author: Earl, Ch. J.

text:
    Margaret M. Brennan, Adm’rx, Resp’t, v. Susan E. Hall et al., App’lts.

      (Court of Appeals,

      Filed February 9, 1892.)

    1. Witness—Privileged communication—Attorney and client—Code Crv. Pro., § 833.
    On the trial of an action of interpleader the issue was whether a mortgage executed to J. J., and by him assigned to H., the trustees of whose will are defendants, was assigned absolutely, or for the benefit of M., the wife of J. J. A witness who acted as counsel for J. J. in the execution and assignment of the mortgage was allowed to testify that H. told him that J. J. wanted him, H., to take an assignment of the mortgage and hold i>. for M. Held, no error. (1) The witness did not act as attorney for H.; (2) the objection of the defendants’ counsel to evidence of the conversation between J. J. and H. was too broad, as he was competent to testify as to what H. said; (3) he was certainly competent to testify to the conversation held in his presence between J. J. and H. relating to the purpose for which H. was to take and hold the mortgage.
    t2. Same—Statements made by deceased person against ms own interest.
    H. having died, sometime after his death the mortgage was found in an envelope in his bank, with these words written on it, " All the papers, bond and mortgage, assignment, etc., are the property of S. A. Jarvis,” and a paper inclosed signed by H. in which he agreed to reassign the mortgage to her. Held, that these written statements were incompetent; that when made they were against the interest of Mary H. Jarvis, and not against his interest.
    3. Interpleader.
    After the judgment herein had been affirmed at the general term, and defendants had appealed to this court, Sarah A. Jarvis applied at special term to be made a party, and to be allowed to intervene. Held, that while the court had the power at that late stage of the case to grant the relief, it it was entirely discretionary and cannot be reviewed here.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment recovered by plaintiff at special term, and from order affirming order denying motion for leave to come in and be made a party.

      Lyman M. Warren, for app’lts; Gilbert W. Minor, for resp’t.

       Affirming 39 St. Rep., 130. See S. C., post.

   Earl, Ch. J.

On the 14th day of May, 1884, Judson Jarvis, of the city of Mew York, executed to Henry Korn a deed of certain real estate in that city, and to secure a part of the purchase money Korn executed and delivered to him a mortgage for $13,500. On the next day Jarvis executed and delivered an assignment of that mortgage to Washington A. Hall for the benefit of his wife, Mary H. Jarvis, under a paroi agreement with Hall that he would assign the mortgage to Mrs. Jarvis whenever she wanted it. Hall had no interest whatever in the mortgage or the money secured thereby, and he took the assignment solely for the benefit of Mrs. Jarvis. Hall died in February, 1885, and the defendants, Susan E. Hall and William H. Clark, are the executors and trustees under his will. Judson Jarvis died in May, 1885, and his wife, Mary H. ■Jarvis, died intestate in October, 1888, and the plaintiff was appointed administratrix of her estate. Shortly after the death of Mrs. Jarvis, the defendants, claiming to hold the mortgage under the last will and testament of Hall, commenced an action in the supreme court against Korn for a foreclosure thereof. Korn having been informed of the claim of Mrs. Jarvis to the mortgage, commenced an action in the supreme court against these defendants, and the plaintiff as administratrix of the estate of Mrs. Jarvis, in which he prayed for relief, among other things, that he might pay the money due upon the mortgage into court, and that "the mortgage be cancelled, and that the parties to this action might interplead and litigate their respective claims to the moneys thus deposited. Thereupon this action was commenced, and it was •therein determined that the plaintiff was entitled to the money under the agreement made between her husband and Hall, ancL judgment was entered in her favor. The defendants have appealed and now assail the judgment for certain alleged errors in the rulings of the trial judge in the reception and exclusion of evidence. We find no error in these rulings.

To prove the.parol arrangement under which the assignment, was made by Mr. Jarvis to Hall, for the benefit of Mrs. Jarvis, the plaintiff called as a witness John H. Y. Arnold, the attorney who, acting professionally for Jarvis, drew the deed from him to Korn, the mortgage to him, and the assignment of the mortgage to Hall; and portions of his evidence were objected to on the part of the defendants as incompetent under § 835 of the Code. The objections were overruled and the evidence was received, and it is now claimed that the evidence was incompetent. To this claim there-are three satisfactory answers. (1) Arnold did not act as attorney for Hall, and he testified to various conversations with Hall in which he fully and explicitly stated and admitted the arrangement under which he received the mortgage for the benefit of Mrs. Jarvis, and if all the evidence he gave of declarations made-by Jarvis were stricken out it would not affect the case as the remaining evidence of Arnold, which was uncontradictéd and undisputed and believed by the trial judge justified and required the-determination made. (2) When plaintiff's counsel offered to-prove by Arnold the conversation between Jarvis and Hall in his presence, in reference to the assignment of the mortgage to Mrs. Jarvis, and the purpose of the assignment, the defendant’s counsel objected to evidence of the conversation. That objection was too broad. The witness was at least competent to testify to what Hall stated, and thérefore the objection to what both Jarvis and Hall said was not well founded. (3) Even if the witness under the-circumstances was incompetent to testify to any communications or declarations made to him by Jarvis, he was not -incompetent to testify to the conversations held in his presence between Jarvis- and "Hall relating to the purpose for which Hall was to take and hold the mortgage. So we find no error in the rulings of the-trial judge upon the evidence of Arnold.

Upon the trial the defendants did not claim that Hall at the-time of his death, or at any prior time, owned or had any interest in the mortgage. Nor did they claim any title to or interest in the mortgage as executors and trustees under the will of Hall. While in their answer they did allege that the mortgage was the property of Hall at the time of his death, and as such came to-them, and that they were entitled to the proceeds thereof, upon the trial they alleged that Hall took the assignment of the mortgage in trust for the benefit of Sarah A Jarvis, the mother of Judson Jarvis. Sometime after the death of Hall the mortgage-was found in an envelope in the bank where it had been deposited by Hall, and on the envelope, in his handwriting, were these-words: “ All the papers, bond and mortgage, assignment, etc., are the property of S. A. Jarvis.” The envelope also contained this paper, which was in the handwriting of Hall:

“New York, October 8, 1881.
“ The bond and mortgage assigned to me by Prince & Whitely,, for the sum of $20,400 does not belong to me, the money to pay for said mortgage being furnished by Mrs. Sarah A. Jarvis, and the same is to be reassigned to her, or who she may designate, and I hereby bind myself, my heirs or assigns, to make said assignment.
“W. A. Hall.”

Defendants offered to put in evidence the endorsement upon the envelope and the other paper for the purpose of showing that the mortgage actually belonged to Sarah A. Jarvis, and was held by Hall in trust for her. It was claimed that the evidence was competent because these were written declarations and entries made by Hall, then deceased, which were against his interest when made. There is a well recognized exception to the rule which -excludes hearsay evidence, by which declarations and entries made by persons, since deceased, against their interests when made .are allowed. Such declarations and entries are received because -of the extreme improbability that the person making them would fabricate or falsely make them against his own interests. * 1 -Green! Ev., §§ 147, et seq. To bring the declarations and entries in such a case within the exception, the fundamental requirement is that they should at the time be against the interests of the person making them.

The exception does not apply here, because these statements of Hall were, when made, against the interests of Mary H. Jarvis, and not against his interest. He never at any time claimed to hold the mortgage as his own, and never in fact owned it, and these defendants, upon the trial, did not claim he ever owned it, or that they had any interest in it. If these statements were allowed as evidence they would simply tend to show that the money in controversy belonged to Sarah A. Jarvis, and not to Mary H. Jarvis, and hence they are not within the reason of the exception, and it is confidently believed that no authority can be found holding such statements competent evidence under such circumstances.

When a person makes statements or entries impairing, qualifying or limiting his title to property in his possession, then, in a litigation after his death, when the title to the same property comes in question, such statements or entries may be given in evidence, and the fact that they were against the interest of the person making them stands in the place of an oath, and gives nearly, if not quite, the same assurance of veracity. So, if either of the parties to this action were here asserting the title of Hall to the mortgage, and claiming under, through or from him, then his statements made in derogation of his title and thus against his ■interest could be given in evidence against such party, and the rule referred to could have no other application to such a case.

We are, therefore, of opinion that the trial judge did not err in excluding these written statements made by Hall.

The defendants presented no other question for our consideration upon their appeal from the judgment, and it should be afáirmed, with costs.

There is also in this case an appeal from an order to which we will give brief attention.

After the judgment had been affirmed at the general term, and the defendants had appealed to this court, Sarah A. Jarvis made an application to a special term of the supreme court to be made a party to this action, “ and for an order that the judgment heretofore rendered herein be opened, and said Sarah'A. Jarvis have leave to intervene in said action and set forth and plead her claim as stated in the petition herein.” That motion was denied at the special term, and the order of the special term was affirmed at the general term, and then she appealed to this court.

