text:
    MATTHIAS HOLLACHER, Appellant, v. JAMES O’BRIEN, Sheriff, etc., Respondent.
    2 B. B. (Edm. ed.), 141, § 5 — retaining possession of chattels by vendor — fraudulent intent a question for the ¿¡wry.

    The presumption of a fraudulent intent created by the statute (2 R. S. [Edm. ed.], 141, § 5), from the fact that there is no change in the possession of goods sold or mortgaged, may be removed by the party claiming under the sale or mortgage proving that the transaction was in good faith, and without any intention to defraud purchasers or creditors; and the question of intent arising in the case is one of fact for the jury to try.
    Where the evidence is insufficient to rebut the statutory presumption of fraud, and the jurors appear to have been too indulgent in their consideration of the transactions of fraudulent debtors, justice can be obtained by setting aside the verdict.
    Appeal from a judgment in favor of the defendant, entered on a verdict directed by the court.

      John S. Berry, for the appellant.

      A. J. Vcmderjpoel, for the respondent.
   DaNiels, J.:

The object of this action was the recovery of the possession of personal property, for which the plaintiff received a bill of sale from his brother, Michael Hollacher, on the 21st of April, 1869,. The property constituted the stock of a show case business, and when the bill' of sale was made, the evidence tended to show the vendor to be heavily involved with debts, and at that time to have suits pending against him.

The consideration stated for the sale was the sum of $3,000, which the evidence tended to show was paid by applying $2,800 on a precedent debt owing from the vendor to the vendee, and the payment of $200 in money. The counsel in attendance on the consummation of the sale, stated that the plaintiff directed Andrew Hollacher, a son of the vendor, to go on and conduct the business for the purchaser. But if this direction was given, it was not continued or followed; for the plaintiff testified that he gave his brother, the vendor, the privilege of doing the business for him ; and it further appeared from the evidence of this witness, that it was carried on in that manner from the time of the delivery of the bill of sale to the time when the property was taken by the defendant. He took it in May, 1869, under executions issued upon judgments recovered after the delivery of the bill of sale, upon debts created before that time, and owing by the vendor. At the close of the evidence the court directed a verdict in favor of the defendant, to which the plaintiff’s counsel excepted.

This direction appears, from the remarks of the learned judge presiding at the trial, to have been given because there had been no actual change in the possession of the property sold. And as to the fact, he was entirely right in that respect; for although there was evidence of a formal possession having been taken by the plaintiff at the time of the execution of the bill of sale, it at once passed back to the vendor by the act and authority of the vendee.

The statute requires more than a mere formal act of possession by the purchaser, in order to avoid the presumption that the sale was a fraudulent one. Its language is, that the sale shall “be followed by an actual and continued change of possession of the things sold,” in order to remove the presumption of fraud otherwise arising out of the transaction. (2 R. S. [Edm. ed.], 141, § 5.) These terms are veiy plain, and they can only be complied with by the purchaser’s, himself, taking and continuing in the possession of the property, or having it held for him by some other person than the seller. If that is not done, and the seller of the property is allowed to remain in the possession of it, as he was in this instance, then the statutory provision applies, that the sale is to be presumed to be fraudulent and void, in favor of the creditors of the person making it and subsequent purchasers in good faith. But this presumption is not so far controlling as to prevent the purchaser from avoiding it by any proper evidence which can reasonably be attended with that result. Accordingly, the statute has provided that the continued possession of the person making the sale shall only be conclusive evidence that it was fraudulent, when it is not shown to have been made in good faith, and without any intent to defraud creditors or purchasers. To overcome this presumption of the statute, evidence was given tending to show an actual consideration for the sale, occasional attention to the business by the vendee, and the receipt of small sums of money by him from its transactions. The evidence on these subjects was not of a very satisfactory character. It left grave doubts as to whether any real debt existed in favor of the vendee against the vendor, and whether he did any thing more than to present himself at the place where the business was carried on, for the purpose of contributing the merely color-able conclusion that he, and not his brother, was its proprietor, when, in truth, the fact was probably otherwise. But the force and effect of the evidence'was for the jury, and not for the court. If they had voluntarily returned the verdict they were directed to give, it would be entirely satisfactory. But it was their province to consider the evidence without being controlled in their action, as they were, by the court.

It was said, in one of the prevailing opinions delivered in the Court of Errors, in Hanford v. Artcher (4 Hill, 271): “To rebut this presumption [arising out of the possession of the vendor of personal property], the statute imposes upon the party claiming under the sale * * * the burden of proving not only that it was in good faith, but that it was without any such intent to defraud creditors. Proof of a valuable consideration or an honest debt is essential to show good faith; and if there be no such proof, I take it that the requirement of the statute in this respect is not complied with, and that the court may order a nonsuit, or, if a verdict be found, set it aside.” “ Such proof of consideration, too, must go beyond a mere paper acknowledgment of it that might be binding between the parties.” “But over and above evidence of consideration, or an honest debt, to show good faith, the statute seems to contemplate something further: that is, proof of circumstances showing absence of intent to defraud creditors — such circumstances as would show that the transaction was in the ordinary way of fair dealing, and with reasonable publicity under the circumstances * * * or such other relevant circumstances as the case may reasonably admit of, to satisfy the jury that the transaction was without any intent to defraud creditors.” (Id., 295, 296.) And it was held in the other opinion, which also seems to have been adopted by the court, that the evidence which will be sufficient to prove good faith, and the absence of an intent to defraud, must necessarily vary in each individual case. “ The statute therefore has left this, like every other fact or question of intent, to be determined by the jury, under'the direction of the court, from the legal, competent and relevant testimony presented to them according to the ordinary and established rules of evidence. To this end it has made such fraudulent intent a question of fact and not of law.” (Id., 302.) And to the same effect was the opinion delivered by Jewett, J., and adopted by the court, in Thompson v. Blanchard (4 Comst., 303). He held that the presumption of a fraudulent intent could be removed by the party claiming under the sale, “proving that the transaction was in good faith, and without any intention to defraud purchasers or creditors; and the question of intent arising in the case is one of fact for the jury to try.” (Id., 306.)

A similar view was expressed of the law by Bronson, J.) in Griswold v. Sheldon (4 Comst., 581). He held that the Court of Errors had decided, that although the property was left in the possession of the debtor, yet if the vendee or mortgagee gave evidence tending to repel the legal presumption of fraud, the question of fraudulent intent was one of fact, which must be left to the jury.” (Id., 591.) In another opinion, delivered by Mullett, J., it was also held that, “ if there is any material evidence in the case tending to show that the mortgage was made in good faith, and without anj intention to defraud creditors, that raises a question of fact which it is the duty of the court to submit to the jury.” (Id., 598.) These authorities, as well as the explicit phraseology of the statute, leave no room for doubt as to the impropriety of the direction given .by the court in this case. The question of fraudulent intent should have been submitted to the j ury. And that can ordinarily be done with entire safety to the rights of creditors and purchasers in good faith. ■ Where the evidence does not satisfactorily show the transaction to be fair and honest, and founded on a valuable consideration, jurors may have been too indulgent to fraudulent debtors, but when that appears to be the cáse, justice can always in the end be attained by setting aside the verdict. It •cannot justify the refusal to submit for their consideration the questions which the language, as well as the theory of the statute, requires that they shall decide.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Davis, P. J., and Donohue, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: Davis, P. J.

license: Public Domain

text:
    ADRIAN H. MULLER, Plaintiff, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Defendant.
    Contract— condition precedent — Appraisement of real estate belonging to the city a/nd county of Hew Torlc — when may be ordered.

    The commissioners of the sinking fund of the city of New York passed a resolution appointing a committee, of which the plaintiff was one, to ascertain the value of all the real estate belonging to the city and county of New York, “ the comptroller first making satisfactory arrangements with them as to their fees.” Subsequently the comptroller, on the application of the plaintiff, said that he would give him a liberal compensation, and plaintiff replied that that would be satisfactory. Held (1), that by the resolution, the making of the agreement as to the amount of the fees was a condition precedent to plaintiff’s employment, and that the agreement proved was not a sufficient compliance therewith; (2), that even il it were, the plaintiff could not recover, as it did not appear that he had ever applied to the comptroller, after performing the work, to have him fix his compensation.
    A.n appraisement of the property of the city of New York can be ordered in only two cases: (1), when occasion arises to settle rent on the renewal of leases, or the value of buildings on the expiration of a lease, which, by its terms, provides for such appraisal, in which case the comptroller is to appoint the appraisers ; and (2), for the purpose of a sale pursuant to sections 36 and 38 of the revised ordinances by the commissioners of the sinking fund, in which case the appraisement is to be made within one month before the sale by persons for that purpose specifically appointed.
    MotioN by plaintiff for a new trial, on exceptions ordered to be beard in the first instance at the General Term, after an order made at the Circuit dismissing the plaintiff’s complaint.

      George H. Forster, for plaintiff. D. J. Deem and F. Delafield Smith, for defendant.
   Opinion by

Davis, P. J.

Daniels and Donohue, JJ., concurred.

Judgment ordered for the defendant on dismissal of plaintiff’s complaint, and motion for a new trial denied.


author: Daniels, J.

text:
    WILLIAM H. CARMAN, Jr., Respondent, v. JOHN KELLY, Sheriff, Appellant.

