author: Earl, J.

text:
    Wallace M. Kilbourne, Sup'r, Resp't, v. The Board of Supervisors of Sullivan County, App'lt.

      (Court of Appeals,

      Filed February 7, 1893.)

    1. Town bonds—Sinking fund.
    A claim by a town for state taxes collected from a railroad and misappropriated by the county treasurer need not be presented to the board of' supervisors for audit, but an action may be maintained to compel the investment of such money in the sinking fund.
    2. Same.
    Although a portion of the state taxes were raised for school purposes, yet this does not make them school taxes under the meaning of the act of 1869.
    3. Same—Limitation.
    The burden of proof is upon defendant to show that the money was-misappropriated more than six years before the action was commenced.
    ' 4. Same—Equity.
    While in actions a-t law the whole cause of action must have arisen he-fore the commencement of the action and no relief can he given _ as to anything which occurred subsequently; such is not the rule in equitable actions.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff, entered on trial before the court without a jury.

      Lewis K Carr, for app’lt;

      T. F. Bush, for resp’t.

       Affirming 41 St. Rep., 838.

   Earl, J.

By § 4 of chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871, which we will hereafter, for convenience, cite as the act of 1869, it is provided that “ all taxes, except school and road taxes, collected for the next thirty years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village or city, for which said town, village or city has issued or shall issue bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county in which said town, city or village lies ; ” and then it is made the duty of the treasurer, with the money so paid to him, to purchase the bonds of the municipality issued to aid in the construction of the railroad, when the same can be purchased at or below par, and cancel them. But in case he cannot so purchase the bonds, then he is •required to invest the money, with the accumulated interest thereon, in the bonds of this state, or of any city, county, town or village thereof, to be held by him as a sinking fund for the redemption of the bonds issued by the municipality for the construction of the railroad. That act applied to every railroad for the construction of which any of the municipalities had issued or might thereafter issue its bonds; and all the taxes, except school and road taxes, collected from such a railroad were to be devoted to the purposes mentioned in the act. Matter of Clark v. Sheldon, 106 N. Y., 104; 8 St. Rep., 537.

Prior to the year 1874, the property of the New York, Oswego & Midland Railroad Company was exempt from taxation, and in that year, by chapter 296, the law exempting such property from taxation was repealed, and the property of that company was made liable to taxation ; and it was provided that all money collected from the property of the company for county taxes, in any of the towns or municipalities which had issued bonds in aid of its construction, should be appropriated to such towns or municipalities, and paid over to the railroad commissioners thereof, to be expended by them in payment of the principal and interest of such bonds.

The New York, Oswego & Midland Railroad was constructed through the town of Liberty, and that town under the provisions of chapter 398 of the Laws of 1866, issued its bonds in aid of the construction thereof to the amount of $108,000. After 1874, taxes were imposed upon and collected from the railroad company in that town, and so much of the money thus realized as was paid over to the county treasurer of Sullivan county was used and disposed of by him in the discharge of county obligations. In 1879, the town, through its supervisor, commenced an action against the supervisors of Sullivan county, based upon the act of 1874, to recover the money collected in that town from the railroad company for county taxes, and paid over to the county treasurer, and used and applied by him for county purposes prior to the commencement of that action. That action wras put at issue and brought to trial, and the trial court awarded the plaintiff judgment for both the county and state taxes paid to the county treasurer and misappropriated by him. From that judgment the defendant appealed to the general tei’m, where it was modified by striking therefrom so much of the recovery as related to the state taxes, and, as thus modified, it was affirmed, and upon the further appeal of the defendant to this court the general term judgment was affirmed. Bridges v. Supervisors of Sullivan County, 92 N. Y., 570. That action was based solely upon the act of 1874, and as that act did not deal with the state taxes it was held that the plaintiff could not, for that reason, recover them. Under that act the county taxes were appropriated to the municipality in, which the taxes on the railroad were imposed, and they were required to be paid by the collector to the railroad commissioners of the municipality, who were to use the money to pay the principal and interest of its bonds.

Under that act, as the money was to be paid to and belonged to the municipality, it was held that it could recover a money judgment for the amount thereof. In the recent case of Woods v. Supervisors of Madison County, 49 St. Rep., 685, we held that the acts of 1869 and 1874 could stand together, and that the municipalities which had issued bonds in aid of the construction of the Midland railroad were entitled to the benefit of the county taxes under the act of 1874, and of the state taxes under the act of 1869. Under the act of 1869 the money collected by taxes upon the property of the railroad company is not to be paid over to the municipality, but is to be paid to the county treasurer, and by him used and invested for the purposes specified in the act. The 'prior action was an action at law. This is an action in equity. That action was based upon a distinct cause of action under the act of 1874, and it in no way legally involved the taxes in question in this action. It is, therefore, very clear that the recovery in that action is in no sense a bar to a recovery in this.

This action was brought under the act of 1869 to recover the state taxes collected from the New York, Oswego & Midland Railroad Company, and its successors, the New- York, Ontario & Western Railroad Company, in the town of Liberty, from the years 1874 to 1887, both inclusive; and in the complaint the plaintiff alleges the imposition of the taxes upon the railroad and their collection, and that they were paid to the treasurer of the county, and by him used for'the benefit of the county. A judgment is prayed for the recovery of the money, with interest, and that the several sums, with interest thereon, be levied and collected from the taxable property of the county and paid to the treasurer thereof for the purpose of purchasing and canceling the outstanding bonds of the town, or for investment as a sinking fund, pursuant to the provisions of the statute. The action was put at issue and resulted in a judgment in favor of the plaintiff.

Before the commencement of the action the plaintiff presented his claim to the board of supervisors and demanded that it should levy upon and collect from the taxable property of the county of Sullivan the several sums of money with interest thereon to be paid to the county treasurer for the benefit of the town, and to be used or invested by him in conformity with the provisions of the statute, which demand the board of supervisors refused to comply with.

The learned counsel for the defendant now claims that the remedy of the plaintiff was not by an action, but that he should have either reviewed the action of the supervisors by certiorari or should have compelled them to act in pursuance of the demand by mandamus. We do not think that the claim of the plaintiff was one which he was bound to present to the board of supervisors for audit and allowance like other ordinary claims and charges against the county. While this has been styled an action for money had and received by the county to and for the use of the town,' it is really an action based upon wrong, the misappropriation of the money by the county through its agent, the treasurer. Instead of using and applying the money as required by the statute, the county wrongfully appropriated it to the discharge of its obligations to the state. Rothschild v. Mack, 115 N. Y., 1; 23 St. Rep., 922; Strough v. Board of Supervisors, 119 N. Y., 212; 28 St. Rep., 967; People v. Wood, 121 N. Y., 522; 31 St. Rep., 860. Where a claim against a county is one based upon a wrong •committed by it, or attributable to it, the claimant is not bound to submit it to the board of supervisors for audit and allowance. Brady v. Supervisors of New York County, 2 Sandf., 460; aff’d 10 N. Y., 260; Newman v. Supervisors of Livingston County, 45 id., 676. The plaintiff had against the county an equitable cause of action, and he may also have had a legal cause of action against it, ex delicto, to recover damages for the misappropriation of the money. He may have had the right to choose either form -of remedy. But in no aspect of the case was he bound to submit his claim to the board of supervisors for audit. The plaintiff, therefore, committed no error in seeking his remedy by action rather than by one of the special proceedings mentioned.

The state taxes collected from the railroad company were in part imposed to raise money for school purposes to be paid to the state treasurer, and distributed by him through the proper officers to the various school districts in the state. It is, therefore, claimed that the plaintiff was not entitled to recover for so much of the state taxes as were thus for school purposes. It is very manifest that these taxes paid into the state treasury for school purposes are not the school taxes excepted in the act of 1869. The act appropriates all the taxes as provided therein except “ school and road ” taxes. The school taxes thus excepted manifestly have reference to those taxes collected in the various districts and municipalities for local school purposes. All the taxes paid into the state treasury are for state purposes, and it in no way interferes with the school system of the state to intercept and appropriate a portion of these taxes as provided in the act; and it would work great embarrassment and injustice if the taxes imposed in the various school districts of the state were required to be so appropriated.

It was held in the case of Strough v. Supervisors, supra, that the cause of action in a case like this arises when the misappropriation of the money is made by the county treasurer, and in this case it arose when the county treasurer appropriated' the money to the payment of the county obligations to the state. This action was commenced on the 24th day of December, 1888,. and the plaintiff recovered for the tax of 1881, which was paid to the county treasurer early in 1882. The defendant claims that that tax was misappropriated by the county treasurer more than six years before the commencement of this action, and hence that the plaintiff should not have recovered on account of it. But the answer to this claim is that the burden was upon the defendant to show that this money was misappropriated more than six years before the commencement of the action, and this the proof fails with certainty to show. Hence there was no error in holding that the right to recover on account of that tax was not barred by the statute of limitations.

