author: Earl, Ch. J.

text:
    The People ex rel. Frank Hasbrouck, App’lt, v. The Board of Supervisors of Dutchess Co., Resp't.

      (Court of Appeals,

      Filed October 18, 1892.)

    1. Mandamus—Appeal.
    Where a peremptory writ of mandamus is defective in commanding too much, it rests in the discretion of the court whether it will amend or quash, and the exercise of that discretion is not reviewable here.
    2. Election—Mabked ballots.
    An official ballot upon which is the mark of a printer’s quad, in the absence of proof that it was so marked for an illegal purpose, is not a marked ballot, and a 'mandamus cannot issue to compel a board of canvassers to reject it.
    Appeal from judgment of the supreme court, general term, second department, affirming an order of special term quashing a peremptory writ of mandamus.

      Horace D. Hufcut, for app’lt; R. F. Wilkinson, for resp’t.

         Affirming 45 St. Rep., 613.

   Earl, Ch. J.

By chapter 262 of the Laws of 1890, as amended by the act, chapter 296 of the Laws of 1891, a new system for the conduct of elections was introduced into this state. The main purpose of the system was to enable the voter so to cast his ballot that no person would know for what candidates he voted, and thus that he should be protected against intimidation and other improper influences. For the first time in this state it was made illegal for a voter to cast a ballot which had in any way been marked for identification, and such ballots were rendered void and of no effect. It is provided in § 35 that “ no voter shall place any mark upon his ballot, or do any other act in connection with a ballot, with the intent that it may be identified as the one voted by him; no person shall place any mark upon, or do any other act in connection with, a paster ballot with the intent that it may afterwards be identified as having been voted by any particular person. When a ballot has been deposited in a ballot box upon which or upon a paster affixed thereto a writing or mark of nny kind has been placed by the voter, or by any other person to his knowledge, with the intent that such ballot shall afterwards be identified as the one voted by him, the same shall be void and of no effect.”

This section condemns a ballot not only if it was marked for identification by the voter himself, but also if, with his knowledge or assent, it was marked for identification by any other person. Whether the ballot was marked by himself, or by any other person, it is sufficient, in order to condemn it, to show his intent. When the ballot was marked by any other person, before it can be condemned it must be shown that it was so marked with the voter’s knowledge, either with his intent or the known intent of such other person that it might afterwards be identified. The facts requisite to condemn the ballot under these provisions can be proved by any competent evidence. They may be shown by the evidence of the voter, or of any other person placing the mark on the ballot, or by any competent evidence, even against the evidence of those two, sufficient to satisfy the j udicial mind of the existence of the facts. The whole field of inquiry is open, as in any case where a question of fact is to be tried and determined. If the facts could be proved only by calling the voter, or some other person in complicity with him in placing the mark upon the ballot, it is manifest that these provisions of the ballot law would be substantially useless, as no other person could know by whom the ballot was cast,.and thus the essential witnesses, in nearly every case, could not be produced. Nor can it be needful to show who the voter was who marked or cast the ballot with illegal intent. It must be sufficient to show, by any competent evidence, that the ballot was marked with the illegal intent by whomsoever cast. The marks placed upon a ballot, or upon a series of ballots, may be such as of themselves to furnish strong and persuasive evidence that they were placed upon the ballots for the purpose of their identification, and with other circumstances, even slight, they may establish the illegal intent

While § 35 provides that such marked ballots • “ shall be void and of no effect,” a speedy and summary proceeding for their condemnation is provided in § 31, as follows : “ When an inspector of election, or other election officer, or duly authorized watcher, shall, during a canvass of the votes, or immediately after the completion thereof, declare his belief that any particular ballot, or paster affixed thereto, has been written upon or marked in any way with the intent that the same may be identified,- the inspectors shall write their names on the back thereof, and .attach it to the original certificate of canvass, and include in said certificate a statement of the specific grounds upon which the validity of such ballot is questioned. When the votes are to be estimated and the result declared by a board of county canvassers, or other officers performing similar duties, such board or officers shall mention separately in the statement or certificate of canvass the number of votes thus questioned which were cast for each candidate, and the specific grounds upon which the same are claimed to-be invalid as set forth in the original certificate of canvass. Such ballots shall be counted in estimating the result of an election; but within thirty days after the filing of the certificate declaring such result, a writ of mandamus may issue out of the supreme court against the board of canvassers, or officers: acting as such board, by whom the ballots were counted, upon the application of any candidate voted for at the election, to require a recount of the votes, and all questions relating to the validity of such ballots, and as to whether they were properly counted, shall be determined in such proceedings. All such ballots shall be preserved for at least one year, and until the questions raised by such writ shall be finally determined. Election boards and boards of canvassers shall be continued in existence for the purposes of such proceedings.”

This section provides for the performance of several acts preliminary to the proceeding by mandamus: (1) An inspector or other election officer or duly authorized watcher must, during a canvass, or immediately after its completion, in substance, declare to the inspectors his belief that the ballot or paster was written upon, or marked for identification. (2) The inspectors must write their names on the back of such ballot and attach it to the original certificate of canvass. (3) They must include in such certificate a statement of the specific grounds upon which the validity of such ballot was questioned. (4) The board of county canvassers, or other officers performing similar duties, must mention separately, in the statement or certificate of canvass made by them, the number of votes thus questioned which were cast for each candidate and the specific grounds upon which the same were claimed to be invalid as set forth in the original certificate of canvass. Ai’e all these preliminary acts matters of substance which are required absolutely to be performed before a candidate can proceed by writ of mandamus ? Can the inspectors of election or the board of county canvassers prevent or defeat the proceeding by mandamus by neglecting or purposely omitting to write their names upon the ballots or to make the required statements ? The-proper officers are under a duty to perform these preliminary acts, and if they do not perform them they may be criminally prosecuted for their neglect or wilful disregard of the requirements of the law.

These laws should be liberally interpreted so as to promote the ends for which they were enacted, and the courts should not permit their purpose to be defeated by the innocent neglect, chicanery or wilful misconduct -of election officers. The laws condemns ballots marked for identification, and such marking strikes at the very root of the reform ballot system, and if during the canvass some election officer, or some authorized watcher who in a sense represents the constitutents of his party, questions the marked ballot on the ground of the marks, the first important step has been taken. The other preliminary acts are devolved upon the election officers not representing or under the control of any candidate, and the courts in the mandamus proceeding must determine whether under the circumstances of the particular case there has been such a substantial compliance with the statute as will enable the candidate complaining of marked ballots to maintain the proceeding.

A candidate intending to proceed by mandamus under § 31 should procure an alternative writ, so that if there should be any dispute about facts that can be settled before the peremptory writ issues; and the opposing candidate should be permitted to intervene so as to protect his rights. If, however, a peremptory mandamus is applied for, it must be upon notice, Code, § 2070, and then if the facts upon which the application is based are undisputed or admitted and are sufficient to authorize dhe writ, questions of law only are involved and the writ may issue in the first instance.

Having thus called attention to the law and the procedure under the law, I will now advert to the facts. The relator was the democratic candidate and Isaac W. Sherrill the republican candidate for county treasurer in the county of Dutchess in November, 1891, and counting all the votes cast at the election the board of county canvassers certified that Sherrill was elected by a majority of seventeen. The relator claims that certain of the ballots cast for Sherrill were marked for identification, and that if they are rejected he would have a majority of the legal ballots and would be entitled to the certificate showing his election. He therefore in due time obtained from a- special term of the supreme court a peremptory writ of mandamus commanding the board of county canvassers to recount the ballots and reject those which he claimed were marked for identification.

