text:
    In the Matter of the Petition of DANIEL P. INGRAHAM, to Vacate an Assessment on Eighty-eighth and Ninety-first STREETS.

      Streets — dedication and acceptance —right to assess lots fronting on—rights of the corporation of New, York in land, dedicated for the uses of a street.

    In 1849 the petitioner conveyed certain lots, on the north side of Ninety-first street, as laid down on a map of the city of New York, reserving a right of way through said street, which had never been opened by the city, for the owners of other lots; the street was subsequently used by the general public as a highway for the passage of vehicles of various kinds, and for foot passengers; gas and water pipes were laid in it, and for several years it had been lighted with gas. Held, that these acts constituted a dedication of the land to the use of the public as a street, and an acceptance thereof by the public.
    When a street is thus created, it necessarily becomes subject to the acknowledged power of the authorities to regulate, grade and improve it, and this right is necessarily accompanied by the further right to impose upon the adjoining land the expenses of such acts as may be done in the proper exercise of any of these powers.
    Appeal from an order made at Special Term, denying the application of the petitioner to vacate an assessment for a sewer on Eighty-eighth street and on Ninety-first street, in the city of New York.
    The corporation laid a sewer in Ninety-first street, extending from Fourth to" Second avenues. Another sewer was constructed in Eiglity-eighth street, between Second and Third avenues. These two sewers were embraced in one contract; and a single assessment, embracing both sewers, was laid, covering all the property in the sewerage district within which the sewers were located. The petitioner claims to vacate the assessment, on the ground that the corporation had no right to lay the sewer in said street, or to make an assessment therefor; and also on the ground that, assuming .they had the right to lay the sewers and make the assessment, they had no right to embrace the two sewers in one assessment, and to assess on the petitioner’s property any portion of the expenses of the Eighty-eighth street sewer, which can, under no circumstances, be beneficial to it. The court below denied the application, on the ground that there was a dedication.

      J. E. Burrill, for the petitioner.
    The assessment was invalid, because the corporation never acquired the title to the land forming Ninety-first street, through the center of which the sewer is laid, as there has been no dedication of the land to the corporation of the city of New York. The fact that the petitioner, in making the conveyance to Fanshaw and others, bounded these premises by the middle of Ninety-first street, ard in leaving the land unfenced, undoubtedly estopped the petitioner, and those deriving title from him, from closing the streets, and conferred on his grantees the right to have the street kept open for the purpose of passage; but this did not make them public streets, nor confer a right on the corporation or any one to take the land, or to use it, except for the purpose of passage. (City of Oswego v. Oswego Canal Co., 6 N. Y., 262; Underwood v. Stuyvesant, 19 Johns., 186; Fonda v. Borst, 2 Keyes, 48 ; Kelsey v. King, 33 How. Pr., 39 ; Livingston v. The Mayor, 8 Wend., 99 ; Badeau v. Mead, 14 Barb., 338; Bissell v. N. Y. C. R. R. Co., 23 N. Y., 67.) Even if there had been such a dedication as claimed, still, until the corporation should acquire the title to the land, no one had a right to use it except for the purpose of passage, and the use for any other purpose was a trespass. (Kelsey v. King, 33 How. Pr., 39.) It is very clear that if the act of the corporation, in laying the sewer, was without right or authority, there was “ substantial error ” in levying the assessment within the act of 1858, as amended. (Matter of Sharp 1 N. Y. S. C. [T. & C], 127; In re Babcock, 23 How. Pr., 118; In re Buhler, 19 id., 317; In re Beamis, 17 id., 460.) The assessment was invalid, because the assessment upon the petitioner’s land embraced the expenses of the sewer in Eighty-eighth street, which is wholly disconnected from the sewer in Ninety-first street.

      E. Delafield Smith and T. B. Clarkson, for the respondent.
    The fact that the sewer was laid in private property is not a “fraud or substantial error” in the “proceedings relative to an assessment ” for the cost of the sewer, for which alone the statute of 1858, as amended, affords relief. (12 Abb., 121, 124; 14 id., 53, Hay’s case.) An omission or irregularity in one or more of these statutory steps “ would be a legal irregularity within the act of 1858.” (23 Abb., 118.) The facts proved show a dedication of the street by those owning the fee to the public use. The uses of it by the general public is an acceptance. And if that is not enough, the laying of water pipes in the street and lighting it with gas, is an acceptance by the authorities, a dedication and acceptance for all the purposes for which streets in New York are used. (Holdane v. Trustees of Cold Spring, 21 N. Y., 474; Bissell v. N. Y. C. R. R. 23 id., 61, 64, 65;, 11 Wend., 486; 1 Hill, 189; 19 Wend., 128 ; 1 Hill, 191.)
   Brady, J.:

It appears that the petitioner and wife, by deed dáted February 1, 1849, duly .recorded, conveyed to Daniel Fanshaw eight lots of land, bounded north-easterly by the central lines of Ninetieth and Ninety-first streets, subject to a right of way over the portion of Ninety-first street thereby conveyed to Gr. Rollins, his heirs and assigns, to lots lying north-westerly of the premises. It also appears that Ninety-first street, between Third and Lexington avenues, has been used by the general public as a highway and thoroughfare for the passage of vehicles of various descriptions, horses and cattle and foot passengers; that dwelling-houses have been erected on the southerly side of said street; that several years ago, pipes for croton water were laid in the street; also, that pipes for gas have been laid, and that the street for several years has been lighted with gas. The petitioner alleges that the water and gas pipes were put in, however, without his knowledge or consent; but this cannot change the legal effect of the facts stated. The map upon which Ninety-first street had been laid down, had been filed, and the petitioner was aware of that fact and the locality of the street, when the conveyance made by him was executed. This grant was bounded by the street, and that act was, according to the adjudications in this State, a dedication of the adjoining land in the cite of the street. It was an adoption of the map (Matter of Thirty-second Street, 19 Wend., 128 ; Matter of Thirty-ninth Street, 1 Hill, 191; Wyman v. The Mayor, 11 Wend., 487 ; Post v. Pearsall, 22 id., 425 ; People v. the City of Brooklyn, 48 Barb., 211); and an allowance for value to the owner of the grant on opening the street by proceedings therefor, would be improper. Nothing but nominal damages, because of the grant, could be given. (Id.) The principle applied in these cases is well established, and has been recognized in subsequent decisions. The street has not been opened, it is true, by any proceeding for that purpose under the statutes relating thereto, but the laying of croton pipes and gas pipes, and the use of gas to light the street, furnish unmistakable evidence of an intention on the part of the authorities to accept, adopt and use the street as laid out and dedicated, and this acceptance has been confirmed in the use of the street by the public generally and for many years as a highway. It is not necessary that there should be a formal act of acceptance or adoption of the street by the public authorities. It may be done by acts in pais. A common user under circumstances showing a clear intent to accept and enjoy it as such, is sufficient (Holdane v. Trustees of the Village of Cold Spring, 21 N. Y., 474; Bissell v. N. Y. Central R. R. Co., 23 id., 64, 65; In the Matter of Thirty-second Street, supra, 434; Hunter v. Trustees of Sandy Hill, 6 Hill, 412; In the Matter of Thirty-ninth Street, supra; Estate and Rights of the Corp., by Hoffman, vol. 1, pp. 342, 343); and this would be so, even if the street were not laid out by the authorities, but by the owners of the adjoining land. (Decisions supra.) The cases of Underwood v. Stuyvesant (19 Johns., 186); The City of Oswego v. The Oswego Canal Co. ( 6 N. Y., 257), and Fonda v. Borst (2 Keyes, 48), on which the petitioner in part relied, all affirm the proposition, that no formal opening is necessary to establish a street, if it can be done inferentially by user. When it is thus • established, the adjoining owners become subject to the same burdens in reference to improvements, which may be imposed when the street is opened by formal proceedings therefor. We were not referred on the argument to any case maintaining or asserting the opposite doctrine, and after diligent search none has been found. If a street may be established by dedication, adoption and user, it would seem to be unnecessary for the city, except for the purpose of acquiring the fee in the land in the street, to resort to proceedings under the act of 1813. When the street is created it becomes necessarily subject to the acknowledged power of the authorities to regulate, grade and improve it, and generally subject to their control; and the right thus to treat it is necessarily accompanied by the further right to impose upon the adjoining land the expenses of such acts as may be done in the proper exercise of any of these powers. It may also be said in confirmation of these views, although it is not necessary herein so to decide, that the adoption of the street in the manner stated, leaves little doubt of the liability of the city for injuries which might be occasioned by its failure to discharge the duty of keeping it in proper condition for safe use at all times.' The street having been thus opened and appropriated to the public by adoption and user, the petitioner’s^ property became subject to the assessments for improvements to which lots on streets and highways opened by formal proceedings are exposed. If this be not so, then the doctrine of dedication is one of words only, and not of substance. If there be a street, it is at once subject to the dominion of the authorities. It follows, therefore, that unless there is some substantial error shown, rendering a different course necessary, the order made at Special Term must be affirmed.

