author: Bockes, J.: Learned, P. J. :

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

      Right of one bn'ought before the Special Sessions to gwe bail to answer to an indictment — what is a waiver of such right— What facts do not constitute larceny — Chap. 390 of 1879 is constitutional.

    The plaintiff in error upon being brought before the police justice of the town of Watervliet, acting as a Court of Special Sessions, upon a warrant charging him with the offence of petit larceny, pleaded not guilty, and the said plea was duly entered in the minutes of the court. The case was then, upon his application, twice adjourned. On the last adjourned day he appeared and stated that he would waive an examination, and offered to give bail to appear and answer any indictment that might be found against him. The justice refused to permit him to do so, and he was thereupon tried and convicted, and sentenced for the said offence..

      J3eld, that the accused by pleading to the charge, without objecting, and applying for and obtaining two adjournments, had waived his right to waive an examination and give bail.

      The accused was drinking in the complainant’s saloon when one of the party gave a dollar hill to the bar-tender, who gave back the change to such person, and put the bill in the money drawer, which was left open. While the bartender was stooping down to take a bottle from under the counter the accused reached over the counter and took the bill from the drawer; he made no attempt to secrete it, and at once returned it with the remark “that it was done in fun.”

      Held, that these facts did not justify a conviction of petit larceny.
    Chapter 390 of 1S79 conferring upon Courts of Special Sessions exclusive jurisdiction, in the first instance, to hear and determine certain crimes and offences therein mentioned, is constitutional and valid. (Learned, P, J., dissenting.)

      People v. Sawson (61 Barb., 619), followed.
    CertioraRI to the Court of Sessions of the county of Albany, to review an order quashing a certiorari issued to the police justice of Watervliet, to review the conviction and sentence of the plaintiff in error at a Court of Special Sessions for petit larceny, and affirming the said conviction and sentence.

       See, to the same effect, People ex rel. Comaford v. Dutcher, post p. 241.

   Bockes, J.:

The defendant was convicted by a magistrate acting as a Court of Special Sessions, of the crime of petit larceny. When arrested and brought before the magistrate, and being apprised of the offence charged, he pleaded not guilty, and his plea was duly entered in the minutes of the court. He then applied for an adjournment of the case, and his application was granted for a period of two days, at which time a further adjournment was granted him until the following day. At this time, on his appearance before the court, he stated that he would waive an examination and offered bail for his appearance to answer any indictment to be found against him by the grand jury. The magistrate returns as follows : “ This I denied, under chajp. 390 of the Laws of 1879.” A trial was then had, and he was convicted of the offence charged against him, and sentence therefor was pronounced. The conviction and sentence was affirmed by the Court of Sessions of Albany county, and thereupon the case was brought into this court for review on certiorari..

Admitting that the defendant had the right, if exercised in due time, to elect to put in bail, and thus avoid a trial before the magistrate, which right wjll be hereafter considered, that officer might well have decided that the offer came too late, as the accused had pleaded to the charge and had taken two adjournments covering a period of three days, and also had given bail for his appearance on one of the adjourned days. These voluntary proceedings on his part, and his omission to offer bail for a period of more than twenty-four hours after his arraignment might well have been held to be a waiver of his right in that regard.

But the decision was not put on that ground. The magistrate held, and as we think correctly, that he was barred of the right to offer bail to answer an indictment by reason of chapter 390 of the Laws of 1879. The decision was put upon the validity and binding force of this act. By this law it is declared that Courts of Special Sessions shall have exclusive jurisdiction in the first instance to hear and determine certain crimes and offences, and among them. “ charges for petit larceny not charged as a second offence.” It is very manifest that the right of a party to give bail to answer an indictment in cases like this in hand was intended to be, and in fact was, by the language of the act, superseded and wholly abolished. The purpose of the law was to compel persons charged with those minor offences specified in it, to submit to a trial without indictment. So exclusive jurisdiction was given to the Court of Special Sessions to try and determine those offences. The words, “inthe first instance,” were doubtless inserted in order to defeat a possible construction, that the trial should be held to be final — that is, without a right of review on certiorari or otherwise. But it is insisted that this law of 1879 is void because in conflict with section 2 of article 1 of the State constitution, which declares that “the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.” It has been often held that the jury here referred to was a common law jury of twelve men ; therefore, it was further held in many cases that, according to the constitution as it stood prior to 1870, all statutes which attempted to confer exclusive jurisdiction upon Courts of Special Sessions were inoperative and void, because in conflict with the constitutional provision above cited. But a new and additional authority was conferred upon the Legislature by an amendment of the constitution which took effect on the 1st of January, 1870. By this new provision (§ 26 of art. 6) it is declared that “ Courts of Special Sessions shall have such jurisdiction of offences of the grade of misdemeanors as may be prescribed by law.” Under the authority of this constitutional provision (§ 26, above cited), the act of 1879, giving Courts of Special Sessions exclusive jurisdiction in certain cases, was enacted. This section (26) ivas doubtless intended to qualify and limit section 2 of article 1 in its operation, in order to meet and overcome the decisions of the courts made prior thereto, giving construction to the latter section. It was intended to confer an authority upon the Legislature not before possessed by that branch of the government. It gave authority to the Legislature to abridge the right of trial by a common law jury of twelve men, in certain cases, and this authority was exercised by the passage of the law of 1879. So section 2 of article 1 must be read and construed in connection with section 26 of article 6, and when so considered the constitutional provisions under discussion will stand as follows : “ The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever,” except that “ Courts of Special Sessions shall have such jurisdiction of offences of the grade of misdemeanors as may be prescribed by law.”

Thus read and construed both provisions may have such effect as was very plainly intended by their adoption. As was said in the People v. Rawson (61 Barb., 619, p. 628), “this provision” (§ 26, art. 1), “ must be held to operate as an amendment to the constitution of 1846; as it stood when the decision was made in the People v. Toynbee (supra), and it must have been so designed by the electors who adopted the new judiciary article; ” and further, “ the provision was doubtless designed to remedy a defect in our criminal jurisprudence * * * in reference to the trial and punishment of offences against the law of the grade of misdemeanors ; ” and still further, “ of course it was not proposed by the convention, nor adopted by the electors, as a mere idle form of words. It was designed to effect some change, and to accomplish some definite object and purpose. This object is I think very plain. It was to enable the Legislature in its ' discretion to confer upon fhese inferior ¿oürts just that unqualified and exclusive jurisdiction in tho lower grade of offences which it -was held not to possess,” by the 'decisions of the courts theretofore pronounced. "With this line of reasoning, by the court in the case cited, we entirely concur. The precise question now before us was under examination in that case. It arose upon a law made applicable to misdemeanors committed in the county of Monroe, which law was enacted but a few months after the new provision of the constitution took effect. The present general law differs from the local act referred to and considered in the case cited, only in its territorial application. For many other suggestions, and for authorities bearing on the question here under examination, we shall content ourselves by a reference to the very able opinion of Mr. Justice JoiiNSON in Hawson’s Case, which opinion was concurred in by Justices MulliN and Talcott. It was there decided that a law similar in its provisions to that of chapter 390 of the Laws of 1879, passed since the amendment of the constitution of 1869, was constitutional and binding upon the courts. It follows, therefore, that the magistrate acting as a Court of Special Sessions in this case, correctly held that, under the act of 1879 above cited, that court had exclusive jurisdiction of the offence charged against the defendant, and that he was bound to try it, and had no right to accept bail from the accused to answer an indictment by the grand jury. We are of the opinion that the decision of the magistrate in this regard was entirely sound in law. Were there no other difficulty in the case we should hold that the conviction was correctly affirmed by the Court of Sessions.

But we are not satisfied that the conviction was' right on the facts proved. It appears that the defendant, with others, was drinking in the complainant’s saloon, when a dollar bill was paid to the bar-tender by one of the party.. The bar-tender gave back the change to the person who made payment, and put the bill into the money-drawer, leaving it open. He then stooped down to take a bottle from under the counter, when the defendant reached over and took the bill. His action was in no respect secret; nor does it appear that he attempted to hide the bill from observation ; and he at once returned it with the remark, then permitted to pass undisputed, that his action was in fun. The defendant on the trial swore that he took the bill in fun, and all the circumstances surrounding the act tend to support his assertion. Similar acts of taking money or small articles of property from associates in joke, situated as these persons were, at a saloon counter on a drinking bout, are of almost daily occurrence. Such conduct is silly and frequently leads to. altercation, but it falls far short of larceny, in,the absence of all proof of secret action or of evidence tending clearly to show an intent to deprive the owner of his property. Innocence must be presumed. Guilt can be established only by clear and convincing proof. The evidence was insufficient to establish a criminal intent. We are of the opinion that the conviction is not supported by the proof; hence it should be reversed for this reason. The conviction by the police justice and its affirmance by the Court of Sessions must be reversed.

BoaudmaN, J., concurred on both of the questions discussed.

Learned, P. J. :

I am unable to assent m that part of the foregoing opinion which holds chapter 390 of the Laws of 1879 to be constitutional, so far as it deprives an accused of the right of trial by a common law jury.

It is not disputed that the right secured by article 1, section 2 of the constitution is a right to be tried by a common law jury. This article of the constitution, being that which touches personal rights, must be maintained. Other parts must yield to this, if necessary.

Where the constitution permits in article 6, section 26, jurisdiction of misdemeanors to -be given to Courts of Special Sessions, this must be construed so as not to take away the right of the accused in such courts to be tried by a common law jury, in cases where such trial was used at the adoption of the constitution. And unless the Legislature, while giving these courts ;ur-isdiction of offences, provide also for a common law jury therein, I think that the legislation is unconstitutional. I do not see why such courts might not, by proper legislation, be authorized to summon a common law jury, and thus secure to the accused his constitutional rights.

