text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HIRAM SINKLER, Respondent, v. IRVING C. TERRY, Superintendent of the Onondaga County Penitentiary at Syracuse, New York, Appellant.

      Constitution — the legislature cannot provide for the election of a justice of the peace fm' a village — Constitution, art. 6, sec. 18 — there can he no de facto officer unless there he an actual existing office.

    The charter of the village of Canton, provides for the election of “ one justiee of the peace,” by ballot, at the annual meeting held in said village for the election of officers, and confers upon him “the usual powers of justices of the peace of towns in relation to crimes and misdemeanors, and to oaths and actnowledgments, and also in civil actions in which all the parties shall be residents or inhabitants of said village.”

      Held, that the statute was unconstitutional, as it violated the provisions of section 18 of article 6 of the Constitution.
    That the acts of a person claiming to hold the office of justice of the peace of said village, by virtue of an election at the annual meeting held for the election of village officers, would not be regarded as valid, as the acts of a de facto justice, for the reason that there was no such office as justice of the peace for the village of Canton, and that, in order that there may be an officer defacto, there must actually exist the office into which he can intrude.

      It seems, that if the designation of the officer had been police justice instead of justice the act might have been sustained, under the provisions of section 19 of article 6 of the Constitution, providing that “ inferior local courts of civil and criminal jurisdiction may be established by the legislature,” upon the implied construction that his civil and criminal jurisdiction was limited to the village, and thus local and within the express power conferred by this section of the Constitution. (Per Landon, J.)
    Appeal by the people of tbe State of New York from an order made by Justice Tappan July 12,1886, and entered in St. Lawrence county, discharging the relator from imprisonment.
    Henry E. Seaver, who claims to be a justice of the peace, convicted the relator, Hiram Sinkler, of the crime of assault in the third degree, and sentenced him to the Onondaga County Penitentiary for the term of four months. After the relator had been confined in the penitentiary for the period of three 'months, his mother, in his behalf, procured a writ of habeas corpus, requiring the superintendent of the penitentiary to produce the relator beforo Justice Tappan, on the 10th of July, 1886, that the cause of hia detention might be inquired into.
    It appeared that at the annual charter election in the village of Canton, on the 12th of January, 1886, Mr. Seaver received no votes for the office of “justice of the peace,” but did receive 162 votes for “ police justice.” The clerk of the village filed with the county clerk a certificate of Mr. Seaver’s election as “justice of the peace.” Mr. Seaver gave a bond as justice of the peace, which bond was approved by the supervisor of the town of Canton.
    The act which created the office of justice of the peace of the village of Canton is section 2 of chapter 70 of 1859, as amended by chapter 263 of 1870, which reads as follows: “ The officers of said village shall be five trustees, one of whom shall be designated and elected president; * * * 0ne justice of the peace, with powei's hereinafter mentioned. * * * The trustees, assessors, justice of the peace, treasurer, clerk, collector and constable shall be elected by ballot at the annual meeting in said village for the election of officers, and shall hold their respective offices until the next annual meeting and until their successors are elected and duly qualified. * * * The said justice of the peace shall have the usual powers of justices of the peace of towns, in relation to crimes and misdemeanors, and to oaths and acknowledgments, and also in civil actions, in which all the parties shall be residents or inhabitants of said village.”

      John O. Keeler, for the relator.

      Ledyard P. Hale, for the appellant.
   Landon, J.:

If there is such an office as justice of the peace for the village of Canton, then Mr. Seaver, notwithstanding the fact that his election was attended with such irregularities as would probably be fatal to his title, if the people should, by an action in the nature of a quo warranto, require him 'to defend it, had, under some color of legal title, assumed the office and discharged its duties, and was, therefore, a justice of the peace defacto, and his official acts would, upon grounds of public policy, be regarded as valid, so far as the rights of third persons are concerned. ( Wilcox v. Smith, 5 Wend., 231; People v. White, 24 id., 520; Re Walcker, 3 Barb., 162 ; People v. Cook, 8 N. Y., 67; People ex rel. Bush v. Thornton, 25 Hun, 456; Morrison v. Sayre, 40 id., 465.)

But in order that there may be an officer de facto, there must actually exist the office into which he can intrude. The unauthorized person must occupy an actually existing seat of authority, otherwise he would, by his assumption, create an additional office and exercise its functions.

The village of Canton, it was conceded upon the argument, formed part of the town of Canton. We may presume that the town of Canton has all the justices of the peace to which it is entitled. Section 18 of article 6 of the Constitution provides that “ The electors of the several towns shall, at their annual town meeting, and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years.” Mr. Seaver, in order to have any color of claim to the office of justice of the peace for the town of Canton, must have sought to enter into it when the entrance was open. But no such claim is made in his behalf. He claims an election by the electors of the village of Canton.

The charter of the village (Laws 1859, chap. 70, § 2, amended by Laws 1870, chap. 263, § 2) authorizes the election of one justice of the peace for said village. The section of the Constitution cited also provides “ that justices of the peace and district court justices shall be elected in the different cities of this State in such manner, and with such powers, and for such terms, respectively, as may be provided by law.”

It has been repeatedly held that justices of the peace cannot be elected otherwise than as prescribed by the Constitution. (Geraty v. Reid, 78 N. Y., 64; People ex rel. Smith v. Schiellein, 95 id., 124; Wenzler v. The People, 58 id., 516.) The constitutional provision for the election of justices of the peace in towns and cities, is the denial of the power to elect them in villages. The statute authorizing the election of a justice of the peace for the village of Canton is, therefore, unconstitutional, and Mr. Seavor could not be a de facto justice of the peace for the village since there is no such office.

But section 19 of article 6 of the Constitution, provides, that “inferior local courts of civil and criminal jurisdiction may be established by the legislature.” This provision took effect in 1870. It had been previously decided that the legislature had the power to establish the office of police justice in villages, provided such officer was given a strictly local jurisdiction, and not the general territorial jurisdiction which justices of the peace possess. (Sill v. Village of Corning, 15 N. Y., 297; Brandon v. Avery, 22 id., 469.) But it had also been decided that if such police justice in villages is vested with the same powers and territorial jurisdiction as a justice of the peace, then he is a justice of the peace under another name, and the statute creating the office is unconstitutional. (Waters v. Langdon, 40 Barb., 408.) The distinction thus indicated affords the test of constitutionality. (Village of Deposit v. Vail, 5 Hun, 310; Bocock v. Cochran, 32 id., 521; Conor v. Hilton, 66 How., 146 ; Geraty v. Reid, supra,.)

The charter of the village defines the power of the justice of the peace as follows: “ The said justice of the peace shall have the usual powers of justices of the peace of towns, in relation to crimes and misdemeanors, and to oaths and acknowledgments, and also in civil actions, in which all the parties shall be residents or inhabitants of said village.” (Sec. 2.)

If the designation of the officer had been police justice, instead of justice of the peace, the act might have been sustained, within the authorities cited, upon the implied construction that his civil and criminal jurisdiction was limited to the village, and thus lo,eal and within the express power conferred by the Constitution. But a justice of the peace is an officer of the Constitution. Whether it is competent for the legislature to pass a local law depriving him, elsewhere than in cities, of any of the powers and jurisdiction conferred by general laws, we need not inquire. (Const., art. 3, § 18.) Certain it is that if by so doing he may be elected in villages, then the Constitution is thwarted by an easy evasion — an evasion pointedly condemned in Wenzler v. People (58 N. Y., 516). This officer is designated a justice of the peace, whether with greater or less statutory powers, and we cannot suppose that any other than a constitutional justice of the peace can exist. The relator was properly discharged.

Order affirmed, with fifty dollars costs and printing disbursements. (Code Civil Pro., § 3240.) The appeal was taken in the name of the people, under section 2059 Code Civil Procedure, and the costs should be paid by the county of St. Lawrence.

Learned, P. J., and Bookes, <7., concurred.

Order affirmed, with fifty dollars costs and disbursements.


source: Caselaw Access Project

author: Learned, P. J".:

license: Public Domain

text:
    HENRY C. ADAMS, Appellant, v. ALGERNON S. SULLIVAN, Public Administrator, etc., of HENRY ADAMS, Deceased, and OLIVER M. ARKENBURGH, Guardian, etc., and Others, Respondents.

      Extra allowance — when it cannot be granted — effect of a, notice attached to a summons that judgment will be taken fm' an amount named.

    Upon the trial of this action, brought to obtain an accounting of the affairs of an alleged partnership, the court found that no partnership existed and directed that a judgment be entered in favor of the defendants, to whom it awarded costs and an extra allowance of $3,000.

      Reid,, that although ordinarily such an allowance is made in an order, and a party aggrieved thereby must review the order by an appeal therefrom, yet as the justice had included the allowance, divided among the several defendants, in his conclusions of law upon which the judgment was entered, the propriety of granting the same might be considered on the appeal from the judgment.
    That as the amount of the extra allowance is to be computed upon the sum recovered or claimed, or the value of the subject-matter, and as it was decided that the plaintiff was not entitled to recover anything, and as neither the summons nor complaint stated any amount which was sought to be recovered, no extra allowance could be granted.
    That the fact that a notice attached to the summons stated that in case of a default the plaintiff would take judgment for $65,000 was of no effect whatever, and did not show any amount claimed, as the case was one in which judgment could only be taken on application to the court.
    Appeal from a judgment dismissing tbe complaint, entered in Montgomery county, upon the trial of thjs action by the court without a jury.

