text:
    EUGENE BROWN, Respondent, v. HIRAM BROWN and Others, Appellants, Impleaded, etc.

      Oral agreement for the sale of land — what must he shown to compel its specific performance hy the heirs of the party agreeing to sell — Evidence — when a person may testify as to transactions with a deceased person— Code of Civil Procedure, sec. 829 — materiality of question.

    The evidence which is required to sustain an action brought by a son against the heirs-at-law and devisees of his father, to compel the specific performance of an oral agreement for the sale of land alleged to have been made by the father, considered and stated by Hardin, J.
    In such an action the plaintiff called his mother as a witness to testify as to the making of the alleged agreement. By the will of the father the mother was entitled to the use of the land for the term of her natural life. She was a party defendant to the action, but had put in no answer.

      Held, that as the testimony given was not in her own interest, she was not prevented from giving it by section 829 of the Code of Civil Procedure.
    The plaintiff was examined as a witness in his own behalf. In order to show the performance by him of the alleged agreement, which was made, as claimed, in March, 1871, he stated in detail the manner in which he had managed the farm and purchased supplies for it and the use of his father and mother, from the time of the making of the agreement down to the time of the father’s death. Upon his cross-examination he was asked by the counsel for the defendant: “Had you, prior to the 1st of March, 1871, gone right on and done this work, and furnished moneys and paid hired help, and generally what you have stated you did since 1871 ? ”

      Held, that the question was proper and material, as an affirmative answer thereto would weaken the inference that the acts testified to by the plaintiff were done in pursuance of the alleged contract, and that the court erred in excluding it.
    Appeal from a judgment, entered in Monroe county upon tbe report of a referee, requiring tbe defendants, heirs-at-law and widow of Anson Brown, deceased, to convey and release lands described in tbe complaint to tbe plaintiff.
    Anson Brown, tbe testator, died June 17, 1879, leaving him surviving bis widow Almira Brown, bis daughter Mary Brown, and bis sons Hiram Brown, tbe defendant, and Eugene Brown, tbe plaintiff. On tbe 11th day of June, 1879, six days before his death, be made and published bis last will and testament, wherein be devised tbe use of bis farm to bis wife Almira, during her life, and further provided that “ after her death tbe said farm is to be divided equally among my three children or their heirs.” The will also contained bequests of certain personal property on the farm to his son Eugene, and a portion to his three children equally, and his household goods to his wife. The will contained a direction, viz.: “ It is my will that my wife shall pay the mortgage that is now on my farm.” He appointed one Myron Sperry as executor. The farm consisted of forty-one acres, worth about $6,000. The testator had been in possession of it a great many years.
    Eugene, the plaintiff, became twenty-one years of age on the 30th day of January, 1811. After the will was admitted to probate he commenced a negotiation with his sister Mary and brother Hiram, to purchase from them their interest in the farm. The negotiation resulted in a disagreement as to terms; they respectively ashing a thousand dollars apiece, and he offering three hundred. Thereupon he brought this action, and alleges in the com: plaint that about the 1st'of March, 1811, his father made and entered into a contract or agreement with him, by the terms of which he “ promised and agreed to give, grant, convey, devise and demise to this plaintiff, said above described premises upon which said Brown then-resided, and in consideration that said plaintiff would work, look after and manage said premises, and should support, nurse and take care of him, the said Anson Brown, and his wife, said defendant Almira, during the lifetime of him, the said Anson Brown. The plaintiff avers that he performed the agreement on his part, viz.: That he remained at home, worked, looked after and managed said premises, and paid the expenses of the same, and supported, nursed and took care of him, the said Anson Brown and his said wife, the said defendant Almira Brown, for the period of eight years and upwards and until the death of him, the said Anson Brown. The plaintiff also avers that the testator “ neglected and failed to perform 'his part of said agreement, in that he neglected and failed to and did not give, grant, convey, devise and demise to this plaintiff the said premises, according to the terms of said agreement.” The plaintiff demanded judgment that said defendants be adjudged and decreed to convey to this plaintiff, by good and sufficient deed or deeds or conveyances, duly executed and acknowledged, and fit and ready to be recorded, all and singular the interest or interests derived, received or inherited by them or either of them, jointly or severally from the said Anson Brown, deceased.
    Almira Brown, the widow, suffered a default. The other defendants answered denying the alleged contract and setting up the devise of the part according to the terms of the will.
    The referee found that the agreement was made, as alleged in the complaint, between the plaintiff and the testator by parol, and that the plaintiff “ kept and performed the said oral agreement on his part in all respects from said time until the death of said Anson Brown in June, 1879,” and as a conclusion' of law he found, viz.: “The plaintiff is entitled to a judgment and decree adjudging, decreeing and directing that within ten ■ days after the entry and service thereof said defendants do, on presentation, execute, acknowledge and deliver to said plaintiff a deed releasing and conveying all and singular the interest or interests derived, received or inherited by either of them, jointly or severally, from the said Anson Brown, deceased.”

      From the judgment entered upon that report the defendants appealed.

      Htull da Bennett, for the appellants.

      W. H. Shuart and John 8. Morgan, for the respondent.
   HaediN, J.:

■ The learned referee is correct when he states in his opinion, viz.: “ It is necessary, in order to take a case out of the statute of frauds on the ground of part performance of the contract; that the existence of the contract should be made out by clear and satisfactory proof, and that the aot of perfordinance is of the identical contract f and, also, in saying: The general language of the books is that part performance will not take a parol agreement out of the statute unless the terms of the agreement.distinctly appear or are made out to the satisfaction of the court.” (Parkhurst v. Van Cortlandt, 1 Johns. Ch., 284; Swartwout v. Burr, 1 Barb., 497; Purcell v. Miner, 4 Wall., 517.) And he might with great propriety have added, viz.: “ Contracts claimed to have been entered into with aged or infirm persons, to be enforced after death to the detriment and the disinheriting of lawful heirs, who otherwise would be entitied to tbeir estates, are properly regarded with grave suspicion by courts of justice, and should be closely scrutinized and only allowed to stand when established by the strongest evidence. More especially should this rule prevail when the contract is not in writing, rests enti/rely upon parol testimony, which is not very precise and somewhat uncertain, and is directly i/n conflict with the will of the deceased, * * * and which remained-unrevoked at the time of his decease. (Opinion of Miller, J., in Shakespeare v. Markham, 72 N. Y., 403, affirming the opinion of this court in S. 0., 10 Hun, 322.) Talcott, J., speaking for this court, says: Such contracts have a tendency to subvert the statute of wills and to do away with all those safeguards in respect to the posthumous disposition of property with which the law surrounds such instruments.” And he adds: “ But in the cases in which such contracts are set up, and especially where they are attempted to be established by parol testimony, the temptation and opportunity for fraud is such that they are looked upon with suspicion, and the courts require the clearest evidence that a contract founded on a valuable consideration, and certain and definite in all its parts, should be shown to have been deliberately made by the decedent.” (See Robinson v. Raynor, 28 N. Y., 494; Lisk v. Sherman, 25 Barb., 433; Bunton v. Smith, 40 N. H., 352; Smith v. Crandall, 20 Md., 482; Foot v. Webb, 59 Barb., 38; Ackerman v. Ackerman, Exr., 24 N. J. Eq., 315; Twiss v. George, 33 Mich., 253.)

In Purcell v. Miner (4 Wall., 513, supra), Greer, J., says, “ a mere breach of a parol promise will not make a case for the interference of a chancellor,” and that proof of the contract which will take the case out of the statute “ must be clear, definite and conclusive, and must show a contract leaving no jus deliberandi or locus pomitentice. It cannot be made out by mere hearsay, or evidence of the declarations of a party to mere strangers to the trans-ad on, in chance conversation which the witness had no reason to recollect from interest in the subject matter, which may have been imperfectly heard or inaccurately remembered, perverted, or altogether fabricated; testimony, therefore, impossible to be contradicted. That a consideration has been paid or tendered;” and again, viz.: “Such a part performance of the contract that its rescission would be a fraud on the other party, and could not be fully compensated for by recoveiy of damages in a court of law.” Tbis doctrine is substantially the same as prevails in the courts of this State, and was asserted in Ryan v. Dox (34 N. Y., 307). (See, also, Redfield v. Holland P. Ins. Co., 56 N. Y., 357; Morrill v. Cooper, 65 Barb., 519; Wheeler v. Reynolds, 66 N. Y., 277.)

The appellant argues that the widow Almira Brown was not competent as a witness in behalf of the plaintiff to establish the alleged parol agreement made between her son and husband in March, 1871. We think the argument is unsound. First, although she may be said to be a person interested in the event within the provisions of section 829 of the Code of Civil Procedure, it cannot be said, while testifying in favor of the plaintiff in this action in support of his complaint, that she was testifying in her own behalf or interest. On the contrary, she was testifying against her interest. She had suffered a default in the action. The necessary effect of a judgment as against her was to pare down her rights from a life estate in the whole of the property to simply a life interest as doweress in one-third. By the terms of the will she was given the use of the real estate for life. If her son succeeds in this action, she, as well as the other defendants, is required to release and convey whatever interest she derived by the terms of the will as a life tenant to her son. We, therefore, think the referee committed no error in overruling the objection to her testimony, in so far as it supported the averments of the complaint, and in so far as it supports the findings made by the referee.

