author: Daniels, J7: Beady, J.: Davis, P. J.

text:
    ROBERT DUNN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Sale of lottery policies — what is a sufficient description of the offense — joinder in an indictment of several misdemeanors punishable in diffei'ent waps — a general verdict cannot be rendered upon it.

    Section 2 of chapter 504 of 1851, as amended by chapter 214 of 1855. provides that any person who shall, among other things,. “ sell or vend what are com■monly known as, or are called lottery policies,” shall be taken and held to be a common gambler, and be punished as therein provided.

      Held, that an indictment charging the accused with unlawfully and knowingly vending and selling a certain paper instrument and writing, commonly called a lottery policy, which was then in terms set out, was sufficient; that it was not necessary that the nature of the lottery or the manner in which its objects were to be promoted should be described.
    Where two different misdemeanors, one of which is punishable by fine and imprisonment, and the other by fine only, are set out in different counts of an indictment, it is error for the court to charge the jury that a general verdict may be rendered thereon; and to impose a sentence of Doth fine and imprisonment under a general verdict of guilty so rendered. (Davis, P. J., dissenting.)
    Writ of error to the Court of General Sessions of the city and county of New York, to review the conviction and sentence of the plaintiff in error upon an indictment.

      Peter Mitchell, for the plaintiff in error.

      John McKeon, for the defendants in error.
   Daniels, J7:

The indictment against the prisoner was presented in the Court of General Sessions in January, 1881. It contained five counts. .

The first three appear to have been predicated upon one section of the statute, and the other two under another and different section of the same statute.

By two of the three counts he was charged with unlawfully and knowingly vending, selling, bartering, furnishing and supplying to one Godfrey Q. Leake, and procuring and causing to be procured for him, a certain paper instrument and writing, commonly called a lottery policy, which was then in terms set out. By the second count he was charged with selling to and procuring lottery policies for divers persons whose names were to the jurors unknown, and a more particular description of which was alleged to be unknown to them. It has been objected that these counts were defective because of the omission to describe the nature of the lottery or the manner in which its objects were to be promoted. And the cases of The People v. Taylor (3 Denio, 91), and The People v. Payne (Id., 88), are relied upon as sustaining this position. But as they were decided under the provisions and effect of another statute which the indictment failed to comply with, they are not entitled to be followed as authority in this case. These counts of the indictment were presented under the authority of a statute making it an offense for any person to sell or vend what are commonly known as, or are called lottery policies. (2 R. S. [6th ed.], 920, § 41.) This provision is unqualified and dependent on nothing further than the selling or vending of the policy to create the offense mentioned in it. And these counts of the indictment contained all the facts which by the terms of the statute have been required to constitute the offense. For that reason they are sufficient under the general rule of practice prevailing upon this subject.. ( Wood v. People, 53 N. Y., 511, 514.)

So far as these counts were concerned they each presented a case punishable within the provisions of this section of the statute. ,

The fourth and fifth counts of the indictment also contained all the averments required to create the offenses mentioned in them. But they were presented under the section immediately preceding the one which has already been mentioned. These offenses were distinct and different in their character from the others, arising under independent and disconnected provisions of the statute.

Those averred in the first three counts of the indictment were made punishable by not less than ten days’ hard labor in the penitentiary, or not more than two years’ hard labor in the State prison, and a fine not exceeding the sum of one thousand dollars. "While the offenses mentioned in the fourth and fifth counts of the indictment were punishable alone by a fine, which could not be less than fifty nor more than five hundred dollars. There is nothing in either section of the statute declaring either of these offenses to be a felony, and it results from that omission that tliey are of no higher grade than that of misdemeanors; and if both classes had been made punishable either by fine alone, or, by fine and imprisonment, no objection could be made against including both classes of offenses within the same indictment under the practice existing at the time when it was found by the grand jury, for at that time the law allowed different misdemeanors to be joined in the same indictment. ' (People v. Costello, 1 Denio, 83.) And where the criminal act intended to be charged consists of two or more different degrees dependent upon the same transaction, as it might be made to appear by the evidence, counts alleging those degrees could likewise properly be included in one indictment. (People v. Rynders, 12 Wend., 427; Harman v. Com., 12 Sergt. & Rawle, 69.)

But including these different offenses in this indictment was not sanctioned by either of these authorities, for the crime set forth in the fourth and fifth counts in no manner grew out of or formed any degree of the offenses set forth in the first three counts; and as they were not punishable in the same manner they could not regularly be included in the same indictment under the rule, otherwise, allowing different misdemeanors to be included in the same indictment.

The joinder of these offenses did not, however, necessarily invalidate the entire indictment; but under the practice which has been sanctioned and followed in such cases by the authorities the jury should have been restricted in their power to find a verdict of guilty to one or the other class of these offenses.

That practice was held to be the proper course to pursue in Regina v. Jones (8 Carr. & Payne, 776) and Rex v. Gough (1 Moody & R., 71). An indictment of a similar nature in this respect was considered in the case of the United States v. Stetson (3 Wood & M., 164). But as the verdict of guilty was rendered only upon one count the joinder of the different offenses was considered as presenting no legal obstacle in the way of sustaining the'conviction.

In Regina v. Jones (2 Moody C. C., 94) the conviction was limited to the felony charged in one count of the indictment, and for that reason it was sustained, although by another count the prisoner was also charged with a misdemeanor. In Regina v. Ferguson (6 Cox C. C., 454) the same course was pursued, and that was considered a complete answer to the objection that the indictment included different offenses not punishable alike. The only authority-adverse to this principle which has been found is that of State v. Nelson (14 Richardson, 169). But that is directly in conflict with the preceding decision of the same court made in State v. Montague (2 McCord, 257) as well as with the other authorities already mentioned. In the last case the accused had been tried and convicted upon an indictment of this nature, and that was held to be improper and without the sanction of legal authority.

The same conclusion is sustained by Nowell v. State (50 Ala., 174). But the principle there was clearly misapplied, for the prisoner had been tried only upon one count, the other having previously been nolle grossed.

While, therefore, this indictment was not rendered positively bad by including these different and distinct criminal charges in it, still the accused could not lawfully be placed upon his trial at the same time upon all of them.

When the trial was commenced the fourth count was withdrawn by the public prosecutor, and it then proceeded, upon all the other counts contained in the indictment; and under the allegations contained in them the prisoner was tried at the same time for offenses for which he could.be both fined and imprisoned, and for an offense for which he could not be imprisoned, but the punishment was limited to the imposition of a fine, and that under the authorities was an unlawful proceeding.

When the evidence was closed various objections were presented to it upon which the court was requested to rule for the purpose of defining and declaring the manner in which the case would be submitted to the jury. In concluding the consideration of these dbjeetions it was stated by the judge that the verdict might be on any one or on all four counts of the. indictment, and that the charge would be no different as to the fifth count than the court then intended to give to the jury; and to this latter statement an exception was taken by the prisoner’s counsel. ,

In accordance with this announcement the court did charge the jury that they had the right to convict the defendant under all or any one of the four counts of this indictment. And the jury appear to have followed that exercise of authority by rendering a general verdict of guilty.

Tbe exception, although informally talcen, was applicable to this general direction given by the court. The same strictness in taking exceptions is not required to be observed in criminal as in civil cases. It. is enough that the point shall be brought to the attention of the court, although that may be informally done, to entitle the prisoner to the benefit of the exception where that appears to be well founded in law. This was an erroneous direction, and as the court refused to direct the jury otherwise the exception should be allowed to have the effect of bringing this ruling before the court for examination. As the law stood when the indictment was presented and the trial took place the prisoner could not be tried at the same time for these distinct and differently punishable offenses. But it was the duty of the court to require the jury in their verdict of guilty to limit it either to the last count, or one or all of the first three counts of the indictment. By failing to do that a substantial legal right of the prisoner was violated, for he was tried and convicted of different and distinct offenses which the law had not rendered punishable in the same manner.

After the conviction the defendant was sentenced to imprisonment in the penitentiary at hard labor for the period of six months and fined the sum of $1,000.

The punishment imposed was general in its character, and the fine, while not exceeding the sum limited by the statute, may still very well have related to and included all the offenses for which the verdict had been pronounced.

As there was no discrimination whatever in the sentence this would be the fair construction required to be given to its terms. It appears, therefore, that the prisoner was not only improperly tried but that the error probably extended itself into the punishment imposed upon him by the court.

Neither the judgment in the case nor the conviction can be sustained. They should, therefore, be set aside and a new trial directed when the investigation may be limited to either the first three or the last two counts contained in the indictment.

Beady, J.:

The plaintiff in error was indicted under a statute entitled “ an act more effectually to suppress gambling,” passed in April, 1851 (see laws of that year, chap. 504), and amended by the act of 1855. (See laws of that year, chap. 214.) By section 2 it was provided that if any person, for gambling purposes, should keep or exhibit any gambling table, establishment, device or apparatus; or if any person or persons should be guilty of dealing faro or banking for others to deal .faro, or of acting as lookout or game-keeper for the game of faro, or any other banking game where money or property is dependent on the result; or if any person should sell or ■ vend what are commonly known as, or are called lottery policies, or any writing, card, paper or document in the nature of a bet, wager or insurance upon a drawing or drawn number of any public or private lottery, or if any person should indorse a ticket or other document for the purpose of enabling others to sell or vend lottery policies, he should be taken and held as a common gambler, and upon conviction should be sentenced to not less than ten days’ hard labor in the penitentiary, nor more than two years’ hard labor in the State prison, and be fined in any sum not more than $1,000.

