author: Barker, J. :

text:
    CARLOS E. CHAFFEE, Respondent, v. CALISTA GODDARD, as Administratrix, etc., of SETH W. GODDARD, Deceased, Appellant.

      Evidence — when the execution and, delivery of a mutual agreement is a personal transaction xvithin 1¡he meaning of sectwn 829 of the Coda of Civil Procedure.

    This action was brought by one Cochran against the defendant, as administratrix of one Goddard, to recover damages sustained by Cochran by reason of the failure of Goddard to convey the undivided one-half of a farm to the plaintiff, as he had, by a sealed agreement made between the parties, agreed to do. The agreement was not acknowledged by either party, and there was no subscribing witness thereto. Upon the trial, for the purpose of proving the execution and delivery of the agreement, Cochran was called as a witness in his own behalf and stated that he was acquainted with Goddard. His counsel then placed in his hands the alleged agreement and asked him if he executed the same, to which question he was allowed, against the objection and exception of the defendant’s counsel, to answer that it was his signature.

      Held, that it was error to allow him so to do.
    That as the agreement was one, inter partes, which would not be binding upon either, unless executed by both with a mutual understanding that upon placing their signatures thereto it should be considered a complete agreement, binding and operating upon both parties, its execution and delivery was a mutual . transaction between the parties, as to which the plaintiff was incompetent to testify.

      Simmons v. Havens (101 N. Y., 427, 433) distinguished.
    Appeal from an interlocutory judgment entered upon the decision of the court at the Erie Special Term.
    The original plaintiff was Byron Cochran, who died since the entry of judgment, and the respondent has been substituted as his personal representative. The action was founded upon the covenants of Seth ~W. Goddard, deceased, as contained in an agreement between himself and Byron Cochran, deceased, the 5th day of August, 1853, by the terms of which Goddard, in consideration of the sum of five dollars and certain covenants entered into on the part of Cochran, agreed to convey to him by a good and sufficient warranty deed the one undivided half of a farm containing two, hundred acres of land subject to a mortgage referred to and described in the agreement. The Special Term found that Cochran fully performed the covenants and agreements on his part, and chat said bond and mortgage was fully paid and discharged. Goddard, in his lifetime, sold and conveyed the property to a third party and received the pay therefor, and up to that time enjoyed the rents and profits of the farm. By the interlocutory judgment, the defendant was required to account before a referee for one-half the moneys received on the sale of the farm, and to render an account as to the rents and profits derived from the land, and the amount of taxes paid by him.

      Sprague, Morey dh Sprague, for the appellant.

      May do Homer, for the respondent.
   Barker, J. :

The agreement upon which the action was founded is under seal and purports to be executed by both of the parties thereto. It was not acknowledged before any officer by either party, and there was no subscribing witness thereto. This alleged agreement is fully set forth in the complaint, and the defendant in her answer denies the execution and delivery of the same, and the record title to the property was admitted to be, at the date of the instrument, in the deceased, Seth W. Goddard. On the trial, for the purpose of proving the execution and delivery of the instrument, the original plaintiff, Byron Cochran, was examined as a witness in his own behalf. After stating that he was acquainted with Mr. Goddard, his counsel placed in his hands the alleged agreement, and he was then asked if he executed the same. The defendant objected to the question, that it was not competent for him to prove the execution of the agreements on his part, as it involved a personal transaction or communication between the witness and Mr. Goddard, the other party to the instrument, and he was incompetent to testify on that subject, by the provisions of section 829, Code of Civil Procedure. The objection was overruled and the defendant excepted, and the witness answered that it was his signature. He was then asked if he knew the handwriting of Seth W. Goddard. This was objected to by the defendant’s counsel, without stating the grounds upon which it was made, and it does not appear that the court made any ruling thereon, or that any exception was taken, but the witness • answered the question that it was the genuine signature of Seth W. Goddard. By another witness the signature of Goddard was proved. The contract was then received and read in evidence.

The question is thus presented whether the plaintiff, as surviving party to the alleged contract, was a competent witness to prove its execution on his part. The appellant claims that his evidence proving the execution of the contract, related to a personal transaction as a communication between himself and the deceased party thereto. The agreement being one inter partes, it would not be binding upon either, unless executed by both with a mutual understanding, that upon placing their signatures thereto, that it should be considered a complete agreement binding and operative on both as parties. The law implies, the contrary not appearing, that the parties thereto both signed the agreement at the same time and in the face of each other. "Without personal negotiations, mutual in their character, no agreement could have been made and concluded between the parties. ' The written instrument is the record and the only legitimate proof of the oral contract. It seems plain, beyond all rational argument, that the execution and delivery of the instrument was a mutual transaction between the parties. The defendant’s answer put in issue the execution and delivery of the agreement and it was essential for the plaintiff to prove, in order to sustain a recovery, that he did, on his part, execute the contract at a time and under such circumstances so as to give it the character of mutuality. It may be true that the agreement bears the genuine signature of the plaintiff as well as that of the defendant, but it might also be true, as a matter of fact, that the plaintiff’s signature was written by him long after the deceased subscribed the same, or even after his death. Proving the plaintiff’s signature, as the execution of the agreement on his part, was not evidence proving an extrinsic and isolated and independent fact, separate and distinct from the transaction which gave validity to the agreement.

Parties to actions are competent witnesses in their own behalf, upon all issues involved in the controversy, except in the cases enumerated in section 829. That section provides that a person interested in the event' of the action shall not be a witness, in his own behalf, against the executor or administrator or survivor of a deceased party, concerning a personal transaction or communication between the witness and the deceased person. Any transaction between the witness and a deceased person in which the witness in any manner participated and all communications between the person deceased and the witness, if he in any way was a party thereto, are within the rule of the- statute which disqualifies the witness from testifying in relation thereto. The object and purpose of the statute is plain and clear, and has been stated in many of the reported cases and applies to all cases where the deceased party, if living, could contradict, explain or qualify the evidence as proposed to be given by the survivor as a witness in his own behalf.

In Holcomb v. Holcomb (95 N. Y., 316) the court, in remarking upon the provisions of the section, stated: “ The words of exclusion are as comprehensive as language can express. Transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews or actions between two persons,’ and include every method by which one person can derive impressions or information from the conduct, condition or language of another. The statute is a beneficial one and ought not to bo limited or narrowed by construction.”

It would seem to be obvious that the plaintiff’s evidence proving the execution of the contract on his part involved an interview between himself and the deceased. This conclusion seems to be sustained by the decisions of the courts in many cases not unlike in principle from the one before us.

In Garvey v. Owens (37 Hun, 498) the action was founded upon an agreement in writing between John and James Garvey relative to a piece of land of which James had the title, and by which he had agreed to convey the same to the plaintiff, who was the son of John Garvey. James Garvey having died, the plaintiff commenced an action against the heirs-at-law of James Garvey to enforce the agreement. To prove the execution of the agreement John was called as a witness, and the court held that the proof of the signatures to the instrument by Jghn Garvey related to a personal transaction between them, and was, in effect, a statement that the instrument was the embodiment of an’ agreement made between them, and for that reason he was an incompetent witness.

In Pease v. Barnett (30 Hun, 525) the action was brought by the plaintiff upon a bond given to him by Azuba Carpenter, a married woman. She being dead the action was brought against her executor, and it was defended upon the ground that the bond was, after its execution, altered by the inserción of a clause, making the same in terms bind die separate estate of Azuba, the deceased. Upon the trial the palintiff was called as a witness in his own behalf and testified that he was not present when the bond was signed, but that he saw it in the hands of his attorney after it was drawn and shortly before its execution, and then it contained the clause in question as it appeared upon the bond, and it was held that the evidence was incompetent for the reason that it related to a personal transaction with the deceased, the court remarking that if the deceased obligee had been living at the time of the trial she might have contradicted the plaintiff on that point by a statement that the clause in dispute was not inserted when she executed the agreement.

In Milligan v. Robinson (16 N. Y. Weekly Dig., 96) it was held that the surviving party to an agreement was not a competent witness to prove its delivery by the deceased party in an action against the latter’s personal representatives. (See, also, Resseguie v. Mason, 58 Barb., 89; Denham v. Jayne, 3 Hun, 614.)

In Pinney v. Orth (88 N. Y., 447) the question under consideration was whether the fact testified to by the surviving party to a contract related to a transaction between himself and a deceased party thereto, and the court remarked that the language of the prohibition is sufficiently broad to prohibit the survivor from testifying that any particular communication or transaction did or did not take place personally between himself and the deceased, but did not preclude the survivor from testifying to any independent or extraneous facts or circumstances which tended to prove that there was never any transaction or conversation between the parties of the character relied upon by the representatives of the deceased party, as, for instance, that the survivor at the time was absent from the country where the transaction is said to have occurred, or that he was not at the place where it was claimed that the conversation took place, so long as he refrained from testifying to anything that was or was not said or done between himself and the deceased.

The case of Simmons v. Havens (101 N. Y., 427, 433) does not, in our opinion, sustain the rulings. In that case the plaintiff was the grantee in a deed, and in an action of ejectment against the heirs of the grantor, who claimed title under him, the plaintiff was permitted to prove that the grantor’s signature was genuine. Jt did not apjiear that the grantee received the deed from the hands of the grantor, and it was held that her evidence did not necessarily involve a personal transaction with the deceased grantor, as the grantee might have received the deed from the hands of a third person. The deed, if delivered, would be effective to convey the title to lands, although the parties thereto never had any negotiations concerning the execution and delivery of the deed. In the case before us it was incumbent on the part of the plaintiff to establish the mutuality of the agreement and its delivery. It is a contract containing mutual and reciprocal covenants, and the writing is the record of their previous oral negotiations.

