People v. Jaehne, 103 N. Y., 182. Here, within the rule thus laid down, there was such other evidence, and we are therefore of opinion that the judgment ought not to have been reversed.

The judgment of the supreme court should therefore be reversed, and that of the court of sessions of Monroe county affirmed, and the proceedings remanded to that court, with directions to enforce its judgment of conviction by committing the defendant to the Auburn state prison to serve: the unexpired term of his original sentence.

All concur


author: Per Curiam

text:
    Eliza B. Anderson, Resp’t, v. The Continental Insurance Company of New York, App’lt.

      (Court of Appeals,

      Filed June 28, 1887.)

    Practice—Motion for reargument.
    On motion for reargument the motion papers should he sufficient to-enable the court of appeals to determine whether their decision requires correction in any respect. The case on appeal, containing the opinion at. general term should be furnished.
    Motion for reargument.
    Butler, Stillman & Hubbard, for app’t; Mitchell & Mitchell, for resp’t.
   Per Curiam

This case was decided at Albany in April last, and the judgment was reversed and a new trial granted on the dissenting opinion of Davis, J., at general term. Neither a copy of that opinion, nor a copy of the-case, is furnished on this motion, and we have them not now before us. It is said that there are some expressions in the opinion which may embarrass the plaintiff on the new trial ordered. We considered that, in the mam, the opinion was correct. According to our memory, Judge Davis said that there was no time when the defendant could have maintained an action against the plaintiff for the premium after the risk had terminated, or something, to that effect. The motion papers should be sufficient to-enable us to determine whether our decision requires correction in any respect. We ought not to be supposed to carry about with us, after decision, the papers in the numerous cases which have been argued. The case on appeal, containing the opinion at general term, should have been furnished. On the papers now presented, we see no reason for-changing our decision, nor can we perceive any theory upon which the plaintiff can recover on the facts appearing on the first trial.

The motion should be denied.

All concur.


author: Finch, J.

text:
    The People of the State of New York, Resp’t, v. Charles Kibler, App’lt.

      (Court of Appeals,

      Filed July 1, 1887.)

    1. Adulteration op milk—Laws 1885, chapter 183, and chapter 458— Criminal intent not necessary.
    As the law stands, relating to the adulteration of milk, knowledge or intention forms no element of the offense. The act alone, irrespective of its motive, constitutes the crime.
    2. Same—Skimmed milk.
    The prosecution were not bound to prove why the milk was below the standard. If the effect came from skimming the milk, and the sale was within the exception of the statute, that was matter of defense.

      Giles Stillwell, for app’lt; George T. Quinby, for resp’t.

       Affirming 42 Hun, 653, mem.

   Finch, J.

The appellant was convicted for selling adulterated milk under the provisions of chapter 183, Laws 1885, as amended by chapter 458 of that year. Section 1 provides that ‘ ‘ no person or persons shall sell or exchange, or expose for sale or exchange, any unclean, impure, unhealthly, adulterated, or unwholesome milk.” It was proved that one Vandenburg, on August 25,1885, purchased at defendant’s store one pint of milk, which was shown by a chemical analysis to have contained 89.04 per cent of fluids and 7.78 per cent of milk solids, and so falling below the standard fixed by the act, came within its definition of adulterated milk. There was no dispute about these facts; but the contention of the defendant is that he was not allowed to show an absence of criminal intent, or go to the jury upon the question whether it existed, but was condemned under a charge which made his intent totally immaterial, and his guilt consist in having sold the adulterated article whether he knew it or not, and however carefully he had sought to keep on hand and sell the genuine article.

As the law stands, knowledge or intention forms no element of the offense. The act alone, irrespective of its motive, .constitutes the crime. That conclusion was necessarily involved in our decision of People v. Cipperly, 101 N. Y., 634, and 37 Hun, 323. On the trial of that case the question was directly presented. While the principal defense was the invalidity of the statute upon constitutional grounds, and that branch of the contest dwarfed all others in the discussion, it was nevertheless true that the defendant, by offers of evidence and exceptions to rulings and to the charge, insisted that there could be no conviction without proof of a criminal intent, and that he should be permitted to establish an innocent purpose. The point was' presented at general term. If well taken, it was ground for a reversal; but, while that tribunal disagreed upon the constitutional question, it indicated no doubt about the other. The majority, who thought the law invalid, construed it as requiring a conviction upon proof of the sale Of milk below the standard, “right or wrong,” and said expressly that “the testimony that tended to show that he was careful, honest and innocent in this transaction ought to have been considered, and if believed, ought to have resulted in his acquittal; but under this statute such evidence can have no weight.” The justice who dissented held that the law was constitutional, and the conviction should be-affirmed,—a conclusion which he could not have reached if the question of intent had been erroneously excluded. That dissenting opinion we adopted on the appeal to this court, and, reversing the general term, affirmed the conviction.