It is also objected that two sewers were included in the contract, but it appears that they were built according to the plan adopted for sewerage in the district in which they were placed. This mode of procedure could be lawfully employed under the act of 1865 (Laws of 1865, chap. 381, § 5), and the expense of the whole assessed on the lots on each street in proportion to their frontage on each street, which was done here, each lot of twenty-five feet being assessed for the same amount. It also appears that the petitioner was not aggrieved by the assessment imposed. The answer made by the authorities on that subject is as follows : The evidence introduced in opposition to the petition, shows the amounts of each of the various kinds of work done in each street, and the contract, and the contract-price therefor; and the following calculation shows the cost of the work done in each street: Eighty-eighth street, between Second and Third avenues, 555 feet-sewer, built at $5.25=$2,913.75; 1,371 yards of rock'blasted, at $4=$5,484== $8,397.75 ; Ninety-first street, between Second and Fourth avenues, 1,566 feet sewer built, at $5.25=$8,221.50; 3,271 yards rock blasted, at $4=$13,084; 720 yards rock removed without blast, at $5 = $3.600=$24,905.50. This shows the cost of the sewer per foot, in Eighty-eighth street, to have been $15.13, while the cost of that in Ninety-first street was $15.90 per foot. The petitioner is therefore assessed less than he would have been if the sewer in Eighty-eighth street had not been included in the assessment. In other words, if there is any grievance, it is that property on Eighty-eighth street has been assessed for the sewer on Ninety-first street, not property on Ninety-first- street assessed for the sewer in Eighty-eighth street, and the petitioner is not aggrieved, but benefited, by the joinder of the two sewers in one assessment. Instead of his ■ being assessed for a sewer from which he receives no benefit, he is actually benefited by the Eighty-eighth street sewer being included in the same assessment with the Ninety-first street sewer; and this answer seems to be conclusive, under section 1 of the act of 1858. (Laws 1858, p. 574.) The party aggrieved may apply. The petitioner appears to have been benefited by the union of the two assessments, and cannot complain therefore if his property be subject at all to the assessments.

The order made at Special Term must, for these reasons, be affirmed.

Davis, P. J., and Daniels, J., concurred.

Order affirmed with ten dollars costs, besides disbursements.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    In the Matter of the Petition of FANNY LEVY to Vacate an Assessment for Paving Fortieth street, between Third and Madison avenues.

      Chap. 137, of 1870, § 30—publication required by—when it must be made — effect of an omission to make it.

    Under chapter 137, of 1870, requiring the publication of certain ordinances and resolutions passed by the board of aldermen and assistant aldermen of New York, publication must be made of the resolution introduced or passed in the respective boards, and cannot be made before that time. It is not notice of the intention to introduce or pass it, but the fact that it has been introduced or • passed which is to be published.
    Appeal from an order made at the Special Term, vacating an assessment for the repairing of Fortieth street, between Third and Madison avenues, in the city of New York.
    The resolution for the work was introduced into the board of aldermen January 9th, 1871; adopted March eleventh; introduced into board of assistant aldermen, April twenty-fourth, and adopted April twenty-seventh. It was proved that the resolution was not published after its introduction and before its passage, as required by law, but the counsel for the corporation claimed that such publication could be made at any time after its passage in the board of aldermen and before its passage in the board of assistant aldermen.

      E. D. Smith and Wm. Barnes, for the corporation, appellant.

      Neville & Andrews, for the petitioner, respondent.
   Brady, J.:

The statute of 1870 (Laws of 1870, p. 369, § 20), requires the publication of each ordinance or resolution which shall be passed or introduced in the respective boards, and it declares that no vote shall be taken in either board upon the passage of an ordinance or resolution, which shall contemplate any specific improvement, or involve the sale, disposition, or appropriation of public property, or the expenditure of public moneys or income therefrom, or lay any tax or assessment, until after such notice shall have been published three days. For the purposes of this appeal, it is not necessary to recite the rest of the section. (Sec. 20.) It clearly appears, in this matter, that no publication of the resolution involved in these proceedings, introduced and passed in the board of assistant aider-men, was made in any one of the papers designated by the common council, either under the acts of 1868, 1870 or 1871. (Laws of 1868, p. 2007; Laws of 1870, p. 882; Laws of 1871, p. 1231.) The resolution was introduced in the board of assistant aldermen on the 24th of April, 1871, and adopted April 27th, 1871. The papers designated at this time were The Democrat, The Leader, The Citizen and The Atlas. It was not published in any one of these papers. The Transcript, another paper, was not designated until the 25th of April, 1871, and could not have contained the resolution in time. The publication must be made of the resolution introduced or passed in the respective boards, and cannot be made before that time. It is not notice of the intention or design to introduce or pass it, but the fact that it has been introduced or passed, which is to be published; and, although the introduction or passage of a resolution may be published on the same day of its introduction or passage, its publication must be at least three days before it can be voted upon. The direction is mandatory and not directory (Matter of Smith, 52 N. Y., 526), and the omission to comply with the requirement renders the assessment void. (Id.) This being a case of repavement, we discover in the papers nothing to prevent this result, and it becomes our duty to affirm the order made at the Special Term. The precise question discussed has not been considered in any case that I have found, or to which we were referred. The rules established by the decisions of the court of last resort are such that the omission of any prerequisite like the one mentioned must invalidate the assessment.

Daniels, J., concurred.

Order affirmed, with ten dollars costs.


text:
    GEORGE K. SISTARE, Jr., Respondent, v. WILLIAM T. CUSHING, Appellant.

      Partnership — effect of assignment of his interest therein by one partner to another.

    One member of a partnership entered into an agreement with A, to hold two undivided fifth parts of such partner’s interest in the firm in trust for A, and to account to A for the profits, etc., arising therefrom, and that on the dissolution of the partnership such two-fifth interest should immediately vest in A, and should be assigned and set over by such partner to A. One member of the partnership, with the consent of his copartners, but without the consent of A, made a voluntary assignment of all his interest in the partnership to one of his copartners, and retired from the business. Held, that this worked a dissolution of the partnership under the terms of the agreement with A.
    Appeal from a judgment rendered at Special Term. The facts are stated in the opinion.

      John Chetwood, for the appellant.

      Charles F. Sanford, for the respondent.
   Brady, J.:

On or about the 29th February, 1868, the parties hereto made an agreement as follows :

“ Agreement made this twenty-ninth day of February, in the year eighteen hundred and sixty-eiglit, between William T. Cushing, of the first part, and George K. Sistare, Jr., of the second part.

