author: Matham, P. J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Jacob H. Mullon and Thomas J. Mullon, as Administrators, with the Will Annexed of John Mullon, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Executors, etc.—Accounting.
    The inventory presumptively contains a true and full account of all of the personal property of the testator.
    S. Same—Surcharging.
    The party, seeking to surcharge the inventory, either in the amount or value of the property of the deceasec, has the burden of proof.
    3. Same—Devastavit.
    The administrators with the will annexed, who are the residuary legatees and devisees of the will, are not guilty of a devastavit of the estate by taking it in their own names, and paying the full value of the estate as fixed by the inventory filed, and all additions that can be made to it by newly discovered property.
    4. Same—Use of property.
    In such case, they should not be charged with the use of property which they have taken as their own and paid for to the estate at its inventory price.
    S Same—Mingling of goods.
    In such case, the mingling of goods will not work a forfeiture of the executor’s or administrator’s property to the estate of the deceased.
    Appeal by the administrators from the decree of the surrogate of Albany county on the judicial settlement of their accounts- as administrators.

      John A. Stephens, for app’lt; Marcus T. Hun, for resp’t
   Matham, P. J.

William B. Van Bensselaer, as trustee for Laura Van Bensselaer, a creditor of JohnMullon, filed his petition with the surrogate, praying that the administrators of John Mullon, deceased, render their accounts, and make a judicial settlement of the same, and on the return of the citations issued by the surrogate on such petition the administrators appeared and filed their petition for a final judicial settlement before such surrogate. On such petition, citations were issued to persons interested in the estate of deceased, on the return of which the administrators filed their accounts. By said accounts they show that letters of administration with the will annexed were issued to them September 29, 1886, and that on the 30th day of October, 1886, they caused an inventory of the estate made by them with the aid of appraisers appointed by the surrogate to be filed in his office, by which it appeared that the amount of the testator’s personal estate was $9, 426.20. The administrators on such accounting credit themselves by the amount of several schedules, consisting of loss on inventory, funeral expenses, claims against the estate presented to the administrators and allowed and paid by them, moneys paid to legatees in will, amounting in the aggregate to the sum of $11,747.72, from which statement it appears that they had paid out on accovnt of the estate $2,321.52 more than they had received, for which they claimed the estate was in debt to them. The petitioner, William B. Yan Rensselaer, surcharged the inventory filed on this accounting and objected to manyof the accounts allowed by the administrators.

I find no proof or finding that the inventory did not contain a full and complete list of all the articles of personal property owned by the testator at the time of his death, that came to the hands of the executors, except, the inference which is sought to be drawn from the fact that the property sold bv the appellants to Sherman was worth $20,250. There is no proof that the property was undervalued in the inventory, or that any article was left off except what now is claimed to be the value of the good will of the business, nor does the learned surrogate find that any article of personal property of the testator was omitted from the inventory or undervalued in it. Presumptively the inventory contained a true and full account of all the personal property of the testator. In Forbes v. Halsey, 26 N. Y., 60, Davies, J., in discussing the effect that is to be given to an inventory, duly filed in the surrogate’s court; on subsequent proceedings in that court says : “ Such inventory may be regarded as the basis of their subsequent action, and is to be considered in all subsequent proceedings before the surrogate at least until the contrary affirmatively appears to be the true and perfect inventory of all the goods, chattels and credits of the intestate. * * *

The amount of personal property, therefore, which comes to the hands of the administrator, will be assumed to be the amount of the inventory as returned and filed.” The party seeking to surcharge the inventory either in the amount, or value of the property of the deceased has the burden of proof.

It is true that on settlement of administrators’ accounts they are to be charged with the amount of the inventory and all increase, on the same and all personal property of the deceased, which may be proved to have subsequently, to the making of the inventory, come to their hands. McClellan on Executors, 67. In Bainbridge v. McCullough, 1 Hun, 488, it was held that it rests with the party objecting to establish more assets than are acknowledged by the accounts or inventory. Citing Marre v. Ginochio, 2 Brad., 165 ; and it was held to be the proper practice to state the objection in the form of a distinct and specified allegation and give proof thereof. But the respondent insists that the articles enumerated in the bill of sale to Sherman, February 27, 1893, are to be taken as the articles coming into the hands of the administrator on the 26th of September,T886, the time that they were appointed administrators, and the learned surrogate seems to adopt that theory, and relies upon that bill of sale for the evidence on which to surcharge the inventory and that too without any evideuce in detail as to the value of the articles sold to Sherman, that value in the bill of sale being given only in the gross sum paid on such sale, and with proof that many of the articles sold to Sherman were new and were not among the assets of testator at the time of his death, but have been purchased by the appellants while carrying on the business. If this business was carried on by the appellants as administrators and they at the time of the sale to Sherman held this property as such, then it is quite clear that they could be compelled to file an inventory of the newly acquired goods, or the contestant could surcharge to the extent of the profits on the business, but the title or possession would not be in the estate. Kenyon v. Olney, 15 N. Y. Supp., 417; 39 St. Rep., 839, and this could not properly be charged in their accounts with such new articles. The learned surrogate does not find that they were carrying on the business as administrators, but finds that they were carrying on the business while they were administrators.

This seems to us to fall far short of finding that they carried on this business as administrators. The case shows that the appellants assumed to carry on the business as individuals in their own name, and not as administrators, and the bill of sale to Sherman is in their own name, and while the surrogate does not in terms find that they carried on the business as administrators, he refuses to find on appellant’s request that they carried on the business in their own name and not as administrators.

There was no authority in the will for continuing the business in the names of the executors or those of the adminstrators with the will annexed, and we think the testimony in this case together with the manner in which the appellants did in fact do the business authorized a finding that they carried on the business as their own and not as administrators. This method of conducting the business was not inconsistent with the terms of the will, as by its terms they were the sole residuary legatees and devisees in this will, after the payment of debts and legacies. As residuary legatee, we think the administrators were not guilty of a devastavit of this estate by taking it in their own names, and paying the full value of the estate as fixed by the inventory filed, and all additions that can be made to the same, by newly discovered property; on the valid debts and liabilities of the testator. In such a case the measure of their liability on a judicial settlement would be the value of such property as had come to their hands belonging to the estate, as they had not charged themselves with in", the' inventory, and the amount of claims made against the estate and paid by them, which they were not legally authorized to allow, and pay out of the estate, and the executors or administrators would take the assets as their own property and would not be accountable to the estate for their earnings, or accumulations in conducting the business, so assumed by them and in which they employed such property, nor could they charge any loss in the conduct of the same against the estate on their final judicial accounting. Blood v. Kane, 130 N. Y., 517; 42 St. Rep., 549. There is no specific allegation in the objection filed by the respondent to the accounts of the administrators, or inventory that it does not state or contain a credit to- the estate of the proceeds of the business conducted by appellants after the death of the testator. Nor is there any evidence in the case from which such proceeds can be ascertained if they were properly chargeable against the administrators, on this account to sustain the second conclusion of law found by the surrogate. There is no proof of the value of the services of the appellant in producing such proceeds. Nor did the issue raised by the. contestants call upon them to introduce evidence upon that point. Indeed a finding upon that point would seem to be inconsistent with the charge found in the seventh finding of law, which seeks to charge the administrators with the good will of testator’s business. In re Randell's estate, 8 N. Y. Sup., 652, and cases there cited. These cases while they seem to hold that the profits or proceeds of the business conducted by the persons who are at the time the personal representatives in their own name, cannot be directed to the estate and they, at the same time, be charged with the value of the good will of the testator’s business for the obvious reason that such charges would be inconsistent with each other, yet they seem to be authority for charging the administrators with the value of such good will where they have adopted the business as their own. In such case such good will, becomes an asset in the hands of the administrators, and its value if proved, may be charged against them in their accounts. But as we have seen the burden of surcharging the inventory with the value of such good will, where it is not on the original inventory,- is with the contestant, and before any allowance for it can be made by the surrogate, its existence and value must be proved by him, as well as its appropriation or sale by the administrators.

In Mane v. Genochio, 2 Brad. Sur., 165, it was held that upon an accounting the affirmative, if establishing more assets than are acknowledged by the inventory and account, is with the party objecting ; and it must be established with reasonable certainty and not left to mere conjecture or suspicion. Forbes v. Halsey, 26 N. Y., 60; Bainbridge v. McCullough, 1 Hun, 488 ; In re Randall's Estate, 8 N. Y. Supp., supra.

The contestant was called upon before a decree could be made in his favor upon this point, not only to charge in his objections such omissions in the inventory, but to prove the correctness of the charge and the value or amount omitted from the inventory. Matter of Hart, 60 Hun, 516 ; 15 N. Y. Supp., 239 ; 39 St. Rep., 521.

This, it seems to me, he omitted or failed to do. It is true that the surrogate in the summary statement in his decree charges the administrators with $13,668 as the gross sum not stated in the inventory of articles taken by the administrators and used by them in conducting the business after testator’s death. But it does not appear how that amount is proved except that the property was sold by appellants to Sherman for $2-0,000, and the inventory value of the articles received by the administrators from the estate was $6,682, showing either that the appellants had added to the value of the property $13,668 which the surrogate charges to them, -or perhaps that the value of the good will is represented by that amount. Either hypothesis does not seem to us to be supported by proof, and must stand, if at all, upon conjecture. We do not think that the rights of these parties should be disposed of in that manner. The surrogate finds that the administrators paid out on account of this estate $2,103.68 more than the inventory property which came to their hands, and yet as appears from the summary statement he finds still in their hands due the estate $11,470.38, out of which the surrogate directs the administrators to pay to the contestant the sum of $3,811.70 and interest, and directs a judgment in form to be docketed against them for that amount.

