text:
    BETTY SCHOENER and Others, Respondents, v. MARX J. LISSAUER and LEWIS H. SONDHEIM, Appellants.

      Duress — when a contract will he set aside on the ground of — action for relief on account of barred in site gears— 01ode of Civil Procedure, sec. 382, sub. 5.
    The son of one Babet Marx,having been arrested upon the complaint of the defendants for embezzlement, his sister and other relatives had interviews with one-of the defendants, who demanded $2,000, and stated that if it was not paid the boy must go to State’s prison. In pursuance of an understanding between the parties these statements were communicated to Babet, an old woman, nervous and feeble in health. Overcome by the threats and acts of the defendants so communicated to her, she executed a bond and mortgage upon certain real estate owned by her, which was assigned to the defendants; the boy being then allowed to go at large upon his own recognizance.

      Held, that the bond and mortgage might be set aside as having been procured by fraud and undue influence.
    The bond and mortgage were given in May, 1873. Babet died September 22, 1879. This action to set aside the bond and mortgage, as procured through, duress, was commenced September 25, 1879.

      Eeld, that it was barred under subdivision 5 of section 382 of the Code of Civil Procedure, because not brought within six years from the time of the discovery .of the facts constituting the fraud.
    Appeal from a judgment, entered in Onondaga county upon the ■decision of this action at a Special Term held in that county, ■declaring the bond and mortgage of $1,000 set out in the complaint to be void for duress, and ordering the same to be canceled and removed from plaintiffs’ real estate.
    The bond and mortgage were executed on May 21,1873, together with an affidavit and certificate, by Babet Marx, the mother of plaintiff, to Samuel Joel, a clerk of defendants, and by him assigned to the defendants. Babet Marx died intestate September 22, 1879, owning, in fee, the real estate described in the complaint and mortgage. This action was commenced on September 25, 1879.
    Garson Marx was, on the 9th of May, 1873, arrested in New York •city on the complaint of the defendants, who charged him with ■embezzlement and larceny from them, amounting to fifty dollars. Subsequently they claimed their loss to be $4,000 or more. A sister .and other relatives of the accused held interviews with one of the defendants in New York after the arrest. The defendant demanded •$2,000, and stated that if that was not paid the boy Garson must go to State’s prison. An understanding was then entered into providing that this statement should be made to Babet Marx, the mother of Garson, who resided in Syracuse on the premises described in the mortgage. Moved by what was said to her, Babet executed the mortgage, bond, certificate and affidavit. The defendants took the mortgage, payable in two years, and subsequently voluntarily ■extended it, by a writing, until the death of Babet Marx. Garson was allowed to go on his own recognizance, by the Oyer and Terminer in New York, after the defendants received $1,000, in cash, and the bond and mortgage.

      Julius Li'oman, for the appellants.

      Louis Marshall, for the respondents.
   Hardin, P. J.:

Findings of fact have been made by the Special Term upon conflicting evidence, which bring the case within the authorities condemning the mortgage for undue influence, duress per minas, and fraud. (Eadie v. Slimmon, 26 N. Y., 9; Haynes v. Rudd, 30 Hun, 239; S. C., 83 N. Y., 251.)

Babet Marx was the mother of Garson, who was charged with crime, and she was nervous and feeble in health, mind and purpose ; and was overcome by the threats, declarations and acts of the-defendants, communicated to her by an understanding entered into' in that regard with Lissauer 'and one of the defendants; and she yielded her will and executed the papers while in terror and fear. Such circumstances warranted the finding by the trial judge of the invalidity of the papers. (Harris v. Carmody, 131 Mass., 51.)

Smith v. Rowley (66 Barb., 502) is not adverse to the authorities cited above. In that case, Talcott, J., says, the wife executed the conveyance “ without any compulsion or other duress except that arising from the circumstances,” which were unlike these disclosed in the evidence before us. Second. When Maritz Mark was on the stand he stated the interview held with defendant Lissauer in New York, and the threats and declarations of defendant Lissauer; and, in answer to a question as to whether defendant Lissauer told him to repeat them to Mrs. Babet Marx, he says “ that was the understanding.” Mrs. Schoener says such was the understanding or request.

Then Maritz Marx was asked if he did tell Babet Marx “ what took place in New York.” Then defendant’s counsel said, he does not seem to have been delegated or authorized to repeat.”' The objection was overruled and an exception was taken, and witness then said “he did tell Mrs. Marx what they said in New York.” The ground of the objection was not sound, and no other ground can be taken now. (Tooley v. Bacon, 70 N. Y., 34; Matter of Crosby v. Day, 81 id., 245.) A ground of objection not stated at the trial cannot be considered now, to overturn the ruling.

Thvrd. The defendant set up the statute of limitations, saying the defendants weré “ not guilty of the supposed grievances alleged in the amended complaint at any time within six years before the commencement of this action.” This action was brought more than six years from the execution of the bond and mortgage. Mr. Story classifies duress under the head of actual frauds (Story’s Eq. Juris., 239 ; Willard’s Equity, 208), and he adds that courts of equity interfere and give relief where it has been practiced and a proper case is made out. Prior to 1846 relief was given by courts of equity when a consent to the execution of an instrument like the one before us was obtained by undue influence and duress. [Eadie v. Slimmon, 26 N. Y., 12; Farmer v. Walter, 2 Ed. Chy., 602, and cases cited.) Section 382 of the Code of Civil Procedure provides for the application of a six years’ limitation to actions to procure a judgment “other than fora sum of money” on the ground of fraud in a case which, on the 31st day of December, 1846, was cognizable by the Court of Chancery

The cause of action in such a case is not deemed to have accrued until the discovery by the plaintiff or the person under whom he claims of the facts constituting the fraud. This section has fallen under judicial construction in Carr v. Thompson (87 N. Y., 162). Mr. Throop says that the change in the phraseology leaves the law as it was under the Revised Statutes. It was provided by them that bills for relief on the ground of fraud shall be filed within six years after the discovery by the aggrieved party of the facts constituting such fraud.” (Sec. 51, title II, 2 R. S., 301, “of the time of commencing actions.”) It would seem that such rule vas applicable to an action of this character, when the Constitution of 1846 took effect. Of course, it was needful under the old law that the answer should set up the statute of limitations, as was held in Sears v. Shafer (2 Seld., 275), under the provisions of the Revised Statute quoted. In Mayne v. Griswold (3 Sandf., 464), it was said that it was the duty of the plaintiff when the complaint shows the fraud was committed more than six years prior to the suit to aver, in anticipation of a defense, that it was not discovered until within six years.

The plaintiffs have not made any such averment in this complaint, and there is no finding upon that subject favorable to them. Indeed the nature of the case before us would seem to indicate that the threats and undue influence and duress relied upon to avoid the mortgage and bond were known to plaintiffs’ ancestor for more than six years prior to her death, and were known to the plaintiffs more than six years prior to the bringing of this suit. We are constrained to say the statute of limitations is a defense to this action. Plaintiffs call our attention to Fisher v. Mayor (67 N. Y., 78), but it does not aid them, as that turned upon the construction of a statute as to the lien of an assessment, and another statute of limitation than the one found in the section of the Code we have been considering. Nor has In re Striker (23 Hun, 647), which was a special proceeding to vacate an assessment, any application to the question before us. We are of the opinion that the plaintiffs’ ancestor, on the 22d of May, 1873, might have brought her action to set aside the bond and mortgage for the fraud or duress alleged and found, and that she and some of the plaintiffs then knew all the facts constituting the fraud and duress, and that the right to maintain such an action was barred by section 382 of the Code of Civil Procedure, subdivision 5, when this action was brought.

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

Follett, J., concurred; Boardman, J., not sitting.

J udgment reversed and new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    LAWRENCE RYAN, Appellant, v. EDWARD M. KLOCK and Others, Respondents.

      Mechamos’ lien laws — chap. 366 0/ 1864 is still in force in Syracuse — what ,:notice of claim is sufficient under section 2 thes'eof.

    ¡Chapter 366 of 1864, providing for mechanics’ liens for persons erecting buildings in Onondaga county, was not repealed by chapter 486 of 1880, providing for mechanics’ liens in cities, but is still in force in that county and is applicable to such liens upon buildings erected in the city of Syracuse.

      (McKenna v. Bdmundstone, 91 N. Y., 231, followed.)
    The plaintiff having furnished in October and November, 1882, materials which were used in erecting a house in the city of Syracuse, filed on November twenty-second a notice, stating that he claimed a lien upon the premises and that sixty days had not elapsed since the said work was performed and the materials furnished. The notice contained the following words: “Dated November 22, 1882,” and was signed.

      Held, that the notice stated the date from which the lien was claimed to have commenced, with sufficient precision to satisfy the requirements of section 2 of chapter 366 of 1864, the act under which it was filed.
    Appeal from a judgment, entered in Onondaga county upon the decision of the County Court of that county, dismissing the plaintiff’s complaint and notice with thirty-five dollars costs.

