text:
    In the Matter of the Accounting of ELLEN L. KELAHER, as Guardian, Respondent, v. THOMAS J. McCAHILL and JAMES BRADY, Executors, Appellants.

      Guardian — duty of, as to requiring an infant to maintain himself— a full explanation must he given as to moneys paid over to the infant.

    Appeal from an order of the surrogate of the city and county of New York, upon the settlement of the accounts and discharge of the respondent as guardian of certain infants.
    The court at General Term said: “ The accounting itself seems to have been an extremely loose proceeding, and the accounts presented we think were, in many particulars, allowed by the referee and the surrogate without satisfactory or sufficient proof of their correctness. A reference to a few items will indicate this.

      “ The guardian claims that she had expended for the benefit of all the infants respectively, but one, a considerable sum beyond the amount she had received from the trust funds in the hands of the executors. It was her duty to have shown clear and satisfactory reasons for having done this, inasmuch as the infants were, most of them, of an age when their services could have been made valuable to themselves if the duties of the guardian had been properly performed, and especially as- it appears that their father is still living, upon whom the duty of supporting them is primarily devolved by law, without resort to the income of the trust fund. (Clark v. Montgomery, 23 Barb., 464; Matter of Ryder, 11 Paige, 185 ; Van Volkinbv/rgh v. Watson, 13 Johns., 480; Clark v. Clark, 8 Paige, 152.) In case last cited, the chancellor held that it is a palpable breach of duty for a guardian to suffer a ward to live- in idleness when he is able to earn his own support, unless he is preparing himself for future usefulness by obtaining ah education, and that he could not, in the absence of all evidence on the subject, presume that the ward did not earn his living during the time that he remained with the guardian. The only estate the infants appear to have had applicable to their support was the income directed to be paid by the executors for that purpose; the executors had no authority to pay or apply more, except upon an order of the court properly obtained, and the guardian should either have restricted her expenditures within the income, or at least have shown a necessity for exceeding and anticipating it. The effect of her action has been to deprive several of the infants absolutely of all support from such income for several years yet to come, and a decree which accomplishes such a result should stand upon very substantial grounds. * * *
    “"Various items appear in the account, aggregating $158,for cash advanced at various times to the children. All of these items should have been explained, for the guardian was certainly not at liberty to hand over money to them without knowing and approving the purposes for which it was to be used, especially as she describes them in her petition as ‘ wayward, resisting discipline and refusing to accept the control or heed the advice of their guardian,’ and in a case where their income was so small that their annual support left them considerably in debt.”

      De Witt G. Brown, for the appellants.

      Walter B. Pinckney, for the respondent.

      E. H. McDonough, for the infants.
   Opinion by

Davis, P. J.;

Daniels, J., concurred.

Present — Davis, P. J., and Daniels, J.

Decree reversed, with costs of the appellants to abide the future order of the surrogate.


source: Caselaw Access Project

author: Davis, P. J.;

license: Public Domain

text:
    ROBERT G. LIVING, Respondent, v. ELLEN J. DOMETT, Appellant.

      Endowment policy of insurance issued to a wife upon the life of herr husband — the assignment thereof by her was notprohibiledby the provisions of chap. 80 of 1840, prior to its amendment by chap. 656 of 1866.
    Appeal from a judgment in favor of the plaintiff, entered upon a trial at a Special Term.
    This action was brought to determine which of the parties hereto is entitled to a sum of money paid into court on a policy of insurance in an action of interpleader, brought by the Mutual Life Insurance Company of New York against said parties. On the 29th of July, 1861, the Mutual Life Insurance Company issued to the defendant a policy of insurance on the life of her husband, Henry W. Domett, whereby it agreed to pay to the defendant, her executors, administrators or assigns the sum of $10,000 on the 29th of July, 1878, or in case he should die before that time, sixty days after notice and proof of death. This policy was issued on the application of the defendant, made by her, husband as her agent, and the premiums thereon were paid by her husband in her name,’ but out of his own funds. On the 18th of May, 1872, the plaintiff loaned to the defendant the sum of $10,000, and received her promissory note therefor, and an assignment of said policy of insurance executed by her as security for the payment of said note. On the 29th of July, 1873, the plaintiff gave to the defendant, at her request, the said policy of insurance, to be exchanged for a paid-up policy. Such exchange was made, and the paid-up policy was . issued in its place and delivered to the plaintiff. No part pf the note given by defendant has been paid. The husband of the defendant is still living, and they have had no children. The paid-up policy became due on the 29th of July, 1878, and the money due thereon, being the sum of $6,430, was claimed from the insurance company by both parties, and was afterwards paid into court by the company as above stated.
    The court at General Term, after considering certain objections, said: “ The case therefore wholly depends upon a single question of law, and that is whether the original policy issued to the defendant upon the life of her husband for her benefit was an assignable one.
    “ There is no doubt, as a general rule, that a policy of life insurance is assignable like any other chose in action. (Si. John v. America,n Mutual Life Ins. Co., 13 N. Y., 31; Palmer v. Merrill, 6 Cush., 282; Ashléy v. Ashley, 3.Sim., 149; Campbell v. Foster, 35 N. Y., 361; Field v. Mayor, 6 id., 179.) But in Eadie v. Slimmon (26 N. Y., 9) the Court of Appeals held that a policy of insurance taken out by the wife under the provisions of chapter 80 of the Laws of 1840, upon the life of her husband for the benefit of herself and her children, payable after the death of her husband, was not .assignable by the wife on the ground that the act looked to a provision for the states of widowhood and orphanage, which would be ' defeated if the wife were permitted to assign such a policy. The correctness of that decision has been greatly questioned in other States, and to some extent in this, but if erroneous the error has become inveterate by the subsequent cases in which it has been accepted and followed. (Barry v. Equitable Life Ins. Co., 59 N. Y., 587; Barry v. Bruñe, 71 id., 261; Wilson v. Lawrence, 76 id., 585.) These were all eases of policies upon the life of the assured, payable after his death, and the policies were all held to havte been taken under the provisions of the act of 1840. . In the case at bar the policy was what is known as an endowment policy which was payable at a fixed period within the probable life of the husband, or contingently, upon his death before the expiration of the fixed period. There were no children, and in the application for the policy the words “or children” were stricken out. The policy therefore looked primarily not to a'state of widowhood or orphanage but to a provision for a wife during the life of her husband, and it was only contingently that it had any relation to the state of ividowhood. The decisions above cited do not therefore' dispose of the question presented by this case, and the case cannot be justly said to be controlled by them. In 1866 (ch. 656), however, the act of 1840 was amended by the legislature so that its provisions should embrace policies payable at a definite period, whether before or after the death of the husband. And in Brummer v. Cohn
       the Court of Appeals, since the argument of this cause before us, have decided that an endowment policy taken out after the act of 1866' had amended the act of 1840 is not assignable. That case would completely dispose of this if it were not for the fact that the policy in this case was issued in 1864, some'two years prior to the passage of the act of 1866, and is not therefore affected by that statute. It stands altogether upon the construction to be given to the act of 1840 as applicable to this class of contracts, and there is no controlling' decision which determines that question.
    “As an original question our opinion is that the policy in this case was assignable at common law, and that nothing contained in the act of 1840 has taken away that incident of the contract. The precise language of the act upon which the Court of Appeals based its decision in Eadie v. Slimmons {supra) is not descriptive of such a policy as that issued in this case, nor is it essential to the protection of the state of widowhood or orphanage that the act should be strained to cover the case.”

      Joseph H. Choate, for the appellant.

