author: Daniels, J.: Daniels, J.:

text:
    THE HAVEMEYER SUGAR REFINING COMPANY, Respondent, v. ISAAC W. TAUSSIG and Another, Appellants. BENJAMIN H. HOWELL and Another, Respondents, v. ISAAC W. TAUSSIG and Another, Appellants.

      Arrest — application for discha/rge — when it should be granted under section 572 of the Code of Ovott Procedure, as amended by section 6 of chapter 672 of 1886 — when unreasonable delay must be shown.

    On October 11, 1883, the defendants in this action were arrested under an order of arrest and held to bail in the sum of $9,000, and thereafter discharged upon giving an undertaking, with sureties, in the form prescribed by subdivision 3 of section 575 of the Code of Civil Procedure. The issues in the action having been tried and a verdict recovered against the defendants a judgment was, on December 24, 1884, entered against them. In February, 1887, no execution having been issued upon the judgment, an application was made for the release of the defendants and the discharge of their sureties

      Held, that the court erred in denying the application, as the defendants were entitled to their discharge under the provision of section 572 of the Code of Civil Procedure, as enlarged and amended by section 6 of chapter 672 of the Laws of 1886.

      Wliere no judgment has been entered the motion for a discharge must he made under the first part of section 572 of the Code of Civil Procedure, as amended by chapter 672 of 1886, and will not be successful unless the fact that the plaintiff has unreasonably delayed the trial of the action be affirmatively established by the applicant.
    Appeal from orders made at a Special Term denying motions to discharge the defendants from arrest and the sureties from an undertaking given in their behalf.
    In the first ease a judgment had been entered; in the second it had not.

      Abbett da Fuller, for the appellants.

      Theron G. Strong and Joseph Funzmcm, for the respondents.
   Daniels, J.:

The defendants were arrested in this action under an order of arrest and held to bail in the sum of $9,000, on the 11th of October, 1883. They were discharged upon giving an undertaking with sureties in the form prescribed by subdivision 3 of section 575 of the Code of Civil Procedure. The issue in the. action was tried and a verdict' recovered against the defendants and judgment entered upon it on the 24th of December, 1884, and in February, 1887, no execution having been issued upon the judgment, this application was made for the release of the defendants and the discharge of their sureties. Whether it should be allowed to be successful depends upon the construction which section 6 of chapter 672 of the Laws of 1886, should receive. This section amended and materially enlarged section 572 of the Code of Civil Procedure. It is declared, except in a case where an order of arrest can be granted only by the court, “ if the plaintiff * * * neglects to issue execution against the person of the defendant, within ten days after the return of the execution against the property, and in any event neglects to issue the same within three months after the entry of the judgment * * * the defendant must, upon his application, made upon notice to the plaintiff, be discharged from custody if he has already been taken under the mandate against him in such action.” The pivotal point in the case rests upon the construction required to be given to so much of the section as has been quoted. The defendant’s counsel has insisted that it includes the case of a person wbo bas been arrested under an order, not within the exception contained in the first part of the section, and who may have been discharged from such arrest by giving the undertaking which has already been mentioned. While on the part of the plaintiff it has been insisted that the defendants must remain in actual custody, or be discharged only upon the limits, to entitle them to invoke in their favor the authority of this section of the statute. But this position does not appear to have been well taken. For both the ease of a person who is in actual custody and imprisonment, and the case of a defendant who may be discharged from an order of arrest by giving an undertaking for the limits, are contained and provided for in section 111 of the Code of Civil Procedure, as that has been amended by section 5 of this chapter of the Laws of 1886. It consequently follows that to entitle the defendants to the benefit of section 572 as it has been amended, it is not requisite that he shall be in fact imprisoned within the walls of the jail, or that he shall have been discharged from arrest, by giving a bond or undertaking, for the jail liberties.

The legislature must have intended, by section 572, as it has been amended, to include some other class of cases than those provided for by section 111, as that was amended in 1886; and the only other class of cases that can well be found is that where the defendants have been arrested under an order of arrest, and discharged by giving the undertaking executed and delivered in this instance. If the defendants were actually imprisoned under an order of arrest or by virtue of an execution, or because of their surrender by their bail, the case would be controlled by section 111. That has been made entirely complete for all cases of actual or close imprisonment under orders of arrest and execution, and for. all cases where the defendants may be at large within the liberties of the jail, upon a bond or undertaking given for that object.

It, therefore, results that if these parts of section 572, as amended, do not include the case of defendants arrested under an order and discharged under the form of undertaking given in this case, it can have no intelligible subject-matter to which it may be made applicable,, or on which it can operate; and that it must be applicable to this class of cases arises out of the fact that although the defendant is nominally at large by reason of the undertaking given in his behalf, he is still not discharged from custody, for his sureties may at any time, under the authority of sections 592, 593 of the Code of Civil Procedure, themselves take him into actual custody and surrender him to the sheriff, and upon such surrender he is to be detained and imprisoned, unless bail shall again be given in his behalf, either for the limits or in the form in which it was obtained for these defendants, when they were taken under the order of arrest. Having this authority over the defendants, they continued subject to the custody and control of the sureties in the undertaking.

They cannot be said to have been set at liberty and to have been discharged from the order of arrest as long as the sureties have been delegated this authority to rearrest and surrender them at any time when they may consider that to be proper. They are still, while subjected to this liability, in custody, in a general sense, and that is as much as this section has required. It is true it is not the custody of the .sheriff or of the court, but it is the custody of the sureties 'who have become bail, and it was the intention of this section that they should remain subject to no such control beyond the period of three months after the entry of the judgment in the action against them.

The other direction contained in the same section further sustains this construction. Por it has been there provided that the defendants shall be relieved from imprisonment, even though they have not been imprisoned in the action by virtue of the order of arrest, after the expiration of three months from the entry of the judgment, unless reasonable cause is shown why the application should not be granted. This direction includes the case of a defendant who has not been arrested at all, and discloses the intention of ,the act to be not only to entitle the defendants to be discharged from liability to an arrest under execution, unless the execution is issued within three months after the entry of the judgment where they have been taken into custody under a mandate issued in the action, but also to authorize the court to relieve them from suspense or the apprehension of imprisonment by execution after the lapse of the same period, where there has been no arrest or imprisonment, unless reasonable cause is shown why the application should not be granted. The defendants brought themselves within this section of the statute, for the judgment in the action had been recovered and entered more than two years before notice was given that the application to relieve them from further liability to imprisonment was made. It has been suggested, although the fact does not appear in the case, that an appeal has been taken from the judgment, which is still pending, and for that reason an execution to enforce it has not been issued against the defendants. But such an appeal, without staying the proceedings in the action, will not be attended with the effect of enlarging the time within which under this section of the statute the execution must be issued against the body or prevent the defendants from obtaining their discharge from its liability.

The order in the case should be reversed, but as the point is new and the statute somewhat obscure, without costs, and an order entered relieving the defendants from the risk of imprisonment and discharging their sureties.

Yan Brunt, P. J., and Brady, J., concurred.

Order reversed, without costs, and order entered as directed in opinion.

The following opinion was delivered in the second above entitled action.

Daniels, J.:

The motion to discharge the same defendants from custody in the action of Benjamin Howell and others, depended upon a different state of facts from those in the suit of the Havemever Sugar Refining Company.

In this action no judgment has been recovered, and the only ground or authority that has been provided for their discharge is that contained in the first part of section 572 of the Code as it .has been amended by chapter 672 of the Laws of 1886. That permits the defendants to be discharged if the plaintiff unreasonably delays the trial of the action; and while it has been stated that the defendants were discharged from arrest by giving the undertaking on the 11th of October, 1883, no fact has been set forth from which it can be assumed to have been proven that tile plaintiff has unreasonably delayed the trial of the action. That is a fact to be affirmatively established in support of the application before it is allowed to prove successful. It was not so established in the application made in this case, and the order denying it was for that reason authorized, and it should be affirmed, but, as the other has already been directed to be, without costs.

Yan Brunt, P. J., and Brady, J., concurred.

Order affirmed, without costs.


source: Caselaw Access Project

author: Daniels, J.: Brady, J.:

license: Public Domain

text:
    ROBERT J. DEAN and WILLIAM WILLS, Appellants, v. MARSHALL S. DRIGGS, Respondent.

      Warehousemen — liabilittfvf, for issuing receipts in violation of the provisions of chapter 326 of 1858, as amended by chapter 440 of 1866 — the liability does not depend on proof that the violation was willful — what proof will justify a recovery of damages by the person receiving the receipts.

    On March twenty-eighth the defendant, a warehouseman, signed two receipts, stating that he had received from Max Von Angern, to be held “ on storage and to be delivered to his order on return of this receipt and payment of storage and charges, fifteen hundred barrels Portland cement,” which receipts were deposited with a bank as security for a note made by Von Angern. The plaintiffs guaranteed the payment of the note, upon the transfer of the note and of the right, title and interest of the bank in the collateral security, to them, if requested at the time of such payment. The note not being paid by Von Angern, the plaintiffs, at the request of the bank, paid it and received the warehouse receipts.
    Upon the trial of this action evidence was given by witnesses tending to show that the article they found in store upon the defendant’s premises, and which they there examined, was not Portland cement.