      In the fall of 1882, Susan E. Colton let a contract to one Shoudy for the construction of a cellar and house on a lot belonging to her, in tbe city of Syracuse. Shoudy engaged Ryan, the claim-ant, to do work and labor, and furnish material in erecting the same, and such work was performed and material was furnished by him in October and November, 1882. Shoudy made a general assignment November 22, 1882, to Kloek, who in the spring of 1883, completed the house and fulfilled the building contract. There remains due from the owner Colton $360.
    November 23, 1882, the claimant filed with the clerk of Onondaga county two notices of lien, one under the “ Onondaga act” and the other of them under the act of 1880, chapter 486, Laws of 1880, relating to liens in cities. The County Court found that the “ Onondaga act,” chapter 366, Laws of 1864, was still in force and applicable in the city, and that' the act of 1880 was not applicable to the city of Syracuse. It also found “ that the omission of the statement in the said notice of lien of the date from which he ■claims it (the lien) to have commenced, is the omission of matter or ■substance required by the statute, chapter 366, Laws of 1864, as ■demanded to be stated in such notice,” and that the notice was therefore defective.

      M. E. Driscoll, for the appellant.

      W. M. Ross, for Kloclc, respondent.

      Knapp, Nottingham & Andrews, for respondent Colton.

      Charles B. Oood/rich, for respondent Shoudy.
   Hardin, P. J.:

Assuming, under McKenna v. Edmundstone (91 N. Y., 231), that the Onondaga act, chapter 366 of Laws of 1864, is in force .and applicable to this case in hand, we are called upon to ascertain whether the notice of lien filed was sufficient or not. It may be observed that the first section of the act provides that any person furnishing materials, etc., “shall, until the end of three months after the performance of such labor or furnishing materials, be -deemed to have an equitable lien for the same- upon such house or building or appurtenances and the land,” etc. * * * These words furnish a general declaration of the lien, subject, of course,, to the requirements of the subsequent provision of the statute..

First. “As against the owner of the property himself, no notice shall be necessary to establish such lien.”

Second. As against other persons who ha/oe not any actucd notice of the lien, it is provided by the statute that “ the only evidence-which shall be necessary for a party to signify that he claims such lien, shall be the filing of a notice with the county clerk of the county of Onondaga, at any time while the business is progressing, or within the said period of three months, which shall state,” etc., * * * “ the amount thereof, a/nd the date from which he claims it to have commenced ; and as the work progresses the party may secure successive liens by giving notice as aforesaid.”

It may be supposed that one of the objects of requiring the notice to specify the time when the claimant supposed the lien occurred, was to have a ready mode of ascertaining the rights of successive claimants. In the notice now before us we find it dated November 22, 1882, and in the body of the notice it is stated that “ sixty days have not elapsed since the said work was performed and the material furnished.” By inference it may be seen that the lien attached, or was claimed to attach, at the time of furnishing the materials or rendering the work. Indeed, such is the spirit of the act, as evidenced by the words in the first section, declaring that such persons as do work or furnish materials “ shall be deepied to have a lien,” etc. The notice stated, viz.: “ I have and claim a. lien upon said building and appurtenances, and the lot,” etc., * * * “ for the amount due me as aforesaid, in pursuance of the statute in such case made and provided. Dated November 22, 1882,” and was signed.

Considering the words of the statute giving the lien, and the words of the notice before us, we are of the opinion that the notice sufficiently stated the lien. The rendition of work and furnishing of materials wa.s clearly declared to be not more than sixty days prior to 22d of November, 1882, and the assertion of the notice in effect is, that in consequence of such work and materials having been so performed and delivered, a lien is claimed. It is equivalent to an assertion that the lien is claimed to have commenced when the work was done and the materials were furnished. ¥e think the notice a substantial compliance with the statute, and that no objection thereto can successfully be urged by the owner, or by the-party who became the general assignee of the contractor, and is in no better position than the contractor, who had, as the case discloses, “ actual notice ” of the claimant’s lien, created by statute. The objection taken is too technical for the mouth of the owner, the contractor or his assignee. (Stat. of 1864, chap. 366, secs. 1, 2; Leiegne v. Schwarzler, 10 Daly, 547; Hart v. Wheeler 1 T. & C., 403 ; Blauvelt v. Woodworth, 31 N. Y., 285; Tinker v. Geraghty, 1 E. D. Smith, 687; Harrow v. Morgan, 65 N. Y., 333; Dunbar v. Diem, 9 Weekly Dig., 231.)

It is not needful to pass on the questions made as to the statute of limitations, as the facts may be changed upon a new trial, and it may be made to appear when the claim fell due, for which the lien was filed. (See sec. 4 of the act of 1864.)

We think the judgment of the County Court should be reversed, and a new trial ordered in the County Court of Onondaga county* with costs of this appeal to abide the final award of costs.

Boardman, J., and Follett, J., concurred.

Judgment of the County Court of Onondaga county reversed* and a new trial ordered, with costs to abide the final award of costs»


text:
    JAMES G. ROSS, Appellant, v. SAMUEL P. WIGG, Appellant. JAMES G. ROSS, Appellant, v. SAMUEL P. WIGG, Appellant. ALEXANDER R. CHRISTIE and WILLIAM KERR, Respondents, v. SAMUEL P. WIGG, Appellant.

      Supplementa/ry proceedings may be instituted before the recorde/r of the city of Oswego~ 1857, chap. 96, sec. 4.
    Section 4 of chapter 96 of 1857, authorizing the recorder of the city of Oswego to “exercise any power or authority in any proceedings supplementary to execution in the county of Oswego, which the county judge or a justice of the-Supreme Court can exercise therein, whether such supplementary proceedings-be in an action in said recorder’s court or in any other court,” was not repealed ! by the adoption of the Oode of Civil Procedure, either expressly or by implication, and the recorder of that city still has power to entertain such proceedings and to appoint therein a receiver of the property of the judgment debtor.
    Appeal from an order of the Oswego Special Term, denying a motion to set aside supplementary proceedings, and from an order made therein appointing James Dowdle receiver of the property of Samuel P. Wigg. The motion was made upon the ground that the recorder of the city of Oswego had no authority or jurisdiction in the premises.

      W. H. Kenyon, for the appellants.

      W. A. Pouoher and P. W. Cullman, for the respondents.
   Hardin, P. J.:

Chapter 96 of the Laws of 1857, in the fourth section, conferred upon the recorder of the city of Oswego power in the following words: “ Section 4. The recorder of the city of Oswego may exercise any power or authority in any proceedings supplementary to •execution, in the county of Oswego, which the county judge or a justice of the Supreme Court can exercise therein, whether such supplementary proceedings be in an action in said recorder’s court •or in any other court.” (1.) It is observable that the power is conferred upon the recorder as such and not upon the recorder’s court. (2.) It may be exercised in an action originating in the recorder’s •court or in any other court. When the power was conferred a •county judge or a justice of the Supreme Court could entertain, as still either may, supplementary proceedings. (4.) The act was local, as the power was limited and confined to the “county of Oswego.” (Matter of the Estate of Goddard, 94 N. Y., 548; opinion of Ruger, Ch. J., and cases there cited.

It is not claimed by the appellant that the chapter from which we have quoted, or the section referred to, has been in terms, or by any special act or general act referring to the statute specifically, repealed. But it is insisted that it is repealed by implication. Under the Code of Procedure it was held that a proceeding supplementary to an execution “ was a proceeding in the action.” (Wegman v. Childs, 41 N. Y., 159; Ward v. Roy, 69 id., 96; Wright v. Nostrand, 94 id., 31.)

Title 12 of the Code of Civil Procedure provides for three distinct remedies, one of them being an order after the return of an execution against a judgment debtor.” (Code of Civ. Pro., sec. 2432.) Following that section, we find in section 2433 a declaration that “each of those remedies” provided for in section 2432 “.is a special proceeding.” We do not regard this declaration of the legislature as indicative of any intent to change the nature and character of the proceeding, or as in any way diminishing the force 'of section 4 of chapter 96, Laws of 1857.

Section 3196 speaks of the civil jurisdiction of the “Recorder’s Court of the City of Oswego,” and has no bearing upon the powers conferred upon the recorder, as such, when not holding a court. To make it certain and clear that such was the intent of the legislature, we find section 3202 was adopted. It is as follows : “ This title does not affect any provision of law conferring upon a judge, or upon the judges of either of those courts, jurisdiction power or authority in an action brought in another court, or in a special proceeding.”

'This seems to be a clear preservation of the powers conferred upon the several magistrates, and to continue and recognize the exist ence of that power, independent of the several courts in which they may or may not preside. In other words, “ chamber powers” are recognized and left unaffected by the language used in respect to court proceedings.”