The ground upon which this decree and judgment seems to be predicated, is that the appellants did not sell and dispose of the property which came into their hands as administrators, but that they appropriated it to their own use, and mingled it with their own property, and that by such use and co-mingling they forfeited to the estate, not only the time and labor bestowed upon it during the period of over five years, during which the appellants managed this property as their own ; but also all the additional articles and improvements made by them, and that they must now account for its present value together with the price at which it was inventoried at the time they took possession of it.

As we have seen, the taking of this property by the administrators and appropriating it to their own use, under the circumstances of this case, was not a devastavit of the estate so long as they paid the testator’s debts and legacies. In Greeno r. Greeno, 23 Hun, 478, it was held, Rumsey, J., writing the opinion of the court, that executors and administi’ators are not required to sell non-perishable property unless the will so provides, or it be necessary, to enable them to pay the debts and legacies, and they should not on their final accounting be charged with interest upon the value of property not sold. It is true that this case discussed the general duties of such officers. But for a much stronger reason they should not be charged with the use of property which they have taken as their own and paid for to the estate its inventory price, and more, as in this case. Bor when they take property under such circumstances and mingle it with his own, should they be held to have forfeited their own property, which never belonged to the estate. The doctrine of confusion of goods does not go to that extent and has no application to such a case, and any property bought by the administrators would belong to them personally and not to the estate, even if they had assumed to cany on the business in the name of the estate; which, in this case, they did no.t.

In Kenyon v. Olney, 15 N. Y., Supp. 416; 39 St. Rep., 839, Merwin, J., says: “Itis well settled that debts contracted by the administrators in continuing the business of the intestate,would not bind the estate nor would the products belong to the estate. The title would not be in the estate, but in the party who run the business.” In Miller et al., v. Sharp, 113 N. Y., 591; 23 St. Rep., 670, Andrews, J., says : “Itis the settled doctrine of the courts of common law that a debt contracted by an executor binds him individually and does not bind the estate which he represents.” It is true that the rule in equity is, that if the trustee or administrator mingle trust fund with his own and use the mixed fund in his own business, he will be charged with interest even though he make no profits out of such use. Insurance Co. v. Lynch, 11 Paige, 520. But we are cited to no case where the mingling of goods will work a forfeiture of the executor’s or administrator’s property to the estate of the deceased, as is held by the learned surrogate in his thirteenth finding and conclusion of law.

It is insisted by the appellants that having advertised for creditors, for the time required by law, that they were justified in assuming that all valid claims had been presented and that they were authorized to exhaust the assets in paying such claim in full; and having done so, before any judgment in favor of the contestant was docketed,and no claim on such demand or judgment having been presented to them pursuant to said notice they cannot now be charged as administrators with the payment of such judgment, there being no unadministered assets in their hands out of which it can be paid. In re McEvoy's Estate, 3 N.Y. Supp. 337, it was held that an executor was not liable personally to a creditor who did not present his claim, which was for a deficiency on a subsequently foreclosed mortgage, and of which' neither the executor or residuary legatee had notice until after the estate was distributed.

If we are right in the conclusion at which we have arrived that, as residuary legatees, these administrators could lawfully take and hold these assets on paying the debts and legacies to the full amount of the property coming into their hands as measured by the inventory, and that the contestant has failed to increase that liability by surcharging the inventory, or by proof increasing the amount of the estate which came to- the hands of the executors beyond the amount embraced in the inventory, then the appellants, after having paid the entire amount charged against them by the inventory, cannot be made personally liable for the amount of the contestant’s judgment.

We think the decree of the surrogate should be reversed, and a new trial or hearing had before the surrogate of Albany county. Code, § 2587.

Costs of this appeal and of the re-trial to abide the event

Putnam, J., concurs.


source: Caselaw Access Project

author: Mayham, P. J.

license: Public Domain

text:
    The People, Resp’t, v. Thomas O’Brien, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Evidence—Cokroboiiation.
    The testimony of children under the age of twelve years where, in the opinion of the judge, they understand the nature of an oath, constitutes such a corroboration of the complainant, on the trial of an indictment for a crime against nature, as is required by § 392 of the Code of Criminal Procedure.

      Appeal from the conviction and judgment of Albany county court of sessions.

      John Shanlon, for app’lt; Jas. W. Eaton, dist.-att’y, for resp’t
   Mayham, P. J.

The defendant was convicted of the crime against nature, committed upon the body of a boy eleven years of age. On the trial the only direct evidence as to who perpetrated the offense was that of the boy upon whom it was inflicted. On the day of the alleged crime the complainant and his brother, eight years of age, in company with another boy, ten years old, were on a railroad track, near a piece of woods, when, as they all testify, they met the defendant, who invited them to go with him to the wood to ride a pony, and give them twenty-five cents to induce them to accompany him to the woods. That he after-wards gave the complainant fifty cents more, and after enticing them some distance he caught hold of the complainant and dragged him towards a ravine, when the other boys fled, and the defendant took complainant into the ditch and then perpetrated the offense. In addition to the testimony of this boy, proof of the corpus delecti was made by the father of the boy, who examined the person of the complainant. Other evidence was offered as to the conduct of the defendant at the time of his arrest, and of the identification of the defendant by these boys in the presence of the officer at that time. But the main contention of the defendant is that his identification as the perpetrator of this crime was established only by the testimony of the prosecutor, who was under twelve years of age, and that the testimony of the other boys, who were still younger than the complainant, was not such a corroboration as is required by § 392 of the Code of Criminal Precedure.

At common law, the capacity of a child to give evidence was determined by the trial court, and the law did not fix a minimum in the age of the child as a test of his capacity to be sworn as a witness. That rested in the sound judicial discretion of the magistrate ; but in no case could the child’s statement be received in evidence not under oath, and it was usual for the trial judge, by a preliminary examination of the child, to determine whether he had sufficient intelligence and culture to be bound in conscience and law by the obligation of an oath.

Section 392 of the Code of Criminal Procedure has changed that rule, and by that section, if the magistrate believes a child under twelve years of age ought not to be subject to the obligations of an oath, he may, nevertheless take his evidence not on oath, but in such case the evidence so taken is not sufficient to convict, unless corroborated or supported by other evidence. The language of the section is as follows: “ The rule of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code. Whenever on any criminal proceedings, a child actually or apparently under the age of twelve years offered as a witness, does not in the opinion of the •court, or magistrate, understand the nature of an oath, the evideuce of such child may be received, though not given under oath, if, in the opinion of the court, or magistrate, such child is possessed of sufficient intelligence to justify the reception of the evidence. But no person shall be held or convicted of an offence upon such testimony unsupported by other evidence.”

It is quite clear in this case that the witnesses offered were not such, in the opinion of the judge, as did not understand the nature of an oath. 'The testimony of these children having been properly received by the judge, under oath, it became the duty of the jury to weigh it, having the right to take into account upon the question of its credibility their age and intelligence, and upon that subject the learned judge in his charge went farther in guarding the rights of the defendant than was necessary in instructing them that they must find in the evidence, circumstances corroborating the testimony of these children before they could convict the defendant.

The jury having found the defendant guilty upon evidence which we think was legal and competent, and no error having been committed on the trial to the prejudice of the defendant, the judgment of conviction must be affirmed.

Judgment affirmed.

All concur.


text:
    James J. Farren, Survivor, etc., Resp’t, v. Lucy McDonnell, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

      I. Appeal—Conflicting evidence.
    To justify a reversal on questions of fact when the evidence is conflicting, it must appear that the proof so clearly preponderates in favor of a contrary conclusion that it can be said, with reasonable degree of certainty, that the trial court erred in its conclusions.
    3. Payment—Application.
    If a debtor fails to give direction, at the time of payment, as to the application of the money, the creditor may make his own choice as to its application.
    Appeal from a judgment entered upon the report of a referee, in favor of the plaintiff and respondent.

      Westbrook & Borsi [Z. S. Westbrook, "of counsel), for app’lt; J. J. Darren, in person, for resp’t.
   Mayham, P. J.

One of the principal contentions of the appellant on this appeal is that the referee erred on the trial of this - action in awarding to the plaintiff too large an amount as the value of their services, rendered for the defendant. As the case stands the question was purely one of fact determined by the referee upon conflicting evidence. The action was for professional services, rendered by the plaintiff for the defendant, and the value of those services was testified to by eminent lawyers on either side, who assumed to take into account, the amount and Find of services rendered as well as the capacity of the eminent lawyers by whom they were performed, a method usual and proper in determining the value of such services, and while there is a wide margin of difference between the opinion, or judgment of the witnesses on the different sides-of this case as to the value of ' their services, we have carefully examined the evidence upon which the respective parties rely, in support of their contention, and find abundance of evidence to support the conclusion of the referee as to the value of these services.