By the first section it was provided that if any person should keep a room, building, arbor, booth, shed, tenement, boat or float to be used or occupied for gambling, or if the owner, superintendent or agent of any room, building, arbor, booth, shed, tenement, boat or float should rent the same to be used or occupied for gambling, he should, on conviction thereof, be fined in any sum not less than fifty nor more than $500.

Three counts of the indictment were adapted to the second section referred to, and the fifth count was • drawn under the first section. The fourth count was abandoned. "'The difference between the two offenses is quite distinct. One is for permitting a room to be used or occupied for gambling, and the other for keeping or exhibiting a table for gambling purposes, etc. The distinction is made between the actual úse of gambling apparatus, etc., by the offender, and his letting or permitting its use by another.

Where the offense charged, therefore, is for selling or vending what are commonly known as lottery policies, or any writing, card, etc., particularly mentioned in the statute, the punishment is entirely different. Under the second section, as we have seen, the punishment could be by imprisonment in the State prison and a fine of $1,000; or it may be by imprisonment in the penitentiary- and a line of not more than $1,000. Whilst under the first section upon conviction the offender can only be fined in a sum not less than fifty nor more than $500, and thus the distinction mentioned is continued.

Upon the commencement of the trial the counsel for the prisoner objected to any evidence being given to sustain the averments in the first count or declaration, assigning the grounds, and amongst others; that the indictment was bad because it contained two separate and distinct offenses charged against the defendant, as would more particularly appear by an examination of the first and fifth counts; the former being punishable by imprisonment in the State prison for a term of two years and a fine of $1,000, whereas the punishment upon conviction on the fifth count was by a fine of not more than $500. This proposition was overruled and an exception taken.

An submitting the case to the jury the learned recorder, immediately after charging the benefit of a doubt in favor of the plaintiff in error, said:

On the other hand, if you have no reasonable doubt as to his guilt, it is your duty,to render a verdict against him on whichever count, or on all the counts of the indictment which have been submitted to you, as you think the evidence warrants.”

The jury rendered a general verdict of guilty, and the plaintiff in ' error was thereupon sentenced to imprisonment in 'the penitentiary at hard labor for six months, and fined in the sum of $1,000.

The counsel for the plaintiff in error requested the court to charge that the jury, if they should believe the plaintiff in error guilty on any count charged in the indictment, and entertained a doubt as to which count they should convict on, should find him guilty of the, lesser offense, which was the fifth count; to which the court responded:

“ I am going to charge the jury that the verdict may be on any one, or on all four counts of the indictment.” And the counsel for the plaintiff in error then said :

There are two offenses changed in the indictment. If the jury have any doubt ar to which offense they should convict of,-the verdict should be for the lesser one, to wit, on the fifth count in the indictment.” To whmh the court replied: “ You want me to charge that they ought to convict him.” The counsel for the prisoner then said: “No; if they should have a doubt as to the degree of crime they should convict of, they should give the prisoner the benefit of the doubt, and find him guilty of the lesser offense charged in the indictment, to wit, on the fifth count.” And the court answered : “ No; I refuse to charge, except as I will charge in reference to the fifth count.” To which the counsel for the plaintiff in error duly excepted. Several other exceptions were taken in regard to decisions rendered on motions made in the course of the trial in relation to the various counts of the indictment, which, in the view taken of this appeal, it is not deemed necessary to consider.

The counsel for the plaintiff in error seems to have been much impressed and engrossed with- the impropriety of uniting counts under the statute for the commission of different offenses, but does not seem to have adopted the proper mode of presenting to the court the precise question involved. He seems to have been carried away by the conviction that the counts of the indictment under the second section {supra) were insufficient, in substance, and to have omitted to demand an election by the district attorney of the • offenses charged, assuming the union of them to be correct .as springing from the same statute on which his client should be tried. But by objecting to any evidence being given under the indictment as he did, because it embraced two offenses for which very different punishment was declared, he seems to have done enough to protect him. He had called the attention of the court to the distinction between the two sections of the statute under which the counts were drawn, and to the difference in punishment, and had taken an exception to the determination of the court to proceed with the trial upon the indictment as it stood. Under all the circumstances, therefore, it seems to be quite clear that it was the duty of the court to have instructed the jury at all events, that if the conviction was under the fifth count, which was framed as already suggested under the first section of the statute, they should so state, inasmuch as the punishment for that offense as we have already seen would be by fine not exceeding $500.

There can be no doubt of the validity of an -indictment charging several misdemeanors if the judgment upon each be the same. (Barb. Criin. Cases, 337, 340, and cases cited; Koscoe’s Grim. Ev., 190; People v. Rynders, 12 Wend., 426; 2 R. S., 728; Colby’s Crim. Law, 121, 122; see, also, People v. Liscomb, 60 N. Y., 579.) But if tbe legal judgment on different counts in an indictment be materially different, as if one were for felony and another for misdemeanor, the joinder would be bad on demurrer, or arrest of judgment or error, although the objection might he cured by taking a verdict on the counts only which could be joined. (Barb. Crim. Treatise, 340, and cases cited; see, also, People v. Costello, 1 Denio, 83; People v. Wright, 9 Wend., 193.)

The charges made against the plaintiff in error were of misdemeanors, a proposition which seems to be conclusively established by the decision of the Court of Appeals in the case of Fassett v. Smith (23 N. Y., 252). It is decided by that adjudication that the provision of the statute which declares that the term felony used in the act or any other statute shall be construed to mean an offense for which the offender on conviction shall be liable by law to be punished by death, or by imprisonment in the State prison, is a statutory definition of the term felony only when used in the statute relating to the offense mentioned or described. In accordance with this view it was held that as the term felony was not used in the statute relating to false pretenses that offense did not amount to a felony. The statute of 1851, as amended supra, although it provides, as we have shown, for punishment by imprisonment in the State prison, does not contain the word felony. The punishment in the State prison, as in the case of false pretenses, rests in 'the discretion of the court before whom the offender is tried. The offenses charged, as already suggested, therefore, were misdemeanors; but they were punishable in different modes, one by fine only and the other by fine and imprisonment.

It was said in People v. Liscomb (supra) that a prisoner convicted of several misdemeanors, for which different penalties were prescribed, might be flogged for one, fined for a second and imprisoned for a third.

The punishment for the different offenses charged in the indictment therefore being different, the direction of the learned recorder that a general verdict might be rendered was incorrect. The jury under such instructions might have found the plaintiff in error guilty of the offense charged in the fifth count, and yet pronounced a general verdict, or vice versa; and, as we have seen, sufficient had been done by the counsel for the plaintiff in error to exact an election of the offenses or specific instructions in relation to the offenses for which the prisoner was to he tried.

The case of the People v. Borges (6 Abb. Pr., 132) is an authority for the sufficiency of the indictments in this case, relating as it does to the statutes against gaming, etc., under consideration; but in reference to the grade of the offense the case cited in 23 New York {supra) is conclusive.

Por these reasons the judgment must be reversed and. a new trial ordered.

Davis, P. J.

(dissenting):

I do not concur in the views of my Brother Brady or in the result reached by him. I think the several counts of the indictment were properly united. They were all for misdemeanors created hy and punishable under the same statute. No question was properly raised at the trial as to the question of their joinder in one indictment.

The fact that the punishment for each is not identical, is not an important one, so far as the question of pleading is concerned, and only material after a conviction upon one or more of the several counts. But where the conviction is general, of guilty under all the counts, that question ceases to be of any significance if but a single sentence is imposed, even within the much overruled and now universally discarded case of People v. Liscomb. A general conviction justified the judgment pronounced in this case, and there is no occasion, in my judgment, to interfere with the conviction or judgment.

I think the judgment should he affirmed.

Judgment reversed and new trial ordered.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    JOHN L. SUTHERLAND and ERANCIS S. CLARK, Executors, etc., of LOT C. CLARK, Deceased, Respondents, v. FRANCES A. GESNER, Appellant, Impleaded, etc.

      Will hy which a testator devises a house to his wife {who then has the title) directing payment of a mortgage "provided the title is in me” — construction of it.

    The will of the plaintiff’s testator, which was executed on the 27th day of February, 1877, contained the following clause: ‘.‘I devise the house and lot No. thirty (30) West Seventeenth street, in the city of New York, to my beloved wife Frances Sutherland Clark, her heirs and assigns forever, and I authorize my executors to pay off any mortgage or other incumbrances there may be on said house and lot, at my death, provided the title is in me. ” In February, 1874, the testator had purchased the hojise in the name of his wife, and caused it to be conveyed to her. Fifteen thousand dollars was paid in cash, and the property was taken subject to a mortgage for $20,000. The wife continued to .own the house, and the same was used as a family residence until the testator’s death, in February, 1880. The testator paid the interest upon the mortgage and $5,000 o.f the principal, and in April, 1879, gave his personal guaranty for the payment of the balance, with interest thereon at six per cent.

      Held, that it was the intention of the testator that the' executors should pay off the mortgage upon the house, if the title thereto was, at the time of his death, in either himself or his wife.
    That the words “ provided the title is in me ” were intended to qualify the devise of the house to his wife and not to affect the obligation of the executors to pay the mortgage thereon.
    Appeal from a judgment in favor of the plaintiffs, entered on the trial of this action at the Special Term

      Douglas Campbell, for E. A. Gesner, the appellant.

      John W. Whiting, for the respondent Frances S. Clark.