      Held, that the court erred in dismissing the complaint upon the ground that the evidence was insufficient to allow the plaintiff to maintain the action.
    That a cause of action for a violation of the provisions of chapter 326 of 1858, as amended by chapter 440 of 1866 — prohibiting any warehouseman from issuing any receipt for or upon any goods, wares or merchandise, to any person purporting to be tbe owner thereof, unless such goods, wares or merchandise shall have been actually received, and shall then be in the store or on the premises of the said warehouseman — was given to the plaintiffs by the concluding portion of section 7 of the said act, providing that “ all and every person or persons aggrieved by the violation of any of the provisions of said act, as hereinbefore mentioned, may have and maintain an action at law against the person or persons violating any of tlie provisions of said, act, as hereby amended, to recover all damages, immediate or consequential, which he or they may have sustained by reason of any such violation, as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted, as hereinbefore mentioned, or not.”
    That it was not necessary to prove that the defendant had willfully violated the provisions of the act, but only that he had in fact violated them.
    That the plaintiffs were' not required to take and sell the property before bringing the action, but were entitled to recover the damages sustained by them on proving that the property was of no value over and above the charges of the defendant for keeping it in store, and that the person in whose name the ■ receipts were issued was insolvent.
    Appeal from a judgment entered upon tbe dismissal of tbe • plaintiff’s complaint.

      Charles Blandy, for tbe appellants.

      John Berry, for the respondent.
   Daniels, J.:

The defendant, on the 28th of March, 1885, issued two warehouse receipts for Portland cement, each being, except as to the amount and the vessels from which it was received, in the same form. By the receipt for the larger amount of 1,500 barrels it was stated as follows:

“M. S. Drigg’s & Co.’s “Warehouses, 1
“No. 1394. “New Yoee, March 28, 1885., )
Marked. 1500 Bbls. “ Received from Max Yon Angern, ex-Grimaldo, in store No. 278-280 South street, to be held by us on storage, and to be delivered to his order on return of this receipt and payment of storage and charges, fifteen hundred bbls. Portland cement. • ; Storage per month 4. Labor.
“M. S. DRIGGS & CO.”

These receipts were deposited as security with the Chemical National Bank for a note made by Max Yon Angern, the person ■ named in them, for the sum of $3,500, The plaintiffs guaranteed the payment of the note upon the transfer to them, or either of them, of the note itself, and all the right, title and interest of the.' han Ir in and to the collateral securities specified or referred to therein, if requested at the time of such payment. The note was not paid at its maturity, and the plaintiffs, at the request of the bank, made payment of it and received the warehouse receipts.

The evidence given at the trial, as it was obtained from at least two of the witnesses, was that the article they found in store, and which they examined upon the defendant’s premises, was not Portland cement. That, in the trade, includes cement having the quality of setting or hardening under water. Other evidence was given indicating that it might only, or partly, have been cement of this description, which had become hardened and useless by reason of its exposure to water or moisture. The court, however, deeming the evidence to be insufficient to allow the plaintiff to maintain the action, at the close of their case dismissed the suit, and to that direction an exception was taken. Whether this direction was warranted by the law must mainly if not wholly, depend upon the construction which should be placed upon chapter 326 of the Laws of 1858, as that has been amended by chapter 440 of the Laws of 1866. Por if the case, upon so much of the evidence as tended to prove that the article received and held in store by the defendant was not Portland cement, was such as to entitle the jury to find that fact in the plaintiff’s favor, then the receipts issued by the defendant were untruthful and a violation' of the first section of these acts. By that section it has been declared that no warehouseman, wharfinger, public or private inspector, or custodian of propperty or other person shall issue any receipt, acceptance of an order or other voucher, for or upon any goods, wares, merchandise, provisions, grain, flour, or other produce or commodity, to any person or persons purporting to be the owner or owners thereof, or entitled or claiming to receive the same unless such goods, wares, merchandise, provisions, grain, flour or other commodity shall have been actually received into the store or upon the premises of such warehouseman, wharfinger, inspector, custodian or other person, and shall be in store or on the said premises as aforesaid, and under his control at the time of issuing sucn receipt, acceptance or voucher. And if this article was not Portland cement then the defendant did issue warehouse receipts in violation of this section of the statute, for it has been expressly declared by it that no such receipts should be issued unless the goods, wares, etc., shall have been actually received into the store or upon the premises of the person issuing it.

The law has, therefore, placed upon the person issuing the receipt the responsibility of having the property upon his premises, or in his possession as a warehouseman, before it will permit the receipt to be issued. And if the defendant did not have the property mentioned in the receipts, in this manner, at the time, he violated this section of the act in making and delivering the receipts. And by section 6 of the same act it has been further provided that the receipts may be transferred by indorsement, and any person receiving such a transfer of them shall be deemed and taken to be the owner of the goods, wares and merchandise therein specified, etc. By section 7 of the same act it has been further declared that “ any warehouseman, wharfinger, inspector, custodian or other person who shall willfully violate any of the foregoing provisions of the said act as hereby amended, shall be deemed guilty of a misdemeanor, and upon indictment and conviction shall be fined in any sum not exceeding $1,000, or imprisonment not exceeding one year, or by both such fine and imprisonment, and all and every person or persons aggrieved by the violation of any of the provisions of said act, as hereinbefore mentioned, may have and maintain an action at law against the person or persons violating any of the provisions of said act, as hereby amended, to recover all damages, immediate or consequential, which he or they may have sustained by reason of any such violation as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted as hereinbefore mentioned, or not.” And it is under the latter branch of this section that the plaintiffs have mainly derived their right to maintain this action against the defendant. But in answer to that position it has been objected, in his behalf, that this section imposed no liability upon him unless he willfully violated the first section of the act of 1858, as it was amended in 1866. That objection has been placed upon the first part of the section making it a misdemeanor, punishable by fine and imprisonment for any warehouseman, wharfinger, etc., to willfully violate the preceding provisions of the law. But after completing the enactment declaratory of the offense, it has then proceeded to declare that every person aggrieved by the violation of any of its provisions, may have, and maintain an action against the person or persons violating them, to recover all damages, immediate or consequential, sustained by such violation. And to create this right of action the qualification of a willful violation has been omitted.

This part of the act creating a right of action is separate and distinct from that which is declaratory of the criminal offenses. The former could not, on general principles, very well be committed without intentional wrong on the part of the person accused, and for that reason a willful violation of the act was made a necessary attribute of the crime, while that could not be :a necessary or essential circumstance for the creation of a mere civil liability for damages. If the element of a willful violation should be held to be necessary to a right of action for damages, then the preceding provisions of the law would, in the large majority of cases, be wholly nugatory. The language in which they have been framed justify no such supposition as that the legislature intended there should be a willful violation in order to create a liability for damages under these sections of the act. They are, on the contrary, severally complete and intelligently expressed by themselves, and they have as distinctly prohibited the acts which they were intended to prevent, as that could very well be done by the use of language. In each of the prohibitory sections preceding section 7, it has been clearly declared what shall not be done, and by the first section, which includes these receipts, issuing them- for Portland cement, never received by the defendant, was directly forbidden. That violated the provisions of the section, and by the latter branch of section 7, whenever such a violation shall take place, there the party aggrieved has been vested with the right of action for the recovery of his damages. Two classes of cases are very clearly contemplated — one criminal and the other civil — and to create a ground of action for damages all that has been prescribed is that the preceding provisions of the act shall have- been violated to the injury or damage of the person complaining of it. This section is clearly divisible, in no manner subjecting the right of action for damages to the willful violation of the law, but making it dependent only on the circumstance that it shall have been violated to the injury or damage of an aggrieved party. The object of the acts was to correct irregularities which had previously arisen in the course ' of this business, and to prevent warehouse receipts from being issued ■until the property mentioned in them reached the possession of the party issuing the receipts.

To some extent at least, a different practice had prevailed in the business, and persons relying upon and dealing in these receipts were liable to be subjected to losses by reason of their inability afterwards to obtain the property. What the legislature designed by these laws was the abrogation of that practice, and to render it certain that when warehouse receipts shall be issued the property mentioned in them must previously be placed in the custody of ■the warehouseman. If he could only be made liable in damages for willfully issuing an untruthful receipt, then there was no necessity whatever for this legislation, for such a liability would plainly exist without it.

Even the law, as it previously existed, was more provident of the ■rights of the person purchasing or loaning money on the faith of such receipts if the right of action must now depend upon a willful violation of the statute, for that would not permit the party making them against such dealers to protect himself by asserting that the property itself had never come to hand. (Meyer v. Peck, 28 N. Y., 590, 598, 599; Armour v. Michigan Central R. R. Co., 65 id., 111; Van Santen v. Standard Oil Co., 81 id., 171.)

. It was to make the law still more complete and effectual than it had been previously understood to be that these statutes were enacted, and it will wholly deprive them of this effect to so construe them as to supply redress under their provisions only when the restraints of the law shall be willfully violated. In all civil cases such a construction would render these laws practically of no effect. Dealers in this class of securities would be much worse off in relying upon their provisions, if they should be so construed, than they were under the rules previously administered and enforced by the courts. Such legislation, so far as indemnity to injured - or defrauded parties might be included, would be entirely useless, and it is not to be presumed that the legislature would submit to the farce of their enactment, when by their own declaration they rendered the preceding provisions of the law of no effect m the way of redressing private wrongs.