The writ was based on certain affidavits, and upon the statement and certificate of canvass of the board of county canvassers, its certificate declaring the result of the election, and all the statements and certificates of canvass of the inspectors of election for certain districts named; and it commanded the board of county canvassers to reconvene “ and to recount the votes cast at said general election for said office of county treasurer, and on said recount to reject and not to count for the candidates named thereon for the office of county treasurer all ballots that have been marked for identification, and that have been so returned and certified, and particularly the eighteen marked ballots returned from the first district of the town of East Fishkill, the one marked ballot returned from the first district of the first ward of the city of Poughkeepsie, the four marked ballots returned from the second district of the town of Bed Hook, and the thirty-one marked ballots returned from the third district of the town of Bed Hook.” Besides his own affidavit, there were affidavits of Ogden,_ Kniffin, Williams, Bifenburgh and Grennon. In his first affidavit Ogden stated that he was an authorized democratic watcher at the polls in the first election district of the town of East Fishkill; that he was present at the canvass by the inspectors of the votes cast in that district; that during the canvass there appeared among the ballots which were counted eighteen ballots with straight republican paster ballots attached to the face thereof with the name of William Eowe, the republican candidate for justice of sessions, erased from each paster by a pencil mark drawn through it, and the name of some other person who was not a candidate for the office of justice of sessions written at the foot of the paster; that some of the names so written were of persons who resided in the county of Dutchess; that one name was that of a person unknown to him, and one was John Doe, supposed to be a fictitious person; that during the canvass of the votes he declared his belief that each of these marked ballots and the posters affixed thereto had been written upon and marked for identification, and that he questioned each of them on that specific ground; that he had on the day he made his affidavit examined the eighteen marked ballots returned by the election inspectors of the district to the board of county canvassers and attached to their certificate, and that they are the identical ballots objected to and questioned as before stated; that all the names written upon the posters were in the same handwriting, and'in his opinion in the handwriting of Grarrett Eoach, with whose hand-writing he was familiar ; that Eoach was a republican worker at the polls in the district all the day of the election ; that Charles W. Horton was also a resident of the district and a republican worker therein; that he, Horton, was present at the canvass of the votes by the inspectors, and when any such marked ballot appeared and was counted in the canvass, as the name of the person thus written thereon in pencil was read aloud, he entered the name so read in a memorandum book held in his hand; that he was informed and believed that Horton thus made the- memorandum of the names for the purpose of ascertaining how many and what marked ballots had been cast at the election so that he could pay the voters casting such ballots in pursuance of prior promises made to them, and that he was informed and believed that such payments were subsequently made by Horton. Kniffin and Williams each made an affidavit stating that he was a voter in the first district of Fishkill, and that before he voted Eoach approached him and offered him a republican paster ballot and asked him to vote the same ; that he then and there erased from the paster the name of the republican candidate for justice of sessions, and wrote thereon with a pencil some other name' and handed the paster to him thus marked, and promised him that if he would vote the paster so marked, and if the same should come out of. the ballot box at the canvass of the votes, Horton would give him five dollars. Ogden made another affidavit that on election day Kniffin and Williams severally gave him the posters so received from Eoach and stated to him what had taken place between them and Eoach, and he attached the posters to his affidavit. Rifenburgh and G-rennon joined in an affidavit in which they stated that they resided at Madalin in the town of Red Hook in the county of Dutchess ; that they knew republican leaders and workers who resided in Madalin, and that after the election they beard them boast “ that some of their men had voted right, by the marked paster ballots or tickets that were voted at said election in said districts by the marks that they put upon them themselves.”

The facts alleged in these affidavits were undisputed, and there cannot be the least doubt that as to the Bast Fishkill paster ballots, they showed that the posters were marked for the purpose of identification and to effectuate a scheme of bribery. No other purpose for marking them as they were marked can be conceived. The election of Rowe was not contested, and he could not be ■defeated. A diffei'ent name was written upon each paster, names of persons not candidates for the office, and at least one name that of a fictitious person, and it is quite significant that all this was done upon posters.

But this is not all. There was an official republican ballot in the First Ward of the city of Poughkeepsie headed by the name of the republican candidate for governor with an ink line drawn above and under the name and a check mark in ink opposite to, it, and the inspectors endorsed upon that ballot “ supposed to be a ticket marked for identification,” but they did not. write their names upon it They, however, attached it to their certificate and made the statement required by § 31, stating that during the canvass of the votes it was questioned by an authorized watcher on the ground that it had been marked for identification. In the second district of the town of Red Hook there were four full republican paster ballots on two of which Rowe’s name was erased with a blue pencil and again written at the foot of such paster with the same pencil; in one of which the name of Rowe was erased with a blue pencil and on another the name of Calvin B. Pratt, another candidate, was erased with a black pencil and again written at the foot of the paster with the same pencil. It is impossible to conceive that these paster ballots were marked for any purpose except that of identification, and their marking seems to have been part of the same scheme worked in the town of Fishkill.

In the third district of Red Hook there were thirty-one ballots which are described in the statement made by the inspectors. Bach was a republican official ballot, on the left margin of which, opposite the name of the office and candidate for attorney-general, appeared marks as follows: ” blurred ink marks as if made by a printer’s quad. These have come to be known as the quad ballots. There is no allegation in the record that these ballots were:, questioned during the canvass by the inspectors. Nor is there any allegation or proof in the record that they were marked for identification.

The marks themselves do' not import design and are by themselves just as consistent with .mistake as design. If there was obtainable any proof that "these ballots were marked for an illegal purpose, or as part of. a general corrupt scheme, that proof should have been placed before the court below as the basis of its action, and should appear in this record. Upon the case as we now have it, a peremptory mandamus could not issue to compel the board of county canvassers to reject these ballots.

The writ of mandamus was applied for and granted on the 7th day of December, 1891. On the 12th day of December the board of county canvassers made their return to the writ at a special term of the supreme court, in which they stated what they had done prior to the issuing of the writ, and further, as follows r “ That this board knows of no other duty in reference to the counting of said ballots, except as may be ordered by the court” And thereupon the court ordered the writ of mandamus to be quashed “ without prejudice.” It does not appear upon whose motion or upon what ground it was quashed. We are bound to assume that it was quashed upon the motion of some party who had the right to be heard, or by the judge holding the special term ex mero motu. The writ appears to have been granted without notice to the board of county canvassers, as required by the Code, but we cannot assume that it was quashed on that ground, as that was an objection to be taken only by the board, and they appeared, made their return and submitted themselves to the jurisdiction of the court without objection. It was then too late even for them to make-the objection that they had not received notice of the application for the writ. We must assume that it was quashed upon some ground which, in the mind of the court, the relator could obviate, as it was quashed “without prejudice” to his right to obtain another writ. As it does not appear in the record upon what ground it was quashed, we must assume, for the purpose of review here, that it was quashed upon any ground available at the tima There was one obvious ground for quashing it, and that is that the writ commanded too much, as it commanded the board of county canvassers, among other ballots, to reject and not count the quad ballots, which, as I have before seated, do not appear in this record to have been illegal.

When a writ of peremptory mandamus issues all judicial action has ceased and the party commanded is bound to obey, and in default thereof he may be punished. He has no discretion to perform part of the acts commanded and to omit others; but he must obey the writ in the terms in which it was issued. The writ must command precisely what the party is required to do- and no more than he is legally bound to do, and if it commands more it may be quashed. Under the ancient practice a peremptory writ of' mandamus defective by commanding too much, or for not being sufficiently precise and definite, was not amendable, and the only remedy of the relator in such a case was to suffer his writ to be quashed and then obtain another. In High on Extraordinary Legal Eemedies, § 562, it is said that the better doctrine seems to be that no amendment should be allowed to the writ of peremptory mandamus, and when the writ commands more than the relator is entitled to, the better practice is, instead of allowing an amendment, to set aside the order granting the writ and .allow the relator to obtain an alternative writ. The authorities are abundant to show that the practice was to quash a peremptory writ which commanded too much. State ex rel., etc., v. Township of Union, 43 N. J. Law, 518; State ex rel., etc., v. Einstein, 46 id., 479; Hartshorn v. Ellsworth, 60 Me., 276; State v. Kansas City, etc., R. R. Co., 77 Mo., 143 ; People ex rel. v. Baker, 35 Barb., 105 ; People ex rel., etc. v. Supervisors of Dutchess Co., 1 Hill, 50; Queen v. East & West India Dock Co., 2 El. & Bl., 466; King v. Church of St. Panncrast, 3 A. & E., 535 ; Queen v. Tithe Com'rs, 19 L. J., Q. B., 177.

But the former practice in reference to peremptory writs of mandamus has been modified in some jurisdictions, and it has been held in some cases that the writ may, in the discretion of the court, be amended. Under the provisions of the Code of Procedure, §§ 721/722, 723 and 1997, the court has ample opportunity to grant amendments either to an alternative or peremptory writ of mandamus in furtherance of justice. The special term having the parties before it could have amended this writ by striking out the command as to the quad ballots, and if necessary as to all the ballots except those from the town of Fishkill, and could have enforced the writ as thus amended. But where a writ is thus defective, it rests in the discretion of the court whether it will amend or quash, and the exercise of that discretion is not reviewable here.