The power of this court on appeal to review and reverse the ■finding of a referee upon questions of fact, is not denied, but that power is rarely exercised where there is sufficient evidence of an unobjectionable character to sustain the report. The rule governing the exercise of that power in the appellate court is well stated by Huger, 0. J., in Bond v. Mayor, etc., of New York City, as follows: “In reviewing the determination of a trial court on questions of fact when the evidence is conflicting, an appellate court is not warranted in reversing on the sole ground that, in its opinion, the trial court should have reached a different conclusion; to justify a reversal it must appear that the proof so clearly preponderated in favor of a contrary conclusion that it can be said with a reasonable degree of certainty, that the trial court errred in its conclusions. And any other rule would nullify the peculiar advantage which that tribunal possesses in observing the manner and appearance of the witnesses produced and the various physical and mental peculiarites by which the mind of the professional observer determines the degree of credit which ought prudently to be attached to oral testimony.”

It is also contended that payment were from time to time made as appears by the proof which should have been applied by the referee upon the claims for services for which this action was prosecuted. But this evidence was met by evidence that these plaintiffs or one of them, had rendered a large amount of service not contained in the complaint, in this action. And it was contended and the referee in effect finds, that the payment or advancements so proved were applied upon such services and the proof of the plaintiff, justifies such application of the same; and as there was no proof of any direction given by the defendant as to the application of the money so paid, the plaintiff was at liberty to apply it on any debt due him at the time of the payment.

The rule is well settled that while a debtor may give direction at the time of payment as to the application of the money, yet, if he fail to do so the creditor may make his own choice as to its application. This rule is laid down in Bank of California v. Webb, 94 N. Y., 467, by Bari, J., as follows: A debtor paying money to a creditor to whom he owes several debts may direct the application of the payment, because the money is his, and he may do as he will with it, and control its application. But the debtor must exercise his option as to the application when he makes the payment, after that the money has ceased to be his, and is no longer subject to his control. Then it belongs to the creditor, and he is master of it, and may control its application.”

The finding of the referee that the payments were applied upon other debts of the defendant was supported by sufficient evidence to uphold it, and with that finding we should not interfere. But the appellant urges that a receipt and note was given by Hinman, which are evidence that the defendant did not owe plaintiff at that time. It is quite true that such transactions are prima facie evidence. De Forest v. Bloomingdale, 5 Denio, 304. But this prima facie evidence may always be overcome by proof. Ryan v. Ward, 48 N. Y., 204; Miller v. Cates, 66 N. Y., 609.

The legal presumptions arising from these transactions were met by evidence from which the referee might find that they did not establish a settlement or payment in full at the time that they were given.

We have examined the rulings and decisions of the referee on the trial, and the various exceptions taken by the defendant in the case, and find no error for which this judgment should be reversed.

Judgment affirmed, with costs.

Putnam, J., concurs; Herrick, J., not acting.


text:
    Mary M. Stout, Resp’t, v. Hiram W. Betts, Individually and as Trustee of Hiram Betts, Deceased, et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Party—Trustee.
    An appeal from an order, removing a testamentary trustee, does not prevent the devolution of the trust property upon his successor, and such successor is a proper person to he substituted as a party for the purpose of protecting the trust.
    Appeal from an order substituting Lewis Boughton as plaintiff.

      L. B. Treadwell, for app’lts ; Thornall, Squires & Pierce (Franklin Pierce, of counsel), for resp’t.
   Mayham, P. J.

The case shows that the appellant was named in the will of Hiram Betts as executor and trustee, and on the probate of such will he qualified and entered upon the duties of his trust. That, on being cited by respondent to account be-' fore the surrogate of Cortland county, he voluntarily rendered his account; and, on such accounting, the surrogate found, and by his decree adjudged, that the appellant had in his bauds, as trustee, the sum of $2,159.62 belonging to the respondent as cestüi que trust, pursuant to the terms of said will, and that he had improvidently managed the trust committed to his charge, and that he was unfit for the due execution of the trust and that there was reason to believe that his financial condition hazarded the existence of the trust.

The surrogate also in his decree removed the appellant as testamentary trustee from his trust; and' in the same decree appointed Lewis Boughton as trustee, with all the rights and duties with reference to said trust fund conferred upon the appellant under and in pursuance to the terms of such will and the letters testamentary issued to him thereon. This decree was made and entered in surrogate’s court on the 13th day of December, 1892, and a copy served on Betts, the appellant, on the 14th of the same month. ■ On the 13th of January, 1893, Betts, by his attorney, served on the attorney for the respondent herein a notice of appeal, in which he gives notice “ That Hiram W. Betts, the acting executor and trustee, hereby appeals,” etc.; this notice is signed “L. B. Treadwell, Att’y for Hiram W. Betts, Executor, etc.” Ho copy of an undertaking on appeal was served with the notice, and no undertaking thereon was filed in the surrogate’s office of Cortland county until the 16th day of June, 1893.

On the 14th day of January the notice of appeal served by the appellant was returned to his attorney on the ground that no undertaking was filed, and the notice of app'eal was a nullity. Ho leave of the court to file.an undertaking on the 16th of June seems to have been obtained. The appeal on this motion is taken in the name of Hiram W. Betts individually, and is addressed to the attorney for the plaintiff, and not served upon the trustee and administrator, with the will annexed, on whose petition the substitution was made.

This substitution is claimed to have been made under the provisions of § 756 of the Code of Civil Procedure on'the theory that by the decree of the surrogate a devolution of liability was cast upon Lewis Boughton by his appointment as trustee in the place of Hiram W.- Betts, removed, who was prosecuted originally in this action, and has been removed. That section provides that: “ In case of a transfer of interest or a devolution of liability the action may be continued by or against the original party unless the court directed the person to whom the interest is transferred, or upon whom the liability is devolved, to be substituted in the action, or joined with the original party, as the case may require.”

But it is insisted by the respondent that the appeal in this matter suspended the operation of the surrogate’s decree, and that proceedings under it stayed all action on the part of Boughton, who was appointed successor of Hiram W. Betts, and in support of that contention, the court is referred to §§ 2576 and 2578 of the Code of Civil Procedure. But we think that an examination of those sections will show that they do not relate to decrees removing testamentary trustees or executors. By § 2583 of the Code it is provided that, “ An appeal from a decree revoking the probate of a will or revoking letters testamentary, letters of administration or letters of guardianship, or from a decree or order suspending an executor, administrator or guardian, or removing or suspending a testamentary trustee * * * does not stay execution of the decree or order appealed from.” The language of this section seems to embrace an appeal from a decree, like the one from which this appeal is taken. If wo are right in this conclusion, then this appeal, even if regular, did not prevent the devolution of this trust property upon the successor of the deposed trustee, and Boughton, as such successor, would seem to be a proper person to be substituted as the defendant for the purpose of protecting the trust fund, either as against the plaintiff in the action or his insolvent predecessor.

We are, therefore, of opinion that the order of substitution was correct and should be affirmed.

Order affirmed, with ten dollars costs and printing disbursements.

All concur.


text:
    The People ex rel. Dunkirk, Allegheny Valley & Pittsburgh Railroad Co., Relator, App’lt, v. Frank Campbell, Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Tax—Corporations.
    A tax may be legally and constitutionally, imposed upon a domestic corporation for the privilege and franchise granted to it by the power which created it.
    This is a proceeding by certiorari to review the action of the comptroller in imposing a tax upon the relator’s franchise and business in the state of New York for the year ending June 30, 1892.

      Brown & Wells, for relators; Simon W. Rosendo,le, att’y-gen’I, for resp’t.
   Mayham, P. J.

The relator is a corporation organized and incorporated under the laws of New York, and operating a railroad' for the transportation of passengers and freight between Dunkirk, in the state of New York, and Titusville, in the state of Pennsylvania.

In August, 1892, the relator made a report to the comptroller of the state of New York for the purpose of taxation under chap. 542 of the laws of 1880, and the acts amendatory thereof, and in such report embraced a statement of the gross earnings of such, the relator in its business between points wholly in the state of New York, amounting to the sum of $53,158.69, upon which sum it shortly thereafter paid into the state treasury a tax of five-tenths of one per cent, imposed thereon being the sum of $265.79. This statement or report of the relator was deemed incomplete by the comptroller, and he thereupon required the relator to make a more full and complete report. In obedience to that request the, relator, under protest, filed a supplemental report, for the same year, in which, among other things, it alleges that the company is a consolidated railroad corporation created by the laws of the state of New York, and Pennsylvania, and during said year owned land and operated a system of railways in both states and was connected with other lines of railway running in other states, and the Dominion of Canada, so far as to form continuous lines for transportation, to points outside the state of New York. That the relator divided its business into two classes, one of which it denominated “ local business,” which originated and terminated within the state. The other class of business which it denominated “ interstate business ” which carried over other lines of railroads and into other states, and Canada. In the supplemental report, it subdivided this last named class as follows:

1st. That which originates at a point in this state, and terminates at a point in another state or country.

2d. That which originates in another state or country and terminates in this state.

3d. That which originates and also terminates in another state or country. The report also shows that this kind of service is performed under but one contract with shipper or traveler from the point of start to destination, at a.gross price or sum, and that the sum so received is apportioned between the different lines of the companies upon principles agreed to between them, in which apportionment distance is only one of the elements calculated.

