text:
    In the Matter of the Application of Certain FREEHOLDERS OF THE TOWNS OF MT. MORRIS AND CASTILE, for an Order Requiring the Commissioners of Highways of said Towns to Rebuild or Repair a Joint Bridge, Known as the St. Helena Bridge.

      Proceedings to compel towns to erect bridges — 1857, chwp. 039 — power of the court to determine as to the costs — when an inability to agree justifies an application —■ what must be specified in the order — the powers conferred upon the court are judicial in character.

    This proceeding was instituted, under chapter 639 of 1857, by freeholders of two adjoining towns to procure an order compelling the commissioners of highways of the said towns to rebuild a bridge over a stream dividing the two towns, which bridge the towns were bound to make and maintain. The referee reported that the bridge should be built; that the highway commissioners and proper officers of each town were willing to build and maintain the bridge, but could not agree as to whether it should be built of wood or wrought-iron, one town favoring the former and the other the latter material; that a wrought-iron bridge with stone piers should be used, instead of a wooden structure, at a cost not exceeding the sum of $9,000, one-half to be paid by each town.
    Upon an appeal from an order of the Special Term, confirming the report of the referee, it was contended that under the act the court had no power to compel the expenditure of a larger sum of money than the towns had power to provide or contract for without the order of the court.

      Seld, that this contention did not accord with the intention of the act as shown in the fourth and fifth sections thereof.
    That the inability of the commissioners of towns to agree as to the kind of bridge, resulting in a neglect to build any bridge, justified an application to the court.

      That an objection that tbe order was too indefinite and uncertain was not maintainable as tbe order defined tbe location of tbe bridge, tbc material of wbicb it was to be constructed, and limited its cost.
    That tbe act was not unconstitutional, and did not confer upon tbe court a power not judicial in its nature.
    Appeal from an order of the Erie Special Term, requiring the commissioners of highways of the towns of Mt. Morris and Castile to build an iron bridge across the Genesee river at St. Helena.
    5. Hubbard, for the appellants,
    commissioners of highways of Mt. Morris.

      JE. C. Olney, for the respondents,
    freeholders, etc.
    IF'. M. Gledhill, for the respondents,
    commissioners of highways of Castile.
   Smith, P. J.:

This is a proceeding under chapter 639 of the Laws of 1857. That act provides that whenever any adjoining towns shall be liable to make or maintain any bridge over any stream dividing such towns, whether in the same or different counties, it shall be lawful' for three freeholders in either of such towns, by a petition in writing signed by them, to apply to the commissioners of highways in each of such towns to build, rebuild or repair such bridge, and if such commissioners refuse to build, rebuild or repair such bridge within a reasonable time, either for want of funds or any other cause, the said freeholders, upon affidavit and notice of motion served as prescribed in the act, may apply to the Supreme Court, at a Special Term thereof to be held in a judicial district in which such bridge, or any part thereof, shall be located, or to a judge of said court at chambers, for a rule or order requiring such commissioners to build, rebuild or repair 'such bridge, and the court or judge shall make such order thereon as the justice of the case shall require. The act further provides that if such motion be granted in whole or in part, whereby funds shall be needed by the said commissioners to carry said order into effect, such court or judge shall specify the amount of money required for that purpose, and how much thereof shall be raised in each town.

The present application was based upon a petition of freeholders of each town, duly verified, and the matter was referred as provided by the act. The referee reported, among other things, that the town of Mt. Morris, in Livingston county, and the town of Castile, in Wyoming county, adjoin each other, and lie on opposite sides of the Genesee river, the center of which stream is the boundary line between said towns; that there is a legal highway in Mt. Morris, extending to and meeting a legal highway in Castile, at a point in the center of said river, at a place known as the St. Helena bridge, the said two highways so meeting constituting a continuous road which has been traveled and used as a public highway for upwards of thirty years; that for more than thirty years next prior to the 6th day of February, 1864, a wooden bridge had been erected and maintained at the point aforesaid, known as the St. Helena bridge, and for several years prior to that date had been rebuilt and maintained at the equal and joint expense 'of said towns ; and that at the date last mentioned it was destroyed and a large part of it was carried away by a flood, whereby it was rendered impassable and has remained in that condition to the present time; that there is a public necessity for a bridge at that point; that the highway commissioners and proper officers of Mt. Morris have been at all times willing to build and maintain said bridge, and to contribute an equal amount with the town of Castile to the expense of the same, if a wooden bridge should be erected, or the portion of the bridge not taken away shall be repaired with wood, and the necessary iron with which, to repair and rebuild a wooden bridge ; while the commissioners of highways of the town of Castile and the proper officers thereof have been at all times ready and willing to so contribute an equal share to the erection and maintenance of a bridge at the place aforesaid, if the same shall be built of wrought-iron, with such portions of wood as may be necessary to erect and maintain what is known as a wrought-iron bridge; and for the sole reason that they were unable to agree as to the kind of bridge, no bridge has been erected, both parties acting in good faith in relation thereto. The referee also reported upon evidence which we think substantially supports his findings, that a wooden bridge can be erected at the point in question for about $5,000, and an iron bridge for about $9,000; that the average life of a wooden bridge is about twelve years, and that of an iron bridge about seventy-five years; and that neither town has on hand any funds with which to erect a bridge at the place aforesaid. The referee also found, as matter of law, that said two towns are liable to make and maintain said bridge at the joint expense of said towns; that a wrouglit-iron bridge with stone piers be used instead of a wooden structure; that the cost thereof do not exceed the sum of $9,000, one-half of which be paid by each town ; and that the expenses of the said proceeding be shared equally by said towns. The Special Term confirmed the report, and made an order in accordance with it, from which order this appeal is taken.

It is contended, on the part of the appellant, that under the act of 1857, the court has no power to compel the expenditure of a larger sum than the towns have power to provide or contract for without the order of the court. That contention, we think, does not accord with the intention of the act. By the express terms of the statute, the court may act, notwithstanding the refusal or neglect of the commissioners is put upon the sole ground of the want of funds. By the fourth section of the act, the commissioners are authorized to pledge the credit of the town, so far as may be necessary for doing the work ordered, and the fifth section provides for raising by tax the money needed to defray the cost of the structure, not exceeding the amount specified in the order. The statute is one of public benefit, intended to meet cases of pressing public necessity, and in providing a mode of erecting bridges over'streams dividing towns and counties, it contemplates that occasions may arise requiring the expenditure of larger sums of money than towns are authorized to raise annually for the ordinary repair of internal highways and bridges.

It is also contended that the court had not jurisdiction to make the order, for the reason that no refusal of the commissioners is shown, to build, rebuild or repair, etc. While it appears that the commissioners of each town were willing to build a new bridge, .yet their inability to agree as to the kind of bridge, those of Mt. Morris insisting that it shall be of wood, and those of Castile insisting that it shall be of iron, has resulted in a neglect or refusal to build any bridge whatever. A case of public inconvenience is thus presented, we think, which justifies an application to the court under the statute.

Again, it is contended that the order is too indefinite and uncertain to be executed, as it does not describe the bridge to be built, except that it is to be of iron. This objection is not well taken. The fourth section of the act provides that the commissioners of the two towns, on being served with the order, shall forthwith meet and fix on the plan of the bridge, or the manner of repairing the same, and shall cause the same to be built, etc. The order defines the location of the bridge, and the material of which it shall be constructed, and limits its cost. That is as far as it could properly go, in the first instance at least. In leaving the details of the plan to the action of the commissioners, it evidently complies with the intention of the statute. It is unnecessary now to consider what remedy shall be pursued in case the commissioners fail to fix upon a plan.

Lastly, it is contended by the counsel for the appellant, that the order is the exercise of a power not judicial in its nature, and which the legislature has no constitutional authority to delegate to the courts. With this contention we are not prepared to agree. To determine the liability of towns to erect and maintain bridges, to enlorce such liability, and to order the mode in which it shall be performed, are acts peculiarly judicial in their character. An analogous appellate jurisdiction in respect to the laying out, altering or discontinuing roads, has for a long time been vested in the courts by statute.

The order should be affirmed, with ten dollars costs of the appeal and disbursements to be paid by the appellant to the respondents.

Haight, Barker and Bradley, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Smith, P. J. :

license: Public Domain

text:
    SOLOMON FINKLESTEIN, as Administrator, etc., of ETTA FINKLESTEIN, Deceased, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Injury to a child from the negligent hacking of an engine over a street crossing — duty of a flagman to warm persons of approaching trains — when the rate at which an engine is running across a street used by many persons is to he considered by the jury — the giving of the statutory signals does not necessarily establish due care.

