author: Maynard, J.

text:
    In the Matter of the Application of Charles Sargent for a Mandamus, App’lt, v. John J. Gorman, as Sheriff, Resp’t.

      (Court of Appeals,

      Filed February 12, 1892.)

    1. Veterans—Mandamus—Office.
    Relator,an honorably discharged Union soldier, was, prior to January 1, 1891, an employee in the sheriff’s office of New York, on a salary paid Toy the sheriff out of his private funds. On that date respondent appointed another person to do his work, and relator applied for a mandamus to compel the sheriff to re-instate or re-appoint him. Held, that he was not entitled to the relief asked for.
    '3. Same—Laws 1890, chap. 67.
    Relator had not brought his case within chap. 67, Laws 1890, as his employment by the previous sheriff was a purely personal one, for which he; was paid by him out of his private funds.
    3. Same—Laws 1887, chap. 464.
    Mor had he brought his case within ch. 464, Laws 1887; when he made-his application the place had already been filled, and there was no vacancy to which relator could be appointed, and it did not appear that the incumbent was not himself an honorably discharged soldier.
    4. Same—Laws 1890, chap. 523.
    Mor was relator aided by chap. 523, Laws 1890, providing for the payment of all salaries out of the city treasury, as that act, excepting §§ 21, 22, did not take effect until January 1, 1891, when relator’s employment, had expired by its own limitation.
    Appeal from judgment of the supreme court, general term, first department, affirming order of special term denying application of appellant for mandamus compelling respondent to reappoint him to the position of employee in the sheriff’s office.

      Abraham Gruber, for app’lt; Wm. K Stillings, for resp’t.

       Affirming 38 St. Rep., 780.

   Maynard, J.

The relator, an honorably discharged Union: soldier, was, prior to January 1, 1891, an employee in the office of the sheriff of the city and county of New York, receiving a. salary at the rate of $2,000 per annum, which was paid by the-sheriff out of his own private funds. He was first employed by Sheriff Flack at the beginning of his term of office, January 1,, 1889. He was continued in the same employment by Gen. Sickles, who had been appointed to the vacancy caused by the 2-esignation of Mr. Flack, and whose right to hold the office expired with the 31st day of December, 1890, when he was succeeded by John J. Gorman, the respondent, who had been elected to the office at the general election in the preceding November. The respondent did not continue the employment of the 2'elatoi', but on his accession to the office designated another person to do* the work which the relator had done under his predecessors.

The relator made no application to the respondent to be appointed or employed by him in the sheriff’s office, but appears to' have assumed that he had the right to continue in the office under the employment by Sheriffs Flack and Sickles until he was removed for cause after a hearing had under the provisions of § 1 of chap. 119 of the Laws of 1888, as amended by chap. 67 of the Laws of 1890. He accordingly reported for duty at the-sheriff’s office on the moi-ning of January 2, 1891, the preceding day having been a holiday, and was informed by the respondent that he would not recognize him as an employee of the office;: that another person had been appointed to 2’ender the services theretofore performed by him, and he was ordered to leave his desk and thereafter not to enter the office as an employee. The relator'seems to have regarded this as a dismissal from office, and on the same day notified the respondent that he objected thereto, stating that he was an honorably discharged Union soldier, and he demanded immediate reinstatement on the ground that his discharge was illegal, because in violation of the laws of the state-giving such soldiers a preference and prohibiting their discharge; from public employment, except for cause and after á hearing had..

The relator’s demand was not complied with, and, upon these facts, he applied for a peremptory writ o£ mandamus to compel the respondent to immediately reinstate or reappoint him to the position which, he had occupied in the sheriff’s office "before January 1, 1891; which was denied by the special term. The general term, ujaon appeal, affirmed the order denying the writ, and the relator has brought this appeal, and now insists for the first time that if he is not entitled to reinstatement under chapter 67 of the Laws of 189U, he is entitled to reappointment under chapter 464 of the Laws of 1887.

It is clear that the relator has not brought his case within the purview of the act of 1890. That act provides that “ no person holding a position by appointment in any city or county of this state receiving a salary from such city or county (unless he has been appointed for a definite time), who is an honorably discharged soldier, * * • * shall be removed from such position except for cause shown after a hearing had, etc.” The relator did not on January 1, 1891, hold a position by appointment in the sheriff's office of the city and county of New York, and was not then in receipt of any salary from such city or county. His employment by sheriffs Flack and Sickles was a purely personal one for their own convenience, and to aid them in the clerical work of the office, and for which he was paid by them out of their own private funds an agreed compensation. He held his place there at the will of his employer, and when General Sickles’ term expired, he ceased to be an employee of the office. The respondent did not remove or discharge him; and, hence, was not required to retain him unless cause for his dismissal could be shown after hearing him in his defense.

Nor has the relator brought his case within the provisions of chapter 464 of the Laws of 1887. That act requires that “ In every public department and upon all public works of the state of New York, and of the cities, towns and villages thereof * * * honorably discharged Union soldiers and sailors shall be preferred for appointment and employment.”

It might be sufficient upon this point to say that the relator did not put his application for a writ of mandamus upon this ground. He seems to have proceeded upon the theory that he had been unlawfully discharged and was entitled to reinstatement; and it was not until the suggestion was made by a remark in one of the opinions delivered at general term, that it occurred to him that he was entitled to preference in appointment under the act of 1887. But if his application for reinstatement could be regarded as equivalent to an application for appointment, it would not avail him under the proofs in this case. When that application was made, the position had already been filled by appointment by the respondent. There was no vacancy to which the relator could be appointed. The law did not require the respondent to create a vacancy for the purpose of appointing the relator. Nor does it appear that the incumbent of the place was not himself an honorably discharged soldier. There is no allegation in the relator’s moving papers that he is not The statute is highly penal in its consequences. A violation of it by respondent will not be presumed. On the other hand, if an appointment to such a place as the relator aspired to was embraced within its provisions, it will be inferred that it had been made in accordance with the requirements of law upon the subject, unless there is clear proof to the contrary.

It is not necessary to consider the question whether the position which the relator formerly held in the sheriff’s office was a confidential one. Not being within the protection of the act of 1890,, the kind of service which he rendered becomes immaterial.

Nor is the relator aided by chapter 523 of the Laws of 1890,, which made the office of sheriff of the city and count}’ of New York salaried, and required all fees received by him to be ¡'aid. into the city treasury, and provided for the payment of bis salary and the salaries of all persons employed in his office out of such, treasury. That act, with the exception of §§21 and 22, vliich were of temporary application, did not take effect until January-1, 1891, when relator’s employment had expired by its own limitations.

Nor did §§ 21 and 22 change the character of his employment for the residue of the year 1890 after chapter 523 became a law. It merely provided for the payment by the sheriff of the compensation to which the relator was entitled under the agreement with him as a part of the expenses of the office out of .the fees collected by the sheriff, and that in case the fees received were insufficient to pay in full the salary of the sheriff and his deputies, assistants and attorney, and the expenses of the office, the city authoi’ities would appropriate sufficient moneys for that purpose. It did not assume to regulate the tenure of any of the employees'of the office, except that it declares that such of them as are specifically named “shall serve during the pleasure of the sheriff,” but not after-January 1, 1891.

It is to be further observed that the act of 1887 has no application to employees in the office of the sheriff of the city and county of New York, unless such office is one of the “public departments ” of the city, but in the view we take of the relator’s stains on January 1, 1891, it is unnecessary to pass upon that question..

The order appealed from should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Earl, Ch. J.

license: Public Domain

text:
    Patrick Joseph Connors, Infant, Resp’t, v. William Walsh, App’lt.

      (Court of Appeals,

      Filed February 12, 1892.)

    1. Assault—Damages—Exemplary.
    Plaintiff and other hays on the 4th of July, 1890, were playing in the-streets of Troy, and fearing, a police officér ran through defendant’s yard to reach another street, when the latter threw a brick, and hitting plaintiff in his eye injured him severely. Held, that the jury had a right to give; exemplary damages.
    2. Trial—Charge to Jury—Directing jury to agree.
    In an action for assault where the only question was one of damages,, the court twice sent the jury out after they had declared that they could not agree, and on their coming in the second time said: “ There is something very strange about that. Any juror that supposes that the plaintiff will not recover in this case some time or other makes a mistake, because sooner or later the plaintiff will have a verdict. * * * Any juror attempting to do otherwise does not do the defendant any favor but puts him to a large amount of increased costs, because sooner or later the plaintiff will have a verdict in this case, and upon the concession of the defendant. Jurors have the physical power to disregard the evidence and the instructions of law, but they do the law, or the community or justice no credit; quite otherwise.” Held, no error.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff

      R. A. Parmenter, for app’lt; Lewis JS. Griffith, for resp’t.

       Affirming 40 St. Bep., 984.