      U. O. Adams, for the appellant in person.

      Robert F. Little, for the respondents Sullivan and Arkenburgh.

      L. O. Whiton, guardian ad litem, for the infant respondent.

      Fred. M. Littlefield, for the respondent Maria F. Babcock.
   Learned, P. J".:

This action is brought for an accounting of an alleged partnership. The complaint, besides alleging the partnership, alleges that Henry Adams, deceased, the alleged partner, under an agreement so to do, invested partnership funds in certain specified investments of real and personal estate; to the proper share of which, and of the income therefrom, plaintiff alleges that he is entitled. The complaint further alleges a certain trust of real and personal property made by Henry Adams, deceased, and certain litigations in respect thereto.

It is not made clear how these allegations are pertinent to the subject-matter of the controversy.

The issue joined in this complaint, and the answer, came on to be heard at Special Term, a jury being waived.

A motion for a reference had previously been made and denied, apparently on the ground that the existence of a partnership had been put in issue, and that that matter should be determined before an accounting should be had, if had at all.

The learned justice who heard the case held that no partnership had been shown to have existed ; and that no agreement to invest funds as alleged in the complaint had ever been made by Henry C. Adams, deceased.

We have examined the evidence, and we think these findings are well sustained.

There can be no question that the proof entirely failed to establish a partnership or the alleged agreement to invest.

This conclusion of the learned court entitled the defendants to judgment in their favor.

And in his discretion, to costs, he awarded costs to the several defendants. This was proper.

He also awarded an extra allowance of $2,000.

Ordinarily, such an allowance is made in an order, and then if a party desires to appeal, he appeals from the order.

Here the learned justice has included the allowance (divided among the several defendants) in his conclusions of law, on which the judgment has been entered.

It may, therefore, not be improper to consider the allowance in this appeal from the judgment. No other mode seems open to the plaintiff.

The plaintiff claims that no costs could be awarded on these preliminary issues. ¥e do not think that this is correct. If the court had found that a partnership had existed, then he would have ordered a reference for an accounting, and in that case no final judgment could have been entered until the accounting had been completed. But now the court finds that there was no partnership. That is an end of the action. Nothing remains except to appeal from the judgment. It was therefore proper for the court to award, in his discretion, costs and an extra allowance.

The extra allowance is to be computed upon the sum recovered or claimed or the value of the subject-matter involved. (Sec. 3253.)

Plaintiff’s summons had a notice attached that in default he would take judgment for $65,000. (Section 419.) This action is not one specified in section 420. Judgment could only be taken by application to the court. (Section 1214.) It does not appear that in such a case the notice is' of any use — and the notice, therefore, does not show an amount claimed, nor does the complaint, which asks for a discovery and accounting. There was no sum recovered.

Then the question is, what is the value of the subject matter involved. No affidavits are made which establish this amount. One which was used states that the action was brought to recover $65,000. But that is only taken from the notice above mentioned.

There are allegations in the complaint that the annual profits of the partnership amounted to $5,000. But this is shown to be untrue by the finding that there was no partnership. So are all the allegations as to investments and their value. No such investments exist, as the court has found.

In Weaver v. Ely (83 N. Y., 89), legatees brought an action for an accounting and for payment of the amount due from personal property, or, if insufficient, from real estate. It was claimed that the amount involved was upwards of $60,000, and extra allowance had been given. But it proved that the testator’s estate was insolvent, so that plaintiffs could get nothing. And the court held that the subject-matter involved was nothing. That case was very similar to the present; and the court say that the claim was for an accounting, and that plaintiff should be paid what should be found due on the accounting. The plaintiffs in that case were entitled lawfully to their legacies and to an accounting. Here the plaintiff is entitled not even to an accounting. The amount involved, said the court, could only be the plaintiff’s interest, when ascertained, not the nominal amount of their legacies. So, here, the amount involved is not the alleged property which Henry Adams may have had, but plaintiffs interest therein, and he had none. See Struthers v. Pearce (51 N. Y., 365) at the close of the opinion; Budd v. Smales (N. Y. Daily Reg., March 19,1881, cited 8 Civil Pro., 230), which is very similar to the present case. Of course there are cases where the plaintiff claims some specific thing or right and is unsuccessful. Then the value of that thing or right is the subject-matter, although there be no recovery. But here the plaintiff asked an accounting and payment of what might appear to be owing to him. No proof is given of the value of any matters as to which he asked an accounting, even if such proof would have been material under the case last cited.

"We are, therefore, of opinion that the allowance of $600 to Maria F. Babcock, of $1,150 to Oliver M. Arkenburgh, and of $250 to Louis O. Whiton, should be stricken out of the judgment, and that otherwise the judgment should be affirmed, without costs of appeal.

Bookes and Landon, JJ., concurred.

Extra allowance stricken out, and as thus modified judgment affirmed, without costs to either party except the public administratoi.


author: Bockes, J.: Landon, J.: Learned, P. J.

text:
    GEORGE HINKLEY, Appellant, v. THE TROY AND ALBIA HORSE RAILROAD COMPANY, Respondent.

      Appeal to the County Court from a justice’s judgment — the right to a new trial is determined, by the amount demanded, in the amended, and not by that ashed for in the onginal pleadings — Code of Civil Procedure, § 8068 — what coxmter-claim cannot be pleaded in an action of tort — when an amount exceeding fifty dollars claimed thereby will not justify a new t/rial on appeal.

    Upon the appearance of the parties to this action before a justice upon the return of the summons, the plaintiff complained for a wrongful injury done to his horse by the defendant’s horse, and demanded judgment for $200. The defendant having answered by a general denial the case was adjourned to a future day, on which the plaintiff amended his complaint and claimed to recover as damages forty-nine dollars and costs. The defendant interposed an amended answer containing a counter-claim alleging that at the time and place mentioned in the complaint defendant, through the carelessness, recklessness and negligence of plaintiff in driving his, a vicious and unruly, horse ran into and collided with a horse belonging to tlie* defendant, and that the defendant sustained damage in the sum of sixty dollars, for which sum he demanded judgment. The plaintiff having recovered a judgment for forty-nine dollars, with costs, the defendant appealed to the County Court, and in the notice of appeal demanded a new trial.

      Held, that the County Court erred in denying a motion made by the plaintiff to have the case put on the law calendar for hearing as an appeal on the law.
    That as the cause of action stated in the complaint admitted of no counter-claim in tort, unless it were alleged to grow out of or was connected with the transaction set forth in the complaint as the foundation of the plaintiff’s claim, which was not alleged in the answer, that the right to a new trial was to be determined by the amount demanded in the complaint, and not by the amount of the alleged counter-claim set up in the answer.
    That the question was to be decided by the amount demanded in the amended complaint, and not by that demanded by the first complaint.
    That even if the counter-claim were admissible it should be held to be either sham, because no evidence was offered to support it, or to be an answer upon which the defendant had voluntarily suffered default. (Landon, J.)
    Appeal from an order of the County Court; of Rensselaer county-denying a motion made by the plaintiff to have this case put on the law calendar as an appeal upon .questions of law.

      B. C. Strait, for the appellant.

      Benj. E. De Oroot, for the respondent.
   Bockes, J.:

This is an appeal from an order of the County Court, denying a motion made by the plaintiff to have the case, pending in that court on appeal from a Justices’ Court, put on the law calendar for hearing as an appeal on the law. The plaintiff is justified in his practice by the decision in Barney v. Van Dyke (66 How., 396.)

The papers before the court on this appeal show the following facts, with some others unimportant to be noted: That on the return of the summons the parties appeared before the justice, when the plaintiff complained for a wrongful injury to his horse by the defendant’s horse, and demanded judgment for $200. The defendant answered by general denial, thereupon an adjournment was had to a future day. On the adjourned day the plaintiff amended his complaint by some amplification of it, and claimed to recover, as damages, forty-nine dollars and costs. The defendant then interposed an amended answer, admitting its incorporation and, as before, putting in a general denial as to all other matters charged in the complaint, and adding a counter-claim, as follows: Defendant further alleges and states, for a cause of action and claim herein, that at the time and place mentioned in the complaint herein, defendant, through the carelessness, recklessness and negligence of plaintiff, in driving his, a vicious and unruly, horse run into and collided with a horse belonging to the defendant, and that defendant thereby sustained damage in the sum of sixty dollars, for which sum it demands judgment.

The parties went to trial, on their pleadings, and the plaintiff recovered forty-nine dollars, with costs of suit. The defendant appealed to the County Court, and, in the notice of appeal, demanded a new trial in the appellate couit. Thereupon, the return of the justice having been made, containing the proceedings and evidence before him, the plaintiff made a motion in the County Court to have the case put on the law calendar of that court, for hearing upon the law, on the ground that the case was not one entitling the defendant to a new trial in the appellate court, as demanded in the notice of appeal, which motion was denied.