      Assumption of firm debts — effect of — Deposition of witness talcen on commission — when admissible in evidence — Assignee for benefit of creditors — ■ right of, to employ clerics to retail goods —action by, against sheriff for wrongful seiewe of goods —
    Where, upon the dissolution of a firm, a new firm is formed, which assumes all the debts of its predecessor and takes all its assets, such new firm becomes primarily liable for such debts to the creditors of the old firm, although the original debtors have neither been released nor discharged therefrom. (Lawrence v. Vox, SO N. Y., S68; Hariley v. Harrison, 24 id., 170 ; Dingledcin v. Third Ave. B. B. Oo., 87 id., 375 ; Hutchings v. Miner, 46 id., 456.)
    Where a person has been examined on a commission, and upon the trial a witness testifies that he has received letters from such person, from places out of the State, after the examination, and before the trial, and there is no evidence that such person afterward returned to the State, the deposition is properly admitted in evidence. (Browner v. Hrcmenthal, 37 N. Y., 166.)
    Where a stock of goods is wrongfully seized by the sheriff on an attachment, and exclusive possession taken of the store in which they are, the rent of the store for the time it is so occupied is properly allowed to an assignee for the benefit of creditors, in an action brought by him to recover damages for such seizure.
    An assignee for the benefit of creditors has no right to employ clerks to sell a stock of goods assigned to him, at retail, in the usual course of business. (Hart v. Grane, 7 Paige, 37.)
    Appeal from a judgment in favor of tbe plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the judge’s minutes.

      A. Oakey Hall, for appellant. D. G. GaVoin, for respondent.
   Opinion by

Daniels, J.

Davis, P. J., concurred.

Judgment and order reversed, and new trial granted, costs to abide the event, unless plaintiff consent to make a deduction from judgment, in which case judgment and order affirmed, without costs of appeal to either party.


text:
    JOSEPH P. FLYNN, Appellant, v. WILLIAM BISHOP, Respondent. JOSEPH P. FLYNN, Appellant, v. PETER ADAMS and WILLIAM BISHOP, Respondents.

      Articles of copaHnership — when may he contradicted by parol evidence.

    This action was brought to obtain a settlement of the affairs of two firms. By the articles of copartnership of one of them, the firm was to consist of the plaintiff and the defendant Bishop, each of them being entitled to one-half of the profits. Upon the trial defendants Bishop and Adams were allowed to testify that the firm was in reality to consist of four members, each of them being entitled to one-quarter of the profits. Held, that as two of the partners were not parties to the written agreement, they were not bound thereby; and, as they might show what the parol agreement was, in an action by them to recover their share of the profits (3 Pars, on Cont., 68, 69; Baton v. Alger, 3 Keyes, 41, 44), that the defendant Bishop was entitled to prove and establish such agreement for the purpose of showing that one-half of the money the plaintiffs ought to recover, had been so disposed of, by means of it, as to render it the property of the other two partners.
    Appeals from judgments in favor of the defendants in the above entitled actions, entered upon the reports of a referee.

      J. W. Feeter and Wm. A. Beach, for appellant. B. More, for respondents.
   Opinion by

Daniels, J.

Davis, P. J., and Donohue, J., concurred.

Judgments affirmed, with costs.


text:
    JAMES C. McANDREW, Respondent, v. BARKER PLACE and another, Appellants.

      Order of reference —form of stipulation prescribed as a condition of not granting it— when renewable.

    Where the defendant seeks to avoid the reference of an action, concededly referable, by a stipulation which, it is alleged, will take the question of a long account out of the issues to be tried, it is proper for the court to make an order referring the canse, unless the defendant sign a stipulation, the form of which is prescribed by the order.
    The form of a stipulation so prescribed will not be reviewed, except in cases where there is a manifest abuse of discretion.
    Appeal from an order made at the Special Term referring this action.

      G. H. Ormoford and J. K. Haywctrd, for appellants. F. F. Marbury, Jr., for respondent.
   Opinion by

Davis, P. J.

Daniels and Brady, JJ., concurred.

Order affirmed, with costs.


text:
    WILLIAM F. LIVERMORE, Respondent, v. CORNELIUS S. BUSHNELL and H. V. POOR, Impleaded, etc., Appellants.

      Actions on contract — in case of death of one defendant, continued against survivors — Contracts to advance pi'ice of stock, — when illegal.

    Actions on contract against defendants jointly liable, do not abate by the death of one or more defendants; but the death should appear by suggestion on the record, and the action should proceed against the surviving defendants. (3 R. S. [5th ed.], 669, § 1.)
    The personal representatives cannot be joined in such a case. (1 Pars, on Cont. [2d ed.], 80, 81; Grant v. Shunter, 1 Wend., 148; Trustees, ete., v. Lawrence, 11 Paige, 81.)
    The law will not aid either party to enforce an agreement entered into for the purpose of advancing the selling price of stocks by means of fictitious dealings designed to produce a false impression on the minds of observers concerning their real value, and in that way to induce them to invest their money in such stocks.

      Such an agreement is void and against public policy. (Thompson v. Demes, 13 Johns. ¡ 112; Brisbane v. Adams, 3 Comst,, 129; Hoolcer v.Vcmdewater, 4Denio, 349; Stanton v. Alien, 5 id., 434; Marsh v. Bussell, 2 Lans., 340; 2 Kent [7th ed.], 699-703; Morris Bun Goal Go. v. Barclay Goal Go., 68 Penn., 173; Commonwealth v. Gandiste, Brightley, 36; King v. De Berenger, 3 Maulé & Sel., 67-72; 3 E. S. [5th ed.], 973, sub. 6 of § 8.)
    Appeal by the defendants above named from a judgment in favor of plaintiff, entered on tbe report of a referee.
    The action was brought to recover an amount claimed to be unpaid for services rendered, and expenditures made, in selling and buying the stock of the Alpine'Gold Company of Colorado.

      Edward T. Bartlett, for appellant. A. Loving Gushing, for respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Beady, J., concurred.

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


text:
    LOUIS S. ROBBINS, Respondent, v. FREDERIC J. FERRIS, Appellant.

      Mnal order — leave lo renew motion — effect of, on first order.

    Where, after an order has been made denying a motion, leave to renew the motion upon additional facts is granted, the first order is no longer appealable. The order made upon the renewed motion is to be treated as the final order of the court, and is alone appealable.
    Appeals from two orders made at the Special Term, denying a motion to vacate an order of arrest. -

      James OlarJc, for appellant. Thos. M. Wyatt, for respondent.
   Opinion by

Davis, P. J.

Beady and Daniels, JJ., concurred.

Second order affirmed, with ten dollars costs, besides disbursements, and appeal from first order dismissed, without costs.


text:
    In the Matter of the Petition of FRANCIS O’HARE, to Vacate an Assessment for Regulating, Grading, etc., Fortieth street, between First and Second avenues.

      Assessments — Ohap. 526 of 18ÍQ-, 574 of 1871; 580 0/1872; 813 0/1874.
    Section 7, chapter 326, of Laws of 1840 (if not repealed), only requires, in case an assessment exceeds in amount one-half the value of the property as assessed by the ward assessors, that such assessment should be reduced to such one-half of the assessed value and vacated as to the excess, and not that it should he vacated in tota.

    The certificate of the commissioner of public works, required by chapter 574 of 1871, section 5, is sufficient, if it contains a substantial statement of the sum or sums expended.
    The curative acts, chapter 580 of 1872 and chapter 313 of 1874, should be construed to cover cases where there are mere defects of formality in official certificates which contain, without technical accuracy, the substance of what the statute requires.
    Appeal from an order of the Special Term, vacating an assessment for regulating, etc., Fortieth street, between First and Second avenues, in the city of New York.

      William Barnes and E. Delafield Smith, for corporation. E. Ellery Anderson, for respondent.
   Opinion by

Davis, P. J.

Daihels, J., concurred.

Order reversed, with costs and disbursements, and the case remanded for rehearing, with direction that the assessment be reduced if it be satisfactorily shown that it was excessive, under the act, chapter 326 of 1840, and that such act is still in force.


text:
    JAMES W. HART, Respondent, v. WILLIAM TAYLOR and others, Appellants.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict.
    This action is brought upon a contract in the words and figures following:
    “$1125. New Yore, January 6th, 1871.
    For account of E. M. Hendrickson, we promise to pay to J. W. Hart, or order, the sum of eleven hundred and twenty-five dollars, at the time- when he receives the sum of five thousand dollars for draft, dated January 4th, 1871, made by E. M. Hen-drickson, payable to our order and accepted by the Chatham National Bank, of the city of New York.
    WILLIAM TAYLOR & SONS.”
    The draft referred to in the contract was in the form following:
    $5000.00. BrooKlvn, N. Y., Jan'y 4th, 1871. To the Chatham National Bank, of New York :
    Please pay to the order of William Taylor & Sons, the sum of five thousand dollars and charge to the account of
    ' E. M. HENDRICKSON.
    Across the face of this draft was written the following acceptance : “Accepted. Payable when the safe now being built by E. M. Hendrickson for the bank, as per contract, is finished, placed in position in bank, and accepted by the bank officers.
    . NATHANIEL HAYDEN, President."

    It appeared that Hendrickson had entered into a contract with the bank to construct a safe for their banking building, according to certain plans and specifications, for the price of $7,000, payable when completed. Hendrickson had employed the defendants to manufacture and complete a portion of the safe, which they had done, and were entitled to receive therefor, with certain other claims, $2,700. They declined to deliver the safe to Hen-drickson without payment, or security-for their claim, and an arrangement then was made with the bant for the giving to defendants of the above acceptance, on their executing to the bank a guarantee that the safe should be completed and placed in position in the bank building, on or before the 1st day of February, 1871. The defendants executed such a guarantee on the 3d day of January, 1871. The plaintiff was cognizant of this guarantee, and his connection with it appeared upon its face. The safe was not completed and delivered at the time specified in the guarantee; and, on the twenty-ninth of March following, the defendants were notified-in writing, by order of the board of directors of the bank, that unless the safe should be placed in position in the bank before 7 a. m., of Monday, April 3, 1871, the bank would decline to accept it, and hold the defendants responsible for any damages sustained by the failure to comply with the agreement.
    The safe w$,s then completed, and an effort was made by Hendrickson to get it to the bank building, which failed through his inefficiency. It was still in Brooklyn, and was there levied upon and ' held by the sheriff, by virtue of executions on two judgments against Hendrickson and one Le Baron, who had loaned to Hendrickson $2,500, for which he held an assignment of his contract with the bank, and a bill of sale of the safe, made prior to any other lien thereon. He had purchased the judgment and levies on execution, to strengthen his other liens, and taken possession of the safe. Evidence was given tending to show that in this condition of things the defendants, in good faith, for the purpose of having the safe delivered and put in position so that the bank would make payment of the drafts, and they be protected from loss on their guarantee, indorsed the acceptance of the bank to Le Baron and recognized the priority of his claims; and through him the safe was delivered and set up in time, and the bank paid to him the amount of the. drafts (less a small sum for' expenses), and that Le Baron paid to himself out of the proceeds the amount of his demand, and the balance, being less than $1,000, to the defendants.
    The General Term h.eld, that the question was, whether the defendants had received the $5,000 on the conditional acceptance, or, if they had not done so in fact, whether their acts in indorsing the acceptance over to Le Baron were, under the circumstances, of sucb a character as to be equivalent to the actual receipt of the money from the bank; that without the existence of one of these alternatives the right of plaintiff to demand and recover the $1,125 would not accrue; and that the judgment should be reversed on the ground that the judge erred in not so charging the jury.