The plaintiff’s recovery included the tax of 1887, and thát tax, although paid to the county treasurer long before the commencement of this action, was not misappropriated until a few days after it was commenced, and the defendant objects that it was erroneous to include that tax in the recovery. It was included in the complaint and in the plaintiff’s demand for relief. This is an equitable action, and the tax depends upon the same rights as the taxes for the other years. It was involved in the same controversy, misappropriated in the same way, and the defendant’s obligation for the tax of that year was the same as for the taxes of all the other years. It was a part of the plaintiff’s controversy with the defendant, and, therefore, although it was not misappropriated until a few days after the commencement of the action, it was not erroneous in this equitable action to afford the plaintiff relief in reference to it. While in actions at law the whole cause of action must have arisen before the commencement of the action, and no relief can be given as to anything which occurred subsequently, such is not the rule in equitable actions. In such an action, the court having obtained jurisdiction of the parties and subject of the action, will bring its relief down to the trial and thus make an end of the litigation, so far as it pertains to the matter in controversy between the parties. That is a familiar rule in equity, as illustrated in the numerous authorities cited by the counsel for the plaintiff.

We think, therefore, there was no error in including the tax of that year in the recovery awarded the plaintiff.

For these reasons, and those quite satisfactorily set forth in opinions delivered in the court below, we think the judgment should be affirmed,' with costs.

All concur.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Charles Barnum, Sup'r, Resp't, v. The Board of Supervisors of Sullivan County, App'lt.

      (Court of Appeals,

      Filed February 7, 1893.)

      ma bonds—Sinking fund—Renewal bonds.
    Where a town, under a special act, issues new bonds to refund original bonds and coupons, it is the renewal and extension of an old debt instead of the creation of a new one, and the town is entitled to the same right in regard to the application of the railroad taxes to their payment under the statute of 1869, as it was under the original bonds.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff rendered- on trial before the court without a jury.

      Lewis E. Carr, for app’lt;

      T. E. Bush, for resp’t.

       Affirming 41 St. Rep., 845.

   Finch, J.

All the questions in this case, except one, are covered by the opinion in Kilbourne v. The Supervisors of Sullivan Co., and need not be further discussed. The question peculiar to this case grows out of the refunding of the bonds of the town under the act of 1883. The facts are briefly these. The town of Thompson issued its bonds in aid of the Monticello & Port Jervis R. R. Company, under the act of 1868, chap. 553, as amended by the act of 1869, chap. 96. The bonds were delivered to the railroad company in exchange for its stock, and passed by sale into the general market The town undertook to resist its liability on the bonds, and in Horton v. Town of Thompson, 71 N. Y., 513, the whole issue was declared void by this court; but actions were afterwards brought in the Federal court upon the matured coupons, and the bonds held to be valid and binding obligation! of the town. Thompson v. Perrine, 103 U. S., 806; 106 id., 589. Judgments followed as of course, and the town found itself liable upon its bonds, notwithstanding the favorable decision in this court. Our view of the law did not help or mitigate the actual condition, and the town was compelled to take steps to provide for the payment of the debt which a competent court had adjudged to exist. The original bonds drew seven per cent interest. In 1883 an act was passed (chap. 226) which authorized the town to issue bonds at a lower rate of interest to refund its original debt. With that new issue the judgments for interest were discharged, and the old bonds paid off and retired, so that the new issue is alone outstanding.

It is now claimed that the act of 1869, chapter 907, as amended in 1871, chapter 283, under which this action is brought, does not cover the new issue of bonds, but spent its entire force upon those originally executed. A doctrine of similar character was rejected by us in City of Poughkeepsie v. Quintard, 136 N. Y., 275; 49 St. Rep., 336. We there maintained the substantial identity of the one existing debt, although in the process of refunding the old bonds had been paid off. We regarded it as the renewal or extension of an old debt instead of the creation of a new one. The reasons are quite as clear in the present case. The new bonds stand in the place and stead of the old securities; they represent in all respects the same debt and the same liability; they are practically and substantially bonds issued in aid of the railroad company, notwithstanding their new form and later issue; for they represent and secure that identical debt, and were created to fund and pay it. There is not a single reason which justifies the application of the act of 1869 to the old bonds which does not equally apply to the new. The theory of the act was that the town had borne the burden of creating a new taxable property within its limits, and should have the benefit of the taxes resulting, until its burden was lifted. Refunding has only reduced the annual interest pressure, but has not removed the burden, and to say that the technical payment of the old bonds as a necessary step in the process of renewal has at all satisfied the purposes and objects of the act of 1869, is to put form in the place of substance, and make the mere security for the debt the object of protection, instead of the debt itself. Such a construction would destroy and render ineffectual the obvious purpose of the law in every case where the saving of interest by a permitted refunding can only be accomplished by retiring and paying off the old bonds with the proceeds of the new.

The question of costs included in the judgments will not arise until they are solely represented by outstanding bonds.

The judgment should be affirmed, with costs.

All concur.


author: Andrews, Oh. J. Pee Curiam.

text:
    Frederick Loeser, App'lt, v. Herman Liebmann et al., Resp'ts (2 cases).

      (Court of Appeals,

      Filed February 7, 1893.)

    Landlord and tenant—Lease—Fixtures.
    A lease for eleven years of store property required the lessees to erect a certain building and contained a provision “ that all fixtures, counters, shelving, boilers, machinery, elevators, lighting and heating apparatus in said buildings at the expiration of this lease are to become the property of the lessees” in case they should be called upon to erect party walls “at the expiration of this lease or vacating of said premises by the lessees before such expiration,” but in case the lessor shall not demand their erection, then said fixtures, etc., “to become the property of the lessor at such expiration.” Meld, that the lessor could await the expiration of the tenancy before exercising his option to compel the tenants to erect division walls or to retain the premises in their existing condition, and the title to the fixtures, etc., became vested in the landlord “at such expiration,” and the words were not used to limit his right to fixtures only which might not then have been removed from the premises.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment of special term of Kings county dismissing plaintiff’s complaint on its merits and granting defendants additional allowance.
    On May 1, 1884, the plaintiff executed to the firm of Frederick Loeser & Company, of which firm the plaintiff was a member, a lease of the premises known as numbers 10 and 12 Tillary street, Brooklyn, for eleven years from said date. In 1887, the plaintiff retired from the firm, and the defendants succeeded to the business under the firm name of Liebmann Brothers & Owings, and, with the consent of the plaintiff, became the assignees of the lease.
    The firm of Frederick Loeser & Company were dealers in dry goods, and, when the lease of May 1, 1884, was executed, held a lease of premises numbers 14 and 16 Tillary street, which adjoined numbers 10 and 12, from one Emilie Loeser, dated May 1, 1880, for the term of ten years, which the firm occupied for their business.
    The plaintiff became the owner of the premises numbers J 2 and 14, and of the lease of May 1, 1880. It was contemplated when the lease of May 1, 1884, was made, that the premises in both leases should be occupied as one store, having no divisions. The lease of May 1, 1880, contained a covenant by the lessees, on the expiration of the lease, to disconnect the buildings, on the premises leased, from the adjoining buildings, by constructing proper walls at their expense, and that all improvements placed by the lessees in the said buildings should be deemed fixtures not to be removed. It is inferable that Frederick Loeser & Company, at the date of the lease of May, 1, 1880, also occupied the adjacent premises numbers 10 and 12.
    The lease of May 1, 1884, contains the following provisions, which have given rise to the present controversy:
    “ And the parties of the second part (lessees) hereby agree to forthwith demolish the buildings now upon the premises hereby let and leased, and to forthwith erect, at their own cost and expense, thereon, a building as contemplated by the plans and specifications drawn up by Gr. L. Morse, architect, and approved by the parties hereto, and further to erect substantial party walls, at the expiration of this lease or vacating of said premises by the lessees before such expiration, between the buildings now known as Nos. 10,12 and 14 Tillary street, in case the party hereto of the first part so requires and demands, with a separate entrance to each store on Tillary street for ground floors, and a separate stairway leading to upper stories from Tillary street, and with separate gas, water and sewer connections for each building.” “ And it is further mutually agreed between the parties hereto that all fixtures, counters, shelving, boilers, machinery, elevators, lighting and heating apparatus in said buildings at the expiration of this lease are to become the property of the lessees in case the lessees shall be called upon to erect the party walls hereinbefore contemplated to be built, but in case the lessor shall not demand the erection of said party walls, then the said fixtures, counters, shelving, boilers, machinery, elevators, lighting and heating apparatus to become the property of the lessor at such expiration.”
    The lessees, pursuant to their covenant above recited, erected a new building on the premises Nos. 10 and 12, and occupied it in connection with the building on Nos. 14 and 16 as a single store, and they placed in the basement of the new building boilers and machinery for lighting and heating the whole premises occupied by them, and placed elevators in Nos. 10 and 12, which connected with all of said premises.

      This action was brought to procure an injunction restraining the defendants from removing from Nos. 10 and 12 any of the articles specified in the lease, placed there by the lessees, upon the allegation that they threatened, and were about to remove them. The special term rendered judgment dismissing the complaint on the merits, which was affirmed by the general term. Other facts are stated in the opinion.