The court below undoubtedly had power, even at the late stage’ of the case, to allow Sarah A. Jarvis to be brought in as a party; but whether the order should be made or not rested in its discretion, and its determination is not reviewable here. It cannot even-be said that the discretion was unwisely exercised. At that stage of the case it was certainly more appropriate that she should institute-an independent action to enforce her rights, if she had any, to the-fund. Not being'a party to this action, she is in noway concluded by the judgment rendered therein. She may at once commence her action, making the parties to this action defendants therein, and have her right to this fund determined. Or she may wait • until the fund is paid over under this judgment to this plaintiff, and then commence an action against her, alleging her right thereto, and have it determined in that action. So no harm whatever was done to her by the denial of her motion.

The appeal from the order should be dismissed, with costs.

All concur, except Maynard, J., taking no part.


source: Caselaw Access Project

author: Per Curiam

license: Public Domain

text:
    In the Matter of the Probate of the Will of Almira Ingersoll, Deceased.

      (Court of Appeals,

      Filed February 9, 1892.)

    Will—Bequest for charitable uses—Trust.
    The will of the testatrix stated in its eighth clause that she was desirous-of leaving some of her estate to aid in carrying on the work of the Christian, ministry, and that to that end she authorized her executor to expend, through the agency of the Baptist church and its various societies, missionary and educational, such a sum as he deemed hest, not to exceed §1,000; and in order that the executor might “ do so without hindrance,” she gave and bequeathed to him the said sum, “ and the same is to him and his assigns forever for the uses and purposes hereinbefore indicated.” Held, that this clause was void, as it created a trust which could not he carried out and did not make an unconditional gift of the money to the executor, which he could dispose of as he thought fit.
    Appeal from judgment of the supreme court, general term, fifth department, reversing part of decree of surrogate adjudging a clause of the will void.

      Fred. J. Blackmon, for app’lts; W. S. Thrasher, for resp’t.

       Reversing 37 St. Rep., 419.

   Per Curiam

We think the judgment of the general term, herein should be reversed and the decree of the surrogate affirmed..

The eighth clause of the will we have no doubt creates a trust and does not make an unconditional gift of tlie money to the executor, which he could dispose of as he thought fit. The language is not merely precatory. It is clear, distinct and certain and it gives the money to the executor “for the uses and purposes” named in the clause. Those uses and purposes cannot be carried out. What follows that language is simply a written statement of what is implied in every gift to a trustee, viz: that the donor relies upon the trustee to carry out his wishes.

It is unnecessary to say more in this case than that we agree-generally in the views expressed in the dissenting opinion of Mr. Justice Macomber at the general term upon this point, while expressing no opinion upon the question therein also discussed, whether in any aspect the gift violates the statute in regard to bequests to charitable societies as made within two months before-the death of the testator.

The judgment of the general term must be reversed and the-decree of the surrogate affirmed, with costs of both parties payable out of estate.

All concur.


text:
    The People, Resp’ts, v. The Buffalo Stone & Cement Co., App’lt.1

      (Court of Appeals,

      Filed February 9, 1892.)

    1. Manufacturing companies—Forfeiture for not paving in capital stock.
    A corporation is liable to forfeiture of its charter for noncompliance with the condition of the general manufacturing act, § 10, which directs-that the capital stock shall be paid in, one-half in one year, and one-half in two years from its incorporation.

      2. Same.
    In such a case the attorney general may exercise his discretion based upon all the facts in the case whether the public interests require that lie should commence attraction, and the court may exercise its discretion in the same way. But if they both determine that it ought to he commenced and it is proved that the stock has not been paid in within the two years, then the statute is imperative that the corporation shall he dissolved, and no discretion at that stage of the case is left to the court.
    3. Same Parties to action to dissolve.
    The fact that some or all of the persons who applied to the attorney general to commence an action for a dissolution were among those who aSion t0 Pay f°r their stock’ can have no legal effect whatever upon the*
    Appeal from judgment of the superior court of Buffalo, general term, affirming judgment dissolving the defendant corporation? and forfeiting its franchises.
    The defendant was organized as a corporation on the 18th da.y of August, 1885, under the general manufacturing act of 1848. Its ■capital stock was $90,000, divided into nine hundred shares of one hundred dollars each. Prior to its incorporation, the persons who proposed to take its stock entered into a, written agreement that each subscriber for stock should pay fifteen per cent of the amount of his stock at the time of his subscription, and that the balance should be paid on calls to be made, not exceeding ten per cent at a time within ten years. During the first two years of the defendant’s corporate, existence only seventy-seven and one-half per cent of the capital stock was paid in, and no more has been paid in since, and the annual report required by § 12 of the act for January, 1889, was not made. On the 2d of March, 1889, a petition signed by various stockholders of the defendant was presented to the attorney general asking him to commence an action ■against the defendant to have its franchises forfeited and its charter annulled. Thereafter the attorney general made an application to a special term of the supreme court for leave to commence ■an action to annul the charter, and an order was made by the court on the 23d day of April, 1889, granting such leave, and this ■action was commenced on the following day. The action was brought to trial and resulted in a judgment in favor of the plaintiffs dissolving the defendant and forfeiting its rights, privileges ■and franchises, and appointing a receiver of its property and effects. Prom that judgment the defendant appealed to the general term, and from affirmance there to this court.

      G harles Daniels, for app’lt; Henry W. Brendel, for resp’ts.
   Earl, Ch. J.

Section 1798 of the Code provides that upon leave being granted, as prescribed in the preceding section, the .attorney-general may bring an action against a corporation created by or under the laws'of the state to procure a judgment vacating its charter or annulling its existence, upon the grounds that it has: “(1) offended against any provision of an act, by or under which it was created, altered or renewed, or an act amending the same ■and applicable to the corporation ; or (2) violated any provision of law whereby it has forfeited its charter, or become liable to be ■dissolved by the abuse of its powers.” In such a case the attorney-general may, upon his own information, or upon an application made to him by any citizen, move the court for leave to bring the action. He must determine, in the first instance, whether the public interests require that the action should be brought, and thus that it is his duty to bring it, and then he must make application to the court for leave to bring it, and the court may exercise its discretion whether or not it will grant the leave. We have ■several times held that its discretion in such a case is not reviewable in this court Such an action may be brought by the attorney-general in the name of the People without a relator, and it is then strictly a People’s action. It is provided in § 1808, that “in •a case where the action can be brought only by the attorney-general in behalf of the People, if a creditor, stockholder, director or "trustee of the corporation, applies to the attorney-general for that purpose, and furnishes the security required by law, the attorney-general must bring the action, or apply for leave to bring it, if he has good reason to believe that it can be maintained. Where such an application is made, § 1986 of this act applies thereto.” Section 1986 provides as follows: “ Where an action is brought by the attorney-general, as prescribed in this title, on the. relation or information of a person having an interest in the question, the complaint must allege, and the title of the action must show, that the action is brought upon the relation of that person. In such a case the attorney-general must, as a condition' of bringing the action, require the relator to give satisfactory security to indemnify the people against the costs and expenses thereof. Where-security is so given, the attorney-general is entitled to compensar tian for his services, to be paid by the relator in like manner as-the attorney and counsel for a private person.”

That provision applies only to cases where the action is instituted in the name of the People to protect or secure the interests of individuals, like the actions specified in § 1781 of article 2, and §§ 1784 and 1785 of article 3 of the Code, and in all cases where mere private interests are sought to be promoted by the commencement of the action by the attorney general in the name of the People. But an action to annul a corporation under article 4 is purely a people’s action and proceeds upon public grounds and it cannot be said, within the meaning of §• 1986, that any person who instigates such an action, or applies to the attorney general to have it commenced, has any interest in the questions involved in the action. The simple question to be determined in such an action is whether the existence of the corporation shall be permitted to continue, and it in no way concerns the rights and interests of the persons interested in the corporation as between each other. It is simply a question between the corporation and the People, and to determine that question no individual need be present as a party to the action. Therefore it is of no legal consequence that some of the persons who applied to the attorney general to commence this action were the very trustees who omitted to make the annual report as required by § 12 of the manufacturing act, or the very stockholders who omitted to pay for their stock. Their acts in no way prejudice the rights of the People. If a cause of forfeiture against the corporation exists, there is nothing in the conduct of any of the stockholders or officers of the corporation which can defeat the right of the People to enforce the-forfeiture.

It is provided in § 12 of the manufacturing act of 1848 that every company formed under that act shall within twenty days from the 1st day of January of each year make the report as required by that section, which shall state the amount of capital,, and of the proportion actually paid in, and the amount of its existing debts, which report shall be signed by the president and a. majority of the trustees, and shall be verified by the oath of the president or secretary of the company and filed in the office of the clerk of the county where the business of the company shall be carried on. The provision is that “ every such company ” shall make the report, and the duty to make it is a corporate duty imposed upon the company. Cornell v. Roach, 101 N. Y., 373.

