author: Haight J.

text:
    Annie Reinhardt, App’lt, v. Frank Fritzsche et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Civil damage act—Not repealed by chap. 403, laws 1892.
    Chapter 646, Laws 1873, known as the civil damage act, is not a penal statute, and was not repealed hy chap. 403, Laws 1892, giving a right of action for damages caused hy the sale of intoxicating drink in cases where notice prohibiting such sale had been previously given. The latter act was intended to and must be considered as a,n amendment and limitation of tlie former act.

      % Same—Accrued rights.
    Chap'er 403, Laws 1891, has no retroactive force and cannot affect a right of action matured and vested before its passage.
    Appeal from a judgment entered in Monroe county dismissing the action upon the pleadings.

      Walter S. Hubbell, for app’lt; George F. Yeoman, for resp’ts.
   Haight J.

This action was brought under chapter 646 of the Laws of 1873, known as “The civil damage act,” to recover damages for the loss of the plaintiff’s means of support by reason of the death of her husband caused from intoxicating liquors sold to him by the defendants.

His death occurred on the 13th day of April, 1890. This action was commenced on the 19th day of May thereafter, and the trial took place on the 27th day of June, 1892. The complaint was dismissed upon the ground that the civil damage act of 1873 had been repealed.

By chapter 401 of the Laws of 1892 the legislature revised and consolidated the laws relating to the sale of intoxicating liquors. By § 40 of that act it is provided that “No recovery shall be had in any civil action brought to recover damages suffered by reason of the intoxication of any person against a person or persons who shall by selling or giving away any intoxicating drink have caused such intoxication, unless one of the persons who might have such a cause of action in case of such damage shall prior to such sale or giving away have given written notice to the person selling or giving away such intoxicating drink forbidding such sale or giving away to the person whose intoxication shall have caused such damage.”

One hour after the approval of this act chapter 403 of the Laws of 1892 was approved by the governor. It .is entitled “An act in relation to excise.” The first section authorizes the boards of excise in cities to appoint a clerk, etc. The second section is as follows: “A recovery may be had in a civil action of the damages suffered by reason of the intoxication of any person from any person or persons who shall by selling or giving away intoxicating drink have caused such intoxication, or from any persons owning or renting or permitting the occupation of any building or premises wherein such selling or giving away shall have occurred jointly with the person or persons selling or giving away or severally, if the person or persons suffering such damage shall previous to such selling or giving away have given written notice to the licensee or his agents, or the person or persons "so selling or giving away, forbidding such selling or giving away to the person whose intoxication shall have caused such damage, and not otherwise.”'

Chapter 646 of the Laws of 1873, known as the civil damage act, provides that “Every husband, wife, child, parent, guardian,, employer or other person who shall be injured in person or property or means of support by any intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name against any person or persons who shall by selling or giving away intoxicating liquors have caused the intoxication in whole or in part of such person or persons, and any person or persons owning or renting or permitting the occupation of any building or premises and having knowledge that intoxicating liquors are to be sold therein shall be liable severally or jointly with the person or persons selling or giving intoxicating liquors aforesaid, for al.l damages sustained, and for exemplary damages; and all damages recovered by a minor under this act shall be paid either to such minor or to his or her parent, guardian or next friend as the court shall direct; and the unlawful sale or giving away of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant under any lease or contract of rent upon the premises.”

Other provisions of the act give justices of the peace in the county jurisdiction to try and determine cases under this act where the amount of damages do not exceed two hundred dollars, and to three justices of the peace jurisdiction where the damages claimed do not exceed five hundred dollars.

The trial judge appears to have been of the opinion that the civil damage act is a penal statute, and that it was repealed by chapter 403 of the Laws of 1892.

We differ with him upon both propositions. _

As to the first, it has been held by this court that the statute is not in any sense a penal statute. That it imposed no penalty and contemplated no violation of the law; but gave a remedy for damages suffered. Hall v. Germain, 37 St. Rep., 320-321; Com-stock v. Hopkins, 40 id., 568-9.

That question must therefore be regarded as disposed of so far as this court is concerned.

As to the other proposition, it appears that chapters 401 and 403 of the Laws of 1892 were passed about the same time and were approved by the governor on the same day, one within a short time after the other.

In chapter 401 there was a general revision and consolidation of the laws regulating the sale of intoxicating liquors, and yet by the provisions of that act there was no attempt to repeal the civil damage act. It in fact preserved it by the provisions of § 40 which we have quoted, and which it will be observed is based upon and refers to the civil damage act in the clause: “Unless •one of the persons who might have such a cause of action in case of damage,” &c.

Ho person could have “such a cause of action” except for the civil damage act. It is given by that statute, and would not exist without it. It is thus recognized, referred to and impliedly preserved, though greatly limited.

We are consequently brought to the consideration of the provisions of chapter 403.

The rule is, that where there is no repealing clause in a statute, and that and a former one can stand together, and both have effect, they will generally both be held to be in force; but where a revising statute covers the whole subject matter of a prior statute, and such plainly appears to have been the legislative intent, the revised act is deemed to contain the entire law upon the subject, and virtually repeals the" former enactment. In the Matter of N. Y. Inst. for Deaf and Dumb, 121 N. Y., 234; 30 St. Rep., 921; People v. Gold & Stock Tel. Co., 98 N. Y., 67-78; Heckmann v. Pinkney, 81 id., 211-215; Ellis v. Paige, 1 Pick., 43; Bartlett v. King, 12 Mass., 537.