The wisdom or prudence of the law is not here in question. If there was any reasonable ground to doubt its meaning in the face of its plain language, that doubt was largely founded upon a possible inference from the terms of section 14 of the act of 1884 (chapter 202), which made the prohibited omissions or commissions “presumptive evidence of a willful intent ” to violate the different provisions. It was argued that, if intent was immaterial, the presumption raised was needless. But in the amendment of 1885 that provision was omitted, and section'17, chapter 458, enacted that the simple omission of things directed, or commission óf things prohibited, should be evidence of the violation of the act, and was in force when the defendant made the sale for which he was convicted. There remains .no reasonable doubt of the legislative meaning; and the ‘constitutional power to so enact we have distinctly affirmed. The prudence of its exercise may be debatable, but is not ’•indefensible. It is notorious that the adulteration of food products has grown to proportions so enormous as to menace the health and safety of the people. Ingenuity keeps pace with greed, and the careless and heedless consumers are exposed to increasing perils. To redress such evils is a plain duty, but a difficult task. Experience has taught the lesson that repressive measures which depend for their efficiency upon proof of the dealer’s knowledge, and of his intent to deceive and defraud, are of little use, and rarely accomplish their purpose. Such an emergency may justify legislation which throws upon the seller the entire responsibility of the purity and soundness of what he sells, and compels him to know and to be certain. We see no reason to change our ruling either as to the construction of the act or its constitutionality.

An exception was taken to the charge of the court construing the provision of the statute relating to skimmed milk.” We not think that question was in the case. The proof on the part of the prosecution was of the sale of one pint of milk which was below the lawful standard. That made a prima facie case. Why the milk was below the standard, or by what means the result had been accomplished, the prosecution were not bound to prove. If the effect came from skimming the milk, and the sale was within the exception of the statute, that was matter of defense, and especially for the reason that the fact, if it existed, was one peculiarly within the knowledge of the defendant, and which he could readily prove by his own testimony. But he gave no such evidence, and nothing in the proof raised the question in the case. The ruling, therefore, was immaterial, and the defendant not entitled to the charge which he asked.

The judgment should be affirmed.

All concur, except Rapallo, J.. not voting, and Peckham, J., absent.


author: Per Curiam.

text:
    The People of the State of New York ex rel. The Church of the Holy Communion, Appl’ts, v. Assessors of the Town of Greensburgh, Resp’t.

      (Court of Appeals,

      Filed July 1, 1887.)

    Taxation—Review op assessments—Cebtiobaiu.
    The act of 1880, chap. 269, regulates the review of assessments in towns, cities and villages by certiorari and renders inapplicable the general provisions of the Code.
    Appeal from order of supreme court, general term, second department, dismissing relators proceeding for writ of certiorari. In 1886, the relator being the owner of certain •real estate, petitioned the respondents that said property be exempted from taxation on the ground that it was an almshouse. The petition being denied and the property assessed, relator brought proceedings for certiorari.

      John B. Pine, for app’lt; M. G. Hart, for resp’t.

       Affirming 43 Hun, 677, mem.

   Per Curiam.

We are of opinion that the act of 1880 "(chap. 269) regulates the review of assessments in towns, cities, and villages by certiorari and renders inapplicable to such cases the general provisions of the Code which were invoked by the petitioner. The order of the general term was therefore right, and should be affirmed, with costs.

All concur.


text:
    William B. Shearman, by Guardian, ad litem, Resp’t, v. Charles D. Pope, App’lt.

      (Court of Appeals,

      Filed July 1, 1887.)

    Practice—Stay of proceedings—Does not prevent granting certain orders—Poor person.
    The fact that a motion is pending to compel a plaintiff to give security for costs, with the usual stay, does not deprive the same court of jurisdiction to make an order allowing plaintiff to sue as a poor person.
    Appeal by defendant from an order of the city court of ■ Brooklyn denying a motion to dismiss plaintiff’s complaint.. This action was brought August 2, 1885, and on August tenth defendant obtained an order directing plaintiff to file an undertaking for costs in the sum of $250, or to deposit that sum together with a stay of proceedings. Plaintiff was unable to do either, and defendant served notice of? motion for a dismissal of the complaint. Before the motion came on to be heard plaintiff obtained an order allowing him to prosecute as a poor person, and when the motion came on the court refused to dismiss the complaint.

