author: Barnard, P. J.;

text:
    JAMES DEMPSEY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Perjury in an affidavit made by coroner as to an inquest having been had— when a false oath is not shown to be willfully and corruptly false.

    Writ of Error to tbe General Sessions of Richmond county to review tbe conviction of tbe plaintiff in error of perjury.
    Tbe perjury, was alleged to have been committed hi falsely swearing to an affidavit annexed to a bill presented by tbe plaintiff in error to the board of supervisors of Richmond county. Tbe bill was for fees and charges due to tbe plaintiff in error for services rendered in bolding an inquest, -as coroner of the county.
    Tbe General Term, after holding that the return was defective in not containing tbe affidavit, said : “ If it be assumed that tbe
    affidavit which defendant made was tbe one required by. statute, that be rendered tbe services charged for, then tbe judge’s charge, in our view of tbe evidence, was calculated to mislead tbe jury. There was evidence tending simply to prove that tbe inquest out of which tbe charges grew was wholly fictitious. None of tbe jury could be found. Proof was also given tending to show that no jury saw tbe deceased. The accused testified to the summoning of tbe jury, and that they had viewed the body, but that the inquest was signed at another place than the residence of the deceased.

      “ Under this state of facts the judge charged the jury that if the services were not rendered the affidavit was false. If false, it was willfully and corruptly false. He then charged the jury that if the coroner’s jury did not view the body it was no inquest. This took away from the trial jury the question of the intent of the accused in making the affidavit. If there was a jury summoned, and if they did not see the body but found an inquisition upon the oath of witnesses as to the cause of death, I do not think an affidavit to a bill for services in holding the inquest necessarily willfully and corruptly false. If the affidavit -was made in good faith, and not with intent to defraud, and under a mistake as to what made a legal inquest, I suppose it would be the duty of the jury to acquit the accused of the charge of willful and corrupt ■perjury.”
    JV. J. Wyeth, for the plaintiff in error. John Oroák, district attorney, for the defendant in error.
   Opinion by

Barnard, P. J.;

Gilbert and Pratt, JJ., concurred.

Conviction reversed and new trial granted, and proceedings remitted to Court of Sessions.


source: Caselaw Access Project

author: Gilbert, J. ;

license: Public Domain

text:
    VEDDER VAN DYCK as Receiver, Etc., Respondent, v. THOMAS P. McQUADE, Appellant.

      /Savings bank — agreement to hold the deposit of one, as secwity for the overd/rafts of another — when it is not enforceable by the debtor, after the insolvency of the bank.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The plaintiff is the receiver of the Yorkville Savings Bank. The bank failed in July, 1877. The defendant had been a customer of the bank, and when the bank failed he was indebted to it on account of overdrafts in the sum of. $5,000 and upwards. This action was brought to recover that indebtedness. The defence was, that when the bank failed it had on deposit to the credit of John McQuade $3,000 and over, and to the credit of Jones & McQuade $2,000 and over, and that by agreement made with the bank, a year or more before its failure, the defendant had acquired a right to have those sums transferred to his credit, and thereby to have his indebtedness to the bank extinguished. It appeared that in the year 1876 the secretary of the bank was solicited by the defendant’s father, John McQuade, to permit the defendant to overdraw his account, and as an inducement to the granting of that favor John McQuade and the firm of Jones & McQuade consented that credits in their respective accounts might be applied to the overdrafts of the defendant’s account. The bank did not make such application. Efforts were made, however, at or about the time when the bank ceased to do, and was enjoined by this court from doing any business to have such application made, but the referee refused to give any effect to the testimony on that point.
    The court, at General Term, said : “ The question is whether the defendant might legally enforce a transfer of so much of the balance due from the bank to John McQuade, and to Jones & McQuade to his credit, as would suffice to extinguish his indebtedness to the bank. We are of opinion that the defendant had no such right. Taking the alleged agreement in either of the forms in which it is presented by the evidence, it imposed no obligation whatever on the bank, but merely gave the bank an option to resort to those accounts for the purpose of making good any overdrafts of the defendant.
    “ Upon the approaching failure of the bank it was the clear duty of its officers to abstain from exercising that option. The defendants, John McQuade and Jones, were trustees of the bank. An exercise of the option would have indirectly contravened the statute, which prohibits fraudulent transfers of the effects of insolvent corporations (2 B,. S. [6th ed.], 399, § 4), and violated the principal of equality in the distribution of the assets of such corporations which the law enjoins.”

      Alex. TJiain, for the appellant. Ely <& Smith, for the respondent.
   Opinion by

Gilbert, J. ;

Pratt, J., concurred; Barnard, P. J., dissented.

Judgment affirmed, with costs.


author: Pratt, J.,

text:
    CHARLES FINCKE and others, Trustees, etc., Respondents, v. JAMES ROURKE, Appellant.

      Action on a contract payable in installments —payments falling cbue after the commencement of the action, '¡nay be set up by supplemental complaint.

    Appeal from on order made at Special Term, allowing the plaintiff to file a supplemental complaint.
    The action was based upon an agreement for the sale of land to be paid for by installments.
    At the time the action was commenced the contract had not wholly matured, and the claim was for several installments, which had then by the terms of the contract become due. At the time of making the motion the contract had matured, and plaintiff was permitted to set up that fact and claim such further relief as the case justified.
    The court, at General Term, said : “ This was consistent with the original cause of action; both the original and supplemental complaints are based upon the same agreement, the supplemental complaint merely allowing the plaintiff to allege subsequently occurring facts, which varied the relief to which the plaintiff was entitled under the original complaint.
    “ This practice was right upon principle and authority. (Eager v. Price, 2 Paige, 369; Ifasbrouclc v. Shuster, 4 Barb., 285.) ”

      ■Daniel T. Walden, for the appellant. Thomas E. Rodman, for the respondents.
   Opinion by

Pratt, J.,

Barnard, P.. J., concurred; Gilbert, J., not sitting.

Order affirmed, with costs and disbursements.


author: Barnard, P. J. ;

text:
    KARL H. LUDWIG, Appellant, v. JOHN KIPP, Respondent.

      Chattel mortgage on pi-operiy to be acquired In the future — ■ valid as between ' ' the parties thereto.

    Appeal from a judgment of the County Court of Kings county in favor of the defendant, and from an order denying a motion for a new trial made upon the judge’s minutes.
    The action was brought to recover certain articles of personal property, claimed by the plaintiff by virtue of a chattel mortgage given to him by the owner of the property.
    One John Pruser executed a chattel mortgage to the plaintiff upon all the tools, fixtures and personal property in his store, including all the stock that might be put in thereafter. When the mortgage was signed there were no goods in the store and the plaintiff declined to take the mortgage, or advance the money which the mortgage was intended to secure. It was then agreed that the mortgage should remain with the attorney for plaintiff until the store was fitted up. After the goods were bought and placed in the store the money was paid and the mortgage delivered to plaintiff, and a copy duly filed. The plaintiff owned the real estate on which the store of Pruser was located. Some three months after the date of .the mortgage the goods were moved away in the night time by Pruser and defendant Kipp. Kipp knew of the existence of plaintiff’s mortgage, and had no connection with the title to the goods. The goods in question were found concealed on defendant’s premises. 'Upon this state of facts the court nonsuited the plaintiff.
    The court, at General Term, said: “I think his ruling erroneous. Assinning that a mortgage on chattels is void as to after acquired property between the parties- and irrespective of the rights of creditors, there was evidence that the entire property in dispute was in the store at the delivery of the mortgage ; that the mortgage was left undelivered in order that the property might be in esse.

      “ I do not, however, think that a mortgage (which is merely a •conditional bill of sale) of after acquired property is void as between the parties. The cases in which such a mortgage has been held void were cases where the question arose between the mortgagee and purchasers in good faith and judgment creditors. As has already been observed, as the case stands defendant is neither a purchaser or judgment creditor, but merely one who has concealed goods belonging to the plaintiff.”

      William J. Gaiynor, for the appellant. A. Simis, for the respondent.
   Opinion by

Barnard, P. J. ;

Gilbert and Pratt, JJ., concurred.

Judgment and order denying new trial reversed and new trial - granted, costs to abide event.


author: Davis, P. J.:

text:
    WILLIAM H. ARGALL, Respondent, v. BENJAMIN F. RAYNOR and others, Defendants. DAVID H. McALPIN, Purchaser, Appellant.

      A ;purchaser at a judicial sale will not be compelled to accept a doubtful title

    A.purciaser at a sale, tinder a decree in foreclosure, has a right to expect that he will acquire a good title, and he will not he compelled to accept a deed when the title is doubtful, and a claim to the property exists, in favor of persons who are not parties to the action, which might impair the value of the real estate by casting a cloud over the title, or by subjecting the purchaser to the risk of a contest at law.
    Appeal from an order made at Special Term, directing the purchaser at a foreclosure sale under a decree herein to complete his purchase and take the title.
    This action was brought in the month of July, 1877, to foreclose a mortgage made by one Ebenezer H. Brown to one John Sudlow, dated 1st of May, 1867, to secure the principal sum of $7,000 upon four lots of land in the city of New York. The bond and mortgage was duly assigned to plaintiff before the commencement of this action. On or about the 26th day of November, 1875, the defendant Benjamin F. Raynor, who had purchased said mortgaged premises subject to said mortgage, by deed of that date, sold and conveyed to Sarah E. Raynor (the defendant, Sarah E. Cornish) “ as executrix and trustee under the last will and testament of William H. Raynor, deceased,” three undivided fourth parts of said premises, subject to three-fourths of said mortgage. The deed expressing a consideration of one dollar was recorded on the 30th November, 1875. The said William H. Raynor died in October, 1874, leaving him surviving his widow and four children. His will, dated 30th January, ■ 1874, was admitted to probate on November 16th, 1874. After directing payment of debts and funeral expenses, and making certain bequests of personal property, the testator, by the fifth clause of the will, devised all the remainder of his estate, real and personal, unto the executrix and executors therein named, the survivor and survivors of them, in trust, with power to receive the rents and profits of the same, and to sell, dispose of and convey the same at such time and in such manner as to them shall seem ¡3roper, and to invest and keep invested such rents and profits, and the proceeds of such sale or sales, in bonds of the United States or of the city or State of New York, or in first bonds and mortgages on real estate, and to divide and apply the same and the income thereof as thereinafter directed. By the last clause of his will the testator appointed his wife, Sarah E., executrix, and his friends, William R. Stewart, John H. Morris and Jonathan Edgar, executors, and requested that his wife should qualify as executrix, and that at least one of his said friends should qualify and act with her as executor.
    The provision for the wife mentioned in the sixth clause of the will was to be in lieu of dower.
    Letters testamentary were duly issued in December, 1874, to the widow, the defendant, Sarah E Cornish, who duly qualified and acted as executrix. Tire others named in said will as executors' failed to qualify, and neither of them was named in the letters testamentary. The defendant, Sarah E. Cornish, was sued “as executrix and trustee under the last will and testament of William H. Raynor, deceased.” Judgment was entered on or about October 24, 1877. The premises were sold on 22d day of July, 1879, to J. Romaine Brown for $23,000. The purchaser paid ten per cent thereof to the referee, and signed a memorandum of his purchase. Brown bought for the benefit of David H. McAlpin, and. assigned his purchase to him.

