text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALEXANDER B. SWEENEY, Appellant.

      Evidence — dying declaration in criminal cases — only such statements, as relate to trie condition of the person, at the time of making them, are admissible to show the competency of the dying declarations — when a killing by one engaged in committing an assault in the second degree constitutes murder in the first degree — Penal Code, sec. 186, sub. 3, and 218, sub. 4— when the failure of the defendant to call a witness to explain criminating circumstances does not raise a presumption of guilt— Code of Criminal Procedure, section 527, as amended by chapter 360 of 1882.
    The defendant Sweeney was jointly indicted with one Smith for murder in the first degree in shooting one Hannan, on the seventh of April. After Hannan was shot he was taken to Bellevue Hospital, where he remained until his decease, on April eleventh. On April eighth he was visited by his mother, and on April ninth by his step-sister. During these visits conversations took place with the deceased in which he made statements concerning the shooting, whicli were received in evidence as dying declarations. Upon the trial the statements so made by Hannan to each of these persons were offered in evidence before the court and jury, accompanied by additional conversations which were not admissible, both witnesses being allowed to detail fully and minutely all that was said between themselves and Hannan concerning the condition in which he was found. This conversation was received with the avowed purpose of sifting what it was admissible for the jury to consider, from that which should be rejected as incompetent.

      Held, that although the declarations of Hannan were shown to have been made in the belief of impending death so as to render them admissible, the court erred in allowing the witnesses, for the purpose of showing the competency of the dying declarations, to give the whole conversation, and should have restricted them to what Ilannan said, concerning his condition, indicating his expectations and convictions.
    At the time he was shot Hannan, who was a night watchman, was sitting in a shed, on a wharf. The defendant and Smith entered the shed and when standing near Hannan, who was partially asleep, Smith discharged a pistol which he had in his hands, the bullet entering Hannan’s head above one of his eyes. In submitting the case to the jury they were permitted, by the charge of the recorder, to convict the defendant of the crime of murder in the first degree, even though there was no intent on the part of himself and Smith to kill, if they were “engaged in the perpetration of the crime of assault in the second degree, or in attempting to commit that crime, and while they were so engaged.”

      Held, that although an extreme construction of the provisions of subdivision 8 of section 183, and subdivision 4 of section 218 of the Penal Code might justify this charge, the court erred in so charging in this case for the reason that there was no evidence on which an 'inquiry could be made by the jury as to whether an assault within said subdivision 4 of section 218 was contemplated or intended by the parties.
    During the trial the other defendant Smith was produced in court by the prosecution, but he was not sworn as a witness either on the part of the people or for the defense, and because of the omission of the defendant’s counsel to call and examine him, it was claimed that a presumption arose that the defendant himself was guilty of the crime charged in the indictment. In submitting the case to the jury the recorder referred to the case of Gordon v. People, decided by the Court of Appeals, and said that it was there decided that if one accused of a crime is required to account for his whereabouts at a particular time, to avoid the force of criminating circumstances, the omission to produce the required evidence is not in law conclusive of the facts in dispute but the force of such circumstances may be left to the jury. The absence of such evidence, the court says, especially when it seems to be in the power of the prisoner to furnish it, creates a strong presumption of his guilt and strong inference against him, and is a circumstance greatly corroborative of the truth of the evidence given upon the other side, and in a doubtful case would justify the jury in resolving the doubt against him. That is the language of the Court of Appeals in a murder case, where the court was called upon to lay down the law in reference to the non-production of testimony within a defendant’s reach, which might have a material bearing upon the question involved: Now, gentlemen, I read that to you as the law of this State bearing upon this claim, and you will apply that law to the claim on the part of the prosecution in respect to the non-production of this witness, and you will give it that consideration which the Court of Appeals says it is entitled to receive and no more.

      Held, error; that the doctrine of that case was not applicable to that of the defendant, for the reason that the witness Smith was equally as accessible to the prosecution as he was to the defense, and might have been sworn and examined as a witness by either if his testimony was desirable.
    That for these misdirections the verdict should be set aside, and a new trial directed, although no exception had been taken at the trial by the defendant’s counsel.
    Appeal from a judgment of the Court of General Sessions of tbe county of New York, convicting the defendant of the crime of murder in the first degree.

      Howe da Hummel, for the appellant.

      Delaney Nicoll, assistant district attorney, for the people.
   Daniels, J.:

The defendant was jointly indicted with Peter Smith, and by the indictment he was charged with the crime of murder in the first degree, for shooting John Hannan on the 7th of April, 1885. The evidence established the fact that Hannan was a night watchman at what was called a dumping place, on the wharf at the foot of Thirty-eighth street, in the city of New York. He was at the time sitting upon a bench in a shanty near the place where the dumping was done, and Bichard Tracy, a witness for the prosecution, was with him there at that time. That has not only been shown by his own evidence, b.ut the fact was stated in the same way by the defendant in the course of his testimony on his own behalf given upon the trial. While these two persons were in the shanty the defendant and Peter Smith, indicted with him, entered the building, and when standing near Hannan, who was partially asleep, Smith discharged a pistol which he had in his hand and the bullet entered the head of Hannan over one of his eyes. Hannan lived until the eleventh of the month, when he died from the effects of the wound caused by the bullet. After the shooting Hannan was removed to the Bellevue Hospital, where he remained until his decease. On Wednesday, the eighth of April, and the day following the shooting, his mother visited him at the hospital, and on the following day Mary Breslan, his step-sister, in like manner paid him a visit. During these visits conversations took place with the deceased in which he made statements concerning the shooting, which were received in evidence as dying declarations. This evidence has been urged in support of the appeal to have been improperly and unlawfully received. The objection presented to the evidence is, that the statements repeated by the witnesses did not sufficiently appear to have been made in the belief of either immediate or impending death. To permit evidence of this nature to be received upon a criminal trial against a person charged with the offense of murder, the law requires that it shall first be made to appear that the conviction or belief has been produced in the mind of the person making the statements that- his death is near at hand, and that all hope or expectation of recovery shall appear to have ceased to exist. This subject was considered in Regina v. Howell (26 L. J. M. C., 43). There the person, whose statement was received in evidence, said to the witness: I have seen Booker, the surgeon, to-day, and he has given me some little hope that I am better, but I don’t myself think that I shall ultimately recover,” and added, that he should not recover. And from this and the evidence as to his condition, the conclusion was drawn by Pollock, C. B., that “ the man was suffering from a mortal injury, and he was perfectly conscious of it.” And that was deemed to be all that the law required to allow the dying declaration of the injured person to be received. The same rule prevailed in Mosley and Morrill’s case (1 Lewis C. C., 79), and Maine v. People (9 Hun, 113) followed this conclusion. The rule is there stated to be that the person making the statement must have lost all hope of recovery ; must have believed that she was about to die. It must have been made under the apprehension of near approaching death.” (Id., 115, 116.) In Brotherton v. People (75 N. Y., 159) the deceased man had stated that he would not recover, and on the day following he was told by his physician that he must die. And as it appeared that such was his belief, the declaration made by him was considered to be legal evidence. In the cases referred to in support of the objection it appeared that all hope of recovery had not ceased to exist when the declarations were made which the courts held not to be admissible. In People v. Robinson (2 Park., 236) the person whose statements were in controversy was encouraged by the medical attendant to believe and hope that he would recover. The facts were quite similar in Rex v. Van Butchell (3 Car. & P., 629). While in Reg. v. Jenkins (11 Coxe C. C., 250; S. C., Law Reps., 1 Crown cases reserved, 187), the statements of the person were rejected for the reason that her declaration was that she had no hope at present of her recovery. Whether this expression did not show at the time an entire absence of hope or expectation of recovery it is not necessary now to discuss. The person making the statement was then in fact in a dying condition and died on the following day, and the rule was very strictly applied, which excluded the declarations made by her inculpating the prisoner as the author of her condition. In Rex v. Crockett (4 Car. &P., 545); Rex v. Hayward (6 id., 157); Rex v. Spilsbury (7 id., 187); Regina v. Megson (9 id., 418), the persons whose statements were offered had not abandoned all hope of recovery. And that is true as to the other cases referred to in support of this objection. But in the ease now before the court it is quite evident, from the conversations which took place, that Hannan had abandoned all hope of his recovery, and was in the expectation of immediate death, at the time when the statements received in evidence were made by him. The first, which was made to his mother, took the form of the following conversation. lie said to her: “ ‘ Mother, will you take me home; the Bellevue people are good enough, but they can do nothing for me.’ I said, ‘Johnny, the doctors don’t think so; the doctors think you will get better.’ He replied, ‘ don’t you believe what the doctors tell yon, I never will get well.’ He says, ‘Mother, raise me up.’ I did so. He says, ‘Mother, kiss me; kiss me, mother, because I am going to die. The bullet that Peter Smith put in my head is in it now and it will soon fetch me and leave you without your only son.’ I said, ‘ Johnny, this is hard.’ ‘Yes, mother, it is hard, but we can’t help it now; I wont last long.’ ” These statements did prove, as he had received in this manner a mortal wound, that the conviction had settled upon his mind that he was about to die and had no hope whatever of his recovery.

