author: INGRAHAM, J.

text:
    Edward H. Van Ingen, Resp’t, v. The Star Company, Impleaded, etc., App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’ry 7, 1896.)

    1. Libel—Bribery.
    To charge a person with raising a large sum of money to be used for tlie purpose of “buying votes” and “debauching the ballot,” and “other dishonorable expedients” to bring about the election of a candidate for office, charges him with the commission of a crime.
    2. Same—Malice.
    The fact that a publication is made without any attempt to ascertain its correctness, will justify a jury in finding that the publisher committed the libel with a wanton and reckless indifference and actual malice sufficient to sustain exemplary damages.

      3. Same—Absurdity of charge.
    In such, case, the right to recover exemplary damages is not affected by - the fact that the charge was so ridiculous upon its face that none of the friends of the plaintiff could believe it to be true.
    4. Same—Damages—Mental suffering.
    Before the jury would be justified in awarding exemplary damages, they must find from the evidence in the case that actual malice existed.
    5. Same.
    In determining the amount of damage, where publication is libelous per se, the jury has the right to consider the mental suffering which may have been occasioned to the plaintiff by the publication.
    Appeal from a judgment entered on a verdict in favor of plaintiff.
    John Notman, for app’lt; Walter S. Logan, for resp’t.
   INGRAHAM, J.

--This is an appeal from a judgment entered ona verdict of the jury in favor of the plaintiff for $1,500. No motion was made for a new trial, and the case before us now is an appeal from that judgment, and presents.questions arising only upon the exceptions taken on. the trial. The action is for liable, the appellant being the proprietor of a newspaper published in the city of New York, called “The Morning Advertiser.’’ On the morning of November 7, 1892, this newspaper published what purported to be a telegram from London, which, in effect, charged the plaintiff with being at the head of a movement to raise an enormous corruption fund among English exporters, manufacturers, and merchants, to be used for the purpose of “buying votes and other dishonorable expedients to bring about the election of Mr. Cleveland” as president of the United States. There was nothing uncertain in the charge made against the managers of this alleged scheme, of which this plaintiff was said to be at the head. The money that had been raised by the plaintiff and those associated with him was not to be used in the legitimate expenses of the campaign, but to “ buy votes and other dishonorable expedients,” and in “debauching the ballot.” At the close of the testimony, the de'fendant asked the court to direct a verdict for both of the defendants. The motion was denied, and an éxception taken, and the appellant now asks the court to reverse this judgment, upon the broad ground that the publication was not libelous per se; that to charge a person with raising a large sum of money to be used for the purpose of “ buying votes ” and “ debauching the ballot,” and “other dishonorable expedients” to bring about the election of a candidate for office, is not charging him with the commission of a crime, or of an áct which would tend to bring him in dishonor and disrepute. The editor of this newspaper testified that he did not consider this an outrageous charge; that he did not regard it as the charge of an infamous crime; that he did not consider an attempt to raise money in England to buy the American presidential election an infamous crime ; that-he did not consider that such a charge made against the plaintiff reflected upon him; and that it did not reflect upon the plaintiff’s honesty and integrity.

The legislature has provided, by subdivision 6 of section 41p of the Penal Code, that “ any person who advances or pays or causes to be paid, any money, or other valuable thing, to or for the use of any other person, with the intent that the same, or any part thereof, shall be used in bribery at any election, * * * is guilty of an infamous crime, punishable by imprisonment for not less than three months nor more than one year.” And, although this section was enacted in 1894, the substance of the provision has been for many years the law of this state; for, by section 4 of title 7 of chapter 130 of the Laws of 1842, it is provided that, if any person shall by bribery, menace or other corrupt means or device whatsoever, either directly or indirectly, attempt to influence any elector of this state in giving his vote or ballot, or deter him from giving the same * * * such person shall be adjudged guilty of a misdemeanor and shall be fined or imprisonecl" And the general course of legislation of late years has recognized the increasing danger to our form of government in the use of large sums of money to influence elections, and, by increasing the stringency of the provisions against it, and by increasing the punishment for a violation of these provisions, has attempted to prevent such use. No greater crime against the state could be charged than that of being at the head of a movement the object of which was wholesale bribery and corruption, and to attempt to influence by bribery the course of an election of chief magistrate of the country. No attempt is made to justify this charge, and and the defendants stand here, having made this charge against a private individual of irreproachable character, occupying a high position in the mercantile community, without a shadow of foundation, making no effort to ascertain the truth, reckless of the consequences, intent only on gaining an advantage for the party with whom it was in sympathy, and entirely regardless of the effect of the publication upon the individual. It is difficult to conceive of ■a much more serious charge against such an individual than the present. The publication was plainly libelous per se, and, upon the proof, the plaintiff was entitled to a verdict.

The defendant took many exceptions to the charge to the jury, and two or three of them require notice. The charge, under proper instructions, left it to the jury to say whether or not there was actual malice, and the jury was instructed, in case they found actual malice, they could give exemplary damages. To that the defendant excepted, and here claims that there was no evidence to justify the jury in finding the actual malice sufficient to authorize exemplary damages. But here the nature of the publication, without any attempt to ascertain its correctness, would justify a jury in finding that the defendant committed the libel with a wanton and reckless indifference, and with actual malice sufficient to sustain exemplary damages. Samuels v. Association, 9 Hun, 294 (dissenting opinion adopted by the court of appeals, 75 N.Y. 604).

To charge a private individual, attending to his business in the ordinary way, with the commission of such a crime, without investigation, is certainly not a proper regard for the interest of the individual-, and the argument urged upon us, that the defendant sustained no damage, because such a charge was so ridiculous upon its face that no friend of the plaintiff would believe it for a moment to be true, should have been considered by the editors o£ this newspaper before publishing it to the world as a fact.

The distinction between malice implied, as a matter of law, upon the publication of a libel per se, and the actual malice the existence of which the jury must find before they can award ex-planary damages, was clearly stated to the jury, and they were correctly instructed that the nature of the publication itself, and the circumstances under which it was published, could be considered by the jury in determining whether or not such actual malice did exist, but from that, and the other evidence in the ease, they must affirmatively find such actual malice, before they would be justified in awarding exemplary damages. It is well settled that, in determing the amount of damage, where a publication is libelous per se, the jury has the right to consider the-mental suffering which may have been occasioned to the plaintiff bv the publication. See 13 Am. & Eng. Enc. Law, 445, and cases-cited in notes 2 and 5.

We have carefully read over the charge of the court, and think it was as favorable to the defendant as the facts justified. Some phrases, taken alone, might be criticised, but we must remember that the charge was relating to this specific publication,which was libelous per se. So, when the court speak of the inference of malice, and that the said inference is irrebuttable, it is alluding to this particular libel charged, and the meaning evidently was that in such a publication, the jury were bound to infer malice, so as to entitle the plaintiff to a verdict for at least nominal damages, and that was undoubtedly correct.

The refusal of the court to charge several of the requests proposed by the defendant was based upon the fact that' the substance had already been covered by the charge as delivered. As to the exception taken to the word “retribution," in the charge, as relating to the amount of damages that the plaintiff is. entitled to as compensation for the wrong, the context shows that that word was used, not in relation to punishment, but to the fixing by the-jury of such a sum of money as will furnish the plaintiff a fair and just compensation for the wrong. Taking the charge as a whole, we think it as favorable to the defendant as the ease would justify, and that the defendant has no ground for complaint. The exceptions taken to the evidence seem to be immateral. The judgment should therefore be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: PER, CURIAM.

license: Public Domain

text:
    Asa Cheney, App’lt, v. Oscar F. Price et al., Resp’ts.

      Filed October 16, 1895.)

      (Supreme court, General Term, Fifth Department,

    1. Wills—Action to determine validity.
    In an action brought under the authority of chapter 591 of 1893, the issue is limited to the question whether the writing produced is, .or is not. the last will of the'testator.

      3. Same—Competency.
    A testator, who has sufficient memory to collect, in his mind, without prompting, the particulars or elements of the business to he transacted, ’and to hold them in his mind a sufficient length of time to perceive, at least, their obvious relation to each other, and he able to form some rational judgment in relation to them, is, within the meaning and intent of the statute of wills, a person of sound mind and memory and is competent to dispose of his estate by will.
    3. Same.
    It is not essential to the validity of his act that he he possessed of the vigor and resolution of mind and body that he possessed in prime of life, hut simply that he had sufficient memory and judgment upon the occasion of making the instrument to make it his deliberate and intelligent act.
    Appeal from a judgment entered on a verdict in favor of defendants.
    Bootey, Fowler & Weeks, for app’lt; Eleazer Green and Frank W, Stevens, for resp’ts.
   PER, CURIAM.