In section 2 of the Code of Civil Procedure the courts of record were named, and among them is “ the Recorder’s Court of the City of Oswego.” Section 3 enumerates “ courts not of record.” Section 4 declares “ each of these courts shall continue to exercise the jurisdiction and powers now vested in it by law, according to the course and practice of the court, except as otherwise prescribed in this act.” These sections are dealing with “ courts,” not with the officers or the chamber powers of the officers who may, as part of their judicial duties require, sit in and hold such courts.

We find nothing in these provisions, or the notes of Mr. Throop in respect thereto, which advances any support to the contention of the appellant. Those sections do not add to or take from the powers of the respective magistrates connected with the courts referred to. It is contended by the appellant that the commission to revise the laws had its origin in a design to have the laws in respect to the practice revised. That may be conceded, as such was probably the .intent of the legislature. (Chap. 33, Laws of 1870 ; chap. 467, Laws of 1873.) But we must bear in mind that laws relating to practice and laws conferring powers upon judicial officers are widely different. The latter do not always come within the classification of “ practice laws or laws relating to a system of practice.” We must look into the acts of the legislature for any authoritative disturbance of statutes conferring powers upon officers.

The court practice may be changed and regulated and systematized without taking away or adding to the functions and powers of officers. The argument built upon the statutes leading to the report of the commissioners does not fortify or make clear the position of the learned counsel, who asserts that the Code of Civil Procedure has taken away from the recorder power to entertain supplementary proceedings in virtue of section,4 of chapter 96 of the Laws of 1857. It may be observed that at the time of the passage of the act of 1857 the county of Oswego was large, geographically, and had a population of about 70,000, and in its territory were several large villages where different attorneys were located and doing business; that elections of judicial officers had been held, which named a county judge, a surrogate among others, residing in different parts of the county; that absences from the city and county of the justice of the Supreme Court were frequent and protracted, caused by the discharge of his duties in other localities. It may reasonably be supposed that the intent of the legislature in passing section 4 of the- act of 1857 was to accommodate the needs and conveniences of the public in respect to proceedings supplementary to execution.

The occasions for such accommodations have not ceased, and, therefore, it is not to be supposed, unless clearly made out from legislative action, that the legislative intent has changed or that the Law of 1857 has been repealed. Repeals by implication are not favored. When both statutes may stand and be construed together, it is not the course of the courts to declare the earlier one repealed. Some of the authorities have gone farther than it is necessary to go in this case, by holding that a subsequent general statute does not repeal a local one when some of the provisions are conflicting. (Tremain v. Richardson, 68 N. Y., 617.) We have come to the conclusion that section 4 of chapter 96 of Laws of 1857 was not repealed by the Code of Civil Procedure, and that the recorder was authorized to entertain proceedings supplementary to execution and to appoint a receiver in the course of the proceedings. (Hayner v. James, 17 N. Y., 316; In re Central Park Commissioners, 50 id., 493; People ex rel. Lawrence v. Board of Supervisors, 73 id., 173; People v. Quigg, 59 id., 83; Matter of Evergreens, 47 id.. 216; Excelsior Petroleum Co. v. Lacey, 63 id., 422; Matter of D. & H. C. Co., 69 id., 209; 81 id., 211; McKenna v. Edmundstone, 91 id., 231; In re Goddard, 94 id., 544.)

Section 2434 of the Code of Civil Procedure is relied upon by the appellant. It contains no negative or prohibiting words. It, when read with the act of 1857, is cumulative and not inconsistent with or repugnant to the provision in section 4 of the act of 1857. Our attention has been called to a number of cases by the appellant to the effect that subsequent legislation covering “ the whole subject ” of former legislation is treated as a substitute for the earlier legislation. (Heckmann v. Pinkney, 81 N. Y., 211; Bartlet v. King, 12 Mass., 537; Culver v. Third Nat. Bank of Chicago, 64 Ill., 528; Broaddus v. Broaddus, 10 Bush [Ky.], 299.) What we have said is not in conflict with those cases. The subject-matter of the legislation is not alike. The first statute was to provide that the recorder of Oswego ” should have power. The general provision in section 2434 conferred power upon certain other and different officers. In short, that section dealt with functions to be exercised by other officers than the officer named in the act of 1857. (McKenna v. Edmundstone, 91 N. Y., 234.)

This question we have been considering was involved in Ross v. Stilwell (31 Hun, 453), though it was not much discussed by counsel, and there was no opinion delivered by the court, yet it was passed upon and the power of the recorder asserted. (Terry v. Wait, 56 N. Y., 91, 94.) As we sustained an order made by him in proceedings supplementary, his power to make such an order was affirmed.

The views now expressed lead us to approve of the conclusion stated at Special Term by Mr. Justice Williams in his opinion, to wit, “ that the recorder had jurisdiction to make the order in question.”

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

Boardman and Follett, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Hardin, P. J. :

text:
    HENRY E. FISHER, Respondent, v. ENOCH H. BISHOP and SLUMAN L. WATTLES, Appellants.

      Duress — when a bond and mortgage will be set aside on account thereof — application of the rule as between attorney and client.

    In April, 1874, Edward M. Fisher absconded from Sidney Centre, being then in default for money belonging to a railroad company, for which he was acting as station agent. The defendants, who were sureties upon his bond, were compelled, in the September following, to pay the amount in which he was in default to the company. Just before absconding Fisher transferred to his father, the plaintiff in this action, certain personal property to secure the payment of debts due from him to his father, and of liabilities incurred for him by the latter. This property was not sufficient in amount to pay the debts and liabilities due from him to, and incurred by, the father.
    The defendant Wattles, a justice of the peace, who had for many years been the legal adviser of the father and son, drew the necessary papers. After the defendants found that they were liable to the company they induced the father and his wife to execute a bond and mortgage to them for the amount the son was in default, under threats that, if they did not, the conveyance from the son would be set aside as fraudulent; the bond and mortgage were executed under duress of mind through fear. In February, 1881, this action was commenced to have the bond and mortgage canceled, on the ground that' they had been obtained by fraud and duress.

      Held, that a judgment canceling the said bond and mortgage was proper and should be affirmed.
    Appeal from a judgment, entered upon the trial of this action, at a Special Term held in Delaware county.
    The action was brought in February, 1881, to set aside a bond and mortgage given July 27, 1874, by the plaintiff and his wife to the defendants, upon the ground that the same were obtained by fraud' and duress. Hpon the first trial they were set aside for want of consideration. But the General Term reversed the judgment entered upon the decision at the first trial, on the ground that the issue as to a want of consideration was not properly before the trial court, the opinion at General Term leading to such reversal being, delivered by Justice Boakdman.
    Upon the second trial the trial judge, after finding duress in fact,, stated, as a conclusion of law, that the bond and mortgage were: executed “under the threats of Wattles; that unless they were: executed the defendant would set aside the conveyances from Edward M. Eislier to the plaintiff as fraudulent, and said bond and mortgage were executed under duress of mind through fear, and are illegal and void.”
    Two or three days before the execution of the bond and mortgage, Edward M. Fisher, the son of the plaintiff, finding himself largely indebted, executed a deed and transfer of personal property to his father to secure the debts due to, and liabilities incurred by his father for him. He was then a defaulter-as station agent to the New York and O. M. Railroad Company-He absconded from Sidney Centre, New York, leaving the defendants liable on his bond as his sureties to the railroad company for $500, which amount they were obliged to and did pay in September to the railroad company.
    The conveyances and transfers from Edward to the plaintiff were drawn 'by the defendant Wattles, who had for many years been a justice of the peace and acted as legal adviser for the son and father.
    The plaintiff did not receive enough property from his son to enable him to pay the debts due him from the son and to satisfy the liabilities incurred for him.
    It appeared from the evidence and findings that Wattles and! Bishop, as soon as they ascertained they were liable to pay, and! must pay for the default of Edward to the railroad company, began their efforts to induce the plaintiff to indemnify them against any loss, and they finally on Monday, the 27th of July, 187é, secured! from the plaintiff the bond and mortgage in suit.

      W. H. Johnson, for the appellants.

      W. dk G. W. Youmans, for the respondent.
   Hardin, P. J. :

Wattles had assumed to act as a legal adviser of the plaintiff; he had received from him the same confidence which exists ordinarily between client and counsel, and he therefore should be held to the same accountability for his acts, threats and conduct in respect to the transaction out of which the mortgage and bond arose, that would be required of an attorney. This rule has the sanction of several adjudicated cases. (Freelove v. Cole, 41 Barb., 318; affirmed, 41 N. Y., 619.)

