author: Parker, J. Comstock, J.,

text:
    The People ex rel. The German Looking Glass Plate Company, App’lt, v. Edward P. Barker et al., as Commissioners of Taxes, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January, 1894.)

    1. Taxes—Assessments.
    The commissioners of taxes are justified, by admissions in the statement submitted to them, in refusing to reduce or cancel an assessment, where the right is only established by figures in the same statement.
    3. Same.
    Upon a proceeding under chap. 269 of 1880, the facts theretofore submitted to the assessors are conclusive upon the relator.
    '3. Same.
    No grievance will be considered upon such a proceeding which was not urged upon the assessors in the application to them.
    4. Same.
    Upon a statement that the capital of a corporation is worth par, its estate may be held equal in value to the amount of the capital stock shown to have been paid in.
    Appeal from order dismissing relator’s writ of certiorari to review an assessment.

      Ten Eyck & Remington (Sandford R. Ten Eyck of counsel), for .app’lt; William H Clark, counsel to the corporation (George S. Coleman, James M. Ward of counsel), for résp’ts.
   Parker, J.

The relator, a foreign corporation organized under the laws of West Virginia, and having an office in the city of New York, has a nominal capital of $1,000,000, of which $595,000 has been paid in.

It was assessed for purposes of general taxation on its -personal estate for 1892 in the sum of $500,000, the assessment being made pursuant to the provisions of chapter 37, Laws of 1855, § 1 of which provides: That all persons and associations doing business in the State of New York, * * * and not residents of this state, shall be assessed and taxed on all sums invested in any manner in said business, as if they were residents of this state.” * * *

The relator was notified of the assessment, and while the books of annual record were open for examination, between the second Monday of January and the 1st day of May, 1892, it applied to have the assessed valuation reduced from $500,000 to $20,132.88, and filed with the commissioners a statement purporting to show its condition as of the second Monday of January, 1892. So much of the statement as purports to relate to the value of the estate of the corporation was as follows:

“ The amount of the capital it has invested in business in the city of New York, including the value of its office furniture, safe, samples, fixtures, money in bank and otherwise used in business, will not exceed the sum of $
Importers of German looking-glass plates.
Cash........................................ $30,964 78
Good bills receivable.......................... 298,817 23
Open merchandise............................ 10,084 73
Open accounts. ............................... 144,478 93
Owed for merchandise, including goods ......... $484,345 67
Afloat...................................... 464,212 79
$20,132 88
The capital is Worth par.”

It has recently been decided in People ex rel. E. E. L. Co. v. Barker, 139 N. Y., 55; 54 St. Rep., 444, that when a corporation presents to the taxing officers having jurisdiction of it for the purpose of assessment evidence as to the value of its assets, which is so full and complete as to establish the basis of facts upon which its claim for reduction rests, and is not contradicted by other facts within their knowledge, and no good reason appears for doubting its truth, a refusal of such officers to decide in accordance with the evidence thus presented constitutes legal error. The commissioners, after making an examination of the statement which the relator presented to them, decided to reduce the assessment from $500,000 to $100,000, and the assessment was accordingly re- < duced. As the corrected assessment was still more than $80,000 more than the relator insisted would be a proper assessment, we shall first inquire whether the evidence furnished by the relator justified the determination by the commissioners.

The figures presented by it, of course, do not, but the statement contained an admission which, it seems to us, authorized the decision made.

It declares that the capital is worth par. The word “ capital ” in the connection in which it was used has a well-defined meaning, for it and.“capital stock ” are used indiscriminately to designate the estate of the corporation.

Comstock, J.,

in People v. Commissioners, 23 N. Y., 192, cited and approved in People v. Coleman, 129 id., 438; 38 St. Rep., 237. And such estate is the subject of valuation for the purposes of assessment. People v. Coleman, supra. The stock of the corporation was $1,000,000, but only $595,000 had been actually paid in, and for that amount stock had been issued, and the natural meaning of the phrase employed therefore was that the estate of the corporation was equal in value at least to the amount paid in, or $595,000. Deducting from such amount relator’s debts, as per its statement, $464,212.70, and a valuation for the purpose of assessment results of over $130,000, which exceeds the corrected assessment by over $30,000.

If the views expressed be correct, it follows that the commissioners were authorized in the determination made by the statement itself. In this proceeding a referee was appointed to take testimony and report to the court, and the general manager of relator, who was the only witness called, denied the truth of the admission contained in the statement. He did not state what its actual value was, and it seems to us- that the proof otherwise offered establishes that the estate of the corporation was at least of the admitted value.

The testimony shows that the relator owned at the time goods not accounted for as a part of its assets in the statement made amounting to $575,000, which, added to its admitted assets of $484,345.67, made a total of $1,059,345.67; deducting from such amount its debts, $464,212.97, and we have the actual value of the estate of the corporation, which is nearly $600,000. It thus appears that the admission contained in the statement was, in fact, true. The relator’s reason for not including the value of the goods not accounted for was that the goods were in original packages, and, therefore, exempt from taxation. Its claim being that it was only entitled to have the value of such goods deducted from the total value of the assets of the corporation for the purposes of taxation, but the indebtedness owing abroad and incurred in its purchase as well.

Whether its position in that regard be well taken we shall not consider, because not necessary to the disposition of the case. We have referred to it because it tends to show that the admission was true, and it was likely made for that reason. Had the statement contained the facts proved here touching the amount of money invested in goods in original packages, as well as that relating to the value of its other assets and the amount of its debts, the statement would have been consistent, and the question which it attempts to present for the first time in this proceeding would have been brought to the attention of the commissioners.

But that was not done, and if it be conceded that the evidence taken before the referee shows that such of its assets as were subject to taxation were of less value than that placed upon it by the commissioners, it cannot avail the relator in this proceeding, for the commissioners had a right to rely on the statement made, and if it was incorrect, the relator is without redress.

In People ex rel. Mutual Union Tel. Co. v. Commissioners, 99 N. Y., 254, the deputy tax commissioner having ascertained from the certificate of incorporation the capital of the relator, assessed it at the full amount. Afterward notice was given that the books were open, but the relator made no application for a reduction until after the books had closed. The relator thereupon instituted a proceeding to review the assessment under chapter 269 of the Laws of 1880; but the court held that, having failed to avail itself of the opportunity to remedy its grievance by application to the tax commissioners,- its remedy was gone.

If the remedy there sought called for such a construction of the statute, clearly the court must deny redress to a party obtaining a reduction to one-fifth of the original assessment upon a verified statement seasonably made, and who then attempts to secure a still further reduction upon an allegation that the statement was erroneous in one particular.

The order should be affirmed, with fifty dollars costs and disbursements.

Van Brunt, P. J., concurs.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    The People ex rel. Jennie Isaacs et al., App’lts, v. The Warden of the District Prisons, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Court of special sessions—Constitution.
    If, at a duly appointed term of the court, three of the justices present themselves and proceed in its conduct, the court is legally constituted, though an assignment of justices has not been made, or, if made, the justices are for some reason unable or neglect to appear.
    2. Same—Commitment.
    A commitment consisting of a transcript provided for in § 1575, chapter 410 of 1882, as amended by chapter 269 of 1889, so certified by the deputy clerk, is sufficient, and need not be attested in the name of a justice, or signed by the clerk.
    3. Same.
    The deputy clerk, in so certifying, need not sign the name of the clerk.
    Appeal from an order of the special term of the supreme court dismissing a writ of habeas corpus.

      Morris Goodhart, for app’lts and relators; Delaney Nicoll and Randolph B. Marline, Jr., for resp’t.
   Parker, J.

The commitment under which the relators have been committed to the district prisons of New York recites that they wére convicted of a misdemeanor, and ordered imprisoned therefor, for the term of six months. After it was delivered to the proper officer for execution, the relators petitioned for and obtained a writ of habeas corpus, commanding the warden of the prison to have the relators, together with the time and cause of their imprisonment and detention, before a special term of this court. At the special term, where the writ was dismissed, the relators and appellants, as here, assigned several grounds of error of procedure, either of which they claimed require a determination that they are illegally detained, and command the issuing of the writ which the term ordered dismissed. They were:

1st. The court of special sessions, which pretended to try and convict the relators, was not legally constituted, and its acts were, therefore, of no effect.

2d. The commitment is defective, because not attested in the name of any justice or signed by the clerk of the court of special sessions.

The first ground is founded upon an alleged failure of the justices to meet in convention and assign justices to hold the court in question, as provided by chapter 410, Laws 1882, § 1572.

That section reads: “ The court of special sessions may be held as often and at such times as the justice thereof may deem expedient. It may be held by any three of the police justices, who shall sit alternately, except that one of their number shall be elected to preside, and the said justices shall meet in convention and assign the justices to hold the several terms of said court.”

What the justices did do was to pass the following resolution :

“Three justices shall be assigned to hold the court of special sessions for terms of six months, beginning January 1 and July 1, respectively, and during the period of such assignment they shall not be required to hold police courts. In case of the absence or disability of any justice so assigned, any other justice may act as a member of said court. Two justices shall be assigned to each police court for terms beginning January 1 and July 1, respectively. The justices holding the police courts in the first, second and third districts for the month of August shall also hold the court of special sessions.”

