author: Mayham, P. J. Herrick, J. Putnam, J. (dissenting.)

text:
    The People, App’lts, v. Charles F. Peck et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed March 2, 1893.)

    1. Criminal law — Destroying public documents — Labor statistics.
    The statistics required to be gathered by the commissioner of labor statistics, including answers to circulars on that subject, are papers deposited with a public officer, by authority of law, within § 94 of the Penal Code.

      2. .Same — Indictment.
    An indictment which charges that one P. was commissioner of labor statistics; that official papers were in his custody, and that he and one B. wilfully and unlawfully mutilated, obliterated and destroyed the same, is ■ not demurrable.
    (Putnam, J., dissents.)
    Appeal from the judgment of the court of sessions of the county of Albany, sustaining the defendants’ demurrer to an indictment against them.

      James W. Eaton, dist. atty., for app’lts; Edward, J. Meegan, for resp’ts.
   Mayham, P. J.

The respondents were jointly indicted for the alleged crime of removing and destroying public documents. The full text of the indictment is as follows: .

“ The grand jury of the county of Albany accuse Charles F. Peck and Elbert Rogers of^ the crime of removing and destroying public documents, committed as follows: The said Charles F. Peck, heretofore and at the time of the commission of the acts hereafter stated, was and now is the commissioner of statistics of labor of.the State of New York, a public officer and a public office duly created by an act of the legislature of the state of New York, and as such commissioner it became and was his duty to collect, assort, systematize and present in annual reports to the legislature statistical details relating to all departments of labor in this state, and especially in relation to the commercial, industrial, social and sanitary conditions of workingmen, and to the productive industries of this state; and that at all the times hereafter referred to it was the legal duty of every person, owner, operator, manager and lessee of every mine, factory, work-shop, warehouse, elevator, foundry, machine shop and other manufacturing establishment in the state, and of every agent and employe of such owner, operator, manager and lessee of every such mine, factory, work-shop, warehouse, elevator, foundry, machine shop and other manufacturing establishment, to furnish such commissioner, when requested by him, statistical and other information in their possession or under their control relative to the lawful duties of such commissioner as above set forth, and to truthfully answer questions concerning such lawful duties of the said commissioner sent to them by said commissioner by circular.
“ That heretofore, and in the year 1891, between the 1st day of January and the 31st day of December, in said year, and in the year 1892, between the 1st day of January and the 1st day of September, in said year, the said defendant, Charles F. Peck, as commissioner of statistics of labor of the state of New York, in pursuance of the duties devolved on him by law to collect, assort and systematize statistical details relating to all departments of labor in this state, and especially in relation to the commercial, industrial, social and sanitary condition of workingmen, and to the. productive industries of the state, sent circulars to the owners, operators, managers and lessees of the mines, factories, workshops, warehouses, elevators, foundries, machine-shops and other manufacturing establishments of this state, which said circulars did then and there contain questions asking for statistical information relating to the lawful duties of such commissioner, and relating to the' details of all departments of labor in this state, and especially in relation to the commercial, industrial, social and sanitary condition of workingmen in this state and to the productive industries of this state, and did, at the times aforesaid, receive answers to the questions contained in said circulars from the owners, operators, managers and lessees of the mines, factories, workshops, warehouses, elevators, foundries, machine-shops and other manufacturing establishments of this state, which said answers were contained in and written on the ■circulars so sent out by the said Charles F. Peck, as commissioner of statistics of labor of the state of Hew York, and which said answers, then and there being, were and are the statistical details relating to all departments of labor in. the state of Hew York, and especially in relation to the commercial, industrial, social and sanitary condition of workingmen of the state of Hew York, and to the productive industries of the state of Hew York, and which said. circulars, containing the questions aforesaid, and the answers aforesaid, were sent to and received by the said defendant, Charles F. Peck, as such commissioner of statistics of labor of the state of Hew York, by due authority of law, at his office in the new capítol in the city of Albany, and known as the bureau of- labor statistics of the state of Hew York, he, the said Charles F. Peck, being then and there a public officer of the state of Hew York, and received and filed and deposited by said Charles F. Peck in the office of the bureau of labor statistics of the state of Hew York at the headquarters thereof in the new capítol, in the city of Albany, the said bureau of labor statistics being and was then and there" a public office of the state of Hew York, and being then and there received, filed and deposited by due authority of law, and being and were then and there public records, books, papers and documents of the state of Hew York.
And the grand jury further say that the said Charles F. Peck and Elbert Rogers, on the 11th day of September, 1892, at the city of Albany in ' this county, feloniously, wilfully and unlawfully did remove, mutilate, conceal and destroy the public records, books, papers and documents so, as aforesaid, filed and deposited by due authority of law in the office of the bureau of labor statistics of the"state of Hew York, in the new capítol, at the city of Albany, .the same being then and there a public office of the state of' Hew York, and the same being then and there filed and deposited by due authority of law with the commissioner of statistics of labor of the state of Hew York, at his office in the new capítol in the city of Albany, he being then and there a public officer of the state of Hew York, and which said public records, books, papers and documents aforesaid did then and there relate to and were the official statistical details relating to all departments of labor in the state of Hew York, and especially in relation to the commercial, industrial, social and sanitary condition of the workingmen of the state of New York, and to the productive industries of the state of New York, for the. years 1890 and 1891, and were and are the official and public records, books, papers and documents of the bureau of labor statistics of the state of New York, and the official and public records, books, papers and documents of the People of the state of New York.
“And the grand jury aforesaid further say that the public records, books, papers and documents aforesaid have been and are withheld by the said Charles F. Peck and Elbert Rogers, and have been and were removed and mutilated by the said Charles F. Peck and Elbert Rogers, and have been destroyed by the said Charles F. Peck and Elbert Rogers, so that the grand jury are unable to give a better description of them than as above set forth, and so that the grand jury are unable to set out in detail, and are unable to set them out in words and figures.
“And so the grand jury aforesaid charge and accuse the said Charles F. Peck and the said Elbert Rogers with feloniously, wilfully, and unlawfully removing, mutilating, concealing, and destroying public records, books, papers, and documents, contrary to the statute in such case made and provided.
“ James W. Eaton,
" District Attorney of the county of Albany."

To this indictment each of the defendants demurred, as follows:

“ The defendant; Charles F. Peck, demurs to the indictment presented herein against him, and assigns as the grounds thereof, which appear on the face thereof, to wit:

First. That said indictment does not conform substantially to section two hundred and seventy-six of the Code of Criminal Procedure.

Second. That more than one crime is charged in the indictment within the meaning of section two hundred and seventy-eight of the Code of Criminal Procedure.

Third. That the facts stated in said indictment do not constitute a crime.

Fourth. That the said indictment contains matters which, if true, constitute a legal bar to the prosecution.

“ Charles F. Peck,

Defendant."

The principal point raised by these demurrers, and urged on this appeal, is as to whether or not the facts charged and alleged in the indictment, constitute a crime under § 94 of the Penal Code. That section provides as follows:

“A person who wilfully, and unlawfully, removes, mutilates, destroys, conceals or obliterates a record, map, book, paper, document or other thing filed or deposited in a public office, or with any public officer by authority of law, is punishable by imprisonment for not more than five years, or by a fine of not more than five hundred dollars, or by both.”

The indictment in this case shows that Charles F. Peck was a public officer, charged with the duty of gathering statistics of a public nature, and for a public purpose; that such statistical information was to be gathered in part on his application, from individuals and corporations on his request, made to such individuals and corporations, who were by the law charged with the duty of answering truly such applications and requests, and the answers so made delivered to him as such public officer; that in pursuance of such duty as such officer, he did make application and send circulars to the owners, operators, managers, and lessees of the persons and corporations from whom he desired, and whose duty it was to furnish, such statistical information ; which circulars contained questions asking for information, and that he received answers thereto, which answers were contained in, and written on such circulars, and which answers were and are statistical details, relating to the commercial, social and sanitary conditions and the productive industries of the state, and that such answers were sent to, and received by the defendant, Charles F. Peck, as such commissioner and public officer, in the office of the bureau of labor statistics of the state of New York, and filed and deposited by him in that office at the head-quarters thereof in the new capítol in the city of Albany.

The indictment further charges that the defendants Charles F. Peck and Elbert Rogers, on the 11th of September, 1892, at the city of Albany in the county of Albany, feloniously, wilfully, and unlawfully, did remove or mutilate the public records, books, papers and documents so filed and deposited in the office of the bureau of labor statistics, the same being then and there deposited with such commissioner by authority of law.

The facts aboye recited are material, issuable facts, which are admitted by the demurrers; the legal conclusions sought to be drawn from these facts, which are incorporated in the indictment, are not issuable facts, and not, therefore, admitted by the demurrer.

The defendants, therefore, by their demurrers to this indictment, admit all the facts charged as facts, and say by their demurrers that assuming their truth they constitute no legal crime.

We start then, in the investigation of this case, with the following admitted facts.

First. That defendant Peck was at the times charged in the indictment a public officer, charged with the duty of gathering statistical information for public purposes.

Second. That he had power and authority to compel the production to him of information in writing by persons and corporations to be used by him as a public officer.

Third. That he as such public officer issued to persons and corporations circulars containing questions relating to the statistical information which he was required as a public officer to collect.

Fourth. That such circulars were answered in writing by the persons and corporations to whom they were addressed and such answers in writing were received by him at his office or headquarters in the new capítol of the state of New York, in the city of Albany ; and were in his possession as such officer in his said office or headquarters.

Fifth. That the defendant Peck and the defendant Eogers wilfully and intentionally removed, mutilated and destroyed such circulars and answers. ,

Upon these conceded facts, the learned counsel for the defendants insists that they do not constitute a crime.