   Earl, Ch. J.

On the fourth day of July, 1890, the plaintiff and other boys were playing in one of the streets of the city of Troy, and fearing a police officer ran into and through the yard of the defendant for the purpose of reaching another street. While making the passage, as the plaintiff and the other boys testified, the defendant, without giving them any warning whatever, or saying anything to them, picked up a large piece of brick and threw it at them, hitting the plaintiff in one of his eyes and severely injuring him. Subsequently this action was commenced to recover damages for the assault, and a judgment was rendered in favor of the plaintiff, which has been affirmed at general term.

Upon the trial there was absolutely no defense to the action, and the only question for the jury was the amount of damages to be awarded by them.

The trial judge charged the jury in various forma that the defendant’s counsel did not claim that there was any defense to the action; and that the charge was acquiesced in and in no way excepted to.

After the jury had retired and had been out of court for some time deliberating upon their verdict, they came into court and stated to the judge that they had not agreed upon their verdict and that there was no probability of their agreement; whereupon the judge said: “ There is but one question for the jury. You have no right to determine whether the defendant is liable or not; he is liable as a matter of law. The only question is how much. Some jury has got to decide it. That is the only question, and that is a question that both sides concede; it is simply a question of how much. While no man should yield -an honest, conscientious conviction, he should be sure that it is an honest, conscientious conviction while he adheres to it, and he should be willing to listen to fair argument on the other side, and to endeavor to arrive at an honest and fair conclusion in the case. I am unable to see any reason whatever why this jury should not agree upon some sum that the plaintiff should have here, because both sides concede that the plaintiff is entitled to something, and the law is and the evidence is that the plaintiff is entitled to something.”

The jury then again retired, and upon the next day returned, into court saying that they had not agreed; that there was no probability of their agreeing, and that the only question upon which they differed was upon the question of damages. The judge then remarked: “There is something very strange about that;” and a juror said, “I think so myself.” The judge then said: “Any juror who supposes that the plaintiff will not recover in this case some time or other makes a mistake, because sooner or later the plaintiff will have a verdict. The defendant concedes that the plaintiff will have a verdict, and is entitled to a verdict. The defendant agrees that the plaintiff must have some verdict, and that is the law. Any juror attempting to do otherwise does not do the defendant any favor, but puts him to a large amount of increased costs, because sooner or later the plaintiff will have a verdict in this case, and upon the concession of the defendant. Jurors have the physical power to disregard the evidence and the instructions of law, but they do the law or the community or justice no credit; quite otherwise.” The counsel for the defendant then said: “ We interpose an exception to that part of ydur charge, and also to where you say the plaintiff is entitled to smart money.” Whereupon the jury again retired, and shortly there-. after returned with a verdict in favor óf the plaintiff. The judge had instructed the jury that if they found from the evidence that the act of the defendant was wanton and malicious, they had the right to add to the actual damages which the plaintiff had sustained “ something more by way of punishment; damages that are called exemplary, or punitive, or smart money, for the purpose of teaching the defendant that he must not maliciously and wantonly assault a person.” It is now claimed that there was no evidence in this case which authorized the jury to give what are called exemplary damages. We think there was. The plaintiff and the other boys, without, so far as the evidence discloses, any mischievous purpose or any design to do any injury to the defendant or his premises, and without actually injuring them or creating any considerable annoyance to him, were passing through his premises, and, without any warning, he threw a large piece of brick at them, inflicting a serious injury upon the plaintiff.

It was competent for the jury to find upon this evidence that the act of the defendant was wanton, reckless and malicious, and therefore to award more than compensatory damages. While the remarks of the judge made to the jury before they retired for the last time, were somewhat urgent, and were well calculated to constrain them to agree upon a verdict, they did not contain any erroneous rule of law, and therefore the exception to them on the part of the defendant presents no question for review here. While the remarks contained no erroneous rule of law, yet if the' court below could see that they improperly influenced the jury, it could in its discretion set aside the verdict But it has frequently been held that such remarks are not the subject of review in this court. White v. Calder, 35 N. Y., 183; Caldwell v. N. J. Steamboat Co., 47 id., 283. This case is unlike that of Cranston v. The N. Y. C. & H. R. R. R. Co., 103 N.Y., 614; 4 St. Rep., 300. There after the jury had retired to consider their verdict they came into court, and one of them said that there was no probability of their agreepag The court replied, “You must get together,” adding, “no juror ought to remain entirely firm in his own conviction one way or the other until he has made up his mind beyond all question that he is necessarily right and the others necessarily wrong.” It was held that this was not a correct statement of the law ; that to sustain the instruction would be to cast upon the defendant in a civil action a burden quite as heavy as that which rests upon the prosecution in a criminal case, and perhaps still more onerous. Therefore we sustained the exception there taken and reversed the judgment. Here the remarks of the judge embody no erroneous rule of law.

The judgment should be affirmed, with costs.

All concur, except Maynard, J., taking no part.


author: O’Brien, J.

text:
    John Rousseau, Adm’r, Resp’t, v. Jennie Bleau et al., App’lts.

      (Court of Appeals,

      Filed February 12, 1892.)

    1. Executors and administrators—Deed executed but not delivered BT DECEDENT.
    Plaintiff’s intestate executed a deed March 6th, and it was recorded October 30, but was not delivered to the grantee until several days after the death of the grantor. Held, that it was not operative as a conveyance of real estate, and plaintiff, as administrator of the grantor, had no right to bring an action to set it aside, as it constituted no obstacle to the enforcement of debts in the usual and ordinary course of administration.
    2. Witness—Attorneys—Privileged communication.
    An attorney is a competent witness to prove the delivery of a deed to him for the purpose of delivery to another.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff.

      John T. Norton, for app’lts; H. D. Bailey, for resp’t

       Reversing 38 St. Rep., 221.

   O’Brien, J.

The plaintiff, as administrator of Mary Rousseau, who died on the 28th of October, 1888, brings this action in behalf of her creditors to set aside a deed of real estate made by the intestate in her life-time, in which the defendant Jennie Bleau is named as the grantee, on the ground that the instrument is fraudulent as against such creditors. The complaint alleged and the trial court has found that the deceased left no personal estate except a small sum of money and that at the time of her death she was indebted to one of her relatives for care and attendance during her last sickness in the sum of $200. The trial court found that the deed was executed by Mary Rousseau on the 6th day of March, 1888, and recorded on the 30th day of October,. 1888, but not delivered to the grantee named therein until two or three days after the death of the grantor. It was further found as matter of fact and law that the deed was fraudulent and that the plaintiff, as the representative of creditors, was entitled to judgment setting it aside and the general term has affirmed the judgment. Assuming that the plaintiff, under chapter 314 of the Laws of 1858, can maintain such an action as this, upon proper allegations and proof, yet we think that upon the facts found by the trial court the judgment should have been in favor of ttie • defendants. It having been found that the deed in question was not delivered till after the death of the grantor it did not so far as appears become operative as a conveyance during her life and it follows, therefore, that the plaintiff’s intestate died seized of the lands described therein. The rights of creditors against the real estate of deceased persons attaches to the land as a statutory lien immediately upon the death of the owner, and, of course, their rights cannot be impaired by any conveyance which is delivered or takes effect subsequently. Platt v. Platt, 105 N. Y., 488; 8 St. Rep., 77.