And subsequently to meet in convention, and assign justices to the several courts for terms beginning January 1 and July 1,1898, respectively; but, as the latter part of the resolution quoted provided that the justices holding police courts in the first, second and third districts for the month of August should also hold the court of special sessions, an assignment of justices by name was not made.

The court was, in fact, held by the three police justices, assigned to hold the first, second and third districts for the month of August. It would seem as if that which was done amounted to an assignment of the justices for the August term, assuming that an assignment was necessary to constitute a legal court. It was as effectual to accomplish .the desired purpose as if the justices were named.

The statute does not require that they should be named, but simply assigned, which is accomplished by the doing of anací which operates to fix, specify or select.

Declaring by resolution that the three justices holding police courts for that month shall also hold the court of special sessions during the same time, when they have already been selected for the first named purpose, specifies, we think, the justices with sufficient definiteness. But we prefer to rest our decision upon the bi’oader ground that a designation of justices to hold a given term, made by all the justices met in convention, is not essential to the creation of a legal court. That if, at a duly appointed term of the court, three of the justices present themselves and proceed in its conduct, the court is legally constituted, although an assignment of justices has not been made, or if made, for some reason the justices assigned are unable or neglect to appear.

A brief examination of the section will furnish sufficient support to this position.

The first sentence commits to the discretion of the justices thereof the authority to determine when the court shall he held. The)'- are not required, as are some courts, to designate in advance, and for a fixed period, the number of terms which shall be held in a county, or judicial district, and fix the time when said terms are to begin. But they may, at any time when they deem it expedient, cause such a court to be held. Having clothed the justices with absolute authority to hold the court whenever they should deem it expedient to do so, the statute next declares who may hold it. It does not say that three justices, selected by a convention of all the justices met for that purpose, shall hold the court, but that “ It may be held by any three of the police justices.” So, if at a court of special sessions, which the justices thereof have deemed expedient to hold, any three of their number sit, the court is legally constituted under the statute. The further provision of the section that the “Justices shall meet in convention, and assign the justices to hold the several terms of the said court,” does not in any wise qualify the express provision preceding it, that the court may be held by any three of the police justices.

The object which the framers of the section had in view in providing for a convention of the justices to assign the members thereof to hold the several terms of court is apparent. Upon them collectively devolves the duty of providing for such a number of terms of court, with justices to hold them, as will dispose of all the cases within the jurisdiction of the courts over which they are requested to preside. As all are charged with equal responsibility, and vested with equal authority, no one of them would assume to map out the work of his associates, and if he should, his labor would quite likely be wholly ineffectual.

The statute, therefore, provides an orderly way in which the work of such courts may be apportioned among the justices, not for any fixed period, but for such time as they may deem wise. That being done, it is subject to such changes, by arrangement among themselves, as the justices may be compelled to make on account of sickness, or prompted to bring about for their personal convenience.

Illness may prevent all of the justices assigned to a given term from holding it; but, as we read the statute, it will not result in a failure of the term if three other justices appear and sit.

The commitment which the officer was proceeding to execute consisted of a transcript of the entry of conviction on the minutes of the court of special sessions and of the sentence thereof, duly certified by the deputy clerk of said court. The contention that it is defective, in that "it is not attested in the name of any justice, or signed by the clerk of the court of special sessions, is sought to be founded on chap. 410, Laws of 1882, § 1569, which provides that the court of special sessions has jurisdiction “by warrant attested in the name of any one of the justices authorized to hold the court, signed by. the clerk thereof and entered in the minutes of the court to enforce its judgments and orders.” * * *

Subsequently, and by chap. 269 o£ the Laws of 1889, § 1575 of the consolidation act was so amended as to provide that the ■clerk or deputy clerk is authorized to make and deliver to the sheriff a transcript of the entry of conviction from the minutes of the court of special sessions, and of the sentence therefor, duly certified by the said cleric or deputy clerk, which shall be sufficient authority to such sheriff or deputy to execute such sentence.

This is precisely what was done, and even if § 1575 was originally intended to provide for such a case as this, which we do not decide, it is inconsistent with § 1575 as it now stands, which, being a later amendment, must control.

The suggestion that, under § 1575, a certification- of the sentence, if made by the deputy clerk, must be in the name of the clerk by the deputy clerk, is without force, for the statute distinctly authorizes either the clerk or the deputy clerk to certify the sentence.

The further points made by the appellant have been considered, but do not merit discussion.

The order should be affirmed, with ten dollars costs, and printing disbursements.

Van Brunt, P. J., and Follett, J., concur.


author: Van Brunt, P. J.

text:
    Thomas F. Burke, as Administrator, etc., Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Negligence—Degree op care.
    A person crossing a railroad track is bound to exercise the care of a person of ordinary prudence ; the exercise of “any” care is not sufficient.
    3. Same—Contributory.
    The mere turning of the head is insufficient, when it is plainly apparent, from the conceded facts, that the deceased, if she had actually-used her eyes, could have seen the danger and avoided it.
    Appeal from judgment entered upon the verdict of a jury and from order denying motion for a new trial.

      J). W. Tears, for app’lt; W. F. ¡Severance, for resp’t.
   Van Brunt, P. J.

This action was brought to recover $5,000 by the next of kin of one Joanna Burke, who was struck and fatally injured by one of the trains of defendant at the crossing of the Spuyten ÍBuyvil & Port Morris Bailroad. called Hanlon’s crossing, on the 26th of July, 1890. On the trial the plaintiff had a verdict for $5,000, and fronrthe judgment entered thereon, and from an order denying a motion for a new trial, the defendant has appealed.

rPhe question presented upon this appeal is whether, upon the conceded facts, the plaintiff has shown that the deceased was free from any negligence which contributed to the accident ?

It appears from the evidence that the deceased had lived at Spuyten Duyvil in the same house in which she lived at the time of the accident, upon the east side of the tracks and immediately in view of the crossing at which she was killed, for about twenty years. On the 26th of December, 1882, an ordinance was approved by the mayor which required that there should be maintained on each side of steam surface railroads at crossings in the Twenty-third ward, gates, which should be kept down for one minute before the approach of trains, for the protection of persons intending to cross the .railroad. It appeared that, although there were gates at each side of -the crossing in question, the gateman who was in charge was not on duty after 7:30 in the evening and before 7 o’clock in the morning, and never had been since the passage of such ordinance and the erection of the gates.

According to the testimony offered upon the part of the plaintiff, the deceased was seen about a quarter past nine in the evening coming over the crossing and passing along the road, and some five or ten minutes afterward, returning and going toward her house, which was beyond the crossing where she was seen.

One witness testified that he saw the woman turn her head up the track and saw her turn it down again and saw the train, from the corner of the house, come along and she just got right in the way of it, and the train came along and took her out of the way. The witness further testified that no bell was rung or whistle blown, and that the train, in their opinion, was running from twenty to twenty-five miles an hour.

The only witness who actually saw the accident, when requested to give the jury an idea of how quick this whole thing happened, answered: “It happened-—I could not judge how quick it happened. Q Yery quick? A. Yes, sir. Q. Like a flash, almost? A. Yes, sir.”

It was proved by one of the witnesses on the part of plaintiff that the deceased passed him going towards Hanlon’s crossing on the evening in question, and that he saw the train about seventy-five or 100 feet before it reached him, and that he heard the noise of the train as it went by, and the “chug,” “chug” of the engine. This witness, however, did not see the accident when it occurred.

It was proved upon the part of defendant, without attempt at contradiction, that the track for a distance of 350 feet from the crossing was substantially straight and ran side by side with the highway; and that the nearest structure to the crossing, or obstruction to the view, was a building situated 360 feet south of the crossing; and that a person approaching the railway, as the deceased is testified to have done, at any point within thirty-eight feet from the outer rail of the track upon which she was hurt' could see a train approaching from 300 to 600 feet, day or night. It further appears that the head-light on the engine was burning, but there was a conflict of testimony as to the speed of the train, the defendants claiming that it had stopped at a signal station, about 700 feet from the crossing, and was getting up speed, instead of running at full speed. It was also testified upon the part of the defendant that the bell was being rung by the fireman at the time of the happening of the accident.

It, therefore, appears from the evidence that the train must have been in full sight at the time the deceased stepped upon the track. The testimony of the only witness who saw the accident is that she was struck as soon as she stepped upon the track, which could not have occurred had any appreciable interval of time elapsed between her stepping upon the track and the arrival of the train. The witness at first testified that when the deceased first came along she had a shawl on her head; but, evidently becoming aware of the tendency of this testimony, he stated that it was not exactly on her head, it might have been around her shoulders, and then he boldly took back what he had deliberately sworn to, and said he did not see the shawl upon her head at all.

Taking the most favorable view of the testimony offered upon the part of the plaintiff at the time that the deceased was at the edge of the track, this train must have been in full sight; and if she first looked up the track, and then turned her head around towards Spuyten Duyvil, it is evident she did not look, because if she had looked, she must have seen the train.

