text:
    James Keller, Respondent, v. The Philadelphia and Reading Coal and Iron Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.


source: Caselaw Access Project

author: Dykman, A.;

license: Public Domain

text:
    William Neville, Respondent, v. Schuyler Steam Towboat Line, Appellant.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Dykman, A.;

Gilbert, J., not sitting.


author: Barnard, P. J.

text:
    John Hayes, Respondent, v. The Forty-second Street and Grand Street Ferry Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Mary E. McGuire, by Guardian, etc., Respondent, v. William Spence, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


author: Gilbert, J.

text:
    Francis McLaughlin, Respondent, v. George W. Campbell and George A. Thayer, Appellants.
   Judgment and. order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Gilbert, J.


author: Dykman, J.

text:
    William T. Lee, Respondent, v. The Atlantic Yacht Club, Appellant.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Dykman, J.


text:
    Alexander T. Arthur and Joseph M. Pray, as Executors, etc., Appellants, v. Thomas M. Riley, Sheriff, etc., Respondent.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Patrick Kelly, Respondent, v. The City of Yonkers, Appellant, Impleaded, etc.
   Judgment appealed from reversed, and new trial granted at circuit, costs to abide event. Opinion by

Gilbert, J.


text:
    Joseph A. Joel, Appellant, v. Edward B. Fowler and William C. Reddy, Respondents.
   Order affirmed, with costs and dis bursements. Opinion by

Dykman, J.


text:
    Charles Raht, as Executor, etc., v. Henry Y. Attrill and others.
   Appeals ;from order denying motion of Attrill, and from order granting motion of Souter, settled and withdrawn.


text:
    Theodore D. Dimon, Receiver, etc., v. Zsigo Weiss.
   Judgment • reversed and new trial granted at circuit. Order of reference vacated. Opinion by

Gilbert, J.


author: Gilbert, J.;

text:
    Herman Tallman, Appellant, v. Albert G. Zabriskie, Respondent.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


author: Barnard, P. J.;

text:
    The Westchester Gas-Light Company of the City of Yonkers, Appellant, v. The Yonkers Gas-Light Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Lewis Dennis, Respondent, v. Benson Denny, Appellant.

   Judgment of County Court affirmed, with costs. Opinion by

Barnard, P. J.


text:
    John McDermott, Respondent, v. Sarah N. Bull, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Charles C. Moore, Respondent, v. William L. Allison, Appellant.
   Judgment reversed and new trial granted. Order of reference vacated. Opinion by

Gilbert, J.


text:
    William H. Denike, Respondent, v. The Orange County Mutual Insurance Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


author: Dykman, J.;

text:
    John S. Harris, Plaintiff, v. Aaron Healey and others, Defendants.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Gilbert, J., not sitting.


text:
    Theodore D. Holmes and William H. Holmes, Appellants, v. Augusta F. A. Winans and H. H. Winans, Respondents.
   Judgment reversed and new trial granted, costs to abide event. Order of reference vacated. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. William Pelham, Appellant, v. James Jourdan, Commissioner of Police and Excise, Respondent.
   Order removing ■ relator reversed. Opinion by

Dykman, J.


text:
    Catharine Ann Hedges, Appellant, v. Henry D. Goetschius and Eugene H. Goetschius, Respondents.
   Judgment of County Court affirmed, with costs. Opinion by

Barnard, P. J.


author: Barnard, P. J.; Barnard, P. J.

text:
    The Commonwealth Life Insurance Company, Respondent, v. George Bowman and others, Appellants.
   Order of 6th January, 1880, vacating stay affirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.

Order denying resale affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.


text:
    George C. Genet, Appellant, v. The City of Brooklyn, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Gilbert, J., not sitting.


text:
    In the Matter of the Accounting of William E. Haxtun, Executor, etc.
   Decree of surrogate reversed and executor ordered to appear and be examined. Opinion by

Barnard, P. J.


text:
    In the Matter of the Will of David Hendricks, Deceased.
   Decree of surrogate admitting will to probate affirmed, with costs. Opinion by

Dykman, J.


text:
    Beverly Haight and Susan Haight, Respondents, v. The Continental Insurance Company of the City of New York, Appellants.
   Order setting aside nonsuit affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    John Glusing, Respondent, v. Thomas R. Sharp, Receiver, etc., Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    Albert Palmer Company, Appellant, v. Charles B. Dickinson, Respondent.
   Order dismissing appeal affirmed, with costs and disbursements. Opinion by

Gilbert, J.


text:
    Louis Bossert, Respondent, v. Joseph Arnold, Appellant.
   Judgment of County Court and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    John W. Brown, Appellant, v. Charles Carroll Smith and Richard Boldridge, Respondents.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman and Cullen, JJ.;

text:
    Robert C. Embree, Respondent, v. Miriam L. Franklin, Appellant.
   Judgment reversed and new trial granted; order denying new trial affirmed and leave given to the respondent to appeal to Court of Appeals, costs to abide event. Opinion by

Dykman and Cullen, JJ.;

Gilbert, J., dissenting.


text:
    Robert N. Hand, Respondent, v. John Newton, Appellant.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Dye-man, J., dissenting.


text:
    Mary A. Smith, Respondent, v. Albert Smith, Appellant.
   Order amending decree reversed, and referee ordered to take proof of facts stated in moving and opposing affidavits. Opinion by

Barnard, P. J.


author: Barnard, P. J.'

text:
    In the Matter of the Habeas Corpus of Albert Smith, Jr.
   Order taking custody of child from the father reversed, and referee ordered to take proof of the facts stated in petition and return. Opinion by

Barnard, P. J.'


author: Cullen, J.;

text:
    Judah B. Voorhees, as Collector, etc., of the Estate of Pierre M. Van Wyck, Deceased, Respondent, v. Francis Xavier Huber, Appellant.
   Judgment affirmed, without costs of this appeal. Opinion by

Cullen, J.;

Dykman, J., dissenting.


author: Davis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY HENDERSON, Appellant, v. THE JUSTICES OF THE COURT OF SPECIAL SESSIONS OF THE COUNTY OF NEW YORK, Respondents.

      Larceny — one comerting to lvb own, use money given to him to have changed is not guilty of larceny.

    A saloon keeper, who had furnished twenty-five cents worth of liquor to a customer, received from him a twenty dollar gold piece with directions to go out and change it and bring back to the customer the change due to him. The saloon keeper went out for that purpose, gambled with the twenty dollar gold piece and lost it.

      'Held, that he could not he convicted of larceny. •

      Hildebrand v. People (56 N. Y., 384) and Beg. v. Thomas (9 Car. & Payne, 741) criticised and followed.
    Certiorari to the Court of Special Sessions, to review the conviction of the appellant of petit larceny.

      William F. Kintaing and Maw-ice Meyer, for the appellant

      John Vincent, for the respondent.
   Davis, P. J.:

The appellant was tried in the Court of Special Sessions on the sixteenth of August last, upon a complaint preferred by one Robert

68 Richardson, charging him with the larceny of a twenty dollar gold piece. He was convicted and sentenced to the penitentiary for three months. The appellant was a saloon keeper, and it appears by the testimony that the complainant went into his saloon and called for some lager. The complainant states what then took place, as follows:

“ I gave him a twenty dollar gold piece, and he said that he had no change; I told him to go out and get change; he went out and did not come back again.

Q. How much did you owe him ? A. Twenty-five cents.

Q. How much money did you give him? A. A twenty dollar piece.

Q. You gave it to him for the purpose of changing it, and he did not return ? A. Yes, sir.

Q. You claim therefore, that he has taken that twenty dollars from you? A. Yes, sir.”

On cross-examination he further testified as follows:

Q. “You gave this man the twenty dollars in his place of business? A. Yes, sir.

Q. He told you he was going out to get some change ? A. Yes, sir.

Q. When did you next see him after you gave him the twenty dollars and he left the store ? A. After five o’clock.

Q. How long was it after you gave him the money ? A. I gave it to him between one and two o’clock, and I guess it- was half-past five o’clock when I saw him again.

Q. Where did you see him then ? A. I met him on the street.

Q. How far from his place of business ? A. A block or two; I am not certain.

Q. You then spoke to him about the money ? A. The detective who was with me did.

Q. What did he say ? A. He said he wanted to play some kind of a game.”

The appellant was called as a witness on his own behalf, and testified that the complainant came into his place and had something to drink, amounting to twenty-five cents; that he had only fourteen dollars in change, and told the complainant that he had not enough to change the twenty dollar gold piece. The complainant said “go out and get change and come back and give me my change; ” that he went up the Sixth avenue as far as Thirtieth Btreet to get change, and there he “ played it ” and lost the twenty dollars, and had no intention at the time he received the money of cheating the complainant ont of it.