In this ruling we are of the opinion that the County Court was in error. The right of an appellant to a new trial in the appellate court, on an appeal from justice’s judgment, is made to depend on section 3068 of the Code of Civil Procedure, which provides that where an issue is joined before a justice, “and the sum for which judgment was demanded by either party in his pleading exceeds fifty dollars,” the appellant may have a new trial in the appellate court, by so demanding in his notice of appeal. Now, in this case the plaintiff demanded judgment, in and. by his complaint on which the trial was had, for but forty-nine dollars, as damages, and the defendant’s counter-claim, on which it demanded judgment, in its favor, for sixty dollars, was .inadmissible as a counter-claim in the action. The alleged right of action stated in the plaintiff’s complaint was in tort, as was also the defendant’s alleged counter-claim. The complaint admitted of no counter-claim, especially not a counter-claim in tort; certainly not unless the alleged counterclaim arose out of, or was connected with, the transaction set forth in the complaint as the foundation of the plaintiff’s claim. (Code Civil Pro., §§ 2945, 501, 502.) But the defendant’s counter-claim was not so pleaded. The fact was not so, as stated, non constat, but that the alleged counter-claim grew out of another and distinct transaction from that counted on_ in the complaint. Indeed, it is so pleaded, and might be sustained by proof of an entirely different occurrence. To make it admissible in any possible view of the subject, as a counter-claim in this action, the fact should have been averred that it grew out of, or was connected with, the transaction set forth in the complaint as the foundation of the plaintiff’s claim. The counter-claim then being inadmissible as a pleading in the case, could not be made the basis of a demand for a new trial in the appellate court. (Harvey v. Van Dyke, 66 How., 396, and cases there cited.)

The point is taken, however, that the plaintiff, in and by his original complaint, demanded judgment for $200, and that thereby the defendant’s right to demand and have a new trial in the appellate court became fixed and was secured to it, notwithstanding the amendment of the pleading thereafter made. This is put on the ground that the “ issue of fact ” referred to in section 3068, above cited, means and is limited to that made on the original joining of issue before the justice, to the exclusion of what may be stated and demanded in amendment of the pleadings thereafter made. This is manifestly a mistaken view of the subject. The issue joined before the justice there spoken of is the issue made before the justice for trial, and on which the trial proceeds. An amended pleading supersedes the original», takes its place, is a substitute for the original, which is no longer treated as a pleading in the action. (2 Wait’s Pr., 505, and cases there cited.) It would be strange, indeed, if a superseded pleading — a pleading’expunged from the record — could be allowed to influence and control a future proceeding in the action. Section 3068 defines and limits the cases in which a new trial may be had in the appellate court, and the limitation is there made to cases where an issue was joined before the justice, on pleadings wherein judgment was demanded by either party exceeding fifty dollars, in contra-distinction to cases where no issue had been there joined.

Now here, after the amendment was allowed and made, and on excluding the defendant’s inadmissible counter-claim, there was no demand by either party for a recovery exceeding fifty dollars as damages. The appellant was not, therefore, entitled to a new trial in the appellate court. It follows that the plaintiff’s motion to have the case put on the law calendar should have been granted.

The charge of fraud and bad faith made by the parties, each against the other, in framing their respective pleadings, has no significance on the motion. What was done by them in that respect they had the legal right to do, and fraud and bad faith cannot be well asserted for doing that which the law permits to bedone.

The order appealed from must be reversed and the motion below granted, with ten dollars costs of appeal and disbursements for printing, but without costs of motion.

Landon, J.:

I concur. If by a liberal construction it could be held that the alleged counter-claim was admissible, because stating a cause of action arising out of the transaction set forth in the complaint, it then should be held to be either sham, because no evidence was offered to support it, or to be an answer upon which the defendant, as appears from the like reason, voluntarily suffered default, and he should not be accorded a new ” trial upon it unless he has had a trial in the first instance, in the form appointed for the purpose. But I entirely concur upon the grounds assigned by my brother Bockes.

Learned, P. J.

(dissenting):

I am still of the opinion which I expressed in Harvey v. Van Dyke (66 How. 396), that this appeal does not lie. An appeal to this court from an order of the County Court can only be taken in a matter affecting a substantial right.

The order appealed from denies a motion to transfer the case from the trial calendar to the law calendar. I think the County Court has control of its calendars, whether they be called law calendars or trial calendars.

When the case shall come on to be heard before the County Court, if the court shall hear new evidence, and conduct a new trial, when it ought to decide on the justice’s return only; or, if it shall refuse to hear new evidence and to have a new trial, and insist on hearing the case on the justice’s return, when it ought to do the contrary, then there will be error which we can review.

But putting a cause on one calender or another is only an intimation of what the County Court thinks the rights of the parties will be when the case shall come on to be heard.

I think we should not undertake to regulate the calendars of other courts, and, indeed, that we have no jurisdiction of such matters,

Therefore, I think the appeal should be dismissed.

Order reversed, with ten dollars costs and printing disbursements, and motion below granted, without costs.

LeakNed, P. J., voting for dismissal.


author: LEARNED, P. J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GEORGE CLEMENTS, Appellant.

      Overdrawing of Ms account, by a bank officer — what must be shown to justify his conviction under section 600 of the Penal Oode.

    To authorize the conviction of an officer of a hank indicted for knowingly overdrawing his account and thereby obtaining $690 in money in violation of the provisions of section 600 of the Penal Code, which declares that “an officer, agent, teller or clerk of any bank, * * * who knowingly overdraws his account with such hank, and thereby wrongfully obtains the money, notes or funds of such bank, is guilty of a misdemeanor,” the fact that he did by means of the check, by which his account is alleged to have been overdrawn, wrongfully obtain the money, must be proved by the prosecution.
    Proof of the possession by the bank of his check at a time when his account is overdrawn, although sufficient to presumptively show a credit in favor of the hank, on an accounting between the bank and the defendant, will not justify his conviction in a criminal action.
    The transaction must be shown by which the defendant delivered the check to the bank and obtained the money therefor.
    The .mere fact that an officer of the bank has knowingly overdrawn his account, will not justify his conviction, unless it be shown that the money thereby obtained was “wrongfully obtained,” as the word “wrongful ” in the statute implies more than the mere want of funds in the bank.
    Appeal from a judgment of the Court of Oyer and Terminer of Washington county, convicting the defendant of a misdemeanor.

      Hughes db HoHhwp^ for the appellant.

      Edgar Hull, district attorney, for the People.
   LEARNED, P. J. :

The defendant was indicted under section 600 of the Penal Code, which declares that an officer of any bank who knowingly overdraws his account with such bank, and thereby wrongfully obtains the money, notes or funds of such bank, is guilty of a misdemeanor. The defendant was cashier of the State Bank of Fort Edward from April, 1871, to the time when the bank closed its business, September 9, 1884. An action was commenced about that time by the People against the bank, and a receiver was appointed. His appointment seems to have been made September twentieth, and he took possession September twenty-second.

About the first of October, Mr. Ostrander, a bookkeeper, was employed by the receiver in the business of settling the affairs of the bank. By direction of the receiver he wrote up the accounts in the books of the bank as of the date of September ninth. The account of the defendant, as thus written up, shows no entries from August seventh to September eighth. Under date of September eighth there is a credit of $1,125. Under date of September ninth a debit of $153.50, another of $690, and another of eighty-five dollars and thirty-seven cents; under date of September eighth a debit of forty-eight dollars and eighteen cents; under date of September ninth a credit of $500, also of salary to date, $287.49, and a debit of $550.

The book, as thus written up, showed a balance against defendant of $2,583.96, which has been paid. There is evidence from which it might be found that the defendant agreed to that balance against him. A judgment was recovered against him therefor by the receiver, December 20, 1884. There were vouchers, used in looking.over the account, which at some subsequent time were delivered to defendant, and it was thought by a witness that among them was a check for $690; but he had no personal knowledge on the subject.

On the trial, at the request of the prosecution, the defendant’s counsel produced a check, dated July 25, 1884, on the said bank, payable to self or bearer, for $690, signed by defendant. And it might perhaps be inferred by the jury that this check was the voucher for the item of $690 debited to defendant, under date of September ninth, although there was no evidence on this point except tKe identity of the amounts.

An examination of tbe books of the bank by an accountant shows that on the books, as of the date of September eighth, after crediting defendant’s salary that day, $1,125, the defendant’s account was overdrawn $1,894.40; also that on the books, as of date of July 25, the defendant’s account was overdrawn more than $2,800, and that it had been overdrawn for a long time prior thereto and during the interval between those dates.

Now, the first count of the indictment, to which the court limited the people, is for defendant’s knowingly overdrawing his account on the 9th day of September, 1884, and thereby obtainmy $690 in money. The court held that the j>recise time named in the indictment was not material, if it was not so distant from the true time as to mislead the defendant, and that within the range between July twenty-five, the date of the check, and September nine, the date laid in the indictment, it was not material what time was laid. The facts above stated constitute in substance the proof given at the trial, which is material for us to consider.

We may assume then (but only for the purpose of examining an important question), that from and before July 25, 1884, to September ninth of the same year, defendant’s account was overdrawn; that during that time there was no charge against his account of the check of $690; that he knew the condition of his account; that on the ninth of September this check of $690, dated July twenty-five, was charged to him on his account by direction of the receiver; that judgment was recovered against him for the balance; that such balance was paid, and this check, among other vouchers, was returned to him.