    The plaintiff’s child, a strong intelligent girl about nine years old, while returning from an errand on which she had been sent by her mother, was struck and killed at the Chatham street crossing, in the city of Rochester, by one of the defendant’s engines. The crossing is in a populous part of the city, the streets running north and south and being crossed at right angles by five of the defendant’s tracks. As the child, with two boys, each two or three years older than herself, approached the tracks, going south, a freight train, with a caboose on the rear end, crossed the street on the north track, going west. After the train passed, and before the caboose had passed out of the street, one of the boys started to cross the tracks, and either succeeded in doing so or stepped back (the evidence as to what he did being conflicting); the girl then started to cross the tracks and was struck by an engine and tender, backing to the east, upon the track just south of that upon which the freight train had passed.
    The testimony as to whether or not the bell of the engine was rung was in conflict. The crossing was a flag station, and there was a flagman there at the time of the accident who testified that he knew the engine was approaching behind the freight train. Other testimony showed that he stood on the ■street, on the north side of the tracks in sight of the children, with his flag under his arm, and that he gave no warning or signal of danger. It was an hour when numbers of people were accustomed to cross the tracks at that point on going home from their work; ten or eleven persons being at the crossing at the time of the accident.
    The plaintiff’s counsel requested the court to charge that the flagman owed a duty to the child to warn her against going on the crossing, and that if he was ■negligent in that regard the defendant was chargeable with negligence; that if the flagman was aware of the approach of the backing engine and did not warn the child of its approach, not to go upon the crossing, then he was negligent in the discharge of his duty and the defendant was chargeable with that negligence. The court refused so to charge, but instructed the jury that “if the flagman was guilty of any negligence, that may be taken into account as negligence of the defendant, but I do not charge you that he was bound to warn that child against going across there. If he had any reason to believe that she was going to dash across as soon as the locomotive passed, then it would have been his duty to warn her, but he had no reason to assume that they would rush immediately past as the caboose went by.”
    The court had before charged that while the street was cut off by the long freight train the flagman could do nothing; that the train itself was a warning, and that his duties were not active while the train was moving.

      Held, that it was error to refuse to charge, that if the flagman was aware of the approach of the backing engine and gave no warning, he was guilty of negligence which was imputable to the defendant.
    The testimony as to the speed of the engine varied from four or six to ten or fifteen miles an hour. The plaintiff put in evidence a penal ordinance of the city of Rochester prohibiting any railroad company from propelling an engine or car in or through said city, at the place of the accident, at a greater rate than eight miles per hour. The plaintiff’s counsel requested the court to charge that, whether the engine was going at a speed less than eight miles an hour or not, it was for the jury to say whether the rate of speed was undue or not, under the circumstances of the case.

      Held, that it was error to refuse to so charge.
    The court was requested, but refused to charge, that if the jury found that the bell was rung that would not necessarily establish due care on the part of the defendant, if the jury were of the opinion that the circumstances, at the time and crossing in question, required other and additional precautions to secure the safety of the child and persons at the crossing.

      Held, that it erred in refusing to so charge.
    The judge charged as follows: “It is the duty of every person crossing a railroad track to use their eyes to see the approach of trains; to see the trains that are approaching, and to use their ears also; and it is their duty to look both ways before entering upon a crossing of a railroad, if it can be done; and it is negligence on the part of the person where he can see, and does not try to see, the approaching train; and I charge you that this applies to the deceased.”

      Held, error; that although the rule thus laid down would have been proper in the ease of an adult under ordinary circumstances, it was not applicable to a child under nine years of age under the circumstances of this case.
    Appeal from a j'udgment in favor of tbe defendant, entered on a verdict rendered at the Monroe Circuit, and from an order denying a motion for a new trial made on a case.
    IF. S. Oliver, for the appellant.

      Edward Harris, for the respondent.
   Smith, P. J. :

Action to recover damages for the alleged negligent killing of the plaintiff’s child by a collision of one of defendant’s engines at the Chatham street crossing, in the city of Rochester.

The crossing is in a populous part of the city. The street runs north and south and the railroad crosses it nearly at right angles, with five tracks. The tracks are numbered one, two, three, four, from the south, and the fifth track on the couth is a side track. There is a sidewalk on each side of the street.

The child Etta was nine years old. She lived in, her father’s family, a little south of the railroad on the east side of the street, and she was familiar with the crossing. She was in good health, strong and intelligent: The accident occurred on the 15th of March, 1881, about six o’clock in the afternoon. Etta had been sent by her mother to carry a plate of fruit to a neighbor on the north side of the track, and was returning with the plate in her hand in company with her brother Harris, and another lad, High-man, each two or three years older than herself. As they approached the tracks a freight train, with a caboose on the rear end, was crossing the street, going west on track No. 4. Harris, the brother of Etta, testified that when the caboose got about half way across the street, Highman crossed the tracks, and then Etta started to cross ; the witness was going to cross, and then an engine passed out from behind the freight train and Went right over Etta.” Highman stated the occurrence somewhat differently. He testified that when the freight train passed, Etta was standing between him and her brother; witness looked east and west and saw nothing coming; he started first and got two or three feet and saw the engine coming and stopped; Etta ran by him and was struck by the engine. Harris also testified that the caboose was upon the street when the engine came out from behind it; that the engine was going pretty fast; that as they stood there waiting the freight train prevented their seeing to the west; that as the train passed its wheels made a noise on the tracks ; that he heard no noise or signal from the engine, and he saw nothing of it till it came. The engine was on track No. 3, and was backing to the east. It was forty-six or forty-seven feet long; its weight was about thirty tons; it had a tender in front of it as it was running, which was nineteen feet long, and which, as the defendant’s engineer in charge of the .engine testified, intercepted his view of the track about seventy feet. The engineer also testified, upon the defendant’s examination, that from observations made by him he had discovered that from the place on the foot-board of the engine, where the engineer stands, he could see a boy twelve years old fifty-one feet ahead of the tender — see the rim of his hat that is all. He further testified, on cross-examination, that on the occasion in question, he could not see anything to the north of his engine, because of the passing freight train, and that before he got to Chatham street, he was looking back to St. Joseph street, but that when he came to the west side of the crossing he was looking east. He also testified that there was a sand-box on his engine, intended to be used for checking speed, but it could not be used in backing. The testimony as to the speed of the engine varied from four or six miles to ten or fifteen miles per hour. The Chatham street crossing was a flag station. There was a flagman there at the time, who testified that he knew the engine was approaching behind the freight train. There was testimony tending to show that he stood on the street on the north side of the tracks, in sight of the children, with his flag under his arm, and that he gave no warning or, signal of danger. It was an hour when numbers of people were accustomed to cross the tracks at that point in going from their work, and the engineer in charge of the engine knew that fact. Ten or eleven of the witnesses called, besides the children and the flagman, wrere at the crossing at the time. The employees on the engine testified that the bell was rung, but all the witnesses who were at the crossing, except the flagman, testified that they did not hear it.

The questions of negligence and contributory negligence were submitted to the jury, and they found for the defendant.

The plaintiff’s counsel requested the court to charge the jury that the flagman owed a duty to the child to warn her against going on the crossing, and that if he was negligent in that regard, the defendant is chargeable with negligence. The court refused so to charge, but instructed the jury as follows: If the flagman was guilty of any negligence, that may be taken into the account as negligence of the defendant; but I do not charge you that he was bound to warn that child against going across there. If he had any reason to believe that she was going to dash across as soon as the locomotive passed, then it would have been his duty to warn her; but he had no reason to assume that they would rush immediately past as the caboose went by. To the refusal to charge as requested, and to the charge as given, the plaintiff’s counsel excepted.

The plaintiff’s counsel also asked the court to charge “ that if the flagman was aware of the approach of the backing engine and did not warn the child of its approach, not to go upon the crossing, then he was negligent in the discharge of his duty, and the defendant is chargeable with that negligence.” The court declined except as charged, and the plaintiff excepted.

Before the requests above stated were made, the court had charged the jury, in substance, that while the street was cut off by the long freight train, the flagman could do nothing; that the train was a warning; that he was there to warn, so far as that train was concerned, persons that would be liable to cross ahead of it, and that his duties were not active while that train was moving.

We are of the opinion that the trial judge erred in refusing to charge that if the flagman was aware of the approach of the backing engine, and gave no warning, he was negligent, and his negligence is imputable to the defendant. It was held in Kissenger v. The New York and Harlem Railroad Company (56 N. Y., 538) that although it is not negligence for a railroad company to omit to keep a flagman at a crossing, yet if one is employed, his neglect to perform the usual and ordinary functions of the place may be sufficient to charge the company. That if one approaching a crossing where there is a flagman does not hear the bell of an approaching engine, and the flagman neglects to give any warning and an injury happens, solely produced by such neglect, it is sufficient to make the company liable. That rule was affirmed and applied in the case of McGovern v. The New York Central and Hudson River Railroad Company (67 N. Y., 417). In each of those cases the plaintiff’s injury was caused by the sudden approach of a backing engine masked by an intervening train. In the McGovern case the person injured was a boy eight years old, and Andrews, J\, delivering the opinion of the Court of Appeals, said: “ In this case it was the obvious duty of the flagman to warn the children, as well of the backing 'engine, as of the passing train. Indeed, it was much more necessary for him to do the former, because the other danger was apparent.” (P. 423)

In this view of the case it is not material whether the flagman had reason to suppose that the children intended to cross immediately after the train had passed, or whether he knew of the presence of the children. His duty was not specially to the deceased, but to all the persons who were there in his view waiting to cross the tracks; and it was his duty to warn them of the backing engine as soon as he knew of its near approach.

