author: Smith, P. J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. PETER LOUIS OTTO, Appellant.

      Juror — when not disqualified by reason of haring formed an opinion — Code of Criminal Procedure, sec. 376 — morbid propensity to drink — effect of, as a defense for one tried for murder — Penal Code, sec. 23.
    Appeal from a judgment of the Erie County Oyer and Terminer, convicting the defendant of the crime of murder in the first degree, and from an order denying a motion made by the defendant in arrest of judgment.
    The court, at General Term, said: “ The appellant’s counsel contends that the defendant’s challenge for cause, to the juror Algur, was improperly overruled.' The juror was examined on the subject, and he testified, in substance, that at the time of the homicide he read an account of it in the Weekly Commercial, a newspaper published in Buffalo, and talked about it with his wife; that the account which he read told something rof the circumstances; that he had no reason to doubt the truth of the statement, and supposed it was true.
    “ Q. Did it make any impression on your mind respecting the guilt or innocence of the defendant? A. Not particularly at the time; I think not. Q. Believing that to be true, was there no impression formed on your mind respecting the defendant’s guilt ? A. Why, something of one, of course. Q. Can you say whether it would require evidence to remove that impression ? A. Perhaps it would some. Q. Can you say how much evidence it would take ? A. No, I couldn’t tell; I haven’t any formed impression about the matter, not knowing but a little of it; I merely read the notice, until of late I heard it was to be called up. Q. When have you read most lately concerning this case ? A. The last I read of it was this last week; I read a notice in the ‘ Commercial.’ Q. And that revived jour recollection of what you had read concerning the case before? A. I remembered the incident then; yes, sir. Q. You say that you cannot say how much evidence would be required to remove the impression you formed then ? A. No, sir, I cannot. Q. But you are certain that it would require some evidence to remove that impression? A. Yes, sir; more or less. On being examined by the prosecuting attorney, the following occurred: Q. I understand you to say, then, you have a personal opinion regarding the guilt or innocence of the defendant ? A. I never have formed any firm opinion about it; I had my impression at the time I read it only. Q. Do you not think you could sit as a juror in this case and render an impartial verdict according to the evidence? A. Why perhaps I could; yes. Q. That you could lay aside the opinion entirely ? A. I have no firm opinion in the matter. Q. And you could lay aside this opinion or impression ? A. Yes, I should think so. Q. It wouldn’t influence your verdict ? A. I don’t know why it should; I have no opinion, only I read the notice of the matter and at the time I read I thought I had my opinion of it.
    “ By the Court. — What he wants to know now is whether you would be able to dispossess your mind of that opinion and determine the case without being biased or influenced by any opinion which you have. A. Well, I don’t know; I don’t know how deep the impression I have is; I don’t think it would affect me, but it might; 1 couldn’t say. Q. What is your belief on that subject. A. I have my opinion, you know. Q. What is your belief as to whether you could disten to the evidence and decide the case without being influenced by any opinion? A. I have no opinion formed that would influence me in the case in my consideration of the evidence or in the verdict. The challenge of the defendant’s counsel for cause was then overruled and the defendant’s counsel excepted.
    “ Section 376 of the Code of Criminal Procedure provides, among other things, that ‘the previous expression or formation of an opinion or impression in reference to the guilt or innocence of the defendant, or a present opinion or impression in reference thereto, is not a sufficient ground of challenge for actual bias to any person otherwise legally qualified, if he declare on oath that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied that he does not entertain such a present impression or opinion as would influence his verdict.’
    “ In view of the testimony given by the juror, and especially his last answer above stated, we think the trial judge was warranted in overruling the challenge. The following cases, some of which were decided under the acts of 1872 and 1873, the substance of which, so far as this point is concerned, is incorporated in the section of the Code of Criminal Procedure above quoted, are authorities for this position. (Thomas v. People, 67 N. Y., 218; Phelps v. People, 72 id., 334; Balbo v. People, 80 id., 484; Cox v. People, Id., 500; People ex rel. Phelps v. Oyer and Terminer, 83 id., 436; Abbott v. People, 86 id., 460.) There were facts in the cases of Greenfield v. People (74 N. Y., 277) and of People v. Casey (96 id., 115) not existing in this case, which the Court of Appeals thought took those cases out of the line of authorities above cited. *****
    “ The appellant’s counsel also insists that the court erred in refusing to charge, as requested, that ‘if the jury are satisfied the intoxication of the defendant was the result of a morbid desire for drink, the defendant must be acquitted.’ The court replied to that request: ‘No, gentlemen, I cannot charge that, but, on the contrary, I have read you this twenty-third section, which provides that a morbid propensity to commit prohibited acts, existing in the mind of a person who is not shown to be incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor.’ The section referred to is the twenty-third of the Penal Code, and it seems to justify the refusal to charge as requested.”

      E. A. Hayes, for the appellant.

      Edward W. Hatch, district attorney, and George T. Quinby, for respondent.
   Opinion by

Smith, P. J.;

Barker and Bradley, JJ.,

concurred.

Conviction and judgment affirmed, and the case remitted to the Court of Oyer and Terminer of Erie county to proceed therein.


source: Caselaw Access Project

author: Bradley, J.;

license: Public Domain

text:
    HENRY TOZER, an Infant, by Guardian, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Action to recover damages for injuries occasioned by the defendant’s negligence— opinions of doctors as to the probability of the plaintiffs permanent recovery — as to ■ the probability of the recurrence of brain troubles — objections to evidence unavailing unless the error be specifically pointed out.