A mandamus is sometimes likened to an injunction, and if an injunction be issued which is too broad in its terms and a motion is made on that ground to vacate it, the court may undoubtedly amend it in the exercise of its discretion. But it may on account of the imperfection complained of entirely vacate it and leave the party to obtain another injunction proper in form and scope. If in such a case the court, instead of amending the injunction, should entirely vacate it, no one would contend that this court had the right to review the exercise of its discretion. So, too, a mandamus has sometimes been styled a mandatory execution to carry into effect the final order of the court, and if an execution be issued in any case for too large an amount or otherwise embracing too much, no one will question that it is in the discretion of the court to amend it or to vacate it entirely, leaving the party to take another execution; and with the exercise of that discretion this court urould not interfere. This court was organized to review errors of law and not alleged errors in the exercise of discretion. Code, § 1337. In the People ex rel., etc., v. Fairman, 91 N. Y., 385, the relator applied for a peremptory writ of mandamus which the court denied, and then he made a motion to have the order modified so as to permit an alternative writ to issue, and we held that the last motion was addressed to the discretion of the court and that its decision thereon was not reviewable here. It may even be doubted whether the order of the special term quashing the writ without prejudice affected a substantial right of the relator. Here, the certificate of the board of county canvassers declaring the result of the election as to county treasurer was filed not earlier than the 7th day of December, and the relator had thirty days thereafter to procure his writ of mandamus. This writ was quashed on the 12th day of December without prejudice, as we must assume, for the defect pointed out. He could immediately then and there, or at any time within the thirty days, have obtained another writ proper in form, and thus the quashing of his writ without prejudice could have done him no substantial injury, so far as this record discloses. While, therefore, it is •clear upon this record that .the relator has suffered injustice and that he was legally entitled by taking the proper proceedings to a certificate declaring his election, we do not perceive how we ■can give him any relief without departing from the settled practice of this court and exercising a jurisdiction'not understood to be given to it.

The general term had jurisdiction to review the order made at the special term, and to reverse • or modify that order in cáse it came to the conclusion that the special term ought, in the exercise of a fair discretion, to have amended rather than to have quashed the peremptory writ. It is unfortunate to the relator that the time has now passed within which, under the statute, he could procure another writ of mandamus, and if he has any relief in this' proceeding, it is by application to the supreme court, and probably at the general term, which, under the unfortunate circumstances in which he is placed, may so vacate and modify its order as to convert the peremptory writ of mandamus into an alternative writ, or to amend the peemptory writ by striking out the command as to ballots which do not appear to be illegal. We have no alternative but to dismiss this appeal.

Appeal dismissed, with costs.

All concur, except Maynard, J., not sitting.


source: Caselaw Access Project

author: Maynard, J.

license: Public Domain

text:
    Mary J. Burnett, App’lt, v. Charles S. Wright, Ex’r, Resp’t.

      (Court of Appeals,

      Filed October 18, 1892.)

    1. Mortgage—Defeasance clause.
    Upon the trial of an action of foreclosure it was shown that the amount of the mortgage debt was left blank in the defeasance clause, although the mortgage recited a money consideration of $600. The court, as conclusions of law, found that the mortgage was void for uncertainty; that the amount could not be shown by paroi evidence, and that the action to reform, the mortgage was barred by the statute of limitations, and dismissed the complaint. Held, error; that the conveyance possessed all the attributes of a valid mortgage, and became a good and enforceable security for the mortgagee without the necessity of correction or reformation,
    2. Same.
    Where the paragraph conferring upon the grantee the power of sale expressly declares that the deed is intended as a security for some debt due irom the grantor, it is enough to make it prima facie a mortgage, and the defeasance clause need not be in writing at all, but may be established by paroi testimony. And in the absence of other proof, it may be presumed that the consideration correctly represents the sum to be secured.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment of the special term affirming report of referee dismissing complaint in a foreclosure proceeding.

      Martin W. Cooke, for app’lt; D. B. Beach, for resp’t.

       Reversing 44 St. Rep., 14.

   Maynard, J.

The plaintiff was defeated at the special and the general term on the ground that the instrument which she sought to foreclose was defective as a mortgage and was void for uncertainty, and that the objectionable defects could not be supplied by paroi proof. The writing, which was executed by the testator of the executor defendant to the assignor of the plaintiff, on January 81, 18.68, is set out in full in the complaint, and is in the usual form of a real estate mortgage. It recites a money consideration of $600; is signed, sealed and duly acknowledged, and was- recorded as a mortgage in the proper county. It contains a provision for the defeasance of the grant if payment of the sum which it was intended to secure should be made within one year from its date with semi-annual interest, and the ordinary power of sale if default should be made in the payment of the principal sum thereby intended to be secured, or of the interest thereof, or any part of such principal and interest, with the authority to retain out of the proceeds the amount then due for principal and interest, with the costs and charges of the sale, and to pay the overplus, if any, to the mortgagor, his heirs or assigns. The amount of the mortgage debt is not stated in the defeasance clause, but is left in blank, and the sentence in which it occurs is as follows: “ This grant is intended as a security for the payment of the sum of--in one year from the date of this instrument, with interest payable semi-annually, and 'this conveyance shall be void if such payment is made as herein specified.”

The complaint contains all the necessary allegations to support an action for the foreclosure of a mortgage, and also alleges that the omission to fill up this blank was unintentional, and the first part of the prayer for relief is the usual demand for a judgment of foreclosure, and it concludes with a request that the mortgage may be adjudged to be reformed to comply with the intention of the parties. The action was commenced Hovember 9th, 1887, and the defendants interposed the plea of the statute of limitations, averring that both ten and twenty years had elapsed since the cause of action had accrued.

The trial court has found the due execution, delivery and recording of the mortgage as alleged ; that the mortgagor was then indebted to the mortgagee in the sum of six hundred dollars; that the mortgage was given to secure the payment of such indebtedness ; and that no part thereof has been paid, and that the mortgage had been duly assigned to the plaintiff There was a further finding, classed as a finding of fact, that the mortgage was defective ; that the defect consisted in the omission to insert in writing, in the blank the amount of the debt that was to be secured by it, and that the instrument should be reformed by inserting such amount, and that the action to foreclose the mortgage could not be maintained until it was reformed. As conclusions of law it was found that the mortgage was void for uncertainty; that the defect in it was a patent ambiguity, and consequently the amount intended to be secured could not be shown by paroi evidence, and that the action to reform the mortgage was barred by the statute of limitations, and that the complaint should be dismissed, and directed judgment accordingly. Judgment was thereupon entered, dismissing the complaint, and adjudging the mortgage void for uncertainty, and directing the clerk to make the following entry upon the record thereof: “ This mortgage adjudged void for uncertainty, and the remedy to reform, enforce and foreclose the same barred by the statute of limitation.”

We think that this judgment was the result of a misapprehension of the legal force and effect of the instrument! which is the foundation of the plaintiff’s action. Upon the findings it must be held that, this conveyance, at the time of its delivery, possessed all the attributes of a valid mortgage, and became a good and enforceable security for the mortgage debt without the necessity of correction or reformation.

Perhaps the most concise and satisfactory definition of a mortgage is that given by Washburn in his work on Beal Property, vol. 2, p. 43, where it is stated to be: “Any conveyance of land intended by the parties at the time of making it to be a security for the payment of money or the doing of some prescribed act.” It has also been said that to constitute a mortgage only two things are necessary; a conveyance of property and a cotemporaneous agreement that such conveyance shall be a-security. Thomas on Mortgages, § 13, p. 10/

The defeasance need not be in writing at all, but may be established by paroi testimony, and, as was stated by Judge Allen in Horn v. Keteltas, 46 N. Y., 605, it is now too late to controvert the proposition that a conveyance which is even absolute upon its face may in equity be shown by paroi, or other extrinsic evidence, to have been intended as a mortgage; and fraud or mistake in the preparation, or as to the form of the instrument, is not an essential element in an action for relief and to give effect to the intention of the parties. He declares that the courts of this state are fully committed to this doctrine, and that it has become a rule of property which cannot safely be departed from.

In the earlier case in the supreme court of Tibbs v. Morris, 44 Barb., 138, Judge Grover held that where loans are made and securities for repayment taken, such cases are in equity an exception to the general rule that the rights of" the parties to a written contract must be determined by the terms of the instrument without resort to paroi proof, and that it might be shown by extrinsic evidence that the transaction was in fact a loan, and that the conveyance was intended as a security for its repayment; and effect will be given to it accordingly. The plaintiff was, therefore, entitled to the benefit of whatever paroi proof might be available to impress the character of a mortgage upon the instrument executed by the defendant’s testator.

n Such evidence is not necessarily proffered for the purpose of establishing a right to a reformation of the deed; but in order to show that it was in fact a mortgage at the time of its execution, and that it has all the qualities and incidents of a defeasible grant. If the defeasible clause of the instrument is void for uncertainty, it cannot reasonably be claimed that the grantee is in a worse condition than if it had been wholly omitted, for being void it is as if it had not been inserted, and as it relates to a matter which, need not be reduced to writing, the parties may by paroi proof make certain and definite that which through inadvertence, or otherwise, they have failed to intelligently express in the conveyance itself.