The act under consideration contains no repealing clause. There is nothing in its provisions giving a right of action that is repugnant to the provisions of the civil damage act. It limits the right to recover to the cases in which notice had previously been given by persons injured to the person selling, forbidding the sale, etc. But this does not deprive persons previously injured, or those subsequently injured who have given the notice, of their right of action. It is not entitled, nor does it. purport to be, a revision of the civil damage act; It does not cover the whole subject matter of that act. It provides that a recovery may be had in a civil action of the damages suffered by reason of the intoxication of any person, etc. It will be observed that it is silent as to the persons that may maintain the action, and as to the damages that may be recovered. It. is undoubtedly true that it was intended, and that it should be construed as giving a right of action to any person who has. suffered damages; but it contains no provision as to the kind or nature of damages that may be recovered.

A widow or child at common law could recover no damages because of the death of a husband or father from intoxicating drinks, although they might both suffer by reason thereof in their means of support. Damages of that character were not known to the common law, Volans v. Owen, 74 N. Y., 526-529 Mead v. Stratton, 87 id., 493-496, but were given by the civil damage act.

Without that act they could not maintain an action, for the reason that they could not prove any damages. The word “ damage,”" as used in the latter act, would only permit evidence of such matter as constituted damage at common law, and at the same time there is nothing - in the use of the word that is repugnant to the provisions of the former act giving damages to means of support.

The latter act contains no provision in reference to recoveries-in behalf of minor children or as to the jurisdiction of courts before whom actions based thereon may be tried. It treats upon the subject embraced in § 40 of the revised act, is “ in pari materia therewith and they should be considered together.

We think, under the circumstances disclosed, that it was not the legislative intent to repeal the civil damage act, but that the latter act was intended to and must be considered as an amendment, and limitation of the provisions of the former act.

The rule doubtless was that actions could not be maintained upon penal statutes creating criminal offenses after the repeal thereof. Sturgis v. Spofford, 45 N. Y., 446-452: Knox v. Baldwin, 80 id., 610 ; Curtis v. Leavitt, 15 id., 1-229 ; Hartung v. People, 22 id., 95.

Whether this rule has now been changed by the Laws of 1892, chapter 677, § 31, it is unnecessary to now determine, for as to statutes not penal, under which rights have accrued and become vested, the rule is that statutes amending the same have no retroactive force unless the legislature so declare. Matter of Miller, 110 N. Y., 216-223 ; 18 St. Rep., 226; Reid v. Mayor, 52 id., 69.

In Dwarris on Statutes and Constructions, 162, note 9, it is said : “ The American authorities are quite uniform on the retroactive effect of statutes. The general rule is that no statute, however positive in its terms, is to be construed as designed to interfere with existing contracts, rights of. actions or statutes, and especially vested rights, unless the intention that it shall so operate is expressly declared, and courts will apply new statutes only to future cases unless where there is something in the very nature of the case, or in the language of the new provision, which shows that they were intended to have a retroactive operation. And although the words of the statute are broad enough in their literal extent to comprehend existing cases, they must yet be construed as applicable only to cases that may thereafter arise, unless contrary intention is unequivocally expressed therein.”

In Smith v. People, 47 N. Y., 330, it is said that “A statute should not be so construed as to work a public mischief unless required by words of the most explicit and unequivocal import. In the construction of statutes effect must be given to the intent of the legislature whenever it can be discerned, though such construction seems contrary to the letter of the statute.”

In Suburban Rapid Transit Co. v. Mayor, 126 N. Y., 510-523; 40 St. Rep., 498, Gray, J., says: “A construction of an act should be avoided which would injuriously affect the rights of others, •and that sense should be attached to its provisions which will harmonize its objects with the preservation and enjoyment of all existing rights.”

In Bullock v. Town of Durham, 64 Hun, 380; 46 St. Rep., 459, the plaintiff was injured because of the failure of the town to maintain proper guards upon a bridge. Thó injury occurred on the 14th day of August, 1890. In June, 1890, the legislature passed an act requiring, as a pre-requisite to an action against a town for such an injury, the presentation to the supervisor of the town of a verified statement of the cause of action within six months after it accrued, and that no action should be commenced until fifteen days after the service of such verified statement. The act was to take effect on the first day of March, 1891. It was held that inasmuch as the act did not go into effect until March, 1891, it would not, in the absence of an express intention to that effect, operate upon a cause of action which accrued in August, 1890.

In Sanford v. Bennett, 24 N. Y., 20, it was held that the statute of 1854, chapter 130, exempting from prosecution for libel the publishers of legislative debates, is prospective only, and is no defense for a publication prior to its enactment.

In Vanderhar v. Rensselaer & Saratoga Railroad Co., 13 Barb., 390, the action was brought to recover the value of an animal killed by an engine by reason of the failure of the defendant to construct a cattle guard as required by chapter 140 of the Laws of 1848. Hand, J., in delivering the opinion of the court, says: “ Neither the provisions of the act of 1850, nor its repealing clause, take away th e plaintiff’s cause of action, if he had any under the act of 1848. It was not a penalty that he claimed, but damages for an injury to his property, and if by the law of the land he had a right of action for that, it was not taken away by the repeal of the statute.”

The plaintiff has brought this action to recover the damages which she has sustained by reason of the death of her husband. 'The action is for damages. A right of action is given by the civil damage act. Her right had matured and become vested before the passage of chapter 403 of the Laws of 1892. The provisions of that act are not by the terms thereof made retroactive, and we think they should not be construed so to be.

The Law of 1892, chapter 677, is entitled “An act relating to the Construction of Statutes.” Section 31 contains the following provision: “The repeal of a statute or part thereof shall not affect or impair any act done or right accruing, accrued or •acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be ■asserted, enforced, prosecuted or inflicted as fully and to the same extent as if such repeal had not been effected, and all actions and proceedings, civil or criminal, commenced under or by virtue of -any provision of a statute so repealed and pending immediately prior to the taking effect of such repeal, may be prosecuted and ■defended to final effect in the same manner as they might if such provisions were not so repealed.”

This act was approved May 18th, 1892, eighteen days after •chapter 403.