The case of Hunter v. Herrick (26 Hun, 272), cited by the appellant, is unlike this one. There it was held that the surviving members of a partnership were not competent to testify to personal transactions had with the deceased which tended to show that deceased was a member of the firm.” If their testimony had been received it would have brought in another person to share the losses and liabilities of the firm which otherwise they must sustain, and in that regard their testimony would directly inure to their own benefit.

On the other hand, if the agreement was that the son should support and take care of her during her life, in the event that she should survive her husband, then it is obvious that to allow her to testify to such an agreement would be to allow her to testify in her “ own bebalf or interest.” While she states in one part of her testimony that that was a part of the agreement, she finally apparently repudiates it, and limits the agreement to a requirement to support and take care of the father during his life. The testimony, therefore, was properly received, and there is no objection to it, or any portion of it, which presents to us any error of which the appellant can avail. Her testimony was very essential to the plaintiff’s case. Without it one of the requirements of the rule to which we have adverted would npt be answered by any legitimate evidence found in the case, as she is the only competent witness who speaks from a personal knowledge of the alleged contract between her deceased husband and the plaintiff. The plaintiff himself was not a competent witness to testify in his own behalf or interest to the alleged contract of March, 1871, between himself and his father, as it would involve a personal transaction or communication with the deceased. (Code, § 829.)

The plaintiff was sworn in his own behalf, with a view of establishing that his acts and doings after March, 1871, were under the alleged agreement with his father, and had reference to it, and were in fulfillment of it. In endeavoring to support this branch of his case, he was allowed to testify to the manner in which the business was conducted between March, 1871, aud June, 1879, the work which was done on the farm, the repairs, the additions to the buildings, the exchange of works with his neighbors, the purchase of groceries for the use of the -family, which consisted of the father and mother and son, until within about three years of the death, when the son married and took his wife to live with his parents also; and after such facts had been detailed by him, from which it was asked that the referee should infer that there had been a change in the mode and manner of carrying on the farm and of transacting the business, and the details thereof had been stated at large, with a view of giving rise to the inference that the son had been fulfilling a contract, rather than continuing the relations theretofore existing between him and his father. After the defendant had, to a considerable extent, cross-examined in respect to the specific acts and doings of the son, the counsel for the defendant propounded the following question, viz.: Q. Had you, prior to the 1st of March, 1871, gone right on and done this work, and fur nisbed moneys and paid hired help, and generally what you have stated you did since 1871?” There was a general objection to this question, and the objection was sustained, and an exception taken by the defendants. It is now urged before us that this question was not material. We do not think so. The very facts which the plaintiff had testified to in respect to the management of the farm, from 1871 on, were the facts relied upon to show that he had partly performed on his part the oral arrangement between himself and his father; that he had so far on his part consummated the contract in reliance upon it that the statute of frauds was silenced by those acts, and that the court should help the agreement out of the statute of frauds by reason of those several acts relied upon by him as indicative of a part performance. It was therefore competent for the defendants to shake and overthrow, if they could, out of the mouth of this witness, the position taken in behalf of his' case in .one of its essential parts. If the same acts and the same doings took place by and between him and his father before the alleged agreement as'he alleges took place after it, the conclusion might not have been reached by the referee that the acts and doings after March, 1871, were in consequence of and in reliance upon the alleged parol agreement, we think the testimony called for by the question was proper and ought to have been received: We cannot say that its rejection worked no harm to the appellants. We can see that the testimony which the plaintiff gave as a witness himself was very vital to the issues. It is true some of his testimony, upon proper objection, we must assume would have been rejected as being in violation of section 829; but after the testimony was received it was entirely competent for the defendants to show by him that he, years before he was twenty-one, years before the alleged agreement of March, 1871, had “gone right on and done this work, and furnished moneys and paid hired help,” the same as he stated he did after March, 1871.

There is no force in the objection taken on the motion for a non-suit' that the executor should have 'been made a party defendant, as there was no such defense in the answer. (Farwell v. Importers and Traders' Bank, 27 Alb. Law Jour., 173; Code, sec. 148; Fosgate v. Herkimer etc., Co., 12 N. Y., 580.) Besides, it is not apparent that this action would interfere with the rights of creditors or of tbe executor in the settlement of the estate. We think the referee was correct in overruling that as a ground on the motion for a nonsuit.

For the error which we have pointed out we think a new trial should be granted.

Judgment reversed and new trial ordered before another referee, costs of this appeal to abide the final award of costs in the action.

Smith, P. J., and Barrer, J., concurred.

So ordered.


source: Caselaw Access Project

author: Habdin, J. :

license: Public Domain

text:
    DAVID E. DAY, Appellant and Respondent, v. JAMES C. STRONG, Appellant and Respondent.

      Mortgage — discharge of the lien of it Toy a tender — right of a subsequent incumbrancer to compel an assignment of it to him — upon what terms it will be ordered.

    A tender made to one holding a mortgage upon real estate by a subsequent incumbrancer, will not operate as a discharge of the prior lien unless such was the clear intent of the party making it and the tender was an absolute and unconditional one. It will not discharge the lien of the mortgage if it be accompanied by á demand for an assignment of the mortgage.
    In an action brought to foreclose a mortgage one of the defendants, a subsequent lienor, set up as a defense a tender of the amount due upon the mortgage, and a demand for an assignment thereof, made prior to the commencement of the action. He had not brought any action to compel an assignment of the mortgage, nor had he paid the money into court when the tender was made or pleaded.

      Meld, that to entitle him to a judgment, compelling the plaintiff to assign the mortgage to him, he must pay the amount due, with interest to date, together with tbe costs of the foreclosure.
    CROss-appeals from a judgment, entered upon the report of a referee in an action to foreclose a mortgage.
    The action was commenced March 29, 1872, to foreclose a bond and mortgage dated October 2,1869, given by Yictorine McCloskey and her husband to George E. Lee, and by him assigned to the plaintiff, November 1,1870, with a guaranty by said Lee and Joseph L. Fairchild of the collection thereof.

      Tbe defendant Strong held a judgment recovered against Yictorine McCloskey by Isabella Chamberlain, docketed in Genesee county, March 21, 1870, and assigned to Strong, February 21, 1871.
    Upon an execution issued under said judgment the mortgaged premises were sold by the sheriff of Genesee county to Strong, June 16, 1871, and the certificate of sale issued to him.
    The plaintiff Day also held a judgment recovered by him against Yictorine McCloskey, April 4, 1870, and docketed April 5, 1870, in Genesee Gounty, and which was also a lien on the mortgaged premises.
    When the plaintiff was about to foreclose his mortgage negotiations took place between him and the defendant Strong for'the purchase by Strong of both the mortgage and the plaintiff’s judgment, but that arrangement was not consummated.
    The defendant Strong then made two demands upon Day for an assignment of the bond and mortgage, one on August 26, 1871, and one on September 2, 1871, accompanying each demand with the tender of a written assignment for Day to execute (which also contained a covenant of the amount due on the bond and mortgage), and which Day refused to execute.
    Neither of said tenders was kept good, nor did Strong bring an action to compel an assignment of the bond and mortgage. The defendant Strong alone defended this action, alleging the above tenders and claiming that the complaint be dismissed on that account.
    The referee found as matters of law:
    1. “ That the tenders made by defendant Strong to the plaintiff Day were sufficient in equity to discharge the lien of the plaintiff’s mortgage from the land and to entitle the defendant Strong to an assignment of the bond and mortgage in suit.”
    2. “ That the plaintiff by his silence waived the objection, which he rightfully had, to the execution bf the assignment containing a covenant.”
    3. “ That upon the payment by defendant Strong to plaintiff of the amount due on said bond and mortgage at the date of said tendel’, viz., $680.75, judgment be entered dismissing said complaint as to the defendant Strong and declaring said mortgage not a lien upon said premises.”

      4. “ That defendant Strong recover of tbe plaintiff bis costs to be taxed.”

      David F. Day, for tbe plaintiff, appellant and respondent, in person.