—Judgment affirméd, with costs, on opinion of LAMBERT, J., at circuit

The opinion of Mr. Justice LAMBERT at circuit is as follows:

“Spencer Cheney executed a paper writing February 1, 1892, as his last will and testament, and thereafter died on the 20th of April of the same year, by the terms of which he gave to the defendant association $4,000, and the balance of his estate was left to be governed by the laws of descent and distribution. The estate consisted of $20,000 personalty and $7,000 in realty. The plaintiff and the defendants Cheney were the brothers and only heirs at law and next of kin of the deceased. The instiument was offered for probate in the surrogate’s court, and the heirs at. law filed objections to its probate on the ground of incapacity and undue influence. Such proceedings were had that thereafter, and on the 30th of November, 1892, the instrument was admitted to probate in the surrogate’s court of Chautauqua county asa will of real and personal property. In December following this action was brought, under the authority of chapter 591 of the Laws of 1892. By this statute the issue is limited to the question whether the writing produced is or is not the last will of the testator. While this statute defines and limits the inquiry in the action, it. was not intended to change the condition's under wiiich a person is permitted to make a testamentary disposition of property by the Revised Statutes, providing that all persons, except idiots, persons of unsound mind, and infants, may devise real estate, and males upwards of eighteen years may bequeath personal estate (2 Rev. St. pp. 56, 60), so that, notwithstanding the provisions of chapter 591 of the Laws of 1892, under which the action is brought, the range of inquiry, measure of capacity, and freedom of action, as defined by the Revised Statutes and interpreted by the courts, is to prevail ir. reaching a determination of the isspes made in this action. There is no claim made, nor could there well be under the proof taken, that the deceased, at the time o£ the execution of the instrument in question, or at any other period in his lifetime, was suffering from the infirmities of idiocy so, that the issue is narrowed to the question whether the testator, at. the time of the execution of the will in question, was a person of sound mind, and was acting free from restraint and undue influence. Within' the meaning of the term ‘unsoundness of mind,’ as mentioned in the statutes, the various phases of mental conditions, as defined by the terms ‘insanity,’ ‘mental derangement,’ •‘unsoundness,’ and ‘monomania,’ are held by the courts to be within the range of inquiry in determining whether or not a person at the time of executing an alleged will" was a person of ‘unsound mind.’ These terms are of such variable significance that their value in any given case will depend entirely upon the rehv .tion that they bear to the particular person, in connection with the particular act under inquiry. They simply represent or describe a sliding scale of mental disorder or enfeeblement, expressing different degrees of determination or its absence, mental ability or its absence. The precise line where disability or incapacity commences cannot be defined by the courts by an unvarying rule and for that reason each case is tested in the light of general rules by the proof and circumstances attending it From the multiplicity ■of decisions in this state upon this subject that have gone into the Reports, one general rule seems to have been so formulated in a decision of the court of appeals as to have met with favor by the courts pronouncing judgment in cases of this character. That definition of the law is as definite as the subject will admit of, and it seems to have been adopted by counsel on either side of this controversy as the basis upon which their conclusions rest in the disposition of this case. In Van Guysling v. Van Kuren, 35 N. Y. 70, Smith, J., speaking for the court, used this lanugage: ‘He must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive, at least, their obvious relations to each other, and be able to form some rational judgment in relation to them. A testator who has sufficient mental power to do these things is, within the meaning and intent of the .statute of -wills, a person of sound mind and memory, and is competent to dispose of his estate by will.”

“With this rule in mind, we come to the question whether or ■not the writing produced is or is not the last will of the testator; .and. the solution of that question depends on whether the testator was of sound and disposing mind and memory at the time of the •execution of the instrument, and whether the will itself is the free and uninfluenced act of the testator. The deceased was about sixty-eight years of age, had lived in the township in which he •died nearly all his life, and had never married. A short time before the loth day of December, 1891, he had a fit of apoplexy, which finally resulted in partial paralysis.- He had been all his life an active, intelligent, and industrious man, giving personal attention to the details of his business, which consisted in running a farm, loaning money upon securities, making investments, and collecting interest accruing from the same; was reticent respecting his business affairs to a remarkable degree; was a person of determined will, and positive in his opinions; on friendly terms with his relatives, consisting of his three brothers and their families, although they knew little about the details or nature of his business transactions; was a genial and social person with those of his acquaintance, but, having occupied rooms alone, had contracted the habit of reticence respecting his business affairs.' His affliction, which occurred shortly before the 15th day of December, 1891, was first manifested by substantial unconsciousness, and later by inability to articulate so that he could not be understood without great difficulty, and had a changed expression and inability to move about. The evidence discloses that he rallied to a certain extent within a few days after the attack, and that the disturbance of the vocal organs was less perceptible at periods up to within a short time before his death, which occurred on the 20th of April, 1892. It is fairly to be inferred, giving credit to the evidence of each and every of the witnesses who testified upon the trial, that on some days he could converse with greater ease and facility than on others. It is equally clear, from the undisputed evidence in the case, that after the deceased suffered this affliction in December he did not give the attention to the transaction of his business that had been his habit before; that in conversation with others he did not evince the interest in social affairs that he previously had; did not attempt to lead in conversation, or introduce any subject as a topic of conversation with those with whom he came in contact. There was a noticeable and pronounced change in his life, so far as the same could be evidenced by his manifestations towards others and himself. Nearly all of the witnesses, including the doctor in attendance during his sickness, advanced the opinion, based upon the circumstances attending interviews had with the deceased, and his manifestations, that his conduct, acts, and sayings impressed them, as irrational. The doctor in attendance advanced the general opinion, from observance made at various times during his attendance upon the testator, that he was a person of unsound mind, and was incompetent to transact any business requiring consideration and judgment. Upon the established existence of the facts narrated, the plaintiff contends that the paper writing produced is not the will of the deceased, for the reason that at the time he executed it he was not of sound and disposing mind and memory. The material inquiry is not the mental condition of the deceased on any of the days succeeding his affliction, except for the purpose of determining what his condition was on the 1st day of February, 1892, when he executed the instrument produced as his last will and testament; so that if the evidence fairly discloses that, notwithstanding he had undergone this marked mental and physical change, as described by the witnesses, at the time of the execution of the paper writing, the deceased had sufficient force and integrity of mind to deliberate upon the subject of the disposition of his property, having regard to its nature and amount, the relatives who might or should be the objects of his bounty, and form a rational judgment thereon without prompting, then the question directed by the statute to be inquired into should be answered in the affirmative. It is not essential to the validity of 1ns act that, he be possessed of the vigor and resolution of mind and body that he possessed in prime of life, bat simply that he had sufficient"memory and judgment upon the occasion of making the instrument to make it his deliberate and intelligent act. The attesting witnesses each testify that, at the timé of the execution of the instrument, the deceased signed the same after it had been read over to him, and declared it to be his last will and testament; and they also, testify, especially the draughtsman, that they had no trouble in conversing vyith or understanding the 'directions-given by the deceased. This is the particular time under inquiry.. The witnesses to the will are the only ones who speak particularly with reference to the condition of the deceased upon this occasion; and if their evidence is fairly sustained from the circumstances and probabilities, then the plaintiff must fail. Upon one side we have the evidence of the subscribing witnesses, supported as they may be by the probabilities to which the circumstances give rise; upon the other, the evidence of Dr. Lenhart, who testifies that when he was called to attend the deceased on the 15th day of December, 1891, he found him, as before stated, in an unconscious condition, wholly unable to recognize any one or appre: ciate his surroundings, and that, while thereafter he rallied to a. certain extent, at no time during hjs sickness was he able to converse intelligently upon any subject, and at times seemed better than at others; that his first visit was on the 15th of December, and the last on the 14th of March following. It is also disclosed in his examination that he did not see the deceased between the 14th of January and the 17th of February, so that his evidence is not of great value in disposing of this case, except so far as the contention of the plaintiff is sustained by the opinion of the doctor as a medical expert when he testifies that the deceased was suffering from a disease of the brain, and that, therefore, the conclusion should be drawn that at no time after his affliction was he competent to transact any business. The probative force to be given to this opinion is lessened to a considerable extent by the statement of the doctor that on some days the deceased was better able to express himself than on others,—so that it can hardly be said that the evidence of the doctor, although much relied upon by the plaintiff to sustain his allegation, is entitled to a conclusive inference. In reaching this conclusion, we are not unmindful of the long acquaintance between the doctor and the deceased, taken in connection with the trained skill of the witness to determine the mental status of the testator at the time and 'times of which he speaks; yet the conclusion is forced, in the light of the other evidence in the case, and of the probabilities, that the doctor may have been misled as to the continuing condition of his patient.

“ The evidence of Dr. Hall relates to a period óf time upwards of two months after the execution of the will, and to a time when it must be conceded that the deceased was nearing the period of dissolution, and therefore his evidence must" be regarded as of slight importance as proof bearing upon the substantial issue in the case.