It is claimed that this enactment would not have the effect to restore a cause of action which had been lost; that the repeal of the statute giving the right of action could not be restored under the provision of this section.

We quite agree with the respondent to this extent, but it will be observed that the chapter relates to the construction of statutes. It provides how statutes must be construed, and the effect that ■shall be given to the repeal of a statute.

Under the view taken by us of this case the construction of this statute becomes unimportant, and we leave it with the remark that actions of the character discussed are preserved unless we now have two rules for the construction of statutes—one for statutes existing prior to the passage of the act and another for those passed after.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

• Dwight, P. J., Lewis and Macomber, JJ., concur.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Nellie Quinlen, by Guardian, Resp’t, v. James H. Welch, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Civil damage act—Action may be maintained by posthumous child. An infant which was en venire sa mere at the time of its father’s death and is afterwards horn alive is a child within the meaning of the civil damage act, and may maintain an action under said act for the father’s death.
    Appeal from a judgment entered on a verdict at the Cattaraugus circuit, and from an order denying a motion for a new trial made upon the minutes.

      J. Arthur Corbin, for app’lt; F. W. & E. F. Kruse; for resp’t.
   Haight, J.

This action was brought to recover damages under chapter 646 of the Laws of 1873, known as the “ civil damage act.”

The evidence tends to show that the defendant was the owner of the premises and rented them to one O’Leary; that intoxicating drinks were sold to Dennis Quinlen; that he became intoxicated, wandered upon the railroad track and was run down and killed by a passing train.

The plaintiff is a daughter of the deceased, but was born one -day after his death, and the question is as to her right to maintain this action.

The act gives a right of action to every husband, wife, child, etc., who shall be injured in person or property or means of support by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, against any person or persons who shall, by selling or giving away intoxicating liquors, have caused the intoxication in whole or in part of such person or persons, and any person or persons owning or renting or permitting the occupation of any building or premises and having knowledge that intoxicating liquors are to be sold therein.

The question, therefore, is as to whether the plaintiff is a child within the meaning of this statute.

She was, as we have seen, en ventre sa mere, and such a child, for the purpose of enabling it to take an estate or for any purpose which is for its benefit, is regarded to be in esse if it should after-wards be born alive.

Blackstone says such an infant is supposed to be born for many purposes. It is capable of having a legacy or a surrender of a -copyhold estate made to it. It may have a guardian assigned to it, and it is enabled to have an estate limited to its use and to take afterwards by such limitation as if it were then actually born. 1 Blaclcstone’s Com., 130.

It has been held that the civil rights of such an infant are equally respected at every period of gestation; and it is clear that, no matter at how early a stage, it may be appointed an executor, is capable of taking as a legatee or under a marriage settlement, may take specifically under a general devise as a child, and may obtain an injunction to stay wastes. Wharton’s American Criminal Law, 537; Com. v. Parker, 9 Metc., 263; State v. Cooper, 2 Zabriskie, 57; Smith v. State, 33 Maine, 48; Matter of Winne, an infant, 1 Lans., 508-513 ; Marsellis v. Thalhimer, 2 Paige Ch., 35; Hone v. Van Schaick, 3 Barb. Ch., 488-509; Jenkins v. Freyer, 4 Paige Ch., 47-53; 10 Am. and Encylopedia of Law, 624.

We are aware that these cases chiefly relate to the distribution of estates of deceased persons, and it may be claimed that the rule adopted in such cases should not be applied to the one under consideration.

Our attention has been called to no case in which the civil damage act has become the subject of judicial construction as to this question.

The statute gives to a child the right of action for an injury to its means of support.

A child during the years of its infancy before arriving at an age that it can care for and maintain itself is entitled to receive support from the parent, and if deprived of such parent, suffers damage in its means of support. An unborn child, if subsequently born alive, if deprived of a parent suffers in its means of support equally with the children that were living at the time of the decease of such parent. Such a child, as we have seen, is regarded as in being and is placed upon an even footing with the living children in reference to the distribution of the estate of a deceased parent; and no reason is apparent why the same right should not be extended to such a„ child under the act in question.

In the case of The George and Richard, L. R., 3 Adm., 466, an action was brought in admiralty to limit the liability of the owners of the brig “ Greorge and Richard,” against the owners of the bark “Eluthuria.” A collision had occurred between the vessels, the result of which was the drowning of Philip Royes. He left a widow him surviving enciente. The widow appeared in the action in behalf of her unborn child, and it was held that-in case the child should be born alive it would be entitled to damages, and the judgment entered in the case reserved the rights of the infant when born to prefer its claim before a register. The action was based upon an act known as Lord Campbell’s Act, 9 and 10 Viet., c. 93. It gave to the widow and children compensation in cases where the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action at common law. As damages it gave the pecuniary loss. The decision was based upon the theory that had the father of the child not been killed by the collision, he would, in the ordinary course of things, have contributed to the support of the-child when born.

In this respect the case has an important bearing upon the one under consideration.

In the case of Walker v. The Great Northern Railway Company of Ireland, 28 Ir. L. Rep., 69; S. C. 26 American Law Review, 50, reference to which is made in vol. 43 Albany Law Journal, 464, the action was brought bv the infant for the damages it had sustained before birth whilst the mother was travelling upon the defendant’s railway. It was held she could not recover, but the decision appears to have been placed upon the ground that the railroad company had contracted only to carry the mother, to whom it alone was liable for any injury resulting from the negligence of its servants; that whilst the railroad company must be regarded as the common carrier of the mother, under the law of the “ Emerald Isle,” as understood by the court, the mother was the common carrier of her unborn child.

We do not regard this case as in conflict with any of the views expressed in the case of the George and Richard, supra.

The questions raised in reference to the repeal of the civil damage act, by chapter 403 of the Laws of 1892, have been considered by us at this term of court in the case of Reinhardt v. Fritzsche. See opinion by Haight, J.