      T. Thacher, for the respondent.

       86 N. Y„ p. 11.

   Opinion by

Davis, P. J.;

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


author: Daniels, J.

text:
    Edward G. Brown, Respondent, v. Caroline Nesmith and others, Executors, etc., Appellants.
   Judgment reversed, new trial ■ ordered, costs to abide event. Opinion by

Daniels, J.


author: Brady, J.

text:
    Daniel Goldschmidt, Respondent, v. John C. Wilmerding and others, Appellants.
   Judgment affirmed. Opinion by

Brady, J.


text:
    Thomas A. Brown and others, Respondents, v. John P. Smith and others, Appellants.
   Order modified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by

Brady, J.


text:
    James R. Wood and another, as Executors, Respondents, v. Viola Yates Mitcham and others, Appellants.
   Judgment affirmed. Opinion by

Daniels, J.


author: Davis, P. J.

text:
    William A. Lottimer, as Executor, etc., Appellant, v. Jane C. Blumenthal, Respondent, and others Appellants.
   Judgment affirmed, with costs to all parties out of the fund. Opinion by

Davis, P. J.


text:
    William M. Kingsland, Respondent, v. Sarah P. T. Borst, Appellant, Impleaded, with others.
   Judgment affirmed, with costs. Opinion by

Davis, P. J.


author: Bardy, J.

text:
    George S. Goodale, as Receiver, etc., Appellant, v. The Central National Bank of the City of New York, Respondent.
   Judgment reversed, new trial ordered, costs to appellant to abide event. Opinion by

Bardy, J.


text:
    Charles White and Michael McEvoy, Respondents, v. J. Brander Matthews, Appellant.
   Judgment reversed, new trial ordered, with costs to abide the event unless plaintiffs, within twenty days, stipulate to reduce the judgment as indicated in opinion, in which case judgment affirmed without costs to either party. Opinion by

Daniels, J.


text:
    In the Matter of Annie Fair.
   Order affirmed. Opinion by

Brady, J.


author: Davis, P. J., and Daniels, J.

text:
    Louis E. Howard and others, Appellants, v. Joseph Park and others, Respondents.
   Judgment reversed; judgment directed as as ordered in opinion. Opinion by

Davis, P. J., and Daniels, J.


text:
    The People of the State of New York ex rel. John Smith v. Charles Donohue, a Justice of the Supreme Court of the State of New York, Respondent.
   Judgment reversed, without costs. Opinion by

Davis, P. J.


text:
    Harriet E. Willis, as Administratrix, etc., Appellant, v. Sarah J. Smyth and The Seaman’s Bank for Savings of the City of New York, Respondents.
   Judgment affirmed, with costs. Opinion by

Davis, P. J.


text:
    Kate A. Sperry, Respondent, v. George Gardner, Appellant.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. Jeanne F. Isaacs, Respondent, v. Sollomon Isaacs, Appellant.
   Order affirmed. - Opinion by

Brady, J.


text:
    The People of the State of New York ex rel. Isaac Evans, Appellant, v. The Board of Commissioners of the Department of Public Parks of the City of New York, Respondent. The Same ex rel. Joseph F. Belton, Appellant, v. The Same, Respondent.
   Orders affirmed. Opinion by

Daniels, J.


text:
    John J. Marvin, Appellant, v. James J. Brooks, Respondent, Impleaded, etc.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    John H. Hollis and J. Lloyd Abbot, Respondents, v. Edwin D. Chadick, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    James A. Dustin, Respondent, v. John F. Wallace and Joseph O. Nay, as Executor, etc., Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    James F. Woodhouse, as Administrator, etc., Respondent, v. Claiborne O. Woodhouse, Appellant.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Isaac Levy, Plaintiff in Error, v. The People of the State of New York, Defendant in Error.
   Conviction affirmed. Opinion by

Davis, P. J.


text:
    Andrew Albright, Appellant, v. Luther C. Voorhies, Respondent.
   Order affirmed, with, costs. Opinion by

Brady, J.


text:
    Elmore A. Kent, Respondent, v. Sarah H. Popham, Executrix, etc., Appellant, Impleaded, etc.
   Order reversed and motion denied, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Emma J. Dargin, Respondent, v. George W. Decker and others, Appellants, Impleaded with Palmer B. Wells, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Alexander Rich, Respondent, v. Simon Saloman and Emanuel Saloman, Appellants.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Richard Heather, Appellant, v. James Neill, Survivor, etc., Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    James C. Jewett and others, Appellants, v. William C. Pickersgill, Respondent.
   Order affirmed. Opinion by

Brady, J., and by Davis, P. J., dissenting.


text:
    Bolton Hall and others, Respondents, v. The United States Reflector Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Lazarus S. Murad, Appellant, v. The National Stove Works and Ellis R. Thomas, Respondents.
   Order modified as directed in opinion, without costs to either party. Opinion by

Brady, J.


text:
    In the Matter of Thomas Stephens, Respondent, v. George Caulfield and Henry Marshall, Appellants.
   Order reversed and order entered as directed in opinion of Davis, P. J., on payment of ten dollars costs of opposing motion, and without costs of the appeal to this court to either party. Opinion by

Davis, P. J., and Brady, J., and by Daniels, J., dissenting.


text:
    James Talcott, Respondent, v. Jacob Harris and Abraham Berger, Appellants.
   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Joseph H. Risley, Respondent, v. Jesse Carll, Appellant.
   Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    Edwin W. Holbrook, Appellant, v. John A. Swezey and another, Respondents.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    In the Matter of the Estate of Herman Schlesinger, Deceased.

   Order modified as directed in opinion, and affirmed as modified. Opinion by

Davis, P. J.


author: Per Curiam.

text:
    Henry W. Thaule, Appellant, v. Henry A. Frost, Respondent, Impleaded, etc.
   Judgment affirmed. Opinion

Per Curiam.


text:
    Kate L. S. Mapes and Peter Shand, Jr., Appellants, v. Agnes S. West, Respondent.
   Order reversed, without costs. Opinion by

Daniels, J., and by Davis, P. J., dissenting.


text:
    The People’s Bank, etc., v. William Heardt and others.
   Beargument ordered.


text:
    John B. Devlin, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellants.
   Judgment reversed. Opinion

Per Curiam.


text:
    Henry R. Dunham, Appellant, v. Joseph Cudlipp and others, Respondents. Same v. Same.
   Judgments affirmed. Opinion by

Dayis, P. J., and by Daniels, J., dissenting.


text:
    The Union Dime Savings Institution of the City of New York, Appellant and Respondent, v. Thomas L. Sanford, Appellant, Impleaded, etc., Orsee W. Wilmot and George W. Koch, Respondents, Impleaded, etc.
   Judgment affirmed, with costs of the several respective appellants against whom they succeed. Opinion by

Daniels, J., and by Brady, J., dissenting.


text:
    Joseph A. Vose v. Francis S. Street.
   Motion granted, with ten dollars costs, unless the case be made and served within twenty days after service of a copy of the order to be entered hereon, and ten dollars costs of motion be paid,


text:
    The People of the State of New York ex rel. Thomas Gilmore, v. James Callahan, Justice, etc.
   Motion for reargument denied.


author: Mullot, P. J.: Hardin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error, v. WILLIAM McDONALD, Plaintiff in Error.

      Police justice of (he milage of Hornellsmlle — 1867, chap. 288, sec. 53; 1872, chap. 154 — Ids jurisdiction does not exclude that of the General Sessions.

    Section 53 of the charter of the village of Hornellsville (chap. 288 of 1867), as amended by chapter 154 of 1872, provides that the police justice of the village shall have and exercise, within its limits, "all the powers and duties now by law given to a justice of the peace or two justices of the peace of towns, or to courts of special sessions, except as to civil actions and except as hereinafter provided. He shall have exclusive jurisdiction in all criminal cases, proceedings, complaints or examinations which could be heard, tried or examined or passed upon by a justice of the peace or two justices of the peace of towns, or by courts of special sessions, where the act, crime, misdemeanor or felony complained of, or which is the subject of such case, proceedings, complaint or examination was committed within the limits of said village:”

      Held, That the act did not deprive the Court of General Sessions of the county of jurisdiction to try an indictment for a misdemeanor committed within the said village, which had been found in the Court of Oyer and Terminer, and sent to the Court of General Sessions for trial.
    Writ of error to the Court of Sessions of tbe CQunty of Steuben to review tbe conviction of tbe plaintiff in error of a violation of the excise law.

      Daniel L. Benton, district-attorney, for the people.

      George B. Bradley, for the plaintiff in error. •'
   Mullot, P. J.:

The plaintiff in error was indicted in the Steuben Oyer and Terminer for a violation of the excise law. He pleaded not guilty and the indictment was then sent to the Court of Sessions, and was tried in that court in June, 1881.

Upon the trial the sale of liquor by the plaintiff in error was proved. Upon the part of the accused it. was proved that the village of Homellsville was a part of a town of that name in said county, and by the charter of said village one of the officers thereof was a police justice who had exclusive jurisdiction in all criminal cases arising in the village which are cognizable in a court of a justice of. the peace or in courts of special sessions in this State.

By section 53 of an act (chap. 288) passed in 1867, as amended by chapter 154 of 1872, the foregoing section was amended by providing that the police justice should “ exercise within the limits of said village all the powers and perforni all the duties now by law given to a justice of. the peace, or two justices of the peace of, towns, or to courts of special sessions, except as to civil actions, and. except as hereinafter provided.” It was further provided that said, justice should have exclusive jurisdiction in all criminal cases, proceedings, complaints or examinations which could be heard, tried or examined or passed upon by a justice of the peace or two justices of the peace of towns, or by courts of special sessions, where the act, crime, misdemeanor or felony complained of, or which is the subject of such case, proceeding, complaint, or examination, was committed within the limits of said vjllage.” v

It was shown that there was a police justice in said village at the time of the sale of the liquor.

Upon the close of the evidence the counsel for the plaintiff in error moved that the plaintiff be discharged on the ground that said court had not jurisdiction to try said plaintiff upon said indictment; that the police justice of said village had exclusive jurisdiction to try said indictment. The court denied the motion and the counsel for plaintiff in error excepted to the decision.