The cases of Yenni v. McNamee (45 N. Y., 614), and Insurance Company v. Kiger (103 U. S., 352), sustain no such construction of the statutes as will exempt the defendant from liability. In neither of them did this question either incidentally or directly arise. The first was held not to be • within their provisions, while the second proceeded upon the controlling fact that the property itself, which had been mentioned in the receipt, belonged to a third person and was taken out of the possession of the warehouseman by legal proceedings. They can have no weight or effect in the decision of this case, for it was proved,-, in part at least, that the law was violated by the issuing of these receipts, when in fact, the defendant at the time did not have the Portland cement mentioned in them in his possession or upon his premises, and a liability was created against him in the plaintiff’s favor if the jury shall be satisfied that this was the truth of the case.

The statute has not made the plaintiff’s right of action dependent upon their first taking and selling the property. The proof was that it was of no value over and above the charges of the defendant for keeping it in store, and the person in whose name the receipts were issued was proven to be insolvent. If the plaintiffs can maintain the action, no difficulty, therefore, stands in the way of proof being given substantiating their damages, and all that the law requires to create a right of action is that the receipts shall •have been falsely issued and the persons dealing with them upon the faith of their truth shall have been injured and sustained loss.

The judgment should be reversed and a new trial ordered, with costs to abide event.

Brady, J.:

I agree to the reversal of the judgment herein upon the ground that there was some evidence tending to prove that the receipt was false in stating that Portland cement had been received, the article received not being such in fact. The testimony is subject to criticism, but, nevertheless, it was, I think, sufficient to go to the jury.

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


author: Daniels, J.:

text:
    JOHN HONE, as Executor, etc., of MARIA A. De PEYSTER, Deceased, Appellant, v. JOHN WATTS De PEYSTER, Individually and as Executor, etc., of FREDERIC De PEYSTER, Deceased, Respondent.

      Costs — to what extent an executor, beneficially interested in the result, will be held personally liable therefor.

    This action was brought by the plaintiff, as executor, after all debts had been paid, solely to recover a demand on property out of which, in case of a successful result, he would, under the will, have received one-half of the amount. Having been unsuccessful he was, upon the application of the defendant, charged personally with the costs upon the ground that he was beneficially interested in the result.

      Held, that the order should be modified by requiring him to pay only one-half of the costs, and as so modified affirmed.

      Brockett v. Bush (18 Abb. Pr., 337); Holdridge v. Scott (1 Lans., 303); Butler v. Boston, etc., Bailroad Company (24 Hun, 99); Bedell v. Bournes (29 id., 589) followed.
    Appeal from an order made at Special Term, directing the payment of the costs of a litigation between these parties by the plaintiff personally.

      G. H. Crcmford, for the appellant.

      G. 3. Brewster, for the respondent.
   Daniels, J.:

The plaintiff was beneficially interested to the extent of one-half the subject-matter in controversy between himself and the defendant in the action, the costs of which he has been directed to pay. There were no debts remaining unpaid against him as executor, and the sole object of the action was the recovery of the demands or property out of which, in case of a successful result, he would, under the will, have received one-half the amount.' For that reason, and also upon the charge that the action was- brought by him in his character as executor in bad faith, the application. was made .to charge him personally with the costs of the litigation in which he had proved unsuccessful. He denied having brought the suit in bad faith, but stated, on -the other hand, that it was brought in good faith, under the advice of counsel, after a full and detailed statement of the facts; and as there was no further evidence bearing upon the subject of his motive, his answer made in this manner completely repelled- and removed the charge contained in the petition, which was máde only on the belief of the petitioner, and removed the case, therefore, from the operation and effect of section .3246 of the Code of .Civil Procedure. But as he was the. person who was individually to .profit by the litigation to. the extent of one-half the proceeds, if it had been successful, he is justly chargeable, 'personally, with á like proportion of the costs of the action brought by him and in which he was defeated. The cases of Brockett v. Bush (18 Abb. Pr., 337); Holdridge v. Scott (1 Lans., 303); Butler v. Boston, etc., Railroad Company (24 Hun, 99); Bedell v. Barnes (29 id., 589), substantially sustain the principle that where an executor unsuccessfully prosecutes an action in his representative capacity for the maintenance or vindication of his own individual • rights, that he should be charged with the costs of the litigation. And under this principle the executor should pay one-half the costs of. this unsuccessful action. As to the other half, he rightly prosecuted the. suit in his representative capacity for another person as the beneficiary in the litigation. In that half he had no interest whatever. But if it had been recovered, it would have been solely and wholly the property of another person, for whom it was his duty to act as executor. As to the costs represented by that part of the litigation, the executor did no more than his duty, and, as he did not act in bad faith, he is not liable to be charged with that part of the expense of the litigation.

. The order accordingly should be modified by requiring Mm to .pay one-half of the costs of the litigation mentioned in the petition instead of all the costs, and, as so modified, it should be affirmed, without costs of the appeal.

Van Brunt, P. J., and Brady, J., concurred.

Order modified as directed in opinion, and affirmed as modified, without costs of appeal.


text:
    SELIGMAN TRIER and ABRAHAM S. TRIER, Appellants, v. EDWARD HERMANN, MOSES HERMANN and DAVID S. TUSKA, Respondents.

      Practice — a judgment entered upon offer and acceptance — when it wül not beset aside because not entered by confession to avoid compliance with the requirement of the law regulating its entry by confession.

    This court has no authority to vacate a prior judgment entered on the service of a summons and complaint, and an offer of judgment and the acceptance of ,the offer, where the only reason assigned for its so doing is that the parties preferred to recover the judgment hy action instead of hy confession to avoid compliance with what the law had prescribed to render a judgment regular when entered upon confession.
    Appeal from an interlocutory judgment sustaining a demurrer interposed to tlie plaintiffs’ complaint. ' "

      Blumensteil dé JELirsoh, for the appellants.

      George H. Yeaman, for the respondents.
   Daniels, J.:

The object of this action was to vacate or annul a prior judgment recovered in favor of David S. Tuska against the defendants Hermann. The plaintiffs recovered two judgments against the same defendants upon which they issued executions, but were unable to obtain satisfaction as long as the preceding judgment recovered by David S. Tuska against them stood in the way. His judgment was entered upon an offer served on the same day as the complaint was served in the suit of David S. Tuska against Edward and Moses H. Hermann. The offer was accepted, and the judgment accordingly entered. The proceedings in that action were entirely regular, as they were authorized by sections 738 and 740 of the Code of Civil Procedure.

The plaintiff in this action assailed the judgment, however, as invalid, under the allegation that the object of entering it on the offer and acceptance was to evade the observance of the statutory requirements made for the entry of judgments by confession. There was no impeachment of the indebtedness upon which the prior judgment had been recovered; neither was it alleged that it had been collusively or fraudulently entered- '■ The complaint in the preceding action alleged that the debtors,* the (defendants, made their promissory note, on the day preceding the commencement of the suit, payable to Morris Tuska or order, on demand, for the sum of $3,500, for value received, and that Morris Tuska indorsed and delivered the note to' the plaintiff; that he had demanded payment of the amount, which the debtors failed to make. It was further alleged that the plaintiff had loaned and advanced to the same defendants, at their request, $2,000, on which the sum of $1,500 had been paid, leaving a balance of $500, with interest, unpaid, and demanded judgment for these amounts. This copiplaint was verified, and it was to permit judgment to be recovered in accordance with this statement of the facts that the offer was served upon which the judgment was entered. The main fact upon which reliance has been placed in support of this action to vacate this preceding judgment is that it was recovered by suit instead of by confession, to avoid compliance with what the law had prescribed to render a judgment regular when entered upon confession.

This was not sufficient, under any of the authorities which have been referred to, to entitle the plaintiffs, as subsequent judgment creditors, to maintain this action ; for even if the plaintiff in the fii'st judgment brought his action upon the indebtedness to recover his judgment by suit and not by confession to avoid or evade the provisions of the statute regulating the proceedings through which judgment might be confessed, that of itself would not render the judgment so obtained either fraudulent or collusive, and neither of the authorities which have been referred to in support of the action sustain any other view. But it is plainly intimated in each of them that the judgment must be collusive or fraudulent before it can be set aside where it has been recovered in this manner. Such was the conclusion of the court in Ross v. Bridge (24 How., 163), and Beards v. Wheeler (11 Hun, 539) is to the same effect. The case of Moses v. McDivitt (88 N. Y., 62) in no manner considered this point. There the only question was whether the judgment having been recovered in this manner, to authorize and protect a usurious transaction, should afterwards exclude the defense of usury, which the court held that it could not do. No authority exists wbicb has been discovered authorizing the court to vacate a prior judgment on the service of a summons and complaint and an offer of judgment and the acceptance of the offer, for the sole reason that the proceedings were taken in that manner, as being preferable to those provided for the recovery of judgments by confession. The complaint in that action stated all that it was required to set forth, and present two legal causes of action. There was no deficiency in it in any respect, and so long as the defendants were willing to permit judgment to be entered against them as it was demanded in the complaint, and the indebtedness has in no manner been impeached, the court was not authorized in this action to vacate or set aside that judgment. The judgment from which the appeal has been taken should, therefore, be affirmed.

