author: Hardin, P. J.: Boaedman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SEYMOUR BATES, Appellant.

      Cowrl of Special Sessions — its jurisdiction is limited to offenses committed within the county— Code of Criminal Procedure, seas. 56, 63, 135 and 147.
    The defendant, a resident of the town of Ulysses, Tompkins county, having procured a license from the commissioners of the town of Covert, Seneoa county, sold liquors thereunder at a place in the latter town and county, within fifty feet of the line of Tompkins county. He was arrested upon a warrant issued by a justice of the peace of the town of Ulysses for a violation of the provisions of the excise law, and convicted of that offense by a Court of Special Sessions held by the said justice.

      Held, that the court had no jurisdiction over the offense as it was not committed within the county of Tompkins.
    That jurisdiction to try the offense was not conferred by section 135 of the Code of Criminal Procedure, providing that “when a crime is committed on the boundary of two or more counties, or within five hundred yards thereof, the jurisdiction is in either county,” as that section did not relate to Courts of Special Sessions or to magistrates holding such courts.
    Appeal from a judgment of the Court of Sessions of Tompkins coilnty, modifying a judgment rendered by a Court of Special Sessions.
    The defendant was arrested on a warrant issued by a justice of the peace of the town of Ulysses, Tompkins county, charged with having sold liquors in the town of Covert, in Soneca county, and within fifty feet of the county line of Tompkins county.
    The defendant was not a resident of the town of Covert, but resided in the town of Ulysses. A license to sell liquors in quantities less than five gallons, not to be drunk on the premises, viz., a store keeper’s license had been granted to him by the excise commissioners of the town of Covert. The defendant sold liquors in quantities less than five gallons, but not to be drunk on the premises. He sold no liquors within the county of Tompkins.

      J. D. Smith, for the appellant.

      O. L. Smith, district attorney, for the people, respondent.
   Hardin, P. J.:

Emory was a justice of the peace of the county of Tompkins, who issued on the 4th day of July, 1885, the warrant upon which the defendant was arrested and brought before him.

According to section 147 of the Code of Criminal Procedure he was a magistrate, and by section 62 of the Code of Criminal Procedure he was authorized to hold a Court of Special Sessions. Courts of Special Sessions have such jurisdiction as is conferred upon them by section 56 of the Code of Criminal Procedure, “to hear and determine charges of misdemeanors committed within the respective counties as follows.” The language just quoted seems to limit the jurisdiction to crimes committed within the county where the magistrate is authorized to hold a Court of Special Sessions.

Subdivision 32, as amended May 28, 1884, allows such Courts of Special Sessions jurisdiction, viz.: “ When a complaint is made to or a warrant is issued by a committing magistrate for a violation of the laws relating to excise and the regulation of taverns, inns and hotels * *

No provision of law has been cited to us nor a word found which confers jurisdiction upon a justice of the peace or upon a Court of Special Sessions held by him, of a crime committed beyond the county in which he resides. Wherever jurisdiction has been given beyond the county in which a court of limited jurisdiction is held, it has been by special enactment.

Our attention has been directed to the language of section 135 of the Code of Criminal Procedure, which reads as follows : “ When a crime is committed on the boundary of two or more counties, or within five hundred yards thereof, the jurisdiction is in either county.” This section is in substance like a provision contained in the Eevised Statutes (2 E. S., 727), section 45. That provision of the Eevised Statutes is found in article 2 under a heading of “Indictments and proceedings thereon.” The language of that section differs somewhat from section 135 quoted from the Code of Criminal Procedure; it is as follows, viz.: “ Section 45. When an offense shall be committed on the boundary of two counties or within five hundred yards of such boundary, £j,n' indictment for the same may be found and a trial and a conviction thereon may be had in either of such counties.” Under that section the indictment in Otsego county in the case of the People v. Davis (56 N. Y., 95) charging the crime to have been committed in the town of Brook-field in Madison county, was upheld as good, because it also contained a charge that the crime was committed within 500 yards of the boundary line of Otsego county. By an inspection of the Code of Criminal Procedure we find section 135 as found in jiart 4, entitled, Of the proceedings in criminal actions prosecuted by indictment.” We think the caption found in the statute is to be taken into consideration in determining what signification should be given to the words found in section 135. We are of the opinion that the jurisdiction conferred over crimes committed on the boundary of a county and within 500 yards thereof is limited to courts proceeding by an indictment, and that section 135 does not confer jurisdiction upon Courts of Special Sessions or magistrates holding such courts.

Nothing to the contrary to what we have said was expressly held in the case of the People v. Davis (36 N. Y., 77). The proceedings in that case were by indictment and of course the grand jury had jurisdiction of that crime which was committed within 500 yards of the county line, and it was lawful to proceed by indictment for such an offense. Section 45, which we have already quoted, gives to the grand jury and the court the same jurisdiction as they would have had had the crime been perpetrated within the territorial limits of the county of Yates. We are of the opinion that the magistrate,, and the Court of Special Sessions held by him, had no jurisdiction over a crime alleged to have been perpetrated in the town of Covert,, in the county of Seneca.

It is suggested by the counsel for the appellant that the question of jurisdiction was waived because not taken when the defendant was first brought before the magistrate. An objection was distinctly taken that the court had no jurisdiction over the alleged offense. ,We are of the opinion that the objection was timely and that the Court of Special Sessions improperly overruled the objection, and that it was its duty to have dismissed the charge made against the defendant at that stage of the proceedings.

It may also be observed that the warrant does not in terms charge an offense to have been committed in the town of Ulysses or in the county of Tompkins. The language of the warrant was, viz.: The crime of selling strong and spirituous liquors, wine, ale, beer and cider within the jurisdiction of Tompkins county has been committed.” The language is somewhat vague and indefinite, and a further inference from the literal reading of it might be that the crime was committed within the territorial limits of Tompkins county. If that be the proper rendering of the language the admissions of proof upon the trial clearly showed that the supposed offense was not committed within the territorial limits of Tompkins county, but was committed in the town of Covert in the county of Seneca. The justice overruled the objection and the defendant excepted.

We think the question of the want of jurisdiction in the magistrate or the Court of Special Sessions was raised timely, and was improperly disposed of by the trial court. For that error, we think there should be a reversal of the judgment of the Court of Sessions of Tompkins county and the court directed to give judgment for the defendant.

Judgment of the Court of Sessions of Tompkins county and of the Court of Special Sessions reversed, and the Court of Sessions directed to grant an order for judgment for the defendant.

Boaedman, J.:

I concur in the foregoing opinion. It seems to me doubtful whether a conviction could have been had in Seneca county while the license remained unrevoked, and if so that which was not a crime in Seneca county could not be punished as a crime in Tompkins county.

Follett, J., concurred.

Judgment of the Court of Sessions of Tompkins county and of the Court of Special Sessions reversed, and the Court of Sessions directed to grant an order for judgment for the defendant.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    CHRISTIAN KOBER, Respondent, v. MARCUS MILLER, Appellant.

      Witness — he cannot he asked whether he was ever indicted.

    Upon the trial of an action to recover damages for injuries to property alleged to have been occasioned by the defendant’s negligence, he was asked upon his cross-examination, and compelled against his objection and exception, to answer in the affirmative the question, “have you ever been indicted?”

      Meld, error.

      Pyan v. People (79 N. Y., 593) followed.
    Appeal from a judgment, entered in the Chemung County Court for $266.90. The action was brought to recover for the value of plaintiff’s team, loaned to defendant to work for the city of Elmira, which was alleged to have been killed while so at work through the negligence of defendant and his servants.
    There was a question of fact at the trial in regard to the alleged negligence. Upon the trial the defendant was a witness in his own behalf and gave evidence upon the principal issues in the action. In the course of the cross-examination the defendant was asked, “have you ever been indicted?” This was objected to as incompetent, and the objection overruled to which the defendant excepted. Witness answered “yes’; ” and he was then asked how many times, and answered “ probably two times.”

      Brown db Baxter, for the appellant.

      John T. Davidson, for the respondent.
   Hardin, P. J.:

When the County Court allowed the question to be put to the defendant as to whether he had been indicted, an error was committed, such evidence was not competent, which the defendant was compelled by the ruling to give. The answer may have impaired the witness before the jury to such an extent, that the jury wb oily disbelieved the witness. The ruling is condemned by the decision of the Court of Appeals in Ryan v. People (79 N. Y., 593; People v. Irving, 95 id., 544; People v. Noelke, 94 id., 143). There was a dissenting opinion in that case and a reference in it to Southworth v. Bennett (58 N. Y., 659). But the majority decision made by the court condemns the ruling. We must follow the majority decision as well other cases in point. (People v. Crapo, 76 N. Y., 288; S. C., 15 Hun, 269; Wright v. People, 16 Weekly Dig., 269.) The respondent suggests that the case in 58 New York (supra) was a civil one, and that Ryan v. People was a criminal one, and that both cases may stand, one giving a rule in a civil case and the other giving a different rule in a criminal case. That distinction was not pressed in the dissents in Ryan v. People. We do not think it sound.