This duty was not performed, and it is claimed on behalf of the People that for the neglect, omission or refusal to perform it there was cause for annulling its charter under the provision of the Code .above set out. The duty is not simply one in which particular persons are alone interested, but it is a duty which the corporation owes to the public generally for the protection of all persons who may have occasion to deal with it, and to subserve a plainly expressed public policy; and for the omission to perform the duty it incurs the liability of forfeiture of its charter. Corporations are formed for definite objects, and their powers and duties are prescribed by law. The state confers upon them valuable franchises, .and to carry out its policy exacts the performance of specified duties. They must exercise their franchises and perform the •duties and obey the commands of the law as conditions of their ■existence. If they fail to travel' in the orbits designated by the laws of their existence, the state may take away the corporate life which it has created. Such was the rule of the common law, and ■such has for a long time been the statute law of this state. In the People v. Kingston & Middletown Turnpike Co., 23 Wend., 193, it was held-that non-compliance with the requirements of an act •of incorporation of a turnpike company as to the construction of the road is per se a misuser, forfeiting the. privileges and fran•chises conferred; that the duties enjoined by an act of incorporation are conditions attached to the grant of the franchises conferred, and that it is not necessary to work a forfeiture that the neglect or refusal to perform the duties enjoined should proceed from a bad or corrupt motive; that it is enough that the duties be neglected or designedly omitted. Nelson, 0. J., writing the •opinion of the court, and construing provisions of the Revised Statutes substantially like those of the Code which we are now called upon to construe, said: “The statute obviously intended that corporations should fulfill the conditions and perform the duties enjoined by the fundamental law of their creation, as the terms upon which to enjoy their privileges. The principle is not new. It has been always so held at common law as fundamental. Lord Holt said in London City v. Vanaclcre, 1 Ld. Raym, 498, all franchises which are granted are upon condition that they shall be -duly executed according to the charter that settles the constitution ; and that being a condition annexed to the grant the citizens ■cannot make an alteration; but if they neglect to perform the terms of the patent it may be repealed by scire facias.'1 The principiéis so thoroughly and firmly fixed in the law of corporate bodies that I need do no more than refer to some of the authorities. A non-performance, therefore, of the conditions of the act of incorporation is deemed per se a misuser that will forfeit the grant even at common law.”

In Attorney General v. Petersburg, etc., R. R. Co., 6 Ired. L. R., 456, it was held by the supreme court of North Carolina that the failure of a railroad company to comply with a provision of its charter requiring the president and directors of the company to make an annual statement of its income, and return the same to the general assembly, in order to enable the latter to regulate the tolls charged by the company, was a cause for declaring the charter forfeited. Chief Justice Baffin delivering the opinion of the court said: “ We entertain no doubt that the omission of an express duty prescribed by a charter to a corporation is cause of forfeiture. Its performance is in the nature of a condition, and the sovereign may insist on resuming his grant for the breach of the condition. * * * When the charter expressly imposes a duty which the company is to perform, not merely to the citizen, but towards the sovereign itself, although it may not declare that non-performance shall make a forfeiture, yet by no latitude of equitable interpretation can it be regarded as a hard bargain, and as such relieved against in a court of law; but it must be taken to have been required by the state as a material stipulation, for the non-performance of which by the corporation the state may put an end to the contract.”

But it is further provided in § 12 that if the corporation shall fail to make the report all the trustees of the company shall be jointly and severally liable for all debts of the company then existing and for all that shall be contracted before such report shall be made,” and it is contended by the learned counsel for the appellant that that is the only consequence which is to follow from a failure to make the report; and he invokes the general rule of law that when a duty is prescribed, and the consequence of a failure to perform it has been declared, it is in its nature an implied prohibition of all other punishments.” Under the rule referred to it must be held that the statute provides the only -consequence to the trustees, and the only liability or penalty that can be imposed upon them. But § Í2 imposed no liability or penalty upon the corporation for a failure to make the report. Such a failure of duty on the part of a corporation, in the performance of which the public are interested, is left to be dealt with by the general provisions of law applicable to corporations, and its liability to forfeit its charter is the only consequence to it; and thus for tile failure to make the report the corporation may suffer for an omission to perform a corporate duty, and the trustees may suffer for an omission to perform an official duty resting upon them.

But there is still another ground for upholding this judgment, which is liable to less criticism. It is provided in § 10 of the general manufacturing act that the capital stock of every corporation formed under the act, as fixed and limited in its articles of incorporation, “ shall be paid in, one-lialf thereof in one year, and the other half thereof in two years from the incorporation of such company, or the corporation shall be dissolved.” Here was an express duty imposed upon this corporation to see to it that all its stock was paid in within the time specified, and that was made an imperative duty, as it is provided that it shall be paid in, and if that condition is not performed the corporation shall be dis- ' solved. We do not see how it is possible to so construe this language as to relieve a corporation from forfeiture of its charter for .a non-compliance with the condition. Where it is claimed that this provision of the statute has been violated, the attorney-general may exercise his discretion, based upon -all the facts in the case,, whether the public interests require that he should commence an action, and when he applies to the court for leave to commence it, it may exercise its discretion in the same way. But if he and it determine that it ought to be commenced, and it has been commenced, and it is proved that the stock has not all been paid in within the two years, -then the statute is imperative that the corporation shall be dissolved; and no discretion at that stage of the case seems to be left to the court. But here, if the court had any discretion, it has exercised it by giving judgment for dissolution. As we have before stated, that some or all the persons who applied to the attorney-general to commence the action for a dissolution were among those who omitted to pay for their stock, can have no legal effect whatever upon this action. It is sufficient for its maintenance that the corporation has omitted to enforce the payment of its stock within the time prescribed by law.

Our conclusion, therefore, is that the judgment should be affirmed, with costs.

All concur (Andrews, Finch, Gray and O’Brien, JJ., on the second ground stated in the opinion).


author: Bradley, J.

text:
    Edward Kelly, App’lt, v. John C. Brower, Resp’t.

      (Court of Appeals, Second Division,

      Filed February 12, 1892.)

    Vendor and purchaser—Partial failure of title.
    Plaintiff contracted to purchase from defendant vacant lots with a frontage of seventy-five feet, but claimed that defendants title to fourteen inches of the front was not perfect, and refused to take title. Held, that upon the facts furnished by the evidence and found by the court there were no reasonable grounds for apprehending that the defendant’s title to any portion of the premises -described in the contract was defective, or that the plaintiff would be prejudiced by specifically performing it.
    Appeal from judgment entered on the order of the general term of the supreme court in the second judicial department, affirming judgment entered on decision of the special term.
    On July 21, 1888, the parties entered into a contract whereby the defendant agreed to sell, and on payment of the purchase price, $4,500, to convey to the plaintiff by warranty deed and free from incumbrance that parcel of land situate in the eighteenth ward of the city of Brooklyn, bounded as follows: “ Beginning at a point on the southerly side of Elm street, distant one hundred and sixty-five feet and nine inches westerly from the westerly line of Central avenue, and thence running southerly and at right angles to Elm street eighty-nine feet and four inches to the boundary line between Suydarn and Stockholm farm; thence westerly and along said boundary line seventy-three feet and eight inches more or less to a point where said boundary line intersects the northerly line of Myrtle avenue one foot eight and one-half inches; thence northerly and at right angles to Elm street ninety-two feet and one inch to the said southerly line of Elm street; thence easterly along said southerly side of Elm street seventy-five feet to the point or place of beginning.”

      The action was brought to recover an instalment of the purchase money paid by the plaintiff and the amount of expenses incurred by him in making examination of the title, upon the alleged ground that the defendant was unable to convey to him a good title to the described premises. The defendant by his answer took issue upon that charge, and demanded affirmative relief against the plaintiff for specific performance of the contract, and judgment to that effect directed by the trial court was affirmed by the general term.

      Joseph A. Burr, for app’lt; William T. Gilbert, for resp’t.

       Affirming 28 St. Rep., 76.

   Bradley, J.

The contract describes a parcel of land seventy-five feet in width on Elm street, and the controversy has relation to a strip of land fourteen and a half inches in width on that street of the premises so described. While the plaintiff contends that the defendant had no title to that portion of the contracted premises, the latter insists to the contrary. It therefore becomes necessary to refer to the evidences of title furnished at the trial. It appears that Coit owned a tract bounded north by Elm street* East by Central avenue and southerly and westerly by Myrtle avenue, which ran north-westerly into Elm street at the western termination of the tract. In July, 1859, he convejmd to Stebbins and Bloodgood lots 74, 75, 76 and 77 designated as such on a map and so distinguished in the deed, in which they were bounded north by that portion of Elm street commencing at a point 139 and 55-100 feet westerly from the south-westerly corner of that street and Central avenue and extending 100 feet west therefrom. Those four lots were each twenty-five feet in width on that street, and the west line of lot seventy-seven as there described was 239 55-100 westerly from such corner. The title of the defendant was dependent upon that so conveyed to Stebbins and Bloodgood through which it was derived. They, in November, 1885, conveyed to the Murphys, who in December, 1886, conveyed to the defendant. The description of the premises was given alike in both those deeds, and they contained the same description as that in the contract in question made by the defendant with the plaintiff. In it there was no designation of lots by numbers. And the northerly line as there described of the premises was that portion of Elm street commencing at a point 165 feet and nine inches westerly from Central avenue and extending westerly along Elm street seventy-five feet.