      John K. Kuhn, for app’lt; F. J. Moissen, for resp’t.
   Per Curiam.

The same court which required the plaintiff to give security for costs subsequently made an order allowing the plaintiff to prosecute this action as a poor person. The stay of proceedings granted when the first order was made, did not deprive the court of jurisdiction to make the second order, and that order was an answer to the motion to dismiss the complaint.

The order should be affirmed, with costs.

All concur.


author: Earl, J.

text:
    Frank L. Jenkins, App’lt, v. Frank M. Putnam, Resp’t.

      (Court of Appeals,

      Filed June 28, 1887.)

    Examination before trial—Code Crv. Pro., §§ 870-873.
    The granting of an order permitting the examination of a party before trial, under Code Civ. Pro., §§ 870-873, is discretionary with the judge to whom the application is made, notwithstanding section 873 says that the judge “ must ” grant the order on a proper affidavit, where from the nature of the action and the other facts disclosed he can see that the examination is not necessary for the party seeking it. Such an order is not reviewable in this court.
    Appeal from supreme court, general term, third department.

      C. S. Lester, for appl’t; John L. Henniny, for resp’t.
   Earl, J.

The defendant, desiring to obtain an examination of the plaintiff before trial, made an affidavit in which, among other things, he stated “that the action is brought to recover for services and expenditures alleged by plaintiff to have been made and rendered by him in procuring a purchaser for certain real estate owned by defendant, and in making a sale of said real estate for the sum of $12,000, which plaintiff alleges he did upon the employment of the defendant, and which services plaintiff also alleges were worth $300, and the judgment demanded is for $300, besides costs; that an answer to said complaint has been served in which each and every allegation of the said complaint is denied;” that “the testimony of said plaintiff is material and necessary for the defendant and for the defense of said action; that said plaintiff has knowledge of all the facts and circumstances relating to his alleged employment by defendant, and his alleged sale of said real estate, and deponent expects to prove by said plaintiff that he was not employed by the defendant as alleged in said complaint, and that he did not in fact sell said real estate.” The affidavit was presented to a justice of the supreme court, who made an order requiring the plaintiff to appear before a referee named for the purpose of being examined, and to have his deposition taken in the action. Upon a motion subsequently made by the plaintiff at a special term of the supreme court, the same judge who granted the order, there presiding, vacated and set it aside. The general term having affirmed the order of the special term, an appeal has been taken to this court.

We are of opimon that the order appealed from is not reviewable here. Section 870 of the Code of Civil Procedure provides that the examination of a party to an action may be taken at the instance of an adverse party at any time before trial, and section 872 specifies what the affidavit to obtain an order for such examination must contain. It requires that it must set forth, among other things, the nature of the action, and that the testimony of the party to be examined is material and necessary for the party making the application. Section 873 provides that the judge to whom such an affidavit is presented “must” grant an order for the examination if an action is pending, and that the order may, in the discretion of the judge, designate and limit the particular matters as to which party shall be examined. While it is said in section 873 that the judge “must” grant the order, when an affidavit conforming to the requirements of the previous section is presented to him, yet we do not think that the language is absolutely mandatory, and that it was intended to deprive the judge of all discretion. The affidavit is required to disclose the nature of the action, and to set forth that the testimony of the party is material and necessary, and the judge must be able to see from the facts stated that the testimony is material and necessary. If, from the nature of the action, and the other facts disclosed he may see that the examination is not necessary for the party seeking it, then it cannot be supposed that it was the legislative intent that he should be obliged, nevertheless, to make the order. Here there is no allegation in the affidavit showing that the facts were not perfectly known to the defendant, or that it was important for him to have the testimony of the plaintiff before the trial, or that he had any reason to apprehend that he could not have his examination at the trial.

The nature of the controversy shows that the facts of the case were probably within the knowledge of the defendant, as the contract is alleged to have been made with him, and the services were claimed to have been rendered in the sale of his property. It is scarcely possible that the facts were not all as well known to the defendant as to the plaintiff, and, as the defendant could examine the plaintiff at the trial, it does not appear that it was essential that he should have his examination before trial. The very purpose of requiring that the affidavit should set forth the nature of the action, and of the defense thereto, is to enable the judge to determine whether the examination should be ordered, and to place limits upon it. While the whole examination" is placed within the absolute control of the judge by the power given him to place limits upon it, it cannot be supposed that it was intended to absolutely bind him to grant it whatever might be his judgment as to its propriety or necessity. Where the judge can see that the examination is sought merely for annoyance, or for delay, and that it is not in fact necessary and material, he ought not to be required, and cannot absolutely be required, to make the order.