“ The evidence of the witness Mark Cheny is entitled to greater consideration, as evidencing the mental and physical condition of the deceased, as he relates conversations, and describes the conduct and acts of the deceased, at short intervals during his entire sickness. He testifies that on December 18th he called, and found the deceasod figuring on a statement from the cheese factory, and that the deceased informed him that he was unable to make it out. He next saw him on the 24th of the month, when he states that the deceased had rallied some, so much so that he could distinguish some of the words he tried to utter. That he talked with him about his medicine, and that deceased told him it was doing him no good, that his bowels did not move, and that the victuals he ate did him no good. That thereafter he saw him once or twice a week, and would generally ask him how he was, and that sometimes he would answer and sometimes he would not. That during all this period he noticed there was a difficulty in his speach, to articulate words or to connect sentences, and that the expression of his face had changed; that there was a wild and staring look from his eye and a restlessness, moving in his chair or in his bed, changing positions often, and that he had a sour and melancholy look on his face. These were the observations that the witness made during the entire period ensuing after the 18th of December until the time of bis death. Again, he refers t.o the occurrence that took place on the 21st of February, when he took charge of the deceased during the day. He relates that as he approached the house the deceased was at the door, and said, ‘You are the boy lam looking after; I came pretty near dying yesterday. There was not a soul in the house. My breath gave out, or I got short of breath, and I hung a flag "out of the door.' Later he said he liad no circulation in his left arm, nor in his side. All of these statements might be true. Certainly, from the statements of Dr. Lenhart it would appear that the deceased was quite rational upon the subject of the failure of circulation in the left arm and side, as it was stated by the doctor that it was the left side of the deceased that was involved by the stroke of paralysis. Later in the day the ‘deceased said, in answer to the inquiry, if they did not cook anything for him: ‘Yes, but a hog wouldn’t eat it.’ ‘He told me he thought the doctor and my brother were laying a plan to poison him or get him out of the way.’ That was the last conversation that the witness ever had with him. These last statements by the deceased would indicate a deranged condition of the mind at that time, and that might be true and he vet have been entirely free from "it at the time of the execution of the will, twenty days previous thereto. The witness, however, states that upon his second visit he found that the deceased had rallied from the condition in which he was in upon his first call, and that it was evidenced by his ability to articulate so that in a measure he could be understood. It will be observed that the occurrences related by the witness, so far as they are found in the expressed declarations of the deceased, from which, he was impressed that they were irrational, in no manner related to the subject of his property or his relatives, and therefore it cannot be said that they necessarily influenced the deceased to select a legatee to the exclusion of his relatives. The importance to be attached to the evidence of this witness relates wholly to the changed condition of mind of the deceased, and to show its degeneracy and decay as bearing upon his testamentary capacity.

“The evidence of A. Morrell Cheney may be referred to for the purpose of determining the strength of mind of the testator at two given periods before the execution of the will. He states that he called upon deceased December 14th; that he had very little conversation with him, and that he called again January 3, and found him sitting in a rocking chair, with his usual clothes on, except his coat, and the witness said: “I asked him if he sent for me, and he said be did. I told him that was the reason I came up, and then he says: ‘I didn’t know but _ you wanted those papers.’ I says, ‘What papers?’ He says, ‘Those assignments,’1 and went into his room, his bedroom, and came out with a bundle of papers, and said he had got them sorted out; if I wanted them I had better take them; and began to open them up, some of them, and says, ‘Here is this Ihrge mortgage and this small mortgage, and some is paid on it.’ He said he did not know how much was paid on another one. * * * He took a pencil out of his pocket and date,d one of them, at the bottom, January 3d, Í892. * * * He made quite a bad-looking date of it. Then he handed' his pencil to me, and says, “you date the rest of these,” and he sorted them out and handed them to me, and I did write ‘January 3d’ on as many as he asked me to.” from a subsequent examination of this witness, it is disclosed that the assignments referred to were of mortgages, to the amount of about §5,000, and that these assignments were prepared, all but one, in 1889, at a time when it is conceded that the deceased was in the full possession of his mental capacity. The inference, therefore, is quite clear that the deceased had contemplated the transfer of these mortgages to the witness for quite a long period of time, and that at this time, with a view of carrying out the purpose previously formed, he sent for the witness and made a tender of the gift. This transaction, rather than indicating incompetency to deliberate and execute a judgment formed before his sickness, tends to show that there was still left that-degree of intelligent thought and purpose of mind to enable him to make a disposition of his property. The witness then related that the deceased asked if he had received a dividend from his bank stock, and when he told him he had, then stated that he (the deceased) had not received .his dividend. When an examination of the credits upon his pass book disclosed that he had received the said dividend, he then stated that he did not know it. While this evidence discloses that the deceased was not as accurate and acute as he had been when in health, it does not neóessarily disclose that he was bereft of all reason and memory. The contrary appears. He remembered the fact that they owned stock in the same bant, and that the time had _ passed for dividends to be declared, and the fact that he did not observe the credit upon his bank book was only such an error as might have been made by a less accurate man when in full health. • Again, witness states that on January 12th he called for the purpose of obtaining the proxy of the deceased to vote his bank stock at the election of officers, and that the deceased signed his name without question to the blank prepared. This conduct -upon the part of the deceased was within the range of reasonable prudence, when viewed in the light of the circumstances existing. The witness was his nephew and was held in such high regard and confidence that, only nine days previous he tendered him a gift of $5,000 in execution of a design formed nearly three years before.

“Miss Arnold testified that she saw the deceased before Christmas, and then again about the first of March, and that he talked better than when _she first saw him; that he answered all her questions; that she stated to him that Morris Cheney’s wife was sick, and that she came down to see her, and that the deceased asked her what she thought of the condition of Morris Cheney’s wife. The evidence of this witness certainly indicates intelligent and reflective thought upon the part of the deceased, and she stated that the appearance, conversation and conduct of the deceased upon that occasion impressed her as rational.

“The witness, Morris Cheney, testified that he called upon the deceased on the 11th or 12th of December, and found him in alow condition; that he was nervous and excited, and had a wild look in his eyes, and that he, the witness, could understand very little of what he said, on account of the difficulty with his throat or his tongue; that deceased would start to tell something, and would say, ‘I can’t say what I want to.’ Again, on the 13th or 14th, the witness testifies that he found him in the same condition, and presented a check for work done, and the deceased said that the witness would have to sign his name, as he could not, and that he gave him three checks to pay his taxes with, without asking the amount of the taxes. There seems to be nothing in the evidence of this witness, so far, that would indicate anything more than the impairment of his physical powers; that.in these transactions the deceased responded intelligently, so far as his acts demonstrated, his thinking capacity, while undoubtedly, as the witness states, he had difficulty in giving expression to his thoughts, in consequence-of the paralysis to his left side, from which it was found that he was sulfering. It also appears that on the 24th of December the witness took the deceased to his own home, where he continued to reside up to the time of his death. The witness was asked to describe the condition of the deceased down until March, and he answered, ‘Well, sometimes he couldn’t talk very plain. He would start out to tell something, and ask something, and his tongue or something would not work, and then he would forget before he could get to talking again; say he had forgotten; he couldn’t tell what he wanted to.’ Again; ‘There were times he could talk plainer than at others. Sometimes he was very nervous; then he couldn’t talk hardly any. * * * It appeared to flurry him. ’The witness further said: ‘I can’t make any more than one description that covers all the time. He had a. wild look. He never laughed or smiled while he lived with me. He was very ,solemn and melancholy about his talk.’ The fair consideration of the evidence of this witness discloses that the deceased had changed in demeanor mentally and physically. That certainly must have been the consequence folloing his affliction; but it is to be observed from the evidence of this witness, as well as from that of the others, that at times the deceased could talk more rapidly than at others, and an analysis of his testimony shows that whatever the deceased did say was intelligent upon the subject upon which he was addressed, and therefore the inference is permissible that his affliction did not operate so much upon his mental faculties as the muscles connected with the organs of speech.”