Van Brunt, P. J., and Brady, J., concurred.

Judgment affirmed.


text:
    YAMATO TRADING COMPANY, Appellant, v. LEO W. HOEXTER, Respondent, Impleaded, etc.

      Costs — not allowed, as a matter of course, to cm infant defendant in w7ios_e favor a verdict is directed on proof of infancy — costs should not be allowed to an infant escaping from a partnersTiip liability by pleading infancy.

    Upon the trial of this action, brought by the plaintifl: to recover for goods sold to the defendants, composing the firm of A. Hoexter & Co., a verdict was directed in favor of the defendant Leo, upon the ground alleged and proved that he was an infant, and a judgment for costs and an extra allowance was also entered in his favor.

      Held, that, in so far as it awarded costs and an extra allowance, it should be reversed.
    That, under section 3239 of the Code of Civil Procedure, he was not entitled to costs, as a matter of course, but that their allowance depended upon a special application to the court by which costs could be withheld or allowed according to its sound discretion.
    That where a person, who is engaged in business as a copartner with another, and is ostensibly competent to carry it on, incurs in form the usual liability appertaining to it, and escapes that liability by pleading his infancy, it is not a just exercise of discretion to allow him to recovei costs after having enjoyed the advantages of the purchase of property by the firm.

      • Appeal from a judgment entered upon the verdict of a jury in favor of the defendant, directed by the court, and from an order awarding him seventy-five dollars extra allowance and costs.

      Alfred Taylor, for the appellant.

      Blumensteil & Hirsoh, for the respondent.
   Daniels, J.:

The action was brought to recover for goods sold and delivered by the plaintiff to the firm of A. Hoexter & Company. The defendant, by his answer, admitted himself to be a partner with Augustus Hoexter, and also with Henry W. Strauss, who was a special partner in the firm. But as a defense to his liability for the price of the goods he alleged in his behalf that he was a minor under the age of twenty-one years, and that fact was proved upon the trial by evidence justifying the court in directing a verdict in his favor. As to the other general partner, a verdict was recovered against him for the price of the goods. But costs, together with an allowance, were adjusted and recovered by the judgment in favor of the defendant Leo W. Hoexter. In his defense he appeared by attorney and not by guardian, as that was required to be done in the regular course of an action against him as an infant. But so far as judgment was recovered by him relieving him from liability upon the plaintiff’s demand, it cannot be disturbed, although irregularly obtained. But under section 3229 of the Code of Civil Procedure he was not entitled to costs as a matter of course, but that depended upon a special application to the court in which costs could be withheld or allowed according to its sound discretion. But where a person who is engaged in business as a co-partner with another, and is ostensibly competent to carry it on, incurs in form the usual liabilities appertaining to it, and escapes that liability by his infancy, it does not seem to be a just exercise of discretion to allow him to recover costs after having enjoyed the advantages of the purchase of the property. While infancy was a legal defense to the action, its successful interposition was not entitled to be rewarded in this manner. A person in trade with another as a co-partner is held out as competent to engage in and transact the business appertaining to the firm. If by reason of his immature years he is not in that condition, and avoids the firm indebtedness by means of that eircumstance, fair dealing and a reasonable execution of tbe law require that he should be satisfied with that measure of success without burdening the party with whom he and his partner have dealt, by loading it with the expenses of the litigation required to ascertain the truth of the fact relied upon to exonerate such debtor from liability. It was a fact peculiarly within the knowledge of this defendant and the members of his family, and of which the plaintiff and its agents do not appear to have been aware. • And it did no more than the circumstances required, in putting the defendant to proof of his inability to bind himself by reason of his infancy.

So far as the judgment awards costs, and the order directed an additional allowance they should be reversed, and, as modified in that manner the residue of the judgment should be affirmed, without costs of the appeal to either party.

Yan Brunt, P. J., and Brady, J., concurred.

Judgment modified, as directed in opinion, and affirmed as modified, without costs to either party.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. NATHANIEL WATERBURY, Respondent.

      Penalty for a violation of the act prohibiting the sale of oleomargan'ine — the right to bring an action to recover it does not depend upon a conviction having been Jii'st had in a criminal action — 1885, chap. 183, sea. 7, as amended by chapter 458 of 1885.
    Upon the trial of this action, brought to recover a penalty of $500 for a violation of section 7 of chapter 183 of 1885, as amended by chapter 458 of the same year (forbidding the sale of oleomargarine), the complaint was dismissed upon the admission of the plaintiff that the defendant had not been tried or convicted in a criminal action for the violation of the statute mentioned in the complaint, the court holding that it was required to dismiss the complaint by the language used in sections 7 and 19 of the said act.

      Held, that it erred in so doing.
    That the law had provided for the prosecution and punishment of the offender by indictment,' and, in addition to that liability, it had declared tha( he should forfeit and pay a fixed penalty of .$500; these punishments being entirely separate and distinct.
    That the two proceedings, if not concurrent, are entirely independent, and one may be prosecuted without resorting to the other.

      Appeal from a judgment dismissing the plaintiffs complaint at the circuit.

      JEdwa/rd B. Thomas, for the appellant.

      William G. Ohoate, for the respondent.
   Daniels, J.:

The action was brought to recover the penalty of $500, given by section 19 of chapter 183 of the Laws of 1885, for violating section 7 of that act, as it was afterwards amended by chapter 458 of the Laws of the same year. In the opening of the case by the plaintiffs counsel a state of facts was proposed to be proved which would establish a violation of section 7 of chapter 458 of the Laws of 1885, by the defendant.

This violation was stated to consist in the fact that the defendant had in his possession a number of pounds of an article, substancé, product, manufacture and compound which was not butter, the product of the dairy, and was not butter made from unadulterated milk or cream, but was a manufactured oleaginous substance, not produced from pure unadulterated milk or cream, or from milk or cream; that the same had been made, rendered and manufactured out of some animal fats or animal or vegetable oils not produced from unadulterated milk or cream from the same, in imitation and semblance of natural butter produced from pure unadulterated milk or cream of the same, and by mixing, compounding with and adding to a small quantity and proportion of milk, cream or butter some animal fats, or animal or vegetable oils not produced from milk or cream, with design and intent to render, make and produce an article, substance and human food in imitation and semblance of natural butter; and that such article had been and was colored with some coloring matter whereby such article, substance, product, manufacture and compound was made to resemble butter, the product of the dairy, and was so colored thereby in semblance of and to resemble butter.

We shall prove that the same was an imitation and had the semblance of and resembled natural butter, the product of the dairy, and natural butter produced from pure unadulterated milk or cream of the same, and was not in process of manufacture on April, 30, 1885, the date of the passage of chapter 183 of the Laws of 1885, nor on June 9, 1885, the date of the passage of chapter 458 of the Laws of 1885, which amends such chapter 183, and had not been manufactured on June 9, 1885.

And it was further said that we shall also prove that the defendant, at the time of having the same in his possession, well knew that it had been and was so manufactured, rendered and colored, and all the facts I have before stated; and that the defendant, on said 22d day of July, 1885, at such store and building in said city, county and State, in violation of such statutes, kept the said quantity of said article, substance, product, manufacture and compound for sale, and offered it and a number of pounds thereof for sale to one Thomas C. Du Bois, of this city, and to other persons, and sold fifty-seven pounds thereof to Mr. Du Bois, and a number of pounds to other persons. We shall also prove that the said article, substance, product, manufacture and compound was so had by this defendant in his possession, kept for sale, offered for sale and sold as I have before stated.

When this proposed proof was in this manner offered to be made upon the trial, the objection was taken on behalf of the defendant that the action could not be maintained, because he had not first been convicted in a criminal action before this suit had been instituted. It was thereupon conceded, on behalf of the plaintiff, that the defendant had not been tried or convicted in a criminal action for the violation of the statute mentioned in the complaint, and the court, upon that concession, dismissed the complaint, to which the plaintiff’s counsel excepted. This dismissal was considered to be justified by the construction held to be proper for sections 7 and 19 of chapter 183 of the Laws of 1885. By the earlier of these sections it has been provided that whoever violates the provisions of this section shall be guilty of a misdemeanor, and be punished by a fine of not less than two hundred dollars nor more than five hundred dollars, or not less than six months’ or more than one-year’s imprisonment for the first offense, and by imprisonment for one year for each subsequent offense.” It was further provided by section 19 that “ if any person shall, by himself or another, violate any of the provisions of sections one, two, three, four or five of this act, or knowingly suffer a violation thereof by his agent, or in any building or room occupied by him, he shall, in addition to the fines and punishments therein prescribed, for each offense forfeit and pay a fixed penalty of one hundred dollars. If any person, by himself or another, shall violate any of the provisions of sections six, seven or eight of this act, he shall, in addition to the fines and penalties herein prescribed for each offense, forfeit and pay a fixed penalty of five hundred dollars. Such penalties shall be recovered, with costs, in any court in this State having jurisdiction thereof, in an1 action to be prosecuted by the dairy commissioner or any of his assistants, in the name of the people of the State of New York.”