    Appeal from a judgment, entered on a verdict rendered at the Genesee Circuit, and from an order denying a motion for new trial made on a case and exceptions.
    In the evening of the 17th June, 1881, the plaintiff, then of the age of nine years, and his brother, aged seventeen years, in a wagon drawn by a horse driven by the latter, were proceeding southerly in Cemetery street, in the village of Batavia, across the track of the defendant’s railroad, and were struck by the tender of what was known as a pusher locomotive engine, which was somewhat rapidly moving backwards on one of the tracks. The plaintiff was seriously injured and his brother was killed. There were at that place five parallel tracks of the defendant’s road, and the accident occurred on the fourth track from the north. The evidence justified the conclusion that the injury was occasioned by the negligence of the defendant and without fault on the part of the plaintiff. The plaintiff recovered a verdict of $8,000.
    The main questions on appeal arose on exceptions taken to the admission of testimony of witnesses. It appeared that the plaintiff was injured in the' head, right leg, right arm, and elsewhere ; that the injury to his brain was such that he was utterly Unconscious for three weeks after it occurred and semi-unconscious for three weeks after that, and for weeks thereafter his talk was confined to monosyllables ; that the injury to the brain was of a permanent character, and such as to impair his memory and hearing; that before the injury he was fond of his books, attended school,, learned rapidly, and was a good scholar and had a good memory; that since the injury he has suffered with, roaring noises in his head, impairment of vision, could not learn or remember his lessons, and study caused an uncomfortable feeling in his head; that since the injury he was fretful, nervous and easily excited, and was not so before. The evidence apparently had relation to his condition up to the time of the trial, which was in June, 1882, a year after the injury. A doctor was ashed to state whether there was a probability that some disease of the brain, even after the lapse of a year, from such an injury and apparent recovery would carry oil the person so injured, and he answered that such things do occur. He is then asked: “ State whether it is probable they may occur in this case, or whether you would expect that to occur, or whether there would be any more than a remote liability ? ” And he answered: “ There is a liability of their occurring.” The defendant’s objection to this answer being overruled, exception was taken. He is then asked: “ State whether there is a probability from such an injury, of disease of the brain, manifesting itself at a remote period, years after the injury, and, if so, tell us what you know on that subject ? ” He answered: “I do not think there is a probability of its occurring; it may occur; it would be more likely to occur than as though he hadn’t received the injury.” “ Q. State whether ordinarily this irritability and nervousness after a lapse of a year might assume a progressive form and grow worse instead of better? A. That would be rather difficult for me to say; taking into consideration the boy’s age and his natural inherited qualities, he probably will improve somewhat, and perhaps entirely recover..” To the last two questions objections were respectively made, overruled, and exceptions taken. He was re-examined by plaintiff, as follows: “ Q. You may state the probability, and if there is any, of insanity following injuries of the head of the character you have described. A. I wouldn’t want to answer the question that way, and say it was probable because a person had injury to the brain that he would become insane. I say they may become insane from injury to the brain. Q. State for what period of time such, a thing may be apprehended? A. There is no period of time. Q. Does such a thing ever follow an apparently complete recovery ? A. I think such cases are recorded; I never have had any occur in my practice; it is generally conceded I think by physicians that such things may occur.” Objections and exceptions were taken to the reception of answers to those several questions.
    Another doctor testified that if anything should result from this injury to the brain of the plaintiff it would indicate itself by loss of memory and periods of undue excitement and impairment of vision to some extent, and possibly the hearing. “ Q. State what you think would be- the probable result ? A. I don’t know but that covered the ground; I don’t know that anything more might be expected and probably happen. Q. You may state whether there may be an apparent complete recovery when there is not an absolute recovery ? A. I can say there can be an apparent freedom of symptoms at one particular time, and then they may be redeveloped at an interval. Q. They may be redeveloped after years? A. Possibly.” The defendant’s objections to those several questions were overruled and exceptions taken.
    The court at General Term said: “ It is contended by the defendant’s counsel that much of this evidence offered and received was incompetent because it did not have the requisite character of certainty, or even of probability, in respect to future results of the injuries received by the plaintiff, and that it may have had the effect to enhance the damages found by the jury. The plaintiff had the right to prove damages both past and future as the result of the injuries suffered by the plaintiff, but the evidence on that subject must be such as may advise of the necessary, probable and expected consequences of the condition in which the injury placed the plaintiff as distinguished from those that may be deemed merely possible or speculative. (Strohm v. N. Y., L. E. and W. JR. JR. Co., 96 N. Y., 305.) There may be results which naturally follow physical injuries and may reasonably be apprehended from the condition occasioned by them. The judgment of men skilled in medical science is necessarily resorted to and competent as evidence in that respect, and the purpose of that referred to was to show the extent of the injuries and their effect upon his future health and condition.. So far as the questions put to those witnesses were competent there was no error in permitting them to answer.
    “ The competency of the evidence given in response to them was a question to be presented by motion to strike out, or upon request to charge. The inquiry of the witnesses for the probable consequences of the injuries, we think, was competent, and that was the character of most of them to which objection was taken. That is one method of expressing what may reasonably be expected to follow as the natural effect of the causes upon which the judgment called for is predicated, and furnishes evidence as definite in quality as ordinarily is given by opinions of the future consequences of brain and other physical injuries. And while the entire correctness of opinions may not be demonstrable, and they may not have the merit of absolute certainty, they constitute the best and only means of furnishing proof on the subject for the consideration of the jury, who are to give such damages for the future effects of the injuries, as are reasonably certain. {Bud v. N. Y. O. R. R. Oo., 31 N. Y., 314; Filer v. JY. Y. Q. R. R. Oo., 49 id., 42, 45.)
    “ The following questions considered alone and independent of any other examination of the witnesses' would seem to be incompetent. ‘Does such a thing ever follow an apparently complete recovery?’ ‘You may state whether there may be an apparent complete recovery where there is not an absolute recovery ? ’ ‘ May they (symptoms) be redeveloped after years ? ’
    “ These questions called for a possible condition which might follow injuries and appear in future as a consequence of them. They were not in terms applied to the plaintiff or his injuries, but were in effect inquiries whether sometimes there was or not a deceptive condition of recovery followed by a reappearance of results of previous injury. The evidence given in response to those questions did not furnish any legitimate information. And treating it as incompetent, the question arises whether the objections were such as to produce error. The objections taken were general. As a rule the grounds must be specific, to which there are exceptions, and it is contended that these come within the latter. It was competent to take opinions of the witnesses on the subject of the extent and future consequences of the injuries in question. The witnesses, as will be assumed, were competent to express them.
    “ And the plaintiff might have provea, if he could, that the nature of the injuries received by him were permanent in character-, and that his apparent recovery could not be real or substantial. While the opinion asked for was irrelevant, it was not incompetent to call for the judgment of the witnesses relating to the effect which would follow his injuries. It cannot, therefore, be said that the objection could not have been obviated if the specific ground of objection had been stated. (levin v. Russell, 42 N. Y., 251, 255-256; Daly v. Byrne, 77 id., 182-187; In re Grosby v. Day, 81 id., 242-245 ; Ward v. Kilpatrick, 85 id., 414-417.)
    “Nor can it be said that the evidence was, in its essential nature, so incompetent that no question was admissible on the subject involved in it as relating to the plaintiffs condition. The difficulty was in the form of the question, and in calling for a speculative opinion rather than one based upon his case, applicable to him and to the consequences which, in the judgment of the witnesses, would follow. These objections do not come within the exception to the general rule, which requires a specific ground of objection to support error. {Bergmcmn v. Jones, 94 N. Y., 51; Quinby v. Strauss, 90 id., 664; Siemens v. Brennan, 79 id., 255; Tooley v. Bacon, 70 id., 34.) ”

      George O. Greene, for the appellant.

      Myron H. Peck, Jr., for the respondent.
   Opinion by

Bradley, J.;

Smith, P. J., and Babkee, J.,

concurred.

Judgment and order affirmed.


text:
    MICHAEL NEWELL, Respondent, v. EDWARD H. BUTLER, Appellant.

      Bill of particulars in am action for libel — a party cannot be compelled to disclose Ms ' evidence — a bill of particulars camnot be required as to matters pleaded only in mitigation of damages.

    Appeal from an order of the Erie Special Term, directing the defendant to furnish a bill of particulars of a portion of his answer.
    This is an action for damages for an alleged libel concerning plaintiff published in defendant’s newspaper, the “ Buffalo Evening News.” The answer admits the publication, but contains the following allegations in mitigation of damages, “ that each and all of the articles so alleged to have been published of and concerning said plaintiff, were published in good faith as a matter of news, concerning an individual whose citizenship had been frequently called in question, and concerning which an action was then pending in the Supreme Court of this State, and who was then holding a public office of great importance, and that as to said plaintiff said defendant has no evil or malicious intent. Defendant further alleges that at the time of the publication of said article referred to in said complaint, it was well known and generally understood that said Michael Newell, this plaintiff, was born in Ireland, and that neither he nor his parents had ever been naturalized under the laws of the United States, and he was then under bonds to answer to a charge of holding a public office, being an alien, and it was at that time reported to the office of the Buffalo Evening News, by persons not connected therewith, whom defendant believes to be reliable persons, that criminal warrants were about to be issued against said Newell on behalf of the State of New York and the United States for illegal voting, and the same was published as a matter of news and not otherwise, and at the time of said publication the agents and servants of defendant believed the same to be true.” The order appealed from requires the defendant, within ten days after service of a copy thereof, to make and serve upon plaintiff’s attorneys “a bill of particulars, duly verified, stating the name or names, and place or places of residence, or other definite description of the person or persons who reported to the office of the Buffalo Evening News, that criminal warrants were about to be issued against the plaintiff, on behalf of the State of New York or the United States, for illegal voting, and also specifying the report or reports so made.”
    The court at General Term said: “ The appellant’s counsel insists that no bill of particulars should be required concerning the matters set up in the portion of the answer to which the order appealed from is directed, since those matters were expressly pleaded in mitígaüon of damages only and not in justification, for the reason that, under section 536 of the Code of Civil Procedure, if no answer had been interposed at all, and the defendant was in default for want thereof, he would be entitled to prove in mitigation all the matters alleged in the portion of the answer referred to before a sheriff’s jury called for the purpose of assessing damages; that it would not have been necessary to give plaintiff any information whatever concerning the matters he desires in his moving papers, nor would he have had any information that they were to be proven,, and that therefore the mere fact that defendant has given him notice of what he expects to prove in mitigation of damages should not entitle him to a bill of particulars. There is much force in this argument, but for the purposes of this case it is not necessary for us to pass upon the point contended for, namely, that a bill of particulars should not be required in reference to matters pleaded in mitigation of damages only, for we are clearly of the opinion that the order is erroneous in that it calls upon the defendant to disclose evidence of the facts alleged in his answer, and not to furnish additional or more definite facts of which it is proper that the plaintiff should be apprised. As we have said in the case of Ball v. Tice JEvenvng Post Publishing Comggam/y, decided at the present term, the result of the numerous reported adjudications relating to the scope and nature of a bill of particulars is that i.ts only proper office is to give information of the specific proposition for which the pleader contends in respect to any material and issuable fact in the case, but not to disclose the evidence relied upon to establish any such proposition. Where the original pleading itself states the propositions or facts relied upon so specifically and particularly, as that to require the party pleading to give further information in reference thereto, would be to force him to disclose the evidence which he expects to produce to support them, a bill of particulars is uncalled for. The answer as it stands states the time when the information upon which defendant relies in mitigation of damages was given, namely, at the time of the publication of the article referred to; it states the place where such information was given, namely, the office of the Buffalo Evening News; it states the report or reports made, namely, that criminal warrants were about to be issued against said Newell, on behalf of the State of New York and the United States, for illegal voting; and it states that such reports were made by persons not connected with the newspaper, and that the defendant believed them. Who these persons were is mere matter of evidence, and the order appealed from seems to serve no other purpose than to require the defendant to disclose the names of his witnesses.

      “ We are of the opinion that the order was improvidently granted, and should he reversed, with ten dollars costs and disbursements,, and the motion should be denied.”

      Porter Norton, for the appellant.

      Day ds JRom&r, for the respondent.

       Reported, ante, p. 11.

   Opinion by

Smith, P. J.;

Barker and Bradley, JJ.,

concurred.

Order reversed, with ten dollars costs and disbursements, and motion for bill of particulars denied.


author: Barker, J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHARLES E. UPTON, Appellant.

      Trial of a person accused of crrime — all questions of fact should be left to the jury — not more them one sepa/i'ate and distinct crime can be charged in an indictment— Code of Criminal Procedure, sec. 278 — the objection should be taken by a demurrer— i Code of Criminal Procedure, sea. 323, sub. 3 — and is waived by a plea of not guilty — Id., sees. 331,464 — when an indictment is defective in failing to sufficintly identify the property taken — the objection is waived if not taken by a demurrer — so as to afailwre to set forth the value of the property taken.