But, without a resort to extrinsic facts, we think there is sufficient appearing upon the face of the instrument in question to clearly establish its legal status as a valid mortgage. The rule o£ construction is correctly laid down in Jones on Mortgages, vol. 1, p. 49, § 69 : “ If it appear from the whole instrument that it was-intended as a security, although there be no express provision, that upon the fulfilment of the condition the deed shall be void, it is a mortgage. The substance and not the form of expression is chiefly to be regarded, and an enlarged and liberal view is to be taken of the instrument in order to ascertain and carry into effect the intention of the parties.”

Rejecting the sentence which contains the obnoxious blank, and the paragraph conferring upon the grantee the power of sale expressly declares that the deed is intended as a security for some debt due from the grantor. This is enough to make it prima facie a mortgage. The particular debt need not be described, but. can be shown by any competent proof dehors the instrument. If it had stated that it was given to secure a debt due from the mortgagor to the mortgagee to be paid in one year with interest, without specifying any sum, it could scarcely be contended that the mortgagee could not be permitted, upon foreclosure, to point out-the exact obligation which the parties agreed at the time of the execution of the mortgage should be secured by it. Or if the sum stated in the mortgage differs from the amount actually intended to be secured, it cannot be doubted that the true sum may be established by independent proofs. As the securing of the mortgage debt is the real consideration of the conveyance, it is but another application of the familiar rule that the consideration of a deed is always open to inquiry, especially where it tends to uphold and not to defeat the conveyance.

There is another sufficient answer to the objection which has been made to plaintiff’s right of recovery. The instrument upon which she relies must be read and construed in its entirety. Omissions and ambiguities in one part may be supplied or explained by reference to other parts, if the necessary data can there be found for that purpose. The sum stated in the defeasance clause is intended to be the amount of the debt to be secured by the mortgage, which is but another form of expressing the consideration of the grant. The indefiniteness, therefore, occasioned by the failure of the parties to fill up the blank in this paragraph of the deed may be removed, and the sum intended to be secured ascertained, by a reference to the consideration clause of the instrument ; for generally the consideration named in a mortgage is the amount of the debt secured by it. Jones on Mortgages, p. 43, § 64. It is not controlling or conclusive, if a different sum is. stated in the condition of the grant, or is otherwise shown to have been the true consideration. But in the absence of other proof it may be presumed that the consideration correctly represents the sum to be secured. It is the office of that part of the conveyance; to denote the inducement of the grant, and until disproved it may be relied upon to perform that service.

This appeal comes here upon the judgment roll alone, and w& have no information from the record whether any paroi evidence; was admitted upon the trial, or, if admitted, whether it was considered by the learned trial judge in making up the findings of fact.

But the introduction of the mortgage would be sufficient in the first instance to establish the existence and amount of the mortgage debt, and unless overborne by other competent testimony impeaching its correctness, furnishes a satisfactory support to the-, finding that the debt secured corresponded in amount with the-consideration expressed. It may fairly be inferred from the argument of counsel that some paroi proof upon the subject was given at the trial; but it was not necessary for the plaintiff to resort to-it as a part of her affirmative case. The instrument upon which she brought this action was, therefore, not fatally defective as a mortgage, and she was entitled upon the findings to a judgment of foreclosure. v e

A new trial must be granted, with costs to abide the event

All concur.


author: O’Brien, J.

text:
    The People ex rel. George W. Post, App’lt, v. Isaac B. Cross, Sheriff, Resp't.

      (Court of Appeals,

      Filed October 18, 1892.)

    Extradition—Interstate.
    A fugitive from justice, surrendered to the authorities of the state upon their demand, pursuant to the constitution of the United States, by the-governor of another state, can he held and tried here for another crime-than that charged in the warrant, by virtue of which he was arrested and surrendered in the state to which he had fled, where the act for which he-was extradited and that for which he is subsequently indicted and held in. this state is the same.
    Appeal from judgment of the supreme court, general term, third department, affirming order of special term upon writ of habeas corpus denying petition of relator and remanding him to. custody.

      John H. Gleason, for app’lt; James W. Eaton, dist. att’y, for resp’t.

       Affirming 45 St. Rep., 543.

   O’Brien, J.

The relator, George W. Post, in his petition alleges that he is unlawfully restrained of his liberty and imprisoned in the county jail of the county of Albany by the sheriff. Upon his application a writ of habeas corpus was issued to inquire into the cause of the imprisonment, and having been served ■upon the sheriff, in whose custody the relator was, a return was made thereto, in substance, that the relator was held by him in custody, as such sheriff, by virtue of a bench warrant issued and delivered to him by the district attorney of the county of Albany, .upon an indictment duly found in the court of oyer and terminer, whereby the relator was charged with the crime of robbery in the first degree. To this return the relator answered, denying that the imprisonment was legal, as alleged by the sheriff, and also set forth the following facts as constituting the true cause of the detention.

That in February, 1889, the relator was indicted in the court of sessions of Albany county for the crime of grand larceny in the first degree. That afterwards, and in October, 1891, when the relator was a resident and inhabitant of the state of Wisconsin, and sojourning therein, he was arrested upon a warrant issued by the governor of that state upon the requisition of the governor of New York, in which requisition it was stated that the relator stood charged upon an indictment in the state of New York with the crime of grand larceny in the first degree, committed in the county of Albany, and that the relator had fled from the state having jurisdiction of the crime charged, and had taken refuge in the state of Wisconsin, and demanding the return of the relator pursuant- to the constitution and laws of the United States. That after such arrest, upon the warrant of the governor •of Wisconsin, the relator was delivered to an agent appointed by the governor of New York for that purpose, nnd conveyed to Albany for trial upon the indictment. That afterwards he was arraigned upon the indictment and pleaded not guilty, -and committed to the custody of the sheriff, by whom he was held and imprisoned till about the 21st of April, 1892, when the indictment for grand larceny in the first degree, upon which the relator was arrested in Wisconsin, was set aside and quashed. That on the same day the district attorney issued a bench warrant to the sheriff upon the indictment for robbery, which was found subsequent to his extradition from Wisconsin, and that by virtue of that warrant, alone, the relator was detained in custody at the time of his application for the writ of habeas corpus. The district attorney admitted the facts stated in the answer or traverse of the relator to the return, except some immaterial allegations with reference to the first indictment ; and, upon what was virtually a demurrer to the relator’s traverse, the question was submitted to the judge before whom the writ was made returnable, who dismissed it and denied the prayer of the petitioner and remanded him to the custody of the sheriff. This order has been affirmed at the general term. It was admitted in the courts below, and is here, that the relator- is held in custody for the same criminal act which constituted the ground of the requisition by the governor of this state upon the governor of Wisconsin, and of his extradition from that state. In the warrant of the governor of Wisconsin, and in the requisition of the governor of this state, that ac|i:was designated as grand larceny in the first degree, while in the indictment and warrant, under which the relator was held when he applied for the writ of habeas corpus it was designated as the crime of robbery in the-first degree, and the question is whether a fugitive from justice surrendered to the authorities of the state upon their demand, pursuant to the constitution and laws of the United States, by the governor of another state, can be held or tried here for any other .crime than that charged in the warrant by virtue of which he was arrested and surrendered in the state to which he had fled,, although the act for which he was extradited and that for which he is now indicted and held in this state is the same.

The obligation of independent nations to surrender fugitives from justice to each other, when demanded, rests either upon international comity or the stipulations of express treaty. When upon the former, there is and can be no general rule as to the duty of the government upon which the demand is made save its own sense of justice and regard for what is due to its neighbors.. When upon the latter, the obligation is discharged by the surrender of persons properly charged with the specific offenses provided for in the treaty. Whether fugitives from justice extradited from foreign countries for offenses against the United States or any of the states could be tried when brought within the proper jurisdiction for any offense except that charged in the papers upon which the accused was surrendered by the foreign government was, until quite recently, a question that produced much conflict of judicial anthority. The supreme court of the United States has settled the question so far as concerns the obligations due to foreign nations, or to persons surrendered by them upon the demand of the federal government pursuant to treaty stipulations. United States v. Rauscher, 119 U. S., 407. In that case it appeared that Eauscher was surrendered by the government of Great Britain to the United States, upon its demand, for murder committed upon the high seas, an offense of which its-courts had jurisdiction, and that he was subsequently tried and convicted of another and minor offense, namely, the cruel and inhuman punishment of the same seaman, and thus the act for which he was extradited and tried was the same.