      William G. Wilson, for app’lt;

      Freling E. Smith, for resp’ts.

       Modifying and affirming 39 St. Rep., 12.

   Andrews, Oh. J.

The court found that the defendants had not threatened to remove from the leased premises any of the fixtures mentioned in' the lease. This finding was based on conflicting evidence, and having been affirmed by the general term is not subject to review in this court.

Upon this finding the complaint should have been dismissed on the ground that no case had been made for equitable relief.

The complaint sets forth the covenant in the lease of Nos. 10 and 12 Tillary street, Brooklyn, under which the plaintiff claimed that the “fixtures, counters, shelving, boilers, machinery, elevators and heating apparatus ” placed in the building by the defendants could not be removed by them during the term. It was not alleged that the defendants were proceeding to remove the articles mentioned, but the only ground alleged for an injunction was that they threatened such removal, without awaiting the expiration of the lease. This ground having been found not to exist, the whole basis of the equitable action failed, and the proper disposition of the case would have been to dismiss the complaint, without determining the construction of the covenant, but the trial court proceeded to construe the covenant, and held that it extended only to such articles of the kind mentioned as should be in the building at the time of the expiration of the lease, May 1, 1894. In substance the court held that the lessees were entitled to remove the whole of the fixtures at any time prior to the expiration of the term, and that only such fixtures as they should permit to remain on the premises until that time were subject to the operation of the covenant, and directed judgment in favor of the defendants dismissing the complaint on the merits, and judgment was entered in conformity with the decision.

We do not concur in the construction given to the covenant by the courts below. The lease was for a term of eleven years, and contained a covenant by the lessees against assigning or underletting, or making any alterations in the new building without the written consent of the lessor. The lessees were to erect a new building on the leased premises at their own cost, according to plans, which had been agreed upon. It is a clear inference that it was contemplated by the parties to the lease, that for the beneficial use of the combined property embraced in the two leases the lessees were to place in the new building a plant for lighting and heating the whole premises, and elevators communicating with the different floors of the combined buildings. On the termination of the lease the landlord might desire to continue to rent the premises embraced in both lenses as one store, or he might consider it more advantageous that the premises should be divided into separate stores. It is plain that the covenant in question had reference to this situation. The option was, therefore, reserved to the landlord to require the tenants on the expiration of the lease to erect division walls, dividing numbers ten and twelve into separate stores, or to retain the premises in their existing condition, In case the landlord elected to retain the premises as they were, the tenants were to be released from their covenant to build division walls, but in that case the fixtures were to become the property of the landlord, as they would still be required for the use of the premises as a whole. In .case the landlord should require the tenants to build the division walls, then the fixtures were to belong to them, and the right to remove them would necessarily follow. The covenants provided for mutual equivalents. If the tenants were required to build the walls, they were to have the fixtures. If not required to build them, the landlord was to have the fixtures. In the one case the landlord would take the walls in place of the fixtures, and in the other, the tenants would take the fixtures and build the walls.

It is also plain, we think, that the landlord could await the expiration of the tenancy before exercising his option. The tenants had bound themselves to erect the walls “ at the expiration of the lease,” or upon vacating the premises before that time. This covenant is followed by the provision defining the rights of the parties in the fixtures. The construction of the courts below is sought to be sustained upon the words, ‘‘ in said buildings at the expiration of the lease,” which are found in the clause which declares the right of the lessees to the fixtures in case they are required to erect the walls. It is only, as is insisted, fixtures “in the building at the expiration of the lease” which are to become the property of the lessees, and this implies, as is claimed, that only fixtures not removed by the tenants before that time were contemplated as within the scope of the alternative clause.

But the alternative clause which regulates the right of the landlord, in case he elects not to require the erection of the partition walls, declares that in that case the fixtures are “ to become the property of the lessor at such expiration." The words “ at such expiration ” point the time when the title is to become vested in the landlord, and were not used to limit his right to fixtures only which might not then have been removed from the premises. If under the option the tenants became entitled to the fixtures, their rights were protected by giving them the fixtures on the premises at the expiration of the lease, since such as they might have removed before that time they would have had the benefit of already. But the right of the landlord to take the fixtures in lieu of the walls, would have been a barren one if the tenants might rightfully remove them all during the term.

There is a little obscurity in the language of the covenants, but construing them according to their manifest purpose, it was the intention of the parties to subject fixtures placed by the tenants in the building during the term to the exercise of the option of the landlord at the expiration of the lease. This construction does not involve the inconveniences insisted upon. It would not prevent changes and substitutions from time to time by the tenants of new arrangements made in good faith and in the' ordinary course. But they could not, we think, dismantle the premises and remove fixtures to deprive the landlord of the benefit of his option.

We think the judgment should be modified by declaring the complaint dismissed on the ground that no case of equitable cognizance was established, and, as so modified, the judgment should be affirmed, with costs to defendants.

All concur.

The following is the opinion in action No. 2.

Pee Curiam.

We think no case for an injunction was made out, assuming the construction of the lease claimed by the plaintiff to be the true one.

The judgment should be modified as in the case No. 1, between the same parties, and, as modified, it should be affirmed, with costs to defendant.

All concur.


author: Per Curiam.

text:
    Charles A. Cowen et al., App'lts, v. Margaret Paddock, Impl'd, Resp't.

      (Court of Appeals,

      Filed February 7, 1893.)

    1. Mechanics’ lien—Consent oe owneb.
    A non-resident owner of real estate made a contract for its sale to W., but gave him no right to possession until he had 'paid $80,000. W. entered without permission and began making excavations, upon discovering which the owner forbade the cominuance of the work. Upon W.’s paying $5,000 she consented that he might finish the excavation, but refused to permit him to go further until the balance was paid; but subsequently W. continued his work and built the walls, etc. Plaintiff filed a mechanic’s lien for work done and materials furnished long after W. was in default and his contract forfeited. Held, that the lien could not be sustained.
    8. Same.
    The facts from which the inference of an owner’s consent may be drawn must be such as to indicate at least .a willingness on his part to have the improvements made, or an acquiescence in the means adopted for that purpose, with knowledge of the object for which they are employed.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered on the report of a referee in favor of defendant Paddock.

      Henry G. Atwater, for app.’lts;

      Charles Hdward Souther, for resp’t
   Per Curiam.

The plaintiffs brought this action to foreclose three several mechanics’ liens upon premises owned by the defendant, respondent, at the corner of One Hundred and Twenty-fourth street and Seventh avenue in New York city. The notice of lien of the plaintiff Cowen specified labor done and materials consisting of cement, broken stone, building stone, brick, blue stone and. granite furnished in the erection and construction of the concrete bases, foundations, foundation walls, vaults and stone plates of the Mew West End Theater building; that of the plaintiffs Post, and McCord, iron beams, tie rods and anchors for the vaults; and that of the plaintiff, Griebel, the preparation of the plans, drawings and specifications for the entire building, and for extra work and services as an architect. The total of the three claims is $14,454. Mo privity of contract between the plaintiffs and the respondent is shown or claimed. It is sought to charge her property with this liability solely on the ground that the work was done and the materials furnished with her. consent. Each of the notices of lien states that the work was done and the materials furnished for the defendant, Allen II. Wood, and that he held a contract for the purchase of the premises from the respondent. They all aver that he entered into and took possession thereof and built thereon with her consent.

The cause was tried before a referee, and when the plaintiffs announced that they had introduced all the evidence they intended to offer upon this branch of the case, the respondent moved that the complaint be dismissed as to her, for the reason that it did not establish such a consent on her part to the performance of the work and the furnishing of the materials as would.render her or her property liable therefor under the Mechanics’ Lien Law, which motion was granted, and the plaintiffs excepted Mo findings of fact were made by the referee or proposed by either party.

The referee filed a report consisting of a recital of the proceedings before him with his conclusions of law, which were that the plaintiffs had failed to prove or establish .either of the causes of action set forth in the complaint, and that the motion of the respondent to dismiss the complaint should be and was granted, and that she was entitled to judgment dismissing the complaint with costs, which was thereupon entered, and from an order of the general term affirming the same this appeal has been taken.

In this condition of the record the dismissal of the complaint must be deemed equivalent to a nonsuit, and to maintain the judgment the respondent must show that a finding by the referee that the work was done and the materials were furnished with her consent would have been so destitute of sufficient evidence to support it that it would, as matter of law, have been error. Place v. Hayward, 117 N. Y., 487; 27 St. Rep., 710. There is no material conflict in the testimony, and it was of such a character that we think a finding that the improvements set forth in the complaint were made with the consent of the respondent would have had no competent proof to sustain it.

