text:
    SAMUEL E. WILLIAMSON, Trustee under Will of M. B SCOTT, Deceased, Respondent and Appellant, v. THOMAS F. MASON, FRANCIS B. WALLACE, JOHN F. PHILLIPS, Appellants, and THE ATLANTIC NATIONAL BANK, Appellant and Respondent, and others, Respondents.

      National bank — powers of casMm' of — when bank bound by acts of.

    The plaintiff, who held certain shares of stock as trustee, kept ,an account with the Atlantic National Bank. These shares he placed in the hands of the cashier of the hank, with the knowledge and approval of its president to he sold when he should direct, the proceeds to be placed to his credit. It had previously been customary for the officers of the hank to receive ■ stocks and bonds to be sold for him in that way.
    Subsequently the cashier transferred the shares to his own name, as cashier, the plaintiff consenting thereto upon his representing that it was done to facilitate their sale. Thereafter the cashier hypothecated the shares with a broket to secure a loan made for the purposes of his own private speculation. Held, that the hank was liable to the plaintiff for the unauthorized and wrongful act of the cashier.

      Th& United States v. Oity Bank of Columbus (21 How. [U. S.], 356) distinguished.
    A purchaser with notice, except the party guilty of the primary fraud, will secure a good title to property by obtaining it from a party who had no notice.
    Cross appeals from a judgment entered upon tbe trial of tills action by the court without a jury, providing that the jilaintiif recover of the defendants Thomas E. Mason, Francis B. Wallace and John E. Phillips, the sum of $64,190.65, being the value of 466 shares of the capital stock of the Lake Shore and Michigan Southern Railroad Company, and 300 shares of the Cleveland and Pittsburgh Railroad Company, besides costs and an additional allowance.

      The court, in its decision, found that the plaintiff was not entitled to any judgment for damages against the Atlantic National Bank, but that such bank was a proper party to this action. The plaintiff appealed on the ground that the judgment gave no relief against The Atlantic National Bank.
    The Atlantic National Bank appealed, because it was entitled to a judgment in its favor, and to costs.
    The defendants Mason, Wallace and Phillips appealed from the whole and every part of said judgment.
    The facts, as set out in the opinion of Yan Brunt, J., at Special Term, were as follows :
    On or about the 13th of February, 1873, the plaintiff was the owner of 46G shares of the capital stock of the Lake Shore and Michigan Southern Railroad Company, and also of 300 shares of the capital stock of the Cleveland and Pittsburgh Railroad Company, the certificates for which stock stood in the plaintiff’s name. On or about said last-mentioned date, the plaintiff having attached blank powers of attorney to said certificates of stock, authorizing the transfer of the same to the name of F. L. Taintor, cashier (the said Taintor being then cashier of the Atlantic National Bank), deposited the said certificates and powers of attorney with the said Taintor as such cashier, with the view that said stock should thereafter be sold, and the proceeds of such sale be deposited to his credit in his account with said bank; and at the time of such deposit informed the president and cashier of said bank of his said purpose. Afterwards, the plaintiff instructed the said cashier to sell, or cause to be sold, the said stocks at not less than certain specified prices, and to pass the proceeds of such sale to his credit. After-wards, the said Taintor, cashier, caused all the said stocks to be transferred upon the books of said companies, respectively, into his own name, as cashier; and, at the same time, surrendered the said certificates received from the plaintiff, and obtained new certificates to the tenor and effect that he, as cashier, was the owner of the stock mentioned in the several certificates, of which fact he notified-the plaintiff, who assented thereto. Thereafter, on the 27th day of February, 1873, the said Taintor, representing that he was acting for the Atlantic National Bank, borrowed of the defendants, F. B. Wallace & Co., the sum of 850,000, and left -with that firm, aa security for the loan, 450 shares of the stock of the- Michigan Southern Railroad Company, 200 shares of the stock of the Cleveland and Pittsburgh Railroad Company, and some Western Union Telegraph and United States bonds. The loan remaining unpaid, Taintor, as cashier, about the nineteenth day of April, sent to Wallace & Co. 300 shares of the Cleveland and Pittsburgh Railroad Company, and sixteen shares of the Lake Shore and Michigan Southern Railroad stock, receiving in lieu thereof the 200 shares of the Cleveland and Pittsburgh stock, the Western Union Telegraph bonds, and $3,000 of United States government bonds. The said railroad stocks remaining in the hands of Wallace & Co. being those of the plaintiff hereinbefore mentioned. The rate of interest at which the loan of $50,000 was made was about two per cent per month. Wallace & Co. subsequently borrowed of Belmont & Co., and deposited with them the said stock of the plaintiff and some quicksilver mining stock, as collateral security. On or about April twenty-sixth, in consequence of the misappropriation of the funds of the bank, the Atlantic National Bank failed, and Wallace & Co. having been requested by Belmont & Co. to take up this loan of $50,000, applied to the defendant Mason to repay said loan to Belmont & Co., and take up the securities in their hands. That at time of paying said loan to Belmont & Co., the defendant Mason had no knowledge in whose name the said securities stood, and did not have such knowledge until after he had paid his money to Belmont & Co. and received said securities. That, immediately upon examining the same, his attention was called to the fact that they stood in the name of Taintor, cashier, and that they might be some of the securities belonging to the Atlantic National Bank, which Taintor was alleged to have embezzled. Subsequently, Mason gave up to Wallace Co. their quicksilver stock, and, at their request, sold the plaintiff’s stock at public auction, and B. F. Dunning became the purchaser at such sale. On the 30th of April, 1873, while said stock was in the possession of Mason, the plaintiff made a demand upon Mason and Wallace & Co. for the same, and, upon a refusal to deliver the- same, commenced this action for its recovery.

      S. W. Fullerton, for the appellants, Mason, Wallace and Phillips.

      Cha/rles Tracy, for the Atlantic National Bank, appellant and respondent.
    There was no proof connecting the bank with the misappropriation of the stock or the transactions of Taintor complained of by the plaintiff. He was not engaged in the business of the bank when performing those transactions. His authority as cashier was limited, and did not include the transferring of shares of stock. (Watson v. Bennett, 12 Barb., 196, 200; Barrióle v. Austin, 21 id., 211, 212; United States v. City Banle of Columbios, 21 How. [H. S.], 356, 361, 365.) There was nothing before the court to show that Williamson had any right or authority to transfer the shares which stood in his name as trustee. A trustee cannot effectually transfer any of the stocks of his fund unless his trust deed gives him express authority so to do. (Duncan v. Jaudcm, 15 Wall., 165; 8 Blatehf., 130; Shaw v. Spencer, 100 Mass., 382, ,389; Lowry v. Commercial Bank, Taylor, 310; Pollock v, National Ba/nle, 7 N. Y., 271; Bayard v. Farmers and Mechanics' Bank of Philadelphia, 52 Penn., 232.)

      Henry J. Scudder, for the plaintiff, appellant and respondent.
    There is one way, and only one way, in which the defendants, Wallace & Co. and Mason, can defend themselves against the plaintiff’s equity, and that is by the creation of an estoppel. To do this they must show themselves purchasers in good faith for value, without notice of the fraud of Taintor, and without notice of any facta which would have put them on inquiry. ( Weaver v. Ba/rden, 19 N. Y., 286 ; McNeil v. The Tenth Nat. Bk., 16 id., 325; Crocker v. Crocker, 31 id., 507.)
   Daniels, J.:

The object of this action was to set aside and annul the hypothecation of 166 shares of the Lake Shore and Michigan Southern Railroad Company stock, and 300 shares of the Cleveland and Pittsburgh Railroad Company stock. Shares for which these had been substituted had previously been held by the plaintiff as trustee. He had kept two bank accounts with the Atlantic National Bank, which was a banking association, formed under the National bank ing laws of the United States. One of the accounts was with him as executoi1, and the other individually. lie placed the shares in the hands of the cashier of the bank, with the knowledge and approval of the president, at its banking office, for the purpose of being there held until he should direct their sale, and then to be sold, and the proceeds credited on his account. According to hia own evidence, which upon this subject was in no way contradicted, it had been previously customary for the officers of the bank to receive bonds and stock for him, and after selling them, to pass the proceeds to his credit.. After these stocks had been placed in the custody of the cashier, as an officer of the bank, he caused them to be transferred into his own name, for the convenience of selling them, as he represented that act to the plaintiff. And the latter upon that assurance assented to the transfer. Soon afterwards, and on the 27th day of February, 1873, Taintor, the cashier of the bank, borrowed through the defendants Francis B. Wallace and John F. Phillips, who carried on business as brokers, under the name of F. B. Wallace «fe Co., the sum of $50,000, and he delivered to them as security for the loan, the greater portion of these shares of stock. And very soon after that, by a change made of other securities, he delivered to them the residue of the stock held by him, as cashier, for the plaintiff. The loan made by the cashier, Frank S. Taintor, was really made for himself, and the stocks- were hypothecated for its security, without the authority of the plaintiff or of the bank. But for this wrong of the cashier, it was held at the Special Term, the bank itself was not liable, and the complaint as to it was dismissed, but without costs. An appeal was taken from that part of the judgment by the plaintiff, for the reason that the bank was deemed liable for this act of its cashier ; and by the bank, because costs should have been adjudged in its favor.

