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

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EDWARD J. COURTNEY, Appellant.

      Criminal law — Chap. 078 of 1869, allowing a person accused of crime to testify in ■his own behalf.> is constitutional — what questions may be put to him to impeach him — what testimony is sufficiently material to the issue, to support an indictment of perjury if it be false.

    The defendant was tried and convicted of perjury committed upon his trial in the Court of General Sessions for forgery. The indictment alleged that upon the former trial he was duly sworn as a witness in his own behalf. and testified that he had never been arrested upon any charge of manufacturing counterfeit money in his life; that he was never in any prison; that he was never in the Eastern penitentiary, in the city of Philadelphia, in the State of Pennsylvania; tljat he had never served a term of imprisonment in the eastern district of Pennsylvania, and that he had never gone by any other name than that of Edward J. Courtney. The indictment in this case alleged and the jury found that the contrary of each of these statements was true.

      Held, that the act, chapter 678 of 1869, under which the defendant was allowed to testify in his own behalf on the trial for forgery, was constitutional and valid.
    That the defendant, having elected to become a witness in his own behalf, occupied the same position as any other witness, and was subject to be fully examined, in conformity with the established rules of evidence, in order to contradict any evidence he might have given, or to impeach or impair his credibility.
    That the questions as to his confinement were properly put to him, and that the testimony given by him in answer thereto, and which was alleged in this indictment to be false, was material to the issue therein and capable of supporting an indictment for perjury.
    Upon the trial it was shown that the defendant had been imprisoned under another name for the offense charged in a penitentiary in Philadelphia, commonly known as the Eastern penitentiary, but the correct name of which was the Eastern State Penitentiary of Pennsylvania.
    Held, that the variance, if any, was an immaterial one in no way prejudicial to the defendant.

      Appeal from a judgment of the court of General Sessions overruling the appellant’s demurrer to the indictment and also from the judgment and conviction under such indictment.

      William F. Ki/ntzing and A. H. Purdy, for the appellant.

      John Vincent, for the respondent.
   Davis, P. J.:

The appellant was indicted for the crime of perjury. The perjury for which the indictment was found was alleged to have been committed on the trial of an indictment in the court of General Sessions against the appellant for the crime of forgery. The appellant offered himself as a witness in his own behalf, and being duly sworn gave testimony to the effect that he, the said Edward J. Courtney, had never been arrested upon any charge of manufacturing counterfeit money in his life; that he, the said Edward J. Courtney, was never in any prison, and that he was never in the Eastern penitentiary, in the city of Philadelphia, in the State of Pennsylvania, and that he had never served a term of imprisonment in the eastern district of Pennsylvania, and that he had never gone by any other name than that of Edward J. Courtney.

The indictment averred the contrary of each of these statements to be true, and charged the appellant with having “ falsely, wickedly, willfully, knowingly, unlawfully and corruptly committed willful and corrupt perjury ” in giving this testimony. To this indictment the appellant, by his counsel, filed a demurrer in writing on the ground that the facts stated in said indictment did not constitute a crime. Upon the hearing of the demurrer the court overruled the same and ordered that the defendant plead to the indictment.

The principal point presented by the demurrer is that the statute under which the appellant was permitted upon' the trial of the indictment for forgery to offer himself and be sworn as a witness on his own behalf is unconstitutional. The statute is in these words ¡ •‘In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes or offenses, and all proceedings in the nature of criminal proceedings in any and all courts and before any and all officers and persons acting judicially, the person so charged shall, at his own request, but not otherwise, be deemed a competent, witness, but the neglect or refusal of any such person to testify shall not create any presumption against him.” (Laws of New York, 1869, chap. 678, p. 1597.)

Section 6 of article 1 of the Constitution of this State declares that no person shall be compelled in any criminal case to be a witness against himself.

The plain signification of this provision is best expressed in its own words. It is designed to prohibit the compulsion of any witness, in any criminal ease, to give testimony against himself, and it was aimed, of course, at all the proceedings of that nature by which persons charged with crime could be compelled in any manner to be witnesses against themselves. It was the long established rule of the common law that no person charged with crime could be called 'as a witness in his own behalf. On the trial of any indictment his mouth was effectually closed, first by the provision of the Constitution which prevented the people from calling him to testify, and second, by the rule of the common law which excluded him from testifying in his own behalf. The act of 1869 was intended to be a relaxation of the common law rule, by allowing a person charged with crime, at his own request, but not otherwise, to “ be deemed a competent witness.” It followed the previous enactments which had enabled parties in all civil actions to be witnesses on the trial of their own suits.; and it was intended to enable a person accused of crime to lay before a court and jury such evidence as he might be able to give in answer to or explanation of the alleged offense, and of the evidence tending to establish the same. It sought to prevent his omission to make himself a witness from creating any presumption against him. The idea of compulsion does not enter into the statute at all. The constitutional provision remains in full force unaffected by the statute.

But it is argued that since the statute permits a person accused of crime to make himself a witness in his own behalf, therefore, courts or jurors will be in some degree prejudiced against him, by his neglect to avail himself of the permission. But the statute expressly provides that his neglect or refusal shall not create any presumption against him, and, therefore, it cannot be legally assumed that any such presumption can or will arise from the mere existence of the statute. The supposed moral coercion is not a matter of legal cognizance for tbe purpose of liolding tbat the statute is void as against the Constitution.” Nor indeed, in practice, does it have any such effect. The courts, if desired to do so, are always extremely careful to caution the jury against indulging in any such presumption; and it seems to us a non sequitur to say that there is or can be such a compulsion as the Constitution prohibits, in the simple fact that the law has conferred upon a party charged with crime a privilege of which, at his own option, he may or may not avail himself.

The question of the policy or expediency of the law is not presented for consideration by the demurrer ; and, of course, it is not our province to pass upon that. Any party may waive a constitutional provision in his own behalf at any time, and the waiver, when properly made, puts him precisely in the position as though the constitutional provision in his favor did not exist. It follows, therefore, and is now well settled, that where, under the provisions of the statute above cited, a person accused of crime elects to become a witness.in his own behalf, he occupies the same position as any other witness and may be fully examined in conformity to the established rules of evidence to contradict any testimony he may give,-or to impeach or impair his own credibility, in the same-manner as that of any other witness may be impaired.

We are referred to the cases of Ruloff v. People (45 N. Y., 213), and Connors v. People (50 N. Y., 240), for the expression of views in decided hostility to the policy or constitutionality of the law of 1869. But the question of its constitutionality was not before the court, and there is nothing in the opinions to lead us to the conclusion that the statute is unconstitutional. Those opinions were delivered at a time when the act of 1869 was in general disfavor with lawyers accustomed to the former rule, and before its policy had been vindicated or tested by experience. It may be said to be doubtful whether the same views would be expressed after the experience of the effect of the statute for the last ten years.

The other point made under the demurrer is that the testimony set forth in the indictment, and alleged to have been false, was not material to the issue of the trial. The rule undoubtedly is, that the assignment of perjury must be a matter pertinent and material to the issue or case in question. But it is well settled that the oredibility of a witness wbo gives testimony affecting an issue is always, material; and lienee legal testimony wbicb affects sucb credibility is always witbin the issue on trial.

Archibald lays down the rule thus: “Every question in cross-examination which goes to the credibility of a witness is material for this purpose.” (Archibald’s Crim. Pr., 817.) This rule was declared by the twelve judges in Reg. v. Gibbon (9 Cox C. C., 108). In Reg. v. Lavey (3 C. & K., 26), the accused had falsely sworn that she had never been tried in the Central Criminal- Court, and had never been in custody at the Thames police station. On her trial for perjury, these statements were held to be material, and her conviction was sustained. In the Commonwealth v. Bonner (97 Mass., 587), the witness was asked if he had been in the house of correction for any crime. This question was objected to as immaterial, but it was held te be material. (See, also, Wood v. People, 59 N. Y., 117; Reg. v. Worley, 3 Cox C. C., 535 ; Reg. v. Gibbons, supra ; Reg. v. Overton, 2 Moody Crown Cas. Res., 263.)

In the case of the United States v. JElmersberg, before BeNedict, J., this precise question was presented and fully examined, and in the manuscript opinion now before us the court reached the same conclusion we have expressed. We are, therefore, of the opinion that the demurrer was properly overruled.

On the trial the record of conviction in the District Court of the United States for the Eastern District of Pennsylvania, of a person by the name of Christopher Richards, upon his plea of guilty of the offense charged in the indictment, and his sentence thereupon to be imprisoned in the Eastern penitentiary in the commonwealth of Pennsylvania for the term of three years, was put in evidence and witness, who was an overseer in the Eastern penitentiary, was called and testified that the prisoner at the bar was imprisoned in that penitentiary on a sentence of three years, and served his time by the name of Christopher Richards.

