text:
    People ex rel., Frederick B. Wright, v. The Superintendent of the Poor of Ontario County.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Criminal Law—Bastardy proceedings—Evidence of married women AS TO NON-ACCESS OF HUSBAND—CODE ClV. PRO., § 828.
    In proceeding to prove that the relator was the father of an alleged " bastard child of a married woman, the mother was allowed to testify that she had not seen her husband for eight years previous to the birth of the child. Held, that she was not a competent witness to prove non-access of her husband. That she was not brought within the provisions of Code Civ. Pro., § 828, as she was not the wife of a party to the action or of a person in whose behalf the action or special proceeding was brought, prosecuted, opposed or defended.
    2. Same—Practice under Code Grim Pro., §515—Writ of certiorari ABOLISHED IN CRIMINAL ACTIONS—LAWS 1884, CHAP. 372.
    By Code Grim. Pro , § 515, as amended by chapter 372, Laws 1884, the writ of certiorari was abolished as to proceedings and special proceedings of a criminal nature, and it was provided that thereafter the only mode of reviewing a judgment or order in a criminal action or proceeding or special proceeding of a criminal nature was by appeal.
    3 Practice—Certiorari—When proceeding reversed in civil actions.
    On the return of a writ of certiorari, to review a proceeding in a civil action, if there is no competent proof, of a fact necessary to he proved, then the proceeding must be reversed.
    The return of the court of sessions of Ontario county to a writ of certiorari.

      E W. Gardner, for relators; Edin Hicks and Henry M. Fields, for-deft.
   Haight, J.

On the sixth day of February, 1886, an order of filiation was made by two magistrates of the county of Ontario, adjudging the relator to be the father of a bastard child born of one Eunice Horton. From such order an appeal was taken to the court of sessions of that county, in which court the order was affirmed. Whereupon and on application by the relator to the special term of this court á certiorari was issued to the court of sessions requiring that court to return all of the proceedings therein to this court.

In the case of the People ex rel. Fuller v. Carney (29 Hun, 47), we held that since the adoption of the Code of Criminal Procedure orders of the court of general sessions made in bastardy proceedings could only be reviewed at the general term upon a common law writ of certiorari-, that under section 515 of the Code of Criminal Procedure the writ of certiorari was abolished only in criminal actions; and that it was not abolished as to special proceedings of a criminal nature. The next year, however, this section of the Code was amended (chapter 372, Laws of 1884), and the writ was abolished as to proceedings and special proceedings of a criminal nature, and provided that “Hereafter the only mode of reviewing a judgment or order in a criminal action or proceeding, or special proceeding of a criminal nature is by appeal.

At the saíne time section 749 of the Code of Criminal Procedure was also amended by inserting in that section the words, “ Or proceedings or special proceedings of a criminal nature,” so that as it stands amended it reads, “ A judgment upon conviction rendered by a court of special sessions, police court, police magistrate or justice of the peace in any "criminal action or proceedings or special proceedings of a criminal nature, may be reviewed by the court of sessions of the county upon an appeal as prescribed by this statute and not otherwise,” etc.

Section 770 provides: “If the judgment on appeal be against the defendant, he may appeal therefrom to the supreme. court in the same manner as from a judgment in an action prosecuted, by indictment and may be admitted to bail upon the appeal in like manner.”

Section 771 provides “The judgment of the supreme court upon the appeal is final.”

It thus appears that the amendment of 1884 has changed the practice in this regard, and that the proceedings can now only be reviewed on an appeal. The respondents, however, have not moved to quash the writ; but upon the argument waived any question in reference to the right of this court to review the proceedings upon the writ and consented that the court might review the same with the same force and effect as if the writ had not been abolished.

It is contended, however, that the facts are not brought before this court for review under the writ, and that the only questions we can consider are those as to jurisdistion of the subject matter of the person of the defendant, and to see that some proof was made which had a tendency to establish the material allegation in issue.

There is a considerable conflict in the authorities as to what questions are brought up for review by a common law writ of certiorari, but we regard the question as now virtually settled by legislative act.

In the case of the People, etc., v. Smith (45 N. Y., 772, 776), it was held that upon the return to such a writ the court is not limited to the inquiry whether jurisdiction of the parties and subject matter was acquired, but should examine the evidence and determine whether there was any competent proof of the facts necessary to authorize the adjudication made, and whether, in making it, any rule of law affecting the rights of the parties has been violated.

In the case of the People, etc., v. Eddy (57 Barb., 601), it was held to be the duty of the court to examine in all cases on certiorari.

1. As to jurisdiction.

2. The court will reverse if the moving parties, upon their own showing, fail legally to make out their case.

3. Where the testimony fails to support the matter charged.

4. Where some evidence is given to support the charge, however slight, if judgment be given thereon, and where there is evidence upon the merits on both sides, the court will not reverse unless the case be one in which the weight of evidence is very greatly preponderating or is so strikingly so as to create a suspicion of injustice arising from prejudice or passion.

Subsequently to these decisions the legislature adopted section 2140 of the Code of Civil Procedure, which makes provisions as to the questions to be determined upon the hearing of a common law writ of certiorari. It provides that “ The questions involving the merits to be determined by the court upon the hearing are the following only:

1. Whether the body or officer had jurisdiction of the subject matter of the determination under review.

2. Whether the authority conferred upon the body or officers in relation to that subject matter has been pursued in the mode required by law in order to authorize it or him to make the determination.

3. Whether in making the determination any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator.

4. Whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination.

5. If there was such proof, whether there was upon all the evidence such a preponderance of proof against the existence of any of those facts that the verdict of the jury affirming the existence thereof, rendered in an action in the supreme court, triable by a jury, would be set aside by the court as against the weight of evidence.”

The revisor in his note tells us that this section was framed to settle the law as to the questions to be reviewed under the writ, and that it was intended to embody the rule as laid down in the cases above referred to.

Whilst these provisions of the Code are limited to civil actions and proceedings, and were not intended to have any application in criminal proceedings, still the section quoted appears to have a legislative approval of the rule as laid down in the cases referred to, and they should therefore form our guide in determining the questions involved in this case.

Upon examination of the the return it appears that some evidence was received that should have been excluded as incompetent. But we do not understand that the proceedings can be annulled by reason of the errors in the admission or rejection of evidence only, provided no rule of law affecting the rights of the parties has been violated to the prejudice of the relator, and where there is any competent proof of all the facts necessary to be proved in order to authorize the determination. The People, etc. v. Hair, 29 Hun, 125.

But if there is no competent proof of a fact necessary to be proved, then the proceeding must be reversed.

Upon the hearing before the court of sessions, Eunice Horton was sworn as a witness on behalf of the respondents, and gave evidence tending to show that she had illicit intercourse with the defendant, and had subsequently given birth to a child. On her cross-examination she testified that she was married nine or ten years ago to Willis Lansing, that they were married in Sheshire, Ontario county, and that she had never heard of Willis dying. She was asked the question: How long since you have seen your husband? This was objected to as incompetent; that she is not a competent witness to show or prove non-access of her husband. The objection was overruled, exception taken, and she answered eight years. It is upon this evidence that the court has found that the child born was a bastard.

Section 838 of the Code of Criminal Procedure provides that “ a bastard is a child who is begotten and born”

1. Out of lawful matrimony.

2. While the husband of its mother was separate from her for a whole year previous to its birth; or

3. During the separation of its mother from her husband, pursuant to the judgment of a competent court.

There is no pretense that she had ever been separated from her husband by any judgment or decree, so that it was necessary for the respondents to establish that she had been separate from her husband for a whole year previous to the birth of the child in order to make it a bastard.

The only other evidence bearing upon the. subject which we have been able to discover, was that of William Anderson, who worked for Wright from the seventeenth of March until the fifh of October, who testified that there was no one there during that time claiming to be her husband, or that she seemed to recognize as such.

But this evidence, if competent, does not cover the year prior to the birth of the child. There is no pretense that he was acquainted with her husband, or would have known him had he seen him. It is true she worked for Wright and lived there during that season, but it does not appear that she was there all of the time. On the contrary, it appears that she was away some time between the fifteenth of March and the middle of April; and that it was between these dates that she must have conceived the child of which she was subsequently delivered.

The witness McClure testified that he overtook her upon the road; that she was on her way to Canandaigua and that he asked her to ride.

The question is therefore narrowed to the competency of .the mother to prove non-access of her husband, for it is upon her testimony alone that the fact appears that she had not seen her husband for the year prior to the birth of the child.

At common law there is no question but that this evidence is incompetent. Public morals and decency would not permit a wife to testify to any fact tending to show her own child to be illegitimate. Wharton on Evidence, section 608.

In the case of the People ex rel. Crandall v. The Overseer of the Poor of the Town of Ontario (15 Barbour, 286), the same class of evidence was offered and received, and it was held that the evidence was incompetent and did not establish the fact that the husband had been absent a year. But it is contended that the rule has been changed by the Code and that such evidence is now competent. If any change has been made it is because of sections 828 and 831 of the Code of Civil Procedure.

The first section provides that Except as otherwise specifically prescribed in this title a person shall not be excluded or excused from being a witness by reason of his or her interest in the event of an action or special proceeding, or because he or she is a party thereto, or the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed or defended. It will be observed that the witness Horton was not the wife of a party to the action or of a person in whose behalf the action or special proceeding is brought, prosecuted, opposed or defended, and consequently she is not brought within the provisions of this section.