Whereas, the said Cushing is a member of the copartnership firm of Sanford, Cushing & Company, doing business as printers in the city of New York, under articles of copartnership bearing even date herewith, and is interested under said articles, in the business, assets, property and effects of said firm, and in the profits thereof, to the extent of five-sixteenths. And whereas said Cushing holds, and is to hold, two undivided fifth parts of his said share or interest, in trust for the benefit of said Sistare during the continuance of said partnership :

“Now, this agreement witnesseth, that said Cushing, in consideration of the premises and of the sum of $16,000 to him in hand paid by said Sistare, the receipt whereof is hereby acknowledged, hath agreed and hereby doth agree, to account for and pay over to said Sistare, two-fifths of all such profits as shall accrue and be paid to said Cushing by reason of his said share or interest in said firm, from time to time, as the same shall so accrue and be paid ; and upon its dissolution to assign, transfer and set over to the said Sistare two undivided fifth parts of the said share or interest of said Cushing in the assets and effects, including the good-will of said firm (such two-fifth parts of said share being equivalent to one-eighth of said assets); but it is understood and agreed that the right and title of said Sistare to such one-eighth part thereof shall attach at once upon such dissolution taking place; and said Sis-tare shall become and be, by force of such dissolution, and of these presents, fully vested therewith, without further conveyance from said Cushing or his personal representatives.

And it is hereby mutually understood and agreed, that for all the purposes of said copartnership, and during its continuance, said Cushing is to represent, manage and control the entire interest which he holds, under said articles of copartnership as above mentioned, as fully, to all intents and.purposes, as if vested absolutely therewith in his own right.

“ And the said Sistare hereby further agrees fully to indemnify and save harmless the said Cushing against any loss which he may sustain as a member of said copartnership firm to the extent of two-fifths of such loss.

“ In witness whereof the parties to these presents have hereunto set their hands and seals, the day and the year first above written.

“ W. T. CUSHING. [l.s.] .

“ GEO. K. SISTARE, Jb. [l. s.]

“ In presence of Henby A. Elliott.”

At the time the agreement was made, the firm of Sanford, Cushing & Co. consisted of James H. Sanford, Michael Lienau, Marvin J. Merchant and William T. Cushing; and the partnership existing between them was, by its terms, to expire on the 31st of December, 1870.

On the 1st of March, 1870, the interest of Sanford having been transferred to Michael Lienau for Captain F. W. Bardua, by and with the consent of all the copartners, it was by them.- agreed that the business of the new firm should, after that date, be carried on under the firm name of Cushing, Bardua & Co. The plaintiff knew of this change, and consented to it by extending’ the operation of the declaration of trust, as the agreement between them was designated, until the 31st December, 1873.

On the 11th January, 1872, Marvin J. Merchant transferred his interest in the firm to Michael Lienau, forever, subject to the terms of the copartnership, and to all debts and liabilities for which, he might be responsible as a member of the firm, and which liabilities Lienau assumed. This assignment was known to, and acquiesced in, by all the partners. The plaintiff did not consent to this change, and, when advised of it, regarded it as a dissolution of the copartnership, and claimed his rights under the agreement between him and the defendant.

The parties agreed that the right and title of the plaintiff to one-eighth of the defendant’s interest in the copartnership should attach at once, upon a dissolution of the firm taking place, and that the plaintiff should become and be, by force of such dissolution, fully vested therewith without further conveyance from the defendant or his personal representatives.

The first question presented, therefore, is, whether the transfer by Merchant to Lienau, operated as a dissolution of the copartnership existing between him and his associates. It must be borne in mind that the assignment by Merchant is not one of his interest to pay his debts, or to secure a creditor, or made when he was in failing circumstances. It must also be kept in view that it was not made without the knowledge or against the wishes of his associates, but with their knowledge and assent, and that by its terms ■ it divested him of all right and title to the property and effects of the partnership, and provided for the payment of his liabilities as a partner by Lienau’s assumption of all such obligations. It is unlike the case, therefore, to which we were referred on the argument of this appeal (Marquand v. N. Y. Manfg. Co., 17 Johns., 525), and which was an assignment without the consent of the members of the firm to which the assignor belonged, and either voluntary on his part or impelled by the circumstances suggested. Whether one partner can, by a vol-. untary assignment of his interest during the period of a partnership, dissolve it, may be a vexed question, but it seems to have ■been settled in this State by the ease of Marquand v. Manufacturing Co. (supra), and others to which reference will be made; but that question does not necessarily arise on the facts detailed.

The question here is, whether the transfer by one partner of all his interest in the firm of which he is a member, with the consent of his associates, does not ipso facto dissolve the firm so far as he is concerned, and it is a question about which there can be little doubt, and one which needs little discussion.

The effect of an assignment by one partner has been declared. In Ketcham v. Clark (6 Johns., 146), an assignment was made by one of two partners, of all his share in the partnership stock, to a third person, and Van Ness, J., said: “ This act was of itself a termination of the partnership.” In Marquand v. New York Manufacturing Co. (supra), the same rule is asserted. When the partner becomes a bankrupt, it is the assignment that follows which works the dissolution. It is because the unity of interest is severed between the contracting parties. (Fox v. Hanbury, Cowp., 448 ; Hague v. Rolleston, 4 Burr., 2176 ; Ex parte Smith, 5 Vesey, 295.) In Skinner v. Dayton (19 Johns., 536), Platt, J., said that the right to withdraw from a firm was one inseparably incident to every partnership. “ Every partner,” said he, “ has an indefeasible right to dissolve the partnership, as to all future contracts, by publishing his own volition to that effect * * * the only consequence being that he subjects himself to a claim for damages for breach of his covenant.” In Mumford v. McKay (8 Wend., 442), it was held that the assignment by one partner of his interest in the partnership property, was a dissolution ; “ that the purchaser became a tenant in common with the other partner in the joint property.” The effect of such an assignment is ipso facto to dissolve the copartnership (2 Parsons on Con., 171, and cases cited; Horton’s Appeal, 13 Penn., 67; Parkhurst v. Kinsman, 1 Blatch., 488 ; Whitton v. Smith, 1 Free. [Miss.], 231.)

In the case of Taft v. Buffum (14 Pick., 322), one of four members of a firm assigned all his interest to one of his copartners, but still continued to transact the business of the firm in the same manner as before, and the court held that as to third parties such an assignment would not ipso facto dissolve the copartnership, because the assignor might contribute his services only, and still remain a partner. Conceding, however, the principle that if he did not continue by acts to be a member of the firm, or if he ceased to be a member, from any circumstances, the dissolution was accomplished by the assignment. . In this case the outgoing partner assigned all his interest in the partnership, and reserved nothing.

He provided, as already suggested, for the payment of his joint liabilities, and, since the assignment, has done nothing as a partner. The intention to retire from the firm is manifest, and it is equally clear that the remaining members of the firm so understood it; at all events they must be chargeable with notice of the legal effect of their own act.

The outgoing partner, receiving a compensation, must be supposed, under the circumstances attending the assignment, to have drawn from the firm all his money— all his interest —and having done so, withdrawn his personal obligation to respond for future debts contracted, if not' to prior dealers without notice of his withdrawal, certainly to subsequent creditors. The plaintiff’s contract was made with reference to existing things, and he had the right to insist, under his agreement, upon the benefit of the personal property and personal influence of H. B. Merchant, one of the members of. the firm.

It might well be that he placed great reliance upon both of these elements, or upon one of them, even though it should appear that neither was of value. It is not important, however, to consider these incidents. If an assignment by one partner without the consent of his associates works a dissolution, it is very clear that when they consent, unless he be continued notwithstanding by a change of interest, there is no room for conjecture. No case to the converse of this proposition was cited, and none has been found. The search must be in vain. The attention of this court has been called to the case of Ferrero v. Buhlmeyer (34 How. Pr., 33), a Special Term case, in which Jones, J., has reviewed some of the decisions in this State on the effect of an assignment by one partner, and in which he arrives at the conclusion that it does not work the dissolution of a partnership, the term of which has not expired. The opinion is .elaborate and able, but it is not applicable to this case. It is doubtful whether, if the facts were in accord, it would be given a controlling place, more particularly since the decision in 8 Wendell (siopra) was not referred to. It is not " necessary, however, further to discuss it. The adjudications in this State must prevail when there 'is a conflict between them and others in different places on such a question. The result of these views is, that the partnership existing when the agreement between the parties hereto was made, was dissolved by the assignment, and that the decision made at Special Term was correct. It follows that the plaintiff is entitled to the benefit growing out of that circumstance.