A confidential relation existing between parties requires the greatest care, and transactions between parties where such a relation exists must be scrutinized closely, and condemned unless shown to be fair and above board, and unless the client or injured party had equal knowledge and opportunity to protect himself. (Post v. Mason, and eases cited in the opinion of Hardin, J., 26 Hun. 191 ; S. C., affirmed by Ct. of App., 91 N. Y., 539; see, also, Mason v. Ring, 3 Abb. Ct. App. Dec., 210; Howell v. Ransom, 11 Paige, 538; Evans v. Ellis, 5 Denio, 640; Wright v. Proud, 13 Vesey, 138.) In considering the evidence before the trial court, it must be borne in mind that a mere threat of legal proceedings is not enough to make out a case of duress. (Insurance Co. v. Meeker, 85 N. Y., 615.) Nor that a party intends to insist upon his legal rights. (McPherson v. Cox, 86 N. Y., 473; Haynes v. Rudd, 30 Hun, 239.) The case last cited, however, adds what we deem pertinent and potential in this case. Judge Smith, who spoke for this court, in that case said : “ But we think that when threats of a lawful prosecution are purposely resorted to for the purpose of overcoming the will of the party threatened, by intimidating or terrifying him, they amount to such duress or pressure as will avoid a contract thereby obtained. Eadie v. Slimmon (26 N. Y., 9), as we understand the report of the case, is in point. (See, also, Williams v. Braley, 35 L. J. Ch., 717; ” see also, opinion of Folger, J., in the same case, Haynes v. Rudd, 83 N. Y., 253.)

Though the threats were made during the days prior to the execution of the papers they may be considered, and also the fact that the action to set aside the papers was not brought until some six years after the execution, may be considered by a jury or court in determining whether there was actual duress or not. Neither circumstance standing alone, or both standing revealed as they do by the evidence, is sufficient to warrant us in saying as a matter of law that no duress was made out at the trial. We have looked into the •evidence, and considering all of it together, we are of tho opinion that Wattles and Bishop took undue advantage of the plaintiff, and' by means thereof and the duress found, secured to themselves the bond and mortgage. Plaintiff was not liable for the defalcation of his son, and by the 'means not warranted, which we have just stated, was induced to execute the papers. We think the trial judge properly ordered them stricken down. The defendants technically are •entitled to a return of the one dollar which they advanced, and we may modify the judgment to that extent.

But the judgment otherwise should be affirmed, with costs.

Boardman, J., concurred; Follett, J., not sitting.

Judgment modified so as to provide for the return of one dollar to the appellants, and as modified affirmed, with costs.


text:
    JOHN JONES, as Administrator of the Estate, etc., of EDWIN BURT JONES, Deceased, Respondent, v. THE UTICA AND BLACK RIVER RAILROAD COMPANY, Appellant.

      Negligence — the contributory negligence of'an infant is a question for the jury — when a company is not bound to do more than give statutory signals.

    The plaintiffs intestate, a boy about ten years old, was killed while crossing the defendant’s tracks in a sleigh driven by one Thomas, and in which were the intestate’s mother and another person. In an action against the company to recover the damages occasioned by the death:

      Held, that the intestate could not be required to use the same judgment and discretion as would be required of an adult; and that the question of his contributory negligence was a question of fact, which was properly left to the jury,
    The deceased was not struck by a regular train, but by an engine running by itself' at the rate of twenty-eight or thirty miles an hour. The evidence as to whether or not the bell was rung continuously, for the eighty rods preceding the crossing, was conflicting, and raised a question which was held to have been properly left to the jury. In the course of the charge the jury were instructed that they were to determine, first, whether the defendant “ performed the positive duty of ringing the bell and giving the signal; and then as to whether or not they performed the general duty which they o.we, with every member of the public, one to another, and that is to exercise all the care of ordinarily prudent persons in the transaction of their business.” The court refused to charge that if the jury found that the bell was rung, as required by the statute, that the plaintiff could not recover, although charging that the ringing of the bell or the sounding of the whistle were the only signals required by law.

      Beld, that the charge was erroneous; that the failure to instruct the jury as to what particular acts, in addition to the statutory signals, might he required of the defendant, while they were allowed to consider such acts, might have misled them, and required a new trial to be had.
    Appeal from a judgment, entered upon a verdict at the Oneida Circuit; also from an order denying a motion for a new trial, made upon the minutes.
    The intestate, Edwin Burt Jones, a lad about ten years of age, was killed at Price’s Crossing, while en route for the house of Prichard, in the town of Steuben, to Remsen, upon the 1st day of February, 1882. At the crossing the track of the defendant runs in a northerly and southerly direction. The deceased was riding in a sleigh with his mother, Mary Ann Jones, and George Williams and John Thomas, the latter of whom was the driver, who was also killed at the same time. Mary Ann Jones, the mother, also received injuries, for which she has also brought her separate action. When the case was in this court upon a former appeal, a reversal was had for errors in the charge of the court, and an opinion in respect thereto-was delivered by Mr. Justice Barker.
    At the time of the accident defendant’s engine was passing northerty, at the rate of twenty-eight or thirty miles per hour. South of the crossing 1,470 feet there is a curve in the railroad. The sleigh approached the crossing from the west, between two and three o’clock in the afternoon, drawn by a pair of gentle horses upon a walk.
    Upon the west side of the railroad was an ordinary board and post fence, extending south-westerly from a cattle-guard about thirty feet, connecting with a tight storm fence from ten to twenty feet high, extending southerly 347 feet. West of the latter fence are ranges of hills covered with brush, claimed to have been obstructions in the way of the vision of travelers on the highway. Near the cattle-guard fence were some banks of snow obstructing the vision.
    Some evidence was given tending to show that the driver and Mrs. Jones looked both ways upon approaching the crossing, with .a view of discovering the approach of any train from either direction, and it appeared that the driver was aware that no regular train was due at that hour.
    When the train was discovered, Thomas, the driver, attempted to rein in the team so as to avoid a collision; the horses became suddenly frightened by the engine and rushed upon and passing across the track, when the nigh horse and sleigh were struck by the engine .and the driver and the boy, Edwin Burt Jones, defendant’s intestate, were killed.
    At the close of plaintiff’s evidence a motion for a nonsuit was made and denied; as also at the close of the whole evidence.
    There was conflicting evidence as to whether the bell was rung for eighty rods, continuously, prior to reaching the crossing.

      A. M. Beardsley, for the appellant.

      Spriggs, Matthews <& Spriggs, for the respondent.
   Hardin, P. J.:

W hether the intestate, a boy ten years of age, was guilty of contributory negligence or not was a question of fact upon all the ■evidence, and the inferences to be drawn therefrom by the jury. (Payne v. T. and B. R. R. Co., 83 N. Y., 572; Barry v. N. Y. Cent. and H. R. R. R. Co., 92 id., 289.) Such a boy cannot be required to use the same judgment and discretion, or exercise the same care and precaution, as an adult under like circumstances. (McGovern v. N. Y. Cent. and H. R. R. R. Co., 67 N. Y., 417.) Under the rule applicable to the case, whether he was guilty of such negligence as caused or contributed to his injuries or not, is a question for the jury and was properly submitted to them. It would have been error in law, if the trial court had put a nonsuit upon the ground that the deceased supposed contributory negligence was a bar to the right of recovery in this action.

We are of the opinion that it would have been error in the court had any instruction been given to the jury, as a matter of law, that the deceased had not looked and made a reasonable use of his senses to discover whether there was a train approaching the crossing.

First. There is evidence, affirmative, that at a certain point he had looked.

Second. Whether the train at a prior time was visible from where he stood upon the sleigh is not absolutely clear. There was a question of fact for the jury in that regard; besides Mrs. Jones testified when and how she looked and listened, and that she did not discover an approaching train in time to avoid the collision.

As we have before said, it was no error to decline to grant a nonsuit based upon the supposed contributory negligence of the deceased. (Smedis v. Brooklyn and R. B. R. R. Co., 88 N. Y., 13.)

It is contended by the appellant that the evidence in respect to the question of whether the bell was rung or not, is so preponderating in favor of the defendant that it was the duty of the trial court to hold and rule as a matter of law that the bell was rung, and that we should set aside the verdict based upon a finding that the bell was not rung, for the reason that the finding is against the weight and preponderance of evidence.

It is the duty of a railroad company to ring, or sound its whistle* continuously for a distance of eighty rods prior to reaching the highway crossing. To show that that duty was not performed in this case, plaintiff relied, first, upon the direct and positive testimony of Mrs. J ones, which is in support of that averment that the bell was not rung; second, upon what is said in the testimony of the witness Thomas in respect to the non-ringing of the bell, and the looking and listening to ascertain whether or not a train was approaching, and, third, upon the facts and circumstances bearing upon the probabilities involved in the inquiry as to whether the-bell was rung or not.

Upon the other side of the issue the defendant relies upon the positive and direct testimony of the enginemen, to wit: Jennings* the engineer; Reese, the fireman, and Jordan, the brakeman, who-were on the engine at the time of the accident. These latter three-witnesses testify that the bell was rung, commencing near the curve, southerly of Price’s Crossing, some 1,170 feet. They stating, in. their opinion, it was seventy, or seventy-five or eighty rods south of that crossing when the bell began to ring, from the best estimates they were able to form in respect to the distance over which the bell was rung while passing that distance at the rate of some-twenty-five or thirty miles per hour.