The statements made to his step-sister on the following day were equally as decisive. She testified that while she was with him in the hospital he moaned and she stood up, and he said : “ ‘ Mamie, raise me up.’ I raised him up in my arms, and he says ‘ kiss me,’ and I kissed him, and he said ‘ kiss me good-bye, Mamie.’ And I said ‘ Johnny, don’t say that, you ain’t going to die.’ He said, ‘kiss me, Mamie, good-bye.’” She further stated that when she said to him, you are not going to die, he said, “Yes I am, Mamie, I Can never get better.” On her cross-examination this language was repeated by her. She testified that in answer to her statement to him, you are not going to die, his reply was : “ He told me to kiss him good-bye, that he was going to die.” His language, she said, was, “ kiss me good-bye, I am going to die.” And, again : “ Kiss me good-bye, Mamie, because I am going to die.” These responses by him fully proved that at this time he had no hope whatever of recovery. The request made to her to hiss him good-bye indicated his conviction to be that he waS" about to depart from her forever. It was urged, in the course of the argument, as a reason for rejecting this construction of what he said, that she was about to leave the hospital, and that the request to kiss him good-bye was on account of that expected departure. But this position is not maintained by the evidence, for her statement was that she had not told him that she was going away soon, or going to leave the hospital. Neither had he asked her how long she was to remain there. And as the facts appeared there is no reason, therefore, for supposing that his statements referred to any temporary absence, but rather, as the language which he used imported, that he was anticipating his final and early dissolution. And within the authorities which have been cited this permitted his declarations, inculpating the defendants, to be given in evidence. He was at the time suffering from a mortal wound and had become impressed with the conviction that his condition was hopeless, and the time of his decease was near at hand. If any case can be made out satisfactorily in which the dying declaration of a person may be received in evidence, this case appears to have been brought within the rule. But while the statements made by Hannan to each of these persons were admissible in evidence, they were brought before the court and jury accompanied by additional conversations that should not have been received, for both witnesses were allowed to detail fully and minutely all that was said between themselves and Hannan concerning the condition in which he was found. This conversation was received with the avowed purpose of sifting from it what it was admissible for the jury to consider, from that which should be rejected as incompetent, for their deliberation. There was no necessity for receiving the conversations in full for this purpose. What should have been done was to have directed the attention of the witness immediately to what Hannan said concerning his condition, indicating his expectations and convictions. And that could have been done without the slightest embarrassment by restricting the answers of the witness to the proof of that fact. It is probable from the substance of the statements made that the defendant was not injured by this departure from the rules of evidence, and that, on this ground alone, the result of the trial should not be disturbed. But even if that be the legal view to take of the effect of the evidence, it is still proper that the practice should be disapproved for the reason that other cases may arise which could not, in this manner, be relieved from the effects of the improper evidence.

At the close of the people’s case a motion was made by the--defendant’s counsel for a direction to the jury to acquit him of the charge of murder in the first degree. That was denied by the court, and to its denial the counsel for the defendant excepted. This exception was not well taken, although the defendant was not the person by whose act the mortal wound was inflicted. That was done by Peter Smith, the other defendant. But the evidence was sufficient for the jury to consider and act upon it, -which tended to establish the fact that this defendant was acting in concert with .'Smith before and at the time when the pistol was discharged. The ■only person besides the defendant and Hannan, who was present .and witnessed the occurrence, was Tracy, who was sworn and examined on behalf of the prosecution. Ilis testimony was to the effect ■that the defendants approached the shanty together, and after .entering it whispered together, and the pistol was discharged, and the defendants thereupon left the shanty, passed up the wharf and went into the streets; that he followed them at some distance .and finally caused their arrest by two members of the police department. The evidence of this witness has been sharply criticised for the reason that -it appeared upon his cross-examination ■that he had been convicted of a criminal offense. But this offense was that of an assault and battery and did not necessarily tend to discredit his evidence in the case. It further appeared that at file time of the trial he was under an indictment charging him ■with the offense of larceny from the person ; that he had before been tried for the crime of burglary, but was acquitted, and was ¡arrested once for standing on the corner. These facts were not such as would justify the court in rejecting the testimony of this witness, or in declining to submit it for the decision of the jury. ’Whatever their effect may have been they could extend no further than to tend, in some very slight degree, to subject his evidence to suspicion. And how far they might have any effect in that direction it was for the jury to consider his statements, if they were pertinent at all to that inquiry. That the defendant was a confederate with Smith the jury might infer from the testimony of this witness, and the further evidence given by the witnesses Fay, Gillespie, Curry and Ryan. From that of Gillespie, it appeared that the defendant and Hannan were fighting together very early on Monday morning, the sixth of April, and that they were separated at the request of Hannan. In the evening of that day Fay stated that he went with Hannan into Gillespie’s saloon and there met Sweeney, to whom Hannan said: “ ‘ We better have that fight out now.’ Sweeney says £ I’m agreeable.’ I says, £ let us have a drink.’ So we had a drink, and Hannan says, £ let us go down to the dump and we will finish it.’ ” But at that time no further conflict took place between these persons. Gillespie, in his.evidence, corroborated the statement made by the witness Fay, and even though the former had been convicted and punished for the crime of burglary, his testimony was still proper for the consideration of the jury. Curry, another witness, who had also been convicted of crime, testified that he was at the shanty about five o’clock in the morning of the seventh of April, and that the defendant called there and asked Hannan out; that he went out, and at the distance of about twenty feet from the shanty a conversation took place which he did not hear, but at its close, when the parties were about to separate, Hannan said, if you want any more satisfaction the lot over there is big enough, and that Sweeney then muttered something to himself, and walked away with an awful sour look on him. The other witness made the arrest, and by his evidence corroborated that of Tracy, and in some degree showed the criminality of the defendant, by proof of his denial of the fact that he was at the shanty, or knew any thing .of this occurrence.

This evidence was such as to indicate the fact to be that the defendant had personal reasons for desiring, the ill-treatment of Hannan, and that he accompanied the defendant Smith to the shanty when the shot was fired for the purpose of having that done and thereby gratifying his resentment. Whether the defendant should be convicted of the crime charged in the indictment upon this, and the other evidence proving the wound which was received to have been fatal, it was for the jury to decide. To submit the case to them it was certainly clearly sufficient. (3 Greenl. on Ev., § 41; Wharton on Grim. Law [4th ed.], § 116.) And it was not deprived of that effect by the testimony of James Sweeney, Jennie Sweeney, the defendant’s brother and sister, and Mrs. Sweeney, his mother, stating that he was at home and in bed at the time mentioned by Curry, as that of his meeting Hannan at the shanty. Whether their or his evidence was the most reliable upon this fact was for the jury to consider and decide.

In submitting the case to the jury they were permitted, by the charge of the recorder, to convict the defendant of the crime of murder in the first degree, even though there was no intent on the part of himself and Smith to kill if they were “ engaged in the perpetration of the crime of assault in the second degree, or in attempting to commit that crime, and while they were so engaged.” This direction was given under the construction placed upon subdivision 3 of section 183, and subdivision I of section 218 of the Penal Code. The first of these subdivisions declares the offense to be murder in the first degree, where a homicide shall be committed “ without a design to effect death, by a person engaged in the commission of, or in an atttempt to commit, a felony either upon or affecting the person killed or otherwise.” And the other section declares an assault by the use of a weapon or other instrument or thing likely to produce grevious bodily harm,” to be an assault in the second degree. And that, by section 221, has been made punishable by imprisonment in a penitentiary or State prison for not less than two nor more than five years, or by a fine of not more than $1,000, or both. And this, according to section 5 of the same Code, will render the offense a felony, for that has been defined to be a crime which is, or may be, punishable by imprisonment in a State prison, and the offense of making such an assault may be so punished. Under this provision, as well as the construction given to the preceding law in People v. Lyon (99 N. Y., 210), the ruling upon this part of the case was not entirely deprived of legal support. Por subdivision 3 of section 183 includes the commission or the attempt to commit a felony upon, or affecting, the person killed. And if such an assault be a felony within this subdivision, and death ensues in consequence of its commission, or the attempt to commit it, under this construction the assailant may be convicted of the crime of murder. This is an extreme construction of the law, which it is not necessary to fully sanction at this time. And it differs from that which the courts have given to somewhat similar statutory provisions in other decisions which have been made. For in Fassett v. Smith (23 N. Y., 252) it was declared that a crime, which might be punished by imprisonment either in the State prison or a county jail, was not a felony. And this was approved in Foster v. People (50 N. Y., 598, 604), in reference to a statute providing for a similar measure of punishment, and in Thorn v. Turck (94 N. Y., 90). But whatever may be the construction which should be given to these particular sections of the Penal Code, this direction should not have been received by the jury, for there was no evidence in the case tending to establish the fact to be that the defendant and Smith intended only to make an assault upon Hannan, which would inflict grevious bodily harm upon him. What was done on the occasion when these two persons went to the shanty was to discharge the pistol at a vital portion of the body. If they intended to do that, and proceeded to this place for that object, the tendency of the evidence was directly to establish the crime of murder, and not that of a mere assault upon the person who received this wound. And there was, accordingly, no evidence in the case on which the inquiry could be required to be made by the jury, whether an assault within subdivision 4 of section 218 was contemplated, or intended by the parties. In the case of Foster v. People, already referred to, the court was asked to charge a-proposition, including a similar assault, but that was refused for the reason that the case disclosed no evidence rendering that a necessary or proper inquiry on the part of the jury. Upon that subject it was said, in the opinion, that “ his act was a blow with an iron bar upon the head of deceased, with a force which crushed the skull and drove it in upon the brain. There was no evidence from which his intent could be ascertained, except what was furnished by the facts preceding the assault, and by the act itself, and its results. It is a fundamental rule of evidence of very general application, founded upon observation and experience, that a man is presumed to intend the natural consequences of his acts. In this case death ensued, as it was likely to ensue, from the act of the prisoner, * * * by necessary inference the jury must have found that the prisoner was not, at the time of the act, engaged in the commission of any felony, other than the homicide of which he was convicted.” (Id., 609.) What was held by the court in that case, concerning the request to charge, is specially applicable to the present case, for there was no evidence, unless the discharge of the pistol was accidental, as a remark mentioned by the defendant in his evidence stated it to be, but which was opposed to the important facts of the case, from which the jury could possibly infer that there was any other design which prompted the use of the weapon than to deprive Hannan of his li-fe. The jury accordingly should not have been required to consider the question submitted in this manner for their deliberation.