Now it is not sufficient, in order to discharge the obligations which rest upon a person attempting to cross a railroad track, to show that the head was turned in one direction or another. But there must be some evidence tending to show that the deceased not only turned her head but used her eyes, for the purpose of detecting an approaching train, and that, in consequence of obstructions, if you please, or of a fog, or something of that kind, she was unable to detect the danger. Where it is plainly apparent that a person, by the use of his eyes, could have seen the danger and avoided it, it seems to be trifling with the rules of law to say that, simply because the head was turned in one direction or another, he has, therefore, complied with the plain dictates of ordinary prudence. This rule was expressly laid down in the case of Tucker v. N. Y. Central & H. R. R. Co., 124 N. Y., 308; 36 St. Rep., 272, and seems to be entirely consistent with reason. While railroad companies are held to care and diligence in the management of their railroads, in order that accidents to persons who may be compelled to cross the same do not happen, yet a corresponding duty is owed by those who are crossing such railroads of using ordinary care and prudence to avoid the dangers to which' they may be exposed. And it has been long settled that it is necessary for a party attempting to cross such an avenue of travel to look to see if there is any danger from an approaching train, and if they fail to do that then they cannot recover.

Now, if a person looks, she is supposed to look for the purpose of seeing, and if an object is in plain sight and she apparently looks, but does not see it, it is manifest she does not do what she appears to do, and has not complied with the rules of law.

In the case at bar, as already stated, the evidence shows conclusively that the deceased could have seen this train and could have avoided it if she had used her eyes for the purpose for which they were intended. ’

Upon examination of the charge of the learned court, it will be seen that the jury had an erroneous impression in regard to the burden of proof on this question of care, and the degree of care which the deceased was bound to use.

The court charged that it was the duty of the deceased, as she was about to cross that track, to exercise diligence and care in ascertaining whether or not a train was approaching, and if she failed to exercise the care that you would expect from a prudent person under the circumstances disclosed by the evidence, then the plaintiff cannot recover in the action. After calling attention to the testimony the court further said : “ You are to determine from this evidence whether, in fact, Joanna Burke did exercise any care in crossing the track, and if you come to the conclusion that she did not,” etc. It was not a question as to whether she exercised any care, but whether she exercised the care which the law has said a person of ordinary prudence will exercise under these circumstances.

The court further charged: “If you come to the conclusion that she did not look for the train, and by looking could have seen the train, and if you come to the conclusion that the accident happened because she did not look for the train, then the plaintiff was not entitled to recova'.” In other words, the jury were instructed that, unless they found that she did not look for the train, the plaintiff was entitled to recover; not, if they found that she did look and could not see the train because of obstruction, which would have presented the issue in a very different form. In the charge as given the burden of showing that she did not look was cast upon the defendant, when the burden of proving that she did not look was by the law thrown upon the plaintiff.

It was error, therefore, to refuse to charge, as requested, that the deceased was bound, in view of the evidence in this case, to turn her head and to look for the train before entering upon the track.

There may be a question also as of the amount of damages. There seems to have been no basis in the proof as tó pecuniary damage for the large sum awarded.

Upon the whole case, we think that the court erred in its disposition and that the judgment must be reversed and a new trial ordered, with costs to appellant to abide event.

Follett and Parker, JJ., concur.


text:
    The People, Resp’t, v. Matthew T. Dailey, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Evidence—Assault.
    Where, on a trial for assault in arresting complainant without a cause, it is shown that the arrest resulted from an interview in which complainant accused defendant of seducing her daughter, evidence of such seduction is competent to show defendant’s motive in making the arrest.
    Appeal from judgment of the court of oyer and terminer convicting the defendant of assault in the third degree.

      W F, Howe (of counsel), for app’lt; H. B. B. Stapler, for resp’t.
   Van Brunt, P. J.

The defendant was indicted for assault in the third degree, committed upon one Annie Hannen, on the 23d of April, 1892. The defendant pleaded not guilty, but upon the trial was found guilty of the crime charged in the indictment, and from the judgment thereupon entered this appeal is taken.

There seems to be some discrepancy both in the case and upon the points of counsel as to the date upon which the alleged assault was committed. The indictment charges that it was committed on the 23d of April, and the appellant’s counsel assumes that it was the 23d of April; but the case would seem to indicate that it was the 23d of May. Ho point has been raised, However, as to these dates; it is probable that some mistake had been made in the printing of the papers.

The complainant, after testifying to various interviews with the defendant leading up to the interview which resulted in her arrest, testified that, on the evening of the 23d of May, she saw the defendant at 318 Monroe street. She continues: “ He sent a little boy up to me to tell me there was an officer down stairs wanted to see me. I went down stairs; his wife was with him. I stood on the top step of my door and he got hold of my right arm with his left hand and put his club to my nose and called me a whore, and said, 1 Do you mean to say that I have kept company with your daughter a year? ’ ‘I said, ‘Ho, not a year; but you are the ruination of her.’ He said, 1 You damned whore, if you say that again I will arrest you.’ I said, ‘It is I that ought to be arresting you.’ I stepped down off the door and went about a yard or so away from the door. He took up his club to club me. His wife went over and got hold of the club. He told his wife to let go of that stick. My oldest son went up and said, 1 Don’t you club my mother.’ He said, ‘Yes, I will:’ and he called my son a name. He said, ‘ I will take you in.’ I said, ‘ Take me in, you wretch ; you are not satisfied to rain my daughter; you want to arrest me now.’ He arrested me. I sent up stairs for my clothes. All the children were shrieking until we got to the station house.”

She then testified that she was locked up at the station house, charged by the defendant with being disorderly and drunk, but on the next day was discharged. It was' claimed upon the part of the People that this course was resorted to by the defendant in order to put an end to the efforts which the complainant was making against him because of his conduct towards her daughter.

Several witnesses were called upon the part of the People in corroboration, including the daughter of the complainant, who, among other things, was asked: “Q. You are about to have a child, are you not? A. Yes, sir. Q. Is Mr. Dailey (meaning the defendant) the father of your child? A. Yes, sir.” This testimony was objected to and an exception taken.

The defendant was examined upon his own behalf, and testified as to the interview which resulted in the arrest of the complainant, as follows: “ She came down and she says, 1 Good evening;' I said, ‘ Good night; ’ she said, ‘ Are you Roundsman Dailey? ’ I said, 1 Yes, ma’m; ’ she said, ‘ Won’t you step upstairs? I want to talk with you ; ’ I said, ‘ If you want to talk with me you can talk with me down here; ’ she says, 1 You have my daughter in the family way, and the quietest way out of this is the best, and I want you to make some kind of a settlement, as I have no house or money to keep my daughter, and I want to-make an arrangement to send her to the hospital; ’ I said, 11 don’t know you, and I don’t know your daughter; ’ she said, ‘You are Roundsman Dailey?’ I said, ‘ Yes, but I don’t know you or your daughter; ’ and she said, ‘You stinking son of a bitch,’ and with that she grabbed me by my coat, and she pulled two buttons off my dress coat, and she says, ‘I will show you whether you know me or my daughter or not; ’ with that I sent' a rap out on the sidewalk for assistance, and nobody answered, and she came over and caught bold of ■ my collar and pulled the side of my collar off; I then sent out another rap, and nobody came, and then I said, ‘ I will take you to the station house,’ and she said, ‘Ho, you son of a bitch, I will take you to the station house; you are my prisoner; ’ and she grabbed hold of my arm and pulled me to the sidewalk, and she started to run up, and then she caught hold of her son’s arm, and she said, ‘I wouldn’t walk on the same'side of the street with you,’ and she went along until we reached Delancey street, and then she walked along about ten feet with me, and then went up to her son again, and caught hold of her son’s arm, and walked from there to the station house.”

And certain other evidence was offered for the purpose of eotroborating the testimony of the defendant.

It is now urged that it was error to admit the testimony of the daughter which has been excepted to, that: “ The issue before the jury was not whether the defendant was or was not guilty of the charge made against him by the complainant in reference to her daughter, nor was the jury to determine whether the defendant was the father of the child of which Mamie Hannan was then pregnant.”

In answer to this objection, it is urged upon the part of the People that this testimony was competent in order to prove the motives which caused the defendant to act in the manner in which he was claimed to have acted by the complainant and the making of the arrest without cause; and that this was in the mind of the court in admitting the testimony was clear, because throughout the charge the question of motive is continually kept before the mind of the jury; that if the arrest was made in the performance of a public duty, the jury were instructed that the defendant was not guilty ; but if made because of a sinister motive, and not for the purpose of the preservation of the public peace, then the defendant was guilty.

It would seem upon an examination of the rule in this state, as developed by one or two cases to which reference may be had, that no error was committed in the introduction of this testimony.