If the question presented by this case were a new one, we should have no hesitation in holding that the conviction was justified by the evidence, for it is clear that there was no intention on the part of the complainant in handing the twenty dollar gold piece to be changed to part with his property in it, but that he simply parted with possession for the specific purpose of having it changed so as to .enable him to pay to the appellant twenty-five cents out of the change; and that the appellant having it for a specific purpose and without property, his possession was in law the possession of the owner of the coin, and his subsequent act in gambling it' away was such a conversion as ought, and in our opinion does, constitute the crime of larceny. But the case is precisely parallel in all its features to that of Reg. v. Thomas (9 Car. & Payne, 741). In that case the prisoner took a sovereign to go out and get it changed but never returned either with it or the change. ColeRIDGe, J., held that the prosecutor having permitted the sovereign to be taken away for change could never have expected to receive back that specific coin; he had therefore divested himself at the time of the entire possession of the sovereign, consequently thei’e was not a sufficient trespass to" constitute larceny.

The learned judge overlooked Ann Atkinson's case (Cas. Cro. Law, 247), in which it was held that if one stole guineas delivered for the purpose of being changed into half guineas it was larceny. That case is cited approvingly in Ilawkin’s Pleas of the Crown (vol. 1, p. 210), and again in 2 Bussell on Crimes (p. 21), in both of which authorities the following is laid down as the law in such cases: So, also, if a watchmaker steal a watch intrusted to him to clean, or if one steal clothes delivered for. the purpose of being washed, or guineas delivered for the purpose of being changed into half guineas, or a watch delivered for the purpose of being pawned, in all these circumstances the goods taken have been thought to remain in the possession of the proprietor, and the taking of them away held to be felony.” Hawkins cites to each of these examples an authority on which it rests.

But we are not at liberty to follow our own opinion of this case because the Court of Appeals have distinctly recognized the case of Reg. v. Thomas as sound law.

In Hildebrand v. People (56 N. Y., 394) the facts were these: The prosecutor handed to the prisoner a fifty dollar bill to take out ten cents in payment for a glass of soda. The prisoner put down a few coppers upon the counter and when asked for the change he took the prosecutor by the neck and shoved him out of doors and kept the money. The question was whether larceny could be predicated upon those facts. The Court of Appeals, affirming the decision of this court, held that the prisoner was rightfully convicted. The prisoner relied upon the case of Reg. v. Thomas, and after reciting the facts in that case the court proceeded to distin-' guish it from the one then at bar by stating that in the Thomas case all control, power and possession was parted with, and the prisoner was intrusted with the money and was not expected' to return it. Here, as we have seen, the prosecutor retained the control, and legally the possession and property. The line of distinction is a narrow one, but it is substantial and sufficiently well defined.”

The learned chief judge had previously in describing the transaction in Hildebrand’s case said as follows: “But in this case I do not think the prosecutor should be deemed to have parted either with the possession of or property in the bill. It was an incomplete transaction to be consummated in the presence and under the personal control of, the prosecutor. There was no trust or confidence reposed in the prisoner, and none intended to be. The delivery of the bill and the giving change were to be simultaneous acts, and until the latter was paid the delivery was not complete. The prosecutor laid his bill upon the counter and impliedly told the prisoner he could have it on delivering to him forty-nine dollars and ninety cents. Until this was done neither possession nor property passed, and in the meantime the bill remained in legal contemplation under the control and in the possession of the prosecutor.”

This opinion had the unanimous concurrence of the court. In the People v. McDonald (43 N. Y., 61), the same learned judge said: “ If money or property is delivered by the owner to a person for mere custody, or for some specific purpose, the legal possession remains in the owner, and a criminal conversion of it by. the custodian is larceny. A familiar illustration of this rule is the case of servants intrusted with the care of property belonging to their masters.”

In Smith v. People (53 N. Y., 111), it was said by AlleN, J.: “ The rule is, that when the delivery of goods is made for a certain special and particular purpose, the possession is still supposed to reside, not parted with, in the first proprietor.”

In Hilderbrand’s case, the possession of the bill was delivered in the bar-room of the accused, for the purpose of being changed to take out the sum of ten cents in payment for a glass of soda. The prisoner took and kept the bill and refused to deliver the change. In this case the twenty dollar gold piece was delivered in the saloon for the purpose of l>eing changed. The prisoner took the same for the purpose of getting it changed, went out to get the same with the consent of the complainant, but instead of getting it changed, he went to a gambling place; and lost it in gambling. He had nothing but a naked manual possession for a specific purpose, totally without property. The title to the coin remained in the complainant, and he could at any moment have recalled the possession before the coin was changed. If it had been taken from the possession of the prisoner by violence, the owner could have maintained trespass for injury to his property, and it would have been entirely proper, if the appellant had been robbed of the coin, to have averred, in an indictment for the robbery, the ownership in the complainant.

The distinction in the cases is so extremely “ narrow” that we should have felt entirely justified in disregarding it, but for the fact that the Court of Appeals in Hildebrand v. The People, gave its sanction to the case of Reg. v. Thomas, and declared it to be sound law, thereby holding in effect that a conviction of larceny could not be sustained in a case like 'this.

We are constrained, therefore, to accept that decision as authority, and consequently, the conviction must be reversed and the appellant discharged.

Brady, J., concurred.

Present — Davis, P. J., and Beady, J.

Conviction reversed and appellant discharged.


text:
    CATHARINE LACHENMEYER, Respondent, v. AUGUST LACHENMEYER, Appellant.

      Order of a/rrest — power of a judge out of court, in the first judicial district, tomaJce it — it should not purport to he made in court— Code of Civil Procedure, secs. 770, 550, 551.
    Under section 770 of the Code of Civil Procedure providing that, in the first judicial district, "a motion which elsewhere must he made in court maybe made to a judge out of court, except for a new trial on the merits,” an order ef arrest may, in that district, be granted, in one of the classes of actions described in subdivision 4 of section 550 of the Code of Civil Procedure, by a judge out of court, although in all the other districts of the State such an order can only be granted by the court.
    When an order is made by a judge out of court in the first judicial district, under the power conferred upon him by the said section 770, it should not be in form an order of the court, nor should it recite that it was made in court at a Special Term held before the judge who made it.
    Appeal from order of tbe Special Term denying a motion to vacate an order of arrest, granted in this action brought to procure a limited divorce.

      George F. Icmgbien, for the appellant.

      Albert Fay, for the respondent.
   Davis, P. J.:

The appellant was arrested upon an order of arrest granted in one of the class of actions described in subdivision 4 of section 550 of the Code. In that class of actions section 551 provides that “the order of arrest can be granted only by the court, is always in its discretion, * * * and may be granted where a proper case therefor is presented at any time before final judgment.”

The order in this case was not granted by the court but by a justice of this district out of court. In Boucicault v. Boucicault (21 Hun, 431), it was held by this General Term .that an application for an order of arrest in a ease like the present in character, was rightfully made to, and properly granted by a justice out of court; and that the authority to make such an order was clearly granted by section 770 of the Code. The mandatory part of the order in that case was substantially the same as that of the order now under consideration; but it had a caption which recited it to have been made “ at a Special Term held at the court-house in the city of New York,” etc. In other words, it was in form an order of the Special Term. It was suggested in that case that the order was granted by the justice after the adjournment of the Special Term. But it was held that that fact, if true, would not affect the validity of the order, because of the provision of section 770 above cited.