It is claimed on the part of the defendant that this line is the northern boundary of lots 75, 76 and 77. Those lots number from east to west, and each is twenty-five feet in width on Elm street. By the description in the deed to Stebbins and Bloodgood, the east line of lot 75 is represented as 164 55-100 feet west of Central avenue. It is quite evident that the defendant supposed he had title to the whole of those three lots, and that his purpose in making the contract was to sell them to the plaintiff. But it will be observed that in view of what has been thus far said, that line apparently extended fourteen and a half inches further west on Elm street from Central avenue than did the land as described in tile deed to Stebbins and Bloodgood; and if that was so in fact; it embraced that width of land to which the defendant had no title. This objection the defendant sought to obviate by proving that by a survey of the Ooit tract, made many years after the date of the last mentioned deed, it v/as found to.be fourteen and a half inches longer on Elm street than it had been represented by the previous survey and map ; and that in making the later survey that increase or surplus had been given to the lots on the east end and fronting on Central avenue. The northerly line on Elm street, of the lots so fronting on the avenue described by the earlier survey and map as 89 55-100 feet in length, was by the later one represented as ninety feet nine inches in length, thus accounting for the increased distance from that avenue along Elm street to the east line of lot 75-ancl west line of 77. -The question is whether this explanation relieves the defendant’s title from the alleged objection to it. It appears that Central avenue was not opened at-the time of the conveyance to Stebbins and Bloodgood, but that it had then been laid out and monumented. It was opened as a public street in -1871, and the trial court found that it as opened was located fourteen inches to the east of its westerly side as designated on the Ooit map. If that was so, the surplus as found by the later survey was necessarily in the lots fronting the avenue, and the plaintiff had no cause to complain of the description as given in the contract. But no direct evidence is found in the record that the location of the line of Central avenue as laid out, has, as opened, been changed. And such finding is without support, unless it may be found in inference to that effect.

If the west or rear.line of 'the lots fronting on Central avenue remained the same as it was when the deed was made to Stebbins and Bloodgood, the conclusion would follow that those lots had been extended fourteen and a half inches further east, or that tfieir length by the first survey was to that extent erroneously represented. In either event the desc'riptiort in the contract would have correctly embraced the lots 75, 76, 77. The surveyor who made the later survey also made that represented by the Coit map. He also made the map. And he testified that when he made it he “ made the Stebbins and Bloodgood property begin eighty-nine feet six and a half inches from the corner instead of ninety-feet and some inches.’’ He evidently had reference (as we are now advised) to the west line at Elm street of the lots fronting on Central avenue, as so far as' appears by the record here the east line of the land of those persons was fifty feet west of that line. There is evidence that prior to the conveyance to Stebbins and Bloodgood there was a fence on the line between lots 77 and 78, and that such fence still remains there. And the surveyor testified that this fénce was 241 feet and three inches westerly on Elm street from Central avenue.

The evidence locates the fence six inches west of the west line of lot 77 as represented by the late survey, and consequently places lots 75, 76 and 77, less six inches in width, within the boundaries of the land described in the contract. But it is said that because it does not appear that this fence was a practical locatian of the line between those two lots, and in view of the fact that the line between them as made by the first survey and represented by the Coit map was 239 feet and six and one-half inches westerly from Central avenue, and as no reference is made to the fence in any of the deeds as the line between those lots, the location of that line must be governed by metes and bounds rather than by the fence. We assume that is so, and such will be its treatment for the purposes of the question in the present case.

While the existence of the fence of itself has no importance, the evidence of its location in reference to the line between lots 77 and 78 has a bearing upon the question which may arise out of the comparison of the distances of that line from Central avenue as represented by the two surveys.

The evidence shows that the difference as represented by them is found in the lots fronting on Central avenue; that it does not ■change the location of the line of lots further west nor the distance from the west line of the lots so fronting on the avenue to the line of the lots west of it. This tends to establish the fact that the length on the north line of those lots on the avenue was erroneously represented by the first survey or that they extend east fourteen inches further than they then did. It is sufficient for the purposes ■of the description in question that the length of the line between lots 77 and 78 from Central avenue is correctly given by the last survey, with which that in the contract corresponds. This conclusion was warranted by the evidence. Both Coit and the surveyor testified that the fence was on that line. There is no dispute of facts except such as may arise out of the two surveys. And in reference to the boundaries of lots 75, 76, and 77, the trial court found that the courses and distances in the deed to the Murphys (which were the same as in the contract) were the actual courses and distances- as they existed at the time such deed was made. This finding has the support of evidence. And in view of such evidence and finding it cannot be held that the title of the defendant to the land or any portion of it, which he undertook to sell and convey to the plaintiff, was rendered doubtful by the increased length of line as represented by the last survey and in the contract from the avenue to the eastern boundary of lot 75. The discrepancy of six inches, if it turn out to be such, does not in this case seem substantial, and it is not seen how the plaintiff can be prejudiced to that extent. If the west line of the premises does not into six inches reach the west line of lot 77, and the requisite quantity requires it,he takes that much from lot 74, to which so far as appears the grantors of the Murphys had title at the time the deed was made.

Upon the facts furnished by the evidence and found by the court there is no reasonable ground for apprehension that the defendant’s title to any portion of the premises described in the contract is defective or that the plaintiff may be prejudiced for any such reason by specifically performing it.

The judgment therefore should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Follett, Ch. J.

text:
    Julius N. Kalley et al., Resp’ts, v. Frederick Baker, App’lt.

      (Court of Appeals, Second Division,

      Filed February 12, 1892.)

    Brokers—Commissions.
    Ordinarily a real estate broker is entitled to his commissions for the sale or exchange of real estate when the parties have been found satisf actory to each other and have entered into a mutual contract of purchase ana. sale.
    Appeal from a judgment of the general term of Brooklyn city-court, which affirmed a judgment in favor of plaintiffs entered on. a verdict.

      Albert A. Abbott, for app’lt; William J. Qaynor, for resp’ts.

       Affirming 29 St. Rep., 677.

   Follett, Ch. J.

This action was begun to recover commissions alleged to have been earned by the plaintiffs in procuring the execution of a contract between the defendant and one-Humphrey, for the exchange of real estate.

In 1889, and for some years prior thereto, the defendant-owned a farm in the state of Massachusetts, and Ann 0. Humphrey an apartment house on the north side of Rernsen street in the city of Brooklyn, known as the- “ Aldine,” in which there was certain personal property.

February 18, 1889, the defendant and Humphrey entered into a written contract by which they agreed to exchange properties,, both to be free from all incumbrances, except the “ Aldine ” was to be subject to two mortgages amounting to $55,000 on-the 1st of April, 1889, on which day the defendant was to convey the farm to Humphrey and she the “ Aldine ” to the defendant.

The parties to the contract met on the day and at the place-appointed, the plaintiff’s office, and a deed was tendered by Mrs. Humphrey to the defendant, who raised the following objections, to the title: (1) That $990 of interest was unpaid on the mortgages and the taxes amounting to $1,389.83 were unpaid. (2) That Mrs. Humphrey was a married woman and her husband had not joined in the deed. (3) That a former owner of the- “ Aldine ” was a married woman, and that her husband did not. join in' the deed which was executed by her April 2, 1888. (4) That the bill of sale of the furniture in the “ Aldine ” which was- , to go to the defendant, was not subscribed at the end but at about, the middle of the document.

These were the only objections specifically made on the 1st of April, 1889. On the trial the defendant raised other objections.. (A) That the deed tendered by Mrs. Humphrey recited that the land was subject to an agreement entered into by a former owner with the owner of an adjoining lot, that a party wall should be-maintained, one-half on the land of each, and for the mutual benefit of both properties. (B) That the deed to Mrs. Humphrey recited that the land was subject to a restriction imposed by a> former owner of this lot and the adjoining lots, that no buildings should be built on those lots within eight feet of the north line of the street. The defendant rejected the title offered by Mrs. Humphrey, and the contract to exchange was never performed.

The question underlying all others in this case and which is . decisive of it is, was it the understanding of the parties to this action that the plaintiffs were not to be entitled to commissions unless mutual conveyances of the properties contracted to be exchanged were made and accepted, or whether they were entitled to commissions when the contract of exchange was executed?

It appears by the record that the defendant in 1882 employed the plaintiffs to effect a sale of his farm and that for some time before the negotiations were begun which resulted in the contract to exchange the owner of the “Aldine ” had employed the plaintiffs to sell it. It is alleged in the complaint that $750 was the value and the agreed price of the services rendered by plaintiffs for the defendant. The defendant in his answer denied that he agreed to pay any definite sum, but alleged that he “ agreed that if plaintiffs should be instrumental in effecting a sale of said property upon such terms and for such consideration as might be satisfactory and agreed upon by the defendant, and not otherwise, that he, the defendant, would pay to the plaintiffs their reasonable commission for compensation for their said services.”