Conviction by police justice and affirmance by Court of Sessions reversed.


source: Caselaw Access Project

author: Bockes, J.: Learned, P. J.

license: Public Domain

text:
    ALBANY CITY SAVINGS INSTITUTION, Respondent, v. MARY DELIA BURDICK, Appellant, Impleaded with GEORGE MARTIN and others.

      Assumption of a mortgage by a grantee — insertion of swell covenant by the grantor . by mistake or by fraud —right of the grantee to be relieved from such covenant— what facts do not entitle him to relief.

    In this action, brought to foreclose a mortgage, it was sought to hold the defendant Burdick personally liable for any deficiency, under a covenant contained in the , deed to h er, by which she assumed the payment of the mortgage. She interposed an answer, alleging that she had agreed to purchase the interest of her grantor, Martin, in the premises, subject to the mortgage, but had never agreed to assume or pay the same; that the covenant had been inserted in the deed without her knowledge or consent, and was in violation of the terms of her agreement with Martin; that the conveyance was'prepared by Martin, and that he caused the said covenant to be inserted therein for the purpose of charging her personally with the mortgage, knowing that it was not in accordance with the agreement, and for the purpose of injuring and defrauding her,
    . and to relieve himself from liability therefor; that relying upon the honesty of the said Martin, and believing that he had drawn the deed in accordance with the agreement, the deed was not carefully examined when received and recorded by the defendant’s agent, and that the inserting of the said covenant therein was not discovered by the defendant until shortly before the commencement of this action. She sought to have the conveyance reformed by stinking out the said covenant.

      Held, that the facts stated in the answer did not justify a reformation of the conveyance on the ground of mutual mistake, as it was alleged-that Martin intentionally caused the covenant to be insei’ted therein.
    That the facts stated did not authorize the granting of the relief sought on the ground of fraud, as the only reason given for the non-discovery of the covenant at the time of the delivery of the deed was the failure of the defendant or her agent to examine it, and that the failure to malee such an examination was such negligence as deprived her of the right to the relief sought.
    That the facts stated in the answer constituted no defence to the action. (Learned, P. J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon ■a verdict directed by the court. (For the opinion in the court below, see 56 How. Pr. R., 500.)
    The action was brought to foreclose a mortgage, made by the defendant George Martin to the plaintiff, on property which Martin had subsequently conveyed to the defendant Mary Delia Burdick. The deed to her contained a clause by which she assumed the payment of the mortgage, and under this clause the .plaintiff sought to hold her liable for any deficiency that might arise on the sale.
    She put in an answer alleging, among other things,
    “ That on the 29th day of January, 1875, as in said complaint •stated, this defendant and Norman Burdick, who is also a defendant herein, entered into an agreement with said George Martin, defendant, whereby said Martin, for a good and valuable consideration to be to said Martin paid, agreed to sell and convey to said Norman Burdick and this defendant as they should direct, and said Burdick agreed to purchase and take the title from and of the said Martin, and to pay him for houses and lots in the Fifteenth ward, Albany, of which the premises (designated in this action as No. 16) described in plaintiff’s complaint was one. That it was also then and thereby agreed by said Martin that he was to convey and deed to the said Burdicks, either jointly or ■ severally, as they chose, each of the said houses and lots and the house and lot upon which plaintiff’s mortgage was then an incum-brance, and which said deed and deeds were to grant and convey all the right, title and interest of said Martin of, in and to said premises to said Burdick, and to the same extent, and in the same degree, manner and interest, and with the same right in, and with • the same title that said Martin then owned, had in or held the same, and so that said grantee should take and own and hold the . same right in, and the same title to and interest in the property . and in the premises, and in each of the same that said Martin then had, held and owned therein. That it was also a part of said agreement that said Martin should procure the deed to each of the houses and lots to be drawn and executed and ready for delivery, and should deliver each of them to said Burdick, or either of them, under and in accordance with the agreement herein and not otherwise, and upon the delivery thereof they were to pay to said Martin the purchase price thereof, which was fixed in said agreement. That under and pursuant to such agreement, as said Burdicks and each of them believed to be fact and truth therein, the said Martin on or about the said 29th day of January, 1875, delivered to said Norman Burdick, and in execution of said agreement as the same purported to be, at one and the same time, separate deeds conveying said bouses and lots so contracted for as follows: to said Norman Burdick, to said Mary Delia Burdick, and to said Jonathan Burdick, and the consideration therefor was then paid to said Martin. That at the time of said delivery the defendant, Norman Burdick, to- whom such delivery was made, and by whom principally the said negotiations upon the part of this defendant and Jonathan M. Burdick and himself were carried on, having entire confidence in said Martin’s honesty, and fully believing that said Martin would carry out said agreement according to its terms, and would have each of said deeds drawn, executed and delivered according to the terms of said purchase and agreement and not otherwise, and fully believing that each of said deeds, and the deed mentioned to defendant in plaintiff’s complaint, which was one of them thus delivered to and received by and for this defendant, were each, and this one was, of the kind they agreed to take and the said Martin did agree to give, and that they each and this one' gave and granted and conveyed to the grantees therein named from said Martin each and all of the rights and interests that said Martin then had and could give them therein, and believing that each of said deeds contained no other clause or provision than such as was required and necessary to carry out such contract and no more, and to convey the title and rights to them as aforesaid, and as had been bargained for, did not carefully examine the same, and still resting under such belief were by said Norman Burdick afterwards recorded. That this defendant or said Norman Burdick never examined the terms and conditions of said deed until at or about the commencement of this action, fot the reason that she and said Norman Burdick supposed and believed that said deed had been made in accordance with the terms and conditions of said agreement until on or about the time that this action was about to be commenced. \
    “ Defendant further says that she never, nor any one on her behalf authorized, contracted to buy, or bought or purchased, or took or agreed to take or buy the said premises subject to said mortgage, and she never assumed or in any way agreed to buy or become liable to pay the said mortgage or bond, or any incum-brance on said promises, and she never in any way or maimer agreed or consented, nor did any one in her behalf authorized, to have any such clause or clauses or provisions, or anything in substance or of the like thereof, placed in said deed, and she never or any one in her behalf authorized, in any way consented or agreed to have any clause or provisions placed in said deed by which her title was to be made subject to said bond or mortgage, or by which she was to assume and agree to pay the same, or to be liable for the payment thereof, and that she would not have taken the said deed if she had known said conditions were placed therein. But that defendant and said Norman Burdick supposed, and was led and induced by said Martin to believe, that at the time she took said deed she purchased and took and Martin granted and conveyed only the said rights and the said title which said Martin then had in the premises, and which defendant had contracted for and not otherwise, and defendant believes now, as she then did, that in taking said deed she assumed no liability of any nature under the said deed, bond or mortgage, and all she could be called upon ever or then to pay was the purchase money to be paid to said Martin for his interests and rights in the premises and no more.
    “ Defendant further alleges that since the commencement of this action she has been for the first time informed, and now believes and alleges, that said Martin at the time of his giving and delivering such deed well knew of said clauses and provisions therein which purported to bind this defendant to pay said mortgage, and they were placed therein by his advice and direction, and with his knowledge and consent, and for the purpose and with the intent of placing upon this defendant the liability of said Martin and the bond which he was obligated to pay, in violation of the terms of said contract, and for the purpose of injuring and defrauding defendant out of her property and rights, and they were so placed in said deed in fraud of said Martin’s agreement of sale so made by and between him and said Norman Burdick, the said Martin thereby intending to relieve himself from the obligation which he had theretofore incurred thereunder and was then liable therein.
    “ This defendant further alleges, that said deed so given and delivered hv said Martin to defendant, and upon which the lia■bility of the defendant to plaintiff is sought to be established ■herein, did not and does not contain or represent or express the contract entered into by and between said Martin and defendant, or any one in her behalf authorized, in reference to the purchase and sale of said houses and lots and premises, in that it contains a clause by which defendant is made to assume and agree to pay ■ the said bond and mortgage, and to take the title of said premises subject to said bond and mortgage, and which said clause this defendant never did agree should be put into said deed, and which said assuming and agreeing to pay said mortgage defendant never ■ did consent to, nor in any way, or at any time, authorized said Martin or any person to insert any condition to that effect.
    “ Defendant further says that she has entered into no contract with plaintiff', or any person- whatsoever in reference to said mortgage, and has assumed no liability thereon or thereunder, or which is due to plaintiff or said Martin touching the same, and that the said bond and mortgage upon which this action is brought and defendant sought to be made liable was given, as she is informed and believes, by said Martin and wife to plaintiff, and defendant is in no Avay a party thereto, or liable thereunder, and that the clause or provision in said deed by which plaintiff seeks to make defendant personally liable for the payment of the same, or of any deficiency that may arise upon the sale of said premises, is the said clause or provision which defendant alleges was placed in said deed in violation of his contract of purchase, and without the knowledge or consent of defendant and in fraud of her rights, and defendant denies that she is, in consequence of the premises herein stated, liable in any event thereon, or that she is in any way personally liable to plaintiff thereon, and therefore demands relief. That the clauses or provision in said deed upon which she is thus sought to be held liable be canceled or rescinded, or struck out of the said deed, or that the same be reformed so that it shall conform to the intent and agreement of this defendant, and to be the agreement made between the parties to the sale and purchase of said premises, or that she be allowed to restore said premises to said Martin, and he be directed to restore her to her former position, or that defendant be allowed to quit claim to plaintiff, and plaintiff be obliged to accept from defendant (and which defendant already offered and tendered to plaintiff to do), all ber interest in said premises, and that plaintiff thereupon discharge defendant from any charge under said clauses so falsely and fraudulently inserted, in said deed, or for such other and further relief legal or equitable as the premises shall warrant.”