The plaintiff put in evidence a penal ordinance of the city of Rochester, which prohibited any railroad company from propelling an engine or car in or through said city, between North and Brown streets, at a greater speed than eight miles per hour. The plaintiff’s counsel asked the court to charge that whether the engine was going at a speed less than eight miles an hour or not, it was for the jury to say whether the rate of speed was undue or not, under the circumstances. The request was declined and an exception was taken. In view of the facts that the street was one largely traveled; that it was at an hour of the day when the street was in use by people going from their work ; that there was a freight train just about to uncover the crossing; that the engine was running backwards and the tender cut off the view of the track for a distance of seventy feet in advance, all which facts were known to the persons operating the engine, we think the question was fairly presented whether the rate of speed of the engine was more rapid than was consistent with the exercise of due care, without reference to the ordinance, and that the question should have been submitted to the jury.

The plaintiff’s counsel asked the court to charge that if the jury find that the bell was rung, that will not necessarily establish due care on tire part of the defendant, if the jury are of the opinion that the circumstances, at the time and crossing in question, required other and additional precautions to secure the safety of the child and persons at the crossing. The request was declined, and an exception taken. Hnder the circumstances already stated, we think the plaintiff was entitled to an instruction in accordance with the request, and its refusul was error. (Richardson v. The New York Central R. R. Co., 45 N. Y., 846 ; Eaton v. The Erie Ry. Co., 51 id., 544; Weber v. The N. Y C. and H. R. R. R. Co., 58 id., 451; Dyer v. The Erie Ry. Co., 71 id., 228 ; Ryan v. N. Y. C. and N. R. R. R. Co., 37 Hun, 186, per Barker, J., pp. 188, 189; Barry v. N. Y. C. and H. R. R. R. Co., 92 N. Y, 289.)

The judge charged the jury as follows : “ It is the duty of every person crossing a railroad track to use their eyes to see the approach of trains; to see the trains that are approaching, and to use their ears also; and it is their duty to look both ways before entering upon a crossing of a railroad, if it can bé done ; and it is negligence on the part of the person where he can see and does not try to see the approaching train, and I charge you that this applies to the deceased.” This instruction was excepted to. The rule thus laid down would have been proper in the case of an adult, under ordinary circumstances, but is it applicable to a child nine years of age, under the circumstances of this case ? In so far as the instruction required the same degree of caution and care from the deceased child as the law requires from an adult under like circumstances, we regard it as erroneous. The degree of care required of an infant of tender years, the omission of which will constitute negligence on his part, is entirely different from that required of an adult. It is to be measured in each case by the maturity and capacity of the individual, the law only requiring that degree of care to be reasonably expected in view thereof. (Thurber v. The Harlem Bridge, M. and F. R. R. Co., 60 N. Y., 326, and cases there cited by Allen, J., pp. 335, 336; McGovern v. N. Y. C. and H. R. R. R. Co., 67 id., 417, 420; Byrne v. N. Y. C. and H. R. R. R. Co., 83 id., 620; Dowling v. N. Y. C. and H. R. R. R. Co., 90 id., 670; Barry v. N. Y. C. and H. R. R. R. Co., 92 id., 289.)

The judgment and order should be reversed and a new trial granted, costs to abide event.

Barker, Haight and Bradlet, JJ., concurred.

Order reversed and new trial ordered, with costs to abide event.


author: Smith, P. J.:

text:
    CLARA E. BANGS, Plaintiff, v. ELLEN A. BANGS and JOHN W. OSBORN, Jr., Defendants.

      Surety to a bond given by a general guan'dian— when he cannot defend upon the . ground that an agreement, that another surety should be procured, was not complied with.

    This action was brought upon a bond, under seal, given by Ellen A. Bangs and the defendant Osborn, as her surety, on the appointment of the former by the surrogate of Monroe county, as the general guardian of her step-daughter, the plaintiff, who was then a minor over the age of eighteen years. The action was defended by Osborn on the ground that the bond was signed and acknowledged by him, pursuant to an understanding or agreement between the plaintiff and the defendants that it should not be used or filed in the office of the surro- ' gate until and unless it should also be signed and executed by one of three individuals named, or some other responsible person, as co-surety, and that it should be returned to him, if such co-surety was not obtained, and that the bond was handed to the defendant Ellen A. Bangs, or to her attorney for her, upon that agreement or understanding.
    The bond was filed in the surrogate’s office, and was, although signed by but one surety, approved by him, contrary to the practice of the office which required two. The bond was in all respects fair, regular and complete on its face, as the bond of the guardian and one surety, and contained nothing to indicate that it was to be signed by any other person.

      Held, that as the plaintiff was a minor she was not affected by any notice she might have had of the said agreement or understanding, and that the defense could not be sustained.

      The People v. Bostwiek (33 N. Y., 445) distinguished and doubted; GrimwoodY. Wilson (31 Hun, 315) distinguished.
    Where there is nothing upon the face of the paper indicating that other sureties are expected to become parties to the instrument, and no fact is brought to the knowledge of the obligee before he accepts the instrument calculated to put him on his guard in respect to that point, and to induce him, in the exercise of ordinary and reasonable caution and prudence, to make inquiry before accepting the security, the fault cannot be said to rest to any extent upon the obligee, and the failure to procure other sureties is no defense.
    Motion by the defendant Osborn for a new trial on exceptions taken at tbe Monroe Circuit, and ordered to be beard at tbe General Term in tbe first instance.

      J. M. Dunning, for tbe plaintiff.

      J. A. Stull, for tbe defendants.
   Smith, P. J.:

The action is on a bond, under seal, given by Ellen A. Bangs and the defendant Osborn, as her surety, on the appointment of the former by the surrogate of Monroe county, as the general guardian of her step daughter, the plaintiff, who was then a minor over the age of eighteen years. One of the defenses set up in the answer, and the only one that need be considered, is that the bond in suit was signed and acknowledged by the defendant Osborn in pursuance of an understanding or agreement between the plaintiff and the defendants, that the bond should not be used or filed in the office of the surrogate until and unless it should also be signed and executed by one of three individuals named, or some other responsible person as co-surety with Osborn, and that it should be returned to Osborn if such co-surety was not obtained, and that the bond was handed to the defendant Ellen A. Bangs, or to her attorney for her, upon that agreement or understanding, and not otherwise. The defendant Osborn, and his brother "Wilbur F. Osborn, gave testimony tending to show a parol agreement or understanding of that nature. The plaintiff, as a witness in her own behalf, denied all recollection of it. The guardian was not examined as a witness, she having died before the trial. The original bond was put in evidence, and it was also exhibited to the court on the argument of the present motion. It was a printed blank, filled up in manuscript. The defendant Osborn was described in it “as surety,” and in the affidavit, signed by him on the bond, he described himself as “ the surety,” and no place was left, either in the bond, acknowledgment or affidavit, in which to put any other name; nor was any other seal affixed to the bond than the seals opposite the names of the guardian and the defendant Osborn." The bond was, in all respects, fair, regular and complete on its face, as the bond of the guardian and her surety Osborn.

The testimony on the part of the defendant tends to show, that he signed and acknowledged the bond at Mrs. Bangs’ house; that being in a hurry he left it with her to be completed by getting a co-surety; that after he left the house, Mrs. Bangs requested Wilbur F. Osborn, who is a lawyer, to leave the bond at the surrogate’s office, she promising to procure another surety and bring him there to sign and complete it; that Wilbur Osborn accordingly took the bond to the office of Mr. Shuart, the surrogate, and not finding him there, stated the circumstances to Mrs. Potter, an assistant in the office, and urged that it was very necessary for the interests of the ward to get possession, as soon as possible, of a fund belonging to her that was then in the hands of an insurance company; that Mrs. Potter said the surrogate would not grant letters of guardianship on a bond with only one surety ; that such was the practice of the office, but that she would issue a certificate of guardianship on which they could get the money, but that if the other surety was not furnished in a few days the whole thing would be revoked ; and that she did issue such certificate with which Mrs. Bangs got the money. The certificate seems to have had the signature of the surrogate upon it, although he was absent at the time, and so far as the case shows, was ignorant of its issuing. No other surety was obtained, nor was the certificate revoked. On the contrary, when the surrogate returned home, he found the bond on his table, and in some way, which he was unable to explain in his testimony, he having forgotten the circumstances, he approved the bond, although his invariable practice was, with that single exception, to require two sureties on a guardian’s bond.