      Wm. W. Peck, for appellants. I. T. Williams, for respondent.
   Opinion by

Davis, P. J.

Daniels, J., concurred.

Judgment reversed and new trial granted, costs to abide the event.


text:
    In the Matter of the Application of ALEXANDER CAMERON, for a Writ of Prohibition against HENRY A. FROST, GEORGE P. HEIM, PHILIP BROCK, GEORGE M. MITTNACHT, HENRY WILKINS, Appellant, THE MARINE COURT OF THE CITY OF NEW YORK, and THE CITY COURT OF BROOKLYN.

      Writ of prohibition — practice—when does not conform to statute.-

    Appeal from an order of Special Term, granting a writ of prohibition. .
    This was an application to the court at Special Term, at chambers, for a writ of prohibition, to be issued against the several parties and courts named in the above title. The motion seems to have been brought to a hearing upon the affidavit upon which the order to show cause was granted, and the affidavit of Henry A. Frost, one of the parties named in the order, together with the pleadings in an action pending in the City Court of Brooklyn, at the suit of George P. Heim, against Alexander Cameron and others. The papers do not show that the order to show cause why the writ of prohibition should not issue, was served upon either the Marine Court of the city of New York, or the City Court of Brooklyn; nor was any return made by either of these courts ; nor was there any appearance on behalf of either of them. An order was granted by the court that an absolute writ of prohibition issue, directed to both of said courts, ándito the several parties above named, commanding the said parties' to desist and refrain from any further proceedings in two certain actions, pending in said courts and mentioned in the moving papers. The court at General Term held, that the practice in this ease was altogether irregular, and not in conformity to the provisions of the statute which are found on pages 609, 610, volume 2 of Edmonds’ edition, sections 61, 62, 64, 65, and ordered that the order be reversed, and all proceedings subsequent to the order to show cause set aside, with costs of appeal besides disbursements, and that the court be directed to proceed with the application in conformity to the statutes above referred to.

      H. Willems, appellant, in person.
   Opinion by

Davis, P. J.

DaNibls and Beady, JJ., concurred.

Order reversed, and proceedings directed in accordance with opinion.


text:
    OWEN COGAN, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Public work — power of supervisors to cmtliorke and audit claim for.

    Appeal from a judgment in favor of the plaintiff, entered on a verdict directed by the court.
    This action was brought to recover the value of work performed and materials furnished in repairing a public building. The answer alleged: 1st. That the board of supervisors had not authorized the work. 2d. That it had no power to authorize it. 3d. The want of an appropriation. 4th. That the services were not worth the sum demanded.
    The building on which the repairs were made byplaintiff was the property of the county, and used for the purposes of the courts. The judges of the Marine Oourt made application to the board of supervisors to have the repairs made, and their application was referred to the committee on civil courts of that board, one of the members of which committee directed.the work to be done; and when it was completed, tbe plaintiff presented his bill for audit to the board of supervisors, by which it was referred to the committee of civil courts, and on their report of its correctness, the board audited the bill by a resolution which directed its payment out of the proper appropriation.
    The General Term held, that in the absence of any proof to the contrary, there was enough to raise a fair inference that the committee were duly authorized by the board to have the work done, and gave directions accordingly through one of their members, and that this would seem to be a sufficient sanction of the employment, in the absence of any other proof, to give the claim the character of legality, so that the board of supervisors would have jurisdiction to pass upon and audit it.
    That as the supervisors, by resolution, directed the bill to be paid out ofthe proper appropriation, and as no evidence was given by the defense that there was not an appropriation expressly devoted to such audits, the action of the board would indicate that there was, and that there was sufficient money therein to meet the bill. The defendant might have shown the facts to be otherwise if they really were so ; but as it chose to leave the case where the legal presumptions were all against it, the judgment should be affirmed.

      E. Delafield Smith, for appellant. T. 0. Cronin, for respondent.
   Opinion by

Davis, P. J.

Daotels and Beady, JJ., concurred.

Judgment affirmed.


author: James, J. :

text:
    ELBERT W. COOK and WARREN G. RANSOM, Appellants, v. THE WARDENS AND VESTRY OF ST. PAUL’S CHURCH, HAVANA, N. Y., Respondent.

      Condition subsequent — breach of — action for — by whom must be brought.

    Where an action of ejectment is brought to recover the possession of land upon a breach of a condition subsequent, all the original grantors or their heirs must join therein. Such action cannot be maintained by one of the former tenants in common thereof, to recover his undivided interest therein.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    This was an action by two of several original grantors, to recover in ejectment the possession of two certain parcels of land, for breach of conditions subsequent. The defendant is the' grantee in possession ; its church edifice stands on one lot, and the other lot is a cemetery.
    The trial of the cause was commenced before the court and jury. At the close of the evidence, the case was by consent withdrawn from the jury and submitted to the court, whereupon the court made a finding of facts, with conclusions of law, directing judgment for the defendant, with costs. From that judgment the plaintiffs appeal.

      J. McGuire, for the appellants.
    Ejectment is the proper remedy for conditions broken, or forfeiture of the estate. (T.yler on Eject, and Adv. Pos., 179, 180; Nicoll v. N. Y. and Erie R. R. Co., 12 N. Y., 121; Plumb v. Tubbs, 41 id., 442.) No demand was necessary of the possession before suit brought. (41 N. Y., 442, and cases cited.) All that is necessary is for the plaintiffs to show the conditions broken and their right to the possession. In ejectment the plaintiff or plaintiffs are entitled to recover the part of the premises which the proof shows them entitled to, notwithstanding the whole or a different part is claimed in the complaint. (2 Barb., 156, 381; 5 -id., 565 ; 6 id., 116.)

      M. M. Mead, for the respondent.
   James, J. :

The case contains much irrelevant matter; but from the pleadings, the evidence and the findings, the facts would seem to be substantially as follows:

The plaintiffs are two of the heirs at law of Charles Cook, deceased; said Cook was, at his death, the owner of the two parcels of land in dispute; he died in 1866 intestate, seized of said lands. In 1853, he commenced the erection of a church on one of said lots, which was finished, and services were held therein, in April, 1856; a congregation became incorporated under the name of “The Rector, Wardens and Yestr.y of St. Paul’s Church, Havana,” .and the said Charles Cook was-elected a vestryman, and continued as such until his death. The defendant occupied said church and premises.

From the declarations of said Charles Cook in his lifetime, the congregation of said church expected the premises in dispute would be dedicated or conveyed to said church for a place of worship and as a cemetery; but said Cook died without having made any dedication or conveyance, and the title descended to his heirs at law. In April, 1868, those heirs, owning three-fourths of said premises, conveyed the same to the defendant, for the consideration, and upon conditions following, among others: “ One dollar, and that said wardens and vestry should always keep the said church edifice insured, in some good and solvent stock company., for at least the sum of $8,000, the avails, in case of loss, to be expended for rebuilding or repairing the church', etc., and within three months thereafter cause the lands of the cemetery lot to be laid out into lots, with neatness and good taste, and the money arising from the sale of lots appropriated to fencing, improving and beautifying such grounds,” etc.; declaring that a disregard of any of said covenants should cause an absolute reversion of the property conveyed.” In July, 1869, the remaining quarter interest in said lots having been conveyed, by order of court, from Mary Julia Smith, an infant, one of said heirs, to the plaintiff Cook, he, on that day, conveyed said one-fourth interest to the defendant, consideration $250, with the same conditions as contained in the former deed, except that in case of breach the reversion should be to said Mary Julia Smith. The defendant was dissatisfied with the conditions attached to said deeds, but, nevertheless, accepted and put them on record, and they are the only record title defendant has to said lots.

The court below found, as a matter of fact, that neither of the aforesaid conditions had been observed or performed, and it appeared that, when this action was commenced, the insurance on said church edifice did not exceed $4,000; that nothing whatever had been done toward laying out the cemetery into lots, or improving or beautifying the grounds.

The conditions imposed being part and parcel of the deed creating the estate, were valid; so that, under said conveyances, the defendant took a title in fee, upon condition subsequent.' The failure to perform a condition subsequent does not divest an estate. In such case, the grantor or his heirs may not choose to take advantage of the omission, and no one else can; and until advantage is taken by entry, or what is now made by statute its equivalent, there is no forfeiture of the estate. It will be seen, by the pleadings and evidence, that.the heirs at law of Charles Cook were at least four in number, or rather consisted of four classes. All hut one class joined in the first deed to defendant; the other deed covered the remaining fourth part from that class. After said conveyances, and before breach, none of said heirs had any estate remaining in said land. Their interest was a naked possibility of reverter, which could neither be conveyed nor assigned. This condition, or possibility, was the creation and result of contract — a contract between the defendant, on one side, and the several heirs of Charles Cook,'as one person, on the other; hence the right of re-entry, or of action for condition broken, was a joint right, not a several right, although, on obtaining possession, each would be invested with his original interest.

This action is by two of said several heirs, one representing an eighth interest, and the other a fourth interest, of the whole; the latter, however, claiming to represent a half interest; but this claim is invalid, for the reason that the reversion of the one-half claimed is to another, and not to him.