It is apparent that the legislature, by sections 550 and 551 have established a general rule which requires that in the cases specified in subdivision á of section 550, an order of arrest can be granted only by the court, and when granted by the court, it must appear in form to be an order of the court by which it is granted, and not of a justice of the court. But the legislature have seen fit to make to this general rule an exception, which, so far as it goes, modifies or supersedes the rule in the cases to which it is applicable. By section 768 of the Code, it is declared that an application for an order is a motion. This, of course, includes applications for orders of arrest. Section 770 enacts that in the first judicial district “a motion which elsewhere must be made in court, may be made to a judge out of court, except for a new trial on the merits.” The exception expresses the only limitation; and, therefore, any application for an order, in an action pending in the first judicial district (except for a new trial on the merits) may be made to a judge out of court, although elsewhere it must be made in court. Or, in other words, a judge in the first judicial district has the same power to make an order which elsewhere must be made by a court, as the court has in the other districts of the State. This does not seem to be disputed by the counsel for the appellant; but he insists that when an order of this kind is made under section 770, it must be in form an order of the court, although in fact made by a judge out of court; and that a judge out of court has no jurisdiction except to make a formal order of the court, reciting that it is made in court at a Special Term held before him. This reduces the question to one merely of form, and requires the judge who makes an order out of court, to recite untruly that he made it in court, and as a court, wben in fact be was acting under tbe power conferred upon him “ as a judge out of court.” It certainly is a clear proposition that a judge out of court is not a judge sitting in court, and therefore, is not a court; but is precisely what the statute declares him to be — a judge out of court, making an order as such, and not' as a court. The distinction between a judge and a court is very clear and well defined, and the Court of Appeals, in Heishon v. The Knickerbocker Insurance Company (17 N. Y., 278), recognized and enforced that distinction. That case arose under sections 872 and 813 of the Code, which provides that a person desiring to take a deposition in a case prescribed in the article in which that section is found, may present “to a judge of the court in which the action is pending * * * an affidavit setting forth as follows: * * * ; ” and “ the judge to whom such an affidavit is presented must grant an order for the examination,” etc. A motion was •made upon affidavit and notice at Special Term for such an order, and the Court of Appeals held that, the court had no power to make the order. It was a court order and not the order of the judge, and for that reason it was reversed on appeal. It does not, therefore, seem to us to be true that when a provision of the Code gives power to make an order of arrest in a case like this to a judge out of court in the first judicial district, it is intended that he should make such an order as a court falsely reciting that it was made by and at a Special Term held before him at the court-house or elsewhere, and that all his power in the matter depends upon his thus falsifying the facts under which he acted. It is so manifest that an order made at a Special Term is not the order of a judge out of court, that we can see nq mode of making it clearer than it appears on the face of the section itself. In Phinney v. Broschell (19 Hun, 116) the order of service by publication contained a caption which recited it to have been made at' a Special 'Term of the court at a time named: “Present — Hon. Abbaham R. LawRENCe, Justice,” and it was signed, “ Enter, A. R. L., J. S. C.” A motion was made to vacate the order solely on the ground that it was made by the court and not by a judge as required by the act. It appeared by the papers in the case on the motion that the order was in fact made by a judge out of court. It was held that the caption preceding the order is not at all conclusive as to its character, and that the fact that tbe judge directed it to be entered did not affect the order or change its character, but that the duty of the court was to look at the facts as they were really shown by the papers to have been; and as they disclosed that the order was made by a judge out of court the order vacating the attachment on that ground was reversed by the General Term. This order it is understood was afterwards affirmed by the Court of Appeals. This case shows that in respect to the order, substance only is required and not mere form. But the form of the order, it should be added, is controlled by section 561 of the Code, which provides that the order “ must be subscribed by the plaintiff’s attorney and except where it is granted by the court, by the judge.” In this case the order was subscribed by the plaintiff’s attorney and by the judge as required by the section, and it cannot be claimed that it is within the exception, because it certainly was not an order of the court, even if it be true that it might have been entered as such.

All the other provisions of the Code cited by the counsel for the appellant as applicable to an order which must be granted by the court are of necessity limited in their application by the provision that such order may, under the circumstances prescribed, be granted by a judge out of court.

¥e see no difficulty, therefore, in holding that the order was right and should not be set aside for any reason touching its form.

Some other objections are made by the counsel for the appellant, but we do not regard them as of sufficient importance to call for further consideration.

The order should be affirmed, with ten dollars costs and disbursements.

Brady, J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order affirmed, with ten dollars costs and disbursements.


text:
    JOHN S. PROUTY, Respondent v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY, Appellant.

      Judgment — the rate of interest is determined by the law existing at the time of its entry —1879, chap. 538.
    January 26, 1878, the plaintiff recovered a judgment against the defendant corporation, which, among other things, ordered and adjudged that it should, immediately after the service upon it of a copy thereof, pay to the plaintiff, out of its net earnings, the sum of $53,184.88, together with interest thereon from the entry of said judgment, and also that in ■ case of any failure or omission of the said defendant to pay the said sum and such interest within thirty days after such service of the said judgment, that the plaintiff have execution therefor against - the said defendant. The judgment was affirmed by the General Term and the Court of Appeals.

      Held, that interest should be computed upon the judgment at the rate of seven per cent per annum, and that the passage of chapter 538 of 1869 did not reduce such rate to six per cent from and after January 1, 1880.
    Appeal from an order of the Special Term denying a motion for an order directing that the sheriff of the city and county of New York return an execution issued upon the judgment recovered herein wholly satisfied, or that the judgment be discharged and marked satisfied of record.
    The judgment provided, among other things, as follows, viz.:
    “ And it is hereby further ordered, adjudged, determined and decreed that the said corporation defendant, The Lake Shore and Michigan Southern Railway Company do immediately, after the service upon the said company,- or upon the treasurer thereof, or upon any member of its board of directors, of a copy of this judgment, forthwith declare and make payable, and thereupon pay out of any net earnings of the said company to the said plaintiff, the said sum of $53,184.88, hereinbefore mentioned, together with interest-thereon from the entry of said judgment; and also that, in case of any failure, neglect or omission of said defendant corporation, The Lake Shore and Michigan Southern Railway Company, within thirty days after such service of said judgment, to declare and make payable, and to pay to said plaintiff the said sum of $53,184.88, and such interest, that the said plaintiff have execution therefor against the said defendant.”

      E. 8. Sapallo, for the appellant.

      Eueien Birdseye, for the respondent.
   Davis, P. J.:

The respondent brought suit to compel the payment of certain dividends previously declared, and to which he claimed to be entitled. On the 26th day of January, 1873, he recovered judgment against the appellant, which, amongst other things, adjudged that the appellant do immediately, after service of a copy of this judgment, forthwith declare and make payable, and thereupon pay, out of any net earnings of the said company to the said plaintiff, the said sum of $53,181.88, hereinbefore • mentioned, together with interest thereon from the entry of said judgment; and further directing that in case of failure, for thirty days after such service, execution shall' issue for said sum and interest. On appeal from the judgment to the General Term of this court, and afterwards to the Court of Appeals, the judgment was affirmed, and failure to comply with its directions having occurred, an execu- ’ tion was duly issued for the amount of the judgment, with interest.

The appellant thereupon paid to the sheriff the amount of said judgment, with interest, at the rate of seven per cent, up to the 1st of January, 1880, and interest at the rate of six per cent from January 1, 1880, to May 21, 1881, the time of such payment, and demanded that the execution be returned satisfied.

The sheriff, by instruction of the respondent, received the amount so paid upon account, and demanded the amount which would be the balance due upon computing the interest at the rate of seven per cent for the whole time.

The only question presented is whether interest on a judgment shall be computed as done by the appellant or as claimed by the respondent, and that depends altogether upon the question whether the act of June, 1879 (chap. 538), which took effect January 1,1880, operates to affect the rate of interest on a judgment after the time it took effect. The act provides as follows :

1. The rate of interest upon the loan or forbearance of any money, goods or things in action shall be six dollars upon one hundred dollars for one year, and after that rate for a greater or less sum, or for a longer or shorter time; but nothing herein contained shall be so construed as to in any way affect any contract or obligation made before the passage of this act.

2. All acts or parts of acts inconsistent with the provisions of this act are hereby repealed.

By statute a judgment bears interest from the time it is perfected. (Laws of 1844, chap. 324, p. 508.) The effect of the statute is to create an obligation of the highest character to pay such interest, and we have no question that the rate of interest in such a case is controlled by the statute, fixing the same which exists at the time of the entry of the judgment. But in this case, as will be seen by the above quotation from the judgment itself, it was expressly adjudged that the appellant should pay the sum specified in the judgment with interest thereon from the entry thereof. And the judgment having been affirmed both by this court and the court of last resort, the obligation to pay t.he interest does not depend upon statute nor upon the idea that it is a penalty by way of default. It is a part of the amount recovered, and is as much expressly adjudged to be paid as is the sum specified as damages. It is conceded that the rate of interest required'to be paid up to the time the act reducing interest took effect was seven per cent, and the claim is that from that time by virtue of that statute the rate -was reduced to- six per cent. But the statute of June, 1879, expressly provides that nothing therein contained shall be so construed as to in any way affect any contract or obligation made before the passage of the act. It cannot be held, therefore, to affect any obligation existing previous to the 1st of January, 1880, and the obligation in this case not only existed by virtue of the statute but was imposed by the form of the judgment, and in either point of view it was in our opinion in no degree affected by the new statute. Besides a judgment is the highest form of contract, and as such it was a contract made before the act reducing the rate of interest took effect. In Erwin v. The Neversink Company (23 Hun, 578) this court held that the act of June, 1879, did not affect the interest to be computed upon a verdict recovered for an injury causing death which happened prior to the passage of the act. A statute required the court to add interest on such verdict from the time when the injury causing the death happened. The Court of Appeals have, however, in Salter v. Utica and Black River Railroad Company (86 N. Y., 401), recently held that the statute reducing the rate of interest was applicable to such cases, and reduced the rate of interest to-six per cent. That decision is based upon some extraordinary force given to the use of the words contract or obligation made,” in the act.