The determination, so far as it was in favor of the bank, appears to have proceeded upon the authority of the case of The United States v. City Bank of Columbus (21 How., U. S., 356), in which the duties of the cashier of a bank were defined. But the decision upon the case then presented by the facts was not decisive of the one now before the Court. It arose upon a contract for the transfer of $100,000 of the public moneys from New York to New Orleans. And it was held that the cashier of the bank had no authority to make the agreement. In the course of the opinion delivered it was said that the cashier of a bank was “ an executive officer by whom its debts are received and paid, and its securities taken and transferred, and that his acts, to be binding upon a bank, must be done within the ordinary course of his duties. His ordinary duties are to keep all the funds of the bank, its notes, bills and other choses in action, to be used from time to time for the ordinary and extraordinary exigencies of the bank. He usually receives, directly, 01 through the subordinate officers of the bank, all moneys and notes of the bank, delivers up all discounted notes and other securities when they have been paid, draws checks to withdraw the funds of the bank where they have been deposited, and as the executive officer of the bank, transacts most of its business.” And a safe guide as to the authority was considered to be supplied “ by an inquiry into the corporate ability which has been given,” or which the directors of the company can confer upon the officers to act for them. (Id., 364, 365.)

He has been described as the executive officer through whom and by whom the whole moneyed operations of the bank, in paying or receiving debts, or discharging or transferring securities are to be conducted.” (Angell & Ames on Corp. [4th ed.], §§ 299, 300.) And it has been declared “ that the officers of a bank are held out to the public as having authority to act according to the general usage, practice and course of business of such institutions, and that then acts within the scope of such usage, practice and course of business, bind the bank in favor of third persons, having no knowledge to the contrary.” (Story on Agency [4th ed.], § 114.) And within the operation of this general principle, it has been held that a bank will become liable for the misconduct of a notary, selected by its officers to charge parties to negotiable paper transmitted to it for collection. (Walker v. Bank of N. Y., 5 Seld., 582.) Its obligations in that respect extending beyond the mere employment of a competent person, and including a liability for negligence and unskillfulness in the performance of his official acts. (Ayrault v. Pacific Bank, 47 N. Y., 570; 2 Hilliard on Torts, 480, § 9.) The duties to be performed in cases of that description closely resemble those which were required in the sale of the plaintiff’s stocks. In each the intervention of a subordinate was necessary, and the end to be secured was identical, that of placing the proceeds to the credit of a customer of the bank. An authority broad enough for one would seem to be equal to the creation of the obligation required to sustain the liability of the bank for the other.

The national banking law, too, appears to have been framed upon the theory that the institutions formed and existing under it could lawfully exercise the authority necessary for the sale of these stocks. The abstract power of making such sales, it is true, was not conferred upon them. But, it was provided that they might exercise “ all such incidental powers as shall be necessary to cany on the business of banking by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt; by receiving deposits; by buying and selling exchange, coin and bullion; by loaning money on personal security; by obtaining, issuing and circulating notes according to the provisions of this act.” (Yol. 13 [U. S.], Stat. at Large, 101, § 8.) The authority, in terms given, was all that might be incidental to the proper attainment of these specified objects. No discrimination was attempted. But it was intentionally left to be determined, whether the act itself could properly be held to be an incident of the object designed to be secured. And when that should prove to be the fact, it was within the power described, as being conferred. The ultimate object for which the certificates of stock were delivered by the plaintiff in this instance was the increase of his deposit account with the bank. The holding and sale of the shares were simply to contribute to the promotion of that result. They were incidents for the purpose of obtaining that end. And for that reason it was a part of the business of banking, as this institution was allowed to cai’ry it on.

A more extended authority even than that was held to be possessed by national banking institutions in the case of Leuven v. National Bank of Kingston (54 N. Y., 671). That case was not fully reported, but it was stated “ That the business of exchanging government securities was sueh as a national bank, through its officers, could properly and legally engage in, was held in the prevailing opinion, and was concurred in by all.” (Id., 672.) There surely was nothing so peculiar about such a transaction as would allow it to be a proper one if that contemplated in this instance would be improper. The power to exchange, by its agency, securities issued by the government would also include the exchange of a distant customer’s stocks for money for the purpose of increasing his deposits. The bank was undeniably empowered to receive and hold such deposits, and it was allowed to obtain them by the exercise of mere incidental authority appropriate to that end. And the sale which was to be made involved nothing beyond what could be properly performed for that purpose.

By the change in the form of the certificates from the name of the plaintiff as trustee, to that of Taintor as cashier, upon their face they became the apparent property of the bank itself. The fact that the new certificates were issued to him as a cashier was sufficient to invest them with that character. (Bank of State of New York v. Muskingum Bank, 29 N. Y., 619; Shaw v. Spencer, 100 Mass., 382; Bayard v. Farmers and Mechanics’ Bank, 52 Penn., 232; Duncan v. Jandon, 15 Wall., 165.) They were received by the cashier as the fiscal officer of the bank, within the line of his authority, as its agent, to be used in the exercise of a portion of its corporate functions. And the bank became obligated to the plaintiff for their devotion to the purpose intended to be accomplished by means of their delivery. Its agent misappropriated them, and for the wrong perpetuated the law rendered the principal liable to the party who had been despoiled. The liability is a common one, including not only individual employes, but also those of a corporate character whose officers and agents betray the trusts committed to their charge. (Cosgrove v. Ogden, 49 N. Y., 255; Philadelphia and Baltimore Railway Co. v. Quigley, 21 How. [U. S.], 202; Weed v. Panama R. R. Co., 17 N. Y., 362; Bruff v. Mali, 36 id., 200; New Haven R. R. Co. v. Schuyler, 34 id., 30; Blackstock v. N. Y. and Erie R. R. Co., 20 N. Y., 48.) Whether the bank may be liable as for a wrongful conversion, by its cashier, of the plaintiff’s property, or for the non-performance of its agreement to hold and sell the certificates of stock and place the proceeds to his credit on its books, or the failure to fulfill the purposes of the trust for which the certificates were received and held by it, is not now material to be decided. It is sufficient for the present purposes that it did become liable for the misappropriation of the property. The peculiar manner in which the injury should be redressed will, more appropriately form the subject of consideration whenever another trial of this portion of the action shall take place.

The certificates which were disposed of were not negotiable instruments, and for that reason the defendants could only acquire title to them by purchasing them, relying on the fact that they were the property of the bank. (Mechanics’ Bank v. N. Y. and New Haven R. R. Co., 3 Kern., 600; Weaver v. Barden, 49 N. Y., 286.) That they had that appearance is manifest from the fact that they stood in Taintor’s name, as its cashier. And if they had been purchased or received from him in good faith, by Wallace & Co., for value advanced upon them, their title would have been complete against the plaintiff. (Moore v. Metropolitan Bank, 55 N. Y., 41.) But it was held at Special Term that they failed to secure such a title to the certificates of stock in controversy, because they received them under circumstances so suspicious in their nature as to render it their duty to inquire, before they advanced money upon them, whether he was truly acting for the bank, whose officer he was, or for himself, in violation of his duties in that capacity.

If they did receive them in that way then the result deduced legally followed. For Wallace & Co. could not become bona fide holders of the certificates under circumstances involving such a degree of suspicion, as charged them with the duty of making inquiries which they wholly neglected. (Williamson v. Brown, 15 N. Y., 354.)

The point presented, therefore, by their appeal is rather one of fact than of law; and it involves an examination into the evidence for tlie purpose of determining its sufficiency to sustain the conclusion which has been deduced from it by the learned judge before whom it was given by the witnesses. That which was chiefly important upon this subject was given by Taintor and Wallace, who W'ere the persons immediately concerned in the loan of the money and the transfer of the certificates. The latter testified positively to his own good faith in the transaction. But under the circumstances disclosed his evidence was not entitled to be regarded as controlling upon the action of the court, and it was so considered in the decision of the ease. IBs description of the transaction was not unqualifiedly accepted, and this court is not able to say that any error intervened in adopting that view of the case; for it was at variance with the relation given by Taintor, and with certain cogent facts and circumstances appearing and remaining uncontradicted by the leiendants; and it might very well have been found from the evidence of Taintor, that lie applied for and received the loans made upon the security of the certificates for himself individually. Hut as lie was directly contradicted as to this fact by Wallace, it waa not improperly held that the loan was applied for in the name of the bank. As to the terms of the loan and the concomitant circumstances no such conflict was presented. It appeared to be what is known as a loan upon call, for no specified period of time. And it was made upon the agreement that interest should be paid upon it at the rate of seven per cent and such additional sum as Wallace & Co. should be compelled to pay for the use of the money, ■which afterward proved to be about two per cent a month. The bank seems to have been in good credit and no special cause beyond the alleged stringency of the money market was assigned as a reason why it should be willing to consent to the imposition of terms so onerous in their nature. And the force of that was materially diminished by the fact which was shown that a bank borrowing money in that manner, could not ordinarily fail to involve its standing and credit in suspicion by the act.

It also appeared that the cashier had been buying and carrying stocks on margin through the firm of Wallace & Co. as his brokers for several years before, and including the period of this transaction. At the time of it they were carrying Pacific mail stock for him, the price of which was rapidly falling in the market. This decline from the 21st of February, 1873, and, within a short time, extended from seventy-two and seventy per cent down to forty-nine. And on the morning of the day when they made their loan to him he paid them the sum of $10,000 to keep up his margin. From this course of dealing between them and the losses which the decline in prices was entailing upon him, they certainly had reason to believe that Taintor required the money he was willing to submit to severe terms to obtain, to meet his own losses, and not, as he represented, for the convenience of the business of the bank. They certainly must have suspected, what would ordinarily be supposed and has so often proved to be the truth, that the pressure of his straitened circumstances was inducing him to misappropriate what, on its face, appeared to be the property of the bank, in order to relieve the necessities of his situation. The fact is not to be overlooked or divested of its importance that they were experienced operators, and probably familiar with the fate of others whose losses in the stock market had so frequently induced them to hazard the commission of crime by the embezzlement of funds and property committed to their charge, in order to avert what appeared to be impending financial disasters. The operations of the cashier were becoming ominous, and as Wallace & Co. were conversant with the situation of liis affairs they had good reason to believe that he was seeking his own relief, and not that of the bank in whose name he professed to act. This was a subterfuge merely, and as experienced and intelligent dealers it must have been transparently so to them.