During the trial the other defendant, Smith, was produced in court by the prosecution, but he was not sworn as a witness, either on the part of the people or for the defense, and because of the omission of the defendant’s counsel to call and examine him, it was claimed that a presumption arose that the defendant himself was guilty of the crime charged in the indictment. And in submitting the case to the jury they were directed by the recorder presiding at the trial that, in the case of Gordon v. The People, decided by the Court of Appeals,' it was held that if one accused of a crime is required to account for his whereabouts at a particular time, to avoid the force of criminating circumstances, the omission to produce the evidence is not in law conclusive of the facts in dispute, but the force of such circumstances may be left to the consideration of the jury. The absence of such evidence, the court says, especially when it seems to be in the power of the prisoner to furnish it, creates a strong presumption of his guilt and strong inference against him, and is a circumstance greatly corroborative of the truth of the evidence given upon the other side, and in a doubtful case would justify the jury in resolving the doubt against him. That is the language of the Court of Appeals in a murder case, where the court was called upon to lay down the law in reference to the non-production of testimony within a defendant’s reach, which might have a material bearing upon the questions involved. Now, gentlemen, I read that to you as the law of this State bearing upon this claim, and you will apply that law to the claim on the part of the prosecution in respect of the non-production of this witness, and you will give it that consideration which the Court of Appeals says it is entitled to receive, and no more.

This direction was given upon the ruling made in Gordon v. People (33 N. Y., 501, 508, 509), and in People v. Hovey (92 N. Y., 554, 560), the doctrine of that case was approved. But neither of these authorities permitted it to be applied to the case of the defendant, for the witness Smith was equally as accessible to the prosecution as he was to the defense, and might have been sworn and examined as a witness by either, if his testimony was desirable. The defendant, by the evidence, was not placed in either of the positions mentioned in the ease of Gordon v. People, nor in that of People v. Hovey, and no presumption could legally be indulged against him, on account of his omission to put Smith as a witness upon the stand.

For these misdirections the defendant has the right to complain. They probably had weight with the jury in the decision to which they arrived in the case, and although no exception was taken by the defendant’s counsel, it is the duty of the court, under section 527 of the Code of Criminal Procedure, as it was amended by chapter 360 of the Laws of 1882, to set aside the verdict and direct a new trial for the correction of these misdirections. By this section it has been made the duty of this court to order a new trial when the verdict against the prisoner is either against the weight of evidence or against law, or when justice requires that a new trial shall be had. This case is within this section of the Code. It should have been tried and disposed of, without subjecting the inquiry as to the defendant’s guilt to either of these directions, for the evidence produced upon the trial was not such as to permit the jury, either in whole or in part, to dispose of the charge contained in the indictment under these directions.

The judgment should be reversed and a new trial ordered.

Macomber, J\, concurred; Brady, P. J., concurred in the result.

Judgment reversed and new trial ordered.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE MERCHANTS’ NATIONAL BANK, Respondent, v. MICHAEL COLEMAN and Others, Commissioners of Taxes, etc., Appellants.

      Beview of illegal assessment —1880, chap. 369 — a bank cannot institute proceedings to review assessments on, the shares of stock of its stockholders.

    A national bank cannot institute proceedings, under chapter 369 of 1880, to review the legality of an assessment for a tax to be imposed upon the shares of the stockholders of the bank.

      People v. Wall Street Bank (39 Hun, 525} followed.
    Appeal from an order denying a motion to quash a writ of certiorari.

      David J. Dean, for the appellants.

      John E. Burrill, for the respondent.
   Daniels, J.:

The writ of certiorari was issued at the instance of the relator to review the legality of an assessment for a tax proposed to be imposed upon the shares of the stockholders of the bank. It was issued under the authority of section, 1, chapter 369 of the Laws of 1880, allowing a writ of this description, to review an assessment of real and personal property, for the puiqioses of taxation, on the petition duly verified, of any person or corporation assessed, and claiming to be aggrieved. The proceeding, by this section of the act, is in its language confined to the person or corporation assessed, and claiming to be aggrieved, while the assessment, which it was the design of this writ to review, was not against the corporation or its property, but it was against the property of the persons who were stockholders in the corporation, and they were the only individuals who could be aggrieved by the assessment. The cases of Pelton v. National Bank (101 U. S. Rep., 143), and Cummings v. National Bank (id., 153); Hills v. Exchange Bank (105 id., 319); and Boyer v. Boyer (113 id., 689), have been assumed to be in conflict with this construction of the statute, but they are not, for in those cases neither this statutory provision, nor any other resembling it, was brought into controversy. They did not proceed upon the writ of certiorari, but actions were maintained in each of them to restrain the collection of taxes, and that, it was considered, might be done by the banks on behalf of their stockholders, under the general principles applicable to actions in equity, and such provisions as imposed a duty, upon the association, intended to be observed for the security and certainty of the collection of the taxes. This application proceeded on no such principle, but solely and wholly upon the provisions of the statute, and that it was not authorized by the bank was considered and held in People v. Wall Street Bank (39 Hun, 525).

The writ was issued without authority, and the order denying the defendants’ motion to quash it should be reversed, with costs, and an order to that effect directed in the proceeding.

Brady, P. J., concurred.

Order reversed and motion denied.


author: Brady, J.:

text:
    THOMAS D. COTTMAN, as sole Executor, etc., of ROBERT R. McILVAINE, Deceased, Plaintiff and Appellant, v. WILLIAM R. GRACE and Others, Defendants and Appellants, and WILLIAM McILVAINE, Defendants and Respondents.

      Trust for the establishment and maintenance of a public library — when valid — what is a sufficient designation of the beneficiaries — when a devise to a city is valid under chapter 818 of 1840, as amended by chapter 261 of 1841.
    Robert E. Mcllvaine died, leaving a ■will by which lie gave and bequeathed all his library, consisting of a collection of books, pamphlets, maps, documents, papers, and all things thereunto appertaining, “ to the mayor of the city of New York, and the president of the New York Academy of Medicine, and the president of the College of Physicians and Surgeons of the city of New York, and their successors, to have and to hold the same, in trust forever, for the uses and purposes hereinafter designated.” The testator nominated, constituted and appointed the said persons and their successors his trustees for said purposes, “thatis say: I will and direct that my said trustees, with the funds and means hereinafter provided for that purpose, do locate and establish my said library in a building, or part of a building, to be by them provided for that purpose, and do forever maintain, perpetuate, improve and provide for the same under the name of ‘The Mcllvaine. Library,’ dedicated to my father and mother, as a perpetual memorial of tlie honor, respect, love and esteem wliicli I have ever cherished for them and their memory.”
    The will further provided that the said library should, at all reasonable hours and days, as said trastees should appoint, be open to the public of all classes for their free use and consultation, without any restrictions or conditions whatever, except orderly conduct and good behavior, and that it be forever maintained a separate, exclusive and distinct institution, and be kept free from all admixture or amalgamation with any other library, collection or institution. He directed his executors to sell and dispose of his estate, real and personal, and to invest so much of the proceeds as should be necessary to provide for the payment of certain annuities and to pay all the rest, residue and remainder thereof to his said trustees, to be by them invested in the purchase or rental of suitable accommodations for his library, and in bonds, etc., the income of such investments to be used and devoted solely for and to the establishment, maintenance, improvement and perpetuation of his said library.