      The referee’s deed was duly tendered to said McAlpin, who refused to complete his purchase, claiming that the "title was defective," because the children and grand-children and the persons named in the will of William" H. Raynor as executors were not made parties defendant in this action, and because the said widow was not divested of an estate in dower, and also because it was claimed the premises were purchased by B. F. Raynor on joint account and for the benefit of himself and W. H. Raynor and George H. Peck.

      T. G. Van Volhenburgh, for purchaser, appellant.
    Section 51 (1 R. S., 728, m. p.), which provides that when a grant shall be made to one person, and the consideration be paid by another, no Use or trust shall result in favor of the party paying, etc., has no application to a transaction such as was the purchase m this case. (Fairchild v. Fairchild, 64 N. Y., 471; Garry. Garr, 52 id., 251; Chester v. Dickinson, 54 id., 1; Bissell v. Harrington, 18 Hun, 81.) By force of the will alone the several parties named as executors became trustees and were vested with the trust estate. {Dunning v. Ocean Bank, 61 N. Y., 497; Dominick v. Michael, 4 Sand., 375; Dunning v. Ocean Bank, 6 Lans., 298; Burrittv. Billiman, 13 N. Y., 96.) The appellant further insists that the proceedings in foreclosure are defective, because the children and grandchildren of the testator, Vm. H. Raynor, were not made parties defendant. (1 R. S., 729 [m. p.], §§ 60, 61; 1 R. S., 723 [m. p.], § 13; Moore v. Lyons, 25 Wend., 144; Lawrence v. Bayard, 7 Paige, 75; Nodine v. Greenfield, 7 id., 544; Moore v. Littel, 41 N. Y., 76, 80; Livingston v. Greene, 52 id., 123; Mead v. Mitchell. 17 id., 214; Leggett v. Mutual Life Ins. Go., 64 Barb., 23; Peabody v. Roberts, 47 id., 91; Gage v. Brewster, 31 N. Y., 218; Hirsch v. Livingston, 3 Hun, 9; Verdin v. Slocum, 71 N. Y., 345.) A purchaser at a judicial sale will not be compelled to accept a doubtful title. {Matter of Oavanagh, 14 Abb., 258; McGown v. Wilkins, 1 Paige, 120; Jackson v. Edwards, 22 Wend., 509; Rogers v. McLean, 31 Barb., 304; Raynor v. Selmes, 52 N. Y., 580.)

      G. H. Brewster, for the respondent.
    The deed having been taken in the name of Benjamin P. Raynor, the payment, by William H. Raynor in his life-time, of a part of the consideration vested no estate or interest in the latter either in law or in equity. (Statute of Uses and Trusts, § 51; Garfield v. Hatmaher, 15 N. Y., 478; Williams, Ex., etc. v. Gillies, 18 Alb. L. J., 469.) The defendant, Mrs. Cornish, the widow, never had any dower right in the mortgaged premises. To entitle a widow to dower there must have been a seizin in the husband during coverture. (4 Kent’s Com., 37; Poor v. Horton, 15 Bai’b., 485.) The persons named in the will as executors were not necessary parties defendant to the foreclosure. (2 R. S., 71, § 16 [15]; 2 R. S., 109, § 73 [55]; Taylor v. Morris, 1 N. Y., 341, 349; Leggett v. Hunter, 19 id., 455; Meahings v. Cromwell, 1 Seld., 136.) The children and grand-children of the testator were not necessary parties defendant. JBy this will the real estate must be deemed personal estate under the . doctrine of equitable conversion. {Dodge, ele., v. Pond, 23 N. Y., 69; Hatch v. Bassett, 52 id., 359; Fisher, Adm., v. Banta, 66 id., 468.) But if the real estate has not been converted by the will into personal estate, they were not necessary parties, because the trust created, by the will was au express trust. (Statute of Uses and Trusts, § 55.) The whole estate in law and equity is vested in the executrix. (Same Statute, § 73 [60].) The persons for whose benefit the trust is created had no estate or interest in the lands. (Same section; Verdin v. Slocum, 9 Hun, 150; Hoyes v. Blaheman, 2 Seld., 567.)
   Davis, P. J.:

In Jordan v. Poillon, decided by the Court of Appeals in June, 1879 (not yet reported), the question upon which the validity of the title under a sale • in an action for partition depended, was whether certain legacies bequeathed by the will of Alexander C. Poillon were charges upon his real estate. The legatees named in the will were not parties to the action. In the course of the opinion the court say: “A purchaser on a partition or foreclosure sale has a right to expect that he will acquire a good title, and the law presumes that he bids with that object in view. He should not be left upon receiving a deed, to the uncertainty of a doubtful title or the hazard of a contest with other parties, which may seriously affect the value of the property if he desires to sell the same. It is easy to see how a claim of this kind might impair the value of the real estate sold, by casting a cloud over the title, or by subjecting the purchaser to the risk of a contest at law. From such a result he is entitled to protection, and the case should be very plain which would authorize a court to decide a question, arising on a motion to compel a party to take a conveyance, and then it should be determined only with the consent of such purchaser.”

The court in that case declined to pass upon the question, whether the legacies were charges upon the lauds, because the legatees not being parties to the partition suit would not be bound-by the determination and as to them the question of the charge would still be an open one which might be again litigated in some form of action against the purchaser, and for that reason refused to require him to complete the purchase.

' Whether this decision does not go altogether too far, and in its operation relieve buyers on foreclosure and partition sales from completing their purchases in all cases where it can be shown that some person not a party to the action may assert a claim or interest,, which may become the subject of future litigation, is not for us to determine. No later decision of the same court has been brought to our notice, and we are therefore bound to accept it as a final exposition of the law in such cases, although we might otherwise have supposed it our duty to pass upon the questions upon which the lights of the parties before us plainly depend.

It is only necessary therefore, in disposing of this case to ascertain whether -or not there is some practical and serious question in the case in which persons not parties to this suit who cannot be estopped by our judgment, have a right to be heard in some possible future litigation. That there are such questions in this case cannot admit of doubt.

First. There is a question whether the title of the lands covered by the mortgage foreclosed, was taken by Benjamin F. Raynor as a co-partner of William H. Raynor and George H. Beck, so that it was not subject to the statute which provides that when a grant shall be made to one person and the consideration paid by another.-, no use or trust shall result in favor of the party paying the con-. sicleratiou (1 R. S., 728, § 51), because if tbe case were one to which the statute applied to make the trust void, the whole title to the lands vested in Benjamin F. Raynor, and the executors and trustees under the will of William H. Raynor, took nothing by the devise in trust to them, and were not necessary parties to the foreclosure, nor were their several cestuis que trust, by reason of any of the provisions of the will. But if Benjamin F. Raynor held the land as co-partner, then the interest therein, of William H. Raynor, was a proper subject of devise, and- all questions, as to the validity of the devise, and to whom the same carried the legal' title, and by whom the trust must be executed, and for whose benefit, are questions in which persons who have had no opportunity to be heard in the foi-eclosure suit, are interested and their interests are not affected by the judgment of foreclosure.

Second. A serious question arises under the devises of the will as to the persons in whom the legal title to the land is vested. The fifth clause of the will devises all the real estate of the testator “unto my executrix and executors hereinafter named, and the survivors and survivor of them, in trust, with power,” etc.

The testator named his wife, Sarah E. Raynor, executrix, and his friends, William R. Stewart, John H. Morris and Jonathan Edgar, executors. Sarah E. Raynor qualified and took out letters as such executrix. Neither of the other persons named has ever qualified as executor. William R. Stewart had died before the action in foreclosure was commenced ; John H. Morris and Jonathan Edgar were both then living and neither of them had made any formal renunciation either as executor or trustee. Mrs. Raynor (now Mrs. Cornish) was made a party to the suit as executrix and trustee under the last will and testament of William H. Raynor. Neither Morris nor Edgar were made such parties. None of the children or grand-children of the testator, who are the cestuü que trust named in the will, were made parties. The appellant claims that by force of the will alone the several persons named as executors became trustees and were vested with the trust estate. He cites as authorities for this proposition Dunning v. The Ocean National Bank (61 N. Y., 497); S. C. (6 Lans., 298); Dominick v. Michael (4 Sandf., 375); and Burritt v. Silliman (13 N. Y., 96). If the title vested in all the persons named as executors in the will, then all of such persons should have been made parties to the foreclosure, because it may well be asserted hereafter by the cesiuis que trust that the making of one of their trustees a party cannot cut off their interest in the trust estate; and they may be yet heard to assert that a joint estate is vested iii the trustees by virtue of which they are'jointly entitled to redeem the property sold for the benefit of the cestuis que trust, notwithstanding the fact that Mrs. Cornish was made a party to the action. How these questions should be determined we are not, under the authority of Jordon v. Poillon, above cited, at liberty to decide, because the parties most interested in them are not before us in this action.