After that Taintor made other large payments to them for the purpose of protecting his declining property, and on the 1st of April, 1873, loaned them $30,000, money of the bank, at the rate of simple interest. It was stated that this was designed to be temporary merely, and for that reason chiefly it was considered desirable to allow the loan made by Wallace & Co. to remain as it was and not to be reduced by the loan of the bank as a payment. This may have been the truth, but the excuse is certainly liable to the suspicion that the transaction was given this form because it was believed that Taintor when he borrowed had procured the money for himself instead of the bank.

On the 17th of April, 1873, Wallace & Co. borrowed $50,000 from Belmont & Co. and transferred to them these same certificates of stock by way of security, and on the twenty-sixth the financial losses of Taintor reduced the bank to a state of insolvency and failure. Upon that fact becoming known Belmont & Co. applied to Wallace & C.o. to replace their loan, but instead of doing so themselves they induced the defendant Mason to do it for them. And after he had done so the certificates of stock were sold and they became its purchasers. This, as well as the othercircumstances appearing in the ease, betrays the existence of suspicion on their part that they had acquired an infirm title to the property in controversy, and were conscious óf the necessity of improving it by continuing and preserving the superior rights which Belmont & Co. had probably secured by means of their loan. Throughout, the title of Wallace & Co. was shown to be exceedingly suspicious, so much so that it very justly deprived them of the character of purchasers of these certificates in good faith. Enough was shown to impose upon them the duty of inquiring of some other officer than the defaulting cashier, whether the money applied for by him was really desired to meet the exigencies of the bank, and that at once would have led to the discovery of the fraud he was attempting to commit.

Evidence was given on the part of the plaintiff, by bank officers, showing that loans of' the description of that procured from Wallace & Co. were not usually made to banking institutions, and that, if made on such terms, the knowledge of them would involve the banking corporation making them in discredit and distrust. This was very apparent without evidence, and strictly the evidence which was given to prove it could have been much better excluded. But as it related to a matter of fact that would have been about equally as obvious without it, and no conclusion of the learned judge was in any form based upon any objectionable part of it, the judgment should not be reversed because it was received, even if it could ■ be held to be improper. It is not clear that it was so, but as it evidently did no harm, another trial of thé action cannot be required to rectify the error if it could be held to present one. ■

There was nothing whatever in the case to impeach the title of Behnont & Co. They received the certificates and advanced their money for them to Wallace & Co. without any thing casting suspicion upon the validity of the title they acquired. It is true that the certificates still remained in the name of Taintor, as cashier, but no reason was shown which would have induced the belief, on the part of Belmont & Co., that they had not been so acquired through the intervention of an entirely regular transaction with the bank. The appearances were all that way, and as Belmont & Co. acted upon them in good faith in advancing their money, their title was unimpeachable ; and continued to be so when the defendant Mason advanced the money to them and took up the certificates from them. His title was held bad, because he procured the certificates under circumstances claimed to be equivalent to notice to him of the bad faith of Wallace & Co. But even if that be sustained by the evidence this result will not follow from it, for a purchaser with notice is allowed to protect his title, by proof of the -fact that it was acquired from others holding it Iona fide and without notice. A purchaser with notice will secure a good title by obtaining it from a party wlio had no notice, and may hold the property bought against the equities of a party otherwise entitled to be regarded as the true owner. The only exception to this rule is that which excludes the party guilty of the primary fraud. lie will not be allowed to shield himself against the consequences of 1ns own misconduct by a sale to a 'Iona fide purchaser and a subsequent purchase under him. (1 Story’s Eq. Jur. [12th ed.], 393, 394, §§ 409, 410.) The defend-' ant Mason should have had judgment in his favor. As to him and the Atlantic National Bank the judgment should be reversed and a new trial ordered, with costs to abide the event. But that will not also render another trial of the action as to 'the defendants Wallace and Phillips necessary, for the court, upon an appeal from the judgment, may affirm or reverse it in part, and as to all or any of the parties, and may, when proper, order a new trial. (Code, § 330.) Should the facts, however, which do not now appear, but may be otherwise shown, establish the conclusion that the judgment, so far as it is against them, should be vacated in order to attain substantial justice in the action, they may apply for that relief upon motion supported by affidavits at'Special Term.

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

Judgment reversed, new trial ordered, costs to abide event as to defendants Mason and Atlantic National Bank; in all other respects judgment affirmed.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    In the Matter of HENRY BREWSTER, an Attorney, etc.

      Proceedings to disbar an attorney — how instituted.

    All proceedings to disbar or suspend attorneys, unless brought to the attention of the General Term by the order of some other court sending there for investigation some alleged misconduct or misdemeanor of an attorney, should originate in the action of the General Term itself.
    Attorneys or parties are not at liberty to commence such proceeding by motion and notice.
    Any person who desires such an investigation should, in the first instance, present to the court affidavits, or other authenticated papers, for its examination preliminary to any proceeding.

      Motion noticed at the General Term, In The Matter of Bernstein, cm■ Attorney, etc., requiring the respondent to show cause why his name should not be stricken from the list of attorneys and counselors for certain alleged misconduct.
   Davis, P. J.:

This proceeding was quite irregularly commenced. Unless brought to the notice of the General Term by the order of some other court sending to this court for investigation some alleged misconduct or misdemeanor of an attorney, all proceedings to disbar or suspend attorneys and counselors should originate in the action of the court itself. Attorneys or parties are not at liberty to commence such proceedings by motion and notice. But every person who desires such an investigation should, in the first instance, present to the court affidavits or other authenticated papers for its examination preliminary to any proceeding. (Anonymous, 22 Wend., 656; In re Peterson, 3 Paige, 510 ; In re John Percy, 36 N. Y., 651.)

The court will, in all cases, give careful examination to the charges, and if satisfied of their probable truth, and that they are of sufficient importance to call for answer and investigation, will institute the proceedings of its own motion, in the form proscribed and required formerly by the Revised Statutes, and now by the Code of Civil Procedure. (1 R. S., 109, § 24 et seg.; §§ 67 and 68, Code of Civil Procedure; In re Percy, 36 N. Y., 651; Ex parte Robinson, 19 Wallace, 508.)

In no other way can the reputation of attorneys and counselors be protected from the improper assaults of interested or malicious persons. It is the duty of the court scrupulously to guard against such attacks, and for that reason departures from the correct and safe practice will not bo tolerated.

It is not, however, to be understood from any thing said heroin, that the court will not promptly heed all orders of other tribunals, making to this court reports or charges of misconduct on the part of attorneys or counselors, committed before those tribunals or in proceedings pending before them. Such reports will in all cases receive immediate and careful investigation at the hands of the General Term, as they have always heretofore done.

In this case an attorney gave notice of a motion on behalf of his client, for an order tbat the respondent show cause why an order should not be made striking his name from the roll, for certain alleged acts of misconduct set forth in the papers; and the papers on which the motion is founded, and those made in opposition, have been submitted to the court. The motion ought properly to be dismissed for irregularity.

But we have carefully read all the papers presented by both parties and are fully satisfied that the charges are without foundation. The answering affidavits fully meet, explain and exculpate the respondent from the charges of misconduct, in a manner so satisfactory that we feel it our duty, without considering the irregularity of the proceedings, to dismiss the charges on the merits.

Brady and Daniels, JJ. concurred.

Charges dismissed.


author: Daniels, J.:

text:
    In the Matter of THE WOVEN TAPE SKIRT COMPANY.

      Receiver of a patent right — lohat constitutes an interference with his possession — Contempt of court — what court has jurisdiction.

    The appellant and one Colin were each the assignee of one-sixth of a patent for the manufacture of woven-tape skirts, panniers and bustles, and had an agreement with the owners of the residue by which, for a certain royalty, they had the exclusive right of manufacturing such articles thereunder. Subsequently the rights so secured by them were transferred to a corporation created for the purpose of carrying on business under the said patent, which corporation was subsequently dissolved and said rights vested in a receiver, who was authorized by an order of the court to continue and carry on the business of the corporation.
    The appellant, the former presiding officer of the corporation,thereafter engaged in a similar business, which he carried on in an adjoining store, and continued to manufacture the patented articles, having procured from the patentees their license and consent to his so doing. Held, that as the exclusive right to manufacture the patented articles was vested in the receiver, the acts of the appellant were such an interference with his possession of such rights as constituted a contempt of the court, and that appellant was properly adjudged guilty thereof and punished therefor.
    An action for the infringement of a patent must be brought in the United States Court; but proceedings to punish an interference with the title and possession of a patent right vested in a receiver, may be instituted in the State court, appointing him.

      Appeal by Joseph J. West from an order adjudging him in contempt, for interfering with the rights of a receiver appointed on the dissolution of a manufacturing corporation.

      D. T. Walden, for the appellant.
    To make a person guilty of contempt of court, in such case, there must be an actual interference with or disturbance of the possession of the receiver. (High on Receiver, § 171; Albany City Bk. v. Sohermerhorn, 9 Paige, 372; Same v. Same, 10 id., 2G3.) There is no case in which a party lias been held in contempt for merely claiming a right of property in that of which the receiver has possession,- or the title to it, unless there has been an actual interference with or disturbance of the possession of the receiver. (High on Receivers, .§ 172.) Even if it be conceded that Mr. West made and sold articles which were covered by the letters patent, and the right to sell which was vested in the receiver under the assignment of the two-sixths interest and the agreement, it is submitted that such act is in no way a disturbance of or interference with the possession of the receiver. The violation of privileges secured by letters patent is the violation of a right which is entirely distinct from possession. Mr. West may not have had authority to make the articles, but that involved the question of right and authority as between him. and the patentees or owners of the letters patent. The determination of the rights of parties under letters patent belongs exclusively to the federal courts, and this court has not jurisdiction to restrain the infringement of a patent-right. (Dudley v. Mayhew, 3 N. Y., 14; Ilovey v. Rubber Tip Pencil Co., 57 id., 119.) The jurisdiction of the Hnited States courts is exclusive in all cases arising under the patent-right or copyright laws of the Hnited States. (H. S. Rev. Stat., § 711, subd. 5.) The right of the receiver, if any, arises under the patent laws of the Hnited States, and must be pursued in those courts.