. It is admitted that all the work was done and materials furnished under contracts made between the plaintiffs and the defendant Wood, and that the plaintiffs did not know the respondent or her agents in these transactions, and did not have any communications or dealings with her or them upon the subject. If she is to be held liable, it must be upon the ground that she in some manner assented to, or acquiesced in, what Wood did, or caused to be done, upon the premises. But the proof is all one way, that when she discovered he was at work upon the lot, she objected and insisted that the work must stop until he had performed the contract of purchase on his part, and had become entitled to a deed of the property and to its possession. Her agreement with Wood gave him no right to the possession until he had paid $20,000; $5,000 down and $15,000 at the expiration of two months from the date of the contract, when a deed was to be given, and a mortgage executed for the balance of the consideration. Until these things were done Wood had no ownership or control of the property, and no authority to create a charge thereon by the employment of labor or the purchase of materials for its improvement, except to the extent of his interest as vendee.

It is obvious that the respondent and her attorneys understood that if she consented to the performance of any work or the furnishing of materials for the erection of buildings on the lot, before the execution of the deed to Wood, and of his mortgage to her, the parties making the improvements might acquire a lien which would be superior to her title, and to any mortgage which she might subsequently take from him under his contract. She manifestly intended to prevent the occurrence of such a result. The premises consisted principally of a vacant lot, and when Wood went upon it some two weeks after the contract was executed, and before the first payment of $5,000 had been made, and commenced the work of excavation for the foundation walls of the building, it does not appear that he had any permission from the respondent to do so, but on the contrary it is shown that when she discovered he was there and had begun the excavation for the foundation of the building she forbade the continuance of the work. Subsequently the $5,000 payment was made, and there is some evidence that she then consented that he might finish the excavation; but the proof is very clear that she declined in the most emphatic terms to permit him to go any further, until the $15,000 payment had been made as agreed. The plaintiffs’ claims are not for excavating, but for work done and materials furnished after May 1st, and long after Wood was in default, and his contract had become forfeited.

While it is doubtless true that the consent required by the lien law need not be expressly given, but may be implied from the conduct and attitude of the owner with respect to the improvements which are in process of construction upon his premises; still the facts from which the inference of a consent is to be drawn must be such as to indicate at least a willingness on the part of the owner to have the improvements made, or an acquiesence in the means adopted for that purpose, with knowledge of the object for which they are employed. Schmalz v. Mead, 125 N. Y., 188; 34 St. Rep., 779; Miller v. Mead, 127 N. Y., 544; 40 St. Rep., 177; Otis v. Dodd, 90 N. Y., 338; Burkitt v. Harper, 79 id., 273; Husted v. Mathes, 77 id., 388; Nellis v. Bellinger, 6 Hun, 561.

No element of consent of this kind can be found in the present case. The respondent was not willing to have anything done upon the lot until the purchaser had performed the contract and obtained the title, and she never by any act or omission to act acquiesced in his" assumption of authority over the property. On the contrary, she protested vigorously and repeatedly against his unauthorized and unlawful entry upon and occupation of the premises. She might have lawfully ejected him as an intruder; but she was not bound to do so, and her failure to resort to such a measure of protection did not expose her to the peril of a responsibility which can only arise where it is shown that she consented either expressly or tacitly to the use which he was making of her property. It was sufficient if she at all times and in all reasonable ways repudiated his action, and refused to recognize his right to cause the improvements to be made.

The title was doubtless a matter of public record, and the plaintiffs had constructive, if not actual notice of its existence, and all persons dealing with the purchaser, Wood could have readily ascertained by inquiry of the respondent whether she had given her permission to the performance of the work and the use of the materials for which it is now sought to make her liable.

The order and judgment should be affirmed, with costs.

All concur.

       Affirming 43 St. Rep., 342.


text:
    John H. Richards, App'lt, v. Samuel H. Day, Executor, etc., of Elizabeth Davis, Deceased, Resp't.

      (Court of Appeals,

      Filed February 7, 1893.)

    Evidence—Pabol to vabt bond.
    In an action against an estate the executor set up as a counterclaim a "bond executed by plaintiff and wife to the deceased, conditioned to pay her the interest during her lifetime, and upon which he claimed there was a certain sum due. On the trial it was shown that plaintiff and his wife went before a justice of the peace to have the bond drawn and executed under a certain agreement, and that at the instance of the justice the parties signed a blank bond, which the justice afterwards filled up, as plaintiff claimed, in a different manner from that agreed upon. Held, that plaintiff, under his reply, simply denying that he sealed, executed and delivered the bond, could show by paroi evidence what the true agreement between the parties was.
    Appeal from judgment of the supreme court, general term, fifth department, reversing a judgment dismissing counterclaim of defendant.
    The plaintiff commenced this action to recover for services rendered and for money paid for the defendant’s testatrix, Elizabeth Davis. The defendant put in issue the allegations of the complaint and set up as a counterclaim that the plaintiff and his wife executed to Mrs. Davis their joint and several bond in the penal sum of $3,500, conditioned to pay her the sum of $210 on the 6th day of April, 1881, and $175 “ each year thereafter during the natural life of Elizabeth Davis,” but no part of the principal to be paid, and that the interest falling due on April 6th in each of the years 1885, 1887, 1888 and 1889 had not been paid, and he demanded judgment against the plaintiff for these sums with interest. The plaintiff replied to the counterclaim, and, among other defenses, denied “ that he sealed, executed and delivered the bond as set forth in the counterclaim." Mrs. Davis died April 10, 1889, and plaintiff’s wife died before the commencement of this action. At the close of the evidence the defendant’s counsel asked the court to direct a verdict in his favor for the amount due on the bond, and that motion was denied. Plaintiff’s counsel then asked the court to direct a nonsuit in reference to the counterclaim, and that was granted. Thereafter judgment was entered dismissing the plaintiff’s complaint and dismissing the counterclaim. From so much of the judgment as dismissed his counterclaim the defendant appealed to the general term, and there that portion of the judgment was reversed, and a new trial as to the counterclaim was granted. From the order of the general term the plaintiff appealed to this court.

      George F. Yeoman, for app’lt ;■

      Cassius G Davy, for resp't.

       Reversing 45 St. Rep., 722.

   Earl, J.

Neither party upon the trial asked to have the evidence as to the counterclaim submitted to the jury, and there is really no dispute about it. Mrs. Eichards, the wife of the plaintiff, was the daughter of the Mrs. Davis, the testatrix, and a paper now appearing as the bond set up in the counterclaim was signed by her and the plaintiff in pursuance of a family arrangement by which Mrs. Davis distributed property among her children and agreed to take from them bonds to secure her support. The plaintiff and his wife and the testatrix went to a justice of the peace for the purpose of having a bond prepared and executed. It was agreed between them that the testatrix should have the interest on the amount of the bond if - she needed it; that if she did not need it, it was not to be called for and that nothing should be due or payable upon the bond after her death; and that such an agreement should be inserted in the conditions of the bond. When the parties called upon the justice he was not prepared to write the bond, and he produced a blank bond and told the plaintiff and his wife to sign it and that he would subsequently fill it up according to the agreement, which was stated to him in the presence of all the parties, and he would deliver the bond. With that understanding the plaintiff and his wife signed the blank bond, and left it with the justice of the peace. He thereafter filled it up as it now appears, binding the obligors absolutely to make the payments on the bond as therein specified during the life of Mrs. Davis. The claim of the defendant is that the plaintiff could not, under his reply simply denying that he sealed, executed and delivered the bond, show by paroi evidence what the true agreement between the parties was, nor what instructions were given to the justice of the peace in reference to filling up and completing the bond, and that the only remedy of the plaintiff, if the bond was not filled up as agreed, was to have it reformed so as to make it conform to the agreement; and the general term upheld this claim¡ holding that under the issue formed by the reply the paroi evidence was inadmissible to contradict or vary the bond, and that if it did not express the true agreement between the parties, the plaintiff should have interposed a reply asking for its reformation.

We think the learned general term fell into error. If this had been a complete bond when the plaintiff signed it, although by mistake or fraud it did not express the true agreement between the parties, his sole remedy would have been to procure its reformation, and when an effort was made to enforce the bond against him he could not contradict the "terms thereof by paroi evidence, except by proper allegations in his pleading asking for its reformation. But here the plaintiff did not sign any bond. He signed a blank piece of paper, and it would have been sufficient for him on the trial to prove that he simply signed a blank piece of paper, and then it would have been necessary for the defendant to show that he authorized the blank to be filled up, and how and under what circumstances the authority was given and what the authority was. A party who signs a blank piece of paper cannot be bound to the obligation written therein, unless it can be shown that he gave the person who wrote it authority. Chauncey v. Arnold, 24 N.Y., 330; Dutchess & Columbia Co. R. R. Co. v. Mabbett, 58 id., 397; Drury v. Foster, 2 Wall., 24. There might be cases of an estoppel where one who signed a paper in that way would be bound by it. But in this case no estoppel arises, as the action is between one of the original parties and the representative of the other party. So the defendant is not in a position to complain if the bond is given effect according to the true agreement between the parties. Suppose the justice of the peace, instead of inserting payments in this bond as agreed, had inserted therein a conveyance of real estate, or a bond for the absolute payment of the principal of a large sum of money; or, suppose he had signed this blank bond without authorizing any one to fill it up, and some unauthorized person had afterward filled it up as it now appears, in either of these cases would the bond thus filled up and completed in form have been the bond of the plaintiff ? Certainly in neither case could it have been said that the plaintiff executed such a bond.