      Held, that a valid trust was created by the will.
    That the title to the whole estate was vested absolutely in the trustees named, to be by them devoted to the establishment, management and perpetuation of the library.
    That the beneficiaries of the trust were the public in general of the city of New York, for whose benefit the library was created.
    That this construction of the will was in harmony with, and favored by, chapter 818 of 1840, as amended by chapter 261 of 1841, providing that real and personal estate may be granted and conveyed to the corporation of any city in this State, to be held in trust for the purposes of education or the diffusion of knowledge.
    Appeal from a judgment of the Special Term, giving construction to a will.
    This action was brought to obtain a judicial construction of tlie will of the late Robert R. Mcllvaine. The will contained the following among other provisions:

      First. I give and bequeath my library, consisting of a collection of books, pamphlets, maps, documents, papers, and all things thereunto appertaining, to the mayor of the city of New York, and the president of the New York Academy of Medicine, and the president of the College of Physicians and Surgeons of the city of New York, and their successors, to have and to hold the same, in trust forever, for the uses and purposes hereinafter designated; and I hereby nominate, constitute and appoint the said mayor of the city of New York, and the said president of the New York Academy of Medicine, and the said president of the College of Physicians and Surgeons of the city of New York, and their suecessors, my trustees for said purposes; that is to say: I will and direct that my said trustees, with the funds and means hereinafter provided for that purpose, do locate and establish my said library in a building or part of a building to be by them provided for that purpose, and do forever maintain, perpetuate, improve and provide for the same under the name of “ The Mellvaine Library,” dedicated to my father and mother as a perpetual memorial of the honor, respect, love and esteem which I have ever, cherished for them and their memory, and the uses, purposes and conditions of said trust are, and ever shall be, as follows:
    1. That the said library shall, at all reasonable hours and days, as my said trustees shall appoint, be open to t'he public of all classes, for their free use and consultation, without any restrictions or conditions whatever, except orderly conduct and good behavior.
    2. That the said library be forever maintained as a separate, exclusive and distinct institution, to be forever known as “ The Mellvaine Library,” and to be kept free from all admixture or amalgamation with any other library, collection or institution.
    3. That all newspapers, novels, trivial books and compositions usually designated as “ trash ” be excluded from said library; and that no books or documents be purchased for said library, or added thereto, or deposited therein, except standard works relating to the sciences, classics and liberal professions. * * *

      Second. I give, devise and bequeath all my property, both real and personal, except my library aforementioned, to Thomas D. Cottman, my executor hereinafter appointed, in trust for the purposes hereinafter mentioned, with directions and power to sell and dispose of the same, and to distribute the proceeds thereof as follows, that is to say:
    1. To pay all my funeral expenses and just debts and liabilities.
    2. To invest such a sum as will produce an annual income of $400, and out of said income of $400 to pay * * * the principal sums required to produce said annuities to fall into my residuary estate at the death of the annuitant.
    3. And all the rest, remainder and residue of said proceeds to pay to the trustees of my said library 'hereinbefore named, for the establishment, maintenance, improvement and perpetuation of my said library forever; and I do hereby will and direct that my said trustees invest the said proceeds in the purchase or rental of suitable accommodations for my said library, and in United States, New York State and New York city bonds or on bond and mortgage on improved real estate in the city of New York, not to exceed one-half the assessed value of said real estate, and to use and devote the income of such investments solely for and to the establishment, maintenance, improvement and perpetuation of my said library.
    The testator left personal and real estate situated in the State of New York, and real estate and leasehold property in the State of Ohio. The executor, in accordance with the directions of the will, had converted the property into money and wras preparing to render an account of his administration, when the heirs and next of kin of the testator advanced the claim that the disposition of his estate, by the testator, for the establishment of a public library, was illegal and void, and they were, therefore, entitled to succeed to it under the statutes of descent or distribution.
    The testator was unmarried and left no child or descendant. His heirs and next of kin were a nephew and two nieces —three of the annuitants named in the will.

      J. A. MoCreery, for the executor, appellant.

      George L. Sterling, for William R. Grace and others, defendants and appellants.

      Thomas Thatcher, John W. Simpson, Sherman Evarts, Howard Mansfield, for the defendants, respondents.
   Brady, J.:

The testator designed, by the appropriation of the bulk of his estate, to create a library, to be located in the city of New York, under the designation of the McIlvaine Library, which he dedicated to his father and mother as' a perpetual memorial of the honor, respect, love and esteem which he had ever cherished for them and their memory. And, as the initiative of that design, he gave, by the first clause of his will, his library, collection of books, pamphlets, maps, documents, papers and all things thereunto appertaining to the mayor of the city of New York, the president of the New York Academy of Medicine, and the president of the College of Physicians and Surgeons of New York, and their successors, .to have and to hold the same in trust forever for the purpose suggested. And he nominated these persons, and their successors, his trustees for the purpose of locating and establishing the library in a building to be provided by them for that purpose.

By the second clause of his will, he directed the payment of his funeral expenses and made provision for the payment of certain annuities, and then provided that all the rest, remainder and residue of the proceeds of his real and personal estate (which he directed his executor to sell) should be paid to the trustees named in the first paragraph of his will, for the establishment, maintenance, improvement and perpetuation of the library. And he further directed that the trustees should invest the proceeds so to be paid to them, in the purchase or rental of suitable accommodations for the library, and to use and devote the income of such investment solely for and to the establishment, maintenance, improvement and perpetuation of his library.

In the consideration of the provisions of the will, the learned justice presiding in the court below thought that the testator intended to perpetuate his name by the establishment of a public library, and that its affairs were to be administered by a board of trustees, which was to be in perpetuity. Such trustees having been selected, not in their official characters as the representatives of the various corporations of which they were officers, but as persons in their official characters, the provision merely serving to designate the individuals who were to act as trustees. And the learned justice says: It is conceded that such a purpose would be illegal as in contravention of the statute” and it is supposed he meant the statute against perpetuities.

The error of this view is suggested by the absolute gift of the books, pamphlets, maps and documents to the persons named in the first clause of the will, and also of the whole residuary estate, to be managed by them in the manner indicated, namely, by the purchase or rental of suitable accommodations for the library, and the appropriation of the income of such estate to its management. In other words, the title to the whole estate to be employed for the library and its perpetuity is given to these trustees. The income to be employed is not to be paid over to them by any other, and they thereby made the beneficiaries, as in the case of Adams v. Perry (43 N. Y., 487). In that case the executors were authorized and empowered to sell the residue of the estate, to invest it, and to pay to the board of trustees of the Lowville Academy, forever, the annual income, which was to be devoted by them to the care and preservation of the grounds of the academy and to the support and maintenance of a female department. The court said in that case: “It was manifestly not the intention of the testator to give to the academy any control over the fund or its investment or the exercise of any discretion in regard thereto.” "Which is very different from the present case, because it was manifestly the intention of the testator to give absolute control of the fund provided for that purpose to the trustees named by him in the first clause of the will, not only as to its investment and the application of the income, but to the purchase or rental of suitable accommodations for his library ; in other words, the scheme of the will was to vest the title absolutely in the trustees named, of all the property which was appropriated to its establishment, management and perpetuity. It cannot-be understood how any objection can be interposed successfully against the creation of such a trust.

Many questions have been considered growing out o.f the will, but this view does not seem to have occurred to the respective counsel. The only possible suggestion that may be made against the view expressed is that the beneficiaries are not determined. But that seems to be disposed of by the case of Burrill v. Boardman (43 N. Y., 254), in which the testator bequeathed the residue of his estate to trustees for the establishment of a library for the reception and relief of sick and destitute persons. Here the provision was that the library should at reasonable hours be open to the public of all classes for their free use and consultation, without restrictions or conditions, except orderly conduct and good behavior. That meant the public in general of the city of New York, for whose benefit the library was created.

By the statute of 1840, chapter 318, section 2, as amended by chapter 261 of 184!, it is provided that real and personal estate may be granted and conveyed to the corporation of any city in this State, to be held in trust for the purposes of education or the diffusion of knowledge, when such conditions as may be prescribed by the grantor or donor are agreed to by the corporation; and all the real estate so granted or conveyed may be held by the same, subject to such conditions as may be prescribed and agreed upon as aforesaid. If the testator had given his property to the mayor of New York alone, and his successor, under this statute there could be no possible doubt about the validity of the gift as one to the corporation, and the addition of two persons in connection with him, when the law expressly declares it to he a gift to and for the benefit of New York, where it was to be located and of which it was to become a part, does not seem in any way to interfere materially with this statute in spirit or in form. And this is presented as an additional reason why the will should be upheld.

It is thought for these reasons that the judgment pronounced by the learned justice in the court below was erroneous and should be reversed, and a decree entered pronouncing the provisions in reference to the library, in accordance with the views herein expressed, to be valid, with costs, however, to all parties to be paid out of tbe fund, as it is thought tbe appeal was justifiable and proper and the case properly brought, indeed necessarily so

Daniels J., concurred.

Judgment reversed and decree ordered as directed in opinion.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN B. BORST, Appellant, v. HUGH J. GRANT, Sheriff, etc., and Another, Respondents.

      Contempt — when a failure to pay money, pursuant to a judgment, cannot be treated as a contempt — when a failwe to return and canecí a note may be — a commitment will be sustained if one sufficient ground therefoi’ be shown, though others assigned therein cure insufficient — the remedy of one unable to comply with the order is under section 2286 of the Code of Civil Procedure.

    An action brought by Maria Y. Macovoy against tbe relator, in which he answered but did not appear upon tbe trial, was tried before the court, which found that the relator had, as was alleged in the complaint, obtained from the plaintiff, by means of false and fraudulent representations, her promissory note for $100, and also the sum of $300 as a deposit to secure tbe payment of rent reserved by a lease mentioned in the complaint, and directed a judgment for the return and cancellation of the note, and for the return of the sum of $300 deposited as security for the rent, and also for damages to the amount of $4,468.71. The relator having failed to comply with the provisions of the judgment entered in conformity with this decision, was adjudged by the court to be in contempt, a fine being imposed upon him and directions given that he be imprisoned until he delivered to the plaintiff and canceled the promissory note for $1CK), and untilhe should pay over and return to her the $300 deposited by her as security for the rent.
    Upon an application by certioran to be released from imprisonment, under a commitment issued to carry this order into effect:

      Eeld, that an objection to the sufficiency of the order and commitment, because of their failure to adjudge that the relator still had possession of the note and money, was properly overruled, as his possession of the note and money was to be assumed inasmuch as it did not appear that he had parted with either.
    That the failure to comply with the direction to pay over and return the $300 to the plaintiff did not justify his punishment as for a contempt, as the judgment therefor could be enforced by an execution issued thereon.