The creditors represented by the plaintiff, therefore, had a lien upon the land prior to the time that any title could vest in the defendant if any title vested in her at all. The deed constituted no obstacle whatever to the enforcement of their debts in the usual and ordinary course of administration. There was no need of invoking the aid of a court of equity to set aside the instrument as it could not, upon the finding, be/raudulentas to creditors. Whatever the consideration or purpose of the conveyance was, it may be good so far as appears against every one so long as the rights of the creditors are protected by the statute, and the administrator had no standing to attack it. He has precisely the same right now to proceed against the land that he would have had if the deed had never been executed. Nor can the judgment be upheld upon the ground that it removes a cloud upon title. The deed was not a cloud upon any right or interest that the creditors of the deceased had and the statute confers no power upon an administrator to bring an action for that purpose.* The theory of the defendants was that the grantor delivered the deed to the attorney who drew it with instructions to him to deliver it to the grantee. If this was the fact the legal effect of such delivery to a third person would be to divest the grantor of her title and transfer it to the grantee by relation as of the date of the delivery to such third person. Munoz v. Wilson, 111 N. Y., 295; 19 St. Rep., 372; Hathaway v. Payne, 34 N. Y., 92; Crain v. Wright, 36 Hun, 74.

On the trial the defendant, the grantee named in the deed, called the attorney who drew it at the request of the grantor and attempted in various forms to prove these facts by him and also that he acted as a mere scrivener in the preparation of the deed. The evidence was all objected to by the plaintiff upon the ground, among others, that it was a privileged communication under § 835 of the Code. The court excluded the evidence and the defendants > excepted. Before this section could have any application to the testimony offered it was necessary to show that the relations of attorney and client existed between the witness and the deceased. Renihan v. Dennin, 103 N.Y., 579; 4 St. Rep., 261. A part of the defendants’ offer was. to show that these relations did not exist at the time of the transactions sought to be proved. It was entirely competent to prove that. When the defendant sought, to prove by this witness the delivery of the deed to him by the ( grantor for the grantee it did not appear that there was any such professional relations between the witness and the deceased as to warrant the court in excluding the testimony. But even if the relation of attorney and client had been shown to. exist, the attorney was still a competent witness to prove the delivery of the deed to him for the purpose of delivering it to another. Such a communication from client to attorney is not within the prohibition of the section of the Code above cited and the attorney was always competent to prove it as, from its very nature, it was not made in professional confidence nor intended to be confidential, but, on the contrary, imparted to another. Hurlburt v. Hurlburt, 128 N. Y., 420; 40 St. Rep., 436.

It has never been held that a verbal message communicated from client to attorney to be delivered to a third person cannot be proved in behalf of the person to whom the message was sent by the testimony of the attorney. Moreover, the next section of the Code permits the client to waive the privilege when it exists and then the testimony is competent. When the deceased commissioned the witness to deliver the deed to the grantee named therein she necessarily waived all objections that she might otherwise make to proof of that fact by the attorney. Matter of Coleman, 111 N. Y. 220; 19 St. Rep., 501.

The finding of the court that the deed was not delivered till after the death of the grantor was, it is fair to assume, the result of excluding the testimony, and in this view its exclusion was probably more hurtful to the plaintiff, upon whose objection it was excluded, than to the defendant who offered it. However that may be, in the aspect which the appeal has assumed here the defendant had the right to give the evidence, and its exclusion was error. There are some other rulings appearing in the record that would be difficult to sustain, but as the judgment must be reversed for the reasons stated, it is not necessary to examine them.

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

All concur, except Maynard, J., taking no part.


text:
    Sarah A. Thomas, Infant, Resp’t, v. Mary E. Thomas and The Supreme Council of the Order of Chosen Friends, App’lts.

      (Court of Appeals,

      Filed February 12, 1892.)

    Benefit Societies—Change op beneficiary—Surrender of old certificate.
    The by-laws of a benefit society prescribed that in order to change the beneficiary designated by a member he might at any time surrender his certificate and a new one would be issued, payable to the person designated. After the death of a member who was a widower at the time of joining, it was found that he had inserted the name of his second wife in the blank space following his daughter's name, the original beneficiary. Ileld, that the beneficiary could not be changed secretly and without the consent of the order, and it was under no legal liability to pay the widow any part of the money due upon the certificate.

      Appeal from judgment of the supreme court, general term, fifth, department, reversing judgment entered on finding and decision of court at special term.

      A. K. Potter, for app’lts; W. G. Ely, for resp’t.

       Affirming 38 St. Rep., 867.

   Maynard, J.

This action involves the question of title to a certificate of membership issued by the defendant, The Supreme Council of the Order of Chosen Friends, an Indiana assessment insurance corporation, to David H. Thomas, April 28, 1881, insuring the life of Thomas in the sum of $3,000, to be paid at his death to the plaintiff, Sarah A. Thomas, his only minor child, then living with him, and of the age of about seven years. Thomas was a widower when the certificate was issued, and on June 1, 1882, intermarried with the defendant Mary E. Thomas. He died January 24, 1887. The certificate, as issued, designated the payee as follows: “ Which sum shall, in case of death, be paid to my daughter Sarah Ann Thomas. ” A few days after his marriage, without the knowledge of the insurance company, Thomas inserted in the certificate, in a blank space after the words above quoted, the following: “ and my wife Mary Elizabeth Thomas; ” thus attempting to make her a joint payee and beneficiary thereof with his daughter.

The trial court has found, and upon what appears to be sufficient evidence, that this insertion by him of the name of his wife was in consideration of the marriage and of love and affection and for the purpose of changing and with the intent to change the beneficiary named in the certificate so that his wife should have an equal part and share with his daughter in its benefits; that he thereupon delivered the certificate to his wife and that she, for a like consideration and with like purpose and intent, took and received it from him; that Thomas supposed and believed that he had thereby revoked and changed and had done everything necessary and proper to be done to effect the revocation and change of the beneficiary originally named in the certificate and for the substitution in place thereof of his wife as the joint and equal beneficiary with his daughter therein, and had effected such substitution ; and that the wife at the time of the receipt of the certificate believed, and has always since believed, that no further act or thing was necessary or remained to be done to entitle her to participate in the moneys to be derived from the certificate and in the benefits secured thereby. There- was an independent finding that, after the issuing of the certificate to him, Thomas, for a certain good and valuable consideration, and for love and affection, duly transferred to his wife and gave and delivered to her the certificate and an equal share with the plaintiff in the benefits to be derived therefrom; but there were no facts, other than those stated above, to support this finding. After the death of the insured, and upon proof thereof made by the plaintiff, the insurance company drew a warrant payable to her guardian for the sum of $3,000; but refused to deliver it unless the certificate of membership was surrendered. This certificate the plaintiff was unable to produce, because -it was in the possession of Thomas’ widow, who declined to give it up, unless she was permitted to share equally with the plaintiff in the proceeds of the certificate.

Under the by-laws of the company it could not be compelled to pay the amount of the certificate unless it was produced for surrender and cancellation. The plaintiff, by her guardian, brought this action against the company and Mary E. Thomas for the purpose of compelling her to deliver to plaintiff the certificate and obtaining from the company the amount thereof. The insurance company took no part in the controversy, and alleged that it was merely a trustee of the money, and was willing to pay it, upon the surrender of the certificate, to the person, or persons, who might be adjudged by the court entitled thereto. The special term found, as conclusions of law, that the plaintiff and her stepmother were joint and equal beneficiaries in the certificate and in the moneys and benefits secured thereby, and that each was entitled to have and receive one-half thereof. The general term ordered the judgment entered thereon to be reversed and a new trial to be -had. From that order the defendant, Mary E. Thomas, has brought this appeal, stipulating for judgment absolute against her if the order is affirmed.

In the application which Thomas made for membership, he directed that in case of his decease all benefits to which he might be entitled from the company be paid to the plaintiff. In the certificate of membership subsequently issued, it is declared to be subject to the conditions set forth in the application for membership and to the laws of the order governing the relief fund out of which it was to be paid, and the certificate was to be in force and the rights and privileges of membership of the order continue so long as the member should comply with the constitution, laws and regulations adopted for its government Under the by-laws of the order each member was required to enter upon his application the name of the person to whom he desired the benefit to be paid in case of death, “ subject, however, to such future disposal of the benefit as the member may thereafter direct,” and which shall be entered in the relief fund certificate according to such direction; and a member in good standing might at any time surrender his relief fund certificate, and a new certificate would be issued payable to such person as the member might direct, upon payment of a fee of fifty cents.

The case does not disclose any other provision, either of the constitution or by-laws of the order, which it is material to consider.

