author: Beadley, J.:

text:
    WILLIAM B. STERRETT and Others, Respondents, v. THE THIRD NATIONAL BANK OF BUFFALO, Appellant.

      Mrm — when deemed to he insolvent, although the amount of its assets exceeds its liabilities — the right of a sheriff to levy upon the interest of one partner in firm assets and sell the same is not settled.

    The plaintiffs, wlio were engaged .as partners, in carrying on the business of producers of and dealers in petroleum oil at Titusville, in the State of Pennsylvania, in September, 1882, gave their notes for $7,500 and $2,000, respectively, to the defendant bank, and as collateral security deposited pipe line certificates. On-the 8th day of December, 1882, the defendant, which then held twelve of these certificates, each representing 1,000 barrels of oil, caused an attachment to bo issued against the property of the plaintiff Sterrett, and a levy to be made thereon, in an action brought by it against Sterrett upon his individual note, and thereafter recovered a judgment therein and caused an execution to be issued thereon under which the pipe line certificates were sold. On December eleventh the plainliffs paid their notes and demanded the possession of the certificates of the defendant, which refused to deliver them. The fact in controversy upon the trial of this action, brought by the plaintiffs to recover damages for the conversion of the certificates, was whether or not- the firm was, at the time of the attachment, solvent or insolvent, it being conceded that if it was then insolvent Sterrett had no leviable interest in the certificates.
    Upon the trial evidence was given tending to prove that the partnership debts on the 8th and 11th days of December, 1883, amounted to $100,085'.35,and its assets consisted of 89,00(3 barrels of petroleum oil and $331.34 in accounts, and that nearly, or quite all, the certificates for the oil were hypothecated as security for the payment of its debts. The lowest price of oil on the eighth and the highest on the eleventh of December would have made the value of the oil about equal to the firm liabilities, but after that, during the month, the prices would have made it less.

      Held, that as the amount in which the firm assets, if sold on the day of the levy, would have exceeded their liability, was comparatively small and fluctuating from day to day; and as even this sum was not available to the firm, as the certificates were held by various banks as collaterals on account of the commercial paper ■ of the firm, that the firm should not be treated as solvent so as to furnish an interest in Sterrett, subject to and sufficient to support the levy of the attachment. A person is deemed insolvent who, at the time in question, is unable to pay his debts in the ordinary course of business (Per Bradley, J)

      Shone v. I/ucas (3 Dow. & By., 318); Thompson v. Thompson-(4 Cush., 137); Leev. Kilburn (3 Gray, 594-600); Herrick v. Borst (4 Hill, 650), cited.
    This court then stated that it had proceeded to the above conclusion upon the merits of this case,upon the theory of the parties upon which the action was tried at the circuit and argued at the General Term, that if the firm was shown to have been insolvent on December 8, 1883, the plaintiffs were entitled to recover, otherwise not, without expressing what views might otherwise have been entertained in respect to the remedy sought by the action, and added that it was proper to say “ that, for the purposes of an action like this one and in its support, the question is not satisfactorily settled by authority.” (Per Bradley, J., who cites, examines, distinguishes and'criticises the cases in this and other States bearing upon this question.)
    Appeal by tbe defendant from an order of tbe Circuit Court of Erie county, denying a motion for a new trial made upon tbe minutes.
    Tbe cause of action alleged was for tbe conversion of four certificates of tbe United Pipe Line Company, eacb representing 1,000 barrels of patroleum oil. Tbe answer puts in - issue the material allegations of tbe complaint and alleges, by way of justification, tbe levy of an attachment upon tbe interest of tbe plaintiff Sterrett, tbe recovery of a judgment against him and a sale by virtue of an execution issued thereon. It appeared that tbe plaintiffs were partners engaged in tbe business of producers of and dealers in petroleum oil at Titusville, in tbe State of Pennsylvania; that in September, 1882, they gave their notes for $7,500 and $2,000, respectively, to the defendant, and as collateral security for their payment deposited with it Pipe Line certificates, that on the 8th day of December, 1882, the defendant held as such collateral twelve of those certificates representing 1,000 barrels of petroleum oil each. On that day the defendant caused the levy thereon of an attachment against the property of the plaintiff Sterrett issued in an action iii its behalf .against him upon his note; on December eleventh the plaintiffs paid their notes,held by the defendant and demanded of it the possession of the twelve certificates, which the defendant refused to deliver. And on the fifteenth day of December eight of the certificates were delivered to the plaintiffs pursuant to an arrangement then made,, whereby it was agreed that the interest of Sterrett in the twelve should be treated as embraced in' the four certificates not delivered, without prejudice to any rights of the plaintiffs in respect to the latter. The defendant afterwards recovered judgment in its action against Sterrett and caused the four certificates to be sold by the sheriff by virtue of execution upon such judgment. This action was brought for the alleged conversion of those certificates and on the trial the plaintiffs recovered judgment for the damages resulting from such conversion.