Here, so far as the bond departed from the agreement of the parties, it was not the bond of the plaintiff. The only authority the justice of the peace had was to insert in this bond the precise agreement of the parties as directed. As he did not do that, this is not, in the form it now appears, the bond of the plaintiff, and under a denial that he executed the bond he may show the circumstances under which he signed his name and what the agreement at the time he signed it was.

We are, therefore, of opinion that the order of the general term should be reversed and the judgment of the trial term affirmed, with costs.

All concur.


author: Gray, J.

text:
    The People, Resp'ts, v. Michael T. Sliney, App'lt.

      (Court of Appeals,

      Filed February 10, 1893.)

    1. Homicide—Evidence.
    Upon the trial of defendant; charged with murder, the prosecution gave evidence tending to establish that defendant was alone with the deceased after four o’clock upon the afternoon in question ; had caused his boy to be sent away upon a letter forged by him, and had gotten the mother out of the shop ; that a butcher’s cleaver was in his hands ; that he had come there to collect some money, but was unsuccessful; that a few minutes after having been left alone with the deceased, he ran quickly from the shop ; that the autopsy revealed a wound of such severity and dimen- ■ sions as only a heavy instrument like a cleaver could have inflicted, and that from the appearance of the wound it must have been given from behind and not thrown at deceased, etc. Held, that the evidence, in connection with a voluntary confession to Inspector Byrnes that accused had killed the deceased in a quarrel, was sufficient, if believed by the jury, to make out a case of killing with deliberation and premeditation and to negative the theory of self defense.
    2. Same—Pbxvilegb—Physician.
    A phj sician who is sent by the prosecuting authority to make a report upon the sanity of thp prisoner is not barred under the statute from testifying what defendant stated about the matter of the killing, as the relation of physician and patient does not exist.
    Appeal from judgment of the New York oyer and terminer, convicting defendant of the crime of murder in the first degree.

      Frederick B. House, for app’lt;

      Henry B. B. Stapler, asst. dist. atty., for resp’t.
   Gray, J.

The defendant was indicted, jointly with James Lyons, for the crime of murder in the first degree, in the killing of Robert Lyons. The defendant has been tried upon the charge, and his trial has resulted in the verdict of the jury finding him guilty. Upon his appeal to this court from the judgment of conviction, his counsel has argued the insufficiency of the proofs adduced by the People to establish the truth of the indictment, or that the killing was committed from a deliberate and premeditated design to effect the death of the deceased. We think the evidence was quite sufficient to support the finding of the jury, and though opposing inferences were open to them, nevertheless, a contrary finding would not have been as well warranted, or as rational. Upon the review of the judgment, this court should not, and will not, disturb a verdict reached upon conflicting evidence, unless such a review induces a conviction that, in the proceedings upon the trial, injustice has been done, or errors have been committed which have prejudiced the substantial rights of the accused, and that, in the interests of justice, a new trial should be ordered. But, in the absence of such reasons, our judgment will not be moved adversely to the conviction because, upon the evidence given, a different conclusion was possible. Great as is the responsibility imposed upon this court by the statute in capital cases, its extent does not require of us any other duty than to examine the record and from it to ascertain whether the accused has had a fair trial, and that there was competent evidence from which the jury could justly find the accused guilty of the crime charged. Our duty ends when that has been ascertained, and the judgment must then stand. .

In this case no one saw the blow struck which deprived the deceased of his life, but the circumstances disclosed by the evidence of witnesses, in connection with some admissions and statements by the defendant, leave no room for doubt that it was the act of the defendant, and that the act was deliberate and with intent to kill. A review of some material portions of the evidence in this record will suffice to establish it.

The deceased kept a butcher shop in Cherry street, in New York city, and on Wednesday afternoon, November the 25th, 1891, between four and five o’clock, he died from the effect of a wound about six inches in length and three inches in depth, extending, upon the back of his head, from the angle of the right jaw to between the two top vertebrae and severing the tendons to which the muscles are attached that hold the head in position. It was testified by the physician who made the autopsy that, from the conditions apparent, the blow, inflicting this terrible wound, must have been delivered with great force from behind, and that it must have been delivered through a heavy instrument, such as would be a butcher’s cleaver. The mother of the deceased testified that about four o’clock she went from a rear room into the shop to send the boy in their employ upon an errand ; but found him busy with the deceased, tying up chickens. ¡Returning there, in a few minutes, she saw the defendant alone in the store with the deceased. To her inquiries about the boy’s whereabouts, the defendant answered, saying, “ He has gone to the priest’s house.” She went into the back room, and the door into the shop feeing open, the defendant called out to her“ Shut the door; there is a rat gone in there.” She did so. In a very few minutes her son, the deceased, came to the door, bleeding from his neck, fell upon the floor and very soon expired. Later in the afternoon she testified that the defendant was brought to the shop by the police officers, and, in a conversation between her and the defendant, in reply to his question, “ Is it me, Mrs. Lyons ?” she said: You; I had his dying words for it.” To which, according to her evidence, he made no reply. _

_ A witness, Nellie Burke, a young girl residing next door, testified- that she was sent to the shop about four o’clock to buy some meat, and saw there the defendant, the boy and the deceased, and no others. The defendant stood by the cleaving block and had the cleaver in his hand. Not obtaining the meat desired, she left; but returned about twenty to twenty-five minutes after four o’clock to buy some chops, and then saw deceased lying on the floor, all cut, and with a cleaver by his head. A witness, Loretta Collins, testified that she went to the shop about ten minutes after four to buy meat and saw there only the defendant, the boy and the deceased. The defendant was by the chopping block and had the cleaver in his hands. The deceased handed a note to the boy and told him to take it to Father Kean. When she left, after a few minutes, the boy followed her out of the shop. The boy, whose name was Hronish, testified that the defendant came into the shop at ten minutes before four and asked him if he could go on an errand; and he answered that he could do .so when through with tying up the chickens. He said that the defendant spoke to deceased and they left the shop together ; that upon their return the defendant, after looking up and clown the street, went across the street to his house; that the deceased again went out and subsequently came in with defendant, holding a piece of paper; that the latter stood by the block, chopping it with the cleaver; that the deceased gave him, the witness, a note for Father Kean, telling him to take it; which he did, following the girl. Loretta Collins, out of the store, and leaving the defendant alone with deceased. This nóte was in reel ink and read : Please send up boy to vestry, right away. Rev. John Kean,” and it was proved to have been forged by the defendant. The proof was in the testimony of Father Kean that he had not written it; in an admission of the defendant to police officers, when inquired as to a red stain discovered upon his fingers at the time of his arrest, that it was ink and that he had written a note that afternoon; in the finding of some red ink in his house; in his admission in a statement, testified by Superintendent Byrnes to have been made to him, and by expert evidence. I may mention here that, subsequently, upon his own examination, he admitted that he had written it, stating, however, that it was written upon the previous Monday for James Lyons and given to him. It was further shown by the witness Mary Maier, residing near by, that about the time of the murder she had observed the defendant walking up and down on the sidewalk in front of her door; then crossing over the street and entering the shop of the deceased, and, after a few minutes, coming out very quickly and passing down the street between some wagons.

From the evidence of these witnesses, who, except as to the mother of the deceased, were apparently disinterested, it was shown that for a few minutes after four o’clock the defendant was alone in the shop with the deceased and by his own contrivance, and that in that period of time the deceased had come to his death in a manner which, as described, indicated the giving of a violent blow with a heavy sharp instrument and from behind. A police officer, who was taking the defendant to the station house, upon his arrest within an hour of the discovery of the murder, testified to a conversation on the way, in which defendant stated that he had gone into the shop to collect a bill of thirty-five dollars, which the deceased owed him for some coal, but had failed to get the money. He stated, in answer to the officer’s question as to when he left Lyons that afternoon, that it was. “ about ten minutes after four.” To the witness Byrnes, superintendent of police, a few days after the murder, he denied any knowledge of the matter; but, in March following, in a second interview, he made a voluntary statement, that he was going to tell the truth and, after telling of a quarrel between the deceased and his mother, the day before the murder, went on to state that he returned the next afternoon at four o’clock for the purpose of getting some money that was owing him from the deceased ; and not getting it, had left; but, subsequently, returned to the shop to borrow a dress suit from the deceased; that, as he stepped inside, James Lyons came out of another room, holding a cleaver, covered with blood; that the deceased was following him bleeding from his head and neck; that a man standing near the ice-box called out: “ Jimmie, there is Sliney,” and then jumped into the box; that he, the defendant, thereupon, went out; that he was followed by-James Lyons, who begged him to say nothing about the affair and offered to give him $5,000; that he made no reply to him, but continued on his way; that when he came home and learned that the police officers were looking for him, he gave himself up. Being confronted by the superintendent with James Lyons, the defendant charged him with the killing; to which he replied denying it and saying to the defendant that he should not tell a lie like that. •