Again a question is made whether the several children of the testator should not have been made parties to the action, because in substance, as it is claimed, the remainder was devised in fee to the children and grand-children of the testator after the happening of certain events named in the will in respect of which devise and their rights thereunder they were not represented by the executrix and trustee who was alone made á party to the action, the power of sale given by the will never having been executed.

It is insisted by the respondent’s counsel that by the provisions of the will the real estate of the testator must be deemed personal estate under the doctrine of equitable conversion ; and upon this question they cite Dodge v. Pond (23 N. Y., 69); Hatch v. Bassett (52 id., 359); and Fisher v. Banta (66 id., 468); but this also is a question upon which the parties interested in the estate are entitled to be heard either by themselves or their representatives, and it is claimed that they are not precluded from contesting that question by the fact that Mrs. Raynor was made a party. We do not feel ourselves at liberty under the decision of Jordan v. Poillon to go any further than to say that these questions are of sufficient importance to impair the value of the real estate sold, by casting a cloud upon the title, or by subjecting the purchaser to the risk of a contest at law.

The result is that the order of the court below must be reversed ■with ten dollars costs and disbursements, and the usual oi’der entered denying the plaintiffs motion and relieving the purchaser from his purchase, and directing repayment to him of his deposit and the expenses of searching the title.

Brady, J., concurred in the result.

Present — Dayis, P. J,, and Brady, J.

Order reversed, with ten dollars costs and disbursements.


text:
    HICKSON W. FIELD, Appellant, v. VIRGINIA E. A. GIBSON as Executirx, etc., Respondent.

      Foreign executor — cannot be sued at law in this State — power of a court of equity to compel an accounting by such executor.

    This action was brought to recover rent due on a lease executed by one Gibson, against the defendant, as executrix of the last will and testament of .the said Gibson. The defendant was appointed such executrix by the surrogate of Monmouth county, in the State of New Jersey, and, as such executrix, had taken possession of the premises so leased to the said Gibson.

      Held, that the courts of this State had no jurisdiction of an action at law against a foreign executrix, and that the action could not be maintained.

      Quwre, as to whether if the complaint had contained appropriate averments, the action could have been maintained as one in equity for an accounting.
    Appeal from order of the Special Term sustaining a demurrer to the complaint, and from a judgment entered thereon dismissing the complaint.
    The action was brought to recover from the defendant, as executrix of the last will and testament of Richard P. Gibson, deceased, the rent of certain premises in the city of New York which Gibson held under a lease for a term of years at the time oí' his death.
    The lease was of the stores underneath what is known as the Hotel St. Germain, in the city of New York, and was for the term of five years from May 1, 1873, at the yearly rent or sum of $12,000, the rent to be paid in equal quarter-yearly payments on the first days of August, November, February and May, in each year. The testator, Richard P. Gibson, entered into the possession of the demised premises and was possessed thereof at the time of his death. He died in the month of February, 1875, leaving a will appointing the defendant the sole executrix thereof. Letters testamentary were granted to the defendant, in the State of New Jersey, on the 16th day of March, 1875. As such executrix, the defendant took possession of and occupied the premises under the above-mentioned lease. On February 1, 1878, there was owing to the plaintiff $3,000 for the rent due on that day, but no part thereof has been paid, except the sum of $2,500, leaving a balance of $500 due. On or about the 1st day of November, 1875, the plaintiff and defendant had an accounting as to the rent then due to the plaintiff up to November 1, 1875, and it was then and there agreed between them that there was then due to the plaintiff from the defendant at least the sum of $1,000. At the request of the defendant, the plaintiff agreed to forego the sum of $500 of said admitted indebtedness, and the defendant agreed to pay the balance thereof, but has failed so to do, except that she has paid the sum of $325 on account thereof, leaving the sum of $175 still due to this plaintiff on account of the rent of these premises up to November 1, 1875.
    The defendant demurred on the ground that this court had no jurisdiction of the defendant as executrix, nor of the cause of action against the defendant as executrix.

      JacJeson & Henry, for the appellant.
    The courts of this State have jurisdiction over a foreign executor where he has property or assets belonging to the estate within this State. (Qulick v. Gulick, 21 How. Kep., 22; 8. O., 33 Barb., 92; In re Webb, 11 Hun, 124; Campbell v. Tousey, 7 Cow., 67.)

      Hailey & Perry, for the respondent.
    Since the office of executor de son tort has been abolished by statute, an ordinary action at law cannot be maintained in this State against a foreign executor. (3 E. S., 449, § 17;e 16 N. Y., 336; 9 id., 149; 16 Barb., 544; 6 id., 429; 2 id., 172; 3 Barb. Ch., 479.) In this case it does not appear by the complaint that the defendant has ever been in possession of any of the assets of the testator within this State, and even if it had been so alleged she could not be made liable in a court of law. (Vermilyea v. Beatty, 6 Barb., 429; 2 Kent, 431, note c; 7 Cow., 64; 3 E. S., 449, § 17; 2 Hill, 185; Will, on Ex.; Metcalfe. Clark, 41 Barb., 45.) It is now well settled that an executor or administrator, appointed in another State, has not, as such, any authority beyond the sovereignty, by virtue of whose laws he was appointed. (1 Johns. Ch., 153; 7 id., 45; 10 Paige, 549; 20 N. Y., 103.) A foreign executor is responsible for the assets which are in his possession within this State, no matter where they may have been received ; but they cannot be recovered in an action at law. (7 Cow., 64; 7 Paige, 239; Gulick v. Gulick, 33 Barb., 92.) An action will not lie against an executor or administrator in his official capacity in the courts of another State or county other than that from which he derives his authority to act. (Vermilyeav. Beatty, 6 Barb., 429; Smith v. Webb, 1 id., 231; Leonard v. Putnam, 51 N. H., 247; S. O., 12 Am. Rep., 106; Jackson v. Johnson, 34 Ga., 511; Story on Conflict of Laws, \ 513; See Wait’s Actions and Defences, vol. 3, p. 249, § 1.)
   Davis, P. J.:

The respondent having taken possession of the property held by her testator, without being appointed executrix under the laws of this State, could at common law be sued as executrix de son tort, as was held in Campbell v. Tousey (7 Cow., 64).

The Revised Statutes, however, abolished executors de son tort (2 R. S., 449, § .17), and after such abolition no action could be maintained against' any person in the character of executor de son tort.

It is a conceded and well settled general rule that an action at law as distinguished from an action in equity, canhot be maintained in this State against a foreign executor or administrator; but where such executor or administrator has come into this State bringing assets of the estate, or has taken out letters of administration in this Stat^ in respect of assets located here, he may be proceeded against in a proper action brought in equity to compel an accounting for such assets. This is not such a suit. It is an action brought to recover specific sums of money as rent duo upon a lease executed by the testator of the executrix, founded either upon the lease itself, or upon the use and occupation of the premises by the respondent; and it is brought against her wholly in her representative capacity. If it were practicable to treat the complaint as one against the defendant in her individual capacity, by rejecting the averments in relation to her testator and the lease to him, and her siiccessic as executrix, the demurrer might be overruled; -but it is not.

In the court below Mr. Justice VaN Vorst delivered the following opinion:

“ This is an action for the recovery of rent due by the terms of a lease. The defendant is prosecuted as executrix of the last will and testament of Richard' P. Gibson, deceased, who in his life-time executed the lease under which the rent accrued. The complaint alleges that the defendant, by an order or determination of the surrogate of Monmouth county, in the State -of New Jersey, duly made, was, on the 16th day of March, 1875, appointed and now is the executrix of the will of the deceased Richard P. Gibson, and as such took possession of the premises which plaintiff had leased to the decedent.

It is a general rule of law that foreign executors are not recognized in their official capacity by domestic courts of law, and cannot be sued therein as such. (Campbell v. Tousey, 7 Cow., 64; Vermilya v. Beatty, 6 Barb., 429; 2 Kent. Com., 432, note c; Leonard v. Putnam, 51 N. H., 247; Metcalf v. Clark, 41 Barb., 45.)

I am referred by the learned counsel for the plaintiff to Gulick v. Gulick (33 Barb., 92) as an authority which sustains this action. But it is to be borne in mind that this action is at law to recover upon ah obligation of. the testator; no equitable relief is sought, but a money judgment only is demanded.

Gulick v. Gulick was in equity, in which the defendants were asked to account and pay the assets of certain property which had been received and converted. The property had been brought within this jurisdiction.

Bookes, J., in Metcalf v. Clark (supra), in alluding to Gulich v. Gulich, notices the fact that it was an action in equity. Actions in equity have been entertained within this jurisdiction against foreign executors who have brought or had in this State property of the testator to prevent, upon proper allegations, its waste, and secure its application to the payment of the debts of the testator, according to the law of the State, whence the exccu-tors derived their authority. This has been allowed to prevent a total failure of justice. (Brown v. Brown, 1 Barb. Ch., 189; McNamara v. Dwyer, 7 Paige, 239.)

But when it is sought to recover a money judgment only against a foreign executor the creditor should be remitted to the forum which has jurisdiction over him in his representative character.

This court has no such jurisdiction, and there should be judgment for the defendant upon the demurrer, with costs.”

We consider this opinion a sound exposition of the law applicable to the case presented by the complaint, and upon it and the authorities therein'cited we think the order and judgment must be affirmed. If the complaint contained averments by reason of which we could regard it as a bill for an accounting in equity, we might be able to uphold the dction, but for the purposes for which the suit is brought this court has no jurisdiction of the executrix.