      Adrian Van Sinderin and S. P. Wash, for the plaintiffs and respondents.
   Daniels, J.:

The purpose of this action was to obtain a construction of the eighth clause of the will of Lott 0. Clark, which was executed on , the 27th of February, 1877. This clause is as follows :

“I devise the house and lot No. thirty (30) West Seventeenth street, in the city of New York, to my beloved wife, Frances Sutherland Clark, her heirs and assigns forever, and I authorize my executors to pay off any mortgage or other incumbrances there may be on said house and lot, at my death, provided the title is in me.” .

Before the execution of this will, and on .the 2d of February, 1874, the testator had entered into an agreement for the purchase, in the name of his wife, of this property, for the sum of $35,000. Of this amount $15,000 was payable in money and the remaining $20,000 by assuming the payment of a mortgage for that sum then upon the property.

On the fifth of February a deed was obtained from the vendor in the contract by the testator, by which the property was conveyed to his wife, subject to the payment of this mortgage, and the title continued to be vested in her under that deed up to and including the time of the decease of the testator, which took place on the 11th of February, in the year 1880. After this title was obtained the premises seem to have been occupied as a family residence, and during that time the testator paid the interest upon this mortgage, and also reduced it to the sum of $15,000 by a payment of the $5,000 on the principal. And on the 19th of April, 1879, less than one year preceding the time of his own decease, he entered into a personal guaranty for the payment of the principal of $15,000 then remaining secured by the mortgage, and interest upon it at the rate of six per cent. The controverted- point in the case is, whether, under these circumstances, the executors became bound under this direction contained in the testator’s will to pay off this mortgage, although the title to the property was not in him at the time of his own decease. The literal reading of this clause of'the will as it was written and framed by the testator himself, will not create ■ such an obligation. But in the construction of wills such a reading is not required to be adhered to, when the result would be to defeat the design of' the testator.

To ascertain that design the court is required to place itself 'as nearly as that may be done in the position of the testator, and then to determine in view of the attendant' circumstances so far as that may be indicated, what he designed by the controverted clause contained in his will. His language should have the construction which it is reasonable to presume from the circumstances the testator intended it to receive. (1 Pedf. on Wills [4th ed.], 497; Id., 503; Prop. 5 id., 433.)

The intention of the testator is the governing consideration, and a phrasd or clause made use of by him may be transposed and the grammatical structure of his sentence changed to carry that intention into execution when it may be fairly discovered by the construction of the will, as that may be indicated to be proper, by the circumstances under which it was made and the language used that is contained in it. (Lynch v. Pendergast, 67 Barb., 501; Lamb v. Lamb, 11 Pick., 375; Delaney v. Van Aulen, 84 N. Y., 16; Lytle v. Beveridge, 58 N. Y., 592, 598.)

The leading and controlling intention of the testator evidently was, that his wife should have this property free from incumbrances, and the circumstance that he himself did not possess the legal title to it, either at the time when his will was made or at that of his own decease, could not have been a material fact in the way of the execution of this intention. It clearly could not have been of the slightest importance to the testator whether his wife continued to hold the title to the property under the deed obtained by him for her, or whether she acquired it under this clause in the will. The important''circumstance was that the title became vested in her through his interposition and that would render its protection an object of equal solicitude on his part as though it had been devised literally under this ■clause of the will. No reason could possibly exist for relieving her title by the payment of the mortgage by his executors in case of its formal devise under this clause of the will, that would not-■equally induce the same result when the title had been obtained by ■ him for her by means of a preceding formal conveyance. A construction of this clause proceeding upon such a distinction would be a sacrifice of substance to a mere matter of form. It would be trifling with the testator’s beneficence, for he certainly' could not have intended to provide for the payment of this mortgage by his ■executors in case the title to the property was in him, and to deny it in case the title by his act had already become vested in his wife, .as it in fact was at the time when this language was made use of lie himself must have known that such was the state of the title, and that it could only pass to his wife under his will in the event of a possible conveyance of it afterwards by her to him; and it could not have been his design to render this obligation of his executofs dependent upon so remote and uncertain a contingency. The circumstances under which the will was executed were strikingly at variance with such a construction, and they are sufficient to preclude its adoption if any other reasonable arrangement can be given to his language. And that it may be so changed without violating the terms made use of is reasonably apparent from the clause itself. For the truth probably is that the proviso by which this clause was concluded was placed in that position by a misapprehension of its effect on the part of the testator. It is much more probable that he intended it as a qualification of the devise itself than of the obligation imposed upon the executors to pay off the mortgage ;■ and to make that qualification he probably added it after the residue of the clause had been framed, for his disposition as well as his duty to provide.for the payment of the mortgage would be precisely the same, whether the devise itself should formally take effect or it should fail by reason of the circumstances that the testator had previously accomplished the same result by securing the conveyance of the title to the property'to his wife. By giving this construction to the clause it is rendered reasonable and consistent, while to make the direction given to the executors dependent upon the proviso would substantially render it absurd. The manifest design of the testator requires this clause of the will to be so read as to give the house and lot by means of it to his wife, provided the title should be in him. That will secure full and complete effect to the proviso, for the devise itself was necessarily contingent for its effect upon that circumstance, and that will leave the direction for payment unqualified and dependent only upon the circumstance that his wife continued to own the title which he had obtained for her. It is very probable from the manner in which this clause was written that the idea of adding the proviso at all arose in the mind of the testator after what had preceded it had been completed, and that he placed it where he did believing that it would qualify the devise as effectually as though it had followed the language providing for it, and still to allow the direction for the payment of the mortgage to be unqualifiedly observed in behalf of his wife by the executors. To adopt any other or different construction would manifestly defeat a bounty intended for his wife, and it would be in direct hostility to the intention by which his conduct appeared to be governed in the acquisition and perpetuation of the title' to this property in his wife, both before and after the will was made, as that was evinced by the circumstances, nearly to the period of his own decease. From these considerations it is clear that the construction given to this direction by the judgment in the case by which the executors are required to pay off this mortgage, notwithstanding the fact that the title to the property never.was vested in the testator, was correct and it should therefore be affirmed.

Davis, P. J., concurred.

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

Judgment affirmed. -


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

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

      New trial — granting of, in criminal cases— Code of Criminal Procedure, sec. 4651 sub. 6 —power of the General Term to authorize the Court of General Sessions to ' entertain a motion for a new trial.

    Subdivision 6 of section 465 of the Code ‘of Criminal Procedure confers the power to grant a new trial in criminal cases, when the verdict is contrary to law or clearly against evidence, only upon the court in which the trial was had. No such power is conferred upon an appellate court.
    In this case an examination of the evidence having shown such a conflict between the witnesses as to create a doubt as to the propriety of the conviction, the General Term affirmed the conviction, without prejudice however to a motion to be made in the Court of General Sessions, where the trial was had, for a new trial.
    Writ of error .to the Court of General Sessions of the city and county of New York, to review the conviction of the plaintiff in error for an assault with intent to kill.

      William F. Howe, for the plaintiff in error.

      William 0. Beeoher, for the defendants in error.
   Brady, J.:

The plaintiff in error was indicted for an assault and battery with intent to kill, and of which he was convicted.

During the trial a few exceptions were taken, which have been carefully examined, but are found 'to be valueless. Indeed it is quite apparent that the appeal rests upon the proposition that'the verdict was clearly.against the weight of evidence; and it was supposed, that under section 165, subdivision 6 of the Code of Criminal Pro- • cedure a new trial might be granted by this court.

This is an ■ error. The section referred to provides for a new •trial where the verdict is contrary to law, or clearly against evidence, by the court in which the trial took place. It does not •confer upon the appellate court any such power. At common law a new trial eo’-M not be granted on the merits by any court, in the case of a felony. (The People v. Comstock, 8 Wend., 549.) But under-the provisions of the Revised Statutes (2 R. S., 736, §§ 21 to 27j, the defendant, upon thé trial of any indictment, was allowed to take exceptions to any decisions of the court in which he was tried, and to bring a writ of error thereupon; upon which the court had authority to grant a new trial for some error presented by exception in the statement or application of the law.

This statute did not confer upon the appellate court, however, the power to grant a new trial upon the ground that the verdict was clearly against the weight of evidence. Its authority is limited to the correction of errors of law. There is no doubt, however, of the right of the Court of General Sessions, in which plaintiff in error was tried, to entertain an application for a new trial, and to grant it upon the merits. (Lanergan v. People, 39 N. Y., 39.) No application appears to have been made, however, to that court for a new trial.

An examination of the evidence discloses a conflict between the witnesses, and particularly between the complainant and the plaintiff in error, and is so great as to create a doubt of the propriety of the conviction. The learned justice who presided in the court below, in a certificate annexed to the bill of exceptions, states that in his opinion there is probable cause for the bill of exceptions, and that he deems it expedient to take the judgment of the Supreme Court thereon. This is evidently not founded upon the exceptions taken, which have no force, and must have been predicated of grave doubt about the propriety of the conviction. Not having the power to grant a new trial for the reasons stated, the plaintiff in error can receive no benefit in this court. It would seem to be however, a case in which the Court of General Sessions ex delito justiUa should entertain a motion for a new trial. The judgment of the learned justice presiding at the trial, upon such a motion would be valuable.

Ingalls, J., concurred.

Davis, P. J.:

I think this court has no power to direct the court below to entertain a motion for a new trial.

That matter belongs wholly to that court and the farthest this court can go is to affirm the judgment without prejudice to the making of a motion for a new trial in the General Sessions.