The complaint avers that plaintiffs are the owners of an undivided five-eighths of the premises described therein ; and yet, by their own showing, they -were not owners, but reversioners; as such, they were entitled to claim but an' undivided three-eighths interest, and that a joint, not a several interest. Such an interest in real estate is not a title, and could not become a title until entry or the recovery of possession; until then, the title of the defendant did not become divested. Such interest being joint, no less number than the whole could declare the forfeiture ; nor could an action to recover possession for condition, broken be sustained, without the consent and joinder of all. Ejectment by two of several more joint tenants, or tenants in common, for the recovery of possession of land, will not lie; ah action may be brought by one, or by all; but if all do not join in one action, each must bring a separate action for his share. (Cole v. Irvine, 6 Hill, 634; 2 R. S., 341, § 11.)

So, in an action for the recovery of an undivided interest or share in real estate, the statute (2 R. S., 305, § 9), provides that the plaintiff shall state particularly in his complaint the share or interest he claims. In this case the claim stated is an undivided five-eighths ; the interest shown is but an undivided three-eighths, and that in unequal quantities in the two plaintiffs. This of itself would be fatal to this action, without amendment. (Holmes v. Seeley, 17 Wend., 75; Cole v. Irvine, supra; Gillet v. Stanley, 1 Hill, 121.) Eor these reasons, I think, the plaintiffs’ action should have been dismissed with costs, and not a judgment on the merits rendered against them. If affirmed, such judgment would be a bar to any further action by the plaintiffs or either of them. Therefore, instead of affirming the judgment of the court below, the same should be reversed, without costs to plaintiffs, and the complaint dismissed, with full costs to defendant.

Present — Leabned, P. J., Boabdman and James, JJ.

Judgment reversed, and complaint dismissed, with costs to defendant.


author: BoardmaN, <7.: .

text:
    AH KING, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Bigamy — ■indictment—when'e ma/y he found — Special plea — iiow reviewed — when prisoner has been putin jeopw'dy within the meaning of the constitutional provision.

    Under tlie provisions of section 10 of 8 Kevised Statutes (5th ed.), 968, providing that an indictment for bigamy may he found in the county where the prisoner is apprehended, the actual arrest, before indictment found, gives jurisdiction; nor will a subsequent escape or discharge on bail destroy such jurisdiction when once acquired.
    Where issue has been joined upon a special plea, interposed by the prisoner, and a verdict against him rendered thereon, such preliminary trial cannot be reviewed by a writ of error to review his subsequent conviction and trial upon the merits, after a plea of not guilly entered by order of the court.
    After the trial had commenced, it being discovered that the prisoner had not been arraigned or ashed to plead, to the indictment, he was arraigned, and the indictment read to him. The prisoner objected to any further proceedings, which objection having been overruled, he pleaded not guilty, and again objected to any further proceedings; whereupon the court discharged the jury. Semble, that the irregularity was of such a character as to justify the court in the exercise of its discretion in discharging the jury; that such discharge was with the implied assent of the defendant, and that such partial trial did not constitute legal jeopardy, whereby he was exempted from further prosecution upon the same indictment.
    In this State a prisoner is considered in jeopardy when he has been arraigned and pleaded to a valid indictment, a witness has been sworn and evidence given, and then, without his consent, a juror has been withdrawn or the jury discharged. (Per Boabdman, J.)
    Wbit of error by the plaintiff in error, to review his trial and conviction at the Rensselaer Court of Sessions.

      L. W. Rhodes, for the plaintiff in error.

      Jno. G. Greene, district attorney, for the defendants in error.
   BoardmaN, <7.: .

The defendant was indicted in Rensselaer county for bigamy, in having married in Washington county while the wife of a former marriage was still living, etc. The indictment also alleged the apprehension of defendant in Rensselaer county, on the 23d day of March, 1875. The second marriage was on the twelfth March, and the indictment was preferred against defendant on the 26th March, 1875. After defendant’s arrest, March twenty-third, he escaped from the officer and was rearrested in Vermont, on the twenty-sixth March. It is objected that the Rensselaer courts had no jurisdiction to indict under these facts.

'The statute (3 R. S. [5th ed.], 968, § 10) provides that an indictment may be found “ in the county in which such person shall be apprehended,” etc. The actual arrest, before indictment found, gives jurisdiction; the escape does not take it away; nor would discharge on bail destroy jurisdiction once acquired. If apprehended in the county where the indictment is afterward fotind, he may be there tried as if the offense had been committed there. The evidence that defendant was arrested in Rensselaer county is sufficient to satisfy the statute. Whether the warrant was valid or void is immaterial, so long as an officer of the county arrested the defendant for a criminal offense of this character. The officer had authority to make such arrest at his peril. If defendant is not guilty of the crime charged, he may test the right of the officer to arrest him by action.

After the trial of the defendant upon the indictment had gone on some time, it was discovered that the defendant had not been arraigned or asked to plead to the indictment. The defendant was then arraigned and the indictment read to him. The defendant objected to any further proceedings being taken. The objection was overruled, and on request the defendant plead not guilty. The defendant again objected to any further proceedings, and the court thereupon discharged the jury.

Afterward, upon a further prosecution of defendant under said indictment, he interposed a special plea, setting up the former impanneling, trial and discharge of jury, as a bar to further trial. The issue so formed by this plea was tried, and, by direction of the court, the jury rendered a verdict against such plea, to which defendant excepted. No formal'judgment seems to have béen made or entered upon the trial of such special plea. It is now attempted to review such trial in connection with, and as a part of, the subsequent trial of the defendant upon the merits, after a plea of not guilty entered by order of the court. I am of the opinion that we cannot review such preliminary trial, after a trial upon the merits, upon this writ of error and return. Both parties desire the opinjon of this court as to the effect of such partial trial and discharge of the jury. Though the question is not before us, we express the opinion that the irregularity was of such a character as to justify the court in the exercise of its discretion in discharging the jury; that such discharge was with the implied assent of the defendant, who objected to any further proceedings in the case; that such partial trial without arraignment or pleading, and such discharge of the jury, so irregularly impanneled, upon the objection of the defendant to any further proceedings in the case, do not constitute legal jeopardy whereby the defendant was exempted from further prosecution upon the same indictment. What constitutes legal jeopardy has led to much discussion and diverse constructions. By most courts the constitutional provisions forbidding that any person be subject for the same offense to be twice put in jeopardy (U. S. Const., art. 5, of amendts.; N. Y. Const.,-art. 1, § 6) are construed to mean nothing more than the common-law rule as applied in the plea of autrefois acquit. In such construction there must have been a final verdict of conviction or acquittal upon a valid indictment. Such is the rule in the United States courts (U. S. v. Gibert, 2 Sumn., 41); in Massachusetts (Com. v. Bowden, 9 Mass., 494); in New York (Shepherd v. People, 25 N. Y., 406); and in many other States, as may be seen by reference to 1 Wharton American Criminal Law, sections 582-587. In other courts and in other States a very technical rule is adopted. A prisoner is held to have been once in jeopardy if a jury has been impanneled and discharged, or allowed to separate before or without a verdict. (Whart., §§ 573-580.) I think that our courts have not gone beyond this: that a prisoner is once in jeopardy when he has been arraigned and pleaded to a valid indictment, a jury has been sworn, and evidence given, and then, without his consent, a juror has been withdrawn or (which is the same thing) the jury discharged. (People v. Barrett, 2 Cai., 304.) By this decision it was properly held that the people could not put off the trial of a case, after it had once properly begun, without the prisoner’s consent. The case under consideration was not such an attempt. If the arraignment of the prisoner and his plea to the indictment were essential to a valid conviction upon the trial begun, then the court below was right in treating all that had occurred as worthless and unlawful, and in discharging a jury never legally impanneled. Where, by reason of any defect, a motion in arrest would prevail, the prisoner has not been in peril. (Whart., § 587; Shepherd v. People, supra, 417.)

If the irregularity was not fatal to any conviction that might be had, and the prisoner yet insisted upon the defect and objected to further proceedings upon the trial, that was equivalent to asking for the discharge of the jury and consenting thereto. The general opinion is, that the consent of the prisoner to the discharge of the jury will obviate any objection founded on his' constitutional privilege. (U. S. v. Perez, 9 Wheat., 579; Whart., § 591 and notes.)

The defendant is indicted for bigamy, and the evidence of his guilt is overwhelming. In fact, he has been defended upon technicalities alone. No defense upon the merits is urged. If justice cannot be outwitted, the defendant must be punished; if it can be evaded, the defendant goes at large, presumably innocent, though notoriously guilty.

The conviction and judgment should be affirmed, and the sentence pronounced should be executed.

Present — LearNed, P. J., BoardmaN and Jamies, JJ.

Conviction and judgment affirmed.


author: BoaedmaN, J.: LeaRNed, P. J.:

text:
    ABRAM M. DE WITT, Appellant, v. THE ELMIRA NOBLES MANUFACTURING COMPANY, Respondent.

      Patent — tenants in common of — right of each to use patent.

    Joint owners of a patent are tenants in common, and each, as an incident of his ownership, has the right to use the patent or to manufacture under it, and he cannot he compelled to account to his co-tenant for his proportion of the profits arising from such use.

      Pitts v. Sail (3 Blatch., 201) distinguished.
    Appeal from an order made at the Special Term sustaining a demurrer to the complaint.
    The complaint alleged that in 1871 letters patent were issued to Watrous and Kellogg for an invention relating to the construction of augurs; that subsequently the interest of Kellogg therein was assigned to the plaintiff; that defendant had used the rights granted by the letters patent at its manufactory in Elmira. It then alleged that said Watrous, one of the co-patentees, had an arrangement and agreement with the defendant, whereby the defendant was, “so far as he, said Watrous, was and is concerned,” to have the right to use the said patented improvement, and that the said use thereof by the defendant was under such agreement, but that the same had reference solely to the rights and interests of the said Watrous. That defendant had notice of the assignment of the said one-half from Kellogg to the plaintiff.