In civil and in criminal cases the rules of evidence so far as they bear upon the proper mode of impeaching or discrediting a witness are alike. No sound reason can be given for a distinction. [Regarding Ryan v. People as precisely in point, it is our duty to apply it to the ruling now before us and to declare that the County Court fell into an error. We cannot say that the error worked no harm.

Judgment of the County Court of Chemung county reversed and a new trial ordered in that court, with costs of this appeal to abide the event.

Boardhan and Follett, JJ., concurred.

Judgment of the County Court of Chemung county reversed and a new trial ordered in that court, with costs to abide the event.


text:
    JOSHUA L. WADLEY, Respondent, v. JOSEPH H. DAVIS and Others, Appellants.

      Judgment affirming a surrogates oi'der in special proceedings — right of a party to enter a judgment for costs.

    "Where an order of a surrogate granting leave to issue an execution upon a judg* • ment, after the death of the judgment debtor, is affirmed, with costs, by a General Term, the successful party is entitled to enter and docket a judgment of affirmance establishing the surrogate’s decree and awarding costs as in an action for similar services, and to issue an execution for the collection of the-amount of the costs included therein.
    Appeal from parts of an order made by the Oswego Special Term, denying a motion to vacate a judgment.
    A petition was presented to the surrogate of Oswego for leave to issue an execution upon a judgment after the death of the judgment debtor. Leave having been granted an appeal was taken from the decree of the surrogate to the General Term, where his decision was affirmed in October, 1884, with costs. The costs were taxed and the decision of the General Term was filed. Thereafter a judgment was entered and docketed with the clerk of Oswego county affirming the surrogate’s decree, fixing the costs, and authorizing their collection.

      William Tiffany, for the appellants.

      Cyrus Whitney, for the respondent.
   Hardin, P. J.:

Plaintiff’s proceedings before the surrogate of Oswego for leave to issue an execution against a deceased judgment debtor were special proceedings. (Code of Civil Pro., §§ 1380, 1381; Matter of Simpson, 26 Hun, 460; Marvin v. Marvin, 78 N. Y., 541; In Matter of Public School, etc., 86 id., 396.)

It was held in Belknap v. Waters (11 N. Y., 477) that a proceeding instituted by summons and complaint is an action, and that every other remedy is a special proceeding.” By section 1380 of the Code application must be made to the court in which a judgment is recovered for an order, and to the Surrogate’s Court for “a decree to the same effect.” Erom the “ decree ” granted by the surrogate an appeal was allowable. It was taken and heard by this court, and a decision was handed down October 22, 1884, affirming the action of the surrogate, with costs. A copy of that decision, was obtained, certified and filed with the clerk of Oswego county. Thereupon the respondents presented a bill of costs, such as would be allowed in an action for similar services, and caused the same to be taxed. It is well adjudged that costs were allowable and that respondent was entitled to the costs which were included in his bill. (Code of Civil Pro., §§ 2550, 3240; Cole v. Terpenning, 27 Hun, 111.) After our decision was filed with the clerk, and certified to-the clerk of Oswego county and entered, we think the respondent was entitled to enter a judgment which should formally evidence the determination of the appeal. It was proper that it should show that the appeal from the surrogate’s decree had been heard and determined, and also indicate what that determination was as to the-subject-matter of the appeal, viz., whether the decree was reversed, affirmed or modified, and whether the appellants or the respondent were entitled to costs, or whether costs were withheld from the parties, or whether the costs were made “ payable out of the estate or-fund, or personally by the unsuccessful party * * (Code of Civil Pro., § 2589; Lawrence v. Lindsey, 70 N. Y., 566; Sheridan v. Houghton, 84 id., 644, 645.)

By section 2585 of the Code of Civil Procedure, an appeal from a decree of a surrogate must be heard by this court in the same-manner ” * * * “as where an appeal is taken to the Supreme Court from a final judgment or an order of an inferior court.” By that section it is also prescribed that “ the judgment or an order-made thereupon must be entered, and the papers must be filed in the same manner * * * as where an appeal is taken to the Supreme Court from a final judgment or an order of an inferior court.” * * * It still farther provides, “ the effect of the judgment, with respect to the proceedings in the Surrogate’s court, is the same as (in case of an appeal referred' to) in title third of chapter 12 of this act ” (Code of Civil Procedure.) In that title is-found section 1345 of the Code. It is there said that “ a judgment of the Supreme Court, rendered upon an appeal authorized by this-title, must be entered in the judgment book kept in the office of the-clerk of the county wherein the court below is located.” It was-proper to file tbe judgment roll and enter the judgment in Oswego county, as that was the county “ wherein the court below is located.” Section 2587 of the Code declares what judgment may be given by this court when an appeal is brought into it like the one which was heard by us and decided in October, 1881. That our decision is regarded as the warrant for “ a judgment of this court ” is favored by the remarks of the surrogate in Wright v. Wright (3 Redf., 326).

Our conclusion is that the respondent upon filing our decision, made in October Term of 1881, was entitled to enter a judgment ■of affirmance establishing the surrogate’s decree and awarding costs as in án action for similar services, and that the judgment ■entered was valid and that the Special Term properly refused to set it aside.

Order of Special Term affirmed, with ten dollars costs and ■disbursements.

Boabdman and Folleto, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author:
Boardman, J.: 'Hardin, P. J.:
     F ollbtt, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK MONDON, Appellant.

      Confession of a person accused of crime — what is included in the term as used in section 395 of the Code of Criminal Procedure — when the prisoner’s examination before the coroner is admissible — what evidence in addition to a confession is necessa/ry to a/athoriae a conviction.

    The defendant, an Italian laborer, while under arrest upon a charge of murder, was taken by the sheriff before the coroner, and after being sworn was examined as to the relations existing between him and the deceased, and as to his own conduct at or about the time of the homicide. He confessed no fact tending to convict him of the crime, the acts and declarations as to which he testified being material only in so far as they were afterwards proved to be in some respects false. He had no counsel, and the coroner did not advise him that he need not answer any of the questions put to him or submit to an examination.
    Upon the trial of the defendant for murder in the first degree the statements made by him upon his examination before the coroner were, against the objection and exception of his counsel, admitted in evidence.

      Held, that the term “ confession,” as used in section 395 of the Code of Criminal Procedure, providing that “ a confession of a defendant whether in the corase of judicial proceedings or to a private person, can be given in evidence against Mm, unless made under tbe influence of fear produced by threats,” is not to be restricted to admissions of guilt alone, but is intended to include statements as to Ms conduct and declarations at and about tbe time of tbe commission of tbe crime.
    That 1he statements were admissible under tbe said section and that tbe court did not err in receiving them. (Follett, J., dissenting.)

      People v. McG-loin (91 N. Y., 241) followed. '
    Tbe counsel for tbe defendant requested tbe court to charge that if there was not sufficient evidence to satisfy tbe jury, aside from tbe admissions of tbe defendant that be committed tbe crime charged, they must acquit him. Tbe court refused so to charge, but did charge that tbe confession was not sufficient without additional proof that tbe crime bad been committed.

      Held, no error.
    Appeal from a judgment convicting the defendant of murder in the first degree, and from an order denying a motion for a new trial.
    The defendant was accused of having killed one John Weishart, whose body was found in a ditch in the vicinity of the defendant’s-house. TJpon the trial, testimony given by the defendant upon his examination under oath before the coroner was, against the objection and exception of his counsel, received in evidence. The counsel for the defendant requested the court to charge the jury that if there is not sufficient evidence to satisfy the jury, aside from the admissions of the defendant that he committed the crime charged, they must acquit him.
    The Court — Do you mean by that that they cannot convict unless they are satisfied after throwing out the confession %

    The defendant’s counsel — Yes, sir.
    The Court — I refuse to charge that, but I charge, as I have-before, that the confession is not sufficient without additional proof that the crime has been committed. To the refusal to charge and to the qualification made by the court the defendant excepted.

      J. J. Huddleston and H. Olay Hall, for the appellant.

      A, B. Steele, district attorney, for the respondent.
   Boardman, J.:

The defendant was convicted of murder in the first degree in killing John 'Weishart. At the inquest held to ascertain the cause of his death, the defendant then under arrest charged with the murder, was brought by the sheriff before the coroner and sworn-While denying his guilt he made statements touching his relations with deceased, and about his own conduct at or about the time of the homicide. These statements were proved upon the trial, under the defendant’s objection and exception, but no ground of objection was stated to the court, so far as the papers show. Assuming, however, that the objections and exceptions were sufficient in form, we have to consider whether the defendant’s declarations made before the coroner under oath while under arrest on suspicion, but without warrant charged with this crime, were admissible in evidence.