      People ex rel. Pries v. Riley (25 Hun, 587); Jaaquin v. Jaaquin (36 id., 378) followed.
    That in so far as the action was brought to procure a return and cancellation of the note, it was not an action brought to recover a chattel within subdivision 3 of section 1240 of the Code of Civil Procedure, but was an action for equitable relief, and a failure to comply with that provision of the judgment justified his imprisonment and rendered it legal until he should comply therewith.
    That if he could not comply with this direction his remedy was, by an application for relief, under section 2286 of the Code of Civil Procedure, and not by writ of certiorari or habeas corpus.

    Appeal from an order denying an application for the release of the relator from imprisonment.

      Albert Baeh, for the appellant.

      Clark Bell, for the respondent, Macevoy.
   Daniels, J.:

The relator was adjudged to be in contempt and a fine was imposed upon him for his failure to comply with the directions contained in a judgment recovered against him by the respondent Macevoy. From the form of the order and' the commitment the relator appears to have been proceeded against and punished under the authority of sections 11, 22GG, 2281 and 1211 of the Code of Civil Procedure. The adjudication which was made, as well as the fine imposed aud the directions contained in the order, bring the case within these sections and not within section 8 of this Code. And a writ of certiorari was issued upon the petition of the relator, under the authority of section 2015 of this Code, to inquire into the cause and legality of his imprisonment, under the order and commitment made and issued against him. From the petition and the return and other papers produced upon the hearing, it appears that an action was prosecuted against him in this court to obtain redress on account of fraudulent representations made by him to Marie Y. Macevoy, the plaintiff in the suit. It was alleged in the complaint that the defendant, by reason of the fraudulent representations made, obtained from the plaintiff a promissory note for the sum of $100 and also the sum of $300 as a deposit to secure the payment of rent reserved by the lease mentioned in the complaint. The complaint was so drawn as to include the demand for both legal and equitable relief, the legal relief consisting of the demand for damages sustained by reason of the false representations, and the equitable relief, of the demand for an injunction, and also requiring that the note of $100 should be given up and canceled, and that the defendant should be ordered and adjudged to deliver and return to the plaintiff the $300 paid into his hands as security for the performance of the lease. The defendant, although he answered the complaint, did not appear upon the trial and the action was tried before the court and the false and fraudulent representations were found to be established by the evidence. And the delivery of the note and deposit of the money, as alleged in the complaint, were likewise found to have been proven. Judgment was accordingly directed by the court for the return to the plaintiff, and cancellation of her note for $100 and the return to her of the sum of $300 deposited by her with the defendant as security for the rent. And in addition to those adjudications the plaintiff was found to be entitled to a judgment for damages against the defendant for the sum of $4,468,71. The judgment following the decision provided for the recovery of these damages, and in addition to that, for the delivery of the $100 note to the plaintiff, and that the same should be canceled, and also for the delivery and return to her of the sum of $300 deposited with the defendant in the manner set forth in the complaint. He failed to comply with either of these directions, and upon proceedings taken against him for that purpose, he was adjudged by the court to be in contempt for such failure. And a fine was imposed upon him for the plaintiff’s indemnity because of his misconduct, and he-was directed to be imprisoned in the common jail of the city and county of New York, until he delivered to the plaintiff, and canceled the promissory note for $100, and that he also be in like manner imprisoned until he should pay over and return to her the sum of .$300, deposited by her with him as security for the rent of the premises mentioned in the complaint. And the commitment was issued to carry this order into effect.

An objection has been taken to the sufficiency of the order and .commitment, because of their failure to adjudge that the relator .still had possession of the note and the money. But that objection .stands upon no legal foundation, for his possession of the note, as well as the money, may be presumed, inasmuch as it was not made to .appear that he had parted with either. In this respect there was no defect or informality, either in the order or the commitment. It was to be assumed, as long as the fact was not proven to be ■otherwise, that the defendant still had the ability to comply with ■the directions contained in the judgment.

But the direction made for the payment of the $300 obtained by the relator from the plaintiff in the action, did not justify his punishment for a contempt because of his failure to comply with .that direction. As the facts appeared, this was so much money .obtained by him from the plaintiff in the action, by false and ■fraudulent representations, and the recovery of this sum was designed by way of indemnity to her for the loss produced by the delivery ■of this money to the'relator, and the judgment for its recovery was .one which could be carried into effect by the issuing of an execution. And where that may be done the party cannot be punished by way ,of proceedings for contempt for his failure to comply with the directions contained in the judgment. By subdivision 3 of section 14, the power to punish a party for a contempt for the non-payment ■of a sum of money ordered or adjudged by the court to. be paid, has been restricted to cases where by law execution cannot be awarded for the collection of it. And by section 1241 of the Code the same restriction has been preserved. And this part of the judgment cannot be excluded from this restriction by reason of anything contained in subdivision 4 of section 1241 of the Code, for that permits the punishment of a party for a contempt only when the judgment requires the payment of money into court, or to an officer of the court. That this judgment did not require, but it directed the payment of the $300 to be made to the plaintiff. It was as to this sum a judgment for the recovery of the money, and it was capable of being enforced by execution under subdivision 1, section 1240 of the Code of Civil Procedure. These provisions were examined, and the right to punish the defendant by way of proceedings for contempt, in People ex. rel. Fries v. Riley (25 Hun, 587) and Jacquin v. Jacquin (36 id., 378), where it was held that upon a judgment directing the payment of a specific sum of money, an execution should be issued for its enforcement, and proceedings to punish the party for a contempt for failing to perform the direction could not be maintained. A somewhat similar provision was contained in the Revised Statutes, but in Myers v. Becker (95 N. Y., 486) that was held not to justify the imprisonment of a party in proceedings by way of contempt where the money might be collected by the issuing of an execution.

The other direction in the judgment is not subject to the same objection. That was a part of the equitable relief which the judgment awarded to the plaintiff, and it directed this note of $100 to be delivered to her and canceled. The action was not a suit brought to recover a chattel within the signification of subdivision 3 of section 1240 of the Code. The class of actions there referred to are those which may in form be brought against the defendant for the recovery of the possession of one or more specific chattels, and were known under the preceding Code as actions of claim and recovery of personal property, and under the present Code, as well as the. still earlier practice, as actions of replevin. This was not a suit of that description, bat it was brought for legal and equitable relief on account of the fraudulent misconduct of the defendant. The object, so far as the note was involved, was to rescind the transaction through which the defendant had obtained it, and to require its surrender to the plaintiff, and provide for its cancellation ; and that relief was awarded to the plaintiff by the judgment. To carry this part of the judgment into effect the service of a eertiffed copy of it upon the defendant became necessary under section 1241 of the Code, and that service seems to have been made in this case. He failed to comply with that direction, and for that failure he was liable to be proceeded against and punished for a contempt. And in that part of the proceeding the requirements of the statute seem to have been observed. To that extent Lis imprisonment was legally directed until he should deliver up this note to the plaintiff for cancellation. This was a separate and distinct direction, contained both in the order and in the commitment, and as long as the defendant fails to comply with it his imprisonment is legal under the order and the commitment. The fact that the order may have been without authority as to the $300 will not entitle the relator to be relieved from imprisonment, until he has complied with that part of the order which appears to have been warranted by the judgment and the legal provisions applicable to the case. (People ex rel. Woolf v. Jacobs, 5 Hun, 428; affirmed, 66 N. Y., 8.)

He has not complied with that part of the adjudication made against him, and until he shall do so his imprisonment must be held to have been legally directed, and to constitute an answer to the application which was made for his discharge under the writ of certiorari. His remedy, if he cannot comply with the direction contained in the judgment and the order, is for relief under section 2286 of the Code of Civil Procedure, and not by the writ of certiorari or habeas corpus.

The order from which the appeal has been talcen seems to have been properly made, and it should be affirmed, with the usual costs and disbursements.

Beady, P. J., and Macomber, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    MARY FOWLER, Respondent, v. THE METROPOLITAN LIFE INSURANCE COMPANY, Appellant.

      Estoppel — when a life insurance company will be estopped, by statements contained in a pamphlet distributed by it, from availing itself of a breach of a condition of the policy.

    A policy for $10,000, issued by tbe defendant upon the life of one Fowler, was, pursuant to the provisions therein contained, surrendered to the company and a paid up policy for $1,500 taken out, subject to the payment, annually in advance, of the sum of thirty dollars and eighteen cents, being the interest on premium notes given in payment of premiums falling due under the first policy. Fowler having moved to Wisconsin, remitted to his father, who resided in New York city, the money required to pay the interest becoming due on September 12, 1873. The letter was received by the father in the latter part of that day, at his residence. Presuming that he could lawfully pay the money on the next day, he, on that day, went to the office and tendered the amount, which . the company refused to receive upon the ground that by virtue of a condition contained in the policy, the failure to pay the amount on the preceding day had terminated the policy and rendered it void.
    To avoid this effect it was proved that the company had prepared and printed for use, and distributed in the course of its business, a pamphlet explaining the advantages offered by it, and the effect which would be given to its policies. In this it was stated that “ all its policies are non-forfeitable,” and again, “it allows thirty days grace in payment of premiums.” This pamphlet was shown to have accompanied the original policy, and to have been read and examined by Fowler’s father previous to the time when the money was received and the tender was made.