' Another witness was also called who testified substantially to the same effect, and both witnesses identified the present appellant as the person who was imprisoned by the name of Christopher Richards. It appeared on cross-examination of one of the witnesses that the official designation of the penitentiary, which they called “ the Eastern penitentiary,” is “ the Eastern State Penitentiary of Pennsylvania.” The assignment of perjury in the indictment is that the appellant testified “ that he, the said Edward J. Courtney, had never been arrested upon any charge of manufacturing counterfeit money in his life; that he, the said Edward J. Courtney, was never in any prison, and that he was never in the Eastern penitentiary in the city of Philadelphia, in the State of Pennsylvania, and that he had never served a term of imprisonment in the eastern district of Pennsylvania, and that he had never gone by any’ other name than that of Edward J. Courtney.” It is now insisted that there was a fatal variance in the testimony, inasmuch as it was not shown that the Eastern penitentiary and the Eastern State penitentiary were one and the same institution, and that the evidence that the defendant was in the Eastern State penitentiary was not evidence to show that he was in the Eastern penitentiary.

We do not think there is any force in this objection. The appellant testified that he was never in any prison; that he was never in the Eastern penitentiary in the city of Philadelphia. The evidence showed that he was in a penitentiary; that he had been imprisoned; that he was in the Eastern penitentiary in the city of Philadelphia and State of Pennsylvania, the legal title of which is the Eastern State penitentiary.

It is evident that the common title of the prison was the Eastern penitentiary, -and that the legal title of the prison known by that name is the Eastern State penitentiary. If this be a variance, it is not, we think, a fatal or serious one, because it is obvious that the prisoner was not in any degree prejudiced by the omission of the word “ State ” either in his testimony on the former trial, or in the charging part of the indictment. These are all the points suggested to us on the argument which we deem of sufficient importance to comment upon any further than to say that none of those not noticed by us are of any practical value.

The result is that the judgment and conviction should be affirmed.

Brady, J., concurred.

Daniels, J.:

The perjury was assigned in the indictment upon evidence which the defendant himself gave,-upon the trial of an indictment against him for forgery. He was sworn as a witness on his own behalf, and be was asked whether he had been in the Eastern penitentiary in the State of Pennsylvania, whether he had gone by any other name than that of Edward J. Courtney, and whether he had served a term of imprisonment in the eastern district of Pennsylvania. To each of which questions he answered in the negative. Evidence was given upon the present trial, very directly tending to establish the fact that the defendant had served a term of imprisonment in the eastern district of Pennsylvania, and it was substantially upon that he was convicted and sentenced to imprisonment in the State’s prison. 'At the conclusion of the case as it was presented by the people, and also after the defendant had given his evidence, the court was requested to advise the .jury to acquit the defendant upon the grounds that the alleged false statements were immaterial, irrelevant, and in no way affecting the issue, and not the subject of indictment for perjury. These requests were denied and the defendant excepted, and such exceptions are now relied upon in support of the appeal.

It is undoubtedly the law that the evidence assigned as perjury in an indictment must be material to the case in which it is given, but to satisfy this rule no specific degree of materiality can be required, neither is it necessary that the evidence should bear directly upon the issue which at the time is being tried. But for the purpose of subjecting the person giving it, when it may be willfully false, to punishment, for the crime of perjury, all that can be required is that it shall have some bearing, either direct or indirect upon the determination of the controlling fact or facts in issue. And when a witness gives material evidence, it is always important to ascertain and discover how much weight or reliance can be placed upon his testimony. Whatever may weaken or tend to discredit his evidence is important and material, and necessarily affects the determination of the issue. (Shepard v. Parker, 36 N. Y., 517.)

If the testimony of the witness is unassailed by any discrediting circumstances, then it will obviously be attended with greater effect in the determination of the controversy than it would be if he should be shown to be a person unworthy of full credit. Whatever may tend to sustain or support a witness is, therefore, material to the issue so far as it may increase the confidence to be placed in his statement; and, likewise, whatever may tend to discredit him, and in that manner to reduce the confidence his evidence may deserve, will materially affect the determination of the issue in controversy. No special degree of materiality to create the crime has been defined or required, but all that can be insisted upon is that the evidence itself shall appear to have had some material bearing in the determination of the case; and whatever may tend to the discredit of the witness giving material evidence must be regarded as within this rule. In Regina v. Overton (2 Moody C. C., 236) it was held that everything was material that affects the credit of the witness; that every question on cross-examination that goes to the credit of the witness is material. The same point was further considered in Regina v. Gibbons (5 Law Times [N. S.], 805; Law Jour. [M. O.], 98), and the rule, as it has already been stated, was repeated and sustained; and in Commonwealth v. Bonner (97 Mass., 587) the same •conclusion was declared; and in Commonwealth v. Pollard (12 Metc., 225) it was held generally that evidence which is circumstantially material will be sufficient to sustain an indictment for perjury, and in State v. La Valley (9 Mo., 824) it was in terms declared by the court that all false oaths which are material upon any and every collateral issue in the progress of the cause are equally punishable as if taken upon the trial in the main issue. (Id., 828.) In Regina v. Lavey (3 Car. & K., 26) the inquiry made of the witness was very similar to that presented by this case, and it was held to be a proper foundation for an indictment for perjury. That such an inquiry as that which was made of the witness concerning his imprisonment in the Eastern penitentiary of Pennsylvania was material to the credit of the witness, and for that reason could properly be made, was held in Real v. People (42 N. Y., 270, 280-282). And the same view was taken of it in Commonwealth v. Bonner (supra), and that, in the judgment of all reflecting persons, would have been the effect of the answer if the witness had stated that he had been so confined in prison, for the inference from it would be that his confinement resulted because of his conviction of a criminal offense, and less credit would be due to the statements of such a person than to those obtained from a witness who could not properly be charged with violation of the criminal law. For all the purposes of the present case the evidence was material within the prevailing rule of law upon the subject, and as it was untruthfully and knowingly given an indictment for perjury could lawfully be predicated upon it.

It was further urged in support of the appeal that chapter 678 of the Laws of 1869, under which the defendant was allowed to testify, was an unconstitutional exercise of legislative authority. This objection has been taken under that part of section 6, article 1 of the Constitution, which declares that no person shall be compelled in any criminal case to be a witness against himself. But the statute by no construction of language requires the accused to be a witness against himself, but leaves it entirely optional with him, whether he will take the stand in that capacity or not. And it has guarded against the consequences of his neglect to do so, by declaring that the omission shall not create any presumption against him. In form, it has left the accused with the fullest possible liberty upon this subject. But it has been urged, notwithstanding this circumstance, that a moral coercion has been imposed upon him by the act under which he is obliged to become a witness for himself, or to subject himself to the suspicions of guilt by reason of his omitting to do so, and the ease of Ruloff v. People (45 N. Y., 213), has been cited as sustaining this view. But while the policy of the act was there made the subject of adverse criticism by the court, it was not intended to hold that it Violated this restraint of the Constitution. It was considered impolitic for the reason that the failure of the accused to avail himself of the privilege secured by the statute, might lead the jury to believe him guilty. And there may be grounds in extreme cases for such a suspicion. But ordinarily no danger to the accused, as a matter of fact, arises out of this circumstance. For intelligent jurors will usually' guard themselves against 'any presumption unfavorable to the accused, whenever their attention may be directed to the necessity of doing so. The act was passed as a favorable measure of legislation for persons accused of crime, and if it has generally failed to be productive of their acquittal, the fact is to be attributed not to the law, but to the statements and demeanor of the party, when he may be called upon to give evidence in his own behalf. For if he is guilty ■of the charge made against him, some fact or circumstance will ■ordinarily appear, producing unequivocal assurance on. that subject. It is from that source that the law has not resulted in securing the acquittal of the accused as frequently as it may have been anticipated it would at the time when it was enacted.

The object of this prohibition of the Constitution was not t& prevent the enactment of laws allowing the accused to be sworn in his own behalf, if he chose to avail himself of that privilege, but it was to prevent the enactment of laws by which the accused might be subjected to actual compulsion to give evidence concerning the subject matter of the accusation. In many European coimtries laws of this character existed (2 Story on the Const. [3d ed.], § 1788; 4 Sharswood Blackstone, 325-6), and it was with the most unequivocal design to denounce their, propriety and render their repetition impossible in this State, that this prohibition was inserted in the Constitution.

Article 5 of the amendments of the Constitution of the United States contains the same prohibition, and still it was not considered as an obstacle in the way of the passage of a similar act by the Congress of the United States.

That act is as broad, and subject to the same qualification, as the law of 1869 enacted in this state (Sup. to the R. S. of the U. S. [vol. 1, p. 312], chap. 37 of 1878); and like laws have been enacted in very many of the other States<of the Union. But neither of these acts have been declared to be in violation of this constitutional provision by any court, either State or national, and that certainly is very forcible evidence of the conviction that the act is not justly liable to this objection. Besides that, the defendant voluntarily availed himself of the privilege secured to him by this act; and after having done so, it is difficult to perceive how the objection can be properly made that any of his rights were violated by availing himself of this privilege. It must accordingly, therefore, be overruled.

It has also been urged that the question and answer, now made one of the subjects of the indictment, was an improper one to be propounded to the defendant as a witness. B.ut when he placed himself upon the stand and gave his evidence, it was within the province of the public prosecutor to show by his cross-examination, if that could be done, that his statements were unworthy of credit; for, by making himself a witness, he became subject to the same rules of cross-examination made applicable to other witnesses in legal proceedings. (People v. Casey, 72 N. Y., 394.)