Brady and Barrett, JJ., concurred.

Order and judgment affirmed.


author: Davis, P. J. :

text:
    GEORGE B. CONKLIN as Administrator, etc., of SIDNEY S. CONKLIN, Deceased, Appellant, v. ANGELINE CONKLIN, Respondent.

      Burden of proof— upon whom it rests — gift causa mortis from husband to wife — when the mere taking possession thea'eof by the wife does not establish the gift.

    This action was brought by the plaintiff to recover certain bonds, claimed to have been the property of his intestate at the time of his death, which were held by the defendant, and which she had refused to deliver upon the plaintiff’s demand. The answer admitted the plaintiff’s appointment as administrator and that the intestate owned the bonds in his life-time, but averred that prior to his decease they became the property of the defendant by a donatio mm’tis causa, and that she then took and thereafter continuously kept possession of them.

      Held, that the defendant held the affirmative, and that the burden of establishing the alleged gift rested upon her.

      Th.e defendant, who was the widow of the intestate, testified that a few days before his death she took possession of the bonds, and kept continuous possession thereof until after his death, when she deposited them with a friend.

      Held, that this evidence failed to show, as between a husband and his wife, a change of the title to the bonds, or in any legal sense a change of his possession thereof, and was insufficient to establish a gift from the husband to his wife.
    Appeal from a judgment in favor of tile defendant, entered on the report of a referee.

      JErastus F. Brown, for the appellant.

      George, Norris and W. JR. Beach, for the respondent.
   Davis, P. J. :

After the allegations in respect to the death of the plaintiff’s intestate, Sidney S. Conklin, and the issuing of letters of administration, etc., to the plaintiff, the complaint alleges that the said Conklin was the owner in his life-time and at the time of his death,, of certain bonds of the United States, of the value of $6,800 and upwards ; that the defendant claims that said bonds wore given to her by said Conklin in his life-time, and under such claim has taken possession of the same, and that the plaintiff has duly demanded of the defendant the said bonds or-their proceeds, but that the defendant refuses and neglects to deliver the same to him, wherefore he demands judgment. The answer admits the allegations in respect to the death of the intestate and the appointment of the plaintiff as administrator, and admits “ that said Conklin was, in his life-time, the owner of certain bonds of the United States of the value of $6,800 or thereabouts, but she avers that prior to his decease said bonds became the property of the defendant as hereinafter sot forth and were her property at the time of his said decease.” 'The answer then admits the demand of the bonds by the plaintiff and her refusal to deliver them to him. It then, as a separate and distinct defence, alleges-a donatio causa mortis of said bonds to her by the said intestate shortly before his death, and in anticipation thereof; that she then “ took possession thereof and kept the same continuously in her possession until and after the death of the' said intestate, and that they have ever since remained in her possession and are now her property, and have never formed any part of the estate whereof the said intestate died possessed.”

Upon these pleadings the learned referee held that the plaintiff had the affirmative and ivas bound to establish, at least a prima facie title in his intestate to the bonds. We think in this he erred. The admission is distinctly made by the answer that the intestate, in his life-time, was the owner of the bonds, and no claim of title or possession is set up, except by virtue of the alleged donatio causa mortis. This state of the pleadings devolved upon the defendant the burden of establishing the alleged gift. Such gifts are not presumed. ííNemo donare facile presumitur" is a maxim of the law applicable to the case, and where a gift causa mortis is alleged, the presumption being against it, clear proof on the part of the claimant is required. It was said in Grey v. Grey (47 N. Y., 552-556), by Peceham, J., speaking of such a gift, “ it must be established beyond suspicion. So are all the authorities touching that subject. (Walter v. Hodge, 2 Swans. Rep., 97; 2 Kent, 444 [8th ed.] ; Coutant v. Schuyler, 1 Paige, 316.)”

The plaintiff was entitled to stand upon the admission of the answer that the intestate was the OAvner of the bonds in his lifetime. That gave him a prima facie case, because the defendant herself admitted such ownership, and only asserted a right by virtue of the alleged gift. We think it was her duty to have proved the gift, othenvise the plaintiff would be entitled to recover. But the plaintiff gave evidence, under the ruling of the referee, showing that at some time prior to his decease his 'intestate was in the possession of the bonds, exei’cising rights of ownership over them. It was then shown on the part of the defendant, by her own testimony, that the deceased, her husband, died on the 14th of August, 1873; that the bonds.in question had been in her hands ; that they came into her hands on the fifth, sixth or seventh'of August; that she had had continuous possession of thorn ever since that time until she deposited them after the death of her husband with a friend ; that she first took the bonds, and put them in the pocket of her dress, which Avas hanging up in the room, where they remained until she gave them to her friend.

The substance of this testimony was, that a few days before the death of the intestate she had possession of bonds belonging to him, and kept such possession until after his death. The referee gave no effect to the fact that the defendant was the wife of the intestate. He does not seem to have considered that, on the proof given by her, her possession is in law presumed to be that of the husband. She was not competent to establish the alleged gift by her own testimony, because it was a transaction between herself and the deceased, and perhaps was obliged to rest her case upon the mere naked statement that she took possession of the bonds a few days before his • death and had kept such possession. This evidence failed to show a transfer of title. If it would have done so as between strangers, certainly as between the husband and wife it failed to show change of title, or in any legal souse a change of possession. It would be an extremely dangerous rule to hold that the more manual possession of a deceased husband’s property by his widow, at his residence where he died, is prima facie evidence of change of title to her. Such a rule would embarrass the representatives of an estate beyond measure, and would prove of serious detriment to its creditors.

In the case just referred to the learned judge says : “ It is clear that if I own a chattel, not a chose in action, to-day, and next week it is found in another’s possession, the law does not presume a legal transfer of the title to the possessor. But as against me, if title be claimed, he must prove it. Why should any different rule prevail as to a promissory note ? ” And again he says : “ But if any presumption of title or of payment prevail by mere possession, it is only where the possession is free from suspicion. It is not a defence to show that defendant, a member of the family of the deceased, and hence having access to his papers, is found in possession of a note owned by deceased at or about the time of his decease. * * * To establish such a rule would be dangerous. It leads into too great temptation.”

We concur in the good sense of these observations ; for we think nothing would be more injurious to the administration of the law than to permit the mere fact of possession of property shown to have belonged to a deceased person a few days before bis death, by relatives or persons residing in the same family and having access thereto, to be satisfactory or even prima facie evidence of title.

In the case of Bedell v. Carll (33 N. Y., 581), the note of a third party had been indorsed over by the deceased' prior to his death and delivered by him to his daughter, and it was held that these facts established a prima facie title in her." There is nothing in that case to conflict with the views above expressed.

We are of opinion that the case was not properly disposed of by the learned referee, and that the judgment must be reversed and a new trial ordered, with costs to abide the event.

Present — Davis, P. J., Beady and Barrett, JJ.

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


text:
    HORACE WALDO FORSTER, Plaintiff, v. ACTON CIVILL AND OLIVER S. CARTER, Defendants.

      Legacy — when charged upon real estate by a residuary clause.

    The testator by his will bequeathed nine specific legacies, amounting in the aggregate to $57,000. He made no specific devise of any of his real estate, but devised and bequeathed to his wife, “ all the rest, residue and remainder of iny estate, real and personal, whatsoever and wheresoever.”

      Held, that the legacies were charged upon the real estate.
    CONTROVERSY submitted upon admitted facts, under section 1279 of the Code of Civil Procedure.
    The defendant refused to accept a deed of certain lots which they had agree.d to purchase of the plaintiff, on the ground that the title was defective, in that the land was charged with the payment of certain legacies contained in the will of one Alexander C. Poillon, who owned the premises at the time of his death.
    The plaintiff had purchased the lots at a sale under a decree of foreclosure in an action to Avhich the executors and widow and residuary devisee of Alexander C. Poillon. but none of his legatees, were made parties defendants.

      George H Forster, for the plaintiff.
    The will of Alexander C; Poillon does not charge the legacies upon his real estate. {Lupton y. Lupton, 2 Johns. Ch., 623; Reynolds v. Reynolds, 16 N. Y., 257; Myers v. Fddy, 47 Barb., 263; Revan v. Cooper, 72 N. Y., 317; Dunham v. Minard, 4 Paige, 441; iShulter v. Johnson, 38 Barb., 80; Kinnier v. Rogers, 42 N. Y., 431.')

      J. W. Feeter, for the defendants.
    The legacies bequeathed in and by the will of Alexander C. Poillon, deceased, are a charge upon all the real estate of which he died seized. {Hoyt v. Hoyt, 17 Hun, 192; Bevan v. Cooper ', 72 N. Y., 317; Taylor v. Dodd, 58 id., 335; Ragan v. Allen, 14 N. Y. Sup. [7 Hun], 537; Tracy v. Traey, 15 Barb., 503; Flynn y. Gronileen, 9 How. Pr., 214; Lewis v. Darling, 16 How. [U. S.] Rep., 1; Goddard v. Pomeroy, 36 Barb., 546-557.) Said legacies being a charge on said real estate can only cease to be a charge and incumbrance by: (1) payment; (2) release; (3) by judgment in a suit in which said legatees, or their representatives, are made parties. It must, therefore, affirmatively appear that the lien of these legatees against said lots has been discharged or removed. {Jenkins v. Freyer, 4 Paige, 47.) A purchaser taking title through the will is charged with notice, and takes subject to the legacies. {Harris v. Fly, 7 Paige, 421.)
   Davis, P. J.:

The question in this case depends altogether upon the construction to be given to the will of Alexander, C. Poillon. That will bequeaths nine specific legacies, amounting in the aggregate to $57,000. The will contains no specific devise of any of the real estate, but after bequeathing the sevéral legacies to the persons therein respectively named, it proceeds as follows: ‘ ‘ All the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever, I give, devise and bequeath to my beloved wife, Adeline L. Poillon, to have and to hold to her, her heirs and assigns, forever.”