That decision, however, has no bearing, in our judgment, upon the question in this case, because it is not necessary to hold in this case that an obligation to pay interest,” created by statute, is not within the phrase “ obligation made before the passage of this act,” as used in the act of 1879; for in this case the obligation was not only made by statute, but it was also made and imposed by the express language of the judgment itself; and “ a judgment is a contract of the highest,nature known to the law” (Taylor v. Root, 4 Keyes, 335, 344), and as such is beyond legislative control or interference. (Burch v. Newbury, 10 N. Y., 375-392.) We cannot assume, therefore, that in this case the words “ obligation made ” will be construed by the court of last resort to signify anything different from what they plainly express.

The decision of the court below was, in our opinion, clearly right, and should be affirmed, with ten dollars costs and disbursements.

Beady and Dahiels, JJ., concurred.

Present — Davis, P. J., Beady and DaNÍels, JJ.

Order affirmed, with ten dollars costs and disbursements.


text:
    MARGARET SARVENT and Others, Respondents, v. EDWARD D. HESDRA, Appellant, Impleaded, etc.

      Surrogate’s decrees — appeals taken, from such as were entered between September 1, 1880, and the passage of chap. 40 of 1881 — when valid —1880, chap. 245.
    In October, 1880, a decree was entered in a Surrogate’s Court, in a proceeding commenced therein before, and pending therein on September 1, 1880. Prior to January 1, 1881, an appeal therefrom had been taken on a case made and settled in accordance with, and in conformity to the laws and practices regulating appeals from decrees of the Surrogate’s Court, in force on the 30th day of August, 1880.

      Held, that the passage of chapter 40 of 1881, rendered the appeal valid and effectual, even though chapter 245 of 1880 should be held to have repealed all the provisions of the Revised Statutes regulating appeals from surrogate’s decrees, on September 1, 1880.
    Appeal from an order of the Special Term denying a motion to dismiss an appeal from a final decree, entered in the Surrogate’s Court, admitting the will of Cynthia Hesdra to probate.

      Q. McAdam, for Edward D. Hesdra, appellant. .
    Dorsheimer, Bacon & Deyo, for the respondents.
   Davis, P. J.:

The proceeding in the Surrogate’s Court, in which the decree admitting the will to probate was made, was commenced on the 3d of May, 1879. The course pf procedure therein was regulated by the Revised Statutes, except in those respects in which the statutes have been changed or modified by the Code of Civil Procedure and by acts of the legislature passed since that Code went into effect. The new procedure established by the Code went into effect September 1, 1880, but by subdivision 11 of section 3347 of the Code this procedure was only to apply to actions or proceedings commenced after September 1, 1880. The decree in this case was entered on the 27th of October, 1880. A notice of appeal therefrom was served November 23,1880. A petition of appeal was filed November-29, 1880, and notice thereof was served December 13, 1880. Tbe answer of the present appellant Edward D. Hesdra to the petition of appeal was served December 31, 1880. These several proceedings appear to have been taken in time under the provisions of the Revised Statutes. On the 10th of May, 1880, a repealing act was passed which seems to have repealed the various provisions of the Revised Statutes regulating appeals from surrogates’ decrees. That act went into operation on the 1st of September, 1880. (Laws of 1880, chap. 245.)

As the decree in this case was made and entered on the 27th of October, 1880, it is contended that at that time the provisions of the Revised Statutes which gave a right of appeal in such cases were out of existence, and that as the new procedure under the Code was not applicable to appeals in proceedings commenced in the Surrogate’s Court prior to the first of September,- therefore the appeal in this case is without authority of law and should be dismissed.

It very clearly was not the intention of the legislature or of the codifiers that their action should produce any such result. The manifest intention was to so regulate such appeals that when brought in proceedings commenced after the 1st of September, 1880, they should be brought and conducted in the new form of procedure indicated by the Code. But when brought in proceedings commenced prior to that time, then the form should be regulated by the provisions of the Revised Statutes as they existed on the last day of August, 1880.

It would be somewhat difficult to answer the objection of the appellant if it were not for the subsequent legislation, which we think should be construed so as to preserve the appeal in this case.

By the Laws of 1881, chapter 681, subdivision 11 of section 3347 of title 2 of chapter 22 of the Code is amended, amongst other things, so as to include the following words :

“And all appeals taken from any order, sentence, decree or determination in the Surrogate’s Court, made or entered in such court, on or after the 1st day of September, 1880, in any matter or proceeding pending or undetermined in such court on the 1st day of September, 1880, shall be taken and perfected, heard and decided in conformity to the laws and practice regulating appeals from orders, sentences and decrees in Surrogates’ Courts in force in this State on the 31st of August, 1880, and all appeals from any order, sentence, decree or determination of such court, brought in conformity thereto since the 1st day of September, 1880, are hereby declared to be valid and effectual.”

The appeal in this case was made in a matter of proceeding pending and determined in the Surrogate’s Court on the 1st of September, 1880. It was brought after the 1st of September, 1880. It was taken in conformity to the provisions of the Revised Statutes, which were in force on the 31st of August, 1880, as the repealing act above referred to did not take effect until September first, the following day. It is, therefore, within the description of appeals from the Surrogate’s Court, which are by the amendment of the act above quoted declared to be valid and effectual.

We do not see that there is anything in section 3349 of the Code upon which the respondents rely that goes to preserve the appeal in this case. But chapter 40 of the Laws of 1881 (Laws of 1881, p. 40), which we think has not been wholly superseded by chapter 681 of the laws of that year, does seem to us to affect this appeal. Section 1 of that act declares that “ when an appeal shall be or has been taken after the 1st of September, 1880, from any order, decree or determination made or rendered in the Surrogate’s Court in any matter or proceeding commenced before the 1st day of September, 1880, the said appeal shall be heard upon a case to be made and settled as provided by section 2516 of the Code of Civil Procedure. But if on any such appeal taken before the passage of this act a case has been made and settled or the appeal perfected according to and in conformity with the laws and practice regulating appeals from orders, sentences or decrees of Surrogates’ Courts, in force on the 31st day of August, 1880, then such appeals and settlement of the case thereon shall be valid, and such appeal shall be heard and decided in conformity to the laws and practice regulating appeals from orders, sentences and decrees of the Surrogates’ Courts in force in this State on the 31st day of August, 1880.”

This statute was intended to operate on all appeals taken either before or after its passage from decrees of the Surrogate’s Court in any matter or proceeding commenced before the 1st day of September, 1880. The obvious design was to provide that an appeal should be heard upon a case to be made and settled as provided by the Code, unless the appeal had been previously perfected in accordanee with the law and practice regulating appeals from orders, sentences and decrees of the Surrogate’s Court, in force on the 31st of August, 1880, in which case the appeal is to be heard and decided in conformity to the law as it existed August 31, 1880. The statute charly recognizes an existing right of appeal after the 1st day of September, 1880, in the manner provided for by the Revised Statutes, and it determined upon what such appeal shall be heard by the appellate court.

"We think it has the effect to validate any appeal then pending, as that in the case before us was at the time of its passage. It is in pari materia with chapter 681 above quoted, passed at the same session. Such statutes are to receive a construction, if possible, which will give effect to both. “ They are within the reason of the rule governing the construction of statutes in pari materia. Each is supposed to speak the mind of the same legislature, and the words used in each should be qualified and restricted, if necessary, in their construction and effect, so as to give validity and effect to every other act passed at the same session.” (Smith v. People, 47 N. Y., 330-339.) If the appellant’s counsel be right, therefore, in his contention that the provisions of the Revised Statutes were repealed by the Laws of 1880 (chap. 245), we are of opinion that, by necessary implication, the right of appeal in such a case as this is preserved and the appeal made valid by subsequent legislation.