      Reilly & Hamilton, foj- the appellant.
    Defendant may set forth in his answer as many defences or counter-claims, or both, as he may have, whether they are such as were formerly denominated legal or equitable. (New Code, § 507; Old Code, § 150; 1 Story’s Eq. Pr., 165, § 161 [11th ed.] ; 24 Barb., 154; 12 How. Pr., 355; Hunt v. Farmers' Trust Go., 8 id., 156; Hobson v. Pearce, 12 N. Y., 156.) The facts alleged in the defendant’s answer would have been good cause for relief in a Court of Chancery, and under our present system are, therefore, proper matters of defence. (Dobson v. Pearce, supra ; Sheehan v. Hamilton, 2 Keyes, 304; Story’s Eq. Jur. [vol. 1, § 165], 159; Cady v. Patton, 55 Barb., 463.) The plaintiffs stand in no better position than as assignee of defendant Martin. Any equities existing between the parties to the contract may be enforced against the plaintiff. (Andrews v. Gillespie, 47 N. Y., 487; Garnsey v. Rogers, 47 id., 233.) The mistake or fraud in a written contract may be shown in an action by the assignee thereof, even if the assignor is not made a party. (Andrews v. Gillespie, supra.)

      Amasa J. Parker, for the respondent.
    The attempt of the defendant on the trial to reform the deed was properly overruled. The proper pleadings had not been framed for that purpose. (1 Jones on Mortgages, 73, § 98; French v. Griffin, 18 N. J. Eq., 279; Auburn Oity Bank v. Leonard, 20 How., 193; Webster v. Bond, 9 Hun, 440; 2 Wait’s Practice, 477; Code of Civil Procedure, § 521; Gady v. Potter, 55 Barb., 463; Gassier v. Silts, 6 Hun, 659; 1 Story’s Eq., § 165; Ramsey v. McMullen, 5 Abb. New Cases, 246.) The deed itself is the contract between-the parties. It can only be reformed upon one of two grounds : one is a mutual mistake, which is not here pretended ; the other is fraud. (Story v. Conger, 33 N. Y., 676.) No action will lie in such a case. (Long v. Warren, 68 id, 426; Slaughter’s

      Admrs. v. Gerson, 13 Wall., 383; Bigelow on Frauds, 66; Tollman v. Green, 3 Sandf. Eq. R., 441, 442; Starr v. Bennett, 5 Hill, 303; Commissioners v. Younger, 29 Cal., 172— 176; Moran v. McLarty, 11 Hun, 66; ,Bacon v. Marldey, 46 Ind. Rep., 116.) When a person signs or accepts an instrument without reading it or asking that it he read, and no device is practiced to prevent his reading, he places himself beyond the reach of legal or equitable relief. (Rogers v. Place, 29 Ind. R., 577; Craig v. Hobbs, 44 id., 363; Hawkins v. Hawkins, 50 Cal. R, 558, Jackson v. Craig, 12 Johns., 427; Albany City Savings Bank v. Martin, 56 How. Pr. R., 500; Attwood v. Small, 6 Clark & Finn, 233.) It is only in very plain cases that a deed will be reformed. The right of reformation of contracts will not be extended. Miaghan v. Hartford Fire Ins. Co., 12 Hun, 321, 323, and cases there cited.)
   Bockes, J.:

The exception to the ruling which denied to the defendant the affirmative of the issue is not urged on this appeal. Such ruling is obviously without materiality, in case the subsequent decision that the party was without defence on her pleading was sound in law. The latter ruling presents the only question in this case.

The conveyance of tlie mortgaged premises by Martin, the mortgagor, to Mrs. Burdick was declared in the deed to be subject to the lien of the mortgage in suit; and, as was also stated therein, she assumed and agreed to pay the mortgage debt. By force of this provision in the deed, Mrs. Burdick, the grantee,. became personally liable to the mortgagee, and this liability the latter sought to enforce. To countervail and defeat this claim made by the mortgagee, Mrs. Burdick set up in her answer (1) that she did not agree with Martin to assume and pay the mortgage ; (2) that the clause in that regard was inserted in the deed without her knowledge or consent; (3) that although she accepted the deed and caused it to be recorded, yet she had no knowledge that it contained this provision until the commencement of this action ; and further, that Martin caused the clause to be inserted for the purpose of charging her personally, knowing that it was not in accordance with the bargain and sale made between tbe parties ; and for these reasons she denied ail liability on account of said provision in the deed, and asked as affirmative relief that it be reformed by striking out or canceling that clause. The learned judge held that the facts set up in the answer were unavailing as a defence or as ground for reforming the deed, for two reasons : (1) because if admitted to be true, as stated, they did not show that, the clause was inserted through mistake of the parties, or through fraud ; and (2) because Mrs. Burdick had not presented an issue to Martin by cross-bill or otherwise.

Now the deed contained what was equivalent in law to a covenant on the part of Mrs. Burdick to pay the mortgage debt. (Douglass v. Wells, 18 Hun, 88, and cases there cited.) So long as this covenant remained in force she was bound by it, and she could get relief from it only by showing that the clause was inserted in the deed through mistake, or by the fraud of the grantor. The presumption is in favor of the writing, and this presumption can be overcome only on the clearest and most satisfactory evidence of mistake or fraud. The facts stated in the answer fail to show that the clause objected to was inserted by mistake. In order to reform the deed for this reason, it must be shown that the mistake was a mutual one. It must be made to appear that the clause was inserted contrary to the intent of both parties, and under a mutual misapprehension. (Nevius v. Dunlap, 33 N. Y., 676; Welles v. Yates, 44 id., 525; Jackson v. Andrews, 59 id., 244; Mead v. Insurance Co., 64 id., 453; Moran v. McLarty, 11 Hun, 66; Ford v. Joyce, 20 Alb. Law Jour., 493-494.) There is nothing in the defendant’s answer indicating that the provision was inserted through any misconception on Martin’s part; on the contrary, it is there averred that the latter, at the time the deed''was delivered, knew that the deed contained this clause; and more, that it was inserted by his direction and for the purpose of charging Mrs. Burdick with personal liability. The facts stated in the answer do not therefore make a case of mutual mistake authorizing a reformation of the deed on that ground.

Nor is a case stated authorizing the relief demanded on the ground of fraud. The only substantial ground of alleged fraud is that Martin inserted the liability clause, or caused it to be inserted, contrary to the agreement, and delivered it without informing Mrs. Burdick, or her agent who acted in her behalf, of the fact. It is not averred that any false representation, or, indeed, any representation whatever, was made to Mrs. Burdick or to her agent when the deed was delivered, nor that any trick or artifice was employed to induce its acceptance, or to hinder or prevent its examination by them. It is averred that the deed was accepted without examination; but its non-examination was such negligence as takes from the party the right to predicate fraud upon the transaction. This conclusion is fully sustained by the principle recognized as sound in Long v. Warren (68 N. Y., 426), and other cases there cited. It was there laid down that when both parties have equal means of acquiring information, and nothing is said or done by either to throw the other off his guard, or to divert him from making such examination as a prudent man ought to make, and he omitted to make them, or to avail himself of the means and opportunities at hand to do so, he cannot predicate fraud upon the transaction. It has been repeatedly held that where a party signs an instrument without reading it or inquiring of its contents, not being thrown off his guard in any respect, and having full opportunity to examine it, he cannot gainsay its provisions or legal effect by alleging fraud or mistake in that regard. (See Irving N. Bank v. Myers, 21 Alb. Law Jour., 74; Moran v. McLarty, 75 N. Y., 25; Upton v. Tribilcock, 91 U. S. [Otto, 1], 50.) The defendant failed to show a case of fraud entitling her to the relief demanded, admitting the aver-ments of her answer to bo true.

If correct in the conclusions above stated, the judgment appealed from must be affirmed, and an examination of the question whether Mrs. Burdick could have the relief claimed by her without a cross-bill, or in some way tendering an issue to Martin upon the subject of the alleged mistake or fraud, becomes unnecessary. Judgment affirmed, with costs.

BoaRdmaA J., concurred.

Learned, P. J.

(dissenting).

Under the answer the defendant Burdick, if permitted by the court, might have proved :

First. That by the original agreement between her and Martin, she was to purchase whatever estate Martin had, but was not to assume, or to agree to pay the mortgage. Second. That Martin was to procure the deed to be drawn and executed according to the terms of the original agreement; and that she trusted him to do this. Third. That he did procure it to be drawn, but not according to the original agreement. Fourth. That she did not see the deed when delivered; and that her agent, havmg confidence in Martin, did. not examine it. Fifth. That until about the commencement of this action she believed the deed was drawn according to .the original agreement. Sixth. That for the purpose of defrauding her, and in violation of the true terms of the agreement, and without her consent, Martin inserted in the deed a clause by which she assumed the payment of the mortgage.

On the question of the reformation of a deed it is not necessary that there should be mutual mistake. Mistake on one 'side and fraud on the other is enough. (Bryce v. Lorillard Fire, 55 N. Y., 240 at 243 ; Jackson v. Andrews, 59 id., 244 at 247.)