In the case of Pierson v. The People, 79 N. Y., 424, the appellant had been convicted of murder in the first degree in causing the death by poison of one Withey in February, 1877. Upon the trial, after evidence had been given upon the part of the People showing an intimacy between Mrs. Withey and the prisoner, who was a married man, before and after the death of Withey, and that the prisoner departed from his home on the 19th of February, 1877, eleven days after the death of Withey, the prosecution called one Butterfield, a clergyman who resided in Michigan. He testified that the prisoner called at his residence with Mrs. Withey on the 26th of February, 1877. The witness was then asked what took place at that time. This was objected to and the objection overruled. The witness answered in substance that he married them ; that the prisoner had stated under oath that there was no legal objection to his marriage. The court held that the evidence was competent. “ Crime is never committed without a motive; and hence, on the trial of a person charged with crime, it is always competent to give evidence showing the motive which induced the criminal act. Where the crime is clearly proved, and the criminal positively identified, it is not important to prove motives. But where the casé depends upon circumstantial evidence, and the circumstances point to any particular person as the criminal, the case is much fortified by proof that he had a motive to commit the crime. Where the motive appears, the probabilities created by the other evidence are much strengthened. This evidence tended to prove that the motive which operated upon the prisoner was the desire- to have his, Withey’s, wife; that his passion for her was so absorbing that he was determined to overcome all obstacles standing in the way. One obstacle was the husband, and he was murdered. Marriage was either necessary or desired ; and when he was confronted with the necessity of taking the oath which he could not truly take, he overcame that obstacle also by falsely taking it. Thus, to accomplish his end, he commits two crimes, and the last has an intimate relation to the first. By the last he consummates the purpose in part achieved by the first; and the fact that he would take this false oath and enter into this marriage shows the overpowering nature of the motive which impelled him. That such proof is competent, even if it tends to prove another crime, has frequently been decided. The People v. Wood, 3 Park. Cr. R 681; Stout v.The People, 4 id., 71, 132.

So, in the case of Pontius v. People, 82 N. Y., 339, the appellant was indicted for assault and battery, with intent to kill, and convicted of the offense. Upon trial of the indictment, the prosecution gave in evidence certain notes, purporting to have been made or indorsed by the complainant, and also a bank account. Testimony was then given by the complainant and others, showing that the signatures of the complainant to the notes were forged. After the case for the prosecution was closed, the prisoner’s counsel moved that the court direct the jury to disregard all the evidence tending to establish the forgery, and the court denied the motion. Upon appeal it was held that the evidence was properly received, and the court did not err in retaining it; that it was competent, as showing the existence of a motive for the commission of the offense charged, and none the less so because it also proved the commission of another crime.

Now in the case at bar the question of motive was one which was most prominently before the jury; but the evidence objected to was not of the serious character which was considered in the cases above cited. It did not prove that the defendant had been guilty of a crime. The evidence as to his intercourse with this girl, if it commended itself to the jury, tended strongly to support the claim of the motive advanced by the people. It does not seem to have been error, therefore, to admit this testimony.

Various criticisms have been made in respect to the charge of the learned court, but there are none which seem to require any particular notice.

It is urged that: “The learned judge instructed the jury that, if Dailey had seduced Mrs. Hannan’s daughter and went to Mrs. Hannan for the purpose of inducing silence, and that Mrs. Han-nan had then been guilty of acts of disorderly conduct in the public streets, for which Dailey arrested her, that arrest would be unjustifiable solely because Dailey’s motive in going to the place was not a pure one.”

But an examination of the charge does not seem to sustain this criticism. The charge is that if defendant’s story was incorrect, and “ he came to this woman, prompted either by what may have been told by his wife, or even what may have been told by the two officers, Baker and Leonhard, and that he sought to silence her importunities in the manner which has been described by the witnesses, then, gentlemen, you are at liberty to find this defendant guilty.”

If a police officer provokes a breach of the peace, and incites to a breach of the peace, it is difficult to see how he can justify an arrest, when he is the guilty party, If the evidence of the complainant was true, if- there was any disorderly conduct it was upon the part of the police officer, and not upon the part of the complainant. And all that the learned court intended to instruct the jury was that if Dailey was committing a breach of the peace, he had no right to arrest the complainant because of her resistance.0

Upon the whole case we find no errors which call for a reversal.

The judgment should be affirmed.

Folleto and Parker, JJ., concur.


author: Follett, J.

text:
    Gustav A. Koke et al., App’lts, v. John Henry Balken et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November, 17. 1893.)

    1. Pleadings—Non joinder.
    An action may be brought against one of two wrongdoers, and nonjoinder of the other is no defense.
    2. Tenants in common—Purchase of common property.
    A tenant in common was held, under the circumstances of this case, not to have violated, in becoming the purchaser of the common property, any duty which he owed to his co-tenants.
    Appeal from a judgment dismissing the complaint on the merits entered on a decision of the special term.

      Josiah T. Merean, for app’lts; William B. Martin, for resp’ts.
   Follett, J.

This action is for the recovery of a judgment declaring that the defendants hold an undivided half of Wo. 117 Christie street upon a resulting trust for the plaintiffs, and that they be required to convey and deliver possession of the same to them, and that they account for rents and profits.

April 29, 1878, the premises in controversy were conveyed to John Balken and Frederick C. Koke, in consideration of $16,250, they becoming tenants in common, each owning an undivided half, subject to a mortgage of $10,000, which they assumed and agreed to pay. March 13, 1876, Frederick C. Koke mortgaged his undivided half of the premises to secure the payment of $1,500 on March 13, 1878, with interest, which mortgage was duly recorded. October 2, 1876, Frederick C. Koke died intestate, leaving him surviving his widow, Elizabeth F. Koke, and eight children, the plaintiffs in this action (of whom Elizabeth F.Koke is the mother), his heirs and next of kin. October 10, 1876, Elizabeth F. Koke was appointed administratrix of the estate of her husband and also the general guardian of her children, all of whom were then minors. February 21, 1878, John Balken and Elizabeth F. Koke entered into this agreement:

“Agreement made and entered into this 21st day of February 1878, between Frederika Koke, administrator of the goods, chat, tels and credits of Frederick 0. Koke, deceased, party of the firs-part, and John Balken, of the same place, party of the second part: Witnesseth, that the said party of the first part agrees to sell unto the said party of the second part the undivided one-half part of the house and lot known as Wo. 117 Christie street, in the city of Wew York, for the sum of nine thousand one hundred and seventy-five dollars, to be paid to her as follows, viz: The sum of sixty-five hundred dollars by assuming two mortgages for that amount, being a lien on said undivided one-half of the said house and lot, with interest from March 1, 1878. The sum of twenty-five hundred dollars by his bond secured by a mortgage on said premises, and payable in five years or sooner, with interest at the rate of seven per cent, per annum, payable half yearly. The sum of one hundred and seventy-five dollars in cash on delivery of deed. And the said party of the second part hereby agrees to buy the said undivided half of said premises for the price above stated, and pay for the same as above specified. The deed to' be delivered as soon as a decree of the surrogate of the city and county of Wew York shall be obtained for the sale of said premises. Party of second part to take possession and be entitled to the rents from March 1, 1878; said premises to be conveyed free and clear from all encumbrances, except as aforesaid. In witness whereof the parties hereto have hereunto set their hands and seals, on the day and year first above written.
“John Balken, (Seal.)
“ F. Koke. (Seal.)
“ Sealed and delivered in presence of F. W. Koke.”

April 1st, 1878, the $1,500 mortgage above mentioned was assigned by the mortgagee to Mary Balken, wife of John Balken, who paid the purchase price therefor. July 24, 1879, Mary Balken commenced an action in the court of -common pleas for the foreclosure of that mortgage, wherein Elizabeth F. Koke, individually and as administratrix, and her eight children were parties defendant. A guardian ad litem was duly appointed for the infant defendants. August 22, 1879, the usual judgment of foreclosure and sale was recovered in the •action, the amount found due being $1,650.48, with interest from March 16, 1878. Subsequently, the premises were sold, pursuant to the judgment, to John Balken, who received a conveyance, dated September 15, 1879, which was duly recorded. This sale was subject to the mortgage for $10,000. tinder this deed Balken entered into possession of the premises. December 1, 1879, John Balken executed a mortgage on said premises to Elizabeth F. Koke, as administratrix of her husband’s estate, for $2,500, with interest, no part of which had been paid except the interest thereon to June 1,1890. Said mortgage, together with $175 in -cash, was the consideration paid and secured to be paid by John Balken for the interest of the plaintiffs and of their mother in said premises. September 28, 1880, John Balken died, leaving Mary R. Balken, his widow, and seven children, his heirs at law, who are defendants herein. He left a will, which was duly admitted to probate, and letters thereon were issued to Jonas Stremmel, the executor therein named, who is a defendant in this action. By his will the testator devised all of his real estate to his widow during her life, or until her remarriage, and at her •death or remarriage he directed his executor to sell the same and divide the proceeds among his seven children. Subject to the life estate, the realty descended to the testator’s seven children. The widow is still living and has not remarried.

It is urged that Balken owed a duty to his co-tenants in common in respect to this property, and that he could not become a purchaser to their disadvantage. Assuming that one tenant in common, in no ways related to his co-tenant, owes this duty, we fail to find any evidence, in the admitted facts above stated, which would have authorized the court to have found that this duty was violated. It does not seem to us that the contract above quoted furnishes the slightest evidence of intentional bad faith on the part of either of the parties to it. It is expressly provided therein that the sale should be pursuant to a decree of the surrogate, which negatives any suspicion that the transfer of title was to be secret or fraudulent. Besides, it appears that the bond and mortgage executed by Balken for $2,500 was given, not to Elizabeth F. Koke individually, but to her as administratrix of her husband. This fact does not appear from the pleadings nor from the findings, but it is disclosed by Exhibits 8 and 9, read in evidence by the plaintiffs. This shows that the sale was not made by the mother of the plaintiffs for the purpose of converting the avails thereof to her own use. Having received the •security in her representative capacity, she is liable to account to her children for it, and the mortgage is still unpaid and can be easily reached by them. We do not think that the evidence re■ceived. would have warranted a judgment in favor of these plaintiffs and against these defendants. It is asserted that great injustice was done by the court’s refusing to permit Mrs. Koke to ■testify to certain facts, on the ground that she was disqualified under § 829 of the Code. The plaintiff offered to show by her that she received the rents and profits of the realty up to March 1, 1878. Assume that she did; she had the right to. Upon •the death of the father of the infants, tlieir mother became their guardian in socage (1 R. S., 718, § 5), and as such she had the right to receive the rents of their realty. Byrne v. Van Hoesen, 5 John., 66; Beecher v. Crouse, 19 Wend., 306 ; Emerson v. Spicer, 46 N. Y., 594.