      Eeld, that as the father was induced by the act and conduct of the defendant to act as he did, it would be a fraud upon him, as well as upon the assured,.to permit the company to avail itself of the omission to make the payment as a reason for the forfeiture of the policy.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury.

      William II. Arnoux, for the appellant.

      D. Roble Rowan, for the respondent.
   Daniels, J.:

The judgment was recovered for the amount, with interest, of a policy of life insurance issued by the defendant, on the life of Lindley H. Fowler, on the 12th of September, 1872. A preceding policy liad been issued upon the life of the same person by the defendant, on the 6th of March, 1869, for the sum of $10,000. This policy contained the agreement that if, after having received three or more annual premiums, the assured should fail to make payment of any further premium when due, then and in that case, upon a surrender of this policy within thirty days after such unpaid premium shall be due, the company would in exchange therefor issue a paid-up policy for the proportion of the amount of insurance paid for. It was also agreed that the premium upon the policy should be paid, on or before the sixth day of March, in every year during its continuance, or within thirty days after the several payments should become due and payable. And in case of a failure to pay the premium on or before the time mentioned for its payment, then the company should not be liable for the payment of the sum insured, or any part thereof, but the policy should cease and determine and all previous payments should be forfeited to the company.

Under the clause in the policy permitting that to be done, the assured elected to take the policy upon which this action was brought, which was a paid-up policy in the sum of $1,500, subject, however, to the payment annually of the sum of thirty dollars and eighteen cents for interest on premium notes, amounting to $131.21 given in part payment of the premium of the original policy. This interest was payable in advance, and after the second policy was issued, the assured went to the State of Wisconsin to reside. He remitted to his father, who resided in the city of New York, the money required to pay the interest accruing and becoming due under the policy for this year, 1873. The letter containing the remittance was received at the residence of his father on the 12th of September, 1873. But he himself did not receive ic until the latter part of the day, and presuming that the money could be lawfully paid to the company the next day, he, for the first time on that day, repaired to its office, and tendered the amount which the company refused to receive, and by way of excuse for its refusal, it was insisted that the policy had lapsed and terminated on the preceding day. This position was taken under the third article contained in the policy declaring that the interest mentioned in it should be paid, on or before the days therein mentioned, at the office of the company, or to its duly authorized agent, “ and any default thereof, or failure to pay at maturity any note given for interest, or other obligation, on this policy shall then and thereafter cause this said policy to be void without notice to any party or parties interested therein.” And there is no reason for doubt but that, under this clause, without any legal qualification of it, the policy would be avoided in the election of the company, by reason of such a default. (Matter of Attorney General v. Continental Life Ins. Co., 93 N. Y., 70.)

But to avoid the effect of the omission to pay, declared by the skill clause in the policy, proof was given that the company in 1868 had prepared and printed for use, and afterwards distributed in the course of its business, a pamphlet explanatory of the advantages offered by it, and the effect which should be expected to be given to its policies. In mentioning the reasons why persons contemplating insurance upon their lives should insure in this company, it was stated in the pamphlet that all its policies are nonforfeitable,” and again, “ it allows thirty days grace in payment of premiums.” And this pamphlet was stated to have accompanied the policy in the possession of the assured, and it had been read and examined by his father previous to the time when the money was received, and this tender was made for the interest maturing upon the note. It is true that the interest was not, in a strict legal sense, a premium upon the second policy, but persons receiving policies and transacting business with the company, knowing the contents of the pamphlet upon this subject, would neither presume nor act upon this distinction. They would assume ordinarily, on the contrary, that whatever was to be paid to the company to preserve and continue the policy would be a premium, and, therefore, within this statement, contained in the pamphlet, that thirty days grace would be allowed after its maturity for its payment. And that conviction would not be displaced or overcome, by the mere notice upon tho policy itself, stating that the interest- was payable annually in advance on the day written therein, without grace. That notice certainly does not seem to have been observed, or to have come to the knowledge of the father of the assured, when he received the money to pay the interest, or when he tendered it at the office of the company to one of its officers; but he was acting up to that time as the agent of the assured upon the belief created by the statement contained in the pamphlet, that the thirty days grace would include this as well as the preceding policy. In this manner he was misled by the act and conduct of the company itself, and it would be a fraud upon him, as well as the assui’ed, to permit the company to avail itself of the omission to make the payment on the twelfth of September, as a reason for the forfeiture of the policy. Good faith and fair dealing, on the contrary, both demand that it should not disappoint the expectation and conviction produced by its own statement in the mind of the father of this assured. This conduct induced him to act as he did, and it was calculated to have that effect upon persons who were not familiar with the application of strict legal principles. For they would ordinarily assume this statement to give them the thirty days liberty to make the payment after the time when it actually became due. And where the statement or conduct of a party may be such as to mislead another in this manner, the law will not permit that party afterwards to take advantage of it to the prejudice of the rights of the other. (Blair v. Wait, 69 N. Y., 113.) And that the party could act upon the assurance made in this manner by the pamphlet is sustained by the authorities referred to in Ruse v. Mutual Insurance Company (24 N. Y., 653).

A point not entirely dissimilar to this arose in Howell v. Knickerbocker Life Insurance Company (44 N. Y., 276), where it was held that the assured could rely upon an agreement made by the company, that a reasonable time could be taken for the payment of the premium after it had in point of fact matured. (Id., 285.)

A dispute did exist in the evidence, given on behalf of the plaintiff and the evidence of the defendant, as to what was said and done, and the conversation which took place concerning the pamphlet, and the statement contained in it, at the time when payment of this interest was offered at the office of the company; but as the defendant did not desire to submit that dispute to the decision of the jury, but presented the case as one depending wholly upon legal principles, to be decided by the court, the judge presiding at the trial had the right to draw all such inferences from the evidence as could be legally supported by it, and to dispose of the controversy upon the effect of such inferences. (O'Neill v. James, 43 N. Y., 85; Stratford v. Jones, 97 id., 586.) And it is to be presumed now that the court, in directing the verdict for the plaintiff, deemed the facts to be established as the evidence on her part tended to prove them to be.

After the refusal of the company to accept the interest payable on the 12th of September, 1873, it was annually offered, as it accrued, at the office of the company, in each year, prior to that day of the month, until the decease of the assured. That was sufficient to comply with the obligation of the assured, or of the plaintiff, as his assignee, and with the other evidence in the case entitled her to recover the verdict which was directed in her favor.

The judgment should, therefore, be affirmed.

Bradt, P. J., concurred.

Judgment affirmed.


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    CARRIE GUTWILLIG, Executrix, etc., Respondent, v. HERMAN ZUBERBIER and WILLIAM J. BEHAN, Appellants.

      Contract for the sale of an article manufactured by the seller— what obligations are imposed upon him — what constitutes a delivery — when not liable for deterioration occasioned by the shipment — when witnesses cannot express an opinion as to matters upon which the jury are to pass.

    Where a contract for the purchase of an article manufactured, or to be manufactured, by the seller contains no warranty as to what the condition or quality of the article should be, the law imposes upon the seller the obligation of delivering a merchantable article in ordinarily good condition.
    When the delivery of the property is to be made by its shipment, delivery on board of the vessel, as directed by the purchaser, will, in judgment of law, operate as a delivery to him, and if the property, at the time of such delivery, is in the condition and of the quality which the purchaser is entitled to receive, that will constitute a performance of the agreement of sale.
    This action, brought by the plaintiff to recover the price of twenty-five half barrels of cherry bounce, sold and shipped by steamer from New York to the defendants at New Orleans, pursuant to their direction, was defended by them upon the ground that the cherry bounce was, at the time of its receipt by them, in a state of fermentation and unmerchantable, evidence being given by them tending to prove that the bounce could not have been manufactured as it should have been, and that if it had 'been properly manufactured the fermentation would not have taken place.

      Upon the trial witnesses called by the plaintiff; were allowed, against the defendants’ objection and exception, to answer the following questions: “Assuming that this cherry bounce, which you have'heard described, was manufactured in the manner stated by the last witness, was it, in your opinion, a merchantable article, and fit to stand the journey from here to New Orleans? ” “ Then, as I understand you, if these beverages contained a percentage of twenty-five of spirits, when they, left New York, they were perfectly merchantable and capable of sustaining the test of the journey to New Orleans, and would be merchantable when they arrived in New Orleans,” and others of a similar character.

      Held, that it was error to allow the witnesses to answer the questions, as the opinions expressed extended over the controverted part of the case and the witnesses, in answering them, usurped the province which the law has reserved for the jury.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Dewitt O. Brown, for the appellants.

      Ball dc Blandy, for the respondent.
   Daniels, J.:

The verdict was recovered for the price of twenty-five half barrels of cherry bounce and ten half barrels of blackberry brandy. It was ordered by letter by the defendants from the testator, which was dated on the 19th of December, 1881. The defendants were engaged in business in the city of New Orleans, and the bounce and brandy were directed by the letter to be sent by steamer from the city of New York to them at the city of New Orleans. It was so shipped on or about the twenty-ninth of the same month, and arrived in New Orleans during the month of January. After it had been received by the defendants for a period of ten or fourteen days, the bounce was found to be in a state of fermentation and unmerchantable, while the blackberry brandy was in good order.