Nor does the neglect of a party to read a written instrument deprive him of a remedy against the actual fraud of the other party in fraudulently inserting a clause which formed no part of the true agreement. (Botsford v. McLean, 45 Barb., 478 ; Andrews v. Gillespie, 47 N. Y., 487.) Where there is an oral agreement, and one party is entrusted by the other with the duty of committing it to writing, if he fraudulently inserts a clause which formed no part of the agreement, he cannot prevent relief against his fraud by saying that the other party ought not to have trusted him.

Such cases as those of Long v. Warren (68 N. Y., 426), and Slaughter's Adm. v. Gerson (13 Wall., 383), do not apply. They are cases of alleged fraudulent representation as to the subject matter of the contract, as to which the injured party was not to trust the other. In Moran v. McLarty (18 Sup. Ct. N. Y., 66), there was not in fact a mutual mistake. Jackson v. Croy (12 Johns., 427), only holds that mere neglect to read a paper is not sufficient proof of the fraud.. But it is plain that, in all cases of reformation of instruments, the party asking relief must have neglected to read the paper, or have x-ead negligently.

But it is urged that no issue was tendered to Martin. And that seems to have been the ground on which the answer was “ruled out.” (Albany City Savings Bank v. Martin, 56 How. Pr., 500.) The defendant, however, sets up this fraud only as a defence. She does not otherwise need any formal reformation of the deed. If a fraud was practiced upon her, she ought to be allowed to show this. If the plaintiffs desire that their rights against Martin should not be prejudiced, by a decision in her favor, they have only to notify him of the alleged defence, and permit him to contest it. Then he would be bound, as is suggested in Andrews v. Gillespie (ut supra).

For these reasons I think there should be a new trial.

Judgment affirmed, with costs.


author: Boardman, J.: Bockes, J.: Learned, P. J.

text:
    WILLIAM A. GRISWOLD, Appellant, v. HENRY WATKINS, as Assignee in Bankruptcy of GEORGE W. SISSON and others, Respondent.

      An assignee in bankruptcy is liable individually, and not as assignee, for wages of employees anuí for property converted by him — An action against one as assignee cannot be changed into one against him individually — An action to reach assets of bankrupt— United States courts have exclusive jurisdiction of— U. S. Rev. Sts., § 711.'
    This action was brought by the plaintiff to recover for services rendered to, and for lumber converted by the defendant as assignee in bankruptcy of one Sisson. In the summons and complaint the defendant was named “as assignee,” and the services were alleged to have been rendered to, and the - property to have been converted by him, as such assignee.

      Held, that for services rendered to the defendant after his appointment as assignee, and for property converted by him, whether or not the proceeds were applied to the use of the bankrupt estate, he was liable individually and not in his representative capacity as assignee. That the allegations showing that the defendant was sued as assignee and not individually could not be disregarded, and that the complaint must be dismissed. (Learned, P. J., dissenting.)

      Semble, that even if the bankrupt’s estate could be held liable for such acts of the assignee, the United States courts would, under subdivision 6 of section 711 of the United States Revised Statutes, have exclusive jurisdiction of an action to reach the assets of the bankrupt. (Per Boardman, J.) *

      Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The complaint was as follows : “ The above named plaintiff complains of the above named defendant, and alleges upon information and belief that the said Henry Watkins is, and has been for the space of three years last past, assignee in bankruptcy of George W. Sisson, Thomas L. Greene and Miner H. Greene, and of each of them ; that, as such assignee, the said defendant is indebted to the plaintiff for work and labor done by plaintiff for defendant at defendant’s request, for logs and lumber-of plaintiff’s taken by defendant and converted to his own use, and for money had and received by defendant from plaintiff, at the times, to the amount and of the value as follows, to wit. * * * That there is due and owing from the defendant to the plaintiff the sum of $1,366.68, with interest from December 1-, 1874. Wherefore, plaintiff demands judgment against the defendant for the sum of $1,366.68, and interest from December 1, 1874, besides costs.”
    The answer admitted that the defendant was such assignee, but denied the right of the plaintiff to maintain an action against the defendant as assignee in bankruptcy in a State court, and claimed that the action should have been brought in the United States Court, either district or circuit, in and for the northern district of New York.
    And the answer further claimed that no notice was given the defendant as' assignee, as required by section 5056 of the bankrupt act. (U. S R. S.)
    The referee held that the defendant was not liable, as assignee, for the value of the lumber converted nor for the- value of the services rendered, and further held that the court had no jurisdiction of the action.

      Parker & McIntyre, for the appellant.

      George Z. Erwin, for íe respondent.
   Boardman, J.:

After the defendant was appointed assignee in bankruptcy, he was authorized by the.bankrupt court to saw certain saw-logs belonging to the plaintiff in a saw-mill belonging to the bankrupt’s estate. In pursuance of this authority the logs wore afterwards sawed under a contract with the defendant specifying the price to be paid for such sawing. When the logs were sawed and converted into lumber, the lumber belonged to the plaintiff. The defendant, as assignee, had no title thereto. When the defendant converted the lumber to his own use he committed a wrong, and became liable to the plaintiff for the damages arising from his tort. It was of no consequence what wrongful use Watkins made of the converted lumber. It did not change his personal liability into a claim against the bankrupt’s estate even if the proceeds went to such estate. It would prove á gross wrong to the plaintiff to compel him to take a dividend with other creditors of the bankrupt for the tortious act of the assignee in misappropriating plaintiff’s lumber. It would be equally a wrong to the creditors of the bankrupt if they were required to contribute out of the bankrupt’s assets towards the satisfaction of damages arising out of the wrongful and tortious act of the person acting as assignee. The authority given by the bankrupt court to contract to saw plaintiff’s logs did not sanction the appropriation by the assignee of the lumber. In doing that he was acting without authority or right. ■ His official position as assignee would not protect him for the personal wrong done.

If these principles are correct the plaintiff mistook his remedy in bringing his action against' the defendant in his representative character. It was not a claim which could be proved against the bankrupt’s estate, or which was payable therefrom. The cause of action had no relation to the. bankrupt proceedings, and hence ought not to be controlled by the bankrupt law. The action should have been against Watkins personally by reason of his tort in converting to his own use plaintiff’s lumber. To such an action, so far as the case shows, the defendant Watkins had no defence.

Wo conclude, therefore, that in the respect already stated, no cause of action was alleged or proved against the defendant as assignee in bankruptcy.

Upon the same principle services rendered or money paid to Watkins are chargeable to him personally. The services of persons employed by the assignee in the discharge of his duties are expenses to be first paid in full. They are not claims against the estate to be proved and to take dividends on the final distribution. By procuring such services Watkins becomes individually liable therefor, and they are to be allowed to him in his settlement, just as in the case of executors or administrators. If the assignee employs an attorney or other agent in the proper discharge of his duties he will be held personally responsible for the value of his labor. The same rule should apply to the case of money paid by the plaintiff to "Watkins for services to be rendered by him, but •which he fails to perform.

These considerations are, however, of slight importance, since a recovery for the conversion of plaintiff’s property would more than compensate plaintiff for all his losses.

If it were possible in other respects to maintain this action against the assignee to reach the bankrupt’s assets in his hands, we think the State courts have no jurisdiction. By section 711 United States Revised Statutes, subdivision 6, the jurisdiction of the United States courts is exclusive in all cases of matters and proceedings in bankruptcy. The present action is an attempt to reach and share in the bankrupt’s assets in the hands of the assignee, and for that reason it would, if successful, infringe upon the special jurisdiction and duties of the United States courts, as prescribed by the bankrupt law and defined by Judge Andrews in Kidder v. Horrobin (72 N. Y., 167). Besides, the plaintiff in this action was not a creditor of the bankrupt. , If he had been a creditor of the bankrupt, and his suit pending when bankrupt proceedings were commenced, they might have been continued against the assignee to judgment, for the sole purpose of establishing the amount of the debt (Norton, Assignee, v. Switzer, 3 Otto, 355.) But no case has been found where such an action, begun after the appointment of the assignee in a State court, has been sustained.

The plaintiff appears to have a just claim against Watkins, and we should have been glad to have found some way in which a personal judgment could have been rendered against him in this action. But we are unable to see how a judgment can be had or proper relief granted in the present action.

The judgment dismissing the plaintiff’s complaint, with costs, must, therefore, be affirmed, with costs.

Bockes, J.:

I concur in the foregoing opinion. It is very clear, I think, that the action could not be sustained against the defendant as assignee, nor would it be right to disregard the pleadings, the theory of the action and defence, and the proceedings on the trial, and turn the case into an action against the defendant personally. Let the party bring such an action now, if he so desires.

Learned, P. J.

(dissenting).

The referee finds that the plaintiff did the work and labor sued for, and that the logs and timber were converted. But he reports in favor of the defendant. And the reason is this : The plaintiff in his summons and complaint described the defendant, as assignee in bankruptcy of Sisson and others. Pie avers in his complaint that the defendant, as such assignee, was indebted for the work and labor and for the logs converted. The facts proved are, that the defendant was appointed assignee in bankruptcy in August, 1873; and that, after such appointment, the plaintiff did for him the work and labor mentionedand that after such appointment he converted the plaintiff’s logs and timber as aforesaid.

The only difficulty is that, in the summons and complaint, the words, “ as assignee ” are added to defendant’s name. The facts alleged and the facts proved show a cause of action against the defendant, personally. One who hires work done owes for it personally. One who converts property is liable for it personally. He cannot escape his liability by claiming to have committed the tort in a representative capacity. If this had been an action for assault and battery ; and the words “ as assignee” had been added to defendant’s name, they would have been surplusage.