Upon these facts it must be held that there was no valid change of the beneficiary .named in the original application and certificate of membership; and that the plaintiff is entitled to the entire benefit fund. The application, certificate, and by-laws of the order constitute the entire contract between the parties, and while the insured reserved the power to change the beneficiary that power must be executed in the way prescribed in the contract. The beneficiary could not be changed secretly and without the consent of the order. The agreement of the defendant corporation was to pay the whole sum to the plaintiff, unless the insured directed it to pay to some other person and surrendered his certificate and received a new certificate in which the name of the new beneficiary must be entered according to his direction. The corporation had no knowledge of the attempt on the part of the insured to designate his wife as one of the recipients of the benefit fund; never assented thereto, and there never was any compliance with its by-laws in this respect It was, therefore, under no legal liability to pay Mrs. Thomas any part of the moneys due upon the certificate, and without such liability she cannot succeed in her contention.

Undoubtedly, the insured in this case acted in good faith and from the best of motives. His changed domestic relations made it 'eminently proper for him to make some provision for his wife, and the equal division which he contemplated of the fund between her and his daughter was just and commendable. Yery likely he believed that he had so far modified his first appointment of a beneficiary as to include his wife therein, and that if he bad supposed that any action upon the part of the corporation was necessary it would have been sought and obtained. But it is not a case where equity can interfere to remedy a defective execution of a power. Bacon on Benefit Societies, §§ 240, 284; Scott v. Provident Mut. R. Assn., 63 N. H., 556; Knights of Honor v. Nairn, 60 Mich., 44. The insurance company did not in the life time of the insured assent to the change of the beneficiary. Had it done so and the original certificate been surrendered, the omission of any subsequent step might have been supplied.

In Luhrs v. Luhrs, 123 N. Y., 367; 33 St. Rep., 688, the insured had surrendered his certificate to the local lodge, with directions to have a new certificate issued payable to another beneficiary, but the certificate had to be transmitted to the Supreme Lodge and a new certificate issued by it, and before this could be done the insured died. It was held that as every provision of the constitution and by-laws had been complied with by the insured and the certificate surrendered to the local lodge in his lifetime, and nothing remained to be done by the grand lodge except the formal issue of a new certificate, which it had no discretion to refuse, the old certificate was to be regarded as cancelled, and the subsequent issue of the new certificate as directed related back to the time of the surrender of the original certificate to the local lodge. The case is cited by the appellant’s counsel, but we cannot see how it aids her. That case turned upon the fact that there had been a literal compliance by the insured with all of the requirements of the constitution and by-laws of the order which regulated the exercise of his power to appoint a new benéficiary, which is entirely wanting here.

The order appealed from must be affirmed and judgment ordered for the plaintiff for the relief demanded in the complaint, with costs.

All concur.


author: Per Curiam.

text:
    In the Matter of the Probate of the Will of William Watson, Jr., Deceased.

      (Court of Appeals,

      Filed February 12, 1892.)

    1. Wills—Revocation of probate.
    Proceedings for revocation of probate were carried on from their commencement as for the reproving of the will, evidence being given as to its execution and then as to mental and bodily infirmities and incompetency of testator. The surrogate dismissed the application for revocation and confirmed probate by a decree. No question was raised as to the construction of the will. Held, that there was nothing for the surrogate or general term to pass on except as to the legal execution of the will and whether its probate should stand.
    :2. Same—Capacity to execute.
    Where the surrogate upon conflicting evidence decides that a will was legally executed by a testator possessing proper mental capacity and not unduly influenced, and there was evidence to support his conclusion and his decision is affirmed by the general term, this court is concluded by such affirmance.
    •3. Same.
    Where all persons interested in a will are duly in court upon a previous probate, their remedy, where the original petition failed to describe the will as required by § 2614 of the Code, is either through a proper application to the surrogate in that proceeding or by an appeal from his decree. Such objections arc not proper in a subsequent proceeding to obtain a revocation of the probate.
    Appeal from judgment of the supreme court, general term, ■•second department, denying motion for revocation of probate based upon allegations of incapacity, fraud and undue influence.

      K Countryman, for app’lt; Cornelius M Kene, for resp’t.
   Per Curiam.

This was a proceeding to obtain a revocation of the probate of the will of William Watson, deceased, and was instituted by the petition of certain of his next of kin. They set up the incompetency of the testator and undue influence exerted in procuring the execution of his will; that the will was not properly executed and that it was not sufficiently proved. They prayed that the decree admitting the will to ■probate should be set aside as irregular, for the vacation of letters testamentary and for the revocation of the probate. When the proceedings came on for a hearing before the surrogate, they were •carried on from their commencement as for the reproving of the will. The proponents gave evidence bearing upon the execution of the will. The contestants then introduced evidence to show .such mental and bodily infirmities and the existence of such habits of life and of influences as, in their view, tended to establish the incompetency of the testator to make a valid will, and that the one proposed did not express his testamentary purpose. The proponents introduced evidence to rebut any such inferences .and at the conclusion of the hearing the surrogate decided in favor of the proponents, dismissing the application for revocation of the previous probate and confirming it by a decree. Ho question arose as to the construction of the will and the proceeding was ■confined by the petition and by the proofs, upon the hearing, to d contest over the validity of the instrument propounded as the last will'of the deceased. "

Nor did the requests by the contestants for findings refer to any construction of the will. Although the surrogate in his brief opinion and decree made no reference to a construction of the will, yet at the general .term the learned justices in their opinion, after reviewing the.proofs and agreeing with the surrogate, proceeded to consider the question of whether the testator’s will had executed a power of appointment, conferred by the will of testator’s father.

Upon this proceeding no question as to the legal construction of the provisions of the testator's will arose, or could be properly passed upon by the surrogate, or by the general term. There was nothing for these tribunals to pass upon except as to the legal execution of the will, and whether its' probate should stand. Its construction was not involved.

As to the question of whether the will was legally executed bjr a testator possessing proper mental capacity and not unduly influenced, we are concluded by the decision. The evidence upon which the surrogate decided was conflicting and we cannot say that there was wanting sufficient and competent evidence to sup; port the conclusion at which he arrived. He was affirmed, upon an appeal to the general term by the contestants, and there the question was set at rest.

Certain questions are raised as to the validity of the first decree admitting the will to probate. The appellants say that the origl nal probate petition failed to describe the will,- as required by | 2614 of the Code, and that the two decrees upon that probate proceeding were void; the first, because it did not determine the construction .of the will, though an issue had been raised by the answer of a party; and the second, which did give a construction to the will, because it was rendered without any due adjournment of the» previous proceedings.

It is sufficient in answer to say that these appellants and all persons interested were duly in court upon the previous probate proceedings and their remedy,.with respect to such objections, was either through a proper application to the surrogate in that proceeding, or by an appeal from his decree. • Such objections are not properly in the present proceeding. Upon such a proceeding as this the statutory duty of the surrogate is performed bj the rendition of a decree which either revokes the probate, or confirms it. See Art. II, title III, chapter 18, of the Code of Civil Procedure.

For the reasons here assigned the order and judgment of the general term should be affirmed, with costs.

All concur, except Maynard, J., taking no pari

       Affirming 39 St. Rep., 42.


text:
    The People, App’lts, v. Charles Featherly, Resp’t.

      (Court of Appeals,

      Filed February 12, 1892.)

    Appeal—Code Crv. Pko., § 1339.
    In order to enable a party to review in this court a judgment upon a verdict directed by the court subject to the opinion of the general term, a special case for this court must, as provided by Code, § 1339, be made and settled under the direction of the general term, which shall contain a concise statement of the facts and the questions of law arising thereon. This court cannot review the action of the court below on the record upon which the general term heard the motion and directed the judgment for the defendant and the opinion of the court below. '
    Appeal from order of the supreme court, general term, fifth department, directing judgment in favor of defendant.

      Howard H. Widener and Geo. A. Benton, for app’lts; John Gillette, for resp’t

       See 35 St. Rep., 156.

   O’Brien, J.