The report also shows that the sum received by the relators as its share of this interstate transportation during said year amounted to $75,429.86, which sum the relator adds to the $53,158.69, which it denominates “local business” making the aggregate earnings $128,588.05, on which it computes a tax of five-tenths of one per cent, amounting to $624.94, from which it deducts $265.79, the tax paid on local business leaving $377.15=

The assessment the relators required the comptroller to review and re-adjust under the provisions of chapter 361 of Laws of 1881. The required re-hearing was had before the comptroller, in which the state and relator were both represented by counsel and in which testimony was taken. At the conclusion of such hearing, the comptroller made the following order: “An application having been made by the above named Dunkirk, Allegheny Valley and Pittsburgh Eailroad Company, for a revision and resettlement of the taxes assessed and determined against it by the comptroller of the state of Hew York; for the year ending June 30, 1892, and the said comptroller having heard proofs offered on behalf of the said Dunkirk, Allegheny Valley and Pittsburgh Eailroad Company in support of said application, and after due consideration thereof, the comptroller does determine that the assessment heretofore made against the said Dunkirk, Allegheny Valley and Pittsburgh Eailroad Company does not include taxes which could not have been lawfully demanded, and theretofore declines to make any revision or re-adjustment of the same.

Calvin J. Huson,

Deputy Comptroller."

The relator concedes its liability to pay a tax of one half of one per cent on its gross earnings on all business done by it as carriers where the business originates and terminates within this state, so that no question arises in this case over the rate of taxation.

But it is insisted by the relator that as to the earnings for the carriage of goods or passengers within this state, where the beginning or terminating of such business is in another state or country, the comptroller is prohibited by the federal constitution from imposing a tax, and that as to such earnings the relator has complete immunity from taxation: that the power in that instrument conferred upon congress to regulate commerce between the states reaches so far as to prohibit the states from imposing a franchise tax upon a corporation created by and doing business in a state, as to all business done by it in the state, in the transportation of property or persons coming from or going to any other state or country.

If this contention can be maintained, it is not difficult to see-how gross inequalities in the burdens of taxation will fall upon corporations engaged in the carrying trade. Take as an illustration the N. Y. C. & H. R. R. R. Co. and the West Shore E. E. Co., both have their western terminal point at Buffalo. The former has its eastern terminal point in Hew York city. It would therefore be, so far as Buffalo and Hew York traffic is concerned, entirely within the state, and subject, as to that trade, to this tax-The latter of these, great parallel carrying corporations has its western terminus as Buffalo, but its eastern terminus as Jersey City, for all commercial purposes practically Hew York, and yet in another state, and because of that terminal point, and a few miles of its line is in another state, its income from its carrying traffic, although for the same distance as that of the Central & Hudson E. R. E. Co., would be entirely exempt from taxation. But we are not called upon to discuss the inequality of the operation of our laws, our only duty is to declare what the law is in a given case when properly before us for adjudication. . But in order to determine the intention of the legislature we may sometimes gather light by examining the consequence which different constructions may have upon the operation of a given statute, and thus promote the purposes of the enactment.

The-language of the statute under which' the comptroller assumed to impose this tax is as follows: “Every corporation formed for * * * transportation purposes * * * and doing business in this state, * * * shall pay to the state treasurer for the use of the state, as a tax upon its corporate franchise or business in this state, a tax at the rate of five-tenths of one per centum upon the gross earnings in this state of said corporation or company or association, or tolls, transportation, telegraph, telephone or express business, transacted in this state.” It is quite clear if this language is to be literally construed, and this provision to be deemed constitutional; that this tax was properly imposed. The tax is imposed “ upon the gross earnings in this state, for- * * * * business transacted in this state ” Ho attempt is made to tax the relator for earnings out of the state, or for business not transacted in this state. The tax is imposed upon “ the sum received by this company as its share of the interstate transportation.” (See supplemental report of comptroller.) That share must be confined, it would seem, to the earnings of its property in this state as divided with other connecting corporations out of the state. This is not a tax upon the property of the relator, but rather a tax upon its franchise which the law measures by its gross earnings within this state, and is, in the language of § 6 of chap. 361 of the laws of 1881, “a tax on its corporate franchise and business in this state.” In People v. Home Ins. Co., 92 N. Y., 392, the court in examing the taxing power of the state arising under chap. 542 of of laws of 1880, as amended by chap. 861 of laws of 1881, held that the taxes upon corporations imposed by said act, are taxes upon franchise, and not upon property, and the fact that dividends, a portion of which are derived from securies exempt from taxation, furnish the basis for computing the amount of the tax, does not invalidate it. This conclusion seemed to arise out of the fact that the amount of the dividends was adopted in this scheme of taxation in fixing or measuring the amount of the franchise tax. And the court holds that the legislature has, by virtue of its jurisdiction over corporations organized under its laws, authority to impose such a tax. In concluding a very exhaustive examination of the power of the legislature to impose franchise tax upon corporations and measure their amount by gross earnings of the business, Chief J. Euger uses this language: “We feel constrained to hold in accordance with the principles laid down in the cases cited, that the tax in question was a tax upon franchise alone; and was therefore within the exercise of legitimate legislative power.” This case was affirmed in United States supreme court, 134 U. S., 564. In People v. The Equitable Trust Co., 96 N. Y., 387, the power of the legislature to impose such a franchise tax upon domestic • corporations was reiterated. These acts again came under consideration in the case of The People ex rel. The American Contracting & Dredging Co. v. Wemple, 129 N. Y., 558 ; 42 St. Rep., 400, which was a domestic corporation doing business in the Panama canal, but with its principal office and place of business in Eew York city. The comptroller settled and adjusted the franchise tax under this act upon the dividends declared upon the amount of capital stock employed in the state. And it was held that the tax was not upon the property of the corporation, but upon the franchise and business and as to domestic corporations is in no sense confined to such as do business in the state. From the above authorities it appears that this tax is not imposed upon the property or business of the relator, but upon the franchise granted by the state, the amount of which is graduated by the earnings of the relators in carrying on their business in this state.

It is not easy, to harmenize the various decisions of the federal and state courts, or even the federal court itself, when the questions of this character have arisen upon statutes slightly differing in their language, or facts nearly alike, yet presenting a shade of difference. In Fargo v. Michigan, 121 U. S., 230, where the tax was imposed upon a foreign express company, Miller, J., uses this language: “The proposition that the states can by way of a tax upon business transacted within their limits, or upon franchises of corporations which they have created, regulate such business and the the affairs of such corporations has often been set up as a defense to the allegation that the taxation was such an interference with commerce as violated the constitutional provision, but where the the business so taxed is commerce itself and is commerce among states or with foreign nations, the constitutional provision cannot thereby be denied, nor can the states by granting franchises to corporations engaged in the business of transportation, which is in itself interstate commerce, acquire the right to regulate that commerce, either by taxation or any other way." This would seem to be a positive declaration that the state could not impose a tax upon a franchise granted by it to a corporation for carrying merchandise which was carried on interstate. But as the decision arose out of the attempt of a state to tax a foreign corporation the statement was not necessary for the determination of the question before the court; it was obiter. Without attempting to reconcile the apparent conflict of authority upon this subject we think we may safely adopt as authority the latest utterance of the court of appeals of this state in People ex rel. Penn R. R. Co. v. Wemple, 138 N. Y., 1; 51 St. Rep., 702, and that of Main v. The Grand Trunk R. R. Co., 142 U. S., 217.

In the former ease, Andrews, J., in discussing the power of this state to impose a tax upon foreign corporation doing an interstate business uses this language: ‘‘There may therefore be eliminated from the discussion the question which, would arise in the case of a foreign corporation conducting within this state, both the business of strictly interior transportation and that of interstate carrier to points within and from points without the state. We do not intend to be understood as determining whether in that case, the state might not, under the act of 1880, lawfully impose upon such a corporation, in common with all other corporations, domestic and foreign, doing business here, a business tax, based upon its capital employed in the state, which, under the amendment of 1885, is now the basis of taxation of corporations liable to taxation, under the act of 1880. Chapter 501, Laws of 1885. “ There would seem to be no question that domestic corporations engaged in both state and interstate . commerce may lawfully be subjected by the stale franchise tax, measured by its whole capital or business, or in any other way, in the discretion of the legislature, without taking notice of the part' of its business from inter-state commerce, provided no hostile discrimination is made against such part. Nor would there seem to be any valid reason why a foreign corporation, engaged both in the business of state and interstate transportation in this state,, should not be subject to taxation, in common with domestic corporations. See People ex rel. Southern Cotton Oil Co., v. Wemple, 131 N. Y., 54; 43 St. Rep., 963; Woodruff v. Parham, 8 Wall., 123; Osborne v. Mobile, 16 Wall., 497.”

In the Maine Case, supra, this question arose under an act of the state legislature of that state, passed in 1881, containing among other things the following provisions: “Bach and every corporation operating a railroad in the state should pay to the state treasurer for the use of the state an annual excise tax for the privilege of exercising its franchise.” The act then made the following provisions for ascertaining the amount of the tax. “ The gross transportation receipt of such railroad line or system, as the case may be, over its whole extent within and without the state shafl be divided by the total number of miles operated to obtain the average gross receipts per mile, and the gross receipts within the state shall be taken to be the average gross receipts per mile, multiplied by the number of miles operated within the state.”