This action has nothing to do with the bankruptcy proceedings. It does not belong to the Federal courts, and there was, therefore, no need of the twenty days notice. The plaintiff made a mistake, when he added the words “ as assignee ; ” but this should not defeat the action.

Tbe facts are plain and show that the work was done, and the conversion took place after the' appointment. The plaintiff demanded judgment against the defendant, and not the establishment of a claim against the estate. - ,

When the defendant shall settle his account in bankruptcy he will probably be allowed for what he is required to pay, just as he will not be chargeable for property which did not belong to the bankrupt. But it is of no consequence to this case how that may be. He is personally liable for the work done for him and for the goods converted by him. The substantial rights of the defendaut are not affected by the improper description or addition to his name, and the error should be disregarded. (Code of Civil Procedure, §§ 721, 722, 723.)

For these reasons I think the judgment should be reversed and a new trial granted.

Judgment affirmed, with costs. °


author: Learned, J.: Boardman, J. :

text:
    ADDIS TURNER, Respondent, v. HARLOW G. BORTHWICK, Appellant.

      Exempt property— exemption must be claimed when a levy is made.

      A deputy sheriff levied under an execution, issued upon a judgment recovered against the present plaintiff, upon certain articles of property claimed to be exempt ; at the time of making the levy he told the plaintiff’s wife that he thought the property was exempt, and told the plaintiff that he would levy on it and take it away if he (plaintiff) did not forbid him, to which plaintiff replied, “I didn’t know that I could forbid you,” and further said that the deputy might take it. The plaintiff was also present at the sale and made no claim that the property was exempt from execution.

      Held, that having failed to claim that the property was exempt at the time the levy was made he could not thereafter claim that such levy was unlawful and sue the sheriff to recover damages therefor.

      Frost v. Mott (34 N. Y., 253), distinguished.
    Appeal from au order made at Special Term granting a motion, made upon a case and exceptions, to set aside a nonsuit directed at the circuit.
    The action was brought against the sheriff of Cortland county to recover damages for an alleged unlawful levy made by one of bis deputies, under an execution against the present plaintiff, upon property claimed to have been exempt from execution.
    The plaintiff was nonsuited on the trial.

      Waters (& Eggleston, for the appellant.

      Warren & Kellogg, for the respondent.
   Learned, J.:

The case of Frost v. Mott (34 N. Y., 253) throws little light on the present case. In that the defendant had levied on sixteen sheep and ten lambs under an execution against Clapp. Clapp claimed ten sheep as exempt, and Frost claimed the rest of the property .as mortgagee. Each sued and recovered. Nothing appears as to the circumstances of the levy.

In the present case, the evidence is uncontradicted that the deputy sheriff came with the execution and was about to make a levy. That the wife of the plaintiff asked what she could hold as exempt property, and the deputy told her he thought that was exempt property, but he had orders to take it; that the deputy went to the plaintiff’s house and said he would levy on that property, and should take it away if he, the plaintiff, did not forbid him, to which the plaintiff replied, “I didn’t know that I could forbid you,” and said that the deputy might take it; that the plaintiff said nothing about the property being exempt; that he was present at the sale and never said anything else about it, and did not forbid the sale.

Under such circumstances, the doctrine laid down in Twinam v. Swart (4 Lans., 263), and in similar cases applies with great force. It was the officer’s duty to levy on the plaintiff’s property. It was the plaintiff’s privilege to insist that some of his property was exempt from such levy. But he could certainly waive that exemption if he chose to do so. It is held in the case last mentioned that a neglect to claim the t exemption is itself a waiver. In the present case, however, there was more. The deputy informed the wife that he thought that the property (meaning, probably, a part of what was levied upon) was exempt. But neither she nor her husband gave any indication that he insisted ou the exemption. Further the plaintiff said : “ I didn’t know that I could forbid you ; ” and said that the deputy might take the property. How could the officer have escaped liability, if he had neglected to levy, after such permission given to him. How can he now be made liable to the present plaintiff for doing an act to which the plaintiff consented ? This is not a case of mere silence on the part of the judgment debtor. It is a case whereby express language he consents to the levy. After such consent, it would be unjust that he should have a recovery against the officer.

We think that the order granting a new trial should be reversed, with costs.

Boardman, J. :

The plaintiff claimed to recover of the defendant the value of property seized by him on execution and sold. The property consisted of working-tools and team, and the necessary food for the team for ninety days. The value of the property taken .was proved upon the trial to exceed $250. The plaintiff was non-suited on the trial upon the ground, probably, that the sheriff, on the facts proved, had a right to seize and sell the property, notwithstanding the plaintiff could have legally claimed the property was exempt at or before the sale.

Afterwards, on a case made, a new trial was granted, but upon what grounds is not stated. The defendant now appeals from the order granting the new trial.

The plaintiff’ is conceded to have' been a householder under the law. The property taken, we may fairly infer, would have been found to be necessary for the support of the family. If a proper claim had been or was made, the plaintiff -would have been entitled to have $250 in value of the property seized, such as might be selected, exempted from the sale. Under these facts the following questions are presented for our decision • (1.) Had the sheriff the right to levy upon property liable to be exempted from levy and sale on his execution ? (2.) Was it the duty of plaintiff to claim the exemption or forbid the sale to put the sheriff in the wrong? (3) Was a demand necessary before this action could be maintained ?

The questions are disposed of by the case of Twinam v. Swart (4 Lans., 263), decided by tbe General Term of this department in 1871, It is there held hi substance that all personal property is liable, in the first instance, to levy under execution, and that in some form the execution debtor must make his claim to exemption to the officer making the levy. This may be done by a demand of the property, or by forbidding the sale, or by a claim to exemption. If after that the officer proceeds to sell, he does so at his peril.

In the present case no such demand or claim was made. On the contrary, the debtor consented to the taking of the property, by the defendant with full knowledge of the facts. The debtor was present at the sale, but did not forbid. He therefore did not forbid the levy or sale, nor did he make any claim to exemption or demand the property. It is therefore simply the levying upon and selling by the sheriff of property of the execution debtor, some of which, at least, was subject to be claimed as exempt, but without objection on the part of the debtor.

To the same effect are the cases of Seaman v. Luce (23 Barb., 240), where it is held to be the duty of the execution debtor to claim his exemption before he can have his action for the levy or sale. (Lockwood v. Younglove, 27 Barb., 505, the court saying, “ the right of choice necessarily belongs to the debtor; ” Davis v. Prosser, 32 id., 290, where it is said, “prima facie, all the personal property of a judgment debtor is liable to levy and sale upon execution. * * * No property in his possession is exempt perse;’’ Baker v. Brintnall, 52 Barb., 188, 193.)

The case of Frost v. Mott (34 N. Y., 253), is cited in apparent hostility to the foregoing authorities. The report of the case is very unsatisfactory, so far as it touches this case. In the statement of facts it appears that Clapp, the plaintiff claimed the exempt property. The referee, so far as appears, made no finding upon that point. Judge Portee, in his opinion, says : “The defence principally relied on is, that the property belonged to the mortgagee, and that the defendant is responsible to him, and not to Clapp, for the taking and detention of the sheep claimed as exempt.” Upon what grounds a nonsuit was asked for does not appear. The judgment in favor of the plaintiff was sustained upon the decision of the principal question alluded to. The other language used, by the judge, to the effect that it was the officer’s duty to select and leave with the debtor such exempt property as he was entitled to, does not appear to have been called for in the disposal of the cáse, and was not warranted by any facts shown to exist. But the learned judge says : “ He (the officer) neither requested the plaintiff to designate them (the exempt property), nor made any designation himself.” In the present case the defendant told the plaintiff’s wife he thought the property was exempt. He also told the plaintiff he should levy on the property and take it away, if not forbidden. Plaintiff replied, “I did’nt know that I could forbid you,” and told defendant he might take it. Here was a plain request by the defendant to the plaintiff to claim his exemption if he desired to do so, and in effect a refusal by plaintiff to make any claim.

Upon a careful consideration of the authorities, we think the plaintiff was properly nonsuited, and that a new trial should not have been granted.

The order granting a new trial should therefore be reversed, and the motion for a new trial denied, with costs.

Leakned, P. J., and Bockes, J., concurred.

Order granting new trial reversed, with costs.


author: Learned, P. J.:

text:
    RICHARD D. W. KIFF, Respondent, v. WILLIAM YOUMANS, Appellant.

      Excess of force used in removing a trespasser' — vindictive damages allowed, if the defendant acted wantonly or maliciously— Verdict in an action for tort— when not set aside as excessive — Admissions of a party on opening his case to the jury — admissible against him on a new trial,

    'Where in an action for an assault and battery, committed in removing1 a trespasser from the defendant’s premises, a recovery is allowed for an excess of force used in effecting such removal, the jury may, if they find the defendant’s acts to have been wanton and malicious, award punitive damages.
    A verdict in an action for an assault and battery will not be set aside on the ground that the damages are excessive, unless it appears to be the result of prejudice or passion on the part of the jury.

      Upon the trial of an action for an assault and battery a witness was allowed, against the defendant’s objection and exception, to testify that the defendant, upon a former trial of the action, in opening the case to the jury in his own behalf stated, in reference to the affray, that he knew he had made himself liable. Held, no error.