“The same observation may be addressed to the evidence of the retnaining witnesses who were sworn for the plaintiff, upon this same general subject; and, aside from the incident related by the witness Mark Cheney, of the plot that the deceased conceived was set on foot by the doctor and Morris to poison him, and the fact that he insisted that he had no stomach, there is evidence to show that the deceased at any time was laboring under an alienation of mindj to the extent even of a delusion. The evidence discloses that the deceased by some means sent for the draughtsman of the will to come and see him. This selection indicates judgment, from the fact that Mr. Wicks had been his counsel for a considerable period of time.' After the execution of the first will, which •occurred on the 29th of January, the deceased, after consultation with Morris Cheney, in whose care he then was, evidenced a previously formed judgment to either destory it or make some change in the disposition of his property, by a written communication for him to return with the will that he had previously executed. Upon the return, on the evening of the 1st or the morning of the 2d of February, the deceased directed the destruction of the. will he had made, and after consultation with his counsel respecting the defendant association, which he had made a beneficiary to the amount of $4,000, he reasserted his intention to make the association his beneficiary in the same amount as in the previous will. And while the draughtsman was in an adjacent room preparing the will for execution, Morris Cheney testifies the deceased called him into his room for advice respecting the gift of $4,000 to the defendant association. The witness said: ‘He asked me what he better do about giving the hospital that four thousand dollars, and I reminded him of the previous talk we had had Sunday, the day before. He said Mr. Wicks didn’t want him to change it; that the four thousand dollars would just take them out of debt. He said he believed he would let it go just as it was; that four thousand dollars was not a very big pile.’ This evidence is important, for a two-fold reason: (1) It indicates that the testator was able to give expression to his thoughts with a readiness and facility of language that could scarcely be attributed to a person without the ability of expression; and (2) it indicates, not only a comprehension of the business at hand, but that it waa made the subject of deliberate thought and reflection by the deceased. It also indicates that the deceased did not reply upon the suggestion or expressed wish of Mr. Wicks, because he called bis nephew, with whom he was living, for his advice upon the subject of this gift; and for the purpose of emphasizing the individual judgment and purpose of the deceased to make the gift, we find that he failed to pay deference even to the opinion of the witness for whose advice he called. Excepting the evidence of the attesting witnesses and of Morris Cheney, no person speaks upon the condition of mind as manifested by the deceased upon the occasion of the execution of the instrument in question; and so far as concerns the question of the ability of the deceased to consider the amount and character of his estate, and the person or persons who might have a claim to his bounty, and to hold them in his mind a sufficient length of time to perceive, at least, their obvious relation to each other, and to be able to form some rational judgment in respect thereto, it cannot be doubted from their evidence that he possessed such ability. This conclusion is further unmistakably evidenced by the letter written on the next succeeding day to Mr. Wicks,in whose custody he placed the will for safe keeping, to destroy it. The letter is in the handwriting of the deceased, and is so explicit, and yet so comprehension, that it can leave no doubt but that the testator fully appreciated the act he had performed in the execution of the will on the previous day, and the results that would follow in case it was allowed to. remain undestroyed. While the ineffectual attempt to destroy the second will, as well as the first, so soon after their execution, indicates a failing and vacillating mind, it cannot be regarded as conclusive that the testator did not have testamentary capacity, when considered in the light of the evidence given of the occurrences attending' the execution of the instrument, and the declarations of the testator subsequently made respecting it. At most, it is but a circumstance proper to be taken into account as bearing upon the mental condition of the deceased, and in and of itself, and in connection with the evidence given relating to the mental and physical condition of the deceased during his last sickness, •does not meet the force of the evidence given to the effect that the testator comprehended the legal effect of the execution of the paper offered as his last will.

“It has been suggested that the deceased had no knowledge of the defendant association, nor its object, or relations with the parties under,whose management its affairs were conducted, and that therefore it is improbable that the testator selected the association as the object of his bounty to the exclusion of his blood relatives.

There is little force in this position. The testator, but a short time before the execution of the instrument in question, sought to carry out a gift of $5,000 worth of securities to A. Morrell Cheney, in execution of a contemplated purpose that had existed for upwards of two years, thereby intending to exclude his three brothers from the enjoyment of that portion of his estate,—so it is but natural to infer that, inasmuch as the attempt to divert that portion of his estate from his brothers was frustrated, by the ;:efusal of the donee to accept the gift, the testator should look-elsewhere for a worthy object. The evidence discloses that he was an intelligent man, and interested in social and public affairs, and having evinced a desired to make a disposition of about $5,000 in hostility to the claims that the law would give to his brothers upon his property, it is but fair to presume that he selected the defendant association as a medium through which he could accomplish a worthy object.

“The validity of the will in question is assailed in the complaint upon the charge of undue influence; but in the submission of the case there was no claim made that the charge had been sustained upon the proof, nor could it well be made; as proof of the fact is not presented by the evidence. The contrary is demonstrated,- from the evidence of the 'witness Morris Cheney, when he states that, while the will was being prepared, the deceased sought an expression of his judgment upon the propriety of making the defendant society his donee-to the extent of $4,000, and, after receiving the same, declined to act upon it in preference to his own judgment. This clearly demonstrates that whatever suggestion or importunity Mr. Wicks may have introduced in behalf of the society was held in abeyance by the deceased until after the interview with Morris, and then it is disclosed that he concluded to make the bequest in accordance with the instructions for the preparation of the will. These circumstances refute all inferences of restraint. After carefully considering the evidence in this case, the circumstances, and probabilities, the conclusion is forced that the instrument in question should be declared by -the judgment of this court to be the will of the testator. A bill of costs is olio wed to the plaintiff and the defendants, to be paid out of the estate.”


author: RUMSEY, J.

text:
    Casper Stapf, Resp’t, v. Loewer’s Gambrinus Brewery Company, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’ry 7, 1896.)

    1. Trial—Motion for direction of verdict.
    Where a defendant makes a motion for the direction of a verdict .without specifying any ground, and the motion is denied and he excepts to the ruling, and a verdict is rendered against him, he cannot maintain the exception, unless he makes it appear that the defect existing at the time the motion was made was one which could not have been obviated if the plaintiff's attention had been called to it. ,
    2. Master and servant—Appliances,
    The master.must use reasonable care to see that the tools and appliances which he furnishes to his servants to use about the business are in a reasonably safe condition for the purpose for which they are intended to be used.
    8. Same.
    It is his duty, not only to provide reasonably safe appliances in the first place, but to examine and inspect them from time to time and use ordinary skill to discover and repair defects in them.
    4. Same—Notice.
    In order to establish the master’s negligence, it is not necessary to prove actual notice of the condition of the appliance, it is sufficient if it appears that the appliance has been in a defective condition so long that, with reasonable care, the master might have discovered its condition in time to have remedied it before the accident happened.
    Appeal from a judgment in favor of plaintiff and from an order denying a motion for a new trial.
    U. W. Tompkins, for app'lt; A. & G. Steckler, for resp’t.
   RUMSEY, J.

—This action was brought to recover damages which the plaintiff sustained while in the employ of the defendant, He was called upon as a part of his employment to build and keep up a fire in a furnace, which was used for the purpose of heating and boiling pitch in a kettle above the furnace. It was necessary to bring the pitch to a boil, and keep it in that condition, that it might be applied to the inside of the beer barrels which were used by the defendant The plaintiff claims that the kettle in which the pitch was boiled was defective, and leaked, so that the pitch ran down into the fire, and caused the explosion, the effect of which was to inflict upon him the injuries of which he complained, and for which this action was brought. The serious question presented by this appeal is whether there was evidence to go to the jury tending to show that the defendant was guilty of negligence. This seems to be the only question raised upon the appeal.

At the close of the plaintiff’s case, the defendant moved to dismiss the complaint, upon the ground that the plaintiff had not shown a cause of action, and had not shown notice to the defendant. The first ground of the motion was plainly insufficient to enable the defendant to maintain his exception. Where, in a case of this kind, the defendant makes a motion for the direction of a verdict without specifying any ground, and the motion is denied, and he excepts to the ruling, and a verdict is rendered against him, he cannot maintain the exception, unless he makes it appear that the defect existing at the time the motion was made was one which could not have been obviated if the defendant’s attention had been called to it. Haines v. N. Y. C. & H. R. Railroad Co., 145 N. Y. 235 ; 64 St. Rep. 717. . Whatever the defect was at the time this motion was made, if there was anydefect, it was not specified; and therefore, under the authority just cited, the t defendant cannot avail itself of his exception. As to the second ground of the mo tion, there was evidence from which the jury might have found that the defect had existed so long that, if the defendant had properly inspected the kettle, it might have known of the leak.

At the close of the case, the defendant renewed the motion fora direction of the verdict, upon the ground that there was no evidence to show that the defendant had been guilty of negligence. This motion was denied, and the defendant took an exception, and this ruling presents the only ¡mint which we are required to examine in the case.

The duty of the master in cases of this kind is so well settled as not to require the citation of authority to establish it. That duty is to use reasonable care to see that the tools and appliances which be furnishes to his servants to use about the business are in a reasonably safe condition for the purposes for which they are intended to be used. Was there evidence in this case from which the jury might have found that the defendant had failed to perform that duty ? The'particular defect complained of was that the kettle in which the pitch was heated leaked so that, as the pitch became hot and liquid, it ran down into the fire, and caused the explosion. The evidence upon that subject was not convincing, but, such as it was, we think there was enough of it to require the question of the condition of the kettle to be submitted to the jury. The plaintiff testified that, when he built the fire, the inside of the furnace was perfectly clean, and there was no pitch there, and that the cover was on the kettle, and remained there; that afterwards, when the fire got hot, and the flame commenced to burst out, he opened the door of the furnace, and looked in, and saw the pitch dripping, “ out of the kettle into the fire.” Upon his cross-examination, he testified that, when he looked into the furnace, he saw the “pitch dripping through the kettle.” The witness Busch testified that, upon examining the kettle eight weeks before, he saw the bottom of the kettle, and he saw pitch dripping down inside the furnace. He further stated that he never saw pitch drip over the edge of the kettle, but that it dripped down inside, between the kettle'and the furnace. He also stated that the wall of the kettle was so tight on the kettle that no pitch could go through, and that he never saw any pitch drip over the edge; and he further said that there was no opening over the top through which the pitch could go. This was substantially all the testimony which was given bv the plaintiff as to the condition of the kettle. The testimony was contradicted by the defendant, but we think it fairly raised a question for the jury whether there was a defect in the kettle, through which the pitch dripped into the fire. From the testimony given by the plaintiff, the jury might, if they believed it, have found that this kettle was defective, so' that, when the pitch was heated, it ran down through it into the fire, and that this defect had existed for six or eight weeks. If that were so, undoubtedly it is sufficient to establish the negligence of the defendant. The plaintiff was not called upon to prove actuals notice of the condition of the kettle. It was sufficient if it appeared that the kettle had been in a defective condition so long that, with reasonable care, the defendant might have discovered its condition in time to have remedied it before this accident happened, because it was his duty, not only to provide reasonably safe appliances in the first place, but to examine and inspect them from time to time, and use ordinary skill to discover and repair defects in them. Shear. & R. Neg. § 195. The jury might have found from this evidence that the defendant failed to perform its duty, and, if it did, the case was made out.

