text:
    The People, Resp’t, v. John Y. McKane, Impleaded, etc., App’lt.

      (Court of Appeals,

      Filed November 27, 1894.)

    1, Election law—-Violations—Principal.
    Section 29 of the Penal Code applies to the provision of § 41c of said Code.
    •2. Same.
    A person, who induces or procures the members of a board of registry willfully to violate § 33 of Election Law, in relation to the registration of voters, may be indicted as a principal jointly with the members of the board.
    •3. Same—Indictment.
    The indictment, in such case, need not charge a conspiracy, as the conspiracy, if shown, is evidence in support of the charge made.
    4. Same—Evidence.
    When evidence given on the subject of a conspiracy is sufficient for the jury, the acts and declarations of the conspirators, in furtherance of its purpose and object, are competent,
    5. Same.
    The circumstances of the arrest of the persons at the town hall, who were in search of the lists or watching the election, were admissible.
    6. Same.
    The power that the defendant wielded through public offices or through the receipt and disbursement of large sums of money, was, under the circumstances, a proper inquiry.

      7. Same.
    Evidence as to the arrangement of the election districts was properly received.
    3. Same.
    The poll lists were properly given in evidence.
    9. Same.
    The evidence as to the number of legal voters in the town was competent.
    10. Same.
    The questions relating to defendant’s official acts which had some bearing upon his power, influence and patronage, were admissible, on cross-examination, within a reasonable discretion.
    11. Same.
    Where the defendant makes reputation a subject of inquiry, the people have the right to put before the jury what that reputation is, though it includes the ability to influence and control elections.
    12. Same.
    Statement of person in charge that registry lists could not be seen without an order from defendant was competent, especially in view of defendant’s subsequent admission that he was acting under his orders.
    13. Same.
    Proof that an order of the court, in the proceedings to obtain access to the several lists, was served upon the chairman of the board in the first district, and what was stated to him at the time, was proper.
    14. Same.
    Exception to evidence of declarations by defendant to the witness in a conversation through the telephone, when he did not know defendant or recognize his voice, was good.
    15. Same.
    But this error was cured when defendant, on the stand, gave his version of the same conversation.
    16. Same.
    Proof of the absence of an alleged conspirator from other important duties, to attend there gistry board, though a somewhat remote circumstance, cannot be said to be a prejudicial error.
    17. Appeal—Evidence.
    The statement of inadmissible testimony, not called for by any question of the prosecution, is not error in the absence of a motion to strike it out.
    Appeal from judgment of the general term of tbe supreme court in the second judicial department, entered upon an order which affirmed a judgment of the court of oyer and terminer of Kings county.

      Matthew Hah, Edward G. James, Albert G. Tennant and George W. Roderick, for app’lt; Edward M. Shepard and Benjamin F. Tracy, for resp’t.

      Affirming, 62 St. Rep. 6.

   O’Brien, J.

The defendant and the three inspectors of election of the first election district of the town of (xravesend were indicted jointly for a violation of certain provisions of the law governing elections and the registry of voters, preparatory for the general election of November, 1893. Laws of 1892, ch. 680.

Briefly stated, the charge was that the three inspectors, constituting the registry board, having met and organized, subsequently made and completed a list of voters' and certified the same, willfully and feloniously neglected and refused to have three certified copies of the same at all reasonable hours accessible to the public for examination, and for making copies thereof, but on the contrary caused the same to be concealed from the public and kept so that they were not accessible for examination or for making copies thereof.

The charge against the defendant was that he willfully, maliciously and feloniously procured the other defendants, members of the board of registry, to so conceal-the lists and to neglect and refuse to cause the lists to be accessible to the public for examination and for making copies of the same, by his aid, counsel, command and assistance. The defendant was tried separately and convicted, and the judgment affirmed by the supreme court.

In view of the able and exhaustive examination that the case received in the court below upon appeal it is thought to be unnecessary to refer at much length to the vast mass of facts produced at the trial bearing more or less upon the issue though relating to many subjects and events that appear in the enormous record that accompanies the appeal.

These facts will doubtless be of interest to' some future historian of the locality, or of the public events with which they are connected, as they illustrate a most -singular condition of things in local government and an extraordinary individual career; but it is believed that' a very brief and general reference to a few of the leading ones is all that is essential to the disposition of the questions of law which (alone) we have the power to review. It is important, however, to get a clear view of the statute law that underlies the charge and the judgment. The thirty-first and thirty-second sections of the Election Law, which has been referred to, provide for the time and place of the meeting of the inspectors of election in each district in towns, as a board for the registry of voters, and the manner of preparing the lists. The next section directs the inspectors at the close of each meeting, as á board of registry, to append to their list a certificate to the effect that such list, ás it then is, is a correct list of all persons qualified to vote in the district at the next election whose names the board is required by law to place thereon. The remainder of the section contains the provision which it is claimed was violated by the inspectors in this case and rerids as follows: *

* “ Each such list, so certified, shall remain in the custody of the chairman of inspectors, until the close of the polls on election day. At each meeting of the inspectors for registry, or during the next following secular day, the inspectors shall make three certified copies of such list and certificate, one of which shall forthwith be conspicuously posted in the place where such meeting shall have been held, and one shall be retained by each of the other two inspectors, until the close of the polls of such next election. Such list'and registry of voters, and the certified copies thereof, shall at all reasonable hours be accessible to the public for examination or for making copies thereof.”

The penalty for neglecting or refusing to obey this statute, on the part of the board of registry, is thus defined by a provision of the Penal Code:

■“ § 41c. Any member or clerk of a registry board who willfully violates any provision of the election law relative to registration of electors, or willfully neglects or refuses to perform any duty imposed on him by law, or is guilty of any fraud in the execution of the - duties of his office, shall be punishable by imprisonment for not less than two and not more than ten years.”

These provisions, howevér, apply to the members and clerks of registry boards, and as the defendant was neither, the charge could not be sustained without the aid of another provision of the same Code which reads as follows : § 29. A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids or abets in its commission, and, whether present or absent, and a person directly, or indirectly, counsels, commands, induces or procures another to commit a crime, is a principal.” The learned counsel for the defendant contends that this section does not apply to the charge contained m the indictment and was not intended to apply to it since the defendant would be guilty of nothing higher than a misdemeanor in case he had actually violated other and apparently more important provisions of the law, or had actually destroyed the registry lists himself. It is quite true that the penalties prescribed by the statute for violation of the several duties and obligations imposed upon election officers and others have not been adjusted with a very nice regard to what would seem to be the relative importance of each offense. The counsel’s argument might very, properly have been addressed to the legislature while engaged in framing the law, and if it had a special provision would doubtless have been inserted for the punishment of the special offense charged in the indictment in order to take ’ it out of the operation of the general law. But the language of section twenty-nine is so clear and comprehensive that any attempt now to take the offense of which the defendant was convicted out of it., by judicial construction, would be useless.

The contention is also made that it was legally impossible for the defendant to commit the offense charged since he was not an inspector of election or other registry officer. He could not, of course, be guilty of those acts charged in the indictment against the inspectors, involving neglect of official duty and other misconduct as public officers, since he had no duty to perform with regard to the registry lists. But it was possible to induce and procure the inspectors to commit the offense charged against them by command, counsel or advice, and that is the precise offense of which he was convicted. The argument for the defendant on this branch of the case goes to the full extent o'f asserting that no legal offense whatever was committed by the defendant, though all the allegations in the indictment be taken as true. He who by command, counsel or assistance procures another to commit a crime is, in morals and in law, as culpable as the actual visible actor himself, for the reason that the criminal act, whatever it may be, is imputable to the person who conceived it and set the forces in motion for its actual accomplishment. The fact that he may, for some reason, be incapable of committing the.same offense himself is not material so long as it can be traced to him as the moving cause by instigating others to do what he could not do himself. This was the rule of the common law and it has been applied to offenses like this under special statutes. People v. Bliven, 112 N. Y. 79; 20 St. Rep. 486; State v. Sprague, 4 R. I. 257; State v. Jones, 83 N. C. 605; U. S. v. Snyder, 14 Fed. Rep. 554; U. S. v. Bayer, 4 Dillon, 409; 1 Hale P. C. 629; 1 Hawk. P. C. chap. 41, § 10; 1 Arch. Crim. Pr. (Pom. ed) 998; State v. Comstock, 36 Iowa, 265; People v. Chapman, 62 Mich. 280.