      James G. Strong, for tbe defendant, appellant and respondent, in person.
   Habdin, J. :

Frost v. Yonkers Savings Bank (70 N. Y., 553) is an authority for saying that when a tender is made by a subsequent incumbrancer it will not operate as a discharge of tbe prior lien unless such is tbe clear intent of tbe party making such a tender. Eael, J., said, in that case, viz.: “ If one desires to make a tender which shall destroy tbe ben of an incumbrance, and. have, so far as it concerns it, the effect of payment, be must make an absolute tender of payment, which if received will discharge the debt and the inevmbranee.” In the written notice and demand served by Mr. Strong, the subsequent incumbrancer, upon the plaintiff on the 2d of September, 1871, is a clear indication of an intent to offer what was due upon plaintiff’s mortgage for the purpose of' obtaining an assignment of it ánd not to pay it. The following words were inserted, viz.: I, therefore, being a junior incumbrancer, herewith tender you the amount due upon the said mortgage, principal and interest, and as such junior incumbrancer demcmd an assignment to me of said mortgage and that I be subrogated to all your rights thereon.” It is clear from the oral evidence as to this and the other tender made upon the twenty-sixth of August that the tender was not for the purpose of payment and cancellation of the plaintiff’s lien, but for the purpose of acquiring the ownership thereof. Indeed, each tender was accompanied with a request to assign the mortgage as a valid, unpaid, undischarged security, therefore neither of the tenders operated as payment and discharge of the mortgage or the lien thereof. The mortgage, after such tenders and the refusals to accept them, remained valid and a lien, upon the lands of the mortgagor. (Frost v. Dank, supra.) It was an .assignment of the prior mortgage which Strong sought, and according to well settled rules he was entitled to have an .assignment upon payment of an ■ amount equivalent to the debt and interest, and any costs made incident to the debt and lien. (Ellsworth v. Lockwood, 42 N.Y., 97; Twombly v. Cassidy, 82 id., 155; Cole v. Malcolm, 66 id., 366; Belden v. Slade, 26 Hun, 635.) If the defendant Strong had brought an action to compel the assignment by the plaintiff of his mortgage it would have been his duty to pay, or offer to pay, the debt and interest; and if the action had not been brought until foreclosure proceedings had been instituted by the plaintiff, then and in that case the right to an assignment could not have been asserted without payment of plaintiff’s debt, interest and costs of the foreclosure, (1 Hill, on Mort., 397; Belden v. Slade, supra) As the defendant Strong did not bring an action to compel the assignment of plaintiff’s mortgage, but waited for the plaintiff to commence his action of foreclosure and then set up the facts in respect to the tenders and request to assign, he ought to have brought the money tendered into court, and kept the same identical money tendered ready for the plaintiff in order to avoid interest. (Tuthill v. Morris, 81 N. Y. 100; Johnson v. Zink, 51 id., 335; Harris v. Jex, 55 id., 425.) No such money was brought into court. The defendant Strong, therefore, was not entitled to have the plaintiff adjudged to make an assignment of the mortgage without payment of the whole amount of debt, interest and costs of the foreclosure. (Belden v. Slade, supra) The judgment must be reversed and a new trial ordered before another referee, with costs, of one appeal to abide the final award of costs.

Smith;, P. J., and Barker, J., concurred.

Judgment reversed and new trial ordered before another referee, with costs of one appeal to abide the final award of costs in the action.


author: Hardin, J.:

text:
    PORTER MANUFACTURING COMPANY(Limited), Respondent v. HIRAM K. EDWARDS, as Sheriff, etc., Appellant.

      Executory contract for the manufacture and sale of p&i-sonal property — when the title does not pass until the property has been accepted by the wndee.

    In the fall of 1880 the plaintiff, a domestic corporation located at Syracuse,, entered into a verbal agreement with a foreign corporation, located at Still-water, Minnesota, by which it agreed to manufacture and deliver on board the cars at Syracuse, before May 1, 1881, a large number of steam boilers of specified kinds, at specified prices, which were to be paid for as provided by the agreement. Prior to May 1, 1881, and also between that date and July eighth, the plaintiff had manufactured and shipped a number, but not all of the said boilers, and the same had been received by the vendee. July 18,1881, the plaintiff loaded six of said boilers upon a car at Syracuse, directed to the vendee, and on the same day mailed an invoice and a bill of lading to it. Each boiler was marked with a. stencil plate with the name of the vendee. After the car had been locked, and on July nineteen, the boilers were seized by the sheriff, under an attachment, as the property of the foreign corporation. The plaintiff being notified of this fact, telegraphed to the vendee, whereupon, the latter telegraphed to the plaintiff that it would not accept the boilers, because not delivered before May first. In an action of replevin brought by the plaintiff against the sheriff:

      Meld, that a finding of the referee that the title to the boilers, had not passed to the vendee at the time of the attachment would not be reversed.
    Appeal from a .judgment, entered upon the report of a referee, awarding the possession of the property described in the complaint to the plaintiff, and six cents damages and costs.
    In the fall of 1880 the plaintiff, a domestic corporation, located and doing business at Syracuse, New York, and Seymour, Sabin &■ Co., a foreign corporation, located and doing business at Stillwater, Minnesota, entered into a verbal contract, by the terms of which the plaintiffs agreed to manufacture for Seymour, Sabin & Go., a large number of steam boilers of specified kinds,' and at specified prices, the same to be delivered on board the cars at Syracuse, New York, free of charges, by the 1st day of May, 1881; the same to be paid for by said Seymour, Sabin & Co., in six, nine, twelve, fifteen and eighteen months, with interest; payments or notes to be due at the date of each shipment, or at an average date to be arrived at.
    The plaintiffs delivered thirteen of said boilers on the 26th day of March, 1881, but failed to deliver any more under said contract. prior to tlie said first day of May, but from time to time between the said first day of May and the 8th day of July, 1881, they did deliver on board the cars of the New York Central and Hudson River Railroad, at Syracuse, New York, fifty-seven more of said boilers, all of which were received by said Seymour, Sabin & Co.
    The plaintiffs, on the 18th day of July, 1881, loaded on board a car of the said New York Central and Hudson River Railroad, the six steam boilers for which this action is brought to recover possession — being the last of the said boilers agreed to be manufactured and shipped under said contract.
    On each of the said boilers so shipped the plaintiff caused to be marked with stencil plate, “Seymour, Sabin & Co., Stillwater, Minnesota,” and with the said boilers the plaintiffs delivered a shipping bill thereof to the said railroad company, whereby the same were shipped to Seymour, Sabin & Co., and on the same day the plaintiffs mailed an invoice and bill of lading of the said boilers to said Seymour, Sabin & Co., at Stillwater, Minnesota.
    After the boilers had been loaded on the freight car, the car locked and made up in a freight train, ready to depart to the west, and on the 19th day of July, 1881, the defendant Hiram K. Edwards, as sheriff of the county of Onondaga, attached and took possession of the same under and by virtue of an attachment theretofore issued to and held by him in an action which had been commenced in the Supreme Court of the State of New York by B. W. Payne & Sons, as plaintiffs, and Seymour, Sabin & Co., as defendants therein.
    The plaintiffs were immediately notified of such attachment, and thereupon by telegram informed- Seymour, Sabin & Co. thereof, who by telegram thereupon notified the plaintiffs that, as by their eontract the boilers were to be delivered in May, they would not then receive them at that late day on that contract.
    The plaintiffs, on receipt of said telegram from Seymour, Sabin <& Co., commenced this action against the defendant, as sheriff of Onondaga county, to recover the possession of the said boilers, retook the same, reshipped them to George A. Porter, their general manager at Chicago, Illinois, and the plaintiffs thereupon, through said Porter, sold and delivered the same to said Seymour, Sabin & Co., under a new agreement.

      Brown <& Hadden, for the appellant.

      Waters, McLennan <& Dillaye, for the respondent.
   Hardin, J.:

This action involves the question as to who was the owner of six steam boilers at the time they were attached by the defendant as sheriff, in virtue of an attachment issued out of this court against a foreign corporation known as “ Seymour, Sabin & Co., Stillwater, Min.” The boilers were made by plaintiff, and put on board cars of the New York Central and Hudson River Railroad Company, at Syracuse, on the 18th of July, 1881, and the attachment was levied July 19, 1881j after the property was locked up in the cars ready to depart for the west, under the arrangement between the plaintiff and the corporation. The property was to be manufactured and shipped by May, 1881. Plaintiff caused each of the boilers so shipped to be marked with stencil plate, Seymour, Sabin & Co., Stillwater, Min.,” and with the boilers the plaintiff delivered shipping bills to the railroad, and on the same day plaintiff mailed an invoice and bill, of lading of said boilers to Seymour, Sabin & Co., Stillwater, Minnesota. Prior to the shipment no objection had been made by Seymour, Sabin ,& Co. to receiving said boilers upon the ground that the boilers had not been shipped in time. After the attachment was levied, plaintiff was notified by telegraph thereof, and thereupon plaintiff notified Seymour, Sabin & Co. that, as by their contract the boilers were to be delivered in May, they would not thus receive them at that late day under the arrangement.

Plaintiff thereupon brought this action of replevin. The referee reported for the plaintiff. The defendant insists the title to the boilers vested in Seymour, Sabin & Co., by the delivery on board the cars. Plaintiffs insist the title had not passed.

The appellant insists that the common carrier was designated to receive and transport the boilers, and was the agent of the consignee or purchaser, and that such a delivery as was made was a delivery to the purchaser, and that Seymour, Sabin & Co. waived the right to a personal inspection and examination before acceptance, and that the plaintiff parted with all interest in the boilers and the right to control the same, and did not have the right to hold the same for the purchase-money after such delivery, as supposed the learned refereé. Our attention is directed to Krulder v. Ellison (47 N. Y. 36), where it was held that a consignor could not maintain an action against the common carrier for goods lost. There the order was in writing, and in pursuance of it the goods were delivered on board a canal boat and lost. The case differs from the one here presented, as there was a written contract which, with the delivery made under it, passed the title from the consignor to the consignee. Thompson v. Fargo (49 N. Y., 188), recognizes the case of Krulder v. Ellison (supra), and states that the consignee is presumptively the owner : but in that case it appeared the plaintiff did not own the money sent, and that he could not recover of the defendant for its loss. Bailey v. The Hudson River Railroad Company (49 N. Y., 70) is a somewhat similar case where a consignee of property brought an action to recover against the carrier, who had delivered to another party; there the bill of lading was sent, and there was a delivery under it to the carrier and no authority given by the consignee to the carrier. There had been a complete delivery to the carrier, and the title was held to pass to the consignee. The goods were not purchased, but were to be received by the consignees and sold, and there was the relation of a trustee having a title bound to accept to dispose of the property and apply the proceeds in a particular manner, and the consignors were the cestuis qui trust, having the legal right to enforce the terms of the agreement for their benefit. But in the case in hand, Seymour, Sabin & Co. had not subscribed any written contract, nor paid any part of the purchase-money, and the carrier had not been made their agent to accept the boilers.