The judgment must be affirmed, with costs.

All concur. '


author: O’BRIEN, J.

text:
    In the Matter of the Application by a Majority of the Trustees of the Hamilton Park Company.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’ry 7, 1896.)

    Corporation—Receivers—Injunction.
    An action to foreclose a mortgage, executed by a corporation, is not an action to recover a sum of money, which the court may restrain after the appointment of a temporary receiver.
    Appeal from an order, continuing an injunction restraining creditors of the Hamilton Park Company from commencing or prosecuting actions against it.
    Rufus Peckham, Jr., for app’lt; Charles J. Hardy for resp’t.
   O’BRIEN, J.

—This is a proceeding for the voluntary dissolution of a corporation under sections 2419-2431 of the Code of Civil Procedure. On the 2d of November, 1895, the court appointed a temporary "receiver for the corporation and enjoined all creditors from commencing or continuing actions against the company. Prior to the commencement of this proceeding the corporation mortgaged all its property to the Union Trust Company, as trustee, to secure an issue of sixty-five bonds of $1,000 each, The company defaulted in the payment of principal and more than a year after such default, in July, 1895, the trust company commenced suit in the supreme court to foreclose the mortgage. The company answered, and the case was placed upon the calendar for trial, and, when reached, an order of reference was taken by default. Thereafter the trust company received an order, entered in this proceeding, restraining it from proceeding with the foreclosure suit. The trust company moved to modify the injunction, which motion was denied, and from that order the trust company appeals.

It is insisted that the court had no power to restrain the foreclosure, and if this insistence is sustained a reversal must result. This proceeding is a purely statutory one, and the court’s power and authority to act must be conferred by statute. It is conceded that the only statutory authority is embodied in section 2423 of the Code of Civil Procedure, which provides:

“If such receiver (referring to a temporary receiver) be appointed, the court, may, in its discretion, on like motion and notice, with or without security, at any stage of the proceeding before the final order, grant an injunction restraining the creditors of the corporation from beginning any action against the said corporation for the recovery of a sum of money, or from taking any further proceeding in such an action theretofore commenced.”

The question is thus narrowed down to the one as to whether a suit to foreclose a mortgage, wherein a deficiency judgment is asked, is an action for the recovery of a sum of money, within the meaning of the statute. This, we think, must be answered in the negative. The words used in this section of the Code, just as similar language used in other sections (for instance, section 968, providing for issues to be tried by a jury), refer, as the language imports, to the ordinary, common-law action brought for the recovery of a sum of money. The foreclosure of a mortgage has always been held to be a suit in equity; and the fact that, as an incident thereto, the court has jurisdiction, where such relief is asked, to award a judgment for deficiency, does not alter the character of the action. We have been referred to some authorities wherein expressions in the opinions might be regarded as intending to convey the idea that the courts of general jurisdiction such as the supreme court or the court of common pleas; could, in a proceeding of this kind, restrain any action; but here, , as in all other cases, the opinions are to be read in the light of .the questions involved, and the facts of the particular case, and then any doubt that might otherwise exist as to the limitations upon the power and authority of the court is removed. The cases of Walling v. Miller, 108 N. Y. 173 ; 13 St. Rep. 93 ; Woerishoffer v. Construction Co., 99 N. Y. 398 ; and In re Schuyler’s Steam Tow Boat Co., 136 N. Y. 169; 48 St. Rep. 830,—relied upon to support the order here made, are authorities for the proposition that a court having power,to appoint, and which appoints, a receiver of the assets of an insolvent corporation may, in aid of that appointment, forbid any after-interference by way of levy and seizure, by attachment or execution, with the property in his possession. In the Walling Case, where a creditor obtained a lien by execution, the judge writing the opinion, in sustaining the power of the court to enjoin proceedings upon the execution, among other things, said:

“But persons having liens upon the property had no right to interfere with its possession by the receiver, and, without any application or adjudication of the court, sell and dispose of it, and thus dissipate it, and deprive the court of jurisdiction to administer it.”

And in the Woerishoffer Case the court said of a restraining order.

“Its sole effect, as against the appellant, is to prevent a seizure, under process issued in its action, of assets already seized by the court and held as well for appellant’s benefit as for that of other creditors.”

And In re Schuyler’s Steam Tow Boat Co., the court, in confirming an order obtained by a receiver restraining a creditor from enforcing a libel, 'filed against certain vessels in the int.ermin between the appointment of a receiver and the filing of his bond, said:

“Our decision here does not effect the legal rights of the libel-. Iants. * * * The receiver will be obliged, in this proceeding to distribute the proceeds arising from the sale of the property among the creditors of the corporation as ther priority of rights may appear and be held valid.” ■■

It will be noticed that, in all these cases the purpose sought was to recover a sum of money out of the assets of the corporation, which, by the order appointing the receiver, had passed into the latter’s hands; and it was to prevent the taking of any such assets from him, and to prevent creditors, by running up bills of costs, and by multiplying actions from interfering with the receiver or harrassing him in the discharge of his duties, that in such actions the courts interfered. We venture to assert, however, that no authority can be found favoring the view that where, under a contract made with a corporation prior to the appointment of a receiver, a mortgage is given to a trustee to secure bondholders, or collateral security is given for a debt, the action of the trustee to foreclose the" mortgage, or of • the creditor to resort to the collateral or sell the same, has been enjoined.

As to the right of- the trust company here to foreclose, or as to the propriety of the exercise of such right, there can be no question. By the terms of the mortgage, upon the happening of the contingency provided for therein,—namely, the default,—the trustee had the absolute right to foreclose the mortgage, either with or without taking possessionand utdess the statute expressly conferred upon the court authority to interfere with the exercise -of -such right, it could not do so. As we have seen, its power is restricted to actions brought for the recovery of a sum of money, and as already said, we do not think a foreclosure suit falls within that category. In the latter suit the prayer is, not simply for a personal judgment for a sum of money, but for a sale of the property. It is attempting by legal process to do what the trustee has the right to do by taking possession and selling the property without the interposition of a court of equity.

Without, however, further discussing the question, we think there is one case which, in principle, is controlling,— that of In re Binghamton General Electric Co., 143 N. Y. 261 ; 62 St. Rep. 154, wherein the court construed this statute under consideration. There a trust company loaned money to the electric company, and as collateral security the electric company pledged certain bonds, obligations of that company. The latter instituted proceedings for its dissolution, and restrained the trust company from disposing of the bonds pledged as collateral to the loan. The special term modified the injunction, which the general term reversed. The court of appeals said:

‘"We are of opinion .that the order of the general term should be reversed.. This proceeding'is purely statutory, and the terms of the order appointing the temporary receiver, and the scope of its injunction clause, are defined by section 2423 of the Code of Civil Procedure. The court is empowered to restrain the creditors of the corporation from bringing any action against it for the recovery of a sum of money, or from taking any further proceedings in an action theretofore commenced. There is nothing in the statute under which this proceeding was instituted authorizing the court to restrain the creditors of the corporation from disposing of its bonds, held as collateral to loans under lawful contracts empowering them to sell. It has long been the settled law of this state that the jurisdiction of chancery does not extend to the sequestration of the property of a corporation by means of a receiver. It follows that the authority of the court in this proceeding must be found in the statute, and not in its general equitable powers. lt is obvious that every loan upon the property of a corporation resting upon valid agreement or. process before the appointed of a. receiver, the lienor being lawfully in possession, must be preserved, with the right of enforcement, unless the courts and legislature áre to override the vested rights of the creditors. This general principle has been repeatedly recognized and approved by this court. In an early case in this state, Chief Justice Spencer, in discussing the rights of a secured creditor as bearing upon those-of junior or unsecured creditors, said: ‘I know of-no principle of equity which can take from him any part of his security until he is completely satisfied.’ Evertson v. Booth, 19 Johns. 485.”

We agree with the appellant that, in principle, this case is not. to be distinguished from the case at bar, and therefore is controlling.

The order shall, therefore, be reversed, with $10 costs and disbursements, and the motion to vacate the injunction granted, with $10 costs.

All concur.


text:
    People, Resp’t, v. Henry J. Havnor, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    1. Sunday—Constitutionality. *
    The provisions of section 1, chapter 833 of 1895, are within the police powers of the legislature and not unconstitutional.
    3. Same—Discrimination.
    The fact that a law prohibits the carrying on of a business on Sunday in one locality, while it permits it in others, does not render such law invalid on the ground of class legislation.
    Appeal from a judgment, convicting defendant of carrying on-the business of a barber on Sunday.
    A. I. Sire, for app’lt; John R. Fellows, for resp’t.
   INGRAHAM, J.