A careful reading of the next section fails to disclose any provision authorizing such testimony. We think that the statute has failed to change the common law rule in this regard. Chamberlain v. The People, 23 N. Y., 85.

It follows that the evidence received was incompetent, and that there was no competent evidence establishing the fact of non-access of her husband for the period of one year prior to the birth of the child.

For these reasons the proceedings must be reversed and remitted to the court of sessions of Ontario county, in which court a rehearing is ordered, costs to abide event.

This disposition of the case renders it unnecessary to consider the questions involved in the appeal from the order denying a new trial upon the ground of surprise and newly discovered evidence.

An order may therefore be entered as to that appeal or reversal, but without costs to either party.

Smith, P. J., concurred, and Bradley, J,, concurred in result. _____


source: Caselaw Access Project

author: Smith, P. J.

license: Public Domain

text:
    Joseph Smith, Resp’t, v. The New York Central and Hudson River R. R. Co., Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June, 1887.)

    1, Negligence—Injuries received through—Liability eor.
    This action was brought to recover damages for personal injuries to the plaintiff alleged to have been caused by the negligence of the defendant while the plaintiff was in the defendant’s service as a brakeman. The train upon which he was employed moving eastward collided with an empty freight car standing on the track. At the time of the collision the plaintiff was on the engine assisting the brakeman, and was severely injured. The empty car was one which had been fhat day put upon a branch or siding of the defendant’s road There was evidence tending to show that after it was left there, it was blown by the wind to the place where the collision occurred. At the foot of the siding was a switch leading to the main track which opened automatically by the pressure of the wheels of a car moving west. At the side of the branch was a warehouse occupied by P. & Co., who were engaged in shipping grain in the defendant’s cars by its road. The car referred to was one of three that had been brought by defendant’s engine that day from some point west and left near the warehouse. After their am val the two easternmost cars had been pushed by the warehouse-men a little further east to be loaded at the grain spouts of the warehouse, leaving the car in question disconnected from the others. There was evi-' dence tending to show that the shoes of the brake which when new, were two inches in thickness, had been worn down to a thickness of half an inch or less, and that such condition had a tendency to prevent the shoes from reaching and grasping the wheel. The defendant gave evidence tending to show that a month or more before the collision its superinten - dent issued a printed order addressed to its freight agents, depot and yard masters cautioning them against leaving cars on sidings in such a position that the wind might move them, so as to foul the main track, and requiring' that brakes should be firmly set and a chock used. By the evidence it was left doubtful whether the depot master at the place of the accident had received a copy of the order although he testified that he had the impression that he did. He also testified that it was his duty to look after the cars at the station either personally or by his assistants, that he could not always do it himself because he had other duties to perform, that upon the application of the warehousemen he ordered the cars upon the siding for their use, that he afterward saw them, but could not say whether they were separated or not. The judge left it to the jury to say whether it was the wind that moved the car from the siding to the main track, and if so whether the wind was enabled to have that effect, by reason of the absence of a brake which was fit and suitable for the purpose of holding the car, and if these facts were established whether the defendant had exercised all reasonable care to provide against the imperfection from which the accident resulted. He in substance instructed the jury that the defendant was not responsible for neglect on the part of the depot master or any other employee of the company, or of the men engaged in the warehouse, but if the company had neglected to furnish a brake for the car fit and suitable for the purposes of a brake, and such neglect contributed to the injury, the company was liable, although negligence on the part of the depot master or some other person might have contributed to the result.^ The defendant’s counsel requested the court to charge the jury that it was the duty of the station agent to see to it that the brake was set, so far as it could be useful to set the same to control the car. and to put a chock under the wheel; and that if he had performed his duty in that respect although the brake was defective and alone would not have held the car against the wind that arose on the day in question, the accident would not have happened the defendant was not responsible Held, that the request to charge was properly refused.
    2. Same—Liability bob.
    The court was also requested to charge that if the brake was out of order it was the duty of the depot master to know it and in that case it was his imperative duty to use a chock, and that if he had used it, the accident would not have happened, the defendant was not liable. Held, that the request to charge was properly refused
    3 Jury—Charge to—-Matters contained in need not be again charged Where a request to charge relates only to matters contained in a previous charge it is not the duty of the court to repeat it.
    Appeal from an order of the trial judge in an action tried at the Monroe circuit denying defendant’s motion for a new trial made on the minutes

      Edward Haines, for app’lt; W. S. Oliver, for resp’t.
   Smith, P. J.

Action to recover damages for personal injuries to the plaintiff alleged to have been caused by the negligence of the defendant. The plaintiff was in the employment of the defendant as a brakeman, and in February, 1884, was engaged upon a coal train running from Rochester to Lyons. On the nineteenth of that month, the train on which the plaintiff was employed, going eastwardly collided with an empty freight car standing on the track. The collision occurred about 5:30 in the evening, about a mile west of the Newark station. The plaintiff was on the engine assisting the fireman, and was severely injured in the collision. The empty car was a grain fine box car, which had been put that day upon a branch or siding of the defendant’s road at the Newark station, and there left standing. There was evidence tending to show that after it was left there, it was blown by the wind to the place where the collision occurred. At the foot of the siding was a switch leading to the main line which opened automatically by the pressure of the wheels of a car moving to the west. By the side of the branch was a warehouse occupied by Perkins & Co., who were engaged in shipping grain in defendant’s cars bv its road. The car referred to was one of three that had been brought from some point west, by defendant’s local freight engine that day, and left near the warehouse. Later in the day the two eastermost cars had been pushed by the warehouse men a little farther east to the grain spouts of the warehouse to be loaded, leaving the car in question standing disconnected from the others. The theory of the plaintiff was that the brake with which the car in question was supplied was defective, and that in con sequence of such defect, the car was pushed or driven on to the main line, where the collision occurred. There was evidence tending to show that the shoes of the brake, which when new, were two inches in thickness, had been worn down to a half inch or less, in thickness, and that such condition had a tendency to prevent the shoes from reaching and grasping the wheel. The defendant’s theory was that the brake was not defective, or, if defective, its condition was not the cause of the car moving on to the main track, and that such movement was the result of the neglect of Perkins & Go’s., men, or of Donk, the defendant’s station and freight agent at Newark or some other of defendant’s employees at the station, to properly set the brake, or take other measures to prevent the car from moving.

The defendant gave evidence tending to show that a month or. more before the collision, its superintendent issued a printed order, addressed to its freight agents, depot and yard masters, and distributed along the road, which was as follows: “You are hereby cautioned against leaving cars on sidings, in a position for the wind to move them, so as to foul the main track. Brakes must be always set firmly and a chock used.” Donk was called as a witness and was examined as to his duties, and as to whether he received a copy of that order. His testimony left it somewhat doubtful whether he received a copy of the order, although he stated that he was of the impression that he did. He also testified that it was his duty to look after the cars at the station, either personally or by his assistants; that he could not always do it himself, because he had other duties to perform; that he ordered the three cars upon the siding for the use of warehousemen, upon their application for cars; that he saw the cars about five o’clock, but could not say from where he saw them, whether they were separated, and he was not aware that they had been separated.

The only questions in the case which, in our opinion, require special comment, arise upon the refusal of the judge to charge certain requests made by defendant’s counsel.. Before taking up those requests it will be useful to see what the judge had charged before the requests were made.

The judge left it to the jury to say whether it was the wind that moved the car from the sidings to the main track, and if it was, whether the wind was enabled to have that effect, by reason of the absence of a brake which was fit and suitable for the purpose of holding the car, and if those facts were established, whether the defendant had exercised all reasonable care to provide against the imperfection from which the accident resulted.

And he instructed the jury in substance, that the defendant is not responsible for the neglect on the pprt of Donk, or any other employee of the company, or of the men engaged in the warehouse; but if the company neglected to furnish a brake for the car, fit and suitable for the purposes of a brake, and such neglect contributed to the injury, the company is hable, although negligence on the part of Donk or some other person, may have contributed to the result.

These instructions were warranted by the evidence, were unexceptionable, and were not excepted to.

The defendant’s counsel made a request to charge in the following language: '' That it was the duty of Donk, the station agent, to see to it that the brake was set, so far as it could be useful to set the same to control the car, and to put a chock under the wheel; and that if he had performed his duty in this respect, although the brake was defective and alone would not have held the car against the wind that arose on the day in question, the accident would not have happened, the defendant is not responsible.” The request was refused and the defendant’s counsel contends that the refusal was error.