If the plaintiff’s evidence was pertinent and material for any purpose in .this cáse it was to establish that he executed the agreement at the same time that it was executed by the deceased, and that they then and there mutually understood that the instrument was made complete as to its execution and became binding upon both parties.

As there must be a new trial for error in receiving the evidence of the plaintiff, we do not deem it profitable now to discuss the other questions argued by the learned counsel for the appellant.

The judgment should be reversed, new trial granted, with costs to abide the event.

Smith, P. J., Haight and Bradley, JJ., concurred.

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


source: Caselaw Access Project

license: Public Domain

text:
    THE BUFFALO LUBRICATING OIL COMPANY (Limited), Respondent, v. THE STANDARD OIL COMPANY OF NEW YORK, Appellant, Impleaded with Others. SAME, Respondent, v. ACME OIL COMPANY, Appellant, Impleaded with Others.

      Actions in tort — a several judgment may be rendered against one of several defendants — liability of a corporation for slandering the business of another corporation carrying on the same business — what facts show this to have been done — a pleading should allege that the acts complained of were done by the corporation and not by its agent.

    ,The plaintiff, a corporation organized under the laws of this State for tfie purpose of manufacturing, -refining and selling oil, brought this action against seven defendants, three of whom were corporations, one of them being the Standard Oil Company, a corporation organized under the laws of this State and engaged in carrying on the same business as the plaintiff. The plaintiff’s cause of action was based upon the charge that the defendants had combined and confederated together for the purpose, and in the manner set forth in the complaint, of ruining the plaintiff’s business and driving it out of the market. Upon an appeal from a judgment overruling a demurrer interposed by the defendant, the Standard Oil Company, upon the ground that the complaint did not state facts sufficient to constitute a cause of action:

      Held, that it was not necessary to examine the complaint for the purpose of ascertaining whether a good cause of action was stated as against the defendants, other than the Standard Oil Company, for the reason that, in actions of tort, judgment may be entered against either of the defendants, when more than one is joined, if the proofs establish a cause of action against such defendant.
    That it would not be necessary to prove upon the trial the conspiracy alleged in the complaint, except for the purpose of securing a joint recovery against all the defendants.
    It was alleged in the complaint that the defendants, other than the Standard Oil Company, formed a conspiracy to injure the plaintiff, and did certain acts injurious to the plaintiff, in pursuance of such conspiracy, prior to the time at which the defendant, the Standard Oil Company, was organized; that after that defendant was organized it joined and became a party to the conspiracy and ratified said previous actions; that after the organization of that defendant, the conspirators, by letters and other means, requested various customers of the plaintiff not to purchase oil from it, and represented that the plaintiff’s oil was of inferior quality, and that the plaintiff had no right to make such oils and vend the same on the market, and threatened the defendant’s customers with law suits and expenses if they continued to patronize the plaintiff and purchase its commodities, and employed one Stearn to make such statements, and that he did make the same at the city of Boston and in other places in the State of Massachusetts, and in various parts of New England, to certain customers of the plaintiff, and, by reason thereof, the plaintiff lost many of its said customers and much of its trade and business and suffered great loss and damage in consequence thereof; that the said conspirators, by their agents and servants, did falsely represent to the customers of the plaintiff, that said conspirators or some of them, had patents that covered the entire product of plaintiff’s manufacture, and that the plaintiff had no right to m.ake the oil it was then manufacturing, and that all who bought oil of the plaintiff were infringing the patents of some one or all of the said conspirators, and that one or more of said conspirators would bring actions for such infringements against each and every of the customers of the plaintiff who bought oils or dealt with the plaintiff, by reason of which they prevented many of the plaintiff’s customers from purchasing oil from it.

      Held, that it was manifest that by the use of the term conspirators the plaintiff intended to charge all of the defendants, including the Standard Oil Company, with the illegal acts alleged to have been done.
    That if the acts thus charged were proved to have been done by the defendant, the Standard Oil Company, through its officers or agents, it had slandered the plaintiff’s business and committed an inexcusable wrong condemned by the laws of the land as well as by honorable traders and merchants.
    That in stating his cause of action against the corporation it was proper for the plaintiff to charge that the acts complained of were the acts of the corporation itself, and that it was not necessary, nor would it be proper, to aver that they were done by and through the authorized agent of the corporation.
    Appeal from a judgment overruling a demurrer of the defendant, tlfe Standard Oil Company of New York, interposed to the plaintiff’s complaint, upon tlie sole ground that the facts stated therein did not constitute a cause of action against it. Six other defendants are named, four of them being persons and two corporations. The Standard Oil Company of New York, the party demurring, is a business corporation organized under the laws of the State of New York, engaged in manufacturing and refining oil and placing the same upon the markets of the country. The plaintiff, a corporation organized under the laws of this State, is also engaged in manufacturing and refining oil and selling the same to merchants and traders in this and other States

      Geo. J. Sicard, for the appellants.

      E. W. Hatch and Adelbert Moot, for the respondent.
   Barker, J. :

The plaintiff’s cause of action is based upon the charge that the defendants have combined and confederated together, for the purpose and in the manner set forth in the complaint, of ruining the plaintiff’s business and driving it out of the market as a competitor with the defendant, which is also engaged in manufacturing and selling the same kind of products. The single legal proposition presented by the demurrer is, whether the complaint set forth facts showing that the defendant has been guilty of a wrong which has resulted in an injury to the plaintiff. If*so, a perfect cause of action is stated and the demurrer was properly overruled. It is wholly immaterial to examine the complaint for the purpose of ascertaining whether a good cause of action is stated against the other defendants or not, for the reason that in actions of tort judgment may be entered against either of the defendants, when more than one is joined, if the proofs establish a cause of action against the defendants. It is not questioned but what the complaint set forth a good cause of action in tort against the four persons named as defendants, and a joint judgment may be entered against them if the facts charged be sustained upon the trial. They are charged with having conspired together to injure the plaintiff in its business, and with having done certain overt acts in carrying out their purpose which have resulted in a pecuniary loss to the plaintiff. The plaintiff contended, on the argument, that the complaint charged, in proper and sufficient terms, that the defendant, the Standard Oil Company of New York, had joined, the conspiracy after it had been formed by the defendants, and since that time all the defendants have done certain overt acts in furtherance of such common design and purpose, and that it was jointly liable with the other defendants for all the damages resulting to the plaintiff growing out of the unlawful combination as it was originally formed.

It is clear, as it seems to me, that it is unnecessary to determine whether the complaint will bear that construction or not, in view of the rule that in actions of tort judgment may be entered against such of the defendants against whom a cause of action is made out. The single inquiry now before us is, whether, upon the facts as stated, a judgment may be rendered against this defendant, if the plaintiff fails to prove, a like cause of action against all or either of the other defendants. On the trial it is not necessary to prove a conspiracy between the defendants, if one is alleged in the complaint, except for the' purpose of securing a joint recovery against all. (Hutchins v. Hutchins, 7 Hill, 107; Buffalo Lubricating Oil Company v. Everest, 30 Hun, 586.)

That a perfect cause of action against this defendant is set forth in the complaint, is clear and indisputable. It is a business corporation, organized under the laws of this State in the year 1882, and since then has been engaged in extensive operations in the same towns and cities where the plaintiff is engaged in a like business. The complaint charges the other defendants with having formed a conspiracy to injure the plaintiff, and done certain acts injurious to the plaintiff, in pursuance therewith, prior to the time this defendant was organized and went into existence as a corporation. The complaint then charges that after the defendant came into existence it joined and became a party to the conspiracy, and ratified its previous action. It is then further charged, as of a time after the defendant was organized, that the conspirators, that is, all the defendants, by letters and other means, requested various customers of the plaintiff not to purchase oil from it, and represented that the plaintiff’s oil was of inferior quality, and that the plaintiff had no right to make such oils and vend the same on the market, and threatens the defendant’s customers with law suits and expenses if they continued to patronize the plaintiff and purchase its commodities ; and employed one Stearn to make such statements, and that he did make the same at the city of Boston, and in other places in the State of Massachusetts, and in various parts of New England, to certain customers of the plaintiff, and by reason thereof the plaintiff lost many of its said customers and much of its trade and business, and suffered great loss and damage in consequence thereof. That the said conspirators, by their agents and servants, did falsely represent to customers of plaintiff that said conspirators, or some of them, had patents that covered the entire product of plaintiff’s manufacture, and that the plaintiff had no right to make the oil it was then manufacturing, and that all who bought oil of the plaintiff were infringing the patents of some one or all of the said conspirators, and that one or more of said conspirators would bring actions for .such infringements against each and every of the customers of the plaintiff who bought oils or dealt with the plaintiff, for such infringement of the said patents, and that by reason thereof, the said conspirators did prevent many of the customers of the plaintiff from purchasing oils of, or from dealing with it, and did take from the plaintiff many of its customers to the great damage of the plaintiff. The complaint also avers that, of a time subsequent to the creation of this defendant as a corporation, the defendant did other wrongful acts to the detriment and pecuniary injury of the plaintiff.

In that part of the complaint, of which the substance has just been stated, it is manifest that by the use of the term conspirators the pleader intended to charge all of the defendants, including the Standard Oil Company of New York, with being actors in the performance of the illegal acts charged. If the acts thus charged to have been done by the defendants are proved upon the trial to have been done by this defendant, through its officers or agents, it has slandered the plaintiff’s business and committed an inexcusable wrong condemned by the laws of the land as well as by honorable traders and merchants. It is charged that this defendant, together with the other defendants, employed a particular person to repeat the slanders to and among the plaintiff’s customers, and his acts in the eyes of the law are the acts of the defendant and it becomes liable for all the damages sustained by the plaintiff by reason thereof. The general rule upon that subject is, as established by the recent cases, that for the acts of the servant, within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interest, the master will be responsible whether the act be done negligently, wantonly or even wilfully.” In general terms, if the servant misconducts himself, in the course of his employment, his acts are the acts of the master, who must answer for them. (Mott v. Consumers’ Ice Company, 73 N. Y., 543.)