—The appellant was convicted for a violation of section 1 of chapter 823 of the Laws of 1895, and he appeals, on the ground that the act is unconstitutional as a violation of the-provision of the constitution that “no person shall be deprived of i life, liberty or property without due process of law.”

The act in question prohibits any person from carrying on or engaging in the business of shaving, hair cutting, or other work performed by a barber on the first day of the week, and provides a punishment for such offense. It is claimed that the law falls within the principle established by In re Jacobs, 98 N. Y. 107 ; People v. Marx. 99 id. 377 ; and People v. Gillson, 109 id. 389; 16 St. Rep. 185. In the case last cited the principle, as stated, is;

“A person living under our constitution has the right to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit. * * * Liberty, in its broad sense as understood in this country, means the right, not only of freedom from servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work when he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation.”

And in the case of People v. Marx, supra, the court say:

“Under an exercise of the police power, the enactment must have reference to the comfort, or the welfare of society and must not be in conflict with the constitution. The law will not allow the rights o£ property to be invaded under the guise of a police regulation for the protection of health, when it is manifest such is not the object and purpose of the regulation.”

"And while it is generally for the legislature to determine what laws and regulations are needed to protect the public health and serve the public comfort and safety, if is measures are calculated, intended, convenient, or appropriate to accomplish such ends, the exercise of its discretion is not the subject of judicial review. But those measures must have some relation to these ends. Courts must be able to see, upon a perusal of the enactment, that there is some fair, just, and reasonable connection between it and the ends above mentioned. Unless such relation exists, the enactment cannot be upheld as an exercise of the police power. The question is whether the prohibition of a particular trade upon Sunday is a violation of the principle thus established. There is nothing in this act which attempts to provide that the appellant shall not carry on his particular trade or calling in any manner or at any place that he pleases. He is simply prohibited from carrying on that trade upon Sunday. An examination of the legislation of most, if not all, of the states, will- show that that subject was regulated by statute prior to the adoption of the federal constitution and of the constitution of this state, and that prohibition of work upon Sunday, more or less severe, was in force in all the states at that time; and the right of the legislature to regulate the observance of the Sabbath has been recognized without exception by this and some of the states since the formation of our government. Thus, in the case of People v. Moses, 140 N. Y. 215 ; 55 St. Rep. 403, the court says :

The Christian Sabbath is one of the civil institutions of the state; and that the legislature, for the purpose of promoting the moral and physical well-being of the people, and the peace, quiet, and good order of society, has authority to regulate its observance and prevent its desecration by any appropriate legislation, is unquestioned."

The legislature thus having the authority to regulate the observance of the Sabbath, we cannot review its discretion, or determine upon the expediency, wisdom, or propriety of legislative action in matters within the power of the legislature. See People v. Albertson, 55 N. Y. 54. In the case of Lindenmuller v. People, 33 Barb. 554, a case that has been cited with approval in many cases, it was expressly held that the legislature has the power to determine what acts it is necessary to prohibit on Sunday for the purpose of promoting the moral and physical well-being of the people and' for the purpose or preventing the desecration of .the Sabbath' that it was a matter within the legislature’s discretion and powen and that the courts could not review their discretion and sit in judgment upon the expediency of their acts. It is for the legislature to say what business it is necessary to prevent for the proper regulation or observance of the Sabbath; and so-long as the regulations described have relation to that particular object, the discretion of the legislature cannot be .controlled by the court. This is in accord with the case of People v. Sheriff of Kings Co., 13 Misc. Rep. 587 ; 69 St. Rep. 215.

Objection is also made to this act on the ground that it is class legislation, granting a privilege to persons transacting business in New York and Saratoga which is not allowed outside of those localities, ^"e do not think that the act can be questioned upon this ground. If the legislature has power to regulate the observance and prevent the desecration of the Sabbath, it has power to say what acts, in the different localities of the state, it is necessary to prohibit to accomplish this purpose. It is quite conceivable that an act in one locality, thickly settled, should be prohibited, which in sparsely-settled districts of the state could be allowed; and for this reason an act might be objectionable in one district which will not in another. All of these regulations have in view the proper observance of the day, and are within the discretion of the legislature. In re Bayard, 25 Hun, 546.

We have been referred to the case of People v. Eden, decided by the circuit court of Cook county, 111., in which it appears to have been held that the legislature cannot single out any one calling, and make it the subject of special legislation. We cannot assent to the views there expressed, so far as they relate to laws passed regulating the observance of Sunday. In the case of Lindenmuller v. People, supra, a prohibition of theatrical performances on Sunday was expressly upheld; and the prohibition of the sale of liquor on Sunday has been always recognized as the-proper exercise of the power of the legislature. It is for the legislature to say what trades or callings can be carried on with due regard for the observance of the Sabbath. ,

We think, therefore, that the act was clearly within the power of the legislature, and that the conviction must be affirmed.

All concur.


author: BARRETT, J.

text:
    Charles Minzesheimer, App’lt, v. Edwin G. Bruns, as Administrator, etc., Resp’t.

      {Supreme Court,,Appellate Division, First Department,

      Filed February 7, 1896.)

    1. Pleading—Limitation.
    Anticipatory matter in avoidance of the statute of limitation need not, - and should not, he stated in the complaint.
    8. Same.
    In an action against an administrator on a claim against the estate, the plaintiff may show facts in avoidance, without pleading them, though the cause of action is prima faeie barred by the statute.

      Appeal from a judgment, entered upon a verdict of the court, dismissing the complaint on the pleadings,
    James E. Chandler, for app'lts; Donald McLean, for resp’t.
   BARRETT, J.

—The plaintiff’s cause of action is well pleaded The only objection upon the merits which the defendant takes to it is the failure to allege nonpayment to the assignors between the decedent’s death and the assignment. Even if the rule that payment is a defense, and must be pleaded were inapplicable, tue plaintiff sufficiently meets the objection. He alleges that no part of the sum in question was ever paid to him by any one, or was ever jiaid to the assignors by the decedent. He further alleges that the defendant, upon presentation of this, claim, duly vertilied rejected it. This was quite sufficient, and the objection is hypercritical. The real question is with regard to the statute of limitations. The learned judge at circuit erred upon this head. lie should not have dismissed the complaint without permitting the plaintiff to prove his claim. The complaint unquestionably states a good cause of action. Prima facie, it was barred by the statute. 'Whether it was conclusively barred depended upon such proof as the plaintiff might have offered in avoidance. .Nothing is better

settled than that anticipatory matter in avoidance of the statute need not, and should not, be stated in complaint. Sands v. St. Johns, 36 Barb. 628, which was affirmed in the court of appeals (see 29 How. Prac. 574, note); The statute must invariably be pleaded by the defendant. Code Civ. Proc. § 413. This rale applies to an executor or administrator, quite the same as to a living debtor. Hayden v. Pierce, 144 N. Y. 517; 64 St. Rep. 42. The only distinction is this: The living debtor may waive the statute, while an executor may not; it is the latter’s duty to plead the statute. If he violate that duty, he will not be allowed, in his accounting, any sum. paid upon a debt which, at the time of payment, was barred. Butler v. Johnson, 111 N. Y. 212; 19 St. Rep. 85. There is nothing in the case of Schutz v. Morette, 146 N. Y. 137; 66 St. Rep. 271, which militates against this rule. There the facts constituting the origieal cause of action against the deceased were not stated. The plaintiff simply pleaded the presentation to the executor of her verified claim against the estate, and relied upon this, coupled witli the executor’s subsequent silence, as affecting an account stated between herself and the estate. What the court held was that the executor’s inaction with regard to this verified claim was not an admission of its justice, especially as as part of it seemed to be prima facie barred by the statute and that consequently, it could not, merely because of its retention and the executor’s silence, ripen into an account stated which, would bind the estate. All that the court said regarding the statute was that any inference oí affirmative assent by the executor was rebutted by the fact that the claim, on .its face, showed presumptively that, in part at least, it was barred. Consequently, such consent would have been a violation of the executor’s duty to plead the statute. In this connection, Audreys, C. J., referred to the rule tlr/it, against a claim, so barred, the executor is bound to plead the statute. 146 N. Y. 137; 66 St. Rep. 271. There is not the slghtest intimation that the ordinary rule of pleading on this head is inapplicable to claims against decedent’s estates.

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

All concur.


author: PATTERSON, J.

text:
    Cornelius H. Hoffman, App’lt, v. Charles H. Wight, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb. 7, 1896.)

    Judgment—Foreign—Action thereon.
    Where a judgment is rendered in one state against two partners jointly, after serving notice upon one of them only, under a statute of the state providing that such service sluili oe sufficient to authorize a judgment against' both, the judgment is of no force or effect in a court of another state against the partner who was not served with process.
    Appeal from a judgment dismissing the complaint, with costs.
    /Alexander Tliain, for app’lt; Ira B. Stewart, for resp’t.
   PATTERSON, J.