By section 395 of the Code of Criminal Procedure a confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence' of fear produced by threats,” etc. The remainder of the section has no relation to the question before us. The evidence offered was not a confession but, on the contrary, a denial of his guilt of the crime. The statements made will not, however, be treated I apprehend, by any harsher rule than if they were confessions in the strictest sense of guilt. They were confessions or statements of his conduct and declarations about the time of the murder and where he was and what he knew or saw of the deceased at the same time. I shall hold that such statements are controlled by the section cited and that it will not be restricted by the courts to admissions of guilt alone. The purpose of the law, I submit, is to allow such evidence to be given to a jury, provided it is not made under the influence of fear produced by threats. The jury, from all the circumstances surrounding the case, is left to give to it such weight and credit as seems proper. The section was doubtless intended to make a definite and certain rule where formerly, if the authorities were not conflicting, they were obscure, refined and difficult to follow or distinguish. The commission of a crime is easy and prompt. The punishment of the criminal is often a task of great difficulty, involving a great expense of time and money. It is therefore wise in the legislature to render easy and certain, so far as may safely be done, the rules of evidence to be observed in criminal trials. The competency of such evidence is fully supported, I think, by the case of the People v. McGloin (91 N. Y., 241; S. C., at Genl. Term, 1 Crim. Pep., 105). Judge Brady, at General Term, says this section, “ in phraseology at least, limits the objection to a confession to the ground simply that it was made under the influence of fear produced by threats.” And therefore whatever may have been the rule heretofore, such confessions, with the exception named and possibly one other, may be admitted in •evidence against the prisoner. In the Court of Appeals Chief Judge Huger would have been content to rest the decision of the court upon Judge Beady’s opinion were not a human life involved. He therefore proceeds to discuss the several grounds of objection taken in that case.

Fvrst. That the confession was made under the influence of fear produced by threats.

Second. Because it was taken before a magistrate after the defendant was accused of, and under arrest for, the perpetration of the crime, and

Thvrd. That it was not voluntarily made, being a sworn deposition. He finds in the case no evidence of threats, and so dismisses the first ground. A summary statement of the law as well settled prior to the Criminal Code, is his answer to the second objection. He says, page 247:

1st That all confessions material to the issue, voluntarily made by a party, whether oral or written, and however authenticated, were admissible as evidence against him on a trial for a criminal offense. (People v. Wentz, 37 N. Y., 303.)

2d. It was no objection to the admissibility of such confessions, that they had been taken under oath from a person attending before a coroner, in obedience to a subpoena upon an inquiry conducted pursuant to law into the causes of a homicide. (Hendrickson v. People, 10 N. Y., 28; Teachout v. People, 41 id., 7.)

3d. That the confession or declaration sought to be given in evidence was in writing and purported to be sworn to was no objection to its admissibility, unless it also appeared that it was taken before a magistrate upon a judicial investigation against the person accused of the commission of the crime. The learned judge proceeds to show that the examination before a coroner is extra judicial and is not included in the third proposition quoted and is not embraced in sections 188 to 200 of Criminal Code.

In the McGloin case the statement, purporting to be under oath, was made before the coroner. But if under oath it was decided that under the authorities it was in no respect a compulsory state ment and was at common-law admissible in evidence against the defendant. Then after reciting section 395 of Criminal Code it is further said : It is thus found that neither at common-law, nor by the statute, was this evidence open to any of the grounds of objection raised.”

The McGloin case seems to me to sustain the rulings of the learned justice on the trial. The language of the Criminal Code is broad, distinct and positive. It allows the evidence to be put in on the trial and its weight and value to be adjudged by the jury. Why shall we not accept it as it reads and according to its plain intent ? Why shall we again go back to the vague and nebulous hypotheses of possible influences upon the mind of the prisoner, of his fear and anxiety and confusion arising from his situation ? He is now a competent witness in his own behalf and can explain his declarations and conduct after abundant time for reflection. The acts and declarations of the prisoner, as sworn to by him, tended to exculpate him from the alleged crime and were of no consequence except as they were afterwards in some respects proved to be false. He confessed no fact before the coroner tending to convict him of the crime now charged upon him. Why, then, shall it be presumed that he was acting under the influence of fear, instead of cunning, in the absence of evidence ? Why shall it be presumed in the like absence of evidence that his evidence so given was not voluntarily and willingly given ? True, the coroner should have advised him that he need not answer any of the questions put to him or submit to an examination. But in the absence of such advice the law will not presume his answers were compulsory and against his will. A person accused of crime should have the protecting mantle of the law thrown around him. That is done by giving a prisoner every right of exception while the people have none. It is always safe for a court to rule against the people in criminal cases, for there can be no review or reversal on that account. So that step by step the tendency is to protect the prisoner by all recognized lawful means and also to give him the benefit of every doubtful ruling on the trial. If the present evidence shall be held incompetent on appeal, the trial courts are again thrown back into the slough of dpubt and uncertainty. Presumptions will again be invoked to deprive the jury of the prisoner’s declarations, admissions and conduct when the fact was recent and when honest and innocent men are likely to tell the truth. The Criminal Code will be disregarded by holding it incompetent. A rule of evidence adopted by the legislature should not be deprived of all its virtue by judicial construction in hostility to its plain intent.

The request to charge was clearly untenable. The jury was told it could not convict upon the defendant’s confession alone. But it is not the law that there must be evidence enough to satisfy of guilt outside of the confessions. The jury has the right to resort to the confessions to aid the other evidence in the case and upon the whole determine as to the guilt. Upon the merits the verdict of the jury is sustained by the evidence in the case. An examination of the other exceptions in the case does not show any error to the prejudice of the defendant, nor do any of such exceptions call for special consideration.

The judgment and order should be affirmed.

'Hardin, P. J.:

Prior to the adoption of the Code of Criminal Procedure, it was held that declarations or confessions of a person were not involuntary because made after his arrest and while in custody. (Murphy v. People, 63 N. Y., 591; Willett v. People, 27 Hun, 469.) When section 395 of the Code of Criminal Procedure was adopted, the legislature declared that confessions of a defendant “ whether in the course of judicial proceedings or to a private person ” can be given in evidence.

Two exceptions were declared to the rule : (1.) If the confessions were made under the influence of fear produced by threats. (2.) If made upon stipulation ■ of the district attorney that the person should not be prosecuted therefor. The case before us does not fall within either of the exceptions. There was nothing in the evidence before the trial court, at the time the declarations of the defendant made before the coroner were received, to indicate that the declarations were made under the influence of favor produced by threats.”

The test as to whether the ruling was correct must be made upon the evidence as it stood when the declarations were ruled upon and received. (Murphy v. People, supra.) We look into the evidence in vain for any features of it which carry the case within the exceptions in the section of the Code of Criminal Procedure under consideration. Thus we are brought to say that the general rule pre. scribed by the section allows the declarations of the defendant to be received in evidence. Furthermore the construction put upon the section by the Court of Appeals in People v. McGloin (91 N. Y., 245) it seems is in point, and it is our duty to follow and apply that construction in this case. It may be observed that there was not evidence in the case before us that called for a close discrimination upon the question of whether or not the “influence of fear produced by threats as was found in the McG-loin case.”

¡Second. A subsequent part of the section, from which the quotation has been made, declares that “ a confession is not sufficient to warrant his conviction without additional proof that the crime charged has been committed.” The learned trial judge applied this statutory rule to the case in hand. In reply to a request he said, “ I charge as I have before, that the confession is not sufficient without additional proof that the crime has been committed.” He also charged that there must be corroboration of the confession tending to connect the defendant with the crime. The language of the trial judge quoted, carried to the jury the rule laid down by the statute. (People v. Williams, 29 Hun, 520.)

Third. There was no error in refusing to charge the jury that they “ must not consider the evidence of Louise Mondon.” The effect, force and credit to be given to that evidence was properly left for the jury to say. (Chapman Exrs. v. Ins. Co., MS. opinion? Fourth Dept.) The jury were instructed that “ they might disregard her evidence.” “ It is a question for them whether they would give any weight to it and what weight; ” the charge in that regard was sufficiently favorable to the defendant. (Coleman v. People, 58 N. Y., 555.) The case seems to have been carefully tried, and the questions of fact very fairly and faithfully submitted to the jury.

In Murphy v. People (4 Hun, 102; S. C., affirmed, 63 N. Y., 590) it was held that “ to authorize a conviction in criminal cases upon circumstantial evidence it is not necessary for the prosecution to prove the case, to the exclusion of every possibility that the crime was committed by a person other than the prisoner; it is sufficient if the evidence satisfy the understanding and conscience of the jury3 and exclude from their minds all reasonable doubt of the guilt of the accused.” In the case in hand the suggestion that another, or even others may have been concerned in and in complicity with the defendant in the crime is not sufficient to warrant a distrust and disturbance of the verdict of the jury. Concurring with brother Boardman who has said “the verdict of the jury is sustained by the evidence in the case,” and believing that there was no error in the progress of the trial, I must vote for affirmance.

F ollbtt, J.