Even upon the assumption that the provisions of the Code which allow the examination of a party before trial and upon the trial are substitutes for the bill of discovery in chancery, yet upon the facts alleged in this affidavit a bill of discovery could not have been maintained by the defendant against the plaintiff. It would have been dismissed asa “fishing bill,” on the ground that the discovery was not necessary to enable the defendant to make his defense. But even if the provision requiring the judge to make the order should be held to be mandatory, yet the power of the supreme court to deal with the matter is left intact. It may, in the exercise of its discretion, upon all the factsappearing,, vacate the order, and leave the party to take the examination at the trial. It is one of those matters of practice and procedure which should always be left to the discretion of the court of original jurisdiction, and its decision should not be reviewed here, unless it appears from its order that the decision was placed upon some ground of law not involving discretion. This conclusion is sanctioned by the cases of Glenney v. Stedwell (64 N. Y., 128), and Merchants’ Nat. Bank v. Sheehan (101 N. Y., 176).

The appeal should be dismissed, with costs.

All concur, except Rapallo, J., who votes for affirmance.


text:
    George E. Hyatt, Receiver, etc., Resp’t, v. William W. Dusenbury et al., App'lts.

      (Court of Appeals,

      Filed June 28, 1887.)

    Appeal—Where appellants not aggrieved.
    Where, in case a judgment were reversed, none of the appellants would be benefited, and the defendant, who would be benefited, was debarred by his own agreement from appealing, their appeal will be dismissed. Plaintiff brought this aclion as receiver, to set aside a deed made by Dusenbury, through Honeywell, to his wife, and a mortgage made thereon to Chichester, and assigned to Dusenbury, as administrator of the estate of Thomas Dusenbury. There was also money in the hands of the county treasurer, surplus of the foreclosure of a mortgage subsequently given by Mrs. Dusenbury on the same premises. Plamtiff obtained judgment declaring the conveyances and the mortga ire to Chichester to be fraudulent and void as against his judgment-creditor, William W. Dusenbury, in order to obtain a stay pending the appeal to the general term herein, stipulated, that his. claim to the surplus moneys in the foreclosure should abide the result of the appeal in the city court, aforesaid, and that he, the said claimant, shall be bound by said appeal.

      A. Walker Otis, for the motion; Moody B. Smith, opposed.
   Per Curiam.

The conveyances, second mortgage, and the assignment thereof, were all valid as between the parties thereto. Hence, in case this judgment could be reversed, and this plaintiff defeated, the surplus money which has been paid to him would belong to William W. Dusenbury as administrator, and would have to be refunded to him. Hone of these defendants would be entitled to one cent thereof. Therefore they have no interest in this appeal. They are not aggrieved by the judgment, and cannot appeal therefrom. Code, § 1294. William W. Dusenbury, as administrator, is the only person interested in prosecuting the appeal, and he has not appealed, and is so bound by his stipulation that he cannot appeal.

The motion to dismiss the appeal should therefore be granted, with costs.

All concur.


text:
    The People of the State of New York, Resp’ts, v. Hanford West, App’lt.

      (Court of Appeals,

      Filed June 28, 1887.)

    1. Adulteration of milk—Laws 1884, chap. 202, § 3, as amended 1885, CHAP. 183, § 3, CONSTITUTIONAL.
    The provision in the third section of chapter 183 of the Laws of 1885, against supplying or bringing to any butter or cheese manufactory, milk diluted with water, to be manufactured into butter or cheese, is not unconstitutional on the ground that it converts what is or may be an innocent act into a criminal offense, and that it is a restriction upon that natural liberty possessed of every owner of property to use it in any lawful way. It invades neither life, liberty nor-property.
    2. Same.
    It is not a good objection to a statute prohibiting a particular act, and making its commission a public offense, that the prohibited act was before the statute lawful or even innocent, and without any elements of moral turpitude.
    3. Same—Fraudulent intent not necessary.
    The prohibition in said section did not make a fraudulent intent a necessary ingredient of the crime. The act of mixing water with milk intended for a butter or cheese factory could seldom be committed except for a fraudulent purpose.
    Appeal from supreme court, general term, fifth department, reversing judgment of Erie sessions, sustaining defendant’s demurrer to the indictment, and overruling the same and directing the defendant to plead.