      E. P. Hcvrt, for the appellant.

      S. Dexter, for the respondent.
   BoaedmaN, J.:

The defendant is an owner, by assignment, of an undivided half of a patent, of use and value in the manufacture of augurs, and for some time past has been using such patent in making augurs. The plaintiff is also the owner, by assignment, of the other undivided half of said patent, and brings this action against the defendant to obtain an accounting for the use of said patent and improvement, and payment to plaintiff of the one-half of the value of the use of such patent or. improvement during the time the defendant has used it.

The demurrer insists that the court has no jurisdiction of the. subject of the action, and also that the complaint does not state facts sufficient to constitute a cause of action against the defendant. The demurrer was sustained upon the latter ground.

These parties are. not partners in the ownership of this patent. Beyond doubt they are tenants in common, each owning the one undivided half. Each, as an incident of his ownership, has the right of use of the patent, or to manufacture under it. But neither can be compelled by his co-owner to join in such use or work, or be made liable without his consent for the losses which such co-owner may incur in using or working the patent. (Clum v. Brewer, 2 Curt. C. C., 506-524; Curt, on Patents, § 136, etc.) The ordinary rights appertaining to property held in common must apply in this case. There has been ■ no conversion of the property by a sale of plaintiff’s share to the defendant. If there had been, it would have given plaintiff a right of action against the vendor for the value of his interest wrongfully sold; or he could follow the property, claiming his interest and right of possession. There has been no destruction of plaintiff’s property or interest under the patent. The nature of the property is such, that either owner may use it, and neither can exclude the other from the use. The rights, being abstract and intangible, cannot be destroyed by use or sale; nor can plaintiff lose his right except by his own act and consent.

In the case of real estate, one tenant in common cannot be called to account for the use, profits, or rent of the ¡property enjoyed only by him, if he has not excluded his co-tenant therefrom. (Woolever v. Knapp, 18 Barb., 265; Dresser v. Dresser, 40 id., 300; Wilcox v. Wilcox, 48 id., 327; Curtis on Pat., § 189.) So long as one tenant does not exclude his co-tenant, he does not become liable for the use of the joint property. These rules apply equally to chattels and, with great force, to the property in a patent right, in which, from its nature, there can be no exclusive use or enjoyment, and each owner can at the same time have, use and enjoy the thing patented, or its use and product.

In opposition to these views, is the case of Pitts v. Hall (3 Blatch., 201, cited in Curtis on Patents [4th ed.], 211, IV.) That case bolds that where one tenant in common in a patent right sells the whole interest in the patent, his co-tenant may maintain an action for an infringement against his co-owner, and recover his proper damages. ' It is certainly very doubtful if this case accords with the law applicable to ownership in common, as held by other courts and judges. But in that, case the action is said to be maintainable upon the ground that one tenant had sold the whole interest, thereby constituting a conversion of the share belonging to his co-tenant. In the case under consideration, the vendor to defendant did not assume to sell any thing but his own rights, and did not attempt to sell the right of his co-owner. It is therefore distinguished from the case of Pitts v. Hall (supra), and should not be controlled by it.

The plaintiff’s counsel has presented with great clearness the difficulties, if not wrongs, following our construction of the law. They are also shown by Judge Hall in the case cited. A contrary decision would involve other hardships, if not wrongs, of equal or greater severity.

The adjustment of the right of tenants in common is exceedingly difficult and, in some cases, impossible, upon any just and equitable basis. Under the law as administered in this State, we think the judge at Special Term was correct in holding that no cause of action was set up in the complaint.

The order of the Special Term should therefore be affirmed, with ten dollars costs and expenses of printing, with leave to plaintiff to amend, upon payment of costs of demurrer and of this appeal, within twenty days.

LeaRNed, P. J.:

I agree with the result of the foregoing opinion. It seems to me that the rights of the parties are more plainly seen, if we observe that letters patent for an invention simply give a right to bring actions against other persons, and thus prevent them from doing what they might otherwise lawfully do. (Hawks v. Swett, 11 S. C., 146.)

The rules applicable to tenants in common of things may therefore not be applied to the united owners of what, consists only in authority to bring actions.

Present — LeaeNed, P. J., Boardman and James, JJ.

Ordered accordingly..


author: BoaRdmaN, J.:

text:
    THE PROTESTANT REFORMED DUTCH CHURCH OF ROSENDALE, Appellant, v. WILLIAM H. BOGARDUS, Respondent.

      Bight of way — •construction of deeds — Religious corporation — conveymice by.

    The plaintiff applied to one A. to purchase a piece of his land, adjoining the land of plaintiff on the east and north; A. refused to sell unless a right of way was given to him from the remaining'portion of his lot (which, by such sale, would be cut off from the highway) to the highway adjoining the plaintiff’s land on the south. Subsequently, in pursuance of a resolution adopted at a meeting of the members of the plaintiff, A. executed and delivered to certain persons, described as “ the present consistory of the Reformed Dutch church, in the village of Rosen-dale, and their successors in office,” a deed of the premises, and received . from them a deed, conveying “ a free-road and outway to and from the public highway or street, over and across the said Ref ormed Dutch church lot, on the west side of said church * * * to his lot on the rear of said church lot.” No authority for the plaintiff to make the sale was ever obtained from any court. Held (1), that the two deeds were to be construed together; that they showed the intention of the parties to be, that a right of way should be reserved; (2), that as to the land conveyed by A., a right of way over it would be regarded as reserved, even if the plaintiff had no legal authority to convey the title; (3), that, if the conveyance of a right of way over the land owned by the plaintiff was invalid and unauthorized, such location could only be disturbed upon giving to A. another right of way over the land conveyed by him to the plaintiff.
    Appeal by plaintiff from a judgment entered on tbe report of a referee. Tbe action was brought to restrain defendant from crossing over or using plaintiff’s land .as a passage-way for teams, etc., and to have the title in fee to said lands declared to be in plaintiff. The answer insists upon a right of way, belonging to defendant, over the lands of the plaintiff, and the right of user.
    The referee found that the defendant had such right of way over the plaintiff’s land from a certain lot of land belonging to ’defendant in tbe rear of plaintiff’s premises, and, as to tbat, denied the relief demanded by plaintiff.
    The right of way over plaintiff’s land to other lands of the defendant is denied by the finding of the referee, and the use of such right of way for such other lands, is, by the judgment, forbidden and enjoined.
    The plaintiff appeals from so much of such judgment as gives to defendant any right of way or use of any of plaintiff’s land for any purpose.

      A. Schoonmaker, Jr., for the appellant.
    The consistory deed to Auchmoody does not pass the title of the corporation. It is simply the individual deed of the three consistory members, and as they had no title they conveyed none. (Hatch v. Parr, 1 Hamm. (Ohio), 390; Brinley v. Mann, 2 Cush., 337; Taft v. Brewster, 9 Johns., 334; Stone v. Wood, 7 Cow., 453 ; Spencer v. Field, 10 Wend., 87; Roberts v. Button, 14 Yt., 195.) The consistory deed for the road purports to convey a freehold interest. (Pope v. O'1 Piara, 48 N. Y., 446, 452; Alleman v. Dey, 49 Barb., 641-645; 2 Wait’s Law and Prac., 29-36; Little v. Penn, 34 N. Y., 452.) The consistory deed for the road is absolutely void, for the reason that it grants the real estate of ,a religious corporation without an order of the court, as required by statute. {Mad. Av. Bap. Oh. v. Bap. Oh. in 01. Street, 46 N. Y., 131; Wheaton v. Oates, 18 id., 395; Christie v. Gage, 2 N. Y. S. C., 344.) The deed by the. consistory being void, it is not an estoppel against the corporation. {Crippen v. Morss, 49 N. Y., 63.) Where a deed is void it does not work an estoppel. (3 Wash, on Real Prop., 100; Todd v. Todd, 10 S. C., 298.) Nor does the doctrine of estoppel apply in the case of a person who has not the power to convey, such as an infant or feme covert. {Brown v. McCune, 5 Sandf., 224; 3 Wash, on Real Prop., 69, 75, 107; Loomis v. RucJc, 56 N. Y., 462.) A religious society is under the like disability of a want of power to convey without the aid of a court. (Big. on Estop., 283; Poe d. Chandler v. Ford, 3 Ad. & E., 649 ; 3 Wash, on Real Prop., 74, 75, §9 a; Oarlinghouse v. Whifrwell, 51 Barb., 208; McMaster v. Prest., etc., Lns. Co., 55 N. Y., 222 ; Jackson v. Brinckerhoff, 8 Johns. Cas., 101; Pierpont v. Barncvrd, 5 Barb., 364.) The proper construction to be given to the consistory deed for the right of way is, that it- was a license by the officers of the church, and good as k license to protect the licensee in the use of the way so long as the church might recognize it, but revocable at the will of the corporation. (1 Wash, on Real Prop., 544, 545.)