We think otherwise, for several reasons. (1.) The question whether the duty of Donk was as assumed by the request, was one of fact, which belonged to the jury There was no evidence that he was under such duty unless it was imposed by the order of the superintendent. The testimony left it doubtful whether he received the order, and the jury alone could determine that question. The judge had told the jury that it was not necessary for the defendant to show that the order came to the notice of Donk. But he was then speaking of the question whether the defendant had neglected to provide its employees with suitable rules governing their conduct in the discharge of their duties. He said that the defendant had exercised reasonable care in that respect, the evidence being undisputed that the superintendent had caused the order to be written, and a copy of it sent out for .each employee, in the manner uniformly employed for communication between the superintendent and the agents of the road. But upon the question whether a particular agent was negligent in omitting to do what was required by the order, it was important to show that the order had been brought to his notice. In respect to Donk, the testimony left that point doubtful, and the question was for the jury. (2.) Even if Donk received the order, the question whether his omission to do what it required, on the occasion in question, was negligence on his part, depended upon the attendant circumstances. He testified that he had other duties to perform; it was for the jury to say whether they so occupied him at that time as to prevent his doing the acts in question. (3.) It was also for the jury to say whether the car would have moved if it had not been separated from the others, and if not, whether Donk knew, or ought to have known, that it was separated. (4.) The last clause of the request is not clear. Did it assume, as a fact, that if Donk had done his duty in the respect stated, the accident would not have happened, or was it intended to convey the proposition that if, in case he had performed his duty, the accident would not have happened, the defendant is not liable, although the brake was defective? Probably the latter; but the request can only be made to express that idea, by transposing some or its words and supplying others. That process the trial judge was not called upon to perform. Eor, on appeal, will such a rendering be resorted to, in order to overturn a judgment. A request must be in such form that the judge may properly charge in its turn without qualification. Carpenter v. Stillwell, 11 N. Y, 61, 79.

(5). But passing all these considerations, the request was properly declined for a weightier reason. It assumed that if Donk, as well as the defendant, was negligent, the latter was relieved from responsibility. In that respect the request ignored the true rule, which the judge had previously given to the jury, that if the neglect of the defendant concurred with the neglect of the station agent, and contributed to produce the injury, the defendant is responsible. Flike v. Boston and Albany R. Co., 53 N. Y., 549; Booth v. Same, 73 id., 38; Cone v. Del. L. and W. R. R. Co., 81 id., 206; Sheehan v. N. N. C. and H. R. R. R. Co., 91 id., 332; Ellis v. N. Y., L. Erie and W. R. R. Co., 95 N. Y., 546, 553; Stringham v. Stewart, 100 id., 516.

The court was also requested to charge “ that if the brake was out of order it was Donk’s duty to know it, and in that' case it was his imperative duty to use a chock, and that if he had used it, the accident would not have happened, the defendant is not liable.” Many of the considerations above expressed apply to this request and it is unnecessary to repeat them.

The refusal to charge that if but for the interference of Perkins’ men in uncoupling the cars and releasing the brake on one of the cars east of the one in question, the accident would not have happened, the defendant is not liable, was not error. The request assumed that the accident was caused solely by the interference of Perkins’ men, and the court had charged that for their negligence the defendant was not liable. That covered the ground. It was not the duty of the judge to repeat it.

The only other request was to charge that the defendant is not hable for the act of Perkins’ men in uncoupling the cars, and loosening the brake on one of them; and if the jury find that the defendant’s agent ought to have known of such uncoupling and loosening of the brake, such knowledge on the part of the agent, or notice, was essential to establish subsequent negligence on the part of the defendant.” The proposition contained in the first branch of the request has already been considered. We are not certain that we correctly apprehend the point of the subsequent clause. What the defendant’s agent ought to have known in the discharge of his duty, he did not know, in contemplation of law, and his knowledge was the knowledge of his principal. But the case was not submitted to the jury, and was not decided upon the theory that the defendant’s agents, knowing of the uncoupling of the cars and the loosening of the brakes, neglected to provide against the consequences that might ensue therefrom. '

The request was therefore of no importance, and the refusal .was not error.

The order appealed from should be affirmed

Haight and Bradley, JJ., concur.


author: Haight, J.

text:
    Philip F. Kribbs, Resp’t, v. Byron Alford et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887)

    1. Chattel mortgage—What is a—Filing of—Constructive notice.
    A mortgage of the rights of a party of his interest in a lease of lands, together with all oil wells, machinery and structures thereon, and those to he placed thereon, if filed in the office of the proper town clerk, operates to give constructive notice of the lien created by the instrument.
    2. Same—What the lien extends to.
    Such mortgage is a lien upon wells subsequently put down by assignees of the lease.
    3. Same—Foreclosure of—What is not matter of defense.
    The fact that circumstances had occurred which rendered it within the power of the lessor, by the terms of the lease, to declare a forfeiture of the rights of the lessees thereunder, are of no avail to the assignees of the lease in the action brought to foreclose the mortgage.
    Appeal from a judgment of foreclosure and sale, entered in Cattaraugus county, upon the report of a referee.

      J. H. Waring,- for app’lts; C. S. Dwinells and J. Arthur Corbin, for resp’t.
   Haight, J.

On the fifteenth day of 'May, 1880, one J. F. Johnson was the owner in fee of the lands in question, and on that day leased to one Thomas Argue, for the period of twelve years, the exclusive right to produce oil and gas from the same. Afterwards, and on the second day of October, 1880, Argue sold and assigned his interest in the lease to Albert Garrett and Adam Prentice. Thereafter, and on the seventh day of January, 1881, Adam Prentice, to secure the payment of $950.50, executed and delivered to the plaintiff a mortgage upon his undivided interest in the lease, together with all the oil wells, machinery and structures thereon, and those to be placed thereon.

A copy of this mortgage was on the tenth day of January, 1881, filed in the office of the town clerk of Olean, that being the clerk’s office of the town in which the premises were situated, and on the seventh day of January, 1882, the same was refiled, together with a statement of the amount due thereon. On the twenty-fourth day of August, 1882, Garrett and Prentice sold and assigned all their rights under the lease to the defendants, Alford and Curtis. Thereafter and on the sixth day of October, 1882, the plaintiff caused the mortgage to be recorded in the county clerk’s office as a real estate mortgage. Subsequently the defendants, Alford and Curtis, sold and assigned their interest in the lease to the defendant, Weston.

The appellant claims that the instrument was a chattel mortgage and that it was not a mortgage of an interest in real property. The question whether or not it was a mortgage of an interest in real estate, we shall dismiss with a single remark without discussion or further consideration. It does not appear that it was ever acknowledged or its execution proved so as to entitle it to record, and it was not in fact recorded until after the defendants Alford and Curtis had purchased in good faith, paying a valuable consideration for the premises.

The referee has found, and upon sufficient evidence to support it, that the mortgage was filed as a chattel mortgage in the proper town clerk’s office, and within thirty days of the expiration of the year it was refiled with the statement required by the statute. Such filing was constructive notice to the defendants who were subsequent purchasers, and the mortgage continued to be a good and valid lien upon the property therein described.

The serious question presented on this review is whether or not the mortgage become a lien upon the wells, fixtures, boilers and machinery that were subsequently put upon the leasehold premises.

The lease required a certain number of wells to be drilled within certain fixed times. When the lease was assigned to Garrett and Prentice, Johnson, .the lessor, extended the time within which these wells were to be drilled, and they in turn entered into an agreement to put down other wells within the time designated. Prentice, in his mortgage to the plaintiff, not only mortgaged all his right, interest, claim or title in the leasehold premises, but also mortgaged all his interest in the oil wells on or to be placed thereon, together with all his interest in the structures, fixtures, appliances, equipments and appurtenances then on or thereafter to be placed thereon.

He then covenanted that he would perform each and every condition and requirement of the lease, according to its true tenor and spirit. In other words he agreed with the plaintiff to go on and put down the wells required by the lease, and the agreement with the lessor extending the time and to give the plaintiff a lien by this mortgage upon such wells, structures, fixtures, and appliances. The defendants Alford and Curtis after táking an assignment of this lease from Garrett and Prentice, entered into possession and performed its conditions and requirements by putting down the wells therein called for. In doing so they but carried out the covenant of Prentice, embraced in his mortgage to the plaintiff. But they contend that they did not know of the plaintiff’s mortgage. It appears that they went to the town clerk’s office and made a search and did not discover it. But it further appears that the mortgage was there on file and their failure to discover it was no fault of the plaintiff. They are consequently chargeable with constructive notice and the lien of the plaintiff is not affected by their failure to find the mortgage.

We consequently conclude that the referee correctly held that the lien of the mortgage extended to the wells, fixtures and appurtenances put upon the premises in accordance with the requirements of the lease after the making and delivery of the mortgage.

It is contended on the part of the appellant that there had been a forfeiture of the lease by Garrett and Prentice before the assignment to Alford and Curtis. But Johnson, the lessor, has not insisted on any forfeiture; he has, instead, extended the time for performance under the lease, thus waiving any forfeiture thereto. J ohnson only has the right to insist upon the forfeiture, and he makes no such claim. The appellants are in possession operating the territory under the lease, without question as' to their right so to do, and they can not defeat the plaintiff’s claim by insisting that Johnson had the right to insist upon a forfeiture.

The referee admitted in evidence an index of chattel mortgages kept in the town clerk’s office, under the objection of the defendant. It does not appear to us necessary to determine whether or not this was competent evidence. It was conceded that there was nothing in the index in reference to the refiling of the mortgage on the 7th of January, 1882. The filing of the mortgage on the 10th of January, 1881, was satisfactorily proved by other competent evidence. The mortgage would become invalid as against creditors and subsequent purchasers in good faith, if not refiled within thirty days of the expiration of the year. It was consequently necessary in order to maintain the validity of this mortgage as a lien upon the appellant’s property to find that it was refiled, which the referee has done. The fact that nothing appeared in this index tending to prove that it had been refiled, rendered the index harmless as evidence.

The judgment should be affirmed, with costs.