Notice was given by them to the testator, of the condition of the bounce and of their refusal to accept it. They were directed to add spirits to the bounce, which was expected to restore it to a merchantable condition. They did so, but while that had the effect of preventing further fermentation, the article itself proved to be then unfit for use. . And upon these facts the defendants resisted the payment of the bill for the price of .the cherry bounce.

To maintain the action proof was given, on behalf of the plaintiff, that the bounce was properly manufactured and in a merchantable condition at the time when it was placed on board the steamer to be carried to the city of New Orleans. And if that was the fact, and this fermentation was caused by some intervening circumstance over which the testator had no control, he performed his agreement and the risk of the property was upon the defendants.

There was no warranty as to what the condition or quality of the article should be, but where the contract is for the purchase of an article manufactured, or to be manufactured, by the seller, the law subjects him to the obligation of delivering a merchantable article in ordinarily good condition. (Hoe v. Sanborn, 21 N. Y., 552; Howard v. Hoey, 23 Wend., 350.) And when the delivery of the property is to be made by its shipment, delivery on board the vessel, as directed by the purchaser, will, in judgment of law, operate as a delivery to him or them. (Rodgers v. Phillips, 40 N. Y., 519; Wilcox Silver Plate Co. v. Green, 72 id., 17.) And if the property, at the time of the delivery, is in the condition, and of the quality, which the purchaser is entitled to receive, that will constitute a performance of the agreement for its sale. (Mee v. McHider, 39 Hun, 345.)

As the proof was given upon the trial, on behalf of the plaintiff, it had a direct tendency to establish the fact that the obligations for the performance of the agreement had been complied with on the part of the testator, and so the case was submitted by the court to the jury. The right of the plaintiff to recover was made exclusively dependent upon such a performance. After that direction had been plainly and fully given to the jury various requests were made for further instructions, and they were given as favorably as the defendant had reason to expect they would be, the court qualifying them generally by the principle to which reference has been made, governing the obligations of the seller of the property. It was suggested, on behalf of the plaintiff, that the bounce had fermented by reason of its being improperly stored near the machinery of the steamer, and carried in that manner from New York to New Orleans, but no evidence of improper stowage in this or any other respect was given upon the trial, and the court was requested to direct the jury that there was no such evidence in the case, but this was united with the further request for the direction that the uncontradicted evidence showed that the fermentation was caused by lack of spirits, or other defect in the manufacture. That instruction the court, under the evidence, could not give, and the exception taken to the refusal to charge these two propositions together, can not be sustained.

The evidence, on behalf of the defendants, tended to prove that the bounce could not have been manufactured as it should have been, and if it had, this fermentation would not have taken place. Other dealings for bounce were had between these parties previous to this transaction, and the article shipped and received fully met the expectations of the defendants. To meet this evidence, proof was given on behalf of the plaintiff that the bounce in suit was manufactured in the same manner as that which had previously been sold and shipped to the defendants, and to avoid the effect of the evidence proving its condition after it was received in New Orleans, various questions were asked on behalf of the plaintiff, which, it is urged, the court erroneously permitted to be answered. By one of these questions a witness was asked whether, assuming that this cherry bounce, which you have heard described, was manufactured in the manner stated by the last witness, was it, in your opinion, a merchantable article and fit to stand the journey from here to New Orleans ? ” lie was also asked: Then, as I understand you, if these beverages contained a percentage of twenty-five of spirits when they left New York, they were perfectly merchantable and capable of sustaining the test of the journey to New Orleans, and would be merchantable when they arrived in New Orleans ? ” Another witness, who had testified that the bounce had been properly compounded, if made according to a certain formula, was asked : "Would it be abeverage that would be merchantable in New Orleans and would stand the journey from New York to New Orleans?” He was also asked: “ Then ordinarily if those goods were properly barreled and made air-tight, and if they received a fair share of treatment between here and New Orleans, they would be merchantable upon arriving at New Orleans?” These questions were all objected to as improper, and incompetent or irrelevant, and the court permitted them to be answered, and the witness answered them affirmatively. And to the rulings of the court, allowing the answers to be given, exceptions were taken on behalf of the defendants. These questions, in their extent, include and extend over the ground of the controversy between the plaintiff and the defendants, and required the witnesses to determine, by their judgment and opinions, what it was in part the province of the jury to decide. There was no impropriety in inquiring of the witnesses familiar with the manufacture of the bounce, how long, and under what circumstances, it could be preserved in good condition, and what causes would probably produce fermentation, and that was as far as the opinions of the witnesses could be taken. After that it was for the jury to consider and decide whether the bounce was so manufactured as to be merchantable, or capable of sustaining the test, or risks of the journey from New York to New Orleans. It was further urged on behalf of the plaintiff, that if the fermentation was not caused by its improper stowage.on the steamer, that then it may have been produced by exposure to the weather after its arrival at New Orleans. And these opinions were introduced-in the case to create the impression, on the part of the jury, that the fermentation may have been produced in this manner, and by no improper manufacture or compounding of the article itself. Their opinions extended over the controverted part of the case, and usurped what the law has reserved as the province of the jury, and they should not have been received. (Ferguson v. Hubbell, 97 N. Y., 507, 512-516.)

These opinions were not harmless, for they met the substance of the issue between the parties, and because this evidence was received the judgment in the case should be reversed, and a new trial ordered, with costs to abide the event.

Brady, F. J., concurred.

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


author: Macomber, J.:

text:
    LAWRENCE DRAKE, Appellant, v. BENJAMIN DRAKE and Others, Respondents, Impleaded, etc.

      Action to determine the validity, construction or effect of a testamentary disposition of real property within this State — when jurisdiction over it is conferred by section 1866 of the Code of Civil Procedure — a demurrer cannot be sustained on a ground not specified in it.

    The complaint in this action, brought to determine the validity, construction and effect of certain provisions of the last will and testament of Mary Hopeton Drake and James Drake, set forth the wills and the codicils thereto, and alleged that they had been duly executed and admitted to probate. By the ninth clause of his will, James gave and devised to Mary, in case she should die without leaving lawful issue, full power and authority to devise and appoint by her last will and testament, or other instrument in writing, executed by her as therein mentioned, certain real estate, to all, or any, or either of three of his sisters named in the will, or to all, or any, or either of the lawful issue of said sisters after the death of Mary, and in default of any such appointment, he gave and devised the said real estate to his said sisters, and to their heirs and assigns, from and after the death of Mary, to be divided among them in equal shares, the issue of any sister dying during the lifetime of Mary to takfe the share of the parent.
    Mary died in 1884, unmarried, and without issue, leaving a will by which, after reciting the devise of the said real estate to her, and the authority to devise the same contained in the will of James, she disposed of the same to sundry persons in different shares. By a codicil to this will she revoked the devises made to three of the devisees, giving them other property, and devised other real estate to another person.
    The complaint alleged that the will and codicil of Maiy were void and inoperative and of no effect, in so far as they related to, or attempted to devise or appoint or dispose of lands in the complaint mentioned, and that as to them she had failed to exercise the power of appointment given to her in and by the last will of James, and prayed that the validity, construction and effect under the laws of the State of New York, of the wills of James and Mary, in so far as they related to the lands mentioned, be determined by the court.’
    Some of the defendants demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and others upon that ground and also upon the further ground that the court had not jurisdiction of the subject of the action. An order was entered sustaining the demurrers upon the ground that the court had not jurisdiction of the subject of the action.

      Held, a mis-trial, in so far as concerned the demurrers interposed simply upon the ground that the complaint did not state facts sufficient to constitute a cause of action, as a demurrer could not be sustained upon a ground not stated in it.

      That it was error to sustain the demurrers interposed upon the ground that the court had not jurisdiction over the subject of the action, as such jurisdiction was conferred upon it by section 1866 of the Code of Civil Procedure.

      Weed v. Weed (94 3ST. Y., 243) distinguished.
    Appeal from an interlocutory judgment, entered upon the decision of the court at Special Term sustaining demurrers to the complaint upon the ground that the court had not jurisdiction of the subject-matter of the action.

      Joseph H. Choate, for the appellant.

      James C. Carter, for the respondents.
   Macomber, J.:

The demurrers of the defendants, Benjamin Drake, Mary E. Drake, Emily T. Smith, Ethelbert H. Smith, AnnaT. L. Atterbury and Louis B. Atterbury to the complaint, were interposed upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer of the defendants, Mary IL Black, Charles N. Black and James Drake Black, was put upon the same ground and also upon the further ground that the court had not jurisdiction of the subject of the action.

The order sustaining the demurrers is expressly stated to be upon the ground that the court had not jurisdiction of the subject of the action. In so far as this decision affects the demurrers, which were interposed for the reason only that the complaint did not state facts sufficient to constitute a cause of action, it would be a mistrial, because it would not be possible to sustain a demurrer upon any ground other than that upon which it was placed. This does not affect the general principle that the jurisdiction of the court may always be questioned at the trial, whether such jurisdiction is challenged by the answer or not. (Code of Civil Pro., § 499.) Nevertheless, inasmuch as one of the demurrers raised the question of the jurisdiction of the court, it was doubtless deemed advisable by counsel upon both sides to have that question settled for the benefit of all of the parties, and heneo no suggestion has been made that the decision was in part at least a mis-trial, but on the contrary counsel unite in asking us to pass only upon the question that was considered by the Special Term, namely, that of the jurisdiction of the court to. entertain the case as made by the complaint.