When the minor became of age, the guardians’ accounts were judicially settled, and ultimately a decree was entered against her for a sum which, with interest to the time of the trial, amounted to $847.40, for which sum a verdict was rendered. An execution was issued on such decree and returned unsatisfied before this action was commenced.

We think the defense cannot be maintained. The defendants’ counsel relies mainly upon the case of The People v. Bostwick (43 Barb., 9; S. C. affirmed, 32 N. Y., 445). It has been said in the Court of Appeals, that the decision in that case may well be questioned. (Russell v. Freer, 56 N. Y., 67, per Grover, J., p. 71.) The case has been severely criticised in other states. (Deardorff v. Foresman, Sup. Ct. of Indiana, 5 Am. L. Reg. [N. S.], 539 ; State v. Potter, Sup. Ct. of Missouri, 16 Am. L. Reg. [N. S.], 170.) Decisions adverse to it have been made by the Supreme Court of Maine (The New York County M. F. Ins. Co. v. Brooks, 3 Am. L. Reg. [N. S.], 399; State v. Peck, 53 Me., 284); in Indiana (State v. Pepper, 31 Ind., 76); in Kentucky (Millett v. Parker, 2 Metc., 608); and by tbe Supreme Court of the United States (Dair v. The United States, 16 Wall., 1). We are not aware that the case has been cited approvingly by our Court of Appeals, except in the recent case of Whitford v. Laidler (94 N. Y., 145), where it was referred to in support of a rule very different from that on which the defense rests in the case before us, namely, that it is competent for the parties to a contract to agree upou the method of its execution and delivery, and if any material stipulation relating thereto remains unperformed by them, the instrument will not take effect as their contract. In that case, an instrument purporting to be a contract between the plaintiff of one part, and thirteen individuals therein named of the other part, - was signed by the plaintiff and by some, but not all of the thirteen, and by the mutual consent of all signing, was left with another person, not a party to it, to procure the signatures of the other parties named therein, and upon his accomplishing that object he was instructed to deliver the paper to the town clerk. Held, that until that condition was performed, the writing was incomplete and unexecuted. Bostwick’s case was also cited with approval by Davis, P. J., in Grimwood v. Wilson (31 Hun, 215). That was an action on an undertaking given on an appeal from a judgment to the General Term, signed b3r the appellant and one surety only, the statute requiring two. (Code of Pro, § 335.) The surety defended on the ground that he signed upon the condition that another surety should be procured. Judge Davis said in his opinion that the plaintiff must be presumed to know that the law required two sureties, and if he, of his own motion, chose to waive that requirement, and to accept the instrument with one surety, he ought at least to have been sure that the single surety had consented to accept the increased responsibility thrown upon him by the absence of another surety. Daniels, J., concurred on the ground that as the undertaking in the form in which it was filed was insufficient to create a stay, and the plaintiff, therefore, was deprived of no right, nor delayed in the collection of his judgment, by the giving of the undertaking, the failure to comply with the conditions imposed by the defendant signing it, was a defense. J ustice Davis cited, in connection with Bostwick’s case, Benton v. Martin (52 N. Y., 570) and Bookstaver v. Jayne (60 id., 150), which hold that an instrument not under seal ma3T be delivered upon conditions, the observance of which, as between the parties, is essential to its validity, and that may be regarded as the extent to which the court, in Grimwood v. Wilson, intended to go.

But whether or not the Bostwiclc case has been weakened as authority, the rule there laid down has not been extended beyond the facts of that case. The defense there was that the bond was signed upon the condition that it should be signed, also, by one Dickinson, which was not done. The bond was delivered to the proper officer, and the fact appears that lie was told at the time that Dickinson would call and sign the bond, and he replied that it was good enough as it was. (43 Barb., 12.) The importance of that fact was commented on by Hardin, J., in Richardson v. Rogers (50 How. Pr. R., 403), and was regarded by him as distinguishing the Bostwiclc case from the one with which he was dealing. No such fact can properly be held to exist in this case, since the plaintiff, being a minor, was incapable of receiving or being charged with notice, to her prejudice.

We feel at liberty, therefore, to hold that the rule laid down in Bostwick’s case is not applicable here. The true rule by which this case is to be governed, we think, is that laid down, in substance, in many of the cases cited above, io wit, that wheie there is nothing upon the face of the paper indicating that other sureties were expected to become parties to the instrument, and no fact is brought to the knowledge of the obligee before he accepts the instrument calculated to put him on his guard in respect to that point, and to induce him, in the exercise of ordinary and reasonable caution and prudence, to make inquiry before accepting the security, the fault cannot be said to rest to any extent upon the obligee, and the failure to procure other sureties is no defense.

Here, the minor is the obligee named in the bond. As has been said, notice to her is of no effect, by reason of her minority. The bond was not delivered to her, but was required to be tiled in the surrogate’s office for her benefit. By a series of misadventures, not to say irregularities, for which she was in no way responsible, the bond was received, approved and filed, with only one surety, contrary to the practice of the office, which required two. In these circumstances, we think, the trial judge decided correctly in overruling the defense. There are some exceptions to rulings upon questions of evidence. We have examined them, and think they point to no error.

The motion for a new trial should be denied, and judgment ordered for the plaintiff on- the verdict.

Haight and Bradley, JJ., concurred; Barker, J., not sitting.

So ordered.


text:
    FRANK GILBERT, Appellant, v. JOHN PRITCHARD and Others, Respondents.
    Pleading— in an action of trespass every item of damage sustained may be alleged in one count.

    The first count in the complaint alleged an assault and battery; the second alleged that the defendants broke the plaintiff’s close on a day stated, and then and there trod down the grass and crops and assaulted and beat the plaintiff.

      Held, that the second count stated but one cause of action, which, under the old practice, was known as trespass quaire clausum fregit, the injury to the grass and crops and to the plaintiff’s person being stated, not as separate causes of action but in aggravation of the trespass.
    Appeal from an order of the Wyoming Special Term requiring the plaintiff to separately state and number the two causes of action alleged in the second count of the complaint.

      E. E. db G. W. Harding, for the appellant.

      M. E. db E. M. Bartlett, for the respondents.
   Smith, P. J.:

The first count in the complaint alleges an assault and battery; the second alleges that defendants broke plaintiff’s close, on a day stated, and then and there trod down the grass and crops and assaulted and beat the plaintiff. The second count, as well as the first, alleges but one cause of action. It is what, under the old nomenclature, was known as trespass guare clausum fregit, the injury to the grass and crops and to the plaintiff’s person being stated, not as separate causes of action, but in aggravation of the trespass. Instances of this form of pleading were familiar under the old practice. ( Van Leuven v. Lyke, 1 Comst., 515 ; Howe v. Willson, 1 Denio, 181; Dunckle v. Kocker, 11 Barb., 887; Clark v. Van Vrancken, 20 Barb., 278.) And as there is nothing in the Code prohibiting a party from alleging in one count every item of damage he may have suffered from a single trespass, that form of pleading is still good.

The order appealed from should be reversed and the motion denied, with ten dollars costs and disbursements of the appeal.

Barker and Bradley, JJ., concurred; Haight, J., not sitting.

Order reversed, with ten dollars costs and disbursements, and motion denied.


text:
    GILMAN H. PERKINS and Others, Respondents, v. GEORGE R. SMITH and Others, Appellants.

      Usury — when the retention of a fixed amount under the name of exchange constitutes usury — exception in favor of banking associations, pi'ivate and individual bankers, created by section 68 of chapter 409 of 1882 — meaning of the words “private ” banker.

    In this action, brought by the surviving members of a firm conducting the business of banking, but not organized or doing business by virtue of any statute of this State, to foreclose a mortgage given by three of the defendants to secure the payment of all commercial paper discounted or held by the mortgagees, and bearing the names of the mortgagors, the defense of usury was interposed. The court found that before the mortgage was given it was agreed between the firm and the defendant Smith that the firm should lend him money upon his promissory notes, and that Smith should allow to the firm, in addition to interest on said loans, one-fourth of one per cent exchange upon the face of said notes. It appeared that the proceeds of the discount of the notes were delivered to the maker in the form of a credit on the books of the firm, and that the amount of such credit showed that the firm, on the discount of each note, retained the stipulated rate of exchange, in addition to interest at six per cent for the time each note had to run.
    The court also found that the notes were made payable in the city of New York at the desire and request of the plaintiffs; that there was then no rate of exchange between Rochester and New York, and that Smith had no bank account in the latter city. It also found that by the one-fourth of one per cent exchange was intended and meant a charge for letter-writing and collecting the notes in the city of New York, and the profits which would arise to the plaintiffs from making such collections by reason of the facilities which the plaintiffs, as bankers, had for making such collections, and that said charge was a reasonable one.

      jHeld, mat but for the statute hereinafter referred to, the retention of the one-fourth per cent, under the said agreement by the plaintiffs’ firm, would have been usurious and have rendered void the mortgage.