Numerous questions were raised, discussed and decided at the trial in regard to the organization of the court and the form and sufficiency of the indictment. There' was a motion to quash, a demurrer and a motion in arrest of judgment and the decision in each case was in favor of the People. In so far as these various proceedings raised any question not already considered and not embraced in the exceptions which will be noticed hereafter, they do not require any special discussion. Nor is it important now to decide whether the decisions made in these motions and proceedings at the trial are all reviewable in this court, since, after a careful examination, we are satisfied that they do not present any substantial question and the objections thus raised have been fully and quite satisfactorily answered in the opinions below.

The remaining questions arise upon exceptions taken in the course of the trial and they grow out of the mode of proving the charge which was adopted by the prosecution. There was no direct evidence that the defendant counseled or advised the inspectors to conceal the lists or otherwise violate the law. What the prosecution attempted to show was a criminal conspiracy or general scheme, in which many public officials were engaged, for the purpose of casting a large fraudulent vote at the election, and that the concealment of the registry lists from the public, prior to the election, ’was, or became, a necessary part of the scheme. No conspiracy was charged i.n the indictment, nor was it necessary, since the conspiracy, if shown, was evidence in support of the charge stated, from which the jury might find the main fact in issue, namely, that the defendant did counsel, advise and abet the unlawful acts of the inspectors.

Here the inquiry necessarily took a very wide range. To enumerate all the various facts and circumstances adduced in support 'of this theory, and which were claimed to have some direct or remote bearing upon the issue, would extend this discussion beyond all reasonable limits and would' aid but little in giving a clear understanding of the case. It will be quite sufficient to state, in as brief a manner as possible, a few of the most prominent facts and circumstances which the evidence tended to establisb and which, when connected together, it was claimed, pointed directly to the truth of the charge against the defendant.

The town of Gravesend, though really a suburb of the city of Brooklyn, had no other local government than that of a rural town in this state, with the possible exception of a large police force, which became necessary from the nature of the business conducted there and from the fact that during the summer season a very large number of people made it a resort for pleasure and entertainment of various kinds. In 1890 the town board, of which the defendant, as supervisor, was the presiding officer, divided it into six election districts. The division was so arranged that all the districts converged in the town hall,- a building seventy-eight feet long and thirty-seven feet wide, situated in the village of Gravesend. In this building the registry lists were prepared and the vote cast for the entire town. This situation was peculiarly favorable for the purpose of bringing all the machinery of elections under the influence and control of a single mind, especially when that mind dominated all the business and political interests in the town.

That the inspectors, not only in the first district, but in the other five as well, wilfully neglected and refused to give the public access to the lists or an opportunity to copy them, and that they in fact concealed them, was established by abundant evidence. There was not only failure and neglect on their part to perform the plain and simple duty enjoined by the statute, but active opposition and obstruction to all attempts by parties interested in the result of the election to inspect or copy the lists. For this purpose various devices and expedients were resorted to tending to show that they were all acting in furtherance of a common plan and for the accomplishment of a common purpose.

When all efforts in that direction had failed, Mr. Gaynor, who was a candidate for justice of the supreme court to be voted for at the election, applied to the courts for the purpose of compelling the performance of this duty by the inspectors through the appropriate judicial process. The defendant retained counsel to resist these proceedings, and they were resisted' and defeated by means of technical objections, and the active interest taken by the defendant in defeating all proceedings in the courts to give the public access to the lists, although he was not a party to them, was a circumstance of much significance. Moreover, in the course of the proceedings he made an affidavit to be used in opposition, and which was so used, in which he stated, among other things, that he had examined the lists and that they contained no fraudulent names. Considering the state of the registry, as it then existed, this statement, and the purpose for which it was made, furnished some evidence of the defendant’s knowledge of the manner in which the lists were made, and, generally, of the common end in view. The defendant’s active participation in hindering and- obstructing any access on the part of the public to the registry lists, and in preventing any fair scrutiny of the vote' as it was being cast, was shown by other acts amounting to a great abuse of power. The defendant, being tbe chief of police and chairman of tbe town board, had the charge and control of the town hall, where the registry was made and the election held. The efforts of Mr. Graynor to procure copies of the registry lists continued for several days up to the election, but without success. A day or two before election he sent a large body of men to the hall for the purpose of obtaining access to the lists and making copies. They were all driven from the hall, some of them beaten, and most of them arrested and imprisoned. On the day of the election another body of the candidate’s friends and supporters went to the place where the election was being held for the purpose of watching the proceedings and scrutinizing the vote. These men fared even worse than the copyists. The time, manner and circumstances'of these arrests of many persons, without cause, proved the ability of the defendant to wield absolute power, and indicated an utter disregard for personal rights and contempt for justice and law. The defendant was the leading spirit and moving power in all these proceedings, aided, as he was, by the police and the justice of the peace who issued the process under which the arrests were made, all, evidently, under his control and influence.

Another important fact was established by evidence quite persuasive and convincing. The registry lists were beyond all doubt fraudulent. They contained a great number of names that did not represent legal voters in the town, or even actual residents, and the vote at the election as reported and certified by the canvassers was also, though perhaps not correspondingly, fraudulent.

The enumeration or census taken under the authority of the state in February, 1892, showed that the total population of the town, including women, minors and aliens,' was 8,343. There is no reason to believe that during the period of less than two years that elapsed between this enumeration and the election in question, there was any substantial increase in the number of actual voters. The registration lists, however, contained 6,580 names, and the total vote reported was 3,676.

Aside from the inferences to be drawn from these figures, it should be observed that there were numerous names on the registry without any sufficient designation of the place of residence, and the poll list, kept by the inspectors, showed that during the progress of the voting, at frequent intervals, blocks of names were recorded in suspicious alphabetical order as voting, and other strange coincidences appeared that could not, or at least would not be likely to, exist in the record of an honest election.

The ultimate end aimed at. and attained, of course, involved many other and perhaps more grievous offenses against the law than that charged in the indictment. It required the co-operation, not only of the inspectors in the several districts, but also the police and many of the other town officers. The fact that so many public officers were at the same time, in the same way and by the same means, either actively promoting or conniving at a scheme to produce a false result of the election, suggested the presence of some central figure and some controlling mind as the author ; and all the circumstances pointed to the defendant as that person. He alone had the power, the means and the motive.

' The singular position of power and influence which he held in the town was an important fact in the chain of circumstances. It Would be quite tedious to enumerate-all the various offices that he held with the important powers attached to them. It is within .the limits of the evidence, and sufficient to say that there is scarcely any power of local government that can be exercised in a town, whether administrative or political, that was not concentrated in his person ; and even the judicial power, as represented by the local magistrates, was subject to his influence. This sufficiently appears by the wholesale arrests of the watchers-and other persons on and before the day of the election. In a town which contained such places of resort as Coney Island and Sheepshead Bay, private business centered largely in hotels, saloons, theatres, race courses and other forms of amusement or entertainment, and it was all so far dependent upon police protection and official favors as to add greatly to this power and influence.

He was the superintendent of the Sabbath school of the Methodist church, and seems to have exercised a potent influence upon the religious life of the people. He had been elected supervisor of the town during eight successive terms unanimously. During nearly all this time he controlled the politics of the town. Whatever cause he favored and whoever the candidates that he supported were, the vote of the town was recorded in that way. Whether the election was general or local and whichever of the two great political parties that he supported, the vote was so nearly unanimous that way as scarcely to conceal the fact that it represented, in a great degree at least, the will of a single man. A curious instance of that kind occurred at the presidential election of 1888. Prior to that time he had been attached to the democratic party, but in consequence of some disagreement with the party organization in the county, he supported the republican candidates that year, and they received substantially the unanimous vote of the town. The same result was in a great measure secured in the same way in the two subsequent state elections. In the election of 1893 he was supporting the democratic candidates, and the circumstances indicated that he was interested and anxious to make this support as effective as possible. The possession of this enormous power for so long a period naturally made him ambitious to retain it and intolerant of all opposition.

Another fact appears which tended to promote the success of the political measures and candidates which he favored. There was really no division of the voters upon party lines. There was in the town, it is true, what was called a republican organization, as well as a democratic organization, but the evidence tended to show that the defendant so controlled both that neither was able or willing to make any earnest or effective opposition to his wishes at the polls.

These facts and circumstances, with others appearing in the record, embracing other-acts and declarations of the defendant and the acts and declarations of his alleged co-conspirators, or some of them, were all submitted to the jury under a very fair charge, and the verdict must be taken as establishing the truth of the charge, which was the -main fact in issue, that the defendant did aid, abet, counsel and advise the inspectors in the misconduct and neglect of duty stated in the indibtment.. '

The. exceptions taken at the trial and now urged as ground for reversal remain to be considered. Therecord contains many that are obviously without merit. It will be necessary to notice only the most important ones that appear upon the briefs of counsel and were discussed at the argument.