In Reed v. The Home Savings Bank (130 Mass., 445), the court said that, by the great weight of modern authority, a corporation may be liable even when a fraudulent cr malicious intent in fact is necessary to be proved, the fraud or malice of its authorized agents being imputable to the corporation; as in actions for fraudulent representations.” (See, also, 2 Addison on Torts, 73.)

There is great justice and fairness in this rule, otherwise injustice might be done to individuals if their remedy for wrongs authorized by corporations were to be confined to actions against the agents employed by the corporation. Since in these times a vast portion of the business of the country is carried on by corporations, guided and stimulated in their action by the advice and under the direction of shareholders, who desire to make their investment profitable, this rule should not be narrowed or limited in any degree by the decisions of the court. •

If the views already expressed are sound, then it becomes wholly unnecessary to consider the proposition much discussed upon the argument, by the learned counsel for the defendant, that a corporation cannot become a party to a conspiracy. Although it is difficult to see why it may not, and authority may be cited holding that it can join a conspiracy and become liable for the action of all the conspirators. (Dodge v. Bradstreet Co., 59 How., 104; Morton v. Metropolitan Life Ins. Co., 34 Hun, 367.)

The plaintiff in stating his cause of action against a corporation may, and should state the acts complained of as being the acts of the corporation itself, and it is not necessary nor proper to aver in the complaint that they were done by and through the authorized agent of the corporation. It is a matter of proof upon the trial to establish that the person who did the act was the' authorized agent of the defendant, for it can only act through its officers and agents. When a charge is made in a pleading against a corporation by its corporate name, the legal inference is that some person or persons in its employ did the act imputed. (1 Chitty on Plead., 286; 2 Wait’s Pr., 376; Stoddard v. Onondaga Conference, 12 Barb., 575.)

Judgment affirmed, with costs, and with leave to the defendant to withdraw the demurrer and answer on payment of the costs of the demurrer and of this appeal, within twenty days.

Smith, P. J., and Beadle*, J., concurred; Haight, J., not-sitting.

Judgment in each case affirmed, with costs, with leave to the defendant to withdraw demurrer and answer the complaint íd twenty days, on payment of the costs of the demurrer and of this appeal.


author: Beadle v, J.;

text:
    FREDERICK J. BLAESI and Others, Appellants, v. CAROLINE BLAESI, Widow of JACOB F. BLAESI, Respondent.

      Evidence as to personal transactions with a deceased person — to what cases the prohibition does not extend— Code of Civil Procedure, sec. 829.
    Appeal from a judgment of the Monroe Special Term, dismissing the complaint.
    The action was brought to establish a deed of conveyance alleged to have been made by the defendant to Jacob E. Blaesi, who subsequent to such conveyance became her husband; who, having title, conveyed the premises to one Jacob Stubenbord, on May 18, 1874, and on May 17,- 1877, he married the defendant. In June, 1877, Stubenbord conveyed the premises to her. Jacob E. Blaesi, the husband, died intestate in December, 1883. The plaintiffs are his heirs-at-law, and they allege that the defendant, the widow of Jacob E. Blaesi, made and delivered to him, in 1882, a deed of conveyance of the land in question. They demand judgment that the deed may be produced, and that they be adjudged the owners of the premises, as such heirs, subject to her right of dower. The allegations as to the conveyance are put in issue by the defendant’s answer.
    The trial court found that the defendant took title from Stubenbord, and has since continued to be, and is the owner, and in the possession of the premises, and directed judgment dismissing the complaint on the merits.
    The court at General Term, after holding that this finding was supported by the evidence, said: “ The difficulty arises upon exceptions taken to the exclusion of evidence on the trial. One of the plaintiffs testified that a conversation took place between the defendant, her husband and himself, and his evidence of such conversation was excluded as incompetent, under Code of Civil Procedure, section 829. The witness was a party, and interested in the event, and was examined in his own behalf and interest and that of his co-plaintiffs, but not against the executor, administrator or survivor of a deceased person, or a person deriving title from, through or under a deceased person. The defendant took her title from a person other than her husband, and although her grantor took Iris title from him, that fact does not presumptively place her within the relation to the deceased required to give application to the inhibition of the statute referred to. Her grantor would be excluded as against her from testifying to personal communications had by him with the deceased. This contest is between the defend-, ant and the heirs of the decedent. They claim under him, and as against them the defendant would not be permitted to relate personal transactions or communications had by her with him in his life time, but their transactions with him, as against her, do not seem to come within the letter or spirit of the provisions of such section. The exception to the exclusion of the evidence seems to have been well taken. And we think the striking out the statement of the witness, that he saw the deed in the possession of the husband, was error, not only for the reason before given, but because it did not, as it stood, tend or purport to prove any personal transaction between him and the witness.
    “ There seems to have been no error upon the trial or in the decision, other than in the rulings excluding and striking out the evidence referred to, and for those reasons the judgment should be reversed and a new trial granted, costs to abide event.”

      Bar hite <& Heed, for the appellants.

      WiUiatn AT. Werner, for the respondent.
   Opinion by

Beadle v, J.;

Smith, P. J., and Barker, J., concurred : Haight, J., not sitting.

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


author: Smith, P. J.;

text:
    EUGENE E. LEWIS, as Executor, etc., of CHARLOTTE J. LEWIS, Deceased, Respondent, v. ENOS MERRITT, Appellant.

      Action for the conversion of personal properly — the burden of proving a gift rests upon the pa/rty claiming it — when a charge that the defendant must establish the gift beyond a suspicion will be sustained,.

    Appeal from a judgment in favor of the plaintiff entered on a verdict rendered at the Yates Circuit.
    This action was brought to recover damages because of the alleged conversion of certain promissory notes, executed by the defendant to the plaintiff’s testatrix, who was the sister of the defendant and. the mother of the plaintiff.
    The defendant, by his answer, admitted the execution and delivery of the notes to the deceased; alleged that before and at the time of her death he was rightfully and lawfully in the possession of the notes, and they were then liis property, and denied that they were the property of the deceased at the time of her death.
    The action has been tried three times, each trial resulting in a verdict for the plaintiff. The first verdict was set aside and a new trial granted on the ground of newly discovered evidence. The judgment on the second verdict was reversed by the Court of Appeals, for the improper exclusion of evidence. (98 N. Y., 206.)
    The court at General Term said: “ The notice of the present appeal purports to be from an order denying a motion for new trial, as well as from the judgment, but no such order appears in the case. The only questions to be considered, therefore, are those presented by exceptions.
    “The appellant’s counsel contends that there is no evidence of a wrongful taking. The statement of the evidence on that point, contained in the opinion of Ruger, Oh. J., on the review of the second trial (98 N. Y., 207,208), may bo adopted as an accurate summary of the evidence given on the last trial, and is substantially as follows:
    “ Thp plaintiff, as a witness in his own behalf, testified, in substance, that the notes in suit were, for some time previous to his mother’s death, kept in a tin trunk under the bed in the room occupied by Iier, and that he saw them there on the morning before she died, and that upon examining the trunk on the following morning he found that the notes had been abstracted. Another witness testified that the notes were afterwards found in the possession of the defendant, who, when they were demanded of him, refused to surrender them. The plaintiff also testified to facts showing the presence of the defendant in the room where the notes were kept during the last hours of his mother’s illness, and the opportunity thereby afforded him to obtain unauthorized possession of them. The learned chief judge, speaking for the majority of the court, said that the evidence thus tended both to establish ownership of the notes by the testatrix, by creating a presumption, arising from the fact of possession, and by inference to controvert the probability that the defendant came rightfully into possession of the notes by means of a prior disposition of them by her. As the testimony upon the point is substantially the same now as it was then, the decision of the court of last resort is conclusive upon the question. * * *
    “The trial judge charged the jury that the defendant, in order to hold this property by virtue of a gift, must establish it beyond a suspicion. To that instruction the defendant excepted. The charge accords with the rule stated by Peckham, J., delivering the opinion of the court, in Grey v. Grey (17 N. Y., 552). That was an action on a promissory note given by a son to his father, on settlement of accounts, payable one year from date, with interest. The father died about four months after the note was given. The suit was brought by his personal representatives. On the trial the defendant produced the note with his name torn off. He testified that he had it in his possession prior to his father’s death; that he never took the note from the drawer of his father, and he did not know of any third person owning or possessing the note; that he never paid it, or transferred or delivered to intestate any property, nor was the intestate indebted to the defendant since giving the note. It appeared that the defendant had means of access to hi3 father’s papers. In that case, as in this, it did not appear affirmatively how the defendant became possessed of the note. Judge Peckham said: ‘ If any presumption of title or of payment prevail, by mere possession, it is only where the possession is free from sus picion.’ (P. 555.) And after stating that the law does not presume a gift, he said: ‘ If this were claimed as a donatio mortis causa, then the rule is still more rigid that the clearest proof on the part of the claimant is required. It must be established beyond suspicion.’
    “ This can hardly be regarded as a mere dictum, as suggested by the appellant’s counsel. There being no proof of the manner in which the defendant became possessed of the note, it was pertinent to consider the case in all its aspects, and, as the hypothesis of a gift mortis causa, was consistent with the evidence, its consideration was not so far foreign to the case, as that what was said respecting it can be regarded as a mere passing remark lacking authority.