The bond in this case was given in conformity to the Revised Statutes; the surrogate duly approved it. It has but one surety. If the statute calls for two or more sureties, yet, the bond having been received and approved by the surrogate, the remedy, we think, was to move to set aside the bond or to require additional sureties, and not to dismiss the appeal, especially after the moving party had appeared and answered the petition of appeal. It would be in the power of that court then to allow the amendment of the bond or the filing of a new one to conform to the requirements of the statute.

It is no ground for dismissing the appeal because the case does not conform to the rules of the court. It was received and retained by counsel, and it does not appear that any objection was made to it at the time. A motion to strike it out as not conforming to the rules would have been the proper remedy. It certainly was made up in a very brief and unsatisfactory form, and yet it indicated quite clearly what was intended to constitute the case upon which the party would proceed. The court below would have allowed an amendment undoubtedly if this objection had been deemed important, and so ought this court if it regarded it as a sufficient ground for dismissing the appeal.

On the whole we are of opinion that the order of the court below should be affirmed, but under the circumstances, without costs.

Brady, J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order affirmed, without costs.


author: Ready, J.:

text:
    WILLIAM ROEBER, Respondent, v. PETER BOWE, as Sheriff, etc., Appellant.

      Sale with intent to defrcmd, creditors — when a purchaser for full value, who has notice of the vendor1 s fraudulent intent, does not acquire a good title.

    One Carpenter, being deeply in debt, offered to sell to the plaintiff, to whom he was indebted to the extent of $800, his whole stock of goods for $1,800, the amount of the debt to be applied upon the purchase-price, and the plaintiff agreed to purchase at that price, provided there was sufficient stock when the inventory was taken. The plaintiff took possession, and claimed to have subsequently paid some $700 worth of debts for Carpenter. The stock was inventoried at $1,438.52. The defendant, the sheriff, having thereafter seized and sold the stock as the property of Carpenter, under a judgment recovered against him the plaintiff brought this action to recover the damages thereby sustained. Upon the trial the defendant’s counsel requested the court to charge that a purchaser for full value was not protected in buyingigoods sold to hinder, delay or defraud creditors, if he had notice of the fraudulent intent of the seller. The court refused so to charge, but modified it by adding the words “and participated in such intent.”

      Held, that the court erred in refusing to charge as requested.

      Dudley v. Danforth (61 N. Y., 626) criticised and distinguished.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the verdict of a jury, rendered at circuit; and also from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried, upon the ground that the verdict was excessive and against the evidence.
    The action was brought to recover damages against the defendant for having, as sheriff of New York' county, taken and sold the plaintiff ’s goods to satisfy a judgment against one George W. Carpenter.
    The defendant alleged that the goods belonged to Carpenter.
    Evidence was given tending to show that the goods consisted of the stock and fixtures of a grocery store at 156 Iieade street; that Carpenter had formerly been the owner and proprietor thereof; that he had become deeply involved in debt; that he had borrowed money from time to time of the plaintiff, until March 13, 1880, when his-indebtedness to plaintiff amounted to $800. He then proposed to sell his stock and fixtures outright to the plaintiff for $1,800, allowing his indebtedness of $800 to apply on account. The plaintiff agreed to buy at that price, “providing there was sufficient stock to show in the store when we should take the inventory." A bill of sale was thereupon executed and delivered, expressing the nominal consideration of $1,800, and four days later it was filed by the plaintiff in the registrar’s office. The plaintiff claimed that he and an assistant immediately went down and took an inventory of the stock and fixtures, placing opposite to each article a sum estimated or agreed upon as its value, resulting in a total of $l,435fi2.
    He also claimed that he took immediate possession of the store stock and fixtures, and placed one Roe in charge as his agent, to keep possession for him and to supervise and carry on the business j and also retained in his employ Carpenter, at a salary of twelve dollars a week.
    In addition.to the $800 previously loaned to Carpenter, plaintiff claimed that, after taking possession of the store, he paid numerous debts of Carpenter to divers persons, amounting in the aggregate to about $700 more, or $1,500.57 in all, and then proceeded to replenish the stock at his own credit and expense, and to carry on said business for his own use.

      Aaron J. Vcmderpoel, for the appellant.

      Edward P. Wilder, for the respondent.
   Ready, J.:

This action was brought to recover damages against the defendant for having, as a sheriff of the county of New York, taken and sold the plaintiff’s goods to satisfy a judgment against George ~W. Carpenter, who was the plaintiff’s vendor. The defendant set up a plea of justification alleging the title of the goods to be in Cai’penter, notwithstanding the claim asserted by the respondent.

IJpon the trial, and at the conclusion of the jiidge’s charge, the court was requested to instruct the jury that a purchaser for full value was not protected on buying goods sold to hinder, delay or ■defraud creditors if the purchaser had notice of the intent on the part of the seller ; which the court refused to do as solicited, and modified it by introducing the words “ and participated in such intent.”

The statute provides that every conveyance or assignment of goods or < choses in action made with intent to hinder, delay or defraud creditors as against the persons so hindered, delayed or defrauded, shall be void. (3 R. S. [6th ed.], p. 145.) This is a broad and sweeping provision, and if it stood alone the result might be that the fraudulent intent of the grantor or assignor would render every such transfer void, no matter how innocent the purchaser might be; ;and hence, by a subsequent section of the statute, it was declared that the previous chapter should not be construed in any manner to affect or impair the title of a purchaser in good faith for a valuable consideration, unless it should appear .that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such purchaser. (3 R. S. {6th ed.], p. 146, § 5.)

The effect of these two provisions seems to be that if a purchase ibe made by a person having notice of the fraudulent intent of the vendor, he is not entitled to absolute protection, and his title may, therefore, be affected or impaired, even although he may have bought in good faith and for a valuable' consideration. This view has been sustained by the authorities. (Pringle v. Phillips, 5 Sand., 157; Danforth v. Dart, 4 Duer, 101; Baker v. Bliss, 39 N. Y., 70.)

If a rule declaratory of this effect had been expressed upon the trial it may be that the jury would, nevertheless, have found for the plaintiff, but that does not affect the right of the defendant to ¡have it charged if it be the law. The court, however, refused to recognize it and instructed the jury that a purchaser for full value was not protected in buying goods sold to hinder, delay or defraud creditors, if he had notice of the intent on the part of the seller and participated in. such intent; and this theory of participation was expressed in the instructions given the jury throughout the observations of the learned judge. The defendant duly excepted to the refusal to grant the request made and to the charge as given.

TTis interpretation of the effect of the statute, to which reference has been given, seems to be predicated of the recent case of Dudley v. Danforth (61 N. Y., 626). In that case the referee found in substance upon conflicting evidence that the purchase and sale were made in good faith for the purpose of paying to plaintiffs an honest debt owed them by the judgment debtor. The defendant asked the referee to find among other things that the alleged sale and transfer were made with intent on the part of the judgment debtor to hinder and delay his creditors, and that the plaintiffs had previous notice of such intent on the part of the judgment debtor. This the referee refused to find, and it was held, that assuming the evidence would have justified such a finding it would not have invalidated the purchase without the further finding that the plaintiffs participated in such intent. The case is not reported in full although it involves a very important principle, and the precise facts are not stated. But the finding of the referee was, however, that the sale was made for the purpose of paying plaintiffs an honest debt. In the syllabus of the case the rule declared is stated to be that where the vendee purchases property for the purpose solely of receiving payment of an honest debt, the fact that the vendor sold with intent to hinder and delay his creditors does not make the sale void as to such creditors; and this although the vendee had knowledge of such intent. It must be made to appear that the vendee participated in the fraudulent intent; and this was doubtless in conformity to the opinion expressed, but which is not published.

It may very well be that the court proceeded in that case upon the theory that the creditor might accept payment of his debt by way of purchase for a fair consideration, even though he knew of a general design on the part of his debtor to dispose of his property to defraud his creditors. This would not be such a purchasé as is contemplated by the statute. It would be the acceptance of something by way of barter in discharge of the indebtedness. Of course, if the debtor treated all of his creditors in the same way his general design would fail because he would be disposing of the property at fair prices and for legal purposes.