The said counsel also moved the court to direct the jury to render a verdict in favor of the plaintiff in error, which motion was also denied and the counsel excepted.

The district attorney then moved the court to direct a verdict of guilty against the plaintiff in error. The counsel for the plaintiff objected to such instruction. The objection was overruled, and the jury in conformity to the direction of the court rendered a verdict of guilty of the offense charged in the indictment. A writ of error was then sued out and the further proceedings in said Court of Sessions stayed.

I entertain no doubt but that the provisions of the charter of Hornellsville take away from the justices of the peace of said town the power to issue process for the arrest of persons charged with crime committed in said village, and to examine them in reference to said charge, and vest the power exclusively in the police justice. But it does not necessarily follow that the power to arrest, try and punish persons found guilty of crime within said village is taken from the Court of Sessions of the county of Steuben.

No reason is perceived why a court of general criminal jurisdiction, proceeding according to the course of the common law, should be deprived of the power to hear, try and determine concerning all offences committed within its county. At all events it should not be held to be deprived of its jurisdiction unless the intention to do so is clearly manifest.

It may well be that the power referred to should be taken from justices of the peace and courts of special sessions, but no reason is perceived why it should be taken from the Court of General Sessions. • ■.

The views of the county judge are it seems unanswerable, and the judgment, for the reasons stated by him, should be affirmed.

Hardin, J.:

Section 6 of article 1 of the Constitution of this State declares that no person shall be held to answer for a capital or otherwise infamous crime * * * unless on presentment or indictment of a grand jury. A felony is an infamous crime. (2 R. S., 702, § 31; People v. Van Steenburgh, 1 Park., 45.) Section 26 of article 6, declares courts of special sessions shall have such jurisdiction of offences of the grade of misdemeanors as may be prescribed by law.”

Under this section the legislature passed chapter 390 of the Laws of 1879, conferring exclusive jurisdiction in the first instance to hear and determine “ charges therein enumerated.” That statute received judicial construction in the. Court of Appeals in the case of Ryan v. The People (79 N. Y., 593), and the conclusion was there reached that it did not oust courts of sessions of jurisdiction to try and determine pending indictments for charges or offenses of assault and battery not alleged to have been committed riotously. And in Gardner v. The People (62 N. Y., 305), it was held that chapter 337 of the Laws of 1855, did not take away the' power from the Court of Oyer and Terminer, or jurisdiction to try an indictment for a misdemeanor, and that the language of the act could be satisfied by holding that the preliminary charges, such as are made before a committing magistrate were the “ complaints,” of which special sessions are declared by that act to have exclusive jurisdiction. (People v. Kennedy, 2 Park. Crim. B., 312.)

Can the language of the charter of Hornellsville, found in section 53 (as amended by chap. 154 of the Laws-of 1872), “be satisfied by construing it so that the power or jurisdiction of an Oyer and •Terminer or Court of Sessions in such county shall not be denied.” The section declares the police justice shall reside in the village — and “ he shall have and exercise within the limits of said village, all the powers and duties now by law given to 'a justice of the peace or two justices of the peace of towns, or to courts of special •sessions, except as to civil actions, and except as hereinafter provided. He shall have exclusive jurisdiction in all criminal cases, proceedings, complaints or examinations which could be heard, tried or examined or passed upon by a justice of the peace, or two justices of the peace of towns or by courts of special sessions, where the act, crime, misdemeanor or felony complained of, or which is the subject of such case, proceeding, complaint or examination was committed within the limits of said village, and it shall be his duty to discharge such duties during his term of office.”

"We cannot suppose the legislature intended to confer exclusive jurisdiction upon the police justice over “ a felony complained of,” as the section of the Constitution we have quoted would stand in the way of such an enactment, and a construction in that regard must be preferred which would be in favor of the validity of the act. "We think the “felony complained of,” as well as the act, crime or misdemeanor intended, is the crime, act or misdemeanor or felony, made the subject of a charge, a complaint before the police justice, as a committing magistrate in contradistinction from these acts, crimes, misdemeanors or felonies, which may be presented to, and are in the first instance presented to a grand jury, to a Court of Sessions, to an Oyer and Terminer.

The object of the statute was rather to exclude in the village limits the action of other committing magistrates, and to impose upon the police justice within the corporate territory all the duties enumerated, which, except for the excluding words as to jurisdiction, might have been performed by other officers as committing magistrates, in respect to the acts, crimes, misdemeanors and felonies complained of before any such officers within the prescribed limits.

Thus construed, the act is valid in all its parts, and does not violate the provisions of the Constitution to which we have referred. The language employed in chapter 47 of the Laws of 1870, conferring exclusive jurisdiction upon courts of special sessions, “ to hear, try and determine charges for crimes and offenses,” differs from the language found in the act now before us for construction. The legislative intent was made clear by the words used.

It was therefore held in People v. Rawson (61 Barb., 620) that when a charge of petit larceny was made before a magistrate, that he had exclusive jurisdiction to try it, and that a conviction thus had was valid, and under a law clear in its intent and constitutional in its purpose.

In Devine v. People (20 Hun, 98) a charge of petit larceny was made before a magistrate, the plea of not guilty was entered and two adjournments had, and on appearing on the last adjourned day “ he (the accused) stated that he would waive an examination and offered bail for his appearance to answer any indictment to be found against him by the grand jury.” The magistrate denied the application under chapter 390 of the Laws of 1879, and a trial was had and he was convicted.

The third department by a divided court held, first, that the prisoner had waived his right to have an examination and give bail; and, second, that the three hundred and ninetieth chapter of the Laws of 1879 is valid and constitutional.

In People ex rel. Comaford v. Dutcher (20 Hun, 241) the second department held that chapter 390 of the Laws of 1879 is valid.

We find nothing in those cases calling upon us to so construe the Hornellsville charter, as - that it shall deny to courts of Oyer and Terminer and Courts of Sessions in Steuben county jurisdiction to try and determine offenses of the grade of misdemeanors committed in said village, when there has been no charge, complaint or examination before the police justice. The conviction upon the indictment found jn the Oyer and Terminer, and removed and tried in the Sessions, was regular and must be affirmed.

Conviction and judgment affirmed, and proceedings remitted to. the; Court of Sessions of Steuben county, with directions to proceed thereon.

Smith, J., concurred.

Conviction and judgment affirmed, and proceedings remitted to. the Court .of Sessions of Steuben county to proceed thereon.


author: Smith, P. J.:

text:
    WILLIAM H. HILLS, Appellant, v. THE PEEKSKILL SAVINGS BANK and REUBEN E. FARNHAM, Respondents.

      Taxpayer — action by, to restrain waste or injury by a public officer — What defects m the petition render bonds, issued to aid a railroad, void in the hands of purchasers in good faith and for a valuable consideration — Statute —effect, on amendatory statute, of the repeal of the statute amended.

      The plaintiff, a taxpayer of the town of Attica, brought this action to restrain the defendant Farnham, the supervisor of the town, from taking proceedings .to have a tax levied on the town to pay the interest on certain bonds, the issue of which Farnham had been instrumental in procuring, and to restrain the defend-ant the Savings Bank from disposing of the bonds held by it pending the action, and to obtain a judgment declaring the bonds and their coupons to -be illegal and void, and directing their surrender and cancellation. The bonds, which were received by the bank in good faith and for a valuable consideration, were issued by the railroad commissioners of the town, under chapter 75 of 1818, and chapters 12 and 146 of 1880, to take up bonds which had been previously issued to aid in the construction of a railroad. It was claimed that the bonds first issued were void, because the petition by which the bonding proceedings were instituted did not show that the petitioners were a majority of the taxpayers of the town, excluding persons taxed for dogs and highway taxes only.
    Upon an appeal from an order vacating a temporary injunction granted in the action:

      Held, that under chapter 435 of 1880, the plaintiff could maintain the action and that the court erred' in vacating the injunction.
    That chapter 435 of 1880 remained in force despite the fact that the act which it purported to amend, chapter 526 of 1879 was an amendment of chapter 162 of 1872, which act of 1872 had been repealed by chapter 245 of 188®.
    Appeal from an order made at the Erie Special Term, dissolving as injunction order.

      W. F. Cogswell, for the appellant.

      L. W. Thayer, for the respondents.
   Smith, P. J.:

The plaintiff, as a taxpayer of the town of Attica, brings this action to restrain the defendant Earnham, who is the supervisor of the town, from taking proceedings to levy a tax on the town to pay the interest on certain bonds, and to restrain the defendant, the bank, from disposing of the bonds, pending the suits, and to obtain a judgment declaring the bonds and their coupons to be illegal and void, and directing that they be surrendered up to be canceled.