      Albert Ca/rdoso, for the respondent.
   Daniels, J.:

The corporation of whose assets the receiver was appointed was engaged in the business of manufacturing woven tape skirts, panniers and bustles, after the plan described in letters patent issued to Doughty and Draper. The appellant and Moritz Cohn were each the assignee of one-sixth of the patent, and they had an agreement with the owners of the residue by which, for a certain royalty, they secured the exclusive right to manufacture such articles under the patent during the period for which it had been extended. The rights so secured by them they assigned and transferred to the corporation, and .they continued to be owned by it to the period of its dissolution and the appointment of the receiver. At that time they were vested in him by virtue of an order made by this court, and he was permitted to continue and carry on the business of the corporation.

The appellant had been the presiding officer of the company, and upon its dissolution engaged in a similar business, which he has since carried on in an adjoining store. In the course and management of that business he has continued the manufacture of articles, the exclusive right to malee and sell which was secured by this patent. Eor the purpose of doing that, he procured the license and consent of the patentees and paid them the same royalty as had been mentioned in the agreement transferred to the company and its receiver. Eor that he was proceeded against, at the receiver’s instance, and was adjudged liable to punishment for contempt.

It is entirely clear that the exclusive right to manufacture the articles patented vested in the receiver. It vas one of the assets oi the company, to which, upon his appointment, he succeeded, and with the other assets, was delivered over to him as far as such a subject-matter was capable of delivery. That vested him with the possession as completely as he could succeed to the possession of rents, debts and choses in action. If it had been property of the latter description, and the president of the company had interfered and collected them, after their transfer to a receiver, no doubt could be entertained that it would be such an interference with his possession as would constitute a contempt of the authority of the court. The right secured under the patent was of a similar nature. It was that of manufacturing articles after the system devised and secured by it. That belonged exclusively to the receiver after his appointment, and he alone was authorized to manufacture articles according to its device, and to the emoluments and profits to be derived from that source. By doing the same thing, as the appellant clearly ■did, lie appropriated a portion of tlie identical privilege which had become vested in the receiver, and, to that extent, interfered with his possession. The patentees conld confer no such right upon him, for by their agreement they had entirely parted with it, as long as the business was carried on and the royalty stipulated for was paid to them, and no suggestion has been made that the agreement with them did not continue to be faithfully performed in both respects. The cases relied upon in support of the appeal taken from the order were clearly distinguishable from the pi’esent one; for the proceedings therein held not to amount to a contempt of the court’s authority, embodied in the receiver’s appointment, were taken to affect other and different interests in the same property, and in no way disturbed or restricted the rights or possession of the receiver. (Albany City Bk. v. Schermerhorn, 9 Paige, 373; S. C., 10 id., 263.) Where that has not been the fact, such an interference with the subject of the receivership as impaired and disturbed the receiver’s control over it, and deprived him of its income, profits and emoluments, has usually been considered and held to involve a contempt of the authority of the court, and to be punishable as such. (Noe v. Gibson, 7 Paige, 513; High on Receivers, §§ 163-166 ; Kerr on Receivers [2d Am. ed.], 177-180.) And the evidence taken in support of the application to punish the appellant, established such an interference with the authority of the receiver in thjg case. To the extent that he made use of the privilege secured by the patent, lie deprived the receiver of it. He so far supplanted him in his possession; and if he could do that, and still successfully shield himself against restraint and punishment, he might, upon the same principle, wholly deprive the receiver of the benefits of his right to make use of the invention. That was vested in him for the advantage of those entitled to share in the distribution of the corporate assets; and it is the duty of the court to protect and maintain him in its preservation until it shall be finally., disposed of under its authority, and that can only be effectually done by proceedings of the nature of those taken against the appellant. An action for an infringement of the patent must, of course, be prosecuted only in the federal courts ; but the proceeding resulting in the order appealed from was in no sense of that nature. Its abject was not to prevent or redress an infringement, but to punish an interference with tbe title and possession of the receiver. That was wholly and exclusively vested in him by virtue of the orders o.t the court; and, in part, it was usurped and resumed by the act of the appellant. He did not infringe upon the right secured by the patent, but excluded the receiver from its exclusive possession and enjoyment; and when that may be shown to be the case, the court may summarily interfere and redress the wrong, even though the subject interfered with may be a patent created by the authority of the United States. The controversy relates to the title and possession of the patent itself, and not to its validity or invalidity as an invention. It is so much property transferred to the custody and safe-keeping of the officers of the court, and the power invoked simply protects him in its possession; and there is nothing in the provision or policy of the laws of the United States which, in any degree, abridges the powers of the State courts in that respect.

The order in this case was right, and it should be affirmed, with ten dollars costs and the disbursements made upon the appeal.

Davis, P. J., concurred.

Present — Davis, P. J., Daniels and Brady, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J".:

text:
    FRANK RIDLON, Plaintiff and Appellant, v. MARK FLANIGAN and others, Defendants.

      Attachment — when sheriff entitled to poundage— Compensation of sheriff under 8 S. S. {5th ed.), 925, 926 — when he is entitled to it.

    When a sheriff attaches a debt due to the defendant, and subsequently, and before a summons has been served, the action is settled, the sheriff is not entitled to poundage upon the amount of the debt.
    The compensation which the officer issuing the attachment is authorized to award to the sheriff, under 8 Bevised Statutes ([5th ed.], 925, 926), for his trouble and expense in taking possession of and preserving the property, only applies to cases in which the sheriff has actually taken possession of and preserved the property attached.

      Appeal by the plaintiffs in this and two other actions, from orders allowing poundage to the sheriff for levying and serving attachments issued against the defendants.

      H. G. Batclieller, for the appellants.

      A. J. Vcmderjooel, for the sheriff of New .York, respondent.
   Daniels, J".:

The property attached was a debt, equal to the several amounts due to the plaintiffs in the actions in which the attachments were issued. After the attachments were levied and before the summons was served the actions were settled. And by the orders appealed from the sheriff was allowed poundage on the amounts stated to be owing to the several plaintiffs. The debt attached was neither collected nor sold, and consequently the sheriff was not entitled to poundage under section 243 of the Code, as that has been construed by the recent decision of the Court of. Appeals in the case of the German Am. Bank v. Morris Run Coal Co. According to that decision a mere settlement of the action after an attachment has been issued and levied, does not entitle the sheriff to charge poundage. But his compensation must be limited to the statutory fees, and that which may be fixed by the officer issuing the attachment for his trouble and expense in taking possession of and preserving the property. (3 R. S. [5th ed.], 925, 926; Code, § 243.)

In the orders from which the appeals have been taken it has been stated that the poundage, ' which seems to have been allowed because of the settlement of the action, was also fixed as a proper compensation for the trouble and expenses of the sheriff in the premises. But as the affidavits used show that the sheriff in no way took possession of the debt attached, he was subjected to no trouble or expense which it was the object of this provision to provide for compensating. The right to the compensation which may be certified by the officer, has been made to depend upon the fact that the sheriff shall have taken possession of and preserved the property attached. It is only for his trouble and expense in doing so that the law has provided a compensation to be fixed by the officer issuing tho attachment. (Code, § 243.) Where no possession has in fact been taken, no right to such compensation can arise.

The orders, therefore, must be modified by excluding the several amounts allowed for poundage. And, as modified, they should be affirmed, but without costs, for the decision referred to, precluding the right of poundage on the ground of settlement, was not made at the time of the decision directing the orders.

Davis, P. J., concurred.

Present — Davis, P. J., Daniels and Brady, JJ.

Order modified as directed in opinion, and affirmed as modified, without costs.


text:
    THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent, v. JOHN E. SPICER and JOHN D. SPICER, Impleaded with CHRISTOPHER F. NORTON and others, Appellants.

      Foreclosure of mortgage — receiver of rents and profits — rights of mortgagee, as against persons holding possesssion underr the mortgagor.

    Where a person, knowing of the mortgage and that the mortgagor could not pay the mortgage, has obtained possession of mortgaged premises under the authority of the mortgagor, the owner of the equity of redemption, he may be required to surrender up such possession, or pay a reasonable rent therefor, to the receiver appointed to collect the rents and profits of the property for the benefit of the mortgagee.
    Appeal from an order directing the defendants John E. Spicer and John D. Spicer and others, to deliver and surrender possession of mortgaged premises to a receiver or accept a lease therefor from him and pay rent to him.from the 2d day of July, 1877, or that a rent for the occupancy of the premises be determined upon a hearing to be had before a referee. The action was brought for the foreclosure of a mortgage on the premises in question.

      Esele Oowen, for the appellants.

      Henry E. Davies, for the respondent.
   Daniels, J.:

The defendant Christopher F. Norton executed and delivered bis bond and mortgage to the plaintiff on the 19th of August, 1874, to secure the payment of the sum of $50,000, on the 1st. of September, 1875, with interest thereon payable on the first days of every month of March and September, after the principal sum became due and on the 13th day of September, 1876, the mortgagor entered into an agreement with the Messrs. Spicer, by which he transferred to them an undivided one-half interest in a large quantity of logs to be got out for him, and agreed to saw them into lumber and Bend one-half of such lumber to them, to secure them for money already advanced and afterwards to be advanced for the purpose of enabling him to obtain such logs under the contracts made by him for that purpose. In case he failed to take the logs to the mill which is situated upon the mortgaged premises or to saw them into lumber, the agreement authorized the Spicers to do that and to use the mill for that purpose and deduct the expense from the moneys otherwise payable to him by them. He did fail to perform the agreement on his part, and the Spicers accordingly, on or about the 20th of June, 1877, took possession of the saw-mill to saw the logs into lumber. While they were in such possession, and on the 2d of July, 1877, an order was made upon affidavits showing that the property mortgaged was an inadequate security for the debt, appointing a receiver of the mortgaged property with power to take possession, make leases and collect the rents accruing for theii occupancy.