But neither this nor the preceding section contains anything rendering an action for the penalty prescribed dependent upon the fact that the defendant shall have been indicted, convicted and punished for a misdemeanor before the action for its recovery can legally be commenced. The law contains no evidence of the existence of any such intention, but it has provided for the prosecution and punishment of the offender by indictment, and in addition to that liability, it has been declared that he shall forfeit and pay a fixed penalty of $500. These punishments are entirely separate and distinct. The appropriate proceedings to carry the provisions relating to them into effect are entirely independent of each other. One is to be by indictment, the other by an action for the sum of money in the name of the people, and the prosecution of neither is made in any respect dependent or conditional upon its being preceded by the other. And there is nothing contained in the act which would justify the imposition of such a restriction upon the remedies provided for its violation. But, on the contrary, the prosecutor is left at liberty to bring the one or the other, as may be most consistent with the circumstances expected to be proved. This has been the course of proceeding, which, without question as to its legal propriety, has been followed in the enforcement of the provisions of other acts of the legislature framed in a similar manner. Such actions have been brought and prosecuted without a doubt being intimated as to the regularity of either, and-, without a suggestion that one should have been preceded by the other. (People v. Stevens, 13 Wend., 341; Bellows v. Elmendorf, 7 Lans., 462; Amerman v. Kall, 34 Hun, 126; Behan v. People, 17 N. Y., 516.) The proceedings, under such statute, if not concurrent, are entirely independent, and one may be prosecuted without resorting to the other

In further support of the ruling at the trial, it has been maintained by the counsel that the acts providing for this liability are themselves violative of the Constitution of the State, and People v. Marx (99 N. Y., 377) is referred, to as an authority supporting this view. But that it does not sustain the argument is now established by the unreported decision made in People v Arensbergh, more recently made by the Court of Appeals. This constitutional argument has been very fully discussed and answered by the opinions in that case, which establish the constitutionality of this legislation. The object of it has been to punish the fraudulent simulation of the article manufactured out of animal fat, or animal or vegetable oils, for butter, manufactured from unadulterated milk or cream, and for adding to it such coloring matter as will enable dealers in it to deceive the public by selling it for 3 genuine, when in fact it is a spurious article. The offer of proof made by the plaintiff was ample to bring this ease within the restraint created by the statute. And as the prosecution and punishment of the defendant by indictment has not been required to precede an action for the recovery of the penalty, the suit should not have been dismissed, as it was on the opening of the counsel, and the judgment should be reversed and a new trial ordered.

Yan Brunt, P. J., and Brady, J., concurred.

Judgment reversed, new trial ordered.


author: Daniels, J : Brady, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK A. CIVILLE, Appellant.

      Grand larceny — when a failure of an agent to pay over money collected constitutes that offense, as defined m section 528 of the Penal Oode,

    Upon the trial of the defendant upon an indictment for having feloniously appropriated the sum of seventy-five dollars in his possession, custody and control as the agent, clerk or servant of the prosecuting witness, it appeared that he had been employed by her in collecting the rent of fourteen houses, situated in the city of New York, for which he was to receive certain fixed commissions; that on August 11, 1885, he received the sum of seventy-five dollars for the rent of one of the houses, and deposited the same in an account kept by him in his name as trustee; that he never paid the said seventy-five dollars to the prosecuting witness, nor accounted to her therefor. It also appeared by the evidence that it was the custom for the defendant to pay to the witness, in the early part of each month, the rents received by him during the preceding month, after deducting his commissions and the expenses of repairs and management; that the specific moneys received by him from the tenants were not paid over to her, but a chedt was given for the final monthly balance of the account.

      Reid, that, as it did not appear that the defendant had expended this sum of money either for repairs or in the management of the property, or for his commissions, or in any other manner for the benefit of the owner of the property, he was guilty of the offense of grand larceny, as that is defined in section 528 of the Penal Code. (Brady, J., dissenting.)
    That it was not necessary, to authorize his conviction of that offense, to prove that he intended to appropriate this money to his own use, or to the use of any other person, at the time when it was received by him, for the intent so to use it at any time while it remained in his custody, possession or control as a bailee, servant, attorney, agent, clerk or trustee, followed by that use of it, created a crime within this section of the statute.
    Appeal from a judgment of the Court of General Sessions of the county of New York, convicting the- defendant of the crime of larceny in the second degree,

      W. G. Beecher, for the appellant.

      McKenzie Semple, for the respondent.
   Daniels, J :

The defendant was charged in the indictment with having feloniously appropriated the sum of seventy-five dollars, in his possession, custody and control as the agent, clerk or servant of the prosecuting witness. It was made to appear by tne evidence that he had been employed by her in collecting the rent of fourteen different houses, situated in the city of New York, for which he was to receive a commission, on the corner house, of two and a half per cent, for the flats three per cent and for the other dwellings five per cent on the amount of rent collected. For the rent of the ttouse known as 2042 Madison avenue he received the sum of seventy five dollars on the 11th of August, 1885, which he failed to account for or pay over to the complaining witness, who was the owner of the property. It was charged that he had feloniously appropriated that sum of money, and the verdict of the jury sustains the truth of the charge. Yarious objections and exceptions were taken during the progress of the trial, which were disallowed by the court, and it has been urged on behalf of the defendant that many of the rulings made in this manner were erroneous as well as prejudicial to the defendant.

It appeared by the evidence of the complaining witness, that the course of business between herself and the defendant was that he should pay over in the early part of the month the rents received by .him during the preceding month, after deducting his commissions and the expenses of repairs and management. The specific money received by him from the tenants was not paid over to her, but a check giving the final monthly balance of the account between the defendant and herself. This was always the way in which the business had been arranged and the rents paid over to the complaining witness. Upon this mode of dealing it was contended on behalf of the defendant that he could not be convicted of the offense charged in the indictment, for the misappropriation of this particular sum of seventy-five dollars. But as he did not appear to have expended this sum of money, either for repairs or in the management of the property or for his commissions, or in any other manner for the benefit of the owner of the property, this position cannot be deemed to have been well taken, for the money still remained in his possession, custody and control, after the deposit and credit of the check in his account, the same as the - check itself was previous to that being done. The deposit and credit of the check to himself in his account did not convert the fund into the property of the defendant, but it was still money or property in the custody or control of the defendant, for the complaining witness, as its owner and within the provisions of section 528 of the Penal Code under which the defendant was convicted. The cases quite prominently relied upon-by the counsel for the defendant of Vilmar v. Schall (61 N. Y., 564); Segelken v. Meyer (94 id., 473), and Donovan v. Cornell (24 Weekly Dig., 351), presented this section of the Penal Code for construction, but they were disposed of chiefly as matters of pleading, and are not applicable, therefore, to this case. The latter decision was made on the authority of Morris v. Talcott (96 N. Y., 100), which depended upon entirely different considerations and principles. That was likewise the case of People v. Cruger (102 N. Y., 510), where, although the charge was larceny, it in no manner depended upon the provisions of this section of the Code which are applicable to the charge made against the defendant.

Before the time when the check was deposited the defendant had changed his deposit account to himself as trustee. This was done in the fall of 1881, and continued to the time when this check was deposited in a deposit account in favor of F. A. Civille, as trustee. This was not only an acknowledgment but a preservation of the fact that the check received by him came into his possession, as the other proof established the fact to be, as the agent of the complaining witness, and that it was made to preserve that character in the bank account of which it constituted a part. And that maintained the defendant’s relation to this sum of money to be that of the agent, trustee or bailee of the owner of the property. (Baker v. National Ex. Bank., 16 Abb. N. C., 158.) He still continued the custodian of the money in a fiduciary capacity for the benefit of the owner of the property, and he was not relieved from responsibility on account of it, for the reason that it might have been appropriated to the payment of his commissions, or to defray the expenses of repairing and managing the property, as long as there was no evidence in the case establishing the fact that it had been so used.

Neither was it necessary for the inculpation of the defendant that he should, have intended to appropriate this money to his own use or to the use of any other person at the time when it was received by him, for the intent so to use it at any time while it remained in his custody, possession or control, as a bailee, servant, attorney, agent, clerk or trustee, followed by that use of it, created a crime within this section of the statute. It was enacted in much broader language than was the provision contained in the Be vised Statutes defining the crime of embezzlement, for under that statute, as first amended, it was only the clerk or servant of a private person or of a copartnership, or an officer, agent, clerk or servant of a municipal or other corporation, or joint stock company or association, or a director, trustee or manager who was declared to be guilty of embezzlement for converting to his own use, without the consent of his master or employer, the funds or property received by him in one of these capacities. (3 E. S. [6th ed.], 952, § 73.) And this section was construed by the courts quite strictly in its administration and enforcement. And that circumstance, together with the frequent defalcations of persons employed as agents, trustees and officers of public and private corporations induced the ' enactment of additional legislation to meet and punish this increasing class of cases. Accordingly, by chapter 207 of the Laws of 1871, the first enactment contained in the Eevised Statutes was enlarged in the manner already stated, and by chapter 688 of the Laws of 1873 any person appointed and acting as the agent of an insurance company was brought within the same restraints, and by chapter 208 of the Laws of 1877 the criminal liability was further extended to include an executor, administrator, trustee or guardian appointed by any will, deed or other written instrument, or by .the judgment or order of any court or judicial officer in this State. And it was evidently the purpose of the Penal Code to include the substance and effect of these various enactments in the section under which the defendant was indicted and convicted, for that has declared that any person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker or of any other person, having in his possession, custody or control, as bailee, servant, attorney, agent, clerk, trustee or officer of any person, association or corporation, or as a public officer, or as a person authorized by agreement or by competent authority to hold or take such possession, custody or control, any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use or that of any other person other than the true owner or person entitled to the benefit thereof, steals such property, and is guilty of larceny. This portion of the section has been very broadly enacted, and clearly included the defendant, for he was the agent and bailee or trustee of the complaining witness, receiving and having in his possession this check, as well as the proceeds thereof, for her benefit, and by their misappropriation, as the jury found that fact under the evidence, he was guilty of the crime mentioned in the statute.