In June, 18Y3, proceedings were instituted to bond the town in aid of the Attica and Arcade Railroad Company. Commissioners were appointed, who, in March, 18 Jé, issued the bonds of the town to the amount of $20,000 to the railroad company, and subscribed for 200 shares of the stock of the company. The petition by which the bonding proceedings were instituted, did not show that the petitioners were a majority of the taxpayers of the town, excluding persons taxed for dogs and highway taxes only. In 1880, a new railroad corporation was formed by the name of “ The Tonawanda Yalley Railroad Company,” and to it the Attica and Arcade Railroad Company, without consideration, transferred all its property, franchises and privileges, including said bonds. In the same year, the railroad commissioners of the town, acting in pursuance of chapter 75 of the Laws of 1878, and chapters 12 and 146 of the Laws oí 1880, undertook to issue, and did deliver to the Tonawanda Valley Bailroad Company in exchange for the first mentioned bonds new bends of the said town, to the amount of $25,700, payable in twenty years with interest. The defendant, the bank, bought $10,000 of those bonds for value and without notice that the bonds were invalid, except such notice as may be implied from the above mentioned defect upon the face of the petition. It is alleged in the papers on which the injunction order was based that the defendant Farnham, is supervisor of the town, that he was instrumental in procuring the bonds to be issued, and that he will not take any proceedings to protect the town' against the same, but that on the contrary he has declared that he will procure a tax to be levied by the board of supervisors upon said town to raise money with whieh to pay the interest due or soon to become due on said bonds. The bonds are shown to be negotiable, and the plaintiff alleges that he. fears the bank, unless restrained by the order of the court, will transfer the same pending the action, so that they cannot be affected by the judgment of the court.

The injunction order restrained the bank from transferring or collecting the bonds, and the defendant Farnham from taking any proceedings to levy a tax on said town to pay the interest thereon.

It is understood from the opinion delivered at Special Term, that the injunction order was vacated upon the authority of The Town of Venice v. Woodruff (62 N. Y., 462), there being in the present ease no danger of a loss of evidence as the alleged invalidity of the original bond appears on the face of the record, and there is no apparent reason to apprehend a multiplicity of suits.

We cannot avoid the conclusion that the case of the Town of Venice was misapplied by the learned judge at Special Term. That case was decided upon the ground that its facts did not bring it within the principles upon which courts of equity ordinarily proceed in restraining the transfer and directing the cancellation of written instruments. In the present case the plaintiff seeks to avail himself of an equitable remedy given by statute, and the only question is whether he has shown himself to be within the profusions of the statute which he invokes.

This action was begun in November, 1880. Section 1925 of the Code of Civil Procedure, which took effect on the first day of September preceding, gave a right of action to a taxpayer against the officers of his town, to prevent waste, etc., of the property of the town. But it may be questionable whether; under that section, the plaintiff was entitled to au injunction against'the defendant Farnham, upon the facts stated in his moving papers. The only waste suggested is that which would result from the apprehended tax upon the town, and the tax could be levied only by the' board' of supervisors. True, Farnham was a member of the board and' as such was entitled to a vote, but he could not control the action of the board. Inasmuch as he could not by any action of'- his owii< impose a tax upon the town or prevent the board from imposing-such tax, it may be doubted whether a cause of action is made out against him, under the section referred to.

But a few days after section 1925 was passed, thé legislature-adopted another act on the same subject (Laws 1880,- chap. 435),-which defines the waste or injury intended to be prevented,"as consisting in “ any officer or agent of any county, town or municipal corporation, by collusion or otherwise, auditing, allowing or paying, or conniving at the audit, allowance or payment of any fraudulent, illegal, unjust or inequitable claim,” etc. (See. 2.) The threatened action of the defendant Farnham, as stated in the moving papéis, clearly brings him within the terms of the act last cited.

The course of legislation on the subject-matter of the act is somewhat peculiar. The fiz-st statute giving a right of action to taxpayers to prevent waste, etc., by the action of public officers, was passed in 1872. (Laws 1872, chap. 161.) That act was amended by chapter 526 of the Laws of 1879. After the amendment the original act was repealed. (Laws 1880, chap. 245, § 1, sub. 28.) As chapter 526 of 1879 was nothing more than an amendment of the act of 1872, it would seem that it became a dead letter by the repeal-'bf the original act (Chegaray v. Jenkins, 5 N. Y., 376, per Ruggles, Ch. J., 379), unless a contrary intent was manifested by the legislature. That the repeal of the original act was not intended to sweep away the amendment in this instance we think is manifest; For after the repealing act was passed, and at the same session, chapter 435 already referred to was enacted, and it purports to be an amendment of the act of 1879. That circumstance, and the fact that chapter 435, although passed shortly after the repealing act was adopted, was to precede it as to the time of taking effect, indicates very clearly that the legislature did not intend to annul the act of 1879 by repealing the act of which it was an amendment, neither did they intend to supersede it by section 1925 of the Code, which also was passed previously to chapter 435, but was not to go into operation till some months after that chapter took effect. Again, whether the act of 1879 was repealed or not before chapter 435 of the Laws of 1880 was adopted, the latter act was intended to have the force of an original and independent statute. That is apparent from the -fact that it introduced new and independent provisions, and from the. further fact that the legislature of 1881 recognized it as in-force by providing for its repeal and substituting another act in its place. (Laws 1881, chap. 531.) "We conclude then that at the time when this action was commenced, chapter 435 of the Laws of 1880 was in force and under'its provisions the plaintiff was entitled to an inpinction against the defendant Farnham, to restrain him from doing the acts which he had threatened to. do, as alleged in the complaint. This, of course, is upon the assumption that the bonds in question are illegal and void in the hands of the bank; a point which we will now consider.

The defect in the petition on which the proceedings were based, in which the original bonds were issued, was fatal and avoided the proceedings, including the bonds so issued. (People ex rel. Green v. Smith, 55 N. Y., 135.) The original bonds being void did not constitute an indebtedness of the town, and the commissioners had no authority to issue new bonds for the purpose of paying or retiring them. Neither the general acts (Laws 1878, chap. 75 ; Laws 1878, chap. 317; Laws 1880, chap. 12) nor the special act (Laws 1880, chap. 146), relied upon by the learned counsel for the respondent, authorized the issuing of new bonds except for the purpose of paying or retiring an existing bonded indebtedness of the town. No indebtedness existed by reason of bonds absolutely void. The circumstance that the bank paid value for the bonds does not constitute a defense. The bonds recited that they were issued to retire other bonds of said town issued under the laws of the State authorizing municipal corporations to issue their bonds, and the bank is chargeable with notice of the defect patent upon the face of the record of the proceedings in which the original bonds were issued.

If these views are correct the plaintiff is entitled under the statute to that part of the injunction order which is directed to the defendant Farnham.

That being the case the remainder of the order which restrains the bank from transferring or collecting the bonds or their coupons during the pendency of the suit, is needed to make the statutory remedy effectual. (Metzger v. The Attica and Arcade R. R. Co., 79 N. Y., 171.)

The order appealed from should be reversed, with ten dollars costs and disbursements.

Hardin and Dwight, JJ., concurred.

So ordered.


text:
    THOMAS E. KINNEY, Appellant, v. ELLIS H. ROBERTS & CO., Respondent.

      Examination of a party before trial — it cam/not be ordered when all the evidence sought for must tend to show him guilty of a crime or render him infamous — To mitígate damages in a libel suit the facts must have been known to the defendant when he published the libel— The special county judge of Oneida county may make an order for the examination of a pa/rty before trial.

    This action was brought to recover damages for the publication by the defendant, in its newspaper, of a libel, charging that the plaintiff, who was then running for' office, was during the war for the suppression of the rebellion a rebel spy, and that he had been, as such, arrested within the Union lines and imprisoned some fourteen months. The defendant before answering, upon an affidavit showing that it intended to justify the statement and prove, in mitigation of damages, that it was published in full belief of its truth, procured an order requiring the plaintiff to appear and be examined. It appeared from the affidavit that the only facts and circumstances as to which the defendant desired to examine the plaintiff, were such as tended to show that the plaintiff was a rebel spy and had been arrested and imprisoned as such.

      Eeld, that as every issue as to which the testimony of the plaintiff was sought, was such that an affirmative answer to the questions to be put to the plaintiff, would subject him to a criminal prosecution, or to a penalty or forfeiture, or would render him infamous, lie would be privileged from answering them, and that the order should not have been granted, as it could only serve to compel the plaintiff to appear upon the record as pleading his privilege,

      That an examination should not have been ordered to enable the defendant to procure evidence which would tend to mitigate the damages, as the facts and circumstances to be available for that purpose must have been known to and believed by the defendant at the time of the publication of the libel.
    The special county judge of Oneida county has power to make an order requiring a party to appear and be examined, under the provisions of the Code of Civil Procedure, upon the application of his adversary.
    Appeal from an order of the Lewis Special Term, denying a motion to vacate an order requiring the plaintiff to be examined at the instance of the defendant.
    Spriggs, Matthews & Spriggs and A. Coburn, for the appellant.