On the 3d of July, 1877, and after the appointment of the receiver had been made complete by the filing of his bond, he took ■formal possession of the saw-mill, but on the fifth of that month he was dispossessed again by the Spicers, who, despite his prohibition, continued to use it for the purpose of sawing logs into lumber, under the terms of their agreement with the mortgagor. For these acts, combined with their refusal to allow the receiver to hold and control the possession of the mill, they were required to show cause why they should not be punished for con tempt. And by a direction contained in the order appointing the receiver they were also required to show cause why he should not be continued as receiver during the pendency of the action. They were not punished for the contempt charged, but the appointment of the receiver was continued with the further authority prescribed in the- order from which the appeal has been taken. In support of the appeal it has been claimed that the equities of the Spicers, under their agreement, are superior to those of the plaintiff under its mortgage, and for that reason the order should be reversed. It is not denied but that the court has complete power to appoint a receiver with the authority conferred by the order over the property designated for that purpose. And as the law appears to be settled, so much of a concession was required from the learned counsel who presented the case for the Spicers. For where a party may have obtained possession of mortgaged premises under the authority of the party who has executed the mortgage, and is the owner of the equity of redemption in them, such occupant may be required to surrender up his possession, or pay a reasonable rental for its continuance, during the pendency of the action, to the receiver appointed to collect the rents and profits of the property for the benefit of the creditor under the mortgage. (Reid v. Middleton, 1 Turner & Russ., 455; Astor v. Turner, 2 Barb., 444; Randfield v. Randfield, 7 Weekly Rep., 651; Lloyd v. Mason, 2 Milne & Craig, 487.)

The real point, therefore, to be determined is, whether the plaintiff’s equitable right to the rents and profits of the mill was shown to have been superior to that of the Spicers under their agreement for its use with the mortagagor. -It was taken by them from him, not only after the mortgage which was properly recorded was executed, but in addition to that, after default in the payment of the entire principal secured had been made by the debtor. Of those facts they had, at least, constructive notice from the record. And the agreement contains a clause from which it may be reasonably inferred that they had actual notice of the existence of an incumbrance on the property, under which they might be required to make payment for their contemplated use of the mill, in sawing the logs into lumber. For in that it was provided that “ if in order to secure the use of said mill it shall become necessary to pay off any incumbrance on said mills, or either of them, the said parties of the second part may do so and deduct the amount so paid, and the interest on the same from any sum which might otherwise be due, or coming to the said party of the first part ” under the agreement. This stipulation assumed the existence of some incumbrance on the mill of a superior nature to the liberty given by it to the Spicers. And as no other was shown to exist, under which their possesssion could possibly be endangered, it may be fairly inferred that they intended to refer to the large incumbrance resulting from the plaintiff’s mortgage. It cannot be supposed that such a provision would have been made for any other purpose than to meet the consequences of a contingency which there was some probability might after-wards aiise.

The affidavits used in support of the motion were clearly sufficient to show that the mortgagor was insolvent, and the property itself an inadequate security for the debt at the time when the proceedings for the appointment of the receiver were instituted. And as no particular change seems to have been made in his financial condition between that time and the date of his agreement with the Spicers, it is very probable that he was then also insolvent. The advances he was then and previously had been receiving from them to enable him to obtain his logs and go on with his business, and the peculiar nature of the agreement itself, very decidedly increase that probability. He not only transferred to them an half interest in the logs, but he included the numerous contracts he had made under which they were to be obtained, and the moneys were, in great part, certainly, if not wholly, to be applied to secure the observance of those contracts by the persons with whom they had been made. And in the stipulations contained in the agreement he provided for what might be done, in the event that he himself failed to perform and proved unable to retain the possession of his mills to be used in the promotion of that end. It was such an agreement as only a person in desperate circumstances would be expected to make. He was compelled to rely upon the capital of others for the prosecution of his ordinary affairs, with the conceded probability that in the end that would prove, as it did, ineffectual. Tory good reason exists for believing that the mortgagor was then not only insolvent, but, in addition to that, that the Spicers believed that to be the case, and because of that belief, did what they could for their own future protection. And the circumstance mentioned by Jolm D. Spicer in his affidavit, that he informed Beers that if his 'ffim purchased Morton’s interest in the logs at the sheriff’s sale, ohen advertised, they should require the mill to saw them, and in that event would pay him, as receiver, a reasonable rent for that use of it, tends very much to fortify the correctness of that conclusion. If they had believed their right to its use to be superior to that of the plaintiff under its mortgage, such a proposal would hardly have .been made. They were apparently convinced that they could not properly use the property without the receiver’s permission, and that belief very probably resulted from their knowledge of the existence of this mortgage, their acquaintance with the value of the property described in it, and the .known insolvency of the mortgagor at the time when their agreement was executed.

Under the authorities relied upon by both of the parties, these facts justified the appointment of a receiver of the rents and profits during the pendency of the action. (Howell v. Ripley, 10 Paige, 43; Lofsky v. Maujer, 3 Sand. Ch. [m. p.], 69; Syracuse Bank v. Tallman, 31 Barb., 201.) And they were reasonably well established in the case and the order appealed from was rightly made. The superior equities were with the plaintiff.

The order should therefore be affirmed, with ten dollars costs and the disbursements on the appeal.

Davis, P. J., concurred.

Present — Davis, P. J"., Beady and Daniels, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Dart els, J.:

text:
    ANNIE P. LIVINGSTON, as Executrix of the Estate of PHILIP LIVINGSTON, Deceased, Appellant, v. ASA CURTIS, Respondent.

      Discovery of boohs — when allowed.

    The plaintiff’s testator, shortly before his death, and while in feeble health, had a settlement of his partnership affairs with the defendant. Subsequently he told plaintiff that one important credit, at the least, had been omitted. After his death, plaintiff applied to defendant for, but was denied permission to examine the books. Subsequently she applied for a discovery of the books, in order to enable her to frame her complaint in this action, brought to correct the accounts. Held, that the application should be granted.

      Platt v. Platt (11 Abb. [N. S ' 110) reversed.

      Appear, from an order denying an application for a discovery of partnership books, and from an order denying an application for tha examination of the defendant.

      Adolphus D. Pape, for the appellant.
    The discovery is indispensable to enable the plaintiff to frame her complaint. She is therefore entitled to the relief prayed for. ( Woods v. De Figaniere, 25 IIow., 522 ; Low v. Grmjdon, 14 Abb., 443; Pegram v. Ccwson, 10 id., 340.) Defendant cannot evade this examination and discovery by averring that the plaintiff has no canse of action, and that the partnership books contain no evidence or entries bearing upon his relations with Philip Livingston, when the latter was his partner. The books themselves are the best evidence, and the fact that they are books kept by the defendant for the purpose of recording the partnership transactions is sufficient refutation of such an averment. (Shepmoes v. Bowsson, 52 How. Pr., 405, and cases therein cited; Bailey v. Bean, 5 Barb., 297; McIntyre v. Mancius 16 Johns., 592.)

      Stephen A. Walker, for the respondent.
    To grant a general inspection on the ground of mistake or fraud concerning the dissolution, is to allow all the relief before trial that could be had after judgment in favor of the plaintiff. (Platt v. Platt, 11 Abb. [N. S.], 110, Gen. Term, first district.) An order for inspection is not granted in chancery, under the Revised Statutes or under the Code, merely to discover whether there is a cause of action, but only to substantiate one known to exist. (Jaclding v. Edmunds, 3 E. D. S., 548; Iloyt v. Am. Ex. Bk., 1 Dner, 652; Commercial Bk. v. Burnham, 13 How., 541; see note to 1 Abb. N. C., 335, Glenny v. Stedwell; Elmore v. Hyde, 2 id.,'135.) It is the uniform practice in this district to refuse applications to compel the production of books and papers on the examination of a party before trial. (Hauseman v. Sterling, 61 Barb., 347.)
   Dart els, J.:

The applications made were supported by peculiar circumstances. The plaintiff is the executrix of her deceased husband, who up to a few months previous to his decease was a copartner with the defendant. A settlement was had with him while he was in a feeble condition, in which he afterwards informed the plaintiff that at least one important credit had been omitted. And she believing the information to be correct, after being denied the opportunity to have the books of the firm examined, in order to test the accuracy of her information on the subject, brought this action to correct the settlement. For the purpose of entitling herself to an order allowing the partnership books to be examined, she showed that the settlement with her husband, and the sale of his interest to the defendant took place when his health was feeble, and on that account he was unable to devote critical attention to the business transacted. v lie was for that reason peculiarly hable to be mistaken, and under the circumstances, exceedingly apt to rely upon any assurances which might be given to him, and the persistent opposition of the defendant to an examination of the books and accounts of the firm has a direct tendency to support the conclusion that some mistake of the nature of that alleged, had intervened in the settlement that was made. The defendant denied that such was the case, and may be entirely accurate in that denial. But it is not the object of the law to sanction the trial of these disputes upon the conflicting affidavits of the parties. Another mode has been provided for that purpose, in which the facts are to be exhibited upon which the conclusions must be placed by a disinterested tribunal.