It is suggested that these witnesses were in no way impeached* and that they were entirely credible. In considering their testimony it must be borne in mind that they occupied peculiar relar tions in respect to the transaction. '

The general railroad law provides that the bell shall be rung or whistle, sounded, and that an omission to perform that duty subjects the offending party to a penalty for each offense.

"While we recognize the rule that the burden is upon the plaintiff to establish negligence, and in doing so in this peculiar instance to make it appear that the bell was not rung, we think the conflict was such between the witnesses, having due regard for the circumstances surrounding and relating to each side of the question, that the trial judge committed no error in ruling that it was a question for the jury to determine whether or not there was a ringing in accordance with the requirements of the statute. In reaching this conclusion we are not .unmindful of the rule in respect to negative testimony, or the testimony of inattentive witnesses, as laid down in the cases bearing on that subject. (Culhane v. N. Y. C. and H. R. R. R. Co., 60 N. Y., 133, followed and approved in McKeever v. N. Y. C. and H. R. R. Co., 88 N. Y., 667.)

"We are therefore of the opinion that we ought not to disturb the verdict, upon the ground that the finding that the bell was not rung was against the weight and preponderance of evidence bearing upon that subject.

When this case was before us on the former appeal the question arose whether or not the' circumstances were such as to warrant the instruction that was given on the former trial, to the effect that the jury might say, “ upon ail the evidence in the case, whether or not the defendant had failed to do any act which, in the exercise of ordinary and reasonable care, it ought to have done, and which, if it had done, would have prevented the collision.”

The law and authorities bearing upon that aspect of the case are quite fully presented in the opinion delivered by Mr. Justice Barker, and the rule laid .down in that opinion is satisfactory to, and binding upon us.

In the course of the charge now before us for revieW, the jury were instructed to find, viz. : First. Whether the defendant “performed the positive duty of ringing the bell and giving the signal; and then, as to whether or not they performed the general duty which they, owe, with every member of the public, one to another, and that is to exercise all the care of ordinarily prudent persons in the transaction of their Ir siness.”

The defendant’s counsel requested the court to charge,viz.: The fact that this was somewhat of a blind crossing did not require the defendant to do more than ring the bell continuously for eighty rods before coming to the crossing, or sound the whistle at intervals.”

The court replied, viz.: That I decline to charge as a ju'oposition of law.” The defendant took an exception.

The defendant’s counsel then requested the court to charge : “ If the jury found that the bell was rung for eighty rods before reaching the crossing, then the plaintiff cannot recover.” That was declined and an exception taken.

Also requested the court to charge that “ the law only compelled the defendant to ring the bell or sound the whistle eighty rods before reaching the crossing, and if the defendant did so, then the plaintiff cannot recover.”

The court replied : “ The whole proposition I decline to charge.” The defendant took an exception.

- Subsequently the court charged, viz.: “ The defendant was not to blame if the whistle was not blown before reaching Price’s Crossing.”

Subsequently the court instructed the jury, in reply to an exception that was taken, in regard to whether it was bound to use its own property so as not to injure the rights of others, “ the point was that, in the transaction of its business, it was governed in the whole transaction by the principle of law that a man must do his business with that caution which an ordinary prudent person would use.” To that instruction an exception was taken.

Subsequently the court i’emarked, in the presence of the jury, viz.: “ There was no legal obligation imposed upon the defendant— I mean by the statute — -except as to the whistle and the bell.”

Subsequently the defendant requested the court to charge, viz. : M That there are no other signals given from a train except the ringing of the bell or the sounding of a whistle.”

In reply to that request the court said, viz.: “ I charge' that; that these are the only signals that are required by law of the defendant.”

Upon looking through the charge, as delivered in connection with the requests and refusals and .qualifications, we are not able to discover any particular omission or any particular act referred to in the instructions to the jury by the court, beyond the noa-ringing of the bell, as a predicate upon which the jury might find negligence.

In the case of Johnson v. Hudson River Railroad Company (20 N. Y., 65), the justice qualified and limited the general statement made by him in respect to the duty of the defendant, by referring to the circumstances and character of the omissions of what was claimed to be che duty of the defendant upon the occasion •of the injury.

In Weber v. New York Central and Hudson River Railroad Company (58 N. Y., 461), Justice Allen says, in respect to the •charge in the Johnson ease, the judge “ clearly confined the jury in their deliberations to the omission of the defendant to use bells .and lights upon the cars as a measure that the prudence and foresight they were bound to exercise, ought to have suggested.” It is further said, in the Weber case, the defendant is not called upon to •do “ any act outside of or disconnected with its actual operations and the use cf the railwaj.” The Weber case is referred to in the case of Smeedis v. The Brooklyn and Rockaway Beach Company (88 N. Y., 20), approvingly.

In the case in hand we are of the opinion that the jury were not put clearly and fully in possession of the rules of law relative to the duties of the defendant. The jury may have understood that though they found the bell was rung for eighty rods next preceding the crossing, that there was some circumstance disclosed by the -evidence which warranted them in finding a dereliction of duty on the part of the defendant. The peculiar circumstance warranting any such finding was not pointed out, nor the acts or non-acts named, and suitable instructions in respect thereto delivered.

Upon the whole, we have come to the conclusion that the jury may not have properly understood the rules of law applicable to this case, disclosed by the evidence. For the errors appearing in the charge and refusals to charge, we are of the opinion that a new trial should be ordered. (See Beisiegel v. Cent. R. R. Co., 40 N. Y., 9; Grippen v. Cent. R. R. Co., 40 id., 34, and cases already referred to in the opinion of Barker, J., and delivered upon a former appeal.)

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

Boardman and Follett, JJ., concurred.

So ordered.


text:
    In the Matter of the Estate of ELIAS W. CADY, Deceased.

      Hxecutor or trustee — right of a surrogate to remove him for habitual drunkenness or improvidence —1873, chap. 79 — 3 B. S. (7th ed.), 2239 — Code of Civil Procedure, sec. 2fi36.
    Elias W. Cady died in 1883, leaving a will made in 1851, and two codicils made respectively in 1856 and 1875. By the will he devised the homestead farm to his son Charles, subject to charges in favor of the testator’s daughter Mary, and appointed Charles and his brother Oliver executors and trustees of his-will By the codicils he increased the charge created for his daughter Mary. In 1881 he conveyed the homestead to her, subject to certain payments to be Made by her. Upon the death of the testator Oliver refused to act, and Charles applied for letters testamentary, his application being opposed by three daughters of the testator, who were of full age and beneficially interested under the will, upon the ground of his alleged drunkenness, improvidence, insolvency and personal hostility to them.
    Upon the hearing before the surrogate the latter found that prior to 1880 Charles had used intoxicating liquors, and had at times become intoxicated ; that after that time he used them- so as to be decidedly under their influence for the greater part of the time, indulging occasionally in sprees which ended in delinum tremens, but that for several months prior to, and especially during the pendency of the present proceedings, his indulgence had been less open and. excessive than theretofore; that in 1879 Charles was a man of means, estimating himself to be worth about $29,000; that since that time he had become-insolvent and was unable to pay his debts.