      A. J. Knight, for app’lt; Geo. T. Quinby, for the people.
   Andrews, J.

The third section of the act (chap. 183, Laws 1885), entitled “An act to prevent deception in the sale of dairy products, and to preserve the public health,” supplementary to and in aid of chapter 202 of the Laws of 1884, entitled “An act to prevent deception in sales of dairy products,” provides among other things, that “no person or persons shall sell, supply or bring to be manufactured, to any butter or cheese manufactory, any milk diluted with 'water, or any unclean, impure, unhealthy, adulterated, or unwholesome milk,” etc.; and declares that whoever violates the provisions of the section shall be guilty of a misdemeanor. The indictment in this case “accuses the defendant of the crime of watering milk, and bringing the same to a manufactory for the purpose of making the same into cheese;” and charges “that the said Hanford West, at the town of Sardinia, in the county of Erie, on the eighth day of July in the year 1886, did wrongfully, unlawfully, and knowingly supply and bring to be manufactured into cheese, to a cheese manufactory then and there situate, a certain quantity of milk, to wit, ten gallons, which said milk was then and there diluted with water; the said Han-ford West then and there bringing the said milk so. diluted to the factory for the purpose of having the same manufactured into cheese; contrary to the form of the statute,” ■etc.

The defendant demurred to the indictment; and the only question presented is whether the indictment .charges a criminal or indictable offense. The indictment follows the language of the statute, and the general rule is well settled that an indictment for a statutory offense, and especially ■when the offense is a misdemeanor, charging the facts constituting the crime in the words of the statute, and containing averments as to time, place and person, and other circumstances to identify the particular transaction, is good' as a pleading, and justifies putting the defendant on trial. Whart. Crim. Law, § 364; People v. Taylor, 3 Denio, 91.

But this rule presupposes that the statute creating the -offense is a valid exercise of legislative power. The validity of the statute in question is assailed on the ground that it -converts what is or may be an innocent act into a criminal offense, and that it is a restriction upon that natural liberty possessed of every owner of property to use it in any lawful way. The power of the legislature to define and declare public offenses is unlimited, except in so far as it is restrained by constitutional provisions and guaranties. A legislative act is presumptively valid, and whoever questions its validity must be able to point to some limitation or restriction, or to some guaranty in the constitution of the state or the United States which it violates, before its operation can be stayed, or the court be called upon to pronounce it void. Bertholf v. O’Reilly, 74 N. Y., 509. It is not a good objection to a statute prohibiting a particular act, and making its commission a public offense, that the prohibited act was before the statute lawful, or even innocent, and without any elements of moral turpitude. It is the province of the legislature to determine, in the interest of the public, what shall be permitted or forbidden, and the statutes contain very many instances of acts prohibited, the criminality of which consists solely in the fact that they are prohibited, and not at all in their intrinsic quality. The unnecessary multiplication of mere statutory offenses is undoubtedly an evil, and the general interests are best promoted by allowing the largest practicable liberty of individual action; but nevertheless the justice and wisdom of penal legislation, and its extent within constitutional limits, is a matter resting in the judgment of the legislative branch of the- government, with which courts cannot interfere.

The provision in the third section of the act of 1885, now in question, is, we think, a valid exercise of legislative power. The act, as the title indicates, was aimed at the prevention of frauds in dealings in dairy products, and the preservation of the public health. The prohibition in the third section against supplying or bringing to any butter or cheese manufactory milk diluted with water, to be manufactured into butter or cheese, does not make a fraudulent intent a necessary ingredient of the crime. It puts upon the person bringing or supplying milk to a butter or cheese manufactory the risk of ascertaining that the milk is pure.

It is well known that the system of manufacturing butter and cheese in factories established for the purpose is very common, and this provision of the act of 1885, was doubtless designed for the protection of persons interested in the common enterprise against fraudulent practices which should unduly enhance the gains of one to the injury of others. This purpose is not in terms expressed in the title of the act, or in the section in question. But this was not necessary. The act of mixing water with milk intended for a butter or cheese factory could seldom be committed except for a fraudulent purpose. It is not necessary to the validity of a penal statute that the legislature should declare on the face of the statute the policy or purpose for which it was enacted. It is sufficient if it enacts a plain and definite rule, not inconsistent with fundamental principles. An inapt or defective title to a criminal statute does, not make void a provision not within the exact scope or purpose of the act as expressed in the title.