      Price v. Lyons’ Bank (83 JN. Y., 55); The Seneca Bounty Bank v. Schermerhorn (1 Den., 132), followed.
    That the retention of the said one-fourth per cent did not render the loan usurious in this case for the reason that the plaintiffs’ firm were “private ” bankers, doing business within this State, within the meaning of that term as used in section 08 of the general banking act of 1882, chapter 409, which provides that “the purchase, discount or sale of a bona fide bill of exchange, note or other evidence of debt, payable at another place than the place of such purchase, discount or sale, at not more than the current rate of exchange for sight drafts, oí' a reasonable charge for collecting the same, in addition to the interest, shall not be considered as taking or receiving a greater rate of interest than six per centum per annum.”
    Appeal from a judgment in favor of the plaintiffs, entered upon a decision of the court at the Monroe Equity Term.

      T. E- Bramble and Theodore Bacon, for the appellants.

      Martin W. Coolce, for the respondents.
   Smith, P. J.:

Action by the surviving members of the firm of Erickson, Jennings & Co. to foreclose a mortgage given to the firm by three of the defendants, dated 13th Eebruaiy, 1884. The mortgage was given as a continuing security for the term of ten years, to the amount of $10,000, for the payment of 'all commercial paper discounted or held by the mortgagees and bearing the names of the mortgagors. The members of the firm, as such, were private bankers, that is to say, they were engaged as partners in the business of banking, but they were not organized or doing business under or by virtue of any statute of this State. The foreclosure was sought by reason of the non-payment of two promissory notes, one for $2,500, dated 7th February, 1884, and the other for $1,500, dated 11th February, 1884, each payable at the National Park Bank, in New York city, at three months, made by the defendant George R. Smith, and discounted by the firm at their banking office in the city of Rochester.

The defense is usury. The trial court found that shortly before the first note (was given it was agreed between the firm and the defendant Smith that the firm should lend him money upon his promissory notes secured by mortgage, and that it was a part of said ageeement that Smith should allow to the firm, in addition to interest on said loans, one-fourth of one per cent exchange upon the face of said notes. The court did not find that anything was paid to the firm or retained by them, by way of exchange, or in addition to the interest, but the uncontradicted evidence in the case is that the proceeds of the discount of each note were delivered to the maker in the form of a credit on the books of the firm, and that the amount of such credit, on the discounting of the note for $2,500, at its date, was the sum of $2,454.79, and the amount of such credit on the discounting of the note for $1,500, at its date, was the sum of $1,472.87. The court did find, however, that at the time of making such discounts, respectively, the plaintiffs intended to take, in addition to interest at the rate of six per cent per annum, one-fourth of one per cent, upon the face of said notes, respectively, calling the same exchange. ITe also found that said notes were made payable in New York at the desire and request of the plaintiffs; that there was then no rate of exchange between Rochester and New York, in the sense of a premium, for the greater value of funds in one place over the value of funds in the other; that Smith had no bank account in New York, and the plaintiffs knew that fact; and that by the one-fourth of one per cent exchange was intended and meant a charge for letter-writing and collecting the notes in the city of New York, and the profits which would arise to the plaintiffs from making such collection by reason of the facilities which the plaintiffs, as bankers, had for making such collections, and that said charge was a reasonable one.

Upon these facts the question of usury is to be determined. We will first consider the question independently of the statutes which provide that a reasonable charge made by any of the banking associations or banker’s therein specified, for collecting a note discounted by such association or banker, payable at another place than the place of such discount, in addition to the interest, shall not be considered as taking a usurious rate of interest. (Laws 1870, chap. 163, and Laws 1880, chap. 567, repealed by Laws 1882, chap. 402, § 1, subs. 29, 37; Laws 1882, chap. 409, § 68.)

The amount of the credits in the bank-book shows that the plaintiffs, on the discount of each note, retained the stipulated rate of exchange in addition to interest at six per cent for the time each note had to run. It has long been held in this State that it is not usurious or unlawful to take the interest out in advance, without regard to the value of rebate or discount. (Marvine v. Hymers, 2 Kern., 223, and cases there referred to by Denio, J.) The question of usury, in this case, depends, therefore, on the effect of taking out the so-called exchange, in addition to the lawful interest in advance.

It has also been held in this State that there is no usury in the discount of a note by a banker in the interior, made payable in the city of New York, not for the accommodation of the maker, nor upon the expectation that he will have any funds there at the time of its maturity, otherwise than by the purchase of them at. a premium, but with the purpose in both parties to enable the lender to realize a profit from a difference of exchange existing in fact, and .expected to continue. (Oliver Lee & Co.’s Bank v. Walbridge, 19 N. Y., 134.) That decision proceeded upon the ground that there was no contract to pay more than the legal rate of interest, and no more than the legal rate taken, and that the hope or expectation of realizing a profit in the difference of exchange was uncertain and .speculative. That there was nothing in the law of the contract which secured the contemplated result, because the rule of damages, in an action upon the note, allowed no indemnity for the loss of .exchange, and that the law recognizes no difference of value in money at different localities within this State.

If, therefore, the plaintiffs in this case had done nothing more than to stipulate for and receive the interest in advance, and to receive the defendants’ nóte, made payable in New York at their request, the transaction, within the decisions, would have been free from usury. But they went further by stipulating for and taking the so-called exchange, in addition to the lawful interest, at the time of the discount. The like feature existed in the case of Price v. Lyons’ Bank (33 N. Y., 55), and it was held to distinguish that case from the case of Oliver Lee & Co.’s Bank (supra) and to constitute usury. To the same effect is the case of The Seneca County Bank v. Schemerhorn (1 Den., 132), where the bank on the renewal of a debt took, in addition to lawful interest, drafts on New York and Albany to the amount of the debt, which were worth at the time three-fourths of one per cent premium under an arrangement by which the bank secured to itself the premium. The transaction was held usurious. We are not able to distinguish this case in principle from the two last cited.

The finding that the charge was a reasonable one is immaterial. Reasonable in amount, undoubtedly, if the debtor had needed the service, but he did not. He had no occasion to make his note payable in New York. It was made payable there at the request of the lenders, and for the sole purpose, so far as the case discloses, of enabling them to realize a profit in addition to the lawful interest. The finding is that the charge was not simply a reasonable remuneration for letter-writing and collecting, but it also included a profit which would arise to the plaintiffs from making the collection by reason of the facilities which they, as bankers, had for making such collections. We are of the opinion that but for the statutes already-referred to the transaction would be usurious for the reasons above stated.

The only question in respect to those statutes is whether the plaintiffs, being private bankers, are within their provisions. The statute of 1-870, which was the first in date, applied only to “banking associations” organized under the act of 1838, and the acts amendatory thereof, and its intent was declared to be to place such banldng associations on an equality with national banks. (Laws 1870, chap. 163.) The statute of 1880 included, also, “every private or individual banker or bankers doing business in this State.” (Laws 1880, chap. 567.) Those statutes were repealed in 1882 (Laws 1882, chap. 402), and the only provisions now in force on the subject are found in the general bank statute of 1882. (Laws 1882, chap. 409, §§ 68, 69.)

Section 6S applies in terms to “ every banking association organized and doing business under and by virtue of the laws of this State, and every private and individual banker or bankers doing business in this State.” And it provides, among other things, that “ the pun-chase, discount or sale of a tona fide bill of exchange, note or other evidence of debt, payable at another place than the place of such purchase, discount or sale, at not more than the current rate of exchange for sight drafts, or a reasonabl.s charge for collecting the same, in addition to the interest, shall not be considered as taking or receiving a greater rate of interest than six per centum per annum.” So • that if the plaintiffs are within the statute, the transaction; as found by the trial court, is not usurious.