We fully agree with the learned counsel for the defendants upon the proposition which he has so ably established by argument and authority, that a criminal charge in an indictment based upon facts which do not constitute a crime is not admitted by the demurrer, and a citation of authorities here upon that subject is unnecessary.

But it is urged that the papers set out or referred to in the indictment as containing statistical information, which are alleged to have been destroyed, are not such books, documents, papers or things filed or deposited in a public office, or with a public officer, by authority of law, as are contemplated by § 94 of the Penal Code, and upon this point it is urged that the statistics required to be gathered by the commissioner of labor statistics do not come within any of the papers or documents the removal or destruction of which constitute a crime.

The office of commissioner of statistics of labor was created by chapter 356 of the Laws of 1883, and by that act and chapter205 of the Laws of 1886 the authority to gather and tabulate statistics was conferred upon that officer.

By § 3 of that act, as amended by chapter 205 of the Laws of 1886, the commissioner was authorized to take testimony; send for persons and papers; examine witnesses on oath; to take depositions, and any of the persons or corporations so authorized to be examined who shall refuse admission to said commissioner to his or its place of business for the purpose of inspection, or who shall, when required by him, wilfully neglect or refuse to furnish to him any statistical or other information relative to his lawful duties, which may be in their possession, or under their control, or who shall willfully neglect-or refuse, for thirty days, to answer any question, or questions by circular, or upon personal application, or who shall knowingly answer any such question untruthfully * * * shall, for every such wilful neglect or refusal, be deemed guilty of a misdemeanor.

The power given by this section to investigate the truth of the answer furnished to-any circular issued by the commissioner, and to punish any false answer as a misdemeanor, would seem to imply a duty on the part of the commissioner to preserve the answers and statistics thus furnished, and the ample power conferred upon the commissioner to cause and compel such answers to be given and furnished to him as a public officer, would seem to invest such documents with the attributes of “ papers, documents or other things, filed or deposited in a public office by authority of law,” within the provisions of § 94 of the Penal Code.

We are referred by the learned counsel for the defendants to the technical definition of the word “ statistics ” as given by lexicographers ; but whatever that definition literally may be, it seems quite clear that the legislature for the purposes of this act has given documentary statistical information the character of a “paper deposited with a public officer by authority of law,” and that this indictment is sufficiently specific to bring these papers, so far as their description is concerned, within the rules requiring definiteness of description.

The indictment both charges the crime and the act, so far as these papers are concerned constituting it. Wood v. People, 53 N. Y., 513; People v. Dumar 106 N. Y., 502; 11 St. Rep., 19.

Again, it is insisted that as the law creating the office of commissioner of statistics of labor provided no specific place for the custody of these papers, and made no provision requiring the commissioner to file or deposit any papers, records or documents that may come,to him, he could destroy them without violating any provision of law, and that their destruction or mutilation was not a criminal offense.

It must be conceded that there is great force in these suggestions, and unless the same is met and overcome by some allegation of fact in the indictment, or by some other public or general statute, then the contention of the defendants must prevail.

But there is a general provision of statute under which it is claimed by the learned district attorney these documents, which are official in their nature, must be retained, or preserved, even though there is no provision for filing or depositing them in any public office by the commissioner.

If the papers described' in the indictment are, as we have determined, papers officially in the possession of the commissioner, and pertain to his office, then there would rest upon him at least an implied obligation to retain and deliver them to his successor in office, under the provisions of the Revised Statute, although there was no express provision of law for filing or depositing them in his office.

By article 5 of chapter 5, title 6, part 1 of the Revised Statutes, page 376 of vol. 1, Banks & Bro. 7th edition,it is provided as follows : Section 50: “ Whenever any person shall be removed from office, or the term for which he shall have been elected or appointed shall expire, he shall, on demand, deliver over to his successor all books and papers in his custody as such officer, or in any way appertaining to his office.

“ Every person violating this provision shall be guilty of a misdemeanor.”

Sections 51, 52 and 53 provide for a summary manner of recovery of the same by the successor in office. This provision of the Revised Statute appears to have been repealed by article 3 of chapter 681 of the Laws of 1892, and its penal and summary provisions are, therefore, no longer enforcible, but, I think, it can hardly be maintained that the duty of an officer to deliver the books and effects of his office to his successor has been by that repeal entirely removed.

The reason for the application of such a rule to cases of this character becomes apparent, when it is considered • that the commissioner may, at great expense to the state, collect statistical information, which may not be tabulated or embraced in his report before his removal from, or the expiration of his term of office, and by'its destruction or mutilation the information gathered at the expense of the state by its agent or officer, and thus its' property, would be lost to the state, if the papers in his custody could be destrojmd by him; or, to test the question of the right of the commissioner to treat this information as his private property, which he might destroy at pleasure, let it be assumed that this statistical information had been obtained by a commissioner, and while in his possession, and before tabulated or digested and reported to the legislature; the commissioner should be removed from office ; could it be reasonably contended that he could withhold these statistics from his successor, without subjecting himself to the provisions of § 50 of the statute above referred to, even though there was no provision of law requiring him to file the same or deposit it in a public office.

But whether this be so or not, these papers were deposited with a public officer, within § 94 of the Penal Code.

Taking this indictment as a whole, we think it alleges and charges that the defendant, Peck, was a public .officer. That the papers referred to are official papers; that they were deposited with a public officer; and they were wilfully and unlawfully mutilated, obliterated and destroyed by the defendants, and that enough is alleged to bring the case within the provisions of § 94 of the Penal Code.

The order and judgment of the court of sessions should be reversed, and judgment given for the People on the demurrers, with leave to the defendants to withdraw the demurrers and plead to the merits at the next court of sessions of Albany county after the service of notice of this decision.

Herrick, J.

“ A person who wilfully and unlawfully removes, mutilates, destroys, conceals or obliterates a record, map, book, paper, document, or other thing filed or deposited in a public office or with any public officer, by authority of law, is punishable,” etc. Sec. 94, Penal Code.

The indictment in this case charges the destruction of .certain papers or documents by the defendants. Were they filed or deposited in a public office, or with any public officer, and, if so, were they so filed or deposited by authority of law; for all these things are necessary to bring the case within the section quoted.

That the things alleged to have been mutilated and destroyed were papers or documents is not questioned. That they were mutilated or destroyed is a question of fact admitted by the demurrer.

That the defendant, Peck, is the “ Commissioner of Statistics of Labor ” is also a question of fact admitted by the demurrer.

That the “ Commissioner of Statistics of Labor ” is a public officer, I think, will not be questioned, so that the only questions, it seems to me, left for consideration, are, were the papers or documents filed or deposited in a public office, or with any pub-lie officer; and, if so, were they filed or deposited by authority of law ?

In construing a statute, meaning should be given tp every word ; and a proper respect for the legislature, if no other reason, should lead us to suppose that it has chosen the words of a statute carefully, that none have been used needlessly, and that it knew the meaning of the words used; especially is this true of words used in penal statutes.

The statute reads, “filed or depositedthe words “filed" and “ deposited ” are evidently not used as synonymous, or as the equivalents of each other, but as words having a different signification. A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file. Bouvier Law Diet. And the derivation and meaning of the word as defined in the dictionaries carries with it the idea of permanent preservation; becoming part of the permanent records of the public office where it is filed. Bapalje & Lawrence Law Diet.; Century Diet.

Deposit does not carry with it the same meaning; it may or may not mean a permanent disposition of the thing placed or deposited. See Worcester’s Dictionary; Century Dictionary. It may mean a mere temporary disposition or placing of the thing.

And the words of the statute being coupled together, or rather disjoined, by the conjunction “or,” the same meaning is not to be given to each, but that meaning or signification which distinguishes it from the other, and thus each word given full force and effect. It would follow from this that the section of the Penal Code cited includes papers and documents placed in a public office, or with a public officer, not only for permanent care and preservation, but also those placed there for the time being for temporary use or custody.

The indictment alleges that the papers and documents in question were circulars sent by the defendant, Peck, as commissioner of statistics of labor, to different persons in the state, asking certain questions of them, to which they answered, their answers being contained and written upon the circulars sent out by him; that he received them and deposited and filed them in the office of the bureau of labor statistics, at the headquarters thereof, in the new capitol, in the city of Albany.

They were given to and received by him as a public officer; he issued the circulars in his official capacity; they were returned, with the answers, to him, as a public official.

The act creating the office of “ commissioner of statistics of labor ” is entitled “ An act to provide for the establishment of a bureau of labor statistics;” it provides for a commissioner, a clerk and headquarters, that is, a local official habitation, or office, for the transaction of its business in the new capitol, at Albany ; the act could not very well go any further and designate the room or rooms ; the trustees of the capitol building do that.

The headquarters thus provided for would, when established, be very properly and appropriately described as the office of the bureau of labor statistics, and it would be a public office, and á paper or document filed or deposited there, it seems to me, would be filed, or deposited in a public office.

The indictment charges that the defendant Peck, after receiving the papers or documents before described, filed and deposited them in the office of the bureau of labor statistics of the state of New York, at the headquarters thereof, in the new capítol, in the city of Albany.

In my opinion, then, the papers set forth in the indictment were •deposited with a public officer and in a public office, within the meaning of the Penal Code. Were they so deposited by authority of law ?

The papers set forth in the indictment were circulars containing questions, asking for information such as the bureau of-labor statistics was authorized to collect, and the answers thereto of the persons to whom such circulars were addressed. Chapter 205 of the Laws of 1886 authorizes the commissioner to issue circulars and to compel answers thereto; the papers in question then were received by the commissioner by authority of law.