Many of these exceptions were taken to proof by the prosecution of acts done or declarations made by others claimed-to have been engaged in the alleged conspiracy, but not in the defendants presence. When a conspiracy is shown, or evidence on the subject given sufficient for the jury, then the acts and declaratibns of the conspirators, in furtherance of its purpose and object, are competent, and in a case like this it is not necessary, in order to make such proof competent, that the conspiracy should be charged in the indictment. Roscoe’s Crim. Ev. (8th ed.) 432; 1 Greenl. Ev. § 111; 4 id. § 94; People v. McQuade, 110 N. Y. 306; 18 St. Rep. 288; Smith v. Nat. Ben. Soc., 123 N. Y. 85; 33 St. Rep. 67; Logan v. U. S, 144 U. S. 263; Com. v. O’Brien, 140 Pa. St. 555; Queen v. Most, L. R. (7 Q. B. D.) 244; People v. Kief, 126 N. Y. 661; 37 St. Rep. 477; People v. Bliven, 112 N. Y. 79; 20 St. Rep. 486; Spies v. People, 122 Ill. 1, 224, 228-9.

The circumstances of the arrest of the persons at the town hall who were in search of the lists or watching the election were admissible, since, upon the evidence, they could be attributed to the defendant, at least so far as they transpired in his presence, or s.) far as the acts were done by his procurement. . That part of the proof which related to the acts of others, co-operating with the defendant and in furtherance of the common purpose, was also competent upon the principle airead}1, stated.

Proof was given by the prosecution in regard to the several public positions held by the defendant, the receipt of large sums of money as supervisor and also the sale of liquors by saloons on Sunday. The power that the defendant wielded through public offices or through the receipt and disbursement of large sums of money became, under the. circumstances, a proper inquiry. .It was not competent to show that he misappropriated the money, and no attempt of that kind was made, but it was admissible only to show that the defendant possessed power and patronage that might probably influence others; and proof of the relations existing between the keepers of saloons, representing a large number of people and extensive business interests, and tbe chief of police, though, perhaps, somewhat remote, is not, under the circumstances, reversible error.

So, also, it was competent to show the situation oí the several election districts and their relation to the town hall, where the registry was made and the votes east. The incidental fact that the defendant participated in the division as a public officer could not be imputed to him as an offense and the trial court confined its scope'to a mere description of the arrangement made by law for registering and casting the vote. In this view the proof was admissible.

The objections to the poll lists given in evidence by the prosecution were not well taken. The alleged conspiracy was without point or motive unless the registry and the vote certified were. fraud ulent, and hence the poll lists kept by the inspectors and which showed how the vote was made up had a direct bearing on this question. It was for the jury to say whether, under the circumstances, a large fraudulent vote could have been registered and reported without the knowledge or connivance of the inspectors and the defendant. The inquiry as to the number of legal voters actually residing in the town was also involved in the issue. The defendant himself testified on that subject and claimed tbéy bad increased since the vote of previous years, and, therefore, the poll lists of these years had some bearing on the question and the ruling admitting them was not error. This class of evidence could not have been admitted to show that the defendant may have been guilty of some other offense or wrongdoing not charged in the indictment. But if it had a bearing on the issue involved in the trial it could not have been excluded merely because it tended to justify such an inference.

The defendant was a witness on his own behalf at the trial. On cross-examination various questions were propounded to him which were objected to by his counsel and admitted under exception." The scope of the cross-examination was largely within the discretion of the court. The questions related to various official acts in the administration of the affairs of the town and connected with the numerous offices which he held, but they all had some bearing upon the power, influence and patronage that he wielded and the means at his command to influence others, whether individuals or public officials. Some of the questions called for a description of the position which he held in politics and his ability to influence and control the action of both political organizations. It was proper to give the jury as clear an idea as was possible of the defendant’s political power and of his ability to ’influence whatever result he desired at elections, and for that purpose the questions were admissible within the limits of a reasonable discretion.

The defendant gave proof of his good character by some of the most prominent business .men in the county. He was evidently what might be termed a popular man, who had many friends. He had the power to retain them and to increase their number. Those witnesses testified that his reputation was good. On cross-examination various questions were asked and answered under objection and exception with respect to his political power and influence, or rather what the witness had heard on that subject from the speech of people. It may have been improper to prove the defendant’s position in that way as an affirmative fact. But there was really no question about the defendant’s great power, and it does not appear that the evidence was received for that purpose. The defendant having made reputation a subject of inquiry, the People had the right to put before the jury just what that reputation was, though it included the ability to influence and control elections. •

The People called a witness who testified that when the registry lists were nearly completed he went to the town hall, the place where they were by law required to be kept, and there found a man in charge, who by his dress he assumed to be a policeman, and told him that he wanted to see the lists in order to make copies, stating fully his purpose and, who had sent him. The person in charge told him that he could not see the lists without an order from defendant.. It must be remembered that the defendant as head of the police had charge of the hall, and it was competent for the prosecution to prove the efforts made to see and copy the lists and the failure of these efforts. What the person in charge said was a part of this proof and as least tended to show that the application was not successful. But even if his statements were objectionable they were subsequently made competent by proof of the defendant’s admissions that he was acting •under his orders. The prosecution called another witness and proved by him that he served an order of the court, in the proceedings to obtain access to the several lists, upon the chairman of the board in the first district, and he was permitted to state also what he said to him at the time of making the service. This was proper. What was said to the chairman at that time in regard to the purpose of the service was notice to him that the lists were required and part of the res gestee. But the witness went further and testified that he also said to him that be had just served a like paper on another member of the board and that that member said he was going to hand the papers to the defendant. This was inadmissible, but it was a voluntary statement of the witness, not called for by the real spirit or purpose of the question, and under a rule which the court had adopted in the course of the trial in presence of all the counsel, it would have been stricken out had a motion for that purpose been made. In the absence of such a motion the defendant cannot complain that the statement was injurious.

A witness for the People testified to very important declarations . made by the defendant to him in a conversation through the telephone. A proper objection was made and exception taken. It appeared that the witness did not then know defendant or recognize his voice. In the absence of some other proof this exception would have been good. Murphy v. Jack, 142 N. Y. 215; 58 St. Rep. 458. But the witness further testified that he heard an affidavit made by defendant, and read in his presence, in which he stated that he had the conversation by telephone with the witness and that there was but one. This statement was made without any objection that the affidavit itself was the best evidence of what it contained, and was in fact drawn out by defendant’s counsel. Subsequently the affidavit was put in evidence by the defendant, and when on the stand he gave his version of the same conversation, which differed from that of the witness, -the other party to it. The objection was in this way cured and the conversation was properly in the case.

It appeared that Michael Ryan was an inspector for the second district and principal of the school at Coney Island, having under his charge six other teachers. One of these teachers was called, who testified for the People to the effect that Ryan was absent for three days prior to the election, during the struggle to obtain access to the registry lists, and she also gave some testimony tending to show the number of scholars in the school. The evidence was received under defendant’s exception. Of course this testimony had- no bearing whatever upon .the question of the true number of legal voters in the town, and there is nothing to show that it was offered or received for such purpose. Ryan, being a member of the registry board, was one of the alleged conspirators. The fact that he was absent at that particular time, when he had important duties to perform at the school, was a circumstance, though perhaps somewhat remote, proof of which cannot be said to be error prejudicial to the defendant.

There are many other exceptions in the record, but they are all covered by the views expressed in regard to those already specifically noticed and do not require further consideration.

While we have discussed the questions thus raised at some-length it is proper to say that many of them fall within the-statute which directs this court to give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. Code Crim. Pro. §§ 542, 684.

We have-examined the case in view of the fact suggested by the learned counsel for the defendant that the trial took place in the midst of great public excitement. This was, perhaps, to be-expected from the character of the events which • took place at. and just preceding the election and the disclosures which followed. The situation, doubtless, demanded the application at. the trial of all the safeguards which the law interposed for the-protection of the defendant’s rights, and it is evident from a careful examination of thé case that they were all guarded with vigilance and sedulous care. The case was peculiar and the mode adopted'for proving the charge somewhat unusual. While-in theory and in law there can be no objection to proving a crime by proof of a conspiracy to commit it, yet, in practice, that, method of establishing the issue is liable to give the prosecution an undue advantage. Neither the scope, limits or purpose of the alleged conspiracy, nor the actors in it, are accurately defined by any pleading in the case, and the accused has to meet at the trial a multitude of inculpatory facts claimed to be relevant to the main fact in issue. There is always danger in such cases that the specific charge will be lost sight of and disappear in the mass of collateral facts growing out of other subjects, and that the defendant may be convicted because of other wrongdoing with which he was not charged.