And if his answer had been that he was confined as a prisoner in the Eastern penitentiary, that would have tended very directly to support this position. (Brandon v. People, 42 N. Y., 265; People v. Crapo, 76 id., 288.)

There is a discrepancy between these two cases concerning the propriety of the answer whether the witness had previously been arrested upon a criminal charge. In the first case it was held to be proper, but in the last that practice was condemned, as probably it should be, inasmuch as no inference of guilt can be drawn from the mere circumstance of a criminal arrest.

Other points have been raised in behalf of the defendant, but they are in substance more or less in the nature of repetitions of those which have been considered; and for the disposition of the case it is not necessary that any special attention shall be bestowéd upon them. The case in all these respects was properly disposed of on the trial, and the judgment from which the appeal has been taken should be affirmed.

Present — Davis, P. <1., Brady and Daniels, JJ.

Judgment affirmed.


source: Caselaw Access Project

author: Davis, P. J.: DaNIEls, J.: Brady, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. LAWRENCE FALLON, Respondent, v. THE BOARD OF POLICE COMMISSIONERS OF THE CITY OF NEW YORK, Appellant. THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN MOHR, Respondent, v. THE SAME.

      New York police force — trial of a member for a violation of its rules — the board may consider evidence taken before a commissioner whose t&rm of office has ceased — right of the accused to appear by counsel— Constitution, art. 1, sec. 6.
    Where, upon the investigation of charges of improper conduct made against a member of the New York police force, the testimony has been taken by a stenographer before one member of the board of police commissioners, and by him reported to the hoard for its action, the subsequent determination of the term of office of the commissioner before whom the testimony was taken does not deprive the board of jurisdiction to proceed, and hear and decide the case upon the testimony so taken, and such other evidence as may he presented to it. It is not necessary that the commissioner before whom the testimony was taken should continue in office and participate in the final decision of the case, to render the action of the board legal.

      People ex rel. Ghlhooly v. The Police Commissioners (23 Hun, 351) followed; People ex rel. Mohr v. The Police Commissioners (27 Hun, 462) explained and not " followed.
    The right of the party accused to have counsel upon the hearing before the board rests in the discretion of that body. Section 6 of article 1 of the Constitution has no application to proceedings instituted against members of the police force for violating the disciplinary rules of that body.
    Appeals from orders of the Special Term in two cases reversing, on certiora/ri, the decision of the police commissioners of the city of New York, removing the respective relators.

      Frank A. Irish and S. G. McNary, for the appellant.

      Douglas A. Levien, for the respondents.
   Davis, P. J.:

These cases come before us upon an order for their reargument. The first of them was argued at the March Term of 1882 ; the second; at the May Term of the same year. The order of the Special Term in the second case was affirmed in June, 1882. The order in the first case was reversed in October, 1882, upon the authority of the People ex rel. Gilhooly v. The Police Commissioners (decided by this court in December, 1880, and reported in 23 Hun, 351). That decision had the concurrence of all the judges of this court then sitting, as also had the decision of the People ex rel. Gilhooly, above cited. In deciding the case of the People ex rel. Mohr v. The Police Commissioners, it appears by the opinion of the court (27 Hun, 162) that the court overlooked the same question in Gilhooly's case, for it is there said in substance that the question had not been passed upon. So also in the decision rendered in the People ex rel. Fallon, in October, 1882, the intermediate decision of the People ex rel. Mohr, which had not then been reported, was not considered. This arose, perhaps, from the fact that the justice who wrote the opinion in the Fallon case was not present at the argument and did not participate in the decision of the Mohr case. The result is that the court has decided the same question twice, to wit: in the Gilliooly and the Fallon cases in one way, and once, in tbe Mohr case, in another way, the decisions being in direct conflict. There can be no question but that if the attention of thé court in the Mohr case had been called to the previous decision of the Gilhooly case, it would undoubtedly have followed that decision, leaving the error, if one was committed in that case, to be corrected by the court of last resort. Under these circumstances a reargument was ordered in the last two cases for the purpose of producing uniformity of decision and enabling the question in the cases, if the parties shall be so advised, to be finally disposed of by the Court of Appeals.

The principal question in the cases was simply whether, upon the investigation of charges against a police oflicer for improper conduct, where the testimony has been taken by a stenographer before one member of such board, and by him reported to the board for its action, the subsequent termination of the office of the commissioner who took the testimony deprives the board of jurisdiction to proceed to hear and decide the case; or, in other words, whether it is necessary, where testimony has been taken before one commissioner, that he should continue in office and participate in its final consideration, to render the action of the board legal.

It has in several cases been decided by this court that the taking of such testimony before one commissioner is a procedure authorized by the rules of the board and by the statute. But that question is now finally settled by the decision of the Court of Appeals in the People ex rel. Flannagan v. The Board of Police Commissioners (93 N. Y., 91), in which the decision of this court on that question is affirmed. In that case the Court of Appeals held that in the disposition of such cases by the commissioners the rights of the relator were governed and controlled by statutory provisions, and the rules and regulations of the police department made in pursuance thereof, and that the commissioners “in the exercise of their functions, are, to some extent, vested with a discretionary power which authorizes them, within established rules, to take action without restricting their proceedings to strict technical rules. They are a subordinate and an administrative tribunal vested with disciplinary powers, and not a court limited in its functions within the provisions of the Constitution. (See State Const., art. 1, § 6.) Their action must be considered, having in view the special powers conferred,' and the purposes for which their organization was intended, and not confined by the application of strict legal rules, which prevail in reference to trials and proceedings in courts of law.”

And again, in the course of its opinion the court says: “ As the boai’d of commissioners do not constitute a court, its proceedings should not be controlled or decided by the same degree of formality that would be required upon a charge of a criminal offense before ordinary tribunals of justice.” And in considering the rules of the boárd which permitted the testimony to be taken before one commissioner the court proceeds to say: This rule contemplates that the accused may be taken before one of the commissioners and examined, and that the testimony shall be laid before and examined by the several commissioners before judgment thereon. ¥e think that the rule was fully authorized under section 41 of chapter 335 of the Laws of 1873, and was not in conflict with the provisions of section 55 of the same act. Nor are we able to see that the rule referred to was not fully complied with; the board met and acted together, and a conviction was had before it as a united body after full examination and due deliberation. It was not essential that a majority of the board should be present upon the taking of the testimony. The statute, by clothing them with power, under their own by-laws, intended to relieve the board from the necessity of all or a majority of its members being present when testimony, in a case like this, was being taken.”

The Flannagan case does not decide the precise point presented in this case, but it establishes rules from which we think it must necessarily follow that the board of commissioners is not ousted of jurisdiction, where testimony is taken by one of their number -for the purpose of being laid before the whole board for its examination and decision, by the accident of his death or the intermediate determination of his office. His duties in taking the testimony are administrative and clerical in their nature, for he has no power to do anything more than to hear and take down the evidence in the case as offered by the complainant and the respondent, and transmit the same to the board itself for its examination and decision.

In this regard the proceeding is analogous to that which often takes place in the trial of special proceedings in comfs where the testimony is taken before or under the direction of a judge or referee, and the case is brought to a hearing upon such testimony •before some other judge or tribunal. To hold that the proceedings already had are defeated by death, or the termination of an office in such a case, would go beyond any rule laid down for the conduct of strictly judicial proceedings. It certainly would be going much too far to say that such an accident, in the progress of proceedings administrative rather than judicial, would of necessity defeat all further steps. The eases before us illustrate how wholly unreasonable such a rule would be. Here the testimony was taken before a single commissioner by a stenographer in the form of question and answer, everything being taken down precisely as said by the witnesses or by the commissioner. In reading it over, both on this return and by the board of commissioners on the hearing, all that transpired is completely before us, as it was before them, and the presence of the commissioner before whom it was taken could neither add nor detract from its significance. On its examination by the board, the relator had the right to be present if he wished, and to be heard ; and, as we have lately decided in the case of the People ex rel. Swift v. The Police Commissioners (MS. opinion Davis, P. J.), the board may proceed to take additional testimony and accord to the accused a further opportunity to answer and explain the charge. In that case the testimony was in part taken before one commissioner. It was laid before a meeting of the board, three commissioners being present, and the relator was again called up for further explanation and re-examination by such board. This court held that a meeting of three commissioners constituted a legal board, with full power to act in such cases, and that the testimony taken before a single commissioner could be laid before the several commissioners sitting to try the case.

In Gilhooly’s case, above referred to, where the question now under consideration was directly presented, it was decided that the statute intended to relieve the board from the necessity of s majority of its members being present by clothing them with powei to make any by-laws to regulate the mode of taking testimony in such cases; and that the testimony having been taken lawfully and properly, it does not follow that the proceedings must fail, because there happened to be -a change in the incumbent of the office of the commissioner who wrote the testimony.

The recitals of the orders in these cases show, as they did in that, that the board publicly heard the proofs and allegations in support of the charges ; that the relator appeared, and that a full opportunity to be heard in his defense having heen afforded him and due deliberation being thereupon had, it was found that he was guilty of the charges made against him; whereupon it was ordered by the board that he be removed. The orders show that the final hearing and proceedings upon testimony regularly taken was had by and before the board as required by law, composed of all four of the then existing commissioners. It is impossible we think to suggest that the relator suffered any injury by reason of the fact that the commissioner who performed the clerical duty of taking the testimony was not present. Much evil might result in the administration of the disciplinary powers of the board, if it were necessary to go through the formality of retaking the evidence in every case upon charges made, because the commissioner before whom it was taken should by some accident cease to be a member of the board.