Smith, P. J., and Bradley, J., concur.


text:
    John J. Hanna v. Mary M. G. Laurence.

      (Supreme Court, General Term, Fifth Department,

      Filed June, 1887.)

    1. Statute of frauds—Pleading—Contract of indemnity—Allegation OF AGREEMENT—PRESUMPTION THAT CONTRACT IS VALID AS ALLEGED.
    The complaint in this action, in substance, alleges that a person having taken and converted to his own use certain personal property belonging to the defendant, and an action having been brought to recover the property so taken, by the defendant’s husband, as the administrator of a person deceased, for the benefit of the defendant, and at his request, the defendant, for the purpose of inducing this plaintiff to become one of his sureties in said action, represented and stated to him that said property was hers, that such suit was being brought for the benefit of her separate estate, and that she would indemnify and save harmless this plaintiff from any loss or damage by reason of his becoming such surety; and that this plaintiff, relying on such statements, signed the undertaking given by the plaintiff in said action; and that said action resulted in a judgment in favor of the defendant therein, and this plaintiff was subsequently sued upon such undertaking and compelled to pay a sum of money which he seeks to recover in this action. The complaint was demurred to on the ground that it does not state facts sufficient to constitute a cause of action and that there is a defect of parties plaintiff. The demurrer was overruled and judgment for this plaintiff ordered, with leave to the defendant to answer. The question being raised upon the trial as to whether this defendant's promise to indemnify ,the plaintiff not being in writing was within the statute of frauds as a parol promise to answer for the default of another. Held, that in respect to this question the defendant was not concluded by the judgment upon the demurrer, as the averment in the complaint implied a valid promise, that is a promise in writing, nothing appearing to the contrary.

      2. Contract—What is original—Oral contract, when valid.
    The testimony upon the trial being such as to authorize the jury to find that the defendant was the real plaintiff in interest in the replevin suit, and that the suit was brought in the name of her husband, as administrator, etc., at her request and for her benefit. Held, that her promise being proved to be oral was not within the statute, as it was plainly an original undertaking
    3. Same—Action brought bt—Propriety of, in certain case.

      Held, that the circumstance that the suit was brought in the name of the husband of the plaintiff was not inconsistent with her equitable ownership of the property, nor was it necessarily a fraud or imposition on the court
    4. Parties to action—Who are unnecessary.

      Held,, that it was not necessary to join this plaintiff’s co-surety in this-action, as he sued only to recover what he alone had been compelled to pay.
    5. Demurrer to complaint—Questions arising on complaint are concluded BY JUDGMENT ON.

      Held, that upon this point, as well as upon the one that the action could not be maintained for the reason that it did not appear that an execution had been issued against the plaintiff in the replevin suit before the surety was sued, the judgment upon the demurrer was conclusive upon the parties to this action, each of those questions having arisen upon the complaint.
    Motion by the defendant for a new trial on exceptions taken at the Ontario circuit, and ordered to be heard at the general term in the first instance.

      Charles McLouth, for def’t; Frank Rice, for pl’ff.
   Smith, P. J.

The complaint alleges in substance, that one Moss having taken and converted to his own use certain personal property belonging to the defendant, and an action having been brought to recover the property so taken, by Henry 0. Laurence, the defendant's husband, as the administrator of Thaddeus Laurence, deceased, for the benefit of the defendant, and at her request, the defendant, for the purpose of inducing the plaintiff to become one of the sureties in said action, represented and stated to him that said property was hers; that such suit was being brought for the benefit of her separate estate, and that she would indemnify and save harmless the plaintiff from any loss or damage' by reason of his becoming such surety; and that the plaintiff relying on such statements, signed the undertaking given by the plaintiff in said action; and that said action resulted in a judgment in favor of the defendant therein, and the plaintiff" herein was subsequently sued upon such undertaking, and compelled to pay a sum of money which he seeks to recover in this action.

The complaint was demurred to on the ground that it does not state facts sufficient to constitute a cause of action, and that there is a defect of parties plaintiff.

The demurrer was overruled and judgment for plaintiff ordered, with leave to defendant to answer. An answer was served, and the issues thereby joined were tried by a iury, and the plaintiff recovered a verdict for the amount claimed.

The principal question in the case is whether the defendant’s promise to indemnify the plaintiff, not being in writing, is within the statute of frauds as a parol promise to answer for the default of another. The defendant is not concluded in respect to this question by the judgment upon the demurrer, for the reason that the averment in the complaint implied a valid promise, that is, a promise in writing, nothing appearing to the contrary. Gibbs v. Nash, 4 Barb., 449. Upon the trial, it appeared that' the promise was oral. The plaintiff testified to the representations and promise of the defendant substantially as alleged in the complaint. Whether or not the declarations of the defendant thus testified to amounted to an estoppel, as claimed by the plaintiff , a point which we do not decide, the testimony authorized the jury to find that the defendant was the real plaintiff in interest in the replevin suit, and that the suit was brought in the name of her husband, as administrator, etc.,- at her request and for her benefit. Those being the facts, her promise was plainly an original undertaking, and not within the statute

The circumstance that the suit was brought in the name of her husband was not inconsistent with her equitable ownership of the property, nor was it necessarily, as the defendant’s counsel suggests, a fraud or imposition on the court. If Mrs. Laurence saw fit to transfer the legal title to the property, to her husband, in trust, to enable him to bring the suit for her benefit, she retaining the equitable title, it is not perceived that the transaction was unlawful, that it was a fraud, or that it harmed any one, there being no suggestion that the rights of creditors were affected,

There is no force in the position that the plaintiff’s co-surety should have joined with him in the suit. The plaintiff sues to recover what he alone has.been compelled to pay. But upon this point, as well as upon the position that the action can not be maintained, for the reason that it does not appear that an execution had been issued against the plaintiff in the replevin suit before the surety was sued, the judgment upon the demurrer is conclusive, upon the parties in this action, each of those questions having arisen upon the complaint.

There is no other question in the case.

The motion for a new trial should be denied, and judgment ordered for the plaintiff on the verdict.

Haight and Bradley, JJ., concur.


author: Smith, P. J. Haight, J. (dissenting).

text:
    The People of the State of New York, App’lts, v. John P. Allen, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    Criminal law—Perjury—What does not constitute the crime, under PROVISIONS OB CHARTER OB BuEBALO AS TO CLAIMS AGAINST THE CITY.
    It is provided by the charter of the city of Buffalo that the common council shall audit all claims against the city, but that no unliquidated claim shall be received for audit unless made out in detail and accompanied by an affidavit that the claim, and the items and specifications thereof, are in all respects just and true. It is further provided that all claims for materials furnished, and work performed for the city relating to the public buildings, shall, before their presentation to the council for audit have, the certificate of the commissioner of public buildings as to their correctness, and that in case the materials are furnished or work done on or about any public school building, it shall also be the duty of the principal of the school to certify to the correctness of the claim. Corrupt false swearing to any material fact in such affidavit, is thereby declared to be perjury. Reid, _ That false statements corruptly made in an affidavit to such a claim, which was not used before the common council to procure the audit of the claim did not constitute the crime of perjury, no affidavit to the claim being required upon its presentation for the certificate of the other officials named. Haight, J., dissenting.
    Appeal from a judgment of the superior court of the city of Buffalo sustaining a demurrer to the indictment herein.

      George T. Quinby, district-attorney, for app’lt; Tracy Becker, for resp’t.
   Smith, P. J.

The appeal in this case is certified to this court by the superior court of Buffalo, two of the judges of that court being disqualified to hear it.

The indictment charges the defendant with perjury in falsely swearing to a bill or account held by him against the city of Buffalo. The bill was for services alleged to have been rendered by the claimant in cleaning out the vault of one of the public school houses of the city, under the employment of the commissioner' of public buildings. The bill as made out and verified by the defendant charged the city with having removed thirty-seven yards, nine feet of night soil at $2.25 per cubic yard, amounting to eighty-four dollars, and the indictment charges that only about six yards were removed, worth $13.50-; and in that partiular. consisted the alleged falsity of the affidavit.

The charter of the city provides that all claims against the city shall be audited by the common council, and it requires that before any account for labor or services shall be audited, it shall be made out in detail and verified by the affidavit of the claimant to the effect that the work charged for had been done, and that the charges are reasonable and just, etc.

Corrupt, false swearing to any material fact, in such affidavit, is declared to be perjury It is, also, provided that before any such bill shall be presented to the common council for audit, it must be certified by the head of the department ordering the same, and in case of repairs on the public schools, by the principal of the school where the same was done

The indictment charges that the defendant presented the bill so made out and verified by him to the head of the department and the principal of the school, for the purpose of obtaining their certificates, and that he obtained the certificate of the head of the department, annexed to the bill, but it does not aver that he presented the bill to the common council for any purpose, or that he delivered it to any person to be so presented. For aught that is alleged he made no further use of said verified bill after obtaining such certificate, and presenting it to the principal of the school, and did not part with its possession.

The question arises whether perjury can be assigned upon the affidavit, it not having been used by the defendant, or delivered by him to any person to be used in procuring an audit of the bill, by presenting it to the common council.