It is argued by the learned counsel for the relator that this is a controlling authority in the case at bar. But we think that there is a material distinction between the facts and circumstances of that case and those disclosed by the record before us. It muse be-noted in the first place that much stress was laid in that decision, and very properly, upon the fact that by the act of congress relating to extradition from foreign nations upon the application of the federal government, it is expressly provided that the person-surrendered shall not when brought to this country be tried for any other or different offense. This is the construction given to-the act in the case last cited. 119 U. S., 433; U. S. R. S., § 5275. The act of congress passed in pursuance of the federal constitution is. the supreme law of the land, and this law protected Eauscher from trial for any other offense than the one upon which he was surrendered to this government by the British authorities. Moreover, the laws o£ Great Britain, from which jurisdiction the iugitive had been extradited, forbid the surrender by that government of persons charged with crime in other jurisdictions to •countries under whose laws the person demanded was liable to be tried for some other or different offense than that charged in the application for extradition. 33 and 34 Vict., ch. 52 ; Adriance v. Lagrave, 59 N. Y., 115. And therefore when the United States took the fugitive from the protection of these laws its faith and honor was pledged, at least impliedly, to the effect that it would not permit its courts to try him for any other offense, even though it might be of a lesser grade than that upon which he was surrendered. Furthermore, the offense for which Rauscher was actually tried was not one which Great Britain had bound itself by the terms of the treaty with this country to surrender him. It may very well be that had he been charged in the application for extradition with only the offense for which he was tried, that the government within whose jurisdiction he was found would have refused to surrender him to the authorities of the United States. It would therefore seem to be clear that his trial for another offense was in violation of the faith and honor of the government, as well as of an express law of Congress. These considerations are not applicable to the case now before us.

The obligations of the states of this Union to surrender to each •other persons charged with crime is not founded upon comity or treaty, but upon the plain provisions of the federal constitution, found in art. 4, § 2 as follows: “ A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to' be removedlo the state having jurisdiction of the crime.” The •obligation thus imposed upon the states is not, like treaties between independent nations, limited to specific offenses, but embraces all crimes, and if the demanding state, when the fugitive is surrendered to it, cannot try him for any other offense than that •charged in the warrant of extradition, that is a condition that must be implied, as it is hot expressed in the instrument creating the obligation. Whether a fugitive from justice can be tried in "the state from which he has fled, and to which he has been surrendered, for any other offense than that charged in the application to the governor of the surrendering state, is a question upon which much conflict of authority is to be found in the courts of the several states and in the inferior courts of the United States, as the federal supreme court has not yet, so far as I am informed, passed upon the point. We are asked in this case to hold that the rule must be the same in cases of interstate and international ■extradition, and that the principles which control the latter have been announced in the Rauscher case. We are not prepared to hold that the doctrine of that case is necessarily applicable to this. There were reasons for that decision that do not exist in this case, ■some of which we have already pointed out It may be proper to add also that the act of congress regulating interstate extradition does not provide that the fugitive surrendered shall be exempt from trial upon any other charge, while that regulating international extradition does, according to the construction given to it by the highest federal court, as we have seen. U. S. R. S., §§ 5278, 5279; Rauscher case, supra.

It was competent for congress to insert the same or a similar provision in the statute regulating extradition between the states as that regulating extradition from foreign nations, but it is somewhat significant that it has not done so. The states, though sovereign and supreme in their domestic affairs, and as to all matters not conferred by the constitution of the United States upon the federal government, bear .relations to each other with respect to the question now under consideration somewhat different from that of foreign and independent nations. Possibly it would be competent for the states to enact that persons charged with crime in other states should not be taken from the jurisdiction where they are found unless by the law of the demanding state they are not liable to be put upon trial for any other offense than that charged in the demand for his surrender. But I am not aware that any of the states have enacted such regulations. On the contrary, the highest court of Wisconsin, the state from which the relator was demanded and received, has held that a fugitive from justice surrendered to another state upon demand, under the constitution, may be tried in the state from which he fled for any other offense of which its courts may have jurisdiction. State v. Stewart, 60 Wis., 587; Adrianes v. Lagrave, supra.

As this is the law of that, state, it is difficult to see how any rule of comity has been disregarded by reason of what has been done in the case at bar. We do not think it necessary in this case to decide the question as to whether there is a distinction to be observed in cases of interstate and international extradition with respect to the trial of the person extradited for another ánd different offense. We think that as the charge upon which the relator is now held, though designated as robbery, is based upon the identical act for which he was surrendered by the governor of Wisconsin, and then desig noted as grand larceny, that no principle of comity between the states nor any legal right secured to the relator has been violated.

For these reasons the order appealed from should be affirmed.

All concur. .


author: Signor, S.

text:
    In the Matter of the Judicial Settlement of the Estate of Elnathan Wilcox, Deceased.

      (Surrogates Court, Orleans County,

      Filed September 1, 1892.)

    1. Surrogate’s court—Satisfaction of decree—Acknowledgment.
    The satisfaction of a decree of a surrogaie’s court directing the payment of money is regulated by § 2553 of the Code.
    2. Same—Certificate.
    A certificate of_ authority of the officer taking the acknowledgment of such satisfaction in another state, which states that such officer “was duly authorized to take the'same,” is not sufficient: but such certificate should specify that such officer was one authorized by the laws of that state to take the acknowledgment of deeds.

      Motion to file satisfactions of decree.

      Sawyer & Fitch, for ex’r; Whedon & Ryan, for legatees.
   Signor, S.

In this matter certificates of satisfaction of the decree which directs the payment of money are filed by several parties. These certificates are executed out of the state and acknowledged before a notary public, and have attached thereto a certificate of the county clerk which certifies that the officer taking the acknowledgment is a notary public duly commissioned, etc., and “ is duly authorized to take the same,” but does not certify that the officer was authorized by the laws of the state where taken to take the acknowledgment of deeds.

The question has arisen so frequently in this court as to the proper manner of satisfying a decree, that I deem it important to review the provisions of the Code and the practice, in the matter of the satisfaction of decrees of this nature in the surrogate's court. The decree must be satisfied as if it was a judgment of record. Code of Civil Procedure, § 2553. McClellan’s Surrogate Practice, p. 518 (3d ed., 1888), gives Laws of 1867, chap. 782, § 9, as the authority for the satisfaction of a decree, but this act was repealed by the general repealing act of 1880. That act provided that a decree might be satisfied, on filing a release “ acknowledged or proved as now required as to a conveyance of real estate.” It has been suggested that § 2553 applies only to decrees that have been docketed in the county clerk’s office and become practically a judgment of the supreme court. It will be found, however, that this section contains the only provision in regard to such satisfactions, and, in their notes, the codifiers say: “ A clause in the last sentence of this section supersedes Laws 1867, chap. 782, § 9.”

From' this it appears that the intention was to make the clause applicable to all such decrees, whether docketed or not. Section 1260 of the Code provides for the satisfaction .of a judgment, and the last part of the section provides that, when not acknowledged by the clerk or his deputy, the satisfaction “ must be acknowledged or proved and certified in like manner as a deed to be recorded in the county where it is filed.” The provisions for the taking of acknowledgments of such instruments outside of the state are found in Laws 1848, chap. 195, §§ 1 and 2, as amended by Laws 1867, ch. 557. (See 3 Birdseye’s R. S., 2550, § 8.) This act provides that “the proof or acknowledgment of any deed, or other written instrument required to be proved or acknowledged, in order to entitle the same to be recorded or read in evidence, when made by any person residing out of this state and within any other state or territory of the United States, may be made before any officer of such state or territory authorized by the laws thereof to take the proof and acknowledgment of deeds. ” The following section provides that the same may be recorded or read in evidence when the proper officer attaches his certificate “ specifying that such officer was, at the.time of taking such proof or acknowledgment, duly authorized to take the same.”

The certificates before the court are in a form frequently used,. and certify that the officer before whom the annexed instrument was acknowledged was a notary public, etc., and “ was duly authorized to take the same.” If the instrument was a deed, this would be in effect certifying that he was, by the laws of that state, authorized to take the acknowledgment of deeds, but it does not follow that because by the law of the foreign state he was authorized to take the acknowledgment of the satisfaction of a decree in surrogate’s court, he was authorized to take an acknowledgment of deeds. Nor will this be presumed. Bowen v. Stilwell, 9 Civil Pro., 281.