      Adalbert Moot, for the appellant.

      G. D. Murray, for the respondents.
   Beadley, J.:

The proposition in controversy at the trial was whether Sterrett had any interest in the certificates in question at the time the attachment was levied, which depended upon the question of fact submitted to the jury whether the plaintiffs’ firm was solvent or insolvent. Because the copartnership as such had rights and interests distinct-from-■those-of the 'several members, -and they severally had no individual interest except in a surplus that should remain after adjustment and settlement of the partnership affairs. And if the firm was insolvent, the member Sterrett had no interest in the firm property. (Staats v. Bistow, 78 N. Y., 264; Menagh v. Whitwell, 52 id., 146; Morss v. Gleason, 64 id., 204; Tarbell v. West, 86 id., 280.) And the right of property for the purpose of paying the partnership debts, as against-the appropriation of it to tbe payment of debts of the individual members, whether voluntary on their part or by means of legal process in behalf of their creditors, may be asserted by the firm; and it is through the equities of the members in support of such right that the partnership creditors may by their action take the preference in respect to its property. {Saunders v. Reilly, 105 N. Y., 12.) The plaintiffs’ firm owned these four certificates at the time the attachment was levied, subject to defendant’s lien as collateral to the notes it then held, of which the defendant was advised. The partner Sterrett could not then effectually have transferred title to the ‘corpus of this property to the defendant in payment of his debt due to .it. {Dob v. Halsey, 16 Johns., 34.) Nor could the defendant take by the process, levy and sale any right other than such as should be derived from the share in the surplus of the firm assets, to which its debtor member otherwise would be entitled upon an accounting after payment of the partnership debts. In view of this, muchevidence was given bearing upon the financial condition of the firm. The plaintiffs gave evidence tending to prove that the partnership debts on the 8th and 11th of December, 1882, amounted to $100,085.35, and its assets consisted of 89,000 barrels of petroleum oil and $221.24 in accounts; and nearly or quite all the certificates for the oil were hypothecated as security for the payment of its debts. There was some conflict of evidence as to the quantity of oil the plaintifis had at that time; and a question in that respect upon the interpretation of the testimony of one of the plaintiffs, who remarked to the effect that the 89,000 barrels did not include the 12,000 barrels represented by the certificates held by the defendant, but the jury were permitted to find, in view of the further evidence that the remark referred .to was inadvertently made. The conflict on the question arises out of the statement of the quantity produced by the plaintiffs and the account put in evidence of their purchases and sales, which presented for the jury the question of fact whether the quantity they then had was or not greater than 89,000 barrels. In that respect the evidence was sufficient to support their conclusion.

The financial situation of the plaintiffs depended upon the price of oil. On December eighth the highest price was $1.17j- and the lowest $1.12. On December eleventh the price was $1.12 and $1.08J; and on December fifteenth, at the time the eight certificates were delivered to the plaintiffs, it was 96Jc. and 93c., and the average price daily was still lower during the residue of that month. The lowest price on the eighth and the highest on the eleventh of December would make the value of the oil about equal to the firm liabilities, but after that during-the month the prices would make it less. The certificates have the recognized quality of negotiability in the trade, and its custom in the deal requires their delivery as soon as the day following their sale. The certificates were not in the possession or under the control of the plaintiffs; and without payment of the amounts for which they were held as collateral they were not conveniently available for the market. And the fluctuation in price was such that it could not be known how much they would at any future day produce by sale in the market. The plaintiffs’ property consisting as it did of oil, or the certificates giving a right to it, might one day have a value exceeding, and the next day below the amount of their liability. The market was available each day for sale of oil at the then market price, and the sales were usually made through brokers. Assuming that on December eighth, the day the attachment was levied, the market price was such that the plaintiffs’ oil, if sold, would have produced a sum exceeding the amount of their firm liabilities, the question arises whether under the circumstances the firm will be treated as solvent as of that day, so as to furnish an interest m Sterrett, subject to and in support of the levy of the attachment. The margin in excess of the value that day was comparatively small, and the pipeline certificates being held by various banks and bankers as collaterals on account of the commercial paper of the firm, were not available to it for the purposes of sale at that time.

Solvency imports adequate means of a party to pay. his debts, which embraces within its meaning the opportunity by reasonable diligence to convert and apply to such purpose. In other words a person is deemed insolvent who at the time in question is unable to pay his debts in the ordinary course of business. {Shone v. Lucas 3 Dow. & Ry., 218; Thompson v. Thompson, 4 Cush., 127; Lee v. Kilburn, 3 Gray, 594, 600; Herrick v. Borst, 4 Hill, 650.)