October 10, 1876, she became the general guardian of the infants, and as such had a right to receive rents of the realty. 2 R. S., 150, §§ 3, 10; 2 Kent’s Com., 238. It may be said that the record does not show that she was the guardian of the estates as well as of the persons of the infants. If this be so, in that case the guardianship in socage continued, and she had the right to collect the rents in that capacity. The exclusion of this evidence did the plaintiffs no harm. The plaintiffs offered to show by Mrs. Koke: “That, in the summer of 1879, Mr. Balicen came to her and told her that he was advised that the surrogate could not make any such order, permitting her to sell, as this contract provided for, and that the only way the arrangement could be carried ■out, and that he could get title, would be by foreclosure of the second mortgage, and that he told her he would have the second mortgage and buy it in at the sale, and would, notwithstanding, give her the $2,500 mortgage, the same as he had agreed to in ■this contract, and told her that she need not attend the sale; that it was not necessary for her to take any notice of it at all; that he would attend to it.” This offer was rejected. Even if. the facts asserted in the offer had been proved or admitted, we do not think it would have furnished ground for the relief sought. All of the evidence tends to show that this sale was made openly and in the interests of the estate. The court found that, at the time of the .sale, the fair market value of the whole property was $20,000. It was subject to a mortgage of $10,000, which reduced the value of the equity of the tenants in common to $10,000, one-half of which •—$5,000—belonged to Balicen and $5,000 to the plaintiff. The amount due on the mortgage given by Koke on his share, at the time of the judgment of foreclosure, was $1,650, which reduced the value of the share to $3,350, for which, say nothing about the costs of foreclosure, Balken paid $2,675, which left a margin of only $675.

The witnesses all agreed that an undivided half of realty will not sell for as much at a private or judicial sale as the whole would bring sold together, and that the difference is from five to ten per cent, on the value of the property. From this evidence it appears that Ballcen did not deprive these plaintiffs of any part of that which was justly theirs. This sale was made in 1879. This action was begun March 24, 1891, twelve afterwards. The plaintiffs became of age at the following dates: Frederick W. Koke, March 21, 1877; Gustav A. Koke, August 24, 1878; Amelia Koke, December 25, 1879; Godfrey 0. Koke, October 26, 1883; Louisa Kolce, September 5, 1884; Emma Koke, July 2, 1888; Frederika Koke, February 5, 1890; William A. Koke, September 18, 1892. During all these years the adult plaintiffs have lain by until the property has greatly increased in value, and now seek to charge the heirs of Balicen, who had no part in the transaction, with the results of what they allege to be a concurrent fraud of their own mother and general guardian, and the deceased father of the defendants. The mother of these plaintiffs, if any wrong was done, was the principal wrongdoer, and the plaintiffs have their remedy against her. Of course, persons wronged may bring their action against one or two wrongdoers, and the fact that the other has not been joined is not a defense, but this is an equitable action, and the plaintiffs are bound to show some equities as against these defendants, which we think they utterly failed to do. The case at bar bears no likeness to Carpenter v. Carpenter, 131 N. Y., 101; 42 St. Rep., 718. In that case the uncles, who were tenants in common with their nephews and nieces, by a collusive sale of • the realty, defrauded the infants out of a large property, and the action was promptly brought against the wrongdoers.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Parker, J., concur.


author: Follett, J. O’Brien, P. J.

text:
    The People, Resp’t, v. Charles W. Gardiner, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Extobtion—Attempt to commit.
    Where there was no pretense that the complainant was induced by the threats of defendant to give the money to him, it does not constitute extortion or an attempt to commit such crime.
    2. Same.
    A conviction for an attempt to commit extortion cannot be sustained where the evidence conclusively shows the absence, on the part of the person against whom the crime is attempted, of a state of mind necessary to-make possible the perpetration of the crime attempted.
    3. Evidence—Motive.
    Where it is proved that the defendant has committed some act, and the motive with which it was done is material, he may testify in regard to his motive, and may prove facts by others tending to show his intent.
    Appeal from a judgment of the general sessions of the peace of the city and county of New York, convicting Charles W. Gardiner of an attempt to commit the crime of extortion.

      John W. Goff, for app’lt; Henry B. B. Stapler, for resp’t.
   Follett, J.

It is alleged in the indictment that at the city of New York, on the 4th day of December, 1892, the defendant attempted to obtain $150 from Catherine Ames by threatening to accuse her of keeping a disorderly house, and by means of such threat, put her in fear.

The following are the sections of the Penal Code under which the defendant was convicted:

“ Section 552. Extortion is the obtaining of property from another, with his consent, induced by a wrongful use of force or fear, or under color of official right.”
“ Section 553. Fear such as will constitute extortion may be induced by a threat, * * * 2. To accuse him * * * of any crime.”
“ Section 34. An act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime. ”
“ Section 685. A person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime was consummated, unless the court, in its discretion, discharges the jury and directs the defendant to be tried for the crime itself.”

The crime of extortion is not committed unless the person parting with his money is induced to do so by the wrongful use of force or fear; or under color of official right. Wo force was used by the defendant, nor did he obtain the money under color of official right, and there is no charge in the indictment of the use of force or of the assertion of official right.

In the criminal law, putting in fear is constructive violence. 2 Russ. Cr., 5 ed., 89-93. When fear is a necessary ingredient of a crime, it must actually exist at the time of the alleged commission of the offense, and if the person alleged to have been injured part with his money or property without at the time being in fear a crime is not committed. Rex v. Jackson, 1 East. P., 6; Addenda, xxi; 2 Russ. Cr., 5 ed., 104; Roane's Case, 2 Leach, 616; S. C., 2 East. P., 6, 734; 2 Russ. Cr., 5 ed., 104; 1 Bish. Cr. L,, 8 ed., § 436.

If, as in the case at bar, the complainant part with his money for the purpose of convicting the wrongdoer of a crime, no offense is committed because there is no putting in fear. Rex v. Fuller, R. & R., 408 ; 1 Whar. Cr. L. (8th ed.), 141-857. In the case last cited the person applied to Fry to lend him ten shillings, and, upon his refusal, threatened to charge him with an unnatural crime and got from him one pound and ten shillings. Fry parted with the money from an anxiety that his master’s family might not be disturbed and in expectation that he might secure the . prisoner. He immediately stated the circumstances to his master and to a friend, and planned with them what he should do in case the prisoner applied again. He did apply again, and Fry appointed a place where they would meet, marked some money, engaged a constable, and, having met the prisoner, gave it to him and had him arrested. He parted with his money in order that he might prosecute. This was held not to be putting in fear. 2 Russ. Cr. (5th ed.), 110; 1 Bish. Cr. L. (8th ed.), 437.

The evidence in behalf of the people, which, we must assume, was believed by the jury, established every ingredient of the crime of extortion, except that Catherine Ames was induced by fear to give $150 to the ‘ defendant. In saying this, we assume, without deciding that the fact is immaterial, that the money did not belong to the woman but to Captain William S. Devery, who delivered it to her for the sole purpose of having it given to the defendant. It being known (theoretically by the grand jury, but in fact by the draughtsman of the indictment) that a conviction of the crime of extortion could not be had without proving that the woman was induced by fear to part with the money, and it being known that this fact could not be proved, the defendant was indicted for an attempt to commit that crime.

Catherine Ames, who was the principal witness for the People, testified that for nine years she had been the keeper of houses o£ prostitution in the city of Rew York, and that the defendant, who was the agent of a society for the prevention of crime, on several occasions since October 13, 1892, threatened to have her prosecuted for keeping such houses, and agreed that if she would pay him certain sums of money, and especially $150, that he would not accuse her of that crime. She testified, and so did Captain William S. Devery, that from October 19, 1893, to December 4, 1893 (the last date being the day on which the money was received), she had been acting as a decoy of the police, and trying to induce the defendant to receive money from her under such circumstances as would render him guilty of a crime and enable the police to arrest and convict him of it. There is no pretense that the woman was induced by the threats of the defendant to give the money to him.

Whether certain acts are or are not criminal depends entirely on whether the person on or against whom they are perpetrated consents to and participates in those acts. Such acts do not constitute a crime in case the assent of the person against whom they are committed is freely given. When a particular state of mind is a necessary ingredient of an offense, that offense cannot be committed unless the state of mind prescribed by the statute is shown to exist.

The rule is well stated by Wharton in section 246 of the eighth edition of his Criminal Law: “ It is also to be noticed that" in cases in which, as in rape or larceny, the act, to be indictable, must be against the prosecutor’s will, and when the prosecutor by such inveigling, consents to the act, these particular forms of prosecution cannot be maintained.”