The facts set forth by the plaintiff, if established, would constitute a cause of action; and she believes they can be established by an examination of the partnership books. To them and the memory of the defendant she desires to appeal for evidence to support her claim, and enable her to frame her complaint with the degree of particularity required by the practice of the courts. Without the inspection she has shown her inability to do that, and if that is denied her, the action contemplated and already begun, must necessarily fail. These facts were sufficient to bring her application for the discovery within the provisions made by the established rules of this court upon this subject. The authorities relied upon by the defendant’s counsel, do not require or justify a denial of that application. The only one directly opposed to it is that of Platt v. Platt, (11 Abb. [N. S.], 110), in which it seems to have been held under circumstances somewhat similar to those now presented, that the examination of the books can only be had after judgment. Such an examination can be of no practical benefit to the plaintiff, and the authority is in direct conflict with the rules of the court, which allow it to be ordered for the purpose of enabling the plaintiff to frame her complaint. (Rule 18, sub. 1.)

The order denying the application for an inspection and examination of the partnership boohs should be reversed, and an order directed requiring the boohs and papers of the firm to be produced and subjected to such inspection and examination for such a period of time as will enable'the plaintiff to have them thoroughly examined by any competent person selected by her for that purjiose.

While that may be proceeding, no necessity for the examination of the defendant appears to exist. After it has been had, that may become manifestly proper. For that reason, the order denying that application should be so modified as to permit its renewal hereafter if that shall prove to be necessary.

Roth orders affect substantial rights, and as such are appealable, as the Code upon this subject has been construed by the Court of Appeals. The first order should be reversed, and the second modified as already suggested, but without costs to either party.

Davis, P. J., concurred.

Present — Davis, P. L, Bbady and Daniels, JJ.

Order denying application for discovery of partnership boohs reversed, and order denying application for examination ox defendant modified, as suggested in opinion.


text:
    MARCIA B. O'REILLY, Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, NORVIN GREEN and GEORGE L. DOUGLAS, Appellants.

      Code, § 390 — examination of adverse party.

    Where it appears that the plaintiff has a probable cause of action, and that the examination of the adverse party is necessary to enable him to obtain the information requisite to frame his complaint, he is entitled, under section 390 of the Code, to an order requiring the defendant to appear and submit to an examination as a witness.

      Glenny v. 8tedwe.il (64 N. Y., 120) followed.

      Appeal from an order requiring the defendant Norvin Green to appear and submit to an examination as a witness on behalf, and at the instance of the plaintiff.

      George W. Boren, for the appellants.

      A dolphus D. Pape, for the respondent.
    The affidavit is sufficient. (Glenny v. Steckoell, 64 N. Y., 120 ; S. O., 1 Abb. N. C., 327, with note and case there cited; Bhepmoes v. Bousson, 52 IIow., 40] ; Bailey v. Dean, 5 Barb., 297; McIntyre v. Mcmcius, 16 Johns., 592 ; Me Viekar v. Ketchum, 1 Abb. [N. S.], 452.) The facts sought to be discovered are necessary to aid plaintiff in the prosecution of the case and to frame her complaint, and, even if not absolutely necessary, the examination could be maintained. {Ma/rsh v. Davison, 9 Paige, 580; Vance v. Andrews, 2 Barb. Oh., 370; Bhepmoes v. Bousson, 52 How., 405 ; Mo Vicker v. Ketchum, 1 Abb. [N. S.], 452.) It is an absolute right, and either party is entitled, under the Code, to examine his adversary. (Cook v. Bidwell, 29 How., 483; Green v. Wood, 6 Abb. Pr., 277.) And the rule has been so clearly defined that, where a party calls his adversary as a witness and examines him before trial, he is precluded from cross-examining him any further on the trial, unless some reason or excuse is shown. ( Wilmont v. Meserole, 40 N. Y. Superior Ct. [8 J. & S.], 321.)
   Daniels, J.:

The order in the case was made under section 390 of the Code of Procedure. The affidavit upon which it was made showed that the plaintiff had a probable cause of action in the case, and that the examination of the appellant was necessary to enable her to obtain the requisite information to frame her complaint; and this, although not within the terms of Rule 21 of this court, was sufficient to entitle her to the order, as the section under which it was made has been finally construed. (Glenney v. Stedwell, 64 N. Y., 120.) This authority is controlling upon the appeal taken and the order should therefore be affirmed with ten dollars costs and the disbursements.

Davis, P. J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order affirmed, with ten. dollars costs and disbursements.


author: Daniels, J.

text:
    OLIVER W. BARNES and BENJAMIN T. PIPPEY, Appellants, v. THE MOBILE AND NORTH-WESTERN RAILROAD COMPANY, Respondent.

      Service of summons on foreign corporation— Code, § 134, subd. 1 — what constitutes property within the meaning of. ,
    Apfeal from' an order setting aside a judgment and the service of tlio summons, and also from an order denying a motion to set aside the report of a referee, made upon a reference to ascertain certain facts essential to the disposition of the motion to set aside the judgment and service of the summons. The summons was served upon the director of a foreign corporation in this State, and the service thereof was sought to be sustained on the ground that the corporation had property within this State.
    With reference to this the court at General Term said: “ It appeared that the defendant had its own unissued bonds here to a considerable amount. But it is settled that they were not property within the legal signification of that term. (Coddington v. Gilbert, it N. Y., 489.) It was also shown that it had a map of the State of Alabama, another of its own line, part of a field map, three boobs entitled ‘Mobile and North-western Railroad project,’ three or four pamphlets and some prospectuses in the State. But no value was placed upon them by any one, and it is not probable that any sale could be made of them which would be sufficient to pay its expenses. They were brought here to advance the efforts of the company in disposing of its bonds, and raising money, and except the map of the State, were evidently useless to persons and corporations engaged in other enterprises.

      The Code does not require any specific amount of property to be found in this State to justify an action against a foreign corporation. 33ut it certainly should be something from which the creditor may have some chance of benefit. The object of allowing the action when that appears to be the case is to afford the creditor the means of applying its proceeds to the payment of the demand in suit. And where there is nothing that in any event can be so applied, the case is not within the spirit and intent of this provision. The object of the law was to provide a substantial remedy, and not a mere artifice or excuse, on which an action might literally be made to depend, without any actual benefit to the party prosecuting it., The referee did not consider these articles to be property within the meaning of the term, as the legislature had used'it in this section of the Code. They were of so trifling a character as to justify the conclusion, and for that reason the court properly denied £he motion to set aside the report, and granted that made by the defendant to set aside the service of the summons and the judgment.”

      Hugh L. Cole, for the appellants. William, E. Stiger, for the respondent.
   Opinion by

Daniels, J.

Present — Davis, P. J., Brady and Daniels, JJ.

Orders affirmed.


author: Daniels, J.;

text:
    LORENZO MACINO and VIVALDI MICHAELI, Plaintiffs in Error v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      La/reeny — taking goods from, the owner with intent to steal — though by his delivery, made, however, without intent to pass the title, constitutes lanxeny.

    Writ of error to the Court of General Sessions of the county of New York, to review the conviction of the relator of the crime of grand larceny.
    The prisoners were convicted of larceny, for stealing American and French gold coin, owned and possessed by the complaining witness. It was urged in their behalf, that their offense, if they were proved to have committed any, was that of obtaining the money by false pretenses, and not that of larceny. But the court held, that the evidence was sufficient to justify the submission of the case to the jury as one of larceny. To that view, the counsel for the prisoners excepted, and that exception presents the real point made in their behalf. The complaining witness and the prisoners appeared to be Italians. The complainant was a barber, and by the pursuit of that occupation, had accumulated about $100 ; and wTas in New York to engage and take his passage to Italy. In the vicinity of the shipping office, he encountered the prisoner, Michaeli, who engaged him in conversation. They were soon afterwards joined by the other prisoner, who appeared in the role and garb of a priest. These two persons professed to be also on their way to Italy and represented that they could secure the tickets at a lower rate than from the office, at which it was the intention of the complaining witness to apply. Hacino represented himself to be a priest of the Catholic church, and was fortified in the statement by the other prisoner.
    The former addressed the complaining witness devoutly, and finally confessed him. lie also exhibited his money in a valise and in his pocket, and w£s represented by the other person as being very rich. That other one then said to the witness, “ if you have some money, you may give it to him, because he is very rich.” He testified that he then gave the money, $100 in American gold and fifteen French gold pieces to the small man, and he handed it to the priest. His reason, lie stated, for doing so, was that lie was a good priest, talked to him about God, and wanted to take care of him to Italy, and would speak to God for him. Upon being more closely pressed for his reason in parting with his money, by the cross-examination of the prisoner’s counsel, lie answered : “ I gave him the money because it was surer in his possession, because he had plenty of money with him.” “ I gave it to him for both reasons, because he had money and was going to Italy.” “ lie told me he was a priest.” “ I gave them the money voluntarily because I had confidence he was a good priest.”
    After the money had been secured, the witness was given two twenty-five cent pieces, with which he was sent for segars.' And when he returned with them, the prisoners had disappeared. The court at General Term said : “ The point made ifpon this evidence in favor of the prisoners is that the complaining witness intended, when he handed over the money, to part with the title to it, as well as the- possession of it. And if that be true, then a case of larceny was not presented by the evidence. But the testimony given was clearly susceptible of a different construction. The answer of the witness, that he gave him the money because it was surer in his possession, indicates the existence of a purpose only to make a delivery of its custody. There was no apparent reason in what had transpired, for believing that a gift of the money was designed. But, what was the more rational view of the evidence, and the one adopted by the jury, was that the money was placed in the hands of the person supposed to be a priest, merely to be carried for the owner to Italy. It was certainly capable of supporting that conclusion. And for that reason the court would not have been warranted in taking the case from the consideration of the jury. "Where evidence is the subject of different views, indicating the propriety of conflicting conclusions, it is the province of a jury to determine .which may be the more reasonable, and, therefore, the one to be adopted and followed.
    In that respect, the present case differed entirely from that of Kelly v. People (13 N. Y. S. 0., 509); for there, the evidence unequivocally established the intent of the prosecuting witness to be to part with the title, as well as the possession of his money. And the case made out, was accordingly held to be one of false pretenses, and not one of larceny.
    The fact that the owner may voluntarily deliver over the custody of his property, does not protect the person procuring it from the legal charge of larceny, where it is received by him with a felonious intention. The rule on that subject has been held, that, if, under all the circumstances of the case, it be found that a party has taken goods from the owner though by his delivering, with an intent to steal them, such taking amounts to felony. (Wharton’s Am. Grim. Law [4th ed.], § 1S55.) And that was the conclusion maintained in Weyman v. People (11N. Y- S. C., 511; 62 N. Y., 623.) The cases of People v. McDonald (43 N. Y., 61); JUldevTorand v. People (8 N. Y. S. C., 19; 56 N. Y., 394), and Smith v. People (53 N. Y., Ill) are also to the same effect.”