Now, taking this statement (which is the strongest view of the case for the prosecution), and assuming that this evidence would justify a finding that the defendant, by the check of $690, overdrew his account, there is no evidence that he thereby wrongfully obtained money, notes or funds of the bank.

The crime consists principally in such wrongful obtaining of money, as charged in the indictment. And the prosecution must show that the defendant did, by means of that check, wrongfully obtain money. If by that check he obtained money, that is, if, by presenting that check, he was paid money, or himself took money from the bank, that is a fact capable of proof.

The teller, for there was such an officer, could show the payment. Or if the defendant himself toot the money, then the reduced amount of the cash on the day when it was taken could be shown. It is true that the mere possession of the check by the bank (assuming it to have been in the bank’s possession) would presumptively show a credit in favor of the bank, on an accounting between the bank and the defendant. But when we come to proving k criminal charge against the defendant, something more is needed. The transaction must be shown by which the defendant delivered the check to the bank and obtained «therefor money. Suppose, for instance, that on the twenty-fifth of July the defendant had been indebted to the bank for any cause, and being so indebted, had given this check as a voucher, then the check would not show that he had obtained money thereby from the bank.

A check is a direction to the bank to pay so much money and to charge the drawer therewith. As between the bank and.the drawer the possession of the check is prima facie evidence that the bank has paid the money to some one. But when the people charge the criminal offense of obtaining money from' the bank, they must show that the accused obtained the money ; not, of course, with his own' hands, but to his own benefit. And they must show, that such obtaining was by means of a check which overdrew his account. To illustrate: If one who has no money or credit at a bank draws a check thereon, and obtains money therefor from some third person, he may be guilty of a crime. (Penal Code, § 569.) But the mere possession of the check by such third person would be no evidence of the crime. Proof would have to be given of the-obtaining of the money from such third person by such check.

The people insist that the fact (assuming now that it was proved), that the bank once had possession of the check is presumptive evidence on this trial that the defendant, by means thereof, obtained money from the bank, and that it was for the defendant to disprove-this. But we think otherwise. Between the bank and the defendant this was prima facie evidence of an indebtedness. But in this criminal action this did not show that by means of the check the defendant obtained money from the bank.

There is still another word in the statute which we have not considered, and that is “wrongfully.” The offense is the “wrongfullv obtaining ” money. There is a meaning in this word, otherwise it would not have been inserted. If we should exclude that word and read the statute, that every officer who knowingly overdraws his account, and thereby obtains the money of the bank, is guilty, we should be giving a construction which we do not think was ever intended.

• Banks are established to lend money, and it is not illegal to lend money to officers (under certain limitations). Money loaned on an individual note is no better secured than money advanced on a check. Each is a loan, evidenced by the written obligation of the borrower. To say then .that if a bank officer, of undoubted wealth and responsibilty, should, knowingly, overdraw his account, and •obtain thereby a few dollars, he would be guilty of a crime under this statute, seems to us incorrect.

It is n'ot the mere obtaining, but the wrongful obtaining, which is aimed at. And “ wrongful ” implies more than the mere want of funds in the bank, because such want of funds is previously expressed in the statute by the word “ overdraws.” What shall in each case make the obtaining of money wrongful we need .not say. The points we have thus discussed were presented on behalf of the defendant upon the trial in several ways by exceptions and by requests. We have thought it better to speak of the principles which should govern the case, rather than to comment on tire exceptions.

The views we have stated clearly indicate where we think there was error to the defendant’s prejudice. There are other points which we have not discussed, but which we do not say were not well taken.

Judgment and conviction reversed, new trial granted.

Bockes and LaNdoN, JJ., concurred.

Judgment and conviction reversed, new trial granted.


author: LEARNED, P. J. : LaNdoN, J.

text:
    CHARLES M. PRESTON, as Receiver, etc., of JAMES D. McINTYRE, Appellant, v. THOMAS L. SOUTHWICK, GEORGE WELLS and JAMES D. McINTYRE, Respondents.

      Filing of a chattel mortgage — 1883, chwp. 279 — a subsequent agreement affecting it need not be filed — its validity is not affected by the fact that pojrt of the agreement rests in parol.

    This action was brought by the plaintiff, who had been appointed January 16,1884, a receiver of the property of the defendant McIntyre, in proceedings supplementary to execution, to recover the value of property of the said McIntyre, alleged to have been wrongfully and in fraud of the rights of his creditors taken by the defendants Southwiek and Wells, under two bills of sale given to them respectively by McIntyre on December 29,1888, and filed in the county clerk’s office on December thirty-first (the thirtieth being Sunday).. The referee found that the said bills were given by the said McIntyre ata time when he was insolvent, for money theretofore loaned to him by the defendant Southwiek, and for notes indorsedf or his accommodation by Wells; that, after the execution and delivery of the said bills of sale, the defendants Southwiek and McIntyre signed a written agreement by which M clntyre agreed to pay over to Southwiek all moneys realized upon articles sold and described in said bills of sale, to be by him applied in payment of the sums mentioned therein, and to act as the agent of Southwiek and Wells in making such sales. The agreement then authorized McIntyre, “on the part of said Southwiek and Wells,” to sell the said articles as their agent, and not otherwise, and on condition that he pay over the proceeds as above. This agreement was not-filed.

      Held, that the fact that the second agreement was not filed did not render the bills of sale void as against the creditors of McIntyre as being a failure to comply with the provisions of section 1 of chapter 279 of 1833, providing that every mortgage or conveyance intended to operate as a mortgage which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession, shall be absolutely void as against the creditors of the mortgagor,'“unless the mortgage, or a true copy thereof, shall be filed.” (Landon, J., dissenting.)
    Appeal from a judgment for $256.94 costs, entered in Ulster county on the report of a referee dismissing the plaintiff’s complaint.
    The action was brought by the plaintiff as a receiver, appointed in proceedings supplementary to execution, to recover the value of certain property of the defendant James D. McIntyre, an insolvent, alleged to have been taken by the defendants Thomas L. Southwiek and George Wells, wrongfully and in fraud of the rights of creditors, under two bills of sale, and a written agreement set forth in the com plaint. The plaintiff was appointed receiver on the 15th day of January, 1884.
    . The referee found that for a considerable time prior to December 29, 1883, James D. McIntyre was engaged in business in the city of Kingston, N. T.; that the defendant Wells had for some three years prior to December 29,1883, been an accommodation indorser for McIntyre, and on December 29,1883, was an accommodation indorser of notes made by McIntyre to the amount of about $925, which notes had been discounted by the State of New York National Bank and were then held by said bank, said McIntyre having received the proceeds of said notes,ivthich notes on said December twenty-ninth were not due. That said McIntyre had promised the defendant Southwick, in procuring loans from him, in substance, that if any business misfortunes should befall him, he would protect him and see that he was paid, and repeated the same statement to him when giving him a note for $885, and on such assurance payment of the amount for which said note was given was not pressed; that said McIntyre had from time to time continued to procure Wells to indorse his notes on the promise to him that he would certainly pay the notes and not allow him to lose by his indorsement; that on the 29th of December, 1883, McIntyre was insolvent and unable to pay his debts, and had been for a considerable time before Burdon & Stowe had commenced an action against James D. McIntyre for the collection of a debt due to them in the Supreme Court, prior to December 29, 1883, and on the 3d day of January, .1884, obtained judgment for $244.97, on which an execution was duly issued, returned unsatisfied, and thereafter, in proceedings supplementary to execution, the plaintiff was appointed receiver of said James D. McIntyre’s estate by an order made January 15, 1884, and was,'by an order of this court, authorized to bring this action ; that the plaintiff has duly qualified as such receiver; that said McIntyre, on the 29th day of December, 1883, made, executed and delivered to the defendant, George Wells, a bill of sale of a part of said McIntyre’s stock of trade in his said store, for the consideration of $925, named in said bill of sale; that the real consideration of said bill of sale was that said Wells was to pay notes upon which he was accommodation indorser, and which he did subsequently pay; that on said 29th day of December, 1883, said McIntyre made, executed and delivered to the defendant, Thomas L. Southwick, a bill of sale of a part of his stock of goods in said store, on payment and satisfaction of $885 then owing hy said McIntyre to said Southwick, the whole amount of which was then due, with interest thereon from August 3, 1883 ; that said McIntyre represented to said Southwick & Wells that the said bills of sale covered his entire stock of goods and accounts due him, and they were accepted in that belief; that the artimes enumerated in said bill of sale in fact did not cover his entire stock of goods, and some of them were left out of the enumeration by said McIntyre by reason of his not taking an inventory. Most of the valuable stock in his store being stoves piled up in the cellar, the names of them wore not correctly enumerated, and some were known as wrell by one name as another, but that said McIntyre did actually deliver over to said Southwick aud Wells his entire stock of goods under said bills of sale; that said bills of sale were filed in the Ulster county clerk’s office, in the city of Kingston, on the 31st day of December, 1883, said McIntyre, Southwick and Wells all residing in said city ; that immediately after the execution and delivery of said bills of sale, the defendant Southwick, for himself and said Wells, and by his authority, took possession of the stock of goods in the store, and thereafter continued in the possession thereof until sold, and on the said 29th day of December, 1883, entered into the following agreement:
    “ It is hereby agreed by me, J ames D. McIntyre, that I will pay over to Thomas L. Southwick all moneys realized upon articles sold described in the bills of sale made by me to said Southwick and to George Wells, both dated Dec. 29, to he by said South-wick applied in payment of the sums mentioned in said bills of sale due said Southwick & Wells, and I agree to act as their agent in making said sales, and not otherwise. The entire proceeds of such sales to be applied to the reduction of said indebtedness. On the part of said Southwick & Wells, we authorize said McIntyre to sell the articles described in the two bills of sale as our agent only, and not otherwise, and on condition that he pay over the proceeds ás above, and apply them to the indebtedness to us.
    Dated Deo. 29, 1884.
    JAMES D. MoINTYRE.
    THOMAS L. SOUTHWICK.”