It has been suggested that these certificates follow the words of the statute, and therefore are sufficient, but it will be observed that the statute does not say: certifying that he was authorized to take the same, but “ specifying that he was authorized to take the same.” It is not to be presumed that the county clerk of a county, ■outside of the state, is to certify that, by the laws of the state of New York, an officer of his state was authorized to take acknowledgments, but he may specify enough to warrant the court here in determining. that he had the authority. This authority must be ■derived from the laws of this state. Ross v. Wigg, 34 Hun, 192.

The fact that he was authorized by the laws of the state where he resides to take acknowledgments of deeds would not authorize him to take the acknowledgment of these instruments. His entire authority, so far as his acts in this respect are concerned, is derived from our statute. The statute of this state might have provided that any attorney residing in that state might take the acknowledgment. The specifying required by the clerk is, that the officer taking' is one that is authorized by the laws of that state to take acknowledgment of deeds, as, in the other-case, it would specify that the person taking was an attorney' residing in the state, while, on the other hand, the certifying that the officer was authorized by the laws to take the acknowledgment to a satisfaction of a judgment does not specify him as an officer authorized by the laws of the state to take the acknowledgment. For this reason, that he is not specified, designated or pointed out as one having the required authority, the satisfactions cannot be filed until they are returned and the clerk specifies that the officer taking the acknowledgment was authorized by the laws of that state to take the proof and acknowledgment of deeds.


author: Hatch, J.

text:
    In the Matter of the Application of Alfred Chamavas to become a Citizen of the United States.

      (Superior Court of Buffalo, Special Term,

      Filed September 22, 1892.)

    Naturalization—Naval service not included in act of congress of July 17, 1862.
    Naval service is not embraced within the provisions oí the act of congress of July 17. 1862, which allows an alien “who has enlisted, or shall enlist, in the armies of the United States ” and has been honorably discharged to be admitted to become a citizen without previous declaration, of intention and on proof of only one year’s residence. <

      Application for naturalization.
    No attorneys.
   Hatch, J.

The applicant presented his petition to this court praying that he be admitted to citizenship, basing his claim to such distinction upon the provision of an act of congress passed July 17, 1862. The provision of the law reads “ That any alien,, of the age of twenty-one years and upwards, who has enlisted or shall enlist in the armies of the United States, either the regular or volunteer forces, and has been or shall be hereafter honorably discharged, may be admitted to become a citizen of the United States, upon his petition, without any previous declaration of his. intention to become a citizen of the United States, and that he shall not be required to prove more than one year’s residence within the United States previous to his application to become such citizen; and that the court admitting such alien shall, in addition to such proof of residence and good moral character as is now provided by law, be satisfied by competent proof of such person having been honorably discharged from the service of the United States as aforesaid.”

Petitioner established to the court’s satisfaction that he was born in France, that he entered the naval service of the United States by enlistment therein on the 21st day of June, 1882, and served until June 15, 1883, when he was honorably discharged; that he again entered such service on the 14th day of October, 1883, and was honorably discharged therefrom on January 28, 1884. While serving on board the ship Trenton, under the last enlistment, on a cruise, near Japan, he was taken sick, was then returned by the government to the United States, and then discharged from service.

In all other respects the evidence produced satisfied the requirements of the statute. This statute, as' is seen from its date, was; passed at a time when the government was sorely distressed, and its evident purpose was to induce aliens to enter the service of the United States by holding out to them, as a reward, the high distinction of citizenship in a much shorter period of time than they could otherwise obtain it. To my mind no logical reason can be assigned upon the merits of service for discriminating between men who served in the navy and those who served in the army. The bravery and self-sacrifice of the officers who commanded and the men who manned the guns in that tremendous engagement between the Monitor and the Merrimao in Hampton Roads pales not. by the side of the supreme courage exhibited by the army at Gettysburg ; both marked a line beyond which the invader could not. pass, and from each begun the decadence in the opposing force, in the respective spheres of operation. The service here shown was-not rendered during the war, but the language of the statute is,. “ who has enlisted or shall enlist; ” so the privilege still exists. Notwithstanding 'the palpable existence of legal merit in heroic service, a question of construction has arisen over the language, “who has enlisted or shall enlist in the armies of the United States.”

The difficulty is at once apparent, for no mention is made in terms of the navy or naval forces, marines or sailors. FTo amendment of this law has ever been adopted, while but two decisions have found their way into the books, and these are conflicting. The first was decided' by McCunn, J., at special term in September, 1868. In the Matter of Stewart, 7 Rob., 635.

The conclusion reached in that case was, that the applicant being a naval veteran, who had served during the war, was entitled, under the act, to citizenship. The basis of this decision is, that it was the policy of the law to encourage enlistments; that the service was required in both branches, and that service in each was equally meritorious; that the word “ army ” was of general signification, the equivalent of military service; that the use of the plural noun “ armies ” embraced all the armed forces of the government, naval as well as land. The question again arose in the district court of the district of Oregon, June 1, 1872. In re Bailey, 2 Sawyer, 200.

In this case Deady, J., examines, and cites the several statutes •organizing the army of the United States, and also those establishing the navy, reaching the result that it was not the intent of the act to admit naval service to the benéfit of its provisions, and therefore he denied the petition.

A fair construction of the act, under well settled rules, leads my mind to the conclusion that naval service is not embraced in its terms. Judge McOunn stated: “ If the apparent exclusion of the navy from the benefit of "the law in question was the result of inadvertence, the court should repair the omission by a generous construction.” This rule, however, casts upon the court the burden of legislation and an assumption of power which it does not possess. The rule is that decisions of federal courts must bind in the construction of United States statutes. Hintermister v. First Nat. B'k, 64 N. Y., 214. While this rule is not absolute until the •court of last resort has announced the law, yet in the present case I am impelled to follow the rule of the district court as being a more authoritative adjudication on the subject coupled with my •own view of the act It follows from this that the petition must be denied, but it at the same time suggests that fairness requires remedial legislation.


author: Macomber, J.

text:
    Alice N. Burt et al., Pl’ffs, v. The Lima & Honeoye Falls Railroad Co., Def’t.

      (Supreme Court, Chambers,

      Filed September 15, 1892.)

    1. Raikroad—Highways.
    The occupation and use of highways contemplated by chap. 565, Laws 1890, is only a casual or incidental matter, and does not authorize a railway company organized under the general railroad act to project and build its entire railway along the lines of the highways of the state.
    2. Same.
    Even if a railroad had the right to lay its tracks and operate its road in the highway, it cannot do so without making compensation to the owner of the fee for the additional burden thereby imposed upon the land.

      Motion by the defendant on an order to show cause to dissolve an injunction heretofore granted at chambers, made before the same justice who granted the injunction.

      E. A. Nash and George W. Atwell, Jr., for def’t and motion ; C. A. Shuart, for pl’ffs, opposed.
   Macomber, J.

The defendant is a domestic corporation organized under the general railway act, and proposes to construct and operate its steam locomotive railroad from the village of Lima, N. Y., to the village of Honeoye Falls, N. Y., a distance of four miles.

The purpose of the company is to lay the tracks and operate the road in the highways between these two villages. The route, as I understand it, would be about three miles north from the village of Lima in the highway, with a turn at right angles, east for one mile, also in the highway, to the village Of Honeoye Falls.

It is shown by the moving papers that the consent of most of the-abutting owners along this route has been obtained for this purpose and that the commissioners of highways have also consented to the construction of this railway in the highways. The plaintiffs, however, have not given their consent thereto, and consequently are entitled to maintain this action, because as abutting owners of lands' (their title extending to the middle of the highway) there would be imposed upon the highway to the injury of the plaintiffs a greater burden, if the railroad were permitted to be so constructed, than was originally contemplated in the establishment of the highways.

The affidavits in behalf of the motion show that whatever may be the absolute rights of the defendant, organized under the general railway act, it has no purpose, as a matter of fact, in operating a steam railway in the usual manner in which such railways are conducted; on the contrary, they show that the motive power is to-be what is called a steam motor rather than a steam engine, which,, as I understand it, is nothing more or less than a light steam engine.