The next question we are called on to examine, is, whether the judgment rendered is proper. The consequences of a dissolution provided by the agreement, are, that the defendant should assign, transfer and set over to the plaintiff, two undivided fifth parts of 'his share in the assets and effects, including the goodwill of the firm (such two-fifth parts of said share being equivalent to one-eighth of said assets). The plaintiff demanded that the defendant should execute to him a conveyance of such two-fifths, and account to him for the moneys received to his use or to which he was entitled under this agreement. The defendant admitted, or rather alleged, in his answer, that the share which he held in his own right was worth $16,000, and it was apparently upon that statement that a judgment for $16,000 was entered, and a further judgment or decree made that the action be referred in order that an account might be taken. The judgment for $16,000 is not warranted by the form of the action, or the allegations in the complaint, or the prayer for relief. The defendant did not undertake to pay any sum of money, except such as would cover the profits that would become payable to the plaintiff under the terms of the contract between them. When the contingency happened by which the agreement was consummated, he was to assign and set over the interest conveyed but held in trust. It was the two-fifths of the defendant’s share that he was to hold in trust, and not the money which was paid as a consideration for the transfer. The defendant, by the action, was only called on to perform his contract, and that could be done by his executing the contemplated assignment, and accounting for the profits. The judgment should have been for the plaintiff generally, with a further order that the defendant account, and the relief granted would then have been consistent with the obligations assumed by the agreement and the demand made by the complaint.

The duty seems to be imposed upon us, therefore, to affirm the decree in part, and to reverse it in part. We think this will be accomplished by reversing that part of the judgment which directs the payment of $16,000, and'affirming it as to the balance, and without costs to either party. This will leave it a judgment for the plaintiff with a reference to state accounts.

We think the plaintiff, however, should have the right to elect whether to accept this change or a new trial. In the event of the latter selection, the costs must abide event.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.


text:
    JACOB CARPENTER, Appellant, v. LOUISA A. BEARE, Respondent.

      Inadequate damages—how question as to, reviewed—motion for new trial.
    A party cannot, on appeal from a judgment entered on a verdict in his own favor, claim that the damages found were too small. His remedy is by a motion for a new trial on a case. (Moore v. Wood, 19 How., 405.)
    The proceeding to obtain a new trial for inadequate damages, is, by analogy, the same as that for excessive damages.
    Appeal by the plaintiff from a judgment on a verdict in his favor, on the ground that the amount given was too small, and unauthorized by any evidence in the case.

      Wilcox & Hobbs, for the appellant.
    G. W. Davenport, for the respondent.
   Brady, J.:

The plaintiff claimed a commission of two and a half per- cent on the sum of $18,000, for which he had made a sale of the defendant’s property. There was no proof showing the value of the services rendered. The plaintiff claimed under an agreement by which he was to be paid the commissions mentioned, a claim which was denied, and upon which the jury were to pass upon conflicting evidence. The plaintiff, if the jury believed his demand to exist for any sum, was entitled to recover the two and a half per cent; but they gave him a verdict for less than one-half of the commissions. The plaintiff, however, made no motion for a new trial, either upon the minutes of the justice presiding at the trial, or at Special Term. TTis appeal rests entirely upon the inadequacy of the sum named by the jury, and upon his rights to a new trial for that reason. His omission to make a motion for a new trial, as stated, is fatal to the proceeding by appeal. It was determined in Moore v. Wood (19 How. Pr., 405), that a party could not move to set aside a verdict in his own favor, on the ground that the damages found were too small; that his remedy was by a motion for a new trial on a case. The decision was based upon the phraseology of section 264 of the Code, which did not expressly authorize such a motion on the minutes of the judge. It will be perceived, however, that the motion, under that section, may be made when the damages are excessive. In McDonald v. Walter (40 N. Y., 551), a different result was announced. Justice Harris entertained and granted such a motion, and the order he made was sustained upon the ground that the power of the court to award a new trial, when dissatisfied with the verdict, either for the reason that the verdict was clearly too large or too small, rested on precisely the same principle. Justice Woodruff said a verdict for a grossly inadequate amount stands upon no higher grounds in legal principle, nor in rules of law or justice, than a verdict for an excessive or extravagant amount. The question whether there was sufficient evidence to justify a verdict, must be raised by motion made either before the judge presiding on his minutes, or at Special Term (Code, §§ 264, 265; Bulkeley v. Keteltas, 4 Sandf., 450), and hence the declaration thus recognizing this necessity in Moore v. Wood (supra), that the plaintiff’s remedy was by motion at Special Term, in the first instance. It is true that in Mason v. Lord (40 N. Y., 484), the Court of Appeals decided that a finding of fact, without any evidence to sustain it, was a legal error available in that court; but in that case the judgment was one founded upon the findings of á court without a jury, and to which findings exceptions had been taken. There is no analogy between that case and this, therefore. The proceeding to obtain a new trial for inadequate damages, is, by analogy to that to obtain a new trial for excessive damages, the same in principle, and must be the same in form. A motion must be made either at the Special Term or upon the judge’s minutes (Code, supra); and the plaintiff herein, having made neither, takes nothing by his appeal.

It has not been deemed necessary to pass particularly upon exceptions taken by the plaintiff during the trial. Hone of them was argued by his counsel, or presented on his points. It is sufficient to say of them, generally, that none of them was well taken, if indeed we are called upon at all to notice them, as to which, quaere. It is not our duty to consider on this appeal whether the defendant should have had judgment in consequence of the alleged utter insufficiency of the evidence to establish the alleged agreement as to commissions. The jury have found against her, and, as long as the verdict stands, it is taken to determine that the plaintiff was entitled to recover. (McDonald v. Walter, supra.) The judgment should be affirmed, with costs to the respondent.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


author: Daniels, J.:

text:
    GEORGE WEYMAN, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.

      Larceny—property obtained, by artifice — when title does not pass—Intent—how may be shown.

    The prisoner received a lot of jewelry from Kuhn & Co., with the understanding that if not sold the jewelry was to be returned, and that if any part was sold he was to return the price of the part so sold. Held,, that, under such arrangement, the title to all the articles not sold remained in Kuhn & Co.

      Held, that if .the possession of the jewelry was obtained feloniously, for the purpose of depriving the owners of it, by means of such artifice, it constituted the crime of larceny.
    The distinction between this class of cases and obtaining money by false pretenses, is, that in the latter the owner intends to part with his title.

      For the purpose of showing the guilty intention in such case, it is competent to show that the party accused was engaged in other similar frauds about the same time, when the transactions are so connected as to time, and so similar in their other relations, that the same motive may reasonably be imputed to them all.
    Writ of error to the New York Court of Oyer and Terminer, on conviction of the plaintiff in error of the crime of grand larceny.
    George Weyman, plaintiff in error,
    was tried at the February term of the Court of Oyer and Terminer, for the county of New York, 1815, upon an indictment for grand larceny, convicted, and sentenced to imprisonment in State prison for five years.
    He was a jeweler, doing business at No. 11 John street. On the twenty-seventh day of November, he sent his clerk, with a memorandum order, to the firm of Charles Kuhn & Co., jewelers, doing business at No. 18 John street, which order called for certain articles of jewelry — a memorandum order meaning, in the jewelry business, to convey the idea, among persons engaged in that business, that the person who sends the order wants the articles.specified in the order for the purpose of showing them to some particular customer, with a view of enabling the customer to inspect the goods, and tó decide (out of the number sent) which he will take, and, when he has decided, that the balance shall be returned, together with the cash for the one or more actually sold. Messrs. Kuhn & Co. sent five pairs of bracelets, delivering the same to the clerk, who, in turn delivered the same to Hiram Kraft, the agent of George Weyman, and who was in his employ.' Subsequently Weyman called upon Kuhn & Co., saying to them that he had shown the bracelets to his customer, and that his customer had not decided as to which he would take, and that he wanted until next morning to decide, which request was granted. Weyman subsequently left the city, and, upon the twenty-seventh day of January following, was arrested in California, and upon a requisition brought back to the city of New York. Messrs. Kuhn & Co. never received back the bracelets, or any money from Weyman realized upon any sales. ■ Hpon the question of the “ intent” of Weyman at the time he got the bracelets from Messrs. Kuhn & Co., the court permitted the district attorney to prove that Weyman had obtained, upon the twenty-fourth day of November preceding, of the same year, from the firm of Smith & Hedges, jewelers, of No. 1 Maiden lane, a set of diamond studs upon a like pretense, and on the twenty-fifth November, two watches of Reuben. S. Middleton, none of which were returned.