      Wm F. Howe, for the plaintiff in error. Horace Russell, assistant district attorney, for the defendants in error.
   Opinion by

Daniels, J.;

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

Conviction affirmed.


text:
    DAVID DINKELSPIEL, EDWARD OPPENHEIMER and HENRY HYMAN, Respondents, v. GABRIEL LEVY, an Infant, by BERTHA LEVY, his Guardian ad litem, Appellant.

      Amendment of recitals in order — by what justice it should be made.

    Appeal from an order amending a preceding order, in its recital of papers read upon the hearing of a motion.
    The court at General Term said: “ The application made for the correction of the order was not strictly regular, because it w*as made before a justice who did not hear the motion. But it was in no sense an application to review or modify the decision which had been made in the case. It was simply to enlarge the reciting portion of the order, by inserting a statement of certain record evidence pertinent to the case and probably considered in its disposition. It was probably what the justice deciding the preceding motion would at once have directed on a mere suggestion for that purpose; and, under the circumstances, the order should not be reversed, even if the appeal from it was proper, merely to afford the applicants an opportunity to renew the application before the justice who heard the original motion.
    But as the course taken to secure the correction of the order was not entirely regular, and the practice of applying to one justice to correct the orders directed by another is not to be recommended, the order appealed from should be affirmed without costs.”

      JBenno loewy, for the appellant. Albert Cardoso, for the respondents.
   Opinion by

Daniels, J.;

Davis, P. J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order affirmed, without costs.


author: Davis, J.:

text:
    In the Matter of FRANK HALLER.
    “ Begging for alms or soliciting cha/rity" — what constitutes.

    The relator, a boy about ten years of age, is a cripple, unable to walk and obliged to move on his hands and legs. At the time of his arrest he had been moving from Broadway, on the sidewalk, from John to Wall street, thence down Wall to New street, and had gone some distance in the latter. As he passed along the sidewalk the officer saw him holding out his hands to several persons and receiving money from them, but did not hear him speak to any of them. Seld, that this constituted a “begging for alms or soliciting charity,” within the meaning of the provision of the Kevised Statutes, providing for the arrest of any child who shall “be found begging for alms or soliciting charity from door to door, or in any street, highway or public place of any city or town.”
    "Writs of habeas corpus and of certiorari to review tlie arrest and detention of tbe relator by tbe Society for tbe Prevention of Cruelty to Children. Tbe relator was arrested for violating tbe provisions of the Revised Statutes, forbidding any child from begging for alms or soliciting charity from door to door, or in any street, highway or public place of any city or town. (1 R. S., 633, § 4.)

      Mr. Howe, for tbe petitioner.

      Mr. Delafield, for tbe commissioners.
   Davis, J.:

Tbe papers before me are extremely defective. There is no return to tbe writ of habeas corpus. A warrant of commitment to tbe commissioners of charities and correction accompanies tbe writ, from which it may be assumed that tbe child is in tbe custody of the commissioners, but where be is detained, or in whose particular custody he is, is not shown; and it must be presumed that the commissioners have placed him in some suitable asylum under their control, instead of in the city prison, or in confinement as a criminal. The absence of a proper return, however, prevents the court from taking any action on the writ of habeas corpus until such return shall be made. The papers under the writ of certiora/ri are also defective. That writ is addressed to the county clerk, amongst others, for the purpose, it is supposed, of bringing up the record of conviction of vagrancy, if one has been filed. There is, however, no return from the clerk, and it does not appear, therefore, whether there is any record on file in his office or not. In the absence of such return, it must be presumed that if such record be necessary, it has been filed by the magistrate, because it would be his duty to file it.

The only return to the certiorari is made by the police justice by whom the commitment was made, and the only question made by the counsel for the petitioner upon such return, is, whether there was evidence sufficient to establish that the child was found begging in a street of the city. It appears that Frank Haller is a boy about ten years of age and a cripple, unable to stand, and obliged to move on his hands and legs. At the time of his arrest he had been moving down Broadway on the sidewalk from John street to'Wall street, thence down Wall street to New street, and had gone a short distance down New street when he was stopped and taken into custody by the officer. As he passed along the sidewalk the officei saw him holding out his hand to several persons and receiving-money from them, but he did not hear him speak to any of them. It is claimed that this silent action on his part was not “ begging aims” or “soliciting charity,” within the meaning of the statutes The language of the Revised Statutes is: “ If any child shall be found begging for alms or soliciting charity from door to door or in any street, highway or public place of any city or town,” etc., etc. (1 R. S., 633, § 4; Delafield’s Law- Relating to Children, 90.) The words of section 18 of chapter 11 of the Laws of 1833, are: “ Soliciting charity from door to door, or in any street, highway or public place within said city.” There is nothing in either of these statutes that necessarily requires proof of spoken words to constitute begging ioi alms or soliciting charity, although such words might in many instances be the best evidence of the offense. The act of begging alms cr soliciting charity is the offense condemned by the law, in whatever form that act may be committed, and in many instances words are fa less effective to accomplish the end than simple acts. The deaf and dumb man, real or pretended, who stands with a placard on the breast, and with extended bat or band, is a solicitor of charity as completely as though he spoke to the passers-by; and so is every one whose diseased or crippled condition appeals to sympathy, if he places himself in a position to attract attention, or passes along the street calling attention by sign, act or look to his unhappy condition, and receives from those who observe him the charity which he is obviously seeking. Indeed, the class of silent beggars who exhibit deformities, wounds or injuries which tell plainer than words their needy and helpless condition are the most successful of solicitors for charity, and especially is this so when the object of alms is a young and helpless child.

The intention of the law is not to punish such children, but to protect and provide for them necessities with tender care, and it would be a great mistake to hold that the statute does not include such as, by reason of their appalling misfortunes, need do nothing but silently attract attention to themselves to receive gifts of charity, unasked for in words, but really solicited by far more touching appeals. The poor boy in this case, while creeping through the throng of people on Broadway and "Wall street, and raising his hand to receive their alms, was accomplishing the purpose of begging in a mode far more effective than to have sat at a corner and cried out to every passer-by for charity. It is a mistake, therefore, to suppose that the evidence was not sufficient to justify his being taken into custody and. committed to the public charities of the city. The magistrate was right in finding that he was within the provisions of the statute. His crippled condition brought him within the exception of the statute of 1875 (see Laws of 1875, chap. 173, § 1), and it was proper to place him in the custody of the commissioners of charities and correction. In the present condition of the papers, the court can do nothing else than remand him without prejudice to any further proceeding upon a proper return to the writ of habeas corpus or any further proceeding by certiorari. The court thinks proper, howevei, to suggest that his custody be restored by the commissioners, who are clothed with full discretion, to his parents, who seem anxious to receive him, with suitable admonition that if they suffer him to be again found begging in the streets he will be arrested and permanently placed in a charitable institution.


author: Merwin, J.:

text:
    JOSEPH WIRGES, Appellant, v. LOUIS BAEUERLE, Impleaded with JACOB MEYER, etc., Respondent.

      Alteration of written instrument — when it need not be pleaded as a defense.

    The complaint in this action alleged that a contract was entered into between the plaintiff and defendant, by which the former agreed to build a house upon the land of the latter in accordance with specifications therein named; that the work had been fully performed in accordance therewith, and that a portion of the amount to be paid therefor still remained due and unpaid. The defendant admitted the making of a contract similar to the one alleged in the complaint, but alleged that it contained provisions not therein set forth, and that in , these respects it had not been complied with, and set up a counter-claim for damages. A reply was interposed setting up a general denial.
    Upon the trial the defendant produced what purported to be the contract, which, upon being shown to the plaintiff, was pronounced a forgery. Plaintiff then offered to prove that after the execution of the contract the defendant made material alterations in it and, among others, inserted the provisions which it. was claimed had not been complied with. This evidence was rejected on the ground that the alterations should have been alleged in the complaint or reply. Seld, that this was error, and that the evidence was admissible under the issues raised by the pleadings.
    Appeal from a judgment in favor of defendant Baeuerle, entered upon a nonsuit ordered at tbe Onondaga Circuit in March, 1877.
    The action was on contract for the recovery of a balance of money due for erecting a building in Syracuse. The complaint alleged that, in June. 1875, plaintiff and defendant Jacob Meyer entered into a written contract with defendant Baeuerle to erect and complete, according to the specifications therein named, a building on Baeuerle’s premises, for which work Baeuerle agreed to pay plaintiff and Meyer §1,000; that the contract was signed by all parties and delivered to and held by Baeuerle; that plaintiff and Meyer completed the building according to the specifications; that there have been paid* thereon §155, and the balance was due; that Meyer declined to join as plaintiff, and was, therefore, made defendant. The defendant Baeuerle answered, admitting the making of a contract similar to one alleged in complaint, but containing provisions not therein set forth, and alleged that the work was not properly done, nor completed in certain named particulars, which by the terms of the contract were to be done, and counter-claimed damages. The reply was a general denial.
    On the trial, plaintiff being on the stand as a witness in his own behalf, the counsel of defendant Baeuerle, upon notice from plaintiff, produced a contract which, the witness testified, wTas the original paper that was written on ; that he signed it, and also the other parties, and in answer to the question, “Is that the original contract ? ” replied, “ No, sir; this contract is forged.” The plaintiff then offered to prove that, after the execution of the contract and the entering of the parties upon its performance, the defendant, without the knowledge or consent of the plaintiff, fraudulently altered the contract by inserting certain expressions, naming them, being of a material character, and being matters in regard to which defendant claimed the contract was not performed, and that, aside from such alterations, the contract had been fully performed. To this defendant objected as not admissible under the pleadings, claiming that the alterations should have been set out in the complaint or reply.
    The objection was sustained and plaintiff excepted. The plaintiff also offered to show that they had fully kept and performed all the provisions of the contract as agreed upon by the parties. Same objection, ruling and exception was made. The contract produced was put in evidence; no further evidence was given; a nonsuit was ordered and plaintiff excepted.