In construing a penal statute we should keep in" view the evil sought to be corrected. These papers contained information from which the commissioner was to make his annual report to the legislature as provided by the law creating his office, the collection of such information and presenting it to the public by such annual reports was the main purpose of the creation of the bureau of labor statistics; suppose then that after great trouble and expense this information has been collected by letters, circulars and answers thereto, and before he has had an opportunity to collect, digest and tabulate it for his report, some stranger to the office mutilates or destroys it, would not such an act come within the purview of the statute; would it not be one of the acts sought to be reached by the section of the Code in question ?

We must not inadvertently be misled in our construction of the law by the fact that the acts charged as a violation of it were committed by the officer with whom the papers were deposited ; that makes no difference as to the law; it may make a difference as to the construction to be placed upon the act done, and have great weight in determining whether such destruction was wilful and unlawful; but that is something to be determined upon the trial from all the facts and circumstances, and it is not necessary that those facts and circumstances should be set forth in the indictment ; neither is it necessary to allege in the indictment whether the papers in question were destroyed before or after they had been used, tabulated or digested, or any of the circumstances under which the papers were destroyed, such circumstances are matters of evidence, not matters of fact necessary to be alleged in the in•dictment. The offense is a statutory one, and all that is necessary is to set forth the offense as the statute defines it. Phelps v. People, 72 N. Y., 334; People v. Conroy, 97 id., 62; People v. Willett, 102 id., 251; 1 St. Rep., 384; People v. Weldon, 111 N. Y., 569; 20 St. Rep., 112.

The circumstances of the crime, other than those set forth in the statute, need not be stated. People v. King, 110 N. Y., 418-421-422; 18 St. Rep., 853; People v. Giblin, 115 N. Y., 196; 24 St. Rep., 592.

If we assume that under certain circumstances it would not be unlawful for the commissioner of statistics of labor to destroy the papers in question, a question not necessary to be passed upon now, and which, therefore, is neither affirmed or denied, still it is not necessary for the indictment to negative 'the existence of such circumstances; they are matters of defense, to be established by the defendant upon the trial. Fleming v. People, 27 N. Y., 329; People v. West, 106 id., 293; 8 St. Rep., 713; People v. Weldon, 111 N. Y., 569-74; 20 St. Rep., 112.

The indictment sets forth the time and place of the commission of the offense, and describes the papers destroyed with reasonable certainty, and alleges the facts constituting the crime in the words of the statute, and is, I think, sufficient

It seems to me, therefore, that the papers described in the indictment were received by and deposited with a public officer, and were also deposited in a public office, within the meaning of the Penal Code, and that they were so received and deposited by authority of law, and that their wilful and unlawful destruction is a violation of § 94 of the Penal Code. It follows, therefore, that the judgment of the court of sessions should be reversed.

Let an order be entered accordingly, with leave to the defendants to plead over in such form as they may be advised.

Putnam, J. (dissenting.)

By § 94 of the Penal Code, under which defendant was indicted, one who unlawfully removes, destroys, or conceals a record, paper or document filed or deposited in a public office or with any public officer by authority of law is punishable. Therefore, to hold defendant under the indictment, it must be determined that under chapter 356, Laws of 1883, as amended by chapter 205, Laws of 1886, the duty devolved upon him to file, preserve and deliver over to his successor in office the papers mentioned in the indictment as destroyed or concealed by him. It is not claimed that said statute contains any express provision requiring the “ commissioner of statistics of labor ” therein created to preserve such papers, but it is urged that they were received by him as a public officer of the state under the provisions of the statute, and hence are papers deposited with a public officer by authority of law within the meaning of the Penal Code.

The act creating a “ commissioner of statistics of labor ” provides that the headquarters of the commissioner shall be in the new capítol, but no provision is made for furnishing him with suitable rooms or accommodations in which to file or preserve his papers.

It provides that the duties of the said commissioner shall be to collect, assort, systematize and present in annual reports to the legislature, within ten days after the convening thereof in each year, statistical details, etc. It 'provides the methods by which the commissioner can obtain the statistical details to be set out in his report. He is given the power to send for persons and papers and examine witnesses under oath; to cause depositions to be taken ; to inspect factories, warehouses, mines, manufactories and other establishments; to make personal inquiries in regard thereto, and to seek information by circulars, to which answers must be returned within thirty daj's. The act leaves much to the discretion of the commissioner as to the method of obtaining the statistical information to be contained in his annual report. If he examines witnesses, the law does not compel him to take and preserve minutes of such examinations. If he inspects factories and other establishments personally or through agents, he is not obliged to make a report or memoranda of the result of such inspection. If he obtains information through personal interviews and inquiries, no provision is made for making or filing any paper showing the result of such interviews. It is evident that under the statute the commissioner, if he so elects (although, perhaps, difficult so to do), could obtain all the information used in his annual report by inspection, personal interviews of himself and agents with the proprietors of manufacturing and other establishments, and by the examination of witnesses, so that no papers whatever would be received that could be filed or preserved in his office.

In this case, however, the indictment alleges and the demurrer admits that the defendant in the discharge of his duty as commissioner sent circulars to the owners, managers and lessees of mines, factories,' manufacturing establishments and others, requesting statistical information, and received answers written upon said circulars, which circulars and answers he destroyed or concealed. Hence arises the question whether under said act the duty devolved upon the commissioner to file and preserve the correspondence with various parties throughout the state from whom he received information embodied in his annual report.

I have reached the conclusion that it was not the intent of the legislature in said act to cast on the “ Commissioner of Statistics of Labor” the duty of filing and preserving correspondence entered into by him for the purpose of gathering statistical information. If there had been such a purpose, I think the legislature would, in the act, have made special provisions for suitable rooms and clerks; also, that information obtained by the examination of witnesses should be reduced to writing; when obtained by inspection, a report of the result should be made; when from personal interviews of himself or agents, a memoranda of the result of such interviews should also be preserved, and that such reports, memoranda and evidence, as well as all correspondence, should be preserved and filed by the commissioner in his office. Unless some report or memoranda of information obtained by the examination of witnesses, inspection and personal intervievs is filed and preserved in the office -of the commissioner, it is difficult to see of what use to the commissioner, his successor in office, or any one else, would be the preservation of that fragmentary part of the statistical information contained in the annual report derived from correspondence.

I think, therefore, as the duty is not in terms imposed upon the commissioner to file and preserve his correspondence, it is also evident from the language and provisions of the statute in question that it was not within the legislative intent that such an obligation should devolve upon him. Where a public officer is required to preserve and file papers, the obligation to do so is generally plainly declared by the legislature. But, as was said in the Matter of John R. Corryell, 22 Cal., 179-185, where the defendant was indicted for altering a document belonging to a public office, I can find no law requiring the defendant to preserve the papers, for the alleged destruction of which he was indicted. His circulars and the answers thereto, having served their purpose, have become functus officio.

Conceding that the circulars and answers thereto, mentioned in the indictment, are public- papers, Peck is not criminally liable unless they were deposited with him by authority of law and he unlawfully destroyed them. Although- a public officer of the state receives papers as such, he is not bound to preserve them unless there is a duty on his part prescribed by law soto do.

Every paper in a public office, though properly received therein, -does not become a public record. It must be filed or deposited by authority of law. See 20 Am. & Eng. Ency., 507; Smith v. Lawrence, 12 Mich., 431; Milford v. Greenbush, 77 Me., 331, 332; Carrington v. Potter, 37 Fed. Rep., 768; Fox v. Lyon, 27 Pa., St., 15; Bouchaud v. Dias, 3 Denio, 238.

The indictment, after stating the duty of the defendant, as ■“ commissioner of statistics of labor,” and specifying the circulars sent out by him requiring statistical information,and the answers received written on said circulars and which were so received by said Peck in the discharge of his duty as a public officer by 'authority of law, at his office in the capítol, alleges that he wilfully, unlawfully and feloniously concealed, mutilated and destroyed said papers. .

The indictment does not allege whether said circulars and answers were destroyed before or after the information contained therein had'been used, tabulated and embodied in the annual report. Hence, if the defendant might legally destroy the papers after the information contained therein had been utilized, although he could not do so before, the demurrer was properly sustained. Eor, in that view, to sustain the charge against the defendant under the indictment, he must not only have destroyed the papers in question, but have done so before the information derived therefrom had been tabulated. It was as necessary for the People to allege that fact in the indictment as it would be to prove it upon the trial. “ Every indictment must contain a certain description of the crime of which the defendant is accused and a statement of the facts by which it is constituted.” Lambert v. The People, 9 Cowen, 586; § 284, Code Crim. Pro.

In People v. Gates, 13 Wend.. 317, it is said: “In a criminal charge * * * there is no latitude of intention to include anything more than is charged. . The charge must be exnlicit enough to support itself.” See also Dord v. The People, 9 Barb., 675. And it is well settled that the general charge in the indictment that the defendant’s act was committed wilfully; unlawfully, feloniously, etc., does not aid a defective statement of the facts. Commonwealth v. Hunt et al., 4 Metcalf, 128. Therefore, as the indictment does not allege the fact that the alleged mutilation or destruction of said papers was prior to their being tabulated and utilized by the defendant, we may assume, as I have done in my discussion of .the case, that the alleged criminal act of defendant was subsequent to such tabulation and utilization.,

If the indictment had alleged that defendant having sent out circulars and received answers thereto containing statistical information, which circulars and answers were deposited with him in his office at the capítol, wilfully destroyed the same before the information so derived was used, tabulated - or embodied in his annual report, it would have presented a different case from that before us. In that case it is possible that said papers might be deemed documents deposited with a public officer by authority of law. But it is very different after the commissioner has used the information contained in such papers. The circulars and answers then become fundus officio, mere waste paper. A paper in my judgment sent to a public officer for a certain purpose, until that purpose is accomplished, may be deposited by authority of law, but when such paper has served its .purpose it becomes of no value. In this case) although it should be deemed that the correspondence of the commissioner until utilized were papers deposited in his office by authority of law for a certain purpose, within the meaning of § 94 of the Penal Code, when the information contained therein was utilized and embodied in the annual report, in the absence of a statute requiring the commissioner to preserve the waste papers of his office, I think such correspondence ceased to-be deposited with him by authority of law.