The action is brought to determine the validity, construction and effect of certain provisions of the last will and testament of Mary Hopeton Drake and James Drake. The complaint alleges the due execution of the last will of James Drake, and his death subsequently thereto, and the admission of the same to probate before the surrogate of the county of New York, and sets forth the will and the codicil in haeo verba. It then proceeds to set out in detail the description of the several lots of land in the city of New York, including the eleven lots hereinafter mentioned, owned by the testator at the time of his death, of which the plaintiff, with others, is in possession.

It also contains suitable allegations showing the relationship of the plaintiff with the several defendants to the testator as heirs-at-law or devisees. The ninth provision of this will reads as follows: u In case of the death of the said Mary Hopeton Drake, without leaving lawful issue surviving at the time of her decease, then, and in such case, I give and devise to her full power and authority to devise or appoint by her last will and testament, or other instrument in writing, executed by her in the manner hereinbefore mentioned, the said eleven dwelling-houses and lots of land last above-mentioned, and each and every of them, to all, or any or either of my sisters, Susan Ann Drake, Sarah Ann Lawrence and Mary N. Keene, or to all, or any or either of the lawful issue of my said sisters from and after the death of the said Mary Hopeton Drake, forever, thereafter, and in such shares and proportions as she may think proper, and in such case I hereby give and devise the same in case of such devise or appointment, and in default of said last-mentioned devise or appointment of the said Mary Hopeton Drake, and without leaving lawful issue her surviving, I hereby give and devise the last-mentioned eleven dwelling-houses and lots of land to my sisters above named, and to their heirs and assigns, from and after the death of the said Mary Hopeton Drake, forever, to be divided among my said sisters in equal shares, and in case of the death of any or either of my said sisters, during the lifetime of said Mary Hopeton Drake, leaving lawful issue, then, in such case last mentioned, the said issue of each one so dying shall take the share or part thereof which the parent of such issue would have taken if she had survived.”

It is out of the foregoing article of the will of James Drake that the questions of law, designed by plaintiff to be presented to the court, principally arise.

It further appears that Mary Hopeton Drake survived the testator, and after the death and the probate of the will, she took possession of the eleven lots of land particularly set forth in the complaint and continued to occupy and possess the same until her death. Mary Hopeton Drake, it is shown, died on the 24th day of June, 1884, unmarried and without issue, having previously made her last will and testament bearing date the 14th day of June, 1881, and a codicil thereto, bearing date the 21st day of June, 1881, both of which instruments are set out in full in the complaint and were duly admitted to probate by the same surrogate. By the second article of her will she recites the fact of the devise to her of the eleven houses and lots mentioned in the will of James Drake, and the authority to devise the same as therein provided, and then proceeds to make a disposition thereof to sundry persons in different shares. By the first article of her codicil she revokes the devise made in the second clause of her will to James Drake Black and devises him other property in lieu thereof. She also revokes the devise to Mary Hopeton Smith and in place thereof gives her other property; and also revokes the devise to Mary Hopeton Drake and gives her other property instead thereof. By the second clause of her codicil she devises to Hopeton Drake Atterbury land on the western side of Broadway, in the city of New York, describing it, also premises on Twelfth street adjoining, to have and to hold the same to the said Hopeton Drake Atterbury and to her heirs and assigns forever. And if the devisees should not be living at the time of the death of the testator, then the same should go to her lawful issue, equally, and in the event of her death before the testator, without lawful issue surviving her, then the property should form a part of her residuary estate and be disposed of as directed in relation to that portion of her property.

The complaint further alleges that article second of said will of said Mary Hopeton Drake, and articles first and second of her codicil thereto are void, inoperative and of no effect, in so far as they relate to or attempt to devise or appoint or dispose of lands in the complaint particularly described, or any part thereof, and that as to said lands and premises the said Mary Hopeton Drake has failed to devise or appoint the same under law by virtue of the power of appointment given to her in and by the last will and testament of James Drake. Thence follows a suitable prayer for relief based upon such allegations, and a further prayer that the validity, construction and effect under the laws of the State of New York, of the will of the said James Drake, deceased, in so far as it relates to the lands and premises mentioned, and the validity, construction and effect under the laws of any testamentary disposition of said lands, in that will contained, be determined by this court; that the validity, construction and effect of the last will and codicil of Mary Hopeton Drake, in relation to the same subject-matter, or of any attempted testamentary disposition of those lands and premises, or any part thereof, in and by the will of Mary Hopeton Drake, be also determined by the court, together with a suitable prayer for injunction and appointment of a receiver, etc.

It will thus be seen what was in the mind of the counsel who drew the complaint, and what questions of law may arise for the determination of the court. We are not asked to make a construction of any of these provisions of the wills respectively, nor to pronounce any of their provisions valid or invalid, but are asked to consider only the question of jurisdiction of the court to entertain .a complaint containing these allegations, and by which a construction of this nature is sought. The learned judge at Special Term based his decision upon the case of Weed v. Weed (94 N. Y., 243). That case holds only that a devisee, who claims a mere legal estate in the real property of the testator, where there is no trust, cannot •maintain an action for the construction of a devise, but must assert his title by legal action, or if in possession, must await an attack upon him and set up the devise in answer to the hostile claim. The court held that there was no element in the case of equitable jurisdiction or cognizance, inasmuch as there was no trust provided for by the terms of the will. That decision was in a case arising before the enactment of section 1866 of the Code of Civil Procedure, upon which the complaint in this action is manifestly based, .and furthermore it does not, in our judgment, meet any question that is designed to be presented by the plaintiff in this action. The question before us rather is this, assuming the principle of Weed v. Weed to exist, as it has existed from time immemorial, is this plaintiff in a situation to call upon the court for the construction of the particular wills above mentioned ?

Section 1866 of the Code of Civil Procedure is as follows: The validity, construction or effect under the laws of the -State,' of a testamentary disposition of real property situated within the State, or of an interest in such property which would descend to the heir of an intestate, may be determined in an action brought for that purpose in like manner as the validity of a deed purporting to convey land may be determined. The judgment in such an action may perpetually enjoin any party from setting up, or from impeaching the devise, or otherwise making any claim in contravention to the determination of the court as justice requires.”

It would seem by reference to the ninth clause of the will of James Drake, that a trust of a most important character was reposed in Mary Hopeton Drake, and that the execution of that trust or power in trust, if it be that only, calls upon this court for the exercise of its most important equitable jurisdiction, and a power which is not limited altogether, either by the section of the Code above mentioned or by previous legislation. This section of the Code is an elaboration only of the statute of 1853, by which the validity of any actual or alleged devise in a will of real estate might be determined by the Supreme Court in a proper action for that purpose, in like manner as the validity of any deed conveying or purporting to convey lands may be determined by such court. And we are cited to a decision of the General Term in the Second Department, by which a complaint was sustained under chapter 238 of the Laws of 1853, which sought to declare a will invalid. The law of 1879 (Laws of 1879, chap. 316) simply provides that the validity of a devise or will may be determined by the Supreme Court in a proper action for that purpose, leaving out entirely the restrictive clause derived from the analogous practice relating to deeds of real estate.

Many cases have been decided by the courts, arising under the statute of 1853, which tend to uphold the contention made by the counsel for the plaintiff, that even without the section 1866 of the Code, the jurisdiction of the court, in this instance, would be upheld, and among them are Jones v. Jones (1 How. Pr. [N. S.], 510); Marvin v. Marvin (11 Abb. Pr. [N. S.], 102); Wager v. Wager (23 Hun, 439); Ward v. Ward (23 id., 431); De Bussierre v. Holliday (55 How. Pr., 220). The case of Tiers v. Tiers (98 N. Y., 568) seems to have arisen distinctively under section 1866 of the Code, but authorities are hardly needed in a case which is perspicuously placed by the pleader upon the section of the Code already quoted. “ The validity, construction or effect under the laws of the State of a testamentary disposition of real property, situated within the State, * * * may be determined in an action brought for that purpose,” says the statute. The plaintiff brings this action thereon, and under suitable allegations, challenging the validity of article two of the will of Mary Hopeton Drake, and articles one and two of the codicil to that will, as the same is to be ascertained under article nine of the will of James Drake, and in the words of the statute asks that this court determine the validity, construction and effect of those instruments. It seems to us to be a plain application to the court for a construction of a devise of a power in trust by one will, and the sufficiency of the execution of that power by another will, under a statute that was specially and particularly designed to meet the questions arising under both wills. Being of opinion, therefore, that the Special Term was in error in sustaining the demurrers upon the ground that the court had not jurisdiction of the subject of the action, it follows that the order and interlocutory judgment should be reversed.

It is so ordered, without costs to either party, and with directions to the Special Term to consider the questions which are presented by the other ground of the demurrers, which will necessarily involve the construction and effect of. the provisions of the two wills already mentioned.

Brady, P. J., and Daniels, J., concurred.

'Judgment reversed, without costs.