That no injury is done to the willing is a maxim of the criminal, as well as of the civil law, if the one who consents is capable of consenting, and consents uninfluenced by fear, force or fraud. This rule is applicable, however, only to the alienable rights of the person consenting. The consent of a person that another might take his life would be no justification of a homicide.

When acts are committed, the criminalty of which depends on whether the person on or against whom they are committed, assents or dissents from their commission, and between the attempt and the execution there is interposed the consent of the person against whom perpetrated that they may be committed, an indictable offense is not made out. Whart. Cr. L., 8th ed. 277.

It is plain that a conviction cannot be sustained under section 685 of the Penal Code, and that the district attorney acted wisely in not presenting an indictment for the crime of extortion.

The crucial question in this case is whether a conviction for an attempt to commit the crime of extortion can be sustained where the evidence conclusively shows the absence, on the part of the person against whom the crime is attempted, of a state of mind necessary to make possible the perpetration of the crime attempted.

We take it to be a general rule, having few if any exceptions, that unless the completed act, accomplished as intended and attempted, will constitute a crime, no step nor steps taken to perpetrate the act will amount to a criminal attempt. Bish. Cr. L., 3d ed., 728, 747. We are referred to People v. Moran, 123 N. Y., 254; 33 St. Rep. 397, as an authority to sustain this conviction. In that case the defendant committed a trespass on a person with intent to steal, and had he accomplished the act which he attempted and intended, the crime of larceny would have been committed. That case is within the rule above stated.

A boy so young that he is deemed incapable of perpetrating a rape cannot be convicted of an attempt to commit that offense, nor of an assault with intent to ravish, but he may be convicted of an assault and battery. People v. Randolph, 2 Park., 213 ; 1 Bish. Cr. L. 3 ed., 746, and cases cited.

At common law, if a person intending to steal an article take it with the owner’s consent, it is not larceny. Thorne v. Turck, 94 N. Y., 90-95 ; 3 Bish. Cr. L., 3 ed., No. 611; 1 Whart. Cr. L., 3 ed., No. 915. In such a case the completed act, accomplished as intended, not being a crime, none of the steps taken being ingredients of the offense, would constitute a crime, and the taker could not be convicted of an attempt to commit the crime of larceny.

If an assault should be made on a man. dressed as a woman with intent to ravish, the assailant believing the person assaulted to be a woman, he could not be convicted of an attempt to ravish, because in such a case the commission of the crime of rape would be a legal impossibility. So in the case at bar, it was a legal impossibility to commit the crime of extortion as against the woman Ames, because she inveigled the defendant to commit the act and was not in fear by him.

The learned recorder correctly laid down the rule in his instruction to the jury in the following propositions:

“ III. If you find that he did make such a threat, you must then find, before you can convict, that the woman Clifton was by such threat placed in fear, and that it was only through fear she was induced to agree to part with her money.
“ Ilia. If you find that this woman did agree to pay the defendant money, and in doing so acted of her own free will, then there was not an attempt to extort the money, and if you have any reasonable doubt on this point, you must give the benefit to the defendant and acquit him.”

As we have before stated, there is no evidence which tends to show that the woman acted through fear, the uncontradicted evidence being that she induced the defendant to receive the money from her. The jury failed to follow the plain instruction given by the court, and the verdict should be set aside.

The people proved that on several occasions between October 13th and December 4,1892, the defendant and Catharine Ames were in each other’s company upon apparent terms of intimacy— driving, eating and drinking, each in turn entertaining the other. The defendant, when on the stand, testified that he had so associated with this woman. The effect of this evidence was twofold—to discredit the defendant, and to show that he had an opportunity, by threats or by promises of protection, to induce the woman to give him money. It appears by the evidence that George C. Grant, a discharged employe of the society, had visited Catharine Ames and other such persons, and offered, for sums of money, to prevent prosecution by the society, of which the defendant was the agent, which was known to the directors of the society. The defendant testified that he associated with Catharine Ames for the purpose of obtaining from her a written statement or an affidavit of the particulars of Grant’s proposition to her. In this connection the defendant was asked :

“ Q. After you reported the matter to Dr. Parkhurst and Mr. Morse, of the executive committee of the society, under whom you were acting, did you receive from them directions to pursue the matter, and to obtain, if possible, any statements of alleged, blackmail from the woman Clifton (Ames) ? ”

This was objected to, and the evidence called for by the question was excluded and an exception taken.

Frank Moss and Thaddeus D. Kenneson, two directors of the society, were sworn in behalf of the defendant, by whom he offered to prove that the officers of the society gave him instructions to obtain a statement from Catharine Ames in respect to Grant’s proposition to her. This was excluded and an exception taken. In these rulings the court erred.

In a criminal case, when it is proved that the defendant has committed some act, and the motive with which it was done is material, he may testify in regard to his motive and may prove "facts by others tending to show his intent. Kerrains v. People, 60 N. Y., 231. And when evidence tending to show a guilty motive on the part of the accused has been given, he has a right to give evidence to prove a different motive and repel the imputation. From the evidence offered the jury were asked to infer and probably did infer that the motive which induced the defendant to associate with Catharine Ames was unlawful and for the purpose of securing money from her. It was competent for him to prove, in explanation of his conduct, that he associated with the woman by the direction of the Society for the Prevention of Crime for the purpose of securing a statement from the woman. It is urged on the part of the People that if it were error to exclude this evidence it was cured by subsequently allowing Dr. Charles H. Parkhurst to testify on the same subject. This witness was ill at the time of the trial and his deposition was read. He testified:

“ Q. Did the executive committee of the society at the meeting next subsequent to October 14, 1892, give any instruction to Gardner? A. Yes, sir.
“ Q. So far as they relate to Grant and his actions, please state them. A. The instructions we gave him, as far as I can recollect, were that in consonance with his own view of the matter, as he had previously expressed it to me privately, and in consonance with our views, which were the same as his, he should seek to make a case against these women, and that he should also strive to secure from them at least an affidavit to the effect that Grant was, in the name of the society, attempting to levy blackmail upon them. We also instructed him that he should use such means as he saw fit in order to secure such affidavits. These instructions were oral.”

This did not cure the error. The defendant had the right to prove the fact by more than one witness, and it is well known that facts testified to in a deposition and read in evidence have not the same force with a jury as those testified to by witnesses in the presence of the court. Again, this evidence related only to the instructions given by the executive committee to Gardiner. The defendant had offered to show that he had not only received instructions, but that he acted pursuant to and by reason of those instructions.

For these errors the judgment should be reversed, and, as it is apparent that a conviction cannot be sustained under this indictment, the defendant should be discharged.

Parker, J., concurs.

O’Brien, P. J.

With the conclusion of my associates, as expressed in the opinion of Mr. Justice Follett, that because there was no evidence which tended to show that the woman acted through fear, the verdict must be set aside and the prisoner discharged, I cannot concur.

The prisoner was indicted and tried for an attempt to commit the crime of extortion, and the record shows that the evidence' tended to establish the existence of every other element constituting t^ie crime of extortion except that the woman in paying the money was actuated in so doing by fear. This latter element, essential to constitute the crime itself, is wanting, it is urged, renders it impossible to sustain an indictment and conviction for the lesser crime of an attempt at extortion.

An attempt is defined by the Penal Code, § 34, as “An act done with intent to commit a crime and tending but failing to effect its commission.” Or, as exemplified bv Bishop in his treatise on Criminal Law, 8th ed., vol. 1, § 728: “An attempt is intent to do a particular thing which the law, either common or statutory, has declared to be a crime coupled with an act towards the thing sufficient both in magnitude and in proximity to the fact intended to be taken cognizance of by the law. * * * Or, more briefly, an attempt is an intent to do a particular criminal thing, with an act toward it falling short of the thing intefided.”

In. the case at bar, if the testimony of the witnesses for the People was credible, and that was a question for the jury, the prisoner attempted to obtain money from the complainant by oral threat to accuse her of the crime of keeping a house of ill-fame. It is true that the fear intended to be produced by his threats, did not follow, which was due to the fact, extrinsic and unknown to the prisoner, that the complainant in appearing to be affected by such threats into delivering up the money was acting under the instructions of the police, with a view to entrap the prisoner. Had the prisoner succeeded in producing the fear he intended, the substantive crime would have been made out; but in the absence of such fear on the part of the complainant, I think that the evidence of the intent to extort, and the acts done tending to effect the commission of the crime, but which failed to effect its commission by reason of the attitude of the complainant, was sufficient to justify a conviction for an attempt.

Upon this question of fear, it seems to me that throughout the fact is lost sight of that it is the mind of the wrongdoer and his intent, and not the effect or result upon the person sought to be coerced, in a crime of this character, which must control. As said in People v. Moran, 123 N. Y., 254; 33 St. Rep., 397: “ The question whether an attempt to commit a crime has been made is determinable solely by the condition of the actor’s mind and his conduct in the attempted consummation of his design. ” I concede that there are certain crimes where the element of force or fear must be present in order to constitute the offense. Such an instance would be of rape, where, if the consent of the woman was given, or if force was not used, the elements necessary to constitute the crime would be lacking, and a conviction for an attempt to commit such a crime upon such facts could not be predicated. In the instance given of rape, the intent is to subject the physical body to the unlawful designs of the wrongdoer; whereas in the case at bar it was intended to produce a mental condition, namely, fear, which must be present to constitute the substantive crime. And it seems to me that where every act essential to constitute the crime is present, except the mental effect intended to be produced, namely, fear (and thus, under the definition, it falls just short of the crime itself), that the offense thus described is criminal and comes within, the definition of an attempt to commit the crime.