’ The question is, whether this residuary devise and bequest of the rest, residue' and remainder of the testator’s estate, real and personal, whatsoever and wheresoever, operates to charge the several bequests above mentioned upon the real estate, in default of personal property out of which the same can be paid.

The personal property is shown to have been altogether insufficient to pay the testator’s debts, and the several bequests must totally fail unless they are to be regarded as charged upon the real estate. There is nothing in the will by which the words, “ the rest, residue and remainder,” can be taken distributively reddendo singula singulis under the rule laid down by Chancellor Kent in Lupton v. Lupton (2 Johns. Ch., 614), because there is an entire absence of language indicating an intent on the part of the testator that the bequests shall be paid solely out of personal property, and also an absence of any devise of any portion of the real estate from which, under that rule, the words, “rest, residue and remainder,” in respect of real estate, can be held to mean such as is not otherwise devised by the will.

The cases in this State, therefore, very clearly establish that these bequests are a charge upon the real estate, because the language of the will blends the entire estate, both real and personal, into one residue after giving the legacies, and indicates the intention of the testator to be to give, by the residuary clause, only such residue as shall be found to remain after the satisfaction of the previous dispositions of the will. (Taylor v. Dodd, 58 N. Y., 335; Regan v. Allen, 14 N. Y. S. C., 537; Roman Catholic Church v. Wachter, 42 Barb., 44; Shulters v. Johnson, 38 id., 80; Tracy v. Tracy, 15 id., 503.)

The rights of the several legatees named in the will were not cut off by the foreclosure of the mortgage of the United States Life Insurance Company, because they were not made parties to the action, and their interests, whatever they may be, may yet be made the basis of proceedings for redemption against any purchaser under the foreclosure sale.

It follows, therefore, that the plaintiff’s title to the five lots described in the case made is not free from incumbrance, and that the defendant is entitled to judgment according to the stipulation of the submission.

Beady and Bareett, JJ., concurred.

Judgment on the case submitted ordered for the defendant.


text:
    LUMAN S. WOODMANSEE AND ABRAHAM GARSIDE, Appellants, v. AMOS S. ROGERS, Defendant. WEIL BROTHERS, Respondents.

      Motion by the holder of a subsequent lien to vacate an attachment — a levy wider an execution is not an “actual application” on the judginent, within section 682 of the Code of Civil Procedure.

    Where goods, wares and merchandise have been seized under an attachment, it is not sufficient to prevent a person who has acquired a lien thereon after the attachment, from moving to vacate or modify the warrant under section 682 of the Code of Civil Procedure, that a levy has been made upon the said goods, wares and merchandise, under an execution issued on a judgment recovered in the action in which the attachment was issued, unless the said goods have been actually sold, and the proceeds arising therefrom have been applied to the payment of the said judgment.
    Appeal from an order of the Special Term vacating an attachment.

      Otto Homoitz, for the appellants.

      Blumensteil & Hirsch, for the respondents, Weil Brothers.
   Davis, P. J.:

This motion was made by subsequently attaching creditors to vacate a prior attachment of the appellants, both having attached the same property. Section 682 of the Code of Civil Procedure provides that the defendant, or any person who has acquired a lien upon or interest in his property after it was attached, may, at any time before the actual application of the attached property, or the proceeds, to the payment of a judgment recovered in the action, apply to vacate or modify the warrant.

It has been held that a creditor who has obtained and levied a~ subsequent attachment may move, under this section, to vacate a prior attachment. (Steuben County Bank v. Alberger, 18 Alb. Law Jour., 455.) It does not seem to be disputed but that the attachment in the action of the appellants was issued upon an affidavit which was insufficient to uphold it.

The only question presented is, whether there was such an application of the attached property to the payment of the judgment as cuts off the right to make the motion under section 682. The court below held that á sufficient application was not shown. What is shown is in substance as follows : The appellants commenced an action on the 20th of October, 1879, against Moses S. Rogers, and on that day made application to a judge of this court for, and obtained a warrant of attachment against the property of the defendant. Upon that warrant certain goods, wares and merchandise of the defendants were attached on said 20th of October, 1879. On the 22d day of October, 1879, an execution on a judgment in the action which seems to have been recovered as we must assume regularly, was issued and delivered to the sheriff, who on the last named day, as he states in his affidavit, “ did levy upon said property of the defendant, by virtue of said execution, and did apply the same property, heretofore attached as aforesaid, to said execution.”

The moving creditors according to the affidavit of their attorney did on the 2d day of October, 1879, obtain a warrant of attachment against the property of the above named defendant in the Marine Court of the city of New York, and the attorney swears, “that by virtue of said attachment and levy the said Simon Weil and Isaac Weil have acquired a lien upon the property of the defendant after the same was levied upon under a warrant of attachment issued in the above action, on the 20th day of October, 1879, and levied on said day.”

It .is not shown whether the attachment of these creditors was levied before or after the levy on the execution ; that fact, however, is perhaps not important in determining the precise question before us, though it may become so at some future stage of the controversy. As before said, the only question here is whether the levy satisfies the language of the Code. That language it will be observed is, “actual application of the attached property or the proceeds thereof to the payment of a judgment recovered in the action.” It is settled by authority that a levy of an execution upon property is a satisfaction of the judgment sub modo and not absolutely. (Green v. Burke, 23 Wend., 490, 496, and cases there cited.) The property attached in this case is described as goods, wares and merchandise. It does not, therefore, appear to have been something of which the sheriff could have made direct - application to the judgment, but property which must first have been sold, and the proceeds of the sale then applied.

The section of the Code provides for both of these cases : the one of an actual application of the attached property, as of money, and the other of the proceeds thereof. Where the levy, therefore, is of goods, wares and merchandise, the actual application must be of the proceeds thereof at the sale, to prevent the motion.to vacate the attachment. In this case there was nothing more than a levy by the sheriff’ under an execution on the twenty-second of October, for although he states that he did on that day apply the said property heretofore attached as aforesaid' to said execution; yet neither he nor any one else states 'that it or its proceeds was applied to the payment of the judgment. Saying that he had applied the property “ to said execution ” is nothing more than another form of asserting that he had levied under it.

Our conclusion is, that there was no such application as the Code requires, and that the attachment was properly vacated We do not pass upon the question whether the appellants have a right by virtue of a levy of the execution to hold the property, because their rights in that respect may depend upon questions of fact not appearing in the papers.

The order must be affirmed, with ten dollars costs and disbursements. '

Barkett, J., concurred.

Present —Davis, P. J., and Barkett, J.

Order affirmed, with ten dollars costs and disbursements.


text:
    THEODORE F. STRATTON, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Attempt at subornation of perjury — 3 R. S. (6th ed,.), 956, § 8 — the examination of one offered as bail for a ci'iminal is included within.

    Section 8 of 3 Revised Statutes (6th ed.), 956 provides, that “ every person who shall, by the offer of any valuable consideration, attempt unlawfully and corruptly to procure any other to commit willful and corrupt perjury, as a witness, in any cause, matter or proceeding, in or concerning which such other person might, by law, be examined as a witness, shall, upon conviction, be punished by imprisonment in a State prison not exceeding five years.”

      Held, that the examination on oath of a person, offered or offering himself as bail for another person indicted or convicted for crime, as to his qualification as such bail, was an examination taken in a “cause, matter or proceeding’ within the meaning of the said section.

      Held, further, that the person so examined as to his qualifications was a “ witness,” within the meaning of the said section.
    Writ of Error to the Court of General Sessions of the city and county of New York, to review the conviction and sentence of the plaintiff in error for an attempt to procure one Waitzfelder to commit perjury.

      B. E. Valentine, for the plaintiff in error.

      Horace Bussell and B. K. Phelps, for the defendant in error.
   Davis, P. J. :

The prisoner was indicted and convicted under section 8 of part 4, title 4, chapter 1, article 1 of Revised Statutes (3 R. S., 6th ed.), 956, which is in these words : “ Every person who shall, by the offer of any valuable consideration, attempt unlawfully and corruptly to procure any other to commit willful and corrupt perjury as a witness, in any cause, matter or proceeding, in or concerning which such other person might, by law, be examined as a witness, shall, upon conviction, be punished by imprisonment in a state prison not exceeding five years.” Two questions were made upon this section.

First. Whether the examination on oath of a prisoner who offers himself or is offered as bail for another person indicted or convicted for crime, as to his qualifications as such bail, is taken “ in any case, matter or proceedings within the meaning of the section ?

Second. Whether the person so examined as to his own qualifications is a witness within the meaning of the section ?

As to the first of these questions, we have no doubt that the words “ cause, matter or proceeding” are broad enough to include the examination and justification of persons offering themselves as bail in criminal or other cases.

The examination in such case is both a matter, and a proceeding, Avell known and often used in courts of law, in which oaths maybe lawfully administered, and on which perjury may be committed.

More general language could scarcely be adopted to cover all classes of inquiries which may arise in the course of judicial proceedings, and it was the manifest intention we think, of the Legislature to embrace within these words every such matter or proceeding. The sections of the Revised Statutes which precede that above quoted, indicate an intention on the part of the Legislature to punish perjury and subornation of perjury in every case, matter, proceeding or inquiry, in which an oath might be lawfully and properly administered to a witness. And the section above quoted was intended to reach all cases of attempts to induce another to commit the crime of perjury, in any case whatsoever, in which its commission would be a crime. We are, therefore, quite clear that the plaintiff in error was charged by the indictment with an attempt to procure the commission of perjury by another, in a case or proceeding upon which perjury could be lawfully assigned.