      S. L. Stebbins, for the respondent.
    Under the evidence the plaintiff’s remedy was at law. An action of trespass would have determined the question of right, and there is nothing to show that a single action of trespass would not have been sufficient. (Gentil v. Arnand, 38 How. Pr., 94, 95 ; affirmed in 1 Swee., 641; Sixth Av. R. R. Go. v. Kerr, 45 Barb., 138, 142; Sixth Av. JR. R. Go. v. Kerr, 28 How. Pr., 382; Swett v. City of Troy, 12 Abb. [N. S.], 100, 105.) The deeds must be regarded as different parts of the same instrument or agreement. (2 Pars, on Cont. [5th ed.], 503; Jaohson v. JDunsbagh, 1 Johns. Cas. [2d ed.], 92, 98, note a / .Hills v. .Miller, 3 Paige, 254, 256; Stow v. Tifft, 15 Johns., 458, 463; Wilson v. Troup, 2 Cow., 218; Jaclcson v. JMeKenny, 3 Wend., 233; Hanford, v. Rogers, 11 Barb., 18; Hull v. Adams, 1 Hill, 601; Hitchcock v. The N. W. Ins. Go., 26 N. Y., JO, 71.) The attitude of the plaintiff is not permitted either by law or equity or good morals. (Wilson v. Trou/p, 2 Cow., 217, 218; Lovett v. The Germa/n Reformed Church, 12 Barb., 67, 81; Hartshorn v. Brace, 25 Barb., 126, Í29; 1 Story’s Eq. Jur. [6th ed.], 77, § 64, e; 333, § 301; Will. Eq., 46; Big. on Estop., 582-585.) The deacons and elders composing the consistory at the time of giving the deed, were the statutory trustees of the church, and their certificate of incorporation having been acknowledged and recorded, “ such trustees and their successors ” were a body corporate by the name or title expressed in the certificate. (Laws of 1813, chap. 60, § 2; 3 Edm. Stat. at Large, 689.) The deed does not purport to be from private individuals, with a mere descryptio personarum added, but from the consistory (trustees) and their successors.
   BoaRdmaN, J.:

The facts out of which this controversy arises are briefly as follows : In 1851 plaintiff was the owner of a church and lot situate on a highway running east and west on the south of the lot. One Auch-moody, a grantor of defendant, owned the adjoining lands, to the east and north of plaintiff’s lot, extending north to a canal. In the same year the plaintiff decided to purchase all of Auchmoody’s land to the east of the church lot, and a part of that to the north in the form of an L on two sides of the church lot, leaving Auch-moody the owner of a lot upon the canal in the rear of the church lot. Auchmoody, however, refused to sell unless a right of way was reserved to' him, or given to him, from the highway to his lot on the canal over the land to be conveyed by him, or over the church lot. A meeting of the congregation was held, pursuant to a. public notice read from the pulpit of the church, to determine as to such purchase, which was adjourned for a few days, and at such adjourned meeting it was determined to purchase such lands; and Auchmoody, having before that refused to sell without a right of way to the remainder of his lot, cut off from the, highway by such sale, the meeting determined to graut to him a right of way to and from his said lot over the west end of the land owned before, and then bought of Auchmoody south to the highway. This arrangement was made in lieu of a right of way reserved on the east end of the premises to be conveyed, being more desirable to plaintiff, and equally satisfactory to Auchmoody.

On or about the 31st day of December, 1851, two deeds were executed, in pursuance of the resolutions of such meeting, one by Auchmoody and wife to Aurt Wood, John I. Van Wagon en and Hardenburg Delamater, described therein as the present consistory of the Reformed Dutch church in the village of Rosendale and their successors in office,” conveying the L-shaped lot, the other deed from the grantees above named and described to Auchmoody conveying a free road and outway to and from the public highway or street, over and across the said Reformed Dutch Church lot on the west side of said church * * * to his lot on the rear of said church lot.” The second deed was a part of the consideration for the first deed, and without it the plaintiff could not have obtained title from Auchmoody to any lands.

The grantees in the first, and grantors in the second deed, were at the time members of the consistory of the church. One other member refused to sign the deeds. No authority of any court to make the sale was ever obtained. From that time Auchmoody and his grantees have used such right of way.

Under such a state of facts, can the plaintiff object to the defendant’s use of snob right of way as provided for in the deed, and call in the aid of a court of equity to enjoin such use ?

It may be assumed that Auchmoody’s deed vested the title in the corporation. (Christie v. Gage, 2 N. Y. S. C., 344; People v. Fulton, 11 N. Y., 94.) The church thereby became the owner in fee of the real estate conveyed to it by Auchmoody, unless such title is to be limited and controlled by other instruments, contracts and understandings, made at the same time and about the same subject-matter. That the deeds and contracts between the parties should be read together to ascertain the sense and intent of the parties, is, I think, reasonable and sustained by the authorities. (2 Pars. on Cont. [5th ed.], 503; Jackson v. McKenny, 3 Wend., 233; Hull v. Adams, 1 Hill, 601; reversed on another point in 2 Den., 306 ; Broom Legal Maxims, 249.)

So read, it is quite evident that Auchmoody did not intend to cut off his right of way to the street from his back lot by his conveyance. It is equally plain, the plaintiff intended to give him such right of way notwithstanding his deed absolute upon its face. The congregation, when voting upon the subject, had indicated the same purpose, and had done all in its power to recognize such right and authorize its conveyance. The deeds, executed and acknowledged at the same time, before the same witness and justice of the peace, and presumptively delivered at the same time (Robinson v. Wheeler, 25 N. Y., 252), show the same purpose and intent of the parties. So far as the right of way affects the lands conveyed by Auchmoody to the plaintiff, the right of way over it becomes perfect by such rules of construction. It would be treated as a reservation in the deed, even though the parties signing the deed of way had no legal authority to convey the title. This right of way was part of the consideration which the plaintiff agreed to pay for the lands bought. As to those lands owned by the church before this transaction, a different rule might prevail. A title to such lands could not pass by construction or implication. Still, the papers together amount, in effect, to a reservation by Auchmoody of a right of way to the street. The plaintiff, by its acts and the acts and declarations of its officers and agents, invalid if you please, has designated the location of such way on and over the west part of the church lot. If such location can be disturbed, it can only be by giving to Auchmoody or bis grantee another right of way upon lands conveyed to plaintiff. The plaintiff cannot take all the benefits of its contract and repudiate all the burdens. It cannot appeal to a court of equity to deprive the defendant of a right which he equitably, if not legally, possesses from and through the plaintiff, and which the plaintiff equitably owes to him. If the plaintiff insists on claiming title under Auchmoody’s deed, it must recognize as a part thereof the charge by right of way over its own lands. (Wilson v. Troup, 2 Cow., 195, 217, 218; Lovett v. German Refd. Church, 12 Barb., 67; 1 Story Eq., 148, §§ 64, e, 801.)

He who seeks equity must do equity.

I do not undertake to determine whether this right of way over plaintiff’s lot is such an interest in land as requires the authority of the court for its sale. I deem it sufficient that it would be inequitable for the plaintiff to deprive the defendant of his right of way, bought of and paid for to the plaintiff, without in any way returning, or offering to return, any portion of the consideration. It is a position which no person or even soulless corporation may take.

Other questions are raised by the plaintiff, upon the hypothesis that the use of this way by defendant is different from that intended. I do not think there is any foundation for such suggestion. If there were, the plaintiff is wrong in the remedy sought in this action, and ought not to succeed on such grounds.

I have endeavored to discuss the merits of the controversy between these parties. In doing so I have become satisfied the plaintiff was holding a false and untenable position, and that the referee has correctly found in favor of the defendant upon the subject here discussed. It is not necessary to uphold the deed of right of way as a valid consequence, or to deny the necessity of legal authority derived from the court to make such a conveyance valid. The controlling principle is outside of all this.

The complainant in a court of equity cannot use that court to perpetrate a wrong necessarily flowing from the case presented.

I think the judgment should be affirmed, with costs.

Present — LearNEd, P. J., BoARDMANand James, JJ.

Judgment affirmed, with costs.


author: By the Court :

text:
    THE VILLAGE OF DEPOSIT, Respondent, v. JAMES A. VAIL, Appellant.

      Infm'ior local cov/rt — what is — Police Court— chap. 330 of 1873 — State Constitution, §19, art. 6 — constitutional question — who mazy raise — Repeal of statute ly implication — not favored — especially when passed at same session of the legislature.