This action was brought to recover penalties for violating § 6 of the game laws, chap. 534 of the Laws of 1879, in using a floating battery or other prohibited device in shooting wild fowl in Great Sodus bay. On a trial at circuit before a jury the court directed a verdict for the plaintiff subject to the opinion of the court at general term. A case was made, upon which the motion was heard, and the general term set aside the verdict for plaintiff and directed judgment for the defendant. From this judgment the plaintiff has appealed upon a certificate of that court that the record contains questions of law that should be reviewed by this court. The question that was involved in the case, as appears from the opinion of the court below, was whether Great Sodus bay was a part of Lake Ontario, and, therefore, expressly excepted from the prohibitions of the statute. The record is not in a condition to enable us to review this or any other question. It is provided by § 1339 of the Code that in order to enable a party to review in this court a judgment upon a verdict directed by the court subject to the opinion of the general term, a special case for this court must be made and settled under the direction of the general term, which shall contain a concise statement of the facts and the questions of law arising thereon. The plaintiff has failed to comply with this provision of the Code, anti, there is no way in which we can ascertain what the facts are, or what questions of law arise thereon. The only papers before us are the record upon which the general term heard the motion and directed judgment for the defendant and the opinion of the court below. This court cannot review the action of the court below on such a record, and even if we could, by consent of parties or otherwise, we are precluded from doing so in this case because the record does not contain a single exception. On appeal to this court from a judgment alone, only errors of law which have been raised by some exception can be reviewed.

The appeal should, therefore, be dismissed, with costs.

All concur.


author: Andrews, J.

text:
    Eugene Smith, Ex’r, Resp’t, v. Fredericka Rentz, App’lt.

      (Court of Appeals,

      Filed February 12, 1892.)

    1. Evidence—Books of account produced on notice.
    Where a hook or document is produced on notice, and the party calling for it merely inspects it, that does not make it evidence in the case for the-party producing it.
    3. Same.
    The rule that books of a tradesman, or other person engaged in business, containing items of accounts, are admissible in favor of the person keeping them, against the party against whom the charges are made, after certain preliminary facts are shown, has no application to the case of books or entries relating to cash transactions between the parties.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff on report of' referee.
    . Leopold Leo, for app’lt; H. B. Glosson, for resp’t.

       Reversing 37 St. Rep., 695.

   Andrews, J.

The action was brought to recover moneys advanced and paid out by the plaintiff’s testator for the defendant. The complaint alleges that from 1882 to 1887 the testator was the banker and general business agent for the defendant, and that, during said years the defendant, from time to time, deposited moneys with the testator, and the latter, as requested "by the defendant, from her funds in his hands, and when these were insufficient, from his own, paid her different sums in cash, and also-paid taxes and tradesmen’s bills for which she was liable, and that there was a balance due the testator, on account of such payments, of $3,744.75, which the plaintiff claimed to recover. The-answer contained a general denial, and interposed special defenses. On the trial before a referee the plaintiff offered in evidence the-ledger kept by the testator containing the items of the alleged account. It was admitted against the objection of the defendant..

Evidence was given on the part of the plaintiff independently of the ledger, tending to establish many of the items of the account, but a considerable number of the items for which a recovery was had are supported by the ledger alone. If the ledger was improperly admitted in evidence, the judgment must be reversed. It was admitted not only to establish the items of which there was no other proof, but its admission may have influenced, the referee in passing upon the items of the account of which it. was not the sole evidence.

The referee admitted the ledger on the ground that the defendant had under the Code examined the plaintiff before trial, and in that proceeding had given notice to the plaintiff to produce the-books of the testator, and that upon such notice the plaintiff produced certain books of the decedent, among which was the ledger-containing his account with the defendant, which was inspected by the defendant’s counsel. The referee held that the ledger was-thereby made evidence for the plaintiff.

The ledger was not used on the examination, nor were any questions asked founded upon the entries therein.

A similar question was before the second division of this court: in Carradine v. Hotchkiss, 120 N. Y., 608; 31 St. Rep., 951. There the plaintiff on the request of the defendant’s counsel, made-on the trial, produced a letter and delivered it to the latter, who read it, but did not offer it in evidence. Thereupon, on demand of the plaintiff’s counsel, the court directed the defendant’s coun.sel to put it in evidence, and in obedience to such direction, to which the defendant’s counsel excepted, the letter was read to the jury.

When the case came to this court on appeal by the defendant,, this ruling was challenged as erroneous. The court so decided,. Haight, J., saying: “ Whatever may have been the ancient rule in England upon the subject, we do not understand that the fulingof the court can be sustained under any rule now existing in England or in this state.” But the court being of opinion that the letter did not prejudice the defendant, affirmed the judgment.

It is claimed that the decision upon the point of -the admissibility of the letter was unnecessary, and therefore is not binding. The question was properly raised and was decided. Its" decision naturally preceded the decision of the subsequent question, and the declaration of the court was not obiter.

We think, moreover, that the decision in the case accords with the view which has prevailed in the courts of this state and the-practice of the profession. In Lawrence v. Van Horne, 1 Caines, 276, the defendant gave notice to the plaintiff to produce on the-trial a certain letter, which the plaintiff refused to do unless the defendant would engage to read it in evidence. The defendant, claimed the right to inspect the letter before deciding whether he-would read it in evidence. The judge ruled that inspection could not be demanded except on the terms which the plaintiff imposed. On appeal one of the judges was of the opinion that the ruling was right, and that the court could not compel a production of a paper for inspection only. But the point was not decided.

In Kenny v. Clarkson, 1 Johns., 385, Spencer, J., said: “I must not be understood as sanctioning the course adopted at the trial in admitting the paper to be read without proof because-notice had been given to produce it and it had been called for and perused. The case of Lawrence v. Van Horne, 1 Caines, 276, settles nothing, the then chief justice expressing no decided opinion on the question, and the rest of the court were equally divided. It appears to me that the notice to produce a paper and eallingfor its inspection ought to be considered as analogous to a bill for discovery, where most certainly the answer is not evidence but for the adverse party. I think it is our duty to adopt such a course as will not needlessly drive parties into equity for discovery.”

The doctrine announced by Judge Spencer has, so far as our reports show, been acquiesced in by the courts and the bar of the-state without question until a recent period.

The English rule has not been uniform. Lord Kenyon, in Sayer v. Kitchen, 1 Esp., 209, held that production of a paper on notice did not make it evidence. The rule seems to have been held otherwise by Lord Denman in Calvert v. Flower, 7 Car. & P., 386, and in two or three other nisi prius cases, but without, any special examination.

The courts of Pennsylvania and New Hampshire held the view that production and inspection alone does not make the paper evidence. Withers v. Gillespy, 7 Ser. & Raw., 10; Austin v. Thomson, 45 N. H., 113. Gibson, J., in Withers v. Gillespy, referring to the practice on bills of discovery, says: “The reasons drawn from analogy render the argument almost insuperable.” The New Hampshire case was decided upon an elaborate examination of the English and American authorities, and contains the most thorough opinion on the question to be found in the books.

The courts of Massachusetts, Maine and Delaware seem to have followed the supposed English rule on the subject. It was said in the earliest case in Massachusetts on the subject, Com. v. Davidson, 1 Cush., 33, that it was a mooted point whether calling for the books of the opposite party and inspecting them, and doing nothing more, makes the books evidence; but in Clark v. Fletcher, 1 Allen, 53, the point was decided. In Maine, Blake v. Russ, 33 Me., 360, the question was decided without assigning .any reasons, and the ruling in the Delaware case, Randel v. Chesapeake Co., 1 Har., 284, was made on the trial, and so far as appears without any examination. The authorities on the question are divided. But we perceive no reason for departing from the rule •as understood in this state. The claim that it gives the party calling for a paper an unfair advantage, if he may inspect it and then decline to put it in evidence, seems to us rather specious than sound. The same objection would lie in case of bills for discovery, but it was the, settled rule that an answer though under oath was evidence only for the party who obtained it The party who has in his possession books or papers which may be material to the case of his opponent, has no moral right to conceal them from his adversary. If on inspection the party calling for them finds nothing to his advantage, his omission to put them in evidence does not prevent the party producing them from proving and introducing them in evidence if they are competent against the other party. The party calling for books and papers would be sub: jected to great hazard if an inspection merely, without more, would make them evidence in the case. That rule tends rather to the suppression than the ascertainment of truth, and the opposite rule is, as it seems to us, better calculated to promote the ends of justice.

The production of books and papers on notice is the voluntary act of the party. If he refuses it may, as is claimed,'authorize the other party to give secondary evidence of their contents, which the party having possession cannot then answer by producing them. But if they contain facts favorable to the other side, they ought to be disclosed, and if production is refused the party refusing may justly incur the danger of having secondary proof given of their contents.