In a third interview with the superintendent, about April first, the defendant being sent for in order to be asked about some facts in connection with his previous statement, said, “ I want to make another statement about this crime; what I said heretofore is not true.” The superintendent was surprised, and thereupon sent for a stenographer and secured the attendance of several persons in the room. The defendant then made a long statement, which, in substance, was that in the morning he and the deceased had had a quarrel; that when he asked for some moneys owing to him, the deceased had abused him, knocked him down and kicked him ; that he then ran away; that about ten minutes to four o’clock he returned and he and the deceased went out to take a drink; that they came back and, upon his again asking for the money, the deceased again abused him and knocked him down and kicked him and threatened him with a carving knife ; that he got up and, running to the chopping block, “grabbed” up the cleaver, and, believing his life in danger, “fired "the cleaver at him, striking him in the back of the neck; that he then ran away to his brother’s and from there went to attend to some job and that, upon his return, hearing he was being looked for, gave himself up to the police officers. Being asked by Byrnes about the letter to Father Kean, he said he wrote it and gave it to the deceased, as they were coming out of the liquor store to go into the shop for the last time. Witness Byrnes said that the defendant did not give any reason for writing the note, so far as he remembered, or so far as his notes showed. He also said that upon the previous occasions the defendant had denied knowing anything about the note. He told the superintendent that he made the statement for the purpose of exonerating an innocent man. It was testified to by the police officers that when defendant was brought to the station-house, that afternoon, there was neither mark nor bruise upon his person, nor any appearance of torn or dirty clothes, and that he made no mention of any assault having been made upon him.

The People also gave evidence, through several witnesses, to show that James Lyons, the brother of the deceased, who had been suspected and whom the defendant sought to implicate in the matter, for several hours before the killing, and until some minutes after its occurrence, was not at or near the shop. One of the policemen testified that he met James Lyons coming along the street after the murder and informed him of it. A witness testified to James having been with him all the time from half-past ten in the morning, until the moment the officer met them and told of the murder. His testimony was corroborated, more or less strongly, by that of several other witnesses, who saw them together at different times and places in the day; and it accords with the evidence of the mother concerning what persons were in the shop.

The defendant gave very considerable evidence as to his previous good character and reputation for peace and quietness. He brought witnesses to show by their testimony that he could not have been in the shop at the time of the killing. He testified in his own behalf and denied having killed the deceased, or of having quarrelled with him, and with respect to the note of Father ¡Kean, that on the previous Monday James Lyons was in defendant’s room trying to borrow money and asked him to write the note in question in order that he might get the boy out of the shop and so could get some money from his mother while his brother was busy in the front part of the shop. His evidence went to show the existence of bad feeling between the deceased and his brother, and also his mother, growing out of the exclusion of James from the business and of a dislike to the wife- of the deceased. He admitted going to the shop about four o’clock and seeing the deceased and his boy busy with the chickens ; that the deceased put off paying the moneys due him ; that they went out and drank together, and that while in the shop he was holding the cleaver.

He testified that he needed a dress suit to attend a wedding that evening, and had returned to the shop to borrow that of the deceased, and repeated the story told to Superintendent Byrnes in the second interview about opening the door and seeing James with the cleaver in his hands followed by the deceased, bleeding from the neck, and about the strange man who called out and then jumped into the ice box. Seeing this condition of affairs, jie says that he closed the door and went off; that he was followed by James,, who endeavored to bribe him into silence with an offer of $5,000. He said that he went into a store, took a raffle for a turkey, and then helped at a job of removing ashes, etc., and upon returning to his home soon after five and hearing the officers wanted him gave himself up to the police officers. He testified that his statement to Superintendent Byrnes about his quarrel with deceased; and of killing him in self defense, was false, and that he had made it because influenced and instructed by James Lyons to do so while in the prison, and that his previous statement to Byrnes incriminating James Lyons was the truth about the matter. He made denials as to those matters testified to by the witnesses for the People which went to show admissions made bv him at the time of his arrest, or which were incriminating. When interrogated about making the last statement to Superintendent Byrnes, he said that he had made it because he believed that James Lyons, when he got out, would get him off on a plea of manslaughter, and with his (James’) father’s money, which he expected to have very soon, could get him free. ¡Defendant said his lawyers were to be paid by James, but he was not to get a cent.

In rebuttal, the People gave evidence further establishing the fact that James Lyons was absent from the shop all day, and contradicting the defendant in many particulars of his testimony.

They put a physician upon the stand, who had been sent by the district attorney to see the defendant in June following. He testified that he entered into conversation with the prisoner for the purpose of ascertaining his mental condition, and that during the interview the defendant gave him a long account of how he and deceased had had an altercation and a struggle, in which he struck him with a cleaver ; but did not know he had killed him. This review of the evidence shows that the prosecution gave evidence tending to establish that defendant was alone with the deceased after four o’clock upon the afternoon in question ; having caused the boy to be sent away upon a letter forged by him, and having gotten the mother out of the shop ; that a butcher’s cleaver was in his hands ; that he had come there to collect some money, but was unsuccessful; that a few minutqs after having been left alone with the deceased, -he ran quickly from the shop; that the autopsy revealed a wound of such severity and dimensions as only a heavy instrument like a cleaver could have inflicted, and that, from the appearance of the wound, it must have been given from behind, and that the instrument must have been drawn from the wound, as by the act of one striking with.it, and could not have been thrown at the deceased. The evidence for the defense, though conflicting in many respects, in some important details is more or less corroborative of what was sought to be established by the prosecution ; notably, in the forgery of the note, in the demand for moneys owing, and with respect to time. Proof of the elements of an intent to kill and of deliberation and premeditation in the killing was furnished in evidence as to the peculiar nature of the wound inflicted, which would seem to show the blow to have been delivered from behind the deceased and by a heavy -instrument in the hands of some one ; in evidence showing the removal of the boy from the scene by the device of the forged letter, and of the mother by the pretext about the rat; in evidence that the defendant was standing by the cleaving block with the cleaver in his hands, and that the defendant had unsuccessfully endeavored to collect a debt' from the deceased.

The evidence, in connection with the voluntary confession made to the witness Byrnes that he had killed the deceased, though claimed to have been the result of a quarrel, was sufficient, if believed by the jury, to make out a case of a killing with deliberation and premeditation and to negative the theory of a killing in self-defense. The intent to kill, generally, if not always, is established by an inference from the circumstances. _ As an operation of the mind, the outward evidence of the formation of the intention will be found in the circumstances preceding and attendant upon the act done. We have the right to draw the inference of intent from the nature of the wound and to rest upon the rule of presumption that a man intends the natural consequences of his act. While it may not be easy to assign a motive for the act of the defendant, the evidence connecting the defendant with the commission of the crime is not of that doubtful and unreliable character which makes the evidence of motive an essential part of the People’s case. There is some evidence to show motive, however; whether we take the defendant’s statement of the abuse and the assault upon him by the deceased in the morning and afternoon ; or whether we consider the inability to collect a debt. There is also some evidence tending to show that the defendant was most intimate with James, the brother of the deceased; that James ■ was constantly wanting money and borrowed from him; and that he may have been instigated by James to kill the deceased ; in which event James would be very much benefited in fortune. According to the evidence given by the defendant, James had suggested to him “ to take deceased out in a wagon and do him up.” However the truth maybe about these matters, the circumstances detailed in the evidence seem such as to fully warrant the jury in believing that the defendant had killed the deceased intentionally and in cold blood, and that being so, the absence of satisfactory proof of motive is not material. The theory which the defense endeavored to establish was that James Lyons had killed his brother as the outcome of family quarrels and of disputes about money matters and as the result of the conduct of the deceased in excluding James from participation in the management of the business.

The evidence adduced in aid of that theory, in connection with abundant proof of his previous good and peaceable character, the defendant laid before the jury. They did not believe him, however, and, in our judgment, they were justified in discrediting his evidence. It was not only in conflict with the incrim: inating evidence of witnesses who could have no motive to testify falsely against the defendant, but it was seriously impaired by the evidence of many facts establishing its utter improbability-, and by the inconsistencies of defendant’s conduct and the contradictions in his several statements. His conduct was most unnatural; as shown by his calmly going, after witnessing the dreadful scene through the shop door, to raffle for a turkey, though followed by James Lyons, who begged him not to tell about the matter, and offered the bribe of $5,000. And yet it was one of his companions who was in question. His voluntary statements to Superintendent Byrnes were absolutely contradictory, and the last statement admitting the killing, while true as to that fact, was hardly credible as to the excuse of an assault, a struggle and of a killing in self-defense. His testimonv as to how he came to make the statement to Byrnes, that he did not want to see an innocent man punished for a crime he had committed, and that it was made by Lyons’ instruction and1 upon his promise to get him off upon the plea of manslaughter, and, when James got out of prison, of subsequently being freed by him, is absolutely unintelligible. Its absurdity is evident from the conditions testified to; that he was to go to prison and James Lyons was to get out and to pay his lawyers what was owing to them, and would then get him freed. That James Lyons committed the killing was an inference from the evidence which the jury were at liberty to draw; but to do so would have required a great stretch of belief in the defendant’s evidence and a disregard of very considerable testimony tending to show the absence of James from the scene. That testimony was not so improbable on its face as to invite the scepticism about its truthfulness which sometimes accompanies the evidence to sustain the plea of an alibi. His companion during the day gave an account of his whereabouts, which was corroborated by several apparently disinterested witnesses who saw them together at different hours, and by the police officer who, having just left the scene of the murder, meets them and informs James of the occurrence.