(dissenting) :

It is difficult to understand and unsafe to construe a statute, without having in mind the law upon the subject existing at the time the 'statute was passed. Since Wa/riokshaW s case (1 Leach, 263), the sole test of the admissibility of confessions in countries wherein the common law prevails is, were they voluntary ? An analysis of the reported cases would be unprofitable and simply show: (1.) That prior to Balcbry's case (2 Den. C. 0., 430), the courts presumed confessions to have been involuntary and inadmissible from slighter - causes than since that case. (2.) That the confusion in the cases has arisen from the courts assuming that the physical facts and inducements which were sufficient to render a prior confession involuntary should control the decision of every subsequent case resting upon like or similar facts, without regard to the character or intelligence of the individual, while, on the other hand, courts have applied the rule (which has remained unchanged since the case first cited), to the facts of each case, recognizing the true rule that whether a particular confession was voluntary, was a question of fact rather than of law. It is apparent that circumstances and surroundings which would unsettle and coerce the judgment of one person rendering his confession involuntary, would produce no such result in the case of another differently constituted and trained.

The following are the leading cases in this State which hear directly upon the question under consideration. In Hendrickson v. The People (10 N. Y., 13), the defendant was examined under oath before a coroner in respect to the death of his wife. When examined he was not under arrest or under suspicion. Subsequently, he was convicted of her murder, and it was held competent for the people to prove what he had testified to before the coroner. Four of the judges of the Court of Appeals holding that the evidence was properly received and three dissented. In the People v. McMahon (15 N. Y., 384), the defendant was arrested without. a warrant, upon suspicion of having murdered his wife. He was taken, before the coroner, who was holding an inquest, and examined under oath. He was afterwards indicted and tried for the murder. Dpon his trial his testimony given before the coroner was read in evidence against him. The Court of Appeals reversed the judgment, holding that the statements were not voluntary. All of the judges conurred in this judgment except two, who did not hear the argument. In the case of People v. Wentz (37 N. Y., 303), McMahon’s case was commented upon and approved; and it was held that the' test of admissibility of admissions was whether they were voluntary.

In Teachout v. The People (41 id., 7), the defendant, who was not under arrest, but was under suspicion of having murdered his wife, was examined before the coroner as to the circumstances of her death. Before he was examined, the coroner informed him that it was rumored that he had caused her death and that he was not obliged to testify. He said he had no objection to telling all he knew. (41 N. Y., 9 and 10.) Subsequently he was convicted of the murder of his wife. Upon the trial his testimony given before the coroner was proved against him by the people. The Court of Appeals held that the statements were voluntary and competent; all of the judges concurring except two

In discussing Hendrickson v. The People and McMahon v. The People, it was said: “In the former case (Hendrickson’s), the declarations were held admissible; in the latter (McMahon’s), they were held incompetent. The precise distinction by which the latter' is distinguished is that in the latter case the prisoner stood before-the coroner as a party in fact charged with the crime, and was there subjected to examination on oath touching his own guilt or innocence. The coroner was in such case substantially in the place-of an examining magistrate ; and the fact that the prisoner was held under an arrest made without warrant, could not make his protection against such an inquisition less imperative.”

The general rule applicable to judicial' confessions, is well stated by Wharton, and is fully sustained by the cases cited in the note to the section quoted. “ But the testimony of an accused party, taken as such, is not admissible, when such accused party is put on his oath and sworn and examined. This rule is founded upon the unreliable as well as the inquisitorial character of such statements, and therefore where a man, having been arrested by a constable, without warrant, upon suspicion of having committed murder, was examined as a witness at the coroner’s inquest it was held that the statements thus made by him were not admissible against him on his trial for the murder. The same rule obtains where the defendant is compelled to answer under oath questions by the committing magistrate.” (Whar. Crim. Ev., § 668; see, also, 1 Green. Ev. [13th ed.], § 225; 1 Ph. Ev. [4th Am. ed.], 560; 3 Russ. Cr. [5th ed.], 475.)

The authorities above cited do not directly bear upon the constitutional question about to be discussed, but they show that the rule applied upon the trial of this case does not prevail in any country governed by the principles of the common law.

Section 395 of the Code of Criminal Procedure provides: “ A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.”

The word “confession” signifies an admission of a guilty participation in the commission of a crime. (People v. Strong, 30 Cal., 151; People v. Parton 49 id., 632; Step. Dig. of Ev., art. 21.) This is also the sense in which the word is generally used. Within this meaning of the word, the defendant made no confession. But assuming that the word “ confession,” as used in the section quoted embraces admissions and statements made in the course of a denial of guilt, still, the question remains, whether the admissions and statements were voluntarily made. Two kinds of confessions are described in tbe section, (1) judicial confessions, made in tbe course of judicial proceedings, (2) extra-judicial confessions, made to private persons. In this case, we are dealing with judicial confessions and admissions, and the decisions and rules relating to extrajudicial confessions will not be specially considered.

The Constitution provides: “ No person shall be compelled in any criminal case to be a witness against himself.” (Const., art. 1, § 6; Code Crim. Proc., § 10.) The question arises, whether the action of the coroner and of the trial court violated this provision ? If the result is prohibited, the fact that it was brought about by the action of two courts, instead of one, while acting in the same matter, does not make the result less illegal.

The Court of Appeals, in discussing the constitutionality of the law permitting defendants in criminal cases to testify in their own behalf, said: “ The Constitution primarily refers to compulsion exercised through the process of the courts, or through laws acting directly upon the party, and has no reference to an indirect and argumentative pressure such as is claimed is exerted by the statute of 1869.” (People v. Courtney, 94 N. Y., 493.)

In People v. Hackley (24 N. Y., 83) it is said: It is, of course, competent for the legislature to change any doctrine of the common-law, but I think they could not compel a witness to testify on the trial of another person to facts which would prove himself guilty of a crime without indemnifying him against the consequences, because I think, as has been mentioned, that by a legal construction, the Constitution would be found to forbid it.” The discussion of this question in the case last cited is full, clear and instructive.

If the Constitution prohibits “ compulsion to be exercised through the process of the courts, or through laws acting directly upon the. parties,” and prohibits the legislature from passing a statute compelling a witness to testify on the trial of a/nother person to facts which would prove himself guilty of a crime without indemnifying him against the consequences,” it seems to me that admitting in evidence testimony which a prisoner was required to give in a criminal proceeding against himself, is also prohibited; and the question remains, notwithstanding the section of the Code quoted, was defendant’s testimony before the coroner voluntary?

The record in this case discloses that the defendant was an Italian laborer, having an imperfect understanding of the English language. He was under arrest charged with murder. A coroner’s inquest was being held. The prisoner was taken by the sheriff, in whose custody he was, and whose power he could not resist, before the coroner’s inquest then engaged in an investigation against himself. He did not go there voluntarily. He was sworn by the coroner as a witness, and presumably in the usual form, to tell the truth, the whole truth and nothing but the truth, in the matter under investigation. The prisoner was without counsel, and without means to employ counsel. He was not informed that he could not be compelled to be a witness against himself, nor that he need not give an answer which would tend to criminate himself. He was then questioned by the district attorney and also by the coroner. “ The examination was taken by questions put either by the district attorney or myself. He was twice examined, and at the conclusion was resworn.” The prisoner had recently come from a jurisdiction where persons charged with crime are compelled to answer questions touching their own guilt or innocence, when put by magistrates. The prisoner’s attendance before the coroner was certainly compulsory, and it seems to me the testimony taken was involuntary, and inadmissible under the Constitution.

If admissions obtained by the method under consideration are admissible, it is difficult to see why all persons charged with crime, in prison and ignorant of their rights, may not be taken by sheriffs, before committing magistrates or grand juries, and their answers used against them on trials. Whether admissions are voluntary or involuntary, depends upon the circumstances surrounding each case. Had this defendant been informed of his rights, had he been . attended by counsel, or had it appeared as a fact or by fair inference that he knew his rights, his testimony before the coroner might be regarded as voluntary ; but not so under the circumstances disclosed by this case. But it is answered there were no threats nor fear, and therefore the examination was legal, and the testimony so taken competent against him on the trial of the indictment. This does not seem to reach the question. When a constitutional statute is so administered by the court as to produce a result prohibited by the Constitution it is error.

Suppose an examination pending before a magistrate or a grand jury: Tbe person charged with tbe offense under investigation, is in jail, from wbicb be is taken by tbe sheriff and carried before tbe magistrate or grand jury. Tbe prisoner is ignorant of bis rights and is not informed of them. He is directed in the kindest manner by tbe magistrate or foreman to be sworn as a witness; be submits and is cross-examined by tbe district attorney and the presiding magistrate. His testimony is not given, “ under tbe influence of fear produced by threats,” because there are no threats. Under tbe rule declared by my brethren, evidence so acquired would be admissible upon tbe trial of tbe indictment, wbicb seems to me would be a plain violation of tbe constitutional guaranty. I am unable to see any difference in principle between tbe supposed case and tbe case at bar.