      Adee v. Howe (15 Hun, 22), distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon tho verdict of a jury, and from an order denying a motion for a new trial made upon tho minutes of the justice before whom the action was tried. Tho action was for an assault and battery.
    The defence was that the plaintiff was trespassing on the premises of tho defendant, and refused to leave upon request, and that the defendant thereupon attempted to remove him therefrom, using no more force than was necessary to effect that object.

      W. Yóumans and W. H. Johnson, for the appellant.

      Wm. Gleason, for the respondent.
   Learned, P. J.:

The first point urged by the appellant is as to the exclusion of the defendant’s offer to show what he said to the plaintiff’in 1875 in reference to the privilege of tapping his pipe. The eyidence was offered to bear on the question of want of malice in the assault, but we cannot see that it had anything to do with that subject. Whether the defendant offered or refused such a privilege in 1875 would not show anything as to the nature of the assault committed at some other time.

Tho next objection is, that a witness was permitted to testify that the defendant, upon a former trial of this case, on opening the case to the jury, in his own behalf, said, in reference to the affray, that he knew ho had made himself Hable. The defendant relies on the case of Adee v. Howe (22 Sup. Ct., N. Y., 22). In that case an admission made by counsel was held not to be competent against his client. But the present is a different case. Here the statement was made by the defendant himself, and there seems to be nothing to take it out of the general rule that admissions of parties are evidence against them. The admission was voluntary and was the act of the party himself.

Another objection is to certain evidence given as to the plaintiff’s finding a stone in the pipe. This evidence was not objected to when given. Nothing subsequently occurred which made the evidence any more objectionable than it was when it was given. The defendant, by not objecting when the evidence was given, waived objection. Nor are we confident that the objection would have* been tenable if taken in due season.

Again, the defendant insists that the verdict was excessive. While the General Term has a right to review the motion for a new trial upon this ground, it must be admitted that the judge who tried the case is better qualified fio form a correct opinion. All witnesses look alike on paper. The question as to who should be believed, in case of conflicting evidence, is better decided by the jury and by the judge who presided at the trial.

In the present case the judge was of the opinion that a verdict of a less amount would have done better justice. But he did not think it proper to set the verdict aside as excessive. As long as the system of jury trials is maintained, the courts should only interfere in cases where the verdict shows prejudice. or passion, or the like. We cannot say that this is such a case.

The remaining question relates to the charge, that where the defendant’s acts were wanton or malicious, the jury might award punitive, damages.

The defendant insists first, that punitive damages should never be given. The contrary is settled in this State. (Caldwell v. N. J. Steam Co., 47 N. Y., 282; Cook v. Ellis, 6 Hill, 466, and numerous other cases.)

But secondly, the defendant insists that such damages are never allowed in an action for assault and battery, committed in removing a trespasser from the defendant’s premises, where there is a recovery for any excess of force used in accomplishing the act. .Undoubtedly the circumstance that the assault was committed in removing a trespasser might go far to relieve the defendant from liability to punitive damages. It should, undoubtedly, be taken into account, in considering whether the defendant was acting maliciously. But it is very plain that the owner of the land, when removing a trespasser therefrom, might take the opportunity,'under pretence of right, to inflict a wanton, outrageous and malicious assault.

We see no reason why the owner of premises might not commit a malicious assault upon a trespasser while in the act of removing him from the premises. The mere use of excessive force would probably not be proof of malice. But we cannot say that, in no such case, could malice be shown. The court charged that, when the jury found the acts were wanton and malicious, they might give punitive damages. Thus there were two questions for the jury : the one, was the force used excessive ; the other, if the force used was excessive, then further was the assault wanton and malicious. In the latter case only were the jury permitted to give punitive damages. We 'see nothing in any of the cases cited by the defendant in this State which is hi conflict with the view above expressed.

The judgment and order are affirmed, with costs.

Present — Learned, P. J., Bocees andBoARDMAN, JJ.

Judgment and order affirmed, with costs.


author: Learned, P. J. :

text:
    JOHN G. PRATT, Respondent, v. THOMAS COLLINS, Appellant.

      Sale by agent without disclosing his principal — right of the purchaser to set off a debt due to him, from the agent in an action by the pi-indpal.

    In an action by a principal to recover the price of goods, sold for him by an agent or factor who did not disclose his principal, the purchaser may set oíf a debt due to him from such agent or factor, unless he knew at the time that his vendor was acting as an agent or factor, or unless circumstances were brought to his knowledge which would necessarily put him on inquiry in regard thereto. Mere public rumor or knowledge possessed by others in regard to that fact-will not deprive him of his right of set-off.
    Appeal from a judgment in favor of the plaintiff1, entered upon the report of a referee.
    The action was brought to recover the price of goods consisting of sash and doors, sold by the plaintiff through his agents, Rogers & Pratt, to the defendant. The latter put in an answer claiming that be bad bought tbe goods from tbe firm of Rogers & Pratt, consisting of George Rogers and William Pratt, and denied that tbe said firm were acting or sold tbe goods as tbe agent of tbe plaintiff. He also set up as a counter-claim a judgment recovered on December 13, 1875, against tbe said firm of Rogers & Pratt, wbicb bad been assigned to bim by tbe owner thereof on June 21, 1876, wbicb judgment be sought to have set-off against tbe price of tbe goods so purchased.

      J. M. Landon, for tbe appellant.

      I. O, Ormsby, for tbe respondent.
   Learned, P. J. :

The first point made by tbe plaintiff is, that a person may, for good consideration, agree to waive his right of set-off. This is undoubtedly true. (Gutchess v. Daniels, 49 N. Y., 608.) But, in that case, there was an express, and not an implied agreement to waive tbe set-off. Tbe parties in that case recognized tbe fact that a set-off would exist to tbe debt about to be contracted, and, for certain good reasons, tbe party wbicb held tbe set-off was willing to agree not to assert it. But in tbe present case, there is nothing of that land. To claim that the parties recognized tbe existence of this set-off is to admit that Rogers & Pratt, and not tbe plaintiff, were tbe vendors. And that would be to admit that tbe plaintiff has no cause of action. There is nothing in tbe fact that a purchase is for cash, wbicb waives a set-off thereto when tbe vendor, instead of disaffirming the sale, as for fraud, sues for tbe price. This was held in Hogan v. Shorb (24 Wend., 458).

Tbe second and more important point is, whether the defendant could set-off tbe judgment wbicb be held against Rogers & Pratt. Tbe law on this point is clearly laid down in the case last cited, and it is useless to go to earlier authorities. It is again very clearly stated by Mr. Justice Bockes, in Judson v. Stilwell (26 How., 513), that, if goods are sold by a factor or agent, in bis own name, without disclosing his principal, the purchaser has a right to set-off a debt due from bim (tbe agent), in an action by the principal for the price of the goods, unless, however, the purchaser knew, or had reason to believe, that the vendor was soiling as agent, or unless there were circumstances such as to put him on inquiry in this respect.

The referee has found that the defendant understood, a day or two before making the purchase, that Rogers & Pratt were doing business at the shop ; that Rogers, with whom alone he had an interview, never informed him, before'the delivery of the goods, that the plaintiff was carrying on the business, or that Rogers alone or with another, was an agent; that the defendant had no knowledge or information at the time of the purchase, nor until several days after the delivery of the goods, that the plaintiff was the principal.

But he finds that the fact of the business being carried on by the plaintiff was so openly known and understood, as to be sufficient to put the defendant upon inquiry as to the same, and sufficient to afford a reasonable presumption that he had become, or was aware of said fact.

Now, it is to be noticed that, if such notoriety did afford a presumption that the defendant had become aware of the fact, such a presemption is not conclusive. It may be rebutted. And it has been rebutted in this case ; because the referee found, subsequently, that the defendant had no knowledge or information that the plaintiff was the principal. The ground, therefore, of the referee’s refusal to allow the set-off must rest alone on the finding of the fact that the plaintiff’s carrying on the business was so openly known as to be sufficient to put the defendant upon inquiry.

And hero it should be remarked that the careful expressions in the opinion of Mr. Justice Bocees, as to the purchaser’s knowing, or having reason to believe, that the vendor was an agent, and as to circumstances to put him upon inquiry, evidently refer to facts and circumstances which actually come to the purchaser’s knowledge. These expressions are not to be understood as referring to public rumor or to knowledge possessed by others. It must be either that the purchaser knew, or (what is the equivalent) that he had reason to believe that the vendor vras an agent; or that circumstances were brought to his knowledge, which would necessarily put him on inquiry to find out whether the vendor was agent or principal.

It appears that Rogers & Pratt carried on the business till the early part of the winter of 1875, when they stopped; then, for four weeks, a firm of Collins, Hydorn & Burdick hired the place from Rogers & Pratt, and employed Rogers & Pratt to work for them there. This ivas a temporary matter : and afterwards the shop lay idle, until about the last of March, 1876. Then the plaintiff commenced the business. He did not buy any body out, but stocked the shop and employed Rogers & Pratt to attend to the business. He paid the hands through them. He personally made no purchases, but Rogers & Pratt made them. There was no sign on the building.

He was already mortgagee of the machinery; and the arrangement between Rogers & Pratt and the plaintiff was verbal that they should turn over the machinery to him. Until such time as the business would allow plaintiff to pay suitable wages, they were only to have their living from the business. The accounts were kept on the old books of Rogers & Pratt. The plaintiff’s business was boating, running a propeller on the river. He took no measures to notify those with whom Rogers & Pratt had dealt that he was carrying on the business ; and he did not examine the books to see with whom they had dealt.