The circuit court of Maine held that a tax imposed under this statute was a regulation of interstate and foreign commerce, and in conflict with the exclusive power of congress over that subject under the constitution of the United States, and was invalid. From this judgment the state brought a writ of error to the supreme court of the United States, where the judgment of the circuit court was reversed, the court holding that the tax was an excise tax upon the corporation for the privilege of exercising its franchise within the state of Maine, and in pronouncing the opinion of that court, Field, J., uses this language: “ The privilege of exercising the franchise of a corporation within a state is generally one of value, and often of great value, and the subject of earnest contention. It is natural, therefore, that the corporation should be made to bear some proportion of the burdens of government As a granting of a privilege rests entirely in the discretion of the state, whether the corporation be of domestic or foreign origin, it may be conferred upon such conditions, pecuniary or otherwise, as the state in its judgment may deem most conducive to its interest and policy." It may require the payment into the treasury each year of a specific sum, or may apportion the amount exacted according to the value of the business permitted as disclosed by the gains or receipts of the present or past years.

“ The character of the tax or its validity is not determined by the mode adopted in fixing the amount for any specific period, or the times of its payment. The whole field of inquiry into the extent of revenue from sources at the command of the corporation, is open to the consideration of the state in determining what may be justly enacted for the privilege. * The court below held that the imposition of taxes was a regulation of commerce, interstate and foreign, and therefore in conflict with the exclusive power of congress in that respect; and on that ground alone it ordered judgment for the defendant.

This ruling was founded upon the assumption that a reference by the statute to the transportation receipts, and to a certain percentage of the same in determining the amount of the excise tax was in effect, the imposition of the tax upon such receipts and therefore an interference with the inter-state and foreign commerce. But a resort to those receipts was simply to ascertain the value of the business done by the corporation, and thus obtain a guide to a reasonable conclusion as to the amount of the excise tax which should be levied, and we are unable to perceive in that resort any interference with transportation, domestic or foreign, over the road of the railroad company or any regulation of commerce which consists in such transportion. If the amount ascertained was specifically imposed as the tax, no objection to its validity would be pretended. And if the inquiry of the state as to the value of the privilege was limited to receipts of certain past years, instead of the year in which the tax is collected, it is conceded that the validity of the tax would not be affected. And if not, we do not see how a reference to the results of any other year could affect its character. There is no levy by the statute on the receipts themselves, either in form or fact. They constitute, as said above, simply the means of ascertaining the value of the privilege conferred."

The principle contended for by the comptroller and contained in the Laws of 1880 and 1881, supra, is clearly upheld in these cases last cited, and as was said by Justice Field, “ The character of the tax and its validity, is not determined by the mode adopted for fixing the amount for any specific period, at the time of its payment.” It seems to follow that this tax is not one imposed by the state on interstate commerce, but simply a tax on a domestic corporation, created by the state for privileges and franchise granted to it, by the power which created it, and that such tax may be legally and constitutionally imposed by the state. The decision of the comptroller must, therefore, be confirmed, and the writ of certiorari quashed, with fifty dollars ($50) costs to respondent and legal disbursements.

Let an order be entered accordingly.

All concur.


author: Per Curiam.

text:
    Edmond Deyo, Resp’t, v. Foster B. Morss, as Executor of, and Trustee under, the Will of Burton G. Morss, Deceased, and individually, et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Pleading—Amendment.
    A subsequent complaint which sets up an entirely different cause of action from the one in the original complaint, is not an amended but a new complaint.
    Appeal from an order denying a motion to strike out an amended or supplemental complaint.

      Jennings & Chase, for Foster B. Morss; Sidney Orowell, for Burton 0. Morss; Howard Chipp, Jr., for Rosaline A. Tremper; G. D. B. Hasbrouclc, for Arabella L. Munn; F. James Fitch, for Leonidas Morss; John A. Griswold, for respondent.
   Per Curiam.

Plaintiff’s authority to serve an amended complaint was derived only from the stipulation. Doubtless, that, authorized the service of such an amended pleading, as the court at special term could properly, on motion of the plaintiff, have allowed. We think it would not have been in furtherance of justice for a court to have authorized the amended complaint, served. It was not in fact an. amended complaint, but an abandonment of the original cause of action and the substitution of a new and different one. The substantial cause of action in the original complaint set out, was to set aside a conveyance of land made by the defendants, as fraudulent and void, and executed in pursuance of a conspiracy between them, to appropriate and convert such land to their own use, and to prevent the same from being applied to the claims of creditors; and the complaint asked to recover said land for.the estate, or its proceeds. The amended complaint sets out the statutory action against defendants authorized by article 2, title 3, chapter 15 of the Civil Code, on account of real estate devised to them. This is an entirely different action. Had plaintiff tried the cause under the original complaint, and been defeated, the judgment would not have barred his action, under the statute to recover, as a creditor against defendants on account of real estate devised to them.

We think, that the stipulation did not contemplate or authorize the abandonment of the original cause of action and the substitution of a new one. And hence, without considering other objections made to the complaint, that the order should be reversed, with costs and disbursements, and the motion granted with costs.

Herrick, J., concurs.


author: Putnam, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Philip F. Wangner, as Executor and Trustee, etc., of Magdalena Schauffert, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Will—-Oomvbbsiom".
    Where real estate has been converted into money to carry out the provisions of the will, and part of the converted fund is undisposed of by the will, such portion goes to the heir-at-law and mot to the next of kin.
    Appeal from a surrogate’s 'decree settling said Wangner’s accounts and directing final distribution.

      King & Speck {Henry J. Speck, of counsel), for app’lt; Mead & Halt, for resp’t John Daugs; McClellan & Albertson, for resp’t P. F. Wangner.
   Putnam, J.

The testatrix in the will under consideration left all her property, real and personal, to her executor, Philip F. Wangner, in trust, to take charge and possession thereof, in his discretion to sell or convey the same by proper conveyances or leases, to invest the proceeds and use the income and interest thereof, and also so much of the principal sum as shall be at any time, in his keeping as he shall deem necessary and proper for the support of her husband, Ernest Schauffert, so long as he shall live, and at his decease to pay over the residue to any child or children then living. The testatrix left no child her surviving, and as to the remainder of her estate, after the trust estate for the ■life of her husband, she died intestate. Of the remainder, her heir-at-law, on her decease, at once became seized (Matter of Tienken, 131 N. Y., 891; 43 St. Rep., 148), unless as claimed by appellant there was an equitable conversion of such remainder immediately at her decease into personalty which vested in her .husband.

It will be observed that the language of the will does not imperatively require the sale of the real estate. Whether there shall be a sale or not is left to the discretion of the executor. But, it is urged by the appellants and perhaps correctly, that the language and provisions of the will are such as to clearly show an intent on the part of the testatrix that all her estate should be converted into money, invested on interest and the income and

interest applied to the support of x her husband. We will assume in our consideration of the case, that a proper construction of the language used in the will indicates an intent of testatrix that her estate should be converted into money. But it is held, and seems to be well settled, that where real estate has been converted into money to carry out the provisions of the will, and a part of the converted fund is undisposed of by the will, such portion goes to the heir-at-law and not to the next of kin. Wood v. Keyes, 8 Paige, 365. In Parker v. Lindon, 113 N. Y., 28; 22 St. Rep., 614, Danforth, J., uses this language: “The important question is whether the direction for conversion is, by the terms of the will, absolute and imperative, so as to be complete to all intents aad purposes, or whether the conversion directed is for the purposes of the will only. If the latter, then if those purposes fail, or do not exhaust the proceeds, the property unapplied whether the estate has been sold or not, will devolve according to its original*character.” It requires no argument to demonstrate that in the case under consideration the conversion from real to personal property directed by the will, if the will shall be deemed to contain any such direction, is for the purposes of the will alone. As we have seen there is no absolute or imperative direction requiring such a conversion. If required by the language and terms of the will it is because such conversion is impliedly required to carry out the directions contained therein as to the disposal of the property of testatrix for the benefit of her husband during his life. The implied direction for a conversion was not for the purpose of a distribution of the estate among the next of kin. The will "does not contain any language indicating an intent of the testatrix to convert the real into personal estate except for the purposes of the will. Hence the case of Parker et al., v. Lindon, supra, seems directly in point. See also Gourley v. Campbell et al., 66 N. Y., 169-173, 174.

In Bogart v. Hertell, 4 Hill, 492-495, Helson, J., uses the following language: “How I think the authorities demonstrate that where the devisor has directed or'authorized the conversion of his real estate, even for a particular special purpose such as distribution, courts are bound, so long as the purpose and object exist and continue, to regard it as of that species of property into which it was directed to be converted ; and, to the extent and for the purpose declared, it is to be treated as money, and not land. This will be found to be the uniform language of all the cases on the subject. If the purpose ánd object of the conversion fail altogether, or in part, then the whole estate, in the one case, and the part in the other, is regarded as an estate or interest undisposed of by the will; and as the devisor, in the event happening has made no disposition of the estate, it takes the direction given to it by law, independently of the will, and goes to the heir-at-law.

The case of Roy v. Monroe, 47 N. J. Eq., 356-61, to which we are cited by the learned counsel for the respondents, is in harmony with the authority above referred to. In the opinion the following language is used, which we quote as containing a very clear and able statement of our views in reference to the case under consideration: “ But the $10,000 stand in an entirely different situation. Though the land which this sum represents, was changed by a direction contained in the testator’s will, from land to money, yet, it has so happened that his will does not, in the present situation of affairs dispose of the money. The testator ordered the conversion for two purposes: first, that his son, during his life, might have the income arising from the money; and, second, that the principal on his son’s death might go to his son’s children. The first purpose has been fully accomplished. The second, however, has not been and never can be. The son died without issue. The $10,000 are, therefore, undisposed of. As to it the testator died iijtestate, that is, in the condition of affairs, now existing, it must be declared that he had no will concerning it and made no testamentary disposition of it. And, consequently, nobody can claim it under his will. It thus appears that the main purpose of the conversion has failed. Where that is the case, the principle which must govern the judgment of the court in disposing of the money, is, as I understand the authorities firmly and clearly established and may be stated as follows: The money must for the purposes of succession be regarded as possessing precisely the same heritable or transmissible quality or character which the property it represents has at the death of the testator, and it must be given to the heir if it represents land, and to the next of kin if it represents personalty.” See also Read v. Williams, 125 N. Y., 560; 35 St. Rep, 909.