A coroner’s inquest is a tribunal created by our statutes, charged with tbe duty of investigating crimes; and this inquest was engaged in an investigation aimed at this defendant. The People v. McGloin, (91 N. Y., 211), relied upon by my brethren, does not seem to me to be at all in point. In that case tbe rule was recognized that confessions must be voluntary to be admissible. MeGloin was in confinement, and said be would make a statement. A coroner was sent for, who wrote down tbe prisoner’s statement, wbicb upon tbe trial of an indictment for tbe crime, was admitted in evidence against him. As said by tbe Court of Appeals: “ Tbe coroner was not acting in any official capacity, but as a mere clerk to take down and prove tbe confession.” Tbe coroner informed the prisoner that it was bis right to refuse to make a statement; that be should consider well before be made one, and no questions were put by tbe coroner. (People v. McGloin, 28 Hun, 152.) In McGloin’s case tbe coroner was not acting in a judicial capacity, but as a scribe; while in the case at bar, tbe coroner was acting in a judicial capacity, and in effect, reqmred tbe defendant to be sworn, and submit to an examination by tbe prosecuting officer.

In People v. Gibbons (43 Cal., 557) it was held that tbe testimony of a prisoner taken before a committing magistrate, could not be received in evidence upon tbe trial of an indictment. Tbe decision is placed upon tbe ground that tbe magistrate bad no authority to take tbe examination, and it was not admitted as a confession. Afterwards accused persons were authorized to testify before committing magistrates; and it was then held, that if a prisoner voluntarily testified, the evidence might be admitted upon a trial of the indictment. (People v. Kelley, 47 Cal., 125.)

Again, section 778 of the Code of Criminal Procedure requires the testimony taken at inquests to be reduced to writing and forthwith filed. The defendant’s testimony was not proved by putting in the coroner’s record, but by asking if the defendant swore to particular facts.

In People v. Gelabert (39 Cal., 663) it was held that an extrajudicial confession, partly in English, and partly in broken Spanish, made to a person who did not understand all the prisoner said in Spanish, could not be proved against the prisoner. How perfectly the coroner understood the defendant in this case, may be inferred from his evidence. The coroner testified: Some of the questions were put directly to the witness, some were not; those which were not put directly were put by an interpreter; we used the interpreter after the first few lines; when we came to a question which we thought he did not understand, we put that through an interpreter; I think that was kept up all through the examination; we finally adopted the interpreter ; I came to the conclusion that he did not understand English well enough to be examined; I wrote down the substance of the answers as they were given to me by the interpreter after the questions had been put; when it was read over to him it was read right along from beginning to end through the interpreter; the interpreter was a son-in-law. of the deceased; the interpreter was examined as a witness also; no, I am mistaken in the time; on the taking of the evidence which is signed by him no interpreter was used, the interpreter was used on a subsequent day; I read the evidence over to him line by line and asked him il he understood it and if it was the truth which he told me, and he said it was; then I reswore him to the deposition.”

Permitting the testimony of the defendant given before the coroner to be proved against him was error, for which the judgment should be reversed, and a new trial granted.

Conviction and judgment of the Oyer and Terminer of Herkimer county affirmed, and proceedings remitted to that court, with directions to proceed.


author:
Vann, J.: Hardin, P. J. :
     Pollbtt, J.

text:
    JOHN EDICK, Respondent, v. ELTON GREEN and BYRON POND, Appellants, Impleaded with L. LASEUR VIRGIL. ORRIN COLE, Respondent, v. SAME.

      Agreement by an incoming partner to pay firm, debts — when it cannot be enforced by a firm creditor — attachment — what facts must be stated in the papers therefor— Oode of Civil Procedme, secs. 635, 636.
    A partnership which had existed between Virgil and Green from January, 1881, to October 4,1884, was dissolved on the latter date by the sale by Virgil of his interest in the firm, subject to the firm debts, to one Pond. By the written agreement then made Virgil agreed that Pond’s interest should be an equal undivided one-half, and covenanted that the collectible accounts were sufficient to pay all the debts due from the firm, and that if they could not, after efforts to collect them, be collected he would make good the deficiencies. In consideration of this covenant Pond agreed to pay one-half of the debts of the said firm and to take Virgil's place in the firm as an equal partner.
    In an action, brought by a creditor of the firm of Virgil & Green against Green and Pond and Virgil, an attachment was issued against the property of the defendants Green and Pond upon the ground that they had no property, except such as was owned by the firm, and that they were transferring the firm property to their individual creditors with intent to cheat and defraud their firm creditors.

      Held, that the agreement between Virgil and Pond imposed no liability upon the the latter to pay the firm debts, which could be enforced by creditors holding the same; and that neither this action nor the attachment could be sustained.
    That the attachment should be set aside as to Green, because the facts stated m the affidavit did not show that he had transferred any firm property to individual creditors with a fraudulent intent.
    The verified complaint set forth four causes of action, two on notes made by the old firm, one for goods sold and 'one for rent. The facts as to one note were alleged positively, those constituting the other three causes of action on information and belief. An affidavit made by Virgil, one of the original debtors, made the complaint a part thereof and alleged that it was true, except as to the allegation as to indorsement and transfer of the notes, as to which his information was obtained from the plaintiff, and which he believed to be true. An affidavit by the plaintiff stated “that the amouns of his claim on said causes of action is the sum of $235.92, over and above all counter-claims and offsets known to deponent.”

      Held, that the affidavit of V irgil and the complaint should be read together.
    That the affidavits and complaint made a case within the provisions of section 636 of the Oode of Civil Procedure.

      That it was not necessary that the affidavits should state, in the precise language of section 635 of the Code of Civil Procedure, that the cause of action was for a “breach of contract, express or implied, other than a contract to marry,” if equivalent words were used.
    That it was not necessary that the plaintiff should state in his own affidavit the grounds upon which he claimed to be entitled to an attachment, and that it was sufficient if they were shown to exist either by his own affidavit or by the affidavits of others.
    Appeals from orders made in the above entitled actions, denying motions to vacate attachments issued against the property of the defendants Green and Pond.
    Yirgil and Green were equal copartners in business from January, 1881, until October 4, 1884, when Byron Pond purchased the interest of Yirgil, and a new firm under the name of Green & Pond was formed, which continued in business for about ten days. Yirgil & Green became indebted upon five copartnership notes, which this action, No. 1, was brought to recover.
    When Pond purchased the interest of Yirgil, a written agreement was entered into, which provided that: “ He (Yirgil) hereby sells and assigns to said Pond all his right, title and interest in the hardware firm of Yirgil & Green and his interest in the goods and accounts of said firm, being an undivided one-half of said goods- and accounts and of all property of said firm subject to the debts of said firm of Yirgil & Green, and whereas said Yirgil and Green have had each a separate account on company book for cash, etc., drawn out of firm; now, therefore, said Yirgil agrees to settle and liquidate that matter between himself and said Green so that the share in said goods, property, etc., shall be an even undivided one-half of all matters, so that said Pond shall be an equal joint owner with said Green of said stock and property. And, whereas, saic firm of Yirgil & Green are owing certain company debts, and have also on their books certain numerous accounts due to said firm from their customers and others, said Yirgil does hereby covenant ana agree with said Pond that there is sufficient collectible accounts-due said firm, which he hereby assigns his interest therein to said Pond, to pay all the company debts due from said firm, and if not after prompt effort to collect on the part of said Pond, he will make up for said deficiency, and in consideration of said covenant said Pond agrees to pay the one-half of the debts of said firm and-take said Yirgil’s place in the firm as an equal partner, and will do •all on Ms part to collect and pay said debts.”
    November 3, 1884, tbe first action was brought to recover $777.14, the amount due on the five notes above mentioned. Upon the grounds that' October 14, 1884, Green assigned to his wife his interest in the assets of Green & Pond for the purpose of defrauding thé creditors of Yirgil & Green, and that Pond was about to make a fraudulent disposition of his interest in the firm assets, and that neither Green or Pond had any property other than their interests in the firm assets. An attachment was issued requiring the sheriff to attach so much of the property of “ Elton Green and Byron Pond, or either of them,” as would be sufficient to satisfy the judgment to be recovered in this action.
    The second action was brought November 5, 1884, to recover upon two promissory notes made by Yirgil & Green, for goods sold to Yirgil & Green at a price agreed upon, and for rent due on a written lease executed by Yirgil & Green. Four causes of action are stated in the complaint, and a judgment is demanded against all •of the defendants for $232.92. •
    The moving papers in this case are like those in action number one. The plaintiff, in his affidavit, stated “ that the amount of his •claim on said causes of action is the sum of $235.92, over and above all counter-claims, discounts and offsets known to deponent.” This followed a verified complaint, which alleged positively the execution and delivery of one of the notes set out to plaintiff, and his ownership of it, and also alleged the other causes of action on information and belief. There was also an affidavit of Yirgil, one of the defendants, who was one of the principal debtors, as to all of the causes of action set out, in which affidavit it was alleged that the complaint was true, except as to matters therein “ respecting the indorsements and transfers of the promissory notes and causes of action therein named to said plaintiff, and •as to those statements he is informed of them by the plaintiff herein, and believes them to be true, and said complaint is hereby made a pari of this affidavit ” Green and Pond made individual motions in both actions for an order vacating the •attachments. The motions were made on the papers on which •the attachments were granted. The motions were denied. But one order was entered in each action. Green and Pond jointly appeal in both actions.