Counsel calls our attention to the provisions of the Revised Statutes, 1 R S., §§ 50, 51, 52, 53, in reference to the duty of an officer in delivering the books and papers pertaining to his office to bis successor. But the papers a public officer is legally bound to deliver to a succeeding officer are only those he is obliged to file and preserve. If no duty rested upon defendant to preserve the papers in question, he could destroy them, and the provisions of the statute to which appellants refer do not apply.

I do not think the doctrine laid down in the Irish Society v. The Bishop of Derry, 12 Cl. & F., 641-688, referred in Sturla v. Freccia, L. R., 5 App. Cas., 623-642, to which our attention is called by the appellants, is applicable to this case. Had defendant been indicted for destroying his annual report made to the legislature, the cases cited would have been more applicable. The returns of the bishop considered in those cases were like the return of the defendant to the legislature. It is quite evident that the returns of the bishop to writs issued by the crown in the case cited are not like the unsworn statements, either oral or written, made by various persons in the state to the “ Commissioner of Statistics of Labor ” in answer to inquiries to be used by him in making his report to the state.

I conclude that before defendant should be deemed criminally liable, and subject to the severe punishment provided by § 94, supra, imprisonment for five years, for the destruction of the correspondence, which must be deemed under the indictment to have been utilized and tabulated by Mm, there should be a reasonably clear provision of some statute requiring him to preserve the papers accumulated in his office. . As before suggested, the correspondence, having been utilized, seems mere waste paper, and there is no statutory provision, as there is no object for its preservation. Having been used, the law does not require its preservation, and hence after it is utilizedoi¿ is not deposited with a public officer by authority of law.

I think any other construction of the statute would be a strained one. As stated in Lamb v. State, 67 Md., 534: “It is the duty of the courts to interpret and administer the legislative will; but in cases of criminal cognizance they must resolutely determine never to exceed it."

I am, therefore, in favor of affirming the judgment rendered in the court below.

' Order and judgment reversed, and judgment given for the People on the demurrers, with leave to defendants to withdraw the demurrers, and plead to the merits.


source: Caselaw Access Project

author: Ehrlich, Ch. J.

license: Public Domain

text:
    Walter Scott et al., App’lts, v. Napoleon J. Haines, Resp’t.

      (City Court of New York, General Term,

      Filed March 17, 1893.)

    Res adjudicata — Evidence.
    After suing for work and material under a special contract, plaintiff ' brought action for extra work which plaintiff was not bound to include in the former action, and the bill of particulars stated that the extra work was not involved in such action. Held, that plaintiff was entitled under the pleading to prove that the bill for the extra work was due and unpaid, together with any fact or circumstance showing that it was not drawn in issue and passed on in the other action.
    Appeal from judgment entered on dismissal of the complaint, directed-by the trial judge.

      A. G. N. Vermilye, for app’lts; J. D. Quincy, for resp’t.
   Ehrlich, Ch. J.

-The action was once dismissed on the pleadings, but on appeal to the general term a new trial was ordered. See 45 St. Rep., 275.

This meant in effect that the issue, which is one of res adjudicata, must be tried and determined by evidence pro and con.

The former action was for work and material under a special contract

The present action is for extra work, which the plaintiffs were not bound to include in the other action. See Secor v. Sturgis, 16 N. Y., 548.

The bill of particulars served states that the extra work wnsf not involved in such former suit.

The bill of particulars must be regarded as an amplification of the complaint, and it is to be read in connection with it.

So construed, it was quite consistent with the record to prove that the item of extra work was not included in the other action Burwell v. Knight, 51 Barb., 267.

With this view the plaintiff should have been permitted to prove that the extra bill was due and unpaid, together with any fact or circumstance showing that It was not in fact drawn in issue and passed upon at the trial of the other action.

The rulings of the trial judge, diminished in some instances, deprived the plaintiffs of this right, and for this reason the judgment appealed from ought to be reversed and a new trial ordered, with costs to the appellant to abide event.

McG-own and Fitzsimons, JJ., concur.


author: McGown, J.

text:
    Adelaide C. Ide, App’lt, v. J. Franklin Graham, Resp't.

      (City Court of New York, General Term,

      Filed March 17, 1893.)

    False representations — Proof requisite to sustain action.
    An action for false representations cannot be maintained in the absence of proof that the representations were false at the -time they were made, and that defendant knew or had reason to believe that they were false, and intended to .deceive the plaintiff.
    Appeal from a judgment entered upon the dismissal of the complaint at trial term.

      John D. Townsend, for app’lt; Degroot, Rawson & Stafford, for resp’t.
   McGown, J.

The action was brought to recover damages alleged to have been sustained by plaintiff by reason of certain representations made by defendant, which plaintiff alleges were false, and which were falsely and fraudulently and wilfully made by defendant, he at the time knowing them to be such, and made with the intention of deceiving, injuring and misleading the plaintiff, etc. The answer of defendant was, in substance, a general denial.

Plaintiff had á flat for rent at 75 West Fifty-first street, on or about December 12, 1890. She had an application from a lady. Plaintiff agreed to let the flat to the lady, in case her references should prove satisfactory. She gave, among her references, the name of the defendant.

Defendant called upon plaintiff; plaintiff then asked defendant what he knew of said lady. He said: “ That he had known her for many years, and.that she was an able and a responsible woman.”

“ Then I wanted to know if she was a respectable lady ; he said that she was very respectable and was very responsible ; that if he had a house, he would be very glad tohave her as a tenant.

“I. said * if you are what you represent yourself to be, and these people are what you represent them to be, I will let them have the flat.’

“ He said 1 they were literary people; that they wrote for books and magazines, and papers, etc.’ ”

Upon the strength of these representations plaintiff rented the flat, and the tenant took possession.

Upon the trial, evidence was presented upon the part of the plaintiff substantially proving that defendant had made the representations alleged in the complaint

There was no evidence, however, to show that the representations were false at the time they were made, or 'that defendant knew, or had reason to believe that they were false.

There was no evidence of intent on the part of the defendant to deceive.

In Lamb v. Kelsey, 54 N. Y., 645, which was an action to recover' damages for alleged fraud and deceit, it was held: “ That plaintiff was not entitled to recover, without showing that defendant knew or had reason to believe his statements false; that as no evidence was given to support such a finding, it could not be assumed.”

In Meyer v. Amidon, 45 N. Y., 169, which was an action founded upon the fraud and deceit of the defendant in making false representations, the referee found that the representations made by the defendant were false, that the plaintiff was induced by them to give credit to such party, and that damages ensued therefrom to the plaintiff.

It was held that upon the facts found the plaintiff was not entitled to recover.

That such action cannot be maintained, in the absence of proof that he believed, or had reason to believe at the time when he made the representations that they were false, or that he assumed to have, or intended to convey the impression that he had actual knowledge of their truth, though conscious that he had no such knowledge.

Ko such proof was produced herein, and there was no error on the part of the trial justice in dismissing the complaint.

There are no merits in the exceptions taken, and the judgment must be affirmed, with costs to the respondent.

Fitzsimons, J., concurs.


text:
    Simon Levy, Resp’t v. Caroline Ruff, App’lt.

      (City Court of New York. General Term.

      Filed March 17, 1893.)

    Bbokees — Commissions.
    Plaintiff was employed by defendant to sell her property, and produced a purchaser with whom she made a contract, but the sale was not carried out by reason of her inability to convey. Held, that plaintiff had performed lus duty and was entitled to his commission.
    Appeal from judgment entered on verdict in favor of plaintiff.

      Fromme Bros., for pl’ff; D. Leventritt, for resp’t.
   Ehrlich, Ch. J.

The action is to recover brokerage on the sale of a piece of real estate belonging to the defendant

The plaintiff proved that he was a broker, and employed as such by the defendant to effect a sale of her property.

That he introduced to her as a purchaser one Fine, with whom she entered into a written contract to convey.

The writing is informal in its character, yet intelligently contains the price and terms of sale.

That the plaintiff was the procuring cause is conceded, and the proofs sufficiently show that the failure to carry out the sale was owing to the acts of the defendant and not of the purchaser.

But aside from this, the purchaser produced proved satisfactory to the defendant, for she entered into a contract of sale to him.

The broker’s duty ended here, and his right to brokerage became complete.

The jury found for the plaintiff, and the evidence sufficiently sustains their finding. The exceptions are without merit. They relate to what amount of money the purchaser had in banks, and in what banks.

A purchase by a solvent purchaser cannot be defeated by showing the want of ready money at the time of the contract.

Ability at the time of closing the contract is all that is required.

There was no effort to investigate the general financial standing or ability of the purchaser, but merely to ascertain what money he bad in-bank at the time the contract was made, and the onus of proving want of ability was on the defendant Hart v. Hoffman, 44 How. Pr., 168.

The real difficulty in carrying out the contract was the inability of the defendant to convey, because, as she put it, “ the will was so writ that she could not carry it out.”

The broker was not responsible for the difficulty.