We have given a very careful consideration to this record, and we are satisfied that the jury reached the true conclusion upon the evidence, that the defendant killed the deceased deliberately and premeditatedly, and, therefore, was guilty of the crime with which he was charged in the indictment.

The defendant’s counsel argues that there was error in permitting the physician, who visited the defendant in the prison, to testify to what the defendant stated to him about the matter of the killing.

The objection to this evidence went to its competency as disclosing a communication from patient to physician which is privileged under the statute. The. answer is that no such relation existed. The physician was sent by the prosecuting authority to make a report upon the sanity of the prisoner. He acquired no information while attending a patient, and was not acting as the professional adviser of defendant. The defendant’s counsel says that the trial judge in his charge misstated some facts; but the particular misstatement alleged was quite unimportant in its relation to the case and could not have prejudiced the defendant, especially in view of all the proof in the case upon the subject. The other comments upon other portions of the charge are quite unwarranted. The strictures upon the conduct of the defendant were not unjust, and were called for by its extraordinary and sometimes unintelligible character.

It may be quite possible to detach phrases and to make them appear either singular, or of such character as to subject them to hostile comment. When the remarks in question are read with the context, they appear as legitimate comments upon the evidence, presenting it in a light to enable the jury to appreciate its probative force and to give it due effect. They did not invade the province of the jury, nor prevent them from judging upon the facts disclosed by the evidence according to their own beliefs about them.- The trial j udge was most careful and correct in instructing the jury upon the law and in charging them that they were to give to the defendant the benefit of every reasonable doubt. He told them that they were the sole judges of the facts, and that they were not to regard his opinions about them.

We find no errors in his rulings, or in his charge, and the judgment should be affirmed.

All concur.


author: Peckham, J.

text:
    Elizabeth Wadd, Resp't, v. James E. Hazleton et al., Ex'rs, App'lts.

      (Court of Appeals,

      Filed February 10, 1893.)

    1. Trust—Assignment oe mortgage.
    Defendants’ testator, who left no wife or descendants, shortly before his death told his attorney, who was one of his executors, to draw an assignment of a certain mortgage to plaintiff, and a few days before his death gave him the assignment signed, but not acknowledged, and told him to put it with his papers in bank and that he intended plaintiff to have it. He had made provisions in his will for plaintiff, who had been his servant, but during the last year of his life he told his former counsel, who had drawn his will, that he intended to make further provision for her. Held, that there was no gift of the mortgage to plaintiff and no trust created for her benefit.
    2. Same.
    There must be such acts done or words used, on the part of the creator of an alleged trust, that the intention to create it arises as a necessary inference therefrom and is unequivocal; the inference arising from the evidence must be that the person holds the property as trustee for another.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered in Genesee county-on report of referee.
    This action was commenced to procure a judgment directing the defendants to surrender to the plaintiff a certain bond and mortgage for $2,000, which plaintiff alleged belonged to her. She claimed title bv virtue of an assignment from the then owner of the bond and mortgage, one Albert Hill, executed a short time prior to his death. The defendants denied the material allegations of the complaint.
    Issue being joined the action was referred to a referee to hear and decide. He reported in favor of the plaintiff and the judgment entered upon his report has been affirmed at general term in the fifth department, and from the judgment of affirmance the defendants have appealed to this court.
    From the referee’s report it appears that Albert Hill, the testator, died August 29, 1884, at the age of eighty-seven years, leaving neither widow nor children. His will was proved and defendants are his executors. His wife died in 1870. The plaintiff in August, 1867, entered into the service of the testator as a household servant, and her wages had been paid her up to the time of testator’s death.
    In and by his will and codicils the testator made some pro- . vision for the plaintiff, and in January, 1884, the testator in a conversation between himself and his lawyer said to the latter that he had made up his mind to make a provision for plaintiff in addition to what he had made for her in his will; that the rate of interest had so fallen from what it used to be that he had made up his mind to give plaintiff about $2,000 in addition to the provision for her in his will; that she had been very faithful in his house-. hold, and the provision in his will would be less valuable than when he made it Nothing was then done towards effecting any such gift.
    The testator was the owner of the bond and mortgage in question and on the 80th of June, 1884, he requested one Charles J. Hill (one of the executors named in his will) to draw an assignment of the same to the plaintiff, and “ said something about his intention to give Libby that." Hill took the bond and mortgage home with him and drew the assignment, and then returned all the papers to the testator, who received them, but did not then execute the assignment. The testator was taken ill about August 20th, and died after an illness of about nine days. On the second day of his illness the testator gave the said Charles J. Hill the said assignment, with other papers belonging to the testator, with directions to deposit said papers in the bank. The assignment was not acknowledged or recorded and there is no evidence showing that it was even personally delivered to the plaintiff. The bond and mortgage went into the possession of the defendants after the death of the testator.
    The above statement contains all the evidence upon the subject of what actually took place at the time of the drawing of the assignment, its return to testator and its re-delivery by him with other papers to Charles Hill, with directions to deposit them all in the bank.
    The referee found also as follows: “ At the time of the execution of the said assignment, the said Albert Hill intended to make a gift to or a settlement upon the plaintiff of the said bond and mortgage, and such intention was never changed or such assignment revoked.”
    As a conclusion of law the referee found that “ by the execution of the assignment by the said Albert Hill and his retention of it in his possession, he constituted himself a trustee thereof for the benefit of the plaintiff, and could not divest himself or his representatives of that character without the knowledge or consent of the plaintiff."
    Judgment was, therefore, ordered for her.
    Ü7. A. Washburn, for app’lts;

      Myron JET. Peck, for resp’fc

       Reversing 43 St. Rep., 686.

   Peckham, J.

Whether the plaintiff claims the bond and mortgage by virtue of an absolute gift to her from the testator, evidenced by the assignment, or whether she claims through the assignment as a declaration of trust, is somewhat difficult to determine from her complaint. The referee has taken the latter-position, and has found that the testator constituted himself a trustee by reason of his execution and retention of the assignment. We think there is no foundation in the evidence for the claim of an absolute gift.

There is no proof of a delivery or of any executed intention to make a gift, and the papers themselves are found among those of the testator at the time of his decease. The cases upon the subject of what constitutes a valid gift have been examined in this court in Beaver v. Beaver, 117 N. Y., 421; 27 St. Rep., 405; S. C., decided Jan. 17, 1893, upon another appeal, 50 St. Rep., 69, and it is unnecessary to again go over them.

We are also of the opinion that no trust was proved.

While it is true that no particular form of words is necessary to create a trust of this nature, and while it may be created by paroi or in writing, and may be implied from the acts or words of the person creating it, yet it is also true that there must be evidence of such acts done or words used on the part of the creator of the alleged trust that the intention to create it arises as a necessary inference therefrom and is unequivocal; the implication arising from the evidence must be that the person holds the property, as trustee for another. The acts must be of that character which will admit of no other interpretation than that such legal rights as the settlor retains are held by him as trustee for the donee; the settlor must either transfer the property to a trustee or declare that he holds it himself in trust. An intention to give, evidenced by a writing, may be most satisfactorily established and yet the intended gift may fail because no delivery is proved. And where an intention to give absolutely is evidenced by a writing which fails because of its non-delivery, the court will not and cannot give effect to an intended absolute gift by construing it to be a declaration of trust and valid, therefore, without a delivery. These principles have been decided in this court and must be regarded as settled. Martin v. Funk, 75 N. Y., 134; Young v. Young, 80 id., 423; Matter of Crawford, 113 id., 560; 23 St. Rep., 722, Beaver v. Beaver, supra. It is true that in Richardson v. Richardson, L. R., 3 Eq. Cas., 686, Vice Chancellor W. Page Wood does say, in speaking of Ex parte Pye, 18 Ves., 140, that the holding in that case amounted to a decision that an instrument executed as a present and complete assignment (not being a mere covenant to assign on a future day) is equivalent to a declaration of trust. The expression was unfavorably criticised by Jessel, M. R, in Richards v. Delbridge, L. R., 18 Eq. Cas., 11, while in Baddeley v. Baddeley, L. R., 9 Ch. Div., 113, Yice Chancellor Malins says he is not disposed to disagree with Richardson v. Richardson, notwithstanding the remarks of Sir George Jessel in Richards v. Delbridge.