      Semble, that section 1, title 4, of chapter 330, of the Laws of 1873, amending the charter of the village of Deposit (which village lies partly in Broome and partly in Delaware county), and providing that “said police justice shall have jurisdiction in both civil and criminal actions * * * and have the same power, and be subject to the same duties and liabilities * * * as are possessed by justices of the peace in this State, and his ac.ts shall be entitled to full credit, and be effectual, in each of the counties of Broome and Delaware,” limits the jurisdiction of the justice to the village of Deposit, and creates an “ inferior local court,” within the meaning of section 19, article 6, of the State Constitution.
    If such is not the proper construction of the act, the defendant, being a resident of the village, could not raise the objection that the authority given to the officer was not confined to the village boundaries.
    Effect- of unconstitutional provisions in an act containing other and legal provisions, where the two are not inseparably connected, discussed.
    Chapter 330, of 1873, was not repealed by chapter 830, of 1873.
    ■ This is an appeal by the defendant, from a judgment rendered against him by Ellicott Evans, police justice of the village of Deposit, in favor of the plaintiff, upon the verdict of a jury, for $100 damages, the amount of two penalties of-fifty dollars each, for violation of the excise laws of this State, besides costs.
    The following opinion was delivered in the County Court:
    Edwards, County Judge:
    The defendant had no license. It was proved, and not disputed, that, on or about the 11th and' 18th days of February, 1871, he sold and delivered, and received pay for, what the witnesses, on the part of the plaintiff, testify was strong and spirituous liquor, which would intoxicate, and which the defendant testified was Mishler’s bitters, which he also testified was intoxicating, as did also Mr. Brown, recalled by him. I have carefully examined the return, and do not think any errors were committed by the justice in the admission or rejection of evidence, which were prejudicial to the defendant, nor in the charge of the court to the jury, which was within the decision of the Court of Appeals, in the case of The Board of Commissioners of Excise of Tompkins County v. Taylor (21 N. Y., 178). The evidence was sufficient to warrant the verdict, and the judgment must be affirmed, unless, for other reasons urged by the defendant, it should be reversed.
    The other grounds relied upon by the defendant for a reversal of the judgment, are:
    1. That the act of 1873 (chap. 330, Laws of 1873), so far as it creates and defines the powers of the Police Court of the village of Deposit, is unconstitutional and void; and,
    2. That the action could only be maintained by the overseers of the poor of the town of Sanford.
    The office of police justice of the village of Deposit was created by an act of the legislature, passed April 29, 1873, entitled, “An act to amend the charter of the village of Deposit, situated partly in the town of Sanford, Broome county, and partly in the town of Tompkins, Delaware county, and to revise and compile the several acts relative to said village.” (See chap. 330, Laws of 1873.)
    The authority under which such courts are established is contained in section 19 of article 6 of the Constitution, which provides that “inferior local courts of civil and criminal jurisdiction may be established by the legislature.” The first section of title 1 of the act referred to, among other things, defines the boundaries of the territory embraced within the corporate limits of the village, which lies partly in the town of Sanford, in the county of Broome, and partly in the town of Tompkins, county of Delaware. Section 1 of title 2 creates the offices, gives names to them, fixes terms of office, etc.; and among the officers of the village thus enumerated is the police justice. Section 1 of title 4, after fixing the term of office of the police justice, and requiring that within thirty days after election, and before entering upon the duties of his office, he shall take and file an oath of office, and that said oath, or a certified copy thereof, shall be filed in the clerk’s office of the county of Delaware, and in the clerk’s office of the county of Broome, and in the clerk’s office of said village, further provides as follows: “Said police justice shall have jurisdiction in both civil and criminal actions, and to entertain suits and proceedings to recover penalties under this act, or any by-law or ordinance made in pursuance thereof, and have the same power, and be subject to the same duties and liabilities, and shall receive the same fees, and compensation, and shall have the same power and authority in and about the acknowledgment and verification of deeds and other instruments in writing, as are possessed by justices of the peace in this State, and all of his acts shall be entitled to full credit and be effective in each of the counties of Broome and Delaware, after he lias filed therein, as aforesaid, his oath of office. All actions brought before him against residents of the county of Broome or Delaware may be commenced by long' summons.” It is claimed by the defendant that the territorial jurisdiction of the police justice, by the provisions of this- section, is limited only by the boundaries of the counties of Broome and Delaware, and, therefore, that the court created is not an “ inferior local court,” within the intent and meaning of the Constitution, but of the same general character as Justices’ Courts, with a more extended jurisdiction; and that its creation is an evasion and in violation of the Constitution. In considering this important question, some well established principles, by which courts are governed in determining such questions, must -be kept in view, among which we may mention: 1st. That these inferior local courts have only such jurisdiction and can exercise only such powers as are expressly given or necessarily implied; so that reasonable doubts as to the extent of jurisdiction are solved against the corporation and in favor of the legislative action. (1 Dillon on Corporations [2d ed.], 449; Cooley’s Const. Limitations, 182.) 2d. In the exposition of a statute, it is the duty of courts to seek to ascertain and carry out the intention of the legislature in its enactment, and to give full effect to such intention; and they are bound so to construe the statute, if practicable, as to give it force and validity rather than to avoid and render it nugatory. (Clarke v. City of Rochester, 24 Barb., 471; People v. Supervisors, 17 N. Y., 241.)
    That the legislature intended to give the police justice authority, at least within the limits of the corporation, is not questioned in this case, and is plainly manifest from the provision of the act. The provision in section 1 of title 4, that “ said police justice shall have jurisdiction in both civil and criminal actions,” standing alone, bas the same and no greater force than it would have if it read “ said police justice shall have, within said milage, jurisdiction in both civil and criminal actions,” .because it neither expressly nor impliedly confers any powers outside of the village.
    The next provision necessary to notice is that which declares that the police justice “ shall have the same power and be subject to the same duties * * * and shall have the same power and authority in and about the acknowledgment and verification of deeds * * * asare possessed by justices of the peace in this State.” The word “ power,” as first used in this provision, undoubtedly means legal authority, and when used as here in reference to the authority of a magistrate, may have reference to the subject-matters, persons or territory within his jurisdiction, or all of them. It is not declared that the police justice shall have the same powers as are possessed by a justice of the peace of the town of Sanford, or of the town of Tompkins, or of both combined, nor of any or all the justices of the peace in Broome and Delaware counties, but such as “ are possessed by justices of the peace in this State.” This language was employed, I think, to define the nature of the powers of the police justice, and shows the extent of his jurisdiction in "respect to the subject-matters of which he might take cognizance, the language being used to confer that, and only that power and authority which is common to all justices of the peace in the State. I do not think it was intended, by the words used, to give him the same authority throughout Broome county that a justice of the peace of that county possesses, nor the same authority throughout Delaware county that a justice of the peace in that county possesses ; nor do the words in the next sentence, which declare that “ all his acts shall be entitled to full credit and be effective in each of the counties of Broome and Delaware,” disclose an intention to give him authority throughout those counties, as is claimed by the defendant.
    The village lies partly in the one and partly in the other of the two counties, while the officer must reside in one or the other. The acts referred to mean, of course, his lawful acts; and, owing to the peculiar location of the village, it was proper to declare that his acts should be entitled to full credit, and be effective in each of the counties, just as they would have been in either of those counties without sucb declaration, bad the entire village been within the limits of such county. I am of opinion, therefore, that the objection of the defendant, that the provisions of the act defining the authority of the police justice are in violation of the Constitution, is not well taken. But’if I am wrong in this conclusion, and the legislature did in fact intend to give the police justice a more extended jurisdiction than is authorized, I do not see how the defendant can take advantage of it. He was a resident of the village, and the acts complained of were there committed. It cannot be doubted that the legislature had the power to confer upon the officer the authority within the milage which the act giv.es him; and if, by the act, his authority is not limited by the boundaries of the corporation, so that in respect to the powers conferred outside the village, the act would be void, it would still, in my judgment, be valid so far as to authorize the exercise of the powers granted within the corporation limits. The question in such a case is, whether the constitutional and unconstitutional provisions are inseparably connected, not in the same section, but in substance. (Cooley’s Const. Lim., 178.) Here the valid provisions and those claimed to be void are distinct and separable, as plainly so as a boundary line separates contiguous territory.
    Was this action maintainable by the village of Deposit, or were the overseers x>f the poor required to bring it ? The act in question was passed April 29, 1873, and took effect immediately. On the 23d day of June, 1873, at the same session, a general act was passed (chap. 820, Laws of 1873), amending section 22 of the act of 1857, entitled “ An act to suppress intemperance, and to regulate the sale of intoxicating liquors,” by providing that “the penalties imposed by that act, except those provided for by sections 15 and 19, shall be sued for and recovered * * * by and in the name of the overseers of the poor of the town in which the alleged penalty was incurred; ” and it is claimed by the defendant that this latter act worked a repeal of the former, so far as the former act authorized the penalties to be sued for and recovered by the village of Deposit as plaintiff. The former act is nowhere mentioned in the latter, and if there has been any repeal, as is claimed, it is by implication. It is a maxim in the construction of statutes, that the law does not favor a repeal by implication, and tbis is especially the case where the former is a special act passed for the benefit of a particular municipality. (Dillon on Municipal Corp. [2d ed.], § 54; Town of Ottawa v. County of La Salle, 12 Ill., 339, and cases cited.) Again, as before observed, these acts were both passed at the same session; they were both before the legislature at the same time, and the general law should not be held to repeal the special one by implication, under such circumstances. (McFarland v. State Bank, 4 Pike, 410; Village of Cohoes v. Moran, 25 How., 385.) For these reasons I am of the opinion the action was properly brought in the name of the village of Deposit.
    It follows from the foregoing conclusions that the judgment of the Police Court must be affirmed.

      A. C. Moses, for the appellant.
    “ It is beyond question the duty of courts, in construing statutes, to give effect to the intent of the law-making power, and seek for that intent in every legitimate way. But in the construction both of statutes and contracts, the intent of tire framers and parties is to be sought, first of all, in the words and language employed; and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and, when the words have a definite and precise meaning, to go elsewhere in search of conjecture, in order to restrict or extend the meaning. Courts cannot correct supposed errors, omissions or defects in legislation. The office of interpretation is to bring sense out of the words used, and not bring a sense into them.” (MoClushy v. Cromwell, 1 Kern., 601, W. F. Allem, J.; Newell v. The People, 3 Seld., 97.)

      Alex. Cummmg and T. <& A. More, for the respondent.
    The jurisdiction of the police justice is limited to the corporation. The jurisdiction of a police justice in an incorporated village is sufficiently defined and limited, within the intent of the Constitution, by giving him that of a justice of the town in which such village is situated, and restricting its exercise to the limits of the village. (Brandon v. Avery, 22 N. V., 469; Sill v. Village of Corning, 15 id., 297; Waters v. langdon, 40 Barb., 408; Damson v. Horan, 51 id., 459 ; People ex rel. Oreegan v. Butcher, 4 N. Y. S. C. [T. & C.], 391.) It is a well established rule, that courts are bound to construe statutes so that they shall have effect, and, if they are susceptible of two constructions, that shall be given them which carries out the object of the statute and gives it effect, aud not that which makes it void. (People ex rel. Williamson v. McKinney, 52 N. Y., 374, 383; Boosveli v. Godard, 52 Barb.,. 533; People v. Supervisors of Orange, 17 N. Y., 241; Ciarle v. Rochester, 24 Barb., 471; Cooley’s Const. Lim., 184, 185.) “That is not within the statute that is not within the intent, though within' the letter.” (People v. Utica Ins. Co., 15 Johns., 353; Jackson v. Collins, 3 Cow., 89.) It is well settled: “ If when the unconstitutional portion of a statute is stricken out, that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must stand.” (Cooley’s Const. Lim., 178; People v. Rochester, 50 N. Y., 525; People v. Bull, 46 id., 66.) This police justice was an officer defacto, if not dejure, and neither his acts nor authority can be inquired into in a collateral proceeding. (People ex rel. Coyle v. Sherwood et al., 4 N. Y. S. C. [T. & C.], 34; People v. White, 24 Wend., 525; Kelson v. People, 23 N Y., 296; Mclnstry v. Tanner, 9 Johns., 135.) A general act repealing all acts contrary to its provisions, does not repeal a clause in the charter of a municipal corporation on the same subject. (State v. Brannin, 8 Zab. [N. J.], 484; State v. Morristown, 33 N. J. Law, 57; Jersey City v. Railroad, 20 N. J. Eq., 360 ; Ottanaa v. County, 12 Ill., 339.)
    The following opinion was delivered at General Term:
   By the Court :

The carefully considered opinion of Judge Edwards, when deciding this case in the County Court, disposes correctly, as we think, of the various objections and exceptions of the defendant. For the reasons therein given, we think the action was properly brought in the name of the village, as plaintiff; that the police justice'had jurisdiction to hear and determine the action ; that the charter of 1873 of the village was valid and constitutional in its provisions for an election of a police justice, so long as such justice acted within the jurisdiction for which he was elected ; that the subsequent excise law of 1873, giving rights of action for penalties to overseers of the poor, did not by implication repeal the provisions in that behalf of the charter, and that the cause of action was established by competent and sufficient evidence.