It was also alleged in the answer that February 18, 1889, the defendant and Humphrey entered into a contract (a copy of which is annexed to the answer) to convey April 1, 1889, his farm, valued at $30,000, to Humphrey in consideration that she would convey to the defendant the “Aldine,” together with the furniture therein, free and clear from all incumbrance, except two mortgages, amounting to $55,000. The defendant also alleged that Humphrey was unable to and never had performed her contract.

The defendant testified that Julius N". Kalley, one of the plaintiffs, who transacted all the business in respect to the exchange, spoke to him about the “Aldine” about December 20, 1888, and that afterwards he reported to Kalley that he had examined it. The result of his examination and of subsequent conversations was that Kalley, Humphrey and the defendant went sometime in the month of February,1889, to Massachusetts and examined the defendant’s farm. Kalley testified that a day or two after returning from Massachusetts the defendant and Humphrey met at the office of plaintiffs and the result of their interview was the written contract of exchange. He said:

“ Q. Did they (defendant and Humphrey) personally carry on their negotiations face to face? A. They did; yes, sir.
“Q. They entered into a contract? A. Yes, sir.
“Q. Is that the contract mentioned in the answer here? A. Yes, sir.”

This witness also testified that at an interview before the parties went to Massachusetts the following conversation was had:

“ Q. What did he, defendant, say ? A. He says, if I will make exchange for property down there, what will be your charge ? He seemed to hammer on this.
“ By the court: Ho, not what he seemed, just state what he did. absolutely .say and what you said.
“A. He said, what will be your charge in case you make an exchange? I said the price of two and a half per cent on the-value, thirty thousand dollars, which you put on the farm.”

Upon this question the defendant testified:

“ Q'. What did he (Kailey) say ? A. He said that he thought, he could exchange my property free and clear for that property free and clear of all incumbrances except two mortgages upon it. for fifty-five thousand dollars.
“ Q. What did you say ? A. I will think of the matter.
“ Q. What was the next said between you about it ? A. Hothing further at that time.
“ Q. Well, the next time. A. The next time I told him that if. I could exchange my property free and clear for the Remsenstreet flat free and clear from all incumbrances except the two-mortgages.
“ Q. By the court: For how much ? A. Two mortgages for fifty-five thousand dollars, I would do so but I would not give him any personal property with my farm and that if the exchange was made I would him a commission.
“Q. What commission ? A. Ho amount agreed upon.
“•Q. Anything stated by him on that subject? A. He said the-commission for out of town property was two and a half per cent.”
There is no evidence that the plaintiffs knew anything about the title to the “ Aldine,” that they made any representations in respect to it, nor does it appear that the defendant asked them to-make, or cause to be made, a search.

The trial court submitted the question as to what the agreement, was to the jury, instructing them as follows: “In ordinary cases,, the law is well settled, where a broker is employed in reference to-a sale or exchange of real estate, that when he brings a buyer to-the seller, who is willing and ready to enter into an agreement with the seller for the purchase of his property, on the terms that the seller has fixed, and the seller is satisfied to accept him as a purchaser, then the broker has earned his commission. The earning of it is not dependent in such cases on the question as to-whether the buyer carries out the contract, or as to whether the-seller is able to complete his contract. * * * Therefore I say to you, in the absence of any express agreement to the contrary, the law is that the broker is entitled to his commissions when the vendor accepts, when he (the broker) brings to the vendor a party ready and willing to accept the terms fixed by the vendor ,and the-party is satisfactory to the vendor, and he enters into a contract, with him. The contention is that there was a different agreement here. * * * How I propose to leave that question to you to-determine. If you find that this was an ordinary contract, made-without any conditions, the broker employed in the usual way, and that there was no bargain entered into between the plaintiffs- and Mr. Baker that they were only to be paid their commissions in case this sale went through, then plaintiffs are entitled to recover. If, however, the bargain agreed upon between Mr. Kalley and Mr. Baker was that commission was only to be paid in case this whole transaction went through as provided by the terms of the contract of exchange, the plaintiff is not entitled to recover, unless you are satisfied from the evidence here that Mr. Baker capriciously refused to carry out the contract.”

To this instruction the defendant took no exception, except to-that part of it which laid down the rule that ordinarily the broker “is entitled to commissions when the parlies have been found' satisfactory to each other and they have entered into a mutual contract of purchase and sale.”

This exception presents no error. In Knapp v. Wallace, 41 N. Y., 477, the defendant employed a broker to purchase certain real estate for a price named, agreeing to pay him one per cent, on that price for his services. Through the aid and assistance of the broker a contract of sale at the price named was entered into' personally between the defendant and the owner of the property. As a defense to an action brought to recover the commissions the defendant sought to show that the title of the vendor was defective, and for that reason he was unable to perform his contract. It was held : “It was no defense to the plaintiff’s claim that the title to the property was defective. Messmore (the broker) had not undertaken that it should be good. The contract between him and defendant did not place his right to compensation on such a condition.”

When a broker, as a part of his employment, assumes to execute for his principal an executory contract of sale or exchange he does not become entitled to his commissions unless the other contracting party is able to perform the contract on his park Barnes v. Roberts, 5 Bosw., 73; McGavock v. Woodlief, 20 How., U. S., 221. But under the facts found, these and kindred cases have no application to this case.

The judgment should be affirmed, with costs.

All concur.


author: Landon, J.

text:
    Myra L. Wadsworth, Resp’t, v. The Jewelers & Tradesmen’s Company of New York, App’lt.

      (Court of Appeals, Second Division,

      Filed February 12, 1892.)

    Benefit societies—Death claim not limited to fund on hand.
    The certificate issued by defendant provides that a certain sum shall be paid from the death fund of the company at the time of the death, or from any moneys that shall be realized to the said fund from the next assessment, and no claim shall be otherwise due or payable except from the reserve fund hereinafter provided. Held, that the beneficiary was entitled to all the moneys in the death fund, and also to all that were realized to the fund from the next assessment, the aggregate of both falling short of the sum named in the policy.
    Appeal from a judgment of the general term, superior court of the city of Hew York, affirming a judgment in favor of plaintiff against the defendant for $3,547, entered upon the decision of the court upon the trial without a jury.

      James M. Hunt, for app’lt; 3. F. Kneeland, for resp’k

       Affirming 31 St. Rep., 185.

   Landon, J.

The plaintiff seeks to recover upon a certificate of insurance issued by the defendant upon the life of Elbert E. Wadsworth, her late husband,' for her benefit The only question presented by this appeal is as to the amount payable to the plaintiff under the contract of insurance.

The defendant is a mutual benefit association incorporated in 1886 under chap. 175, Laws 1883. It issued its certificate of membership or policy of insurance to the plaintiff’s husband, which, after preliminary recitals, declared “ There shall be payable to Myra L. Wadsworth $4,000 from the death fund of the company at the time of said death, or from any moneys that shall be realized to the said fund from the next assessment as hereinafter set forth, and no claim shall be otherwise due or payable except from the reserve fund as hereinafter provided.”

It will be observed that there is no plain suggestion in this provision that the amount payable is in any way liable to be lessened; it is to be paid, all of it, “from the death fund of the company at the time of said death,” but lest that fund at that time may not be large enough, the further provision is added, obviously to supply the deficiency, “ or from any moneys that shall be realized to the said fund from the next assessment to be made as hereinafter set forth.”

The final clause of the promise, “ and no claim shall be otherwise due or payable except from the reserve fund as hereinafter provided,” gives notice that there is also a reserve fund to which recourse may be had. The insured, reading the entire provision, would probably regard it as immaterial to him whether payment should be made from one fund or another, but would remark with satisfaction that three sources for payment were provided.

The trial court awarded the plaintiff all the moneys in the death fund at the time of the death of her husband, namely $1,798.35, and also all that were “ realized to the said fund from the next assessment” namely $1,749.07, being eighty per centum of the total assessment. The aggregate of both sums fell short of $,4000. There was no reserve fund applicable to the payment, and the plaintiff has therefore recovered less than the amount apparently promised her. The defendant opposes the construction we have given to the promissory parts of the contract, and claims that the plaintiff was only entitled to the amount in the death fund at the date of the death, or to the amount “ realized to that fund from the next assessment,” and not to both amounts.

The whole contract consists not only of the certificate of membership, but-of the application for membership, and the constitution and by-laws of the defendant, quite a volume of matter, requiring careful attention, and possibly skill for a complete understanding of the precise contractual relations of the insurer and insured.

But the other provisions of these instruments seem to harmonize with the construction we have adopted.

The policy of insurance further provides: “ If * * * the death fund is insufficient to meet existing claims by death, an assessment shall then be made upon every member * * * at the date of the last death assessed for,” and eighty per cent o£ the net proceeds thereof “ shall go into the death fund.” Section 2, art. 5, of the constitution provides that the death fund “shall be used only for the payment of death claims,” and also prescribes details of assessment Section 1, art. 8, of the constitution requires payment to be made to the beneficiaries of the amount “ to-which the same are entitled according to the terms of the certificate of membership." Section 8, art. 9, provides that: “So long as sufficient money is in the death or mortuary fund to pay existing claims no assessment will'be made," thus implying that if it is not sufficient, an assessment will be made to make it so.