But we think that in this case the learned trial judge kept the real issue constantly and clearly before the jury in the rulings and in the charge. He gave them very clear and careful instructions with respect to the nature and character of the circumstantial evidence which the law required in order to prove the main fact. They were instructed to acquit the defendant unless satisfied beyond a reasonable doubt that he counseled, advised, aided, abetted or procured the inspectors of the first district to do or omit to do the things charged against them in the indictment, even though satisfied that he did advise and procure the inspectors of any or all the other districts to neglect the duty imposed upon them by the statute. And further, that unless the identical charge against the defendant contained in the indictment was established, beyond a reasonable doubt, he should be acquittedr though the evidence in the case might show, or tend to show, some other violation by him of the law, and that the facts and circumstances adduced were to be considered only so far as they had a bearing upon or were relevant to prove the main fact charged. The jury could not have been misled as to the real issue or as to the nature and quality of the circumstantial evidence required to' sustain .it on the part of the People.

The appeal presents no substantial question that would justify this court in interfering with the verdict, and the judgment must, therefore, be affirmed.

All concur. Judgment affirmed.


source: Caselaw Access Project

author: Andrews, Oh. J.

license: Public Domain

text:
    Ann E. Smith, App’lt, v. Mark T. Ferris, Impleaded, Resp’t.

      (Court of Appeals,

      Filed November 27, 1894.)

    Guaranty—Construction.
    Where the owner of a bond and' mortgage guarantees, upon their assignment, the payment of the mortgagé according to its terms until the same shall be reduced to $3,000, which mortgage provides for insurance on the buildings on the premises, the amount received on the insurance, is not to be applied in exoneration of the guarantor’s liability.
    Appeal from judgment of general term of the-supreme court in the third judicial department, entered upon an order, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term and granted á new trial.

      I. W. Wiswall and J. L. Henning, for app’lt; D. M Wing and L. B. Pike, for resp’t.

      Reversing, 53 St. Rep. 605.

   Andrews, Oh. J.

The defendant, Mark T. Ferris, who by assignment had become the owner of the bond and mortgage, sold and assigned the same to the plaintiff, executing at the same time a guaranty to the .purchaser, indorsed on the mortgage, as follows: “I hereby guarantee the payment of the within mortgage according to its terms until the same is reduced to three thousand dolr lars.” The bond and mortgage was conditioned for the payment of $4,000, in sums of $100 of principal annually, together with interest on the whole sum unpaid, with the privilege to the mortgagee to pay any additional sum on the principal, when any payment became due. The mortgage further provided that the mortgagor would keep the buildings on the premises insured for the benefit of the mortgagee, to the amount of $1,000. Subsequent to the assignment of the bond and mortgage to the plaintiff and the execution of the guaranty, the buildings on the premises were burned, and the sum of $1,434 was collected on the insurance, and received by the plaintiff, which reduced the mortgage to $2,700. Default having been made in the payment of a subsequent installment on the mortgage, this action for foreclosure ■ was commenced and the defendant was joined as defendant therein by reason of his guaranty, and judgment was demanded against him for any deficiency, to the extent of his liability thereon. The only question is whether the mortgage has been reduced to $8,000, within the meaning of the-guaranty. It is of course conceded that there is now unpaid on the mortgage only the sum of $2,700. But it has been reduced to this sum by the application thereon of the insurance money. Except for this there would be unpaid $4,000 and upwards. Whether the sum received on the insurance is to be reckoned as a payment on the mortgage as between the plaintiff and the guarantor, and to be applied in exoneration of the guarantor’s liability, depends on the true interpretation of the guaranty. The purpose of the parties to the arrangement is obvious. The plaintiff was willing to purchase the bond and mortgage and look .to the property and the obligor’s liability on the bond and the collateral security against fire, as his resource for the payment of the mortgage to the extent of three thousand dollars. But for the payment of the sum secured by the mortgage beyond that sum, he required, in addition to the other security, the personal guaranty of the defendant. The defendant undertook to this extent to become personally liable. The terms of the guaranty indicated that the parties had in view the reduction of the mortgage by payments made in the usual course. The guaranty was that the mortgage should be reduced by payments, “ according to its terms.” There are no terms of payment specified in the mortgage, except payments to be made by the mortgagor as provided. The payment made by the application of the insurance money was a payment out of the property itself. This insurance money was a substitute pro tanto for the property mortgaged. While the obtaining of an insurance was contemplated between the original parties to the mortgage, the payment on the insurance was not a payment on the mortgage “ according to its terms.” If the construction of the guaranty claimed by the defendant prevails, the -plaintiff is deprived of the security intended thereby. It is true that the mortgage has been reduced by the application of tbe insurance money, below $3,000. But ■ only by the conversion of part of the property into money and the application of the converted fund on the mortgage debt. The property remaining, as may be assumed from this litigation, is now inadequate to pay the balance remaining unpaid. If the mortgage in question had been a second mortgage, and on the foreclosure of the first mortgage a surplus had arisen, applicable on the subsequent security, but insufficient to satisfy it, could it be claimed that if less than $3,000 remained unpaid by reason of such application the defendant was discharged? Wé think such a claim would be wholly unfounded. The case supposed is quite analogous to the present one. The plaintiff is entitled to no relief, not within the fair and reasonable construction of the guaranty. But we think the fair construction of the terms, in view of the purpose of the instrument and the situation of. the parties when the warranty was executed, precludes the theory that the application of the insurance money was a payment which, as between these parties, reduced the mortgage below the stipulated amount: The defendant may, upon payment of the mortgage debt, be entitled to subrogation, or he may protect his interests so far as he can on the sale of the property, but he cannot, we think, upon any principle of law or equity, remit the plaintiff exclusively to the land, and the liability of the obligor in the bond for the payment of the balance of the mortgage.

The judgment of the special term is based upon a true interpretation of the guaranty, and the judgment there rendered correctly defines and limits the liability of the defendant.

The judgment of the general term should be reversed, and that of the special term affirmed, with costs.

All concur. Judgment accordingly.


author: Peckham, J.

text:
    John B. M. Stephens, as Receiver, etc., App’lt, v. Mary J. Perrine et al., Resp’ts.

      (Court of Appeals,

      Filed November 27, 1894)
    1. Chattel mortgage—Filing—Creditors.
    A failure to file a chattel mortgage, where there is no change of possession of the property mortgaged, renders it void as to existing creditors of mortgagor.
    2. Same.
    The mortgagee cannot acquire title by taking possession and selling such property by virtue of such instrument.
    3. Same—Receiver.
    The receiver of the mortgagor, appointed in supplementary proceedings, may maintain an action against such mortgagee, to recover the property or its value.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, which reversed a judgment in favor of plaintiff entered upon the report of a referee and granted a new trial.

      Albert IT. Harris, for app’lt; William B. Hale, for resp’ts.

      Affirming, 53 St. Rep. 261.

   Peckham, J.

The single question argued here has been which of these parties upon the foregoing facts is entitled to judgment. At the threshold of an examination of the subject it may be stated that this mortgage was void as against those creditors who were such at the time it was executed, although at that time they had obtained no judgments in their favor and then stood in the condition of simple contract creditors.

The failure to file the mortgage, there being no change of possession of the property mortgaged, rendered it void as against creditors then existing. Laws of 1833, § 1, chap. 279; Karst v. Gane, 136 N. Y. 316; 49 St. Rep. 740.

The supreme court has reversed the judgment for plaintiff upon the ground that although such mortgage was void even as to existing creditors, yet, as the mortgagee filed her mortgage, and under it took possession of the property mortgaged and sold the same by virtue of it before the creditors represented by the plaintiff had obtained any lien on the property by judgment and execution or by some other legal process, the mortgagee had the right to hold such property or its proceeds against these creditors. The court stated that the creditors, in order to take advantage of this void mortgage by reason of a failure to file it, must not only acquire a lien upon the property by virtue of a levy or other legal process, but such lien must be had before the mortgagee has reduced the property to possession and sold it to satisfy his claim.