We conclude that under the doctrine established in the authorities above quoted the court below made the correct disposition of the case. It is quite clear that if, under the will in question there is any equitable conversion whatever, it was intended by the testatrix for the purpose of the will only, and hence, as held in Parker v. Lindon, supra, as these purposes do not exhaust the proceeds the property unapplied descends to the heir at law. The case of Delafield v. Barlow, 107 N. Y., 535; 12 St. Rep., 494, cited and relied upon by the learned counsel for appellants does not all conflict with the views above expressed. In Delafield v. Barlow the court held, under a will in some regards similar to the one under consideration, though with some doubt and hesitation, that by the terms of the will in that case considered, there was an equitable conversion of the real estate into personalty. But in that case the property was all disposed of under the will. While there was an equitable conversion for the purpose of the will, all the property so converted was required to carry out its provisions. In other words, testator did not die intestate as to any of the converted property. Hence the case was not like that of Parker v. Lindon and the authorities above cited, and does not conflict with them. In the case under consideration had the deceased left her surviving a child or children—assuming there was an equitable conversion of the real estate into personalty for the purposes of the will—the estate being all disposed of by the will might be deemed all converted into personalty. As we have seen under the will, as to the remainder of the estate after the life estate of Ernest Schauffert, deceased died intestate.

We, therefore, conclude that on the death of testatrix her heir at law at once becomes vested with the remainder of the real estate undisposed of by the will, subject to the trust estate for the life of the husband, and that such remainder to the extent it continued undisposed of has retained and retains its character of real estate and goes to John Daugs, the father and heir at law of testatrix.

We have examined the other authorities cited by the learned counsel for appellant, but do not feel they require discussion.

The decree of the surrogate should be affirmed, with costs.

All concur.


author: Putnam, J. Herrick, J. Mayham, P. J. (dissenting).

text:
    Antoine Campbell, Resp’t, v. John Hurd, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Accord and satisfaction—Bar.
    An accord is not a bar to a suit on the original cause of action.
    2. Same.
    The giving of an order on defendant by his agent is not a satisfaction.
    3. Same—Recovery.
    Such accord does not estop a party as to the amount of the recovery or otherwise.
    Appeal from a judgment in favor of the plaintiff.

      S. A. Beman (Theo. H. Swift, of counsel), for app’lt; Lawrence Russell (Nelson L. Robinson, of counsel), for resp’t.
   Putnam, J.

Plaintiff brought this action to recover a balance due on an unsettled account The defendant claimed an accord and satisfaction. The testimony in the case, however, shows an accord, but not a satisfaction. The accord is not a bar to a suit on the original cause of action. Brooklyn Bank v. Degraw, 23 Wend., 342. The giving of the order by defendant’s agent on defendant was equivalent to defendant giving his own note for the claim in suit, which has been held not to be a satisfaction. Person v. Civer, 29 How., 432-438-439. Although if the order had been paid in full it would have amounted to a satisfaction. As there was no accord and satisfaction, I think it follows that plaintiffs was not estopped by the new agreement or accord as to the amount of the recovery or otherwise. To hold that plaintiff can only recover the amount agreed upon by the accord, is in fact to hold such accord binding upon him without satisfaction. In my view, there being no accord and satisfaction, the plaintiff can recover on the original claim in all regards as if the order by defendant’s agent on defendant had not been given. It follows that the refusal of the learned referee to find that the settlement and acceptance “ of a cash order by the plaintiff and its acceptance by the defendant fixed the amount of defendant’s liability under said contract mentioned in the copiplaint,” as requested by defendant, was noterror.

I have examined the various exceptions taken by the defendant on the trial, and I think that neither of them requires a reversal of the judgment. I think, therefore, that the judgment should be ■affirmed, with costs.

Herrick, J.

I concur, the new promise, that is the order to pay $450, and the promise to pay the same was to be the satisfaction of the accord when paid ; not having been paid there was not a complete accord and the original indebtedness remains in full force. Kromer v. Heim, 75 N. Y., 574-77.

Mayham, P. J. (dissenting).

The principal question, and the one upon which all the other important questions raised by the appellant on this appeal must turn, is whether the evidence in this case established an accord and satisfaction. The complaint sets out a written contract between the plaintiff and defendant, whereby the plaintiff agreed to peel, pile and deliver bark at a specified price and to cut and deliver a quantity of timber therein specified at prices specially set out in the contract, alleges performance of the contract and claims a balance dne him for the labor performed under such contract. The answer of the defendant admits the making of the contract, denies that any sum is due the plaintiff and sets up settlement, payment accord and satisfaction. The evidence discloses that after the performance, of the service by the plaintiff under the contract differences arose between the parties as to the amount of the services rendered and as to the balance remaining due the plaintiff. In one of these interviews the plaintiff claimed $500 and the defendant offered him $450. Soon after the plaintiff wrote the defendant as follows •

“ Mr. Barkley :

Sir—You may send me that order for four hundred and fifty dollars, and I will send you a receipt in full. Tell Mr. Hurd about this order so that I won’t be to any expense in going only once to Santa Clara; you need not send me itemized bill unless you want to.

“ Respectfully yours,

“ A. J. Campbell.”

The case shows that Barkley, to whom this letter was addressed by the plaintiff, was the defendant’s superintendent, and that on the day after the receipt of this letter he sent to plaintiff the order as directed in this letter, and on presentation the defendant accepted the same and agreed to pay it, and did thereafter pay thereon $150, which the plaintiff received and retained. Defendant directed the plaintiff to present the order to other parties, and said they would pay it, but on being requested by the plaintiff they declined to do so. Had this order been drawn on and accepted by a third person, and not the debtor himself, it would, we think have been an accord and satisfaction, by reason of the plaintiff’s promise in his letter to give a recipt in full.

The plaintiff would then in effect have transferred the claim from the principal debtor to the drawer and acceptor of the order, and would have had a right of action on the acceptance which would have been a satisfaction of the defendant’s liability to the plaintiff. Such a transaction would have been a bar to an action on the original contract; because, it would in that event have been accepting the order as payment and would have been within the definition given in Blackstone’s Commentaries of an accord and satisfaction. 8 Blackstone’s Comm., 15. The agreement to take the-order would be an accord, and its delivery and acceptance would be a satisfaction. But no such rule obtains when the debtor promises performance himself, and fails to execute his agreement. If the defendant had paid this order all of his liabilities on the original contract would have been merged in this new agreement, and such payment would have amounted to an accord and satisfaction, and no action would, therefore, lie on the original contract. His failing to do so, however, left his liability still existing, only reduced by the amount of $150 actually paid under the new agreement.

In Brunnan v. Ostrander, 50 N. Y. Supr. Ct., 626, it was held that an accord with part execution only, cannot be pleaded in satisfaction.

The accord must be completely executed to sustain such a plea. In Raull v. Lytt, 6 Wend., 391, Marcy, Judge, says: “To make an accord good it must be in full satisfaction. When an accord is relied upon it must be executed. Readiness to perform is not sufficient.” See, also, Hawley v. Foote, 19 Wend., 516 ; Brooklyn Bank v. De Graw, 26 id., 342 ; Woolson v. Arnold, 10 How., 528. The amount which was agreed to be paid not having beefi paid, by the defendant upon the order accepted by him, there was no accord and satisfaction within the authorities above cited.

The remaining'question is, was the previous contract between the parties so far merged in the new agreement, or settlement, as to bind the plaintiff as to the amount which he shoud recover ?

It seems to me that the parties by this letter and order, to which we have referred, fixed and settled the amount of the defendant’s liability, and that the plaintiff should not now be allowed, after accepting this compromise or new agreement, a portion of the amount, or permitted to retain so much of the fruits of the compromise as he has received under it, and at the same time repudiate the agreement for the purpose of his recovery in this action. He has once in writing agreed to accept a cash order for $450, and sent a receipt in full, having received the order, and accepted upon it from the defendant a payment of $150, he should.be estopped from now saying to the defendant that that payment was received upon the general unliquidated claim, and seek to recover the balance as though there had been no settlement or liquidation of the amount; and that the referee’s refusal to find as requested in the defendant’s fourth request, as conclusions of law, viz.: “That the settlement and acceptance of the cash order by the plaintiff, and its acceptance by the defendant, fixed the amount of the defendant’s liability under the contract mentioned in the complaint,” was error, for which a new trial should be granted.

Judgment reversed, referee discharged, and a new trial ordered, costs to abide the event.


author: Putstyh, J.

text:
    Robert Shaw, Resp’t, v. Christina Kellogg, App’lt.

      (Supreme Court, General Term, Third Depaodment,

      Filed December, 1893.)

    Ejectment—Default in contract to convey.
    Where, by the terms of a contract, the vendee covenants that, on a default in the payment of either the first or second installment for the period of sixty days, and upon a demand in writing by the vendor for the possession of said premises, he will quit and surrender up the same to the vendor, an action of ejectment, upon such default, can be maintained.
    Appeal from a judgment in favor of plaintiff.