      “ It is contended that the authorities cited by Judge Peokham do not sustain him. They are: Walter v. Hodge (2 Swanst., 97; 2 Kent [8th ed.] MI); Goutant v. Schuyler (1 Paige, 316). The latter case holds that claims of this kind are admitted with great caution, and all agree that the evidence must be satisfactory ; by which is meant, doubtless, that the evidence must be satisfactory, in view of the circumstances of each case. Thus, where there are circumstances attending the alleged gift which reasonably excite suspicion as to whether there was a gift, in fact, the proof must be such as to remove the suspicion. We think the rule laid down by the trial judge was not more stringent than the circumstances disclosed by the evidence warranted.
    “ Some other exceptions were taken by the defendant’s counsel, but they have not been argued, and we do not consider them.
    “ The judgment should be affirmed.”

      D. Morris, for the appellant.

      Delos A. BelTAs and Charles S. Baker, for the respondent.
   Opinion by

Smith, P. J.;

Babkeb and Bbadley, JJ., concurred; Haight, J., not sitting.

Judgment affirmed.


author: Bradley, J.;

text:
    JANE R. HATCH and JOHN CONOLLY, as Administrators, etc., of CATHARINE CURBOW, Deceased, Appellants and Respondents, v. JOHN L. STEWART, as Executor, etc., of ANGUS McDONALD, Deceased, Appellant and Respondent.

      Reference of a disputed claim against the estate of a deceased person is a special proceeding — an appeal should be taken from, the order of the Special Term confirming the ref efee’s report, and not from the judgment — the plaintiff is entitled to recover his disbursements, as a matter of right, under section 317 of tlve Oodo of Procedure, which was not repealed by chapter 417 of 1877.
    Appeals from a judgment, entered upon the confirmation of the report of a referee, in a proceeding to determine a disputed claim against the defendant’s testator.
    The court at General Term said: “ The matter in controversy was referred, pursuant to the statute (2 R. S., 88, § 36, as amended by Laws of 1859, chap. 261). It was heard and a report made by the referee, by which he determined that the plaintiff was entitled to recover. And, upon application to this court, at Special Term, the report was confirmed. There is no appeal taken from the order, but both parties appeal from the judgment only. This is a special proceeding. (Roe v. Boyle, 81 N. Y., 305.) Provision was made for appeals from judgments in these proceedings by Laws of 1854 (chap. 270, § 1). That section was repealed by Laws of 1877 (chap. 417, § 2). And our attention is called to no remaining or subsequently enacted statute providing for such appeal. The provisions for appeals from judgments (Code Civil Pro., § 1346) do not seem 'applicable to special proceedings (id., § 3343, sub. 20). In them, appeals from orders are provided for (id., § 1356). But as both parties treat the case as properly here upon the merits, we will not further pursue the inquiry, or consider that question.”
    After considering the case upon the merits, and holding that the judgment should be modified in favor of the defendant by reducing the amount of the judgment recovered by the plaintiff, the court added:

      “ The modification of the judgment should be without costs of this appeal, but the recovery of disbursements, as directed by the judgment, must stand. The plaintiff was entitled to them as matter of right, because the provisions of section 317 of the old Code to that effect were not repealed by Laws of 1877 (chap. 417). And although the entire provisions of the old Code are embraced in the repealing clause of Laws of 1880 (chap. 245, § 1, sub. 4, and § 2), the then existing right of the prevailing party to recover the fees of referees and witnesses, and other necessary disbursements in a proceeding of this character, is preserved by section 3, .subdivision 8 of the same act. {Hall v. Edmunds, 67 How., 202; Suttcn v. Newton, 2 id. [N. S.], 56; S. C., 15 Abb. N. C., 452; 7 N. Y. C. P., 334; Overheiser v. Morehouse, 2 How. [N. S.], 257; S. C., 16 Abb. N. C., 208 ; 8 N. Y. C. P., 11.)
    “ In Miller v. Milder (32 Hun, 481) it was held otherwise, but we think that the provisions of section 317 of the old Code, in the respect referred to, were saved from repeal by the proviso in the act of 1880, before mentioned, and are not superseded by Code of Civil Procedure (§ 3246).
    “ The judgment should be so modified as to make the recovery one thousand seven hundred and seventy-six dollars and eight cents, and interest thereon from the 15th day of September, 1885, with the fees of referee and witnesses and other disbursements recovered thereby, and as so modified affirmed, without costs of this appeal to either party.

      Edwi/n A. Medoalf, for the plaintiffs.

      George D. Forsyth, for the defendant.
   Opinion by

Bradley, J.;

Smith, P. J., and Barker, J., concurred ; Haight, J., not sitting.

So ordered.


author: Hakdin, P. J.:

text:
    EDMUND D. CROSLEY, Respondent, v. CALVIN F. COBB, Appellant.

      Costs — there must be a recovery to entíüe a defendant, succeeding on some of the issues, to recover costs— Code of Cwil Procedure, sec. 3234
    Upon the trial of this action the court, upon the motion of the defendant’s counsel, granted a nonsuit in so far as concerned two of the four counts which were contained in the complaint. The plaintiff recovered a general verdict of fifty dollars.

      Held, that there was no recovery upon one or more of the issues on the part of the defendant which entitled him to costs, as against a plaintiff, under the provisions of section 3234 of the Code of Civil Procedure.

      Blashfield v. Blashfield (41 Hun, 249) distinguished.
    Appeal from an order made at the Onondaga Special Term refusing costs to the defendant.
    The plaintiff recovered a general verdict of fifty dollars. There •was no verdict, or special or general finding upon an issue of fact, in favor of the defendant, at the circuit where the cause was tried before Mr. Justice Eish and a jury.

      J. W. Saggett and F. Pierce, for the appellant.

      A. P. & D. E. Smith, for the respondent.
   Hakdin, P. J.:

Pour counts were stated in the complaint. At the trial, upon defendant’s motion, it was held that the second count did not state a cause of action, also the third count, and the court granted a nonsuit so far as that count was concerned. (See Mem. of Fish, <1., and proposed certificate referred to in his Mem.)

Before a defendant is entitled to costs, under section 3234 of the Code of Civil Procedure, it must appear that he has recovered upon one or more of the causes of action. (Briggs v. Allen, 4 Hill, 538.) It does not so appear in this case. Defendant must stand by and be bound by the holding had at the circuit at his instance.

The section provides that if the plaintiff recovers upon one of the issues of fact, and the defendant “ upon the other or others,” then costs may be awarded to each party. If the defendant had demurred to the defective counts, and it had been held that they did not state facts sufficient to constitute a cause of action, of course it could not have been claimed that the defendant had recovered “ upon an issue of fact; ” but instead he raised the question at the trial and it was held, as a matter of law, that the counts were defective. There-was no recovery or verdict upon a “cause of action ” in favor of defendant. In Blashfield v. Blashfield there was an issue of fact as to each of the two notes set out in the complaint, and a recovery by plaintiff on one and a recovery by defendant on the issue of fact as to the other. That case does not aid the defendant here. There was in the case in hand no recovery by the defendant. (Cooper v. Jolly, 30 Hun, 224; S. C., affirmed, 96 N. Y., 667; Kilburn v. Lowe, 37 Hun, 237.)

Our conclusion is that the Special Term order should be affirmed.

Boaedman and Follett, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Hardin, U. J.:

text:
    GEORGE A. FISHER, Respondent, v. GEORGE DOUGHERTY, Appellant.

      Practice — power of the court to allow additional affidavits to be read on a motion to vacate an attachment — to order such affidavits to be fled nunc pro tunc — a party accepting a payment under an order cannot thereafter object to such order.

    Upon tlie hearing of a motion to vacate an attachment, made by the defendant upon the papers upon which it was granted, the plaintifE was allowed, without objection on the part of the defendant, to read two additional affidavits establishing the non-residence of the defendant and the plaintiff’s inability to serve him within the State. Thereupon, an order was made permitting the plaintiff, on paying ten dollars to the defendant, to amend his proceedings by filing the said affidavits, as of the date of the issue of the attachments, and amending, the former order and other proceedings so as to conform thereto, and directing that if this were 'done the motions were denied, but if not done, they wore granted, with ten dollars costs. The ten dollars were immediately paid to the defendant's attorney, who at first accepted the money but offered, a few days later, to return it to the plaintiff’s attorney, who refused to receive it. Upon an appeal by the defendant from so much of the order as allowed the plaintiff to amend his proceedings by filing the additional affidavits nunc pro tunc:

      Held, that as it did not appear that the defendant objected to the reading of the affidavits at the Special Term, he would not be allowed to take exception thereto, in the first instance, on appeal.
    That section 724 of the Code of Civil Procedure conferred upon the court power,. in its discretion, to allow such an amendment of the proceedings.
    That the defendant having accepted the money paid by the plaintiff, in compliance with the terms of the orcer now appealed from, ought not now to be allowed to complain of the course the discretion of the court took
    Appeal from parts of an order made at the Chemung Special Term; also, a motion to dismiss the appeal.
    Plaintiff’s complaint was verified March 25,1885, and stated two' causes of action on contract and how they respectively arose. Plaintiff’s affidavit stated how the causes of action arose, and “that' there are no counter-claims, discounts or set-offs.” * * * “ The above entitled action is brought for said causes, and the summons has not yet been served. That the defendant is not a resident of the State of New York, but is a resident of the city of Scranton, in the State of Pennsylvania, as deponent is informed and believes.” The affidavit was made March 24,1885. Upon the complaint and affidavit, service of the summons by publication was ordered March 25, 1885. Also, a warrant of attchment was issued and levied. Upon a motion to set them aside, a further affidavit of plaintiff and an affidavit of one Douglass were read by plaintiff. These last named affidavits show the non-residence of defendant, and diligent efforts made to find him in the State and to serve him with the summons. An order was made by the Special Term, 8th of May, 1885, “ that on the plaintiff paying to the defendant ten dollars, the plaintiff have leave to amend his proceedings by filing the affidavits of George A. Fisher and William H. Douglass, which relate to the non-residence of the defendant nuno pro tumo, as "of the 25th day of March, 1885, and that the order and other proceedings be amended so as to conform thereto, and that being done, the motions are denied; but if not done, the motions are granted, with ten dollars costs of this motion.” The ten dollars was immediately paid to defendant’s attorney and accepted by him. He offered, a few days later, to return it, and plaintiff’s attorney refused to receive the money. It has been retained by defendant’s attorney.
    Defendant has appealed only “ from so much of the order entered therein on the 11th day of November, 1885, as directs that the plaintiff have leave to amend his proceedings by filing the affidavit of George A. Fisher and'William A. Douglass, which relate to the non-residence of the defendant nuno pro tuno, as of the 25th day of March, 1885, and that the order and other proceedings be amended so as to conform thereto, and directing the clerk of Delaware county to amend the proceedings and file the same accordingly.”

      jW. JD. Gumming, for the appellant.