The cases relied upon in support of the objections taken at the trial will not sustain the defendant’s appeal. In that of Commissioners v. Libbey (11 Metc., 64), the court held no more than that the statute of that State did not include an auctioneer or commission merchant, as an agent or servant, for in the course of his business he had the right to mingle the proceeds received with his own, and pay over any like amount in discharge of his liability. The same construction was given to the act in Commissioners v. Stearns (2 Metc., 343), and it was further held that a person collecting bills for the proprietor of a newspaper was not such an agent or servant as the statute designed should be punished for embezzlement for failing to pay over the moneys collected by him. But the facts of this latter case would probably be sufficient to bring it within so much of this section of the Penal Code as has been mentioned if the accountability had arisen out c.f like transactions in this State, for the person charged did, in fact, collect the bills as the agent of the proprietor of the newspaper; while in Commissioners v. Foster (107 Mass., 221), the defendant was relieved solely on the ground that he was not an agent. The English authorities are not entirely harmonious in their construction of their acts relating to the crime of embezzlement. In Regina v. Goodbody (8 Car. & Payne, 665), the defendant was absolved for the reason that he was not a clerk or servant but an agent, which, to that extent, renders the case an authority against the defendant. In Rex. v. Carr (1 British Crown Cases, 198), the defendant was employed in selling and taking orders for goods for different employers and receiving moneys, and it was held that he was properly convicted for their misappropriation as a clerk or servant of the employer whose money was so used. The case of Queen v. May (30 L. J., N. S. Magistrate Cases, 81) seems, however, to be adverse to this ruling. But that of Queen v. Tite (Id., 142), followed and further enforced it. And so has the cases of Regina v. Turner (11 Cox C. C., 551); Regina v. Bailey (12 id., 56), and these cases certainly are authorities justifying such a construction and application of this section of the Penal Code as will include [that of the defendant. In State v. Kent (22 Minn., 41), the defendant was a collector of pew rents, and it was held that, as he was entitled to commissions from the amounts collected, he was not guilty under the statute for misappropriating the entire money received as part of it was his own property. But there seems to be no good reason for this discrimination, for as to the residue of the money received over the commissions, the person receiving it has it in his possession, custody or control, as the agent, bailee or trustee of his employer, and that has been so considered in the English cases which have not relieved the accused because of the circumstance that he was entitled to retain his commissions out of the moneys collected by him. But this decision is not applicable to this case for the further reason that it did not appear by the evidence that the defendant had used any portion of the money represented by or derived from the check, for the payment of the commissions he was entitled to retain. It appeared, on the contrary, by his own testimony, that he had probably used the money in the bank for the payment of the debts owing by him to other creditors. Some stress was made in his favor on the fact that he had become involved by the failure of Mr.’ Dean, his brother-in-law. But that, in. truth, had no relevancy to the case. Eor it appeared by the testimony of the defendant that no money of the complaining witness went to Dean during the year 1885, and his transactions with her all took place after the failure of Dean. And no part of her money was loaned by the defendant to him. An effort was also made to excuse the defendant under his power to apply moneys received by him for the repair and management of the property, and it did appear, from his testimony, that $456.56 of the moneys received for rents in the month of August had been used in this manner, but it was not shown by any statement or account produced that this particular check, or any part of it, went in that direction.

The defendant also, at the request of the owner of the property, looked after the buildings as he daily passed theni to see that the work was properly performed in their construction and finish, and for that it was insisted that he was entitled to a compensation against the prosecuting witness. Her testimony was to the effect that he bestowed this service at his own instance gratuitously, anticipating that the buildings would be in his charge as agent after they were completed. No account or claim for any compensation for this service was ever made out or presented by him to her. Neither was it made to appear that he had retained this money for either of these objects. On the contrary, his testimony, in general terms, was that there was no part of this money which I did not devote to my creditors, and my balance stands now about three dollars.” At the same time, in the submission of the case to the jury, they were directed to take these different subjects into consideration ; that the defendant was entitled to use the complainant’s money in the course of his agency for making necessary repairs, and the claim advanced that he was entitled to compensation for such services; and the jury were directed finally that if he had used the money “ by the authority and consent of this complainant, why then, of course, he has committed no crime.” And they were directed only to convict him in the event that they should become satisfied from the evidence he had feloniously appropriated this sum of money to his own use. It was further added that “ if by some misfortune over which he had no control, and not being actuated by any unlawful intent, the money of the complainant, which he as her agent received, was lost, and the defendant was thereby unable to pay it to the complainant when he was called upon to do so, he is guilty of no criminal offense.” These directions were as favorable to the defendant as he had a right to expect them to be under the circumstances. The court was requested, also, to give certain directions to the jury as to the effect of the evidence of good character, but as that had already been done a repetition of the observations was not deemed to be, as it certainly was not, necessary. The case is an unfortunate one for the defendant, who, however, had no right whatever to misappropriate the money received and held by him in the course of his employment. Defalcations of this and other descriptions have become appallingly numerous, both in their frequency and amounts. They exhibit startling infirmities of human character that can only be checked or avoided by the unswerving application and execution of the law; and where no substantial error appears to have intervened in the course of the trial the court, as a matter of sympathy for an unfortunate defend ant, cannot intervene for his relief.

There were some exceptions taken to the exclusion of evidence upon the trial; but as the testimony excluded was of no material importance, and could have been of no substantial benefit to the defendant, the rulings made on this subject do not require to be specially considered. The question which the witness McLain was not permitted to answer as to whether he had advised the defendant to Visit Mr. Dean in Canada, evidently by way of explanation of the fact that he had gone there, was afterwards answered by this witness, who stated that he did advise him to go to Canada to see his brother-in-law at that time. If the ruling in the first instance was not correct, this answer had the effect of removing the objection and exception irom the case.

The judgment from which the appeal has been taken should be affirmed.

Yan Brunt, P. J., concurred.

Brady, J.

(dissenting):

The appropriation of money held by an agent or trustee to his own use, is not a .larceny under the provisions of section f>28 of the Penal Code, unless it be done with the intent to deprive or defraud the owner of his property or the use or benefit thereof. The mere appropriation or use of the money may be an innocent exercise of dominion if the intention exist to pay or restore it. It is the anirmos furtmdi which creates the crime — the intention to make an absolute appropriation as contradistinguished from a temporary use without any design to defraud the owner or to deprive him of his property.

The intent — the quo cmimo is the ruling element of crime and the section mentioned recognizes i't in the language employed: “A person who with intent to deprive,” etc. • If the Legislature meant that the mere use of money, not his own, by an agent, although not with evil intent, constituted larceny, they would not have used the language employed and referred to

The defendant was therefore entitled to the-following charges: That if the jury believe that the defendant received the seventy-five dollars, intending to account for it as usual and subsequently failed to pay it over, because of hopeless insolvency, there would be no criminal intent. That if the defendant collected the rents for his clients and deposited them with other funds in his bank, intending in good faith to account for the same at the end of each month and fails to do so through inability, he is not guilty of larceny.

He was also entitled to the following: That in a case of this nature evidence of good character becomes a very important element, and in close cases may very properly create that reasonable doubt which would entitle the defendant to an acquittal. The learned recorder said in answer to this as to others that he would not charge other than as charged. His observations about the evidence of good character were as follows : The defendant has introduced evidence tending to show that he has heretofore borne a good character; five or six witnesses have testified to that effect. Evidence of good character is to be considered by you with all other evidence in the case, and you are to give it just such weight as you think it justly and properly entitled to and no more. In a doubtful case, in my judgment, evidence of good character is entitled to very great weight; and in a case where the reasonable doubt, to which I will call your attention, shortly, would not otherwise exist, where evidence of good character is introduced it will sometimes create in the minds of a jury that reasonable doubt, to the benefit of which a person charged with the commission of crime is entitled to. But in weighing evidence of good character and considering it, the jury should also take into consideration the fact that men of highest character have been known to commit the very worst criminal offenses.

This was not a correct expression either of the law or the facts of the case. What evidence was there that men of the highest character had been known to commit the very worst criminal offenses; and why, therefore, should the jury weave that into their deliberations ? What authority exists for any such ruling % If the word “reputation” had been used it would have been more felicitous, although equally erroneous as the statement of a legal rule. The defendant was entitled to an absolute charge of the value of good character, wholly separate and apart from any other man’s reputation or evil deeds. The effect of the charge was to deprive the defendant of all benefit, inasmuch as it intimated, however unintentional, if it did not declare, that men of good character might, nevertheless, commit the worst of crimes, and the defendant was one of the men. In this case the question of character was important, and the defendant should not have been deprived of the full extent of the rule, which was even broader than claimed by the defendant’s counsel. .