In Ortner v. The People (4 Hun, 323), an indictment for perjury upon an affidavit made for the purpose of obtaining audit of a claim against the city of Buffalo, was held fatally defective, it not averring that the affidavit was authorized by the charter, or that it was made for the purpose required thereby, or that the claim to which it was appended was ever presented to the council for audit. The averment in that case was that the defendant caused his bill to be presented to the engineer of the city, and that he made the affidavit before a clerk in the office of the engineer, who was a commissioner of deeds. But it was not averred that it was any part of the engineers duties to receive the bill, or that he, in fact, received it for any purpose connected with an audit.

It is contended by the appellant’s counsel that there are certain allegations in the indictment, in the present case, which distinguish it from Ortner's Case. Those allegations are (1) that the defendant made the affidavit for the purpose of procuring the audit and payment of the bill, and that he was required, by law and the charter, to make such .affidavit before the bill should be certified by the commissioner; (2) that, he presented said verified bill to the commissioner and the principal of the school for their respective, certificates, with the intention and for the purpose of procuring the audit and payment of the bill; and (3) that at the time when he made the affidavit, it was a material question whether he had rendered the services charged in the bill.

As we regard the case, the only material averment in these allegations is the averment that the law and the charter required that the verification should precede the certificates. The question whether the claimant had rendered the services charged in the bill was not material, except for the purpose of audit and payment. The fact that the claimant made the affidavit with the intention of presenting the bill so verified to the common council for audit, was unimportant, unless the intent was consummated by a presentation of the bill, or a parting with it for that purpose. If he abandoned the design and suppressed the affidavit, the offense was not complete unless, as the indictment avers, the affidavit was a pre-requisite to the certification, by the superintendent, of the department or the principal or the school. The averment upon that subís a legal conclusion, and its correctness is questioned by the demurrer. The indictment refers to no provision of law, in the charter or elsewhere, sustaining that position. The appellant’s counsel refers to none, in his printed brief or his argument. We are not aware of any such provision, and we think there is none. If there is any ordinance of the city, sustaining the averment, it should have been set out in the indictment.

In disposing of the case, therefore, we are to assume, as the result of the averments in the indictment, that the bill was not required by law to be verified until it was presented to the common council for its action; that neither the superintendent nor the principal of the school had authority to receive the bill for the common council, nor did they assume to do so; and that the making of the affidavit by the claimant, before presenting the bills to them for certification was a voluntary act on his part, which neither of them could require. In this view the case is clearly within the principle upon which the case of Ortner was decided.

The provisions of the Penal Code, referred to by the appellant’s counsel, do not aid him. The affidavit made by the defendant, in view of the only use to which it was put, was not one to which section 96 of that Code relates. It was neither “required by law,” nor necessary for the prosecution or defense of a private right, or for the ends of public justice,” nor was it one which, might “lawfully be administered ” by the officers or persons to whom it was presented. And by section 100 the affidavit was not complete, it not having been ‘ ‘ delivered by the defendant to any other person with intent that it be uttered or published as true.”

The case of The People v. Bowe (34 Hun, 528), cited by the appellant’s counsel, does not conflict with these views, as for aught that appears from the report of that case, and as is to be assumed, the account, as verified, was there delivered to the auditing board for its action. That being the case, the affidavit was one required by law, and was complete.

The result is that the judgment of the superior court should be affirmed, and the case remitted to that court.

Bradley, J., concurs.

Haight, J. (dissenting).

The indictment charges the defendant with having committed the crime of perjury, in falsely swearing to a claim or account against the city of Buffalo. It charges that the city is a municipal corporation, and that it is provided by its charter that the common council shall audit all claims against the city, but no unliquidated claim shall be received for audit unless made out in detail and accompanied by an affidavit that the claim and items and specifications thereof are, in all respects, just and true.

That before it shall be audited by the common council the claim shall be referred to the auditor of the city. That it is made the duty of the commissioner of public buildings to correctly audit and certify to the correctness of all bills and accounts and claims for services, material furnished and work performed for the city relating to the public buildings before such bills and accounts shall be presented to the council for audit and payment, and where the claim is for work performed or material furnished upon or about any public school building, that it shall also be the duty of the principal of the school to certify to the correctness of the contents of the bill. That the account was made out by the defendant and the alleged false affidavit attached, and that the same was delivered by him to one Robert H. Sliker, who was then the commissioner of public buildings of the city, for his certificate that the same was correct and true, for the purpose of presenting the same to the common council for audit and payment. That the commissioner of public buildings thereupon attached his certificate to that effect, and the defendant thereupon delivered the same to the principal of the public school No. 19 of the city of Buffalo, that being the school building in which the services stated in the bill was claimed to have been performed, for his certificate that the claim was correct and true, for the purpose and with the intention and design of presenting it for audit and payment by the common council.

The question presented by the demurrer is as to whether the delivery of the claim with the false affidavit attached, to the commissioner of public buildings or to the principal of public school No. 19 constituted a crime.

Under the charter, it is provided that every person who-shall wilfully and corruptly swear false in any affidavit, authorized by the charter, shall be deemed guilty of perjury. Under the provisions of the Penal Code, it is made-perjury for any person to wilfully and knowingly testify and declare, depose or certify falsely to any material matter in an affidavit required by law. Section 96.

The crime of perjury being covered by the provisions of the Penal Code, it doubtless supersedes the provision of the-charter, for only the penal provisions of charter acts which are not covered by the provisions of the Penal Code are-saved by the Code. People v. Jaehne, 3 N. Y. State Rep. 11-21.

The affidavit to the claim in question was required by law, for under the provisions of section T, title 3, of the-city charter, the claim was not only required to be made out in detail, but to be accompanied by an affidavit that, the claim and the items and specifications thereof were in all respects just and correct, and that no payment had been made and that no set-off exists except those stated. Section 100 of the Penal Code provides that the making of the deposition or certificate is deemed to be complete within the-provisions of this chapter from the time when it is delivered by the defendant to any other person with intent, that it be uttered or published as true.

By referring to the charter and ordinances we find that various steps are necessary in order to obtain payment of a claim against the city. As to the claim in question it was necessary for it to be made out in detail and verified by the claimant. It had to be audited and certified to be correct by the commissioner of public buildings. This was one step in the proceedings to obtain its final audit and payment.

Second. It had to be delivered to the principal of the-public school and audited and certified by him.

Third. It had to be filed with the clerk of the city and referred by the council to the city auditor for his approval and allowance before it could be directed to be paid by the council. All of these officers are charged with official duty in reference to the auditing and allowing of the bill. When therefore the defendant presented his claim with his false oath attached, to the commissioner of public buildings for his audit and certification with the intention of procuring payment of the claim by the common council of the city, it appears to me that it was the delivery to another person with the intent that it be uttered as true within the meaning of section 100 of the Penal Code, and that the crime became complete.

Again, after procuring this certificate of the commissioner of public buildings, the delivering of the bill with the false affidavit and certificate of the commissioner to the principal of public school No. 19 for the purpose of procuring his certificate with the intent of procuring payment of the false claim by the common council of the city; that the crime was again complete within the provisions of that section.

It is contended that the charter does not require the affidavit to be endorsed upon or attached to the claim until it is presented to the common council. The charter is silent as to the precise time at which the affidavit shall be made. It only provides that no unliquidated claim shall be received for audit unless made out in detail and verified so that the verification must precede the reception of it for audit. The ordinance of the city, however, authorized by its charter, provides that all accounts presented to the council for audit and allowance as claims against the city shall be made out as required by section 7, title 3, of the city charter, and the same shall be filed with the city clerk for presentation to the council.

Before filing such accounts the same shall be certified by the officer or person authorized by the council to create the liability, etc. Under this ordinance the account must be made out as required by section 7, title 3 of the charter before fifing with the city clerk. That section requires the account to be verified. If it is made out as required, it must therefore be verified. Before fifing such account the' same must be certified by the officer or persons authorized by the council t create the liability. In the case under consideration it must be certified by the commissioner of public buildings and the principal of the school. These officers cannot certify to the bill before it is made out. They are to certify to the bill before it is filed with the clerk.

It, therefore, appears to me that the fair construction of the provision is, that the account must be made out as required by section 7, title 3 of the charter, that is, made out and verified, and then before fifing with the clerk it must be certified to by these officers. To hold otherwise would require the officers to certify to the account when only made out in part, as required by such section. This would deprive them of the evidence that they have the right to have before them when they are called upon to officially audit and certify the bill.

There are .many public buildings in the city of Buffalo and it can hardly be presumed that the commissioner of public buildings can personally know of every nail or screw that may he used in their construction or repair. He is required to generally supervise the construction and repairs, and in that way he knows the character of the work performed and material furnished, the prices that should be paid, etc. But as to every one of the minor details that would not come under his personal observation he cannot be expected to possess or have accurate knowledge in reference thereto, and must rely to some extent upon the statements and representations of the person doing the work.

It appears to me to be wise and just and within the spirit and intent of the charter and ordinance that this officer has the right to have before him a verified account before he can be required to audit and certify to the same.

The question presented upon this demurrer is of considerable importance. The indictment is fully and carefully drawn, covering all of the charges, that it is possible to make in the case. If the demurrer is to be sustained, then no person can be convicted of the crime unless they have been successful in imposing upon all of the officers required to certify and audit the bill before its presentation to the c'ommon council. If the fraud is detected by either of these officers the criminal must go unpunished for the reason that his claim had not reached the custody of the common council.