      George A. Fisher, respondent in person,
   Hardin, U. J.:

We need consider only that part of the order specifically appealed from. In doing that, we may observe that the record brought before us docs not indicate any objection taken in the Special Term to the offer to read the affidavit of plaintiff of May 6, 1885, and of Douglass, of May 4,1885. (Kibbe v. Wetmore, 31 Hun, 424.)

In the case just cited, SMrra, P. J., said: “But the appeal book does not show that any such objection was made, and, therefore, the defendant is to be regarded as having consented that the affidavits in question be received and fully considered by the court. The defendant cannot now be heard to object for the first time that the affidavits were improperly received, and that the order allowing the amendment should, therefore, be reversed.”

The record in respect to them is, viz.: “ Chemung Special Term, May 8, 1885. Received on motion and order filed Delaware county clerk’s office.” However, section 724 of the Code of Civil Procedure confers upon the court power, in its discretion, to allow an amendment of proceedings had. ( Weeks v. Tomes, 16 Hun, 319 ; S. C., affirmed, 76 N. Y., 601.) In that case the power of the court was distinctly declared to grant amendments nuno pro tuno, although it was said such an order is not operative as against persons who are not parties to the action.” The question before us only relates to the parties to the action. The court exercised its discretion and named the terms, and plaintiff complied. We may approve of the exercise of the power. Defendant having accepted the money paid to comply with the terms of the oi’der, and in the discretion of the court deemed proper, ought not to be heard to complain of the course the discretion of the court took. (Eagan v. Moore, 2 Civil Pro. [Browne], 300 : Gribbon v. Freel, 93 N. Y., 93; Code of Civil Pro., § 723.) (2.) That part of the order which granted costs to defendant is not appealed from. (3.) The. notice of appeal does not specify that part of the order which denied the motions as being a part that was appealed from.

These views lead to an affirmance of the order. It may be remarked that it does not appear by the appeal papers that any rights had intervened between the 25th of March and the 8th of May, 1885, and no question in that regard need be passed upon upon this appeal.

The order should be affirmed, with ten dollárs costs and disbursements. The motion to dismiss the appeal may be denied, without costs to either party.

Boardman and Pollett, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. Motion to dismiss appeal denied, without costs to either party.


author: Hardin, P. J.:

text:
    GEORGE N. BALCOM, Appellant, v. FANNIE TERWILLIGER, Respondent.

      Costs — the right thereto is governed by the law in force at the time the right to them accrues— Code of Civil Procedure, sec. 3070.
    In this action, in which issue was joined in December, 1884, the plaintiff, on January 10,T885, recovered a judgment in a Justice’s Court for ninety-three dollars and ninety-two cents, from which he appealed, on January 28, 1885, to the County Court demanding a new trial. No offer of judgment was made by the respondent. On June 17, 1886, the plaintiff recovered a judgment in the County Court for eighty-nine dollars and twenty-two cents damages and thirteen dollars and ninety-eight cents interest; in all one hundred and three dollars and twenty cents. Upon an appeal from an order of the County Court setting aside a taxation of costs in favor of the plaintiff and directing costs to be taxed in favor of the defendant:

      Held, that costs should be granted or refused in accordance with the law existing at the time when the party acquired the right to recover them.

      Qarling v. Ladd, (27 Hun, 112) followed.
    That as this action was commenced after September, 1880, it did not fall within the exceptional provisions of subdivision 11 of section 3347 of the Code of Civil Procedure.
    That the right of the parties to recover costs in this case was to be determineo by section 3070 of the Code of Civil Procedure, as amended in 1885, whicn provides that where neither party makes an offer, the party in whose favor the verdict, upon a decision in the appellate court, is given shall be entitled to recover his costs upon appeal.
    That the order of the County Court should be reversed.
    Appeal from an order of tbe Broome County Court, setting aside a taxation of plaintiff’s costs, and striking them from the judgment, and directing costs to be taxed in favor of the defendant.
    The action was brought in a Justice’s Court, issue being joined therein December, 1884. On the 10th of January, 1885, the plaintiff recovered a judgment for ninety-three dollars and ninety-two cents damages. The plaintiff appealed to the County Court on January 28, 1885, and demanded a new trial. No offer of judgment was made by the responden]:. On the 17th of June, 1886, the plaintiff recovered and entered a judgment for eighty-nine dollars and twenty-two cents damages, and thirteen dollars and ninety-eight cents interest, in all one hundred and three dollars and twenty cents. The plaintiff taxed his costs and entered them in his judgment.

      Canniff c& Penrie, for the appellant.

      Carver d¡¡ Deyo, for the respondent.
   Hardin, P. J.:

Garling v. Ladd (27 Hun, 112) is an authority to the effect that costs will be granted or refused in accordance with the law existing when the party has the right to costs.’

That case was referred to in Atkin v. Pitcher (31 Hun, 352), and it was held that in a case brought before 1st of September, 1880, the date when the provisions of the Code of Civil Procedure took effect, the costs were to be taxed under section 371 of the old Code, as subdivision 11 of the Code of Civil Procedure, section 3347, declares that chapters 18 and 19 of the Code of Civil Procedure apply only to an action or special proceeding commenced on or after the 1st of September, 1880. This action was commenced after September, 1880, to wit, on the day of December, 1884, and, therefore, does not fall under the exceptional provision of section 3347, subdivision 11. Chapter 522 of the Laws of 1885, amended section 3070 of the Code of Civil Procedure, and it took effect on the 3d of July, 1885. If we apply the exception as to when the amendment shall take effect, or if we assume that the section as amended shall be restricted, its application to cases enumerated in subdivision 11 of section 3347, we must say that as this action was commenced after September 1, 1880, it is not excluded from the operation of section 3070, as it stood after the amendment thereof in 1885. We are thus brought back to the general rule, that costs are regulated and given by the statute in force, when the party has the right to costs. By section 3070, as amended in 1885, it is provided, vizIf neither party make an offer as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be entitled to recover his costs upon the appeal. As no offer was made, and the plaintiff recovered in the County Court eighty-nine dollars, we must hold that his case falls within the provision we have quoted from section'3070 of the Code of Civil Procedure, as amended in 1885, in accordance with cases adjudged. (Sheehan v. Buller, 24 Weekly Dig., 168.) If the question were an open one in this court, it might be doubted whether in this case either party were entitled to costs, inasmuch as no offer of judgment, as provided in section 3070, as amended by chapter 522 of Laws of 1885, could be made. It might be questioned whether the legislature intended that the omission of an offer, as provided, should cast a party in costs who, when the appeal was taken, was not authorized to make sudh offer as that named in section 3070, as amended by the legislature in 1885. (Railroad Co. v. Roach, 80 N. Y., 339; Engel v. Fischer, 15 Abb. N. C., 72; People v. Commissioner of Taxes of N. Y., 95 N. Y., 559.)

However, as before remarked, we must follow Sheehan v. Buller (supra), and the cases referred to in tlie opinion of Mr. Justice Follbtt, and apply section 3070, as amended in 1885, to this case, and reverse the order of the County Court and direct a restoration of the costs taxed in favor of the plaintiff and inserted in the judgment as originally entered. *

The order of the County Court of Broome county shonli be reversed, with ten dollars costs and disbursements.

Boardmak, J., concurred ; Follett, J., concurred in result.

Order of the County Court of Broome county reversed, with ten dollars costs and disbursements.


author: Hardin, P. J.: Boardman, J.:

text:
    WILLETT FISHER, Appellant, v. THE VILLAGE OF CORTLAND, Respondent.

      Practice — when the-treasurer of a milage is its chief fiscal officer within the meaning of section 8245 of the Gode of Oivil Procedure.

    Under the provisions of the charter of the. village of Cortland (1864, chap. 406) the treasurer of the village, and not the common council thereof, is “the chief fiscal officer of the corporation” within the meaning of these words as used in section 8245 of the Code of Civil Procedure, which prohibits' the allowance of costs to the plaintiff, in actions against municipal corporations, unless the claim upon which it is founded was, before the commencement of the action, presented to that ofllcer (Follett, J., dissenting.)