— The complaint in this action (in which the defendant Wight alone has appeared and answered) sets forth facts constituting an original liability of the defendants Newell & Wight, as copartners on two cases of action, and it likewise counts upon two judgments recovered by the plaintiff in the state of New Jersey on such causes of action. At the trial of this cause the plaintiff elected to proceed upon the judgments, and not on the original causes of action. One of such judgments was rendered in the circuit court of Union county, N. J., on the 28th day of June, 1883, and the other in the same court on the 5th day of December, 1883. Both were in actions upon contract, giving rise to an alleged copartnership indebtedness. The defendant Newell was served with process. The defendant Wight was a nonresident of New Jersey. Newell made default in appearing, and Wight, personally, was in no way brought' within the jurisdiction of the court. Judgments in form as in actions in personam were entered, but both records recite that Wight was not served. It is insisted by the plaintiff'that the judgments are enforceable, by action in the courts of this state, against the joint property of the defendants in this jurisdiction ; that they are prima facie evidence of a joint indebtedness; and that under the provision of the constitution of the United States relating to judgments and decrees of sister states, and the act of congress of the year 1790 upon the same subject, both defendants are bound by the judgments, so far as copartnership property is concerned, whatever the situs of that property may bei The precise claim of the plaintiff is that the New Jersey judgments bind Newell absolutely, and are enforceable against him in any state of the Union; that they do not bind Wight as an individual, but that they, do bind the joint property of Newell & Wight, subject to the right of the latter to contest the facts or allegations in the declarations upon which the judgments are founded.' To the first term of the plaintiff’s proposition, no objection is made. The judgments are conclusive upon Newell individually. Nor is it to oe doubted that, as against Wight personally, they are of no validity. Pennoyer v. Neff, 95 U. S. 714, and cases cited in the opinion of the court. The question now before us relates to the effect of the judgments upon the defendant Wight as a joint debtor, and whether they constitute such final adjudications as compel the courts of another state to give enforcement to them against, joint property situate in that other state, for/such is the form and substance of the ruling the plaintiff requested the court below to make on the submission of the cause.

The provision of the act of congress respecting judgments of the courts of one state, sought to be enforced through those of another, gives to them, in the state in which they are sued upon, the same force and effect they would have in the state in which they were rendered, and no more. There is a stipulation in this record that the effect in the state of New Jersey of the judgments under consideration is the same as that of judgments of a like character recovered in the courts of New York. The Code of Civil Procedure of this state provides that in an action for a sum of money, against two or more defendants alleged to be jointly indebted, if the summons is served on one or more, but not on all, of the defendants, the plaintiff may proceed against those served, and, if he recovers a final judgment, it may be entered against all the defendants jointly indebted. Such a judgments is conclusive of the liability of each defendant upon whom the summons is served, or who has appeared; but, as against a defendant who has not been served, it is evidence only of the extent of the plaintiff’s demand, after the liability of that defendant has been established by other evidence. Upon such a judgment, execution may issue in form against all the defendants, but an indorsement must be made thereon of the names of each defendant who was'not served; and such execution may be levied upon the property of the defendants summoned, and the joint property of all the defendants. It is now urged that the New Jersey judgmentshaving, by stipulation, the same qualities and incidents as those of New York, they may be sued upon in this state, for the purpose of giving them, in this state, the effect of domestic judgments. But what is that effect? The provisions of the Code above referred to merely subject the interest in the joint property of the defendant not served to a judgment analogous to one in rem. IE that is the nature of the judgment, the contention of the plaintiff fails, for the reason that it ignores the fundamental principle that judgments of that character are, so to speak, merely local, and have no force* or validity, outside of the state in which they are rendered, to establish indebtedness against a person not served with process, who has never had his day in court, and has never been heard, nor had an opportunity to be heard, in resistance of the claim asserted against him. The practice, procedure. and process of the state of New York cannot, by any device, be. given extraterritorial operation, and are of no binding obligation upon nonresidents not brought within the jurisdiction by due process of law, or who do not, in some recognized and sufficient man-' ner, submit to that jurisdiction. The subject, in a very pertinent form, was before the supreme court of the United States in the case of D’Arcy v. Ketchum, 11 How. 165, which was in error to a Louisiana court. An action had been brought in that state by Ketchum against Gossip and D’Arcy, joint debtors, on a judgment recovered in New York in 1846. D’Arcy had not been served with process in New York, and he was a resident of Louisiana. A statute of New York was proven which provided that where joint debtors were sued, and one was brought into court on process, he should answer to the plaintiff, who might have judgment and execution, not only against the party brought into court, but also against other joint -debtors named in the original process, in the same manner as if they had all been brought into court by virtue of such process, but it should not be lawful to issue or execute any such execution against the body, or against the sole prop-. erty, of any person not brought into court. The effect of that statute was declared by the court to be that in New York the judgment was valid and binding on an absent defendant, as prima facie evidence of the debt, but reserving to him the right to enter into the merits, when sued on it, and show that he ought not to have been charged, but that the New York judgment had no force or vigor beyond the local jurisdiction. An express limitation was put upon "it, and it was held that such a j udgment was not entitled to any faith or credit, as affecting D’Arcy, outside of the state in which it was rendered. And in Goldey v. Morning News, 156 U. S. 518, in commenting upon D’Arcy v. Ketchum, and also upon Hall v. Lanning, 91 U. S. 160, the supreme court observed:

“If a judgment is rendered in one state against two partners jointly, after serving notice upon one of them only, under a statute of the stateproviding that such service shall be sufficient to authorize a judgment against both, yet the judgment is° of no force or effect in a court of another state, or in a court of the United States, against the partner who was not served with process.”

This is referred to by counsel for plaintiff as a mere dictum, but, considering its relation to the real question involved in that case, it is to be regarded rather as a formulation of a rule of law made by the court, and extracted from its own decision in the two cases cited as authority to support it. If the judgments of the courts of New York are thus limited, the same limitation is imposed upon similar judgments of the state of New Jersey, and the latter are not enforceable against defendants situated as Wight is in this ease. The utmost that can be claimed for the New Jersey judgments, as against* Wight, is that there are, as to copartnership property in New Jersey, if not strictly, yet quasi, judgments in rem, affecting only property levied on by execution in that state. They may serve to protect a purchaser at an execution sale who removes the property purchased into another jurisdiotion, but are not available in this state as the basis of an action, against Wight,

The court below was right in refusing to find as requested by the plaintiff, and the judgment dismissing the complaint must be affirmed, with costs.

All concur.


author: BARTLETT, J.

text:
    Edwin W. Adams et al., Resp’ts, v. Roscoe Lumber Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 11, 1896.)

    Sale—Conditional—Waiver.
    In an action of replevin for goods sold on condition that the buyer will execute a note for the price, the condition was held not to have been, waived so as to pass title.
    Appeal from a judgment entered on a verdict directed for plaintiff.
    George W. Stephens, for app’lt; Robert H. Wilson, for resp’ts.
   BARTLETT, J.

—The plaintiffs agreed to sell a lot of lumber to James Mackintosh, and he agreed to pay therefor by giving them his note at sixty days from date of delivery. The lumber was delivered, but the note was not given. The lumber was soon afterwards transferred by Mr. Mackintosh to the Boscoe Lumber Company. The plaintiffs thereupon brought this replevin suit against the corporation on the ground that, inasmuch as the delivery to the original purchaser was conditional upon his giving the-promised note, his failure to comply with that condition left the title to the lumber still in them. The record leaves no doubt that the claim of the plaintiff that the delivery was conditional is correct. The letter which states the terms of the contract was put in evidence, and it was admitted upon the trial that the lumber in controversy was sold upon the conditions of the letter, and that the plaintiffs were to receive a note for sixty days. Nothing was really litigated, except the question whether the plaintiffs had not waived the condition by failing to insist upon the immediate giving of the note. About the time that the delivery of the lumber was completed, the plaintiffs addressed a letter to Mr. Mackintosh, asking him to send them his note, in accordance with the terms of sale. Three or four days later, their representative called at his place of business and asked for the note, but was told that he would have to see Mr. Chapman about it. Mr. Chapman was connected with Mr. Mackintosh in business, but was absent. The plaintiff’s agent called again, about two days subsequently and. was told substantially the same thing. On a third visit, the next day, he learned that the business had become that of the Boscoe Lumber Company, which declined to have anything to do with the settlement of Mr. Mackintosh’s accounts.

The testimony upon which the defendant relies as conclusively establishing' a waiver was given by the plaintiff’s agent on cross-examination in reference to his second effort to get the note. That testimony was as tollows:

l'Q. Yon didn’t demand the return of the lumber that day? A. No. sir. Q. And you liad no intention of demanding the' return of the lumber, if you didn’t get a note that day, did you? A. I did not consider the situation in that aspect at all. Q. You were perfectly willing to wait, then, another day for the note, were you not? A. Yes. Q. And you would have kept ora waiting until it suited the convenience of’Mr. Mackintosh to give you the note, if it had not been for the fact that you found that the Eoscoe Lumber Company had become the owner of the yard —isn’t that the fact? A. No sir; I would not. B. How long would you have waited? A. Not over a few days more. Q But you were willing to wait a few days more? A. Yes.”