      Robert JDornburgh, for app’lt; Stanley H. Bevins, for resp’t.
   Putstyh, J.

This is an action of ejectment to recover the possession of certain lands in Hamilton county contracted to be conveyed by plaintiff to the defendant by a written agreement dated February 7, 1886, the defendant being in possession under said contract at the time of the commencement of the action. The purchase price named in the contract was $1,000, payable, $100 at the end of the first year, $100 two years from the date thereof, and the balance or the purchase price as provided in the contract with interest on the principal sum unpaid at the time of each payment. The contract also provided that upon default for the space of sixty days by the defendant in either of the first two payments said defendant was to quit and surrender immediately, upon demand in writing therefor, the possession of said premises to the said plaintiff, and on such default was to become the same as a tenant in arrear for the non-payment of rent. The referee to whom the same was referred found that the defendant made default in the payment of the second payment or installment, due February 7, 1888, and interest thereon, provided to be paid in said contract by said defendant, and that she has ever since been in default, and that nothing has since been paid to apply on the second payment or the interest due thereon. That after the expiration of the sixty days as provided for in said contract plaintiff served on defendant a demand in writing for the possession of said premises, as required by the contract. Thereafter, and on or about February 27, 1889, plaintiff served upon the defendant a further demand requiring the delivery of the possession of said premises to the plaintiff, and thirty days before the commencement of the action served yet another written notice demanding possession of said premises.

The principles applicable to such a case as this are so well settled that an extended discusson is unnecessary. Defendant’s only right to the possession of said premises -was derived under the contract above referred to. By the contract on a default in the payment of either the first or second installment for the period of sixty days and upon a demand in writing by the plaintiff for the possession of said premises the defendant covenanted to quit and surrender up the same to the plaintiff.

There seems to be no substantial conflict in the evidence. The contract was proved, the defendant concededly was in possession under said contract and with no rights to the possession of the premises except such as were conferred upon her by the said instrument. It was not claimed that she had made the second payment and a proper notice or demand in writing was shown to have been served upon her by the plaintiff. Some evidence was given on the trial tending to show a verbal extension of the time of payment by the plaintiff. The evidence however was such that the referee could properly find that there was no valid extension of time. The plaintiff was sworn on the trial, and testified that when the second payment became due he had an interview with the defendant who said “ she had no money and could get none." I told herí could not take a bank note. That I had concluded not to let her “have the land, as the second payment was forfeited, and I had a right to take it back. Before I left she wanted to know if she made an arrangement for all the money between then and fall, I would take it and let her have the land. I replied that I presumed that I would only be too glad to do it.” The referee was authorized to believe this statement of the plaintiff, and it failed to show any valid extension of the time of payment. It showed merely a suggestion of defendant as to an alteration óf the contract which she might be able to make. ■ To that suggestion plaintiff answered that he presumed he would only be too glad to do it This was no agreement to extend the time of payment. The question as to whether there was any verbal extension of the time of payment was a question of fact passed on by the learned referee and the evidence is such that we would not be authorized to disturb his conclusion.

We have carefully considered the rulings made by the learned referee on the trial, to which exceptions were- taken by the defendant, and are of the opinion that there was no material error in either of said rulings which requires a reversal of the judgment. The judgment should be affirmed, with costs.

All concur.


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    Annie I. Dawson, as Trustee, etc., Resp’t, v. John D. Parsons, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Appeal—Consent.
    An appeal does not lie from an order entered by consent.
    2. Contempt—Conveyance.
    Where an order, directing a conveyance by a party, is in full force and cannot be appealed from, he is bound, on a proper demand being made and a proper conveyance tendered, to execute the same, and the failure to do so is a contempt.
    3. Same—Covenant. .
    Under such an order, he will net be compelled to execute a conveyance containing a personal covenant, if proper objection is seasonably taken.
    á. Same.
    If he wishes to object to such covenant in the deed, it is his duty to make the objection when the instrument is tendered to him.

      Charles J. Buchanan (Maitheio Hale, of counsel), for app’lt; J. Newton Fiero (Edward J. Meegan, of counsel), for resp’t.
   Putnam, J.

This appeal is taken from a clause of the order made June 13, in this action and from the whole of the order of July 11, 1893. _

_ On the granting of the first order the appellant appeared by counsel, and the order recites that no one objected thereto. We had supposed that it was well settled that an appeal does not lie from an order so entered by consent. Flake v. Van Wagenen, 54 N. Y., 25; Innes v. Purcell, 58 N. Y., 388; Atkinson v. Manks, 1 Cow., 693.

By consent of the defendant an order of the supreme court has been entered providing “that the plaintiff and defendants in this action' and each of them unite with the receiver in the conveyance of said premises upon the completion of the purchase by the purchaser.” This order remains in full force. If the appellant, at special term, had made the proper objections to the order of the provision therein above quoted, which is appealed from, we might consider whether such a provision could have been properly made before the rendition of final judgment. In that case it may be doubted whether, until the rights of the parties were determined by the judgment, the defendant should be compelled to execute a conveyance of his interest in the real estate in question. But no such point was taken at special term. The appellant consented to the order in advance of the judgment. So consenting, as to him, the order should be deemed to have the same force and 'effect as if entered after judgment. It cannot be doubted that by consent such an order can be made as well before as after judgment and with the same force and effect It seems to follow that as an order of the supreme court which appellant thus consented to and hence cannot appeal from, was duly made which is in full force, directing a conveyance by appellant, he was bound, on a proper demand being made and a proper conveyance tendered to execute the same. And the failure to do so was a contempt

It is not clear that defendant should be compelled to execute a conveyance with a convenant contained therein against his own acts or otherwise. But on examining the affidavit of appellant, it does not appear that he made any objection to signing the deed tendered him on the ground of the covenant therein. He objected to joining in any conveyance, stating that he “is unwilling, by joining in any conveyance of the said property to sanction in any way or to confirm the mode by which his interest in the said property has been taken out of his hands; and deponent also respectfully questions the power of the court by order in this action, and compel deponent to execute a conveyance of his property where he has made no contract of sale,' and has expressed his disapproval of the proceedings by which it is proposed to consummate the sale.”

It would therefore appear that the objection to the deed tendered as containing a personal covenant was not made as a ground of refusing to sign the same. If appellant wished to object to the personal covenant contained in the deed; it was his duty to make the objection when the instrument was tendered to him. If he wished more time to examine the papers he should have then so stated. It would appear from the papers before us that he merely declined to sign any deed.

Our conclusion is that the order to which appellant consented has the same force as if made after final judgment, and defendant is bound to obey it; and inasmuch as he does not appear to have objected when the deed was presented to him for signature to the covenant contained therein, but objected to signing any deed, that the order of July 11th, which was, in fact, made for the purpose of enforcing the order of June 13th, was properly granted.

The order does not, however, compel the defendant to sign the deed tendered to him for execution. It directs him to execute that deed or a proper conveyance of his interest in the premises therein described to Amasa J. Parker as receiver. A proper conveyance is one called for by the order of June 13th, and probably may be without covenants.

The order should be affirmed with costs and disbursements.

Mayham, P. J., concurs; Herrick, J. not acting.


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    William C. Randall, App'lt, v. Frank Randall, Resp't.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Appeal—Conflicting evidence.
    The findings of the court below, upon conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment, entered upon the decision of the court, in favor of the defendant.

      William, P. Cantwell, for app’lt; Beckwith, Barnard & Wheeler (G. H. Beckwith, of'counsel), for resp’t.
   Per Curiam.

We are unable to say that the trial judge did not properly exercise the discretion vested in him in regard to costs. The questions in the case were of fact. The evidence was conflicting, and under well settled principles the findings of the court below, rendered on such conflicting evidence, cannot be disturbed. The judge, however,, seems to have made a slight mistake in his calculation as to two items. In the twelfth-finding, page 17, he holds that plaintiff expended, in April, 1880, $35, in March, 1880, $25, and upon one other occasion, $25. It will be seen that in his calculation at page 11 the last above item is omitted, and that the April, 1880, is put at $25 instead of :$35, making in all an error of $35. The judgment should have been larger, therefore, by one-half of that amount and interest, in all amounting to $28.44. If defendant shall stipulate within ten days after the service of a copy of the order herein, that the judgment be increased $28.44 as of the date of the entry thereof, judgment shall be so modified, and as so modified, affirmed, without costs to either party. If defendant fails to so stipulate, judgment reversed, and a new trial granted, costs to abide the event.

All concur.


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    The New York Central & Hudson River Railroad Co. et al., Resp’ts, v. James Flynn et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Common carrier—Construction of act of 1890.
    No preference for the transaction of the business of a common carrier, upon its cars or in its depots or buildings or upon its ground, shall be given by railroad corporations to any one of two or more persons competing in the same business or in the business of transporting property, while having contractual relations with said railroad corporation as a common carrier.
    2. Same—Hackmen.
    Under § 34, chap. 565 of 1890, hackmen of cities and villages have no absolute right to intrude upon and make a stand of the premises of railroad corporations for the purpose of soliciting passengers.

      Walsh & Kelly (Kdwin Countryman, of counsel), for app’lts; Harris & Rudd (Hamilton Harris, of counsel), for resp’ts.
   Putnam, J.