Upon the entire case, the verdict was right, and the judgment entered on it should be affirmed, with costs.

McG-own, J., concurs.


author: Fitzsimons, J.

text:
    Theodore Wegener, Resp’t, v. James H. Butler, App’lt.

      (City Court of New York, General Term,

      Filed March 17, 1893.)

    Contbact — Evidence.
    Where the answer in an action upon contract alleges that the one set out in the complaint is not the one actually made, hut that another and different one was entered into and which was not performed, the question as to which was the contract actually made is one for the jury, and it is error to exclude the written contract offered in evidence hy defendant.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      A. G. Vanderpoel, for app’lt; William F. Browne, for resp’t.
   Fitzsimons, J.

This is an action for services rendered and materials furnished under a written contract, and for extra work and materials.

The complainant relies upon a written contract, which he 'annexes to his complaint

The defendant’s answer, among other defenses, alleges that the contract set out by plaintiff is not the one actually made, but that another and different contract was entered into, and which was not performed by plaintiff.

Testimony was submitted by plaintiff tending to show that the contract depended upon by him was the contract made, and that its terms were substantially complied with.

Defendant, on his part, offered in evidence the contract which he contended was the one entered into, and it was excluded by the trial justice.

Certainly, the first question for the jury to determine under the issue herein was:

What was the contract made between the parties hereto ? Was it the one in evidence submitted by plaintiff, or the one offered by defendant ?

To enable them to determine that question both instruments should have been submitted to them, and it then would become their duty to determine under the evidence which one constituted the contract made.

Therefore, the exclusion of the written instrument offered by defendant was error, and for that reason the judgment herein must be reversed, with costs to appellant to abide event of action, and a new trial is ordered.

Ehrlich, Oh. J., concurs.


text:
    Marshall Barber et al., Resp’ts, v. Albert Gray, App’lt.

      (City Court of New York, General Term,

      Filed March 17, 1893.)

    Ooumterclaim: — Failure to prove.
    Where the defendant’s answer presents a sufficient cause of counter-. claim for unliquidated damages, but he fails to submit or offer evidence to show the actual damages, the court is justified in directing a verdict for plaintiff for the amount claimed.
    Appeal from judgment in favor of plaintiffs, entered upon verdict directed by the court.

      Albert Fromme, for app’lt; Billings & Cardoza, for resp’ts.
   Fitzsimons, J.

The defendant’s answer presented a sufficient cause of counterclaim, but the same being for unliquidated damages, he was required to submit evidence showing his actual damages, which, if done in the case, because of plaintiff's failure to serve a reply, would have entitled the trial justice to instruct the jury to deduct the amount of damages so ascertained from the amount claimed by plaintiff, and render a verdict for plaintiff for the balance found díte.

The failure of defendant to submit, or offer to submit, testimony of the character mentioned, justified the trial justice in directing a verdict, as he did, in plaintiff’s favor for the amount claimed.

The fact that he gave a wrong reason does not affect his action, which, as above shown, was right.

Judgment affirmed, with costs.

Ehrlich, Ch. J., and McGown, J., concur.


text:
    Morris A. Meyers, Resp’t, v. Annie Cohn, App’lt.

      (City Court of New York, General Term,

      Filed March 17, 1893.)

    Appeal — Questions brought up por review.
    Where no order is entered denying a motion for a new trial on the minutes, the appeal brings up for review only such errors as were committed on the trial.
    Appeal from judgment entered on verdict in favor- of the plaintiff.

      C. Meyers and R. M. Henry, for app’lt; H. Moses and E. W. J. Johnston, for resp’t.
   Ehrlich, Ch. J.

We have repeatedly enforced the rule, that where no order is entered denying the motion for a new trial on the judge’s minutes, the appeal brings up for review only such errors as were committed at the trial. McArdle v. Smith, 48 St. Rep., 507, and cases cited.

No order was entered in this instance, and the rule must be applied.

The action was for brokerage in selling certain real estate belonging to the defendant.

The case went to the jury on conflicting evidence, and they found for the plaintiff.

No error appears to have been committed during the trial to the prejudice of the defendant, and as the facts are not before us for review we must affirm the judgment, with costs.

McG-own and Fitzsimons, JJ., concur.


text:
    Bernard J. Campbell, Resp’t, v. Juan G. Jimines et al., App’lts.

      (City Court of New York, General Term,

      Filed March 17, 1893.)

    Contract — Employment—Breach.
    Plaintiff was employed by defendants to perform services in the merchant marine, but on arriving at the West Indies was ordered into the Haytian navy, which service he declined to accept. He was willing to perform the service he undertook, but was not afforded facilities for doing so. Held, a breach of the contract on the part of defendants.
    Appeal from a judgment entered on verdict in favor of plaintiff.-

      Tracy, Boardman & Platt, for app’lt; William F. Randel, for resp’t.
   Ehrlich, Ch. J.

There was a clear breach of contract of employment, and the rule of damages was properly applied by the learned trial judge.

The employment contemplated services to be rendered in the merchant marine, instead of which the plaintiff, after he arrived at the West Indies, was ordered into the Haytian navy, a service he very properly declined to accept.

The plaintiff seems to have been ready, able and willing to do all he undertook to do, but was not afforded facilities for performance, and after a struggle succeeded in reaching his home.

There was no meritorious defense and the jury properly found for the plaintiff.

The judgment entered on their verdict must be affirmed, with costs.

Eitzsimoes, J., concurs.


text:
    George Guttroff, App’lt, v. Julius Wallach et al., Resp’ts.

      (City Court of New York, General Term,

      Filed March 17, 1893.)

    Costs — Offer of judgment — Waiver by proceeding to triad.
    A party by proceeding to trial before his time to accept an offer of judgment has expired in effect elects not- to accept the offer, and by such election waives any rights he may have had under the offer.
    Appeal from an order made herein, directing that the defendants, and not the plaintiff was entitled to costs, except that the plaintiff was entitled to his costs and disbursements up to July 23, 1891, the date of the service of the offer of judgment herein.
    As appears by the case on appeal, this action was brought for work, labor and services and materials furnished, amounting to the sum of one hundred and twenty-four and 80-100 dollars ($124.80), with interest from May 19, 1891.
    The answer was not served until July 23, 1891, and was a general denial.
    On the same day an offer of judgment was served, offering to allow the plaintiff to take judgment in the sum of seventy-four and 80-100 dollars ($74.80), with interest from May 19, 1891, together with costs, etc.
    This offer of judgment was retained by the plaintiff, and never returned on any ground.
    On the 7th day of December, 1892, an order was made granting leave to the plaintiff to amend his complaint, without prejudice to the pleadings already had, and an amended complaint was served, and on December 2, 1892, another offer of judgment was served, and an answer to the amended complaint was served, admitting the claims set forth in the first paragraph of the amended complaint, amounting to seventy-four and 80-100 dollars ($74.80) and denying as to the second cause of action, wherein plaintiff claimed fifty dollars ($50.00).
    _ The case was duly tried on December 12, and resulted in a verdict in favor of the plaintiff for eighty-one and 90-100 dollars ($81.90), the amount claimed in the plaintiff’s first cause of action, and the amount and interest thereon for which defendant offered judgment, and upon the second cause of action in a verdict for the defendant.
    On the same day, December 12, and after the rendition of the verdict herein, plaintiff’s attorney served a full bill of costs, and also a written acceptance of defendant’s offer of judgment for seventy-four and 80-100 dollars ($74.80) and interest, made on December 2.

      The plaintiff had his full bill of costs taxed by the clerk, at the sum Of ninety-six and 25-100 dollars ($96.25), while the defendant’s attorney had his full bill of costs taxed at seventy and 92-100 dollars ($70.92).
    Upon a motion made for a re-taxation of said costs an order was made on December 17, 1892, wherein it was,
    “ Ordered, That' the defendants herein, and not the plaintiff, are entitled to a bill of costs, which the clerk of this court .is hereby directed to tax.
    “ It is further ordered that the plaintiff is not entitled to a bill of costs herein, and is only entitled to costs and disbursements up to July 23, 1891, the date of the service of the offer of judgment herein.”
    On December 21, 1892, an order was made resettling and amending the above order as follows :
    “ It is ordered, that the said order be and the same is hereby resettled and amended by inserting therein, after the word ‘ on,’ on the eleventh line, the words 1 reading the summons and complaint, the offer of judgment, dated July 23, 1891, the answer, the amended complaint, amended answer, the offer of judgment, dated December 2, 1892, extracts of minutes, and the acceptance of offer verified on and served on the 12th day of December, 1892.’ ”
    From these orders plaintiff appeals.

      Herman Bolte, for resp’t; Maurice Meyer, for app’lts.
   McGown, J.

The plaintiff had ten days after the service of the second offer of judgment, made on December 2, within which to serve a written notice of his acceptance of said offer, and upon such acceptance he could have entered his judgment for the amount of his first cause of action, seventy-four and eighty one-hundredth dollars ($74.80), interest thereon and costs up to the time of the offer, without application to the court, and without a trial.

The case appeared upon the day calendar for December 6th.

Plaintiff answered ready, and insisted upon the case being tried, and the case was actually tried on December 12th, having appeared daily upon the day calendar, and a verdict was rendered for the plaintiff on his first cause of action, and for the defendant on the second cause of action.

The plaintiff, by proceeding to a trial, did not obtain a more favorable judgment than that offered him by the defendant.

He evidently delayed the acceptance of the second offer of judgment until his full time for acceptance had expired, and after verdict rendered, trusting to obtain a more favorable verdict than that rendered.