    Appeal from a judgment, entered on a verdict rendered at the-Monroe Oyer and Terminer, convicting the defendant of the crime of knowingly overdrawing his bank account, and thereby wrong fully obtaining the money, notes, drafts and funds of such bank, he being at that time its president. He was sentenced to imprisonment in the Monroe County Penitentiary for the period of six months. The indictment contained five counts, in each of which a separate ind distinct offense was set forth as having been committed on dif ierent days, in taking money in different sums. In the first count it is charged that the overdrawing was on the Ith day of December, 1882, in the sum of $23,000; in the second, as occurring on the eleventh of December, $7,000; in the third, on the eleventh, in the sum of $30,000; in the fourth, on the eighteenth, in the amount of $18,000; in the fifth, on the nineteenth, in the sum of $23,638.16.
    The verdict, as rendered and recorded, is in this form: “ The jury find the defendant guilty of the misdemeanor charged in the third count in the indictment; that they find the defendant guilty of the-misdemeanor charged in the fifth count of the indictment, and that they find the defendant not guilty of the charge in the first, second and fourth counts in the indictment.”
    The City Bank was organized under the State banking laws, and ceased to do business at the close of banking hours on the 19th of December, 1882, being then largely insolvent. The indictment was framed under section 600 of the Penal Code, which went into effect on the 1st day of December, 1882.
    The court at General Term, after reviewing the charge by the justice presiding at the trial, and the evidence in the case hearing upon the question as to whether or not the defendant was entitled to have added to the credit appearing in his individual account upon the hooks of the hank the proceeds arising from the discount of certain notes, indorsed for his accommodation by one Warner, which proceeds would, if credited te his account, have rendered it good at the time he was charged with overdrawing it, said: “ By the charge as made, and the refusal to charge as here requested, the jury were prohibited from allowing the defendant a credit in his account forj the proceeds of the notes, and were not permitted to pass upon the' question as to the arrangement actually made with the other officers of the bank previous to receiving the Warner notes, nor as to the use made of the proceeds at the time they were turned over to the bank. When the trial court assumed to decide the question whether or not the defendant was entitled to a credit for the proceeds of the notes, we think it usurped the province of the jury, and gave a construction to the evidence susceptible of a different interpretation and which it was the exclusive right of the jury to determine. On the trial of a citizen, charged by indictment with a violation of the criminal law, the court cannot instruct the jury, as to the verdict they shall render; they are the sole judges of the question of his guilt or innocence. It is equally beyond the province of the court to decide as to the truth or falsity on any pertinent question •of fact, raised on the trial, which the evidence tends to prove, however strong and convincing it may appear to be to the mind of the court, in support of either side of the question. If there is no real conflict in the evidence there remains the question of •credibility of the witnesses upon which the jury must pass.
    “ In the case now before us, the court determined the fact that the proceeds of the Warner notes were applied on the defendant’s indebtedness to the bank, other than his indebtedness as it appeared on the books of the bank, the day these notes were received and accepted by the bank. The question how the avails of the notes should be applied, depended on the evidence of witnesses called by the prosecution, some of whom must have believed that the defend ant by his miscouduct in management of the affair of the bank had greatly wronged and injured them personally. It is very natural to suppose that they testified with some ill feeling towards the accused. Their evidence on this subject consisted chiefly in a narrative of the oral statements and representations made to them by the defendant, before and at the time the Warner notes were delivered over to the bank for its use.
    “ It is the true theory and fundamental principle of the common-law, in trial of criminal cases, for the court to adjudicate upon all questions of law, and for the jury to adjudicate upon all questions of fact. (Commonwealth v. Anthes, 5 Gray., 185; Duffy y. The People, 26 N. Y., 588; McKenna v. The People, 81 id., 360; Howell v. The People , 5 Hun, 620; S. 0., 69 N. Y., 607.) In BushnelVs Gase (Yaughan, 135) it was very pertinently and forcibly said: 1 For if the judge from the evidence shall by his own judgment first resolve upon any trial what the fact is, and so-knowing the fact, shall then resolve what the law is and order the jury penally to find accordingly, what either necessary or convenient use can be fancied of juries, or to continue trials by them at all.’

      “ The citation of authorites no less direct than pertinent might be indefinitely multiplied. This ancient maxim of the common law never diffeult to comprehend or to apply, has recently been made the subject of legislative declaration, and it is now provided in sections 419 and 420 of the Code of Criminal Procedure, that on the trial of an indictment all questions of fact are to be decided by the jury and the court must if requested by the defendant specially c inform the jury that they are the exclusive judges of all questions of fact.’
    “ Many of the other rulings made on the trial were excepted to and argued on this appeal, but we do not deem it necessary to consider any of them except those which bring up questions bearing upon the form and sufficiency of the indictment.

      “ It was claimed tliat it was error to require the defendant to go to trial on the separate counts, and permitting a verdict of conviction to be rendered on more than one of them, as it is not permissible to charge more than one separate and distinct crime in the indictment.
    “We think the defendant waived the objection now made by appearing and entering a plea of not guilty. This plea was made on the 12th of June, 1883, the day on which the defendant was arraigned in the Oyer and Terminer. On the ninth of July, the day the trial began, upon the defendant’s own affidavit and those of his counsel seeking to excuse the omission on their part in not demurring to the indictment, on the ground that more than one offense was charged therein, the defendant asked the leave of the court to withdraw his plea of not guilty and for permission to interpose a demurrer, which application was denied. It was within the discretion of the trial court to grant or withhold that favor, and after judgment on a verdict of conviction this court has no power to review this exercise of discretion vested in the Oyer and Terminer. The indictment was subject to the objection that it charged more than one offense, in violation of the prohibition contained in section 278, and for that reason was demurrable. (Sub. 3, § 323.) The objection of misjoinder can only be taken by demurrer and cannot be raised on the trial or on a motion in arrest of judgment. (Secs. 331, 464.) The provisions on this subject are imperative and cannot be disregarded by the court. Prior to the Code the joinder of several distinct misdemeanors in one indictment was not a cause for a reversal of a judgment when the sentence was single and was appropriate to either of the counts upon which the conviction was had. (People v. Liscomb, 60 N. Y., 559; PoUnsld y. The People, 73 id., 65.)
    “ The judgment pronounced on the conviction in this case was no greater than could have been given by the court for one offense. (Penal Code, § 15.) By omitting to object to the misjoinder at the time and in the manner provided by the statute, the defendant must be regarded as consenting to be put upon his trial for the several offenses charged in the indictment, and to have the question of his guilt on all the counts disposed of on one trial and by one jury. We cannot see how the defendant has been prejudiced or how he can be, on another trial, by investigating the several charges together.
    “ An objection is made, also, to the sufficiency of the indictment, because of its uncertainty arising from the alleged insufficiency in the description of the property obtained from the bank by means of the overdraft, as charged in the several counts. The property is described therein as £ the money, notes, drafts and funds of the bank,’ and the identity of the things taken is not aided by any other description contained in the indictment. The offense, as defined by the statute, is predicated upon an overdraft whereby an officer of a bank wrongfully obtains £ the money, notes or funds of the bank.’ We are of the opinion that, in this particular, the indictment would be adjudged bad if tested by the common-law rule of pleading as it existed prior to the adoption of the Criminal Code. We are also of the opinion that, tested by the statutory rule as it now exists, it would be adjudged bad if timely objections had been interposed by demurrer. In the system of procedure, now in force in criminal cases, all technical questions and formal defects appearing upon the face of the indictment must be taken by demurrer and cannot be raised on the trial, or on a motion in arrest of judgment, and the only questions which can be presented after conviction are for a cause affecting the jurisdiction of the court or that the facts stated do not constitute a crime. (Code of Criminal Procedure, secs. 323, 331.) In each of the counts the facts stated do constitute a crime. The objection now under consideration relates to the sufficiency of the description of the personal property charged to have been appropriated by the defendant to his own use. The charge is positive that the defendant did obtain money, notes, drafts and funds belonging to the bank.
    “ [n this State demurrers in criminal cases have seldom occurred, because prior to the Code the defendant might have taken advantage of the defects on the trial, or on a motion in arrest of judgment, with the same effect as he could upon a demurrer. The manifest purpose of the statute was to require formal objections to be taken before putting the people to the expense of a trial on the facts, and not to embarrass or take away from the defendant the right to obtain the opinion of the court upon the sufficiency of the indictment, but requiring him to present the questions intended to be presented by demurrer.