      F. W. Himt, for the appellant.

      Fuller <& Vann, for the respondent.
   Merwin, J.:

In this case the plaintiff claimed that after the contract was executed by all the parties and entered upon, and left in the custody of the defendant, the defendant, without the knowledge or consent of plaintiff, fraudulently inserted material alterations going to the right of plaintiff to recover.

Such alterations, of course, wore not a part of the original contract as made between the parties, and which the plaintiff had sued on. The only question in the case is, whether the plaintiff could give proof of such alterations without having alleged them in his complaint or reply.

The complaint alleged a written contract deposited with defendant. The plaintiff is presumed to have known how the original was; he is not presumed to know what alterations the defendant had afterwards inserted. He had a right to suppose it would remain intact. He could not, therefore, be reasonably called upon to invcs tigate as to its condition, or speculate as to its additions or alterations before he brought suit on it. On coming to the trial, the contract being in writing, must itself be produced, or its loss or destruction shown. If lost or destroyed, then its contents could be proved by secondary evidence, although no allegation of loss or destruction was in the complaint. (Board, etc., v. White, 30 Barb., 72; Van Sant. Pl. by Moak, 369.) The contract is in the hands of defendant ; he produces it upon notice, and then plaintiff in effect claims it has been materially altered, in fact a forgery. If its loss or destruction could be proved without allegation in complaint, why not that which is tantamount to such destruction as far as plaintiff’s rights are concerned, especially when it is done, or claimed to have been done, while the paper is in the hands of tho defendant ? Ordinarily, if on the production of an instrument, it appears to have been altered, it is incumbent on the party offering it to explain (1 Greenl. Ev., § 561), but that hardly reaches the present case. It is here a question of pleading. No authorities are cited bearing upon the question. The most analogous principle that now occurs to me is the one applicable to defenses of forgery, which includes material alterations to the party’s injury. Such defenses jp-e admissible under a general denial. (Booth v. Powers, 56 N. Y 22, 29, 33; Boomer v. Koon, 6 Hun, 615; 1 Chit. Pl., 519.) In other-words, the party seeking the benefit of the provisions of an instrument, is expected to be prepared to meet such claims without specific notice.

Here defendant claimed the benefit of certain conditions precedent in a contract in bis hands. Under the above principle be must be prepared to meet -the charge of forgery in regard thereto, although not set up. Had the question arisen on the issue on defendants’ counter-claim, there is no doubt that under tbe general denial of tbe reply, the evidence would have been admissible. I tbink tbe same rule should apply when it became necessary for plaintiff to meet the same questions, in order to get rid of the apparent conditions precedent.

The issue was, what was the contract? The defendant, by altering it, could not evade its obligations, or avoid the action. If plaintiff was bound to allege any alterations, be would have to allege as well those- made the day before the trial as those made the day after he entered on the performance.

The evidence, I think, should have been admitted.

It follows tbe judgment should be reversed and new trial granted, costs to abide event.

Present — Talcott, P. J., Smith and Merwin, JJ.

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


text:
    GEORGE W. PATTERSON, Jr., Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Indictment — Variance—Impeachment of witnesses — evidence tending to — Objections — effect of, when grounds are not stated.

    The plaintiff in error was tried and convicted upon an indictment charging him with obtaining money on false pretenses. The indictment alleged that he was doing business as a private hanker, under the name of the George Washington Bank, and committed the offense in the course of such business by making false representations to depositors as to his credit and solvency. ITpon the trial it appeared that he earned on business under the name of the Geo. Washington Bank. Reid, that the variance was immaterial and should he disregarded.

      Upon, the trial a witness, called in behalf of the people, testified that plaintiff in error told him that he was worth $150,000, and had taken care of his friends before the assignment; and that he tried to sell the witness land so as to protect him. Plaintiff in error having been called as a witness in his own behalf, his counsel offered to show by him that the testimony of the people’s witness was an after-thought on his part, and that he had threatened to give such evidence unless plaintiff in error would pay the amount due to him; which evidence was, against the objection and exception of prisoner’s counsel, excluded. Held, that this was error, that the evidence was admissible to impeach the credit of the first witness.
    Objections to testimony which assign no ground for its rejection will, although they are sustained in the court below, be disregarded on appeal, and a new trial ordered because of the rejection of such testimony, unless it clearly appears that the objections, if properly taken, would have been decisive of the case, and could not have been obviated.
    Writ ok error to tbe Steuben County Court of Sessions, to review tbe conviction of plaintiff in error on an indictment for obtaining money on false pretenses.

      A. P. Larming, for tbe plaintiff in error.

      F. A. Williams, district attorney, for tbe defendant.
   Merwin, J.:

Tbe indictment charged that on tbe 18tb November, 1813, Patterson was a private banker doing business under tbe name of tbe George Washington Bank, and as such private banker, bad received divers moneys on deposit, which be, as such banker, undertook and agreed to pay on demand to tbe depositors at bis banking office at Corning; that at tbe said date and place be made divers false representations to Peter Golgan, with intent to cheat and defraud him ; in substance, that be as such banker and said bank were solvent and bad sufficient available assets to pay all deposits. Prom tbe evidence given on tbe part of the people, it appeared that the title of tbe bank was tbe “Geo. Washington Bank,” and at tbe close of tbe people’s case, tbe defendant below asked tbe court to quash tbe indictment upon the ground of misnomer, being tbe variance between tbe name of tbe bank as alleged and proved. This request was denied and exception taken. It will be observed that this name is not that of a corporation, but Simply a name used by Pattern n in Ms business, and is descriptive thereof. It is not the name of a legal entity. This name was not in issue — did not go to the merits of the offense.

The Revised Statutes provide that no indictment shall be deemed invalid or the trial affected by any misstatement of the defendant’s title, occupation, estate, or degree, when the defendant shall not be misled or prejudiced by such misstatement, or by reason of any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant. (2 R. S., 728, § 52.)

The misstatement in question would seem covered by this statute. But, aside from that, is it a material variance to use the abbreviation Geo.” instead of the full word George ? ” It is a common and well-understood abbreviation. There may be cases where it would be a question of fact for the jury to say whether the meaning was the same, but this is not such a case, nor did the defendant ask to leave it to the jury. In Lewis v. Few (5 Johns., 1, 28), wdiere the allegation was “ U. States,” and the proof “ United States,” the variance was held to be immaterial. In United States v. Hinman (1 Baldwin, 292) the indictment charged a forgery of an order on "the cashier of the corporation of the president and directors of the Bank of the United States,” and the order in evidence was drawn on “ the cashier of the Bank of the United States; ” held, not fatal. The order was alleged to have been signed " Jno. Ilulse,” and that in evidence was signed “ Jna. Ilulse; ” held, matter for the jury to say whether the same person was meant. (See People v. Runkel, 9 Johns., 156; also State v. Kean, 10 N. H., 347; 1 Archbold’s Cr. Pl. and Pr. [8th ed.], 242, 375, and notes.) The refusal to quash the indictment was not error.

Upon the trial a witness, Hutchins, testified on behalf of the people that Patterson told him he was worth $150,000 ; that he had taken care of his friends before the assignment, and tried 'to sell him land so as to protect Mm. Patterson, as a witness on his own behalf, denied these statements, and was then asked whether Hutchins had made threats against Mm, to which evidence the counsel for the people objected.

Defendant’s counsel then offered to show that the evidence of Hutchins was an after-thought on his part, and that he had threatened to give such evidence unless Patterson would pay him, he being a depositor. The court sustained the objection and defendant excepted.

The ground of the objection or ruling was not stated. The proof offered was not of an affirmative character, but went to the credit of Hutchins. Hutchins had testified to what was material on the question of intent. It was, therefore, proper to attack his credit in this way. (1 Greenl. Ev., § 450 ; Newton v. Harris, 2 Seld., 345.)

It does not appear that he had been previously interrogated as to these matters. This should have been done. (Starkie on Ev., 242; Lee v. Chadsey, 3 Abb. Ct. App. Decisions, 47.) This objection was not, however, specifically taken. If taken, it might have been obviated by recalling Hutchins. Not being taken, it should be considered waived. (McDonald v. North, 47 Barb., 530; Levin v. Russell, 42 N. Y., 255.) Objections to testimony, without assigning any ground therefor, will be disregarded, unless it clearly appears that the objection, if properly-made, would have been decisive of the case and could not have been obviated. I think, therefore, this evidence was improperly excluded. Having reached this conclusion, it will not be necessary to consider the other exceptions.

Judgment should be reversed, and case remitted to the Sessions for new trial.

Present — Talcott, P. J., Smith and Merwin, JJ

Judgment and conviction reversed, and proceedings remitted to Steuben Sessions for new trial.