The decision of this case depends upon the construction to be given to the following provision contained in § 34, chapter 565, Laws of 1890, viz.: “ Ro preference for the transaction of the business of a common carrier upon its cars or in its depots or buildings, or upon its grounds, shall be granted by any railroad corporation, to any one of two or more persons, associations or corporations competing in the same business or in the business of transporting property for themselves or others.” The defendants claim that under the statutory provision above quoted, they have the fight to go upon the grounds of plaintiff described in the complaint, for the purpose of soliciting employment in their business as hackmen, of passengers arriving on trains on plaintiff’s road, and that plaintiff cannot exclude them therefrom.

It is clear that the defendants have no right upon plaintiff’s premises unless such a right is conferred by the above quoted statutory provision. They do not claim to go thereon for the purpose of transacting any business with the plaintiff as a common carrier or otherwise. They wish to enter on said premises for the purpose of contracting with passengers leaving plaintiff’s depot. They do not desire to employ plaintiff to carry passengers or freight or to make any contract whatever with it. They wish free access to the premises in question for the transaction of business with other parties. The order from which the appeal is taken was not intended to prevent the defendants from leaving passengers or freight at plaintiff’s depot or from taking passengers or freight therefrom. But it prohibits defendants’ hacks and employes from remaining on plaintiff’s premises—from making such premises a standing ground—for the purpose of soliciting patronage while so engaged in seeking employment on said premises, they having no contractual relations with plaintiff or its passengers. Does the statutory provision above quoted prevent the plaintiff, under the circumstances, from controlling the use of its grounds ? Under a somewhat similar statutory provision, and in a similar case, the supreme court of Massachusetts in Old Colony R. R. Co. v. Tripp, 147 Mass., 35, held the following doctrine: “ The defendant was allowed to use the depot ior any business that he had with the plaintiff. But he had no business to transact with the plaintiff. He had no merchandise or baggage to deliver to plaintiff or to receive from it. His purpose was to use the depot for the purpose of soliciting contracts with incoming passengers for the transportation of their baggage. The railroad company may be under obligation to the passenger to see that he has reasonable facilities for procuring transportation for himself and baggage from the station where his transit ends. What convenience shall be furnished to passengers within the station for that purpose is a matter solely between them and the company. The defendant is a stranger both to the plaintiff and the passengers, and can claim no rights against the plaintiff for the use of its station, either in his own right or in the right of the passengers. * * * The statute in providing that a railroad corporation shall give to all persons equal facilities for the use of its depots, obviously means a use of right. It does not intend to prescribe who shall have the use of the right, but to provide that all who have a right to use it shall be furnished by the' railroad company with equal conveniences. The statute applies only to relations between the railroads as common carriers and their patrons. It does not enact that a license given ‘by a railroad company to a stranger shall be a license for all the world.”

While the question involved is not free from doubt, and the Massachusetts statute differs somewhat from ours, we are inclined to adopt the views above quoted as applicable to this case and as expressing our views thereon. We should regret to be compelled to give any other construction to the statute in question. It would be unfortunate if railroad corporations, as against hackmen, should have no control over their premises. A construction of the statute is to be regretted that would give, in our cities and villages, all the hackmen of the place the absolute right to intrude upon and make a stand of the premises of railroad corporations for the purpose of" soliciting passengers. That, in fact, allows a mob of hackmen around railroad depots and prevents a railroad corporation from adopting proper regulations to protect its passengers from undue solicitation and annoyance when leaving its grounds. See, also, Jinks v. Coleman, 2 Sumner, 221; Barney v. O. B. & H. Steamboat Co., 67 N. Y., 301-303. The meaning of the statutory provision under consideration is, as above suggested, not entirely clear; but we think it should be construed to mean,, that no preference for the transaction of the business of a common carrier upon its cars or in its depots or buildings, or upon its ground, shall be given by railroad corporations to any oñe of two- or more persons competing in the same business or in the business of transporting property, while having contractual relations with said railroad corporation as a common carrier.

Since writing the above we have been referred to the very able and exhaustive opinion of Justice Green in the case of N. Y. C. & H. R. R. R. Co. v. Sheeley et al. (not reported), in which the learned justice reaches a conclusion sustaining an action against hackmen similar to this.

It follows that the order should be affirmed, with costs and disbursements.

Herrick, J., concurs ; Mayham, P. J., not acting.


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    James H. Swart, App’lt, v. Charles Rickard, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. False impiiisonment—Jurisdiction.
    Where the affidavit for a warrant is insufficient to give the justice jurisdiction of the person of the accused, the party causing the arrest under the warrant, is liable in an action for false imprisonment.
    2. Same.
    An allegation, in such affidavit, that the complainant believes, and had cause to believe, that his store was burglarized by the accused, does not establish or tend to establish the charge
    3. Same.
    The reason for such belief, that said parties were about the time prowling around and near the premises, is not the statement of any fact indicating guilt.

      L. F. Fish {R. B. Fish, of counsel), for app’lt; Westbroolc & Borst (Z. 3. Westbroolc, of counsel), for resp’t.
   Putnam, J.

The complaint contains a count for false im-

prisonment and also one for malicious prosecution. On the trial the judge submitted to the jury the issue raised by the pleadings as to malicious prosecution, but held that the plaintiff was not entitled to recover for the alleged false imprisonment and withdrew the issues raised by the pleadings in that regard from the jury. The plaintiff excepted to this ruling of the trial judge, and that exception raises the only question in the case. On the complaint of the defendant plaintiff was arrested and imprisoned on a warrant issued by one Rulison, a justice of the peace of Fultonville, Montgomery county. The following is the affidavit on which tbe warrant was issued:

“ Montgomery County, ss.:

Charles Rickard of said county, being duly sworn, says that on the night of October 24, 1891, at the village of Fultonville, town of G-len, said county, his store was burglarized by breaking the large glass in the front door, and entered and goods taken therefrom, to wit: Two or more revolvers and a quantity of cigars, and deponent believes and has reason to believe that store was broken into and burglarized by James H. Swart and Wallace Van Evera and another, from the fact that said parties were about that time (i. e.) after one o’clock that night prowling around; and near the premises.

“ Wherefore, deponent prays that process issue to arrest the said offenders.

“ Charles Rickard.

Sworn to before me, this 21st) day of November, 1891, j

“ H. ÍL Rulison, J. P.”

St. Rep., Vol. LVI. 48

It is urged by the appellant that this affidavit was insufficient to give the justice jurisdiction of the person of the plaintiff, and that hence defendant, who caused his arrest under the warrant, was liable in an action for false imprisonment. We think the affidavit was insufficient to justify the issuing of the warrant. It sufficiently shows the commission of a crime, but fails to allege any fact showing the guilt of the plaintiff and Yan Evera. The allegation that defendant believes and had reason to believe that his store was burglarized by said parties does not establish or tend to establish the charge. The reason stated by defendant for his belief, that said parties were about the' time prowling around and near said premises, is not a statement of any fact indicating their guilt. At the most, the affidavit shows on the part of defendant a suspicion of, and perhaps, grounds for such suspicion against the plaintiff. The case is not unlike that of Blodget v. Race, 18 Hun, 132.

In that case Justice Bockes says (p. 133): “ But before a warrant can lawfully issue for the arrest of the offender the magistrate must have some evidence of his guilt. Facts and circumstances, stated on information and belief- only, without giving any sufficient grounds on which to base the belief, are insufficient to confer jurisdiction as to the person. The magistrate must have evidence of probable cause, both as to the commission of the offense and the guilt of the offender, before he can have jurisdiction to cause the arrest.” To the same effect see People ex rel. Kingsley v. Pratt, 22 Hun, 300-303; Loomis v. Render, 41 Hun, 268; Devoe v. Davis, 12 W. Dig., 544; Comfort v. Fulton, 39 Barb., 56; Miller v. Brinkerhoff, 4 Denio, 118; Vredenburgh v. Hendricks, 17 Barb., 179. In each of the above cases, as in the case under considera.tion, no facts are stated in the affidavit on which a warrant was issued, showing the guilt of the party accused, and hence the magistrate did not acquire jurisdiction of his person. ,

It must be remembered that when there is proof though slight and insufficient, legally tending to establish all the essential facts and the magistrate erroneously issues a warrant, such process can only be avoided by a direct proceeding to set it aside. Miller v. Brinkerhoff, supra, The cases cited and relied upon by defendant were those where there was some evidence given before the committing magistrate tending to support the charge made, and the magistrate erred in issuing a warrant on-the fact, or on the law. They were not cases like this, where in fact there was no evidence given to sustain the warrant See Hewitt v. Newburger, 66 Hun, 230; 48 St. Rep., 811; Pratt v. Bogardus, 49 Barb., 89; Lewis v. Rose, 6 Lans., 206, and other cases referred to by responnent.

The case of Van Latham v. Libby, was where the defendants appeared before a magistrate and made a complaint, stating the facts truly, which the magistrate erroneously held to constitute a crime and issued a warrant. Facts were stated in the case for the consideration of the magistrate and he erred in holding that they constituted a crime. See Miller v. Adams, 52 N. Y., 413.

We conclude that the plaintiff was entitled to go to the jury on the issues raised in the pleadings as to the false imprisonment, and hence that the exception of plaintiff was well taken. It follows that the judgment should be reversed and a new trial granted, costs to abide the event.

Mayham, P. J., concurs; Herrick, J., dissenting.