We think the court would have so held in the People ex rel. Mohr v. The Commissioners, if its attention had been called to the previous decision of this court, and while that decision stands unreversed, it ought to be deemed the conclusive judgment of this court.

A judgment of reversal should therefore be ordered in the Mohr case; and so far as this question is concerned the same rule of law applies to the Fallon case.

The question as to the right of the relator in that case to have-counsel before the commissioners, was one addressed to the discretion of that body. It was held in the case of the People ex rel. Farrell v. The Board of Commissioners (20 Hun, 402), that the provisions (section 6 of article 1) of the Constitution have no application to the proceedings and judgment in proceedings against members of the police force, for violation of the rules of the discipline of the force. The offense charged was not a violation of the law of the State, or such as is or can be tried in a court of justice; it was a mere rule for the government and discipline of the police force. (People ex rel. Farrell v. Board of Police, 20 Hun, 402; see, also, People ex rel. Thatcher v. N. Y. Com. Asso., 18 Abb., 271, 285.)

And the Court of Appeals in the case above cited have affirmed this doctrine. (See Matter of Flannagan, above cited.)

A similar provision under the former State Constitution was held not to be applicable to a hearing before a county medical society while exercising its power of amotion. (See Dillon on Municipal Corporations, § 179.) The power of amotion in this class of cases is conferred by statute. It authorizes the commissioner to regulate their proceedings by rules, and when such rules are made in accordance with the statute, the court cannot interfere with their decisions, even though it may be of opinion that better rules might be devised.

The result is that the orders of the Special Term should be reversed, with ten dollars costs in each case, and the writs dismissed.

DaNIEls, J.:

I agree to the result in order that the controverted point on which the cases depend may be placed in a condition in which it can ■ be presented to the Court of Appeals.

Brady, J.:

I also agree to the result for the reason assigned by Daniels, J., but I do not admit that the question in the Mohr case is the same as that considered in the Grilhooly case.

Orders reversed in each case, with ten dollars costs and disbursements, and writs dismissed.

       Reported ante,p. 40.


text:
    THOMAS S. GRIMWOOD, Respondent, v. WILLIAM M. WILSON, Appellant, Impleaded with HENRY URBIN.

      Undertaking— execution of, ly one surety upon the condition that another shall he procured — when such surety may set up a breach of the condition as a defense to an action upon it.

    This action "was brought upon an undertaking signed by the defendant Wilson and one Urbin, upon an appeal taken by the latter from a judgment recovered against him by the plaintiff. Wilson defended upon the ground that he was induced to execute the undertaking upon the representation and condition that another person was to sign it as surety with him. The undertaking signed by Wilson and Urbin was filed and a copy served upon the plaintiff’s attorney, who took no steps to require the surety to justify or to enforce the judgment during the appeal. The undertaking was given under section 335 of the old Code, which required two sureties, the appellant himself not being treated as a surety.

      Held, that the defendant Wilson was entitled to set up the breach of the condition upon which he executed the undertaking as a defense.

      People v. Bostwich (32 N. Y., 445) followed; Bussell v. Freer (56 N. Y., 67) distinguished.
    Appeal from a judgment, entered upon decision of the action by the court at circuit without a jury.

      Sidney S. Harris, for the appellant.

      Wilbur F. Seott, for the respondent.
   Davis, P. J.:

This action was brought upon an undertaking given on appeal to the General Term of this court, in an action of Gri/mwood v. Urbim, the co-defendant of the appellant. The undertaking was executed by Urbin, the appellant in that suit, and Wilson, the present appellant. The defense interposed was to the effect that when Urbin applied to Wilson to execute the undertaking, he requested him to be one of two sureties therein ; that Wilson declined, but upon Urbin’s representation that one Charles F. Hunter, president of the People’s Bank, or some other responsible person, would execute the undertaking as the other surety, Wilson signed on condition that Mr. Hunter or another responsible surety should execute the same.

The undertaking, executed by Urbin and Wilson alone, was after-wards filed, no second surety having been obtained. The judgment appealed from was subsequently affirmed, and this action was brought against Urbin and Wilson upon the undertaking.

The only evidence in the case was that of the defendant Wilson and his son, whose testimony tended to show that Wilson executed the undertaking on the condition that Mr. Hunter or some other responsible person should sign the same as co-surety with him.

There was no evidence in the case tending to show that Wilson had in any form consented to waive the execution of the instrument by another surety, or that he knew the fact that it had been filed without obtaining such surety. Upon filing the undertaking, a copy thereof was served upon the plaintiff’s attorney, and no steps were thereafter taken to require the surety to justify or to enforce the judgment pending the appeal.

The undertaking was made at a time when the old Code was in operation. Section 335 of that Code provided that an appeal from a judgment directing the payment of money should not stay the-execution of the judgment unless a written undertaking be executed on the part of the appellant by at least two sureties. The fact that Urbin, the appellant, also executed the undertaking was not a compliance with this requirement. (Moses v. Hasbrouck, 63 How., 84.) He was not a surety ” within the meaning of the Code, and could not be made one, because he was the principal against whom the judgment has been recovered, and incurred no additional liability by the execution of such an undertaking.

The court below refused to find upon the evidence the facts which the evidence tended to establish, and being uncontradicted did establish, and exceptions were taken to such refusal. This refusal was undoubtedly made upon the ground that the execution and filing of the undertaking were such acts as precluded the appellant Wilson from proving the alleged defense, to wit, that he executed upon condition that another surety should be obtained. It seems to be very wéll settled in this State that where a surety ’ signs a bond upon condition that it is not to be delivered until another person becomes a party to it, the delivery in violation of that condition will not be effective against him. (People v. Bostwick, 32 N. Y., 445 ; Bookstaver v. Jayne, 60 N. Y., 150; Benton v. Martin, 52 N. Y., 570-574.)

The case of the People v. Bostwick was questioned by the same court in Russell v. Freer (56 N. Y., 67), but it was not necessarily overthrown, because the court held that the facts of Russell v. Freer did not bring that case within the principle of the People v. Bostwick.

In this case the appellant had a perfect right to require that the undertaking should be executed by another surety, because the Code itself expressly requires that the instrument should have at least two sureties in order to be of any effect; and where such an instrument is executed upon that express condition or understanding, we see no good reason why the principal, and the party in whose favor it is made should be at liberty, by waiving the requirements of the ’ statute, to fix a. liability upon tlie appellant, greater than that which a compliance with the statute and with the conditions upon which he signed the instrument, would impose.

The undertaking was of no operative effect to stay proceedings upon the judgment, unless it could be made so by the waiver of the plaintiff in the judgment to enforce his statutory rights; but that waiver could not get rid of the condition which the plaintiff had attached to his execution and to the delivery of the undertaking. Parties must- be presumed to know the law. And, therefore, the surety in this case may well be presumed to know that the instrument he had signed would not be operative until another surety had joined in it. There was nothing unreasonable therefore in the evidence which tends to establish that the undertaking was not to be delivered until another surety should join and that the execution by the appellant was upon that condition.

The plaintiff also must be presumed to know that the law required two sureties to an undertaking that would operate as a stay, and if he, therefore, of his own motion, chose to waive that requirement, and to accept the instrument with one surety, he ought at least to have been sure that the single surety had consented to accept the increased responsibility thrown upon him by the absence of another surety.

We think the judgment should be reversed and a new trial ordered, with costs'to abide the event.

Beady, J., concurred.

Daniels, J.:

As the plaintiff was deprived of no right, nor delayed in the collection of the judgment by the giving of the undertaking, the failure to comply with the conditions imposed by the defendant subscribing it as a surety was a defense. If, in the form in which it was filed, it would have created a stay, then the surety would probably be precluded by that circumstance from denying his liability upon it. But it did not. As there is but one surety it did not stay, or in any form prevent the plaintiff from collecting his judgment. (Code Pro., §§ 3é8, 335.) I agree, therefore, with the opinion of the presiding justice.

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


author: DANIELS, J.: Davis, P. J.: Beady, J.

text:
    STEPHEN TUNSTALL, Respondent, v. WALTER W. WINTON, Appellant.

      Costs — when they belong to the attoi'ney for the successful pa/rty— when they cannot he set off against the general costs awa/rded to the other party.

    In November, 1882, the defendant moved to have the plaintiff’s proceedings stayed because of the non-payment by the plaintiff of certain costs, which had been awarded to the defendant upon the reversal of an order for his arrest. This motion for a stay was denied, and the order denying it was-affirmed at the General Term, but reversed by the Court of Appeals on April 24, 1883. On April 5, 1883, the action was tried and a verdict rendered and costs taxed in favor of the plaintiff. Upon the plaintiff’s motion an order was made setting off the costs awarded to the defendant on his appeal to the Court of Appeals against an equal amount of the general costs awarded to the plaintiff.