The judgment should, therefore, be affirmed.

Dwight, P. J,, Lewis and Macomber, JJ., concur.


text:
    William A. Grainger, Resp’t, v. Thomas A. Smyth et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Injunction—Damages.
    In an action for dissolution of a copartnership and an accounting, the complaint asked for a temporary injunction, which was granted. The answer denied the allegations of the complaint, and set up a counterclaim. On the trial judgment was entered dismissing the complaint and awarding judgment on the counterclaim for defendant. Held, that this was a final determination that plaintiff was not entitled to the injunction within the meaning of the provision of § 620 of the Code, authorizing the recovery of damages sustained by reason of the injunction in such a case.
    Appeal from an order of the Monroe special term, denying a motion to confirm the report of a referee appointed to ascertain the damages sustained by the defendants by reason of a temporary injunction issued in the action.

      Richard Van Voorhis, for app’lts; John M. Murphy, for resp’t.
   Haight, J.

This action was brought to dissolve a copartnership and for an accounting. The plaintiff asked for a temporary injunction restraining the defendants from collecting, receiving, or in any manner interfering or meddling with or disposing of the partnership debts, moneys, notes or other property, and that a receiver be appointed. A temporary injunction was issued upon the complaint and the affidavit of the plaintiff verifying the matters alleged therein, which was served with the summons and complaint. The defendants answered putting in issue the allegations of the complaint upon which the plaintiff’s right of action depended, and setting up a counterclaim. Upon a stipulation of the parties the case was referred to a referee to hear, try and determine. Upon the day appointed for the trial before the referee the parties appeared by their attorneys, but the attorney for the plaintiff submitted no evidence in support of the allegations of his complaint. The defendants produced testimony sustaining their counterclaim, and thereupon the referee made his report, upon which judgment was entered dismissing the plaintiff’s complaint and awarding judgment in favor of the defendants for the amount of their counterclaim.

Thereafter, upon the motion of the defendants, an order of reference was made to ascertain the damages sustained by them by reason of the temporary injunction. A hearing was had before the referee, who made his report to the effect that the defendants had suffered damages in the sum of $173. A motion was thereupon made at the Monroe special term to confirm the report, and it was thereupon “ordered that the motion to confirm said report be, and the same is hereby denied upon the ground that it does not appear from the judgment in the action that the court has decided that the plaintiff was not entitled to such injunction order, and therefore the defendants are not in a position to demand any damages by reason of such injunction order.” From this order the defendants appeal to this court.

It has been held that where the parties voluntarily settle the action, or where the same has been discontinued upon the application of the plaintiff, or where the same has abated on account of the death of a party, an order of reference will not issue to ascertain the damages sustained by reason of the injunction under § 623 of the Code of Civil Procedure, for the reason that the court has not finally decided that the plaintiff was not entitled thereto under the provisions of § 620. Palmer v. Foley, 71 N. Y., 106-111; Hall v. Sexton, 19 St. Rep., 677; S. C., 3 N. Y. Supp., 549 ; Johnson v. Elwood, 82 N. Y., 362; N. Y., W. S. & B. R. Co. v. Omerod, 29 Hun, 274.

But in the case of the Pacific Mail Steamship Co. v. Toel, 85 N. Y., 646, it was held that where a plaintiff who has obtained a preliminary injunction, after it has been served, enters an order vacating it, and subsequently, without the consent of the defendant, obtained an ex parte order discontinuing the action, these orders are equivalent to a determination that the plaintiff was not entitled to the injunction, and defendant is entitled to an order of reference to ascertain his damages by reason thereof.

In Amberg v. Kramer, 8 N. Y. Supp., 821; 29 St. Rep., 958, it was held by the first department, that where a temporary injunction had been vacated upon the application' of the defendant, the plaintiff consenting thereto and the action having been discontinued by the plaintiff, that there had been a determination that the plaintiff was not entitled to the injunction and that the defendant was entitled to his order of reference. And in Manufacturers & Traders’ Bank v. Folk, 21 N. Y. Supp., 806; 50 St. Rep., 802, it was also held by the first department, that where the temporary injunction is granted upon the complaint, that the plaintiff’s right thereto depends upon the establishment judicially of the facts pleaded, and the dismissal of the action for want of prosecution is a final decision within the provisions of the Code. See also Weeks v. Southwick, 12 How. Pr., 170; Taaks v. Schmidt, 19 id., 413; Cunningham v. White, 45 id., 486; Carpenter v. Wright, 4 Bos., 655.

In the case of Benedict v. Benedict, 15 Hun, 305, affirmed 76 N. Y., 600, the action was brought to compel a specific performance of a verbal agreement to convey real estate, and a temporary injunction was obtained restraining the defendant from encumbering the place or collecting rents thereon pending the trial. Upon the trial the referee decided that the agreement was void, but held that the plaintiff had a vendor’s lien upon the land which he directed to be foreclosed, and ordered a sale as in case of a mortgage, making no reference or direction as to the injunction. In that case it was held that the judgment did not determine that the plaintiff was not entitled to the injunction. This, however, was made upon the ground that the judgment was really a determination in favor of the plaintiff, and is not in conflict with the cases above cited.

Upon the case under consideration, as we have seen, there has been a judgment entered after trial dismissing the plaintiff’s com plaint. This is a final determination that the plaintiff had no cause of action. If he had no cause of action he had no right to a temporary injunction. It follows that the judgment is a final determination by the court that the plaintiff was ' not entitled, to the injunction within the meaning of the provisions of the Code referred to.

The order of the special term should be reversed, with ten dollars costs and disbursements, and the motion granted.