The situation of the plaintiffs’ property did not enable them to put it into market on the day the attachment was levied or the two or three days following when the price would exceed or equal their liabilities. This right of the firm and its members to protect itself by devotion of its property to the payment of the partnership debts and not to be subjected to a deficiency in that respect by its appropriation to the discharge of the individual debts of the partners is substantial, and the rule applicable to the production of such result must be practicable, else the right may be defeated. When the property is of such character that it has constantly a fluctuating market price, the financial condition of the firm owning it is not necessarily established by the fact that the price for an hour or a day would produce an excess of its liabilities so as to furnish an interest in the individual partners and subject the firm property to the process of their respective creditors, especially if it is so situated that the firm cannot make such transitory market available, because the interest of the partners severally is only in the surplus which may remain after the winding up its business and the payment, of the partnership debts, and is dependent upon the result, which requires an opportunity to do it. It would, therefore, seem that the situation within the time when that can be done, may be entitled to consideration upon the question of value at the time when the process in such case is levied upon the partner’s interest. And it. appears that after the 11th of December, 1882, the highest price of oil any day was insufficient to make 89,000 barrels produce a sum equal to the amount of the firm liabilities until the last day of May, 1883. We think upon the evidence the conclusion was permitted that Sterrett had no' interest in the firm property at the time the defendant’s attachment was levied upon the certificates in question. The plaintiffs’ partnership was formed about October 1, 1880 ; no capital was put in by the members. They purchased a tract of fifty-two acres of land for $23,701, borrowed the money to pay for it, proceeded to put down eleven wells, produced oil from it until July 5, 1882, when they sold and conveyed it to the Second National Bank of Titusville for $16,000, in payment of that amount of debt the firm then owed that and another bank in that city. The plaintiff, Hyde, was cashier of the Second National Bank and Sterrett was one of its directors. There is evidence tending to prove that the price for which the sale was made was then the fair value of the property. The price of oil then was about fifty cents per barrel, and one reason given for making the sale was that Sterrett who had been regarded the financial man of the firm had become financially embarrassed. The bank operated the property and about January, 1884, disposed of it, and in its operation and sale realized a profit of about $9,000, which it gave to the plaintiff Hyde in January, 1884, and he put it to the credit of his firm.

The defendant’s counsel requested the court to charge “ that if the jury are convinced that this conveyance to the Second National Bank of Titusville was made for the purpose of hindering, delaying and defrauding the creditors of the firm or the creditors of Mr. Sterrett in collecting their debts, they wei’e at libei’ty to consider that property at what they deem its fair valuation as assets of the firm on the 8th day of December, 1882, for the purpose of ascertaining whether it was solvent or insolvent,” and to the refusal of the court to so charge, excepted. The court, in the charge in referring to that subject, did not distinctly affirm or negative that proposition. While the direct evidence tends to prove that the sale was in good faith, there are some circumstances which may have given the opportunity to parties, situated so as to permit them so to do, to raise the question of the bonafides of the sale. But we do not see how that question is available to the defendant in this action. When property subject to original levy and sale by execution has been ti’ansferred by the debtor in fraud of his creditors, the officer subsequently levying an attachment upon the property, the attaching creditor or the purchaser at the sale finally made on the execution, may, in defense of the attachment lien or the title derived from its execution, defeat such transfer by showing that it was fraudulent as against the creditors of such debtor. (Rinchey v. Stryker, 28 N. Y., 45; Frost v. Mott, 34 id., 253.) This rule is not applicable to dioses in action upon which attachment is levied, after a transfer of them, when no intérest as between the parties to it remains to the debtor. (Anthony v. Wood, 96 N. Y., 180.) Ti’eating the certificates as in the nature of certificates of deposit and embracing an undertaking of the Pipe Line Company to deliver the oil to the holder of them on demand, they would seem to be choses in action merely. This may not be important because no such transfer of them is in this case. The sale and conveyance referred to were absolute in terms and as between the bank and the plaintiffs, the latter bad no interest in tbe property or its proceeds. The defendants had no charge upon the land by force of their proceeding to reach the interest of Sterrett in the firm assets. The question sim ply was whether they were sufficient in due course of appropriation to pay the firm creditors and produce a surplus, and for the purpose of the defense in this action that depended upon the then existing rights of property in the firm. And if there are interests not available for the purposes of accounting between the members themselves, arising out of transfers of property alleged to have been made in fraud of creditors, the creditors of the respective partners as well as those of the copartnership may, in a proper action, bring all the necessary parties to the controversy into court with a view to the requisite remedy and relief. We are inclined to think that the question is not within the defense of this action, and, therefore, the exception not well taken. This view renders it unnecessary to refer to other considerations founded upon the evidence, or the want of evidence bearing upon the proposition and in support of the ruling of the court.