      W. F. Kintzing, for the plaintiff in error.
    It is not larceny if the owner of personal property intends to part with the property and delivers the possession absolutely, although he has been induced to part with it by fraudulent means. (Smith v. The People, 53 N. Y., 111; Ross v. The People, 5 Hill, 294; Lewer v. Commonwealth, 15 Serg. & Rawle, 93; 2 East P. C., 668, and cases cited; Wharton Am. Cr. Law [5th rev. ed.], 1780; Archibald’s Crim. Pl., 895; 1 Russell on Crimes, 563; Com. v. James, 2 B. & H. Ldg. Cr. Cases [2d rev. ed.], 181, 204; Blunt v. Com., 4 Leigh, 689; Rex v. Jackson, 1 Moody C. C., 119; Mowrey v. Walsh, 8 Cow., 238; Regina v. Barnes, 2 Den. C. C., 59; Reg. v. Thomas, 9 Carr. & P., 741; Reg. v. Adams, 1 Den. C. C., 38; Rex v. Adams, Russ & Ry. C. C., 225.) If the party be guilty of no trespass in taking the goods, he cannot be guilty of felony in carrying them away. (1 Hawkins P. C., § 1, p. 208 ; Reg. v. Middleton, 12 Cox’s Crim. Cases, 260; People v. McDonald, 43 N. Y., 61; 2 Russell on Crimes [6th ed.], 35; Hilderbrand v. The People, 56 N. Y., 394.) There was not sufficient trespass to constitute larceny. (Reg. v. Thomas, 9 Carr. & Payne, 741; English Am. Law Rep., 314.) It is well settled that stolen property can at all times be reclaimed by the owner, although it may have been purchased by an innocent purchaser, in good faith and for a consideration. That is upon the theory that he has never voluntarily parted with his property; the title to the same still remains in him. Did the prosecutor in case at bar part with his property in the jewelry? When he gave the articles of jewelry into the possession of the accused, he gave him the right to sell and dispose of them to a customer, to convey title to the purchaser. Certainly the accused must have had property in the jewelry; otherwise he could not convey it; and if the accused had sold the jewelry, the original owner never could recover the specific articles, or the price of them, from the purchaser. It is well settled that testimony of the prisoner’s guilt or participation in the commission of a crime, wholly unconnected with that for which he is put on trial, cannot be admitted. (Roscoe’s Crim. Ev. [7th ed.], 92, and note ; Com. v. Call, 21 Pick., 215; Dunn v. State, 2 Ark., 229; Bottomley v. United States, 1 Story, 135.) Therefore, it is not allowable to show, on the trial of an indictment, that the prisoner has a general disposition to commit crime. (1 Roscoe’s Crim. Ev., 57; 1 Leigh, 574; Barbour’s Crim Law [2d ed.], 395.) Nor is it competent to prove other acts, going to establish another distinct offense, for the purpose of raising an inference that prisoner has committed the offense for which he is on trial. (2 Russell on Crimes [6th ed.], 776.) No principle of law is better settled than that the law presumes every citizen to be a person of good character, and that, on the trial of a criminal action, the prosecutor can in no way impugn the defendant’s character, unless such defendant puts his or her character in issue. (People v. Bodine, 1 Den., 291; People v. White, 24 Wend., 520; People v. White, 14 id., 167; People v. White, 14 id., 112; People v. Lamb, 2 Keyes, 378; State v. O'Neil, 7 Iredell, 251; Ackly v. People, 9 Barb., 69; Commonwealth v. Hardy, 2 Mass., 317; 3 Greenl. on Ev., 25; 1 Phillips on Ev., 177, 145.)

      Horace Russell, assistant district attorney, for the people.
    Where with the' animus furandi a person obtains consent to his temporary possession of property and then converts it to his own use, he is acting against the will of the owner and is a trespasser. (The People v. Hildebrand, 56 N. Y., 394; The People v. Smith, 53 id., 111; The People v. McDonald, 43 id., 61; The People v. Call, 1 Denio, 120; Lewer v. The Commonwealth, 15 S. & R., 98; 1 Hawkins P. C., chap. 33, § 9, p. 509 ; 2 Russell on Crimes, 22; Starkie's case, 7 Leigh, 752; Reg. v. Slowly, 12 Cox Cr. C., 269 ; Reg. v. Bird, id., 257; Rex v. Stanley, Russ. & Ryland, 305 ; The State v. Watson, 41 N. H., 533 ; The State v. Humphrey, 32 Vt., 569 ; Welsh v. The People, 17 Ill., 339 ; see 2 Bishop’s Crim. Law [5th ed.], 444, § 811, and notes, where the cases are collated.) The transaction which was the subject of this prosecution being one of the many done in pursuance of the general intent, proof of the other transactions establishing the general intent was admissible. (Wood v. The United States, 16 Pet., 360 ; Wharton Crim. Law [6th ed.], 650 ; Com. v. Eastman, 1 Cush., 189 ; Com. v. Tuckerman, 10 Gray, 173; Reg. v. Richardson, 8 Cox, 448 ; Com. v. Stone, 4 Metc., 43 ; Com. v. Jenkins, 76 Mass., 485 ; Copperman v. The People, 56 N. Y., 591; Bielschoffsky v. The People, MS.; 1 Bishop on Cr. Pro., 666, and cases cited.)
   Daniels, J.:

It appeared, upon the trial, that the prisoner, on the 24th of November, 1874, sent what was known as a memorandum order to Charles Kuhn & Co., jewelers, carrying on business at No. 18 John street, in the city of New York, for six pair of gold band bracelets, which were thereupon sent to him by that firm. The prisoner was engaged in the same business and, in its transactions, the order was designed and understood to be an application for the articles mentioned in it, for the purpose of showing them to a customer, and enabling him to inspect them and select out of the number sent, which, if either, he would take, and, if he accepted either, that the money for that, with the remainder of the articles, should be returned to the persons sending them on the order. And the evidence tended very directly to show that such was the character of -this transaction between the prisoner and Kuhn & Co. But neither the articles sent to him, nor the money for either of them, were at any time returned by him.

Upon these facts it was objected by the prisoner’s counsel that he could not be convicted of larceny, because, upon the delivery of the articles, both the title to them, and their possession, passed to him. But this position cannot be maintained, for the title cer-. tainly did not pass. The property, under the arrangement, remained in Kuhn & Company in all the articles not sold by the prisoner. He had the power to sell and transfer the title to such of the articles as he might dispose of in that manner. But until a sale was made, the title was in no respect changed. It continued uninterruptedly in the persons from whom they were procured, as long as no sale was made by the prisoner. That was clearly the design and effect of the transaction. It was not its purpose, that the title in any event should pass to the prisoner. He was "the mere custodian of the property for the persons sending it to him; and if he acquired that feloniously, for the purpose of depriving the owners of it by means of the artifice he made use of to obtain it, that was sufficient, within the rule sanctioned by the authorities, to constitute the crime of larceny. (Whart. Crim. Law [4th ed.], 1847-1852; Hilderbrand v. People, 8 S. C., 19; 56 N. Y., 394; Smith v. People, 53 id., 111.) Whether he did or not was a question for the jury under the evidence given in the case, and that was fairly submitted to them for their determination. The distinction between this class of cases, and obtaining -property by means of false pretenses, seems to consist in the circumstance, that in the latter the owner intends to part with his title with the change of custody, _ while in the former no intention of that kind exists.