Do these answers necessarily manifest an intention on the part of the witness, acting for the plaintiffs, to waive the condition in their behalf? I think not. The most that can fairly be said, it seems to me, is that they constitute evidence on the question of the alleged waiver, to be considered with such other evidence as there is in the case bearing upon that subject. It might very well be that the witness was willing to wait a few days for the note, until the return of the particular person who had charge of .the matter for the purchaser, while he would not have consented to wait at all, if anything had occurred to suggest a disposition to withhold the note absolutely. When the proof was all in, the question was, what inference ought to be drawn from the facts, so far as the alleged waiver was concerned? This question the trial judge was called/ upon to determine, as both parties, by requesting the direction of a verdict, had consented that it should be withdrawn from”the jury. I think that the trial judge decided it correctly. No harm could possibly have been done to the defendant by receiving in evidence its annual report.

The judgment should be affirmed.

All concur.


author: CULLEN, J.

text:
    Patrick J. Gleason et al., Resp’ts, v. Peerless Manufacturing Company, Impleaded, etc., App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’ry 4, 1896.)

    1. Municipal corporation—Ordinances—Veto.
    Under section 5, chapter 1, title 3 of Long Island City charter, (chapter 461 of 1871) the veto power is not limited to legislative acts.
    2. Same—Legislative act.
    An ordinance, determining the lowest bid' for furnishing materials under a contract, is a legislative act, and must be submitted to the mayor under the charter of Long Island City.
    3. Same—Passage over veto.
    Under said charter, an ordinance passed over the mayor’s veto at the meeting to which it was returned is void.

      Appeal from, a judgment in favor of plaintiff.
    A. T. Payne, for app’lt; George W. Stephens, for resp’ts.
   CULLEN, J.

—This is a taxpayers’ action, brought to restrain the payment by Long Island City to the Peerless Manufacturing Company, of New York, of the purchase price of some rubber hose. , Proposals for furnishing such hose were advertised for, in answer to which the Peerless Company made its bid. The bid was not the lowest, but the. common council, by resolution, awarded the contract to the Peerless Company, and directed the mayor and commissioner of public works to execute it. This resolution the mayor vetoed. It was returned to the common council with the mayor’s objections on March 6, 1888, and at the same meeting the common council assumed to pass it over the mayor’s veto. The trial court held that in determining, under the charter of Long Island City, who was the lowest bidder, the common council acted judicially, and the contract made by it' could not be impeached for any error of the common council in that respect. It further held, however, that the resolution awarding the contract was void, because the action of the common council upon the mayor’s veto was taken -at the meeting at which the resolution was returned, and not at the next regular meeting.

On this appeal the defendant contends that the action of the common council in awarding the contract was not subject to the veto power of the mayor. The provisions of the charter (chapter 1, tit. 3, §§ 5, 6; Laws 1871, c. 461) are:

“Every legislative act of the common council shall be by resolution or ordinance, and every ordinance or resolution shall, before it shall take effect, be presented, duly certified, to the mayor for his approval.

“The mayor shall return such ordinance or resolution to the board, within ten days after receiving it, or at the next meeting of She board thereafter.”

It is urged—First, that by these provisions only legislative acts are required to be submitted to the mayor for approval; and second, that the award to the Peerless Company of the contract in question was not a legislative act, We agree with neither proposition. The language of the charter is not every “such” ordinance or resolution, but “every ordinance or resolution shall, before it shall take effect, be presented to the mayor for his approval.” The fact that the direction that- ordinances and resolutions shall be submitted to the mayor is found in immediate association with the provision that legislative acts shall be by resolution or ordinance is not sufficient to limit the comprehensiveness of the terms “every ordinance or resolution.” .

In the charter of the city of Brooklyn (chapter 863, Laws 1873) the enactment is that “every ordinance or resolution of the board of aldermen * * shall, before it takes effect, be presented ® * to the mayor.” Under this provision it has been repeatedly held that the mayor could veto appointments or elections to office, as well as'legislative resolutions. Cassidy v. City of Brooklyn, 60 Barb. 105; Id., 47 N. Y. 659; People v. Schroeder, 12 Hun, 413; Id., 76 N. Y. 160. _

_ In the opinion delivered by Judge Miller, in the court of appeals, he says, referring to the acts of the common council:

“The right to veto ordinances and resolutions clearly extended to all acts of that body, whether legislative or otherwise; and in no sense can the .provision [of the charter] in the act of .1873, constituting the common council, be construed as interfering with the power of the mayor to interpose his objection to the appointment of the relator. The mayor had -no right to act as a legislator, but he retained in full force the right to disapprove of ail ordinances, acts, and resolutions which did, not meet his approval.”' 76 N. Y. 160.

The argument that the action of the common council under discussion was not legislative proceeds, in our opinion, on a failure to bear in mind that words are often used in different senses. The court below held that, in determining who was the lowest bidder,, the common council acted judicially. The same rule was held in the case of Gaslight Co. v. Donnelly, 93 N. Y. 557. The same expression is to be found in Wilson v. Mayor, etc., 1 Denio, 595, and Mills v. City of Brooklyn, 32 N.Y. 489.

In this class of cases the term “judicial" is not used in the sense of appertaining to.the judiciary or the administration of justice, but as indicating the exercise of discretion of judgment as distinguished from what is purely ministerial. It is not a thing distinct from legislative action, but on the contrary, the necessary ’ concomitant of all good legislation. Nor should the legislative power of the common council be construed as confined to laws-prescribing general rules of conduct for individuals or for the regulation of the city departments. A large part of all legislation is necessarily administrative in a certain sense. This is particularly' true of the legislature of municipal corporations, whose, power to prescribe by-laws or rules of conduct is very limited. The main-work "of all such bodies is to'act on the administration of local, affairs provide what improvements shall be made, what streets-opened, how water shall be furnished to the inhabitants, and matters of this nature. The action of the common council on all these subjects we consider legislative.

The direction of the charter is that, when an ordinance or resolution shall have been returned to it, “ the board, at its next regular meeting thereafter, shall proceed to consider the same, and' if on consideration, it shall pass by a vote of at least, four-fifths af! all the members elected to the boat'd at such regular meeting,' it shall take effect.” We see but little room for discussion of the proposition that the action of the board must be taken at the next regular meeting, for the provision is not"only that it shall be considered at that meeting, but it shall pass the board by the prescribed vote at that meeting. It is argued that this was intended to prevent delay in the action of the common council upon the veto, and that, if snch action be taken before the next regular meeting, it is as valid as if taken at that time. But there is nothing in the statute that gives countenance to the claim that the time prescribed for the action was any more intended to prevent dilatory than-it was hasty action. If we consider the matter from the standpoint of public interest, we think the danger from the one fully as great as from the other. There is but one safe way to construe this statutory provision; that is, according to the plain meaning of the language employed. Construed by this standard, it condemns the action of the common council as void.

Judgment appealed from should be affirmed, with costs.

All concur.


author: WILLIAMS, J.

text:
    Manhattan Railway Company, Resp’t, v. Thomas J. McKee et al., as Executors, etc. et al., Appl’ts.

      (Supreme Court, Appellate Divison, First Department,

      Filed Feb. 7, 1896.)

    1, Condemnation proceedings—Costs.
    Under the condemnation law (chapter 33 of the Code) the court shall direct the recovery of costs only in a case where an offer to purchase the property at a specified price could have been made, but was not made.
    3. Same.
    Where the owners are under legal disability to convey, they are not entitled to costs and the additional allowance of 5 per cent, on an award, though no offer to purchase was made by the petitioner.
    Appeal from so much of the order of the special term as denied the adult defendants their right to costs and an additional allowance.
    The proceeding was instituted under the provisions of the Code of Civil Procedure to acquire title to real estate in the city of Kew York. It is conceded that the defendants were, for various reasons, under legal" disability to convey the title of the property taken. It is apparent, therefore, that no offer to purchase the property could be -made by the plaintiff, under section 8S72 of the Code. The same section provides that, if no offer was made, the court should direct that the defendant recover of the plaintiff the costs of the proceeding, and might also grant an additional allowance of costs, not exceeding 5 per cent, lipón the amount awarded.
    The question is whether this latter provision applies to a case, where under the former provisions of the section, no offer could be made.
    William R. Page, for app’lts; Davies, Stone & Auerbach, for resp’t.
   WILLIAMS, J.

—We are of the opinion that the proper construction of the statute is that the court shall direct the recovery of costs only in a case where an offer could have been made, but was not made. It does not seem to us that the legislature intended that the plaintiff should be charged with costs for not making an offer which, under the stature, it had no right tamake. The obvious intention is to provide indemnity to the owner who has been subjected to the expense of an investigation, in case,of a failure to make the preliminary offer, and thus to give an opportunity to the owner to accept such offer and convey the property, without the institution of the proceedings. Where, however, there is a legal disability to convey, not only is an offer not provided for by the statute, but it would be an ideal ceremony, and of no avail, even if it could be made, and therefore the whole reason for charging plaintiff with costs fails. It is claimed that the supreme court in this department has allowed costs in one case, and disallowed them in another case, where precisely' this condition of things existed. In neither of these cases, however, was the question fully considered or deliberately passed upon. We now feel compelled to give the construction to the statute here stated, and tó hold that the adult defendants in this case are not entitled to costs.

The order appealed from should he affirmed, with costs.

All concur.