      W. A. Matteson, for the respondent.
   Smith, P. J.:

This is an action for libel. The defendant is a corporation engaged in the business of printing and publishing a daily newspaper in the city of Utica. The plaintiff, in 1880, was a candidate for the office of county judge in the county of Oneida. His complaint alleges, in substance, that on the 28th of October, 1880, the defendant printed and published in its' newspaper an article charging that in the war for the suppression of the rebellion, the plaintiff was a rebel spy,” and as such was arrested within the Union lines, and imprisoned some fourteen months. The defendant has not answered, and it is alleged in its behalf that an examination of the plaintiff is necessary to enable it to frame an answer. The nature of the defense, as alleged in the affidavit on which the order for the examination was obtained, is (1.) That defendant did publish the allegations charged in the complaint, but that such allegations are not a correct statement of all it published concerning the plaintiff or of the substance and effect thereof — and the affidavit then sets out two other articles published by the defendant, on the 29th and 30th of October, 1880; (2.) That the allegations contained in said three publications "are true; (3.) That whatever the defendant published concerning the plaintiff was in full belief of its truth, and not from malice, and that defendant will give evidence thereof in mitigation of damages, as well as in justification; and (4.) That defendant denies each allegation in the complaint, except the publication set forth in the affidavit.

The affidavit further alleges, ou information and belief, that. at sometime during the war the plaintiff was a student in the University of Virginia, and was, in common with other students in that institution, enrolled in the militia, home guard or soldiery of the Southern States ; that during the war he visited the Northern States, and while returning to the south, was arrested by United States authorities within the lines of the United States army, and imprisoned for sometime in the old Capitol prison at "Washington; that M. NX. Jones, of Utica, had conversation with him in the prison concerning his arrest and imprisonment, and E. H. Risley, of Utica, has" had conversations with him on the same subjects; and "the affiant’s information concerning the same was obtained from those persons, and he believes it to be true.

The affidavit further alleges that in order to prepare defendant’s answer and the trial, and to conduct the defense, it is necessary and material to examine the plaintiff as to- when and how" long he attended said university; what his duties, aims and objects were in attending it; when, where and how be became enrolled, how long he was enrolled, whether he took the oath of allegiance to the Southern Confederacy; when and from what point he started on his last journey to the Northern States, his companions thereon, the route he traveled, the places and localities he visited, and other facts and circumstances connected with his journey, arrest and imprisonment, and the extent of his sympathy with the Southern States, and his efforts to aid them in the rebellion, if any; also as to what damages have been sustained by him by reason of the publication alleged in the complaint.

In King v. Leighton (58 N. Y., 383), the Court of Appeals held that the power to examine a party given by the old Code, was only a" substitute for the remedy by bill of discovery. And the reasoning of the learned judge who spoke for the same court in the case of Glenney v. Stedwell (64 N. Y., 120), is to the effect that such examination was intended as a full substitute, affording the same benefits which were allowed by the courts of equity through such a bill. The new Code differs somewhat from the old upon that subject in matters of detail, and section 389 of the old Code, which made the mode therein provided for the examination of a party exclusive, is now obsolete. Nevertheless the provisions of the two Codes, in respect to the examination of a party, are alike in substance, and the method of the new Code, like that of its predecessor, is a substitute for the old remedy by bill for discovery, and is subject to the rules by which that remedy was governed, except as otherwise provided by statute.

It was a fundamental rule of the Court of Chancery, that it would not compel a defendant to discover tliat which, if he answered in the affirmative, would subject him to punishment, or render him infamous, or expose him to a penalty". (McIntyre v. Mancius, 16 Johns., 592.) For that reason the court would not compel a defendant in an action for libel or slander to furnish evidence in answer' .to a bill for discovery, to maintain the action and subject himself to punitive damages, they being in the nature of a penalty. (Bailey v. Dean, 5 Barb., 297; March v. Davison, 9 Paige, 580.) And although the defendant, in an action of that kind, could compel a discovery on the. part of his adversary, in support of a plea of justification, he could not compel his adversary to discover any matter in such a case which would subject him to a criminal prosecution, or render him infamous, or which would subject him to a penalty or forfeiture. (Per Walworth, Ch., in March, v. Davison, sup., 585, and cases there cited.)

.We think that proceedings under the statute for the examination of a party are to be controlled by the rules above stated, .so far as they are applicable to the facts of each case. We do not intend to say that an order for the examination of a party should be refused whenever it appears from' the affidavit presented that some of his answers, if favorable to his adversary, will criminate himself or render him infamous. If there are other matters respecting which he is not privileged as a witness, his examination should be ordered and he be left to assert his privilege whenever a question is put to him which trenches upon it. ' But where it is apparent from the moving papers that every issue, upon which the testimony of the party is shown to be material and necessary, involves matters, and those only, in respect to which he is privileged, for the reason above stated, we do not think an examination should be ordered. The order would be of no avail to the party asking it, and it ought not to be granted to him for the sole purpose of compelling his adversary to appear upon the record as pleading his privilege. (Brandon Mfg. Co. v. Bridgman, 14 Hun, 122; Phoenix v. Dupuy, 2 Abb. N. C., 146.)

The only case we are aware of in conflict with these views is Corbett v. De Comeau (54 How., 506), cited by the respondent’s counsel. It was decided by the late Mr. Justice Sandford, of the New York Superior Court, at Special Term, and it ordered the defendant in an action for libel to be examined, the judge holding that the objection of privilege was prematurely made on the motion, and that the defendant could only avail himself of it when questioned as to the publication of the libel. "Whether it appeared in that case that the only fact sought to be proved by the plaintiff was the publication of the libel, is not shown by the report. If not, the decision may be sustained on that ground, but otherwise, we think, with due deference, that it does not .accord with the intent of the Code.

In the present case, the only matter set forth in the affidavit, in respect to which, it is alleged that the defendant needs the testimony of the plaintiff, are certain facts and circumstances tending to prove the truth of the allegation that the plaintiff was a rebel spy and was arrested and imprisoned as such, with the singlo exception of the plaintiff’s damages. As to the latter subject, it is enough to say that no special damages are alleged in the complaint, and the only damages recoverable are such as the law may imply from the publication of the alleged libel, the amount to be determined by the jury without proof of actual damages. The averments in the affidavit relating to damages may therefore be laid out of view.

So far as the testimony would tend to show the plaintiff guilty of the crime charged in the publication, it- may be said that the plaintiff was relieved from legal punishment therefor by the amnesty proclamations of 1868. (Appleton’s Annl. Cyclopaedia, 1868, pp. 753, 754.) But the proof would still tend to render the plaintiff infamous and the privilege remains. And as the privilege extends to the entire scope of the proposed examination, the order appealed from should be reversed on that ground.

' There is another view of the case leading ■ to the same result. The testimony sought is only material as tending to mitigate damages or to establish a justification. But no facts or circumstances can be shown in mitigation, except such as were known and 'believed by the defendant at the time of publishing the alleged libel. (Cooper v. Barber, 24 Wend., 105; Bush v. Prosser, 11 N. Y., 347; Hatfield v. Lasher, 81 N. Y., 216.) Of course it is not needed for the purpose of the defense that the plaintiff be examined in respect to matters that came to the knowledge of the defendant before the publication.

As to a justification, it is not alleged or shown by the affidavit that the defendant expects to defend on the ground that the single publication alleged in the complaint as the only cause of action was true. The position of the defendant in that regard, as alleged in the affidavit, is understood to be that the three publications set out in the affidavit taken together are true. This, coupled with the further averment that the allegations in the complaint as to the publication are not a correct statement of all that the defendant did publish concerning the plaintiff, and which the affidavit avers to be true, shows very clearly that the defendant does not propose to •justify the single publication alleged in the complaint. Should the defendant plead the matters thus alleged in the affidavit by way of juétification, it is questionable, to say the least, whether the pleading would be good. A justification must be as broad as the charge, and it should meet the very charge which is alleged as the cause of action. But this question and other questions which suggest themselves as to the relevancy of the last two publications set up in the affidavit as matter of defense, can be better disposed of after the answer is served, or when prjof is offered at the trial. We do not undertake to decide them, but we refer to them merely for the purpose of stating the difficulties that lie in the way of ordering an examination of the plaintiff, for the purpose of enabling the defendant to frame an answer setting up the defenses specified in the affidavit.