The people were allowed to show that the prisoner, on the same day and the day following that on which he procured these articles from Kuhn & Company, in the same way and by similar means, procured other articles of jewelry from other persons, and appropriated them to his own use. This evidence was offered and received for the simple purpose of establishing his intent to be felonious in obtaining those mentioned in the indictment. His counsel excepted to the ruling under which it was admitted, and now relies upon the exception for the reversal of the conviction. By the evidence which was excepted to, it appeared that the prisoner, on the twenty-fourth of November, obtained from Smith & Hedges, jewelers in Maiden lane, a set of diamond studs, worth $500, on a representation that he had a customer for them; and on the next day, the twenty-fifth, procured from E. S. Middleton, another jeweler in the same street, two gold watches on a similar representation; all of which were to be returned by him unless they were purchased by the customers, and in that event, the money was to be returned instead of the article it might be received for. The three transactions occurred within two days, and the similarity in their leading features and characteristics, justified the conclusion that they were pervaded and controlled by the same general intension. It was one intent, manifested by three-distinct acts. / But that so far connected them as to render them all manifestations of the same purpose. It combined them in one felonious plan, each of which was but a portion of its execution. And the several acts were allowed to be'shown, in order to enable the jury to determine what was the intention of the prisoner in the one which was the subject of the indictment. That was the gist of the crime it was charged he had committed, and, ordinarily, proof of its existence must depend upon the circumstances attending the transaction.

In other cases where the intention with which an act has been performed has been a material circumstance to be ascertained, evidence of this description has been received. Where goods have been obtained by means of fraudulent representations, it has been held that as the intent is a fact to be arrived at, it is competent to show that the party accused was engaged in other similar frauds about the same time; provided that the transactions are so connected as to time, and so similar in their other relations, that the same motive may reasonably be imputed to them all. (Hall v. Naylor, 18 N. Y., 588, 589; Hennequin v. Naylor, 24 id., 139; Allison v. Matthieu, 3 Johns., 235 ; Rankin v. Blackwell, 2 Johns. Cas., 198; Bielschofsky v. People, 10 S. C., 40; Com. v. Eastman, 1 Cush., 189.) The same thing is very common for the purpose of establishing guilty intent on 'trials for passing counterfeit money, and in other cases mentioned in section 15, volume 3, of Greenleaf on Evidence. In Stuart v. Lovel (2 Stark., 84) Lord Ellenborough declared that there was no doubt but that other libelous publications would be admissible in proof of the intention the trial of an indictment for a libel. And in Reg. v. Dossett (2 Car. & Kir., 306), on an indictment for feloniously setting fire to a rick of wheat-straw, proof was allowed to show that it had been previously set on fire by the prisoner firing a gun very near to it. In that case Justice Maulé held, that in many cases it is an important question whether a thing was done accidentally or willfully. If a person were charged with having willfully poisoned another, and it were a question whether he knew a certain white powder to be poison, evidence would be admissible to show that he knew what the powder was, because he had administered it to another person who had died, although that might be proof of a distinct felony. In the cases of uttering forged bank notes, knowing them to be forged, the proofs of other utterings are received to show the intent, while all are distinct felonies. Several cases are added in a note to this decision, fully sustaining the principle mentioned by the court.

The case of Reg. v. Richardson (2 Fost. & Fin., 343). is still more analogous to the present one. The trial was for embezzlement, and evidence was offered of similar errors in the prisoner’s account, before and after those forming the subject of the charges. This was objected to on his part, but the proof was held to be proper, and it was received by the court.

And a decision quite similar was made on the trial of an indictment for the same offense, in the case of Com. v. Tuckerman (10 Gray, 173). The case of Reg. v. Geering (18 Law Jour. [M. C.], 215) went quite as far as the court did upon the trial of the prisoner. That was an indictment for murder by means of arsenic; and the prosecution proposed and was allowed to show, on the trial of the prisoner for poisoning her husband by arsenic given him in tea prepared by her, that arsenic had been taken into the stomach of three of her sons at other times; that two of them had died of poison, and that the symptoms of all the four parties were the same; that they all lived with the prisoner, and formed part of her family; that she generally made the tea for them, cooked their victuals, and distributed the same to them on their leaving the house to go to their work in the morning. Pollock, G. B., held ' this evidence proper, and stated that Aldebsok and Taleoubd concurred with him. He added in his decision, that it was not inadmissible by reason of its having a tendency to prove a subsequent felony.

Moggs case (4 C. & P., 364) was disposed of under the same principle. The prisoner was indicted for administering arsenic to horses, and the prosecution was allowed to show, as evidence of his intent, that it had been done by him on' other occasions. Hinckworth’s case was an indictment for robbery. The prisoner went with a mob to the prosecutor’s house, and one of the mob went to him, and civilly, and, as he believed, with good intention, advised him to give them something to get rid of them, which he did. To show that this was not bona fide advice, but simply a mode of robbing the prosecutor, evidence was received of other demands of money by the same mob, at other houses, at different periods of the same day, when some of the prisoners were present. And it was held by Parke, J., to be proper, after a conference with Vatjghak and Alderson, and in which Lord Tejnterden con-curved. Other cases of the same general tenor will be found in Eoscoe’s Criminal Evidence (5th Am ed.), 81-83, 94, 95.

The evidence which was received by the court on the trial of the prisoner, seems to have been within the principle maintained by these authorities. If other criminal acts can be received, as they most certainly have been, with the sanction of the courts, for' the purpose of proving the intent with which the act charged as criminal was committed, no good reason exists for excluding it in prosecutions for larceny. The intent is the vital fact to be ascertained; and other acts, plainly within one common purpose or design, have been allowed as legal evidence of it. In treason, murder, robbery, arson, embezzlement, fraud, receiving stolen goods (Copperman v. People, 8 S. C., 15; 56 N. Y., 591), and other cases, such acts, as proof of intent, have been received, and no reason appears why larceny should not be included in- the same principle. The prisoner’s counsel insists that it was a violation of the rule precluding the prosecution from proof of bad character, when no evidence on that subject was given on his part. That rule does not include direct evidence of the prisoner’s guilt. It relates |( to general proof of character, and nothing else. \ Facts tending to prove the accused guilty of a specific crime, may incidentally affect his character, as they certainly would, but that is no reason why they cannot be proved. If- it were, no person could ever be proved guilty of a crime which he himself did not confess. The 'proof offered and received by the court was that of a fact constituting a material ingredient of crime. It was direct proof of guilt in no sense in conflict with the rule invoked in support of the exception taken. The object of it was to show that the prisoner was probably actuated by one general intention including all the property he managed to obtain on the three different occasions, and it had a direct tendency to exhibit the nature and character of that intent.

It was received solely for that purpose, and directly tended to show an intention to steal when the property was procured which was the subject of the trial. The prisoner was rightly convicted, and ^ the judgment should be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


text:
    SIGISMUND SCHWAB, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Selling liquor without license — Indictment—Chapter 578, Laws of 1866—chapter 175, Laws of 1870 — Repeal of repealing law — effect of.

    Although section 15 of chapter 628 of the Laws of 1857, was', hy chapter 878 of 1866, rendered inapplicable to the city of New York, yet the latter statute was repealed by chapter 175 of 1870, and the former statute restored.
    When a statute repealing a preceding statute is itself repealed, the original act is revived and continues in force from that time.
    In an indictment for selling liquor without a license, it is sufficient to allege that the liquor was sold in the Ninth ward of the city of New York, to be drank in the house, store, shop and place of the seller’ without stating the name of the street or the number of the house.
    It is not necessary, to constitute an offense under the statute, that the wine should be intoxicating.
    Writ of error to the Court of Oyer and Terminer, held in and for the county of Hew York, "to review the conviction of the plaintiff in error for violation of the excise laws, in selling wine without a license.