      Bresséil v. The City of Kingston Í32 Hun, 526); Paine v. The Oity of Rochester (85 N. V., 528), and Judson v. The Village of Olean (40 Hun, 158) followed.
    Appeal from an order made at the Cortland Special Term, denying the plaintiff’s motion for a retaxation and for costs, after a judgment had been recovered by the plaintiff.
    The action was brought to recover for personal injuries sustained by plaintiff in one of the streets of the defendant’s village, and for the recovery of a sum of money only. Before the commencement of this action the plaintiff appeared before “ the common council, while in actual session, and made a verbal statement of his injuries and claimed he ought to be paid something, but stated no amount. Being asked what the amount was, he replied he could not tell. Two of the trustees, in an affidavit, said that the board concluded not to allow him anything; others of the trustees said that no claim was presented, and none was rejected.” The Special Term held that “ the claim of the plaintiff was never presented to the common council within the meaning of the statute.” N o claim was presented to the treasurer of the defendant before this action was commenced.

      Oliver Porter, for the appellant.

      Fred. Hatch, for the respondent.
   Hardin, P. J.:

In section 2 of chapter 406 of the Laws of 1864, is found a provision of defendant’s charter providing for the election of a treasurer, and in section 16 of the same act it is provided, viz: “ The treasurer shall receive all moneys belonging to said corporation, and disburse the same under the direction of the board of trustees ; make and keep a correct record of all such receipts and disbursements; prepare at least two weeks before the annual' election, and file with the clerk of the village, an account of the state of the finances of said village, and of the receipts and disbursements during the year, and at every time, when requested by the board of trustees, furnish them such statement in relation to the finances and the receipts and disbursements and debts, dues and demands of the said corporation, as the said board may, by resolution, demand; and perform such other duties as the said board of trustees may ordain.” Section 21 of the act provides: The trustees shall have the management and control of the finances.” * * * Section 39 of the act requires the collector of the taxes to pay over “ all moneys collected by him to the village treasurer.”

In Dressell v. The City of Kingston (32 Hun, 526), the court refers to chapter 150 of the Laws of 1872, for the purpose of determining whether the treasurer is the chief financial officer. The provisions found therein, in relation to the powers and duties of the treasurer of that city, are quite similar to the provisions we have quoted from defendant’s charter. It was there held that the treasurer was the chief financial officer, and that, according to the provisions of section 3245 of the Code of Civil Procedure, a claim should be presented to such officer before suit, to entitle plaintiff to have costs allowed him in case of a recovery in an action like the one before us. "We regard that case as an authority directly in point, and consider it our duty to follow it. (See also Baine v. The City of Rochester, 85 N. Y., 523.) Judson v. The Village of Olean (40 Hun, 158) recognizes the authority of Dressell v. Kingston (supra), and, we think, supports the order now before us. In Williams v. The City of Buffalo (25 Hun, 302) it appeared “ the action was for work done in building an engine-house for the city,” and the right to costs was resisted because the claim had not been presented to the comptroller. The case is, therefore, not exactly in point, and it is probable that the case of Baine v. The City of Rochester (supra) had not been reported, and that the attention of the court was not called to the opinion of the Court of Appeals.

We are of the opinion the plaintiff did not make out a compliance with section 3245 of the Code of Civil Procedure, and therefore is not entitled to costs of this action.

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

Follett, J., concurred.

Boardman, J.:

The case of Gage v. Village of Hornellsville (41 Hun, 88), published since this opinion was written, is hostile to the view taken by Judge Hardin. Baine v. City of Rochester, however, clearly holds that the power of the treasurer to audit and allow a claim, and provide means of payment, has nothing to do with the requirement of service of notice. The object was to secure notice, and the chief financial officer was named as the person on whom the notice should be served. The common council or board of trustees is not an officer or a financial officer, though they have various powers making a financial officer necessary. I must concur in the opinion.

Order affirmed, with ten dollars costs and disbursements.


text:
    GEORGE BENEDICT, Respondent, v. THOMAS D. PENFIELD, Appellant, Impleaded, etc.
    Practice— as to which party has the affirmative of the issue — evidence— hypothetical opinions inadmissible — when a verdict will he set aside because of the admission-of irrelevant evidence.

    In this action, brought upon a bond dated January 24, 1881, given to a sheriff to indemnify him from all damages and costs that might be incurred, by reason of a levy and sals made by him, the answer did not admit the delivery of the bond.

      Held, that as the plaintiff was bound to prove this fact, he had the affirmative of the issue.

      Lindsley v. European Petroleum Company (3 Lans., 176) and Milles'd v. Thorn (56 N. Y., 404) distinguished.
    The defendant, having testified that he signed the bond in question upon the representations of one Risley that he (the defendant) was on a former bond, was asked by his counsel “ would you have signed the bond if these representations had not been made to you.”
    Held, that the question was properly excluded.
    Upon the trial the plaintiff, after proving that a bond or undertaking on appeal, dated September, 1882, was executed, was allowed to put the same in evidence, the objection of the defendant’s counsel that it was incompetent and immaterial being overruled by the court:

      Held, error; that as the evidence so admitted was irrelevant to the issues involved and might have prejudiced the defendant’s case before the jury, and as the questions of fact upon which the decision of the case turned were sharply contested, the judgment should be reversed and a new trial granted.
    Appeal from a judgment entered on a verdict rendered at the Oneida Circuit, for the sum of $3,237, and, also, from an order denying a motion for a new trial, made on the. minutes of the justice before whom the action was tried.
    The action was brought upon a bond of indemnity given to a sheriff to indemnify him against any loss or damages which he might sustain by reason of a levy and sale which he had made. The defense was that the defendant Penfield was induced to execute the bond by false and fraudulent representations made to him.

      William .JTernan, for the appellant.

      Beardsley da Beardsley, for the respondent.
   Hardin, P. J.:

Plaintiff, to recover, was required to produce the bond and to establish its delivery by the defendant. Plaintiff was entitled to give evidence of its actual delivery to him, as he did testify, in addition to the production of the bond, upon the question of its actual delivery. Clifkord, J., says, in Good v. Martin (95 U. S., 96): “As the delivery is something that occurs subsequently to the execution of the instrument, it must necessarily be a question of fact when the delivery was made. Parol proof is, therefore, admissible to show when that took place.” * * * Defendant’s answer did not admit the delivery of the bond. It was, therefore, incumbent upon the plaintiff to give such proof as would warrant a finding of the fact that it was delivered to the plaintiff. It was not error to hold that the plaintiff had the burden of proof and the affirmative of the issue. (Huntington v. Conkey, 33 Barb., 218 ; Elwell v. Chamberlin, 31 N. Y., 611.)

The case of Lindsley v. European Petroleum Company (3 Lans., 176) is unlike this, as in that case the making of the note, which includes its delivery, was admitted by the answer. Millerd v. Thorn (56 N. Y., 404) is unlike this case, as there the answer admitted the purchase of the goods sold, and set up an affirmative defense.

Defendant, as a witness, stated the circumstances and representations which induced him to sign the bond in question, and added: “ I sign this new bond, relying upon these representations of Mr. Kisley that I was on the former bond.” Then he was asked by his counsel, viz.: “ Q. Would you have signed the bond if those representations had not been made to you ? ” The question was objected to as incompetent and immaterial, and the court excluded it, and defendant excepted. If the jury found that the defendant told the truth, when he said that he relied upon the representations made, then it was immaterial to inquire what the defendant would not have done without the representations. Andrews, J., says, in Taylor v. Guest (58 N. Y., 266), “ it is incumbent upon the party claiming to recover in an action for deceit, founded upon false-representations to show that he was influenced by them.” To that point the defendant had testified sufficient to bring his case, if' believed, within the rule stated in the case just alluded to, and it was not error to exclude the question propounded, which, at most,, called for a hypothetical opinion. January 24, 1881, is the date of the bond in suit. It was acknowledged on the 31st day of January, 1881. Plaintiff testified he received it after it was acknowledged, within a day or two after its date; received it from Mr. Penfield’s own hands. It was acknowledged before I received it.”

Upon the trial the plaintiff proved that a bond or undertaking, on appeal, executed by the defendant Thomas I). Penfield and another, was executed and dated September, 1882, and offered it in evidence. Defendant objected, as incompetent and immaterial, and his objections were' overruled, and he excepted, and the undertaking was read in evidence, and by it the fact that defendant executed it was made to appear. We think the evidence was irrelevant to the issues. It did not legitimately bear upon any of the questions involved. It did not tend to show that the representations alleged, which induced the execution of the bond in suit, were not made. It did not tend to show that the defendant had signed a prior bond. It did not tend to show that defendant did not rely upon the representations which he says induced him to sign the bond in suit. (People v. Bragle, 88 N. Y., 585 ; Green v. Disbrow, 56 N. Y., 334.) It has been said that no evidence is admissible which does not tend to prove or disprove the issue joined. (3 Starkie on Ev., 387; 1 Green, on Ev., §§ 51, 52.)

This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or infex-ence as to the principle fact or matter in dispute. (See Townsend Mfg. Co. v. Foster, 51 Barb., 346; S. C., affirmed, 41 N. Y., 620, and appi’oved in Green v. Disbrow, supra.) Being irrelevant to the issues involved, it may have prejudiced the defendant’s case before the jury. We cannot say that it did not influence the verdict. The eiTor must be held sufficient to reverse the judgment, unless it clearly appears the defendant was not prejudiced by the error.” (Starbird v. Barrons, 43 N. Y., 204; Green v. Disbrow, supra.) The question of fact, upon which the case turned, was very sharply contested and involved in conflicting evidence, and the jury may have been influenced by the irrelevant evidence, to which reference has been made. (Townsend Mfg. Co. v. Foster, 51 Barb., 346.) Therefore, there should be a new trial.

Boardman and Follett, J J.

We think the results of the trial were right, but concur with reluctance in granting a new trial, for the reasons stated by Brother Hardin.