The opinion seems to indicate that an order can be made directing the court below to hear the motion for new trial. To such a direction I must record my non-assent.

Judgment affirmed, without prejudice to a motion for a new trial.


text:
    JAMES LANGDON, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondents.

      Clerk in ike finance department, New York city — lie may be removed, if his swmces core no longer requwed by the business of the department — 1873, chap. 335, sec. 28.
    A person employed as a regular clerk in the bureau of the commissioner of taxes in the finance department of the city of New York, may be removed by the comptroller if, by reason of a diminution in the business of the department, his services are no longer required.

      Semble, that in such a case the clerk is not entitled to the prior notice and opportunity to be heard provided for by section 28 of the charter. (Chap. 335 of 1873.)

      Appeal from a judgment in favor of tlie defendant, entered upon the trial of this action by the court without a jury.

      G. P. Miller, for the appellant.

      W. 0. Whitney, for the respondents.
   By the Court :

This action was brought to recover a sum of money claimed as salary for the months of July and August, and for ten days in the month of September, 1875, during which the plaintiff was not allowed to perform services, though he was present every day and ready to discharge his duties. It appears that in 1875 the plaintiff was employed as a regular clerk in the bureau of the commissioner of taxes, in the finance department, at a salary of $1,200 a year; that on 27th of June, 1875, he received a notice from the comptroller informing him that he proposed removing him from his office as clerk, the alleged cause of removal being a diminution of business in the department, and he was advised that he would be allowed an opportunity to make any explanation to the comptroller on the twenty-fourth of June at an hour named. It also appears that he appeared before the comptroller and was then informed that his removal was on account of the diminution of business, by reason of which his services were no longer required. On the same day he was discharged by notice. in writing, announcing that his removal was to take place on the first of July following. It does not appear that the plaintiff held his office for a fixed time, and he was subject to removal at the pleasure of the appointing power, provided only that the conditions and method of removal prescribed by legislative action were observed. It does not ■ seem to be disputed that section 28 of the chai’ter (chap. 335 of 1873), which prescribes in part the method by which a regular clerk or head of' bureau is to be removed, was observed, but -plaintiff insists that' the cause itself was not sufficient. In this view he is undoubtedly in error. As is justly said by the counsel for the respondents, if was not the object of the charter to compel the continuance of a clerk in office whose services were no longer required.

It does not seem to be open to question but that the plaintiff might be dismissed from his office, if his services were no longer required oh account of the diminution of public business, or to meet any other emergency, for such a removal was clearly not within the statutory provision to which reference has been made. Removals on account of the reduction of appropriations and consequent inability to pay the salary of the person employed, and on account of the diminution of business by which the services of persons in office are no longer necessary, stand upon precisely the same footing and are not within the principle of the provision of the statute requiring prior notice. But, as already suggested, notice was given in this case and thus a formal compliance with the provisions of the charter pursued.

We do not see that there is any difference in principle between this case and the case of the People ex rel. Evans v. Commissioners of Public Parks, decided by this General Term (Doc., 1881). The learned counsel for the appellant' has made a strenuous effort to distinguish these cases; and although this case is in some respects different, yet the principle which governs it is equally applicable. In the Evans case there was a failure of appropriation sufficient to cover the expenses. In this case there was a diminution of business which rendered the services unnecessary.

The discharge of' the plaintiff was not occasioned by any misconduct on his part, either in dereliction or neglect of duty or any other objectionable conduct, but' simply because there was no further necessity for his services which he had previously rendered, for ought that appears, faithfully and honestly.

The'opinion of the learned justice in the court below is comprehensive and includes all that is necessary, perhaps, to say in disposing of this appeal.

We think'it contained a just exposition of the rule by which the plaintiff’s claim was to be considered and disposed of.

The judgment must be affirmed.

Present —- Brady, P. J., and Daniels, J.

Judgment affirmed.


author: Brady, J.:

text:
    EDWARD FITZPATRICK, Appellant, v. JANE A. DORLAND, Respondent.

      Specific performance of contract —not decreed when it would be inequitable so to do — Costs.

    The court will not decree the specific performance of a contract for the sale of land when it would be unjust and inequitable so to do.
    Where the performance of a contract for the sale of land has been prevented and delayed for many years by the pendency of a litigation commenced before it was made, and during that time the property has increased in value, and has also become heavily incumbered by assessments, taxes and mortgages, and especially when the situation and condition of the parties have been materially changed and altered, without any fault on the part of the vendor, the court will not decree the specific performance of the contract.
    Where the court refuses to direct the specific performance of a contract, but allows the action to be continued to enable the plaintiff to recover damages for a breach of the contract, it cannot require him to pay to the defendant the costs and disbursements incurred in the proceedings to compel a specific performance.
    Appeal from a judgment, entered upon the trial of this action by the court without a jury, refusing a decree of specific performance.

      David Thurston, for the appellant.

      J. E. Eurrill, for the respondent.
   Brady, J.:

This action was brought to compel the specific performance of a contract in writing dated the 14th day of July, 1866, by which the defendant agreed to sell to one Philip Fitzpatrick, and the latter agreed to purchase, three lots of land in this city for the sum of $18,000.

On the day before the contract was signed, one Patrick Cuff commenced an action in this court against the respondent to compel her to convey the same lots to him, claiming that under an agreement therefor made between him and her she agreed to sell him the lots for a sum named.

By an arrangement between the parties a provision was made in regard to that, and it was in terms that if Cuff succeeded in obtaining a decree for the conveyance of the lots to him the respondent should return to Fitzpatrick all the money he had paid under the contract with interest, and on the other hand that the deed should be delivered by her to Fitzpatrick as soon as the Cuff suit was decided in her favor and upon ten days’ notice. The contract with Fitzpatrick was duly assigned by him to the plaintiff.

The action brought hy Cuff was tried before Judge Clerke, who dismissed the complaint, and judgment was entered in favor of the defendant in October, 1867. Cuff appealed to the General Term and the judgment below was reversed. An appeal was then taken to the Court of Appeals, and in September, 1871, the case was sent back for a new trial, and was again tried before Judge Lawrence, who in 1880 denied Cuff’s claim for a specific performance, but directed judgment in his favor for damages and costs. This judgment was entered in February, 1880. That action being thus ended in favor of the respondent, the plaintiff, on the seventeenth of May following, delivered to her a letter, stating that he was prepared to carry out the contract that had been made with his assignor. He seems, indeed, to have done everything that was necessary to entitle him to the benefit and advantage of the contract, whatever'they may have done.

It also appeared that at the time the contract in question was made the defendant was an invalid, very infirm, and pecuniarily embarrassed, and that the main inducement to the making of the contract was the receipt of the money which would have been paid to her had the contract been performed within the time expected. It further appeared that between the time of the execution of the contract and the trial of this case the premises had increased largely in value; that a large amount of taxes and assessments had accumulated and remained unpaid; and that large sums were due for mortgages, judgments and interest, which also remained unpaid, although much had. been paid by the defendant for principal and interest of mortgages and judgments. It also appears that during the intervening period named the premises remained vacant; that no income wvas derived from them except during the last year or two and then in an amount almost nominal.

The demand upon the plaintiff for a performance of the contract was not made, as will already have been seen, until nearly fourteen years after the date of the contract, the plaintiff having apparently waited until there was a final determination, or a supposed final determination, of the action brought by Cuff against the respondent, his grantor.

It was contended on the part of the 'respondent that the action could have been commenced before the Cuff suit was decided, and that, at all events, the right of action, accrued when the judgment of the Special Term in Cuff v. Dorland was rendered in 1867. The learned justice in the court below decided against this proposition and it would seem correctly, because the parties evidently meant by the contract a final determination ; but it was not contemplated by either of them or expected that any such period would elapse between the commencement of the Cuff suit and its ultimate determination and which involved many years. Indeed, it appears by the testimony of the respondent that when a Mr. Fox called upon her, representing Mr. Fitzpatrick with whom she made the contract, he said that inasmuch as Cuff could not complete his bargain they “ would be rid of him; ” that Mr. Cuff’s affairs would be settled in a few weeks. And this evidence is an indication of the view that was entertained by the respondent as to the period that must elapse before the contract itself would be consummated.

In addition it is clearly shown that an immediate want of funds, arising from financial embarrassment, was the impelling cause of the sale.

The learned justice in the court below delivered the following opinion:

Larremore, J. — The first question to be decided is whether or not this action is barred by the statute of limitations. By séetion 388 of. the Code of Civil Procedure it must have been commenced within ten years from the time when it accrued. The contract was dated July 14, 1866, and was to be consummated as soon as the Cuff suit was decided in favor of the defendant, upon ten days’ notice. Final judgment in said suit was rendered February 12, 1880, and this action was commenced in May, 1880. This saved the statute. The cause of action did not accrue until such final decision, for until that was made it would have been unsafe for the defendant to have conveyed the property, or for the vendee to have accepted the title. (Bruce v. Tilson, 25 N. Y., 194; Hope Mut. Life Ins. Co. v. Perkins, 38 N. Y., 408.)

After fifteen years of litigation on defendant’s part to protect her' title to the property, the plaintiff now asks specific performance of the contract, according to its original terms. It is evident that the parties to the contract in question never contemplated so long a delay in its consummation. That the vendor should bear all the burdens of the property for fifteen years, and then be compelled to convey it for the contract price, would seem inequitable, especially when the value has increased threefold. The amount paid for taxes, assessments and interest on the premises, nearly equals, if it does not exceed, said contract price. Equity will not decree specific performance of a contract when it would work injustice, and where (as in this case) it is obvious that the contracting parties never expected or intended the results that have followed their action. (Margraf v. Muir, 57 N. Y., 158; Peters v. Delaplaine, 49 id., 362; Cuff v. Dorland, 55 Barb., 481.)