      Held, that the surrogate properly refused to issue letters testamentary to Charles, and properly removed him from his office as trustee, on the ground of his incompetency by reason of improvidence and habitual drunkenness.
    Appeal from a decree of tbe Surrogate of Tompkins county, refusing letters testamentary to Charles Cady as executor of Elias W. Cady, deceased, and also removing him from the position of testamentary trustee under the said last will and testament of Elia» W. Cady. .
    Elias W. Cady died in the spring of 1883, leaving a last will and testament, executed in 1854, in and by whiqh he devised the homestead property ■ of nearly 200 acres, upon certain conditions to Charles Cady, and naming Charles and his brother Oliver as executors and trustees. Subsequently, and on December 30, 1856, and on July 8, 1875, the testator made codicils to his will, diminishing the devise to Charles, by making increased charges thereon for the benefit of testator’s daughter Mary. In June and September, 1881, the testator conveyed to Mary Cady the homestead, being that property which had been devised to Charles subject to certain payments to be made to her; thus leaving Charles without any interest in the will, except as executor and trustee under the same. About 400 acres of land known as the Cramer farm were devised to Charles Cady and Oliver Cady in trust, to sell the same within five years, and out of the proceeds to pay their sister Mary Cady $3,000, and divide the balance equally between Mary and her two sistérs, Harriet S. Eurguson and Rebecca A. Dwight.
    Upon the probate of the will, Oliver refused to act as executor, thereby leaving Charles Cady as sole surviving executor, and thereupon the three sisters objected to their brother Charles acting as executor and their trustee, upon the ground of his alleged drunken-, ness, improvidence, insolvency and personal hostility and unfriendliness to them, and upon the further ground that he was seeking to injure the estate by inducing the creditors to levy upon all the personal property left by his father, claiming it belonged to him. The objections were in writing and were verified. During the prógress of the trial had thereon before the surrogate, Harriet S. Eurguson withdrew her objections.
    The surrogate found “ that Charles Cady, for several years prior to the spring of 1880, had been in the habit of using intoxicating liquors, occasionally becoming intoxicated thereby ; but that about the spring of 1880 such use became much more frequent than theretofore, so that a greater part of the time he was under the decided influence of intoxicating liquors, sometimes indulging in protracted sprees and ending in delirium tremens', but that for several months prior to, and especially during the pendency of the present proceedings, that indulgence has been less open and •excessive' than theretofore. That in the year 1879 Charles Cady was a man of means, he himself estimating his property at that time at about $29,000 ; that since 1879 he has become insolvent ■and unable to pay his debts.”
    As a conclusion of law the surrogate found, first, “that said Charles Cady, by reason of improvidence and habitual drunkenness, is incompetent to act as executor and testamentary trustee under the will and codicils of the said Elias W. Cady, deceased; that a decree should be entered denying letters testamentary to said Charles Cady as executor, and also removing him from the office of testamentary trustee under said will.” This decision was made and filed March 24,1884.
    Upon the hearing there was evidence tending to establish that ■Charles Cady induced the creditors to levy upon and sell the per■sonal property upon the homestead upon an avowal that it belonged to him, and that litigation would be necessary to settle the rights ■of the estate and the legatees in the property. There was also a great contrariety of evidence touching the habits, acts and conduct of Charles Cady, covering a period of several years prior to the 28th of April, 1883, offered by the objectors to sustain their allegations ; and, also, considerable evidence was offered by the appellant r,to overthrow the testimony offered by the objectors; and in this ■evidence very many contradictions are found, not necessary to be referred to in detail.

      R. V. Rowland and Geo. E. Goodrich, for Charles Cady, appellant.
    ■ Ralliday <& Finch, for Mary Cady and others, contestants and respondents.
   Hardin, P. J.:

Section 3 of the Revised Statutes, as amended by chapter 79 of the Laws of 1873, provides as follows, viz.: “No person shall be deemed competent to serve as an executor who, at the time the will is proved, * * * upon proof, shall be adjudged by the surrogate to be incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence or want of understanding.” (3 R. S. [7th ed.], 2289.)

Section 2636 of the Code provides that after the proof of a will, letters testamentary shall be issued to the person or persons named in the will, unless a person interested, or a creditor, in the estate-files an affidavit “ setting forth specifically one or more legal objections to granting the letters to one or more of the executors, or stating that he is advised and believes there are such objections, and that, he intends to file a specific statement of the same.”

It is provided in section 2637 that “the surrogate must inquire into an objection filed, as prescribed in the last section; and for that purpose, he may receive proof by affidavit or otherwise in his discretion. If it appears that there is a legal and sufficient objection to any person named as executor in the will, letters shall not be issued to him except as prescribed in the next section.” It may be observed that this section provides that investigation may be had upon proof by affidavit or in such other manner as in the discretion of the surrogate shall be allowed. Manifestly, it was the intention of the legislature to provide for a somewhat speedy and summary determination of the questions raised by objections made to the competency of a person to serve as executor.

In McGregor v. Buel, where the question under consideration was whether special letters of administration should be issued or not, to preserve the property pending an appeal from the probate of a will, at page 169. 24 New York, Judge Denio, observes, viz.: “ The statute, in terms, makes the granting of such letters discretionary ; and the propriety of issning or withholding them is plainly dependent upon the exigencies of the estate, the amount and situation of the estate, and other circumstances which require to be judged of summarily, and are not suitable to be litigated through the courts upon appeal; the determination of the surrogate upon such questions is, as it should be, summary and exclusive.”

While that authority is not precisely in point upon the question now before us, we think the quotation not inopportune, as, after a full consideration of the great volume of evidence taken before the surrogate in this case, we are disinclined to disturb the findings of fact made by the learned surrogate; he saw the witnesses; heard them testify, and, upon a question involved in so much conflict, was better prepared to reach a correct result than we can be by scanning the evidence found in the appeal book.

The primary question to be considered upon all the evidence before the surrogate, was whether or not the improvidence of Charles Cady was shown to be such that the surrogate might properly adjudge that he was incompetent to execute the duties of the trust conferred upon him by the will. In Coope v. Lowerre (1 Barb. Ch., 45), the chancellor says, viz. : “ The improvidence which the framers of the Revised Statutes had in contemplation as a ground of exclusion, is that want of care or foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe and liable to be lost or diminished in value by improvidence, in case administration thereof should be committed to such improvident person. The principle of exclusion in this part of the statute is based upon the well known fact that a man who is careless and improvident, or who is wanting in ordinary care and forecast in the acquisition and preservation of property for himself, cannot with safety be intrusted with the management and preservation of the property of others.” In McMahon v. Harrison (6 N. Y., 443), it was held that the fact that a man was a professional gambler, is presumptive evidence of such improvidence as to render him incompetent to discharge the duties of executor or administrator, and the definition which we have quoted from the chancellor (quoted in Coope v. Lowerre, supra), was there approved, and the judgment of the court was, that such an improvident person ought not to be intrusted with an estate. In Emerson v. Bowers (14 N. Y., 449), the court in speaking of improvidence, says: The term evidently refers to habits of mind and conduct which become a part of the man, and render him generally and under all ordinary circumstances unfit for the trust or employment in question.” That definition was referred to approvingly by the court in Freeman v. Kellogg (4 Redf., 224).

Under, the interpretation of the statute given -by the authorities to which we have referred, we think the evidence before the surrogate amply justified him in concluding that the executor, by [reason of his improvidence, was incompetent to execute the duties of the trust, and that he was justified in withholding letters testamentary from him. It was urged on the argument before us, that considerable force should be given to the' fact that the testator had selected the executor. In considering that fact, it must be borne in mind that subsequent to 1851, by virtue of codicils and conveyances made by the testator in his lifetime, he gave a different direction to that portion of his estate which he 'originally intended for his son Charles Cady, and that at the time of the death of the testator the only interest which remained under the will to pass to the. executor was such as he might derive by virtue of the office as executor and trustee.

However, it was decided by the chancellor in Wood v. Wood (4 Paige, 299), that no great significance attaches to the circumstance that the testator had named the executor. He says in that case, viz.: “ It is not material to inquire whether the testator was aware of the want of responsibility in the executor at the time of making of the will. Por if the testator has been so improvident as to commit the administration of his estate to one whose circumstances are such as not to afford adequate security for the faithful discharge of his trust, the court must interfere for the protection of the estate against the effects of such improvidence.”

This language of the chancellor was quoted approvingly in the case of Freeman v. Kellogg (4 Redf., 225).

We are disposed to approve of the sentiment expressed by the surrogate of New York county in Martin v. Duke (5 Redf., 601), wherein he says, viz.: *‘ Every case must be considered by itself. In each the question for the surrogate is: Is it .safe to put this estate in the hands of the person named as executor; can he be trusted to administer it faithfully and honestly as directed by the will ? ”

We think in this case some attention should be given to the circumstance that two of the three beneficiaries under the will who were adults and capable of understanding their legal rights, objected to the appointment of the person named as executor; also some attention to the threats, shown to have been made by the executor in respect to his intentions in respect to the maladministration of the estate, if he should obtain possession of it.

While these considerations are not at all controlling, they may properly have had weight with the surrogate in considering the mass o-f evidence bearing upon the vital question submitted for his determination.

We are not warranted in saying that the findings were erroneously reached by the surrogate, and that his determination in withholding letters testamentary was not in accordance with the weight of evidence before him. We, therefore, upon this branch of the case, sustain the result reached by the surrogate.

Second. In respect to the removal of Cady as testamentary trustee, it may be observed that the surrogate came to the conclusion that he ought to be removed at the same time that he reached the conclusion that he ought not to be appointed executor.

Section 2817 of the Code of Civil Procedure authorizes the surrogate to make such a removal of a testamentary trustee “ where, if he was named in a will as executor, letters testamentary would not be issued to him by reason of his personal disqualification or incompetency.” We are of the opinion that the evidence before the surrogate warranted the conclusion reached by him upon the question appertaining to the removal. The surrogate had jurisdiction to make the removal. (Code of Civ. Pro., sec. 2817; Savage v. Gould, 60 How., 254, and the citations found therein in the opinion of Boardman, J.)

We are of the opinion that the rulings upon the hearing by the surrogate were sufficiently favorable to the appellant.

Section 2637, as we have before intimated, provides for such an inquiry as was had before the surrogate, being upon affidavit or in such other manner as within the discretion of the surrogate should be ordered by him.

We have found no error in the course of the trial calling upon us to disturb the conclusions found by the surrogate.