These officers under the charter and ordinance are posted as sentinels to guard the city treasury. They are the officers, under whose supervision the work was performed and they are chiefly relied upon to detect any error or fraud. After it has passed their hands the audit by the council is chiefly formal and in most cases as a matter of course. The crime was morally complete when the defendant subscribed and swore to the false affidavit He then had committed the crime in his own heart.

When he subsequently delivered it to the commissioner of public buildings he uttered and published to that officer that the account was true; that it was sworn to by him. He presented it to that officer intending to deceive him as to the correctness of the account and to procure his certificate to aid in obtaining final payment, and this, it appears to me, made the crime complete within the provisions of the Code already referred to.


author: Bradley, J.

text:
    William J. Prusia, as Overseer of the Town of Gaines, Resp’t, v. George Brown, App’lt. Same, Resp’t, v. George Brown and Richard Reed, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Discharge of civil prisoner—Effect on surety’s liability—Code Civ. Pro, §§ 2,200, 2,212 and 2,213.
    On the appeal of an action by the defendant therein the usual undertaking was made in his behalf by the defendant herein. After the judgment in that action was affirmed, execution against the property of the judgment debtor was issued and returned unsatisfied, and execution against his person was issued, upon which he was arrested and imprisoned. Afterwards in proceedings instituted for that purpose, he made an assigmnent of his property and was duly discharged from such imprisonment, under Code Civ. Pro., §§ 2,200-2,212. In an action against the surety on said undertaking, he claimed that the imprisonment was a satisfaction of the judgment. Held, That the processes of execution, both against the property and person of the judgment debtor were not in any sense an act of relinquishment of any right to the debtor. That when.the debtor had obtained his discharge, the process had failed to procure the satisfaction of the debt, and the creditor then had the same remedies against his property for the sums due upon the judgment, which he had before the last execution was issued (Code Civ. Pro., 2,213.) That the suspension of remedy against the surety upon the undertaking was then also removed. That the arrest and imprisonment of the judgment debtor were no defense for defendant.
    2. Same—Imprisonment—Effect of—Code Civ. Pro , 2,213.
    The taking of a judgment debtor into custody on final process issued upon a judgment is a satisfaction of the judgment, except so far as qualified by Code Civ. Pro., § 2,213. All proceedings upon the judgment and its liens are suspended during the continuance of the imprisonment.
    3. Same—When remedy restored against judgment debtor.
    No discharge of an imprisoned debtor other than in the manner provided by statute will remove the suspension or restore the remedy.
    Appeals from judgments upon decisions of the court on trials without jury at Orleans circuit.
    The action number one is upon an undertaking made by the defendant on appeal taken from a justice’s court to the Orleans county court, in an action of this plaintiff against one Guenther, where the judgment was affirmed.
    The action number two was brought upon an undertaking made by the defendants on appeal to this court from a judgment of the Orleans county court in an action of the plaintiff against Guenther.
    The plaintiff recovered in both actions and the defendants appeal.

      John J. Sawyer, for app’lts; John Ounneen, for resp’t.
   Bradley, J.

On the appeals taken by the defendant Guenther in the two actions of the plaintiff against him the usual undertakings were made in his behalf by the defendants in these actions respectively. And after the judgments in those original actions were affirmed and judgments of affirmance entered, executions against the property of Guenther were issued to and returned by the sheriff of Orleans county unsatisfied. Thereupon executions against his person were issued, upon which he was arrested and imprisoned in the jail of the county. After-wards, in proceedings instituted for that purpose pursuant to the statute, he made assignment of his property and was duly discharged from such imprisonment Code Civ. Pro., §§ 2200, 2212. And after such discharge these actions were brought upon the undertakings.

It is contended by the defendants’ counsel that by reason of such imprisonment of Guenther, in execution, the defendants, as his sureties, were discharged from liability upon their undertakings, because such imprisonment was a satisfaction of the judgments during the time of its continuance. The taking of a judgment debtor in custody on final process issued upon it was at common law a satisfaction of the judgment, and such is the effect now except so far as it is qualified by the statute. Code Civ. Pro., § 2213. And ah proceedings upon the judgment and its lien are suspended during the continuance of the imprisonment. Sunderland v. Loder, 5 Wend., 58; Jackson v. Benedict, 13 Johns., 533. Within that time the surety for the debtor in the action in which the judgment was rendered and the execution upon it issued, by which he was taken into custody, has a defense to any action that may be brought against him as such surety. Koenig v. Steckel, 58 N. Y., 475.

The remedy of the creditor against the surety was complete when the executions against property were returned unsatisfied. The defendants therefore insist that the plaintiff had only one or two remedies; either to proceed by action against the sureties upon the undertaking, or by execution against the person of the judgment debtor, and having taken the former cannot avail himself of the latter. Because by imprisoning such debtor the plaintiff has suspended or defeated the defendants’ right of subrogation for their protection as sureties.

It is true that a creditor cannot make any alteration with the principal of the stipulations of his contract without discharging the surety, and cannot relinquish any security for the debt to the principal without like effect, unless it is with the consent of the surety, because they result' in the suspension and impairment of his right of subrogation, but here although such may have been the effect upon the surety, the creditor has done neither. He has simply pursued the legal remedies against the principal which the law furnishes, and that he might do so we think was within the contemplation of the defendants when they assumed the relation which the execution of the undertakings gave them to the parties, and to the proceedings provided for by the statute People v. Vilas, 36 N. Y., 459, 461-2. The processes of the execution both against property and person of the judgment debtor were not in any sense an act of relinquishment of any right to the debtor, but were used as the enforcement of the legal remedies against him, with a view of obtaining satisfaction of the debt. And when the latter obtained his discharge the process had failed to produce that result, and the creditor then had the same remedies against his property for sums due upon the judgments which he had before the last executions were issued. Code, § 2,213. And we think the suspension of remedy against the defendants upon the undertakings was then also removed. In Stewart v. McGuin (1 Cow , 99), a recovery against a surety for a defendant in a suit in justices court was had and supported after the defendant was discharged from imprisonment on execution. That case arose under 1 R. L. 388, § 4, and the discharge was obtained pursuant to section 12, of the same act. The principle applicable was the same there as here, except so far as the requirement and fact of assignment now and not then existing may distinguish the cases. It is not seen how that could make any difference, as it is made for the benefit of the creditor, and therefore cannot prejudice the rights of the sureties. A voluntary assignment to secure the debt, made to the creditor or a trustee for his benefit by a debtor, is not any prejudice to the surety of the latter, and affords him no right other than that of subrogation. And the fact that the debtor had been discharged from imprisonment is recognized as the reason and support for the decision in Stewart’s case. By the court in Sunderland v. Lockwood, 5 Wendell, 59. In Koenig v. Steckel supra, the recovery against sureties was denied upon the ground that their principal was then in custody on execution, during which time remedy was suspended. No discharge of an imprisoned debtor other than in the manner provided by the statute, will remove the suspension or restore remedy. Poucher v. Holley, 3 Wendell, 184; Kasson v. People, 44 Barb, 347. If these views are correct, the arrest and imprisonment of the judgment debtor upon the executions is no defense for the defendants.

And we fail to see in the record any force in the objection for the purposes of the action against Brown and Eeed in respect to the omission of the notice of appeal to the general term in the judgment roll, or in the excluded offer of evidence in respect to the time when the amount of costs of the appeal was actually inserted in the judgment.

This clerical omission was unimportant, assuming as we must for aught that appears, that they had been in due time taxed. None of the exceptions seem well taken.

The judgments should be affirmed.

Smith, P. J., and Haight, J., concur.


text:
    Louisa Ster, App’lt, v. Catharine Tuety, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Negligence—Defective sidewalk—Practice—Evidence—Offer of WHEN NOT SUFFICIENT.
    In an action brought to recover damages resulting from the falling of plaintiff, because of a defect in the sidewalk in front of defendant’s premises in the city of Rochester, the plaintiff’s attorney offered to show: “ That other persons passing back and forth over this walk fell on the same spot where the accident occurred to the plaintiff, while the walk was in the condition described.” This was excluded and an exception taken. The witness, who was on the stand when the offer was made, had described three different conditions of the walk. Held, not error. That the character or condition of the persons, the time when, and the conditions under which- they had fallen did not appear in the offer. That the words, “ condition described,” appearing in the offer did not necessarily confine the evidence offered to the condition that the walk was in at the time the plaintiff fell. That the offer fell short of the rule laid down in Quinlan v. City of Utica (11 Hun, 217).
    2. Same—Offer strictly construed.

      Held, that an offer which is made the basis of error should be strictly construed.
    3. Same—Removal of sidewalk—When not wrongful and not a nuisance—Duty of person doing it.
    The removal of a sidewalk is not wrongful under all circumstances. The temporary removal of a sidewalk in order to excavate cellars and carry in material used in the construction of buildings does not constitute a nuisance; but the person doing it is bound to properly guard and furnish reasonably safe passage for the public; and if such provision is made he is not chargeable with a wrongful act, or of creating a nuisance
    4. Same—Practice—Evidence—Competency.
    The defendant in her answer alleged that she had let a contract to construct a building for her and that the contractor had taken possession of the whole of the premises under the contract, and that she was not in possession of the premises at the time of the plaintiff’s accident, and had no notice of any defect of any kind in the sidewalk, and denied that she ever took up or removed or caused to be taken up or removed any portion of the sidewalk, etc. Held, that the defendant had a right to establish this defense if she could, and that evidence bearing thereon was properly admitted. That if she had proved these allegations it would have amounted to a defense so far as she was concerned.
    Appeal from a judgment entered upon a verdict of the Monroe circuit and from an order denying motion for new trial.