In respect to the second question, the word “ witness,” tis used by the statute, was intended to embrace all persons who could be. properly examined on oath upon any inquiry or investigation. Every person offered as bail may be lawfully sworn and examined to prove that he possesses the requisite qualifications, or to show that he does not possess them. The power of the court or judge in that behalf is unquestionable ; and, as to the question to which the examination is directed, the party so offered, or offering himself, has always been regarded as a competent, and generally as a necessary witness. He tenders himself as a surety on behalf of a person charged' with crime, or on behalf of a party to a civil action or proceeding, and upon the question of his sufficiency as a surety he may be, and in any case must be sworn and examined as a witness on behalf of the accused in a criminal case, or on behalf of the party proposing him in any civil action. It would be a perversion of terms to regard him as a principal party who could not be examined because of that relation, under the former strict rules of the common law. He occupies no such position ; and his testimony is entitled to be taken, and must be considered by the court or judge, and it would be error to exclude, or to refuse to permit him to take the oath on the ground of any relation of his own to the inquiry or proceeding.

"We think that there can be no doubt but that both of the questions raised in the court below were properly determined by that court.

The evidence in the case tended to show conspiracy between the prisoner and other persons to induce one 'Waitzfelder to become bail for and'on behalf of one Birch, who was under indictment for the crime of perjury. For procuring bail, the sum of $150 was to be paid, of which Waitzfelder was to have $100, and the other fifty dollars was to be divided equally between the plaintiff in error and two other persons, and it was sought to be arranged by Strat-ton, the plaintiff’ in error, that he and Waitzfelder should divide between them the $100, to be received by the former, and Strat-ton's share of the fifty dollars. A previous attempt to procure Waitzfelder to become bail for a money consideration, it seems, had been made by Stratton, and Waitzfelder on that occasion had exposed the attempt to the district-attorney. The district-attorney, in* a laudable attempt to break up the business familiarly known as “ straw bail,” by which many criminals had been wrested from the hand of justice, arranged with Waitzfelder to advise him of any further attempts that might be made by the plaintiff in error to induce him to become such bail. It does not appear that the plaintiff in error, in posting Waitzfelder as to what was necessary for him to do in order to be received as bail, stated in express terms, that he should swear to a state of facts, which would have constituted perjury ; be told him to “ tell them ” so and so, having reference to the investigation by the district-áttorney as to his qualifications.

The point was made and strenuously urged that this was not sufficient evidence to justify the court in sending the question to the jury whether the attempt was to induce him to commit perjury. We think, however, that'this evidence, together with the other evidence in respect to the previous relations of the parties, was .a fair and proper matter for the consideration of the jury in determining what was intended by the plaintiff in error. It was submitted in a fair and impartial charge by the learned judge to the jury. He instructed them that they must be convinced that there was an attempt to induce "Waitzfelder to commit willful and corrupt perjury by swearing falsely on his examination under oath as bail. We are unable to see that any wrong was done to the plaintiff in error by such submission.

A careful reading of the error book has convinced us of the propriety and justice of the conviction, and we see no ground calling upon an appellate court to interfere with the judgment pronounced upon the plaintiff in error.

The judgment should therefore be affirmed.

Brady and Barrett, JJ., concurred.

Judgment affirmed.


author: Brady, J. :

text:
    LAURA S. TAYLOR and others, Executors, etc., of JAMES B. TAYLOR, Deceased, Plaintiffs, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendant.

      Set-off — when one arising out of the fraud of the assignor maybe interposed as against the assignee — Effect of chapter 304 of 1874 — Presenting claim to the comptroller, before suit.

    Between April 25, 1870, and December 12, 1871, the Transcript Association, under proper employment, did printing- for the county of New York, reasonably worth the sum of §30,956.85, and, under like employment, between May 1, 1871, and January 1, 1872, did printing for the city of New York which was reasonably worth the sum of §13,605.40. The claims were assigned to the plaintiffs in January, 1872.
    In this action', brought against the city of New York to recover the said amounts, the city interposed a set-off, founded on the fact that in the year 1869, and in January, 1870, the said association received from the city sums amounting in the aggregate to §117,419.99 for arrearages for advertising for the city government, and for a claim for advertising for the common council, as adjusted by the comptroller under chapter 853 of 1868, and that in said amount there was a gross overcharge which had been fraudulently presented, passed upon and obtained.

      Held, that the set-off was a proper one, and that the defendant was entitled to interpose it as against the plaintiffs claiming as assignees of the said association.
    That chapter 304 of 1874, imposing upon the city of New York the payment of county charges, transferred to the city all existing equities, set-offs and defenses that could be interposed to such charges either by the city or county at the time it was passed.
    The failure to present a claim to the comptroller of New York city before suit thereon affects the remedy only ; such presentation does not in any way determine the existence of, or create the debt.
    Exceptions ordered to be heard in the first instance at General Term, after a verdict in favor of the defendant directed at the circuit.

      O. D. Adams, for the plaintiffs.

      F. Lynde Stetson, for the defendant.
   Brady, J. :

By a stipulation it was conceded that the Transcript Association, under proper employment, did printing for the county of New York, reasonably worth the sum of $30,956.85, between April 25, 1870, and December 12, 1871; and further, that the association, under like employment, did printing for the city of New York, reasonably worth the sum of $13,605.40, between the 1st of May, 1871, and the 1st of January, 1872.

The city, in response to this claim, interposed a set-off founded upon these facts, namely : That in the year 1869, and in January, 1870, the association received from the city sums aggregating $117,419.99 for arrearages for advertising for the city government, and for a claim for advertising for the common .council, as adjusted by the comptroller, under the Law of 1868, chapter 853, and in which amount there was a gross overcharge fraudulently designed, fraudulently presented, fraudulently passed upon and fraudulently obtained. It does not seem to be seriously contested, if contested at all as a matter of fact, that the overcharges mentioned were made, and that, as against the association itself, the claim which the set-off represents would be recoverable.

The plaintiff’s contention is that, holding by assignment from the Transcript Association, their right to the claim is free from any set-off or right of set-off in the defendants ; that no such impediment attached at the time the assignment was made, and this position is assumed on the concession, for the sake of the argument, that the frauds, complained of were perpetrated. It appears that at the time the printing was done, to recover for which this suit was instituted, these overcharges had been paid, and therefore it would seem if there was any claim existing against the association arising out of them, it was due at the time the assigned claim arose.

There can be no doubt that an action for money had and received could have been maintained on the facts stated against the association, and it is difficult to understand, therefore, why the claim which could thus be prosecuted and in the manner stated is not a good set-off to the demands interposed.

The assignment to the plaintiff was taken subject to existing equities and obligations on the part of the assignor, the association, and therefore taken with all the burthens springing out of either of these elements.

The Code of Procedure (§ 112) provides that, in the case of an assignment of a thing in action, the action of the assignee shall be without prejudice to any set-off or other defence existing at the time of or before notice of the assignment. And the provisions of the Revised Statutes (vol. 2, p. 354) do not contain anything which inhibits the use of the defendant’s claim as a set-off, because it is founded upon an implied contract; it is due to the defendants as the original payees ; it is capable of being ascertained by a simple calculation, and had not ceased to exist or to belong to the defendants at the time of the beginning of this action. The fifth subdivision of section 18 .of the Revised Statutes, declaring that the set-off can be allowed only in actions founded upon demands which could themselves be the subject of set-off according to law, does not interfere with the right of set-off on behalf of the defendants, because this is an action upon a demand which could be set-off by the association if an action were brought against it to recover the amount alleged to be due. Of course, the extent of the set-off must in this case be limited to the amount of the assigned demand. (Martin v. Kunzmuller, 37 N. Y., 397.)

The plaintiffs, under the second point in the brief submitted, have presented what seems to be the chief theory upon which they rely. They say that their claim by assignment from the Transcript Association is free and clear of any set-off or right of set-off, and that no such right had attached when the assignment was made, because in January, 1872, when the assignment was made, no suit could have been maintained by the association or by either the city and county, and that if the city and county each sued the association on the claims urged as sets-off in this action for money had and received, the association could not have set-off its respective claims in these suits.

I must admit that I do not clearly understand what is meant by these several propositions. I think that the proposition in reference to the right to maintain an action by the association against the city and county rests on the fact that the claim had not at that time been presented to the city. But why the city and county could not at that time have sued the association on the claims urged as set-offs in this action I do not understand. It may be that the plaintiffs mean by this statement that in January, 1872, when the assignments were made, no suit could have been' maintained by the association either against the city or county, because no demand had bfeen made. But its claim was a county charge, or in part a county charge only, and there did not exist at that time the statute which was passed in 1874 (chapter 304) consolidating the governments of the city and charging upon the city the debts of the county.

If any claim had been presented to the board of supervisors against the county it would have béen the right of that body in adjusting it to take into consideration the. overcharge which had been paid, and to have protected the county in that way. If any part of the claim had been urged against the city the same right would have existed. The act of consolidation under which this actiou was brought, in imposing, upon the city the payment of county charges, did not deprive the county of any defence or objection to any claim made which might be interposed, and the Legislature must be presumed to have intended, when the charge was imposed, to have transferred to the city all existing equities and set-offs, and to have preserved to the city and county any and all existing defences. The result of these consideration maintains, therefore, the original proposition made in this opinion, namely: that the assignment to the plaintiffs by the Transcript Association was subject to all existing equities and defences or objections that could be interposed either by the city or county at the time it was made.

The class of cases referred to by the counsel for the appellant, comprising Martin v. Kunzmuller (supra), Myers v. Davis (22 N. Y., 489), Patterson v. Patterson (59 id., 574), have no application to. this case, for the reason that they relate to set-oils which were not in existence at the time the assignments were made, or are illustrative of the rules governing such facts; while in this case, if any set-off existed, it was in esse at the time the assignment was made. The claims were mutual because the obligation to present a demand to the comptroller under the statute referred to affects the remedy only and not the creation of the debt. The object to be obtained by that procedure was to prevent the commencement of actions against the city without affording a reasonable time after a demand made for their payment to provide for them.