      ■“In Massachusetts the same rule of practice prevails, based upon a statute which provides that objections to an indictment for formal defects, apparent upon its face, shall be taken by demurrer, or on motion to quash before trial, and not by motion in arrest of judgment, unless for a cause affecting the jurisdiction of the court. (Mass. Stat. of 1864, chap. 250, secs. 2 and 3.) Under this statute it has been held that an indictment for larceny cannot be objected to for informality in the description of the goods stolen after the trial commenced. (Commonwealth, v. O' Connell, 12 Allen, 451.) In that case it was charged that the defendant, on a day and at a place named, did steal and carry awaye a quantity of bank bills, current within this Commonwealth, amounting together to one hundred and fifty dollars, and of the value of one hundred and fifty dollars.’ And it was held that, as the objection was not raised before the jury were impánneled, the defendant was not entitled to the benefit of any formal or technical defect in the mode of the allegation or description of the property.
    “ Under the same statute it has been held that an indictment for stealing goods, which does not aver that they were taken and carried away, is a formal defect only, and cannot first be raised on a motion in arrest of judgment. (Green v. Commonwealth, 111 Mass., 417; see, also, as bearing on the same subject, Commonwealth v. Leg assy, 113 id., 10; Commonwealths. McGovern, 10 Allen, 193.)
    “ The indictment here does not set forth the value of the property acquired by the defendant by means of the overdraft. Such an averment is necessary to constitute a perfect pleading, and is usually inserted in indictments charging offenses of this character. The omission to make the proper averment may be taken advantage of by the defendant at the time and in the manner provided by the statute. The neglect to do so constitutes a waiver undér the present system of procedure. The defect thus pointed out, is, as we think, of a formal character, as the statutory offense is not made to depend on the value of the money, notes or funds, wrongfully acquired by the defendant by means of the overdraft; nor does the degree of punishment imposed by the statute depend upon the extent of loss suffered by the bank. The act charged in the indictment constitutes a crime, and is stated with sufficient certainty so as to enable the court to pronounce judgment upon a conviction, according to the right of the case, and it should therefore be maintained. (Sec. 284, sub. 7, Code of Grim. Pro.)
    “ The judgment and conclusion reversed, new trial awarded upon the indictment, and the proceedings are remitted to the Oyer and Terminer of Monroe county, with directions to proceed thereon according to law.”

      M. W. Cooke and Raines Brothers, for the appellant.

      William F. Cogswell, for the People.
   Opinion by

Barker, J.;

Smith, P. J., Haight and Bradley, JJ.,

concurred.

Judgment and conviction reversed and new trial ordered and proceedings remitted to the Court of Oyer and Terminer of Monroe county, with directions to proceed thereon.


text:
    MARY L. PARKHURST, Appellant, v. EDWARD HIGGINS and MARGARET HIGGINS, Respondents.

      Evidence — declarations of a mortgagee as to the consideration of the mortgage — admissibility of such declarations as against his assignee.

    Appeal from a judgment in favor of the defendants, entered on the report of a referee.
    This action was brought to foreclose a mortgage upon about twenty acres of land in the town of Elma, Erie county, executed by the above named defendants, to Caleb D. Higgins, dated the 2d day of April, 1870, conditioned for the payment of the sum of $2,500, in one year from' date, which sum was stated in the mortgage to be for the purchase-money of the premises therein described. The mortgagee died on the 28th of February, 1878, leaving a will by which the said mortgage was bequeathed to his wid ow, Mary Higgins, and she died on the 16th of February, 1882, leaving a last will and certain codicils containing certain directions and bequests relating to said mortgage, by virtue of which the said plaintiff, Mary L. Parkhurst, as residuary legatee, became entitled to the same, and in pursuance thereof the executor named in said will subsequently assigned the said mortgage to the plaintiff as such residuary legatee, no money consideration moving from the plaintiff to the executor for such assignment. The defendant Margaret Higgins, is the wife of the defendant Edward, and the said mortgagee Caleb D. Higgins, was his elder brother. The referee found that there was no consideration for the execution or delivery of said mortgage, and that the same was not executed or delivered for the purpose of securing any sum whatever to the said Caleb; that at the time of the execution and delivery thereof, it was agreed by Caleb and Edward that as between them said mortgage should have no validity or effect, and that Caleb should never collect the same or any part thereof, and that it was never his intention to do so; that the amount stated in said mortgage as the sum secured thereby was fixed at $2,500, for the purpose of having it appear that said premises were incumbered for their full value, in case Edward should attempt to sell, dispose of or incumber the same, and for no other purpose, and the same was so understood by Edward and Caleb at the time of the execution and delivery of said mortgage. The referee further found that nothing whatever was due to the plaintiff upon the mortgage.
    The court, at General Term, after considering other questions, said: “ Testimony was given on the part of the defendants, of declarations made by Caleb Higgins at the time of the execution of the mortgage, and also prior and subsequent thereto, with reference to the object, purpose or consideration of the mortgage. The plaintiff’s counsel objected to proof of any declaration not amounting to an agreement between the parties, as immaterial; also to any parol proof on the part of the defendants to contradict the mortgage, and also to any declarations of the mortgagee against the plaintiff. These objections were overruled and the plaintiff’s counsel excepted. We think there was no error in the rulings. It was competent to show by parol the actual purpose and consideration of the mortgage and the fact that it was without consideration. (Anthony v. Harrison, 14 Hun, 217; S. 0., affirmed, 74 N. Y., 613; Cady v. Jennings, 17 Hun, 214; Produce Bcrnh v. Bache, 30 id., 351.) The declarations of the mortgagee on that subject were properly received as against the plaintiff, the latter not being a purchaser for value, but her claim being merely as a privy by representation through the mortgagee. (Ivat y. Finch, 1 Taunt., 141; Smith y. Smith, 3 Bing. [N. 0.], 29 ; 1 Gr. Ev., § 189; Ton Sachs x. Kretz cmd ors., 112 N. Y., 548.) The plaintiff not being a purchaser for value, the declarations of the mortgagee were admissible the same as if the mortgagee were living and prosecuting the present action, in which case his declarations tending to show that the mortgage was without consideration would be admissible if made at the time of the execution of the mortgage, or while the parties to it were negotiating in respect to it, or at any time subsequent thereto, the mortgagee continuing to hold the mortgage till the time of his death.
    “In Paige v. Gagwin (1 Hill, 361), and other like cases, the party against whom the declarations of the prior holder were offered was a purchaser for value.
    “ The case of Hutchins v. Hutehvns (98 N. Y., 56), cited by the appellant’s counsel, seems to be an authorirty for the position that the declarations of a former owner of property made by him to a stranger, before or after the time when he held title, do not bind his successor in interest, even where such successor is not a pur chaser for value. In that case, the declarations of a grantee in a deed in fee were offered to show that it was the intention of the parties that such grantee should acquire no rights under the deed, or that he should reconvey on request of the grantor without consideration. It was held that parol evidence was inadmissible for that purpose, and particularly evidence of declarations made by the grantor, to a stranger, before he acquired title to the property, as to his intention and motive in acquiring it. In the present case, however, as we have seen, it was competent to show by parol that the mortgage was without consideration. The only declarations made by Caleb, prior to his purchase of the farm, proved in the case, so far as we have discovered, were declarations made by him to Edward and his wife, or to Edward alone, when they were negotiating as to the terms of the arrangement by which the property should be secured to Edward as a home for himself and his wife. The case of Hutchins is not an authority against the admission of those declarations, and we think they were properly received.
    “ Certain declarations made by the wife of Caleb, before she became the owner of the mortgage, were objected to. They, however, were parts of a conversation, between her and her husband while he owned the mortgage, and were necessary to show the meaning of what was said by him in the conversation.”

      Ford eft Ferguson, for the appellant.

      Tabor (ft Sheehan, for the respondent.
   Opinion by

Smith, P. J.;

Barker and Bradley, JJ.,

concurred.

Judgment affirmed, with costs.


text:
    NATHAN CARPENTER as Administrator, etc., of CHARLES CARPENTER, Deceased, Respondent, v. THE BUFFALO, NEW YORK AND PHILADELPHIA RAILROAD COMPANY, Appellant.

      Action to recovar damages for a negligent hilling — what faatsarreirfSe considered by the jury— they must be based upon the evidence laid before them — when a verdict will be set aside as excessive and not justified by the proofs.

    Appeal by the defendant from a judgmenh'in favor of the plaintiff, entered on a verdict for $4,000 rendered at the Erie Circuit, and from an order denying a motion for a new trial made on a case and exceptions.
    The action was brought to recover damages alleged to have been sustained by the death of the plaintiff’s intestate who was alleged to have been killed by the negligence of the defendant.
    On the 5th day of January, 1884, the plaintiff’s intestate was killed at a highway crossing of the defendant’s railroad in the town of Wales, Erie county.
    The court at General Term, after holding that the evidence was sufficient to sustain a verdict in favor of the plaintiff, said :
    “ The learned counsel for the defendant contends that the amount of the verdict is excessive. The deceased was an unmarrried man aged thirty-three years, of good habits and industrious.
    “ He lived with his father and worked on the farm of the latter, and had done so from his boyhood. This is all that appeared except that he had two brothers also then living with their father on the farm which was not a large one.
    “ The deceased usually drove the team. The age and condition •of the father did not appear, nor was there any evidence given of ■any arrangement between him and his father in respect to his service. The recovery was §4,000.