In this holding we are of the opinion the court below erred. The mortgage, as to the creditors of the mortgagor, was always void. It continued to be void notwithstanding the fact that the mortgagee assumed to take possession under, and to sell the property by virtue of, such void instrument. As between these mortgagors and creditors, it was the same as if the mortgage did not exist, and the mortgagee could not, as against these creditors, obtain any rights under it. How could a mortgagee in a void mortgage, as against creditors, obtain any title to property by.virtue of such mortgage? As against them the mortgagee could not rightfully take the property by virtue of this void instrument, and if she did take it in spite of the fact that the mortgage was void and no protection to her, how could she secure any further or greater right by the sale of the property and the receipt of its value? This action is against the mortgagee, and I cannot see the force of the reasoning which, while admitting that the mortgage is void as to creditors, nevertheless asserts that a title to the property covered by it may be obtained by the mortgagee by proceedings taken under it and which assert the validity of such instrument, provided they are taken before the creditors are armed with a judgment and execution so as to enforce their rights which rest upon the invalidity of the mortgage. If void, what right has the mortgagee, as against creditors, to take possession in her character of mortgagee and to sell or dispose of property described in it? Clearly she has none, and she does not acquire any by the celerity of her movements in seizing and selling property under it.

Although in order to themselves take the property it was necessary for the creditors to have some legal process, yet, when that condition was complied with, ■ their right to take it as between these parties became perfect.

If, before any lien had been acquired by the creditors, the mortgagors had delivered the property to the mortgagee in payment of her debt, she could have then held it because it would have been in such a case a transfer of property by them in payment of their debt, and although it would have been in fact preferring such debt, yet it would have been a preference which the mortgagors then had the right to make.

But in this case there was nothing of the kind done. The mortgagee acted under and by virtue of her mortgage all the time. The mortgagors did not deliver the property to her in payment of her debt. She took it under the assumed right given by the mortgage.

The language of Ch. J. Andrews in Karst v. Gane, supra, gives no countenance to the claim made in this case. He there said: “The simple contract creditor runs the risk of having his

remedy to assail the mortgage defeated by a bona fide transfer of the property by the mortgagor to the mortgagee in payment of the mortgage before he has obtained judgment and execution or any lien on the property.” This statement is perfectly true, but is no justification for the claim that the mortgagee can herself defeat these creditors by taking possession of the property under a mortgage which as to them is non-existent.

The case of Mandeville v. Avery, 124 N. Y. 376; 36 St. Rep. 338, is to this same effect. The court in that case speaks of the mortgage as fraudulent, and that, therefore, all proceedings under it were void, and that as the mortgagee took possession of the property under such mortgage and caused the property to be sold under it, he could not hold the property or the proceeds of the sale thereof as against a pursuing creditor in regard to whom the mortgage was void. The defendants herein seek to distinguish that case from this, because the mortgage in the case cited was fraudulent, and, therefore, void, while in this case there was no fraudulent intent and the mortgage was only void because made so by statute. The two different causes which make the mortgages in these two cases void work no difference in the result which follows from their illegality. The material fact is that the mortgage is void in each of the two cases as against creditors, and the result which flows from that fact, no matter which of the two causes may be the ground of invalidity, is that the mortgagee can acquire no right as against the creditors of the mortgagor based upon the enforcement of her mortgage by taking possession of and selling the property under it.

In Tremaine v. Mortimer, 128 N. Y. 1; 38 St. Rep. 740, the same principle is maintained, and. Judge Earl, in the course of his opinion, says, in substance, that the mortgagor in a mortgage which has not been filed may, as between himself and his creditors, treat the mortgage as if it did not exist, and before the creditors obtained a lien on the property he may deal with it in any honest way; he may sell it or assign and transfer it and give an absolute title, or he may deliver the property to the mortgagee in payment of his debt. There is no hint, however, either in the facts of that case or in theopinion of the court that the mortgagee in such a mortgage can enforce itas against creditors if only he succeed in obtaining possession of and selling the property under it before the creditors obtain their lien. The counsel for respondents has also cited the two cases • of Wheeler v. Lawson, 103 N. Y. 40, and Kitchen v. Lowery, 127 id. 53; 37 St. Rep. 327, as authority for his argument.

We have carefully read those cases and we think neither applies here. It will be seen, upon a perusal of the facts, that it was the act of the mortgagor, by his general assignment in each of the cases made subsequent to the making of the mortgage, which transferred the title and caused the decision in those cases. There is nothing in either of them that I can see which affords any foundation for the claim that the mortgagee can obtain any superior right over creditors by taking possession of and selling the property under the void mortgage.

If we are right in this view of the case the defendant nevertheless claims that the plaintiff, as receiver in proceedings supplementary to execution, cannot maintain this action. We think he can. Porter v. Williams, 9 N. Y. 142; Mandeville v. Avery, 124 id. 376; 36 St. Rep. 338, and cases cited.

It has been decided by- this court that such a receiver can maintain an action of this nature where the assignment or mortgage is void on the ground that it was executed for the purpose of defrauding creditors, and we think the same principle reaches the case where the mortgage is void because it was not filed and there was no change of possession. (Cases above cited.) We see no distinction between the two cases so far as this question is concerned. The mortgage, as already stated, is equally void in both cases, and a receiver in supplementary proceedings represents the creditors, or, in other words, is trustee for them just as much when the mortgage is void on the ground of the failure to file it as when it is void because executed with a fraudulent purpose. The case of Underwood v. Sutcliffe, 77 N. Y. 58, has, plainly, no bearing upon this point.

We think the defendants failed to make out any defense to this action, and, therefore, the order of the supreme court should be reversed and the judgment entered upon the report of the referee affirmed, with costs in all courts to the plaintiff.

All concur.

Judgment accordingly.


author: Pinch, J.

text:
    John J. P. Read, Resp’t, v. Louis Knell, Impleaded, etc., App’lt.

      (Court of Appeals,

      Filed November 27, 1894).

    1. Assignment—Mortgage—Administrator.
    An assignment of a mortgage by an administrator to a third person, and by the latter to the administrator individually, is not void, but voidable only at the election of the next of kin of the intestate.
    3. Same.
    In an action by such administrator, the mortgagor and his successors cannot controvert the title of the plaintiff.
    Appeal from judgmeut of the general term of the supreme court in the fifth judicial department, entered, upon an' order which reversed a judgment in favor of defendant.

      Adelbert Moot, for app’lt; Edmund P. Cottle, for resp’t.

      Affirming, 53 St. Rep. 343.

   Pinch, J.

The plaintiff brought this action to foreclose a mortgage upon the premises described in his complaint. The mortgage was originally given by one Ambruster to Elizabeth Read, to secure the payment of $1,700, and the mortgagor thereafter conveyed the land to the defendants Knell and wife. Elizabeth Read died intestate, and the plaintiff was duly appointed administrator of her personal estate. As such, and in his official character, he assigned the mortgage to a third person, by whom it was at once assigned back to the plaintiff as an individual, and he in due season brought this action in his own name as owner of the mortgage and not in his official character. Upon that circumstance the special term founded its decision which resulted in a dismissal of the complaint. The ground asserted was that such a transfer from an administrator to himself as an individual was absolutely void, and so the plaintiff had no title to the mortgage which he sought to foreclose. The general term reversed the judgment for that error, holding that the assignment was not void, but merely voidable at the election of the next of kin of the intestate, and that the mortgagor and his successors had no such election and could not themselves controvert the title of the plaintiff. The conclusion of the general term was a correct statement of the law. Hawley v. Cramer, 4 Cow. 719 ; Forbes v. Halsey, 26 N. Y. 65; Harrington v. Brown, 5 Pick. 519. Indeed, on this appeal, I do not understand the learned counsel for the appellant to argue to the contrary, or to defend the abstract rule asserted by the trial court which made the assignment absolutely void, even as against the mortgagor. What is asserted appears to be that the dismissal of the complaint was justifiable, although the assignments are regarded as merely voidable, because of a defect of parties both pleaded and proved. The argument is that, since the next of kin of Elizabeth Read might avoid the transfer, they became necessary parties to the foreclosure, which could not proceed without them. There are several answers to this •claim. It appears that Mrs. Read, the original mortgagee, left as her only next of kin, the present plaintiff, and a sister who died without issue, but is asserted to have been married to one Rockwell, and to have left a will. Whether she was so married and whether she left a valid will, are questions now being litigated in the courts. The surrogate admitted the alleged will to probate, but the general term reversed the decree and sent the questions involved to a jury for trial. There have been two such trials resulting in a disagreement, and there is no.executor or administrator of the sister who could be brought in. Beyond that, the special term proceeded on no such ground, but upon one which made that question totally immaterial and cut off wholly the right of the party, if the court should so determine, to bring in Rockwell on account of his claimed interest in the property. The general term did not decide the question whether there was or was not a defect of parties, but left that open as a question to be litigated upon the new trial which it ordered. Instead of taking the new trial, and raising the question of parties when, for the first time, it became materia], and securing a ruling thereon or an order bringing in Rockwell, the defendants took this appeal, giving a stipulation for judgment absolute. There is no finding that the sister is living, or that she has any representative whatever, because under the view taken by the special term, the inquiry did not arise and was not considered. It is quite clear, therefore, that the general term was right in reversing the judgment and sending the case back for a trial conducted upon correct principles, but without passing upon any possible defense which, under the pleadings, the defendants might have a remaining right to interpose.