I think that injustice has been done in this case, and that the judgment should be reversed and a new trial ordered.

Judgment affirmed.


author: Potter, J.:

text:
    ELIZA ABRAMS, Respondent, v. FRANK RHONER. Appellant.

      Specific performance of a contract to convey land — presumption of a conveyance from the lapse of time — what title by adverse possession the court will compel the purchaser to accept — one tena/nt in common when presumed to hold adversely to his co-tenant.

    In an action, brought by the vendee to compel the specific performance of a contract to convey land, it appeared that the vendor derived title from one Bayard under a deed dated in 1797; that Bayard had conveyed the same premises, in 1771, to other parties than those through whom the vendor claimed title; that there was no evidence that the title acquired by the grantees under the conveyance of 1771 ever passed to Bayard or any other of the vendor’s predecessors in title; that the vendor’s predecessors in title had been in actual possession since 1797; that neither of the grantees named in the deed of 1771 had ever been in possession of or made any claim to the premises, and that no conveyance by them had ever been found.

      Held, that the foregoing facts raised a conclusive presumption that the grantees ■named in the deed of 1771 had reconveyed to Bayard before the latter’s conveyance of 1797, or that the conveyance of 1771 never had an operative delivery to the grantees therein named.
    Where the title by adverse possession is so clear that the court should direct a jury to find such title, the court will compel a specific performance of a contract where the vendor can give such a title.
    One tenant in common may acquire the title of another tenant in common by adverse possession. An ouster will be presumed after an exclusive possession and receipt of the entire profits, with a claim of right to the whole thereof, for twenty-one years.
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiff directing the specific performance of a contract for the purchase of real property.

      Thomas J. McKee and Stephen Pfiel, for the appellant.

      Julius PLeidermer and James O. Pe La Mare, for the respondent.
   Potter, J.:

This is an appeal from a judgment entered upon the report of a referee appointed to hear and-determine the issues in the action. The action was brought to compel the specific performance of a contract made between the plaintiff and defendant, on or about the 5th day of December, 1884, for the conveyance in fee simple by plaintiff to the defendant on or about the 29th of December, 1884, of certain premises in the city of New York, and known and designated as 139 Mulberry street, in consideration of the sum of $13,500, $1,300 of which was to be paid upon the making of the contract and the residue on the delivery of the deed.

The plaintiff alleged and proved that she was ready and willing to convey, and that she tendered a proper conveyance to the defendant and demanded the payment of the balance of the consideration at the specified time and place, and the defendant refused to accept the same, or to pay the balance of the consideration. The defendant contends that the plaintiff had not at that time the ability to convey such title as the contract called for, or that the title that she could convey was not a marketable title. The defendant, under the contract to convey, is entitled to a marketable title. (Shriver v. Shriver, 86 N. Y., 575.) Is the plaintiff’s title defective to the degree that renders it unmarketable? The plaintiff’s title rests upon proof of a conveyance from Nicholas Bayard, dated December, 1797, to several parties, and by mesne conveyances from the grantees in said deed, and upon an adverse possession thereunder for about one hundred years.

The defects in plaintiff’s title, as specified and insisted upon by defendant, are that Nicholas Bayard, the grantor of the premises in the deed above mentioned and under which the plaintiff claims to derive her title, had by a previous deed, dated in 1771, conveyed the premises in question to others than the grantees in the deed of 1797, and that there is no proof of any conveyance of the premises by the grantees, in the deed of 1771, back to the grantor, Nicholas Bayard; that one of the deeds forming the chain of title from grantees under the deed of 1797, and through which plaintiff claims title, viz.: 'The deed to Albert I. Terhune from McIntosh and wife, was not sufficiently proved, owing to a defect in the certificate of acknowledgment and that the possession of the plaintiff and her grantors lacked some of the essentials of such adverse possession as constitutes a marketable title. Assuming the referee had found or ought to have found, that Nicholas Bayard was the owner of the premises in question on the 20th of December, 1771, and that upon that day he conveyed them to Philip Livingston and others, there is the undisputed evidence and the fact is found by the referee, that in 1797 the same Nicholas Bayard conveyed these premises to William Houston and Mary his wife, and others, the grantees being the daughters of said Nicholas and the husbands of the two daughters that were then married, and that the plaintiff derives her title through conveyances to her father, who went in to possession of the premises in 1820 under an assessment lease and continued under a deed dated 1831, and that the plaintiff and her grantors have been in the actual possession of the premises from the date of the deed from said Bayard, dated in December, 1797, to the time of making the contract m question; that neither of the grantees under the deed of 1771, nor any of their heirs had ever been in possession or made any claim to the premises in question nor any portion thereof, and that no conveyance by the grantees under the said deed of 1771, or any one of them, was ever found or ever heard of, the presumption must be conclusive, that the grantees named in that deed must have reeonveyed to Nicholas Bayard before he conveyed to his daughters'and their husbands in 1797, or that the conveyance of 1771 never had an operative delivery to the grantees named therein. (Woolsey v. Morss, 19 Hun, 273, and the numerous cases referred to in the opinion in that case; Jackson v. McCall, 10 John., 377; Jackson v. Moore, 13 John., 516; Ottinger v. Strasburger, 33 Hun, 468.)

But, aside from this presumption, the plaintiff established a title by adverse possession. These premises have been held by plaintiff and her grantors under claim of title fortified by conveyances to the parties occupying, and in the absence of any hostile claim, practically from the date of the deed from Nicholas Bayard, in 1797, to the date of the commencement of this action. Where the title by adverse possession is so clear that the court should direct a jury to find such title, the court will compel a specific performance of a contract where the vendor can give such a title. (Ottinger v. Strasberger, supra; S. C., affirmed, 102 N. Y., 692; Shriver v. Shriver, 86 N. Y., 575.) We do not think any point is made in favor of the defendant by the overruling of the objection to the introduction of the deed from McIntosh and wife to Terhune, on the ground of its defective acknowledgment and proof. If the referee had ruled to the contrary and excluded the deed, it would have left the plaintiff and her grantors holding title to four-fifths of the premises by adverse possesion from the date of the deed in 1797, by Nicholas Bayard to Mrs. McIntosh, formerly Eliza Bayard, or it would have left the plaintiff’s title to stand upon this ease; that plaintiff had acquired the title of all the grantees under the deed of 1797, except Eliza McIntosh, and to have been a tenant in common with her, and then to have acquired her title by adverse possession; for one tenant in common may acquire the title of another tenant in common by adverse possession. An ouster will be presumed after an exclusive possession and receipt of the entire profits, with a claim of right to the whole thereof, for twenty-one years. (Florence v. Hopkins, 46 N. Y., 182; Woolsey v. Morss, 19 Hun, 274, and cases there cited.)

But the deed was properly received as evidence for the purpose of showing that the plaintiff entered and occupied the share of the premises deeded by Nicholas Bayard to Eliza McIntosh under a claim of title from her and her husband. To constitute an adverse possession it is not necessary that the title or deed under which the claim is is made is rightful; the party need not produce and prove the deed under which he claims, and, if when produced, it is defective as a deed, as for want of a seal or otherwise, it will not destroy the effect of the party’s possession. [Bradstreet v. Clarke, 12 Wend., 674) and cases cited. An illustration of this principle is shown in conveyances by a pretended agent or attorney. If the power to convey did not exist, in fact, or was a forgery, yet it is sufficient to give color to the grantees’ claim of title and stands upon the same footing as a genuine deed or a deed under a valid power. (Id.) The grantee in the deed from McIntosh and wife was in possession in 1831, and gave to said McIntosh a mortgage to secure the purchase money of the portion of the premises purporting to be conveyed by McIntosh and wife to him, and which mortgage was afterwards paid and satisfied. This afforded proof, at least by way of admission and recognition, that McIntosh and wife had parted with whatever title they ever had when they accepted a mortgage from Terhune as the mortgagor and owner, to secure the purchase of premises formerly owned by McIntosh and his wife, and would conclude their heirs and their privies, and form at least the beginning of an adverse possession good against all persons, from the date of the mortgage as well as before Terhune and his wife and children, including the plaintiff, had occupied the premises until the commencement and trial of the action. Under the facts of this case we hare not thought it necessary to examine whether the certificate of the proof of the execution of the deed from McIntosh and wife was strictly in conformity to the statute at the date thereof. Under the circumstances of this case, if such proof was necessary the court would allow a liberal construction of the certificate. ( West Point Iron Co. v. Reymert, 45 N Y., 703; Canandarqua Academy v. McKechnie, 19 Hun, 62, and cases cited.)

Judgment should be affirmed, with costs.

Yan Brunt, P. J., and Lawrence, J„ concurred.

Judgment affirmed, with costs.


text:
    PHILIP BRADY, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Reletting of a contract for work after the default of the first contractor — it relieves the first contractor from, liability to a penalty for subsequent delay in the completion of the work.