Judgment and order reversed, anda new trial ordered, with costs to abide event.


text:
    EARL E. ELLIS, Respondent, v. JOHN E. SHARP, as Trustee of School District No. 9, of the Town of Fabius, Appellant.

      Pleadings — what fads should be alleged in the complaint in an adion byaschoo teacher against the trustee of the district.

    In this action, brought to recover wages alleged to be due to the plaintiff, as a teacher in the school district of which the defendant was the trustee, the complaint alleged that the plaintiff was employed by the defendant to, and did, teach the school in said district for the period of three months, and that the wages due to him therefor amounted to the sum of $120, no part of which had been paid, and that the defendant had neglected and refused to pay the same. Upon an appeal from an order overruling a demurrer interposed to the complaint, on the ground that it did not state facts sufficient to constiute a cause of action:

      Held, that it must be assumed that the plaintiff was a qualified teacher, and that his services were solicited and contracted for, by and in behalf of the defendant, by a person authorized and empowered by law; that if the plaintiff was not qualified, the disqualifying facts should be alleged in the answer.
    It was claimed that the complaint was defective because there was no averment in terms, of a refusal to give an order on the supervisor for public moneys, or of a refusal or neglect to collect any balance by tax.

      Held, that the allegation that the defendant hadneglected and refused to pay” the wages was equivalent to such an averment.
    That the plaintiff was not required to aver specifically that he had performed each act and duty required to be done and performed by him in the discharge of his duties as a teacher in the publie schools, and that any failure on his part so to do should be set up in the answer as a defense.
    Appeal from an order and judgment overruling a demurrer to a complaint entered in Onondaga county.
    The action was brought to recover wages alleged to be due to tbe plaintiff, as a teacher, at forty dollars per month, for three months, $120.

      Waters da McLennan,, for the appellant.
    Fuller, Fuller da Cook., for the respondent.
   Hardin, P. J.:

Plaintiff’s complaint alleges that defendant was elected a trustee of the school district named, and being authorized and empowered by law, he employed the plaintiff to teach the school in said district, at a salary of forty dollars per month, for a term of three months, which employment and the terms thereof were accepted by the plaintiff. Then he alleges “ that pursuant to said employment by the defendant, as trustee as aforesaid, the plaintiff entered upon the same, and taught the school in said district for the said period of three months, which term ended on or about the 19th day of December, 1884. That the wages of the plaintiff for his said services as teacher of aforesaid school amounted to the sum of one hundred and twenty dollars, no part of which has been paid, and the defendant, as trustee as aforesaid, although thereto requested, has neglected and refused to pay the same, or any part thereof, notwithstanding the said sum of one hundred and twenty dollars was due and payable on the 19th day of December, 1884, aforesaid.” We think it must be assumed that the plaintiff was a qualified teacher, and that the services were solicited and contracted for, by and in behalf of the defendant, by a person authorized and. empowered by law. All reasonable intendments are to be indulged in, in support of the pleading demurred to. (Lorillard v. Clyde, 86 N. Y., 385.)

If the plaintiff was not qualified according to the law in regard to being a recipient of public moneys, or in any regard to the collection by tax of his wages, the fact must be brought into the case by an answer. Section 42 of the school law (chap. 555 of 1864), as amended by chapter 406 of the Laws of 1867 (2 R. S. [7th ed.], 1166), does not, in terms, prohibit a district from employing a teacher not having the qualifications named in section 42 of the school law. It merely prohibits payment in the money apportioned to the district, and declares that such wages cannot be collected by tax. In Dillaye v. Parks (31 Barb., 132) it was held that when a disability does not appear upon the face of the complaint, if the defendant wishes to avail of it, he must set it up as a defense.- In Gilbert v. Sage (5 Lans., 287) it was held a defense that the sale of liquors was void, and that it must be set tip in defense to be available.

It is urged that the complaint is defective, because there was no averment, in terms, of a refusal to give an order on the supervisor for public moneys (sub. 10, § 45, school law), and of a refusal or neglect to collect any balance by tax. Bnt it is alleged that the defendant n has neglected and refused to pay ” the wages earned. We think that allegation may be considered as equivalent to an averment that the defendant bad refused to give a warrant upon the supervisor, and a i-efusal to collect by tax of the district.

It has been repeatedly held that school districts are quasi corporations, and trustees are officers of them, and that their acts bind the corporation when performed within their jurisdiction. ( Wait v. May, 67 N. Y., 38; Horton v. Garrison, 23 Barb., 176). In Silver v. Cummings (7 Wend., 183) it was said “each school district has, when organized, a separate qualified corporate existence.” In Fister v. LaRue (15 Barb., 324), Johnson, J., says of such a corporation, viz: “ Having availed itself of the services, and received the benefits, it is bound, in conscience, to pay, and will not be heard to say that the oidginal agreement was not made by a person legally authorized to, contract.”

Section 44 of the school law (2 R. S. [7th ed.], 1166) provides that teachers shall keep school lists and accounts of attendance. By section 53 of the act, it is made the duty of trustees to provide a book therefor, and each teacher is required to verify the entries by his oath. It must be assumed the teacher performed his duty in that regard. It is provided that until such entries have been made and verified “ the trustees shall not draw on the supervisor for any portion of his -wages.” (2 R. S. [7th ed.], 1169, § 53.)

If the defendant is able to establish the fapt that its refusal to give a warrant or order upon the public fund was because of an omission of duty by the plaintiff, it should aver that as a defense. We do not think plaintiff was required to aver specifically each act, step and duty done under the contract for wages. A trustee has no power to contract for unqualified teachers. (Gillis v. Space, 63 Barb., 178.) The demurrer admits the contract was made with the plaintiff, and that he performed the services named. It is, therefore, most reasonable to assume that defendant did its legal duty. (Lorillard v. Clyde, supra.)

Our attention is directed to Baker v. The City of Utica (19 N. Y., 3, 6). That was an action of a city surveyor for services, which were included in assessments made for the expenses of certain local improvements, which assessment the city was proceeding to collect, but they had not been collected when the action was begun. It was then held that the charter provided “ a peculiar mode of compensation for his services,” and that he was bound by that mode. We think the case does not sustain the contention of the appellant. We reach the conclusion that the complaint before us states facts sufficient to constitute a cause of action, and that the defendant must bring in any defense it may have by answer. •

The judgment should be affirmed, with costs, and leave given to defendant to withdraw the demurrer and answer in twenty days, upon payment of costs of the demurrer and of this appeal.

Boardman and Follett, JJ., concurred.

Interlocutory judgment affirmed, with costs, and leave given to the defendant to withdraw the demurrer and answer in twenty days, upon payment of the costs of demurrer and of this appeal.


text:
    CHARLES E. HUBBELL, as Receiver of the Syracuse Iron Works, Respondent, v. THE SYRACUSE IRON WORKS, GILES EVERSON and Others, Appellants.

      Action by the receiver of a corporation to determine the validity of bonds claimed to be seemed by a mortgage on its property — when it can be maintained.

    The plaintiff, who had been appointed the receiver of the Syracuse Iron Works, in an action brought for the sequestration of its property under section 1784 of the Code of Civil Procedure, brought this action in January, 1886, to determine which of the bonds which had been issued by the iron works were secured by a mortgage for $100,000 issued by it, and which bonds should be excluded from sharing in the proceeds arising from the foreclosure of the mortgage; what bonds should be adjudged to belong to Charles B. Everson, which were not held by him, and what, if any, should be adjudged to be surrendered up by the present holders, and for such other relief as should be incident thereto.

      In November, 1884, the trustee, to whom the mortgage was given, had commenced an action to foreclose it. In February, 1885, one Giles Everson had commenced an action in his own behalf, and in behalf of all the other stockholders of the company, to compel the application of the bonds to the purposes of the trust. The validity of the mortgage was not disputed by the plaintiff, but some of the bonds, which are claimed to be secured thereby, are alleged to be invalid and to have been diverted from the purposes for which they were given, and to have been used to pay debts not existing when the mortgage was executed and delivered.

      Held, that the plaintiff, as the receiver of the corporation, was entitled to bring and maintain the action.

      Whitney v. New Torlc and Atlantic Railroad Company (82 Hun, 178); Supervisor» of Saratoga County v. Beyoe (77 N. Y., 219); Same v. Seabury (11 Abb. N. C. 4G1; McHenry v. Hazard (45 N. Y., 581).
    Appeal by the defendants Everson from an interlocutory judg. ment overruling a demurrer interposed to the complaint.
    The plaintiff was appointed a receiver of the defendant, the Syracuse Iron Works estate, in an action for the sequestration of its property, brought at the suit of R. N. Gere under the provisions of section 1784 of the Code of Civil Procedure.
    An order was made in that action directing the plaintiff to commence an action in equity to determine what bonds issued by the Syracuse Iron Works, claimed to be secured by a mortgage of $100,000, were secured by said mortgage, and what of said bonds should be excluded from sharing in the proceeds arising from the sale of the property covered by the mortgage, and what of the same not then held by Charles 13. Everson should be adjudged to belong to him, and what, if any, should be adjudged to be surrendered up by the present holders thereof. This order was made June 14,1885.
    The iron works, in January, 1883, had made the $100,000 mortgage, and issued bonds to that amount to Alfred Wilkinson, Jr., in trust to pay the debts of the mortgagor to the amount thereof by delivering the bonds directly to the creditors, or selling the bonds and paying the avails to the creditors.
    In November, 1884, the mortgagee commenced an action to foreclose the mortgage. Several creditors were made parties to such foreclosure action and have answered, and conflicting claims are made in that action as to what bonds are secured by the mortgage and entitled to be paid from the proceeds of the sale; one claim being that a large amount of the bonds were transferred to the president of the iron works, and to the other officers thereof, after the iron works was insolvent, contrary to the statute, and are not valid of secured by the mortgage; that, to the extent of $59,000, they were issued in payment of illegal preferences, and are not valid or secured by the mortgage; and that others were issued to pay debts not existing at the time the mortgage was given, and are not, therefore, valid or secured by the mortgage; and many of the bonds so improperly and illegally issued, disposed of and delivered, are not valid and not secured by the mortgage, but what amount cannot be stated. About February, 1885, Giles Everson, a stockholder, for himself and others, commenced an action in this court against the iron works and others to compel the' Robert Gere Bank, defendant therein, to surrender up $7,500 in amount of the bonds, and the Merchants’ National Bank of Syracuse to surrender up in like manner $40,000 in amount of the bonds claimed to be held by them, respectively, and secured by the mortgage, but which the plaintiff in that action claimed did not belong to them and were not secured by the mortgage; and asking, also, that the assignee of “ Wilkinson & Co.” in like manner surrender up $9,500 in amount of the bonds, and the $36,000 of indebtedness of the iron works to John Crouse & Co., be first paid out of the proceeds of the sale of the mortgaged property. Answers have been interposed in such action and conflicting claims are .interposed to the bonds in question.