There is nothing in the constitution to cut down the amount pi'omised to the beneficiary unless it is § 3, of art. 5, of the constitution, as follows: “In case a death claim is proven while a. single assessment is insufficient to pay the said claim in full, there-shall be paid in full satisfaction of such claim, a sum pro rata of the membership and benefits in force at the time of the death of such member."

This provision is obscure; it probably means that a single assessment is expected to be large enough to pay any death claim in full, but as it may not be, then such additions must be made to-it as shall increase it to a “ sum pro rata of the membership and benefits in force.”

We suppose this obscure expression is intended as the equivalent of the methods of replenishing the death fund elsewhere provided for, and not as a provision for its abatement. If intended as an impairment of the obligation to pay in full, or at least to-pay such less sum as is already in the death fund at the date of the death of the insured, with the proceeds of the next assessment applicable and added thereto, such intent is not expressed with sufficient certainty to be effective.

If this policy is so framed as to promise a payment of $4,000 and then to impair the promise by the introduction'of subsequent and obscure clauses difficult to be understood or requiring expert knowledge for their comprehension, we should adopt that construction which we think the insurer had reason to suppose was-understood by the insured. Hoffman v. Ætna Fire Ins. Co.. 32 N. Y., 405.

The defendant lays stress upon the proposition that if the death fund and an assessment shall both be exhausted in paying this, claim, injustice will be -done to the surviving members, since, upon the next -death, no death fund will exist to which a like assessment can be added. It seems that the plaintiff’s husband was the first of the members of this association to die.

The death fund is created from initation fees, annual dues, and assessments. If no death should soon occur it is obvious that this objection might prove invalid. However that may be, the objection goes to the practical wisdom of the defendant’s scheme of insurance, rather than to the plaintiff’s legal rights.

It also appears that the deceased was one of the charter members and paid with his associates what was termed the “ first assessment,” in addition to the fixed dues for admission. If they thus voluntarily created a small death fund in advance, it is probable that they did so in view of the contingency that a death claim might arise while the company was too weak to meet it in the usual course of its business.

The plaintiff being within the contingency thus in part provided for may justly claim the benefit of the provision. *

The judgment should be affirmed, with costs.

All concur.


author: Andrews, J. Barrett, J.

text:
    The People, Resp’ts, v. Samuel W. Lewis, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

      1. Labceny.
    Defendant was indicted for larceny in obtaining money by false pretenses. It appeared that he told one A. B. that he had purchased stock for her which stood on the company’s books, and that it was necessary to make a payment thereon, and received money from her for that purpose; that he subsequently paid her sums as dividends on the stock; that on her complaining that she had not received a dividend in some time he sent her with a letter to a friend, who refused to do anything for her; that she discovered that the stock had never stood in her name, and that defendant, when informed of that fact, admitted that he had not bought the stock and that the money was gone. It also appeared that he had induced her to invest in other stock which was worthless. Held, that these facts, uncontradicted, warranted the submission of the case to the jury.
    3. Same—Evidence—Penal Code, § 715.
    The voluntary testimony of the wife of a defendant as to his statements to her made in the presence of a third party, is not improper under § 715 of the Penal Code.
    S. Same.
    Letters received by the complainant showing the worthlessness of other securities in which she was induced to invest by defendant, and which she showed him at about the time of discovery of the alleged larceny, are admissible as part of the res gestae, as showing the intent with which he acted in the transaction in question, and to lay a foundation for proof of what he said and did.
    Appeal by the defendant from a judgment of the court of general sessions of the peace of the city and county of New York, entered upon the verdict of a jury.

      Herbert W. Orindall, for app’lt; DeLancey Nicoll, dist. atty., and Bartow S. Weelcs, for resp’ts.
   Andrews, J.

The defendant was indicted for what formerly would have been the crime of obtaining money by false pretenses, but which, under the Penal Code, is now larceny. The substance of the charge set forth in the indictment was that the defendant, on July 19, 1887, stole from one Alice G. Bostwick the sum of $5,500 by means of a false and fraudulent pretense and representation, that he had in the month previous purchased for her 100 shares of stock of the Pullman Palace Gar Company, and had arranged that the same should be paid for by her in instalments; that he had made various payments on account of said purchase, amounting to over $1,600, and that it was then necessary that she should make a further payment on account of such purchase; that she, believing such false and fraudulent pretenses and representations, and being deceived thereby, gave the defendant $5,500, which money the defendant received and obtained with intent to deprive and defraud her of the same, and to appropriate the same to his own use; whereas, in truth, the defendant had never purchased for said Alice Gk Bostwick any stock whatever of said company, and had not made any such agreements or payments as he stated; and it was not then necessary to make any further payments on account thereof. The jury convicted the defendant, and thereupon judgment was pronounced that he be imprisoned in the state prison at hard labor for the term of seven years and six months, and from such judgment this appeal is taken.

The first point raised by the learned counsel for the defendant is. that the court erred in refusing to take the case from the juiy. We do not think that this point is well taken. On the contrary, we think the case is one which it was the plain duty of the court to submit it to the jury.

Alice Gk Lewis (formerly Alice Gr. Bostwick), the wife of the ■defendant, and a number of other persons, were called as witnesses and testified on behalf of the People. The defendant himself did not go upon the witness stand, nor were any witnesses called in his behalf. The evidence given on behalf of the prosecution was substantially to the following effect: In May, 1887, Mrs. Bostwick had some money which she wished to invest, and the defendant, with whom she had had previous acquaintance, represented to her that Pullman Palace Gar stock would be a very fine investment, .and told her she could buy it on instalments. Mrs. Bostwick consented that the defendant should buy 100 shares of that stock for her, and at different times gave him money to make payments on account of the purchase price. In the latter part of May, 1887, she gave him $150 ; on June 24th, $600; on June 24th, $700 ; on' June 30tb, $900, and on July 19th, $5,500. After she had given him some money, the defendant told her he would give her a statement that would show just how she stood. He also told her that the account for all the money she had given him was standing on the books of said company, and also on his book. On June 27th he told her that he had bought said 100 shares of Pullman Palace Gar stock, and that the stock was on the books of the company, and also on the books in his office. Mrs. Bostwick, after procuring a divorce from her former husband, was married to the defendant on December 27, 1887, and lived •with him for about two years thereafter; and the expense of maintaining the household during that time appears to have been borne by her. While she was living with the defendant, he paid her $200 every three months, which he said was the interest upon said stock. In August, 1889, while the defendant and his wife were living at Orange, Hew Jersey, she, not having received such interest for some time, asked him for the same. The defendant thereupon gave his wife a letter to one Johnson, who was a, friend of his, and who did business in Hew York city, and told his wife to come to Hew York and deliver the letter to Johnson.

This letter was put in evidence, and was in substance a letter introducing his wife to Johnson, stating that the defendant had been ill and expressing the hope that Johnson would give his-wife special assistance. Mrs. Lewis came to Mew York and delivered the letter to Johnson, and had a conversation with him, which she afterwards repeated to her husband. The substance of such conversation was, that Johnson told her he had nothing whatever to do with her affairs, and knew nothing about them. Mrs. Lewis then went to the office of the Pullman Car Company, and was referred to the office of the Farmers’ Loan & Trust Company, where the transfer books of said car company were kept, and she there discovered that there was not then, and never had been, any stock of the Pullman Car Company standing in her name upon the books. She then returned to Orange, and in the presence of her daughter had an interview with the defendant, in which she-told him the result of her visit to Mew York. Mrs. Lewis was very much prostrated, and said to the defendant, “Why have-you sent me on this false errand ?” The defendant replied, that he gave her the letter to Johnson becau-se he wished to get rid of her, and get her out of the house, because he was afraid she might have him arrested. She told him about her visit to the office of the car company, and of the Loan & Trust Company, and that there was no stock upon the books in her name. The defendant, replied “Yes,” he knew it, “there never had been, and the money was gone.” Mrs. Lewis asked him where the money had gone, and he replied, “ Gone for anything, everything.”

The next day Mrs. Lewis came to Mew York, and went to tliehouse of Patón & Co., and made inquiries about various bonds which the defendant had purchased for her. The firm promised to make inquiries, and subsequently sent her two letters, the contents of which she communicated to her husband. These letters relate to the bonds of the Mew York, West Shore & Chicago Bail-road, in which the' defendant had induced Mrs. Lewis to invest the sum of $7,000. In one of these letters Patón & Company stated that they had found that said bonds were absolutely worthless, and that the road had been foreclosed years before, for about. $14,000, which went to cover the lawyers’ fees.