The order should be affirmed, with costs, and judgment absolute be awarded against the defendants appealing upon their stipulation. All concur. Ordered accordingly.


author: Finch, J.

text:
    Derastus Swarthout et al., Resp’ts, v. William F. Ranier, App’lt.

      (Court of Appeals,

      Filed November 27, 1894.)

    1. Will—Construction.
    A bequest of property to the wife “ to have and to hold for her comfort and support, if she need the same during her natural life,” confers a life estate, with power to take so much of the corpus• as should be needed for her comfort and support.
    2. Same.
    In such case, a mortgage by her will be presumed to have been executed for such a purpose.
    3. Same—Burden.
    Tiie burden of showing that the mortgage was a sham or á fraud, will rest upon the heirs'at law who assert it.
    4. Same—Cloud on title.
    In such case, the jurisdiction of a court of equity is properly invoked to cancel the apparent cloud upon the title.

      Appeal from order of the general term of the supreme court in the fourth judicial department, entered upon an order which reversed a judgment in favor of defendant, entered upon a deci-. sion of the court dismissing the complaint on trial at special term and ordered a new trial.

      James S. Havens, for app’lt; M. J. Sunderlin, for resp’ts.

       Affirming 50 St. Rep. 814.

   Finch, J.

Darius Swarthout died in 1886, leaving a widow, but no descendants, and having brothers and sisters' surviving, who became and were his heirs at law. He made his will, by the terms of which he gave all his property, real and personal, to his wife, expressing the scope and character of his gift in these words, viz.: “ To" have and to hold for her comfort and support all of the above-named property if she needs the same during her natural lifetime, if she should outlive me." The testator’s meaning is further explained by the language of a subsequent gift to the Baptist church, which reads thus: “Third. My will and desire is that after the death of my wife, Ann Elizabeth Swarthout, 1 will, devise and bequeath to -the Wayne Village Baptist Church one thousand dollars, to be put out at interest, and the annual interest is to go toward the supporting a minister to preach for said church, if there is enough of my property left at the death of my wife.” It is obvious from these provisions that the testator intended the gift to his wife to be something more than a life estate merely, and something less than the absolute fee; and that the widow took a life estate with power to take also and convert to her use so much of the corpus of the estate as she should need to apply to her comfort and support. He comprehended that she might need it all, and so apply it to the permitted purpose as to leave none of it behind her at her death. The language he uses puts a double qualification upon his gift. The widow was “to have and to hold the same * * * during her natural lifetime,” but “ for her comfort and support if she needs the same.” That more than a life estate was intended to be given is inferable from the language in which the gift to the church was made, but an absolute fee was obviously not contemplated although there is no remainder over. The quantity of interest vested in the wife was like that given to the husband in Rose v. Hatch, 125 N. Y. 428; 35 St. Rep. 443, and was a life estate with power to take so much of the corpus as should be needed for her comfort and sup port.

What subsequently occurred was that the widow married a ■second time; that she gave to her husband a mortgage on the estate devised for $3,000 ; that she thereafter died ; that her husband thereupon caused the mortgage to be recorded, and asserts its validity; and that the heirs at law, to whom the real estate descended, have brought this action to set aside and cancel the mortgage as a cloud upon their title, and that they have obtained judgment accordingly, from which the mortgagee brings this appeal.

His attack is solely upon the asserted equitable jurisdiction, assuming, as we hold, that his wife did not take the absolute fee. At special term the complaint was dismissed upon the pleadings, and upon the ground that, taking as true all its allegations, there was no cloud upon the title, and no need or occasion for equitable relief. The reason for the decision was undoubtedly that, in the judgment of the court, the mortgage was void upon its face, and could only be supported, if at all, by proof of extrinsic facts, and that the party claiming under it could not enforce it without disclosing the defect which made it invalid. The general term reversed the j udgment, holding the contrary doctrine, arguing that the mortgage was not void on its face, and that it could be enforced by the mortgagee without need of a disclosure of the extrinsic facts rendering it invalid.

"We are of opinion that the general term decided correctly, and that in an action by the mortgagee to foreclose, or, after getting the title, in an action for the possession, the presumption would be, in the absence of proof of the extrinsic facts, that the conditions upon which the wife could lawfully have executed the mortgage existed, and that the burden of showing the contrary would rest upon those who assailed the transaction. The will gave the wife power to exhaust both the real and personal estate if needed for her comfort and support. In that event she was at liberty to sell the whole real estate and use the proceeds for her support. Instead of selling she could mortgage and appropriate the proceeds in the same manner. When she gave this mortgage she either honestly needed its proceeds and did what she had a right to do, or she committed a fraud, and perpetrated without authority an illegal act intended to injure the heirs at law. Fraud and illegality are not to be presumed without proof. Where execution of the mortgage might have been lawful and effective there is a presumption in its favor if the contrary requires us to presume fraud. The widow knew what she needed for her comfort and support. If she collected a. note or sold a horse and spent the proceeds, and no further facts were shown, I think we should not presume that she exceeded her right, and so defrauded the next of kin. Where the truth of representations is a condition precedent to the liability of an insurer, the insured is not bound to prove the truth in the first instance, but may stand upon the presumption of innocence. Cole v. Germania Ins. Co., 99 N. Y. 42. Where a guardian executed a release under seal, which in certain contingencies he might lawfully have done, the burden of impeaching it was'thrown upon the ward. Tony v. Black, 58 N. Y. 190. The law presumes that every man in his private and official character does his duty, and even acts done by a corporation which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter. Bank of U. S. v. Dandridge, 12 Wheaton, 70. Following the analogy of these cases and many more like them, I think the mortgagee could stand upon his mortgage or a title dei’ived therefrom without proof of the needs and the good faith of the wife, and that the burden of showing by extrinsic proof that the wife did not need the money, and that the mortgage was a sham or a fraud, would steadily rest upon the heirs at law who asserted it. For the hus-. band put all the property in his wife’s hands, and under her control, giving her a broad power and authority. He committed its preservation or exhaustion largely to her judgment, and while that judgment may not be conclusive we are bound to respect it and uphold it until evidence is given that it was exercised in bad faith and fraudulently as against the heirs at law. The burden is on them to prove the extrinsic facts. The mortgage is not void on its face: it can only become s© by the operation of extrinsic proof.

The case, therefore, was one in which the jurisdiction of a court of equity to cancel the apparent cloud upon the title of the heirs at law could be properly invoked.

The order of the general term should be affirmed, and judgment absolute rendered against the defendant upon his stipulation.

All concur.

Ordered accordingly.


text:
    Esther C. Townsend et al., App’lts, v. Joshua Rackham et al., Resp’ts.

      (Court of Appeals,

      Filed November 27, 1894.)

    1. Contract—Promise for benefit of third person.
    A promise, made for the benefit of a third person, in the absence of any liability of the promisee to him, cannot be enforced by him.
    2. Deed—Delivery.
    The record of a deed, though it may with other facts afford a presumption, is never conclusive evidence, of a delivery by the grantor to the grantee.
    3. Trust—Creation.
    The court held that the various mortgages did not establish the slightest intention or desire, on the part of any of the parties, to create a trust.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order which affirmed a judgment in favor of defendants entered upon a decision of the court dismissing the complaint on trial at special term.

      Henry W Davis, for app’lts; George Bullard, for resp’ts.
   Peckham, J.

The plaintiffs brought this action to foreclose seven mortgages executed by some of the defendants at different times upon the same premises. The defense of payment was set up and has thus far prevailed. By the will of one Mathias Brown, which was duly proved September 22, 1857, Catharine Farnham became the owner of a farm of 150 acres of land. She was then 78 years of age. On the 26th of the same month she conveyed the same farm to Almeron C. Wilson and Valentine A. Wilson,'two of her grandchildren, and took back from them a mortgage on the same premises. The condition stated in this mortgage was as follows: “ This grant is intended as a security for the payment of the following sums of money, to wit: $75.00 on the first day of January and $75.00 on the first day of July in each and every year thereafter during the natural life of the party of the second part, to be paid to the party of the second part at the homes of the said parties of the first part, in the town of Carlton.