      G. H. Adams, for the appellant.

      J. Newton Fiero, for the respondents, Southwick & Wells.
   LEARNED, P. J. :

The bills of sale from McIntyre to Southwick and to Wells were executed and delivered December 29, 1883. They were filed December 31, 1883, in the proper office. The intervening day, December thirtieth, was Sunday.

If there was an oral agreement that these bills of sale should be, in fact, mortgages, sueh oral agreement could not be filed. All that could be done under the statute (chapter 279, Laws of 1833, sec. 1) was to file the bills of sale. And that was done promptly. The statute speaks ’of a “ conveyance intended to operate as a mortgage” and requires its filing. And of course nothing more can be done, where the agreement rests in parol, by which a bill of sale, absolute on its face, is in fact a mortgage. The character of the bills of sale? tiiat is, whether they were absolute or intended as mortgages, must rest upon the agreement existing at the time when they were delivered. It was subsequent to such delivery and (according to the testimony of Southwick) subsequent to the filing of the bills of sale in the county clerk’s office that Southwick executed to McIntyre the authority to sell the goods. This was not signed by Wells.

Now, if the oral agreement, on which the bills of sale were delivered, made them in fact mortgages, then this authority, signed by Southwick, was no part of the chattel mortgages, and it was not necessary to file it. If the bills of sale were chattel mortgages when they were executed, then they were properly filed, for the written authority signed by Southwick was not in existence when the bills of sale were delivered.

But that written authority was not material to the contract between Southwick and Wells on the one side and McIntyre on the other, in respect to the transfer of his property to them. It might be useful as evidence tending to show what the actual oral contract was; but it was not a part of the contract. It was only an authority from one of the two separate mortgagees (perhaps acting for both) to McIntyre to dispose of their property, and to pay the avails to South-wick, the mortgagee; such avails to be applied to the debts for which the bills of sale had previously been given as security. It did not make chattel mortgages out of the bills of sale; but it only acknowledged the duty of the mortgagees which already rested upon them by the oral agreement. It refers to the sums mentioned in the bills of sale due said Southwick and Wells. And the bills of sale had expressed these amounts as the consideration. Suppose this paper had been executed to some third party (as it might have been), who was to sell these goods for Southwick and Wells? Would there have been any necessity for filing it ?

The case of Ely v. Carnley (19 N. Y., 496), holds only that, where a copy of a chattel mortgage is filed, after the lapse of the first year (under sec. 3 of the Act), and the statement of the amount claimed was too much by $100, such filing was not good. But that does not hold that where a bill of sale, absolute on its face, is, by oral agreement, a chattel mortgage; such bill of sale cannot be filed. Yet such bill of sale does not show the amount of the lien.

I find no case which requires the filing of such an instrument as the power executed by Southwick to McIntyre; and I do not think that the bills of sale (assuming for the present that they were chattel mortgages) were void because this paper was not filed. That where a bill of sale is, by oral agreement, intended as a mortgage, it is a full compliance with the statute to file the bill of sale, seems to me evident. The statute says: “ A conveyance intended to operate as a mortgage.” Now, if the instrument is on its face a mortgage, then this language is inappropriate. The language must be intended for the case where the instrument is absolute on its face, but “intended to operate as a mortgage ” by oral agreement. It seems to me that the mortgages (assuming them to be such) were properly filed under the statute.

I think the judgment should be affirmed, with costs.

Bocees, J., concurred.

LaNdoN, J.

(dissenting):

The testimony of all the parties to the bills of sale establishes, beyond any reasonable question, that one was given to secure to Southwick the payment of McIntyre’s debt to him, and the other to secure Wells against loss upon his liability as indorser for McIntyre. This testimony is cited in the brief of the counsel for the appellant. The inspection of the case verifies the citations and fails to disclose any evidence in contradiction.

The bills of sale were delivered upon the oral understanding that they were such security, and that McIntyre, the debtor, was to continue in possession and dispose of the goods from his store in like manner as before the sale, except, however, as agent for South-wick and Wells. All that Southwick and Wells wanted was protection from loss, and the inference is justified that if the proceeds coming to them from the sale of the goods exceeded that amount the surplus was to be accounted for to McIntyre. Southwick, acting for himself and for Wells, went, directly after the interview with McIntyre, in which McIntyre delivered the bills of sale, to the office of counsel. He returned to McIntyre, within an hour after the bills of sale had been delivered, and before they were filed, and presented McIntyre with a paper which he and McIntyre both signed, and which Southwick never filed,- but kept for the benefit of himself and Wells. That paper was as follows:

“ It is hereby agreed by me, James D. McIntyre, that I will pay over to Thomas L. Southwick all moneys realized upon articles sold, described in the bills of sale made by me to said Southwick and to George Wells, both dated Dec. 29, to be by said South-wick applied in payment of the sums mentioned in said bills of sale due said Southwick & Wells, and I agree to act as their agent in making said sales, and not otherwise. The entire proceeds of such sales to be applied to the reduction of said indebtedness. On the part of said Southwick & Wells we authorize said McIntyre to sell the articles described in the two bills of sale as our agent only, and not otherwise, and on condition that he pay over the proceeds as above and apply them to the indebtedness to us.
“Dated Deo. 29. 1884.
“JAMES D. MoINTYRE
“ THOMAS L. SOUTHWICK.”

The inference, justly deducible from this transaction and the paper, is that the oral agreement, contemporaneous with the bill of sale, was, in part at least, reduced to writing, and, hence, to that extent supercedes the oral arrangement and forms part of the same transaction as the bills of sale. The two should be construed together. (Haydock v. Coope, 53 N. Y., 69.) This paper con-elusively shows that the entire transaction was in the nature of a security. The proceeds of all sales are thereby agreed to be “ applied in payment of the sums mentioned in said bills of sale due said South wick and "Wells.”

Nothing could be due them if the goods had been sold to them in satisfaction or in payment of their claims. Nothing more could be applied in payment upon claims already paid. The entire proceeds to be applied to the reduction of said indebtednss.” This could not be done unless the indebtedness continued, nor could any more be applied in reduction of the indebtedness than sufficient to cancel it; and because no more of the proceeds of the sales is appropriated to the benefit of South wick and Wells than sufficient to cancel the indebtedness, the surplus did not belong to them, and McIntyre continued the owner thereof, or of an equity of redemption therein, and South wick & Wells’ control over the property would cease with the satisfaction of their claims. (Charter v. Stevens, 3 Den., 33; Cameron v. Irwin, 5 Hill, 272.) Both papers together, therefore, constituted a mortgage. (Bragelman v. Dune, 69 N. Y., 74; Coe v. Cassidy, 72 id., 137; Leitch v. Hollister, 4 id., 216; Knapp v. McCowan, 96 id., 86; Smith v. Beattie, 31 id., 542.)

This is a contest between creditors. South wick and Wells claim as vendees under their bills of sale. If, however, they are mortgagees, and not absolute vendees, they have no title to the goods against the creditors represented by the plaintiff, unless they have taken the statutory steps necessary to validate a mortgage lien against the claims of judgment creditors. The statute (chap. 279, Laws 1833, § 1) declares that “every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor * * * unless the mortgage, or a true copy thereof, shall be filed,” etc. South wick and Wells, at best, only took constructive possession, and left McIntyre in actual possession under the agreement that he should only act as their agent. Such constructive possession is of no force. Actual open and public possession of the mortgagee, to the exclusion of the appearance of control on the part of the mortgagor, is required. (Hale v. Sweet, 40 N. Y., 101; Steele v. Benham, 84 id., 634; Crandall v. Brown, 18 Hun, 461.) Immediate possession is the imperative requirement of the statute; hence possession taken two months later, and when the receiver’s title had vested, is of no force. (Dutcher v. Swartwood, 15 Hun, 31.)