If the bill of lading had been received by them and kept, an acceptance might have been inferred. Indeed, the bill of lading would have furnished evidence of an intent on the part of the vendor to deliver and the vendee to receive and accept. Before its receipt by Seymour, Sabin & Co., the shipment was countermanded. We ought not, under such circumstances, to hold that the title had passed out of the vendors, until we find some evidence of an acceptance by the vendee or its agent.

The acceptance of the bill of lading by the vendee would have changed the title. It had not taken place and there was not such a completed delivery, at the time the attachment was levied, as to work a transfer of title from the vendor to the vendee. (Rodgers v. Phillips, 40 N. Y., 519.)

There was no voluntary and unconditional acceptance of the boilers by the vendee before levy, and after the levy the vendee refused to accept. Nor was there any act or con’duct of the vendee evincing an intent to accept. (Caulkins v. Hellman, 47 N. Y., 449.) In this case the facts are found, and the referee in effect finds that within the intention of the' parties the title did not pass, and under such circumstances to reverse his judgment, we should be obliged to say, as a matter of lam, that the title did pass fully and completely from the seller to the purchaser. Upon the facts found, we are of the opinion that the referee’s conclusion was correct. We see nothing in the exception requiring a reversal of the findings.

The judgment should be affirmed.

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

Judgment affirmed.


author: HaudiN, J.:

text:
    WILLIAM H. OSTRANDER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      ■City of Borne — justices of the peace in, were eligible to the office of justices of the Ses- ■ sions —1870, chap. 25 —1847, chaps. 280 and 470 — the acts of cm officer de facto cannot be assailed collaterally — power of a Court of Oyer and Terminer held by a single justice of the Supreme Court to act in proceedings already commenced — Code of Criminal Procedure, sea. 23, as amended in 1882 — what orders of the Cov/rt of Oyer and Terminer are not appealable.

    The act incorporating the city of Rome (chap. 25 of 1870) provided for the election of four justices of the peace by the city at large, and declared that they should have and exercise all the powers, authority and jurisdiction, and discharge all the duties and be entitled to the fees and compensation of justices of the peace of the several towns of the State, except as modified by that act.
    The act further conferred upon the recorder of the city sole and exclusive jurisdiction in said city to issue all criminal process required to be issued by justices of the peace of the several towns of the State, to hear all complaints and to conduct all examinations in criminal cases, hold courts of Special Sessions, and to do and perform all the duties of such courts, and to conduct and try all matters of a criminal nature which may by law be done or tried by a justice of the peace or by two justices of the peace,

      Seld, that the provision for the election of the justices of the peace was valid, and that the legislature had power to confer upon and withhold from them the respective powers above mentioned.
    That the justices elected in pursuance of it were justices of the peace and might be designated under section 40 of chapter 280 of 1847, as amended by section 34 of chapter 470 of that year, to serve as justices of Sessions, and as such to sit in courts of Oyer and Terminer.
    That even if the act were invalid, yet until the title of one acting as a justice of Sessions had been declared invalid in a proceeding by quo warranto, the legality of a Court of Oyer and Terminer, of which he was a member, could not be assailed upon a motion to have the court fix a day for the execution of a prisoner, under a sentence imposed in pursuance of a judgment which had been affirmed by the General Term upon a writ of error.
    So much of section 40 of chapter 280 of 1847 as required justices of the Sessions to be elected from justices of. the peace, “having at least two years from the first day of January next after said election to serve,” was repealed by section 34 of chapter 470 of the same year.
    A Court of Oyer and Terminer held by a justice of the Supreme Court, without an associate, as authorized by section 23 of the Code of Criminal Procedure, as amended by chapter 360 of 1882, may fix a day for the execution of a sentence, imposed by a Court of Oyer and Terminer which had been held by such a justice and two justices of the Sessions prior to the passage of the said amendment.
    Upon a motion to have the court fix a day for the execution of a sentence of, death, pronounced in pursuance of a judgment which had been affirmed by the General Term, the prisoner’s counsel moved to have the court refuse to fix the day, upon the ground that the Court of Oyer and Terminer before which the prisoner was tried was illegally and improperly constituted.

      Held, that the Code of Criminal Procedure did not authorize an appeal from an order denying the prisoner’s application and fixing a day for the execution Of the sentence.
    Appeal from an order made at a Court of Oyer and Terminer, held January, 1883, in Oneida county, denying an application to vacate and annul tbe trial and conviction of the plaintiff in error of murder, and all subsequent proceedings.
    In October, upon a writ of error to review the conviction of the prisoner, of murder in the first degree, in the Oneida Oyer and Terminer, the General Term of this department affirmed the judgment entered upon such conviction and remitted the proceedings to the Oyer and Terminer of Oneida, with instructions to proceed thereon.
    In the January Oyer and Terminer of 1883 the district-attorney moved the court to fix a day for the execution of the sentence of death theretofore pronounced upon the prisoner in pursuance of such judgment and directions. Thereupon the prisoner’s counsel filed an affidavit made upon information and belief, in which it is stated, viz.:

      First. That one Benjamin B. Kenyon, of the city of Rome, was on or about the 3d day of November, 1879, elected a justice of the peace in and for -said city, in accordance with an act of the legislature entitled “ An act to incorporate the city of Rome, passed February 23, 1870.”

      Second. That January 1, 1880, said Kenyon entered upon the duties of said office, and has held said office ever since.

      Third. That on the 8th of November, 1881, said Kenyon was elected a justice of sessions of the county of Oneida, and held said office until January 1, 1883.

      Fourth. That at the September or October term of the Oyer and Terminer, held at Rome, in said county, September 26, 1881, and at which term said William H. Ostrander was tried for murder, the said B. B. Kenyon, Esq, was then an acting justice of the Sessions, and sat as such member of said court during the trial of said Ostrander, and all of said trial, together with one Maxfield, a justice of the peace in and for the town of Annsville, New York; that said Maxfield, at that time or at the time of his election, had not two years to serve as such justice of the peace in and for said town of Annsville.
    Upon reading to the Oyer and Terminer the affidavit, the substance of which we have quoted, the prisoner’s counsel requested the court, among other things, to hold as a matter of law: First. That the trial and conviction of the prisoner was illegal, as the court was illegally and improperly constituted; that Benjamin B. Kenyon and Maxfield, nor either of them, were constitutional justices of the peace, and were not qualified to sit as justices of the Sessions on said trial. * * * * . * Also that no sentence can now be given the prisoner, unless said court shall be organized as at the time of his said 'trial.
    .The prisoner’s counsel contended that the justices of the peace of the city of Rome, deprived as they were by the act providing for their election of all criminal jurisdiction, were local officers, and not justices of the peace, within the meaning of these terms as used in the Constitution, and that they were for this reason -ineligible to the office of a justice of the Sessions.

      The Oyer and Terminer made an order denying the applications made by the prisoner, and from the order so made the prisoner, on the 12th day of March, 1883, appealed to this court. The Oyer and Terminer proceeded to fix a new day for the execution of the sentence.

      Milton D. Barnett and Leonard Bronner, for the appellant.

      W. A. Matteson, district-attorney, for the People.
   HaudiN, J.:

By chapter 25 of the laws of 1870, the city of Rome was incorporated. (Laws 1870, vol. 1, p. 40.)

The first section of the charter declares, viz.: All that part of the county of Oneida now known as and being the town of Rome, shall be a city known as the city of Rome,” * * * etc.

Section 1 of title 2 contains provisions enumerating the officers of said city, and among them it is declared that£ four justices of the peace’ shall be elected by the city at large, and section 10 of the same title declares, viz.: The term of office of the justices of the peace to be elected under this act shall commence on the first day of January next ensuing their election, and each of such officers shall take the oath of office within ten days thereafter, and file the same with the clerk of Oneida county.

In section 13 of title 4 it is declared, viz.: “ The justices of the peace of the said city shall have and exercise all the powers, authority and jurisdiction and discharge all the duties and be entitled to the fees and compensation of justices of the peace of the several towns in the State, except as modified by this act.” And all laws applicable to justices of the peace of the several towns and to their official acts, duties and powers, shall apply to the justices of the peace of said city, and to their official acts, duties and powers.