“And the further sum of $1,500 to be paid as follows: $1,000 to Maria Leach or her heirs five years from the death of the said party of the second part, and $500 to be paid to Esther C. Lutts five years from "the death of the said 'party of the second part (the several sums herein mentioned' are for the purchase money of said premises). And as further consideration to these presents it is agreed between the parties that in addition to the sums above mentioned and agreed to be paid the said parties of the first part agree to and with the party of the second part to provide her, the said Catharine Earnham, at their home or homes, at all times when she may choose during her natural life, and provide for her board and all necessary clothing, and all things necessary and proper for her comfort and support during her natural life.

“And this conveyance shall be void if such payments be made as herein specified, and in case default shall be made in the payment of the above sums hereby intended to be secured or any part thereof, or in case default be made in providing for and taking care of the party of the second part as above provided, it shall be lawful for the party of the second part, her executors, administrators or assigns, at any time thereafter, to sell the premises hereby granted, or any part thereof, in manner provided by law, and out of the moneys arising from such sale to retain the amount then due, together with costs and charges of making such sale. Or in case default during the lifetime of the said Catharine Earnham shall be made in any of the above conditions the party of the sécond part may re-enter and take possession of the above described premises and declare this obligation void.”

The Maria Leach named in the above mortgage was the sister, while Esther 0. Lutts, was one of the grandchildren of the mortgagee, Catharine Earnham.

On the 12th of October, 1857, this mortgage was satisfied by the mortgagee, and a satisfaction piece was duly recorded. On the 13th of October, 1857, the same mortgagors executed and delivered to the same mortgagee, another mortgage on the same premises, with the condition therein substantially the same as in thé first mortgage, with the exception of some slight alteration as to the terms upon which the clothing and support of the mortgagee were to be given, which was stated to be while she was living with the mortgagors. Thereafter, between October 15, 1858, and the time of her death, there was a series of conveyances of this farm to and from Catharine Earnham and the grantees in the first named deed, or to their wives in one form or another, and there was also a series of mortgages executed by the grantees in the deeds, each of which mortgages contained substantially the same condition as the first mentioned one, varying sometimes in the amounts and times of payment, excepting that the last mortgages left out the condition as to the payment of any money whatever to either Maria Leach or Esther C. Lutts. The referee found that the mortgages, up to the last one in which the sister and grandchild was left out, and in which they had no interest, had all been satisfied in their order, and the satisfaction pieces duly recorded, and that each subsequent mortgage was intended as a substitution for the preceding one which was satisfied by Catharine Earnham. He also found that she took the various mortgages upon the understanding and belief that the whole arrangement was testamentary in its character and in the nature of a will; that she retained possession and control of the various mortgages until new arrangements were made upon good consideration passing to her, and then she- duly satisfied such mortgages and received others in their place. He further found that neither Maria Leach nor Esther Lutts bad arly knowledge or took any delivery of or in any manner accepted or assented to any of the mortgages mentioned in the complaint, or any of the provisions in any of the mortgages providing in any way in their favor prior to the satisfaction of such mortgages.

These are the mortgages to foreclose which this action is' brought, and the plaintiffs claim, as representing the interests of Maria Leach and Esther C. Lutts, that the amounts named in each of the mortgages in their favor are now due the plaintiffs, and that as to them there has been no satisfaction of any one of such mortgages. Although there is no question that Catharine Earn-ham signed the satisfaction pieces of the various mortgages and intended thereby to satisfy them, yet the contention is that, after she had taken the first mortgage with the condition as to the payment of the moneys to Maria Leach and Esther Lutts, she never had the power to thereafter satisfy that mortgage or any subsequent one so far as the payments to them were concerned, and the plaintiffs insist that each mortgage subsequent to the first, instead of being a substitution for its predecessor, became security for the payment of the sum mentioned in the mortgage in addition to the amounts mentioned in the earlier instruments. If this be the true state of the case, the payments provided for Maria Leach and Esther 0. Lutts have grown from the amounts mentioned in the first mortgage, $1,000 and $500 respectively, to the total sum of $6,-750, together with interest from August 20, 1883, that date being years after the death of Catharine Earnham. It seems to us to be a very plain case against the plaintiffs.

They urge that the condition in these mortgages amounts to a promise made by one person to another for the benefit of a third, and that such third person can enforce the liability thus created.

There are, as it seems, many answers to that position.

Catharine Earnham, at the time of the first deed from her to the grantees therein named, was the owner in fee of the farm therein conveyed. The mortgage given back to her was security for the purchase money of the farm. There is no evidence that she ever owed a penny or was under any pecuniary obligation to her sister or granddaughter named in the mortgage which she took back. As there was not a particle of proof of such a fact, the promise (assuming one was made) of her debtors made to her to pay money to a third person to whom she owed no debt, and was under no legal liability, was not such a promise as could be taken advantage of by that third person. Again, the form of the conditions in these various mortgages, and the actual dealings between the parties to them, as evidenced by the records of the several deeds and mortgages, afford an overwhelming presumption that the provisions for the payments to these ladies after the death of the mortgagee, Catharine Farnham, were in their nature testamentary, amounting to nothing more than a legacy or gratuity given by or coming from the mortgagee, and the whole conditions of the various mortgages were obviously subject to alteration at any time by the assent of the parties thereto.

The doctrine of Lawrence v. Fox, 20 N. Y. 268, and the subsequent cases can furnish no ground for sustaining the right of the plaintiffs to maintain this action. In none of them is there an intimation that the action could be sustained by the third person in the absence of any liability in his favor due or to grow due from the one to whom the promise was made. In Gifford v. Corrigan, 117 N. Y. 257; 27 St. Rep. 233, Judge Finch reviews the subject and cites the various authorities, and states the grounds upon which the liability has been placed. To maintain the action by the third person there must be this liability to him on the part of the promisee. Plaintiffs claim that the existence of these mortgages, their record in the clerk’s office, and the beneficial nature of the provisions therein for those third parties, form proof enough of a delivery of the mortgages to them and their acceptance of the provisions in their favor, and that hence those provisions could not be altered without their consent.

Finding upon the records a deed from one party to another is not always evidence of a delivery' by the grantor .to the grantee. Taken with other facts it might afford a presumption, but it is never conclusive evidence as claimed by counsel for plaintiffs. Gifford v. Corrigan, 105 N. Y. 223-227; 7 St. Rep. 7. But we have a finding founded upon evidence that the mortgages were delivered to Catharine Farnham and that she alone had possession of and controlled them, gave them up, satisfied them and took others in their stead. There is no admission in the answer to the contrary. The plaintiffs alleged that the discharges of these mortgages were made without the knowledge or concurrence of Maria Leach or Esther Lutts. This allegation in the complaint was denied in the answer, and upon information and belief it was alleged that each knew of the making and execution of these satisfaction pieces. This is no admission, and the finding is that they did not know of or consent thereto, the further finding being that they knew nothing of the existence of the mortgages themselves. Nor do these various mortgages constitute a trust for Maria Leach and Esther Lutts. A perusal of each or all of them induces a clear belief on our part that there was not the slightest intention or desire to create a trust on the part of any of the parties to these mortgages. In that respect and in others they are different from the case of McPherson v. Rollins, 107 N. Y. 316; 12 St. Rep. 488, cited by counsel. In that case the purpose was to make a provision for the present maintenance of the mortgagee’s daughter and two grandchildren, and it was, therefore, provided that certain payments should be made by the mortgagor at once, and should be continued to be made by her periodically during a certain time. We held it was apparent that a trust in favor of the grandchildren was intended, which could not be satisfied by the mortgagee therein. The case, of Martin v. Funk, 75 N. Y. 134, was cited to sustain that decision.

Here, however, we have a case where, in the writings themselves, there are no appropriate words creating a trust in the language of the instruments, and the surrounding circumstances are clearly such as to prevent any implication of an intention to create one. By the surrounding circumstances I mean the repeated changes made by the parties in these various deeds and mortgages, which, coupled with the language used in all of the mortgages, conclusively point to these provisions in favor of these ladies as being simply testamentary in their character. Upon this view it was immaterial whether it was error to admit evidence as to the oral statements of the attorney and Catharine Farnham when he was called to make a will for her. The various instruments themselves lead to the same conclusion, and hence no harm has been done if there were this error, which, however, we do not intimate or decide.

The judgment should be affirmed, with costs.

All concur. Judgment affirmed.

      Affirming; 51 St. Rep. 872.


author: Gray, J.

text:
    In the Matter of the Appraisal, under the Legacy and Inheritance Tax Act, of the Property of Frank Linsly James, Deceased.

      (Court of Appeals,

      Filed November 27, 1894.)

    1. Tax—Collateral inheritance.
    The tax, under chap. 713 of 1887, is laid only in the case where the property of the non-resident decedent within the state passes to a legatee, who is a collateral relative or stranger in blood.
    2. Sam*.
    Where the decedent leaves property in his place of domicile and in this state, the executor may pay such legacies from the foreign estate, and thus save the American estate from the burden of the special tax.
    3. Same.
    It is for the executor, and not for the officers of the state, to determine which part of the testator’s property shall be appropriated to the payment of such legacies.