Both papers constituted the mortgage and only one was filed, hence the statute was not, in this respect, complied with. The statute says “the mortgage” shall be filed, and that means the papers making it, however many of .them. (Ely v. Carnley, 19 N. Y., 496.) If the defendants rest upon the bill of sale and the oral contemporaneous agreement, it is difficult to see how the statute could be complied with, for in that case one part of the mortgage is written and the other not. The bills of sale omitted a material part of the goods in McIntyre’s store, but they were ultimately disposed of by the defendants in the same manner as if they had been included. The referee erroneously, as we think, allowed McIntyre to testify that he intended to include everything, but by inadvertence failed to do so. If we are right in our view that the relation created between McIntyre and Southwick and Wells was that of mortgagor and mortgagees, theu this intention of McIntyre to put in the things he left out in no way cures the omission. Clearly, as to the goods omitted from the instrument, Southwick and Wells have no shadow of title against the judgment creditors of Southwick, however much they might have against McIntyre. They have not complied with the statute and, therefore, are not within its protection. Why they omitted any step is an idle inquiry. The referee decided this case upon the theory that the bills of sale gave to Southwick and Wells a title to the property, good against judgment creditors. The appellant urges upon us that if the instruments were bills of sale only, they are fraudulent and void against creditors, because given and received to enable McIntyre to appropriate a portion of the property to his own support and to hinder and defeat other creditors.

We have not thought it necessary to examine the case in that aspect. We think the transaction created the relation of mortgagee and mortgagor, and that the mortgage was void against creditors, not because of fraud but because the statute was not complied with.

Judgment affirmed, with costs.


author: Bocees, J.: Landon, J.: Learned, P. J.

text:
    LUCAS E. SCHOONMAKER and HIRAM SCHOONMAKER, Jr., Respondents, v. HIRAM B. KELLY, Appellant.

      Action of replevin to recover goods fraudulently obtained — right of the vendors to deduct, from the amount received for the property sold by him, the value of that portion of the property which could not be replevied and the depreciation in the value of the portion replevied — an assignee for the benefit of creditors cannot object to the failure of the plaintiffs to make a tender to the assignor.

    This action was brought against the assignee of one Dimmick to recover a quantity of goods and chattels sold by the plaintiffs to Dimmick, upon the ground that the property was obtained by fraud. The contract-price was §273.39, on which there was paid, at the time of the sale, $100, credit being given for the balance. The sale was made on October twenty-ninth, and the general assignment was made on November twenty-fifth following. The $100 paid by Dimmick on the purchase was not returned or tendered to Dimmick, nor to the defendant, prior to the commencement of the action, but on the trial there was tendered by the plaintiffs to the defendant twenty-six dollars and sixty-one cents, being the balance of the $100, after deducting the value of the goods disposed of before the replevy was made and the depreciation in value of the goods replevied.

      Reid, that the tender was sufficient. (Learned, P. J., dissenting.)
    That the objection that no restoration, or tender of restoration, had been made to Dimmick, could not be raised by the defendant, who, as the assignee of the property for the benefit of Dimmick’s creditors, was not a bona fide purchaser for value, and must be deemed to have taken the property with notice and knowledge of Dimmick’s fraud in obtaining it.
    Appeal from a judgment in favor of the plaintiffs, entered at the Ulster Circuit upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover certain goods and chattels sold by the plaintiffs to one Dimmick, and by the latter transferred by a general assignment to the defendant. A portion only of the goods were replevied, and such portion had depreciated in value to the extent of thirty-five dollars and fifty-two cents. On the trial the plaintiff tendered to the defendant twenty-six dollars and sixty-one cents, the purchase-price paid less the value of the goods not replevied and the loss in value of those which had been replevied.

      John A. Scott, for the appellant.

      J. Newton Fiero, for the respondents.
   Bocees, J.:

The action was replevin for a quantity of goods and chattels, sold by the plaintiffs to one "W. "W. Dimmick, and by him transferred to the defendant, who claimed and held the same as assignee of Dim-mick, under a preferential assignment by the latter to him made for the benefit of his, Dimmick’s creditors.

The plaintiffs claimed that the property was obtained from them by Dimmick by fraud; and therefore they had the right to rescind the contract of sale, and have return of the goods.

The sale was made October 29, 1884, and was of property at the contract price of $273.39, on which there was paid at the time $100, and credit was given for the balance; whereupon the goods were delivered to Dimmick. On the twentj'-fifth of November, twenty-seven days thereafter, Dimmick made an assignment of his property for the benefit of his creditors, to the defendant, who took possession, which possession included the goods remaining undisposed of, so as aforesaid sold to Dimmick and replevied in this action. The $ LOO paid down by Dimmick on the purchase, was not returned or tendered to the latte]-, nor to the defendant, prior to the commencement of the action; but on the trial there was tendered by the plaintiffs to the defendant, twenty-six dollars and sixty-one cents, being the balance of the $ 100, after deducting the value of the goods disposed of before the replevy was made, including the depreciation on the goods replevied. The tender was not accepted. The verdict of the jury was for the plaintiff; and judgment having been entered the defendant appealed.

There was evidence tending to establish the fact charged, that the property was obtained by Dimmick from the plaintiff by fraud— hence, that fact must be deemed settled in the plaintiffs’ favor by the verdict; and it follows that the title to the goods remained in the plaintiffs at their election, notwithstanding the formal sale by the latter to Dimmick. The plaintiffs had the right to repudiate and rescind the sale because of the fraud practised upon them ; but they were bound to do so promptly on discovering the fraud, and also to restore, or offer to restore, whatever they had received of value on the sale. Such is the general rule applicable to this class of cases.

Here there is no question but that the plaintiffs elected to rescind the fraudulent sale with all needful promptness, but it is insisted, and the point was saved on the trial to the defendant by an exception to the ruling of the court, that there ivas no return or offer to return the $100 paid to the plaintiffs on the sale before the commencement of the action. The answer to this objection is, that on the trial they offered a return of all they had received and held of value to them gi’owing out of the sale, being, too, all that Dimmick or any other person had lost by reason of their act of rescission. This certainly, in equity and justice, should be held sufficient. The wrongdoer conld in right claim nothing more, certainly, than to be made good; that is, to be restored to the same position, in point of value, which he held when he committed the fraud, and this should, too, be measured by his own conduct in the meantime, whereby his victim had suffered from his fraud. In other words, he could of right only claim restoration in a way, and to an extent to make him good, in view of his own conduct in the use and disposition of the property fraudulently obtained, from which use and disposition he had derived benefit. It seems that the case was put in this condition on the trial by the tender of the twenty-six dollars and sixty-one cents, and this, according to the doctrine of the case of Pearse v. Pettis (47 Barb., 278), was all that the law required by way of return in a case like the present. (See, also, Ladd v. Moore, 3 Sandf., 589.)

But a tender of restoration to the defendant in this case was not necessary to the plaintiff’s right of recovery against him, and the objection that no restoration or tender of restoration had been made to Dimmick was not open to him as matter of defense. This was so determined in Pearse v. Pettis, above cited. The defendant was the assignee of the property for the benefit of Dimmiek’s creditors, hence was not a bona fide purchaser. In law he must be deemed to have taken the property with notice and knowledge of Dimmick’s fraud in obtaining it. Thus, as laid down in the case cited, he cannot set up the defense that the plaintiffs from whom the property was fraudulently obtained had omitted to perform their duty and obligation to Dimmick, the original purchaser, by returning, or offering to return, the part of the purchase-money paid ; that he is in no condition to raise the question which could only arise in an action between the plaintiffs and Dimmick, the party to the original contract. This subject received a very careful and elaborate examination in Pearse v. Pettis, which case stands, in so far as we have knowledge, unquestioned. See, also, Kinney v. Kiernan (49 N. Y., on page 172), where this case is cited with approval, as is also Stevens v. Austin (1 Metc., 558). In this latter case the fraudulent purchaser had transferred the property to the defendant, with notice to the latter of the fraud, and the question considered was, whether the plaintiff was bound to tender back the note and money he had received before he could bring his action. The court said : “ Wc think he was not. Not to the defendant; for the plaintiff had received nothing from him. Nor could the defendant raise tho question. * * * It was res inter alios, with which the defendant had no concern.”

Thus, according to the cases cited, the objection that there had been no restoration of the $100 received by the plaintiff on the sale, was not available to the defendant as matter of defense.

The demand and refusal averred in the complaint is not denied in the answer; besides, this was well proved on the trial.

Some exceptions to rulings on questions of evidence were entered, but after an examination of them we think the record free from error in that regard.

In a case like the present, where fraud is charged, a very liberal rule of examination is admissible in the discretion of the court, and we find no exclusion of evidence against the defendant of which he can justly complain,

The judgment and order appealed from should be affirmed, with costs.

Landon, J.:

The plaintiffs reclaimed from the general assignee of the fraudulent purchaser goods which they had sold him at the price of $235.52, but which the fraudulent purchaser had damaged to the extent of thirty-five dollars and fifty-two cents. It was stipulated that they were worth $200 when reclaimed. Plaintiffs tendered on the trial to the defendant, the general assignee, twenty-six dollars and sixty-one cents. If the defendant is to lose the amount of the depreciation the tender was enough; if the plaintiffs should lose it the tender was too small by the thirty-five dollars and fifty-two cents. Why should not the defendant, whose assignor fraudulently obtained the goods, sustain this depreciation in value ? Suppose the goods had been fraudulently purchased for $200, defendant paying $100 upon their purchase-price, had sold none, had damaged them $100. Defendant is bankrupt, and plaintiff’s only practicable remedy is replevin. If they must tender $100 in order to rescind they can only reclaim goods now worth $100, and thus lose all.