The testimony of Mrs. Lewis as to what occurred between her and her husband after the receipt of this letter is as follows r “After I got the reply, I showed it to Mr. Lewis ; I told him I could not understand why he treated me in this manner, and I could not account for it at all; I wished he would make me some-explanation ; he would make no explanation at all, and treated me in a very cruel manner; I mean, ignoring everything; I don’t-know; I cannot describe the way the man appeared, after my telling him that these houses found they were all false; I was forced to leave the house because his conduct towards me was so-brutal I could not stay there. He was up all night racing through the house, frightening the servants, and coming into the room and saying: ‘Madam, are you going to leave the house, will you go-out of the house immediately; ’ giving me no rest and no sleep. # -x- ]\pr. Lewis left my house at one o’clock in the morning ; I never laid eyes on him since : at ten o’clock the next morning, with his clerk, Herbert Stewart, I left my own home with four servants and went to my daughter; I could not stay in the house; he had told me to leave the house; I must get out; I went to a lawyer.”

A statement prepared by the defendant himself and given to Mrs. Lewis was also put in evidence, which shows, as he told her, the property of hers which he had in his possession. This statement shows investments, or pretended investments, amounting to many thousands of dollars, besides the Pullman Palace Car stock and .the Mew York, West Shore & Chicago bonds above mentioned, but no evidence was introduced as to such other properties. As above stated, the defendant did not go upon the witness stand and no witnesses were called in his behalf, and the evidence above detailed stood absolutely uncontradicted, and it also appeared the defendant, while under arrest, attempted to escape by jumping from a railroad train which was in rapid motion. Under these circumstances the claim of the learned counsel for the defendant that it was error for the court to submit the case to the jury is certainly rather startling, for no case was ever tried in. a court of criminal jurisdiction which was more clearly one for the jury than this.

It was doubtless necessary for the prosecution to prove beyond a reasonable doubt that the defendant had never purchased the Pullman Palace Car stock. If he had in fact purchased it, and then sold it, and misappropriated the proceeds, he would not have been guilty as charged in the indictment. It was therefore necessary for the prosecution to prove a negative, and the only way in which this could be possibly done was by circumstantial evidence. The evidence was uncontradicted that the defendant had obtained the money upon the representation that he was going to buy such stock for her; that he afterwards told her that he had purchased it, and that it stood on the books of the company, and he pretended to pay her the dividends upon the stock ; that the defendant sent her on a useless trip to Mew York, in order to get her temporarily out of the way; that upon investigation it appeared that no such stock had ever stood in her name upon the books of the company; that when informed of this fact the defendant made no explanation whatever, but admitted that his previous statement that it stood upon the books of the company was false, and also said, not that the stocks were gone, but that the money was gone; clearly implying that he never had bought the stocks. And there was uncontradicted evidence bearing upon the question of the defendant’s intent, which amounted to an admission by him that he had obtained $7,000 from his wife, for which he had given her worthless bonds in a corporation whose entire property had been sold for a small amount, under foreclosure, many years previously. It was clearly the duty of the court to submit the case to the jury. The evidence fully warranted the conclusion that the defendant had never bought such stock, and that he was guilty as charged in the indictment, and it would have been astonishing if, upon such evidence, the jury had failed to convict the defendant.

The second point made by defendant’s counsel is, that the court erred in allowing the wife’s testimony as to the defendant’s admissions to her.

This point also is not well taken. Section 715 of the Penal Code is as follows : “ The husband or wife of a person indicted or accused of a crime is in all cases a competent witness on the examination or trial of such person; but neither husband nor wife can be compelled to disclose a confidential communication made by one to the other during their marriage.”

" Section 831 of the Code of Civil Procedure contains, among-other things, the following provision: “ A husband or wife shall not be compelled to disclose a confidential communication made-by one to the other during the marriage.”

Section 392 of the Code of Criminal Procedure is as follows •, “ The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code.”

The answer to the point raised by counsel is, that, in the first; place, the admissions made by the defendant to his wife were not “confidential communications.” The wife had good reason to-believe that her husband had stolen her money, and, in the presence of her daughter, she asked him for an explanation. There-was nothing of a confidential character in his answers. He refused to explain, and merely declared that there never had been any stock standing in her name, and that the money was gone,, and, after the disclosures contained in the letter of Patón & Co., he still refused to make any explanation, and by his cruel and. brutal treatment drove his wife out of the house, which was maintained with her money. In the next place, even if such admissions were regarded as “ confidential communications,” the above-cited provision of the Code of Civil Procedure has no application, because § 715 of the Penal Code does otherwise provide. That, section makes a husband and wife competent witnesses against, each other, when either is on trial for a crime. It merely declares: that neither can be compelled to disclose a confidential communication made by one to the other, during their marriage. There can be no pretense that Mrs. Lewis was compelled to disclose the admissions or statements made to her by her husband. On the other hand she had every reason to voluntarily give the testimony which she did as to such statements and admissions, and it clearly appears from the record that her testimony was entirely voluntary.

The third point raised is, that the letters of Patón & Co., heretofore referred to, were improperly admitted in evidence. We do not agree with counsel upon this point for several reasons. In the first place the reading of the letters in evidence by the district attorney cannot have injured the defendant, because the substance of the letters had already been stated by Mrs. Lewis while she was under cross-examination. Counsel for the defendant claims in his brief that such statement was not brought out by him, but was made in response to inquiries by the district attorney and the court. The case on appdal, however, shows to the contrary, and we must be governed by that. It does appear ■ that, while Mrs. Lewis was being cross-examined, the assistant district attorney and tlie court did ask certain questions, but, after those questions had been asked and answered, the counsel for the defendant proceeded with his cross-examination, and such testimony as to the contents of the letter must have been given, according to the record, in response to questions asked by him, though, as this part of the case is" not made up by question and answer, the questions which elicited the testimony do not appear. Mrs. Lewis, after stating that she went to the house of Patón & Co., said: “ I made some inquiries about some bonds, and came home to await their reply. The next day I received letters from the house of Patón & Co. that these bonds were worthless. After I got the reply I showed it to Mr. Lewis. I told him I could not understand at all why he treated me in this manner, and I could not account for it at all. I wished he would make me some explanation ; he would make no explanation at all, and treated me in a* very cruel manner.” Defendant’s counsel certainly did not object to this testimony, and, as the record shows, it was brought out by him while Mrs. Lewis was under cross-examination; defendant, therefore, could not have been prejudiced in any way by the fact that subsequently the letter itself was admitted in evidence and read.

In- the second place, even if the contents of the letter had not been so brought out on cross-examination, we think it would have been competent for the prosecution to have put the letters in evidence as part of the res gestae. The charge in the indictment related to but one transaction, that of the Pullman Palace Car Company stock, and that was the only crime, of course, of which the defendant could be convicted under the indictment; but to prove the intent with which the defendant acted in that transaction, it was competent for the prosecution, if it could, to prove that the defendant had, at about the same time, defrauded his wife by obtaining money from her upon similar false pretenses made with reference to other securities. The letters of Patón & Co. related to bonds of the New York, West Shore & Chicago Eailroad, and it appears by his own written statement, rendered to his wife, that he had obtained $7,000 from her with which to buy these worthless bonds. After she received the letters from Patón & Co. she had an interview with her husband. She testified, as above stated, on cross-examination, that she showed the reply of Patón & Co. to the defendant. On her re-direct examination she further testified that she showed both of the letters to the defendant, and further on, that she communicated those letters, to the defendant; and she also testified, on such re-direct examination, that the defendant had previously told her that the said bonds were as good as gold, and that he paid her money, which he said was the interest on those bonds, although, if the statements contained in the letters are true, the mortgage given to secure such bonds had been foreclosed and the property of the railroad sold many years before. It was competent for the prosecution to prove all that took place at that interview between Mrs. Lewis and her husband, and, as she showed him these letters, and communicated their contents to him, and then demanded an ex-pianation, the prosecution had the right to read them in evidence.

The counsel for the defendant thinks they were not competent evidence because the signature of Patón & Go. was not proved, and because no further evidence was offered that the statements contained in said letters were true; but we think the learned counsel misconceives the principle upon which the co.urt acted in allowing the letters to be read, and the purpose for which the letters were put in evidence. Of course, even if the signature of Patón & Go. had been proved, the letters themselves were wholly inadmissible for the purpose of showing that the bonds in question were worthless, or that the road had been foreclosed, or for the purpose of showing any other fact stated in the letters. They were mere hearsay, and could not have been made competent evidence for any such purpose by proof of their genuineness. They were admissible, however, for the purpose for laying a foundation for proof of ,what the defendant said and did when their contents were communicated to him.

Counsel for the defendant argues that when the contents of the letter were communicated to the defendant, he was not called upon to make any statement, but we cannot agree to this proposition. He had obtained $7,000 from his wife with which to buy these bonds, telling her they were as good as gold. She presented a letter in which it was stated in substance that the bonds had been worthless for many years, and demanded an explanation. Surely if there ever was a case which called for an explanation this was one. Suppose that the wife at this interview had stated to the defendant that Patón & Co. had told her that the bonds were worthless ; it would certainly have been competent in that case for the prosecution to prove that she made this statement to him, and to prove what he said in reply ; or if he refused to give any explanation, or remained silent, to prove that fact. The rule applicable to such cases is laid down very clearly in Kelley et al. v. The People, 55 N. Y., 571: “Where an individual is charged with an offense, and declarations are made in his presehce or hearing touching or affecting his'guilt or innocence of an alleged crime, and he remains silent when it would be proper for him to speak, it is the province of the jury to interpret such silence, and determine whether his silence was under the circumstances excused or explained. At most, silence under such circumstances is but an implied acquiescence in the truth of the statements made by others, and thus presumptive evidence of guilt, and in some cases it may be slight, except as confirmed and corroborated by.other circumstances.