      William E. Werner, for app’lt; Martin W. Cooke, for resp’t.
   Haight, J.

This action was brought to recover damages which the plaintiff is alleged to have sustained by falling upon the sidewalk in front of the defendant’s premises on Saxton street in the city of Rochester, because of a defect in the walk The defendant was the owner of the premises abutting upon the walk in question, and had let a contract to a builder to construct a house thereon. The sidewalk in front of the premises was constructed of planks laying crosswise upon stringers embedded in the earth. The contractor in removing the earth for the foundation and taking in the materials for the building had to cross the walk in question with teams. In order to do so a portion of the walk was taken up. The plaintiff, whilst passing along the walk, on or about the first day of July, 1885, in the evening, passed over that part which had been taken up, stubbed her foot against the plank where the walk again commenced, and fell, breaking a finger and receiving other injuries.

Upon the trial the jury found a verdict for the defendant . It is now claimed that the judgment should be reversed because of errors of the court in the exclusion and admission of evidence, and m refusing to charge as requested.

Upon the trial the defendant was permitted to prove that she had entered into a contract with one Stalker to build a house for her upon her lot on Saxton street; that he entered into possession of the premises and constructed the house, and that the walk in question was taken up by those doing the mason work for him. This evidence was taken under the plaintiff’s exception, and it is now contended that it was improperly received. The defendant, in her answer, alleged that she had let a contract to construct a building for her, and that the contractor had taken possession of the whole of the premises under the contract, and that she was not in possession of the premises at the time of the plaintiff’s accident, and had no notice of any defect of any kind in the sidewalk, and denies that she ever took up or removed, or caused to be taken up or removed any portion of the sidewalk m front of the premises, and never authorized the same directly or indirectly The defendant had the right to establish this defense if she could, and evidence bearing thereon was properly admitted by the court. If she could have shown that the premises had been let by her to another who had entered into the exclusive and entire possession thereof, with the right to control the same, and, after acquiring such possession, had removed the sidewalk without the knowledge or consent of the defendant; that she had no notice, actual or constructive, of such removal, then it would have amounted to a defense so far as she was concerned. Wolf v. Kilpatrick, 101 N. Y., 146, 151.

But the defendant failed to establish her defense in this regard, and the court instructed the jury that by making the contract she did not reheve herself from the responsibility of keeping the sidewalk in a reasonably safe condition for persons traveling thereon. The court could not determine in advance that the defendant would fail in this regard. The evidence was properly received and after it was received, the court very properly held that she was not relieved from liability because of the contract.

A more serious question is presented in the exclusion of evidence as to other persons falling on this walk. The plaintiff asked the witness, Bertha Staple, the question: “Do you know of any other person who stumbled or fell at this walk?” The question was objected to; but the case does not show that the court ruled thereon.

The plaintiff's attorney then offered to show: “That other persons passing back and forth over this walk fell on the same spot where the accident occurred to the plaintiff while the walk was in the condition described. This was excluded and exception taken.

And, again, of the witness Adeline Frank, the question was asked: “ Did you ever stumble and fall at that place ?” and she answered: “Yes, sir.” This was striken out and exception taken.

In as much as this question did not refer to the time or condition that the walk was in at the time that the witness Frank fell, the exception taken to the striking out of the answer is unavailable to the plaintiff-, and the question re • solves itself into the inquiry as to whether or not it was error to exclude the evidence embraced in the offer

In the case of Quinlan v. City of Utica (11 Hun, 211), the condition of the walk was very fully and minutely described by the witnesses, and photographs, measurements and a model of the surface of the walk, showing its elevations and depressions, were put in evidence. The testimony showed that for several years immediately preceding the accident, including the various times, to which the testimony under consideration referred, the walk was in the same condition that it was in when the plaintiff received her injuries. It was held under these circumstances that evidence that others had slipped and fallen at the place in question was competent, on the ground that it tended to show that the walk tested by actual use, had been demonstrated to be in unsafe and improper condition, and that such was its condition at the time when the plaintiff was injured.

This case was affirmed by the court of appeals, 74 N. Y., 603, and has been approved by the supreme court of the United States, in District of Columbia v. Armes (107 U. S. Rep., 519-525), Pomfrey v. Village of Saratoga Springs (5 N. Y. Stat. Rep , 802), and has been followed in other cases.

The rule is, therefore, too firmly established to be questioned here. But we are inclined to the opinion that the rule should not be enlarged so as to raise numerous collateral issues; for if the walk was not in the same condition, or if the other persons, who had fallen, were intoxicated, aged and infirm, the evidence might mislead and do harm instead of tending to show the actual condition of the walk. The offer is to show that other persons passing back and forth over this walk had fallen, etc., while the walk was in the condition described. No such question was put to any witness, and an offer which is made the basis of error should be strictly construed.

The character or condition of the persons, the time when, and the conditions under which they had fallen, does not appear in the offer. It is true that the offer statesJhe “ condition described,” but on referring to the evidence of the witness Staple just preceding the offer, and who was then upon the stand, we find three conditions of the walk described. In the first place, a portion of the walk was taken up and it was leveled off with dirt taken from the cellar; that after that another portion.of the walk was taken up, and the walk left at the end was above the ground some distance, which the witness appears to have indicated, but which does not appear in the case, and that afterwards an entire new walk was constructed of plank. It will thus be observed that the words “condition described,” appearing in the offer, do not necessarily confine the evidence offered to the condition that the walk was in at the time the plaintiff fell; and we are consequently inclined to regard the offer as falling short of the rule laid down in the case of Quinlan v. The City of Utica.

In submitting the case to the jury, the court was requested to charge that the taking up of the walk was a wrongful act, and if done by the authority or permission of the defendant, or if allowed to remain by her after a discovery of the fact, or after such a reasonable length of time had elapsed that she ought to have known its condition, she was liable for any injury which occrreud by reason of it, irrespective of the- question of negligence on the part of the plaintiff or defendant. This request was declined and exception was taken by the plaintiff. The main question tried and submitted to the jury was as to whether or not the walk was in a reasonable, safe and proper condition at the time of the plaintiff’s alleged injury. Upon this branch of the case there was considerable conflict in the testimony. That upon the part of the plaintiff tending to show that the walk that was left after the removal of the planks was four or five inches from the ground; that it was up upon stringers so that a foot could catch under the plank. Whilst on the part of defense the evidence tended to show that the stringers upon which the planks rested were embedded in the ground; that the planks rested upon the earth, and that the grass and sod had grown over the end, so that the elevation -from the earth of the walk to the top of the plank was but a part of an inch. This question was carefully tried and submitted to the jury. The removing of a sidewalk is not wrongful under all circumstances. It appears that the defendant caused a new walk to be constructed in the place of the old one. The old walk, of necessity, had to be removed in order to give place to the new. In the construction of buildings in crowded cities, it often becomes necessary to temporarily remove a sidewalk-in order to excavate cellars and carry in the material used in the construction of the buildings. Such temporary removal does not constitute a nuisance; but the person doing it is bound to properly guard and furnish reasonably safe pass age for the public; and if such provision is made, he is not chargeable with a wrongful act, or of creating a nuisance; and unless the act was wrongful or a nuisance created, the question of negligence was not involved in the case.

The judgment and order should be affirmed.

Smith, P. J., and Bradley, J-., concur.


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    Henry J. Anderson, as Receiver of the First National Bank of Albion, Resp’t, v. Gates Sherwood and Eugene English, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1, Practice—Refusal of special term to pass upon merits of a motion.
    Ordinarily, when the special term declines to pass upon the merits of a motion properly made there, the general term, on review, will reverse the order and remit the motion to the special term for further consideration.
    2. Same—Consideration on merits—When not ordered.
    Objection was made to the consideration of a motion (for a new trial on the ground of newly discovered evidence) on the merits, because more than one year had elapsed since the entry of the judgment and because the judgment had been affirmed on appeal to the general term. The court denied the motion without passing on the merits. The papers on which said motion was made were not before the general term on the review of said decision, and they were not advised of any of the circumstances or facts upon which the motion was founded. Held, that as there was no reason shown why the motion should have been considered on the merits, its consideration in that manner would not be ordered.
    Appeal from an order of Erie special term denying defendant’s motion for a new trial on the ground of newly discovered evidence.

      John Cunneen, for app’lts; Wm. A. Beach, for resp’t.
   Bradley, J.

The plaintiff recovered a judgment in March, 1885. The judgment was affirmed on defendant’s appeal to the general term and judgment of affirmance entered in July, 1886. This motion by the defendant was made in January following for a new trial on the ground of newly discovered evidence.

Objection was made to the consideration of the motion on the merits, because more than one year had elapsed since the entry of the judgment, and because the judgment had been affirmed on appeal by the general term. The court, upon the authority of Fisher v Corwin (35 Hun, 253), denied the motion without passing on the merits. The papers on which such motion was made are not before us, nor are we advised of any of the circumstances or facts upon which the motion was founded or sought to be used in support of it.