      Held, that the costs of the successful appeal legally belonged, without any assignment, to the defendant’s attorney; that they could not be so set off against the general costs awarded to the plaintiff, and that the order so directing should be reversed. (Brady, J., dissenting.)
    Appeal from an order made at-a Special Term setting off; tlie sum of $131.67 awarded to the defendant, as the costs of an appeal to the Court of Appeals, against an equal amount of the general costs of the action awarded to the plaintiff upon the trial of the action.
    In November, 1882, the defendant moved the court to stay the plaintiff’s proceedings in the action because of the non-payment of certain costs which had previously been awarded to the defendant by the Court of Appeals upon reversing an order for his arrest theretofore granted. This motion for a stay was denied and the order denying it was affirmed at the General Term, but reversed in the Court of Appeals on April 24, 1883 ; such latter order being made the order of the Supreme Court and entered on May 10, 1883. On April 5, 1883, the action was tried and a verdict rendered in favor of the plaintiff for $2,221, and thereafter costs in his favor for $237.66 were, on April twelfth, taxed.

      Benjamin F. Sawyer, for the appellant.

      F. P. Wilder, for the respondent.
   DANIELS, J.:

The costs directed to be set off were recovered by a decision of the Court of Appeals, .reversing an order denying defendant’s motion for a stay on account of tbe failure to pay the costs of another appeal resulting in an order vacating an order of arrest. The costs set off by the order now appealed from amount to the sum of $131.67. They were the costs of a successful appeal from an order, and without any assignment to the defendant’s attorney, legally belonged to him. (Marshall v. Meech, 51 N. Y., 140, 143.) It has been questioned whether even the lien of the attorney is not superior to the right of set off by way of motion (Davidson v. Alfaro, 16 Hun, 353), although it may not be maintainable against an action. (Fermenich v. Bovee, 1 Hun, 532.) But it is not necessary to consider -that point; for, as the demand was wholly for costs, it •could not lawfully be set off on the plaintiff’s motion. Section 779 of the Gode, providing for the set off of motion or interlocutory •costs, does not sanction the order; for that was designed only to provide for the collection or set off of such costs, by the party entitled to receive them. The remedies provided were wholly for his benefit. If he could not collect such costs, nor tax them as a part of the final costs, then he might secure their satisfaction by way of set off; but he has not insisted upon that remedy, and it was to aid him that this provision was made. Certainly it has provided no authority by which the costs belonging to the attorney •can be absorbed by a debt owing from his client. That would be taking the demand due to one person to pay a demand owing by a different person, which would clearly be improper. And that is what the order has done from which the appeal was taken. If, as it was held in Marshall v. Meech, actual payment to the client will not defeat the right of the attorney to the costs, it seems to follow that he cannot be deprived of the right by a set off directed by an •order made on motion.

The order should be reversed and the motion denied.

Davis, P. J.:

I concur in the views expressed by my brother Daniels, and for the reasons assigned by him.

In such cases as this the costs awarded on appeals from orders have always been regarded as the property of tbe attorney. His right attaches eo instanti upon the award of costs,- and that right is not displaced by a subsequent recovery in the action against his client. '

The order should be reversed, with costs.

Beady, J.

(dissenting):

This is one of three appeals taken on behalf of defendant, involving the consideration of substantially the same facts, but presented in such manner as to require separate consideration. The defendant obtained his stay of proceedings in due course, the details of which should be stated in the appeal between the same parties decided heretofore, directing the payment of a part of the sum deposited in lieu of an undertaking upon obtaining the order of arrest. The stay had. been obtained, before the cause was called upon the callendar for trial, and when so called, the defendant answered ready, not only on one but on several calls. It is disputed, as revealed by all the appeals considered together, whether the objection founded upon the stay to the plaintiff’s proceeding to trial was interposed before or after the jury was impanneled. The judge presiding at the trial overruled the objection, and it must be assumed that it was done properly, and that the objection came too late. The result of it was, that the stay, if any existed, was waived so far as it affected the right of the plaintiff to proceed to judgment.

It cannot be supposed the Legislature intended by any provision that may be contained in section 779 of the Code of Civil Procedure, to continue a stay therein provided for after judgment, so as to prevent an application to set off costs, the non-payment of which created the stay.

The design of the statute seems to be to secure the payment of interlocutory costs prior to judgment obtained. Of course, the person entitled to those interlocutory costs may waive the right to insist upon them, and thus lose the effect of the stay contemplated, and this may be done either directly or indirectly by waiver. In this case, as already suggested, it seems to have been done by waiver; the defendant having, by his conduct, when the case was called upon the calendar, placed it in the power of the judge to decide that the plaintiff had the right of proceeding.

For these reasons we think the set off was properly allowed and the order appealed from should be affirmed, but without costs to •either party.

Order reversed and motion denied, with ten dollars costs and disbursements.


author: Brady, J.:

text:
    STEPHEN TUNSTALL, Respondent, v. WALTER W. WINTON, Appellant.

      Motion — a decision of one justice cannot be reviewed, at a Special Term held by another— Code of Civil Procedure, sea. 1002.
    Where, upon a case being called for trial, the defendant appears and objects to the plaintiff’s proceeding with the trial upon the ground that all proceedings on his part have been stayed by his failure to pay costs awarded against him, and such objections are heard and overruled by 1he court and the trial had, the only remedy of the defendant is a motion for a new trial before the justice by whom the trial was had, or an appeal to the General Term.
    He cannot move, at a Special Term held by another justice, to have the verdict and all other proceedings on the part of the plaintiff vacated and set aside.
    Appeal from an order made by Justice Yan Yorst, denying defendant’s motion to vacate and set aside as null and void tbe verdict herein, and all other proceedings on the part of the plaintiff subsequent to December 4, 1882.

      B. F. Sawyer, for the appellant.

      F. P. Wilder, for the respondent.
   Brady, J.:

The motion made by the defendant was predicated of the theory that all proceedings on the part of the plaintiff had been stayed by certain orders, to which particular reference need not be made for the purpose of this appeal.

When the cause was reached upon the calendar, it is averred, on behalf of the plaintiff, the defendant answered ready, and the objection was not taken, until after the jury was impanneled and sworn, that the plaintiff’s proceedings were stayed. The objection which was then overruled because the stay, if any existed, had been waived by defendant’s answering ready when the cause was called from day to day, and because it was interposed too late, the jury having been impanneled and sworn.

On the part of the defendant, it is asserted that the statement on the plaintiff’s behalf, just referred to, was false, and what is asserted to be a correct version of what occurred, as furnished by the stenographer, shows that the defendant’s counsel, at the time the case was called, said: “ I have a motion to make before your honor. I claim that this action has been stayed under section 779 of the Code since November, 1882, by reason of the non-payment of $165.40 interlocutory costs, taxed November 4, 1882, by the clerk of this court, and I also offer to prove it by a certified copy of the order of this court making the decision of the Court of Appeals the decision of this court, and I offer to prove the service of the same on the plaintiff’s attorney November 2, 1882, said motion having been made at the proper time to have it appear on the record of the trial.”

It appears from the papers that the motion was decided in'favor of the defendant by Justice Yan Yorst, who held that the effect of the decision of the Court of Appeals, and especially of its order of the 8th of May, 1883, was to stay the plaintiff’s proceedings, and, therefore, the verdict and subsequent proceedings were irregular and should be set aside. But upon the reargument of the motion which was ordered, and upon further consideration, the learned justice came to the conclusion that the motion as originally made must be denied; and this appears to have been chiefly upon the ground that the defendant having objected to the trial proceeding on account of the stay which he asserted existed, the error committed in proceeding with the trial was one which must be corrected by appeal, and that he could not, however well satisfied of the objections, dispose of them summarily. This view is doubtless founded upon section 1002 of the Code, which provides that where a motion for a new trial is made, founded upon an allegation of error in the finding of fact, the ruling upon the law made by the judge upon the trial cannot be heard at a Special Term udd by another judge, unless the judge who presided at the trial is dead or his term of office has expired, or he specially directs the motion to be heard by another judge.

This application rests upon the proceedings which took place up>on the calling of the case on the regular call of the calendar, and in which the judge presiding decided either that the right to insist upon the stay claimed had been waived, or that no stay in fact existed. There was undoubtedly a decision upon the question arising upon the claim on behalf of the defendant that a stay existed, and therefore the remedy of the defendant was by appeal from' the decision made in reference thereto. Such has been the uniform course in reference to such incidents and it is preserved by the Code.

A motion to set aside a verdict upon ground's such as presented herein is substantially an application for a new trial, and it is embraced within the provisions of section 1002 of the Code, before alluded to, and by which the motion must be made before the judge who presided at the trial unless the exigencies mentioned in the Code existed which prevented it from being heard by him. If the plaintiff had proceeded to trial in the absence of the defendant, a motion might doubtless have been made to set aside the verdict for irregularity, because of the existence of the stay which restrained the plaintiff from moving in the case. JBnt the defendant, as already suggested, having appeared upon the trial and having objected for reasons stated, to the plaintiff’s proceeding in the cause, and the judge having ruled upon it, under the section of the Code already referred to, it would seem to be indispensable that the motion should be made for a new trial at the Special Term in the first instance. But if this view be incorrect the only remedy which the defendant could adopt would be to appeal to the General Term to correct the error of law by which the plaintiff would be enabled to proceed.