Do the words “ private ” and “ individual,” as used in the section, refer to two distinct classes of bankers, to wit, individual bankers, who are subject to the inspection and supervision of the superintendent of the banking department (sec. 11, chap. 109 of 1882), and private bankers who are not so subject ? Or is the word “ private ” simply used in connection with the word “ individual ” to designate one and the same class as distinguished from banking associations? The earliest use of the term “ private,” as applied to bankers, is in. the act of 1880, above referred to, and there the expression is, as we have seen, <£ every banking association * * * and every private or individual banker or bankers, etc.” That act was passed in June, 1880. In February of that year the Court of Appeals had held that the term “ individual banker,” in the provision of the act of 1875, relating to savings banks (Laws 1875, chap. 371, § 19), which declares “ it shall not be lawful for any bank, banking association or individual banker to advertise or put forth a sign as a savings bank,” applies only to one who has availed himself of the banking statutes of this State, and has become empowered to do banking thereunder; it does not apply to a private banker who exercises in his business no more than the rights and privileges common to all. And the opinion was then expressed that the proper phrase to designate a banker doing business without having acquired the privileges conferred by the provisions of the statute is “ private banker,” not “ individual banker.” It is not unreasonable to suppose that in passing the act of the following June the legislature had that decision in view. That act was an amendment of the act of 1870, which, as has been said, applied to banking associations only. By the amendment it was made to include every “ private or individual banker.” It is hardly to be supposed that by the use of both terms, in the light of the decision referred to, the legislature intended to refer merely to that class of bankers who had been designated in previous statutes as “individual bankers ” to the exclusion of private bankers, as pointed out by the -Court of Appeals. The sixty-eighth section of the act of 1882 differs from the act of 1880, by substituting “and” for “or,” so that it reads,/1 every banking association * * * and every private ■and individual banker or bankers * * * are hereby authorized,” etc. Farther on it provides that a person paying excessive interest may recover twice the amount thus paid from the “ association, or private or individual banker,” etc. And section 69 declares that the true intent of the last preceding section is to place and continue “the private and individual bankers and banking associations organized and doing ‘business as aforesaid on an equality, in the particulars in said section referred to, with national banks.” The words “ organized and doing business as aforesaid ” do not limit, we conceive, the provision to “ organized ” associations or bankers, but they are to be applied distributively. Thus construed, the provision. embraces banking associations “organized,” and private bankers and individual bankers “doing business” in this State, as does-the first clause of section 68.

The statute,which was construed by the Court of Appeals in People v. Doty (80 N. Y., 225), was repealed in 1882. (Laws 1882, chap. 402, § 1, sub. 33.) In 1885, the legislature amended section 311 of chapter 409 of the Laws of 1882, by providing that “no person or persons engaged in the business of banking in this State, not subject to the supervision of the superintendent of the banking department, and not required to report to him by the provisions of this act, shall make use of any office sign,” etc., having thereon any artificial or corporate name or other w'ords indicating that such place is a bank, etc. (Laws 1885, chap. 329.) The counsel for the appellants refers us to this statute, upon the question of the meaning of the word “ private ” as used in the statutes referred to. We do not see that it militates against the views already expressed. It certainly recognizes the existence of a class of bankers within the ¡State, who are not subject to the supervision of the banking department, and they can be no other than the “private bankers” mentioned in other statutes. By the act last referred to they are subjected to certain specified prohibitions and disabilities, but they are not deprived of the privileges conferred by section 68.

Chapter 409 of the Laws of 1882 is, to a certain extent, a codification of the laws of the State in relation to banks. It speaks, in numerous instances, of incorporated banks, banking associations and individual bankers, and makes them subject to the superintendent of the banking department. It also speaks of private bankers and does not subject them to the superintendent. In one • instance, and in one only, so far as I have observed, does it clearly use the terms “private” and “individual” as synonymous, and that is in the ninety-ninth section. That section provides that it shall be lawful for any number of incorporated banks, banking associations and private bankers, by agreement, to associate together for raising a joint fund to be placed in the hands of their common agent for the redemption of their circulating notes in the city of New York or Albany, and also the circulating notes of other incorporated banks, banking associations and individual bankers, etc. Jt is clear from the context that individual bankers are intended by the word private, in this instance, but that circumstance does not indicate satisfactorily that the word is used in the same sense in section 68. The use of the word “ private,” in that section, as well as in the previous act of 1880, is redundant and purposeless, unless the class of bankers known as private were intended to be included. The statute is remedial. It is designed to put those engaged in the business of banking within the State on an equality with national banks, so far as the provisions of law applicable to them, respecting usury, are concerned. It is, therefore, to be fairly, if not liberally, construed.

On the whole, we are of the opinion that the plaintiffs are within the statute referred to, and on that ground we hold that the defense was not made out, and that the judgment should be affirmed, with costs.

Barker, Haight and Bradley, JJ.. concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. WILLIAM HOLMES, Respondent.

      Code of Criminal Procedure, sees. 721, 723, 725, 962 — they did not repeal section 31 of 2 Revised Statutes, 716, relating to criminal warrants — immaterial errors as to form, not prejudicial to the defendant, will be disrega/rded — Code of Criminal Procedure, sec. 684.
    Upon the return to a writ of habeas corpus it appeai’ed that the defendant was held by virtue of a warrant given under the hand and seal of a justice of the peace, addressed to any constable of the county and the keeper of the common jail, commanding them to take and keep in custody the defendant, who, as the warrant recited, had been convicted before said justice, composing a Court of Special Sessions for his trial, of a criminal offense against the excise laws, and been sentenced by said court to pay a fine of fifty dollars, and be imprisoned in the county jail until the fine was paid, not exceeding fifty days. The court discharged the defendant upon the ground that the commitment was “invalid and not made in accordance with any law or statute now in force.”

      Held, error; that the warrant complied with the provisions of section 31 of 2 Revised Statutes, 716, which had not been expressly repealed by any statute, and which was not impliedly repealed by the provisions of sections 721 and 725 of the Code of Criminal Procedure, the directions of the Code as to the certificate thereby required not being exclusive of, or necessarily inconsistent with, the provisions of the said section of the Revised Statutes.
    That even if the said section should be regarded as repealed or superseded, yet as the warrant recited all the substantial facts which the Code requires shall be stated in the certificate the warrant was not wholly void, and the defect being one which could not actually prejudice, or tend to prejudice, the defendant, should, under the provisions of section 684 of the Code of Criminal Procedure, be disregarded.
    Appeal from an order of the county judge of Livingston county discharging the defendant, on habeas corpus, from arrest.

      George W. Daggett, district attorney, and James Wood, for the appellant.

      S. Hubbard, for the respondent.
   Smith, P. J.:

The sheriff, to whom the writ of habeas corpus was directed, returned that he had the defendant in his custody by virtue of a warrant o-f commitment, a copy of which was annexed to his return. The warrant was given under the hand and seal of Robert Neel, a justice of the peace of the county of Livingston, dated the 22d of January, 1886, and addressed to any constable of said county, and to the keeper of the common jail thereof. It commanded the said constable to forthwith convey and deliver into the custody of the keeper of said jail the body of the said William Holmes, who, as the jvarrant recited, was that day convicted before said justice, composing a Court of Special Sessions for his trial, of a criminal offense against the excise laws, and was sentenced by said court to pay a fine of fifty dollars, and to be imprisoned in the jail of said county until the fine is paid, not exceeding fifty days. The order of the county judge discharging the defendant shows the ground of the discharge to have been that the commitment, by virtue of which he was imprisoned, was “ invalid and not made in accordance with any law or statute now in force.” No objection is taken to the proceedings before the justice prior to the judgment of conviction; the only question is whether the commitment is sufficient in form.

The warrant complies with the provisions of the Revised Statutes (2 R. S., 716, § 31), and if those provisions are still in force it is sufficient to authorize the imprisonment. We are not aware of any express repeal of the section above referred to. None is found in the Code of Criminal Procedure. (Laws 1881, chap. 442.) Does that Code repeal it by implication ? That Code provides that when a conviction is had in a Court of Special Sessions, upon a plea of guilty or upon a trial, the court must make and sign a certificate in substantially the form therein prescribed (sec. 721), and within twenty days after the conviction must cause the certificate to be filed in the office of the clerk of the county. (Sec. 723.) It also provides that the judgment must be executed by the sheriff or by a constable, etc., upon receiving a copy of the certificate prescribed in section 721, certified by the court or the county clerk. (Sec. 725.) And section 962 applies the Code to all criminal actions and proceedings therein provided for, from the time when it takes effect. Rut these provisions are not in terms exclusive, nor are they necessarily inconsistent with the section of the Revised Statutes above cited. It may be said that the provision, that the court shall make, sign and file a certificate as therein prescribed, is imperative. Grant it. Rut there is nothing in the case before us to show that the provision was not complied with. All that appears is that such certifi.cate or a certified copy thereof, tras not delivered to the constable. It may be granted, also, that the duty imposed upon the constable by section 725, upon his receiving a copy of the certificare, is imperative. But is not his duty the same on receiving a warrant as prescribed by section 31 of the Bevised Statutes % The Code does not prohibit the delivery of a warrant to the officer, nor does it require the court to deliver him a copy of the certificate. Indeed, it does not even authorize sueli delivery expressly, but perhaps the authority to do so may be fairly inferred. Such authority, however, is not inconsistent with section 31 of the Bevised' Statutes, the only effect of continuing both in force, being that the court may deliver either a warrant or a' certificate to the officer, whose duty would be the same in either case. Doubtless section 31 is modified by subsequent legislation, authorizing a single justice to hold a Court of Special Sessions, but in all other respects it seems to be in force.