We think the decree of the surrogate of Tompkins county should be affirmed, with costs against the appellant, personally.

Follett, J., concurred; Boareman, J., not voting.

So ordered.


author: Follett, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. ANTONIO REGO, Appellant.

      Criminal trial — duty of the court to charge the jury as to the different grades of the crime of which the defendant is charged — when a conviction will beset aside because of error in the charge.

    The defendant was tried and convicted upon an indictment containing a single count charging him with murder in the first degree, in stabbing and killing one McGowan with a knife. Upon the trial the defendant’s counsel requested the court to charge, among other things, that “ when death is caused in a cruel and unusual manner, and in a heat of passion, the character of the crime depends upon the intent, and where it is done without intent to cause the death it is but manslaughter, and the intent must appear beyond a reasonable • doubt.” The court said that it thought that this was a good legal proposition, but that it did not see its applicability to this case.
    The defendant’s counsel then requested the court to charge the jury as to the different grades of manslaughter, to which the court replied that it thought that perhaps it wouui be better to so charge, rather than to deny the request,' although it did not see the applicability of it. The court then read or stated the substance of sections 189 and 193 of the Penal Code, which define and divide the crime of manslaughter into two degrees.

      Seld, that if the evidence entitled the defendant to have the question . as to whether he had committed a murder or a manslaughter submitted to the jury, the charge of the court was erroneous, as it was almost certain that under the charge as given the jury would not consider the case in connection with the crime of manslaughter.
    That as the evidence did justify the submitting of that question to the jury, the verdict and conviction should be set aside.
    Appeal from a judgment of the Court of Oyer and Terminer, of Onondaga county, convicting the defendant of murder in the first degree, and from an order denying a motion for a new trial, made upon the grounds that the court had misdirected the jury, and that the verdict was contrary to law and against the evidence in the case.

      Oscar J. Brown, for the appellant.

      Oeylon EL. Lewis, district attorney, for the People.
   Follett, J. :

January 17, 1885, Michael McGowan was stabbed with a knife, from the effects of which he shortly died. Antonio Rego was . indicted for murder in the first degree, the indictment containing but a single count. TJpon the trial the jury found the defendant guilty of the crime charged. The defendant appeals from the judgment and seeks a reversal upon the ground, among others, that the court erred in instructing the jury in regard to the crimes within which the homicide might fall.

In the charge, the court explained to the jury the crime of murder in the first and second degree, and stated the facts which must have existed, and the state of mind which must have preceded or co-existed with the act to constitute those offenses.

Defendant’s counsel requested the court to charge : “ Sixth. When death is caused in a cruel and unusual manner, and in a heat of passion, the character of the crime depends upon the intent, and where it is done without intent to cause the death, it is but manslaughter, and the intent must appear beyond a reasonable doubt.”

The Court — “ 1 think that is a good legal proposition. I don’t see its applicability in this case.” Exception for defendant.

Defendant’s Counsel — “I ask your honor to charge the jury that under this indictment, that if they find that he was not guilty of murder in the first or second degree, but was guilty of a slight and lesser grade of crime, they can find that under the indictment.”

The Court — “ The rule of law is, that a party who is indicted for a higher offense may be convicted of any lesser offense that the evidence satisfies the jury he has been guilty of, any lesser offense in the same line of offenses, as, in this case, manslaughter in the first degree.”

Defendant’s Counsel — •“ I asx your honor to charge the jury as to the different grades of manslaughter — what constitutes manslaughter in the different degrees, and the penalty connected therewith.”

The Court — “ I think, perhaps, I better, rather than to deny that request, although I don’t see the applicability.”

Thereupon the court read or stated the substance of sections 189 and 193 of the Penal Code, which define and divide the crime of manslaughter into two degrees. While the propositions do not contain any explicit request to charge that if the jury found the homicide was committed without a design to effect death in the heat of passion and by means of a “ dangerous weapon,” it was but manslaughter in the first degree, or if they found that it was committed in the heat of passion, but not by a “ deadly weapon,” it was manslaughter in the second degree; yet it appears from the record that the attention of the court was drawn to these points and that the requests were understood in that sense.

The terms “ dangerous weapon ” and “ deadly weapon ” have received judicial construction. (Abb. Law Die., Lawson’s Concordance.) But the present condition of the case does not require a •determination as to whether they are, or are not, used synonymously in the sections referred to, and if synonymously, which term controls ? It was the duty of the court to decide all questions of law which •arose on the trial, and instruct the jury within what crimes the evidence and inferences, which the jury were authorized to draw, might bring the case. (Code Crim. Proc., § 417; Foster v. The People, 50 N. Y., 598.)

The sections of the statute defining manslaughter were either applicable or inapplicable to the case. If there was no evidence or inferences arising from the evidence, which might bring the case within the crime of manslaughter, it was the right and the duty of the court to so charge. (Foster v. The People, supra; People v. Rogers, 13 Abb. [N. S.], 370; Buel v. The People, 18 Hun, 487; S. C., 78 N. Y., 492). But if there was evidence "or inferences arising from the evidence, which might bring the case within the crime of manslaughter, it was the duty of the court to so charge and point out the particular facts and states of mind which the jury must find to have existed, in order to bring the homicide within the crime of manslaughter. (Whar. Or. PL, § 709.) This the court failed to do, but instead read the sections defining manslaughter, preceded by the remark that the court did not see the applicability of the sections to the case. It is impossible to say that this direction was harmless to the defendant if he was entitled to have this question submitted to the jury, indeed, it is almost certain that under such a direction the jury would not consider the case in connection with the crime of manslaughter. (The People v. Quin, 1 Park., 340; McKenna v. The People, 81 N. Y., 360.)

In Quin’s case the defendant stabbed and killed the decedent with a knife. The court charged : “Now, gentlemen, if you believe this evidence, and believe that the crime was committed by the defendant nnder the circumstances as given to you by these witnesses, I see no ground to warrant you in finding the defendant guilty of manslaughter, but, in my judgment, he is then guilty of murder.” The defendant was found guilty of murder, but the judgment was reversed upon the ground that the charge was more than an expression of an opinion upon the evidence, and amounted to a direction that a verdict of guilty of manslaughter would be a violation of law. To the same effect is Templeton v. The People (3 Hun, 357; S. C, 6 T. & C., 81), which was affirmed in 60 New York, 643.

It is argued that the jury having been properly instructed in respect to the crime of murder, and having found the defendant guilty of that crime, they necessarily found that the defendant, intentionally killed the decedent, and thus passed upon the defendant’s state of mind, and negatived the idea that the crime was manslaughter. Logically this position may be technically correct, but unfortunately jurors do not always reason logically, and in cases of this gravity the defendant is entitled, upon his request, to have every material issue which may arise out of the evidence presented to the jury, and affirmatively considered by them.

In McNevins v. The People (61 Barb., 307), it was held that unless there is an absencé of facts and inferences pointing to the offense of manslaughter, the court has no right to exclude this crime from the consideration of the jury. In the case cited the defendant was convicted of murder in the first degree. Then, as now, the presence or absence of an intent to kill was the distinguishing feature between murder and manslaughter, and the jury must, in that ease, as in the case at bar, have impliedly negatived the idea that the killing was unintentional, still the failure to instruct the jury in respect to the crime of manslaughter was held to be error, for which the judgment was reversed and a new trial granted, (People v. Quin, supra)

The only remaining question to be considered in this connection is whether the jury might have inferred from the evidence, within legal rules, that the wound was inflicted in the heat of passion without intending to effect the death of the decedent.

The evidence shows that immediately preceding the homicide ihe decedent, defendant and a number of dissolute persons of both sexes, and of various nationalities, were engaged in dancing and drinking in the public room of a groggery. A fight occurred in the street, and the revelers rushed out to witness or join in the affray. Precisely what the fight was about, or who were engaged in it, is not clearly disclosed. The wound was inflicted with a knife, but its size or character is not described, nor can it be inferred except from the wound inflicted. The decedent, in an ante-mortem statement, said, as testified by Dr. Totman: “ He said he had been in a fight and an Italian stabbed him; he repeated this several times in substantially the same language.”

Giovanni Montrone, a witness sworn for the defendant, testified : ■“ I was at Tilly’s on the Saturday night in question; the time the man was hurt; I was there from seven o’clock until the dance was over; I went out of the place about half-past eleven ; I saw a fight between a lot of Englishmen, and Antonio in the center of them. Q. Where were yon when you saw them? A. I saw them as they were fighting in the road leading down the hill on the street; I don’t know the name of it. By the •Court: Q. Antonio Rego was in the center of them. A. Yes, sir; the fight, when I first saw them, was about half way down Bridge street, or about three-quarters of the way down; Rego and the crowd were about five-sixths of the way from Lock to Pearl on Bridge street; they were there fighting, and Antonio Rego in the center of them; all hands were fighting with their fis'.s; they were talking very loud, but I didn’t understand what they were saying; they were speaking in English; I couldn’t recognize any of the pei’sons in the crowd who were down Bridge street fighting; I saw an Englishman fall; don’t know who he was; 1 saw Rego give a blow with his hand; they scattered; Antonio run and they run after him; there were about nine or ten in a crowd around Antonio; Antonio Rego was the only Italian in the crowd; the crowd were all under the influence of drink; the man who was dancing the clog in the dance house was pretty full.”