      J. W. Shea, for appellant Pond.

      Merrick Stowell, for appellant Green.

      O. 0. Brown, for the respondents.
   Vann, J.:

The affidavits upon which the warrant of attachment was granted do not state, in the precise language' of the Code, that the plaintiff has a cause of action for “ breach of contract, express or implied, other than a contract to marry,” but, as held in Lamkin v. Douglass (27 Hun, 517), it is not necessary that the affidavit should contain the exact words, if equivalent words are used. Evidence by which the judge may be lawfully satisfied of the truth of the matters required to be shown is sufficient. (Id.) The allegations of the complaint, which was one of the moving papers, are in form set forth and verified upon information and belief only, but the affidavit of Virgil, one of the defendants, states that he has read said complaint, knows its contents, and that it is true of his owu knowledge, except as to one statement, which is established by the plaintiff in a second affidavit, not a part of the verification. An inspection of the complaint, which thus became competent evidence of the facts therein set forth, shows that the action is upon contract only.

The appellants insist that the plaintiff must state in his own affidavit the grounds upon which he claims the right to have an attachment issued, and that he may then prove facts to establish those grounds by the affidavits of other persons. There is no foundation in the statute for this position. (Code of Civil Pro., § 636.) The plaintiff is required to show two facts : (1.) That he has one of the causes of action specified in section 635. (2.) That the defendant comes within one of the provisions relating to non-residence, absence, fraud or concealment. He is required to show these facts by affidavit and may show them by the affidavit of himself alone, or of himself and others, or of others only, according to circumstances. The only authority cited by appellants to sustain their • position (Stewart v. Brown, 16 Barb., 567), was a case where an attachment was issued' under the Revised Statutes by a justice of the peace. (2 R. S. [4th ed.], 431, §§ 24, 26.) As under that statute a written application specifying the grounds was required in addition to an affidavit, the authority has no application.

Whether the papers show that the plaintiff has a cause of action against Byron Pond is a question not free from doubt. If this question were raised by oral evidence it would be better to leave it until the facts were fully developed by a trial, but as it rests upon a written agreement, that is set forth in full, it seems necessary to decide it now.

In Lawrence v. Fox (20 N. Y., 268) it was held that an action would lie on a promise made by the defendant upon a valid consideration to a third person for the benefit of the plaintiff, although the plaintiff was not privy to the consideiation.

In Burr v. Beers (24 N. Y., 178) it was held that a mortgagee could maintain an action at law against a grantee of the mortgaged premises, who had assumed to pay the incumbrance.

In Davis v. Morris (36 N. Y., 569, 575) it was said that to bring the case within the principle of Lawrenve v. Fox, there must be an agreement to pay to the third person, not simply that the rent of certain premises should be paid from a certain fund.

In Garnsey v. Rogers (47 N. Y., 233) it was held that a stipulation in a mortgage, whereby the mortgagee assumed and agreed to pay a prior mortgage on the premises, does not impose on the mortgagee a personal liability for the prior mortgage debt that can be enforced against him by the prior mortgagee, upon the ground that the promise was made for the benefit of the mortgagor only.

In Claflin v. Ostrom (54 N. Y., 581) H. & O. were partners and H. sold out his interest to 0., who agreed to pay the firm debts mentioned in the agreement, and among them the debt of the plaintiffs. Defendant guaranteed performance of the agreement. H. having assigned his interest under the agreement and guaranty to the plaintiffs it was held by the Commission - of Appeals that they could recover either directly upon the guaranty, which they could adopt and enforce, or upon the assignments.

In Merrill v. Green (55 N. Y., 270) it was held by the Court of Appeals that on a bond given with surety by one of two partners to the other on a dissolution of the firm, conditioned to pay the debts of tbe firm, a creditor of tbe firm could not maintain an action as on a promise made for his benefit. In this case tbe court said: “ Green was liable witb Roberts for tbe payment of tbe firm debts. He agreed witb Roberts, upon a valid consideration, to assume tbe payment of tbe whole of tbe debts, and Nichols undertook that be should perform this contract. This was no agreement made by Green and Nichols with tbe creditors, or for their benefit, but one witb Roberts to exonerate him from bis liability for tbe debts of tbe firm.”

In Arnold v. Nichols (64 N. Y., 117), where A. formed a partnership witb B. and transferred bis business assets to tbe firm, and tbe firm agreed to pay certain specified debts of A., and among them tbe plaintiff’s, the Court of Appeals held that tbe promise was made for tbe benefit of tbe creditors bolding tbe claims specified, and that an action could be maintained by such a creditor against tbe firm. That tbe promise was not made primarily nor directly for tbe benefit of A., as bis property was to be taken to pay tbe debts and be was still to remain liable as a principal.

In Simson v. Brown (68 N. Y., 355) it was beld that a promise for a valid consideration by A. to B. gives no right of action to C., unless it was made for bis benefit and be was tbe party intended to be benefited. Tbe court said: “ It is true that in Merrill v. Green (supra) tbe name of tbe creditor is not mentioned in tbe instrument, either in tbe bond or in the condition. This makes no difference. Tbe condition was to pay all tbe indebtedness of tbe firm. The plaintiff in that case owned an indebtedness of tbe firm. He was a creditor, so that be was as fully indicated and included in tbe condition as though be bad been named in it.”

In Root v. Wright (84 N. Y., 72) it was beld that a covenant in a deed absolute on its face, but intended simply as a mortgage, whereby tbe grantee assumed and agreed to pay a prior mortgage, gave no right of action against tbe grantee to tbe bolder of tbe mortgage, as be was neither a party to the contract nor tbe one for whose benefit it was made.

In Seward v. Huntington (94 N. Y., 104) it was beld that creditors could not enforce an agreement that was not made for their benefit, but solely for that of the parties to tbe agreement, and which imposed no primary liability upon tbe latter. (Garnsey v. Rogers, 47 N. Y., 241; Pardee v. Treat, 82 id., 385, and Root v. Wright, supra, are cited.)

While it is not easy to reconcile these cases, they seem to unite in holding that the promise must be made for the benefit of the third person to enable him to enforce it. We think that from the form of the agreement the promise of the defendant Pond was not made for the benefit of the creditors of Virgil & Green. He does not agree to pay all the firm debts, which would necessarily include that of the plaintiff, but agrees to pay “ one-half the debts of said firm.” ( Wheat v. Rice, 97 N. Y., 296.) If this means one-half in amount, it would not necessarily include the plaintiff’s claim amounting to less than $800, for even as between Virgil and Pond, the agreement of the latter could be performed without paying the plaintiff anything, as the firm debts amounted to $4,300. If it means an undivided half of each firm debt outstanding, then Pond would be liable only for an undivided half of the claim of the plaintiff, even if the promise was made for his benefit. The object of a promise in that form, however, would seem to be for the benefit of Virgil, to relieve him of his obligation to his old partner Green, rather than for the benefit of creditors. As between Virgil and Green, each was liable for only one-half of the debts, while as between either and the firm creditors, each was liable for the whole. The agreement to pay an undivided half, therefore, would not, within the authorities, be a promise primarily for the benefit of creditors, but solely for the benefit of the parties. This view is strengthened by the covenant of Virgil to make up the deficiency, if the firm accounts should not be sufficient to pay the firm debts after prompt effort to collect on the part of Pond. This seems designed for the convenience of Virgil to secure equality of contribution” as between himself and pai’tner “in the payment of their joint obligations,” and not for the further security of the creditors holding those obligations. The agreement in effect is to collect and pay, and if there is a deficiency, to advance and pay one-half of that, with a covenant for repayment of the sum so advanced. This is not a substitution of the liability of Pond for the liability of Virgil, but an assumption by the former in aid of the latter, upon his promise to repay in the contingency named. Such an agreement “is not a promise made for the benefit of the plaintiff, although he might be benefited by its performance.” (Pardee v. Treat, 82 N. Y., 385, 388, 389.)

If this reasoning is correct it follows that no cause of action is shown to exist against the defendant Pond, and that the attachment against his property cannot be sustained. The evidence of fraud on the part of the defendant Green, is in the main, that he assigned “ his interest ” in the assets of Green & Pond to pay a debt he owed his wife for borrowed money. There is no suggestion that it was not an honest debt, or that he assumed to sell any more than his interest, which would be his share in the surplus after the firm debts were paid. The plaintiff cannot use the acts and declarations of Pond as evidence against Green. If Pond was guilty of fraud, that did not concern the plaintiff, as he had no claim against either Pond or the firm of Green & Pond.

We do not think the evidence of fraud against Green alone is strong enough to sustain the attachment against him.

The order should be reversed, with costs of appeal, and the attachment vacated, with costs of motion.