Nor was the tender of May 27, 1880, even if in valid form, good in substance. The plaintiff offered for execution a full warranty deed, whereby defendant was obliged to pay all existing liens upon the premises for taxes and assessments, thus giving him the full benefit of the large increase in value, and depriving her of the full consideration of the contract.

It was no fault of defendant’s that the Cuff suit was not earlier determined. Plaintiff’s assignor contracted in view of that event, which finds the relations of the parties changed, the rights of third parties intervening and performance of the contract impracticable.

This action was brought for strict equitable relief; no other was sought. This must be denied for the reasons above stated, but according to our present practice this action must be held to enable the plaintiff, if he so elect, to prove and recover his damages. (Sternberger v. McGovern, 56 N. Y., 12.)

Whether the amount thereof mentioned in the contract is to be regarded as liquidated or as a penalty is the subject of further consideration. No such issue is tendered by the pleadings and proofs in this action. Judgment is therefore ordered in conformity with the views above expressed, and we think that this conclusion should be sustained.”

In Peters v. Delaplaine (49 N. Y., 362), to which he refers, it was said by Chief Justice Church, as the result of the cases bearing upon the question, the granting or withholding specific performances was within the discretion of the court, and would not be granted when it would be against conscience and justice to direct it. In that case the property had increased in value from $30,000 to $300,000, and during all the time the vendor, and those who from time to time succeeded to this estate, had received large sums of rents, issues and profits and necessarily paid the taxes and assessments upon the property; and the specific performance of the contract, it was said, would necessarily require the statement of an account with the several parties and with respect to the receipts and expenditures connected with the premises. So in this case the lots in question were in the possession of grantor and yielded a very insignificant income for a short period, but were subject to taxes and assessments and other incumbrances, an account of which must necessarily be taken in order to show the correct relations of the parties to each other under this contract if a specific performance were to be decreed. It would indeed seem to be against conscience and justice to allow the plaintiff to succeed iii obtaining a decree of this court directing a specific performance of the contract when the property had increased to a sum in value more than double the amount he was to pay for it, and with sums due for taxes and assessments exceeding more than one-half of the price to be paid originally, the result of which would be that the defendant would receive comparatively nothing for her property.

It is not necessary to state the numerous reasons why the contract should not be enforced after such a lapse of time, and after the intervention of the facts and circumstances affecting the relation of the pa2’ties which a2’e disclosed by the evidence in the case. It cannot be entertained for a moment that any court of equity, in the exercise of a discretion vested in it, would grant a decree for a specific pei’formance in such a ease.

The judgment, however, provides for the payment of the costs and disbursements by the plaintiff upon the decree for a specific performance of the contract rendered against him, whilst the action is continued to enable him, if he so elects, to pui-sue his legal remedy for damages, if any, that he may have sustained. "We do not understand upon what authority such a judgment is entered. The case was not terminated by the judgment interlocutory, for such it must be regarded, but, as we have seen, the action was continued to enable the plaintiff to obtain relief in damages, if any, he should have sustained. ■ The provision in regard to the costs, therefore, is erroneous and the judgment must be modified by relieving the plaintiff from liability for any costs until the determination of the action, in case he should elect to proceed to recover damages, which he has the right to do under the judgment. It is ordered, therefore, that the judgment be modified in the respect named, and affirmed as to the remainder, without costs of this appeal to either party. .

Davis, P. L, and Ingalls, L, concurred.

Judgment modified as directed in opinion.


text:
    AUGUSTA BLECK, Respondent, v. HERMAN F. BLECK, Appellant.
    Divm'ce— the adultery of the husband, connived at by the wife, does not prevent him from getting a divorce for her adultm'y.

    Upon, the trial of an action brought by a wife to procure a divorce from her husband, on the ground of his adultery, it appeared that he had committed the adultery with her connivance and consent. The defendant alleged in his answer and proved upon the trial that his wife had committed adultery once before and once after the time at which he had committed it; and that he had not connived at or consented to her so doing, nor had he condoned her offense.

      Held, that her connivance at his adultery prevented her from using it as a defense, and that he was entitled to an absolute divorce.
    Appeal from a judgment, entered upon an order confirming the report of a referee.

      James Hamilton, for the ajipellant.

      David Thurston, for the respondent.
   Brady, J.:

This is an action to procure an absolute divorce on the ground of adultery. The defendant denied the charges of adultery made against him, and recriminated by charges of adultery against the plaintiff, and asked affirmative relief in his favor. The referee to whom the action was referred found, among other things, that during one night in the latter part of August, or the beginning of September, 1878, the precise date of which could not be determined, the defendant, at his house in the city of New York, committed adultery and had carnal connections with one Clara Davis; that the plaintiff had not voluntarily cohabited with him since the discovery of such adultery, and had not condoned or forgiven it; that it was committed, however, by defendant with the connivance of the plaintiff, and that she consented thereto. He finds also that on two occasions, one before the defendant’s act of adultery and one subsequent to it, the plaintiff committed adultery, and with two persons, and that the same was committed without the consent, connivance, privity or procurement of the' defendant; that five years had not elapsed since he discovered the fact, and that he had not cohabited with the plaintiff since such discovery. ,

There is no dispute about the marriage between the parties, which is fully established. The referee found, as a conclusion of law, that the plaintiff was not entitled to a divorce, because of her conniving at the adultery which she alleged against the defendant and which was the only charge established, and that the defendant was not entitled to judgment for affirmative relief, because of his act of adultery; and further, that the connivance at such adultery by the plaintiff did not prevent her using it as a bar against the affirmative relief for which the defendant prayed. The defendant appeals from this judgment against him, refusing affirmative relief.

The question presented is, whether the defendant is entitled to the relief asked by him, namely, a decree of divorce against the plaintiff upon the ground of the adulteries committed by her. Under our statute (see Laws of 1877, page 180, chap. 168), such connivance operates as a bar to any proceeding predicated of it, and the result is, in legal contemplation, that no adultery of which she can take advantage was committed. This must be so because it cannot be used against the erring party, and for obvious reasons off public policy. It would be a very easy matter for dissatisfied married persons to connive at such an incident for the purpose of ridding themselves of the marriage contract, and hence the prohibition against any such strategy. The plaintiff was not entitled therefore to a divorce. The defendant was entitled to a divorce because of the acts of adultery by the plaintiff, which were committed without his consent or connivance and which were not condoned, because he did not cohabit with her after the discovery of her criminality. The precise circumstances marking and establishing the connivance on the part of the plaintiff as to the defendant’s adultery do not appear, because the appeal is presented to us upon the pleadings, and the report of the referee containing the findings of fact and of law and his opinion. The statute provides that divorces may be decreed and marriages dissolved whenever adultery has been committed by any husband or wife, although if the adultery be established the court may deny the divorce where the offense was admitted to have been committed by the procurement or connivance of the complainant; and where it shall be proved that the defendant has been guilty of adultery under such circumstances as would have entitled the defendant, if innocent, to a divorce. In this case the complainant has been guilty of adultery under such circumstances, as would have entitled the defendant, if innocent, to a divorce. In other words, if he had not committed the adultery charged and found against him, he would have been entitled to a decree of divorce. The plaintiff would not have been entitled to any such remedy, even had she been innocent, because of her connivance and consent to the adultery charged upon the defendant. The defendant, in relation to his charges, must be regarded as a plaintiff who has conclusively proved his case against the defendant, whilst she has failed to establish her case against him, and the underlying question seems to be whether, regarding the defendant as the plaintiff in the action urging his charges of criminality, she has successfully answered them. The response is that she has not, for the reason that the defendant’s act of adultery, which was committed with her consent and by her connivance, is not one of which she can avail herself.

Several cases supposed to have a bearing upon this subject have been cited by the learned counsel for the defendant, but they chiefly relate to the doctrines of condonation and are, therefore, not precisely in point and do not give much aid in the solution of the. question presented for consideration. The case of Masten v. Masten (15 N. H., 159) approximates more than any of the others to the case in hand. That was an action brought by the wife against her husband for an absolute divorce. The defense was the adultery of the plaintiff. The plaintiff proved the adultery in September, 1843. The defendant proved the defendant’s adultery in 1834, but in answer it was shown that the defendant connived at and condoned the adultery. Parker, J., said: “It is very clear that the adultery thus procured and eondonated cannot now be set up by him in bar of her allegation founded upon a subsequent offense.”

In the case of Leseuer v. Leseuer (31 Barb., 330), decided in 1860, the court held that the words “such circumstances” in the statute cited was a virtual declaration that although the court may have jurisdiction and the power to grant the divorce, and the adultery on the part of the defendant shall be proved, yet the court shall not grant the divorce if the complainant has been guilty of adultery committed without the procurement or connivance of the defendant. It is the guilt of the plaintiff in a.moi’al sense, without any fault or connivance on the part of the defendant, which the statute intends to say shall prevent her or him from obtaining a divorce.