This case is somewhat novel in this State. And we have proceeded to the conclusion on the merits upon the acquiescent theory of the parties, upon which the action was tried at the circuit and has been argued here, that if the firm was shown to have been insolvent on December 8, 1882, the plaintiffs -were entitled to recover, otherwise not, without expressing what views may otherwise have been entertained in respect to the remedy sought by the action. But - it is proper to say that, for the purposes of an action like this one, and in its support, the question is not satisfactorily settled by authority. There is a conflict of adjudication in the different States in respect to the right of the officer making the levy and sale in such case to take the property and to deliver it into the possession of - the purchaser. In Phillips v. Cook (24 Wend., 389) it was held that the property may be delivered to the purchaser who takes the place and relation of a tenant in common, may have an accounting of the partnership matters to ascertain the debtor partner’s interest in the surplus, if any, of the partnership assets, and in the meantime, and subject to the accounting, retain the possession of the property. This has the support of other cases in this State. ( Walsh v. Adams, 3 Denio, 125; Smith v. Orser, 42 N. Y., 136 ; Read v. McLanahan, 15 J. & S., 275.) And to carry this doctrine to its legitimate result, it may be said that such should be the right of the creditor or purchaser rather than to be subjected to an action for the recovery of the property or for its alleged conversion, dependent upon the proof of value of assets as compared with the amount of liabilities, especially unless insolvency of the firm is not questioned. The question of the right on the sale by execution of the interest of a partner in firm property of the officer to take and deliver the property to the purchaser was not in Menagh v. Whitwell (52 N. Y., 146), although there are in the leading opinion some remarks which might probably be so construed as to import to the contrary; but no reference is there made to Phillips v. Cook, and, so far as we have observed, no adjudication to the contrary of it has been had in this State. And in Atkins v. Saxton (77 N. Y., 195, 199) the same doctrine is recognized and stated obiter. But in Deal v. Bogue (20 Penn. St., 228) it was held that in such case the officer making the levy had no right to remove the property or to deliver it to the purchaser; and that the latter takes by his purchase merely the contingent interest of the debtor partner, depending upon the result of an accounting and adjustment of the partnership affairs, which does not take with it any right to the possession of the corpus of the firm property in which the interest of the partner is sold. This is put upon the ground that the creditor, and through the execution of the process the purchaser, can take no greater right and interest than the partner had, which did not include the right to the possession of the property, and, therefore, the officer can neither take (except for the purpose of making his inventory) nor give the possession .of it to the purchaser. In support of which are cited Taylor v. Fields (4 Ves., 396) and other cases, to which may be added Morrison v. Blodgett (8 N. H., 238); Vandike v. Rosskam (67 Penn. St., 330); Sirrine v. Briggs (31 Mich., 443); Treadwell v. Brown (43 N. H., 290). The right of the purchaser to have an accounting, and to the extent of his purchase, to take the place and interest of the partner in the result, is the well recognized rule of all the cases. And on such accounting the purchaser, it may be, could bring the necessary parties into court and attack any fraudulent transfers of property made by the firm. ( Webb v. Helion, 3 Robt., 625; Wade v. Rusher, 4 Bosw., 537.) But the difference in the two classes of cases before cited relates to the right of the officer to take and' deliver the possession of the property to the purchaser, and of the latter to retain it for the purposes of the accounting which he may proceed to have made.

The doctrine which permits the delivery of the property to the purchaser enables the creditor of a single partner to place the partners not sued in a worse condition than the partner could place them, which is one of the reasons against it given by the courts in denying the right to delivery of such possession. By the application of that doctrine, there would seem to be nothing in the way of the maintenance of an action to recover the firm property, or as for its conversion, when so taken from its possession on account of the individual debt of a partner, without reference to the question of solvency or insolvency of the firm. But, as we have seen, such is not the rule hitherto adopted in this State. Farther than this it is not necessary to express any opinion for the purposes of this case other than that embraced in the views already given.

The several exceptions taken to the reception of evidence we have examined, and think no error was committed in the rulings to the prejudice of the defendant; and that none of the other exceptions were well taken.

The order should be affirmed.

Smith, P. J., Barker and Haight, JJ., concurred.

Order affirmed.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    NELLIE BLACKFORD WILCOX, Respondent, v. ERED P. WILCOX and ERNEST B. SEITZ, Appellants.

      Marriage — w7.ien its validity is to be determined Try the laws of the domicile of the parties and not of the country where celebrated — copies of photographs admissible to prove identity — evidence to prove ’ ‘ matrimonial cohabitation ” — when the meaning of letters should be left to thejwry.