In section 1 of "title 7 is a provision conferring upon the recorder of said city sole and exclusive jurisdiction in said city to issue all criminal process required to be issued by justices of the peace of the several towns of this State, to hear all complaints and to conduct all examinations in criminal cases, hold Courts of Special Sessions, and to do and perform all the duties of such courts, and to conduct and try all matters of a criminal nature which may by law be done or tried by a justice of the peace or .by two justices of the peace.” Then follows, in section 3 of the same title, a provision that “in case of sickness, absence from the city, disability or inability to act, of the said recorder,” conferring and imposing “his powers and duties” upon either of the several justices of the peace of said city.

~We are of the opinion the charter, in its provisions as to justices of the peace, is valid, and that it was competent for the legislature to confer upon them the powers emanated in the charter, and to withhold from them in the cases prescribed the powers which otherwise would devolve upon them.

Section 18 of article 6 of the Constitution, as it was amended in 1869, was in force when the charter was passed. That section of the Constitution declared, viz.: “ Justices of the peace and District Court justices shall be elected in the different cities of this State in such manner and with such powers and for such terms respectively as shall be prescribed by law.” It was clear then that when Kenyon was elected a justice of the sessions, he was a “ justice of the peace,” and he was eligible to the office of justice of sessions. (Sec. 15 of art. 6, Const.)

He was a justice of the peace in the county of Oneida, and therefore, within the terms of section 40 of chapter 280 of the Laws of 1847, eligible to the office of justice of Sessions. However, if there was doubt in our minds in respect to his eligibility to the office of justice ■ of Sessions, we should incline to the opinion that he was a justice of Sessions de faeto, and that his acts would be valid and binding upon third parties until questioned and declared invalid in a proceeding of quo warranto directly had for that purpose, and that the Oyer and Terminer of January, 1883, where the motion was made to fix a new day for the execution of the sentence of the prisoner, had no power to set aside the conviction and judgment thereon, with the affirmance thereof by this court pronounced in October, 1882.

In People v. White (24 Wend., 526), Bbonson, J., said : “But this is a case where officers having apparent authority to do the act have rendered judgment between the people and the prisoner, and neither party can, in this collateral way, call in question the title of the judges. If there had been judgment of acquittal, it would have concluded the people and the prisoner could not have been further prosecuted.” (Approved in Nelson v. People, 23 N. Y., 296; see Morris v. People, 3 Denio, 397; In re Philip Wakker, 3 Barb., 162; Cronin, v. Gundy, 16 Hun, 524.)

The affidavit used in the Oyer and Terminer, when the order was made which we are considering, stated that Maxfield, who was a justice of the peace of the town of Annsville at the time of his election, had not two years to serve as such justice of the peace in and for said town of Annsville. That fact does not impeach ór impair his right to act as a justice of Sessions. In section 34 of chapter 470 of the Laws of 1847 it was provided, viz.: “And no justice shall be so designated unless he shall be entitled to serve as a justice of the peace d/uring such year by virtue of the election under which he shall be acting as such justice at 'the time of such designation.” This provision was an amendment of section 40 of chapter 280 of the Laws of 1847, which required a justice of the peace to be eligible to have at least two years from the first day of January next after said election to serve. The later statute controls, and Maxfield was de jwre a justice of Sessions. (Nelson v. People, 23 N. Y., 296.)

There v as no error in refusing to amend the record in respect to what took place in the Oyer and Terminer before the trial of the prisoner. The application came late. The record as made up had been presented to this court and acted upon, and our judgment, based upon that record, was conclusive upon the Oyer and Terminer, where the prisoner was taken in January, 1883, for the purpose of having a day named for its execution. Besides, there was no proof upon which the court could act which indicated that the judgment record was erroneous. The motion in regard to what transpired in regard to entering a special plea, after a general plea of not guilty, was properly denied.

These views lead us to conclude that no error was committed by the Oyer and Terminer held in January, 1883, in making the order directed by it and entered in Oneida county as of the term commencing January 29, 1883.

Fourth. It is now urged that the Oyer and Terminer sitting in January, 1883, held by a justice of this court, without any associate, erred in holding that it.had power to sentence the prisoner without the two associate justices being present. On the 2lst'of June, 1882, by chapter 360 of the laws of that year, section 23 of the Code of Criminal Procedure was amended so as to read, viz.:

A Court of Oyer and Terminer is held by a justice of the Supreme Court, without an associate.

After its passage, there was no law which authorized justices of Sessions to sit in the Oyer and Terminer. The prisoner’s counsel calls oui’ attention to section 962 of the Code of Criminal Procedure. That section declares that criminal actions ” and “ proceedings in criminal cases ” theretofore commenced must be conducted in the same manner as if this Code had not been passed. This provision does not relate to the organization of the court. Pull effect may be given to the words of section 962 by limiting them to the manner ” in which proceedings or actions shall be “ conducted ” after they are taken up by any court to which they shall be presented. The organization of a court is one thing; its manner of conducting its .proceedings or actions pending in it is quite another.

Giving full effect to section 23. as amended in 1882, and to section 962, we hold that the Oyer and Terminer was rightly organized when a justice of this court sat alone, as section 23 prescribes he may, without associates. (Willet v. People, 27 Hun, 470.)

The views we have expressed lead us to say no error was committed by the Oyer and Terminer of January, 1883.

Had the district attorney moved to dismiss the appeal taken from the order, we should have been inclined to grant the motion. There is no provision of the Oode of Criminal Procedure authorizing such an appeal as the one now before us. Section 517 authorizes an appeal to this court from the judgment on a conviction after indictment, and upon the appeal any actual decision of the court in an intermediate order or proceeding forming a part of the judgment-roll * * * may be reviewed.” This does not authorize an appeal in piecemeal, first from a judgment, and after it is affirmed an appeal from any subsequent order by a separate and independent appeal. (See Piper v. Van Buren, 27 Hun, 384; sec. 485 of Code of Crim. Proc.)

As such motion was not made, .we have looked into the merits and come to the conclusion that the order ought not to be reversed by us, and under tbe peculiar circumstances we conclude to affirm tbe order, instead of dismissing the appeal upon our own motion.

Smith, P. J., and Macomber, J., concurred.

Order appealed from affirmed and papers ordered filed with the clerk of Oneida county.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. SAMUEL WILLIAMS, Appellant.

      Evidence as to identity — when the mere impressions and thoughts of a witness cannot be given — right of an appellate court to grant a new trial in a criminal case although no proper exception was taken below — Code of Criminal Procedure, sec. 527, as amended by chapter 360 of 1882
    Upon the trial of the appellant for murder the prosecution sought to establish that one Cortright was seen at a certain time and place by one of the witnesses. The witness said that he passed a man at a certain time and place, and was allowed, against the prisoner’s objection, to state that he “ had an impression who it was ; I don’t know for certain, only who I,thought it was; I thought it was William Cortright, but I don’t know ;” “I can’t sweai that this man was Cortright; I don’t know whether it was him or not; it was my impression it was.”

      Held, that the court erred in receiving the evidence.
    Under section 527 of the Code of Criminal Procedure, as amended in 1882, it is the duty of an appellate court to look into the proceedings upon the trial to discover whether any error has occurred, and, if such error is found, to award a new trial, whether any proper exception was taken in the court below or not.
    After the court had charged the jury that they could not convict the defendant upon the testimony of his accomplice, unless it was corroborated by other evidence tending to connect him with the commission of the crime, the prisoner’s counsel requested it to charge “that there must be evidence tending to connect the defendant with the commission of the offense ; that this requires more than such evidence as merely raised a suspicion of guilt.” The court refused to charge otherwise than as it had.

      Held, that although under the former practice an exception to the refusal might have been unavailing because the request was too broad in including what had already been said to the jury, yet, that under the said section of the Code of Criminal Procedure, the court must be held to have erred in refusing to charge that the evidence must be more than sufficient to raise a suspicion of guilt.
    Appeal from a judgment entered in "Wayne county, upon the verdict of a jury in the Oyer and Terminer of that county, convicting the appellant of murder in the first degree.