It cannot justly be regarded as hypercritical to assert that when a purchase is made by a creditor with knowledge, of the vendor’s fraudulent purpose of hindering, delaying or defrauding his creditors, of more than enough to pay the debt due, he necessarily participates in the fraud by thus assisting in its accomplishment. He aids in the fraudulent intent and the sale for a fraudulent purjiose because he buys the property, which is a part of the scheme. In the case referred to it seems, however, from the report and the referee so found, that the sale was made in good faith and for the purpose of paying an honest debt, and for the sole purpose of paying the debt. In this case, as already stated, there was a sale of more property than was sufficient to pay the plaintiff’s debts, and it happens, therefore, that the purchase was not made solely to accomplish such payment, but to continue the business in which the judgment debtor had been engaged, which was done, and the judgment debtor himself employed in the business by the plaintiff. The cases are, therefore, dissimilar, and this case is not controlled by the adjudication to which reference has been made. The sale here was not made solely for the purpose of paying the plaintiff’s debts.

The doctrine of the case of Dudley v. Danforth (supra), as it seems- to be in conflict with the statute itself on the subject of fraudulent transfer should be restricted to cases precisely similar, and not extended beyond them.

For these reasons the judgment should be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

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


author: Brady, J.:

text:
    ALFRED D. MARTINE, by CLARK GRIGGS, his Guardian, Respondent, v. WILLIAM H. ALBRO, EUGENE T. PREUD-HOMME and FRANKLIN MARTINE, Appellants.

      Inspection of the boohs and papers of a firm — when it will be allowed in an action against one of the pa/rtners.

    January 9, 1876, Stephen A. Martine, who was then a member of the firm of S. A. Martine & Co., composed of himself and Franklin Martine, died, leaving a will hy which he appointed the defendants Albro and Preudhomme his executors, with power, in their discretion, to continue the business of the firm for a period of two years from his death. Both of the executors qualified and entered upon the discharge of their duties. The plaintiff having, by his guardian ad litem, commenced this action, filed a petition alleging that the executors conspired with the surviving partner, and sold to him the interest of plaintiff’s father in the old firm for less than its value; that the surviving partner assumed the liability of the old firm and continued the business under its name; that thereafter he entered into partnership under the name of F. Martine & Co. with one Cumberson, who had been in the employ of the old firm for more than eighteen years, and was in its employ at the time of the death of the plaintiff’s father, and that the business was thereafter carried on under a new name. . The plaintiff on such petition sought to compel a production and inspection of the books and papers of the firm of S. A. Martine & Co., and of F. Martine <fc Co., on the ground that they were material and necessary to enable him properly to prepare his complaint

      Held, that although as a general rule the discovery of the hooks of a copartnership will not be permitted in an action against one of the copartners, yet under the peculiar circumstances of this case such a discovery should be allowed.
    Appeals from an order of tbe Special Term requiring tbe defendant Franklin Martine to produce certain books and papers of tbe old firm of S. A. Martine & Go., and of tbe firm of F. Martine &. Go., successors of tbe old firm, and allow tbe plaintiff to inspect tbe same.
    - A, J. Vanderpoel, for tbe appellants.

      John McDonald, for the respondent.
   Brady, J.:

Two appeals appear to have been taken in this case, one by Franklin Martine and one by the defendants Albro and Preudhomme.

The order appealed from was made under section 803 of the Code relating to the discovery of books and papers and is founded on the petition of Clark R. Griggs, as guardian ad litem of Alfred D. Martine, an infant son of Stephen A. Martine, deceased, in which it is alleged that the production and inspection of the books and papers is material and necessary to enable the plaintiff to properly prepare' his complaint.

It appears that on the 9th of January, 1876, Stephen A. Martine, who was then a member of the firm of S. A. Martine & Co.,' composed of himself and'Franklin Martine, died leaving a will by which he appointed the defendants Albro and Preudhornme executors, with power in their discretion to continue the business of the firm of which he was a member, for a period of two years from his death. The executors qualified and entered upon the discharge of their duty.

The petitioner charges that the surviving partner conspired with the executors to effect, and did effect, a sale to him of his father’s’ interest in the firm property for a sum far less than its value. It allegéd, also, that after the purchase, and by which Franklin Martine assumed the liabilities of the firm of S. A. Martine & Co., he continued the business under the name of the old firm, and subsequently to his purchase, and on the 1st of August, 1876, entered into copartnership with one Perry T. Cumberson, when it would seem that the business was conducted under the name of F. Martine & Co. instead of that of the old firm.

It appears that heretofore orders were granted for the examination of the defendants before trial, and for the production of the books of the late firm of S. A. Martine & Co., for inspection by the plaintiff, whereupon a stipulation was entered into between the plaintiff and the defendants allowing such inspection by an expert, appointed by the plaintiff’s attorney, under which stipulation the books called for by the plaintiff were examined, and otherbooks of the firm for the years 1873, 1874, 1875 and 1876.

The inspection appears to have lasted from the 24th of May, 1881, to the 11th of June, 1881; but it is alleged, on behalf of the petitioner, that only a partial examination of the books was had under the stipulation, and that when the expert who was employed to make the examination desired to examine the books o-f F. Mar-tine & Co., for the purpose of ascertaining at what prices the goods which were transferred from the firm of S. A. Martine & Co. to the firm of F. Martine & Co. were actually sold, and the times when they were sold, and whether the sales corresponded with the prices at which said goods were taken by the last named firm, he was met with a refusal on the part of 'F. Martine & Co. to allow such examination to be made, and thereupon proceeded to compel such discovery as was necessary to enable the plaintiff to prepare the complaint. The application was resisted, but it resulted in an order directing the production of the books of the old and the new firms, and that they be deposited with the clerk of the court, there to remain for a period of thirty days, for the purpose of the discovery which was sought.

There is, perhaps, no positive averment in the petition that the books of F. Martine & Co. were in the custody or under the control of Franklin Martine. It was doubtless inferentially supposed, and properly so, that being a partner in the firm, he had some control over the books.

It is true that Mr. Cnmberson, the more recent partner, swears that the deposit of the books in the manner directed, would subject his firm to great annoyance and inconvenience; but even if that were so, it would not be sufficient in itself to prevent'a discovery in such mode as would enable the plaintiff, without inconvenience to the firm of F. Martine & Go., to obtain the necessary information, and, if it be necessary to accomplish that, the order can be modified.

The ground taken by the appellant chiefly is, that the mere fact of a suit pending against Franklin Martine does not authorize the court to compel a discovery of the books of F. Martine & Co.; that it is not a matter of right to inspect books and papers, and that inspection is not given except in extraordinary cases, where the refusal may involve the loss of a claim or defense ; and it is asserted by the counsel for the 'defendants that no case can be found in which one member of a copartnership, in a suit against him immediately, has been required to produce the books and papers of the copartnership, and he insists that the whole motion is a fishing excursion. It must be said, as a general rule, that the discovery of the books of a copartnership will not be permitted in an action against one of the copartners. (Reid v. Langlois, 1 MacN. & Gordon, 627-635; Taylor v. Randall, Craig & Phill., 104; Lopez v. Deacon, 6 Beav., 254-258; Murray v. Walter, Craig & Phill., 144.)

But this is a peculiar case because Franklin Martine was one of the partners of the original firm of which his father seems to have been the head, and the continuance of the business having been authorized by the executors of his father, they transferred to him the testator’s interest in the firm and the assets and thus he became possessed of the books of the old firm and its quasi representative, and his transfer of an interest in them was to a person who, upon his own statement, had been in the employment of the firm for a period of eighteen years, and which continued up to the time of the death of the senior partner.

The partnership thus created between Cumberson' and Martine. was connected with the old firm from the character of the interest and assets, which formed the subject of the transfer to Cumberson, It was not the creation of an independent partnership resting upon different assets and different interests, but was in effect the continuation, to a certain extent at least, of the old firm of S. A. Martine & Co.

Franklin Martine having succeeded to the interests of S. A. Mar-tine, deceased, through the purchase from the executors, continued to be the representative of the assets, and Cumberson having pur-' chased an interest in them took it subject under all the circumstances to all equities existing in reference to those assets.