In all cases of offer of judgment, a plaintiff has ten days wherein to elect whether he will accept it or not, or he may proceed to trial.

By proceeding to trial, before his time to accept had expired, he in effect elected not to accept the offer, but evidently intended to take the chances of obtaining upon a trial a more favorable judgment than that offered.

We do not think that it was intended by or that it is within the meaning of section seven hundred and thirty-eight (§ 738) of the Code, that a plaintiff should have the right to avail himself of the benefit of an acceptance of an offer of judgment and a trial at the same time.

By electing to bring on the cause for trial before his time to accept had expired, he waived all rights he may have had under the offer.

The plaintiff not having obtained a more favorable judgment than that offered before trial, is not entitled to any more costs than he would have been entitled to had he accepted the offer, viz., costs only up to the time of the offer, December 2d, while the defendant is entitled to costs from that time, December 2d.

1 The order appealed from must be modified so as to conform to above opinion, and as so modified will be affirmed, with costs.

Ehrlich, Ch. J., and Fitzsimons, J., concur.


author: McGown, J. Fitzsimons, J. (dissenting.)

text:
    Oscar Compton, Resp’t, v. Henry E. Bowns, App’lt.

      (City Court of New York, General Term,

      Filed March 17, 1893.)

    Limitation — Payment.
    In an action for an alleged balance due to plaintiff the answer alleged payment in full and set up the statute ot'limitation. To take the case out of the statute reliance was placed on a payment made in 1882, which defendant claimed was a payment in full. The court refused to dismiss on that ground, and charged the jury that such payment would not operate to take the claim out of the statute unless it was made as a part payment of a larger debt, and if it was a payment only of the precise sum admitted to be due by the plaintiff, it would furnish no evidence of a promise to pay any larger or different sum. Held, that the. jury by their verdict in favor of plaintiff necessarily passed upon this question in his favor, and ’ that the action having been commenced six years from the date of such payment was brought in time.
    (Fitzsimons, J., dissents.)
    Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial.

      Hyland & Zubriskie, for resp’t; Putney, Bishop & Slade, for app’lt.
   McGown, J.

The action was brought to recover the sum of six hundred and forty-eight 28-100 dollars ($648.28), being a balance claimed by him to be due from defendant, for services rendered as agent or broker, in the sale of certain cargoes of coal, between the 3d day of April, 1879, to or about the 18th day of August, 1881.

It appeared from Schedule A., forming part of the complaint, that the total amount of the commission claimed during the above period was the sum of........................... $9,366 56 And from Schedule B. that the total amount of pay-

ments made was the sum of................... 8,718 28

Leaving the balance as claimed by plaintiff, of .. $648 28

It also appeared by said Schedule B. that the last payment made by defendant was made on the 7th day of June, 1882, amounting to $366.42.

• The defense set up by the answer was that the coal was consigned to the plaintiff for sale, upon the agreement that the plain - tiff should sell the same as the agent of the defendant, receiving for his commissions and compensation such sums as he might obtain upon the sales, over and above the sums the various cargoes were invoiced at to him, and that plaintiff in consideration thereof guaranteed to the defendant that defendant should receive in any event the whole amount of said invoiced prices, and ihat any losses, by reason of nonpayment or otherwise, should be borne by the plaintiff.

Defendant, in his answer, also alleged that he had paid plaintiff in full before the commencement of the action, and that the cause of action set up in the complaint did not accrue within six years before the commencement of the action.

And further sets up as a counterclaim moneys claimed to be due from plaintiff for coal consigned to plaintiff, and not paid for to defendant.

Upon the trial it was conceded that:

Plaintiff’s sales or commissions amount to.......... $9,168 41

And that the conceded payments amount to........ 8,748 28

Leaving the amount claimed by plaintiff, exclusive of interest, of.................................. $420 13

And six items in dispute amounting to............ 474 58

Upon which six items evidence was given upon the trial, on the part of both plaintiff and defendant

Defendant, in his brief submitted, as stated therein: “ rests his right to a new trial exclusively upon the rulings of the court, respecting the application of the statute of limitations.’’

After the plaintiff had- rested, defendant’s counsel moved to dismiss the complaint, upon the ground that the claim of plaintiff was barred by the statute of limitations; that the amount paid by defendant to plaintiff, on June 7, 1882, of $366.42, was a payment in full, and not a part payment on account to take the debt out of the statute of limitations, and which motion was renewed at the close of the case; which motions were denied; to which rulings defendant excepted.

The issues of fact thus presented by the evidence for submission to the jury were as to the terms of the employment of the plaintiff by the defendant, and as to the amount for which plaintiff was entitled to recover.

These issues were fully and fairly submitted to the jury by the trial justice in his charge, who also at the request of defendant further charged: “That the payment made June 7, 1882, would not operate to take the plaintiff’s claim out of the operation of the statute of limitations unless it was made as a part payment of a larger debt due from the defendant to the plaintiff, and if it was a payment only of the precise sum admitted to be due by the plaintiff, its payment would furnish no evidence of a promise to pay any larger or different sum out of the operation of the statute of limitations;” thus submitting a further issue to be passed upon, viz.: whether the payment of $366.42 made June 7, 1882, was made as a part payment of a larger debt, or as a payment in full.

The burden of proof was upon the defendant, payment in full having been set up as an affirmative defense in the answer; all the evidence as to the accounts between the parties, as to payment, and as to the alleged counterclaim, was before the jury, and in rendering their verdict in favor of the plaintiff they found in plaintiff’s favor upon all the issues submitted, including therein that the payment of J une 7, 1882, “ was made as a part payment of a larger debt,” and not a payment in full.

The presumption is that the jury fully understood the charge of the trial justice; that they considered it in determining upon their verdict, and that they carefully and honestly discharged their duty.

The trial justice clearly, in substance, instructed them that unless the payment of June 7th was made as a part payment of a larger debt, that the plaintiff could not recover.

It is conceded that the last payment was made by the defendant on June 7, 1882, and that the action was commenced on June 7, 1888.

The statute of limitations does not begin to run until after the date of the last item proved on the account of either side. Code, § 386. See, also, Green v. Disbrow, 79 N. Y., 1; Davison v. Budlong, 40 Hun, 247; Lawrence v. Harrington, 122 N. Y., 415; 33 St. Rep., 717.

The action, having been commenced on the day of the last payment, was commenced in time.

The only exceptions taken herein were upon the rulings of the trial justice in denying defendant’s motion to dismiss.

Such rulings were correct, and there is no merit in the exceptions.

The jury having found in favor of plaintiff upon the evidence submitted, we see no reason why we should disturb their verdict, and we think the verdict was fully justified by the evidence.

The judgment and order appealed-from must be affirmed, with costs to the respondent. ¡,

Ehrlich, CE. J., concurs.

Fitzsimons, J. (dissenting.)

The testimony of plaintiff shows that on February 15,1882, a statement of the business dealings between plaintiff and defendant was submitted by defendant to plaintiff, and showed a balance due plaintiff, according thereto, of $359.64.

This amount, defendant claimed, was the full sum due plaintiff, and in pursuance of such claim, on June 7, 1882, the defendant paid plaintiff the sum of $366.42, being said sum of $359.64, with interest from February 15th to June 7, 1882; and said payment, it is contended, was a part payment of a larger sum which plaintiff claimed was due him by defendant, and, therefore, was not barred because of such alleged part payment by the statute of limitations from recovering the balance due.

In oi'der to take a claim out of the statute of limitations by a part payment it must appear that the payment was made on account of the debt for which the action is brought, and it must appear further that the payment is made as a part payment of a larger debt-, because the principle upon which a part payment takes a case out of the statute of limitations is that it admits a larger debt to be due at the time of the part payment. 53 N. Y., 444.

The above is the rule of law which must decide this appeal, and the question is “Did the payment of $366.42 on June 7th take plaintiff’s claim out of the statute ? In my opinion it certainly did not.

The payment was based upon the account which defendant handed to plaintiff on February 15th prior, and that statement conceded no larger indebtedness than $359.64 and, therefore, cannot be called a part payment of a debt. It was the payment of the whole debt with interest according to defendant’s contention, and if that statement was not satisfactory to plaintiff he should have rejected the same and refused to accept the said payment thereunder.

He had no legal right to accept said sum and apply it on account of the sum which he claimed to be due and call it a part payment thereof.

Such an act cannot relieve his debt from the effects of the statute.

Where a debtor pays part of his debt the debt is by a legal presumption renewed and made to date from the time of the part payment.

How can any such presumption be indulged in here ? Because defendant expressly declared that there was nothing further due and that the payment he made was a discharge of the full debt.

The motion made to dismiss the complaint should have been granted.

It was error to deny it, and at least a new trial should be ordered, with costs to the appellant to abide the event.

Judgment and order affirmed, with costs.


author: McGown, J. Fitzsimons, J. (dissenting).

text:
    Henry J. Bornstein, Resp’t, v. Mordecai Kaufman, App’lt.

      (City Court of New York, General Term,

      Filed March 17, 1893.)

    jBilm and notes — Ibbegtolab indoesement.
    Defendant indorsed the note of another person before it was delivered to the payee, who thereafter indorsed and transferred it to plaintiff. Before taking it plaintiff called on defendant and inquired as to his indorse.ment and whether the note was good, and was told it would he all right when due. At maturity the note was protested. Held, sufficient to authorize a judgment against defendant as indorser.
    (Fitzsimons, J., dissents.)

      Appeal from a judgment entered upon the verdict of a jury by direction of the court, and from an order denying a motion for a new trial.

      George B. Stoddart, for resp’t; Louis Steckler, for app’lt.
   McGown, J.