      In the indictment, the appellant, Samuel Williams, a colored man, was charged with the crime óf murder in the first degree, for having, on the night of January 6, 1882, caused the death of James Hall, a colored man, at Sodus Point, in the town of Sodus, in the county of Wayne. Hall kept a saloon at Sodus Point, on the borders of Lake Ontario, where he had sold liquors for many years. The saloon, or shanty, was built on piers over the waters of Sodus bay, and was built of pine, and connected with the main land by a bridge at one end, and the entrance door at the other was upon the water’s edge. Hall had a house near by, where he lived with his daughters. It appears he was accustomed to carry and keep money with him, and that he frequently exhibited his money to persons in and about his place with whom he came in contact.
    About seven o’clock he left his daughters to go to his saloon, and between eleven and twelve o’clock a fire was discovered in the shanty; and after the shanty was consumed, Hall’s remains were found on the ice below the bottom of the shanty.
    , Jasper Newport, a colored man, who was then living at Sentell’s, a distance of more than two miles from Hall’s shanty, and who had previously worked in the saloon and knew that Hall had money and where he kept it, was called as a witness for the People, and gave evidence tending to establish that he and the accused, on the night of the sixth of January, entered the saloon of Hall for the purpose of robbing him, and that while there the accused struck a blow upon the head of Hall, and that a kerosene lamp was overturned, which kindled a fire in the building, and that there was also a can containing five gallons of kerosene oil within a foot or two of the place where the kerosene lamp was broken and blazed up. Jasper New port also testifies that "Williams arrived at Sentell’s on foot from the Nidge, three and one-fourth miles away, at about the time he was done milking, which was nearly seven o’clock, and that they went east to Sodus Point with Jasper’s horse, and while there perpetrated the crime ; and according to his testimony the crime was committed about eight o’clock.
    The prosecution claim that the accused, on the evening of the murder, was in Sodus village in the early part of the evening, and again at about ten or fifteen minutes before nine o’clock, there being an interval of an hour and a-half to an hour and three quarters between seven and nine o’clock that he was not seen in the village.
    Martin Teeter, a witness, called by the People, testified on his redirect-examination as follows: “ As yon were going home, state whether you passed anybody on the walk on Maple street ? Tes, there was a man on the east side of the walk when I went down; I passed him just south of the railroad track; he was walking very slow. Did you pay any attention to him after you passed him? Yes. What did you observe? (Objected to as incompetent.) Did it occur to you who the man was when you passed him ? ‘ I had an impression who it was.’ Who ? (Objected to as incompetent. Received, and defendant excepted.) I don’t know for certain, only who I thought it was ; I thought it was William Oortright, but I don’t know; I had known him for a number of years, and seen him frequently. After you passed this man what did you see with reference to him ? (Same objection, ruling and exception.) He turned around and walked back south ; no one was with him; he was within my view for about, six rods, from the time I first noticed him till I turned and saw him going back; he was walking slowly. How long after you passed Oortright before you came to this man in the road ? I had walked perhaps sixty or seventy rods. Recross-examined: You were called before the coroner on the tenth of January? Yes, sir. You didn’t state this-circumstance then ? I think I did; I ain’t sure; I can’t swear that this man was Oortright; I don’t know whether it was him or not; it was my impression it was. By the district attorney : It was your impression at that time? Yes, sir.” Defendant asked-that the testimony of this witness, about passing this man, be stricken out. Refused, and defendant excepted.
    It was important for the prosecution to establish that Oortright was at the place where the witness claimed to have seen him at the time specified.

      8. E. Payn and E. A. Wooden, for the appellant.

      J. Vandenberg, district-attorney, for the respondents.
   Hardin, J.:

It is now provided by statute that the testimony of an accomplice is not sufficient to warrant a jury in convicting an accused person of a crime. By chapter 360 of the Laws of 1882, section 399 of the Code of Criminal Procedure was amended so as to read as follows: “ Section 399. A conviction • cannot be had upon the testimony of an accomplice, unless he'be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.”

Prior to this statute a jury might convict upon the uncorroborated testimony of an accomplice, although courts were required, and it was their duty, to caution juries against rendering a verdict upon the uncorroborated evidence of an accomplice, and juries were advised not to convict on such testimony in the absence of confirmation of the material facts thereof by other evidence. (People v. Costello, 1 Denio, 83; People v. Dyle, 21 N. Y., 578; Dunn v. People, 29 id., 523; Lindsay v. People, 63 id., 154.)

In the case in hand we have found in the appeal book no direct and positive testimony, aside from that given by the accomplice, which connects the accused with the crime charged in the indictment ; but many circumstances and some admissions and declarations of the accused, when considered in connection with the positive testimony of the accomplice, tending to implicate the accused in the commission of the offense. In the circumstantial evidence relied upon by the people to implicate the accused and corroborate the accomplice, is the testimony given for the purpose of establishing that William Cortright was seen at the time and place narrated by Martin Teeter. It appears by this' witness’ evidence that he said, viz.: “ I cannot swear that this man was Cortright ” whom he met; “I don’t know whether it was he or not.” When the witness was asked if he had an impression who it was, the defendant’s counsel objected to it as incompetent. The objection was overruled, and the defendant excepted. The witness was permitted to answer, viz.: “ I don’t know for certain, only whom I thought it was; I thought it was William Cortright, but I don’t know; I had known him for a number of years, and seen him frequently.” After this ruling, the district attorney propounded the following question, viz.: “ It was your impression at the time % ” and the witnessed answered, “Yes, sir.” Following this answer the appeal book shows that the defendant asked to have the testimony of this “ witness about passing this man stricken oiit,” and that the court refused, and the defendant took an exception. In these several rulings occurring in the testimony of this witness Teeter, we think there was error. First. It expressly appears by the testimony that the witness was not able to identify positively or upon knowledge the person he met as that of William Oortright. The most that' he could say was, that he had an impression who it was, and that he thought it was William Cortright.” We are of the opinion that such impression and such “ thought ” of the witness ought not to have been received, or, having been received, ought to have been stricken out upon the defendant’s motion. (People v. Wilson, 3 Parker’s Crim. Rep., 206.)

Strong, J., says in the case last cited: “ Ordinarily the question of identity is one of fact, and a witness may be asked whether he knows a particular individual, and if so, whether he is the person indicated; but the question put to this witness is not the ordinary one of identity. It calls for an opinion relative to a body which, if that of the deceased, had been submerged in salt water for upwards of five months, and had undergone many changes. The witness can only state a conclusion drawn from the points of resemblance mentioned by him. The jury have heard his statements, and it is for them, and not the witness, to decide whether the body was that of the deceased captain.” The question must be rejected.

Again, if a witness could be allowed to testify to an impression, to a thought at the time,” it would be difficult to predicate and establish perjury in respect to such answers. We are of the opinion that the usual course upon trials is to require the witness to state knowledge, recollection or memory of facts in respect to the identity of individuals, and not to allow them in the first instance, as evidence in chief, to state “ impressions ” or “■ thoughts,” in respect to the identity of individuals. It appears to us the rule was departed from in receiving and retaining the testimony of the witness Teeter. We cannot say this erroneous evidence was not prejudicial to the rights of the accused. We are not able to say that it had no influence in producing, the verdict rendered against the accused; nor can we say that “ if his evidence was struck from the case the proof of defendant’s guilt ” would be clear and overwhelming ; and we can say, therefore, that the rule found in the Gonzales case is not applicable. (People v. Gonzales, 35 N. Y., 58.)

Second. As amended, by chapter 860 of the Laws of 1882, section 527 of the Code of Criminal Procedure provides, viz.: “ * * * And the appellate court may order a new trial if it be satisfied that the verdict against the prisoner was (1) against the weight of evidence, or (2) against law, or (3) that justice required a new trial, whether any exception shall have been taken or not in the court below.”

This is the first capital case which this court has been called upon to review under tlie provbion of the section just quoted. Our impression is that it was the design of the legislature by this provision of law to allow the appellate court to order a new trial, if in any aspect of the case error was committed in the progress of the trial, and that the narrow and technical rules in respect to the exactitude of exceptions, was abrogated in respect to this class of cases. We must, therefore, look into the proceedings upon the trial to dis-e iver whether any error has occurred; and if such error is found, we must declare the error, and allow it to produce a new trial whether any exception shall have been taken dr not in the court below,” sufficient to formally and directly raise the question of alleged error or not under the previous strict and technical rules.

With this new statutory provision in mind, we turn to the charge of the learned judge in the case before us, and find that in laying down the rule under section 399 {supra), he stated the law correctly in the body of his charge, in two or three instances, which are pertinent to the question whether he properly refused to yield at the close of his charge to a request which was made of him. In the body of the charge he said, viz.: 1. “ If there is any evidence tending to show that Cortright was connected with the crime, you are not to take it as against the defendant unless the evidence shows that the defendant was also connected with it.” 2. “ The law now provides that the corroboration must connect the defendant with the commission of the crime. In this case it must be corroborated by testimony tending to show that Sam Williams was the person who perpetrated the crime.” * * * 3. The evidence must also tend to show that Williams was there, and to fix upon him the guilt of the crime there must be some evidence outside of the story of Newport which will enable you to say that Williams was with Newport at the time the crime was committed. That evidence tlie people have sought to give.” é. “ Tlie corroborating evidence must be such as tends, outside of the testimony of Newport, to point to the defendant.”

Notwithstanding these statements, which appear in the body of the charge, the appeal book shows that the prisoner’s counsel made a request of the court, viz.: To charge the jui'y that there must be evidence tending to connect the defendant with the commission of the offense; that this requires more than such evidence as merely raised a suspicion of guilt; ” thereupon the court refused, except as charged, and an exception was taken to such refusal. If this request was being considered under the rule which obtained before that laid down in section 527 (s-wpra), perhaps it would be a good answer to say that the request was too broad; that it called upon the court to repeat what had already been stated, as we have seen in the quotations we have made in the body of the charge. But under the more liberal rule given to us by section 527, to which we have alluded, we are of opinion that the court erroneously refused to yield to that portion of the request which called upon it to say that the rule enacted in «section 399 required more than such evidence as merely raised the suspicion of guilt. The court might, in response to that part of the request, well and properly have said that the rule described in section 399 required that the testimony of the accomplice should be corroborated in material points, and secondly, that it should be in respect to such matters as legitimately tended to establish that the accused was connected with the crime, and that, in establishing such connection with the crime, it was incumbent upon the people to give such evidence as legitimately and naturally carried conviction to the minds of the jury that the accused was connected with and was guilty of the offense charged, and that such evidence “ as merely raised the suspicion of guilt,” was insufficient to satisfy the requirements laid down in section 399.