      John McKeon, for the plaintiff in error.
    The prosecution should aver the number of the house and the street in which the offense was committed. (State v. Gore, 34 N. H., 510; State v. Allen, R. M. Charlton, 518; 11 Hargrave State T., 299 ; Com. v. Cook, 13 B. Mon., 149 ; 1 Hale’s P. C., 517, 526, 535; 2 id., 170; People v. Allen, 5 Denio, 79; Chitty Cr. Pleadings, 200; Bishop on Cr. Proceedings, 75 ; Wharton Cr. Law, § 682, 265.) The court erred in refusing to charge that the prosecution having failed to prove that Rhine wine is of intoxicating nature (a strong and spirituous liquor), the defendant should be acquitted. (Board of Tompkins v. Taylor, 21 N. Y., 177 ; Nevin v. Ladrue, 3 Denio, 450.)

      B. K. Phelps, for the defendants in error.
    The indictment need not allege the price for which the liquor was sold. (State v. Downer, 21 Wis., 274; Cochran v. State, 26 Texas, 678; Wrock

      ley v. State, 1 Clarke [Iowa], 172 ; State v. Muntz, 3 Kan., 383 ; State v. Fanning, 38 Mo., 359; Comm. v. Thayer, 8 Met., 525; People v. Adams, 17 Wend., 475.) It was sufficient to allege that the offense was committed in the Minth ward of the city of New York. (Bishop Stat. Crimes, § 385; State v. Nixon, 18 Vt., 70; Rosc. Cr. Ev. [7 Am. ed.], 89; Archb. Cr. Pl. [13th Lond. ed.], 749 ; 1 Whart. Cr. Law .[7th ed.], §§ 277-280 ; Reg. v. Brooke, Carr. & M., 543; Rex v. Perkins, 4 Carr. & Payne, 363; Rex v. Napper, 1 Moody C. C., 44.) The failure of the commissioners to establish a rate for licenses was no defense to the prisoner. (Commonwealth v. Blackington, 41 Mass., 352; City Council of Charleston v. Hollenback, 3 Strob., 355; City Council of Indianapolis v. Fairchild, 1 Carter [Ind.], 315; State v. Jamison, 23 Mo., 330; State v. Downer, 21 Wis., 274; Mayor and Ald. v. Mason, 1 Abb. Pr., 334; S. C., 4 E. D. Smith, 142.)
   Daniels, J.:

The defendant in error was convicted of a misdemeanor, committed by selling wine without license, in a quantity of less than five gallons, to be drank upon his premises. The indictment was found under the act of April 16, 1857. By that act it was provided that whoever shall sell any strong or spirituous liquors or wines, to be drank in his house or shop, or any out-house, yard or garden appertaining thereto, or shall suffer or permit any such liquors or wines sold by him, or under his direction or authority, to be drank in his house or shop, or in any out-house, yard or garden thereto belonging, without having obtained a license therefor, as an inn, tavern, or hotel keeper, shall forfeit fifty dollars for each offense. (2 R. S. [5th ed.], 942, § 15.) And a violation of this provision has been held to be a misdemeanor. (Behan v. People, 17 N. Y., 516.)

But the counsel for the plaintiff in error objects, that this section of the statute has been rendered inapplicable to the county of Mew York; and that was probably the case while chapter 578 of the Laws of 1866 remained in force. (Vol. 2, Laws of 1866, 1242.) But that was expressly repealed by section 6 of chapter 175 of the Laws of 1870 (vol. 1, Laws of 1870, 458); and that section declared that the act of April 16, 1857, should be and remain in full force and effect throughout the State, so far as it was not inconsistent or in conflict with the provisions of the act of 1870. It is not objected that any conflict or inconsistency exists between section 14 of the act of 1857, being the one already referred to, and the provisions contained in the act of 1870. But as a large number of acts were passed on the 16th of April, 1857, and the particular act intended to be revived was not mentioned in section 6 of the act of 1870, it is objected that this section did not have the effect of rendering the act regulating the sale of strong and spirituous liquors and wines, passed on that day, applicable to the city and county of Hew York. The reference to the act designed to be affected by this provision, was by no means certain or definite in its character. But as the act repealed by the section mentioned, modified in important respects the act regulating the sale of liquors and wines, enacted in the year 1857, it is evident that the latter was what the legislature intended to be understood by the reference it made to the act passed April 16, 1857. It was the only act passed on that day in any way relating to or affecting the sale of strong or spirituous liquors or wines ; and as the act of 1870 regulated the same subject in part, its adoption must have been intended, by the provision which was made by that act, for the restoration of the preceding law, as long as both were required for the completion of the system. Even though the reference was obscure, as long as the intent of the legislature was manifested with reasonable clearness, the statute should be construed so as to carry it into effect. But, even if the reference was so uncertain as to be incapable of being maintained, the result would not be of the slightest benefit to the plaintiff in error, for the act of 1857 was revived by the mere repeal of the act of 1866. The rule upon that subject is, that when a statute repealing a preceding statute is itself repealed, the original act is revived, and continues in force from that time. (Sedgwick on Statutory and Const. Law, 137, and cases referred to.) In either view, the objection taken is without the least color of support. Ho doubt can be entertained that the section of the act of 1857, already quoted, was applicable to the city of Hew York when the sale was made for which the conviction was had.

The' indictment was in the usual form for the sale of spirituous liquor or wine without license. (Hodgman v. People, 4 Denio, 235; People v. Townsey, 5 id., 70.) It contained the averment in the first count, that the sale was made in the Ninth ward of the city of New York, to be drank in the house, store, shop and place of the seller, the plaintiff in error. And that was all that was required in this respect to bring the case within the restraint imposed by the statute. (Whart. Am. Crim. Law [4th ed.], §§ 277, 284.) It .fully apprised the plaintiff in error of the nature of the accusation made, and of the time and place where it would be claimed by the prosecution the offense had been committed by him. The fact that the commissioners had not determined the amount which should be charged for licenses, was no defense to the indictment. The offense consisted in selling without license, with liberty to the purchaser to drink the article sold in the house or shop of the seller. It was in no respect rendered dependent on the conduct of the commissioners, but resulted solely from that of the accused.

The objection taken to the proof given by the prosecution to show that the seller had no license, cannot be sustained; for no such proof was required to be given to make out the people’s case. (1 Greenleaf on Evidence [7th ed.], § 79; Fleming v. People, 27 N. Y., 329, 334.) And defective evidence as to the fact, even if it had been given, could work no possible injury to the accused ; and besides that, he himself swore that he had no license.

An exception was taken to the refusal of the court to charge the jury that they must acquit the accused, because the prosecution failed to prove that the wine sold was of an intoxicating nature. The instruction was properly declined, because the statute did nbt require that to be shown in order to create, the offense charged. By the provision made upon this subject, if strong or spirituous liquor or wine was sold, to be drank in his house, shop, out-house, yard, or garden appertaining thereto, by the accused, without license, the case was made out. The statute did not require the wines to be shown to be intoxicating for that purpose. It is sufficient if wine to be drank be sold under the prohibited circumstances. The case of Commissioners of Excise v. Taylor (21 N. Y., 173), affords the plaintiff in error no assistance on this point. The court, in directing that, did not hold that proof was required that the article was intoxicating, when the .subject of the sale was either strong or spirituous liquor or wine, but it was there held that strong beer was included in the ternas strong or spirituous liquors. The law, in plain terms, prohibited the sale of wine in quantities less than five gallons, to be drank on the premises of the seller, when it was made without license. This included all wines used for drinking. And the terms, as well as policy of the law restrained the business to those persons alone who should be licensed to carry it on. The proof tended to show that the accused sold wine in a less quantity than five gallons, to be drank in his house and shop; and that was sufficient, if the jury believed the evidence, as long as he had no license, to make out the case against him.