For these reasons, inasmuch as the motion was not made to set the verdict aside before the judge who presided at the trial, and inasmuch as no appeal was taken on the decision of such proceeding in the form required by law, the order appealed from must be-affirmed, and we think, under the circumstances, without costs.

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

Order affirmed, without costs.


author: Daniels, J.: Braby, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. EDWARD KELLY, Appellant.

      Communication between the judge and the jury after its retirement — when it does not furnish a ground for setting aside the verdict — how the error, if any, in malting such a communication is to be corrected— Code of Criminal Procedure, secs. 467, 465, 331.
    The defendant was indicted, tried and convicted for an assault with intent to kill. After the jury had retired to deliberate upon their verdict, and while they were under the charge of an officer, a note or communication was sent from one of the jurors to the judge who presided at the trial. The note was taken to him and some writing or note was made by him and sent back to the jury. No proof was given as to the contents of either communication.

      Held, that as there was no evidence to show that the note or communication received from or sent to the jury had any relation to the case they were considering, and as the presumption was that the judge had not violated his duties, the exchange of the said notes furnished no ground for setting aside the verdict. (Brady, J., dissenting.)
    Such an error cannot be corrected by a motion in arrest of judgment, under sections 467 or 331 of the Code of Criminal Procedure, nor by a motion for a new trial under section 465 thereof. (Per Daniels,- J.)

      It seems, that to enable the defendant to raise an objection to the interchange of the said communications he should have had a statement of the fact inserted in the case, so that an opportunity might have been afforded to the judge to make an explanation disclosing the nature and extent of the communication; any erroneous ruling of the judge thereon could then have been reviewed upon appeal. (Per Daniels, J.)
    Appeal from a judgment of tbe Court of General Sessions of the city and county of New York, convicting the defendant of an assault with intent to kill.

      John H. McKinley, for the appellant.

      John Vincent, assistant district attorney, for the respondent.
   Daniels, J.:

The exceptions taken in the case do not appear to present any point which can materially benefit the defendant. The inquiry made of the witness Struck and answered by him sufficiently showed his friendly relations with the prosecuting witness, and no more would have been proved by him if he had been permitted to answer the question, when he handed him the $300 which he collected and gave him. The important inquiries which could by their answers in any manner affect his credit had all been previously responded to. Neither was it important in any view of the case to prove that Strack previously had difficulties with other persons, or that his general reputation as a man of violence should be introduced into the case. Neither of these inquiries had any possible connection with the issue which was being tried, and the evidence was not offered to impeach his credit. The other objections and exceptions are still more clearly without any legal foundation and need not, therefore, be considered.

After the close of the trial a motion was made in arrest of judgment, but as it was for neither of the causes mentioned in sections 467 or 331 of the Code of Criminal Procedure, it could not regularly be entertained as such. It was not made upon anything appearing by the indictment or in the record of the proceedings in the case, and it was not, therefore, a motion in arrest of judgment ás that has been declared and defined. But it was in fact as well as in form a motion for a new trial made upon affidavits. But as such it was not within either of the subdivisions of section 465 of the Code of Criminal Procedure, for it was not made for either of the causes for which, within that section, a motion for a new trial can regularly 1 e entertained. Th'e motion was made upon the ground that after the jury had retired to deliberate upon their verdict and while they were under the charge of the officer for that purpose, a note or communication was sent from one of the jurors to the recorder, who presided at.the trial; that it was taken to him, and some writing or note was made by him and sent back to the jury. Wliat this was, whether it related to the case, to the trial, the convenience, or physical wants of the jury, was not made to appear. In fact there was no intimation or evidence whatever from which it could be inferred that it related in any manner to the case which the jury at the time were considering. But if a statement of the fact itself had been inserted in the case an opportunity would then have been afforded to the recorder to make an explanation disclosing the nature and extent of the communication. That was the course which regularly should have been pursued, for, as was held in Maurer v. People (43 N. Y., 1), it was a part of the trial if the communication related to the case, and that course should have been taken regularly to present the point instead of a motion for a new trial upon affidavits under section 405 of the Code of Criminal Procedure, for neither of the subdivisions of that section have provided for such an application.

But assuming the application in this form to have been regular, it did not entitle the defendant to another trial of the issue. For that purpose it should have been made to appear, with some degree of probability at least, that the note or communication sent to the jury had some relation to the case they were considering. It is not lo be presumed in the absence of proof that such was its character. For to, indulge in that presumption without evidence would be to presume that the recorder violated his duties as a judge, and that presumption is not without proof, to be entertained. The presumption of the law, on the contrary, is that “ no official person acting under oath of office will do aught which it is against his official duty to do, or will omit to do aught which his official duty requires should be done.” (Mandeville v. Reynolds, 68 N. Y., 528, 534.)

And that the communication did not relate to the case may be-assumed from the denial by the recorder of the motion upon the affidavits for a new trial. For, if it had, it was his duty under the authorities, then probably brought to his attention, to set aside the verdict, which he undoubtedly would have done if the communication had any relation to the case. To set aside the verdict without such proof would also violate another equally well settled rule of law, and that is that error is not to be presumed but must be shown. And in all the cases, with one exception, where a like point has been successful, it was made to appear as a matter of fact that some communication was made by the justice or judge presiding at the trial to the jury in the absence of the party concerning the case. (Maurer v. People, supra ; Taylor v. Betsford, 13 Johns., 487; Plunkett v. Appleton, 51 How., 469.)

It is true that very broad language was used upon this subject in Sargent v. Roberts (1 Pick., 337). But it must be understood and construed as addressed to the case which was then before the court, and that was a case in which an important communication relating to the issue which the jury had in charge, was made to them after they had retired and in the absence -of the parties. Hoberg v. State (3 Minn., 262) is the only exception to this rule which has been found relating to this subject. In that case it appeared that the judge visited the jury in their room and that was held to be improper, although it was made to appear that he was there simply to' inform them that they must come into court if they required any further instructions. This is an extreme case, carrying a legal technicality to a point where it could be of no substantial benefit either to the accused or the public; For it was entirely evident that no possible in jury could result to him from what was shown to have taken jilace. This case has not been followed by any other authority, and the legal propriety of the decision has been doubted by a distinguished and reliable author upon criminal law (1 Bish. [2d ed.], § 1000) where it was stated that all the courts rvould not hold such an irregularity, where nothing wrong was meant or shown, to be a ground for a new trial, even though the individual making the communication was an indifferent person.

And that it should not be a ground for a new trial is further supported by the general rule, that official misbehavior or the irregularities of jurors themselves will not allow the verdict to be set aside where no probable injury has been produced by it to the party complaining. (Commonwealth v. Roby, 12 Pick., 496, 519; Whelchell v. State, 23 Ind., 89 ; Harrison v. Price, 22 id., 165.)

And this wholesome general principle has been made applicable to motions for new trials in criminal cases. For by the language of section 465 of the Code of Criminal Procedure, the verdict is only to be set aside on a motion for that purpose, when the substantial rights of the accused have been prejudiced by the act. And by section 542 of the same Code it has been extended to the disposition of appeals which are required to be determined, “ without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties.” And as it is not to be presumed that the recorder was guilty of misconduct in sending the communication which he did to the jury, as he would have been if it related to the cáse, which it was not shown to have done, these provisions are directly applicable to the disposition of this appeal. The inquiry of the jury may have been concerning the temperature of their room, the probability of its continuance, their desire for refreshments, or the length of time to which the session of the court would be extended, or some other subject connected with their own. convenience, for such inquiries are frequently made by jurors of the court, and as they do not relate to the case itself are considered proper subjects of an informal answer. And they may be answered in that manner without in the least degree prejudicing any right or interest of the accused. If this was not a communication of that description the fact itself should in some manner have Leen shown, and it could have been done by a direct inquiry of the recorder himself, or by including a statement of it in the ease when ■an explanation of the subject would have been pertinent and proper. No injustice is done to the accused by requiring certainty as much as that from him, before an application of this character should be allowed to prove successful. The public interests in the administration of justice should not be defeated, as they would be by so •extreme and technical construction of this act as would be given to it if the inference should be drawn that the recorder had as a fact misconducted himself on this occasion. The facts themselves logically warrant.no such conclusion, and the rule established by all well ■considered authorities precludes its adoption. The judgment therefore should be affirmed.

Davis, P. J., concurred.

Braby, J.

(dissenting):

The defendant was indicted and convicted of a felonious assault ■and sentenced to ten years’ imprisonment in the State prison. After the jury had retired, and while they were deliberating, a written communication was sent from them to the presiding justice, to which a written reply' was sent. And on the day on which the prisoner was taken into court to be sentenced, and before such sentence was pronounced, the defendant’s counsel moved for arrest •of judgment on the ground that the verdict was contrary to the weight- of evidence; that the court erred in refusing to charge the jury as requested by him; and for the reason that a communication liad been sent to and answered by the court, in the absence of the prisoner, and without the consent of his counsel. No explanation was given either by the district attorney or the learned justice presiding at the time the motion was made, of the character of the •communication or the response, and therefore whether it was material or immaterial does not appear. It is not. denied that suck a communication was sent to tke learned justice and responded 'to’, by him; but it is claimed by tke district attorney, in reference to-the legal effect of such an incident, that there is no suggestion that the communication was of a nature to prejudice the defendant or that it had any bearing upon the case, but on the contrary, that it was something probably relating to some trivial question, and that the point predicated of it is therefore valueless. The answer to this suggestion is, that the character of the communication was-unknown either to the defendant or his counsel, and therefore it was impossible for either of them to say what it was; and if speculation may be indulged in, it may just as well be that it referred to the case as that it related to some trivial circumstance..