One Harriet Edwards, hereinafter named, was made a party defendant in this action ; she was not served, however, and the action was defended solely by the above named defendant.

On or about September 1, 1891, said Harriet Edwards made her promissory note in writing, in and by which she promised to pay, forty-five days after date, at 156 West Fifty-fourth street, to the order of Annie Allen, $250, for value received, with interest.

After the making of the note, the above named defendant indorsed the note, and the note, so indorsed by the defendant, was delivered to the said Annie Allen, the payee named therein.

Thereafter the said Annie Allen, the payee, duly indorsed said note, and for value received and before maturity duly delivered the note to the plaintiff.

When the said note became due and payable, the same was duly presented for payment, payment demanded and refused, whereupon said note was duly protested for non-payment against the maker and above named defendant and others as indorsers, and this action was then brought to recover thereon.

The answer of the defendant was, in substance, a general denial.

The plaintiff testified that he is the owner of the note; that he obtained it about October, 1891; that he saw the defendant in respect to the note the day previous to his accepting it and before the maturity of the note; that he had a conversation with the defendant; that he asked Mr. Kaufman, “ Is this your indorsement on this note?” Then he showed him the note; that Kaufman answered, “ Yes, sir, this is my indorsement;” that he (plaintiff) said, “ The party that has this note wants me to take it as money, and if I take it, will it be all right?” That defendant said it would be all right when it comes due.

That defendant said: “ There is another one besides this, and if you will come up to my house to-night, I will fix it up with you,” and another one was due ; that he took the note, but it was not paid at maturity.

A certificate of a notary public was offered and admitted in evidence, certifying that on the 19th day of October, 1891, the note was presented at 156 West Fifty-fourth street, and payment thereof demanded and refused; that the said note was thereupon duly protested for non-payment against the drawer and indorsers, including the defendant, and that on the same day he duly served by mail notice of protest to the defendant Kaufman.

Plaintiff also testified on cross-examination that he went to the defendant to see if he was responsible for the note; to see if he was good.

It is claimed on the part of the appellant that Annie Allen, the payee, was the first indorser, and that she could only transfer to the plaintiff, by her indorsement, such rights as she had.

That as she could not recover from, the defendant, as second indorser, she could not by her indorsement, made after defendant’s indorsement, give any right to the plaintiff to recover of the defendant.

The appellant’s contention is not supported by Bacon v. Burnham,, 37 N. Y., 614, cited in his brief, as that case holds only : “ That where the second indorser is not made liable to the maturity and non-payment of the note, no act or indorsement of the payee subsequent to the maturity of the note can render the second indorser liable."

Annie Allen, the payee, indorsed the note after the defendant, but before its maturity.

The defendant at maturity had notice of the non-payment of the note, as appears by the notary’s certificate of protest, which by § 923 of* the Code of Civil Procedure, “ is presumptive evidence of the facts certified unless the party, against whom it is offered, has served upon the adverse party, with his pleading or within ten days after joinder of an issue of fact, an original affidavit, to the effect that he has not received notice of * * non-payment of the note or bill.

“A verified answer is not sufficient as an affidavit, within the meaning of this section.” No such affidavit was served herein. The defendant Kaufman was what may be termed an irregular indorser.

Evidence that defendant wrote his name on the back of the note before its delivery to the payee, without any extrinsic evidence of intention in so doing, raises a legal, but not a conclusive, presumption that he did so for the payee’s accommodation, intending to become indorser subsequent to the payee; that he knew the indorsement of the payee must be given before the note could become operative, and indorsed the note on that understanding. See Coulter v. Richmond, 59 N. Y., 478.

As between the parties and those subject to their equities, evidence is competent to rebut this presumption, by showing that the indorsement was made to give the maker credit to the payee. Id., 59 N. Y., 478.

Bornstein, the plaintiff, called upon the defendant before the maturity of the note, showed him the note; defendant told him it was his indorsement; plaintiff then told him that the party who had it wanted him to take it as money, and asked him (defendant) if he (plaintiff) took it “ will it be all right ?”

That defendant said “"It will be all right when it becomes due.”

Plaintiff further testified that he went to the defendant to see if he was good.

He evidently took the note upon the credit of defendant’s indorsement, and defendant, evidently, by the statements made by him, intended to let the plaintiff know that he would be responsible for the note; otherwise, what difference would it have made to the plaintiff whether the defendant was a responsible man or not. o

Defendant knew that his indorsement upon the note was made by him to give the maker credit, for he had indorsed other notes of the maker in the same way.

He testified that “ there is another one besides this, and if you. will come up to my house to-night, I will fix it up with you.”

We find no error in the rulings of the trial justice, and the judgment and order appealed from must be affirmed, with costs.

Ehrlich, Oh. J., concurs.

Fitzsimons, J. (dissenting).

The plaintiff should not have recovered judgment unless the testimony showed that he relied upon the indorsement of Kaufman as a surety, and that it was placed upon the note to give it credit, otherwise he was an accommodation indorser, and known to be such to plaintiff, and not liable upon the note in question.

There is no testimony submitted that, in my judgment, meets the legal requirements in the case.

The judgment should be reversed and a new trial ordered.

Judgment and order affirmed, with costs.


author: McCarthy, J.

text:
    The Equitable Bank, Resp’t, v. Peter J. Claassen, App’lt.

      (City Court of New York, General Term,

      Filed March 25, 1893.)

    Evidence — Counterclaim.
    In an action by a bank upon promissory notes, the answer admitted the claim, and counterclaimed for an alleged balance on deposit of $4,000, and that a part of the money had been deposited under an agreement that plaintiff would sell defendant certain stock, which he had not received. The reply denied the counterclaims, but admitted that there was a balance of $400 on deposit. Held, that defendant had the affirmative, and was confined to proof of the counterclaims alleged in the answer, and that evidence of matters not embraced in such counterclaims was properly excluded.
    Appeal from judgment in favor of plaintiff, entered upon verdict directed by the court, and from order denying motion for a new trial on the minutes.

      H. M. Hitchings, for app’lt; C. F. MacLean, for resp’t.
   McCarthy, J.

This is an appeal from a judgment entered on a verdict directed by the court, and from an order denying a motion for a new trial upon the minutes. The action was brought to recover the amount of two promissory notes for eleven hundred and fifty dollars ($1150), and seven hundred and fifty dollars ($750), respectively, made by the defendant payable to his own order and indorsed by him.

The amended answer admitted all the allegations 6f the complaint, but set up by way of defense that the defendant had “ deposited with the plaintiff various and large sums of money upon the understanding and agreement between the plaintiff and defendant that the defendant might check against and withdraw the same at his pleasure, ” and that there was a balance of four thousand three hundred and sixty-five and seventy-four one-hundredths dollars ($4,365.74), deposited with the plaintiff to the account of the defendant.

And the defendant alleged further that two thousand five hundred dollars ($2,500) of his deposits with the plaintiff was paid under an alleged agreement, by which the plaintiff was to sell and deliver to the defendant one hundred (100) shares of its capital stock, and a surplus of twenty-five thousand dollars ($25,000), was to be created for the purpose of making that stock worth twelve thousand and five hundred dollars ($12,500), and that the defendant has not received said shares or any consideration of his said payment.of two thousand and five hundred dollars ($2,500).

The plaintiff replied to this by denying that there was with it a balance of four thousand three hundred and sixty-five and seventy-four one-hundredths dollars ($4,365.74), to the credit of the defendant, and denies the defendant's allegation in the second counterclaim as to the payment of two thousand five hundred dollars ($2,500), but alleges that there is now on deposit with this-plaintiff and the property of the defendant, the sum of four hundred and seventy-nine and fifty one-hundredths dollars ($479.50), 'and no more.

On the trial of the action, the plaintiff and defendant are bound by the pleadings in the case, because these present the issues involved and bind and limit the parties in the trial.

No other issues can be presented or tried unless by an amendment of the pleadings.

No such motion was made in this case.

What were the issues thus presented here ? First, the admission of the plaintiff’s cause of action placed the affirmative on the defendant, and the defendant could only present such facts as were raised by the allegations in the amended answer.

He was confined to the proof of his counterclaims and no-other. "If. he had any other counterclaim, or defense, - or desired to present it, it was his duty to move for an amendment of his answer, either at the special term or at the trial.

Notxhaving done so, he must take the consequences. It was-here where we think the defendant made his mistake.

From an examination of the case it is clear that the defendant desired to introduce evidence of matters which was not permissible under the pleadings, and the trial justice was, therefore, correct in ruling out evidence of matter not embraced in the counterclaims set forth in defendant’s amended answer.

At the close of the case the plaintiff’s counsel moved to dismiss the counterclaims, and the defendant’s counsel moved to direct a verdict for the defendant.

This then left the questions of fact to be determined by the court.

No request was made by the defendant to be permitted to go-to the jury.

We have examined the evidence in the case, and find no error, except that it does appear from the plaintiff’s reply to the amended answer that he admits that at the time of the commencement of the action, there was on deposit with the plaintiff and the property of the defendant the sum of four hundred and seventy-nine dollars and fifty cents ($479.50), and no more.

This, it seems to us, ought to be allowed to the defendant, Straus v. Tradesmen's National Bank of New York, 122 N. Y., 382; 33 St. Rep., 638, and should be deducted from the amount of the verdict.

The judgment as so reduced should be affirmed, with costs.

McG-own and Van Wygk, JJ., concur.


text:
    The Equitable Bank, Resp’t, v. Peter J. Claassen, App’lt,

      (City Court of New York, General Term,

      Filed March 25, 1893.)

    Appeal from judgment in favor of plaintiff.