The plaintiffs also urged, as a reason why they should not be prejudiced by the overcharges, that the moneys received were paid to Mr. Wilbur personally, and that the association was not chargeable for his mis-deeds. But the evidence shows that he was acting as the president of the association, and that as such he verified the accuracy of the vouchers, and as such he received the money. These facts destroy the assumption of the mere personal or private capacity of Mr. Wilbur, and throw upon the association all the obligations arising from the receipt of the moneys paid under the frauds committed upon the city. It may be justly said that he knew of these overcharges, and that the officers of the association conducting its affairs also knew of them.

If, however, by the strict rules of law the plaintiffs, as the assignees of the demand in suit, are not to be injured by the use of the claims against the association, then the doctrine of equity should be invoked, and the fraudulent acts on the part of the association, amounting to a sum equal to the claim assigned, should be allowed as a defence to this action, either as an equitable set-off or otherwise. It would seem to be an outrage, under all the circumstances disclosed in this case, that the city of New York should be compelled to pay the amount of the plaintiffs’ claim. Before taking the assignment, it was the duty of the assignee to have made the necessary inquiries to ascertain whether the claim was justly due, if he wished to avoid the legal consequences which have been declared in the court below and are sustained by this opinion.

The judgment rendered for the defendant must be affirmed.

Davis, P. J., and INGalls, J., concurred,.

Judgment affirmed.


text:
    THE WASHINGTON HEIGHTS METHODIST EPISCOPAL CHURCH, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent, Impleaded with CHARLES WHELP.

      Tax —not a lien until confirmed — when a lot used for the erection of a church becomes exempt from taxation — action to vacate a tax sale — when maintainable.

    In the fall of 1868, the plaintiff commenced the erection of a church upon a lot in the city of New York, and in December of that year the corner stone thereof was laid. The land was conveyed to it in Juné, 1869. In January, 1869, the initiatory steps to impose a tax upon the land were commenced, but the proceedings were not completed and confirmed until September, 1869.
    The premises having been sold under the tax so levied, held, that the tax did not become a lien upon the lot until the tax list containing it had been confirmed. That the property was exempt from taxation from the time the plaintiff entered into possession of the land and commenced to erect the church.
    That as the tax was not void upon its face the plaintiff might maintain an action to have the sale vacated.
    Appeal from a judgment dismissing the complaint, entered upon the trial of this action by the court without a jury.

      S. JE. Ghurch, for the appellants.

      I). J. Dean, for the respondents.
   Brady, J. :

This action was brought to vacate a sale of the plaintiffs property made by the defendants in 1874, for certain taxes levied in 1869. The premises in question consist of a plot of ground about 100 feet square, situate on Washington Heights of this city, upon which the plaintiff erected a house for public worship, in 1868, 1869 ; and in 1873 or 1874, a parsonage, both which have ever since been used for the purposes for which they were built. The premises were conveyed to the plaintiffs in June, 1869; but the erection of the church was commenced in December, 1868. The taxes for 1869, though the preliminaries were adopted as required by statute in the early part of the year, were not confirmed until the seventeenth of September, of that year, and consequently were irnposed upon the property after the plaintiffs had acquired title by deed. It is contended by the city, that as the title to the property was in the plaintiff’s grantor when the initiatory steps to impose the tax were taken, the exemption claimed by them, under the statute relating to that subject, cannot be enjoyed. This view, assuming the facts stated to be true, is erroneous, because no lien or incumbrance is created by tax until after the list containing it is confirmed. (Barlow v. St. Nicholas Bank, 63 N. Y., 399; Fisher v. The Mayor, etc.. 67 id., 73, 77; Dowdney v. The Mayor, 54 id., 186.)

It is, however, equally erroneous to assert that the plaintiffs had no title to the property m question in January, 1869, because it appears that they were in possession, and had been prior to December, 1868, when the corner-stone was laid, before which time the foundation walls had been constructed. The conveyance given at a subsequent period shows them to have been rightly in possession, and that instrument merges the lessor estate, if one really existed. Any estate in possession, with the right of the use and enjoyment of the land, would entitle the plaintiff to the exemption claimed if a church were erected. (Hebrew Free School Association v. The Mayor, 4 Hun, 446.) It is, in fact, the building erected for public worship which creates and secures the exemption. (1 R. S., 388, sec. 4, sub. 3, Laws 1852, chap. 282.) The erection of a parsonage, in 1873 or 1874, does not affect the question herein considered, because it can have no possible relation to the taxes imposed in 1869. The premises were then used exclusively for a church edifice, which at that time was progressing to completion.

The relief demanded in this action is not to be denied, because there might have been a remedy at law secured by application to correct the tax, inasmuch as the premises have been sold and the tax is not void on its face. (Susquehanna Bank v. The Board of Supervisors of Broome County, 25 N. Y. Rep., 312.)

For these reasons the judgment should be reversed, and .a new trial ordered, with costs to abide the event.

Davis, P. J., and Babbett, J., concurred.

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


text:
    WILLIAM H. POPHAM, Appellant, v. FRANCIS J. BARRETTO, Respondent.

      Judgment — motion to cancel it, after the judgment debtor’s discharge in bankruptcy — when not granted so as to affect its lien on real estate.

    October 22, 1873, the plaintiff recovered a judgment against the defendant, which was docketed in "Westchester county at ten a. m. the following morning. At the time of docketing the judgment the defendant was seized in fee, as a tenant in common, of certain land in said county; at four P. M. of that day a deed was placed on record, dated and purporting to have been executed in August, 1S72, conveying the defendant’s interest therein to his brother. Subsequently the plaintiff brought an action to have the said conveyance set aside as fraudulent. Thereafter, and while the said action was pending, the defendant having procured a discharge in bankruptcy, moved, under section 1268 of the Code of Civil Procedure, to have the said judgment canceled.

      Held, that the judgment should be allowed to stand so far as was necessary for the purpose of enabling the plaintiff to enforce any lien created by it upon any real, estate owned by the defendant at the time it was docketed.
    Appeal from an order made at Special Term canceling a judg ment against tbe defendant, upon a motion made by him, under section 1268 of tbe Code.

      S. F. Qowdry, for tbe appellant.
    IF. II. Peckham, for tbe respondent.
   Brady, J. :

Tbe plaintiff recovered judgment herein on the 22d of October, 1873, and the judgment was docketed in tbe office of tbe clerk of tbe county of Westchester on tbe day following, at ten o’clock a. M. At the time of such docketing tbe defendant was seized in fee as tenant in common with his brothers and sisters of a tract of land in Westchester county. On the same day, at four o’clock p. ar., a conveyance was put on record, dated and purporting to have been executed by the judgment debtor in August, 1872, conveying his interest to his brother, Henry C. Barretto.

There are other incidents in reference to this interest, but it is not necessary for the purpose of disposing of this appeal to make any particular statement of them.

After the judgment was obtained the defendant was discharged by proceedings in bankruptcy, duly taken, from the payment of his debts, and upon that discharge applied for the cancellation of the judgment obtained herein, which application was granted.

It appears, from the motion papers, that the plaintiff commenced an action in this court against the defendant and his wife, and his grantee, Henry C. Barretto, to set aside the conveyance as void, and the action was pending at the time the motion was made herein to cancel the judgment.

.The appellant insists that under the bankruptcy law of the United States (U. S. E. S., § 5075), his judgment is a lien upon the interest described, and still exists, notwithstanding the discharge in bankruptcy obtained by the defendant; and he also insists that if the judgment be canceled he has no means of enforcing that lien. The section mentioned provides that when a creditor has a mortgage or pledge of real or personal property, or a lien thereon for securing. the payment of a debt owing to him, he shall be deemed a creditor ouly for the balance of the debt, after deducting the value of the property.

It is quite apparent, from the phraseology of the whole section, that a lien upon any property of the debtor acquired by judgment should exist until it was enforced, eitjhér by proceedings on behalf of the judgment creditor, or by'an arrangement between himself and the assignee in bankruptcy, for which provision seems to be made in the section mentioned.

There can be no doubt that judgments, where the bankrupt has real estate to which they apply, are liens within the section referred to, and that, so far as it is necessary to preserve them to enforce the lien, they are preserved under the bankrupt law, and the decisions relating to the subject. (See Bump’s Law of Bankruptcy [10th eel.], 610-760.)

The order should be so far modified as to provide that the judgment should-be allowed to stand, for the purpose of enforcing any lien created by it upon any l’eal estate owned by the bankrupt at the time that .it was docketed in Westchester county, and as so modified, it should be affirmed.

Ordered accordingly, without costs of this appeal to either party.

Davis, P. J., concurred.

Present — Davis, P. J., and Beady, J.

Order modified as directed in opinion, without costs.


author: Brady, J.:

text:
    In the Matter of the Petition of MARY H. MAHAN to Vacate an Assessment, etc.

      Advertisement under a statute, for bids— the p rice to be paid for certain specified kinds of work cannot be prescribed therein.

    Where a statute requires a public officer to advertise for bids for work to be performed he cannot in such advertisement fix an arbitrary price to be paid for certain specified lands of work included in that for which the bids are asked, e. g., he cannot fix four dollars per cubic yard as the price to be paid for all rock excavations.
    Appeal from an order made at Special Term, vacating an assessment for constructing a sewer,in Fifty-sixth street, between Second and Third avenues, in the city of New York.
    By the terms of the advertisement for bids, and of the contract itself, the price to be paid for such rock excavation as might be necessary was fixed and determined, and the competition therefore only extended to the price to be paid for the remainder of the work to be performed.
    The advertisement for bids contained, among others, the following provision: “For rock excavation, where drilling and blasting is necessary, $4 per cubic yard will be allowed, and for removing the same without blasting when necessary for the preservation of the main Avater pipe from injury, the sum of $5 per cubic yard will be allowed ; in each case the measurement to be as provided for in the agreement. The prices to include the removal of the rock excavated from the line of the work, and with the extension of time when rock is encountered, as mentioned in the agreement, are intended to cover all the contingent expenses of rock excavation ; consequently, no other allowance or extension of time on such account will in any case be made.”