The claim is also made that the books were competent as original evidence of the entries under the rule making books of account in certain cases evidence in favor of the party keeping them. We think there is no foundation for this contention. The rule which prevails in this state (adopted it is -said from the law of Holland) that the books of a tradesman or other person engaged' in business, containing items of account, kept in the ordinary course of book accounts, are admissible in favor of the person keeping them, against the party against whom the charges are-made, after certain preliminary facts are shown, has no application to the case of books or entries relating to cash items or dealings-between the parties. This qualification of the rule was recognized, in the earliest decisions in this state and has been maintained by the courts with general uniformity. Vosburgh v. Thayer, 12 Johns., 461. It stands upon clear reason. The rule admitting account books of a party in his own favor in any case was a departure from the ordinary rules of evidence. It was founded upon a supposed necessity and was intended for cases of small traders who kept no clerks, and was confined to transactions in the ordinary course of buying and selling or the rendition of services. In these cases some protection against fraudulent entries is afforded in the publicity which to a greater or less extent attends the manual transfer of tangible articles of property or the rendition of. services, and the knowledge which third persons may have of. the transactions to which the entries relate.

But the same necessity does not exist in respect to cash transactions. They are usually evidenced by notes, or writing, or vouchers, in the hands of the party paying or advancing the money. Moreover, entries of cash transactions could be fabricated with much greater safety and with less chance of the fraud being discovered than entries of goods sold and delivered, or of services rendered.

It would be unwise to extend the operation of the rule admitting a party’s books in evidence beyond its present limits, as would be the case, we think, if books containing cash dealings were held to be competent. Parties are now competent witnesses in their own behalf. A resort to books of account is thereby rendered unnecessary in the majority of cases.

We think the ledger was erroneously admitted in evidence, and the judgment below should therefore be reversed and a new trial, ordered.

All concur, except Maynard, J., taking no part


text:
    Julius Gottberg, Ex’r, App’lt, v. The United States National Bank, Resp’t.

      (Court of Appeals,

      Filed February 12, 1892.)

    Executors and administrators—Pledge op assets.
    To put the pledgee of property from an executor upon inquiry as to the question whether the latter is acting for the estate, the facts need not he such as of themselves to establish or compel the conclusion of some wrong purpose; hut if they furnish reasonable ground for believing in the existence of some dishonest intention to misapply the moneys, or that the-borrower is, in the very transaction, applying ittohis own private use, then -the party dealing with the executor becomes responsible to those who are injured.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff.
    Action brought by plaintiff- against the United States National Bank and one John J. Louth, as an executor of the will of Mendlich Gottberg, and also individually, to procure a judgment that six certain, bonds of the St. Paul & Sioux City Railroad Company were the property of the estate; that the bank was not entitled to hold them as owner or as security for a loan to Louth, and that the bank should deliver the bonds to plaintiff or pay to him $6,500 in case a delivery could not be had, with damages for detention.

      B. M Bobinson, for app’lt; Adrian H. Joline, for resp’t

       Affirming 40 St. Rep., 910.

   Per Curiam.

The very careful consideration which this case received at the hands of the learned justices in the courts below renders it unnecessary that we should further discuss its questions. The general term opinion practically adopted the opinion of the trial justice, except in the respect that they do not concur in a statement of the rule that to charge a purchaser or pledgee from an ■executor, he must have had direct evidence that the money was not paid or advanced to the executor for a purpose connected with his administration of the assets, but for a different purpose.

The general term rest the rule of liability upon the foundation ■of such notice as would put a party of ordinary prudence on inquiry, and do not limit it to a notice from facts which disclose as a necessary conclusion a guilty or fraudulent purpose. If the learned trial justice intended to narrow the rule, as the general term understood him to do, which seems from a reading of his whole opinion to be somewhat doubtful, then we agree in the correctness of then- broader statement of the rule. The apparent facts o£ the transaction must be such as to put the intending purchaser or lender upon such inquiry as would suggest itself to an ore!""lardy prudent person. That is, the facts need not be such as ■of themselves to establish or compel the conclusion of some wrong purpose; but if they furnish reasonable ground for believ: ing in the existence of some dishonest intention to misapply the moneys; or that the borrower is in the very transaction applying it to his own private use, then the party dealing with the executor becomes responsible to those who are injured. That seems to be the rule deducible from the cases which have been carefully collected and reviewed in the opinion below.

The judgment is affirmed, with costs.

All concur, except Maynard, J., taking no part.


author: Van Brunt, P. J.

text:
    The People, Resp’ts, v. Samuel Fisher et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)
    Pool selling—Evidence.
    Upon the. trial of an indictment for pool selling it appeared that three minutes before a race at a course in Hew Jersey a detective in Hew York city offered to maké a bet upon a certain horse which the defendant accepted. He gave the detective a ticket with a number and also a slip of paper intended to constitute the pool seller the agent of the better, but which was blank as to names, dates, places and odds, and was not signed by any person. Held, that the jury, from their knowledge of human affairs and in the absence of evidence to the contrary, might infer that it was impossible that the money had been during the three minutes transmitted to Hew Jersey and there actually invested as directed by the detective; and that therefore they might determine that the whole matter was a •cover to avoid the law.

      Appeal from j udgmeiit of oyer and terminer convicting the defendant under the statute against gaming.

      W. F. Howe, for app’lts; McKenzie Semple and B. S. Weeks, for resp’ts.
   Van Brunt, P. J.

The indictment upon which the defendant was convicted charged the defendant and six others in seven counts, as follows:

The'first count charged the defendants with keeping a room for •the purpose of recording and registering bets and wagers.

The second count charged the defendants with being the occupants of a room and knowingly permitting the same to be used for the purpose of recording and registering bets and wagers.

The third count charged the defendants with being the occupants of a room, and therein keeping, exhibiting and employing a device and apparatus for the purpose of recording and registering bets and wagers.

The fourth count charged the defendants with recording and registering bets and wagers on a horse called Bootjack.

The fifth count charged the defendants with recording and registering divers unknown bets.

The sixth and seventh counts each charged the defendants with the felony of pool selling.

On the trial the court withdrew from the jury’s consideration the fifth, sixth and seventh counts of the indictment, but submitted the first four counts, to wit: the offense of keeping a room, being occupants of a room, exhibiting devices and apparatus for the recording of bets and wagers, and recording bets and wagers. The verdict of the jury was a general verdict of guilty as to the -defendant Fisher, and all the other defendants were acquitted.

It is claimed that the evidence was insufficient to justify the submission of the case to the jury, and that the verdict was inconsistent with the theory upon which the case was submitted to the jury. And it is further urged that the acquittal of the other defendants is inconsistent with the finding against the defendant Fisher.

The facts appearing upon the trial were substantially as follows : About one o’clock on the 23d of March, 1891, one Freel, .a detective officer of the police of the city of New York, entered the premises in question known as 33 West Twenty-ninth street •and 1213 Broadway.

On the left wall, as he entered Twenty-ninth street, were seven slates containing the names of a number of horses, and also the word *• Gruttenberg ” (at which place there was a race course), and on the first slate the words : “ First Race; ” on the second the words: “ Second Race;” on the third the words: “Third Race.” In the rear of the room was a stained glass partition in which there were three small windows and a door leading.from the room to the office behind the partition. The men employed about the place made several changes on the slates after having been spoken to by the appellant, and a number of persons went to the window, behind which sat the defendant Jones.

At 1.59 o’clock the detective went up to Jones’ window and told him he wanted to put “$3 on Bootjack straight" In answer Jones said “ 5 to 1; 15 to 3." The detective handed Jones a ten dollar bill, who told him it costs five cents commission. The detective then took a ten cent piece out of his pocket and gave Jones the ten cent piece, and Jones handed back $7.05 with the following paper:

“ 778 original.
“ Please execute for me, on the race track, at the races to be held this day on the grounds of the at Guttenburg, in the
Gloucester, county of, State of and at no other place or time; the sum of , on
but do not, under any circumstances, accept odds in this race at the said race track at a less price than
“ I desire it to be positively and distinctly understood, and for this only do I place in your charge my money, that you place my said money for me only on said horse above mentioned, and at no other place than on the grounds of the said during the progress of the races this day, and for this purpose-1 make you my common carriers. For the expense incurred by you in so placing my said money on the said grounds of said- , I agree to pay you the sum of five cents.”

for what purpose does not clearly appear, as there is nothing whatever to connect it with the transaction testified to except its number, the blanks left in it making it absolutely of no import. Two minutes after two it was announced from the office behind the partition that the horses were at the post, and at seven minutes past two that the race was over, and that the horse “Young Duke ” was the winner. Young Duke’s name was on one of these blackboards. The detective then left, and in a few minutes returned with several other officers, and they arrested the persons found in the place and seized everything in sight. Going behind the partition into the office, the officer saw various of the defendants apparently attending to their duties. All the defendants were arrested and taken to police headquarters, the appellant admitting that he was the manager of the place.