      M. M. Waters, for the appellants.

      H. A. Maynard,. for the respondent.
   Hardin, P. J.:

According to Whitney v. New York and Atlantic Railroad Company (32 Hun, 173), a receiver appointed of a corporation has “ all the powers and authority conferred, and is subject to all the duties and liabilities imposed upon a receiver appointed (upon) the voluntary dissolution of a corporation.” (Code of Civil Pro., § 1788.) Such a receiver is entitled to “ the property real and personal, things in action, contracts and effects of the corporation so far,as they were owned by it at the time of the appointment. In that case it was said that the receivership could not include that which was legally included in a mortgage, but the creditor’s receivership must be confined to the property not covered by the mortgage. But there was no question about the validity of the mortgage. Not so in the case before us. The extent of the mortgage is disputed, and some of the bonds secured by the mortgage are alleged to be invalid. To the extent that the mortgage and bonds are valid, the owners have the paramount right. ( Whitney v. N. Y. and Atlantic R. R. Co., supra, 175.) Indeed, we do not understand the plaintiff to claim to the contrary, but he seeks to have it ascertained aud determined to what extent 'the mortgage and bonds are valid and effectual as a lien upon the property that came to his- hands as receiver. The mortgage and bonds were executed to secure or pay debts. It is averred that some of the bonds have been diverted from that purpose and used to pay debts “ not existing when said mortgage was made and delivered.” It is averred that the mortgage was made covering all and singular the franchises, rights, privileges and liabilities, corporate or otherwise, of and belonging to said iron works which then wére, or at any time'thereafter might be owned, held, possessed, used or enjoyed by it,” and also all and singular its real estate,” etc.

We find no averment that any of the mortgaged property has been sold. It is therefore inferable or presumable that all of it remains and was owned by the company when plaintiff was appointed receiver, and that he as such is interested in the proper application and distribution of it, and that he is interested to protect it from invalid liens for the benefit of his cestui que trusts.

It is alleged that the Eversons, who demur and appeal, claim with others to be “ the owners aud holders of the bonds of said iron works which they severally claim are secured by said mortgage.” It seems to us that they are proper parties to this action, and that the plaintiff cannot have the validity of the mortgage, and the extent of the indebtedness which is valid, ascertained and determined without the presence of all the parties having the bonds issued under the mortgage. It is apparent that the plaintiff has alleged that the mortgagor owned some if not all of the mortgaged property when the receiver was appointed. Being a corporation it must be assumed, in the light of the averments of the complaint, that it owned its own “ franchises and right, and property.” The receiver represents the corporation, its stockholders and creditors. (Atty. Gen. v. Mut. Ins. Co., 11 N. Y., 275.)

Taking all the facts found in the complaint, it cannot be said that they do not warrant some relief in equity, and in such cases the complaint must be sustained. (Brinkerhoff v. Brown, 6 Johns. Ch., 139; Prindle v. Caruthers, 15 N. Y., 425; Weeks v. Cornwall, 39 Hun, 643.)

It is allowable to a receiver to have an action to set aside illegal transfers or incumbrances created by the officers or by the corporation, and it is proper to stay an action brought by a creditor to enforce such debts or liens as are invalid or illegal. (Atty. Gen. v. Mut. Life Ins. Co., 11 N. Y., 272.)

Ye are of the opinion that the demurrer was properly overruled. Judgment and order affirmed, with costs, and leave given to appellants to answer in twenty days upon payment of the costs of the demurrer and of this appeal.

Follett, J., concurred.

Boardman, J.:

I concur, and would cite the following cases as in my judgment sustaining the decision: Supervisors of Saratoga County v. Deyoe (77 N. Y., 219); Same v. Seabury (11 Abb. N. C., 461); McHenry v. Hazard (45 N. Y., 581).

Interlocutory judgment and order affirmed, with costs, and leave given to appellants to answer in twenty days upon payment of costs of demurrer, and of this appeal.


author: Boardman, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. CALVIN KING, Appellant.

      Ovoil rights — an owner of a slutting rink refusing to sell tialcets to a colored person is guilty of a misdemeanor — Penal Code, sec. 383.
    Upon the trial of the defendant, one of the owners of a skating rink, upon an indictment charging him with a misdemeanor in refusing to sell to three colored persons tickets of admission on a certain evening when a large number of persons were admitted thereto for the purposes of amusement and as spectators, he was convicted and sentenced to pay a fine of $:50.

      Held, that the judgment should be affirmed; that the skating rink was “a place of amusement ” within the meaning of that term as used in section 383 of the Penal Code, and that that section was constitutional.
    Appeal from a judgment of the Court of Sessions of Chenango county convicting the defendant of a misdemeanor.

      K. H. Prindie, for the appellant.

      George A. Haven, district attorney, for the respondent.
   Boardman, J. :

The defendant, who is one of the owners, of a skating rink, refused to sell to three colored persons tickets of admission on a certain evening when a large number of persons were admitted thereto for the purpose of amusement and as spectators. The refusal was upon the sole ground that such applicants were colored. For this act the defendant was indicted, tried, convicted and sentenced to pay a fine of $150, etc:

The jury, under the charge, has found that the skating rink was a place of amusement such as is contemplated in section 383 of the Penal Code; that the defendant was the owner or manager of the rink, within-the statute, and that he excluded Breed, Wyckoff. and Bobbins from said rink by reason of their color. These conclusions cannot be subjects of doubt irrespective of the verdict. An attempt is made to argue that a refusal to sell those parties tickets is not an exclusion of them from the rink; but we think the objection hypercritical and untenable. It may, however, have properly been submitted 'to the jury to determine, as was done, and in that case the verdict of the jury would conclude us.

The case, upon the facts, is then brought directly within section 383 of the Penal Code, and the conviction is right, if that section of the Code is binding as law. It is claimed that the section is unconstitutional. On a question of so much gravity the briefs of counsel are very lean. The appellant cites the dissenting opinion of Mr. Justice Field, in Munn v. Illinois (94 U. S., 149), and The People ex rel. King v. Gallagher (11 Abb. N. C., 187). The respondent’s counsel cites no authority whatever. It is claimed that the section is void because it prescribes that a skating rink, owned as private property, shall be devoted to the use of colored people. But that is not a just statement. The law gives to every citizen certain civil rights from which he shall not be excluded by reason of his race or color. TIis rights to the equal enjoyment of such accommodations, facilities or privileges as are furnished by inn-keepers or common carriers, or by owners or managers of theaters or other places of amusement are among the number. The owner of property has devoted it to a purpose in which the public has an interest. For a consideration the public are admitted to its enjoyment. On payment of a reasonable compensation citizens are entitled to its use without distinction by reason of race or color. The privilege may' be withdrawn by discontinuing the use. (Munn v. Illinois, 94 U. S., 113.) The rule of the legislative rights has been sanctioned in case of railroads. (Cent. R. R. v. Green, 86 Penn. St., 421; Railroad Company v. Brown, 17 Wall., 446.) In The People ex rel. King v. Gallagher (93 N. Y., 438) it was held by a divided court that the city of Brooklyn had a special law by which separate schools for colored children were provided, and that such special law was not abrogated by chapter 863 of Laws of 1873. A colored man may not be excluded from jury duty. (Ex parte Virginia, 100 U. S., 339; Strauder v. West Virginia (Id., 303.) But the Penal Code (§ 383) does not infringe upon the United States Constitution or laws. It carries the principle too far, as this defendant now claims, and deprives the owner of the free use of his own property. That, however, is a power inherent in every sovereignty. The sovereign power may regulate the use of one’s property with reference to the public welfare. Under the Constitution and laws we may. fairly say that no discrimination may be allowed against colored people in the use of certain property of a public or guasi public character. Places of amusement are made such property by the Penal Code. The legislature possessed the power to control and regulate property held for public use; and the authority exercised in the present case does not seem to us to deprive the owmer of his property, or of its use, so as to be obnoxious to the restraints of article 5 of the amendments of the Constitution of the United States, or of section 1, article 1 of the Constitution of this State. It is simply a rule of conduct as to its use. Numerous cases of somewhat similar legislation will readily occur to their mind.

The appeal papers do not show a judgment in due form from which an appeal could be taken. But, as the elements of a judgment are there, we have thought best to consider the case on its merits and as if on an appeal from a regular judgment.

For the reasons stated we think the conviction and judgment should be affirmed.

Hardin, P. J., concurred ; Follett, J., not voting.

Conviction and judgment affirmed.