It appears that, so far as it is known, the defendant and decedent had never had any previous difficulty or acquaintance. Without calling attention to the cases of homicide arising out of sudden affrays, or mutual combats; and without further discussing the evidence, or intimating that the evidence or the inferences to be drawn from it should induce a jury to find, as a question of fact, a verdict of manslaughter, we are of the opinion that whether the crime was murder or manslaughter should have been unequivocally submitted to the jury.

For this error the judgment must be reversed and a new trial granted.

Hardin, P. J., and Merwin, J., concurred.

Judgment and conviction reversed and a new trial ordered in the Court of Oyer and Terminer of Onondaga county, to which court the proceedings and decision are remitted.


author: Follett, J.:

text:
    In the Matter of the General Assignment of ALFRED WILKINSON and J. FORMAN WILKINSON to CHARLES E. HUBBELL, Appellants. Application of JOHN H. POUNE, Respondent.

      Bxaminatton of an insolvent debtor and Ms general assignee —1877, chap. 466, sec. 21.

      A county judge having, upon the application of a creditor, made an older requiring insolvent debtors and their general assignee to appear before him and be examined, as provided by section 21 of chapter 466 of 1877, the assignors and assignee moved to vacate the order, upon the ground that some twenty creditors had commenced actions for the purpose of putting their claims in judgment and that the deponent believed that the said creditors intended ta-bring an action to set aside the assignment and that this application was made in the interest of the said creditors and not for the benefit of the assigned estate. Held, that the motion to vacate the order was properly denied.

    Appeal from an order of the county judge of Onondaga county, denying a motion to vacate an order for the examination of the1 appellants.
    December 9, 1884, Alfred and J. Forman Wilkinson made a general assignment to Charles E. Hubbell for the benefit of creditors, which was recorded December 10, 1884, in the office of the clerk of the county of Onondaga. The assignee accepted the trust and entered upon the discharge of his duties. December 20,1884, an inventory and schedules were filed, pursuant to section 3 of the general assignment act (chap. 466 of 1877), in which Poune, the reespondent, is recognized as a creditor in the sum of $658.72, the full amount claimed by him. January 1, 1885, upon the petition of Poune and accompanying affidavits, the assignors and assignee were ordered by the county judge of Onondaga county to appear before him and be examined; and produce the books and papers of the assignors, pursuant to section 21 of the general assignment act.
    The assignors and assignee moved to vacate this order upon an affidavit made by counsel, which states that: “ Deponent is further informed, and verily believes, that the said application of said John H. Poune is made in the interest of said creditors so proceeding in hostility to said assignment, and not for the benefit of said assigned estate.”
    The only fact stated as a foundation for the belief is, that the petitioner’s attorneys were the attorneys of twenty creditors of the assignors, who had commenced actions to put Úieir claims in judgment, and deponent believed that said creditors intended to. bring an action or actions to set aside the assignment. The county judge refused to vacate the order, and the assignors and assignee appeal.
    It was not claimed before the county judge, nor was it claimed on this appeal, that the examination order is too broad, or that the subjects to be inquired into are not specified with sufficient definiteness.

      Louis Marshall, for the appellants.

      Frank LI. Hiscook, for the respondent.

      That this is not a ground for refusing an examination was reaffirmed in Matter of Kopelowich at this term.' (See list of decisions of this term, post.)

   Follett, J.:

The only ground urged for the reversal of this order is that if the petitioner’s allegations are true, the evidence discovered would support an action to set aside the assignment as fraudulent. The petition states that, shortly before the assignment, the assignors conveyed to relatives, by deed and mortgage, a large amount of real estate for an inadequate consideration; that the inventoried liabilities greatly exceed the inventoried assets; and other state-merits which, if true, lead to the belief that the inventory does not correctly set forth the assets and liabilities, though the petition does not specifically aver that certain specified assets are omitted, and that certain specified liabilities are fraudulent, in whole or in part.

By the examination authorized by the twenty-first section, the legislature intended to enable persons interested in the assigned estate to discover the assignor’s assets applicable to the payment of his debts, so that they might be pursued and recovered by the assignee ; and also to ascertain the actual liabilities of the assignor-, to the end that the assets may be justly distributed among the real creditors, instead of upon fictitious or overstated claims. Subdivision 4 of section 20, and section 26 general assignment act (chap. 466 of 1877), provide for the detei ruination of disputed claims. Overstated claims may be reduced (Kavanagh v. Beckwith, 44 Barb., 192), and fraudulent or illegal ones may be rejected. (In re Oakley, 1 A. Ins. R., 56; In re Risley, Id., 281; Bur. Ass. [3d ed.], § 428.)

Examinations are not limited by the act to transactions in connection with the assigned estate, occurring since the assignment. Tinder this order only the assignors and assignee are to be examined, and they insist that the examination must not proceed, lest they may disclose evidence which will enable other creditors to overthrow the assignment as fraudulent. Admitting, as all must, that it is the legal right of the creditors to discover by the examination (1) the assets, (2) the amount which each person is entitled to receive from the assignee; if is illogical to say that because the petitioner, in pursuing his rights, may develop fraudulent transactions on the part of the assignors and assignee sufficient to set aside the assignment at the suit of other creditors, that the examination must not be ordered, or if ordered, must be discontinued, and the assets left uncollected, or that the avails of those collected be distributed to persons not entitled to dividends. No court has so construed this section, and the cases cited by the appellant’s counsel do not sustain the position.

In re Burtnett (8 Daly, 363), the examination was sought, not to discover assets, or to exclude fraudulent claimants from receiving a distributive share, but avowedly to discover and perpetuate evidence to be used in another court, in an action to be brought for the recovery of damages against a person who had fraudulently acquired part of tlie assignor’s property before the assignment. It was not held or said in that case that an examination cannot be ordered or proceeded with in ease the evidence may, or probably will, disclose the assignment to have been fraudulent. It was said that the •examination allowed by the assignment act is to aid in the administration of the assignment.”

In re Goldsmith (10 Daly, 112), the petition upon which the order was granted showed that the sole object of the examination was to discover evidence upon which to found an action to set aside the assignment as fraudulent. Upon this ground the order for the examination was vacated at Special and sustained at General Term, one judge dissenting.

In re Brown (10 Daly, 115), the petitioning creditor desired to •establish that the unpreferred claim of another creditor mentioned in the assignment was usurious ; and also that the assignor had made false representations prior to the assignment, but in respect to what does not appear. An examination was refused, on the .ground that until it should be held that one creditor may dispute the validity of an unpreferred creditor’s claim on the ground of usury, an examination would not be ordered.

When the assignment directs the payment of a usurious debt, the assignee cannot refuse payment because of the usury (Chapin v. Thompson, 89 N. Y., 270), nor can a creditor prevent the payment of such a claim. (Pratt v. Adams, 7 Paige, 615.) Such persons are not within the class of persons authorized by the statute to avoid contracts for usury. For this reason the examination order in fhe case last cited was properly vacated.

In re Koonz (11 N. Y. W. Dig., 55), an order for the examination of the assignor was vacated and on appeal such action was sustained, because the petition failed to disclose any facts justifying the allegation that the petitioner believed that the rights of the •creditors would be protected by an examination.

In re Swezey (62 How, 215; affirmed, 64 id., 353 ; S. C., 10 Daly, 107), an order was granted to discover whether the assignor owned a certain trade-mark, and it is not an authority for the appellants’ position.

In re Bryce & Smith (56 How., 359), the petitioning creditor charged that the assignors had fraudulently concealed assets, and an order was granted for their examination and the examination of other witnesses.

In re Isidor (59 How., 98), it was alleged in the petition simply that the assignee refused to permit the petitioning creditors to examine the books of account of the assignor, and an order was granted requiring the assignor and assignee to produce the books and submit to an examination, which was sustained at General Term.

When the petition shows that there is reasonable ground for apprehending that the assignor has fraudulently disposed of his assets, or that the assignor or assignee have fraudulently omitted assets from the inventory, or placed upon the schedules claims which are fraudulent in whole or in pai’t, an examination may and should be ordered.

The order is not objected to because it does not state the subjects, to be inquired into, or in anywise limit the scope of the examination, nor is it objected that the information upon which the petitioner founds his belief is not set forth in the petition.

The order refusing to vacate the order for the examination of the assignor and assignee is affirmed, with costs.

Hardin, P. J., and Boardman, J., concurred.

Order affirmed, with ten dollars costs and disbursements.