Here the evidence tended to prove that the prisoner had the criminal intent and had made the effort to consummate that intent, which for causes unknown to him was not successful, and which prevented him from committing the crime. The crime was as complete as the prisoner could make it; and to conclude that the failure to establish every element essential to constitute the crime except of fear, must result in the discharge of the prisoner, is equivalent to my mind, to asserting that there can be no such crime as an attempt to commit extortion. For, if the reasoning applied to the absence of fear is good, then unless all the elements essential to constitute the crime are present, an indictment and conviction must fall because a conviction for an attempt cannot be sustained except in a case where the crime itself is committed.

I cannot but regard the reasoning of the court of appeals in the case of People v. Moran, supra, as controlling in principle. There the defendant was indicted and convicted of an attempt to commit the crime of grand larceny in the second degree. This crime is defined by § 531 of-the Penal Code as’the stealing of or unlawful appropriation of property of any value by taking the same from the person of another. The evidence in that case showed that the prisoner was seen to have thrust his hand into the pocket of a woman, and to have withdrawn it therefrom empty, and the claim was there made that the evidence did not show that the woman had any property in her pocket which could be the object of larceny, and that an attempt to commit that crime could not be predicated of a condition which rendered its commission impossible.

This claim is thus disposed of in the opinion: “ To' constitute the crime charged there must be a person from whom the property may be taken, an intent to take it against the will of the owner, and some act performed tending to accomplish it; and when these things occur, the crime has, we think, been committed, whether property could in fact have been stolen or not. In such cases the accused has done his utmost to effect the commission of the crime but fails to accomplish it for some cause not previously apparent to him. The question whether an attempt to commit a crime has been made is determinable solely by the condition of the actor’s mind and his conduct in the attempted consummation of his design. Citing People v. Lawton, 56 Barb., 136; McDermott v. People, 5 Park. Cr. R, 104; Mackesey v. People, 6 id., 114 ; Am. & Eng. Ency. of Law, of the ‘Attempt.’ So far as the thief is concerned, the felonious design and action are then just as complete as though the crime could have been or in fact had been committed, and the punishment of such offender is just as essential to the protection of the public as of one whose designs have been successful.”

The answer to the claim here made, that because the crime of extortion was not possible, in the absence of fear on the part of the complainant, therefore an indictment and conviction upon evidence as and for an attempt to commit such crime is likewise impossible, I think is to be found in the language just quoted from the opinion in People v. Moran, which is throughout strengthened by the citation of numerous authorities. Thus among others reference is had to the case of Commonwealth v. Jacobs, 8 Allen, 274, wherein Justice Gray says: “Whenever the law makes one step towards the accomplishment of an unlawful object, with the intent or purpose of accomplishing it, criminal, a person taking that step with the intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that by reason of some fact unknown to him at the time of his criminal attempt it could not be fully carried into effect on the particular instance. Upon this principle, in an indictment under a statute against passing or disposing of forged bank notes with intent to defraud, it has been held no defense that those to whom the notes were passed knew them to be forged and therefore could not be defrauded.”

And again, in the case of the State v. Wilson, 30 Conn., 500, referred to in the opinion, the court there said : “ The perpetration of the crime was legally possible, the person in a situation to do it, the intent clear, and the act adapted to the successful perpetration of it, and whether there was or not property in the pocket was an extrinsic fact not essential to constitute the attempt.” And after quoting with approval many other cases, the opinion in People v. Moran says:' “There are numerous other -cases in this country analogous to those above cited, in which it has been held that an attempt to commit a crime might be predicated of a condition which rendered it impossible for the crime to have been in fact committed.”

It is unnecessary, however, that I should pursue this subject further, as I have sufficiently explained the views I entertain, that while to constitute the substantive crime it would be necessary, in an indictment to aver, and upon the trial to prove, every essential ingredient enumerated in the definition of the crime, this is not requisite in an indictment or upon a trial where the charge is an attempt to commit that crime. While, therefore, in the case at bar, to establish the crime of extortion it would have been necessary to aver and prove that through fear the woman had delivered the money to the prisoner, yet the failure by his threats to produce such.fear would not prevent an indictment and conviction for an attempt at extortion, provided every other element requisite and essential to constitute the crime were present.

In addition to this ground, my associates have concluded that it was error to have excluded certain evidence offered by the prisoner tending to show that in what he did he acted under the instructions of the Society for the Prevention of Crime and certain of its officers. In the view that the rulings of the trial judge in excluding such evidence was error I concur; those, however, upon a new trial could be cured, but in their conclusion upon the main ground that “ it is apparent that a conviction cannot be sustained under this indictment, and that the defendant should be discharged,” I dissent.


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    Baptist M. Corner et al., Resp’ts, v. Alexander Mackey, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Appeal—Case.
    Presumption on appeal when the record does not contain the evidence.
    3. Account stated—Fraud.
    No right exists to surcharge an account stated for fraud or mutual mistake, where it would he inequitable because of change in the position of one, made in reliance upon the acquiescence, of the other, party.
    8. Estoppel—In pais.
    Estoppel by acquiescence from asserting claim for interest charges unwarrantably made.
    4. Mortgage—Subrogation.
    A party who pays off a mortgage in pursuance of an agreement becomes subrogated to the rights of the mortgagee.

      Appeal from judgment entered upon report of referee.

      J. A. Shoudy, for app’lt; W. M. Rosenbauli, for resp’t.
   Van Brunt, P. J.

This action was brought upon an alleged account stated. The answer, while admitting the copartnership of the plaintiffs as alleged, denied that any account had been stated between the parties, but admitted that an account had been rendered by the plaintiffs upon the day upon which it was alleged the account had been stated, showing the balance claimed, and alleging that he had not then the means of ascertaining whether the same was correct or not; and he denied that he ever assented to the correctness thereof. .The answer further set up various defenses and counterclaims, by which the defendant claimed to surcharge the said account stated for errors in respect to interest, and demanded an accounting, claiming a large balance to be due. To the counterclaim a reply was duly interposed.

The issues thus raised having been referred to a referee to hear and determine after the trial, the referee reported in favor of the plaintiff, for an amount much below that which was claimed in the complaint, and from the judgment thereupon entered this appeal is taken by the defendant.

No evidence is presented, and this appeal must be considered, therefore, upon the judgment roll alone, and the only question which it is necessary to consider is whether the findings of fact made by the referee support his conclusions of law.

It is claimed, upon the part of the respondent, that every presumption exists in favor of the judgment, and since the appellant has failed to print the evidence, or any part of it, it must be assumed that it would not have benefited him to do so, and that the record not only sustains the findings of fact actually found, but is also sufficient to sustain any additional findings required to. support the conclusions of law, unless those conclusions are in conflict with the findings of fact. And he cites the cases of Kellogg v. Thompson, 66 N. Y., 88 ; Murray v. Marshall, 94 id., 616; and Gardiner v. Schwab, 110 id., 650; 17 St. Rep., 174. Those cases pointedly sustain the contention of the respondent. Our attention is, however, called by the appellant to the case of the Rochester L. Co. v. Stiles & Parker Co., 135 N. Y., 209; 47 St. Rep., 842, in which case the court held that, upon an appeal in an action tried by the court or a referee, where no case is made containing the evidence, but the appeal is based solely upon exceptions contained in the judgment roll, and the findings of fact do not sustain the conclusions, it may not be assumed that there was evidence justifying other findings which would have sustained such conclusions; but, on the contrary, it is to be assumed that there was no such evidence, and when the conclusions of law have been properly excepted to, the judgment may not be sustained—a construction of the practice which seems to us absolutely contrary to that which was laid down in. the cases above cited, but which, also, seems more consistent with reason, because it is evidently the duty of the party succeeding to see to it that he has findings of fact sufficient to support the judgment; and if he does not, he is exposed to the perils of a reversal upon appeal, based solely upon exceptions to the legal conclusions, as suggested by the court. If any other rule should be sustained, then very rarely, if ever, would it be sufficient for a defeated party to appeal without a case, as it is nearly always possible to presume the existence of other facts which were not actually found, but which, if found, would uphold the judgment. The learned judge who wrote the opinion in the case last cited seems to recognize the fact that a new departure was being made, because he says in his opinion: “ The law upon this matter of practice, by some inadvertence, has fallen into some confusion and conflict, and it is important that the practice should be finally settled; ” although it appeared by the case first above cited to be distinctly settled in a different way.

Taking, however, the last construction of the court of last resort as our guide in the decision of the questions involved upon this appeal, we are to consider whether such facts were found as justified the judgment entered, and not whether such facts might not have been found as would have justified such judgment.