The law adapts its remedies to accomplish justice. Code of Civil Procedure (§ 1722) allows the plaintiff to recover, in actions of replevin, damages for the injury or depreciation of value of a chattel while in possession of defendant, but requires that the complaint shall set forth the facts. Thus the principle that the fraudulent purchaser ought to sustain such damages is recognized. Here, however, the plaintiffs did not seek an affirmative .recovery for the depreciation, but sought to have the amount allowed in diminution of the sum to be tendered. The plaintiffs, as we judge from the complaint, did not know that the goods had been damaged. They found that out after they had taken possession of them. The defendant, as general assignee for the benefit of creditors, occupies no better position than his assignor.

The court adapted the recovery to the proofs, no one was misled and justice was done.

Learned, P. J.

(dissenting)

One Dimmick bought boots and shoes of plaintiffs to- the value of $273.39 and paid $100. Soon after he made a general assignment to defendant. Thereupon plaintiffs replevied what they could find of the goods (viz., $235.52 in value at the selling price) on the ground of fraud in the pretended purchase. The actual value of the goods replevied was stipulated at $200. Plaintiffs never returned the $100 to Dimmick or any one. On the trial they offered to pay defendant twenty six dollars and sixty-one cents — that is, the then value of the goods replevied, $200, and the money originally paid, $100, less the selling price of the whole goods, $273.39. Defendant refused to take the money. Plaintiff had a verdict for the goods.

The questions presented are, whether they could retake the goods without .returning the money; whether they could return on the trial; whether they tendered enough. In the first place, it is said that the assignee of the fraudulent vendee cannot insist that the vendor should return what he had received, because the assignee was not the party to receive what was to be returned. (Pearse v. Pettis, 47 Barb., 276.) But that was not the case of a general assignee. Here the defendant is the general assignee of Dimmick — of all his property except what is exempt. Hence, if money was to be returned by the plaintiffs, the defendant was the person entitled to receive it. The $100 belonged to him if the plaintiffs were not entitled to it. This was, in fact, acknowledged by plaintiffs when they made a tender at the trial to the defendant.

The plaintiffs had three remedies: First. They could sue for the contract-price. Second. They could sue for the damages on the ground of the fraud. Third. They could rescind the contract and replevy. If they took the last (as they did), then the rights of all the parties “ were the same as though there never had been any contract of sale, but the goods had been tortiously obtained.” (Kinney v. Kiernan, 49 N. Y., 164, at page 168; Morris v. Rexford, 18 N. Y., 552, at page 557.) For this reason it has been repeatedly said that the party who would rescind, must return all that has been received. (Baird v. Mayor, 96 N. Y., 567, at page 599, and cases there cited; see, also, Bowen v. Mandeville, 95 N. Y., 237, at page 240.) There it is said : “ He may rescind the contract, and after restoring to the other party whatever may have been received thereon, sue for and recover back the entire consideration paid by him ; .or, he may retain what he has received and sue for and recover such damages as he can establish have been sustained by the fraud. But these remedies being inconsistent, cannot both be prosecuted and maintained.” (See, also, Floyd v. Brewster, 4 Paige, 537.)

Again it is said in Guckenheimer v. Angevine (87 N. Y., 394, p. 396): The rule that a party undertaking to rescind a contract for fraud must restore to the other party what he has received under it is firmly established by authority. The person defrauded cannot at the same time avoid the contract and retain anything received by virtue of it, of value either to himself or to the party who committed thefraud.”

It is thought that the case of Ladd v. Moore (3 Sandf., 589) asserted a different docti’ine. That was an action for damages for trover. Plaintiff had been induced by defendant’s fraud to sell him $480 of goods, taking $200 in cash and a note. On the trial, plaintiff surrendered the note, and recovered as damages the difference between $200 and $480, with interest. This was not an action of replevin, but to recover damages. The principal point discussed is whether a tender should have been made before trial. The money paid was allowed in reduction of the damages.

In Pearse v. Pettis (47 Barb., 276), an action to recover property, it was stated that where there had been a purchase by fraud, and the purchaser had paid $300 on the purchase-price, and the purchaser had made as much as that sum by the use of the property, the vendor was under no obligation to restore anything. But the question was not really involved, because it was held that the defendant, not being the original vendee, was not entitled to receive back anything. It seems to me that that case is hardly consistent with the later cases in the Court of Appeals, above cited, so far as it holds that there is no need to restore to the vendee.

Now to apply the principles held by the Court of Appeals, the most favorable view to plaintiffs is to consider the goods purchased as separable. Then Dimmick bought and paid for $100 worth of goods, and defrauded plaintiffs out of goods worth $173.39. They have replevied, therefore, goods which sold for $62.13, to which they were not entitled, and they offered to pay defendant for these, $26.61. If the goods sold for $235.52 have depreciated to $200, that is plaintiffs’ loss, since they assert that the goods have always been theirs. Kelly has caused no damage to the goods, and is not liable for damage. None is alleged. (Code,, 1722.)

In another view, plaintiffs have retaken $235.52 out of the $273.39 in value which they sold. All, therefore, which they could lawfully retain out of the $100 received is the difference between $235.52 and $273.39, or $37.87. They should at least have paid the defendant $62.13. As the case now stands, the plaintiffs have all the goods they ever had, except some which they sold for $37.87, and they also have $100 which Dimmick paid them. So they have $62.13 for nothing.

The fact is that this offer of plaintiffs on the trial, and the verdict thereon, is really an affirmance of the contract of sale. This sum is computed upon the basis that plaintiffs sold goods to the value of $273.39, for which Dimrnick still owes them, and that they have received therefor in goods $200, and in cash $100, leaving balance due Dimmick’s assignee $26.61. So that in this action the plaintiffs rescind the sale in order to replevy, and affirm it in order to retain their money. Thus the principle is overlooked that “ the rights of the parties were the same as if there never had been any contract of sale.” (Kinney v. Kiernan, ut supra)

The rights of the parties have been adjusted as if there had been a valid contract, and not as if “the goods had been tortiously obtained.” If the goods were tortiously obtained then there is no consideration for plaintiffs to retain the $100, if the sale is treated as a whole. If it is treated as separable, so that they can affirm it as to goods which they cannot find $37 87 in value, then they should restore $62.13.

Judgment affirmed, with costs.


author: Learned, P. J.:

text:
    AUGUSTA LINDEMAN, as Administratrix, etc., of WILLIAM LINDEMAN, Deceased, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Negligence — when the question of the plaintiff’s contributory negligence should be left to the jury — right of one finding the gates at a railroad crossing open, to assume that it is safe to cross.

    Upon the trial of this action, brought by the plaintiff to recover damages for the negligent killing of her husband by the defendant, it appeared that on the night of June eighth, at about nine o’clock, when it was “pretty dark,” the deceased, a charcoal peddler, in returning home with a team of horses and his empty wagon, reached a place where the highway crossed the defendant’s three tracks on grade. On the west side of the tracks, from which side the deceased approached, were gates consisting of two white poles (worked by a crank on the north side of the highway west of the tracks), which were usually lowered whea trains were coming, making it impossible to cross the tracks. As the deceased crossed the track he was struck by an engine backing slowly southward, without any light and without ringing any bell or blowing a whistle, and was killed. The gates were up.
    Evidence was given tending to show that the deceased, just before reaching the track, was standing in his wagon leaning on the forward part and looking up and down to see if there was any train approaching, and other evidence was given tending to show that the defendant’s flagman, who was on the easterly side of the tracks south of the highway, hallooed to the deceased, “stay back.”

      Held, that it was error to nonsuit the plaintiff; that, taking all the circumstances into account, especially the open gates, the slowness of the engine’s backward motion, the absence of light upon it, the noise which the wagon would naturally make, the question of the negligence of the deceased should have been left to the jury.
    Appeal from a judgment, entered upon an order dismissing the plaintiff’s complaint made at the trial at the Albany Circuit.

      John S. Wolfe and Eugene Burlingame, for the appellant.

      Sale & BuUcley, for the respondent.
   Learned, P. J.:

This is an action, brought by the administratrix of "William Lindeman, deceased, to recover for his death, alleged to have been occasioned by the negligence of the defendant. The plaintiff was nonsuited at the trial on the close of her own evidence, and appeals.

Lindeman was a charcoal peddler and had been in Albany the day of the accident with a load of charcoal. He was returning with a team of horses and his empty charcoal wagon, and about nine o’clock he reached a place where the highway crossed the defendant’s three tracks on grade. It was the eighth of «Tune and the night was “ pretty dark.” As the deceased drove across the track he was struck by an engine of the defendant’s, which was backing down southward, without any light upon it and without ringing a bell or blowing a whistle. Across the highway, on the west side of the tracks (from which side the deceased approached), were gates consisting of two white poles which were usually lowered across the highway when trains were coming, and which, when lowered, made it impossible to cross the tracks. After trains have gone by the gates were raised. They were worked by a crank on the north side of the highway and west of the tracks. At the time of the accident the gates were open. These gates are about six feet from the track nearest them. The first point where a man approaching the tracks could get an unobstructed view of them was about seventy-three feet distant therefrom. One witness testified that the deceased, just before reaching the track, was standing in his wagon leaning on the forward part and looking up and down to see if there was any danger coming. The defendant’s flagman, a short time before the accident, had been in the shanty on the south side of the highway and the east side of the track. Soon after that Brown, who was working for a dispatch company, came out of the shanty and stood on the easterly side of the tracks looking south. While standing there he heard the flagman halloo, and turned and saw the engine coming on the west track. It was then a short distance from the crank, which is on the northerly side of the highway where the arm of the gate is let down. The engine must have been at that time near to the highway. Brown then saw the team coming and hallooed “ stay back.” The distance from Brown to the place of the gate was about fifty feet. The flagman was on the easterly track. The engine struck the forward part of the wagon and did not hurt the horses. They must have crossed the track, coming on a little trot.'