      H. M. Hitchings, for app’lt; G. F. MacLean, for resp’t.
   McCarthy, J.

This judgment is affirmed on the opinion in action 1, except that in this action the plaintiff, in his reply to the defendant’s answer, admits that at the time of the commencement of this action there was on deposit with the plaintiff a balance to the credit of the defendant, and the property of the defendant, the sum of five hundred and twenty-nine dollars and fifty cents ($529.50).

This, it seems to us, ought to be allowed to the defendant, and should be deducted from the amount of the verdict in this case. Straus v. Tradesmen's National Bank of New York, 122 N. Y., 382; 33 St. Rep., 638.

The judgment as so reduced should be affirmed, with costs.

McG-own and Van Wyck, JJ., concur.


author: Giegerich, J.

text:
    John T. Hunt, Pl’ff, v. Alice Kingston et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed April 1, 1893.)

    Descent — Collateral relatives.
    The real estate of a person dying intestate and leaving no relatives nearer in degree than the descendant of a granduncle, grandaunts and descendants of grandaunts, passes to such descendant of the granduncle to the exclusion of grandaunts and their descendants.
    Motion to confirm the referee’s report in proceedings relative to surplus moneys arising on the sale of mortgaged premises.
    The matter was referred to Richard M. Henry, Esq., referee, who, among other things, found as findings of fact: “ Third. That John J. Bradley, in his lifetime, was the owner in fee of the premises foreclosed in this action; and on his death, in August, 1891, left him surviving the following relatives: Alice Kingston and Catherine Smith, grandaunts, and who were the sisters of John J. Bradley’s paternal grandmother; also, Edward J. McGrough (sometimes called Edward McGrough), the son of Patrick McGrough, a granduncle who was a brother of John J. Bradley’s paternal grandmother also, James McCusker (sometimes called McCloskey), Mary Cavanaugh (or Cavanagh), and Sarah Ann Finnan, children of Rose McCusker, a grandaunt, who was a sister of John J. Bradley’s paternal grandmother. That said Sarah Ann Finnan died leaving her surviving her husband, Hugh Finnan, and five children, Lawrence Finnan, James Finnan, Mary Ann Finnan, Rose Finnan (wife of William J. Godfrey), and Julia Finnan; also, Margaret Healy and Mary Colby, the daughters of Margaret Trainor, a grandaunt who was a sister of John J. Bradley’s paternal grandmother; and, also, James O’Neill, John O’Neill and Edward O’Neill, the sons of Ann O’Neill, a grandaunt, who was a sister of John J. Bradley’s paternal grandmother. That all the said grandaunts of the deceased John- J. Bradley, -except Alice Kingston and Catherine Smith, are dead, and that the said granduncle, Patrick McGough, is dead.
    “ Fourth. That there are no other living .relatives of the said John J. Bradley, deceased, than those above referred, to.

      “ Fifth. That the said Edward J. McGough was the only son ■of Patrick McGough, who was the only son of Edward Mc-Gough, father of the paternal grandmother .of the said John J. Bradley, deceased.
    “ Sixth. That the said John J. Bradley was unmarried, and died, leaving him surviving no child or adopted child or children, and no descendant of any child or adopted child; no brother or sister, and no descendant of any brother or sister; no father, no mother, no uncle or aunt, and no descendant of any uncle or aunt, and ho relatives except as above set forth.”
    And as conclusions of law:
    ll I. That said Edward J. McGough (otherwise called Edward McGough) is the only heir at law of the said John J. Bradley, ■deceased, entitled to inherit the said surplus money.
    “ II. That there is due and owing to said Edward J. McGough (otherwise called Edward McGough), one of the claimants to the surplus money in this action, the whole amount of the said surplus, viz. : the sum of $2,214.43, less the costs and expenses of this reference.”
    Exceptions to the report of the said referee were filed by the guardian ad litem, for the infant defendants to- the fourth finding ■of fact and the first and second conclusions of law. The exception to the fourth finding of fact was withdrawn before" argument •on the exceptions was heard. The referee’s report is accompanied by an opinion, wherein he holds that under the circumstances the inheritance shall descend according to the course of the common law, and that Edward J. McGough, the sole heir at law of Patrick McGough, granduncle of the deceased, takes the whole inheritance or surplus money to the exclusion of his surviving grandaunts and the descendants of deceased grandaunts.
    The other material facts are stated in the opinion.

      Henry A. Gumbleton, for the defendants Alice Kingston and others; Johnston & Johnston, for Lewis Johnston, guardian ad litem for the infant defendants.
   Giegerich, J.

The only relatives.whom the intestate left him ■surviving are collaterals; and they are so remote that the inheritance descends according to the course of the common law, R. S., title Y. part 2, chap. 2, § 16; 4 R. S. (Banks Bros.), 8th ed., p. "2466; 4 Kent’s Com., 13th ed., 411. The principal question presented for solution is whether the second general rule or canon of the common law, that male issue shall be admitted before the female, still applies to a remote case of collateral kinship in this state. It is claimed on behalf of the infant defendants who are the descendants of deceased grandaunts of the intestate, that this rule or canon does not prevail in the United States; and the editors’ footnotes to Chase’s Blackstone’s Com., 385, 397; Williams on Beal Property, 2 Am. ed., 106; 3 Washburn on Beal Property, 5th ed., 12, are cited in support of this contention. The learned editors do not, however, refer us to any statute or other authority, and these notes, therefore, are practically of no value. Although the common law rule that males shall be admitted before females has been superseded in certain cases in this state, yet it still obtains in cases of remote collateral kinship, 4 Kent’s Com., 13 ed., 411, of which the case under consideration presents a remarkable example. It is fair to presume, under the circumstances, that the remarks of the editors in question were intended to apply only to such cases where the rule giving a preference of males has been superseded by express legislative enactment, and that they did not have in view a case where the intestate left him surviving only the issue of a granduncle, grandaunts, and the issue of a deceased grandaunt. A careful examination of the Bevised Statutes relative to the descent of real property shows that the rule referred to has been superseded only in cases where the right to succeed to the inheritance is expressly given by statute. But the innovation so far as it relates to collateral kinship has not been carried farther than to the descendants of brothers’ and sisters’ children to the remotest degree; to the brothers and sisters of the father of the intestate, and their descendants, and then to the brothers and sisters of the mother of the intestate, and their descendants; or to the brothers and sisters of both father and mother of the intestate, and their descendants, according to the various ways in which the estate may have been acquired, 4 B. S., Banks Bros., 8th ed., 2463 to 2467; 4 Kent’s Com., 13th ed., 411. The rights of greatuncles and greataunts and their descendants are laid down by Bemsen in his very handy work on Intestates’ Succession in New York, in the following language : “Great-uncles and greataunts inherit no portion of the real estate of a deceased if such deceased leaves any descendant, parent, brother, sister, descendant of a brother or sister, uncle, aunt, or descendant of an uncle or aunt. If the deceased leaves a widow, the real estate is taken subject to her rights. If the deceased leaves a husband, to whom a child was born alive, the real estate is taken subject to the husband’s right .of curtesy. Where greatuncles and aunts are not excluded as above, they inherit according to the course of the common law. The common law rules or canons of descent, as given by Sir William Blackstone in the second book of his Commentaries, are .as follows:

“ I. The first rule is, that inheritances shall lineally descend to the issue of the person who last died actually seized, in infinitum ; but shall never lineally ascend.

“ II. A second general rule or canon is, that the male issue shall be admitted before the female.

“III. A third rule or canon of descent is this: that where there are two or more males, in equal degree, the eldest only shall inherit; but the females all together.

“ IY. A fourth rule or canon of descent is this: that the lineal descendants, in infinitum, of any person deceased shall represent their ancestor; that is, shall stand in the same place as the person himself would have done had he been living.

“ Y. A fifth rule is, that on failure of the lineal descendants, or issue of the person last seized, the inheritance shall descend to his collateral' relations, being of the blood of the first purchaser subject to the three preceding rules.

“ YI. A sixth rule or canon therefore is, that the collateral heir of the person last seized must be his next collateral kinsman of the whole blood.

“VIL The seventh and last rule or canon is that in collateral inheritances the male stocks shall be preferred to the female, that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near, unless where the lands have in fact descended from a female.” Remsen’s Intestate Succession, 2nd ed., 100-102. 1

Chancellor Kent, in referring to these peculiar features of our law of descents, says : “ It is a matter of some surprise that the revised statutes of New York did not proceed, and in cases not provided for follow the example of the law of descents in most of the states of the union, and direct the inheritance to the next collateral kindred, to be ascertained, as in the statute of distribution of the personal estate of intestates, by the rules of the civil law. Instead of that, we have retained in New York, in these remote cases, the solitary example of the application of the stern1 doctrine and rules of the common law.” 4 Kent’s Com., 13th ed., 411. And the learned commentator also furnishes us with the reasons why they have not been altered, in these words : “The claims of such remote collaterals are not likely to occur very often; and as the stream of the natural affections, so remote from the object, must flow cool and languid, natural sentiments and feelings have very little concern with the question.” id. 411.

Inasmuch as the common law rules or canons of descent still apply in cases where granduncles and grandaunts and their descendants inherit from the intestate, it follows that the referee was correct in his conclusions that Patrick MeGough under rule two takes the whole of the inheritance to the exclusion of his sisters and their descendants; and also, that Patrick MeGrough being dead leaving Edward J. MeGrough his sole heir at law, the said Edward J. McGough, under rule four, takes the whole inheritance or surplus money to the exclusion of the decedent’s surviving grandaunts and the descendants of the decedent’s deceased grandaunts.

The referee’s report is, therefore, confirmed.