They further aver that they intend to operate the road very' much like a street railway, stopping at any place along the highway when any person desires to get aboard or get off the cars. While the good faith of these promises is not to be questioned, I think the court is bound to look at the case in the light of the actual rights which would be secured to the defendant if permitted to operate its road at all. The track, as I understand it, is of the standard gouge, which would admit cars or locomotives from any of the ordinary railways operated in the state. By the 4th section of the railroad act, chap. 565 of the Laws of 1890, the defendant, it is true, would be permitted, if such occupation was required, to construct its railroad “ across, along or upon ” any highway which it should encounter in the route which it had laid out. But such occupation and use of the highways as was contemplated by this statute is only a casual or incidental matter, and does not, I think, authorize a railroad company so organized to project and build its entire railway along the lines of the highways of this state. This was the conclusion reached by Mr. Justice Rumsey in an opinion which has been submitted herein, entitled: “In the matter of the application of this defendant ” to lay its tracks in the main street in Honeoye Falls, and handed down August 20th, 1892. That opinion closes as follows: “ It follows, therefore, that the court has no power to allow this company to lay its tracks in the street upon this application, and that if this company takes the highway or street for that purpose, the. tracks so put there would be a nuisance, and neither the consent of the town or village officers, or any order, would protect it” Even if I were so disposed, I should hesitate on this motion to arrive at a conclusion different from that of Mr. Justice Rumsey in the case named, which was one involving this precise question, as well as others.

But aside from this consideration, I am further of the opinion that whatever may be the rights of the defendant to lay its tracks and operate the railroad in the line proposed, it cannot do so without first making compensation to the plaintiffs. It is no answer to this proposition to say, that damages may be awarded in this action, provided a permanent injunction shall be directed to issue. If the defendant is legally organized and has properly laid out its route, and is entitled to the use of this highway, irrespective of the rights of the public, still it cannot pass the plaintiffs’ premises without first making compensation for the additional burden which the operation of a railway would impose upon their lands. No effort seems to have been made to agree witnthe plaintiffs as to suitable compensation, and no steps have been taken under condemnation proceedings, which are open to the defendant, provided it is able to establish its rights to lay out and operate its railroad on this line, and to avail itself for that purpose of the right of eminent domain.

I have attentively considered the suggestions made by the learned counsel for the defendant touching a modification of the injunction order, so as to permit the construction of the railway to proceed, after making provision for payment of the plaintiffs’ damages; but I see no way by which it may be done with due regard to the plaintiffs’ legal rights. Such a course would only postpone, not avoid the day when the defendant must, before proceeding further, establish its right to appropriate the highways of these two towns to railway purposes.

The provisions of the condemnation law are open to the defendant. If it cannot succeed under them, it ought not to succeed at all. . '

I feel constrained to deny the motion.


author: Finch, J.

text:
    John Brooks, App lt, v.S amuel B. Dick et al., Impl’d, Resp’ts.

      (Court of Appeals,

      Filed October 25, 1892.)

    Pleading—Deatobbbb—Reobganization agbeement.
    The complaint in an action to set aside an agreement made by a reorganization committee with projectors of a consolidated railroad, stated no-facts showing fraud on tlia part of such projectors, but merely alleged, that certain debts which they covenanted to pay were debts owing to one or more members of the committee, and that others were either overestimated or had no real or honest existence, and there was no allegation that, the projectors knew of such facts or made any representations in relation, thereto. On demurrer by the projectors, Held, that no facts were stated sufficient to constitute a cause of action against the demurrants.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term sustaining a demurrer interposed by the defendants Dick and A. C. Huidekoper, and dismissing the complaint as to those defendants.

      W. M. Safford, for app’lt; C. C. Higgins, for resp’ts.

       Affirming 43 St. Rep., 37.

   Finch, J.

The demurrer interposed to the complaint raises-the question whether any cause of action was pleaded as against the two parties demurring. It is their contract with the committee of reorganization which is sought to be annulled, and the inquiry is whether any conduct of their own justifies the intervention of a court of equity. They are independent, contractors. They stand in no trust relation to the bondholders of whom the-plaintiff is one, and owe them no trust duty. Their right to contract in their own interest is clear, and unless some fraudulent representation on their part, or some fraudulent concealment induced the contract, or they took some dishonest advantage of the parties, with. whom, they dealt, there is no ground for interfering with their contract .The complaint alleges no facts of that character. The extreme limit to which it goes consists in the allegation that certain debts which they covenanted to pay were debts owing to-one or more members of the bondholders’ committee with whom their contract was made, and that others were either overestimated or had no real and honest existence.

There is no allegation that they knew of any such fact when they made their agreement, or represented anything to the committee on the subject, or were interested in any false or simulated debts. The Peninsular Gar Go. judgment they owned, and if they bought it at less than its face they were under no obligation to-give the consenting bondholders the profit on their purchase. The Eeed judgment of $75,000 is said -to have had “ no existence in-fact,” but was “used as a pretext to swell the indebtedness.” It seems to be admitted that there was such a'judgment in form, and yet in some way defective or fraudulent and having no honest, foundation. It is not pretended that the committee knew of the defect or even that the contractors had any such knowledge or represented or concealed anything about it, much less that they were at all interested in it Presumably the list of debts to be paid was furnished them by the committee, who included in it whatever there was reasonable ground to believe the company-might be liable to pay, and there is no allegation that either party knew the Eeed judgment not to be such an obligation. One of the debts included in the schedule appeared to be due to a receiver of one of the companies, who was also a member of the contracting committee. There is no averment that it was not an honest debt and honestly due and which would necessarily need to be paid in the process of reorganization, or was to any extent unfairly or unreasonably estimated, but, however that may be, the demurring contractors were in no manner responsible for its character or required to enforce the trust duties due from the committee to the bondholders whom they represented. It is enough that they are not shown to have been interested in or parties to any such breach of faith. The same thing is true of the debt to the Exchange Bank and F. W. Huidekoper’s interest therein.

The complaint shows what the authority of the committee was. It was carefully put in writing and signed by the plaintiff himself. The contract made with the demurrants was clearly within, the scope of that authority, and until some facts are averred which tend to show a fraud on the part of the contractors, or a participation in some fraud of the committee, it is not enough to aver conduct on the part of the latter which might amount as between them and the bondholders to a violation of their trust duties.. While there are in the complaint loose general charges of fraud and conspiracy, no facts are averred which involve the agreement, of the contractors in legal invalidity.

There is an allegation that one of the committee was when appointed the attorney of the two contractors. But they could not. appoint him, and did not appoint him, and it is not distinctly averred that he continued to be their attorney when the contract wás made, or was their attorney in any matters whatever which fell within the scope of the contact. To extend the equitable rule invoked to such a case would carry it to contracts where among the vendors were personal friends or relatives of the vendees, and give it a range and scope almost without a boundary.. Such facts might have some weight in establishing an actual fraud or collusion, but are wholly insufficient to set in operation the-equitable doctrine which denies to the same man the right to contract on both sides of the agreement when his right is challenged by those to whom he owes trust duties.

I have said briefly that the contract made was within the au-' thority conferred_ by the bondholders upon their committee, I base that conclusion upon the whole scope of the power conferred, which looked not only to a reorganization, but to a consolidation with some other company, and contemplated a use of the common fund for whatever was necessary or incidental to the purpose authorized ; but especially upon the tenth and fifteenth clauses of the agreement marked A, which authorize a further consolidation, the payment of debts and expenses, and removal of liens, and a sale of a part or the whole of the common fund or estate. The case, therefore, shows authority to make the contract, a free action of independent contractors, and no fact warranting an inference of collusion or fraud.

The judgment should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    The People ex rel. Henry Day, Trustee, Resp’t, v. Edward P. Barker et al., Com’rs of Taxes, App’lts.

      (Court of Appeals,

      Filed October 25, 1892.)

    Taxes—Personal property out op state.
    Relator and two others were trustees for beneficiaries residing without ■this state. _ Relator and one of the trustees resided in New Jersey, the third trustee living in New York. Held, that trust securities in the keeping of a safe deposit company in New Jersey were not liable to taxation in this state, even though some of them may have been in bonds secured by mortgages upon New York real estate.
    Appeal fronp order of the supreme court, general term, first department, affirming order vacating or reducing assessments of personal property.

      George S. Coleman, for app’lts; Daniel Lord, Jr., for resp’t.

       Affirming 44 St. Rep., 573.

   Per Curiam.

We are unable to perceive any material distinction between this case and that of People ex rel. Darrow v. Coleman, 119 N. Y., 137; 28 St. Rep., 937. Here, as there, the securities constituting the trust fund were with a safe deposit company in New Jersey. The beneficiaries were non-residents. The relator and one of his co-trustees are residents of New Jersey; the other trustee residing in Westchester county, in this state. The counsel for the appellants contends that while, in the other case, the non-resident trustee had the possession of the securities in the city where he resided, in the present case neither the relator nor the other non-resident trustee had the custody, or physical control of the securities, and they did not reside in the particular city where the securities were deposited. The fact is that access to these trust securities was permitted to any two of the trustees, or to one of them when in company with their secretary.. But the difference is unimportant. The possession of the securities was in the three trustees jointly and not in the relator alone. Nor can the description of the securities affect the question, for although some may have been in bonds secured by mortgages upon New York real estate, they were debts which were due to the three trustees jointly. Assuming the relator may have been residing in New York city on the second Monday of January, 1891, the securities were not within this state at the time; and the act of 1883, .chapter 392, would not apply, because they were debts or obligations which were not due solely to the relator, if he could be deemed an “ owner ” within the terminology of the act, but to him jointly with others. Our decision in the Darrow case must be ¡regarded as controlling the disposition of the present case.