    A contract was entered into between tbe defendant and the plaintiff’s assignor containing a provision that under certain contingencies tbe defendant might direct the plaintiff to discontinue any further work under the contract, and that the defendant might proceed and complete the work or relet it to another and charge any excess of the expense of so doing to the original contractor. It also provided that the work should be done within a certain number of days, and that the defendant might retain the sum of fifteen dollars out of any moneys falling due to the contractor for each day thereafter during which the work should not be completed. The original contractor (the plaintiff’s assignor) performed work under the contract up to January, 1884, when the contract was terminated by the defendant, and thereafter, and on May 20, 1884, another contract for the completion of the work was made with another contractor.
    In an action brought by the plaintiff, as assignee of the original contractor, to recover an amount alleged to be due under the original contract, the defendant interposed a counter-claim for fifteen dollars for each day consumed by the original contractor, and the contractor acting under the second contract of May 20, 1884, in excess of the number of days fixed in the original contract for the completion of the work.

      Held, that the court below properly disallowed such counter-claim and directed a verdict for the plaintiff, without regard to the defendant’s claim for damages under the original contract.

      Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court.

      E. Henry Lacombe and D. J. Deem, for the appellant.

      L. LajUn Kellogg, for the respondent.
   Potter, J.:

This is an appeal from a judgment entered upon a verdict directed by the justice at circuit, for the sum of $1,730.77. The controversy arose out of a contract between the defendant and plaintiff’s assignor in relation to regulating and grading, etc., One Hundred and Twelfth street, between Seventh and Eighth avenues, in the city of New York. It appeared, from the evidence upon the trial, that the contract between the parties, among numerous provisions and stipulations, contained a provision that in any or all of several contingencies the defendant should have the power to direct the plaintiff to discontinue any further work under said contract, and for the defendant thereafter to proceed and complete the work, or to relet the work to another, and to charge any excess of the expense of so doing to the original contractor and to deduct the same out of any moneys that then or thereafter might be due to the contractor under the original agreement. The original contractor performed work under the contract from the date of the contract, October 23, 1882, till some time in January, 1881, when the contract was terminated by the defendant, and thereafter, on the 20th of May, 1881, another contract for the completion of the work was entered into between the defendant and Patrick Farley, pursuant to the original contract for that purpose, and the work was completed by the latter under the new contract. It was also agreed that the contractor should complete the work in 275 days, besides certain specified days not to be computed; and further, that the said party of the second part hereby further agrees that the said parties of the first part shall be and they are hereby authorized to deduct and retain out of the moneys which may be due or become due to the said party of the second part under this agreement, as damages for the non-completion of the work aforesaid within the time stipulated for its completion, the sum which shall accrue and become due for the inspectors wages, for the time not hereinbefore excepted, after the expiration of the time stipulated for the completion of the work.

The contract contains other provisions in relation to damages for violation of the contract by the contractor and allowing the defendant to retain the same out of moneys due or to grow due under the contract. There is also this provision in the contract, to wit, that “ the said party of the second part hereby further agrees that the said parties of the first part shall be and they are hereby authorized to deduct and retain out of the moneys which may be due or become due to said party of the second part under this agreement, as damages for the non-completion of the work aforesaid within the time hereinbefore stipulated for its completion, the sum of fifteen dollars for each and every day the aggregate time of all the inspectors employed upon said work may exceed the said stipulated time for its completion.”

TJpon the trial the defendant sought to be allowed in reduction of the plaintiff’s claim, the amount of the damages at the rate specified in that provision of the contract, viz., fifteen dollars a day for the number of days employed upon the work beyond the number specified in the' contract for the completion of the work. These damages the defendant claimed should be allowed without other proof than the fact that the contract was not completed within the time specified for that purpose in the original contract.

The learned justice overruled the defendant’s contention and directed a verdict for plaintiff, regardless of any claim for damages under the provision of the contract. Was the direction of the trial judge in this regard erroneous ? From the general structure and provisions of the contract under consideration it is pretty plain that while the plaintiff’s assignor was to undertake the performance of the contract and to complete it in a specified time and manner, yet the defendant had the right in certain contingencies to annul the contract and complete it or to let it to another to complete. The defendant chose the latter and let the work to another under a new contract containing other and different provisions, notably as to the prices of the work, and as to the time within which the work was to be completed. The defendant having annulled the original contract as it had the unquestionable right to do, the plaintiff’s assignor had no further right to continue the work under that contract. None of the provisions of the contract thus annulled herein were in force or operative upon the parties to it, except such of them as were kept in life by the express terms of the old contract after the new one was made by the defendant, for the completion of the work. These were, that if the defendant got the work completed for less than it had contracted to pay plaintiff’s assignor for it, he should receive the difference, and if the defendant had to pay more for its completion than it had contracted to pay plaintiff’s assignor, he should pay the defendant the difference. This was a fair and equable arrangement as it provided that the work should be ultimately performed and that the parties should respectively pay and receive just what had been contracted for and all the other incidents of the original contract as means to that end, were dispensed with by the new contract. I think the provisions in regard to paying fifteen dollars a day, under the contract between John Brady and the defendant, had been annulled by the adoption of the new in place of the original contract. ............. ■ ■

This construction of the two contracts is fully shown in the fact that in making the new contract with Barley the defendant agreed upon another and much extended period of time, viz., 200 days in which Barley was to complete the work. Can it be that the defendant can rightfully insist that Brady shall pay damages for delay in completing a contract which the defendant has taken away from him and let to another with a stipulated extension of time for its performance % The claim is not only for damages from the delay attending Brady’s partial performance but it is also for the delay which the defendant expressly gave Barley for the performance of the unfinished portion of Brady’s contract. It has generally been regarded as a complete answer to a cause of action for breach of contract, that the party thus complaining rendered it impossible for the other party to perform it. (Gallagher v. Nichols, 60 N. Y., 438.) But the defendant’s contention exceeds this by a considerable ; for it not only took the contract away from Bradyibut let it to another and gave that other an express extension of time in which to perform it.

Let us trace the working of this principle a little in another direction. Under the contract the defendant had the right to cancel it and to finish the work itself, charging Brady with any excess in the expense of doing it. Could it also recover of Brady fifteen dollars for its own delay in completing the work? I apprehend the law applicable to this class of contracts is this: That where one party to a contract has broken it in some material part, the other party to the contract may treat it as null and go on and complete the contract; or he may repair the breach by doing what is omitted or defectively done and charge the expense of it over to the defaulting party. If he takes the former course the contract is at an end and the party cannot recover any damages beyond those sustained when the contract was rescinded. If he take the latter course, lie may recover any legitimate damage during the performance of the residue of the work. (Crawford v. Becker, 13 Hun, 375; Murphy v. Buckman, 66 N. Y., 297-300.) Entertaining these views I am satisfied that the direction given by fhe trial court to render a verdict for the plaintiff, taking no account of the fifteen dollars a day clause, was correct, and I do not deem it necessary or useful to go through the numerous and differing cases to be found upon the question, to decide whether that clause imports a penalty or liquidated damages, especially as we are referred to a case by appellant’s counsel (Reilly, Extrx., v. The Mayor, etc., 34 Hun, 628), in the General Term of this department, holding that this clause in a contract, like the one under consideration, imports liquidated damages and not a penalty. Except for that case my first impression would incline my judgment to the opposite conclusion.

Judgment should be affirmed, with costs.

Lawrence, J., concurred ; Yan Brunt, P. J., not sitting.

Judgment affirmed, with costs.


author: Per Curiam:

text:
    JOHN F. KLUMPP and JOSEPH B. BARTLEMAN, Respondents, v. GUY H. GARDNER, Appellant and Others.

      Motion — when it cannot he renewed without leome of the court.

    A motion made by the defendant in this action to have the complaint made more definite and certain, and in default of that relief being granted, for a bill of particulars, having been denied without any leave being given to renew it,
      this motion was made by him for a bill of particulars in reference to the second cause of action mentioned in the complaint herein.

      Held, that the adjudication upon the prior motion was a bar to the making of the present motion.
    Appeal from an order denying a motion for a bill of particulars.

      Henry P. StarbucJc, for the appellant.

      J. H. Kitchen, for the respondents.
   Per Curiam:

It appears, from the papers on appeal, that the defendant in this action, prior to answering, made a motion for all the relief which he seeks to obtain by the present motion, with the exception of that branch of his motion where he now asks for a bill of particulars in reference to the second cause of action mentioned in the complaint herein.

The adjudication upon the prior motion seems to be a bar to the maintenance of the motion from the order denying which this appeal is taken. It is true that in the first motion a bill of par. ticulars was not asked for as to the second cause of action mentioned in the complaint; but having made a motion for a bill of particulars as to any part of the complaint, and such motion having been denied, the party cannot make another motion in reference to a bill of particulars as to the same complaint, without leave of the court. The mere fact that different causes of action are set out in the complaint does not entitle the party to make separate and distinct motions in reference to each portion of the complaint relating to the different causes of action. It is true that in the first motion made, relief in respect to the making of the complaint more definite and certain was asked, but in default of that relief being granted the defendant claimed the right to a bill of particulars. This motion having been denied, without any leave to renew, the right to amend and to a bill of particulars, appear both to have been passed upon adversely to the defendant.

The order appealed from must, therefore, be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., Brady and Daniels, JJ.

Order affirmed, with ten dollars costs and disbursements.