An examination of the cases on the subject leads to the conclusion that the point presented by the appellant’s counsel is well taken. In the case of Taylor v. Betsford (13 Johns., 487), the court said that the only error to be noticed was that the justice went into the room with the jury at their request, privately and apart from the parties, to answer certain questions proposed to him by the jury. The court said that they had repeatedly held suck conduct to be erroneous, and that whether the information given by the justice was material or had any influence upon the verdict of the jury, was a matter into which it would not inquire. This case was cited with approbation in the case of the Watertown Barth and Loan Company v. Mix (51 N. Y., 558), in which the court decided that a party moving for a new trial, upon the ground of a communication between the judge and the jury without his knowledge or assent, was not bound to show affirmatively that such conununicartion tended to his injury.

In the case of Plunkett v. Appleton (51 How., 469) it was-declared and upon a consideration of all the authorities, which are-quite numerous, that after the jury retires for deliberation it is error for the judge trying the cause to send a communication to them. And in the case of Hoberg v. State of Minnesota (3. Minn., 262) it was held that after the jury retired to consider their verdict, the-judge had no right to communicate with them without the consent of, and apart from, the prisoner and his counsel, and that the rule-applied even to cases where the communication from the judge to-the jury was merely to inform them that if they wished any information on matters of law they should come into court and ask it.

The result of a consideration of these authorities is that if any coriimunication be made to the jury by the presiding justice, in a criminal trial on an indictment amounting to felony, the prisoner is not bound to show, in order to entitle him to a new trial, that the communication was to his prejudice ; and if there be no evidence to show the character of the communication, as in this case, it necessarily follows that the verdict must be set aside and a new trial granted.

Judgment affirmed.


author: Daniels, J:

text:
    STEPHEN TUNSTALL, Respondent, v. WALTER W. WINTON, Appellant.

      Order of a/rrest — deposit in lieu of the undertaking required by section 559 of the Oode of Oivil Procedure — right of the defendant to have his costs for vacating the order of a/rrest paid therefrom, befoi'e the trial of the action.

    The plaintiff, upon procuring, an order for the arrest of the defendant in this action, deposited-with the clerk of the court the sum of $250 in place of giving the undertaking required by section 559 of the Code of Civil Procedure. An order denying a motion made by the defendant to vacate the order of arrest was affirmed at the General Term, but reversed by the Court of Appeals where the order of arrest was vacated, with costs.

      Held, that the defendant was entitled to have the costs so awarded to him paid out of the said fund of $250 without waiting for the trial of the issues in the action.
    Appeal from au order made at a Special Term denying a motion made by the defendant to have the-county clerk pay to him certain costs, out of a sum of $250 deposited by the plaintiff with the clerk upon procuring an order for the defendant’s arrest.

      B. F. Sawyer, for the appellant.

      Fdward P. Wilder, for the respondent.
   Daniels, J:

When the order of arrest was procured, the sum of $250 was deposited in lieu of the undertaking required by section 559 of the Oode of Oivil Procedure. After the defendant’s arrest a motion was made in- his behalf to vacate the order. That motion was denied and on appeal by him to the General Term, the order was affirmed, but on a further appeal to the Court of Appeals it was reversed, and the order of arrest was vacated with costs. And it was for the costs recovered and adjusted under this decision that the defendant applied for payment out of the deposit made by the plaintiff.

When the application was made he had become entitled to the payment of these costs, and could not be required to await the determination of the trial of the action before he could insist upon the enforcement of this right. The deposit was liable to and affected by the same contingencies as the undertaking provided for would have been if that had been given. And by such an undertaking the parties subscribing it would become liable to the defendant for the payment of such costs, either in the event of judgment being recovered in his favor, or if it should finally be decided that the plaintiff was not entitled to the order of arrest. The section provided for two different alternatives, in either of which the defendant would become entitled to his costs. The first was that of a judgment in his favor, which would dispose of the action entirely. The other was consistent with the right of the plaintiff to maintain the action, but under circumstances not entitling him to an order of arrest. In either event the obligation .matured to pay the defendant liis costs in the one case of the action, and in the other, those which should be sustained by him by means of the order of arrest. The latter contingency has been determined in his favor. It was decided unequivocally and finally that the plaintiff was not entitled to the order of arrest, and it followed from that decision that he had become liable to pay to the defendant the costs the latter had sustained by reason of the arrest. And the money deposited in place of the undertaking was specially charged with the obligation of making that payment.

The demand required to be paid consisted wholly of costs, and practically, therefore; belonged to the attorney and counsel who had performed the services which were to be compensated by the costs. (Marshall v. Meech, 51 N. Y., 140.)

And the plaintiff had no right to claim that such payment should be delayed until the issues made in the action could be tried and determined. This was an incidental portion of the controversy, not dependent upon the issues, which had been finally decided in the defendant’s favor. And as that decision carried costs with it, and they were the costs incurred by him in vacating an unauthorized order of arrest, he was entitled to their immediate payment out of this deposit. The order made should be reversed, together with the usual costs and disbursements, and an order should be entered directing the payment of the costs adjusted in the defendant’s favor on vacating the order of arrest out of the moneys deposited in place of the undertaking.

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

Order reversed, with ten dollars cost and disbursements, and order entered as directed in opinion.'


author: Brady, J.

text:
    CONSTANT A. ANDREWS, Appellant, v. JOHN D. PRINCE and Others, Respondents.

      Order for the examination of a party before trial — not granted to enable the party seeking it to prone that his adversary is guilty of a crime or fraud — Oode of Civil Procedure, sea. 873.
    In an action founded upon fraud and deceit an order for the examination of the defendant will not be granted, where it appears that its object is to establish the frauds charged against him.

      Canada Steamship Company v. Sinclair (3 Civil Pro., 385) distinguished and criticised.
    Appeal from an order made at a Special Term vacating an order for the examination of James R. Keene, one of the defendants, as a party before trial.

      Ha/r'-ry Wilbur, for the appellant.

      Wm. G. Choate, for the respondents.
   Brady, J.

This action is one which under the old system would be embraced within those designated as actions of tort, and rests upon charges of fraud and deceit for the purpose of obtaining money.

Tlie first allegation in the complaint is that the defendants and others unknown to the plaintiff, for the purpose of obtaining money by fraud and deceit, on or about a certain day procured the organization of two companies; and it is further charged that in pursuance of such fraudulent and deceitful purpose the defendants did certain things particularly set out; and further, that the money received from the plaintiff was received in pursuance of the purpose for which the company was organized and the representations made. The action is therefore one which rests entirely upon charges of fraud, deceit and fraudulent conspiracy. It seems to be well settled that in such an action an order for the examination of a party will be vacated, when the object of it is to procure testimony to establish the fraud charged. This doctrine rests upon the provisions of the Constitution of this State which declares that no person shall be compelled in any criminal case to be a witness against himself.

Yamato Trading Company v. Brown (decided in this department and reported in 27 TIun, 248) is in point upon the question involved upon this appeal, in which it was decided that when the object of the examination, as already suggested, is to show by the testimony of the party that he procured property from the plaintiff by means of false and fraudulent representations, the order for his examination should be vacated. (See, also, Kinney v. Roberts, 26 Hun, 166; Corbett v. De Comeau, 5 Abb. N. C., 169 ; Burbank v. Reed, 11 N. Y. Weekly Dig., 576).

The case of the Canada Steamship Company v. Sinclair (reported in 3 N. Y. Civil Proc. Rep., 285) is not in conflict with the cases referred to. But if it were it would not be .regarded as overruling, being a Special Term case, the decision of the General Term of this department. That case, However, is distinguishable from this, in that it was commenced to recover property or its value, and the object of the examination was to show how much of the property which was stolen from the plaintiffs came into the possession of the defendant.

The court held that the possession of the goods is not of itself a crime. It was necessary, if they were bought by the defendants, to show that they were purchased with a knowledge of their being stolen. The proposition was recognized as it should have been, that if it -appeared that the testimony which the'party sought related exclusively to frauds which amounted to a crime, the order could not be maintained.

For these reasons the order appealed from was properly made and should be sustained.

The judgment of the court is, therefore, that the order appealed be affirmed, with ten dollars costs and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. F. R. COUDERT and Others, Executors, etc., of EDWARD O. STERN, Deceased, v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY AND COUNTY OF NEW YORK.

      Notice of assessment foi' taxation in New York city — when it may be served upon one named as an executor in the will, before the will lias been proved — right to deduct debts of the deceased,

    January 1, 1883, Edward 0. Stern died leaving a will by which he appointed the relators his executors. On January tenth the will was proved and letters testamentary were issued to them. On January 8,1883, they were informed by a notice bearing that date that they had been assessed in the sum of $200,000 for personal property belonging to the estate of the deceased, and that the same, if erroneous, must he corrected on or before the thirtieth of April following. The eighth of January was the last day in the city of New York on which assessments for the year 1883 could be made.