But if these suggestions are incorrect, and section.31 is to be regarded as repealed or superseded, we are not prepared to say that the commitment issued by the Court of Sessions is wholly void. If it substantially complies with the provisions of the Code it is sufficient. It recites all the substantial facts which the Code requires to be stated in the certificate of the court. True, it is not certified by the court to be a copy of its certificate, but it is the original, certified under the hand and seal of the justice composing the court, and unless mere form is to be preferred to substance, it seems to meet the material requirements of the statute. Section 681 of the Code of Criminal Procedure provides that neither a departure from the form or mode prescribed by such Code, in respect to any pleadings or proceedings, nor an error or mistake therein, render it invalid, unless it have actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right. It is quite immaterial to the defendant whether the process, by virtue of which he was imprisoned, was in the form of a warrant 'under the Bevised Statutes, or of a certificate under the Code of Criminal Procedure, and the variance complained of being at most a defect in the proceeding, which worked no prejudice, does not invalidate the process.

A clerical error is pointed out by which the certificate is made to recite the offense as having been committed in November, 1886, instead of November, 1885. Obviously, that error could not have misled or prejudiced the defendant, and it does not affect the validity of the certificate.

A motion to dismiss the appeal is made upon the ground that since the defendant was discharged he has been rearrested upon a valid certificate issued upon the judgment, and has satisfied the judgment. It appears, however, that the defendant has commenced an action for false imprisonment, based upon the alleged invalidity of the process, which is now pending, and that fact, we think, is a defense to the motion. The right to appeal from a final order, discharging a prisoner upon a criminal accusation, in the name of the people, by the attorney general or district attorney, is given by section 2059 of the Code of Civil Procedure.

Our conclusion is that the motion to dismiss the appeal should be denied, and the order appealed from reversed. If the judgment has been satisfied, that fact is, of course, a bar to any further proceedings under it.

Barker, Haight and Bradley, JJ\, concurred.

Motion to dismiss appeal denied, and order appealed from reversed.


author: Bradley, J\:

text:
    BESSIE CLAY, by RALPH STONE, Her Guardian Ad Litem, Respondent, v. LYMAN M. BAKER and HENRY L. SCHWARTZ, Appellants.

      Pleading — ven'ificaiion of a complaint in an action by an infant — the guardian ad litem verifies as a party and not as an agent or attorney— Code of Civil Procedure, seas. 525, 526.
    In this action, brought by the plaintiff, an infant by her guardian ad litem, the complaint was verified by the latter by an affidavit stating that the complaint was true of his own knowledge, except as to those matters therein stated to be allegi d on information and belief, and as to those matters he believed it to be true. The defendant claimed that the verification was ineffectual because it did not set forth the grounds of the guardian’s belief and the reason why it was not made by the party.

      Held, that the claim could not be sustained; that the guardian was the party pleading, for the purposes of verification; and that he did not verify it as an agent or attorney within the meaning of sections 525 and 526 of the Code of Civil Procedure.

      Appeal from an order of the Erie County Court, denying a motion to compel the plaintiff to receive an unverified answer.
    The plaintiff is an infant, and her guardian ad litem verified the complaint by an affidavit stating that he was sncli guardian and that the complaint was true of his own knowledge, except as to the matters therein stated to be alleged on information find belief, and as to those matters he believed it to be true. The defendants served an answer without verification, which was returned because it was unverified. Thereupon the defendants moved to require its acceptance as an answer to the complaint, and from the denial of the motion this appeal is taken.

      A. O. Calkins, for the appellants.

      Ralph Stone, for the respondent.
   Bradley, J\:

The contention of the defendants is that as the affidavit was not made by the party plaintiff it was ineffectual as a verification, because it did not set forth the grounds of his belief and the reason why it was not made by such party. The statute provides that the verification must be made by the affidavit of the party, except that under certain prescribed circumstances it may be made by the agent or attorney (Code Civil Pro., § 525); and that when made by a person other than the party he must set forth in the aifidavit the grounds of his belief as to all matters not stated upon his knowledge and the reason why it is not made by the party. (Id., § 526.) The guardian is not a party plaintiff to the action. (Sinclair v. Sinclair, 13 Mee. & Welsb., 640.) But he prosecutes the action, and the complaint is his pleading in behalf of the infant plaintiff. And the latter cannot be required to verify the pleading; nor is it any evidence against her, nor does it conclude the infant party. (2 Kent’s Com., 245 ; 3 Greenl. Ev., § 278; Bulkley v. Van Wyck, 5 Paige, 536; Stephenson v. Stephenson, 6 id., 353.)

The statute provides for verification by a party, and by an agent or attorney only. The guardian ad litem does not come within the meaning of the term agent or attorney, as that term is usually understood or applied; and if he cannot be deemed a party the verification of a pleading by him as such is not within the statute or provided for by it. But such guardian was appointed to prosecute the action in behalf of the infant; the complaint is his pleading and not that of the infant, and in that sense he is the party pleading and, therefore, the party, within the contemplation of the statute, who may, as such, verify a pleading.

In Anable v. Anable (24 How., 92) it was remarked that the guardian verifies as a party and not as an attorney or agent of the party, and although the question was not necessarily in that case the rule there stated is in accord with the view which before the •Code prevailed, as to his relation to the pleadings and proceedings in the prosecution and defense of suits in behalf of infant parties. And in those in chancery, where oath to bill or answer was made or required, it was that of the guardian only, because he was deemed the party or person upon the record prosecuting or defending, and the bill or answer his. (1 Barb. Ch. Pr., 148, 149 ; Rogers v. Cruger, 7 Johns., 587.) There is nothing in the statute which can fairly be treated as a purpose to change such relation or to so qualify the term party as to confine it to the party to the action, as distinguished from the party pleading, for the purposes of verification. The guardian ad, litem for that purpose is a party upon the record, and by him the infant appears and' prosecutes, with the right of the latter to inquire, on arriving at full age, during its pendency, whether the guardian has properly prosecuted the action, and to abandon it and charge him with costs if he has not. (Waring v. Crane, 2 Paige, 79.) This relation to the record is not questioned in People ex rel. Baker v. New York Common Pleas (11 Wend., 164).

The affidavit of verification seems to have been properly made by the guardian as such in the form as by a party.

The order should be affirmed.

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

Order affirmed, with ten dollars costs and disbursements.


author: Bradley, J.:

text:
    FREDERICK BUHL and WALTER BUHL, Appellants, v. MICHAEL BALL and ELLIS LEVY, Respondents. SAMUEL GOODMAN and Others, Appellants, v. THE SAME, Respondents.

      Practice — attachments — affidavits made by an agent, as to the amount being due to the plaintiff over and above alt counter-claims — source of the deponent’s knowledge must be shown — the court cannot allow amendments to supply the requisite allegations.

    Motions to vacate attachments, granted upon the ground that the defendants had assigned their property with intent to defraud their creditors, were made upon the papers upon which the attachments were issued. In each case th'e affidavits were verified by the agent or attorney of the plaintiffs. In one case the affidavit was made by an agent of the plaintiffs, who stated therein that the plaintiffs were residents of the State of Michigan; that the plaintiffs' claims were $1,180 and interest “over and above all discounts- and set-offs,” and that “the plaintiffs are entitled to recover the sum above stated over and above all counter-claims known to the plaintiffs.”

      Held, that the affidavit was insufficient to authorize the issuing of the attachment; that although it stated in unqualified terms that the plaintiffs were entitled to recover the sum named “ over and above all counter-claims known to the plaintiffs,” yet as nothing appeared in the affidavit which enabled the court to see how the deponent knew or could know that fact, or which showed the relations existing between him and the plaintiffs to be such as to raise a presumption, from the nature of the agency, that he might have personal knowledge as to this fact, the proof as to the existence of that fact was defective.
    In the other case the affidavit was made by the plaintiffs’ attorney, who stated, upon information and belief, that the plaintiffs’ claim was $884.39 and interest “over and above all discounts and set-offs;” that the plaintiffs’ place of business was Philadelphia; that the grounds and sources of the deponent’s knowledge and belief, in respect to the matters stated by him, are that he has the bill of his clients sent to him by them (which is verified by the affidavit of one of the plaintiffs and annexed to his affidavit), and the verified schedules filed by the defendants after the general assignment, in which the, plaintiffs’ claim appeared.