After the plaintiff' had commenced to carry on the business,Rogers & Pratt continued to use the bill-heads with their firm name ; they used their firm cards ; and there was continued in the newspaper printed at Waterford, until September 29, 1876, the firm advertisement. The plaintiff knew of this in March, 1876 ; and in April, he asked the editor if Rogers & Pratt had told him to take it out.

There is the evidence of the witnesses that, in the summer of 1876, the plaintiff offered to be security for Rogers & Pratt in the purchase of lumber ; a fact which the plaintiff testifies that he does not recollect. The rent on the lease was paid by Rogers & Pratt as before. They gave receipts in several instances for money and lumber in their own name.

The dealing with the defendant, on which this action arises, began June, 21, 1876, and there seems to be no evidence that, prior to that date, any one except the plaintiff and Rogers & Pratt, knew that they were not carrying on business for themselves. We do not see, therefore, how it can be said that the plaintiff was publicly and openly carrying on the business. On that day the defendant wont to their shop and asked for one of the firm. Rogers was pointed out, and the defendant stated that he wanted some sash, doors, etc., and gave the items. Rogers took one of the billheads, with the name of the firm, and made out an estimate, beginning: “We will furnish the following,” and signed Rogers & Pratt, and gave it with the card of the firm to the defendant. The defendant in a day or two wrote to Rogers & Pratt ordering the goods with some few changes. When a part had been delivered, Rogers asked for some money oil account. The defendant said he would pay (or would settle) when the whole was furnished. But it was not as he testifies, and as the referee finds, until several • days after the final delivery of the goods, that he had any information that the plaintiff was the principal.

There was certainly nothing in the transaction between him and Rogers, when the goods were ordered, which gave him any reason to believe that Rogers & Pratt were agents ; but every thing to the contrary.

It must be admitted that the circumstances of the transfer of the judgment to the defendant show strongly 'that the object was to collect the judgment by making it a set-off against a purchase. But there is no reason to say that the parties to the transfer knew, or supposed, that the plaintiff was conducting the business. If the transfer was designed as an artifice to collect a debt from Rogers & Pratt, there appears to be nothing illegal or unjust in such collection of a debt. If the defendant had known, or had reason to believe at that time, that the plaintiff was the principal, it would have been idle to take an assignment of the judgment.

On a careful examination of all the evidence, therefore, it seems to us that the defendant had no actual knowledge that Rogers & Pratt were agents ; that there were no circumstances within his knowledge which would give him reason to believe or suspect that fact; and finally, the fact was not so openly known or understood as to put him on inquiry in regard to the same.

The result of this is that the judgment must be reversed, a new trial granted, reference discharged, costs to abide event.

Present — Learned, P. J., and BoaedmaN, J.; Bocees, J., taking no part.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


author: Per Curiam:

text:
    WILLIAM H. TATOR, Plaintiff, v. WILLIAM ADAMS and others, Defendants.

      Reference on distribution of surplus moneys— the referee may inquire as to the validity of liens presented and ccnreet mistakes therein.

    Upon a 'heai'ing before a referee, appointed to report as to the distribution of surplus moneys arising upon a sale, under a decree in foreclosure, a claimant produced a mortgage concededly the first lien thereon, but which contained a clause apparently reserving a life estate in the premises in favor of the mortgagor, by virtue of which the judgment creditors of the mortgagor claimed to be entitled to have the value of such life estate first set apart from such surplus and applied to the payment of their debts. The referee, against the objection and exception of the said judgment creditors, allowed the owner of the mortgage to prove that such clause had been inserted by mistake, and having found that such was the fact he held that the mortgage was entitled to’priority over the subsequent judgments.

      Held, that the referee had power to inquire and determine whether or not the clause was inserted in the mortgage by mistake, and that having found it was so inserted he properly gave the mortgage priority over the subsequent judgments.
    Appeal from parts of an order made at a Special Term, allowing exceptions to a referee’s report in proceeding for the distribution of surplus moneys, modifying such report and directing the distribution of such moneys.
    On the hearing before the referee, the claimant, Ebenezer Adams, the appellant, to sustain his claim, introduced in evidence a mortgage made by the defendant William Adams, on the 21st day of December, 1876, and while he was the owner of the equity of redemption of the mortgaged premises sold in this action, and by bis wife Mary E. Adams, bearing daté on that day and conditioned to pay said Ebenezer Adams $2,546.37, and interest.
    This mortgage contained a description of the mortgaged premises sold in this action. It also contained the following provision, to wit: “ Subject, however, to the estate and interest of the party of the first part in said premises for and during his life and reserving the possession, use and enjoyment of the same during his life.”
    It was claimed, on the part of the claimant, Ebenezer Adams, appellant, that this reservation in the mortgage of a life estate to the mortgagor was inserted in the mortgage by mistake.
    On the hearing before the referee oral evidence was offered on the part' of appellant, and received against the objection and exception of the other claimants, for the purpose of showing, as claimed by him, that this reservation in the mortgage was inserted by the mistake or inadvertence of the draftsman, and without the authority or direction cf the parties to the mortgage.
    . The other claimants are judgment creditors of said defendant, William Adams, holding several judgments recorded and docketed in the proper county against him, after the execution of the said mortgage to the claimant, Ebenezer Adams, and before the sale under the plaintiff’s mortgage, and while . said William Adams ivas the owner of the equity of redemption of the premises sold.
    The referee reported that the mortgage of Ebenezer Adams was a valid and subsisting lien upon the said surplus moneys and upon the whole thereof, and was the first lien thereupon.
    Exceptions were filed to the report, and from an order modifying it in conformity therewith this appeal was taken.

      Cornelius Bsselstyn, for the appellant, Ebenezer Adams.

      Newkirk & Chace, for the judgment creditors, respondents.
   Per Curiam:

Although there had previously been some doubt as to the powers of referees in proceedings to distribute surplus moneys, the decision in Berger v. Snedeker (21 Alb. L. J., 54) has settled the matter. It is held, and wisely held in that case, that a question of fraud may be investigated before the referee, and it follow's, by analogy, that every question may be examined tending, to show the equities of the claimants. In the present case there is no doubt that the clause in question was inserted by accident and mistake. In an action for the purpose the mortgage would be reformed. There is no need of such an action to determine the rights as to these surplus moneys. They can be determined as well in the present proceeding. ■

If the mortgage can be reformed as between mortgagor and mortgagee, then the liens of subsequent creditors would not prevent the reformation. Judgment creditors have no better rights than the judgment debtor in such respects; and, therefore, these judgment creditors are not entitled to resist the equity which, in this case, appears in favor of the mortgagee..

The order of Special Term must be reversed and the exception to the referee’s report overruled, and an order entered according to his report, with, ten dollars costs, and printing disbursements of the appeal, and ten dollars costs of motion to the appellant against the respondent.

Present — LearNed, P. J., Bocees and BoaiidmaN, JJ.

Order reversed, with ten dollars costs and printing, and exceptions to referee’s report overruled, with ten dollars costs ; report of referee confirmed.


author: Boardman, J. :

text:
    AMOS STORY as Receiver, etc., of LEWIS STORY, Respondent, v. DAVID M. HAMILTON, Appellant.

      Foreclosure by advei’tisement — right of a purchaser to pay a prior incumbrance from the amount of his bid.

    The defendant purchased .certain premises at a sale had under a foreclosure by advertisement of a second mortgage, of which he was then the owner. By the terms of sale, which were read by the auctioneer, the premises were to be sold free of all incumbrances, the purchaser being required to pay the first mortgage out of the amount bid by him, and to pay over the balance of his bid to the auctioneer. These terms of sale were not, contained in the notices of the foreclosure which were served and posted as required by the statute. The purchaser paid off the first mortgage, paid the balance of his bid to the auctioneer, and l'eceived the affidavits of sale as provided by the statute.
    Subsequently the plaintiff, who had been appointed receiver of the property of the mortgagor and owner of the equity of redemption, brought this action to recover a surplus alleged to have arisen on such sale, claiming that the defendant was not entitled to be allowed the amount he had paid on the first mortgage, because the owner of the equity of redemption, who was not present at the sale, had no knowleage oi the terms of sale or of such payment, and had never ratified them, and that therefore the purchaser must account for the amount of his bid, less the amount due on the second mortgage.

      Held, that the action could not be maintained.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      King & IlallooJc, for the appellant.

      A. O. Fcmcher and Griswold & Crowell, for the respondent.
    The defendant having placed on record in the office of the county clerk an affidavit showing, as required by law, the circumstances of the sale is bound by it. He cannot be allowed to impeach or contradict it. (Arnot v. McClure, 4 Denio, 41; Mowrey v. San-born, 11 Hun, 545; Warner v. Blackburn, 36 Barb., 516; Mowry v. Sanborn, 68 N. Y.; 162.) The power of sale contained in the mortgage authorized a foreclosure and sale to pay money secured by the mortgage and for no other purpose. The defendant had no power to sell the premises free and clear of all incum-brances. There was no power of sale for any other purpose than the foreclosure of defendant’s mortgage. (Judd v. O’Brien, 21 N. Y., 186; Hetzel v. Barber, 69 id., 13.)
   Boardman, J. :

The defendant was the owner of a mortgage upon a small farm. There was another mortgage, a prior lien, upon said land. Defendant foreclosed his mortgage by advertisement under an ordinary notice of foreclosure. On the day of sale there was due upon defendant’s mortgage about $950. At the same date there was due and unpaid upon the prior mortgage about $1,384, and such prior mortgage was then being foreclosed. Prior to the sale under defendant’s foreclosure (which occurred May 31, 1876), the attorney for the defendant, who acted as auctioneer, read aloud to tile bystanders the terms of sale, among which were the following : “ Premises to be sold as if clear of all incumbrances, the purchaser to pay out of the amount for which the property shall be struck oft' to him the mortgage held by Rachel Story on the property ” (being said prior lien). “ The balance of the purchase money tobe paid to me on delivery of affidavits of sale.” Such terms of sale were not contained in the notice of foreclosure, but were read in connection with such notice before the sale. The defendant bid in the property under said notice and terms of sale for $1,500. He afterwards, on june 12, 1876, paid the prior mortgage to Rachel Story, together with her costs of foreclosure, and a balance of about $116 was left to be applied upon defendant’s mortgage. The usual affidavits of foreclosure, but without reference to the terms of sale, were made and recorded showing a regular and valid sale.