But waiving the considerations above suggested, it is difficult to see from anything alleged in the affidavit that an examination of the plaintiff is needed to enable the defendant to prepare a plea of justification as to the whole or any part of the publication alleged in the complaint. The answer may be on information and belief. The affidavit shows that the defendant had information on which it relied in making the publication. The names of the informants are given, and for aught that appears, the defendant can avail itself of their testimony at the trial. And if the charges in the publication do not exceed the information which they gave to the defendant, those witnesses can prove a justification by the declarations of the plaintiff made to them. Under these circumstances, it would seem that the proposed examination is not necessary to the defense, and that it would only serve as an experiment to enable the defendant to find out, in advance of the joining of issue, whether it can sustain its proposed defense by the testimony of the plaintiff. We ■ do not think the statute intends an examination for such a purpose. . (See Schepmoes v. Bousson, 1 Abb. N. C., 486; Winston v. English, 44 How., 398, 409; Beach v. Mayor, 14 Hun., 79.)

We have not intended to do anything more than to dispose of the application of the defendant to examine the plaintiff before • issue joined. In case the answer, when served, shall present one or more issues materially different from those set- out in the affidavit before us, the disposition we make of the present appeal is without ! prejudice to the right of the defendant to move for an examination of the plaintiff for the purpose of using his testimony at the trial.

A question was made on the argument as to the power of the special county judge of Oneida to make the order for the examination. We think there is no reason to doubt his power. Such offi..cer possesses all the powers and may perform all the duties of a county judge out of court. (Laws 1849, chap. 306, as amended by : chap. 108, Laws 1851.) When the act of 1849 was passed, county judges possessed the power in question (Laws 1848, chap. 379, old Code, § 345), and the power is continued to them by the present Code. (Sec. 872.) The fact that the latter section does not men- ■ tion special county, judges, does not divest them of the power conferred by the acts of 1849 and 1851. Those acts still operate to vest those officers with the powers possessed by county judges out of court.

For the reasons above stated, the order denying the motion to vacate, etc., should be reversed and the motion granted, with ten dollars costs and disbursements.

Hardin, J., and Dwight, J., concurred.

So ordered.


author: Smith, J.:

text:
    JOSIAH D. DECKER, Respondent, v. JAMES KITCHEN, Appellant, Impleaded, etc.

      Action against joint debtors — entry of judgment against the one served, only — ifght to proceed against the others— Code, secs. 375, 378 — Waiver of irregularities.

    In February, 1877, tbe plaintiff brought an action against the defendant Kitchen and one Dorn to recover a debt alleged to be due from them as copartners. Dorn only was served with the summons, and upon his failure' to appear a judgment was entered against him alone which described him as impleaded with Kitchen. In February, 1878, a summons in the form prescribed by. section 375 of the Code of Procedure was issued requiring Kitchen to show cause why he should not be bound by the judgment, accompanied by the affidavit required by section 378. Kitchen having appeared and answered, a’ judgment in the usual form was entered against him upon the trial of the issues raised by his answer. . .
    Subsequently he moved to vacate the judgment on the ground that the judgment entered against Dorn separately 'did not authorize the proceedings taken, and that the judgment against him, Kitchen, should only have been that he' be bound by the first judgment.

      Held, that the motion was properly denied; that the plaintiff’s irregularities in practice did not affect the jurisdiction of the court, and had been waived by the failure of Dorn and Kitchen’to take the objections at the proper time.
    Appeal from an order of the Monroe Special Term, denying a motion made by the defendant to set aside the judgment against him, entered on a verdict.

      Theodore Bason, for the appellant.

      J. D. Decker, respondent in person.
   Smith, J.:

In February, 1877, the plaintiff brought suit against the defendant, and one Dorn to recover a debt which he alleged they owed him as copartners. The summons was served on Dorn only. Dorn did not appear and judgment was entered against him alone. He was described in the judgment as impleaded with Kitchen.

In February, 1878, a summons was served on Kitchen to show cause why he should not be bound by the judgment against Dorn. The summons was in the form prescribed in section 375 of the Code •of Procedure, and was accompanied by an affidavit which was drawn in conformity to the provisions of section 378. Kitchen appeared and served an answer which, as finally amended, set up his discharge in bankruptcy. The issue thus joined was tried at the circuit and a verdict was rendered against Kitchen for the amount of the indebtedness of the firm, less the sum of $333.33 proved by Kitchen to have been paid by him on such indebtedness. Judgment in the usual form was entered on the verdict against Kitchen.

That judgment Kitchen moved to vacate on the ground substantially, that the judgment against Dorn separately did not furnish support to the proceeding instituted against him (Kitchen), and, also, that the only judgment that can be entered in the proceeding against him is, that he be. bound by the first judgment. The motion was denied at Special Term, and from the order there made this appeal is taken.

The learned judge who presided at the Special Term delivered an opinion, which indicates the reasons that controlled his decision. They are, in brief, that the judgment against Dorn alone was not authorized by the complaint in that action, which counted on a joint liability of both defendants; but that the judgment was irregular merely and not void, and it might have been amended if Kitchen had objected to it when he was sued upon it; that the irregularity does not affect Kitchen’s rights in any respect, and that he is too late in objecting to it for the first time after verdict. And that as to the form of the judgment against Kitchen, a proper construction of section 380 leads to the conclusion that a judgment' in such form as would have been entered had the action been brought against him alone was proper.

We are prepared to concur in the conclusion of the Special Term, and we think another view may be taken of the case leading to the same result.

It appeara by the papers used on the motion that, at the time when the suit was begun against Dorn, Kitchen was a resident of the State of New Jersey, and there is no evidence that at that time either he or the firm had any property within this State. He could not have been served with the summons personally or by publication. Under subdivision 4 of section 136 of the Code, as amended in 1866, the plaintiff might have sued Dorn alone, without joining his non-resident partner. If he had done sc, he would have been entitled to precisely the same judgment against Dorn that he actually recovered. The judgment being against Dorn alone, when both were sued, was irregular for that reason, but not void. Dorn might have procured it to be set aside for such irregularity, if he had moved seasonably, but not having done so, he waived the irregularity, and the judgment is valid against him, and is of the same effect as if Kitchen had not been named as a defendant, and Dorn in that case had not pleaded the omission.

We may therefore treat Kitchen as if he had not been named in the original action. It appears that the judgment recovered in that action against Dorn has not been satisfied. We have all the conditions, then, which would have entitled the plaintiff to maintain an action against Kitchen under the fourth subdivision of section 136, ob proving his joint liability. The same end that would have been reached by an action in that form has been obtained by the action that was brought. It is no other in any respect. In this view of the case, the summons by which Kitchen was brought into court, to have been regular, should have been in the form of a summons for the commencement of an ordinary action, but the irregularity in the form of the summons has been waived by the defendant Kitchen at several successive steps taken by him in the course of his defense. After he appeared the action proceeded in all respects as if he had been brought in by the sérvice of a summons in the ordinary form, and he fully acquiesced in that course until nearly five months after the verdict was rendered against him. The real questions in the case relate only to the form of procedure, and do not touch the subject of jurisdiction. In the view we have taken of the case, the court, by virtue of its general jurisdiction, had control of the subject-matter’ in each action and authority to render in each the judgment that was rendered. The case of Risley v. Phoenix Bank (83 N. Y., 318), cited by the counsel for the appellant, does not apply.

The appellant’s counsel cites Robertson v. Smith (18 Johns., 459) and other like cases, which .hold that a judgment against one- of several joint contractors in a separate action against him on such contract, extinguishes the original cause of action against all. Those cases do not aid him. All of them, except Waggoner v. Walrath (24 Hun, 443), were decided before the fourth subdivision of section 136 was enacted, and that case was not one of partnership, to which alone that subdivision relates. Besides, in that case both joint contractors were named as defendants and served with summons, and-the plaintiff elected to take judgment against one only.

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

Mullin, P. J., and Hardin, J., concurred.

So ordered.


text:
    STEPHEN R. RYAN, Appellant, v. JAMES M. HARDY, Respondent.

      Partnership — when an agreement therefor is not rendered invalid by reason of its providing for the use in the firm name, of the name of one not in fact a member — 1833, chap. 281.
    Articles of copartnership entered into between the plaintiff and defendant Hardy, provided that the former should be a secret partner and should employ-one Keefe “ as his agent to act for him and in his place and stead ” in all matters pertaining to the partnership, and that the firm name should be Hardy & Keefe. Business was carried on under this agreement Until the expiration of the term thereby fixed, when Hardy assumed to be the sole owner of the assets and excluded the plaintiff from the business and denied that he had any interest therein.
    In this action, brought by the plaintiff to compel him to account:

      Held, that the agreement was not void, as being in violation of chapter 281 of 1838, prohibiting any person from transacting business in the name of a partner not interested in the firm, or using the words “ and company,” unless they represented actual partners, and that the referee erred in dismissing the complaint on that ground.
    That the object of the act was to prevent individuals engaged in business from obtaining from the public a false credit; that in this case Keefe was liable ás a partner to third persons, and consequently this case was not within the intention of the statute.
    Appeal from a judgment entered on the report of a referee dismissing the complaint.