The plaintiff’s case rests upon an allegation of the improper conduct of the executors, who conspired with Franklin Martine to the prejudice of the plaintiff, and no reason forcible and controlling is presented herein against an order allowing a discovery of the books, so far as they relate to the assets and subject-matter of the action. It should be permitted, ex debito justitice, in a case like this. If the formation of a copartnership between Franklin and Cumberson were an independent one, having no relation to a previously existing one, in an action against the former the rule suggested in reference to discoveries in an action against one of the several partners would very properly apply. But such is not the case here, and for the reason already suggested that Cumberson has become possessed of the assets, or some of them, connected with the old firm, and it sufficiently appears was in possession jointly with Franklin' of the books of the new firm. These relations impliedly existing between the plaintiff and Franklin and Cumberson, extending as they do over the assets and interests of the old firm, to some extent, at least, the plaintiff is entitled to pursue the books relating to them, and hence the discovery ordered should be sustained, unless it appears that it is unnecessary. 'We are not impressed with the view that the discovery is unnecessary. The circumstances of the case are peculiar, and the action extraordinary in character. It rests upon fraud involving a breach of trust and is predicated of an alleged conspiracy by the defendants, which if true makes them tort feasors, the defendants Albro and Preudhomme having violated the trust reposed in them as executors of the last will and testament of S. A. Martine by a fraudulent sale of the assets of the firm of which he was a member to the surviving partner Franklin Martine. Every facility should be offered for a thorough investigation, and it does not appear that one is unnecessary or unreasonable, the plaintiff being an infant. It should, however, be conducted in a manner which will be fair and proper with reference to the facts and circumstances and the necessities of the business of the firm of F. Mar-tine & Co. It may be that Albro and Preudhomme cannot, in strictness, be said to have possession of the books and should not, therefore, be affected by the order providing for the discovery; but they are defendants in the action, and as the discovery relates to transactions with which they are connected as already stated, and in which they have an interest, and as they have been assailed as conspirators and are charged with such use of the estate intrusted to them, and the books representing it in part at least, as to involve liability, the order as to them cannot be regarded as improper. There can be no impropriety in its entry against all the defendants in the form adopted, which is that the defendants produce, especially the defendant Franklin Martine, and it is clear that the order is designed particularly to reach him. As it appears, however, that depositing the books in the clerk’s office for a period of thirty days would interfere with the business of F. Martine & Co., the order should be modified by directing that the books be accessible in the office or store of F. Martine & Co. for a period of thirty days and between the hours of ten and four o’clock.

For these reasons we think the order appealed from should be modified, and as modified affirmed, without costs to either party.

Order to be settled by Beady, J.

y,

Davis, P. J., concurred.

Present — Davis, P. J., and Beady, J.

Order modified as directed in opinion, without costs to either partv.


author: DaNiels, I.:

text:
    JOHN CURTIN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Constitution of the United States — chapter 87 of 1881 prohibiting the assumption of the title of port warden by persons not appointed to that office, is not a violation of it.

    Chapter 87 of 1881 forbidding the assumption of the title of port warden by persons not duly appointed to that office is constitutional and valid.

      Foster v. Master (94 TJ. S. R, 246) distinguished.
    Wbit of Eeeoe to review the judgment of the Court of General Sessions, in and for the city and county of New York, entered upon a verdict convicting the plaintiff in error of a misdemeanor in violating the provisions of chapter 87 of 1881, entitled “An act to forbid the assumption of the title of port warden by persons not duly appointed.”

      > The plaintiff in error, a resident of the State of New Jersey, was appointed a port warden of the State of New Jersey by the governor of that State on the 5th day of April, 1878, under, an act entitled “An act to authorize the appointment of port wardens in certain cities of this State.”
    For the transaction of his business as sail' manufacturer the plaintiff in error occupied the loft of the building No. 98 West street, in the city of New York, where, as appointee of the governor of the State of New Jersey, he exercised his powers of port warden of that State under the commission of its governor.
    On the 8th day of April, 1881, the “Act to forbid the assumption of the title of port warden by persons not duly appointed” was passed by tbe legislature of this State, and under this act the plaintiff in error was indicted, brought to trial, convicted and sentenced to be imprisoned in the penitentiary for the term of three months. At the close of the trial a motion was made in arrest of judgment and for a new trial, which motion was denied, to which the plaintiff in error duly excepted.
    It is claimed on the part of the plaintiff in error that chapter 87 of 1881 is in violation of the Constitution of the United States, which gives to congress the power to “ regulate commerce with foreign nations, and among the several States and with the Indian tribes,” and of the provision that' “ the citizens of each State shall be entitled to all the privileges and immunities of citizens of the. several States.”

      Leon Abbett, for the plaintiff in error.

      George Bliss, for the people.
   DaNiels, I.:

The plaintiff in error was charged in the indictment and convicted on the trial of a misdemeanor for violating the prohibitions contained in chapter 87 of the Laws of 1881, and the proof given upon the trial, as.it was derived from himself and the other witnesses examined in the case, clearly established all the circumstances required to present a, violation by him of this act, and the other proof offered and rejected would in no manner have affected the result if it had been received by the court. He was, therefore, properly convicted if the act itself was a constitutional-exercise of legislative authority. It has been urged that it was not, mainly upon the effect of Foster v. Master, etc. (94 U. S. R., 246). But the determination then made in no manner affected or restricted the power of the legislature to prohibit persons from acting as port wardens. By that decision it was held that the legislature could not create the office with the functions attached, to it, provided for by the act then before the court; and that was all that the court at that time undertook to determine.

If that decision is entitled to any weight in the disposition of the present case it must be unfavorable, to the defendant, for as long as the legislature could not constitutionally create the office, as it appeared there to have been done, it would follow that it could prohibit persons from exercising its functions; and that is all that was intended to be accomplished by the act of 1881.

The circumstance that it was made to extend no further than it does by the legislature will in no manner detract from or abridge its authority so far as it was rendered effective. To that extent it was a proper exercise of legislative power, and it clearly included the case as it was made out against the defendant.

As a citizen of the State of New Jersey he was not authorized to hold himself .out in this State as a port warden, or to exercise the authority which might appertain to such an office, because the act did not also in terms deprive the citizens of this State of the same right, for the right to exercise the functions of such an office was not created by the simple circumstance that the person doing so should be a citizen of this State. But if it was possessed at all it ■ could only be derived from a legal appointment to the office itself.

It was not, therefore, a privilege to which the citizens of this State were as such entitled, and accordingly it could not be within the provision of the Constitution of the United States securing to the citizens of each State the privileges and immunities of citizens of the several States. The fact that the defendant did not know of the passage of the act of 1881 would not relieve him from the obligation of complying with its provisions. All persons are required to know the law and to obey its directions. These are the only points required to be considered for the disposition of this case, and as neither of them can be sustained as they have been presented, the conviction of the defendant was fully warranted and it must accordingly be affirmed.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed.


author: Beady, J.:

text:
    MARCUS T. HUN, as Receives of the People’s Savings Bank, Appellant, v. HENRY H. VAN DYCK and Others, Respondents.

      Liability of a trustee of a sewings bank for an illegal investment — when he is released by the payment of the loss by a subsequent trustee.

    This action was brought by the plaintiff, as the receiver of an insolvent savings bank, to recover from the defendants, trustees thereof, money lost by the bank by reason of illegal purchases of North Carolina bonds made by them. After the purchase of the bonds the superintendent of the banking department having caused the bank to be examined and having found its financial condition to be unsatisfactory required the trustees of the bank, as a condition precedent to not closing it up, to give to it their bonds and other securities to make good any and all deficiencies in its assets to meet its liabilities. Upon the trial the court below found that the entire loss resulting from the illegal purchase had been reimbursed, principal and interest, by the obligors mentioned in the bond. Held, that the defendants were released from liability by the payment of the damages sustained by reason of their illegal acts, although such payment was made by other persons, and that this action could not be maintained.
    Appeal from a judgment dismissing the complaint, entered upon the trial of this action by the court without a jury.
    The facts sufficiently appear in the opinion except that some of the obligors in the bond, mentioned in the opinion, were not trustees of the bank at the time the illegal investments were made, and that a portion of the amount paid under the bond was paid by these subsequent trustees.

      Francis G. Barlow, for the appellant.

      Elliot F. Shepard and Nelson J. Waterbury, for the respondents.
   Beady, J.:

This action was brought by the plaintiff, as receiver of the People’s Savings Bank, to recover money lost by the defendants, who were trustees of the bank, in and by the illegal purchase of Noi’th Carolina bonds which, except under certain circumstances not existing when the purchase was made, the trustees were prohibited from buying.

The defense set up was that the whole amount of the loss had been' made up by payments by the trustees of the bank, some of whom were such at the time the improper purchase of the bonds occurred, and by others who were not chargeable with all the purchases of bonds made.

The allegation in the answers is that the superintendent of the Banking Department of the State of New York, the officer authorized by law to examine and supervise the management and condition of savings banks, examined into the affairs and condition of the People’s Bank, and thereupon required certain bonds and other securities to be given to the bank to make good any and all deficiencies in its assets to meet its liabilities, which bonds and securities were duly given and were a full and complete satisfaction and discharge of any and all claims then existing against the trustees of the bank, or any of them.