Among other things seized was a file containing 128 duplicates of the paper given to the defendant (except the number marked on the face) among which was one numbered 778 marked 15—3 Bootjack; and also a sheet containing the words “ Guttenberg, First Race, March 23, 1891," which was lying in front of the defendant Spencer, the cashier,, upon which appears the entry “778 15—3” under a column headed “ Bootjack."

Upon this evidence the jury found the defendant Fisher guilty and acquitted the other defendants.

Although the verdict may be incongruous, as the evidence shows the defendant Jones to have been as-guilty as the defendant Fisher, yet it is apparent that the jury found their verdict against the principal, and allowed the instruments by which the principal was violating the law to escape. Because the jury were too, lenient to some oí the defendants is no reason why the appellant should be allowed to go free.

It has been claimed that the evidence in this case is no stronger than that which appeared in the case of the People v. Wynn, 35 St. Rep., 487, where this court held that there was not sufficient evidence to go to the jury to convict the defendant under the statute in question.

And there is no doubt that there was a childish attempt to bring the action of the defendants herein within the ruling contained in the Wynn case. But the probative force of the evidence in tthe two cases is as wide apart as the two poles. In the Wynn ‘-case there was an express refusal to take a bet; and there was a contract tb place the bet upon the track made out with all the particulars, and there was sufficient time in which that contract might have been carried out. In the case at bar the evidence is that the detective stated that he wanted to bet so much money on a certain horse and he was accommodated. The handing out of a paper Containing some printed matter upon it which was absolutely meaningless unless the blanks in it were filled out did not alter in any way the nature of the transaction, although it was, as already observed, a childish attempt to imitate what had been done in the Wynn case.

The only part of that paper that was of any value was the number thereon which put its earmark on the transaction. That this was so is -evidenced by the fact that duplicate tickets with the same number recording the same transaction in the form given by the detective were found, and also the sheet lying before the ■cashier at the time he was arrested. The transaction was had in Hew York city three minutes .before the race commenced, and though it is claimed that there was no evidence to show but that this money was transmitted by telegraph to the race course, yet the jury had the right, from their own knowledge of human events, to determine, in the absence of evidence to the contrary, whether such a thing was possible or not, and if they found it to be impossible to come to the conclusion that the whole was a mere cover for the purpose of violating the law.

It might be just as well .said that if a crime was committed at the Battery on one day an alibi might be proved by showing that the defendant was in the City Hall park the next, in the absence of evidence that it was possible to go from the Battery to the City Hall park within the time embraced within the two events. This is undoubtedly an extreme instance, but it only illustrates the principle that in the consideration of testimony the jury has a right to be governed by their knowledge of human affairs. Distances, geographical positions, the relation of the seasons, are things with which everyone is supposed to be familiar; and in the absence of evidence upon the subject, in the weighing of testimony the jury has a right to be governed by the knowledge which is common to men. And if they were of opinion that it was impossible that this commission could have been executed upon the Gfuttenberg track, they had a right so to find in the absence- of the slightest particle of evidence, or any attempt upon the part of the defendant to prove that anything of the kind had been done.

It is true that a defendant is not bound to prove that he has not committed a crime, but where the circumstances point necessarily towards guilt, if the inferences which naturally follow are not to be drawn, then some evidence tending to a different result must be given.

We have thus the offer of the detective to bet, the acceptance of the wager, and in the books and papers seized unanswerable indications that such bet or wager had been recorded.

As to the claim that there was not sufficient evidence to holde the defendant Fisher, it is sufficient to 'say that he admitted he was the manager of this establishment, exercising supervision and control over it, was behind the doors of the private rooms in which the tickets were sold, and was using a book on the cover of which was written W. U. Telegraph Co, and below “Fisher’s, 33 West 29th Street.” This evidence was clearly sufficient to show that the defendant was the manager of this business, and was the real principal in the commission of the crime charged.

We think upon the whole case, therefore, that the conviction should be affirmed.

Andrews, J., concurs.


author: Barrett, J.

text:
    The People, Resp’ts, v. William F. Dickie, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Forgery—Filling out blank check—Interest.
    The cashier of a firm was intrusted at all times with a certain number of signed checks which were blank as to the payee. They were to be used to pay certain creditors only, and for no other purpose. When one was used it was replaced by the firm. When money was needed for cash items, the cashier was required to draw a special check payable to “ W. F. Dickie, currency,” and have it signed. At a time when no claim of a special creditor was payable, the cm shier filled out one of the blank checks “Pay to W. F. Dickie, Currency, or Order,” endorsed it in blank and obtained the money for own uses. Held, a forgery, and that the intent was sufficiently made out.

      2. Same—Evidence.
    Evidence of a deficiency in general in the accounts of the cashier with the firm is improper upon the question of intent.
    Appeal by the defendant from a judgment of conviction at the general sessions of the peace.

      H. B. Glosson, for app’lt; David Welch, for resp’ts.
   Barrett, J.

The defendant was convicted of the crime of forgery in the second degree. The gist of the offense was the unauthorized filling in of a blank check entrusted to him by his .employers. The material facts as testified to by the complainant, Oscar M. Crego, were these:

Dickie was the cashier of the firm of Russell Crego & Son. As such cashier, he had been for two or three years entrusted with twelve checks, signed by the firm and payable to his own order, but undated and blank as to amount. When one or more of these checks was used its place was supplied, so that Dickiealways had twelve such checks on hand for immediate use. These twelve checks were detached from the check hook and were kept by Dickie in the money drawer. Dickie’s authority with regard to the use of these checks was peculiar. He was authorized always to pay the drafts of an agent of the firm at Elgin, Illinois, also those of a party in Chautauqua county. He was also authorized to pay the freight bills of the different transportation companies in this city. For these payments he was authorized to use the checks in question without any special direction from the firm. For all other payments, however, he was limited to a special direction. He was not authorized to use any of these checks for the payment of current expenses or for the purpose of obtaining ■cash for current expenses or for the payment or liquidation of any claims. When money was required for the payment of employees or other cash items, the custom was, when the money in the drawer was insufficient, for Dickie to'draw a special check for the requisite amount, payable to “ W. F. Dickie, currency,” and bring it (still in the check book and attached to the stub) to Mr. Crego to be signed. The custom also was, when any one of the twelve checks was used to pay drafts or other obligations of the firm, for Dickie to date such check, fill in the precise amount of the draft or other obligation, and then endorse it payable to the order of the creditor of the firm.

Upon the 28th of September, 1889, Dickie took one of these twelve checks, dated it, filled it up for $225, inserted the word “ currrency ” after his own name, so that in place of reading “Pay to W. F. Dickie or order,” it read “Pay to W. F. Dickie, currency, or order,” endorsed it in blank and obtained the money therefor at the bank.