      “ The father is the sole next of kin, and the recovery is for his benefit. (2 R. S., 96, § 75, sub. 7; Code Civ. Pro., § 1903.)
    “ The contention on the part of the defendant is that nothing appears to support the conclusion that the father has suffered any pecuniary injury by the death of his son within the meaning of the statute. (Code Civil Pro., § 1904.) Since the right of action in such cases was given by statute the question of damages and the basis upon which they may be allowed have many times been in the courts and had consideration. The estimate of them does not necessarily depend upon the pecuniary condition of the next of kin as distinguished from the loss suffered, nor are they dependent upon a legal duty or obligation of the deceased during the time of his life or in the future if he had continued to live. While the injury must be pecuniary merely and the damages ascertained from the evidence, their sources may not be in the loss, impairment or destruction of any established legal right, but in the deprivation of what reasonably may be or may have been expected, by those for whose benefit the recovery is had, from the continuance of the life of the deceased. Nor are they confined to the present loss or injury, but may include such as the jury may upon the evidence believe and find will in the future result from the death as the proximate cause of it. The prospective injuries may be in the loss of aid, care and attention, whether by services and money or either, and by advice, direction and protection or either in business, whether for purposes of accumulation or preservation of the estate of the next of kin. In fact ‘ the statute has set no bounds to the sources of those pecuniary injuries.’ There may be difficulty in finding support for the estimates made in any well defined rule of reasoning or in the logic of the facts presented by the evidence, but that is usually for the jury to demonstrate by their verdict only, in finding which they are required to keep within the limit, in respect to amount, prescribed by the statute.
    “These damages are found in the natural and rational consequences which in the judgment of the jury have resulted, and may, and therefore will, result to the next of kin when such alone are the sufferers, of those named in the statute as the beneficiaries of the recovery. They are not susceptible of direct proof, and no. evidence of actual injury is necessary to support an action other than such as may show the relation and situation of those who may be entitled to the fruits of the remedy. The amount of recovery is-dependent much in the ability of the deceased in his lifetime, or that which he might, if living, possess in future, hence his mental- and physical qualities are properly matters for consideration as well as his particular relations to those for whose benefit relief is sought. And out of the uncertainty of the pecuniary advantages which his-life might have afforded to them the jury are to find certainty to a reasonable extent in the evidence in support of their judgment of the pecuniary injury sustained. The cause of action was sustained by the evidence, and upon the facts, as found by the jury, the plaintiff was entitled to recover. The question is, did the jury have any basis furnished by the evidence to support the recovery of the amount of damages found by them? The deceased, it must be assumed, had good health and habits of industry. He had been with his father from childhood, and was engaged with him on the farm up to the time of his death. But it is said that it does not appear that his services were gratuitously bestowed for the father. There is no presumption to the contrary arising upon the proof, and without something to characterize or change the relation in respect to services continued under the same apparent conditions and circumstances, may be presumed to remain the same as between parent and child although the latter had passed the age of majority. That, however, relates to the present loss only, but it may evince ' something of the character of the relation between the father and the son. Old age has its wants which must be supplied, and demand care, attention and assistance, and it is more rational to assume that the father could receive those from his son than that he would not,, and they may have in them much pecuniary value.

      “ The jury were permitted, in view of the liberal rule applied to the estimation of damages in this class of cases, to take into consideration the value to the father of all that a dutiful and worthy son might do for him to give him care, comfort, and so far as necessary support, so far as they involved pecuniary considerations. The death has taken from him whatever value the life of the son would have for him iu those, and such other respects as it may reasonably be inferred he might derive from him, of a pecuniary character, because it is in that respect alone that all the circumstances before suggested of deprivation of reasonably expected benefits are to be considered. And in that view they seem to come within the con- ■ struction and effect of the statute as given by adjudications in relation to the estimation of damages and the injuries, present and prospective, which may be treated as the sources of them. (Tilley v. II. 12.12. 12. Co., 29 N. Y., 252; McIntyre v. N. Y. G. 12. R. Co.., 37 id., 286; Houghkirk v. D. and H. G. Go., 92 id., 2L9; Ihl v. Forty-second St., etc., R. R. Go., 47 id., 317; Cornwall v. Mills, 12 J. & S., 45; Erwin v. JNeversmk Steamboat Co., 23 Hun, 573; Lockwood v. H. Y., L. E. and W. R. R. Go., 98 N. Y, 523-526.)
    “In Franklin v. Southeastern Railway Company (3 Hurl. & Norm., 211) and Pennsylvania Railroad Company v. Adams (55 Penn. St., 499) the conclusion was not to the contrary. It was there held that the reasonable expectation of benefit from the continuance of the life of the deceased justified and supported the verdict for some amount for the plaintiff. And the evidence in those cases was held sufficient to permit the jury to so find.
    “ While in the case at bar there was no evidence given of the pecuniary or physical condition of the father or of his age, the relation of father and son and the proof of the character and habits of the latter, with the fact that they were members of the same family, would seem to justify the finding of the jury that the father was permitted to have and had reasonable expectations of such future benefits from the son, of a nature treated as pecuniary, as his age, comfort and condition might require. The only question raised in respect to damages by exception was to a refusal to charge that there was no basis for anything more than nominal damages, in the absence of proof that the services rendered by the deceased to his father were gratuitous, or that he rendered gratuitous services for, or was of some benefit to him in a pecuniary way.' If the views already given are correct the exception is not well taken.
    “ But the question is here whether the amount of the recovery is excessive, and we are required to see that the jury had information from the evidence to fairly justify the verdict in that respect.

      “ One element in the sources from which loss, to those for whose benefit a recovery in such case is had, is to be ascertained, is their age, condition and circumstances.
    “ There is an entire absence of evidence in any of those respects of' the father of the deceased. That he was living is the only fact which can be assumed in relation to his condition upon the evidence. The prospective damages could not cover a period beyond that of his life. Iiis age and the condition of his health were proper facts for the consideration of the jury. They might say that if his age was upwards of eighty years, that his pecuniary loss was not as great as if he were only sixty years of age. If his condition were such that he could not live but a few years, they might conclude that his loss would be less than if he might live many years.
    “ This would be wholly a matter for the jury and their judgment, and the question of damage is one for them to determine. There may have been more evidence, than that given upon the trial, to aid the jury in making their estimate of the damages sustained by the father. The measure of his recovery must be governed solely by the pecuniary injury resulting to him from the death of decedent.
    “ The age and habits of the deceased appeared, but the jury had no opportunity from the evidence to consider anything about the age or condition of the party whose loss they were to ascertain.
    “And we think there was not sufficient evidence to enable the jury to conclude that it was equal to the amount of the recovery, and that the verdict must therefore be deemed excessive.
    ‘■‘And for that reason alone the judgment and order should be reversed and a new trial granted.”

      John Gr. Milbv/m, for the appellant.

      A. C. Calkins, for the respondent.
   Opinion by

Bradley, J.;

Smith, P. J., and Barker, J.,

concurred.

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


author: Davis, P. J.:

text:
    WILLIAM BURROWS, Appellant, v. AUGUSTUS BUTLER and JOHN Q. A. BUTLER, Administrators, etc., of WILLIAM R. BUTLER, Deceased, Respondents.

      Practice — a pa/rty entemng a judgment for damages and costs, after Ms costs Tia/oe been taxed,, camnot thereafter' move for a retmation.

    Where, upon a taxation of costs upon notice, an item of term fees is struck out by the clerk, and a judgment is thereafter entered by the moving party for his ■damages and the costs as so taxed, he cannot thereafter move to reopen the taxation and have the term fees-allowed to him.
    Appeal from an order of the Special Term denying a motion for a retaxation of costs.

      Schatz & De Witt, for the appellant.

      L. B. Treadwell, for the respondents.
   Davis, P. J.:

The plaintiff in this case taxed his costs upon due notice after trial and verdict in his favor, and upon a certificate of the trial court that the plaintiff was entitled to recover costs against the defendants as administrators.

The taxation was upon notice. The clerk upon the taxation struck out an item of term fees. After the taxation the plaintiff entered up judgment against the defendants for his damages and costs, and subsequently made a motion to reopen the taxation, and for the term fees which the clerk had rejected as part of his costs, l'he court below denied this motion on the ground that it was too late after the plaintiff had entered his judgment, to move for a correction of the taxation of costs.

We think the judge at the Special Term was correct. The plaintiff by entei’ing his judgment must be regarded as having accepted the decision of the clerk upon the taxation as correct, and is not now entitled to come to the court and ask that its judgment be opened for the purpose of a retaxation. The order for this reason should be affirmed, without considering the question discussed as to the right upon the affidavits presented to the allowance of the term fees.

Order affirmed, with ten dollars costs and disbursements.

Bradt and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

       Decisions handed down October 30, 1885.


author: Da ms, P. J.:

text:
    DANIEL A. MORAN, Respondent, v. LONG ISLAND CITY, Appellant.

      Practice — a rtmnicvpal corporation is not a “ domestic ” corporation within section 1778 of the Oode of Gimil Procedw'e.

    The municipal corporations of this State are not “ domestic ” corporations thereof within the meaning of that term as used in section 1778 of the Oode of Civil Procedure, providing that “ in an action against a foreign or domestic corporation to recover damages for the non-payment of a promissory note, or other evidence of debt for the absolute payment of money upon demand or at a par- ■ ticular time, * * * unless the defendant serves with a copy of his answer or demurrer, a copy of an order of a judge directing that the issues presented by the pleadings be tried, the plaintiff may take judgment as in case of default.”
    Appeal from an order made at Special Term, denying a motion to set aside a judgment in favor of the plaintiff.