Emerson Keyes, a witness on behalf of the defendants, testified that he was a bank- examiner and made an examination of the People’s Bank in September, 1871; that he stated to the trustees what would be the demand of the superintendent as a condition precedent to not closing the bank, which was that they should give a bond for the deficiency found by the examiner; that the deficiency was at first placed at $45,000, and then at $1,000 more owing to an error in calculations. Upon the giving of the bond it was agreed that the superintendent would not refer the bank to the attorney-general, but accept that as making them solid. And the learned justice presiding in the court below found that the entire loss resulting from the illegal purchase had been reimbursed, principal and interest, and that consequently the receiver was not entitled to recover the damages claimed from the defendants.

The learned counsel for the appellant has assiduously endeavored to avoid the effect of these payments. He has invoked some cases establishing the proposition that satisfaction by' a stranger is no bar and no payment, and insists that as none of the defendants now before the court paid any portion of the amount which was contributed to make up the loss to which reference has been made they must be held responsible by the application of the rule stated. The case of the Atlantic Dock v. The Mayor (53 N. Y., 64) is one of the eases to which the learned counsel referred. In that ease it was declared that a judgment obtained against the city of Brooklyn for the same cause of action urged against The Mayor, etc., and which was paid, was not a satisfaction of the judgment appealed from, and for the reason that conceding the cause of action to exist against The Mayor, etc., there never was any cause for damages against any other person, and it followed that the recovery of a judgment against another, and the receipt of payment thereof from the other, was a wrong done to it, and it was no less a wrong because it assumed the forms of the law and was compassed by the adjudication of the courts. A wrong done to one, in other words, will not extinguish a right against another.

A reference is made in the opinion to some earlier cases. Bor example, it was said that payment by a stranger, between whom and the defendant there is no • privity, cannot be availed of, a proposition which was supposed to be sustained by the case of Bleakley v. White (4 Paige, 654). The case cited, however, is one in which a judgment was obtained by a police officer of this city. It was decided in his favor and costs were granted him against the plaintiff, which were subsequently paid to him by the corporation as a gratuity. It was held that such payment was no bar to a suit by a creditor’s bill to recover the costs out of the property of the plaintiff in the original suit. The chancellor said that it was evident from the facts stated in the pleading that the corporation did not make the payment for the benefit of the defendant, but as a gratuity to the officer for the loss he was supposed to have sustained in consequence of an act done in the discharge of his duty. It was further •said, however, that the payment of the amount without any agreement, expressed or implied, that the judgment was to be liolden for the benefit of the corporation gave the corporation no equitable claim upon the defendant, though they might have a claim upon the plaintiff for the recovery of the money if he were successful in collecting it from the one who in justice ought to pay it, and the rule was alluded to, namely, that a satisfaction by a stranger cannot, even by law, be pleaded in bar of a debt or covenant which the defendant was legally bound to pay, and reference was made to the case of Clow v. Borst (6 Johns., 37).

That case seems to be the pioneer decision in this State on the subject to which it relates. It was an action brought for a breach of a covenant. The defense was that on the 25th of November, 1808, the plaintiff took, accepted and received a discharge of a certain action then pending against him in the Supreme Court, in favor of one Michael Borst, in full satisfaction and discharge of all damages and costs sustained by the plaintiff by the breach of the covenant. In a per ov/riam opinion the court said, referring to the case of Grymes v. Bolfield (Cro. Eliz., 541), which it was said was cited as the law by Barón CohyNS (tit. Accord A, 2), that it was held not to be a good plea of accord'and satisfaction to a bond that a stranger had surrendered a tenement to a plaintiff in satisfaction of a debt which he accepted, because the stranger was not privy to the bond and the satisfaction given by him wras not good. It was further said that it did not appear to have been questioned that the pleading was bad and judgment must be given for the plaintiff.

The case of Daniels v. Hallenback (19 Wend., 410), was also referred to by FolgbR, J., in the Atlantia Doolc v. The Mayor; and it was there held that a plea of accord and satisfaction alleging the satisfaction as moving from a stranger was bad. As in the case of Clow v. Borst (6 Johns., 37), however, it was declared to be a question of pleading. It appeared therein that an arrangement was set out by which a stranger was to discharge the obligation sued upon.

The court said: This is a question of pleading, and although the facts set up by the defendants may amount to a good bar when given in evidence it does not follow that the pleas can be maintained.” These are some of a class of cases relied upon by the learned counsel for the plaintiff to sustain the proposition that payments made by persons who are not directly chargeable cannot inure to the benefit of the real debtors. These are all adjudications, except that in 55 New .York, involving the consideration of questions of pleading under the old system of special pleading, and nothing more, and are not reconcilable with the present system of pleading in which the facts are to be stated which constitute the defense, and the effect of them if proved to be judicially declared; and it appears by the answers interposed herein, as already seen, that .the amounts were paid to make good the deficiency in the assets of the bank and to enable it to pay its debts in full. In other words, all was paid which under the circumstances detailed could be asked.

The case in 53 New York (supra) was decided on the proposition, but resting on the doctrine of the cases mentioned, and which, as we have seen, relate to a question of pleading, that the judgment set up in bar had been wrongfully obtained, and that the payment of it made was a payment of it and not, therefore, of thé claim urged against the mayor, etc. It was, in other words, as if no payment whatever had been made. In this case, however, the payment made by the trustees not only expressly related to but was in fact the payment of the deficit occasioned by the loss from the purchase of the North Carolina bonds, and indeed of any other loss at the time that the examination was made. It wras a payment of the demand herein urged.

The answers therefore, whether regarded as pleas setting out an accord and satisfaction or pleas in bar, were sufficient to present, and did present, the defense of payment or discharge of the obligations incurred, and unless the old rule of pleading is to prevail that payment by the trustees, other than the defendants, is to be regarded as one made by strangers, and therefore no discharge of the indebtedness incurred by the purchase of the North Carolina bonds, then the judgment is correct. This element confronts the plaintiff’s case in limine and controls it.

It seems to be established in this case also and conclusively that the amounts paid, contributed or subscribed, by whatever term they may be designated, were given for the purpose of continuing the existence of the bank as an organization. That seems to have been the consideration inducing them and the bank was continued. If the deficit had not been made up, and the sums lost by the improper purchase of North Carolina bonds had not been reimbursed, a report would doubtless have been made and the bank closed; and if it had been, and the amount of the loss occasioned by this circumstance had been paid, it matters not by whom, there would have been no cause of action existing.

It is difficult to understand on what principle the defendant’s trustees, even if they contributed nothing, could be held responsible to the plaintiff. Except as matter of pleading, under the old syssystem, there does not seem to be any reason why a stranger may not discharge another’s obligation if he choose to do so. He may indemnify himself by taking an assignment of the claim as suggested in the ease in 19 Wendell; but if he prefer not to do that and to regard it as a gratuity, he may enjoy the consciousness of having done a wise or a foolish thing as the fact presents itself to him. But the creditor’s debt must be regarded as satisfied, and there is no reason why he should be permitted to demand a second payment from his debtor.

If any rule is to be applied it ought to be that the person paying the debt, and he alone, should be subrogated to the right of the creditor; and he alone, if any person, should be permitted to enforce the claim. It may be that he would be met, under well established rules, with the proposition that a voluntary payment of another’s debts, as a general rule, gives to the payer no right of action against the original debtor, and under existing rules, perhaps, he could not maintain an action to recover the money advanced. But if any person is to succeed to the right of action under the circumstances detailed, it should be the person who pays the debt or discharges the obligation, and no other.

The receiver in this case is seeking to obtain against delinquent trustees a claim incurred by their violation of duty, but which has been paid, and against which the bank has therefore been indemnified, and indemnified as the result of a proceeding on the part of the officers of the State who were -intrusted with the examination of the affairs of the bank'; and who, after a proper investigation duly made, announced the amount of money that was necessary to make compensation for such losses.

It is eminently due to the counsel for the appellant to say that he has evidently labored most industriously to obviate the legal effect of the payment made and proved of the claim set up, and his brief is not only elaborate, but learned, ingenious and exhaustive. But the difficulty underlying the right of the plaintiff to recover as already suggested is one which no ingenuity can overcome, no learning vanquish. The payment set up is an obstacle which cannot be surmounted.

The views expressed upon the subject by the learned justice presiding at the Special Term meet with our approbation and are adopted as conclusive.

The receiver’s case, on contemplation of it, has no merit, and the judgment appealed from must therefore be affirmed, but without costs.

Davis, P. J., concurred.

Present — Davis, P. J., and Beady, J.

Judgment affirmed, without costs.