An exception was taken to certain comments made in the charge, on the evidence given by the informer, indicating the necessity which existed for the employment of such persons, to secure the enforcement of the law, and to require' persons selling wines and liquors in small quantities to take out licenses. These comments were not designed to, and did not, withdraw the credit which might be due to the witness, from the decision and control of the jury. On the contrary, they were informe.d that such evidence was ordinarily to be carefully scrutinized, and that they were the sole, exclusive and uninfluenced judges of the credit to be given to it. With this qualification, nothing was said which was not within the peculiar province of the court, or that the accused had the least reason to complain of. (Jackson v. Packard, 6 Wend., 415; Durkee v. Marshall, 7 id., 312.) The case was correctly disposed of by the Court of Oyer and Terminer, and the judgment should be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


author: Daniels, J.

text:
    CHARLES B. WOOD, Plaintiff, v. LUCY D. FISK, Executrix, etc., Defendant.

      Code, § 335—death of surety—liability of estate of, on undertaking required by section 335.
    An action may be maintained against the estate of a deceased surety who was a party to an undertaking given, in pursuance of section 335 of the Code, to stay proceedings upon a judgment during the pendency of an appeal.

      Getty v. Binsse (49 N. Y., 385) and Pickersgill v. Lahens (15 Wall., 140) distinguished.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term.
    The plaintiff recovered a judgment against William Belden, on the 20th day of November, 1867, for $2,530.41. An appeal was taken by the defendant from the judgment to the General Term; and, for the purpose of .obtaining a stay of proceedings while that was pending, James Fisk, Jr., and W. B. Bradford executed an undertaking in the form prescribed by section 335, of the Code of Procedure. The judgment was reversed by the General Term, and an appeal was then taken by the plaintiff to the Court of Appeals, where the decision of the General Term was reversed, and the judgment as it was originally recovered was affirmed. Judgment to that effect was duly entered on the 9th day of July, 1873. James Fisk, Jr., died on the 7th day of January, 1872.
    After the judgment of affirmance was entered on the decision of the Court of Appeals, an action was commenced and judgment recovered by the plaintiff against Bradford, on the undertaking given by himself and Fisk. An execution was issued against property, and returned unsatisfied on that, judgment; and the plaintiff thereupon commenced this action against the defendant, as executrix of James Fisk, Jr., to recover the amount due on the judgment against Belden, with the costs of the appeal, upon the undertaking executed for the purpose of staying the plaintiff’s proceedings when the appeal was taken. The court on these facts dismissed the plaintiff’s complaint, and ordered the exceptions to the decision to be first heard at the General Term.

      Rastus S. Ransom, for the plaintiff.

      Erastus Cooke, for the defendant.
   Daniels, J.

The decision made by the learned justice who presided at the Circuit, was designed to follow and apply the rule maintained by the cases of Getty v. Binsse (49 N. Y., 385), and Pickersgill v. Lahens (15 Wall., 140). Those cases, following other authorities referred to in the opinions, hold that the creditor’s remedy for the collection of his debt against a surety is extinguished by his decease; that no proceedings can be maintained for its recovery against the personal representatives. The action in Getty v. Binsse (supra), was upon a joint note voluntarily' given and accepted in that form ; and the liability of the estate of the surety upon it may, for that reason, have been controlled by considerations entirely inapplicable to the undertaking on which the present action was brought. In Pickersgill v. Lahens (supra), the suit was upon a bond given in compliance with a provision contained in the Revised Statutes of this State, prescribing the security which should be required to justify the issuing of an injunction to stay proceedings at law. (3 R. S. [5th ed.], 270, § 70.) That statute, in terms, required a bond conditioned for the payment to the plaintiff in the action proposed to be stayed, of all moneys which he might recover in such action for debt, damage or costs. So other provision was made defining the .extent of the obligation to be incurred in its execution. And as the instrument required was one of a' fixed and settled nature, upon which the liability of the persons executing it was clearly defined by the principles of the common law, there, would seem to be no impropriety in holding the surety discharged, under circumstances ordinarily attended with that result, when a bond has been executed by him. By providing for a bond without prescribing its effect, that was left to be determined by the common law so far as it applied to instruments- of that character. The statute did not declare under what circumstances the sureties might be discharged, but the common law had already done that when the enactment was made that a bond should be the instrument to be taken. And as that law was neither expressly nor impliedly rendered inapplicable, n governed the liability of the sureties, as it did in all bonds so far as the statute did not interfere with it. The estate of the surety was for that reason properly relieved from liability, because the statute had left the common law applicable to the case, by omitting to declare what the effect of the decease of the surety should be upon his obligation. The same principle was applied to a joint and several bond, after a joint judgment had been recovered upon it, in- the case of The United States v. Price(9 How. [U. S.], 90), under circumstances quite similar in their effect. But the present action was brought upon an instrument entirely unknown to the common law. It was purely a creature of the statute, devised for the accomplishment of a special purpose, that would be defeated, at least in part, by the application of this principle of the common law. Its object was to procure for the party on whose behalf it was given, a stay of all proceedings pending the appeal taken from the judgment, and to render the persons executing it absolutely liable for the payment of the amount recovered by an affirmance, if the appellant failed to satisfy it. For that purpose the statute required that it should be executed by at least two sureties, binding them to the effect that if the judgment appealed from or any part thereof should be affirmed, or the appeal be dismissed, the appellant would pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment should be affirmed, in case it should be affirmed only in part, and tall damages awarded against the appellant on the appeal. (Code, § 335.)

It was clearly the design of the legislature to provide the respondent with a complete security for the payment of the judgment recovered by him, if, in the end, it should be either partially or wholly affirmed. And that would be entirely defeated in case of the death of both sureties, an event which in no instance can be altogether improbable, if the principle governing the exoneration of their estates at common law should be held controlling in the case. The law provides that new sureties may be required in place of those who may become insolvent after the undertaking has been given. But it has required nothing of that kind in ease of their decease, unattended with insolvency. And that omission indicates it to have been the judgment of the legislature, that in that event. no further security could be required for the respondent’s protection. While if the common-law principle relied upon in support of the decision made at the Circuit, applied to such a case, the judgment would still be stayed, and the appeal would proceed without any security whatsoever existing in the case. The provision made for this security could not have been designed to be subject to such a contingency, and yet it clearly would be, if the common law" should be adopted as controlling in the case.

By another provision of the Code, the lien of the judgment may be entirely removed from the debtor’s property during the pendency of the appeal, when the undertaking requisite to stay execution has been given. (Code, § 282.) And that certainly would not have been permitted, if the liability of the sureties in it had been designed to be contingent on anything else than the result of the appeal. If it had been, then the law would provide the means for wholly depriving the judgment creditor of security for its payment, instead of rendering it reasonably certain that the debt should be collected if the judgment proved to be correct. That would be clearly inconsistent with the object „the legislature intended to secure by requiring the undertaking to be given.

The law prescribed the form of the obligation which the sureties were required to incur in- order to stay the proceedings of the successful party during the pendency of an appeal from the judgment recovered by him. And that required them to become bound for the payment of the judgment, in case it should be affirmed, and the appellant failed to pay it. That- was the only contingency on which their liability was rendered dependent. It was the express design of the legislature that they should become bound to that effect. And that would be defeated if the death of either should be held to discharge his estate from all the consequences of his undertaking. The law not only requires no such construction, but it would be inconsistent with the purpose intended to be attained by means of its enactment. The system devised was a new one, intended to be carried into effect, as far as that could be done, by means of its own provisions. Upon the effect of the undertaking which was entered into, they are reasonably free from doubt. And that was, that the sureties should pay the debt, in case the judgment was affirmed and left unpaid by the appellant. The liability was established by the evidence given upon the trial of this cause, and a verdict should have been directed in the plaintiff’s favor. The motion made in his behalf must be allowed to prevail, by setting aside the verdict and directing a new trial of the action to be had.

Davis, P. J., and Brady, J., concurred.

Motion for new trial granted, costs to abide event.