“ But it is some evidence, and therefore, except in those cases where the statements are made upon an occasion and under circumstances in which the individual sought to be affected could not with propriety speak, as in the progress of a judicial investigation, or in a discussion between third persons not addressed to or intended to affect the accused or induce any action in respect to him, so that for him to speak would be a manifest intrusion into a discourse to which he was not a party, the evidence is competent and should be admitted.” And, as was said in Cohu v. Husson, 113 N. Y., 662; 23 St. Rep., 504, “ Silence when one ought to speak is often as significant as an express admission.” The letters themselves prove nothing as to the truth of the statements therein contained, but the silence of the defendant, and his failure to make any explanation as to the matter, is presumptive evidence that the statements contained in the letters were true, and it was for the jury to determine what construction could be placet! upon what was said and done by the defendant after the letters had been shown to him by his wife, and upon his failure to make any explanation. If the contents of those letters were true, he stood in the position of having deceived and defrauded his wife, and his refusal to make any explanation was some evidence of his guilt, and it was for the jury to say what weight should be attached to it in connection with the other evidence in the case. And if the evidence of what transpired at this interview, taken in connection with such other evidence, satisfied the jury that he had defrauded his wife in regard to the Hew York, West Shore & Chicago bonds, they had the right to take that fact into consideration in determining the intent with which he had acted in reference to the Pullman Palace Car stock.

We think the defendant had a fair trial; that none of the exceptions were well taken; that there is nothing which occurred at the trial that calls for a reversal, and that the judgment should be affirmed.

Barrett, J.

The only doubt here is as to the letters of Patón & Co. But a careful examination of the record shows that the contents of these letters were elicited by the defendant on his counsel’s cross-examination of the prosecutrix. The' re-direct examination followed in its regular order. It is clear therefore that the defendant himself made the inquiry which resulted in the testimony that “ the next day ” the witness received letters from the house of Patón & Co., that these' bonds were worthless and that the witness showed the particular letter in question to the defendant.

How the letters contain nothing more than a statement that these bonds were worthless. Consequently they added nothing to what the defendant had himself placed before the jury. They simply illustrated the conversation and pointed out precisely what the defendant saw when the prosecutrix showed the letters to him. The other questions are free from doubt and I concur in the opinion for affirmance.

Van Brunt, P. J., concurs.


author: Barrett, J.

text:
    The Continental Insurance Co., Pl’ff, v. The Ætna Insurance Co. of Hartford, Conn., Def’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Insurance (Marine)—Reinsurance.
    ■ On a policy of reinsurance made by defendant and two other companies with plaintiff there was an endorsement to the effect that it should cover plaintiff ‘ ‘ to the extent of one half of the amount of each and every risk which equals or exceeds in value the sum of $15,000 ” and which said company may have on one barge or lighter and insured by them under open policies issued to certain persons named. Held, that the limitation referred to the real value of the cargo insured, and not to the amount of liability specified by the assured.
    Exceptions ordered to be heard in the first instance at general term.

      Elihu Root and Samuel B. G lárice, for pl’ff; J. A. Shoudy, for deft.
   Barrett, J.

This action is upon a policy of reinsurance, made by the defendant, jointly with two other companies, to the plaintiff. The,sole question is as to the proper construction to be placed upon the following endorsement, which was made upon the policy :

“ On and after this date this policy covers the Continental Ins. Co. as reinsurance, to the extent of one-half of the amount of each and every risk which equals or exceeds in value the sum of $15,000, and which the said Continental Ins. Co. may have on cargo of any one barge or lighter and insured by them under their open policies issued to the following named persons, viz: Twombly & Co., John H. Starin, H. Y. Lighterage & Transportation Co., New Jersey Lighterage Co., F. W. Jarvis & Co., Johhson & Hammond, S. Haff & Co., and F. Lawson. On cargoes of the value of $50,000 and upwards this policy is to cover the excess of $25,000, not exceeding the sum of $50,000 on any one cargo.”

The plaintiff claims that the words italicized refer to the amount of liability specified by the assured, while the defendant contends that they refer to the real value of the cargo insured. In other words, to the actual fact on that head rather than to the estimate of the assured. If the plaintiff’s construction is correct, then the restriction in question might be rendered practically useless. For the assured could then in all cases specify $15,000 as the amount of insurance, and that specification rather than the real risk would then serve as the sole guide. We agree with the plaintiff that the word “risk” in this connection does not mean “loss.” But does it for that reason mean any arbitrary sum which the assured, or reinsured, may fix? We think not. Force must be given to the words which here follow the word risk, namely, the words “ which equals or exceeds in value the sum of $15,000.” The plaintiff says this means in value to the insurer; that is, as a premium producing sum. The defendant construes it as though it read “which equals or exceeds in value of cargo $15,000.”

We think the latter is the true construction, and that this view not only gives real effect to the limitation plainly contemplated, but is in harmony with the rest 'of the contract. Thus, it is in harmony with the provision of the policy that the insured shall “ enter for insurance all goods at the full value thereof.” This expression negatives the idea that the assured may enter goods for insurance at any amount they please, however greatly in excess of the full value. The object is to specify the true value in advance of any disaster, as it is also the object, under another provision, to require payment, in case of loss, of the true value on the day of the disaster. By a previous endorsement upon this instrument, it is provided that the policy should cover “ one-half of the value of all cargoes shipped by Twombly & Co,” on certain barges. What is there meant is plain enough. The endorsement in question is apparently a supplement to this earlier endorsement. It extends the subject of re-insurance to others besides Twombly & Co. who are holders of the plaintiS’s open policies, but it limits such re-insurance to risks which equal or exceed in value the sum of §15,000. It is reasonable to conclude that the value contemplated in the latter endorsement is in substance the same as that specified in the previous. The subjects are cognate and the two endorsements are in pari materia. Again, the last words in the endorsement under consideration fortify this construction. Here again we find an extension combined with a limitation. And the extension is not to re-insurance based upon a specification of value by the assured, or upon a specification of the company’s outside liability to be impressed upon the face of the policy, but upon the real fact, namely: “ On cargoes of the value of $15,000 and upwards.” There is nothing whatever in the policy or in the endorsement thereon to justify the belief that it was the intention to re-insure one-half of the plaintiS’s liability to each of the assured whenever such assured chose, as between themselves and their insurer, to specify §15,000 or upwards as the value of the cargo laden. If such had been the intention, it would have been easy to expressit. The substitution of the words “face amount"’ for the word “ value ” would then have been natural; but, in that case, we would have expected to find in the last provision of this endorsement a similar change. That is, instead of the words “ on cargoes of the value of §50,000 and upwards,” some such words as “on insurance to the face amount of §50,000 and upwards.” As it is, the “value of the risk” was plainly the amount of actual liability assumed by the company, namely: “ the full value ” of the cargo. That is, the real and not the estimated value. Indeed, that risk attached as soon as the merchandise was laden, and it could not be varied by a subsequent specification of value in excess of the fact.

In the case at bar, it is conceded that in none of the instances referred to in the complaint did the value of the cargo equal the sum of $15,000. That fact brings the case within the restriction contained in the endorsement in question, and that restriction cannot be evaded by the act of the assured in specifying a value in excess of the “full value” of the merchandise laden. If even a substantial compliance with the requirement as to valuation, which is all that the law exacts, should lead to uncertainty in this business, then the reinsuring companies should at least be permitted to say whether they are willing to be bound blindly by the specification of value given by the assured. And the contract to that effect should be plain and conclusive.

The ruling at circuit was right, the exceptions should be overruled, with costs, and judgment should be entered accordingly.

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


text:
    The Continental Insurance Company, Pl’ff, v. The Greenwich Insurance Company, Deft.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1891.)

    Exceptions ordered to be heard in the first instance at general term.

      Flihu Boot and Samuel B. G lárice, for pl’ff; J. A. Shoudy, for deft.
   Barrett, J.

For the reasons given in the opinion handed down herewith in the case of the same plaintiff against the JEtua Insurance Company of Hartford, Connecticut, the exceptions should be overruled, with costs, and judgment entered accordingly.

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


text:
    The Continental Insurance Company, Pl’ff, v. The Phenix Insurance Company, of Brooklyn, Def't.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1891.)

    Exceptions ordered to be heard in the first instance at general term.

      Flihu Boot and Samuel B. Clarice, for pl’ff; J. A. Shoudy, for deft. '
   Barrett, J.

For the reasons given in the opinion handed down herewith in the case of the same plaintiff against The JEtna Insurance Company of Hartford, Connecticut, the exceptions should be overruled, with costs, and judgment entered accordingly.

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