It was said in the case of Morrell v. Morrell (3 Barb., 236), in reference to the statute that declares that the court may deny a decree for a divorce when it shall be proved that the plaintiff has been guilty of adultery under such circumstances as would entitle the defendant, if innocent, to a divorce. “ The circumstances meant are undoubtedly absence of procurement, or connivance, or anything-else which would involve the other party directly or indirectly in the guilt of the act.” And that interpretation seems to meet the proposition under discussion. The defendant, regarded as a complainant, has been found guilty of adultery under such circumstances as would not have entitled the plaintiff, regarded as the defendant, if innocent, to a divorce, because his adultery was committed by her connivance; and the fact that the defendant’s adultery was committed by her connivance would seem to call into application the observation of Dr. Lushington, in Anchini v. Anchini (2 Curteis, 213), in which he said: “ It would, as the Queen’s Advocate observed, be dangerous to hold, as a general principle, that a wife, having condoned the adultery of her husband, should thereby be placed in such a situation that she might commit adultery herself without her husband having any control over her. * * * I think such a principle would be dangerous to society and public morals.” The result which is thus condemned and deplored is accomplished in this case, if the plaintiff, having connived at the defendant’s adultery, is shielded-by that circumstance from her dissolute conduct, and allowed to take advantage of her own wrong, conceived and carried out it may be for her own protection against her act of adultery previously committed. She will then, by her connivance, have placed the defendant in such a situation that she may, without endangering the marriage contract, commit acts of adultery although she has, in effect, condoned the offense of which her husband is guilty, by consenting to its performance. It is thought that the rules of society and public policy demand, that under such circumstances the defendant’s conduct should afford no ground for the continuance of the marriage contract, and that the plaintiff shall assume the burdens of her guilty act in conniving at the adultery of the defendant. In other words it should be declared that she cannot take advantage of that circumstance. It must be regarded as one that has no legal vitality as a defense to the charges of the adultery preferred by the husband against her, and established by the evidence.

He is innocent, in legal contemplation, of any act which will prevent him from obtaining redress for her criminality subsequently committed, not condoned, and in reference to which there is no charge of connivance, no proof of consent or knowledge, and no proof of condonation by him.

For these reasons we think that the judgment of the referee was erroneous in not granting to the defendant the relief he asked, and that it must be reversed.

Davis, P. J. and Ingalls, J., concurred.

Judgment reversed.


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    In the Matter of the Application of MENDAL FRIEDMAN, for an Order Requiring S. ALBERT MINCHO to Pay Over Moneys Collected by Him as an Attorney, and of NATHAN WALD for a like Order.

      Attorney — Ms client can claim any profits realized by Mm in purchasing property at a sale under an execution — the coxvrt will compel the attorney to pay over moneys, by a summax'y proceeding,
    Where, upon the sale of a stock of goods under an execution issued upon a judgment recovered against the owner, the attorney for the judgment creditor purchases the goods and thereafter sells them at an advance, his client is entitled to claim and receive the profits so realized.
    The court may in such a case, upon an application made by the client, even before the execution has been actually returned, ascertain in a summary manner the amount due, and require the attorney to pay it over to him, or in default thereof direct that he be. committed to close custody in prison.
    Appeal by the attorney, Albert Mincho, from an order requiring him to pay over the sum of $1,460, besides the costs and expenses of the proceedings.

      Peter L. Mullah), for S. Albert Mincho, appellant.

      J. H. Goodman, for the petitioners, respondents.
   Daniels, J.:

The attorney, S. Albert Mincho, was employed by the petitioners to collect debts owing to them respectively by Samuel Goodman. Suits were instituted upon the demands and judgments recovered in favor of the creditors. Executions were issued upon these judgments, and a stock of dry goods and another of boots and shoes were levied upon and sold under them. The dry goods were purchased by Bloom & Morse nominally for thé creditors in the executions, but they never transferred or turned over the goods so purchased to the creditors, and do not appear to have purchased them under any authority from the creditors. The goods were placed in the possession of the wife of the judgment debtor, and she paid over moneys received in the course of sales made from them to the creditors, but to what extent such payments were made •was not shown. The evidence, therefore, did not establish the fact that either of the judgments, or any considerable portion of them, had been paid or satisfied in this manner. And the proofs presented' on the part of the creditors show that more than the amount required to be paid by the order still remains due upon the judgments.

The stock of boots and shoes were purcnased under the execution sale by Mincho himself, for the sum of $997, and they were ■delivered to him by the person making the sale. As to the debtor in the executions, these proceedings satisfied the judgments. But that by no means relieved the attorney from his obligation to pay .over the proceeds of the property to his clients.

Under his authority this stock of boots and shoes, within about six weeks after its purchase by him, was' sold at another auction sale, and the sum of $2,900.29 was realized as its proceeds. The attorney alleged that he had paid out more than the sum for which he himself had purchased the stock of boots and shoes, in the way of expenses in the suits and proceedings, and that the purchase was made for himself, and the excess realized over his bid at the execution sale, by the sale afterwards made under his authority, belonged to himself and not to the petitioners, who had employed him to collect their debts.

This was a position which had no sanction whatever in the law relating to the relations and obligations of an attorney employed to collect a debt as this attorney was in this proceeding. For it does not permit an attorney, sustaining such a relation as he did to the persons who had employed him to Collect their debts, to purchase the property levied upon and sold to satisfy the executions, and then hold it and make a profit out of it for himself by its subsequent sale on his own account. (Hawley v. Cramer, 4 Cow., 717, 718; Brock v. Barnes, 40 Barb., 521; Case v. Carroll, 35 N. Y., 385.)

He cannot legally place himself in such a relation of hostility to the persons by whom he had been employed. It was their interests that he was required to protect and promote and not his own, and when an attorney so far disregards his duties in this respeet as to endeavor to make a profit at the expense of his clients, or by sacrificing their interests to his own, courts of justice are required to interfere, for the purpose of preventing the consummation of such an unlawful design.

When the attorney purchased this stock of boots and shoes under the execution sale, the purchase legally considered was that of the persons whom he represented in the proceedings. The property purchased was theirs and not his, and they became entitled to the advance obtained from it by means of the second' sale made under the authority and direction of the attorney. The proceeds of that sale were the creditors’ and not the attorney’s, and he was bound to pay the same over to them when that was demanded; and such a demand is shown to have been made in the case.

According to the evidence given by Mrs. Goodman the attorney had in his hands á balance of money amounting to the sum of $1,980, which he stated he would pay over to Mr. Friedman. This he himself denied. But it is very probable that this statement was true, for it cannot be credited that the difference between that sum and the sum of $2,900,29, the amount resulting from the second sale of the boot's and shoes, cottld possibly have been exhausted by the expenses of the legal proceedings.

It is not credible- that nearly $1,000 could have lawfully been expended in the levy upon and the custody of and sale of this stock of boots and shoes, or of this stock and the stock of dry goods. In the testimony of the attorney himself he stated that he had retained out of the proceeds of the shoes about $1,000 or $1,500, which, from the admission mentioned by Mrs. Goodman, and which was probably made as she stated it, was much less than the balance actually in his hands. But as the figures were given by him the items of expenses, if they were in fact paid, still left a balance of $1,440 in his hands, while by the adjudication in the order from which the appeal has been taken he has been required to pay only the sum of $1,460. This sum mentioned in the order is probably much less than he’ should really have been required to pay over to his clients, the petitioners in this proceeding, and for that reason no reduction in the amount can either properly or possibly be made. This was so much tnoney found in his hands belonging to his clients and fraudulently withheld from them by him and appropriated to his own use. For its recovery by means of summary proceedings of the nature of those resulting in the order very ample authority has been vested in the court. And the dilatory proceedings of an action are not required to be submitted to 'for that purpose. But the court can interfere in a summary way as it did in this case, and after ascertaining the amount which,should be paid over require such payment to be made, and in default of the attorney’s complying with the order, to commit him to close custody in prison. This practice has been fully sanctioned by the authorities. (Barry v. Whitney, 3 Sandf., 696; Matter of Dakin, 4 Hill, 42; Matter of Max Steinert, 24 Hun, 246; Code of Civil Pro., § 14, subs. 1, 3.)

The order which was made in this case was therefore warranted by the evidence and the law applicable to the proceedings.

It was not necessary that it should have been delayed until the executions issued upon the judgments had been actually returned. Neither was it necessary that-the petitioners themselves should have appeared-personally in the proceedings or upon the hearing before the referee.

There was no error wmcn me attorney can complain of in the determination of the referee to strike out a certain portion of the evidence which had been given, for it was beneficial and serviceable to the petitioners rather than to him. Its omission from the case was of no disadvantage whatever to him.

The inquiry allowed by the referee, which was resisted as a privileged communication, was in no sense of that nature. Neither was there any impropriety in allowing other questions, which were made the subjects of objection, to be answered by the witnesses. The case was well made out, and nothing was shown which by any possibility can relieve the attorney from his obligation to comply with the terms of the order which was made. It should, accordingly, be affirmed, with ten dollars costs, besides the interest upon the amounts required to be paid, and the disbursements on the appeal.

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

Order affirmed, with, ten dollars costs, besides the interest upon the amounts required to be paid, and the disbursements upon the appeal.


text:
    In the Matter of the Application of the DEPARTMENT OF PUBLIC PARKS for the Opening of Spuyten Duyvil Parkway, etc.

      Commissioners to appraise damages for laying out a parkway — 1874, chap. 604— fees and allowances of.

    Commissioners were appointed under chapter 604 of 1874 to estimate and assess the damages occasioned by the laying out and opening of the Spuyten Duyvil parkway, which is some 13,000 feet long, from 40 to 400 feet wide, and includes some fourteen parks.