      A. T. Payne, for the appellant.

      Abbetl c& Fuller, for the respondent.
   Da ms, P. J.:

This action was brought to recover against Long Island City the amount due upon certain coupons attached to bonds given by the city. Before the time to answer or demur had expired the time was extended twenty days by the plaintiffs attorneys, and within that period the defendant served a verified answer to the complaint. The answer was returned with notice and judgment entered by default, under the provisions of section 1778 of the Code, which provide that, “ in an action against a foreign or domestic corporation to recover damages for the non-payment of a promissory note or other evidence of debt for the absolute payment of money upon demand or at a particular time * * * unless the defendant

serves with a copy of his answer or demurrer a copy of an order of a judge directing that the issues presented by the pleadings be tried, the plaintiff may tabe judgment as in case of default in pleading at the expiration of twenty days after service of a copy of the complaint.”

The point presented by this appeal is whether or not Long Island City is a domestic corporation within the meaning of that section. The respondents rely upon paragraph 18 of section 3343 of the Code, which defines a domestic corporation to be a corporation created by or under the laws of the State. Long Island City existed as a corporation under the act to revise its charter passed in J 871. (Laws of 1871, chap. 461.) The definition of the term “ domestic corporation,” as given by paragraph 18 of section 3343 of the Code, is undoubtedly broad enough to embrace such a corporation as the defendant, if construed literally and strictly. But we are of opinion that it was not the intention of the legislature to include the municipal corporations of the State within that definition, in such form as to prevent them from defending any action brought against them without obtaining an order of a judge of the court, and serving the same with the answer or demurrer, directing a trial of the issue presented.

The municipal corporations of cities and towns of the State are a part of the State government. They are not moneyed corporations-within the signification of that term as used by the Revised Statutes; and the intention of the legislature by the use of the phrase domestic corporations ” in section 1778 of the Code, was to include •only a class of corporations, distinguished from municipal corporations, and organized for the purpose of carrying on business wholly ■different in their nature and character from the governmental powers with which municipal corporations are clothed. Such corporations are in no sense representatives of the body politic or the people. They affect only private interests and to a certain extent they have .always been subjected to different rules in respect of money indebtedness from those applicable to municipal bodies.

We think the several sections of the Code should be so construed .as not to embrace corporations of the character of the defendant, and for that reason we are of opinion that the order appealed from should be reversed and the motion to set aside the judgment granted.

Bradt and Daniels, J'J., concurred.

Order reversed and motion to set aside judgment granted, without costs.


text:
    JAMES P. CONNER and WILLIAM C. CONNER, Executors, etc., of WILLIAM C. CONNER, Deceased, Appellants, v. MARTIN J. KEESE, Respondent, Impleaded, etc.

      Practice-- increased costs in an action against a public officer — when not allowed in an action upon an indemnity bond— Code of Oiml Procedure, sec. 8258, sub. 1.
    An action, brought by a sheriff against a deputy and the sureties upon a bond given by such deputy to insure the faithful performance of the duties of his office, to recover for a breach of the conditions thereof, is not an action in which the defendants, if successful, are entitled to increased costs under subdivision 1 of section 3258 of the Code of Civil Procedure.
    Appeal from an order made at the New York circuit, denying a motion to vacate a certificate that the defendant was entitled to ■costs, and from an order of the Special Term, denying the plaintiff’s motion to readjust the costs by striking out $127.50.

      Henry Thompson, for the appellants.

      George W, Stephens, for the respondent.
   Davis, P. J.:

This action was brought upon a bond of indemnity given by the ■defendant Martin J. Keese and the other defendants in the action, as sureties for the faithful performance of his duties as a deputy sheriff. The sheriff seeks to recover damages sustained by reason-of a breach of the bond.

At the trial the defendants succeeded. A certificate was givenhy the trial judge that the defendants were entitled to increased costs. A motion was made at the Special Term to vacate this certificate and to readjust the costs by striking out the sum of $127.50, which represents the increased costs. The motion was denied.

The action being upon a bond of indemnity, it was not within the provisions of section 3258 of the Code, subdivision 1. It was not an action brought by reason of an act done by him by virtue of his office, or an alleged omission by him to do an act which it was his official duty to perform.” That section relates to actions brought against a public officer by a party alleged to have been injured by the official action or the omission to act of such officer directly affecting him or his property. The motion should therefore have been granted and the order should be reversed in both respects, as the defendant was not entitled to the certificate or to the increased: costs.

Order reversed and motion granted, without costs.

Beady and Daniels, JJ., concurred.

Order reversed and motion granted, without costs.


author: Pee Cueiam :

text:
    In the Matter of the Application of WILLIAM K. HALL and CHARLES BLANDY, for Payment of Judgments, Etc., Appellants, v. WILLIAM W. DUSENBURY, as Administrator, Etc., of THOMAS DUSENBURY, Deceased, Respondent.

      Surrogates Court — who may petition the eourt asa “ creditor ” for a decree directing his claim to he paid— Code of Civil Procedwe, secs. 2717 and 2718.
    The term “creditor,” as used in sections 2717 and 2718 of the Code of Civil Procedure, authorizing a petition to be presented by “a creditor” to the Surrogate’s Court, praying for a decree directing an executor or administrator to pay the petitioner’s claim, is confined to those persons to whom the deceased was indebted during his lifetime, and the remedy ¿hereby provided is not avail able to a person recovering a judgment for costs in an action brought by the-executors or administrators.

      Bulkley v. Btaats (4 Redf., 524) followed.

      Appeal from an order of the surrogate denying an application for an order under section 2717 of the Code of Civil Procedure.

      W. K. Hall, for the appellants.

      Ira D. Warren, for the respondent.,
   Pee Cueiam :

The surrogate denied the motion upon the ground that the* case was not one within the provisions of sections 2717, 2718 of the Code of Civil Procedure. On deciding the case the-surrogate pronounced an opinion which in part, is as follows :

Rollins, S. — William W. Dusenbury, as administrator of this estate, has appeared in response to a citation directing him to show cause why he should not pay to the petitioners, attorneys-at-law, two several judgments for costs recovered against him as such administrator, and in favor of petitioner’s clients Charles Dusenbury and Benjamin H. Dusenbury.

It appears that the actions in which such judgments were obtained were brought by the administrator to recover certain moneys claimed to belong to this decedent’s estate, and to be in the hands of the defendants. The petitioners allege that at the request of the defendants they acted as attorneys in said actions, and as their clients were without means, rendered services as such attorneys without any fee or reward whatsoever, but relying upon defeating said administrator in said actions and thus receiving the ordinary costs and allowances thereon.”

They further allege that the costs directed to be paid by such judgments “ belong to them in law and equity as attorneys of record for defendants in said action.” This application is founded upon section 2717 of the Code of Civil Procedure, and can only be granted in case: 1st. The petitioners are to be deemed “ creditors ” within the meaning of section 2718. 2d. The respondent has failed to file a verified answer setting forth facts showing that it is doubtful whether the claim of the petitioners is valid or legal, and denying its validity; and 3d. It has been shown to the satisfaction of the surrogate that there is money or other personal property of the estate applicable to the payment of the claim, and which may be so applied without injuriously affecting the rights of others.

I tbink that in all three of these particulars the petitioners have failed to establish their demand.

First. Assuming that despite the absence of express agreement permitting them to retain as a reward for professional services any judgments for costs that might be recovered by their clients against the administrator, they have by mere virtue of their employment as attorneys, an equitable lien upon such judgment as effective in all respects as a direct assignment thereof. I do not think that they can be regarded as “creditors” under section 2718. That section was not intended, as I interpret it, to afford relief to any persons as creditors, except those to whom the decedent was indebted in his lifetime. (Bulkley v. Staats, 4 Redf., 524.)

Upon the ground considered in this part of his opinion we think the learned Surrogate was correct in his conclusion and the order should be affirmed.

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

Order affirmed.


author:
Davis, P. J.: Brady, J. Daniels, J.: Davis, P. J.:
      Beady, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. LEON VAN HECK, Appellant, v. THE NEW YORK CATHOLIC PROTECTORY, Respondent.

      Power of a magistrate to commit childrren to cha/ritdble institutions — Penal Code, sec. 291 —Power of the New York Catholic Protectory to detain them, during minority— 1868, chap. 448 —1882, chap. 410, seas. 1618-1624 — Relative priority of provisions of the “ consolidation act" and of the Penal Code.

    Subdivision 5 of section 291 of the Penal Code, providing that a court or magistrate may commit children, convicted of a violation of that act, “ to any charitable, reformatory or other institution authorized by law to receive and take charge of minors, or may make any disposition of the child such as now is or hereafter may be authorized in the cases of vagrants, truants, paupers or disorderly persons,” does not authorize the commitment of a child, generally, to any charitable, reformatory or other institution, without regard to the authority of such institution to receive and continue the custody of the person committed, and so as to abrogate or supersede the provisions of law prescribing the circumstances or conditions under which such institutions are respectively authorized to receive and retain the custody of minors.
    It confers ho power to commit to any institution of the character named, except in conformity to its lawfully authorized power to receive. (Brady, J., dissenting.)

      The New York Catholic Protectory is only authorized to receive and retain in its custody, during their minority, children committed to it, after all the provisions of the acts (1863, chap. 448; 1882, chap. 410, §§ 1618-1624), requiring notice to he given to the child’s parent, guardian or person with whom it resides and a hearing to be had, have been fully complied with.
    If within the twenty days specified in the said sections no notice is given, or hearing had, the Protectory has no right to transfer the child to its asylum and. there detain it.