There is a wide difference between evidence which tends to satisfy an intelligent jury that the accused has perpetrated a crime, and such evidence as merely tends to raise in the mind of the jury “a suspicion of guilt.” We are of the opinion that such instructions as were requested ought to have been given by the learned trial judge to the jury in this case. We must, therefore, say that justice requires a new trial, and that it is not material to determine that the exception taken is technically well founded under the practice which obtained prior to the amendment of 1882 of section 527 of the Code of Criminal Procedure.

As the views already expressed, lead us to order a new trial, we do not deem it necessary or useful to examine the numerous other grounds urged upon us in the argument of the counsel for the appellant.

Judgment and conviction reversed, and new trial ordered in the Oyer and Terminer of Wayne county, to which court these proceedings are remitted, with directions to proceed. ’

Smith, P. J., and Barker;, J., concurred.

So ordered.


text:
    LUELLA CHASE, Respondent, v. JOHN C. CHASE, Appellant.

      Action for separation — settlement of it by the pas-ties — right cf the plaintiff’s attorney to counsel fees — what must be shown to entitle him to an order allowing it.

    In this action, brought by a wife to procure a separation from her husband upon the ground of cruel and inhuman treatment, an answer was served on September twenty-ninth. On October fifteenth the plaintifE returned to and has ever since lived with her husband. October sixteenth the plaintiff’s attorney moved in her name for the allowance of a counsel fee for his services in the action. An order was made allowing him twenty-five dollars as a counsel fee and ten dollars costs of the motion.

      Held, that the order was improperly made for the reasons:
    That the settlement of the action by the parties thereto could not be set aside without proof that it was made in bad faith, with intent to defraud the attorney
    That the plaintifE herself was entitled to notice of the motion.
    That it was not shown that the wife was not able to satisfy any liability she might have incurred.
    That the motion should have been made by the attorney in his own name.
    That no costs of the motion should have been allowed, as none were asked for in the motion papers.
    Appeal from an order made at tbe Oneida Special Term allowing twenty-five dollars as counsel fee and ten dollars costs of the motion tfierefor.

      P. S. Risley and A. C. Woodruff, for the appellant.

      M. H. Powers, for the respondent.
   Hardin, J.:

This action was brought by the wife for a separation from her husband upon the ground of alleged cruel and inhuman treatment. An answer was served September 29, 1882.

On the 15th of October, 1882, the wife returned to live with her husband, and has since continued to live with him as his wife.

October 16, 1882, the plaintiff’s attorney, in the name and behalf of the wife, noticed a motion “ for an order allowing the plaintiffs attorney a counsel fee for his services in the aforesaid action.”

On the 24th of October, 1882, the motion at the Oneida Special Term was heard andan order was granted “that defendant pay plaintiff’s attorney a counsel fee of twenty-five dollars and ten dollars costs of motion fees, in all the sum of thirty-five dollars, “ and that after ten days issue for the collection thereof, if not in that time by defendant.” Defendant appeals from the order. The attorney has mistaken his remedy. The settlement by the parties is not shown to be in bad faith, with intent to defraud the attorney. Such settlements are favored by the policy of the law. Before the settlement can be set aside or treated as fraudulent some good reason therefor, as between the parties, must be shown, and the plaintiff herself is entitled to notice of any application for such purpose. (Dimick v. Cooley, 16 Weekly Dig., 115; Murray v. Jibson, 22 Hun, 386.) “ So far as she is concerned it is a bar to her further prosecuting the action or suing again for the same cause, whatever remedy the attorneys may be entitled to in their own behalf.” (Opinion of Smith, page 388; see, also, Jenkins v. Adams, 22 Hun, 600; Goddard v. Trenbath, 24 id., 183.)

If the attorney as such has any claim for counsel fees or costs upon the defendant, he must, in his own behalf, notice his motion or bring his action to enforce such claim.

Besides there is no proof that the wife is not able pecuniarily to satisfy any liability she may have incurred by reason of her employment of the attorney. No costs should have been- allowed in the order as they were not asked for in the notice of motion.

The order should be reversed, without costs.

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

Order reversed, without costs.


text:
    THE FIRST NATIONAL BANK OF OSWEGO, Respondent, v. JOHN DUN and JOHN DORSET, Jr. THE SECOND NATIONAL BANK OF OSWEGO, Appellant, v. JOHN DUN.

      Replevin — when property, that has been taken by the sheriff in an action of replevin, ma/y be levied upon under an ecceaution issued upon a judgment recovered against the owner.

    January 9, 1882, the First National Bank of Oswego brought an action against one Dun and his assignee to replevy 10,000 bushels of malt, then lying with other malt in a malt-house in the possession of the assignee. The sheriff seized the malt and held it until January thirteenth. The defendant having given no bond', within the time prescribed by law, to entitle them to retake it, the sheriff then went to the president of the bank and told him he had come to deliver the malt, though it had never been separated from the residue thereof. The president accepted it and requested the sheriff to separate and deliver it at a designated place, which the latter agreed to do apparently as the agent of the bank. On January 13, 1882, the Second National Bank of Oswego recovered a judgment against Dun and issued an execution thereon under which the sheriff, in pursuance of its directions, levied upon the said malt. The Second National Bank claimed that the First National Bank’s title to the malt was derived from an unrecorded chattel mortgage and was invalid as to judgment-creditors of Dun.

      Held, that under the circumstances of this case the fact that the malt had been replevied did not prevent the sheriff from seizing it under the execution issued upon the judgment, and that the court erred in setting aside the levy and staying proceedings upon the execution.
    Appeal from an order staying proceedings upon an execution issued by the Second National Bank against John Dun, and setting aside a levy made by the sheriff of Oswego county, in virtue of such execution. On the 7th day of January, 1882, John Dun made a general assignment, for the benefit of his creditors, to John Dorsey, Jr., his bookkeeper and clerk, who took possession of the assigned property, consisting among other things of a malt house, in which were 18,000 to 20,000 bushels of malt in bulk. Two days later, viz., January 9, 1882, the First National Bank brought an action of replevin for 10,000 bushels of the said malt against Dun and Dorsey, and upon the mandate in that action the sheriff of Oswego seized the 10,000 bushels of malt and kept possession of it until the 13th of January, 1882, when (as no bond had been given by the defendants to procure a return of the property and the time therefor had expired) the sheriff went to the president of the First National Bank at his banking rooms and told him he had come to deliver the malt named in the replevin papers, and that he did then and there deliver it (though it had not been separated or removed from the other portions of the 18,000 to 20,000 bushels in the malt house). The president accepted it, and requested the sheriff to separate the 10,000 bushels and to deliver it at a designated place, and the sheriff undertook to comply with that request, apparently as the agent of the First National Bank.
    On the 13th of January, 1882, the Second National Bank duly recovered a judgment against John Dun upon a debt held by it for $15,115.23, besides costs, and forthwith issued an execution to the coroner. This was subsequently withdrawn, and a new one was issued and delivered to the sheriff of Oswego county, who, upon request of the plaintiff, levied on the malt in question, and other property of the assignor and judgment debtor.
    On the 17th of January, 1882, the First National Bank idemnified the sheriff against the claim of the Second National Bank.

      S. C. Huntington, for the appellant.

      Charles Rhodes, for the respondent.
   Hardin, J.:

Both banks claim title to or an interest in the 10,000 bushels of malt through Dun, who on the 7th of January, 1882, was in possession thereof. Upon the title or interest of the plaintiff, The First National Bank, on the ninth of January, two days after the execution of a general assignment for the benefit of creditors, by Dun to Dorsey, commenced an action of replevin and claimed the delivery of the malt. It is insisted in the argument by the appellant that the First National Bank cannot maintain any interest in or title to the malt as against the judgment and execution of the Second National Bank, because the warehouse receipts held by the First National Bank were executed by Dun, the owner, and that by the principle laid down in Farmers and Mechanics' Bank of Buffalo v. Lang (87 N. Y., 214), the same are ineffectual except by way of a mortgage on the part of Dun, and that not having been filed they cannot operate to prevent a judgment creditor from levying upon and selling the malt. We need not pass upon that question at this time, and indeed we cannot properly, as the facts upon which the question will ultimately turn are not now fully before us.

Suffice it to say that we see sufficient in the position taken in behalf of the Second National Bank, to induce us to suppose that its levy upon the malt was made for the purpose of attempting, in diligence and vigilant use of remedies, to prosecute a supposed legal right.

It may also be observed in passing that the affidavits before us suggest proper grounds upon which the Second National Bank seeks to avoid the assignment to Dorsey, and that the questions relating to such an attack are more proper for the solemn mode of investigation found in a trial rather than in the summary modes which attend the ordinary Special Term motions. (Knapp v. Fowler, 26 Hun, 202.) . If, therefore, the assignment was invalid, and the interest of the First National Bank in the malt depended upon the warehouse receipts for its validity, the Second National Bank with its judgment and execution was in a situation to seize the malt as the property of Dun, and to make its execution out of the same, unless some technical rule of law prevented the sheriff holding the execution from following the command of the execution and the directions of the judgment creditor in respect thereto.