      B.eld, that as the relators were by virtue of the will vested with the power necessary for the protection of the estate they represented, prior to the issue of letters testamentary thereon, the notice was properly served upon them.
    That the fact that they could not determine with accuracy and certainty prior to the thirtieth of the following April what deduction should be made for the outstanding debts of the deceased did not afiect the validity of the assessment.
    Certiorari to correct an assessment made against the relators as. executors of Edward O. Stern, deceased.

      F. E. Goudert, in person and for the executors, appellants.

      A. L. dole, for the respondents.
   Brady, J.

The relators were assessed for the year 18S3 in the sum of $200,000, that being the amount of personal property belonging to the estate of Edward O. Stern, deceased, of whom they were the executors.

The notice of such assessment is dated the 8th of J anuary, 1883, and advises them of the assessment and farther that the same, if erroneous, must be corrected by application to the commissioners on or before the 30th day of April following, or it would be confirmed at the amount stated.

The testator died on the 1st of January, 1883. His will was not proved until the 10th of January, and it was not until the latter day, when letters testamentary were granted to the relators, that they were fully invested with their rights and could discharge their functions as executors. This, it will be observed, was two days after the expiration of the period of assessment, which by act of 1859, chapter 302, must be made between the first Monday of September and the second Monday of January in each year, the second Monday of January 1883, having occured on the eighth of that month.

It is not disputed that the assessors must make the assessment between the dates stated. There is indeed no room to doubt that they must perform that duty within the period named. (See Mygatt v. Washburn, 15 N. Y., 316; Clark v. Norton, 58 Barb., 436 ; Westfall v. Preston, 49 N. Y., 349 ; Bell v. Pierce et al., 51 id., 12; Overing v. Foote, 65 id., 263; Boyd v. Gi'ay et al., 34 How., 323; People ex rel. Twenty-third Street R. R. Co. v. Comrs. of Taxes, 91 N. Y., 593 ; McMahon, Receiver of Taxes in the City of New York v. Beekman et al., executors, Special Term, May 1883, by Maoomber, J.)

The relators contend nevertheless that upon the eighth day of January they had not possession or control of this property of the •estate, arid therefore were not the persons to whom notice should be given. This view cannot be sustained. The statutes provide, it is true, that no executors named in a will shall before letters testamentary are granted have any power to dispose of any part of the estate of the testator, except to pay funeral charges, nor to interfere with such estate in any manner further than is necessary for its preservation. (See sec. 16, art. 1, title 2, ch. 6, part 2, R. S. [vol. 3, Ttli ed. p. 2289].) It is known that the Court of Appeals in commenting upon this statute says:

“ It is true that by the statutes of this State executors are not permitted to exercise their powers, except to a very limited extent, until proof of the will and the granting of letters testamentary.” (Hartnett v. Wandell, 60 N. Y., 350.) But it has been declared that the interest of an executor in the estate of his testator is derived from the will itself, and accordingly vests in him from the moment of the testator’s death, and further that letters testamentary were not the foundation but only the authenticated evidence of his title. (Redfield Law and Pr. Sur. Cts., 125, 450; Hartnett v. Wandell, 60 N. Y., 350 ; Matter of Greeley’s Will, 15. Abb. [N. S.], 395 ; Valentine v. Jackson, 9 Wend., 302; Williams on Executors, 239; Dayton on Executors, 232 ; Priest v. Watkins, 2 Hill, 225; Fx parte Faulkner, 1 id., 181; Vroom v. Van Horne, 10 Paige, 549.) And it will be perceived upon an examination of the case of Hartnett v. Wandell {supra), that the Court of Appeals said in addition to what is quoted herein : But this does not’ affect the character of the office or detract from the efficacy of the will as the source of the power.” And it may be added that the statute does not prohibit such possession of the property under the will as may be necessary for its safety until the probate of the will. If the assessors did not impose the assessment until after the eighth of January, the imposition would be illegal, as the authorities already cited abundantly establish; and the executors by virtue of the will being vested with the power necessary for the protection of the estate they represented, and against the exercise of which the statute does not contain any prohibition, the notice was properly served upon them. The proceedings had doubtless been inaugurated to prove the will, and thus to obtain letters testamentary before the notice mentioned was served; and the statute, it will have been observed, whilst it inhibits the exercise of any power of disposition over the estate or any interference with the estate, justifies such interference for its preservation. If it were necessary, for example, to take actual possession of the personal estate for its protection in any respect, the executors would be justified in doing it as the legal effect of their appointment in the absence of any proof showing their decimation to act, and indeed they may well be charged with possession or control over it for such a purpose. It may be assumed, in other words, that they did their duty in respect to the estate, and that doing so involved at least the assumption of control over it, if only for its preservation. It follows, therefore, that as the death of the intestate took place upon the first of January, and as the eighth ■of January was the last day upon which the assessment could be made, and as the relators were the executors named in the will and were invested with authority to interfere with the estate so far as to secure its preservation, they were the proper persons to serve with notice as the representatives of the estate of the deceased, and the ■only persons to whom, under the circumstances, the assessors were bound to have recourse or to regard as connected with the possession or ownership of the property. Deriving their title from the will, and not being prohibited from taking possession by the statutes, their position as the representatives of the estate for the purpose of taxation or assessment cannot well be disputed.

It is also claimed on behalf of the relators that the assessment is illegal because it was imposed at a time when they had no opportunity to determine the amount of debts due by the testator, and which, under the laws of the State, should be deducted from the value of the personal property. (R. S. [7th ed.], 991, § 10.)

It will have been observed that the relators had until the thirtieth of April to make application for the correction of the assessment. It was incumbent upon them to present to the commissioners during the period allowed such evidence of the testator’s indebtedness as they could furnish for the purpose of decreasing the assessment. This they failed to give. It may be, and indeed it is quite likely, that they were unable to ascertain the amount of all of the debts prior to the time when the publication for claims to be presented against the estate should have expiréd, but this is a misfortune which must rest upon the estate itself and not upon them. The time limited by statute within which the commissioners had power to correct the assessment expired upon the thirtieth of April (Laws 1859, supra, secs. 8, 9, 10), when the evidence not having been produced which the commissioners were authorized to require, they declined to make the deduction which was asked. This they were justified in doing. An examination of this branch of the •case shows that the executors sent a communication to the commissioners, dated the twenty-third of April, as follows:

“New York, April 23, 1883, 70 William Street.

To the Commissioners of Taxes and Assessments in the City of New York :

“ Gentlemen. — ■ Permit us, as the executors of the last will and testament of Edward' 0. Stern, deceased, to call your attention to the following grounds of objection to the assessed valuation heretofore made of the personal property claimed to be held by us as such executors as aforesaid.

“ In the first place, Mr. Stern’s death having occurred on the 1st ■day of January, 1883, and his will not having been proved until the tenth day of said January, it was not until said last mentioned day that we received our letters testamentary or entered on the discharge ■of our functions as executors. But this was two days after the expiration of the period of assessment; the second Monday of January, the last day of said period, haring this year been the eighth day of said month. Accordingly, it -results that at the time to which the assessment refers, we were not yet executors and had not as such possession or control of any property of the estate. Secondly, we are not in a position to determine and are in fact unable to decide, what the assessable value of the estate really is, inasmuch as the period during which creditors can by law present their claims has not expired; and the apparent assets may be seriously reduced, if not wholly swept away, by outstanding but now unknown ■debts. We, therefore, respectfully make this application under the statute, for the correction of such assessment, our claim being that under the circumstances we were not lawfully assessable as such executors in any amount whatever, at the date and for the period to which such assessment refers.

“E. R. COUDERT, Executor,

“By Chas. Coudert.”

“ CHAS. COUDERT, Executor,

“ R. M. C. GRAHAM, Executor,

“By Chas. Coudert.”

And it will be perceived that they state their claim to he that,under the circumstances set forth,- they were not lawfully assessable as executors in any way whatever at the date and for the period to which the assessment refers. It is' not, therefore, an application strictly that the assessment be reduced, but that it be canceled. They do not assert, as suggested bj^the learned counsel for the respondents, that there are any debts or that any claims have been presented against the estate, nor that there will be any shrinkage in the assets, although they suggest that such a thing might be.

It is not asserted, either, that the assessable value of the estate at the time of the assessment was below the sum at which it was fixed by the commissioners, and in fact it contains nothing which would justify the commissioners in complying with the demand to vacate the assessment. So if the communication be regarded as one which asks for a reduction, nothing is presented by it which would justify the commissioners in making any deduction whatever. The commissioners have acted strictly within the line of their duty and power; they have been guilty of no departure from the statutory rules which govern them ; they have committed no irregularities; and the assessment does not appear to be illegal or erroneous by over-valuation, nor is it erroneous in any respect. It is apparent, therefore, that the action of the tax commissioners should be affirmed and the writ dismissed, with costs, and it is so ordered.

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

Proceedings affirmed and writ dismissed, with costs.