      Semble, that although it was provided in section 2143 of the “consolidation act” (chap. 410 of 1882) that the Penal Code was to have the same effect as if it had been passed subsequently to the consolidation act, yet it was not intended thereby, that those provisions of the consolidation act relating to the same subjects considered in the Penal Code should be repealed or annulled by anything contained in the Penal Code.
    Appeal from an order of tbe Special Term, dismissing writs of habeas corpus and certiorari.

      F. R. Coud&rt and Pcml Fuller, for tbe appellant.

      D. Quinn and E. T. Gerry, for tbe respondent.
   Davis, P. J.:

Tbe appeal in tbis case brings up solely tbe question of tbe right of tbe New York Oatbolic Protectory to retain tbe custody, during bis minority, of John Yan Heck, a child nine years of age, of tbe relator Leon Yan Heck, who was, on tbe 5th of November, 1884, arrested for begging in tbe streets of New York and brought before a police justice of tbe city, under tbe provisions of section 291 of tbe Penal Code, and by him committed to tbe custody of tbe protectory. Tbe returns both to tbe writ of habeas corpus and to'the certiorari sufficiently show that tbe child was lawfully arrested while engaged in tbe act of begging, receiving and sobciting alms on Centre street, in tbis city, and that bis conviction beforetbe magistrate of that offense was regular in form. Tbe Special Term was right, therefore, in bolding that under tbe decisions cited, tbe court is not at liberty to go behind tbe conviction and re-trytbe question of fact upon which it was made. (People ex rel. Perkerson v. St. Dominick, 34 Hun, 463; People ex rel. Eck v. American Female Guardian Society, 34 Hun, 633; Matter of Moses, 13 Abb. N. C., 196.)

Tbe only question.remaining in tbe case is whether tbe child was-committed to tbe Oatbolic Protectory in such form and manner that that institution is authorized to retain his custody against the claim of his father during his minority. It was considered by the court below that this question was disposed of by the fifth subdivision of section 291 of the Penal Code, which provides that such court or magistrate may commit the child to any charitable reformatory or other institution authorized by law to receive and take charge of minors, or may make any disposition of the child such as is now or hereafter may be authorized in cases of vagrants, truants, paupers or disorderly persons. It seems to have been supposed that this provision authorizes the commitment, generally, to any charitable reformatory, or other institution, in such manner as to abrogate or supersede the provisions of law prescribing the circumstances or conditions on which such institutions are respectively authorized to receive and retain the custody of minors.

"We think this to be a mistaken view of the intent and effect of the provisions of the act in question. That provision does not, in our judgment, authorize the commitment of a child arrested under section 291, to any charitable reformatory or other institution generally, without regard' to the authority under the law of such institution to receive and continue the custody of the person committed. On the contrary, it confers no power to commit to an institution of the character named, except in conformity to its lawfully authorized power to receive.

It becomes necessary therefore to inquire into the authority of the Catholic Protectory to receive the child of the relator under the commitment of the magistrate in this ease and retain his custody during his minority. The authority of the New York Catholic Protectory to receive and retain children committed under such circumstances is conferred by its charter (chap. 448 of the Laws of 1863) and by certain sections of the Consolidation Act. (Laws of 1882, chap. 410, §§ 1618-1624 inclusive.)

Under these provisions it is not sufficient that it shall appear that the child is found begging or receiving or soliciting alms in the manner forbidden by section 291 of the Penal Code to authorize the commitment of such child to the Catholic Protectory, because the protectory is only authorized, as will be seen by section 8 of its charter and section 1618 of the Consolidation Act, to receive such child in custody where it shall further appear “ to tbe satisfaction of sucb magistrate or court by competent testimony or by tbe examination of tbe child that by reason of tbe neglect or vici hi* habits <>i rl.e parents or other lawful guardian of sucb child, it is a proper object for tbe care of sucb corporation.”

Section 1618 further requires that tbe warrant of commitment shall set forth in substance that these facts have ajipeared to tbe satisfaction of tbe magistrate, in which case they may commit tbe qhild to tbe said corporation at its bouse of reception, to be detained there until discharged or removed therefrom in tbe manner thereinafter provided.

Section 1619 provides that after sucb commitment be made, tbe magistrate or court making tbe same shall deliver to a policeman of tbe city, especially detailed for that service, a notice in writing addressed to tbe father of sucb child, if its father be living and resident in tbe city, and if not, then to its mother if she be living and so resident, and if there be no father or mother of sucb child resident within tbe city then addressed to tbe lawful guardian of sucb child, if any, or to tbe person with whom, according to tbe examination of tbe child, and tbe testimony, if any, received by sucb magistrate or court, sucb child shall reside, in which notice tbe party to whom tbe same is addressed shall be informed of tbe commitment of sucb child to tbe bouse of reception of said corporation, and notified that unless taken therefrom in tbe manner prescribed by law within twenty days after the service of sucb notice, tbe child will be committed to tbe asylum of tbe corporation. Section 1620 prescribes tbe mode of service of sucb notice, and by section 1621 the parent or person to whom sucb notice is addressed is at liberty to appear within twenty days before tbe magistrate or court, and show that tbe circumstances under which tbe child shall have been found have not been occasioned by bis habitual neglect or misconduct, and then it is tbe duty of tbe magistrate, by an order in writing addressed to the superintendent of tbe bouse of reception, to direct sucb superintendent to deliver sucb child to tbe custody of tbe party named in sucb order, who shall thereupon be entitled to take sucb child from sucb bouse of reception. Section 1622 declares that if said proof shall not be produced within tbe twenty days, it shall be tbe duty of tbe magistrate or court by whom tbe child shall have been committed to tbe house of reception, to make and transmit to the superintendent thereof a notice in writing of that fact, and thereupon the child shall be removed to the asylum of the corporation.

None of these several provisions seem to have been complied with by the committing magistrate in this case, and inasmuch as the authority of the protectory to receive and keep in custody is limited to cases where compliance with those requirements appears, the commitment to that institution must be regarded as unauthorized. There is nothing in section 291 of the Penal Code which increases the authority of the protectory to receive and take charge of minors beyond that conferred upon it by statute. On the contrary, it limits the power of the magistrate in designating the charitable reformatory or other institution as the place of commitment to one authorized bylaw to receive and take charge of the childand power is not given to commit to any such institution, whether authorized by law to receive and take charge of minors or not. The warrant in this case committed the child to the house of reception of the New York Catholic Protectory, but it failed to show the case to be one upon which that house is authorized to receive the child, and none of the subsequent steps were taken, as required by law, to authorize commitment to the asylum after the expiration of twenty days.

It appears that more than twenty days had elapsed at the time the writs were sued out, and no notice whatsoever having been given to the father as required by law, the right of the protectory to transfer the child from the house of reception to the asylum, and to retain its custody, did not lawfully exist. Those steps were both jurisdictional and important, because when properly taken they operate to authorize the protectory to retain the custody of the child during its entire minority, and to wholly supersede the authority of the parent over the child for that entire period. Where such consequences are to follow a commitment it is important that the requirements of law, under which alone the protectory can acquire so large and exclusive an authority over children committed to its custody, should be carefully observed and followed. We think the court below erred in holding that the conviction of the magistrate in this case was sufficient to justify the detention of the child against the claim of his father, the relator.

The order should therefore be reversed and an order made directing the delivery of the custody of the child to the relator.

Daniels, J., concurred.

Brady, J.

(dissenting):

The New York Catholic Protectory is authorized by section 5 of chapter 448 of the act of 1863, incorporating it, to take and receive children between seven and fourteen years of age, who may be committed to its care as idle, truant, vicious or homeless, by order of any magistrate in the city of New York empowered by law to make committal of such children for any cause.

Section 1618 of chapter 410 of the Laws of 1882, provides for the committal of any child above the age of seven and under fourteen to the protectory, on the allegation that it was found in any street, highway or public place in this city in the circumstances of want and suffering or abandonment, exposure or neglect, or of beggary specified or defined in section 1463 of the act of which that section is a part.

Section 1463 provides that if any child shall be found in a state of want or suffering, or being abandoned or improperly exposed, or neglected by its parents or such other person as may have it in charge, or begging for alms or soliciting charity from door to door, or in any street, highway -or public place within the city, the recorder or any police justice shall, on complaint and competent proof, commit the child to the alms-house, etc.

Section 291 of the Penal Code, which was in full force and effect at the time of the passage of the act of 1882, just mentioned, provides that a male child actually or apparently under the age of sixteen, or a female child actually or apparently under the age of fourteen, who is found begging or receiving or soliciting alms in any manner or under any pretense, may be committed to any charitable, reformatory or other institution authorized by law to receive and take charge of minors, or may be disposed of as the child could be in cases of vagrants, truants, paupers or disorderly persons.