    The plaintiff, claiming to be the widow of Otis N. Wilcox, who died July 5, 1888, brought this action for dower in certain premises of which he died seized. Upon the trial evidence was given tending to show that the plaintiff was married to one Blackford in 1866, and lived with him in the city of Rochester until the spring of 1876, when he left her and had not since returned, the plaintiff asserting that she has not since known him to be living. Early in 1877 relations, friendly and somewhat intimate, existed between the plaintiff and Wilcqx, a widower, who resided in the same city, which continued to the time of his death. Evidence was given tending to show that in July, 1881, they went together to Montreal, and that a ceremonial marriage between them was had on board the steamship Toronto,- then lying at the wharf of that city. By the laws of Lower Canada, where the marriage ceremony was performed, the marriage was void, because the plaintiff had been previously married, and the evidence did not show that her husband was not living at the time the ceremony was performed.

      Held, that, in view of their domiciliary relation to this State, the agreement made in Canada to take each other as husband and wife might characterize, as connubial, the cohabitation following it, and with it be effectual to constitute a marriage relation; and that, as the evidence justified the jury in finding that it was followed by such cohabitation in this State, in good faith, pursuant to and in performance of such contract, and that the plaintiff did not, at the time of its celebration, know her husband to have been living within the five years immediately preceding the ceremony, the marriage should be held to be valid here.
    To establish "matrimonial cohabitation'” no announcement of the purpose of the parties, further than that which is given by the appearances, is necessary.
    The purpose of parties so living is an important element, and that the purpose is lawful and in performance of a matrimonial engagement may be inferred from adequate circumstances.
    For the purpose of identifying as Wilcox, the person who was with the plaintiff and the clerical appearing gentleman on the vessel at Montreal, his photographs were presented to the witnesses, who were allowed, against the objection and exception of the defendant, to testify that they were the photographs of the person they saw there, and who was the party to the marriage ceremony.
    The photographs were not the original ones taken from the negative, but were taken by a photographer from the originals, and were recognized by witnesses well acquainted with Wilcox, in his lifetime, as likenesses or portraits of him.

      Held, that the court did not err in admitting the evidence.

      Several letters of the plaintiff to Wilcox, commencing in 1880 and continuing until the spring of 1881, while she was at Cleveland, Ohio, were put in evidence, from which the defense claimed that the relation between them was not matrimonial but meretricious in its purposes and effect. Upon that subject the court charged the jury that “if these letters can reasonably bear the interpretation of innocence, can fairly bear the interpretation of an affectionate disposition existing between them and not an immoral connection, it is your duty to adduce that result from them.”

      Held, that, as the letters referred to furnished some evidence upon the question suggested in the charge, the determination of which involved the consideration of their meaning and import, and it was not clear that they could not be construed either way in that respect, it was for the jury to give such effect to them as in their judgment the weight of the evidence, as viewed by them, fairly required; that the charge as made was an invasion of the province of the jury in this respect, and that the exception to the charge should be sustained and a new trial be ordered.
    Appeal from a judgment, entered upon tbe verdict of a jury at tbe Monroe Cffcuit, and from an order denying tbe defendant’s motion for a new trial made upon a case and exceptions.
    Tbe plaintiff alleges tbat sbe is tbe widow of Otis N. Wilcox, deceased, and brings tbis action for dower in certain premises of wbicb he died seized. Tbe defendant Wilcox is bis heir and devisee, and tbe other defendant is in tbe possession of tbe premises.

      Theodore Bacon, for tbe appellants.

      Qaincey Van Voorhis, for tbe respondent.
   Bradley, J.:

Tbe question presented and litigated at,the trial was whether tbe plaintiff became tbe wife of Otis N. Wilcox, and was bis widow. Sbe was married to Edward Blackford in 1866, and they lived together in tbe city of Rochester until in tbe year 1816, when be left and has not since returned. And the plaintiff asserts and there is evidence tending to prove tbat be so went away in April of that year, and tbat sbe has not since known him to be living. There also is some evidence to tbe effect' tbat as early as in 1811 relations friendly and somewhat intimate existed between her and Wilcox, who was a widower, also residing in tbe city, and tbat such relations thereafter continued. He died July 5, 1883. Her place of residence was on East avenue, where sbe resided until the spring 'of 1881, when sbe rented a bouse on Monroe avenue opposite tbe bouse and place of residence of Wilcox on tbe same avenue, and she continued to reside there except a portion of tbe time, when she was in Cleveland, Ohio, until tbe spring of 1882, when she returned to her residence on East avenue. In July, 1881, they went together to Montreal. And it is claimed on tbe part of tbe plaintiff: that a ceremonial marriage between them was bad on board tbe steamship Toronto, then lying at tbe wharf of that city. In support of which the evidence of tbe captain, steward and second engineer of tbe ship is produced, to tbe effect that on tbe twenty-fifth day of that month three persons, two men and one woman, came on board •the vessel, and by permission of tbe captain, and bis direction to tbe Steward, were shown through it; that one of tbe persons bad tbe dress of a clergyman of tbe church of England; that when they were in tbe saloon of tbe ship tbe gentleman of tbe clerical appearance performed a marriage ceremony by which tbe other gentleman and tbe lady were apparently united in matrimony; that although tbe steward and second engineer were not in tbe saloon at the time, they were at tbe entrance and did see what occurred, and beard a portion of tbe ceremonial service; that tbe gentlemen of clerical •appearance bad what appeared to be a pocket prayer book from which be read; that tbe other two persons stood together in front •of him, were respectively asked if they would take tbe other for husband and wife, and answered in tbe affirmative; and that tbe •man placed a ring on her finger. These two witnesses testify that the plaintiff was tbe women, and on being shown tbe photograph ,of Wilcox, that they recognize that'as tbe photograph of tbe gentlemen to whom she was married on that occasion. Tbe person who performed tbe ceremony was a- stranger to them. They have no .means of knowledge that be was a clergyman other than those furnished by tbe occasion, bis dress and appearance, and no further .information in that respect other than that derivable from inference ,is given by tbe evidence. The' marriage, as such, was void by tbe .laws of Lower Canada where it was contracted, or tbe marriage ceremony performed, because tbe plaintiff bad been previously .married to another, who does not by tbe evidence appear not to then .have been living. But assuming that tbe plaintiff then had not for five years known him to be living, she could contract a marriage ilawful in this State, and it would remain valid until its nullity should be judicially declared. (2 R. S., 139, § 6.) As a rule, the law of the place where the marriage is celebrated governs, and if lawful there, is valid everywhere, and if void there, is invalid everywhere. (Phillips v. Gregg, 10 Watts, 158; S. C., 36 Am. Dec., 158; Medway v. Needham, 16 Mass., 157; Putnam v. Putnam, 8 Pick., 433; Van Voorhis v. Brintnall, 86 N. Y., 18; Thorp v. Thorp, 90 id., 602.) But that rule has its qualifications and perhaps exceptions, which go in support of the marriage contract and relation in so far that as between citizens of one country while in another, the marriage may be celebrated according to the laws of their domicile. (Phillips v. Gregg, supra,.) And although not solemnized in the manner required by law, may be treated as a contract to marry per veria, de presentí and treated as valid when followed by cohabitation and by reason of such cohabitation. (Newbury v. Brunswick, 2 Verm., 151.)

The plaintiff and Wilcox were citizens of this State, and were only temporarily absent at the time of the alleged occurrence in Montreal, and evidently intended to return here. And in view oí their domiciliary relation to this State, the agreement made in Canada to each other as husband and wife, might characterize, as connubial, cohabitation following it, and with it be effectual to constitute a marital relation, and if so followed by such cohabitation in good faith pursuant to and in performance of such contract in this State, such relation would seem to follow as the consequence. • Substantially those propositions were submitted to the jury as questions of fact, and were found by them in the affirmative. While there are some circumstances and much evidence of witnesses quite inconsistent with the existence of such marriage contract and relation, we think the conclusion of the jury was permitted by the evidence, and that the court was justified in submitting upon it those propositions of fact to them. There is evidence tending to prove that shortly before the plaintiff and Wilcox went to Montreal the latter stated to a witness that he was going to get married, and soon after his return he introduced the plaintiff as his wife to the same witness; that about two months after his return he requested a doctor to go and see his wife who was sick, and in reply to the doctor’s remark that he was not aware that he was married, Wilcox said he was, and that he had married Mrs. Blackford; that the doctor attended her and Wilcox paid him; that in the summer of and after his return from Montreal, Wilcox stated to a lady acquaintance that he and the plaintiff were married, and requested her to call upon Nellie, the plaintiff, and this witness says she met him many times thereafter and talked with him about his wife or Nellie Blackford as she called her; that in the spring of 1883, when a witness suggested to Wilcox, by way of enquiry, that he supposed him a widower, yet, the latter said no, he was married, and mentioned a name which the witness did not distinctly recollect, but sounded something like Blackburn; that Wilcox was frequently and at times daily at the house where the plaintiff with her children resided, and’spent considerable portion of his time and especially evenings there, that he was apparently at home at her house, took meals, sat at the head of the table, waited upon those present, took part in the devotional exercises of the family, occasionally went to church and theatre with the plaintiff and some of the children, rode out with -her sometimes, brought provisions to the house, assisted in arranging furniture, hanging pictures, etc., and on one occasion when going towards the plaintiff’s house on East avenue he said he was on his way home. Whether he did or not usually or occasionally stay. at the plaintiff’s house during the night does not appear, but there is evidence that on one occasion in the evening he went into her bedi’oom. These are in brief mainly the leading facts tending to show cohabitation. There are some other circumstances tending in the same direction, and there is some evidence tending to prove intimacy between them morally consistent, only with marital relation. There does not appear to have been any public announcement that they were married or had assumed such relation. And several witnessess testify that on a number of occasions after the Montreal trip, and up to about and after the time of the death of Wilcox, the plaintiff stated in substance and to the effect that she had not married him, and evidence is given of some other circumstances apparently not in harmony with such relation. She,'however, by her evidence contradicts substantially all the evidence of such declarations. Then her letters written him from Cleveland, Ohio, and the manner which they were addressed to him and signed by her, do not appear very demonstrative of the matrimonial relation, nor did her omission to announce such relation in support of her attempt and right to visit him the last days of his life and illness in the hospital. But she may have had, and the jury may have found reasons for these things, or they may have deemed them subordinate to other and controlling considerations. It was their province to measure the credibility of witnesses and weigh the force of the evidence so far as it was in conflict.