      4. Same.
    The act of 1887 was not intended to reach, for purposes of taxation,, any personal property that was not within the state, either in fact or because of the domicile here of its owner.
    5. Same'.'1'
    The legal situs of share certificates of a foreign corporation is where the. corporation exists, or where the shareholder has his domicile.
    Appeal from order of the general term of the supreme court-in the first judicial department, which reversed an order of the surrogate of the county of New York, affirming an appraisal of the assets of the property of Frank Linsly James, deceased, under 'chap 713, Laws of 1887, and granted'a new hearing.

      Edward S. Kaufman, for app’lt; Edward M. Shepard, for resp’t.

       Affirming 59 St. Rep. 768.

   Gray, J.

At the time of his death in Africa, in April, 1890, the testator was a citizen of the Kingdom of Great Britain and was there domiciled. By his last will, which he had made at the-place of his domicile, he disposed of a very large estate. He left property in Great Britain, which was valued at $477,630, and property in this country, which was valued at $2,303,472.53. He gave legacies to collateral relatives and to charities which, in the aggregate, amounted to $236,810. The residue of his estate was given to his executors, upon trusts for the benefit of his two brothers. The charitable bequests were to foreign corporations and the persons, to whom legacies were given, were residents of Great Britain, with the exception of two, who resided in this country, though where does not appear. He left no debts here His will was proved in England in June, 1890, and, afterwards, as-the result of an action brought in the courts of this state by the executors, was established here and letters testamentary were issued thereon to John Arthur Jones, one of the executors named and also a resident of Great Britain. He applied to the surrogate of the county of New York for the appointment of an appraiser, for the purpose of an appraisement, under the law of this state imposing a tax upon gifts, legacies and collateral inheritances. Besides the facts which have been stated, it appeared that by the will all of the legacies were to be paid within three months of the testator’s death, free of duty; that a portion of the amount given in legacies had already been paid in Great Britain, •out of the estate there, together with the duties imposed on legacies by the law of that country and that the property in this country consisted, among other things, in'the stock and bonds of corporations of this and other states; which securities were deposited in this state at the time of testator’s death. The surrogate, finding that the value of the estate here amounted to .82825 per cent, of testator’s whole estate, decided that the legacies given by the will were liable to taxation, under the law, on the basis of that percentage and he, also, held that, in valuing the assets of the estate here, there should be included the stock and bonds of the foreign corporations. Upon appeal to the general term of the supreme court, the decree of the surrogate was. reversed in those' respects and the rulings referred to present the questions for our consideration, upon this appeal.

The act in force at the time, which imposed a tax on gifts, legacies and collateral inheritances, is contained in chapter 713 of the Laws of 1887. By the first section, it was provided that “all property which shall pass by will, or by the intestate laws of this state, from any person who may, die seized or possessed of the same while a resident of this state, or if such decedent was not a resident of this state at the time of death, which property, or any part thereof, shall be within this state, * * * • shall be and is subject to a tax of five dollars on every hundred dollars of clear market value of such property, etc.”

The change in the existing law, which the passage of this act effected, was to impose a succession tax, with respect to the property of non-resident decedents, which should be within this state. As the law stood before, under the act of 1885, it could not be gathered from its language that the legislature intended to impose a tax upon property in this state passing from non-resident decedents and the act of 1887 was, undoubtedly, passed in order to comprehend such cases. Matter of Enston, 113 N. Y. 174; 22 St. Rep. 569. Under its provisions, the question of the residence of the deceased owner, and of the legatee, or of the collateral kindred, is, of course, of no materiality. It is the property of the decedent which is sought to be subjected to the tax. The right of the state to impose the tax is based upon its dominion over what property is situated within its territory. If the property consisted in personalty, its legal situs, although it, in fact, existed elsewhere than in the state, would follow the domicile of its owner and thus, if he were a resident of the state, become subject to taxation there. Another clear inference from the language of the amending statute, is, in our judgment, that the tax is laid only in the case where property of the non-resident decedent within the state passes to the legatee who is a collateral relative, or stranger in blood. Having, by the previous act of 1885, imposed a succession tax with respect to the property of residents of the state, the legislature added by amendment a further provision, which imposed the same tax with respect to any property of non-residents, that should be within the state and that should pass to persons or corporations, not excepted by the statute. That is to say, the property of non-resident decedents was not subjected absolutely to the tax, except where it, in fact, passed to the person, or corporation. In the present case, the property, which the testator died possessed of in Great Britain, is largely in excess of the amount given by him in legacies.. Some portion of them has already been paid from the English estate and the executor has declared his determination of appropriating that part of the testator’s property to their payment; so that the American estate shall constitute the residuary estate, disposed of by the will in favor of the testator’s brothers. This he may rightly do and thus save the estate from the payment of the succession tax imposed by our laws. The fact of such an appropriation will, of course, appear upon his accounting. If the executor determines to pay the legacies from the English estate, the American estate is, thereby, freed from the burden of the special tax; the imposition of which depends upon the fact of a succession by the legatee to some property which is within the state. Is the American estate is appropriated to persons who are within the excepted degrees of relationship to the testator, the right to claim the tax from the executor is gone. It does not lie with the officers of the state to say, in such a case, which part of the' testator’s property shall be appropriated to the payment of the legacies. The law is not arbitrary in its application. It is simply absolute in its requirements when the precise case arises, which it was framed to meet; and where, as here, the case is not presented of an appropriation of any part of the American estate in payment of the legacies to the foreign legatees, this special tax law cannot and should not apply. To this view we are all the more disposed because, to hold otherwise, might be to subject this estate to taxation both in Great Britain and in this state. Such a result of a double taxation is one which the courts should incline to avoid, whenever it is possible, within reason, to do so.

This conclusion would seem to render further discussion unnec-. cessary ; but in view of the importance of the ruling of the courts below upon the question of whether stocks of foreign corporations should be included in the valuation of testator’s estate, it may be proper to express our judgment further. We do not think it was the intendment of the act of 1887 to reach, for purposes of taxation, any personal property that was not within the state, either in fact, or because of the domicile' here of its owner. The reading of the act does not authorize us to construe it as an effort to tax that over which there was no jurisdiction, and it would be highly improper to impute to the legislature such an intention. The stocks of foreign corporations, which formed part of this estate, were not property in the legal sense. The share certificates which the testator held, represented the interests which he possessed in the corporation which issued them, and the legal situs of that species of personal property is where the corporation exists, or where the shareholder has his domicile. We so held iu the Easton Case, supra, and the act of 1887 furnishes no evidence of any intention to change the policy of the law; which has regarded the stocks of foreign corporations as being taxable only in the place of the owner’s residence, or in that of the corporation’s. In Matter of Romaine, 127 N. Y. 80; 38 St. Rep. 76, nothing was decided to the contrary of this view. The property of the non-resident' decedent, in that case, which was held to be liable to taxation, was stated to be a mortgage upon real estate in the city of New York; deposits in savings banks in that city and stocks and bonds of different corporations, but whether domestic, or foreign, it was not made to appear. The appellant, in substance, argues that the provision for a tax on “ property * * * within this state,” which the act of 1887 contains, shows that the legislature intended to include as property, for purposes of taxation, in the estate of a non-resident decedent, evidences of property like certificates of stocks ; but, without discussing the power of the legislature to do any such thing, we think that he is straining construction and importing a sense in the word “ property,” which the law has not attached. Both in Matter of Swift, 137 N. Y. 77; 50 St. Rep. 81, and in Matter of Merriam, 141 N. Y. 479; 57 St. Rep. 593, the testator was a resident of the state, and we held that certain personal chattels without the state, in the one case, and the stocks of foreign corporations, in the other case, should be included in the appraisement of the estate for purposes of taxation. The decision in each case, of course, rested upon the theory that the legal situs of the personalty could be regarded as at the owner’s domicile.

The object of the act of 1887 was to bring within this scheme of taxation any property within the state, left by non-resident decedents. That is its obvious office and we}are not disposed to give, as against the executor, any stricter construction of this act, which imposes a special burden of taxation, than what its fair and ordinary reading compels. Neither the context, nor the object which the act was apparently designed to accomplish in amendment of the previous act of 1885, requires that its words should be construed in a sense different from the ordinary one; that when property within this state passes from non-resident decedents, in certain cases, it shall be subject to the tax specified in the act.

The order of the general term should be affirmed, with costs.

All concur Order affirmed.