Appellants’ contention is that the property taken under replevin, either before or after surrender to the plaintiff in the replevin action, cannot be taken from such plaintiff or the sheriff on execution against one of the defendants in the replevin suit.”

In considering that question, we must, upon the facts presented to us, take notice of the fact that more than ten days had elapsed from the service of the replevin papers before the execution was levied. The right of the defendants in the replevin action to give an undertaking and have the property returned to them had expired. The sheriff was not therefore obliged to retain the property in his possession in virtue of the requisition of the replevin papers. It had already become his duty to make a manual physical delivery, of the malt to the plaintiff in the replevin action. (Code of Civil Pro. §§ 1702, 1703.) He had recognized that duty, and in obedience to it he had called upon the proper officer of the plaintiff in that action,, and proffered a delivery of the property, and the affidavits used upon the motion contain a statement that the officer had accepted such delivery as was proffered by the sheriff.

However, it appears that the malt remained in the storehouse of the debtor until after the sheriff received the execution. That there was in fact a levy upon the malt is shown by the affidavits. But it is said that the sheriff had received the usual undertaking from the plaintiff in the replevin action providing for the return of the property to the defendants in that action, if its return should be adjudged. But it must be borne in mind that such an undertaking did not run to the Second National Bank, nor in any manner secure or protect its rights or interests in the property.

Nor was the position of the Second National Bank in subordination to or in harmony with the interest or title asserted by the First National Bank. It was in hostility to the interest or title sought to be established through the proceeding in replevin.

Assuming that Hun had never, as' against a judgment creditor, parted with the possession and title to the property, and that the same was therefore liable to levy and sale upon an execution against him, as the First National Bank had only such an interest as might be enforced against Dun or his general assignee ;■ under such circumstances we are of the opinion that the prqperty was liable to levy, and that the execution required the sheriff (upon being properly indemnified as he was) to levy and hold the property under his levy to the end th&t a sale might be made of the property. The Second National Bank was a stranger to the replevin proceedings, and as to it the property was not in legal custody, so that the same-could not be reached by levy upon its execution. (Burkle v. Luce, 1 Coms., 164; affirming S. C., 6 Hill, 558; Manning, Bowman & Co. v. Keenan, 73 N. Y., 45; Shipman v. Clark, 4 Denio, 446; Foster v. Pettibone, 20 Barb., 350.)

The case before us differs from Hagan v. Lucas (10 Pet., 400) and from Seymour v. Newton (17 Hun, 32), as in those cases there was an attempt to seize property upon a process emanating from a different jurisdiction from the one under which it was held.

In the last case cited Bockes, J., says: “ To constitute a valid levy the officer must bring the property under his dominion and control. This he cannot do while it is in the hands of another officer under levy, for he could not lawfully obtain any dominion over it while thus in the custody of the law.”

Nor is the respondent aided by Gilbert v. Moody (17 Wend., 357), which was a case of sale of household furniture by a sheriff, and the purchaser left the goods upon the premises and they were dis-trained and the purchaser brought an action and insisted the goods were in custodia legis. But the court held otherwise, as they had been'sold by the sheriff and delivered and his possession had ceased. Nor does Morris v. De Witt (5 Wend., 71) reach the question here presented, as in that case the second writ of replevin was by the defendant in the first writ, and the second was set aside on motion, as the defendant in the first had an opportunity to try his title and rights to the bog or iron ore in the first action. We have not been able to discover how the Second National Bank,could have tried and determined its interest in the malt, if its execution and levy are set aside, in the replevin suit, as it is not a party to that action and, therefore, has no right to defend against the First National Bank’s claim of title set up in the replevin action.

It is insisted that Dun had no leviable interest in the malt as he was a mortgagor without any right of possession, and therefore the sheriff could not levy in virtue of the Second National Bank’s execution. The affidavits do not set out the warehouse receipt or mortgage held by the First National Bank, and we cannot therefore determine the point made in the argument. Of course a mortgagor who has possession, and by the terms of the mortgage has a right of possession, has a leviable interest. (Hull v. Carnley, 11 N. Y., 501; Hall v. Samson, 19 How., 481; Manning v. Monaghan, 28 N. Y., 585.) But the position of the Second National Bank is that the mortgage or “warehouse receipt” is.void as it was executed by Dun (Bank v. Lang, supra) and not filed or recorded in the clerk’s office so as to give it any validity as against a judgment-creditor of Dun. On the other hand the First National Bank claims that the “warehouse receipt” operated as a pledge,•nd that the subsequent delivery of the malt gives it validity and relies upon Parshall v. Eggert (54 N. Y., 18).

As the paper is not set out, and the facts are not fully before us which affect the question, we do not pass upon the questions suggested in regard to the interest or title of the First National Bank in the malt. From the views already stated we think the Special Term fell into an error in setting aside the levy and in granting an order in the nature of an injunction upon the sheriff, and that its order, so far as it is brought up by the appeal, should be reversed, with ten dollars costs and disbursements.

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

Order reversed, with ten dollars costs and disbursements.


text:
    SAMUEL J. MACK, Appellant, v. MORTON B. AUSTIN, as Executor, etc., of LUCINDA M. AUSTIN, Deceased, Respondent.

      Ma/rried woman — she is only liable for the amount secured by a mortgage when it contains an express covenant on her part for its payment; merely charging her separate estate with the payment of the amount is insufficient.

    An action against a married woman to recover the amount of a deficiency arising upon the foreclosure of a mortgage given by her, cannot be maintained unless an express covenant to pay the amount named in the mortgage be contained therein and her separate estate be charged with the payment thereof.
    No such covenant can be implied from a statement in the mortgage that she charges her separate estate with the payment of the amount.
    Appeal from a judgment dismissing the plaintiff’s complaint, entered upon a decision made at the Cayuga Circuit.
    The action was brought to recover a deficiency arising upon the foreclosure of a mortgage upon certain real estate made by the defendant’s testatrix which had been assigned by the mortgagees to the plaintiff. The premises were sold in pursuance of a statutory foreclosure.
    The complaint alleges ‘ ‘ that before this action was commenced the said deficiency upon said mortgage * * * was duly demanded of said -defendant,” and then follows an ordinary prayer for a money judgment in the sum of $866.81. In the mortgage was contained the following provision, viz.: “ This grant is intended as a security for the payment of the sum of twelve hundred dollars, money loaned and advanced to the said party of the first part for the benefit and upon the credit of her separate estate and property. And said party of the first part hereby charges her separate estate with the payment of said sum of twelve hundred dollars in one year from date thereof with interest thereon until paid, with the privilege of payment of the same at any time or any part thereof, in sums not less than two hundred and fifty dollars in any one payment to the said party of the second part;-and this conveyance shall be void if such payment be made as herein specified. And in case default shall be made in the payment of the principal sum intended to be secured, or in the payment of the interest thereof, or any part of such principal or interest as above provided, it shall be lawful for the parties of the second part, their executors, administrators or assigns, at any time thereafter to sell the premises hereby granted.” * * *
    The court held that the complaint did not contain facts sufficient to constitute a cause of action, and dismissed it.

      Chester M. Elliot, for the appellant.

      Howland <& Wheeler, for the appellant respondent.
   Hardin, J.:

No express covenant to pay the sum named in the condition of the mortgage was inserted and none can be implied. (1 R. S., 738. § 139; Hone v. Fisher, 2 Barb. Ch., 559; Severance v. Griffith, 2 Lans., 38; Culver v. Sisson, 3 N. Y., 264; Turk v. Ridge, 41 N. Y., 201; Gaylord v. Knapp, 15 Hun, 87; Coleman v. Van Rensselaer, 44 How., 368.)

The argument of the appellant, that the words of the mortgage import an intent on the part of the mortgagor to charge her estate generally with the debt, in this law action upon the terms of the mortgage, does not aid the appellant, as none of the words of the mortgage contain a promise or covenant to pay the sum named in the mortgage.

Had the action been to recover an indebtedness, created or existing independent of the mortgage, a different question would have been presented. Then the authority of Elder v. Rouse (15 Wend., 218), as approved by Hurlbut, J., in Culver v. Sisson (3 N. Y., 266) would apply.

In the latter case it was held that an action would not lie upon a chattel mortgage which does not contain an express promise to pay or a distinct acknowledgment of an existing debt.” We have not the case of an action on the original debt with the mortgage used as evidence of it or as evidence that the mortgager being a married woman intended to charge her separate estate with the payment of such debt. But a complaint in which the plaintiff puts forth the theory that the testatrix has covenanted by the terms of the mortgage to pay the- debt, or that a promise to pay should be implied, and that such covenant' or promise has been expressly charged upon the estate of the deceased.

Such legal liability, as the plaintiff sought to establish it, failing, the complaint cannot now after trial, and without amendment, be upheld, and a cause of action of a different character supported by a different theory be sustained. (Stevens v. Mayor, 84 N. Y., 296; Salisbury v. Howe, 81 id., 134.)

We must hold(l) that the mortgage contained no covenant to pay any deficiency; (2) that none can be implied; and (3) that this action, predicated upon the terms of the mortgage, cannot be shifted into an action of debt or to recover upon indebtedness existing independent of the terms of the mortgage. The result at the circuit merits our approval and the judgment is affirmed.

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

Judgment affirmed, with costs.