The general definition of “ matrimonial cohabitation is the living together of a man and woman ostensibly as husband and wife.” (1 Bish. on Mar. and Div., § 777; Yardley’s Estate, 75 Penn. St., 207; Pollock v. Pollock, 71 N. Y., 137.) This does not necessarily require the announcement further than it is given by the appearances of the purpose of the parties. There must be sufficient to fairly represent such relation by the manner which the parties are living together. The fact that Wilcox kept rooms in his own house which he occupied a portion of the time at least, is a circumstance bearing upon the question of cohabitation, but is not necessarily inconsistent with it. (Badger v. Badger, 88 N. Y., 546.)

The purpose of parties so living together is an important element, and that the puiqiose is lawful and in performance of a matrimonial engagement may be inferred from adequate circumstances. The fact, when found, of the contract and formal ceremony attending it, as testified to by the witnesses, is significant of the then purpose of the plaintiff and Wilcox to assume the relation of husband and wife to each other; and goes to characterize their association following it as lawful and marital if it takes the character of cohabitation, and may not, in the judgment of the jury, require so much by way of its reputation and publicity as would be deemed necessary to produce the inference of a contract of marriage when no evidence of it other than cohabitation is made to appeal-. (Allen v. Hall, 2 Nott & McCord, 114; 10 Am. Dec., 578 ; Arthur v. Broadnax, 3 Ala., 557; 37 Am. Dec., 707; Fenton v. Reed, 4 Johns., 52; Betsinger v. Chapman, 88 N. Y., 487; Hynes v. McDermott, 91 id., 451.) The exceptions taken to the submission of the questions of fact before mentioned to the jury are not well taken.- A physician who attended Wilcox in his last illness was called as a witness and asked by the defendant’s counsel whether he was able to form an opinion, from time to time, in regard to his mental condition, apart from any information which he obtained from him for the purpose of his treatment. On his prehminary examination) following the inquiry, it appearing that his interviews with Wilcox and the attention given by the witness to his mental condition were solely for the purpose of medical treatment, the evidence was properly excluded. (Code Civ. Pro., § 834; Grattan v. Met. Ins. Co., 80 N. Y., 281.)

Por the purpose of identifying as Wilcox, the person who was with the plaintiff and the clerical appearing gentleman on the vessel at Montreal, liis photographs were presented to the witnesses who were there on that occasion, and they testified that they were the photographs of the person they saw there and who was the party to the marriage ceremony. The defendant’s counsel took objections and exceptions to this evidence, and insists that its reception was error. The photographs were not the original ones taken from the negative, but were copies taken by a photographer from the original. They were recognized by witnesses, well acquainted with Wilcox in liis lifetime, as likenesses or portraits of him. The witnesses who testified that they saw those persons on the ship seem to have taken some observation of his person, as they give some description of him. We think it was competent to permit them to refer to the phototographs and testify whether or not they saw in them the likeness of the person they saw there. The fact that they were taken from the original, and, therefore, copies only, may not, and, it seems, did not, materially impair their representation of the appearance and likeness of Mr. Wilcox. There was no error in the ruling relating to this evidence. (Ruloff v. The People, 45 N. Y., 213, 224; Udderzook v. Commonwealth, 76 Penn. St., 340; Hynes v. McDermott, 82 N. Y., 50.)

The conversation between the plaintiff and one Scanlon at Montreal as testified to by her was not responsive to the question asked, and therefore not covered by the exception taken to the ruling permitting the question to be answered. And no motion was made tc strike it out. There was no error in this ruling of the court. After the death of Wilcox amongst his papers was found a paper in his handwriting, purporting to be a letter or a copy of one to the plaintiff in answer to one from her and of date January 30, 1881. This was offered in evidence by the defendant’s counsel and excluded. There is no evidence that such a letter was ever mailed or sent by him to her. It was not admissible as evidence. And the same remark is applicable to tbe exclusion-of a statement of an account made by him wbicb it is said purports to have some relation to bis transactions with tbe plaintiff. There is no evidence verifying it in that respect.