In this court, however, and in the case already cited of Young v. Young, this doctrine is substantially repudiated. We are of opinion that no such rule obtains, or ought to obtain, in this state. An intended absolute gift by way of a written assignment, which cannot take effect because of the absence of delivery, ought not to be enforced as a declaration of trust when there is no such declaration and when there is no evidence of an intention to create a trust. Milroy v. Lord, 4 DeG., F. & J., 274.

Although it may be sometimes a question of intention on the part of the creator of the alleged trust whether in fact he did or did not create it, yet a finding of fact that he did so intend must be based upon some evidence thereof, and there must be some evidence that such an intention was carried out. In this case we think there is no evidence upon which to found either proposition, even if all the circumstances proved and mentioned by counsel for respondent in his brief are considered.

The declaration of the testator some months before his death, and while in conversation with his lawyer, is evidence that the testator then had an intention to give absolutely to the plaintiff an amount of about $2,000 in addition to the provision already made for her by his will. It is evidence of nothing more. There is no claim that any paper was then signed or request made for the drawing of any paper for the testator to subsequently sign in order to carry out his intention. From that time to the day, June 30, 1884, when Charles Hill drew the absolute assignment to plaintiff of the bond and mortgage and delivered it unsigned to the testator, there is no proof of act done or word said upon -the subject by the testator.

When he asked Charles to draw the assignment he said something about his intention to give Libby that, but Charles draws it and gives it and the bond and mortgage back to the testator, who does not then execute the assignment, but receives all the papers back, retains them and says nothing. There is no gift in this state of the case, and no declaration of trust either by oral or written communications or by acts; on the contrary, there is an entire absence of all three possible modes of creating or declaring a trust. The assignment is as yet not even signed. Things remain in this condition until the second day of testator’s illness about 20th or 21st of August, when he gives to Charles the assignment with other papers belonging to the testator, the assignment then having been signed by the testator, with directions to deposit the papers in the bank. The assignment was not acknowledged or recorded. There was no direction to Charles to take the assignment as a delivery in favor of the plaintiff, no direction to deliver it to her, but he is directed to deposit the papers in the bank, and he does so. There were other papers than the assignment, and the direction as to deposit includes them all. There is no declaration of a trust, and there is no act of the testator which is not entirely consistent with an intention to retain possession of the papers until something shall happen which shall cause different action on his part. ' More than that, the legal result of this request made by the testator to deposit the papers in the bank, and their deposit accordingly, is that a deposit under such circumstances makes the bank the agent of the testator and its possession of the papers is his possession.

The purpose of the deposit in the bank, it is said, is left to inference only. Ho inference can be drawn that would in any way authorize or warrant a finding that the testator delivered the papers to Charles Hill for the purpose of having the assignment then take effect as a gift by delivery to him as plaintiff’s agent, nor could an inference be properly drawn from all the circumstances that it was delivered to him as a trustee for the plaintiff aras a declaration of trust in her favor. The acts must be such as will admit of no other interpretation than that the testator retained no legal rights over the papers, and upon the question as to the erection of a trust the inference arising from the acts must be plain, that either the testator constituted Charles the trustee of the plaintiff, or else that the testator held the papers himself as trustee for her. The evidence is far from establishing that kind of act on the testator’s part, and, as has been seen, the assignment itself is not a declaration of trust.

The finding of the referee that, at the time of the making of the assignment, the testator intended to make a gift to or a settlement upon the plaintiff of the bond and mortgage, and that such intention was never changed nor such assignment revoked, is not material. He may have had one or the other of such intentions, but the evidence is that he fully executed neither. They are antagonistic and inconsistent intentions, and he could not have had both at the same time, and the referee does not find which he did have. The testator, upon this proof, carried neither intention into effect It may be assumed that Charles Hill knew that the testator intended to make a gift of the bond and mortgage to the plaintiff, for he drew the absolute assignment at the request of the testator and delivered it to him, and the testator kept it for a month thereafter in his own possession and only parted with it to be deposited in the bank. When thus deposited it was subject to his own order as the legal owner thereof.

The only confidential relationship occupied by Charles Hill when he took the papers, including the assignment, was that which obliged him to carry out the explicit directions of the testator and deposit all the papers in the bank as directed. This he did.

To assume a relationship of trustee on the part of testator or of Charles Hill towards the plaintiff, based upon such facts, is to draw an inference which is not supported by the evidence.

The judgment of the general term and that entered upon the report of the referee must, therefore, be reversed, and a new trial granted, with costs to abide the event All concur.


text:
    The People ex rel. Frederick Wood, App'lt, v. The Board of Assessors and The Collector of Taxes and Assessments of the City of Brooklyn, Resp'ts.

      (Court of Appeals,

      Filed February 10, 1893.)

    Mandamus—1Taxes—Correction op mistake.
    Petitioner was the owner of land upon which a tax had been laid. He sold a very small portion of it to H., who procured an apportionment of the tax between him and petitioner, but the clerk in transcribing the records by mistake transposed the taxes so that petitioner would pay the tax on H.’sland and vice versa. Petitioner paid his tax. H. compelled the collector by mandamus to correct his books and relator’s lot being advertised for non-payment of the proper tax he was granted a mandamus compelling the cancellation of his tax. Held, error ; that relator must come into court with clean hands and could not invoke this extraordinary remedy to evade the payment of his just portion of a tax by taking and claiming the advantage of a confessed mistake.

      Appeal from a judgment of the supreme court, general term, second department, reversing judgment directing peremptory mandamus to issue, compelling the collector of taxes and registrar of arrears to cancel and discharge a certain tax upon petitioner’s property.

      Frederick P. Bellamy, for app’lt;

      William T. Gilbert, for resp’ts.

         Affirming 45 St. Rep., 10.

   Earl, J.

Prior to June 1, 1888, the relator owned a tract of land in the city of Brooklyn, which had been assessed for the purposes of taxation for that year at the sum of $90,000, and a tax was imposed thereon, based upon that assessment, for the sum of $2,506.64. Afterward the relator sold about, one-fifth in quantity and one-fifteenth in value of the land to Mr. Havemeyer, and. he applied to the board of assessors for an apportionment of the tax imposed upon the whole tract between the portions owned by him and the relator respectively. The assessors apportioned the assessed value of the land by assigning $7,000 thereof to the lot of Havemeyer and $83,000 to the lot of the relator, and apportioned the tax by placing $194.96 upon the former lot and $2,311.68 upon the latter lot. It is not disputed that all these proceedings were regular and legal, and the apportionment of the taxes appears to have been properly entered in the records kept by the board of assessors. Their clerk, in transcribing the records for the purpose of certifying the taxes as thus apportioned to the collector of taxes and assessments, by mistake transposed the taxes so that the Havemeyer lot appeared to be taxed for $2,311.68, and the relator’s lot for only $194.96. The relator had knowledge of the original assessment and the tax, and of the apportionment of the tax, and for the purpose and with the intention of escaping the burden of his just and proportionate share of the tax originally imposed upon his,land, and escaping the payment of the tax apportioned to his lot, he went to the collector •of taxes, and, without disclosing to him the mistake, paid to him the sum of $194.96, less the rebate allowed by law, and received a receipted bill therefor. Havemeyer afterward discovered the mistake and obtained from the board of assessors a certificate showing the true apportionment made by them, and he delivered the certificate to the collector of taxes and requested him to correct the entry upon his books, which he refused to do.

Thereupon Hayemeyer, by a mandamus proceeding properly conducted, to which this relator was not a party, compelled the collector to correct his books so as to make them conform to the original apportionment, and to receive the tax thereby imposed upon his lot. Thereafter the relator’s lot was advertised for sale for the nonpayment of the tax upon his lot, less the amount paid by him as above stated, and he then obtained at the special term •of the supreme court a peremptory writ of mandamus to compel the cancellation of the tax on the ground that the correction and alteration of the books of the collector so as to make the entries therein conform to the apportionment of the tax as made was unauthorized. The general term held that the 7nandamus ought not to have been granted, and the reasons given for its conclusion in the opinion there pronounced are entirely satisfactory, and we need not reiterate them here.

But there is still a further ground upon which the decision below can be upheld, even if we assume there was a technical want of adequate authority to make the alteration and correction complained of. The writ of mandamus is not always demandadle as an absolute right, and whether it shall be granted or not frequently rests in the discretion of the court. The State ex rel. v. Commissioners of Phillips Co., 26 Kans., 419; People v. Hatch, 33 Ill., 9, 134; People ex rel. Sherwood v. Board of Canvassers, 129 N. Y., 360; 41 St. Rep., 912. The writ will be granted to prevent a failure of justice, but never to promote manifest injustice. It is a remedial process and may be issued to remedy a wrong, not to promote one; to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public and private mischief, or to compel a compliance with the strict letter of the law in disregard of its spirit or in aid of a palpable fraud. The relator must come into court with clean hands, and he cannot invoke this extraordinary remedy, as in this case, to evade the payment of his- just portion of a tax by taking and claiming the advantage of a confessed mistake. Even if he had no other remedy he should be left to his own devices to escape the burden honestly resting upon him, and the court may properly refuse to aid him by compulsory process.

The order of the general term should, therefore, be affirmed, with costs.

All concur.