Lewis and Bradley, JJ., concur.


text:
    John B. M. Stephens, Rec’r, Resp’t, v. Mary J. Perrine et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Chattel mortgage—Failure to file in seasonable time.
    In order to take advantage of the invalidity of a chattel mortgage by reason of a failure to file it within a reasonable time, creditors must first acquire a lien upon the property by virtue of a levy or other legal process, and that must be done before the mortgagor has disposed of his interest therein, or before the mortgagee has reduced the property to possession and sold it to satisfy his claim.
    Appeal from a judgment entered in Monroe county upon the report of a referee.

      William B. Hale, for app’lts, Albert H. Harris, for resp’t.
   Haight, J.

This action was brought to adjudge a chattel mortgage fraudulent and void as against the claims which the receiver represents, and directing the defendant, Mary J. Perrine, to account for the value of the property sold by her by virtue of the mortgage.

The defendants, Frank Aldrich and Charles W. Perrine, were co-partners engaged in business at the city of Rochester; on the 24th day of February, 1892, they borrowed from the defendant, Mary J. Perrine, $2,250, and on the next day, to secure such loan, executed and delivered to her a chattel mortgage upon certain personal property belonging to them. On the 30th day of March, 1892, she caused the mortgage to be filed in the office of the clerk of Monroe county and on the same day took possession of the property, advertised and subsequently sold it. On the 4th day of April, 1892, Bradley Red field and another recovered a judgment against the defendants, Aldrich and Perrine, and on the 19th day of April thereafter an order was made by the county judge of that county, in proceedings supplementary to execution had upon the judgment, appointing the plaintiff receiver of the property of the defendants, Alrich and Perrine.

The referee has found as facts that “ the chattel mortgage was made by the defendants, Frank Aldrich and Charles W. Perrine, without any intent on their part to hinder, delay or defraud any of the creditors of the said firm; that said chattel mortgage was received by said defendant, Mary J. Perrine, to secure a valid indebtedness and without intent on her part to hinder, delay or defraud any of the creditors of said firm.” And as conclusions of law, that the chattel mortgage is void as against the plaintiff and judgment creditors whom he represents, and that the plaintiff is entitled to judgment against the defendant, Mary J. Perrine, for the sum of $1,017.43, with interest, costs, etc. Exceptions were taken to these conclusions of law, which present the questions brought up for our review.

It is contended on behalf of the respondent that the judgment can be sustained upon the authority of Thompson v. Van Vechten, 27 N. Y., 568; Vreeland v. Pratt, 42 St. Rep., 582; Karst v. Gane, 61 Hun, 533; 41 St. Rep., 361. Whilst on behalf of the appellants it is claimed that the receiver in supplementary proceedings cannot maintain the action.

Does a cause of action exist under the facts as found ? The cases upon which the respondent relies do not sustain his right to recover; they merely hold that a chattel mortgage not filed, of a chattel not delivered, is void as to a creditor at large, and that the term creditor used in the statute includes any person whose debts accrued either before or after the chattel mortgage was given, but before it was filed. One case, that of Karst v. Gane, has recently been affirmed in the Court of Appeals, 49 St. Rep., 740, and we must consequently consider that question settled. But a very different question is here presented. In this case the mortgage was given in good faith, and was free from the taint of fraud. The mortgagee filed the mortgage, reduced the property to possession and sold it by public sale before the recovery of the judgment upon'which the plaintiff was appointed receiver.

Under the statute, the mortgage was void as to creditors for the reason that it was not filed within a reasonable time after it was given. Their position in reference to the property was the same as if no mortgage had been given. It was subject to the levy of an execution or other legal process. But whilst the mortgage was void as to creditors, it was valid as to the mortgagors. Before the lien of the creditors attached they had the right to sell the property, subject of course to the lien of the mortgagee, or to dispose of the property in payment of the mortgage debt. They could even sell it to the mortgagee for a fair price in payment of her claim, thus dispossessing themselves of any interest in the property, or right of redemption ; it would be but the preferring of the claim of one of their creditors and the others would have no cause of complaint. It would be the same as if there had been no mortgage and the defendants Aldrich and Perrine had seen fit to sell the property to the defendant Mary in payment of her claim. This they unquestionably had the right to do. Hence, it follows, that creditors, in order to take advantage of a void mortgage by reason of its not having been filed, must first acquire a lien upon the property by virtue of a levy, or other legal process, and that must be done before the mortgagor has disposed of his interest therein or before the mortgagee has reduced the property to possession and sold it to satisfy his claim.

In the case of Thompson v. Van Vechten, supra, Denio, Ch. J., in delivering the opinion of the court, says: “ It is true the

mortgage cannot, be legally questioned until the creditor clothes himself with a judgment and execution, or with some legal process against his property; for creditors cannot interfere with the property of their debtor without process.” In the case of Jones v. Graham, 77 N. Y., 628, it was held that one not having a judgment and execution is not such a creditor as can take advantage of an omission to file a chattel mortgage. To the same effect is Button v. Rathbone, Sard & Co., 126 N. Y., 187; 36 St. Rep., 945; Bullard v. Kenyon, 21 N. Y. Supp., 32; 49 St. Rep., 132; Field v. Baker, 12 Blatchford, 438-443; Lane v. Lutz, 3 Abb. Ct. App. Dec., 19-26.