There was evidence of negligence on the part of defendant. Absence of light, and no sound of bell or whistle, with open gates, were facts for a jury to consider. As to deceased, the question of negligence is this: Did he do what a prudent man would not, or omit what a prudent man would, have done ? (Kellogg v. N. Y. C. and H. R. R. R., 79 N. Y., 72; Stackus v. N. Y. C. and H. R. R. R., Id., 468.) As to the hallooing of the flagman and of Brown, it must be a question for the jury whether that was heard over the noise which a charcoal wagon would make in the ears of one riding therein. The defendant insists that he could have seen the engine if he had looked, and was, therefore, negligent as a matter of law. But he had passed this place before and, therefore, knew of the gates. He saw they were not across the road, and as they were white he undoubtedly saw them standing upright on each side. As said in Glushing v. Sharp (96 N. Y., 676), this was an assurance of safety, just as significant as if a gateman had beckoned to him or invited him to come on.

Now, suppose one approached a crossing and a gateman beckoned to him to come on, and suppose he saw an engine slowly backing towards the crossing, a prudent man might infer that the gateman knew that the engine was to stop before it reached the crossing and that there was no danger. It may often be the case that engines are moving near a crossing and towards it which they are not to cross. The gateman knowing this signals the traveler to cross. May he not then cross with prudence although he sees the engine ? This engine was not drawing a train. It was a single engine, without ears, backing about five miles an hour. That it was not about to go across the track was notified to the public by the fact that the gates were open. (Directors of N. E. Ry. Co. v. Wanless, L. R., 7 Eng. and Irish App., 12; affirming Wanless v. N. E. Ry. Co., 6 Q. B., 481.) The opening of the gates is an affirmative act, giving every traveler to know that the crossing is safe; and though he should see an engine backing at about the rate of a rapid walk, he might think it would stop before it reached the place where the company had, by their signal, said the engine was not to go. How far the witness, Creed, was to be credited was a question for the jury.

Taking all the circumstances into account, especially the open gates, the slowness of the engine’s backward motion, the absence of light on it, the noise which the wagon would naturally make, we think that the question of the negligence of the deceased should have gone to the jury. They are the proper judges whether he acted as a prudent man would have done.

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

Bookes and Landon, JJ., concurred.

So ordered.


author: Landon, J.: Learned, P. J.

text:
    JANE M. REID, Respondent, v. HENRY S. TERWILLIGER, Appellant.

      Civil damage act —1.873, chap. 646 — when exemplary damages may he recovered against the lessor.

    Where, in an action \mder the civil damage act, brought against the lessor of the premises and the lessee who sold the liquor, jointly, a case is made which authorizes the recovery of exemplary damages, as against the lessee and seller of tlie liquor, such damages may also be recovered from the lessor, although they could not have been so recovered if the action had been brought against him alone. (Learned, P. J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered at the Ulster Circuit upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought, under the civil damage act, to recover damages for the death of the plaintiff’s husband, which was alleged to have been caused by liquor sold to him by McLaughlin, a tenant of the defendant Terwilliger.

      M. H. Ilirsoliborg, for the appellant.

      Gideon Hill, for the respondent.
   Landon, J.:

The civil damage act (Laws 1873, chap. 646) creates a cause of action unknown to the common law and a new ground of action. ( Volans v. Owen, 74 N. Y., 526; Mead v. Stratton, 87 id., 493 )

This cause of action is given for injuries defined by the act and resulting from intoxication. It is given not only against the person who sold the liquor, causing or contributing to cause the intoxication from which the injuries resulted, but also against the person owning or renting the building in which such liquor was sold, having knowledge that intoxicating liquors are to be sold therein. Such person may be sued severally or jointly with the person selling the liquor, and both are declared liable for “all damages sustained and for exemplary damages.”

The seller and his landlord were jointly sued in this action. A case permitting the finding of exemplary damages was made against the tenant. The landlord was shown, to the satisfaction of the jury, to have had knowledge that intoxicating liquors were to be sold in his building. The common law would not make him liable for exemplary damages, but the statute does. The test of liability that the statute imposes upon the landlord is not that he himself should have personally done any wrong, with respect to this particular sale of liquor, but that he should have sustained the relation to his wrong-doing tenant which the statute defines.

“ It is evident,” say the court, in Mead v. Stratton (supra), “ that th.e legislature intended to go in such a case- far beyond anything known to the common law, and to provide a remedy for injuries occasioned by one who is instrumental in producing, or who caused such intoxication.” And to make the remedy efficient and ample, it gave it jointly against both landlord and tenant, -and embraced actual and exemplary damages. Moreover, the act is entitled “An act to suppress intemperance, pauperism and crime.” To expose to these damages the landlord as well as the tenant, was manifestly the legislative instrument for the suppression of these evils.

Rawlins v. Vidvard (34 Hun, 205) was an action against the landlord alone. The court held that exemplary damages could not be awarded against him without proof of aggravating circumstances with which he was connected. The court did not hold, and had no occasion to hold, that if both landlord and tenant had been jointly sued, and a case warranting exemplary damages had been made out against the tenant, the landlord would not have been jointly liable with him."

The judgment should be affirmed, with costs.

Bookes, J., concurred.

Learned, P. J.

(dissenting):

This is an action under the so-called “ civil damage act,” brought jointly against Terwilliger, the lessor of the premises, and McLaughlin, the lessee and keeper of the hotel, who sold the liquor.

Terwilliger was in no way connected with the sale of the liquor. There was evidence sufficient to justify the jury in finding that McLaughlin sold the liquor under such circumstances that exemplary damages might be recovered against him. The only question here is whether exemplary damages could be recovered against Terwilliger, who had no connection with the sale of the liquor, and whose liability was only that imposed by the statute on the owner and lessor of the premises. Exemplary damages under this act can be recovered only when there are circumstances of abuse or aggravation proved. (Franklin v. Schermerhorn, 15 Sup. Ct. [8 Hun], 112.) Exemplary damages are allowed against a wrong-doer, and for examples sake, as, for instance, against a vendor without license. (Neu v. McKechnie, 95 N. Y., 632 at 636.)

If Terwilliger had been sued alone no exemplary damages could have been recovered against him on the facts of the case. He had only leased the premises as a hotel, and this was a lawful and proper transaction. And even if he knew that liquors were sold, there, such sale was lawful, for the hotel keeper had a license. There had been nothing done by Terwilliger for which he should be punished to make an example, unless leasing property as a hotel should be punished. There were no aggravating circumstances with which he was connected. (Rawlins v. Vidvard, 41 Sup. Ct. [34 Hun], 205.)

If, then, the plaintiff had brought several actions against Terwilliger and McLaughlin she might have recovered against the latter actual and exemplary damages. She could have recovered against the former only actual damages. There is nothing to the contrary in Bertholf v. O'Reilly (74 N. Y., 525). The liability under this act is wholly statutory. None such existed at common law. But there is some analogy between the relation of owner and tenant under this statute, and that of master and servant at common law.

The servant may be liable for exemplary damages for his own wrong doing. The master is not then liable for exemplary damages ; but he may be so liable for some gross negligence or misconduct on his own part. (Fisher v. Met. El. R. R. Co., 41 Sup. Ct. [34 Hun], 433.)

In other words, exemplary damages are given to punish a man for his own wrong, and not to punish him when he is liable only as superior.

So in the case of owner and tenant under the civil damage act, the owner is, under certain circumstances, made by statute liable for damages. And he may be liable for exemplary damages. But, as said in. Davis v. Standish (33 Sup. Ct. [26 Hun], at 615), we must look to the common law to determine when punitive damages may be had. And the common law shows that punitive damages are inflicted (as the word indicates) by way of punishment; and, therefore, for a man’s own wrong doing; not for the wrong doing of another, for which he may, however, be liable to respond in actual damages.

The aggrieved party, in cases like the present, may sue the owner and the vendor jointly or severally. The amount of damages which could be recovered against each, when sued separately, might be different. There might be aggravating circumstances against one or against the other. There is no joint act. The privilege of a joint action is only statutory.

If Terwilliger, when sued separately, could not be made liable for exemplary damages, except on the ground of some wrong doing upon his own part, then he should not be liable for such damages when sued jointly.

But the plaintiff urges that she has the privilege of bringing a joint action, and that there cannot be separate verdicts. She was not compelled to sue jointly. It is more reasonable that if she sues jointly she should be limited to a recovery only of actual damages against an innocent person, rather than that an innocent person should be punished by punitive damages for another’s malicious act.

The doctrine of exemplary damages is illogical, though settled. It should not be extended to any more illogical conclusions.

The judgment should be reversed.

Judgment affirmed, with costs.