The judgment of the County Court of Broome county is therefore affirmed, with costs.

Present — Leaened, P. J., Boabdman and JaMes, JJ.

Judgment affirmed, with costs.


author: LEARNED, P. J.:

text:
    LUCINDA RUTHERFORD, Plaintiff, v. SAMUEL O. HOLMES, Defendant.

      Contempt — power to punish for — refusal of witness in Justice's Court to answer question — power of justice to punish for.

    The power to punish for contempt is, in its nature, an exception to the provisions of the Constitution, and it cannot be extended, in the least degree, beyond the limits which have been imposed by statute.
    A justice of the peace has no power to treat as a contempt the refusal of a witness, examined before him, to answer a question.
    A justice has no power to commit a witness for a refusal to answer a question in accordance with the provisions of 2 Revised Statutes, 274, section 204, until the party at whose instance the witness attended shall have made the affidavit required by the said section.
    The fact that the question is put upon the cross-examination of one of the parties to the action, who has been examined as a witness in his own behalf, does not relieve the justice from compliance with this requirement of the statute.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term.
    This is an action for false imprisonment. The imprisonment is not denied. The defense is, that the defendant was a justice of the peace ; that the plaintiff was a witness on a trial before him, and that he caused her to be imprisoned for refusing to answer a question. The plaintiff^ in the present action was nonsuited.

      L. L. Bundy, for the plaintiff.
    Justice’s Courts are of special and limited jurisdiction, and their authority must be strictly pursued, and can take nothing by implication. {Way v. Carey, 1 Caines, 191; Jones v. Reed, 1 Johns. Cases, 20; Wells v. JTew-kirlc, id., 228; Bigelow v. Stearns, 19 Johns., 39; The People v. Koeber, 7 Hill, 39, 41, and cases cited.) Here the defendant had no jurisdiction to issue this commitment until the statutory requirements were complied with. (Horton v. Auchmoody, 7 Wend., 200; Evertson v. Sutton, 5 id., 281; Yates v. Bansing, 5 Johns., 282; Blythe v. Tompkins, 2 Abb., 468; Clark v. Hold-ridge, '58 Barb., 61, 71.) Jurisdiction in such cases is not to be presumed, but must be proved. (7 Hill, above cited, 41; Comfort v. Fulton, 39 Barb., 56.) A justice is liable in an action for false imprisonment, for issuing an execution against the person without proof. {Percival v. Jones, 2 Johns. Oases, 49.) And also for issuing a warrant in a bastardy proceeding without an application from an overseer of the poor. {Bigelow v. Stearns, 19 Johns., 39; Sprague v. Ecoleston, 1 Bans., 74; 1 Colby Grim. Law, 169 ; 2 id., 277, 278; Gold v. Bissell, 1 Wend., 213; Barnes v. Harris, 4 N. Y., 375; People v. Webster, 14 How., 246, 247; Flail v. Mwnger, 5 Bans., 103.) The warrant of commitment was void for want of a seal. The term warrant implies a seal, except where the seal has been dispensed with by statute. (1 Colby, 141; Beekman v. Traver, 20 Wend., 67; Smith v. Randall, 3 Hill, 495; People v. Holcomb, 3 Park. Cr., 656, 664, and cases cited.)

      WilKam Gleason, for the defendant.
    .The act complained of in this case was a judicial determination in a proceeding in which the justice had jurisdiction, and he was not liable for his judgment, however erroneous or wrongful his determination may have been. ( Wernar v. Devendorf, 3 B>enio, 120; 1 Cow. Tr. [3d ed.], 39; Tracy 6 Cowen’s Treatise, §§ 17, 18, 1247; 1 Wait’s Law and Practice, 737; 2 id., 645, 647; 5 Johns., 282, 291, 295; 9 id., 395; 8 Cow., 178; 17 Johns., 145; 3 Cow., 206; 37 N. Y., 513; 4 Abb. [N. S.], 469; 35 N. Y., 238,-246; 43 id., 186; 24 Barb., 419; 6 Hill, 44, 46; 6 Barb., 621, 631; 7 Wend., 200.) The determination of the justice could not be contradicted. (6 Barb., 626-631.) Nor could plaintiff show that the question was improper. (5 Hill, 165 ; 7 Abb. Pr., 96, 103.) The conviction of the contempt is in due legal form, and according to the approved precedents. (1 Wait’s Law and Prac., 73, §§ 205, 206; 2 id., 647 ; 3E.S. [5th ed.], 461, §§ 205, 206.) That portion of the section, as to the oath of materiality, must be read as applicable to a witness refusing to be sworn or to testify for the party who called him — and she is estopped from saying she is not material, when she has offered herself and been sworn and has testified in her own favor — and it was for the justice to determine whether the question on cross-examination was pertinent and proper (as in 12 Abb., 151), and that he did, as part of his decision and judgment. If the statute is not full as to every particular in regard to this or any other contempt, the justice is remitted to the common-law jurisdiction, he keeping as near to the statute in like cases as circumstances will reasonably permit. (.Robbins v. Gorham, 26 Barb., 592-594; 2 Hun, 226, 229.) There is no statute requiring the mittimus to be under seal, and none of the precedents require or indicate that one be used. (3 R. S., 454, § 158; id., 993; 19 Abb., 579 ; 5 Park., 651; 42 Barb., 215; 2 Wait’s Law and Prac., 644, 647; 2 Cow. -Tr. [3d ed.], 270, 273.)
   LEARNED, P. J.:

Thé power which courts possess of punishing for contempts, and for refusal to give evidence,.is, in its nature, an exception to the provisions of the Constitution. It is a power to deprive a man of his liberty, without a jury and without a regular trial. It cannot therefore be extended, in the least degree, beyond the limits which have been imposed by statute. No implication, and no fancied necessity, can be permitted to add to the literal meaning of the words by which the legislature have restricted this power. And this is especially true of all tribunals which are not courts of general jurisdiction. •

Justices of the peace possess powers, in this respect, far inferior to those of courts of record. The statute authorizes them to punish for certain criminal contempts: such as disorderly conduct when a justice is engaged in the trial of a ease, and the like. (2 R. S., [m. p.] 273, § 199 [274].) This section does not include a refusal to answer a question or to give evidence. A subsequent section gives the only power which a justice of the peace has to compel a witness to answer. And it is worthy of notice that this section does not even designate this refusal a contempt of court. From this it may be inferred that the legislature were careful to avoid any language which might imply that a justice of the peace might ever punish “ as for contempt.” The section is as follows : “ When a witneás, attending before any justice in any cause, shall refuse to be sworn in any form prescribed by law, or to answer any pertinent and proper question, and the party at whose instance he attended shall make oath that the testimony of such witness is so far material, that, without it, he cannot safely proceed in the trial of such cause, such justice may, by warrant, commit such witness to the jail of the county.” (2 R. S., [m. p.] 274, § 204 [279].) Thus it will be seen that the justice has no power whatever until the party, at whose i/nsta/nce the witness attended, shall have made the prescribed affidavit. And this affidavit must state that the testimony is so far material, that, without it, the party cannot safely proceed in the trial. Now, in the present case, there was no affidavit made whatever. And therefore the justice had no authority to imprison the witness. •(People v. Webster, 14 How., 242.)

It was urged, on the argument, that, under the circumstances, such affidavit was not needed. The witness (the present plaintiff) was a party to the action before the justice. She had offered herself as a witness in her own behalf and had testified. On the cross-examination she refused, as is alleged, to answer a question.

It is urged, that as she was attending at her own instance, and as the question was put by the opposite party, the affidavit could not be required. But the language of the statute is explicit. And although the objection seems to present a difficulty in the ease of a refusal to answer a question under cross-examination, still we cannot enlarge the clear and plain words which require an affidavit from the party at whose instance the witness attended. Possibly the legislature did not consider that the testimony brought out on cross-examination was sufficiently material and necessary to make it best to extend the justice’s power to such a case. Or it might have been thought that if the party considered the evidence of the witness necessary, he could subpoena the witness and put the proper question on a direct-examination. Thus he would be the party at whose instance the witness attended. It is enough, however, for the present case, that no affidavit was made by any one, and that the justice had therefore no jurisdiction.

The defendant insists that the warrant is an adjudication of the truth of the facts, and is conclusive. Even if this were so, the warrant does not allege that the prescribed affidavit was made. So that there is no proof whatever of such an affidavit, even on the defendant’s view of the case, and the contrary is expressly proved by the plaintiff.

The circumstances of this case show the necessity of confining within strict limits the exercise of a power so arbitrary. The witness, a woman not in good health, about fifty years old and the mother of several children, was taken in a skeleton buggy, at the hour of midnight, or later, from the justice’s office, eighteen miles to the county jail, distant twenty-four miles from her home. It was the twentieth of September and the weather was cold; she reached the jail before sunrise, and the effect was such that a physician had to be called to attend her. And the counsel whose question she is alleged to have refused to answer was the brother of the justice who committed her. The question ought to have been very material, and the answer absolutely necessary, to justify such severe proceedings.

It is not necessary to examine the other questions presented. There must be a new trial, costs to abide the event.

Present — LearNed, P. J., BqabpmaN and .James, JJ.

New trial granted, costs to abide event. ■