      Held, that the parkway was not, strictly speaking, a street or avenue, as those terms were used in chapter 483 of 1862, or a street, avenue, square or public place, within chapter 86 of 1813, and that the fees of the commissioners were not fixed or determined by either of these acts.
    That the commissioners were entitled to receive a reasonable compensation for the services performed by-them, and that, as they had severally sworn that their services were worth the sum of $3,000 apiece, an allowance of that amount would not be disturbed.

      People ex rel. Beaver v. Oreen-{52 How., 440) followed.
    Appeal from an order made at Special Term confirming the report of a referee, which awarded the sum of $5,000 each to the three commissioners appointed, under chapter 604 of 1874, to appraise and apportion the damages occasioned by the opening of Spuyten Duyvil parkway, which is about" 13,000 feet long and from 40 to 400 feet wide, and includes in it fourteen parks.

      Lewis L. Delajield, for A. Yan Cortland and others, appellants.

      Wm. (J. Whitney, for the mayor, etc., of the city of New York.
   Daniels, J.:

The compensation allowed by the order, and complained of on the argument of the appeal, was for the services of the commissioners, necessarily employed in opening the parkway.

In support of the appeal it has been urged that, the compensation of the commissioners should either be restricted to four dollars a day under section 189 of chapter 86, Laws of 1813, or to thirty cents a foot for the lineal extent of the parkway, under section 1 of chapter 483 of the Laws of 1862, .or that the entire cost of the proceeding should be adjusted under the authority of section 3240 of the Code of Civil Procedure.

' The proceedings for opening the parkway were probably within the phrase “ special proceedings,” as that was made use of in this section of the Code. But this did not prevent the allowances made to the commissioners as expenditures necessarily incurred in carrying on the proceeding. For such expenditures would not be included within the proper signification of the term costs. They were, on the contrary, in the nature of disbursements, and if necessarily allowed for the services which had been performed would not be mere costs within the meaning of that term as it has been used in this section of the Cod$.

This provision was not for the first time enacted by the adoption of the Code of Civil Procedure, but it formed a part of chapter 270 of the Laws of 1854. And if it should have any application to the compensation of commissioners in a proceeding of this nature, it is certainly very singular that it never has yet been so applied. The terms in which these enactments have been made, even if they should be held to apply to the costs of the proceedings, do not exclude the power of adequately compensating the commissioners for their services under the authority given for the allowance of necessary disbursements, and it would only be by a forced construction that they "could be so extended as to exclude that right.

This parkway was not, strictly speaking, a street or avenue, as those terms were included in the act of 1862, or a street, avenue, square or public place, within the law of 1813. This was substantially so held at Special Term in People ex rel. Seaver v. Green (52 How., 440), and that .decision was afterwards affirmed by the General Term of this department. By the proceeding which was the subject of examination in that case, a road or public drive had been opened northward from One Hundred and Fifty-fifth street to the intersection of Kingsbridge road with Inwood street, which was certainly • as much of a street, avenue, square or public place as this parkway, which included fourteen parks, and is from forty to 400 feet wide. The. commissioners are certainly entitled to be compensated for the services performed by them in such a proceeding. That compensation is a necessary part of the expenses of the proceeding itself, and as the expense of opening such a way have been in this authority held not to be included within either the act of 1813 or that of 1862, it must follow, as was held to be the case when People ex rel. Seaver v. Green was decided, that the commissioners' should receive a reasonable compensation for the services performed by them.

The commissioners appointed in this proceeding were gentlemen of great integrity, capacity, experience and intelligence, and they have severally sworn that their services rvere worth the sums which were allowed by the order from which the appeal has been taken, and nothing was developed upon- the reference in the least degree impairing the propriety of these statements. The adjudication already referred to was a direct authority sanctioning these, as well as the other allowances made by the order; and as it has in no manner been overruled or restricted in its effect, it should be followed in the determination of this appeal. The order, therefore, should be affirmed, with the usual costs and disbursements.

Davis, P. J., concurred.

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

Order affirmed, with ten dollars costs and disbursements.


text:
    RUFUS O. MASON, Plaintiff, v. THE NEW YORK SILK MANUFACTURING COMPANY and Others, Defendants. HOLYOKE NATIONAL BANK, Appellant.

      Manufacturing corporation — action by one of its in'ustees to protect its rights — a creditor cannot be enjoined from enforcing the personal Habilites of its in'ustees or stockholders. ■

    In this action, brought by a trustee of a manufacturing corporation, against the corporation and his co-trustees, the complaint alleged that the company had become insolvent, by reason of the wrongful acts of the trustees, and of the disposition made by them of its property and effects, and it prayed that they might be compelled to account and pay to the corporation any money and the value of any property which they might have acquired or wasted by a violation of their duties, and that a receiver might be appointed. After a receiver had been, appointed, an order was obtained restraining the creditors of the company from bringing or maintaining any action against the defendants, or any of them, to recover the moneys due to them.

      Held, that in so far as the injunction restrained the. creditors.,of ..the company from taking such proceedings as were required and necessary, to enforce the personal liabilities which any of the trustees or stockholders of the company might have incurred by .failing to comply with the provisions of the act providing for the formation of manufacturing corporations, it was erroneously granted and that it should be modified accordingly.
    Appeal from ail order made at a Special Term, denying a motion to modify an injunction. The action was brought by the plaintiff, one of the trustees of the defendant corporation, against it and his co-trustees. The complaint alleged that the company had become insolvent by reason of the mismanagement and the wrongful acts of the defendant trustees, and it prayed that they might be compelled to account and to pay over to the company any money or property which they might have acquired for it, or which had been lost or wasted by their wrongful and negligent acts. It also prayed for the appointment of a receiver. Thereafter a receiver was appointed, and an order made restraining each and all of the creditors of the company from bringing or maintaining any action or actions against the defendants, or any of them, for the recovery of a sum of money. The appellant, which at the time of the commencement of this action was prosecuting an action against the company upon a promissory note, applied to have the order so modified as to allow it to proceed with its action against the company, and to bring any action to enforce any liability which might have been incurred by any of the defendants by failing to comply with the provisions of the manufacturing act.

      James L. Bishop, for the appellant (Holyoke National Bank).

      William Sutphen, for the plaintiff, respondent.
   Daniels, J.:

This action itself was prosecuted by the plaintiff, as a trustee of the New York Silk Manufacturing Company, and its object was to protect the rights and promote the property interests of the corporation. It was no part of its scope or purpose, as that was described in the complaint, to obtain a settlement of the affairs of the corporation and terminate its existence as such. It did not, therefore, include the right of creditors to enforce the payment of their debts against the stockholders of the corporation, because of their failure to pay up the whole amount of the capital stock of the company, or to proceed against the trustees after a failure on their part to make and publish the annual report of the affairs of the corporation, as that duty has been enjoined upon them by the statute. These were rights given to the creditors themselves as such of the corporation. (2 R. S. [6th ed.], 50,4, § 38; 506, § 47.)

That such was the intention of the statute is further manifested by section 59, rendering the liability of the stockholders dependent upon the fact that a suit shall be first brought for the collection of the debt against the company within one year after it shall become due, and-that an execution shall be returned unsatisfied upon the judgment recovered in the action. (Id., 508.) And from the manner in which these rights have been created a receiver of the property and effects of the corporation can have no authority either to assert or enforce them. They are on the contrary, by express language, secured to the creditors, who alone can enforce them by appropriate legal proceedings taken for that purpose. Neither the case of Story v. Furman (25 N. Y., 214), nor that of Calkins v. Atkinson (2 Lans., 12), depended upon or involved the construction of these statutory provisions; and because of that circumstance they are not authority in the present controversy. As the case is now presented it was the right of the creditor alone to proceed under these statutory provisions; and by taking such proceedings the receiver appointed in the action to take charge of the property and assets of the corporation would in no manner be disturbed in the exercise of his functions or the enforcement of his authority. For by issuing an execution upon a judgment recovered against the corporation after his appointment no part of its property could be seized or appropriated to the payment of the debt. The execution would have no other significance in the case than that of enabling the creditor to comply with what the statute has required to be done before he can proceed against the stockholders themselves and enforce their individual liability.

By the order which was made, the creditors of the corporation were restrained from bringing any action of the nature of that provided for in their behalf by this statute. To that extent it was not within the scope of the action itself, neither was it authorized by any fact or circumstance in the case'. The creditors might well be restrained from appropriating, by legal proceedings, the property and effects of the corporation placed in the hands of the receiver. But no legal authority can be found for preventing them from collecting their debts from the stockholders and trustees of the corporation personally, if they can be shown to have become liable for such payment under these provisions of the act authorizing the creation of manufacturing corporations. So far as the order restrains the creditors from enforcing these particular rights, it should be vacated. The order from which the appeal has been taken should therefore be reversed with ten dollars costs, and also disbursements, and an order entered to the effect already indicated.

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

Order reversed, with ten dollars costs and disbursements..


author: Per Curiam.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LOUIS WERBIN, Appellant.

      Indictment — effect of entering a nolle proseguí on certain of the counts — the remaining counts must charge the offense as fully as though they had, stood alone.