Jones on Chattel Mortgages at § 243 says, “Possession taken under a mortgage, or a record of it made shortly before the insolvency or bankruptcy of the mortgagor, is sufficient to protect a mortgagee.” And again he says, “The mortgage is valid between the parties without either record or possession, if it be made at a time when the law imposes no restriction upon the dealings of the parties with reference to creating a preference, although the mortgagee delays to record it, or to take possession under it, until a short time before the mortgagor’s insolvency, when the law would prohibit the making of the mortgage as a preference ; yet the mortgage may then be made effectual by the mortgagee’s recording it, or taking possession under it, because he only asserts and makes secure a right which he had previously acquired.” And again at § 245 he says, “as against general creditors, having no lien by attachment, an unrecorded mortgage is valid and conclusive, unless it can be impeached as fraudulent, or as giving a preference under a bankrupt or insolvent law. But in New York it is held that a mortgage not duly filed is void as against a general creditor whose claim has accrued during the continuation of the default in filing the mortgage, although the creditor is not in a position to raise the question until he has obtained a judgment or process against the property. The object of the act is to prevent the setting up of secret mortgages against persons who may deal with the mortgagor on the faith that his property is not thus encumbered.” In the case of Hale v. Sweet, 40 N. Y., 97-103, it is said by James J., in his dissenting opinion, that “ as between mortgagor and mortgagee, the instrument was a valid and binding security, notwithstanding the omission to file. A breach of its conditions entitled the mortgagee to take possession of the property mortgaged, and if he did so before any lien of a creditor of the mortgagor attached, such possession would hold the property.” That case was disposed of upon other grounds, but the prevailing opinion does not question the soundness of the proposition quoted.

In Powell v. Preston, 1 Hun, 513, it was held that a conditional sale of goods under which the title was to remain in the vendor until certain moneys should be paid by the vendee, the sheriff will not be protected in levying upon the goods under an execution against the vendee, when before such levy the vendor had taken possession of the goods, and that in an action brought by the vendor against the sheriff for taking and selling the'goods, it was held that in the absence of fraud he was entitled to recover their fair value. In the case of Tremaine v. Mortimer, 128 N. Y., 1; 38 St. Rep., 740, Sewell had executed a chattel mortgage to one Chase, the mortgage was filed, but it was not re-filed until about six months after the expiration of the year, and subsequently the mortgagee took possion of the property, default having been made in the conditions thereof. The day following Sewell made a general assignment for the benefit of creditors. Subsequently the property was levied upon and sold by virtue of executions issued upon judgments that had been recovered against Sewell. In an action by the purchaser under such sale for a conversion of the property, it was held that he acquired no title to the property under the sale on the executions, and the complaint was dismissed, .Earl, J., in delivering the opinion of the court, says : “While the mortgage in the cases mentioned in the act is valid as between the parties thereto, it is void as to the creditors of the mortgagor. But the act confers no title to the property upon the creditors, and by virtue of the act they take no interest in it. The mortgage is not to be treated as made for their benefit, and the mortgagee does not hold the property in trust for them. The effect of the statute is simply that in the cases mentioned, as between the creditors and the mortgagor, the mortgage has no force or operation whatever, and the case is to be treated as if .the mortgage had never existed. While the mortgage is void as to creditors, they cannot touch the property until they come with an execution. As between the mortgagor and creditors, if the latter can claim that the mortgage had no existence, so also can the former make the same claim. They cannot at the same time assert its invalidity and validity. They cannot seize the property as belonging to the mortgagor, and at the same time denjr that he has any title to the property. They must consequently stand upon the position that the mortgage is a nullity. As between them and the mortgagor, both parties have the right to act as if the mortgage had never existed, and before the creditors obtain a lien on the property by virtue of their executions, the mortgagor may deal with the same in any honest way. He may sell it and convey absolute title, subject to any rights the mortgagee has; or he can deliver the property to the mortgagee in payment of the debt secured by the mortgage.”

In Wheeler v. Lawson, 103 N. Y., 40; 2 St. Rep., 791, Shoemaker executed a chattel mortgage to the plaintiff’s assignor. The mortgage was not filed. .Ele subsequently made a general assignment for the benefit of creditors. The assignee, with the consent of Shoemaker, surrendered the property to the plaintiff as assignee of the mortgage, from whom it was taken by the sheriff upon an execution issued upon a judgment against Shoemaker, rendered after the property came into the possession of the plaintiff. It was held that the invalidity of the mortgage by reason of its not having been filed did not justify the taking of the property upon the execution. In Kitchen v. Lowery, 127 N. Y., 53 ; 37 St. Rep., 329, it was held that a creditor can only avail-himself of the omission to file a chattel mortgage when he has a judgment, and proceeds under it to obtain a lien upon the mortgaged property by levy, or otherwise, and that this must be done-before the mortgagee has reduced the property to possession and sold it. In Karst v. Gane, 49 St. Rep., 740-744, Andrews, Ch. J., in delivering the opinion of the court, after speaking of the failure to file the mortgage for six weeks, says “ The simple contract-creditor runs the risk of having his remedy to assail the mortgage defeated by a bona fide transfer of the property by the mortgagor to the mortgagee in payment of the mortgage before he has-obtained judgment and execution, or any lien on the property."

The question thus appears to be settled beyond controversy. As-we have seen, the mortgagee had reduced the mortgaged property to possession,-sold it, and applied the proceeds upon her claim before any judgment was obtained or lien perfected against the property; and under the cases to which we have referred she cannot now be made to account for the proceeds of the sale.

Whether a receiver appointed in supplementary proceedings could maintain an action of this character under a different state of facts it is not necessary to now determine. If the mortgaged property was still in the possession of the mortgagor, where it, could be reached upon execution, no action would be necessary.

Upon the appointment and qualification of a receiver he becomes vested with the property of the judgment debtor. If before such appointment the mortgagee has seized the property upon his mortgage and sold it, he, by that act, divested the mortgagor of all interest in the property or right of redemption, leaving nothing to pass to the receiver upon his appointment. In this case the title of none of the mortgaged property vested in the receiver. Under the statute he is authorized to disaffirm, treat as void and resist all acts done, transfers and agreements made in fraud of the rights of creditors. But the referee having found as a fact that the transaction in question was not fraudulent, we fail to see how the plaintiff can maintain this action.

The judgment should be reversed and a new trial ordered, costs to abide a final award of costs.