We are referred to no constitutional provision in support of the alleged invalidity of the statute in question, except the time-honored and memorable declaration that no person shall be deprived of life, liberty and property without due process of law. The act in question invades neither life, liberty, nor property. It destroys no existing property (Wynehamer v. People, 13 N., 378); it deprives no one of the right to obtain an honest livelihood (In re Jacobs, 98 N. Y., 108); and it curtails no one in the exercise of any right, except the right to do an an act which, under ordinary circumstances, could only be done with a fraudulent purpose.

It is said that the prohibition in the third section extends so far as to make it criminal for a dairyman owning and conducting a butter or cheese factory, for the manufacture of butter and cheese from milk exclusively produced by himself, to supply the factory with milk from his own cows, mixed with water. This would not be a reasonable construction of the act, and, if such a supposed state of facts exists in this case, it is matter of defense on the trial, and it was not necessary to negative their existence on the face of the indictment. Com. v. Dana, 2 Metcf., 341; People v. Walbridge, 6 Cow., 513; Fleming v. People, 27 N. Y., 329.

The following authorities tend to sustain the views above expressed, on the main question considered: People v. Cipperly, 101 N. Y., 634; People v. Arensberg, 103 id.. 388; Phelps v. Racey, 60 id., 10; Com. v. Waite, 11 Allen, 264; Com. v. Evans, 132 Mass., 11.

We think the judgment is right, and should be affirmed.

All concur.


author: Landon, J.

text:
    Nathan Crawford, Adm’r, etc., App’lt, v. Mary E. Haines, Resp’t

      Supreme Court, General Term, Third Department,

      Filed May 24, 1887.

    Evidence—What not incompetent within Code Civ. Pro., § 829.
    This action was brought to recover among other things money belonging to the intestate, and alleged to have been converted by the defendant. The testimony showed that a debtor of the intestate made a payment of money in the presence of the plaintiff and defendant by laying it on a table before her. The plaintiff upon his direct examination as a witness in his. own behalf, was asked whether at that time the defendant made any disposition of the money, and if so, what ? Held, that the plaintiff, as a nonparticipating witness of a transaction which took place between the intestate and defendant, was not incompetent to testify within Code Civ. Pro., § 829.
    Appeal from judgment in favor of defendant entered upon report of referee.

      The plaintiff among other things sought to recover of ■defendant $485, which the complaint alleged belonged to his intestate, and which coming into the possession of the defendant, she converted to her own use. The referee found that no demand had been made of the defendant before action brought, and reported in favor of the defendant. The only question urged upon appeal is stated in the opinion.

      N. P. Hinman, for app’lt; J. H. Clute, for resp’t.
   Landon, J.

The intestate Hannah Crawford was the mother of these parties. The defendant resided with her. One Covenhoven owed the intestate $485, and paid her the money at her house by laying the same upon a table before her, in the presence of both plaintiff and defendant. These facts having been testified to upon the trial, the plaintiff, upon direct examination as a witness in his own behalf was asked, “Can you state whether after that payment was made by Covenhoven, Mary, the defendant, made any disposition of that money, and if so, what ?” His counsel stated that the purpose of the question was to prove that the defendant took the money and put it in her bed-room. The defendant objected, that what was done there must have been done by the consent and direction of the intestate, and that the plaintiff is incompetent under section 829, Code C. P. The objection was sustained, and the plaintiff excepted. We think this was error. If the defendant took the money and put it in her bed-room this may have been a transaction between the defendant and the deceased, but the case does not show that it was a transaction between the witness and the deceased. As the case stood he was merely a passive an non-participating witness of the transaction, and therefore not within the exclusion of this section of the Code. Simmons v. Havens, 101 N. Y., 427; Cary v. White, 59 id., 336.

We are referred to Holcomb v. Holcomb, 95 N. Y., 316, as authority for the ruling. The court there says, that any transaction with the deceased in which the witness in any manner participated, is excluded. There is no evidence here that the witness did in any manner participate. The sole evidence given upon this subject was, that he also was present when the money was paid by Covenhoven. The testimony called for, relates to the action of the defendant. It is possible that plaintiff’s further examination would have shown his participation, but we do not know.

As it was, his testimony was competent, and for aught we know might have established the conversion, the failure to prove which, defeated the plaintiff.

The judgment must be reversed, the reference discharged,, a new trial granted, costs to abide the event.

Learned, P. J., and Mayham, J., concur.