Subsequently, by chapter 46 of the Laws of 1884, the last mentioned section was amended by enlarging the causes for which commitments might be made, but retaining the provision that the commitment could be made to any charitable,' reformatory or other institution authorized by law to receive and take charge of minors, and also the right to make any disposition of the child which was then or thereafter might be authorized in cases of vagrants, truants, paupers or disorderly persons. These statutes seem to embrace two classes of children — those who are abandoned, improperly exposed or neglected by their parents, or found in a state of want and suffering, and therefore begging for alms by soliciting for charity from, door to door; and those who are professional beggars, either from vicious habit and inclination Or from employment for that purpose. And hence the two statutes may well stand together. It must be further observed that the language of section 291 {supra) is broad and comprehensive. “ Such court or magistrate may commit the child to any charitable, reformatory or other institution authorized by law” to receive and take charge of minors. The New York Catholic Protectory is authorized by law to receive and take charge of minors. But the section further provides, “ or make any disposition of the child which now is or hereafter may be ’ authorized in cases of vagrants, truants, paupers or disorderly persons; ” and, as we have seen by the act of 1863 (chap. 448), incorporating the New York Catholic Protectory (to which the name was changed by the act passed in 1871, chap. 83), to that corporation may be committed the care of children as idle, truant, vicious or homeless. So that it would seem to be within the authority of the committing magistrate, if a child be actually found begging, under the provisions of section 291 of the Penal Code (which are clearly in force yet), to dispose of it as a truant; and if that power existed, then the right to send to the protectory seems to be undoubted.

I have been unable, from an examination of this appeal, to arrive at the conclusion that the right of the protectory to receive children is limited to the cases, only, contemplated by the act of 1882, the provisions of which have been examined and considered by the presiding justice, and therefore I must dissent.

Upon a reargument of this case, the following opinions were delivered:

Daniels, J.:

Under the act, chapter 448 of the Laws of 1863, the child, the right to the custody of which is in controversy, could, by the order of the magistrate, first to be made, be detained in custody no longer than until discharged or removed therefrom in the manner ” therein-after provided. The magistrate was then required immediately after making such order, to deliver to a policeman of the city a notice in writing addressed to the father of the child, or if there should be no father, then to the mother, or in case the child had no father or mother residing within the city, then to the lawful guardian of such child, or if it had no guai lian then to the person with whom the child, appeared by the examination or testimony, to reside, informing the person to whom it should be addressed of the commitment of the child, and that unless taken from the place to which it had been committed, in the manner prescribed by law, within twenty days after the service of such notice the child would be committed to the asylum of the corporation. If no such person could be found, then a certificate of that fact containing a description of the child was required to be posted conspicuously in the police station-house nearest the alleged residence of the child. The person to. whom such notice was directed to be given, was within the twenty days entitled to appear before the magistrate and make proof that the condition in which the child was found was not occasioned by the habitual neglect or misconduct of the parents, or lawful guardian, or custodian, of such child, and thereupon it was made the duty of the magistrate to direct the superintendent of the house of correction to which it had been ordered, to deliver the child to the custody of the party named in such direction. But if no such proof was made within the twenty days, then it was made the duty of the magistrate to make and transmit to the superintendent of the house of reception a notice in writing to that effect, and thereupon the child was directed to be removed from the house of reception to the asylum of the corporation. (Laws 1863, chap. 448, pp. 771-2.) According-to these provisions the house of reception was made a place of temporary detention, extending only so long as would afford time for the other directions contained in the statute to be carried into effect. If they were not complied with, then after the time had expired for complying with them, the detention of the child would be unlawful. And it was only by compliance with such directions that the detention could be made permanent by removing the child from the house of reception to the asylum pursuant to the notice of the magistrate.

These provisions of tbe statute, prescribing the proceedings to be taken after the committal of the child to the house of protection under the order of the magistrate, were neither complied with nor in anyway observed. And if these provisions continued, and were at the time of the commitment of the child in force, it was unlawfully detained in the asylum and should have been discharged under the writ of habeas corpus. They were in form as well as language made a part of the consolidation act of the city of New York, enacted in 1882. (Chap. 410, Laws of 1882, §§ 1618-1623.) They were thus re-enacted after the enactment of the Penal Code, which by its own direction is to be deemed to have been enacted on the 4th of January, 1881, to take effect on the 1st of May, 1882. (Penal Code, § 727.) It is true that by the last paragraph of section 2143 of the consolidation act, the Penal Code is declared to have the same effect as if it were in fact passed after the consolidation act. But it could not have been intended by this provision that these other provisions inserted upon this subject in the consolidation act should be repealed or annulled by anything contained in the Penal Code. This act was enacted when the Penal Code was within the knowledge and was in the mind of the legislature. And these sections would not have been made a part of the consolidation act if it had been intended that the previously enacted Penal Code should annul or repeal them. They were considerately made a part of the consolidation act intending .that they should be observed and enforced. And the circumstance that this act was in this way subordinated to the Penal Code could not have been designed to defeat that intention. The only provision in the Penal Code relied upon as attended with a different result, is that which has been made by subdivision five of section 291. By that the magisti’ate before whom the child may be brought has been authorized to commit him or her “ to any charitable reformatory or other institution authorized by law to receive and take charge of minors.” But from what has been already said it could not have been intended by this direction and authority that the commitment should be absolute or permanent, where the law as it had been then enacted directed that it should be in effect temporary and conditional as that had been done by the act of 1863. This direction does not so conflict with these provisions in the act of 1863, and now contained in the consolidation act, as to produce a repeal by implication. It lias not directed that the commitment shall be absolute in tbe first instance, but merely that the magistrate may commit without declaring the form or time for which the commitment may be made, and consequently that must have been intended to be controlled by other statutes in force upon the subject. Both these provisions may well stand and be enforced together. The magistrate may commit and his commitment may at the same time remain conditional upon the notice being given of the commitment to the parent, guardian or other person with whom the child previously resided, and if neither could be found with the posting of the notice in the police station, and upon the result of the hearing to be had in case of an appearanee before the magistrate. The provision contained in the Penal Code proceeds upon this understanding of its effect; for the commitment is to be to an institution authorized by law to receive and take charge of minors. The person committed is accordingly to be sent to the institution in subordination to the law in this manner referred to. It was not designed to be changed or disregarded, but the law authorizing the institution to receive the child, was to be observed. The commitment was intended to be warranted so far and no farther than the authority of law here referred to sanctioned and provided for it. The institution to be mentioned in it was to be one which a law, other than the Penal Code, had authorized to receive minor children, and it was in obedience to that authority that the commitment was allowed to be made. By no construction can this provision of the Penal Code repeal the provisions of the act of 1863, inserted in and made a part of the consolidation act of 1882; for one act of the legislature is not allowed to repeal another by implication when both can be maintained and enforced together as these several statutory directions very clearly can be. (Hankins v. Mayor, 64 N. Y., 18, 22.) There is not the least impropriety, as the commitment is to be to an institution authorized by law to receive minor children, in concluding that the directions of that law shall be observed in making the commitment and in the following proceedings directed to render it absolute. The provisions contained in the consolidation act are local and special, while that made by this subdivision of section 291 of the Penal Code is general, and it is a rule of construction that u a special statute providing for a particular case or applicable to a particular locality, is not repealed by a statute general in its terms and application, unless tbe intention of tbe legislature to repeal or «Iter tbe special law is manifest, although tbe terms of tbe general act would, if taken strictly and but for tbe special law, include tbe case provided for by it.” (Van Denburgh v. Village of Greenbush, 66 N. Y., 1, 3, 4.) Under this rule, also, tbe special provisions on this subject should still be maintained. They were enacted to secure an important object. It was to prevent parents, guardians and other persons, from being summarily deprived of them children without affording them an opportunity to be beard. Tbe right to tbe custody and control of a child is an important one secured and carefully guarded by tbe law, and its forfeiture is only permitted when that may be required for tbe protection, security and well being of tbe child, and tbe law has wisely if not necessarily provided for a hearing before a forfeiture of this right has been sanctioned. It is not probable that tbe legislature intended by tbe enactment of tbe Penal Code to abridge or impair this right of custody, but rather that it designed that it should remain under the protection of tbe laws as they bad been enacted to secure this end. Certainly without a clear indication of tbe intention that this right should be divested without a bearing of tbe person entitled to assert it, tbe law should not be held or construed to allow that to be done. But doubtful or ambiguous language should be so construed as to permit tbe continuance of this right.

As already has been directed tbe order should be reversed and an order entered directing tbe delivery of this child to tbe relator. But while this lias been found to be tbe necessary effect of tbe law no doubt is intended to be intimated that by an observance of tbe requirements of tbe law, which was omitted in this case, tbe authority exists for committing the custody of such children as are included within tbe statute to tbe care, custody and guardianship of this institution.

Davis, P. J.:

As tbe result of tbe opinion of Daniels, J., conforms with that of a majority of tbe court on tbe former argument, I have no reason to doubt its correctness and therefore concur in it.

Order reversed; order entered directing tbe delivery of tbe child to tbe relator.

Beady, J.

(dissenting):

In this matter I dissent from the views expressed by Justice DaNiels as to the forms of proceeding, but not as to the power to commit to the respondents care children properly brought within the operation of either of the statutes to which he refers. I regard the acts in relation to this city and to the provisions of the Penal Code as separate and distinct, one being special and limited and the other general, each giving to the magistrate authority to proceed under each when the charge is brought within the terms of either. Whether this presents confused and confusing legislation, either or both, or gives practicable and valuable provisions matters not as long as it exists. It cannot be disregarded.

Order reversed; order entered directing the delivery of the child to the relator.