The order should be affirmed, with costs.

All concur, except Maynard, J., not voting.


author: Gray, J.

text:
    Jane A. McDougall et al., Adm’rs, Resp’ts, v. The Provident Savings Life Assurance Society of New York, App’lt.

      (Court of Appeals,

      Filed October 25, 1892.)

    Insurance (Lufe)—Notice—Laws 1877, chap. 331.
    Defendant by its policy promised in July, 1884, to pay $10,000 upon; the death of assured, “provided such death shall occur before twelve o’clock noon on the 33d day of July, 1885,” with an agreement to renew from year to year upon the prepayment of the annual premium and expense charges. A. notice was seasonably mailed in June, 1888, which, stated that “ the premium, as stated below, on your policy No. 13,303, in this society, will become due and payable at this office on the 33d day of July, 1888. In order to continue and extend the insurance it will be necessary that the payments required for that purpose shall be paid on or before the date above mentioned, as stipulated in the policy contract. ”" Assured died in November, 1888, not having paid the premium. Heldr that this notice was definite in its statements and in conformity with chap. 331, Laws 1877.
    Appeal from judgment of the supreme court, general term, fifth department, denying defendant’s motion for a new trial, and ordering judgment for plaintiff on verdict

      David B. Hill and Edwin B. Smith, for app’lt; J. H. Stevens, for resp’ts.

       Reversing 46 St. Rep., 503.

   Gray, J.

This action is to enforce the payment of the sum. secured in a policy of insurance, issued by the defendant to-the plaintiffs’ intestate on July 23, 1884. By its terms the defendant promised to pay to the assured, or to his legal representatives, the sum of $10,000, within ninety days after satisfactory proof of his death, provided such death shall occur before twelve o’clock noon on the 23d day of July, 1885.” Defendant further promised “to renew and extend this insurance-during each successive year from' the date thereof, upon condition that the assured shall pay on or before the 23d day of July, in each successive year during the continuance of the contract, the mortuary premium * * * and also an expense-charge of three dollars on each $1,000 insured therein; the payment of said annual mortuary premium and the annual expense charge being the consideration for the continuance of the insurance in each successive year, etc.”

It is plain that this policy was a contract for an insurance for the term of one year only; providing, however, by its terms for its renewal for successive years, upon compliance by the assured - with the conditions named. Eenewals were effected during the years 1885, 1886 and 1887, but the assured failed to make those payments on July 23, 1888, which were required in order to extend his policy over another year, and he died in-November following. His administrators have rested, and must rest, their right to a recovery upon the proposition that the defendant did not give to the assured the form of notice prescribed by a statute of this state as a prerequisite to the right to declare a policy of life insurance forfeited.

The defendant, in support of its appeal from the judgment, which the plaintiffs have succeeded in recovering, presents two grounds. It denies that the statute in question applies to such a .policy, and it insists that if it does, the notice which was in fact given to the assured was sufficient That statute (being chapter ■821 of the Laws of 1877, amending chapter 341 of the Laws of 1876), provides that “No life insurance company doing business in this state shall have power to declare forfeited or lapsed any policy hereafter issued or renewed, by reason of non-payment of .any annual premium or interest, or any portion thereof, except as hereinafter provided. " Whenever any premium or interest due upon any such policy shall remain unpaid when due, a written or printed notice stating the amount of such premium or interest due on such policy, the place where said premium or interest •should be paid, and the person to whom the same is payable, shall • be duly addressed and mailed to the person whose life is assured.” 'Omitting the description of the part of the notice for the payment of an unpaid premium, and declaring a forfeiture if the notice is not complied with, the final proviso reads “provided, however, that a notice stating when the premium will fall due, and that if not paid the policy and all payments thereon will become forfeited and void, served in the manner hereinbefore provided, at least SO, and not more than 60, days prior to the day when the. premium is payable, shall have the same effect as the service of the notice hereinbefore provided for.” •

Upon the construction of this statute the appellants’ counsel 'has made an elaborate argument to the effect that it cannot be applicable to this kind of a contract. With much ability he has analyzed its provisions and insists that they must refer, by force of the language used, to the ordinary policy of insurance, which is to be kept in force until the happening of the event assured against, by regular payments, annually, or at shorter stated periods. In the continuance of such a policy the assured has a vested inter■est; by reason of the fact that his annual payments are calculated •and fixed at amounts to cover more than a risk from year to year and go to form a reserve, or accumulated fund, to be offset against •insurance in after years, and which will enable the insurer to make eventual payments. The learned counsel argues that the mischief to be remedied by this statute is the forfeiture of such a vested interest; whereas, in this policy, the insurance agreement is for a term of one year; the payment was for such a risk and it constituted no consideration for any insurance beyond the expiration of the term.

The question is an interesting one and its solution might not be free from difficulty; but, inasmuch as the appellant must succeed upon the second ground advanced, we do not think it necessary to pass upon the question. We should hesitate to call in question the applicability of the statute to any class of life insurance poli-cies. It was intended to and, undoubtedly, does subserve a useful purpose, in throwing about the contract between the insurer and the assured reasonable safeguards against a forfeiture or the lapsing of the interest of the assured, but we fail to perceive that any substantial requisite was wanting in the notice which the company gave to the assured. The notice was seasonably mailed, and stated that “ the premium, as stated below, on your policy Ho. 13,302 in this society will become due and payable at this office on the 23d day of July, 1888. In order to continue and extend the insurance it will be necessary that the payments required for that purpose shall be paid on or before the date above mentioned as stipulated in the policy .contract” Then follow statements of the place where, and the persons to whom payments may be made, and of the amounts making up a net amount to be paid. This notice would seem to be very definite in its statements ; but the respondents say, and the court below has thought, that it is not in conformity with the provisions of the statute, for iot literally following the statutory language.

In support of this they cite Phelan v. The Northwestern Mutual Life Insurance Co., 113 N. Y., 147; 22 St. Rep., 305, where this iourt held a notice insufficient. The notice there was that the conditions of your policy are that payment must be made on or before the day the premium is due, and members neglecting so to pay are carrying their own risk and what was condemned was the use of language not intelligible to all. To say that persons are “ carrying their own risk ” is not plainly embodying the notice which the statute requires, and might be incomprehensible to those unlearned in insurance phraseology. But in this case, as the appellant’s counsel has clearly shown, the notice to be given could not closely conform to the statute; inasmuch as the yearly method of insurance was of a special character. The notice was to remind-the assured of the privilege he possessed of electing to have the contract continued and extended over the ensuing year and of the conditions of its exercise. It could not state that if the “ premium ” was not paid the policy and all payments thereon will become forfeited and void; for that would not be accurate. Something more than a premium was to be paid to extend the contract of insurance, and, therefore, the company notified him that certain “ payments ” were necessary for that purpose. The obligation of the statute must not be unreasonably insisted upon. It provides for the giving of a notice which shall be unambiguous and intelligible to all When applied to an insurance contract out of the ordinary form, it secures to the .assured such a notice as will contain statements reminding him of when and where be is to make any' payments pursuant to the terms of the contract, their amount and the effect of non-payment. The statute was not meant to operate harshly upon the insurer, but to afford a protection,,to the assured by the reasonable requirement of a notice couched in plain terms from the insurer before the interest of the assured Could be forfeited. To hold that where every essential fact required to be known is intelligibly stated in the notice it may be disregarded, if, not literally following the words of the statutory provision, would be a 'most harsh and unwarrantable construction.

Its words are readily capable of being used in the ordinary cases of insurance contracts; but in cases not precisely had in view and where some regard must be had to the nature -of the contract itself, it is sufficient if the essential information, intended to be afforded by the statute, is found in the notice actually given. If the provisions of the act are to be extended in their application to the case of a contract made for the insurance of a life for the term of twelve” months, the flexibility of its. language must certainly admit the sufficiency of a notice from the insurer in conformity ydth that contract.-

For these reasons we conclude that it was error for the court below to order judgment for the plaintiffs on the verdict.

The order of the general term and the judgment entered thereon should be reversed and a new trial ordered, with costs to abide the event.

All concur, except Andrews, J., absent.