      O'Brien dé Emerson, for the appellant.

      MoOa/rtin & Williams, for the respondent.
   Smith, P. J.:

This action is brought for the dissolution of a copartnership between the plaintiff and defendant and for an accounting.

The referee held that the articles of copartnership between the parties were illegal and void as against the provisions of chapter 281 of the Laws of 1833, entitled “ An act to prevent persons from transacting business under fictitious names.” The first section of the act provides that no person shall hereafter transact business in the name of a partner not interested in his firm, and when the designation “and company” or “& Co.” is used, it shall represent an actual partner or partners. By the second section, an offense against the provisions of said act is made a misdemeanor, punishable by fine.

The articles in this case provided that the plaintiff should be a secret partner, that he should employ William Keefe “ as his agent to act for him and in his place and stead ” in all matters pertaining to the partnership, and that the firm name should be “ Hardy & Keefe.” All parties acted under that agreement, and the business of the firm was carried on by the defendant and Keefe personally, the plaintiff furnishing his share of the capital. At the end of the term provided for by the agreement, Hardy assumed to be the sole owner of the assets of the firm, excluded the plaintiff from the building in which the business of the firm had been carried on, denied that he bad any interest in the firm and refused to allow him any control, or to account to him. • The only question in the case is whether the agreement is void by the statute. ' , r

We think it is not within the meaning of the statute. The object of the act was to prevent individuals engaged in business from, obtaining a false credit and imposing upon the public by using the name of a person not interested in the firm. (Wood v. Erie R. Co., 72 N. Y., 196.) The respondent insists that the use of Keefe’s name was a violation of the statute. But the agreement contemplated not only that Keefe’s name should appear in the name of the firm, but also that he should take such part in the business of the firm as that he would hold himself out to the world as a partner. He did in fact take such.part. He was an ostensible partner. As such he was liable to third persons. (Guidon v. Robson, 2 Camp., 302; Fox v. Clifton, 6 Bing., 776; 3 Kent’s Com., 30; 1 Wait’s Law and Prac., 277.) The public was not imposed upon and no false credit wás obtained within the meaning of the act. The plaintiff, the defendant and Keefe were all liable for the engagements of the firm to third persons, although as between themselves the plaintiff and defendant were the only partners. If Keefe’s name had been used without his knowledge or consent the case -would have been different. In the case of Swords v. Owen (43 How., 176), cited by the defendant’s counsel, the words “ & Co.” represented no actual partner.’ So in O'Toole v. Garvin (1 Hun, 92). In Wood v. The Erie Railway Co. (supra), the plaintiff, in the name of “ Wood Brothers ” delivered a carriage to the defendant to be transported from Buffalo to New York, and the carriage having been injured while in the defendant’s possession, he sued to recover damages. ' Prior to the shipment,-the plaintiff had béen associated-with his brother in the business of manufacturing and selling carriages under the firm name of “Wood Brothers,” but the brother had retired from the firm. The court held that the fact that the plaintiff was doing business in the firm name in violation of the act referred to, and that the carriage was shipped in the firm name, was no defense to the action, on the ground that the transaction with the carrier was not within the provision of the act. In that case it was said that the act being highly penal, will not be extended by implication or construction to cases not within the terms of the act fairly interpreted. (See, also, Zimmerman v. Erhard, 83 N. Y., 74.)

The judgment should-be reversed, and a new trial ordered before another referee, costs to abide event.

Hardin and Dwight, JJ., concurred.

Judgment reversed, and a new trial1 ordered before another referee, costs to abide the event.


text:
    In the Matter of the Last Will and Testament of SARAH GATES, Deceased.

      Appeal from, the decree of a surrogate — when it is a separate and independent proceeding— Gode of Oiml Procedure, sec. 3847, sub. 11 — Irregularity in a notice of appeal— waiver of.

    An appeal to the General Term of the Supreme Court from the decree of a surrogate refusing to admit a will to probate, is a separate and independent special proceeding within the meaning of subdivision 11 of section 3347 of the Code of Civil Procedure, which provides that chapters 14 to 20 of that act shall only apply to actions or special proceedings commenced on or after September 1, 1880; and an appeal taken after that date from a decree previously entered is governed and must be regulated by the provisions of the said Code.
    A failure to specify in a notice of appeal, to .what court the appeal is taken, is a mere irregularity which the respondent waives by appearing, noticing the appeal for argument and putting it on the calendar.
    Motion on the part of James O. Gates and others, respondents, to dismiss the appeal taken by Amelia A. Dougall and others from the decree of the surrogate of Oneida county, refusing probate to an instrument purporting to be the last will and testament of Sarah Gates, deceased.

      Harvey 8. Bedell and John JD. Kernan, for the respondents.

      Joseph 8. Avery and A. M. Beardsley, for the appellants.
   Smith, J.:

The proceedings for the proof of the will of the above-named Sarah .Gates were commenced before the surrogate of the county of Oneida in December, 1879. On the 15th of February, 1881, the surrogate made a decree refusing probate, and on or about the 16th of April, 1881, the appellants sought to appeal from said decree and instituted proceedings for that purpose. They served a notice of appeal on all the parties interested and on the surrogate, and they filed an undertaking with the surrogate. The notice of appeal and the undertaking were in accordance with the provisions of the Code of Civil Procedure in respect to appeals from decrees of Surrogates’ Courts, except that the notice did not specify to what court the appeal was taken. A ease was made, amendments were proposed to it and tlie case was settled as required by section 2576 of tbe Code. The respondents’ attorney noticed the appeal for argument at the October term of this court and placed it on the calendar as a preferred cause, and in September last he stipulated in writing that the case and'notice of appeal be printed and that a printed copy be filed as the original.

The ground mainly relied on in support of the motion to dismiss the appeal is that the appeal should have been taken by petition, bond to the people, etc., as required by the practice prior to the Code of Civil Procedure, if any mode of appealing existed at' all; in other words, that at the time when the notice of appeal was served the only mode of appeal (if any) then existing, was that prescribed by the Revised Statutes and the rules of court which were in force prior to the adoption of the Code. The respondents contend that as these proceedings (that is, the proceedings before the surrogate for the proof of the will) were commenced before the 1st day of September, 1880, they are excepted from the operation of the Code (§ 3347, sub. 11); and that the repeal of the provisions of the Revised Statutes as to appeals from Surrogate’s Courts, by chapter 245 of the Laws of 1880 (§ 1, sub. 2, paragraph 3), abolished- .the only method of appealing from those courts. We are not prepared to adopt those views.

The repeal of the provisions of the Revised Statutes respecting appeals from Surrogate’s Courts, which was effected by chapter 245 of the Laws of 1880, was subject to several qualifications specified in section 3 of that chapter. One of those qualifications is in the following words: 5. It ” (such repeal) does not affect the power or authority of a court other than the Supreme Court, a Superior City Court, the Marine Court of the City of New York, or a County Court, in an action or a special proceeding, of which such a court retains jurisdiction, under the laws in force, after this act takes effect, nor does it affect any future proceeding taken pursuant to law in such an action or special proceeding except as otherwise implied in the Code of Civil Procedure.”

That qualification had the effect to except from the operation of .the repeal any proceeding thereafter taken, in an action or special proceeding then pending in a Surrogate’s Court, except as otherwise implied in the Code. We are of the opinton. that the proceedings for the proof of the will in question are to be regarded as “ an action or special proceeding” within the meaning of subdivision 5 above quoted. (Code Civil Pro., § 3334.) And it is clear that as those proceedings were commenced before the 1st day of September, 1880, they were pending in the Surrogates’ Court when the repealing act toolc effect; and the present appeal, taken in April, 1881, is to be regarded as a “ future proceeding ” in such action or special proceeding within the meaning of said enactment. The result of this construction is to leave the appeal to be regulated by the law and practice existing on the 31st of August, 1880, unless “otherwise implied in the Code.” On the same day on which the said repealing act took effect, chapters 14 to 21 of the Code of Civil Procedure went into operation. Chapter 18 relates to Surrogate’s Courts and proceedings therein, and the fourth article of that chapter treats of appeals from those courts, and contains the provisions which the appellants have attempted to follow in bringing their appeal. Turning to section 3341, subdivision 11 of the Code, we find that it provides that so much of chapters 14 to 20 as regulates the proceedings to be taken in an action or special proceeding, and the effect thereof, applies only to an action or special proceeding commenced on or after the 1st day of September, 1880, with certain specified exceptions not applicable to this case. If, therefore, we are right in saying that this appeal is a proceeding in “ an action dr special proceeding ” pending in the Surrogate’s Court, the implication from the provisions of the Code above referred to is clear that the present appeal is regulated by the Code and not by the former practice, it having been taken subsequently to the date above named. The case turns upon the question whether the appeal is a separate and independent proceeding within the meaning of the qualification above cited (Laws of 1880, chap. 245, § 3, subd. 5), or whether it is merely a continuation of the “ action or special proceeding ” in the Surrogate’s Court. We are aware that in some cases and for some purposes, an appeal has been held to be, not a new action, but merely a continuation of the original action. So held as to an appeal from the Special to the General Term, the case continuing-in the-same court (Johnson v. Yeomans, 8 How. Pr. R., 140), and as to appeals from Justices’ Courts to the Common Pleas, under the Revised Statutes, where the only remedy was a new trial in the appellate court. (Traver v. Nichols, 7 Wend., 434; Fenno v. Dickinson, 4 Denio, 84; Gormly v. McIntosh, 22 Barb., 271.) But as the appeal from the Surrogate is to another court, and may bring up the entire proceedings before the Surrogate for review, we think it is to be regarded as a proceeding in the “ action or special proceeding ” for the proof of the will within the meaning of the qualifying clause above quoted.