On the 23d day of June, 1876, one Henry Story recovered a judgment against Lewis Story (who was the mortgagor in each of the mortgages above referred to and the owner of the real estate covered thereby) for $1,879.97, and plaintiff was appointed receiver of Lewis Story’s property by virtue of proceedings had under such judgment in June, 1877, and before the commencement of this action demanded of the defendant $488.41, claimed by the receiver as surplus moneys arising on said foreclosure and sale of property of said Lewis Story. Payment being refused, this action was begun August 11, 1877.

The referee has found in favor of the plaintiff for the reason that Lewis Story, the owner of the equity of redemption, was not present at the sale, had no knowledge'of such terms of sale, had not by any act of his ratified the sale on such terms, or the payment to Rachel Story, and was not in law bound thereby ; that plaintiff as receiver had succeeded to the rights of Lewis Story, and was entitled to recover.

The affidavits required by statute are evidence of the sale and of the forclosure of the equity of redemption, where the premises are purchased by the mortgagor, in the same manner and with the like effect as a conveyance executed by a mortgagor upon such sale to a third person. (2 R. S., 547, § 14.) They are but prima facie, evidence of the facts stated, and may be controverted. (Mowry v. Sanborn, 72 N. Y., 534.) The consideration of the sale may be shown outside of the affidavits. All the affidavits can be made to prove is the regularity of the sale and the foreclosure of the equity of redemption. The mortgagor may sell the whole of the premises or a part only ; he may reserve the crops on the ground ; he may provide for taxes or assessments which are liens upon the premises, and the sale will be valid and effectual. (Sherman v. Willett, 42 N. Y., 151.) Nor is it necessary that such facts or reservations should be stated in the notice of sale, nor are the affidavits conclusive as to such facts if not stated therein. (Id.) In this case the amount of a prior mortgage then being foreclosed was, by the terms of the sale, to ■ be first paid out of the sum bid by the purchaser. There was no fraud, concealment' or wrong in such provision. The defendant bid upon that basis, and made the application accordingly. Who has been wronged by that ? The pric^ does not appear to be inadequate. There is no question of surprise or undue advantage by 'which the mortgagor or any one else has suffered. If such were true' the remedy would be tó set aside the sale. Upon what principle then can Lewis Story, or the plaintiff as his representative, affirm the sale, as to the price bid, made upon the terms aforesaid, and then repudiate the terms of sale and claim the proceeds thereof as though no such terms controlled defendant’s action and bid ? To allow that would be to sanction injustice. Equity ought not to permit it. The plaintiff must either recognize the sale as a whole, or seek to set it aside if he is injured by it.

This sale could only be made subject to the prior mortgage. In effect it was so made. The necessity existed that the prior mortgage should be promptly paid off, and it was provided, for. The effect would have been the same if the equity of redemption alone had been sold. Nor Avas it necessary that the terms of sale should be inserted in the affidavits. Such matter would be mere surplusage. The statute regulates what the affidavits must contain and its effect. Other facts may be proved by parol as was done in this case.

We think the terms of sale were legal, proper and effectual; that the application of the proceeds was properly controlled thereby; that the terms of sale and payments made in accord-anee therewith were properly proved by parol, and that under all the facts there was no surplusage arising on this sale..

Hence, we conclude the judgment is erroneous, and should be reversed, and a new trial should be granted, costs to abide the event, and referee discharged.

LeaRNED, P. J., and Bocees, J., concurred.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


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

      Charter of Albany —1870, chapter 77 — the common council may prohibit the slaughtering of animals in certain portions of the city.

    By the chai’ter of the city of Albany the common council were authorized “ to regulate the erection, use and continuance of slaughter-houses,” and to make ordinances in relation “ to operations or occupations noxious to health or comfort,” and “ for carrying into effect and enforcing any of the powers, privileges and rights at any time granted and bestowed upon or possessed by the said corporation.”

      Held, that the common council had power to pass an ordinance prohibiting the slaughtering of animals within certain described portions of the city.
    Certiorari to the Court of Sessions of Albany county to review its decision overruling a demurrer to an indictment.
    The plaintiff in error was indicted at the September Court of Sessions of the county of Albany, and arraigned for the violation of an ordinance of the city of Albany passed by its common council.
    The defendant demurred to the indictment, that the facts alleged were not sufficient in law, etc., to which a joinder was interposed by the People and the demurrer was overruled by that court.
    A certiorari was then granted by Mr. Justice Ingalls, and upon it the proceedings of the Court of Sessions were brought here for review.

      The ordinance claimed to have been violated is as follows :
    “ § 21. It shall not be lawful for any person, without permission from the common council, to slaughter cattle, sheep, or swine in any building now erected or hereafter to 'be erected, or otherwise, within the territory hereinafter described; nor shall it be lawful for any person, without such consent, to conduct or carry on any business or occupation within said territory, which shall be noxious to health or comfort; nor shall it be lawful for any person, without such permission to pollute, or suffer or cause to be polluted within said territory, any running stream of water with blood or offal, or other deleterious or offensive matter, from cattle,- sheep or swine ; nor to permit or suffer any such matter to remain within or upon said .territory or any portion thereof, whereby the comfort or health of others may be or shall be affected. Any person who shall violate any of the provisions of this section shall incur a penalty of one hundred dollars for each offence, to be recovered by civil action in the name of the city of Albany, or by a prosecution before a magistrate as for a criminal offence, as provided by law.”
    . It then describes the district within which the slaughtering of animals was forbidden.
    The plaintiff in error claimed that the common council had no power to pass the ordinance in question.

      JST. P. Hinman, for the plaintiff in error.

      L. LTotaling, district-attorney, and A. J. Colvin, for the People.
   Boardman, J. :

The practice adopted in reviewing by certiorari the decision of an inferior court, upon a demurred to an indictment, has not been discussed by counsel, and will not, therefore, be considered by this court.

The common council of the city of Albany passed an ordinance prohibiting the slaughtering of animals within certain described portions of said city. The defendant is charged with the violation of said ordinance by indictment. The violation of such an ordinance is made by statute a misdemeanor. (Laws of 1871, chap. 536, vol. 1, p. 1144.) The sufficiency oí' such indictment was demurred to, and the demuirer overruled. That decision is now brought here for review.

The sole question for review is the power of the common council to enact the ordinance charged to have been violated by defendant.

By the act of 1842, chap. 275 (pp. 342, 343, 344), the old charter rights of the city of Albany, not theretofore surrendered, were reserved. (See also Const., art. 1, § 18.) Among the powers therein granted were the following : The common council of the city of Albany shall have full power and authority to make laws, ordinances and constitutions in writing, for the good rule, oversight, correction and government of said city, and liberties of the same, and of the several tradesmen, victuallers, artificers, and of all other people and inhabitants of the city, liberties and precincts aforesaid. (Dongan Charter in Laws, etc., of Albany, p. 10, § 13.)

This provision, if still in force, as is believed, would seem of itself sufficient authority for enacting the ordinance now under consideration. The authority is broad and ample.

By section 12, subdivision 14 of the Laws of 1870, ch. 77 (pp. 168, 169), the charter of the city, as there amended,-gave the common council power “to regulate the erection, use and continuance of slaughter-houses.” It had power also, by subdivision 22, to make ordinances. “In relation * * * to operations or occupations, noxious to health or comfort,” and by subdivision 34, “for cany-ing into effect and enforcing any of the powers, privileges and rights at any time granted and bestowed upon or possessed by the said corporation.”

No doubt the Legislature had the right to give the common council power to pass this ordinance. It seems equally clear that it has given it such power. If the city may regulate the continuance of a slaughter-house within its limits,, it must have the lesser power of prohibiting the slaughter of cattle therein. To regulate in the sense, in which it is here used, must mean to restrain; to prescribe rules, subject to which slaughter-houses may be erected, used and maintained in said city. The business itself is not unlawful, but surrounding circumstances may make it highly improper that it-should be conducted in certain localities. Such would be the general opinion of mankind. In such cases the right of the individual must or ought to yield to the public welfare. Coercive measures iu such cases have been repeatedly held valid. [Polinsky v. People, 73 N. Y., 65; Metrop. Board of Health v. Heister, 37 id., 661, 668.)

The evil attempted to be remedied is not essentially different from those considered in the cases cited. It is a different, perhaps more extreme, exercise of power. Its wisdom is not for our consideration. If the-power existed the ordinance is valid. We are quite clear the city, under its charter, had the power to pass the ordinance in question, and that it violates no constitutional right of defendant.

Entertaining these views, we think the decision upon the demurrer was correct and should be affirmed, and the proceedings should be remitted to the Albany Court of Sessions for such further action therein as may bo proper.

• LearNed, P. J., and Bocees, J., concurred.

Order affirmed and proceedings remitted to Albany Court of Sessions for further action.