Dwight, P. J., Lewis and Macomber, JJ., concur.


author: Peckham, J.

text:
    The People, Resp’ts, v. Martin Foy, Jr., App’lt.

      (Court of Appeals,

      Filed June 27, 1893.)

    1. Homicide.
    Defendant having parted with deceased in anger, caused by jealousy, left the town and on his return said, as he was getting off the cars, that he had come to “ kill her and Dick Shay, ” and in the afternoon of the same day, as he met her on the street, deliberately shot her. As she fell he shot, her again, and then after inflicting two slight wounds upon himself, emptied another barrel of his pistol at the dying woman, saying he knew she was dying and he was glad of it. Later he said he was sorry she was still-alive. Held, that the deed was too deliberate for- any verdict less than, murder in the first degree.

      2. Same—Charge—Insanity.
    Upon the return of the jury without having agreed upon a verdict the court stated that “ the insanity the law speaks of is that which comes by physical visitation of G,.d; it is something that makes the man-helpless, so that in killing a person he acts as though unconscious, with inability to control himself, as though the subject were struck by lightning.” The court had previously given correct instructions as to insanity. Held, that upon the merits it was apparent that no harm was suffered by the defendant from the charge, as the whole case was barren of evidence upon which to base a claim that the defendant was insane when the act was committed.
    -8. Same.
    The defendant requested the court to charge that insanity produced by jealousy or anger, if it incapacitate the subject from knowing right from wrong, would be a defense; to which the court assented by saying “if there is any such thing as insanity produced by jealousy, or revenge, or wrath, genuine insanity; I do not mean turbulence of passion produced by desire for revenge, but if there is any genuine insanity produced by any cause, then so far, as affecting the prisoner, it is the same as any other kind of insanity,” following it with an explanation that “ the heat of passion and feeling produced by motives of anger, hatred or revenge, is not insanity. The law holds the doer of the act under such conditions, responsible for the crime; because a large share of homicides committed are occasioned by just such motives as these.” Held, no error.
    Appeal from judgment of the Saratoga oyer and terminer, -convicting defendant of murder in the first degree.

      Willard J. Miner, for app’lt; J. S. E Amoreaux and John Person, dist. atty., for resp’ts.
   Peckham, J.

The defendant was indicted for the murder of one Henrietta Wilson, in the village of Saratoga, on the 13th of May, 1892, and upon the trial of the indictment at the Saratoga oyer and terminer, held in January, 1893, he was convicted of the crime and sentenced to death. From the judgment of conviction he has appealed to this court; In examining the record for the purpose of seeing whether justice requires a new trial, which in such case we have authority to grant, we entertain no doubt wbat•ever of the propriety of the verdict. The evidence, in our judgment, shows most conclusively that the defendant has committed a deliberate and cruel murder. That he was laboring under the passion of jealousy and was very angry with his victim, the evb dence shows quite conclusively. It appears that he had known the woman for some time, and that a short period before the murder he had said to her in a conversation in Saratoga, which was overheard, that he intended to go away, and she remonstrated and said as long as she had a dollar.he could have it, and he replied that she had ruined him; that he was broke, and she was throwing him out; that she had another mash, and that he was going away. He did go away and was gone a short time, and then came back to Saratoga, and said he had come to kill her and Dick Shay. This was said on the morning of the 13th of May, 1892, as he got off the cars, and at about 6:15 or 6:30 in the afternoon he shot the woman.

The murder was committed in one of the public streets of the village, and while several people were on the street and in the immediate neighborhood. The defendant was evidently waiting for the woman, and when he saw her coming along the street he •walked toward her at a quiet pace, and upon coming up with her pointed his pistol at her head and deliberately shot her. She fell, -and he then shot her again while she was lying on the sidewalk. He then pointed the pistol at himself, and fired two shots, inflicting slight wounds upon his scalp, and falling down near his victim he heard her moan, when he forthwith emptied another ban-el of his pistol at the dying woman and accompanied the shot with ■an oath, saying he knew she was dying, and he was glad of it, and that it was all for love; that Dick Shay had done it.

The woman lived about a day. The defendant was taken to the lockup the evening of the shooting, and inquired the next day how the woman was, and when told she was still alive, said with ■an oath that he was sorry for it, that he had tried hard enough to kill her. and himself, and was sorry he had not killed both. He isaid he had pawned his overcoat in Hew York to get the pistol and a ticket to come to Saratoga to kill the girl. He was taken into the presence of the woman soon after the killing, and when identified by her, he said, “ Yes, I shot you and I hope you will ■die, and I am willing to suffer for it.” He said Shay was the ■cause of all of it, Shay and Martin, and that he had intended to kill thém also.

The case thus made against the defendant was met by him with an effort to prove a kind of temporary insanity. The effort completely failed. The evidence in regard to his insanity is hardly sufficient to even give color to the defense, and the whole record leaves no doubt upon our minds that any verdict other than one for murder in the first degree would have been a sad miscarriage •of justice. The defendant was seemingly carried away by his brutal passion of rage, intermingled with jealousy, and he indulged such passion to the extent of murdering the woman who was the cause of his jealpusy. There was nothing to bring the case down to murder in the second degree, or to any of the degrees of manslaughter. The deed was too deliberate for anything of the kind, and the plea of insanity was wholly without evidencé to support it.

There were some exceptions taken during the course of the trial, but we think there is not merit enough in them to call for their discussion.

The counsel for the defendant criticizes to some extent the charge of the learned judge upon the subject of what constitutes insanity, although the point to which he has directed our particular attention lie did not except to. It is that portion of the charge given upon the return of the jury without having as yet agreed upon a verdict, where the court stated that the insanity the law speaks of is that which comes by physical visitation of God; it is something that makes the man helpless, so that in killing a person he acts as though unconscious, with inability to control himself, as though the subject were struck by lightning.