The question of power of the court at special term to entertain the motion and consider it on the merits is not here, because the motion does not appear to have been denied for want of power, but simply that in view of the rule declared in Fisher v. Corwin the court denied the motion without consideration of the merits. The case cited states a general rule which in practice should be applied to motions of that character, and it is a salutary one in its general application. But that decision was not placed upon the ground of want of power, nor was it held that no case could arise in which the power should be exercised after such time. We assume that there was nothing in this case to take it out of the general rule of practice declared in Fisher v. Corwin, and that it was so treated by the court at special term. And there is nothing in the papers here which enables us to see anything to the contrary, or that the motion is one in which the ordinary practice in such cases should be departed from, after the proceedings for review have been had and the lapse of time which appears to have followed the trial and entry of judgment before the motion was made. If the denial of the motion had been placed upon the ground of want of power to consider the merits with a view to its determination, a different question may have been presented on the papers. But we are now asked to direct the consideration of the motion on the merits without the aid of any information which will justify such conclusion. Ordinarily when the special term declines to pass upon the merits of a motion properly made there, the general term on review will reverse the order and remit the motion to the special term for further consideration, but the case in view of the decision in Fisher v. Corwin is not within that rule, because presumptively the moving party in such case has the burthen of showing that his case, for reasons appearing, comes within the exception to the practice as there announced, befpre he can have consideration for his motion on the merits. We are not advised of anything which takes the case out of the rule as declared in the case cited.

The order should be affirmed.

Smith, P. J., and Haight, J., concur.


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    The People of the State of New York, Resp’ts, v. Henry G. Luke, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Criminal law—Grand larceny in the second decree—Evidence— ■-= Competency oe. '
    The defendant was convicted of the crime of grand larceny in the second degree. It appeared that he was engaged with one Silas W. Milliman in the grocery business as dealers in foreign and domestic fruits, etc.. in the city of Rochester, that the business was conducted in the name of S, Milliman, and that defendant had a power of attorney from Milliman, authorizing him to conduct the business in his name, to sign his name to all drafts, checks, bills of lading, letters, etc. It also appeared that in the city of Rochester there was a gentleman engaged in the same business by the name of Samuel Millman; that he was a man of wealth and reputation, doing a large business and .rated as being worth $50,000 It also appeared that defendant addressed a letter to a certain house in Philadelphia, having a printed heading of “ S. Milliman, dealers in foreign and domestic fruits, vegetables and oysters, 224Horth Clinton street, Rochester, N Y. Consignments solicited.” The letter was. “ Gentlemen—Please give me your prices for peaches, water melons, nutmeg melons and sweet potatoes Yours, etc., S. Milliman, per L.” He afterward ordered several lots of sweet potatoes from said firm for which he did not pay. Like letters were written to other dealers living at a distance from Rochester Held, that evidence of other and similar transactions, at or about the same time, was competent as bearing upon the question of the intent of the person charged with a criminal act. That the letters written to these dealers and their replies thereto when properly identified, and the fact as to whether the goods were procured, was competent as bearing upon the question of intent.
    2. Same—What letters not competent as evidence.

      Held, That letters written by dealers long after the transaction had taken place were not competent evidence for any purpose.
    Appeal from a judgment of conviction of the crime of grand larceny in the second degree entered upon the verdict of a jury in the Monroe court of sessions, and also from an order overruling the defendant’s demurrer to the indictment, and from an order denying a motion for new trial.

      George A. Benton, district attorney, for the people; Patrick McIntyre, for app’lt.
   Haight, J.

So far as the demurrer to the indictment is concerned, no reason is shown why the same is not properly within the provisions of section 279 of the Code of Criminal Procedure, and, therefore, the demurrer was properly overruled by the trial court.

Upon the trial it appeared that the defendant was engaged with one Silas W. Milliman in the grocery business, as dealers in foreign and domestic fruits, vegetables, oysters, etc., in the city of Rochester; that the business was conducted in the name of S. Milliman, and that the defendant Luke had a power of attorney from Milliman authorizing him to carry on and conduct the business in his name, to sign his name to all drafts, checks, bills of lading, letters, etc., and whatever else was necessary in the conduct of the business. It also appeared that in the city of Rochester there was a gentleman engaged in the same business by the name of Samuel Millman; that he was a man of wealth and reputation doing a large business throughout the country, and was rated in the Bradstreet Commercial agency as being worth $50,000 or upwards. It further appeared that on or about the 13th day of August, 1885, the defendant addressed a letter to Messrs Joseph B. Clement & Co., Philadelphia, Pa., having a printed heading of “S. Milliman, dealer in foreign and domestic fruits, vegetables and oysters, 224 North Clinton St., Rochester, N. T. Consignments solicited.” The letter was:

“ Gentlemen:—Please give me your prices for peaches, watermelons, nutmeg melons and sweet potatoes.
Tours, etc.,
S. MILLIMAN, per L.”

Subsequently an order for ten barrels of sweet potatoes was received by Clement & Co. from these parties which was filled and the price therefor paid. Subsequently and on September 1, 1885, a further order was received, signed S. Milliman, for fifty barrels of sweet potatoes, which order was also filled by shipment of the same to S. Milliman, Rochester; and subsequently further orders were made in the name of S. Milliman, and filled by Clement & Co., none of which were paid for. The evidence further tends to show that the defendant Luke wrote the letters, signed Milliman’s name and generally took charge of the business.

The theory of the prosecution appears to have been that the defendant made use of Milliman’s name for the purpose of deceiving dealers throughout the country, and for that purpose he dropped the given name “Silas W.,” using only the letter “S.,” so that the name might be easily taken for “Samuel” or “S. Millman.” That this was a scheme to induce dealers living at a distance to consign produce to him or S. Milliman on credit. That at the time of procuring the property mentioned in the indictment, both Luke and Milliman were insolvent and had no intention of paying for the same, and that it was procured with the intent to cheat and defraud Clement & Co. of the value thereof; and for the purpose of establishing this fraudulent intent the district attorney introduced and there was received in evidence a large number of letters written to other dealers living at a distance throughout this and other states of the same import as those addressed to Clement & Co.

Undoubtedly evidence of other similar transactions at or about the same time is competent as bearing upon the question of the intent of the person charged with a criminal act. The letters written to these dealers and their replies thereto, when properly identified, and the fact as to whether the goods were procured, was doubtless competent upon this branch of the case, as bearing upon the question of intent, but we do not understand that letters written by dealers long after the transaction has taken place is competent evidence for any purpose. Upon the trial the district attorney produced a letter which was shown to the witness Spears, who had been at work for these parties in their store, and who testified that the letter was received by Milliman or Luke. The' letter was then offered in evidence; it was objected to as incompetent and immaterial, and as being nothing but written declarations of Clement after the transaction had been closed. The objection was overruled and exception taken. The letter was read and is as follows:

“Philadelphia, 10-3-85.
S. Milliman—On receipt of notice of your note going to protest I went to Rochester to see you. On first day there I was at your store several times, and was told you was out at present. I staid over another day, and was told you had left on the 1:05 train for New York. At the same time you was in Rochester and kept from me all the 'time. I have positive proof by three disinterested persons. Now, Mr. S. Milliman, I want my money, and there is no good reason why you should not pay me. The sweets shipped you no honest dealer could complain of. You have sold the sweet potatoes and got your pay. Now, I have not pressed you for the money until I got your protested note, then I came to Rochester to get my money and you have shunned me. Now, please let me hear from you and save further trouble. Hoping to hear from you soon.
J. B. CLEMENT & CO.”

This letter was not even identified as having been written and sent by Clement & Co. to the defendant or Milliman. It was produced by the district attorney, and Spears said it was received by Milliman or Luke. If it was a letter written by Clement & Co., as it purports to be, and forwarded to Milliman, it was long after the transaction charged in the indictment, and consequently no part of the res gestae, it does not appear to us to be more than the declarations of Clement after the transaction, and such declarations are not evidence against a person charged with crime.

Again, the witness Spears testified that he believed Milliman did business with J. B. Bland, of Baltimore, in the fall of 1884. The witness was then shown a letter by the district attorney, and he answered that it was received from Mr. Bland. The letter was then read in evidence under the same objection and ruling as before stated, and reads in part as follows :

“Baltimore, October 9, 1884.
S. Milliman—Tour last letter reached me a few days ago. Yesterday I received a letter from your city which placed me in possession of all the facts, and shows me that I have been swindled, and you are the person who did it. Supposing you to be another party in your city who unfortunately has a name similar to yours I sent the barrels of potatoes, believing that I was dealing with an honest man. It turns out that I was mistaken, and the result of that mistake I see very plainly that I will lose that small sum; but, sir, if I lose it you shall not be the gainer. Mark well what I say. It will be the dearest twenty-eight dollars you ever made in your life,” etc. This letter contains upwards of two printed pages of matter, condemning in severe terms the parties to whom it was addressed. It was no part of the res gestae, and it was not competent to prove by it an order from the defendant in the name of Milliman for potatoes, or other produce, and that such order had been filled and not paid for. For these reasons a new trial must be ordered.

We have examined the case upon the merits, and in so far as the facts are concerned or the exercise of a discretion vested in this court, a new trial should be denied, but upon the errors of law, and those only, a new trial must be granted, and for that reason the proceedings are remitted to court of sessions of Monroe county.

Smith, P. J., and Bradley, J., concur.