The question is, was this a forgery of the check ? The rule had long been well-settled in England that an unauthorized filling up of blanks in checks, notes, acceptances and such like instruments of a commercial character amounts to forgery. In Rex v. Hart, 7 Car. & P., 652, the prisoner was given an acceptance, blank as to amount, with authority to fill it in for £200. He filled it in for £500. This was held to be forgery, and upon the point being reserved the conviction was sustained hy all the English judges. In Reg. v. Bateman, 1 Cox C. C., 186, it was said that where a check is given with a certain limited authority, the agent is confined strictly within the limits of that authority, and that if he fills in the check with a different amount from that authorized, or if after the authority is at an end he fills it witli any amount whatever, it is clearly forgery. The doctrine of Rex v. Hart was followed in Reg. v. Wilson, 2 Car. & Kir., 527. There the prisoner was authorized to fill in the amount due on a bill for £150 and interest, then to get the check cashed and pay the bill. Instead of doing this, he filled in £250 and retained part of the proceeds, claiming that it was due him for salary. This was held to be forgery. Where the authority is general, a different rule prevails. Thus, in Reg. v. Richardson, 2 Foster & Fin., 343, the clerk had authority to draw checks his employer’s not only to the order of the creditors of the firm, but to his own. order, for such sums as he deemed necessary to pay the cash disbursements of the business. Upon one occasion he drew a check to his own order for £11 10s, the proceeds of which he appropriated. He was acquitted of forgery and put on trial for embezzlement, the learned judge observing that the prisoner “ could not. be convicted of forgery, inasmuch as, having a general authority to draw, he did not necessarily exceed his authority when he drew the check; and that the criminal act, if any, was the subsequent, appropriation of it.”

In that case, however, the distinction is observed, in the statement of facts, that the clerk was not bound always to draw the checks in favor of a particular creditor, but had authority to draw generally and pay the creditor with cash. In the case at bar the jury were authorized to credit Mr. Crego’s testimony, and to find thereon that Dickie had no authority to draw generally and to pay the creditor with the proceeds of the check so drawn, but that his-authority was strictly limited to drawing in favor of each particular creditor for his particular bill. That is, to pay each creditor only by check and to fill in such check only the amount of such creditor’s bill. There was in reality no general authority. It is-true the special authority was not limited to one creditor or to one-specified amount. But there is no distinction in the principle-upon which deviations from specific authority are held to be forgeries. The special authority here extended over several subjects, but each subject stood-by itself and the limitation as to eac-h was clear and well-defined. There was no authority, either gen era! or special, which authorized Dickie, for any purpose whatever, to fill in any one of these twelve checks with a single dollar except to pay the draft or bill of some one of the specified persons or corporations; none, certainly, to fill in a single dollar for his om purposes

In the very able brief which Mr. Closson submits in behalf of the defendant he makes this claim:

“ It is not necessary to argue that forgery can only be committed with a pen, or some similar instrument; and that,. unless the-prosecution can point to some writing on this check and say that, that particular writing in some way added to or altered the legal effect of the check, and that the words or figures so written -were-words or figures Dickie’s pen had no right to put there, Dickie did. not forge the check, whatever he did with the proceeds.”

We agree with this view of the case, but we think the prosecution had a right to go to the jury upon the proposition that the-words “ two hundred and twenty-five dollars ” were words which Dickie’s pen had no right to put in this particular check. There-was no draft or bill before him for that amount at the time he inserted those words. Their insertion was wholly outside of the-authority conferred. Even if a draft from the Illinois agent for $200 had been before him, his authority was limited to that specific sum, and if he had inserted $225 with a view to misappropriating the surplus, he would have been guilty of forgery. ^ Is-he any the less guilty if he inserts the $225 without any bill being: before him and appropriates the whole amount ? There was no general authority as to amount any more than there was as to individuals. The amount was limited to the face of each draft or bill presented, neither more nor less. And the general authority to pay drafts or bills of these particular persons was limited to payment in one particular way, and in that only, namely, by filling in one of the twelve checks the exact amount called for, and delivering such check properly endorsed to the creditor. Thus the authority conferred was the same, in substance, as a special authority to pay each of several persons a varying but liquidated amount, and to so pay it in a manner involving a purely clerical act. To fill in one of these checks, therefore, without regard either to the individuals covered by the authority, or the amount of their claims; in other words, to fill in an arbitrary sum, having no relation whatever to the authority conferred, was a forgery, if done “ with intent to defraud; ” and the insertion of the word il currency,” the blank endorsement, and the drawing of the mane)'f at the bank, were evidences of such intent to defraud.

The principle of the English cases seems to have been general^ followed in this country. Wharton Criminal Law (8th ed.), §§ 671, 672; People, v. Graham, 6 Park., 135; Wilson v. Commissioners., 70 Ill., 46; State v. Maxwell, 47 Iowa, 454; Biles v. Com., 32 Pa. State, 529; State v. Kroeger, 47 Mo., 552; State v. Flanders. 38 N. H., 324. The only cases where a doubt is expressed as to the rule are Putnam v. Sullivan, 4 Mass., 45, and Van Duzer v. Howe, 21 N. Y., 531. These, however, were civil actions upon paper which was fraudulently used, or in which the blank amount was fraudulently increased beyond the sum authorized. They were properly decided upon the estoppel principle, and the doubts which were expressed upon the point in question proceeded upon the mistaken idea that if the paper was forged in the sense of the criminal law, it would be illogical in a civil action to hold the persons who signed it But there is nothing incongruous between a definition of forgery upon which the guilty agent may be punished criminally, and a civil rule that, notwithstanding the forgery, one who signed the paper in blank, entrusted it to such guilty agent and conferred upon the latter the power of defrauding the innocent, shall suffer rather than the victim. We think, therefore, that the appellant’s main proposition is untenable, and if the case stood upon that alone, we should feel constrained to affirm the judgment.

But we think there was error prejudicial to the defendant in permitting Mr. Orego upon his evidence in chief to testify to the discovery of shortage in Dickie’s accounts generally to the amount of about $2,775. This was doubtless admitted upon the question of fraudulent intent, but it had no just bearing upon that question. It simply tended to show that Dickie was a faithless cashier and that for an indefinite period he had been robbing his employers. But under this indictment the fraudulent intent was confined to the particular forgery charged, and that depended not at all upon Dickie’s past misconduct in other matters, but largely upon the purpose with which he obtained the $225 in question.

The methods resorted to by Dickie to procure those $225, the insertion of the word “ currency ” in the check, the fact that no-entry of it appeared in the check book or M the cash book, that, it was not used in whole or in part for the business, that it was-not accounted for in the cash entries of the day when the money was obtained, and his flight almost immediately after the transaction, were all admissible upon the question of intent." But past larcenies by means of false entries, or fraudulent misappropriation of other moneys entrusted to his keeping, were surely not admissible. The proof was not even of offenses of the same nature committed at the same time tending to show a general purpose to-misappropriate the employer’s moneys by similar means. Indeed,, this particular check seems to have been the only one which Dickie used contrary to his instruction. For the following question was put to Mr. Crego and the following answer given :

“ Q. The question of the juror is, taking the check book and adding together all the checks and comparing them with the-vouchers, including those that have not been returned, how does-your bank account stand ? A. There was a difference of this-check of $225, and that only."’

Other points are made by the appellant which we need not. consider. But as the case will probably be tried again, we ought to say that the observation made by the learned judge to the defendant with regard to a certain book was one which was likely . to affect the minds of the jury. The observation was as follows r.

“You know that you kept that book; you know perfectly well what you kept it for; you know perfectly well what it represents,, probably not absolutely and definitely; you could give such information if you meant to; there is no doubt in my mind.”

This was in effect a judicial expression against the candor of the defendant, which, in a balanced case, might turn the scale-against him. Standing alone, and in view of all the facts in this case, we do not think it would be sufficient to justify the granting of a new trial, but it would certainly have been better had the observation been turned' into a question and the defendant, asked why, if he kept the book and was necessarily familiar with its contents, he could not give the information called for.

Upon the point secondly considered, however, the conviction- and judgment should be reversed and a new trial granted.

It seems to me, from an examination of this record, that the-defendant was convicted really because of a larceny, although indicted for forgery, and, as there must be a new trial, it may not. be without profit to consider one point in the case. I think that the defendant’s story that he had authority to fill out the check in question, and that it is not true that the only authority to fill out these checks was to pay the bills of two consignees and those óf transportation companies, is very strongly supported by the fact that the check for $100 has never appeared, and doesnot appear to have ever been used, and that the check for $225 in question was really filled out for the purposes testified to by the defendant. The complaint admits that the necessary disbursements paid by the defendant on that day were greater than the amount of the-$100 check, and the only money that he had to pay them with, so far as appears by the evidence, was the proceeds of the $225 check. It is true it is stated that the defendant had access to the money drawer, but there is no evidence that on this day it contained one cent of money. It is not by any means a clear case, and the story of the complainant is, to say the least, in some of its. aspects, somewhat extraordinary.

Andrews, J., concurs; Van Brunt, P. J., concurs in result.