Subdivision 11 of section 3347 of the Code above referred to was amended on the 26th of duly, 1881 (chap. 681), by inserting immediately after the provision already referred to, the following: “ And all appeals taken from any order, sentence, decree or determination of a Surrogate’s Court, made or entered in such court on or after the 1st day of September, 1880, in any matter or proceeding pending or undetermined in such court on the 1st day of September, 1880, shall be taken and perfected, heard and decided in conformity to the laws and practice regulating appeals from orders, sentences and decrees of Surrogate’s Court in force in this State on the 31st day of August, 1880.” That provision does not apply to the present appeal which was taken before the provision was adopted. It strengthens, however, the views above suggested, since it implies very clearly that an appeal from the decision of a surrogate is a new proceeding within the meaning of chapter 245 of the Laws of 1880, which is in pari materia, and it also implies that but for the amendment such appeals would be controlled by the first clause of the section.

We conclude, therefore, that at the time when the appeal in this case was brought, the practice relating to such appeals was regulated by the Code of Civil Procedure. And the appeal is to be heaz’d upon a case to be made and settled as provided by section 2576 of the Code. That practice is prescribed by the first clause of section 1, chapter 40 of the Laws of 1881, which took effect before the appeal herein was brought, and which relates to future as well as pending appeals, taken after September 1, 1880, from any order, etc., of a surrogate in any matter commenced before the 1st of September, 1880.

The only other position taken by the respondents’ counsel in support of the motion is that the notice of appeal did not state to what court the appeal was taken. The omission was a mere irregularity, which the respondents have waived by appearing, noticing the appeal for argument and putting it on the calendar. (Pearson v. Lovejoy, 53 Barb., 407; S. C., 35 How. Pr. R., 193.)

The motion to dismiss is denied, with ten dollars costs.

Talcott, P. J., and Hardin, J., concurred.

Motion to dismiss appeal denied, with ten dollars costs.


text:
    MARY JANE FIESTER, Respondent, v. JOHN SHEPARD, Executor, etc., of ANNA HAVENS, Deceased, Appellant.

      WiO, — construction of a residuary devise — Order of a surrogate compelling an executor to account — when it involves a substantial light.

    A testatrix by her will devised all her property to a trustee, to apply .the same and the rents thereof to the support of her father during his life, and after his death to make out of the remainder thereof certain specified payments. It then provided as follows: “The residue of my estate, if any there shall be to be paid by my executor hereinfter named, to the person who shall last take care of my father before his death.”

      Held, that she did not intend to give the residue of her estate to the individual who should happen to be the last one to care with his own hands for her dying father, or to give it to the servant or agent who should attend him and care for him during his last sickness under employment and compensation from the trustee.
    Where the right of one, claiming to be a residuary legatee, to call the executor to account, is contested by the latter on the ground that the petitioner has no interest in the estate, the order of the surrogate .granting the applicatiomand compelling the executor to account involves a substantial right, and is appeal-able.
    Appeal from an order of the surrogate of the county of Livingston, requiring the appellant to account as executor of the will of Ann Havens, deceased, on the application of the respondent.

      S. Hubbard, for the appellant.

      J. A. Van Derlif, for the respondent.
   Smith, P. J.:

Ann Havens died in 1873, leaving a will by wbicb she gave all ber property to John Shepard, the appellant, in trust, to apply the same and the rents and profits thereof to the support of her father, Darling Havens, during his life, and after h'is death out of the remainder to pay her father’s funeral expenses, to erect a monument at his grave, to invest the sum of $200 at interest to provide for keeping the graves of her father, her mother and herself in good order, and to dispose of certain specific articles as therein directed.

The will then provided as follows: The residue of my estate, if any there shall be, to be paid by my executor hereinafter named to the person who shall last take care of my father before his death,” Lastly, the said John Shepard was named as sole executor. Darling Havens survived his daughter and died on the 24th of January, 1879. The respondent claims to be the person who “last took care of him before his death,” and on that ground to be entitled to the residuum of the estate given by the provision above quoted (which is designated in the will as the eighth subdivision of the second clause). And it is understood that the surrogate has sustained her claim in that respect, and upon that ground has ordered the executor to account upon her application.

The facts of the case to a considerable extent are undisputed. It' appears that the property left by Ann Havens consisted in part of a house and lot in Scottsburgh, in the county of Livingston, that had formerly been owned and occupied by Darling Havens. It had been used as a tavern for several years, and was so used at the time of the death of the testatrix. After her death Shepard, as trustee under the will, leased the premises to different persons from time to time, and arranged with the tenants to furnish Havens with room and board.

In April, 1878, Shepard leased the premises to Mrs. Fiester, the respondent, for $200 a year, reserving a bedroom for the use of Havens, and Mrs. Fiester agreed to board Havens and wash and mend for him for three dollars a week to apply on the rent. Under that arrangement Havens boarded with her till he died. In December, 1879, Havens was taken sick and Shepard then arranged with Mrs. Fiester to give Havens the use of a more convenient room and to take care of liim in his sickness, for which she was to have additional compensation. She testified that the amount of such compensation was not agreed on at the time, while he says it was fixed at two dollars a week in addition to what she was then receiving, but the discrepancy is not material since it appears that Shepard subsequently paid her a sum for her care of Havens in his sickness, with which she expressed herself satisfied. Under the arrangements above stated Havens continued at Mrs. Fiester’s house and was cared for there till he died. Much testimony was given before the surrogate for the purpose of showing what services Mrs. Fiester rendered in person, in and about taking care of Havens, which we do not think very material in the view we take of the meaning of the testatrix as expressed in her will. There is no question but that Mrs. Fiester faithfully performed her contract with Shepard, and that through her agency the sick man was well nursed and cared for. Thereby she earned the compensation which Shepard agreed to pay her and which she has received. But did she thereby become entitled also to the residue of the estate of Ann Havens ? In other words, did the testatrix intend that in case the trustee should sufficiently provide for the needs of her father in his last sickness by employing competent, physicians, nurses and attendants, the persons so employed and paid by him, or any one of them, in addition to being thus compensated, should take the residue of her estate? We have attentively considered the opinion of the learned surrogate and the arguments of counsel, but we are unable to sustain the claim of the respondent.

The respondent’s claim rests upon the ground that she personally nursed and cared for Havens in his last sickness. This fact she insists entitles her to the residue under the eighth clause, although she was employed by the trustee and was paid by him for her services. As was pertinently said in the brief of the appellant’s counsel, if the claim of the respondent is good, her servant, who also took care of the deceased by her direction, could claim on.the like ground. The intent of the testatrix was not to give the residue of her estate to the individual who should happen to be the last one with his own hands to care for her dying fathei’, or to give it to the servant or agent who should attend him and care for him during his last sickness, under employment and compensation from the trustee. Such a disposition ■ of her estate would have been whimsical and is not to be imputed to her, unless the language of the will requires it. We think it does not.

If the respondent had found Havens uncared for in his last sickness, and in that case had rendered her services of her own motion, a different case would have been presented.

The questions discussed on the argument, whether the clause in question is void for uncertainty, and whether the appellant, .as executor or trustee, is entitled, to the residue of the estate, need not be considered in this appeal. For the reasons above stated we think the respondent is not entitled to the residue, and that conclusion determines the whole case.

The respondent’s counsel makes the point that the order of the surrogate is not appealable, as it does not involve a substantial right. We think otherwise. The question involved is whether the respondent has any interest in the estate which entitled her to call on the executor to account. It is no answer to say that the surrogate may of his own motion require an accounting. He has not done so, but the proceeding out of which this appeal has arisen was set in motion by the respondent.

The order appealed from should be reversed and the proceedings remitted to the surrogate of the county of Livingston, with directions to enter an order dismissing the proceedings, the appellant to have costs of this appeal out of the estate.

Present — Smith, P. J.. Hardin and Dwight, JJ.

So ordered.