      F. Lynde, Stetson, for the city of New York, appellant.

      John O. Shaw, for the petitioner, respondent.
   Brady, J.:

The assessment which the petitioner sought by this proceeding to vacate was confirmed on the 3d of January, 1873. Two grounds of objection were. alleged. First. That the assessment included an unauthorized charge for surveyor’s fees. Second. That it included work done, namely : the excavation of rock for which the price was arbitrarily fixed by the commissioner of public works and was not submitted to competition. It was deemed entirely unnecessary to consider in detail the proposition that the law required the commissioner of public works to advertise for bids for the work contemplated. It is enough to say on this subject that such requisition was indispensable, and that the omission to submit the item of rock excavation for the contemplated competition was a departure from the statute relating to the subject.

In the consideration of this case it was thought that inasmuch as it did not appear that the price allowed for rock excavation by the commissioner of public works was not in excess of what would have been demanded by any contractor, the petitioner did not sustain any injury by the omission mentioned, and was not aggrieved therefore by any substantial error. But reflection upon that theory has resulted in the conviction that it is not sufficient to override the plain terms of the statute.

If the item of rock excavation may be omitted from the contract to be made, by arbitrarily stating an allowance for it, the ■same course may be pursued as to other items, and the advertisement made therefore to cover a few only of the items constituting the whole work to be done. The design of the statute was to secure the accomplishment of the work at the lowest price by subjecting the contract for it to public competition, and was based .'upon motives of public economy, originating in some degree of distrust in the officers to whom the duty of making contracts for the public service was committed, and the conviction that if executed according to its intention would preclude favoritism and jobbing. These views are sustained by the cases of Brady v. The Mayor (20 N. Y., 312); Matter of the Emigrant Industrial Savings Bank (75 id., 395); Moore v. The Mayor (73 id., 238).

The order appealed from is therefore affirmed.

Davis, P. J., concurred.

Present — Davis, P. J., Beady and Ingalls, JJ.

Order affirmed.


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

text:
    In the Matter of the Petition of CATHARINE A. GRUBE to Vacate an Assessment, Etc.

      Flagging of the sidewalk is a “’pavement" within chapters 335 and 757 of 1873.
    The flagging of the sidewalk of a street is a “ pavement,” within the meaning of that term as used in chapters 335 and 757 of 1873. (Davis, P. J., dissenting.)
    Appeal from an order made at Special Term, denying the prayer of the petition to vacate an assessment for paving One Hundredth street from Eighth to Tenth avenues, in the city of New York.

      James A. Beering, for the petitioner, appellant.

      Hugh L. Bole, for the City of New York, respondent
   Brady, J. :

It appears from the proceedings in this matter that the common council in 1863 directed the street to be regulated, graded, curbed, guttered and flagged from Eighth avenue to Broadway. This ordinance was carried into effect, and the cost assessed upon the lots fronting upon the street, including the lots of the petitioner. In June, 1867, the mayor approved the resolution directing the pavement of the street with McAdam pavement. This resolution was carried into, effect, but no assessment was imposed for the incurred expenses. In the year 1874, the street was again regulated, graded, curbed, guttered, and the sidewalks thereof flagged, pursuant to an ordinance and resolution of the common council adopted in August, 1872. The expense of this work was^ assessed in 1876 upon the adjacent property, including the petitioner’s lots. In February, 1875, the common council directed the pavement of the street or roadway with stone block pavement, which was done, and the cost assessed upon the adjacent property including the petitioner’s lots. It is this assessment which the petitioner seeks to vacate. He claims that his application should be granted, because the street having been once paved and the expense thereof paid for by the owners of the adjoining property and by assessment, and the majority of the owners of the front feet on the line of the proposed improvement not having petitioned for the same, the assessment is null and void, according to the act of 1873 (section 22, chapter 757 of the Laws of 1873, amending section 115, chapter 335 of the Laws of 1873). The learned justice in the court below denied the relief sought, upon the ground that the work done under these various ordinances was not a pavement within the purview of the statutes of 1873, the roadway not having been paved, and the work done having been confined to grading, curbing, regulating the street and flagging the sidewalks.

This court, in the Case of Burmeister, endeavored to establish the distinction between flagging of a sidewalk and the pavement of a street, but the views expressed were not accepted by the Court of Appeals, and the conclusions arrived at were disapproved, and our judgment overruled. The result is that flagging is pavement within the principle established by the decisions of that court. (In re Phillips, 60 N. Y., 16; In re Burmeister, 56 How., 416; In re Burke, 62 N. Y., 224.) And, as long as these cases remain undisturbed, the question whether, flagging is a pavement is not open to discusión.

The order appealed from should be reversed.

Barrett, J., concurred.

Davis, P. J.:

I dissent, on the ground that if the Court of Appeals has held that laying a sidewalk is paving a street, under the laws and ordinances of this city, it can only have been done under a great misapprehension of facts, which the court will make haste to correct.

Order reversed.


text:
    In the Matter of the Petition of V. B. DEPIERRIS to Vacate an Assessment, Etc.

      Charter of New York— sect. 20 of chap. 137 of 1870 — The three days’ notice need only "be published, before a vote is taken in the board, in which the resolution originated.

    The provision of section 20 of the chartei' of the city of New York (chap. 137 of1870), to the effect that no vote shall he taken in either hoard of the common council, upon the passage of a resolution or ordinance contemplating any specific improvement, “until after such notice shall have heen published at least three days,” only applies to the passage of the resolution or ordinance in the hoard in which it is originally introduced and not to its subsequent passage in the other hoard.
    Appeal from an order made at Special Term vacating an assessment for paving Twenty-first street, between Sixth and Seventh avenues in the city of New York.

      J. A. Beall, for the City of New York, appellant.

      JP. A. JBargous, for the petitioner, respondent.
   Brady, J.:

The petitioner seeks to vacate the assessment upon his lot on the ground that the proceedings of the common council were not published as required by law. The proof shows that ordinances in reference to the contemplated improvement which had been previously adopted by the board of aldermen, and by a three-fourth vote, was introduced in the board of assistant aldermen on the 8th of April, 1872, and adopted on the eleventh of April the same year ; that the Daily Transcript was at that time the official newspaper, designated pursuant to chapter 574 of the Laws of 1871, and that the ordinance was not published in the Transcript between the 8th and 11th days of April, 1872, but was published on the eleventh of April of the same year.

The provisions of the charter of 1870 as to the publication suggested are contained in section 20, which is as follows :

§ 20: It shall be the duty of the clerks of the respective boards to publish all resolutions and ordinances, and amendments thereof, which shall be introduced or passed, and also the final proceedings, except such parts as may require secrecy; and no vote shall be taken in either board upon the passage of a resolution or an ordinance which shall contemplate any specific improvement, or involve the sale, disposition or appropriation of public property, or the expenditure of public moneys or income therefrom, or levy any tax or assessment until after such notice .shall have been published at least three days ; and whenever any vote shall be taken such resolution or ordinance shall, before the same shall be sent to the other board, or to the mayor, and immediately after the adjournment of the board at which the same shall have been passed, be published, with the yeas and nays, and with the names of the persons voting for and against the same, as part of the proceedings ; and no resolution or ordinance which shall have passed one board shall be acted upon by the other board on the same day.”

The construction of this section seems to be quite obvious. It is that no original vote shall be taken in either board, on the passage of a resolution or ordinance which shall contemplate any specific improvement, until notice of it shall have been published at least three days, and this publication relates to the board originally acting upon it. The language.of the section is “ until after such notice,” and such notice relates to the publication of the resolution or ordinance before its passage in the board first voting upon it. It will be perceived, on reading the section, that no other notice is specified and no other notice suggested. It shall be the duty of the clerks of the respective boards to publish all resolutions and ordinances, and amendments thereof, which shall be introduced or passed, and in regard to certain resolutions and ordinances specified, no vote shall be taken on their passage “until after such notice,” i. e., the publication of the resolution or ordinance introduced. This is made the more apparent as the design of the section, from the further provision that whenever any vote shall be taken, and as an additional requirement to its validity the resolution or ordinance shall be sent to the other board or the mayor and, immediately after the adjournment of the board at which it shall have been passed, be published, with the ayes and nays and the names of the persons voting for and against it, as part of the proceedings, and that no resolution or ordinance which shall have passed one board shall be acted upon by the other board on the same day.

The latter provision prohibits the passage of the ordinance or resolution on the same day, and therefore contemplates the passage on the following day, and in order that it may be so passed requires immediate publication of it in order to carry out the theory of publication. It is impossible to entertain logically the proposition that after the resolution had passed one board it should be published for three' days before the other board could act upon it, in view of the provision that, having passed one board, it should not be acted upon by the other board on the same day.

The object of publication before the introduction of the resolution or ordinance is to advise the public of the project in view, in the first instance, in order that any objections against it may be presented, either by direct interviews with the members of the board in which it is to be introduced, or by written communication, or by comments of the public press. The statute in regard to the three days’ publication of notice- is directed, therefore, to the inception of the improvement contemplated, and the other publication, namely, after its passage is to prevent too rapid legislation, and, by the delay for publication, to afford some opportunity to the members constituting the other board to examine, or to understand, or both, the features, extent and effect of the ordinance.

The chief object of this element of the charter of 1870, as said in The Matter of Conway (62 N. Y., 504), was to prevent the adoption of ordinances until they had been published for at least three days. For these reasons, we think that the publication on the eleventh, and prior to the passage of the ordinance by the board of assistant aldermen, was a compliance with the statute, and, consequently, the ordinance was valid. The order appealed from must therefore be reversed. *

Davis, P. J., and Barrett, J., concurred.

Order reversed.