. In tbe fall of 1881, tbe plaintiff commenced an action or proceeding in tbe Court of Common Pleas of Cuyahoga county, in tbe State of Obio, against ber husband, Edward Blackford, for a divorce wbicb resulted in á decree to that effect, January 21, 1882. And in an affidavit made by ber in tbe proceeding it is stated that she has not been able to learn bis whereabouts or residence and only learned that be was in tbe city of Philadelphia, Pennsylvania, in tbe fall of 1876.” That was within five years of tbe Montreal marriage engagement and ceremony. She having on the trial testified that be absented himself in April, 1876, and bad not since been beard of by ber, after tbe judgment record was put in evidence she further testified that she did not make tbe statement in tbe affidavit, that she bad learned Blackford was in Philadelphia in tbe fall of 1876, to any person and did not know that it was in tbe affidavit. To tbe reception of this evidence exception was taken. And it is contended that this was error. Also that tbe judgment record is conclusive evidence that tbe plaintiff remained tbe wife of Blackford until tbe time of tbe entry of tbe decree of divorce. That record did not conclude ber in respect to tbe fact stated in tbe affidavit, nor does tbe record so far as appears have tbe effect of an adjudication for any purpose. Blackford was not personally served nor did be appear in tbe proceeding. And there is no evidence that'he was ever in the State of Ohio. (People v. Baker, 76 N. Y., 78; O'Dea v. O’Dea, 101 N. Y., 23.)

Several letters of tbe plaintiff to Wilcox commencing in tbe year 1880, until tbe spring of 1881 while she was at Cleveland, were put in evidence from which tbe defense claimed that tbe relation between them was not matrimonal but meretricious in its purpose and effect. Upon that subject tbe court charged tbe jury- that “ if those letters can reasonably bear tbe interpretation of innocence, can fairly bear tbe interpretation of an affectionate disposition existing between them and not an immoral connection, it is your duty to adduce that result from them.” And tbe defendant’s counsel excepted. It cannot be said that tbe character of tbe relations whether innocent or immoral between tbe plaintiff and Wilcox prior and up to July, 1881, was not an important element for the consideration of the jury upon the main questions of fact submitted to them as bearing upon the credibility of evidence given, the facts which it tended to prove and the inferences derivable from it. Eelations which are meretricious cannot ripen into connubial relations but are characterized as immoral until a change of purpose is in some manner manifested. This change of purpose may not require direct proof to render relations innocent but may be found in circumstances and inferred from them. (Rose v. Clark, 8 Paige, 574; Caujolle v. Ferrie,, 23 N. Y., 90; Badger v. Badger, 88 N. Y., 546, 553, 554.) Whatever view the jury may have taken of their relations prior to the trip to Montreal, if they found that the occurence as testified to took place there, they may well have found in that the purpose of the parties to make their relations matrimonal thereafter. But in civil actions the rule upon which facts are supposed to be determined by juries is that of preponderance. of evidence. And their duty does not require them to give the one party the benefit of the reasonable doubt or to find the facts involved only when it is in their judgment established beyond such doubt. (3 Green Ev., § 29; Seybolt v. N. Y. L. E. & W. R. R. Co., 95 N. Y., 562; Johnson v. Agr'l Ins. Co., 25 Hun, 251.)

The presumption of innocence and of freedom from purposes and conduct immoral, applies in civil as well as in criminal cases, and satisfactory evidence is required to establish the contrary. And when, m the judgment of the jury, the evidence is in equilibrio the imputation is not established. (Starr v. Peck, 1 Hill, 270; Pollock v. Pollock, 71 N. Y., 137.) This presumption is evidence only and has its controling effect as such until overcome by other evidence. And when the jury can fairly and reasonably construe the evidence so as to protect a party against charge of misconduct, it may be a very proper thing for. them to do, but when it may, in their judgment, reasonably be construed the other way as well, it becomes a matter for them to determine which direction they shall give to it rather than a duty imposed by law to find the fact in a particular way. The letters referred to furnished some evidence upon the question suggested in the charge, the determination of which involved the consideration of their meaning and import, and it is not clear that they could not be construed either way in that respect in view of tbe evidence. And being so it was for tbe jury to give sucb effect to tbem as in tbeir judgment tbe weight of tbe evidence as viewed by tbem fairly required. It seems that this instruction and direction was an invasion of tbe province of tbe jury, which in view of tbe conflict of evidence upon which tbe finding of tbe main fact of tbe issue depended cannot be 'disregarded. We think this was tbe only exception well taken at tbe trial. And tbe result required by it renders the consideration of the motion for a new trial upon tbe alleged ground of newly discovered evidence unnecessary.

Tbe judgments and order should be reversed, and a new trial granted, costs to abide tbe event.

Smith, P. J., and Haight, J., concurred.

Judgment and order reversed, and new trial ordered, costs to abide event.