The court had prior to that time given correct instructions as to insanity, and subsequent to that time it explained to the jury the law upon the subject. Upon the merits it is apparent that no harm was suffered by the defendant from this charge, for the whole case is barren of evidence upon which to base a claim that-the defendant was insane when the act was committed, or at any other time.

The court in fact did, both before and after this expression, explain fully to the jury the law upon the question of insanity, and: it is too clear for discussion that the defendant has suffered nothing at the hands of the court upon this branch of the case.

The defendant also complains of the charge made in reference to his request that insanity produced by jealousy or anger, if if incapacitates the subject from knowing right from wrong, would be a defense. To which the court assented, by saying, “if there is any such thing as insanity produced by jealousy, or revenge,, or wrath, genuine insanity; I do not mean turbulence of passion-produced by desire for revenge, but if there is any genuine insanity produced by any cause, then, so far as affecting the prisoner, it is the same as any other kind of insanity.” The defendant can find no fault with that definition. The court very properly continued with an explanation to the jury that “ the heat of passion and feeling produced by motives of anger, hatred or revenge, is not insanity. The law holds the doer of the act, under such conditions, responsible for the crime; because a large share of homicides committed are occasioned by just such motives as these.n

The remarks of the court to the jury upon the occasion of the reading to them the evidence of the witness, Carswell, were entirely proper.

The record shows that the court had no thought of asking the jury to decide the case upon the testimony of any one witness to the exclusion of any testimony that was before them. It is apparent from the questions put by the jury that some one or more-of the members thereof had conceived the idea that the fatal shot, possibly was not fired by defendant until he had shot himself twice, and that he might, after he was himself thus injured, have-fired the last shot at the deceased, which possibly was the fatal one, and that when he did so he might have been temporarily insane, and not, therefore, responsible for his act. However extraordinary this theory might in any event be, it is clear the court, had the evidence read for the purpose of showing that the facts: left no foundation upon which to base it. The evidence of the-witness who saw all the shooting is to the effect that the defendant, shot the deceased first in the head and that she then fell, and that, the second shot was pointed at her back as she was lying on the-sidewalk. And after the second shot he fired twice at himself and then a final one at the deceased. The wound in the back was. the fatal one, and was fired before he shot himself. The evidence: of the witness Smith is not in the slightest degree contradictory of this testimony. He first heard a shot and scream, and then he looked out of the window of the house where he was and saw defendant shoot; the defendant stood over the deceased and held the revolver down like that (illustrating), and the witness saw the smoke and heard the report. The witness does not pretend the second shot that was fired was not in the back of the deceased. There is-no merit in the point here urged.

- We have carefully read and considered all the other points made by the learned counsel for the defendant in his exhaustive brief on the subject, but fail to find any ground for disturbing the verdict. It would have been most unfortunate for the administration of justice, as.we think, if upon the whole evidence in this -case any other verdict had been rendered.

The judgment must be affirmed.

All concur.


author: Per Curiam.

text:
    Newton Squire, Resp’t, v. Peter H. McDonald et al., App’lts. Newton Squire, Resp’t, v. Benjamin B. Senia el al., App’lts.1

      (Court of Appeals,

      Filed June 27, 1893.)

    1. Appeal—Order granting leave to go to court of appeals.
    An .order granting leave to appeal to the court of appeals is insufficient unless it states the ground of the appeal.
    3. Same—Substitution of attorneys.
    An order of substitution of attorneys should only be made by the court of appeals after the returns are filed in that court, but an irregularity in this respect is not .necessarily fatal to an application to dismiss the appeal ' made by an attorney duly authorized by the respondent to appear for him.
    Appeals from judgments of the New York common pleas, general term, affirming judgments in favor of plaintiff in actions upon undertakings given to obtain orders of arrest.

      Kenneson, Crain & Ailing, for app’lts ; Rudd, Hunter & Wilder, for resp’t.

         See 50 St. Rep., 762 ; 51 id., 220.

   Per Curiam.

The judgments from which the appeals in these -cases have been taken involve amounts less than $500, and an order was obtained from the general term giving leave to the defendants to appeal to this court. This motion is made in behalf of the respondent to dismiss the appeals on the ground that the order giving leave to appeal does not state any ground. Subdivision 3 of § 191 of the Code of Civil Procedure explicitly provides that an appeal cannot be taken from a judgment if the matter in controversy is less than $500, unless the court below, by an order made at the general term which rendered the determination, or at the next general term after judgment is entered thereupon, allows the appeal on the ground that a question of law is involved which ought to be reviewed by the court of appeals. So much of the provision as requires that the order should state the ground mentioned had been enacted by the legislature in chapter 322 of the Daws of 1874. In the case of Bastable v. The City of Syracuse, 72 N. Y. 64, this court had occasion to consider the form of the order prescribed by the act of 1874, and held, because the order of the -general term in that case was lacking in the statement of the ground which is lacking in the order in this case, that it was not a compliance with the act of 1874, and dismissed the appeal. The -decision in that case is authority for the dismissal of these appeals.

The appellants object that Mr. Wilder, who as attorney for the respondent moves for, the dismissal of the appeal, has no standing' to make'the motion, inasmuch as he was substituted as attorney for the respondent by an order made in the court below after the-returns were filed in this court. While that practice is irregular and such an order of substitution of attorneys should only be made by order of this court after the returns are filed here, nevertheless, we do' not think the irregularity of the procedure is such as to preclude our acting upon this application to dismiss. There is no question but what the respondent’s attorney has been authorized to appear for him, and the fact that he has failed to proceed in a regular manner to cause his substitution through an order of this court is not necessarily fatal to the application now made in behalf of the respondent

In view of the lack of importance of the questions involved in these cases, and of the smallness of the amounts in controversy, we do not think the matter should be remitted to the court below, as requested by the appellants.

The appeals are dismissed, with costs.

All concur.