Hardin, P. J. :

Plaintiff in his affidavit says “ that the amount of his claim on said causes of action is the sum of $235.92, over and. above all counter-claims, discounts and offsets known to deponent.” This follows a verified complaint which alleges positively the execution and delivery of one of the notes set out to plaintiff, and his ownership of it, and also alleges the other causes of action on information and belief. There is an affidavit of Virgil, one of the defendants, who is one of the original debtors as to all of the causes of action set out, in which affidavit it is alleged that the complaint is true except as to matters therein “respecting the indorsements and transfers of the promissory notes and causes of action therein named to said plaintiff, and as to those statements he is informed of them by the plaintiff herein, and believes them to be true, and said complaint is hereby made part of this affidavit.” These affidavits may b<rth be read in connection. • (White v. Reichert, 14 W. Dig., 285.)

Tiae information, coupled with a statement of the source from which it was derived, may be used. The affidavits read together make out a case substantially within the provisions of section 636, Code of Civil Procedure. (Bennett v. Edwards, 27 Hun, 352; Alford v. Cobb, 28 Hun, 22.)

The affidavits as drawn make a compliance as to each cause of action. The whole amount of the causes of action is $235.92, and against that there are no counter-claims. In Murray v. Hankin (30 Hun, 38) the affidavit was by an agent and defective because it did not show there were no counter-claims known to plaintiff. Por that defect it was held bad, and Brady, J., incidentally remarked that “ the affidavits should perhaps show that as to each of the items there was no counter-claim,” etc. We think such is shown to be the case, in the affidavits before us.

The complaint and the two affidavits referred to make out a compliance with the requirements of section 636, Code of Civil Procedure.

The causes of action set out all arose on contract, and therefore the case in that regard was one where it was proper to apply for an attachment. (Code, § 636; Ruppert v. Haug, 87 N. Y., 141; Jacobs v. Hogan, 85 N. Y., 243.)

The statute allows an attachment to issue when the defendant “ has removed or is about to remove property from the State with intent to defraud his or its creditors; or has assigned, disposed of or secreted, or is about to assign, dispose of, or secrete property with the like intent.”

However, as a cause of action as against Pond is not set out in the complaint, the attachment as to him ought not to stand. (See opinion of Vann, J., in Edick v. Green et al. (supra). We are, therefore, left to inquire whether facts are properly shown to justify an attachment against Green. We think the affidavits do not establish a fraud, or a fraudulent intent upon the part of Green, and that a proper case was not presented for an attachment as to Green. (See opinion of Yann, J., supra) We must, therefore, reverse the whole order.

Order reversed, with ten dollars costs and disbursements, and motion to vacate the attachment granted, with ten dollars costs.

Pollbtt, J.

(dissenting) :

Each of the complaints sets forth perfect causes of action against Green & Yirgil as copartners. Yirgil swears that both complaints are time, and Green has not denied either.

I agree with my brethren, that there is no validity in the technical questions raised by the appellants. That Green has no property except his interest in the partnérship, is positively testified to by Virgil and by Tillapaugh. That Pond has no property except his interest in the partnership, is sworn to by Virgil and substantially by Shumway, and Virgil swears that he is insolvent. The liabilities of the firm amount to about $4,300, and Green admitted that the firm was insolvent. Green stated October 10, 1884, that he was about to assign his interest in the assets of Green & Pond to his wife, to secure her for an individual debt against himself. Tillapaugh testified that Green said he had made such transfer to his wife, and that his wife owned nothing except her interest in the partnership assets and a house which was mortgaged for the full purchase-price, and that she would not pay any of the partnership debts, and that she was about to sell the goods to a man whose name he would not disclose. ' Pond, by his own confession, was engaged in putting the property of the firm beyond the reach of the firm creditors. The evidence that Green and Pond were each engaged on his own account, in disposing of the firms assets (which are insufficient to pay the firms debts) for the purpose of paying actual or pretended individual debts, is abundant. Neither of these defendants presents any evidence contradicting the evidence of the plaintiff, or substantiating the validity of the claims of persons to whom they are assigning partnership property. The complaints stand admitted. Not an allegation of the moving papers is denied, nor are the inferences, which naturally flow from those allegations, explained. On the merits prima facia cases for attachment were made out against Green & Pond, on the ground that they had assigned, disposed of, or were about to assign or dispose of their property, with intent to defraud their creditors. It will be observed that these transfers were not made by the firm of Green & Pond, but by the individual members thereof. A transfer by one partner of partnership property to pay an individual debt is fraudulent and void as against the firm creditors, unless the firm is solvent at the time. (Menagh v. Whitwell, 52 N. Y., 146; Wait on Fraud. Con., § 216.)

It is urged that the attachments cannot be sustained as against Pond, because it is said the papers show that a recovery cannot be liad against him in the actions. Undoubtedly the agreement of October 4, 1884, above quoted from is, standing alone, insufficient to establish a right of recovery against Pond. (Wheat v. Rice, 97 N. Y., 296.) The causes of action alleged in each complaint against Pond are undenied, and on the trial, evidence in addition to-the agreement above quoted from may be given, which will establish the allegations. The undisputed evidence shows: (1.) A dissolution of the firms of Yirgil & Green and Green & Pond. (2.) The insolvency of both firms. In either of these cases the assets are a trust fund for the payment of the firm creditors. (Pom. Eq. Juris., § 1046; Menagh v. Whitwell, 52 N. Y., 146.) In such cases either copartner or the firm creditors may enforce the application of the fiim assests to the payment of the copartnership debts. (Story on Part., §§ 326, 360.) In addition to the right arising out of the circumstances, Pond took the interest of Yirgil “ subject to the debts of said Yirgil & Green,” and he has no cause to complain that the goods have been seized to satisfy the debts of Yirgil & Green. It is not shown that the assets of Green & Pond are different from the assets of Yirgil & Green, and it is fair to assume that they are the same, as it appears that the attachments were issued shortly after Pond succeeded to Yirgil’s interest, and there is no evidence that the new firm had incurred liabilities. Had all of the property of Green & Pond been attached in an action against Yirgil & Green, Pond would have had no cause for complaint, and he could not have obtained a discharge of it except pursuant to-section 693, Code Civil Procedure. The undisputed evidence is, that Pond has no property except his interest in the firm of Green & Pond. The appeal books do not show that the individual property of Pond has been attached or threatened, nor do they show that any property has been attached. An attachment will not. be vacated unless the moving party shows that he has been or maybe injuriously affected thereby. (Furman v. Walter, 13 How., 348; Matter of Griswold, 13 Barb., 412.) But under the attachments, the individual property of Pond, if he has or acquires any, may be seized and the moving papers not establishing an individual cause of action against him, the attachments, in so far as they authorize the seizure of the individual property, are too broad and should be modified by striking out that clause. The plaintiffs having estabjished a right to attach the firm property by virtue of the causes of action against Yirgil & Green, the orders denying the motions to vacate the attachments should be so modified as to vacate that part of them authorizing the seizure of Pond’s individual property, and in all other respects affirmed. The ground upon which the modifications are based, not having been presented to the court below or upon this apppeal, and the plaintiffs having substantially succeeded, the affirmance should be with ten dollars costs and disbursements in each case.

The same judgment was rendered in each case, viz.: Order reversed, with ten dollars costs and disbursements. Motion to vacate attachment granted, with ten dollars costs.

       This opinion was delivered in the second of the above entitled actions.


author: Hardin, P. J.;

text:
      THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. JAMES W. CLARK, Appellant.

      Power of the court to direct one of several persons, jointly indicted, to be tried separately— when a person is not disqualified to sit as a juror by reason of an existing opinion as to the guilt of the acmsed ■ — when evidence not alleged in the indictment is admissible in support of the cha/rge of frcuad there made — when evidence of a settlement with a third person is not admissible in favor of the pcurty indicted— misconduct of juror — when a conviction will not be reversed therefor — duty of counsel to present objections at the time of the commission of the improper act.