    Appeal from a judgment of the Court of General Sessions for the city and county of New York, convicting the appellant of arson in the third degree.
    The plaintiff in error was indicted for arson. The indictment contained three counts. The first and second counts were for arson in the first degree; the third for arson in the third degree. After the jury had retired, and had for some time deliberated without arriving at an agreement, a nolle prosequi was entered upon the first and second counts, whereupon the counsel for the plaintiff in error moved for the discharge of the prisoner upon the ground that after the case was submitted to the jury, and after they had retired and had been in consultation for more than twenty-four hours, a nolle prosequi having been entered upon the first and second counts of the indictment, the third count was insufficient, and it was therefore improper to submit that count at that stage of the case, and as it then stood, to the jury for their further consideration. This motion was denied and an exception duly taken. The jury were then again instructed to retire, and shortly afterwards returned into court with a verdict of arson in the third degree. A motion, it seems, was also made for arrest of judgment and a new trial, which was denied.
    The'court at General Term said: “We think that the effect of the nolle prosequi was to strike out the first and second counts, and that the indictment, as it stood, became extinct. These counts having been, in effect, expunged, the third count was wholly insufficient, because its essential elements of time and place rested upon reference to allegations in that respect contained in the other counts.
    “ To justify a conviction upon one of several counts, when as to the others a nolle prosequi has been entered, the count retained must charge the offense alleged, in all respects, as required by the rules of law. It must stand upon its own foundation and be complete in itself.”
    For these reasons there must be a new trial.
    Ordered accordingly.

      John M'oKeon, for the people.

      Adolph 8. Sanger, for the defendant, appellant.
   Opinion

Per Curiam.

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

Judgment reversed.


author: Daniels, J.;

text:
    PETER BOWE, Sheriff, etc., Appellant, v. THE KNICKERBOCKER LIFE INSURANCE COMPANY, Respondent.

      Action by the sheriff to collect p'operty attached — he will not be allowed to discontinue it when the debtor will be prejudiced thereby — Code of (Xml Procedure, see. 655.
    Appeal from an order made at a Special Term, directing a discontinuance of this action.
    This action was prosecuted by the plaintiff as sheriff, under the authority of section 655 of the Code of Civil Procedure, to collect, the amount due upon two policies issued to the deceased. He derived his power to do so under an attachment which had been issued to him against the property of Sarah F. Lyman. By virtue of this attachment -he seized and attached the demands which existed in favor of the defendant in the attachment upon two life insurance policies issued upon .the life of her husband for her benefit by the defendant in this suit.
    The husband died about the 18th of August, 1880, and by the terms of the policies suits for the insurance moneys could only be maintained when instituted within the period of one year after the amounts mentioned in them became payable. The ordinary proofs of death were served, and whatever amounts might be recovered under the policies became payable more than one year before the order for the discontinuance of this action was made.
    The court at General Term said : “ The consequence therefore will be, if the order should be allowed to stand, that the sheriff’s action for the recovery of the proceeds of the policies will be ended, and the person entitled to be benefited by means of the insurances will, by reason of this lapse of time, be deprived of the right to commence or prosecute an action for the recovery of the money. This would be clearly unjust to the defendant against whom the attachment was issued, and under which these claims were seized. By the further prosecution of this action, a judgment for the several amounts payable' by the terms of the policies may be recovered by the sheriff, and from it the creditor in the attachment will be first entitled to payment, and after that and the payment of the sheriff’s expenses in this action, the residue of the recovery would become payable to the defendant in the attachment, and that would accomplish all the purposes of justice as to all the parties interested in these demands. But to allow the sheriff’s action to be discontinued after its prosecution for such a length of time as necessarily must have deprived the insured of her right of action, would be unjust in the extreme. It would be practically an abuse of the legal authority given to him to collect by suit the tilings in action attached by him under the attachment.
    “And this should not be permitted, even though the defendant may be willing to pay all that has become due to the plaintiff in the attachment. For that is less than half of what appears to be ithe reasonable claims against the present defendant.
    “ The provision of the Gode under which such a discontinuance might be authorized could not have been intended to apply to such a case, and in that manner produce this serious injustice to the defendant in the attachment.
    “ This view of it was adopted in the case of O'Brien v. The Merchants Insurance Company (16 Abb. [N. S.], 212). And a different construction of the statute could not have been contemplated in its enactment.”

      Morris <£) Donnelly, for the sheriff, appellant.

      Henry W. Johnson, for the respondent.
   Opinion by

Daniels, J.;

Brady, P. J., concurred.

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

Order reversed, with ten dollars costs and disbursements.


text:
    MARTIN H. K. KELLY, Appellant, v. FREDERICK FRAZIER and Others, Respondents.
    ■ Motion to set aside a verdict as against evidence — it may he gramted though no request for a nonsuit or the direction of a verdict was made at the trial — the pan'ty applying for it must pay the costs of the trial.

    Appeal from an order setting aside the verdict of a jury and directing a new trial, upon a motion made upon the minutes of the justice before whom the action was tried.
    The court at General Term said: “An examination of the exceptions taken upon the trial sustains the conclusion that they presented no ground upon which the verdict in the case could be set aside. The order must, consequently, have been made because the conclusion of the jury was considered to be-unwarranted by the evidence. No exception was taken in the case presenting that point, but after the conclusion of the jury was announced a motion was made upon the minutes which resulted in the order setting aside the verdict. This order is now - resisted as unwarranted upon the authority of Pealce v. Bell (I Hun, 454), where it was held that a failure to move for a nonsuit or to request the direction of a verdict by the defendant would preclude him from afterwards moving to set it aside as against the evidence. And the cases of Rowe v. Stevens (44 How., 10) and Siekels v. Gillies (45 id., 94) are relied upon as authorities sustaining this proposition, and they certainly appear entitled to be so considered. But the conclusion which they maintain is plainly in conflict with the right as it has been secured by law to the defeated party, for such a party has, in express terms, been provided with the right to move to set aside the verdict either upon exceptions or because it may be contrary to the evidence. (Code Civil Pro., § 999.)
    “ This right has not been rendered dependent upon the fact that an exception may have been taken raising the same point, but it has been reserved in terms clearly indicating the purpose to provide it, ¡where no exception whatever may have been taken. And it was so treated and considered when a similar provision was in force under the preceding Code; and even before that, applications of this nature were not uncommonly made and sustained by the courts. (1 Bnrrill Prac. [2d ed.], 468; Algeo v. Dwnowi, 39 N. Y., 313 ; Wright v. Hunter, 46 id., 409; Thompson v. Mench, 22 ITow., 431).
    “ In Barrett v. Third Avenue RaiRoad Gompa/ny (45 N. Y., 628), also one of the cases upon which Peake v. Bell was decided, it was held that “ motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly discovered evidence, are not governed, by any well defined rules, hut depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused, involves the inquiry whether substantial justice has been done — the court having in view solely the attainment of that end.” (Id., 632.) And what was afterwards said as to the necessity of an exception, related entirely to the power of review, vested in the Court of Appeals.. It has no application whatever to the power of the Special Term, or that of the court in which the verdict may have been recovered, to set aside a verdict as against the evidence. When a motion of this nature is made before either of these' tribunals, the governing principle is that which has already been quoted. This view is further sustained by Ranrdlton v. Third Avenue Railroad Company (53 N. Y., 25). There it was held to be the law, that “ the Special Term upon the motion, and the General Term upon the appeal from its order, had the power, and it was the duty of each to examine and determine whether the verdict was against the weight of evidence and the justice of the case, and if of opinion that it was, to set it aside and order a new trial. The further duty was incumbent upon them to examine whether upon the trial the defendant sustained any injury from the jury having been misled by any improper remarks of the judge during the trial, which were not excepted to or not the proper subject of an exception. But this court has no such power. We can only examine the questions of law arising upon the exceptions taken during the trial.” (Id., 27.) A conclusion of very much the same nature was expressed in Smith v. AEtna Insurance Qompamy (49 N. Y., 211), where the late Judge Peckham stated that it was the duty of the Supreme Court “ to set. aside a verdict which is against the clear weight of the evidence.” “ Justice would be promoted if the Supreme Court should more frequently exercise its unquestioned right of reviewing verdicts upon the facts.” (Id., 216.)
    The doctrine of these cases upon this subject as well as this provision of the Code, are in conflict with the conclusion reached in Peake v. Bell {supra), and they very fully sustain the practice followed at the trial. It was within the power of the court to set aside the verdict if it was not sustained by the evidence, and no exception was required to entitle the defendants to invoke-the exercise of that power. * * *

      “ By the order made, ten dollars costs of the motion were allowed to the defendant. This part of the order was unwarranted by the practice prevailing upon this subject, for when a verdict is set aside as against the evidence the moving party is required to pay the costs of the trial.” {Bailey v. Park, 5 Hun, 41.)

      Gonlan <& McGrea, for the appellant.

      Jacob F. Miller, for the respondent.
   Opinion by

Daniels, J.;

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

Order modified as directed in opinion, and, as modified, affirmed, without costs of the motion or of the appeal to either party.


text:
    William R. Travers, Respondent, v. John McB. Davidson, Appellant.
   Reargument ordered upon printed briefs to be presented within twenty days after notice of the decision.


author: Potter, J.

text:
    Union Dime Savings Institution of the City of New York, Appellant, v. Francis J. Clark, Respondent.
   Order affirmed on the opinion of

Potter, J.


text:
    William F. Kidder, Respondent, v. John Bowne and others, Executors, etc., -. Joseph Richardson, Petitioner, etc., Appellant.
   Order reversed, without costs. Opinion

Per Curiam.


author: Daniels, J.

text:
    Valentine Walter, Appellant, v. Conrad Stein and Alexander Stein, Respondents.
   Judgment reversed, new trial ordered, with costs to abide event. Opinion by

Daniels, J.