The referee finds that, on the 6th of November, 1868, an agreement was entered into between the firm of Dowley, Corners & Co. on the one part, and the defendant, Alexander Mackey, and one Muller on the other part, providing for a business adventure, in which both parties should be interested, Dowley, Corner’s & Co. to furnish the refinery therein mentioned, and capital sufficient for working the same, and the defendant and Muller to furnish their patents and entire time and services; all outlay of money connected with the property and the working thereof to be borne by the business except in the case of additions in the shape of entirely new improvements; the interest on a mortgage of $20,000 then on the premises to be borne by the business, and no rent or commissions upon purchases or sales to be charged unless actually paid out; and profits and losses to be divided- or borne at the end of each year in the proportion of two-thirds to or by Dowley, Corners & Co:-, and one-third to or by the defendant and Muller. The agreement was to continue in force for three years from its date, and at the end of which time Dowley, Corners & Co. were to have the privilege of extending it to the expiration of the patents, or for a shorter period by increasing the interest of the defendant and Muller to four-tenths of the profits.

At the time of the execution of this contract the refinery was being carried on under a previous arrangement between the same parties. It was continued for the period of three years, ending the 6th day of November, 1871. It was further continued thereafter with no definite extension or new contract. But, in fact, from and after the 1st day of January, 1872, the share of the defendant in profits and losses was increased from one-sixth to one-fifth.

In 1875 the firm of Dowley, Corners & Co. was dissolved, and a new firm known as Corner Bros. & Co., consisting of the plaintiffs in this action, was thereupon organized, and succeeded to the general assets,- business and liabilities of Dowley, Corners h Co. The members of the old firm who were not members of the new firm retired, and were settled with on the footing of the books and accounts as they then existed. Up to the time of such succession, in 1875, .Dowley, Corners & Co., and from the time of their succession, Corner Bros. & Co., had reduced two statements to the defendant on or about the 1st day of January in each year. The one was a summary of the refinery business for the previous year, and exhibited the balance of profit and loss, and the share therein of each of the parties. The other was a detailed personal account of the defendant with the firm for the same previous year, and included his share of the profit and loss from the refinery account, and exhibited the balance to his credit or debit on such 1st day of January. These personal accounts were continuous, carrying forward the balance from each year to the succeeding year. Both sets were regularly received and retained by the defendant without objection.

After the said succession of plaintiffs, the refinery business was continued by the former in conjunction with the defendant, and for a part of the time with Muller, upon the same footing, and without any new definite arrangement between them and the defendant or Muller, until on or about the 15th day of October, 1880, when it was finally discontinued, in accordance with notice to that effect given by Corner Brothers & Company to the defendant. Ho objection to the discontinuance was then made by the defendant, who, on the contrary, had expressed his opinion of the inadvisability of proceeding without substantial alterations and improvements of machinery.

In making up the several refinery accounts, interest was reckoned, not only upon the mortgage, but also upon what were known as the working and improvement accounts, and was charged or credited to the business, and became an element of profit or loss stated for the apportionment between the parties interested in the business at the end of each year. Ho part of the interest upon the working or improvement accounts was paid or received by cither Dowley, Corners & Company, or their successors, the plaintiffs, the same being computed in their favor, or against them, as the case might be.

The principal of the mortgage of $20,000. mentioned was paid off in installments. Ho part of such principal was ever charged to the business or in any wise paid by the defendant; nor does it appear that interest was ever fully realized by the plaintiffs upon this principal.

There was no effort on the part of the plaintiffs or their predecessors to mislead the defendant respecting the character or method of the accounts, nor to withhold from him access to books or other means of information in regard thereto. He had mislaid his duplicate of the original contract, but did not seek to otherwise inform or remind himself of his rights thereunder. At the same time, he was not an expert accountant, and his main reliance was upon the accuracy of the plaintiffs and their predecessors.

In the foregoing statement of the findings of fact of the referee it has not been considered necessary to refer to figures, because the question involved upon this appeal does not relate to amounts, but to the principles upon which the referee has based his conclusions of law.

As conclusions of law, the referee found that, under the contract, interest was not chargeable to the business on the working account, nor on the improvement account, although in this last jiarticular there may be room for doubt, inasmuch as the contract failed to make it the duty of either of the parties to supply improvements not chargeable to expense account. But interest was at all times chargeable to the business upon the $20,000 represented by the mortgage, and without regard to payments of principal thereof by Dowley, Corners & Company, or by the plaintiffs.

The referee also found as conclusions of law that: “ the discontinuance of the business by’ the plaintiffs in the year eighteen hundred and eighty was, without fault on their part, such as to subject them to liability to the defendant for either penalty or damages. Moreover, the action of the defendant preliminary to and concurrent with the discontinuance left him no right of subsequent comjilaint.”

The referee also found as conclusion of law that: In view of the receipt by the defendant of the series of accounts rendered to him by Dowley, Corners & Company, and the absence of objection by him thereto, and of the dissolution of the firm and the succession to the same by the plaintiffs’ firm of Corner Brothers & Company, with material changes in membership and ¡proportionate rights, and without notice that the accounts were m anywise unacceptable to the defendant, it would be inequitable to permit the defendant to now impeach these accounts for the purpose of charging the plaintiffs with a balance to defendant’s credit at the time of the succession larger or other than the balance then ajqpearing in his favor by the accounts so theretofore rendered to him.”

And further, that the sums charged by the plaintiff, upon the working and inqurovement account were erroneously charged; and that, notwithstanding the great delay of the defendant in objecting thereto, nevertheless, correction of the errors can now properly be made for the period since the 1st of January, 1875, that being the date when the plaintiffs succeeded to the firm of Dowley, Corners & Co.

The appellant, u¡Don this appeal, contends that the referee erred in deciding that the appellant could not question the erroneous charges for interest made against him prior to January, 1875, and in holding that interest upon the $20,000 mortgage which had existed upon the.premises was properly chargeable to the business after it was paid off.

The claim is made that the defendant, not being guilty of deception, either intentional or otherwise, could not be estopped from questioning the state of the accounts ; and that, if the plaintiffs desired to estop him because of the changes in their relations to their previous copartners, they should at least have informed him of their precise condition and of what they proposed to do; but, as they became successors of the prior firm without either consulting the defendant or giving him notice of the change, and acquired the benefits arising from the succession, they must assume as well its burdens. In support of these propositions our attention is called to the cases of Welsh v. German Amer. Bank, 73 N. Y., 424 ; Shipman v. Bank of N. Y., 126 id., 318 ; 37 St. Rep., 376; and Frank v. Chemical Bank, 84 N. Y., 209.

It is claimed that these cases go much further than is necessary to sustain the defendant’s position in this case. An examination of the cases, however, seems to show that they have no application whatever to the one at bar. They proceed upon the principle that the depositor owes no duty to a bank requiring him to examine his pass book and returned checks, with a view to the detection of forgeries in the indorsements upon such checks; and it was held that he has a right to assume that his bank, before paying his checks, will ascertain the genuineness of the indorsement. The depositor has no means of ascertaining as to the genuineness of the indorsement before the bank pays out money upon the order of the depositor. It is the bank’s duty to ascertain whether or not it is paying the proper person, and it cannot shift that burden upon the shoulders of the depositor. But a very different question would arise if the signature of the depositor to the check upon which the money' nad been paid was claimed to be a forgery. In that case the depositor would be bound to know whether or not he had drawn the check in question.

In the case at bar it appears that the plaintiffs, in entire good faith, relying upon the statements of account which had been furnished to the defendant as to the previous business which had been conducted, changed their position, allowed certain parties to retire, and settled with them upon the basis of such accounts; and it certainly would be a hardship now to compel them to pay the penalty arising from the defendant’s negligence in not informing himself of the condition of the accounts which were rendered to him from time to time. The business was conducted by the defendant witli the plaintiffs after this change in the firm of Dowley, Corners & Co. to Corner Bros. & Co.; and the accounts were received from the new firm precisely the same as they had been received from the old.

A very different question would arise had not the plaintiffs been placed in the position they now occupy by reason of the apparent acquiescence and consent to the correctness of the accounts by the defendant. Accounts stated undoubtedly may be surcharged for fraud or mutual mistake. But where it is inéquitable that such surcharge should be allowed, because of the change in the position of one of the parties to the account, in view of the acquiescence of the other, no such right exists.

It may, indeed, very well be questioned whether the present plaintiffs are responsible for all the indebtedness of the firm of Dowley, Corners & Co. as a firm, simply because they became their successors and took their assets.

We see no reason to differ from the referee in his conclusion that the plaintiffs are not responsible for any errors that may have inadvertently crept into the accounts prior to the dissolution of the old firm.

In respect to the interest upon the $20,000, it seems to us that when the plaintiffs paid that mortgage, they became subrogated to the right to receive the interest on the $20,000, which, under the Agreement between the parties, was to be borne by the business. It is true that the agreement provided that interest on the mortgage of $20,000 then on the premises was to be borne by the business, and that the mortgage was satisfied by the payment out •of their own pockets by the plaintiffs of- its amount. But, as .already suggested, they clearly became subrogated to the right to receive interests as reserved in the mortgage upon the $20,000 .•advanced by them, and charge it to the business.

There seems to have been no error committed by the referee which calls for a reversal of the judgment appealed from, and the ■same should be affirmed.

Follett and Parker, JJ., concur.