    Writ op Error to review an appeal from a judgment upon a verdict of conviction taken at the Onondaga Court of Sessions after a trial of the defendant upon an indictment found and filed October 15th, 1880, charging the' defendant with the crime of having obtained property by means of false and fraudulent representations, and also an appeal from an order denying the defendant’s motion for a new trial made upon the evidence and exceptions taken upon the trial, and also upon the ground of the alleged misconduct of the jury.
    The indictment charged the defendant with having falsely and fraudulently represented that a certain mortgage executed by Irving W. Darrow and wife on the 5th of August, 1879, to Mrs. Maggie Clark, of the village of Danforth, “ is a first-class security and is a bona fide purchase-money mortgage, and that the premises described therein were sold by Maggie Clark to Irving W. Darrow for the sum of six thousand dollars; four thousand dollars of which said sum was paid down and said mortgage was given for the balance of' the purchase-money; that the said premises described in said mortgage were sold by the said Maggie Clark to the said Irving W. Darrow for a consideration of six thousand dollars; four thousand dollars thereof paid down in cash by the said Darrow to the said Maggie Clark, and the said mortgage given by the said Darrow to the said Maggie Clark for the balance of the said purchase-money for the consideration of six thousand dollars; that there is a house and barn situate on the said mortgaged premises; that the land described in the mortgage is worth one hundred dollars per acre, and is good fanning land and is lying on the bank of the Hudson river in this State; that the taxes paid yearly upon the said mortgaged premises amount to one hundred dollars; that the said mortgage as security for the sum of two thousand dollars can’t be beat.”
    The indictment also charged that the representations were false and fraudulent and that by means thereof John Fay and Ellen F. Fay his wife, were thereby induced to purchase the mortgage and bond accompanying the same “ and to sign and put their respective signatures and seals to a certain instrument of the kind commonly called a warranty deed,” bearing date the 16th day of December, 1879, whereby they conveyed to one Alexander McKinstry, Jr., of Syracuse, parts of lots number twenty-four and twenty-six in the Onondaga Salt Springs Reservation and their appurtenances, and the premises so conveyed consist of about thirty acres of land of the value of $2,500.
    The indictment was found against James W. Clark, Maggie Clark, Irving W. Darrow, Augustus Cholet and L. Adelbert Snow. Clark was arraigned and plead not guilty and the district attorney moved his trial in the Court of -Sessions, on May 7, 1884.
    The prisoner’s 'counsel objected, viz., “ to the indictment being moved against James "W". Clark alone, on the ground it is only optional with him to have a separate trial, and that the district Attorney or court have no power to order or move the indictment in this form.” The objection was overruled and the defendant excepted. The defendant was thereupon arraigned and plead “not guilty.” The defendant again objected “to the district attorney moving the indictment against him alone.” That objection was overruled and an exception taken. The trial proceeded against the defendant James W. Clark, alone.
    The court at General Term, said: “No prejudicial error occurred in ordering a separate trial, although the defendant had been indicted with other persons. Such order was made before the jury was impanneled, and tbe making or refusing of sucb an order was within tbe discretion of tbe court.
    “Nothing is found in tbe appeal book before us warranting tbe conclusion that that discretion was improperly used or abused or that tbe defendant’s rights were prejudiced by the order. A similar question was presented in tbe ease of Armsby v. The People (2 Sup. Ot. Rep. [T. & C.], 159), and it was resolved adverse to tbe prisoner. We are satisfied with tbe reasoning contained in tbe opinion of Judge Potter, in that case. (See, also, The People v. McIntyre, 1 Park., 371; Patterson v. The People, 46 Barb., 625; Fralich v. The People, 65 id., 48.)

      “Second. We are of tbe opinion that no error was committed by tbe court in allowing Fairbanks to sit as a juror. He testified, viz.: ‘ If I was sworn as a juror in this case I could take my place and decide it according to tbe evidence given on tbe trial, and my previous impressions would not influence my verdict, and I believe I can render an impartial verdict according to tbe evidence.’
    “ Tbe trial court was satisfied that tbe person so proposed as a juror did not entertain sucb a present opinion as would influence bis verdict as a juror. We think chapter 475 of tbe Laws of 1872 and amendments thereto apply, and that Fairbanks was a legal juror and that there was no error in the ruling of tbe court in permitting him to sit as a juror. (.People v. Welch, 1 N. Y. Crim. Rep., 486, opinion of Hardin, J.; People v. Casey, 2 id., 196; People v. Cornetti, 92 N. Y., 85 ; Abbott v. The People. 86 id., 467; Balbo v. The People, 80 id., 494, 513; People v. Phelps, 83 id., 457.) Tbe declaration of tbe juror in tbe case of tbe People v. Casey (96 id., 115), was not a full compliance with tbe statute in that case and is therefore distinguishable from this one.
    “ Third. We think it was competent to prove upon tbe trial that tbe mortgage in question bad been assigned by Maggie Clark to Augustus Cbolet, on the 10th day of September, 1879, and that an acknowledgment of sucb assignment was taken before James W. Clark, notary ; and that Augustus Cbolet assigned tbe same to John Fay, although the assignments were not particularly alleged in tbe indictment.
    “ Tbe assignments form a part of the facts necessary to show that John Fay received tbe mortgage in reliance upon tbe representations made in respect thereto by the defendant Clark, and that the assignments form a part of the inducements used by Clark to consummate the fraud charged in the indictment.

      “Fourth. We are of the opinion that no error was committed in excluding evidence offered for the purpose of showing that subsequent to the consummation of the fraud some settlement, in respect to the damages sustained by the complainant, was had with one McKinstry. Such a settlement could not purge the wrong of the defendant if any such had occurred. (People v. Stone, 9 Wend., 190; People v. Sully, 5 Park., 170.)
    * * * * *
    “ Twenty-first. It appears from an affidavit of Charles E. Burke, that while the trial was progressing, one of the jurors engaged in hearing the case, to wit, Mr. Fairbanks, was employed in reading ‘ The Syracuse Standard ’ of the date of May 10, 1884, a newspaper published in Syracuse, N. Y., containing a highly sensational account of the trial.
    “ That from time to time between 11.30 and 12 m. on said May tenth another of the said jurors, to wit, Mr. Baxter, was also •engaged m reading the ‘ Syracuse Standard ’ of May tenth, being the same paper that Fairbanks had read. The affiant also attaches to the affidavit a copy of the article referred to.’
    “ In the case presented to us we find following the affidavit in question a statement made by the court as follows, viz.: ‘The stenographer may note that the court observes that the maker of this affidavit has been engaged apparently during the trial as an associate of the counsel for the defense, making suggestions to him, handing him books and apparently engaged as associate counsel. The affidavit is entirely insufficient of its own weight and character to show that any juror during this trial read this article referred to,’ and after making further observations the court denied the motion resting upon the affidavit to set aside the verdict.
    “ In Fnos v. Payharsh (1 Seld., 534) the court remarks, viz.: ‘ A person may silently acquiesce in, or expressly consent to, an irregular impanneling of the jury or to a trial by a jury of less than the legal number or by incompetent jurors. *' * * Consent, either expressly or by implication, waives all objection to irregularities which occur in the progress of a cause.’

      “ In The People v. Morrissey (1 Sheldon, 295) it appeared that one of the jurors fell asleep and that fact was discovered by the prisoner’s counsel and by himself, and no objection was taken thereto at the time, but it was urged subsequently that that was a ground for granting a new trial. The court held otherwise and denied the motion.
    “ It is incumbent upon a party seeking to set aside a verdict for the misconduct of a juror to clearly establish the fact relied upon. (People v. Kelly, 94 N. Y., 526; Ost/rander v. People, 28 Hun, 48; People v. Proper, 1 N. Y. Crim. R., 138.)
    “We are of the opinion that the court properly denied the motion based upon the affidavit of Mr. Burke. The views already expressed lead us to sustain the verdict, judgment and orders brought before us by the writ of error and the appeal.”
    Judgment and order affirmed, and proceedings remitted to the Court of Sessions of Onondaga county.
    Forbes, Brown <& Tracy, for the appellant.

      G. H. Lewis, district attorney, and B. J. Shove, for the people.

       Decided, September, 1885.

   Opinion by

Hardin, P. J.;

Follett and Merwin, JJ.,

concurred,

Judgment and orders affirmed and proceedings remitted to the Court of Sessions of Onondaga county with directions to proceed.


author: Boardman, J.;

text:
    In the Matter of the Probate of the last Will and Testament of MALVINA M. SEABRA, Deceased.

      Practice — appointment of a guardian for an infant in a Surrogate’s Court — W> notice is required if the infant he present and consent.

    Appeal from a decree of the Surrogate’s Court of Oswego county admitting .to probate the last will and testament of Malvina M. Seabra, deceased.
    Upon the hearing of the application for the probate of the will one of the attorneys asked for the appointment of a guardian ad litem for one Herbert S. Dean, an infant heir-at-law of Van Rensselaer Dean, deceased, said Van Rensselaer Dean having been an heir-at-law and legatee under the will of the deceased. The contestant objected on the ground that no notice of such an application had been given either to said infant or to the contestant, and that no papers or affidavits upon which to base said motion had been served. The objections were overruled and the county clerk of Oswego county was appointed guardian ad litem for the said infant, who was at that' time in court. TJpon appeal it was objected by the contestant that the guardian could only be appointed pursuant to a notice or order to show cause personally served upon him.
    The court at General Term said: “ Prior to proving the will a guardian ad Utem was appointed for Herbert Dean, an infant, who was present in court when said appointment was made. The guardian duly consented to act, and appeared for the infant. There was no necessity for the service of a notice or citation upon the infant when he was so personally present and did not by himself or others object. There is nothing to show any irregularity in the appointment of the guardian or to create a doubt of jurisdiction over the infant by reason of the time or manner in which his guardian was sppointed.” * * *

      Frank F. Randall, for contestant, appellant.

      William A. Pouoher, for respondent Alanson Dean.

      8. 0. Iltmlington & Son, for proponents and all other respondents.
   Opinion by

Boardman, J.;

Hardin, P. J., concurred; Follett, J.,

not voting.

Decree and orders of the surrogate of Oswego county affirmed, with costs to the respondents against the appellants personally.