      Held, that the affidavit was insufficient to support the attachment.
    Upon the hearing, an application made by the plaintiffs, to supply the defects in the affidavits by adding new allegations establishing the disputed fact, was denied by the court upon the ground that it had no power to grant such relief.

      Held, that the ruling was correct.

      Kibbe v. TYetmore (31 Hun, 424) distinguished.

      Appeals from orders of the Erie Special Term, vacating attachments and denying motions to amend the affidavits on which they were issued.
    The attachments were granted upon the ground that the defendants had assigned their property with intent to defraud their creditors; and it appears by the affidavits that on the 12th day of November, 1885, they made a general assignment of their property in trust for the benefit of their creditors.
    The defendants were merchants tailors carrying on business at the city of Buffalo, and on the 6th day of February, 1885, one of them was called upon by Mr. Marshall, a representative of E. G-. Dun & Co.’s Mercantile Agency, to whom he represented that they had, on the twenty-sevénth of January preceding, taken an inventory, and their stock then amounted to $15,771.55; that there was then owing to them accounts collectible $7,402.33, and $1,356.56 worth fifty per cent, and that they had of cash on hand from ninety to one hundred dollars; that their liabilities did not exceed $6,000, of which they had paid, since the twenty-seventh January, $2,000, and this defendant then exhibited an inventory in support of his statement. This inventory showed the defendants to have been worth, on the sixth of February, nearly $20,000. Their schedules filed, after making the assignment, showed that their nominal assets were $48,972.21, and their actual assets $13,499.39, and their liabilities $57,118.31, amongst which there were items of iudebtedness to banks in Buffalo amounting to $12,152.66; also liability on other paper at such banks amounting to $3,345 ; due to other parties in Buffalo $657,47, and to persons outside of that city for merchandise $34,973.47. That by the assignment preference was given to their Buffalo creditors and not given to any creditors elsewhere, except one to the amount of $356.31. The debts upon which these actions were brought were incurred for goods purchased by the defendants in September and October, 1885, on credit, which had not expired at the time of the assignment. This is substantially the state of facts upon which the charge .of fraudulent intent is founded.
    Upon the motion to vacate the attachments the sufficiency of the affidavits in other respects was challenged, and the plaintiffs upon notices moved for leave to amend the affidavits in those respects. These motions to amend were denied upon the ground of want of power. The plaintiffs appeal from those orders as well as from the orders vacating the warrants of attachment.

      George V. loveridge, for the appellants.

      Baker <£ Schwartz, for the respondents.
   Bradley, J.:

The facts stated in the affidavits fairly justified the conclusion that the assignment was made by the defendants with the intent to defraud their creditors. Assuming that one defendant, in making the formal statement in detail of February, spoke for both of the defendants, and that it, as then made, was substantially correct, the marked change, as represented by them, of their pecuniary condition from net assets of nearly $20,000 at that time, to utter insolvency in nine months after (as represented by their schedules) is a significant fact in view of the nature and extent of their business, and of the detailed statement of their assets and liabilities, at the time of making the assignment. And although undisclosed circumstances may have intervened to repel such imputation, they were, if any such existed, matters within their personal knowledge, and without explanation they were not entitled to the inference that such suddenly asserted change in their situation came from causes not within the imputation charged by the affidavits, or that the statement of February was incorrect or founded in mistake. The facts upon which the attachments were obtained rested wholly on the intent with which the assignment was made. And although it was a general one in trust for creditors, fraud in fact as against the creditors of the assignors furnished the right to an attachment, and to levy it upon such property assigned as was the subject of levy and sale by execution. (Code Civ. Pro., § 636 ; Skinner v. Oettinger, 14 Abb., 109; Globe Woolen Co. v. Carhart, 67 How., 403; Vietor v. Henlein, 34 Hun, 562 ; Claflin v. Hirsch, 19 Weekly Dig., 248.)

The affidavit in the- Buhl case was made by an agent of the plaintiffs, by which it appears that the plaintiffs resided in the State of Michigan. And this affidavit' contains the statement that the plaintiffs’ claim is $1,180 and interest “ over and above all discounts and set-offs,” and that “ the plaintiffs are entitled to recover the sum above stated over and above all counter-claims known to the plaintiffs.” He does not state his sources or means of knowledge, or particularly the duties of his relation as such agent.

In the Goodman case, the affidavit is made by the plaintiffs’ attorney, who states, on information and belief, that the plaintiffs’ claim is $881.29 and interest “ over and above all discounts and set-offs ; ” that the plaintiffs’ place of business is Philadelphia, and that the grounds and sources of his knowledge and belief in respect to the matters stated by him are, that he has the bill of his clients sent to him by them, which is verified by the affidavit of one of the plaintiffs, and annexed to his affidavit, and by reference to the verified schedules filed by the defendants, in which the plaintiffs’ claim appears. And, subsequently, in the affidavit he adds that “ the plaintiffs are entitled to recover the sum above stated, over and above all counter-claims known to the plaintiffs.”

The. question arises whether in these affidavits thei’e is a substantial compliance with the statute, which provides that “ to entitle the plaintiff to such warrant, he must show by affidavit, to the satisfaction of the judge granting the same, * * * that the plaintiff is entitled to recover a sum stated therein over and above all counter-claims known to him.” (Code Civ. Pro., § 636.) This is a summary provisional remedy to take from a debtor the custody of property, and to support the remedy the provisions of the statute, in this respect, must be substantially observed. (Ljon v. Blakesly, 19 Hun, 299; Donnell v. Williams, 21 id., 216; Rupert v. Haug, 87 N. Y., 141

The agent of the plaintiffs in the Buhl case, by his affidavit, unqualifiedly stated that the plaintiffs were entitled to recover the sum named, “over and above all counter-claims known to the plaintiffs,” but nothing appears in the affidavit beyond such statement which enables the court to see how he did or could know the fact, or which permitted him to state what knowledge the plaintiffs did or did not have on the subject of counter-claims.

It is contended by the plaintiffs’ counsel that, inasmuch as the statement of the deponent was in positive terms, it may be assumed that he had the knowledge of the fact asserted by it, and he cites, to support his contention, Dates v. Pimstein (7 N. Y. Civ. Pro. R., 300), which was decided by the General Term of the City Court of New York, where it was held that an affidavit made by an agent and salesman of the plaintiffs, that tlie sum stated was due to the plaintiffs “ over and above all claims and offsets” was sufficient. There it appeared that the agent was a salesman of the plaintiff, and the debt was produced by a sale of goods to the debtor, and that he was such was deemed by the court a significant fact, which was there held to permit the inference that his knowledge justified his statement, and distinguished it from the affidavit in like terms made by a plaintiff’s attorney, who is not presumed to be familiar with the commercial and business transactions of his client. And reference is also made to Mallary v. Alien (Id ., 287), decided in the same court.

"When the relation of the agent making the affidavit appears to have been such as to enable him to have the requisite knowledge to state a fact, his affirmation of it may be taken as proof, upon which the officer granting the warrant of attachment may judicially act and it will support it. (Gribbon v. Back, 35 Hun, 541.) And then his statement must not be qualified by the expression of his want of knowledge of additional counter-claims. (Murray v. Hankin, 30 Hun, 37 ; Smith v. Arnold, 33 id., 484 ) When made by an agent the statement in the affidavit in respect to the knowledge of the existence or non-existence of counter-claims, must necessarily rest upon information, unless he has such relation to the business of his principal as to justify the inference of his knowledge, and such is the presumption until something appears to qualify him to make his statement proof of, or upon, the fact for the consideration of the officer.

This may come from his relation to and knowledge of the business of his principal, so as to enable him to depose positively, or he may-state it on information and belief derived from the requisite sources and means of. information, but these circumstances to support his deposition must be presented to justify granting of the process. (Jordan v. Richardson, 7 N. Y. Civ. Pro. R., 411; Cribben v. Schillinger, 30 Hun, 248; Marine Nat. Bank v. Ward, 35 id., 395.)

The difficulty in both of these oases is that no means or sources of knowledge and information of the agent and attorney of the plaintiffs are stated in their affidavits to support their assertions in them, that the plaintiffs were entitled to recover the sums mentioned “ over and above all counter-claims known to the plaintiffs.” And

Hun — Yon. XLI 9 this fact was not supplied by the reference to the schedules filed by the defendants.

The distinction between a statement so made by an agent and that made by an attorney of a plaintiff, depends upon the particular business to which the agency of the former relates. It may be as remote and distinct from the business which produced the debt as the relation of the attorney to it, and he may have no greater opportunity for personal knowledge of it than the latter. The qualifying distinction should, therefore, be made to appear. In Gribbon v. Bach, the facts appeared which enabled the judge to say that the agent had some means of knowledge upon which his conclusion of the existence of this requisite fact was founded. Within the rule before stated the affidavits seem to have been insufficient to support the attachment.

If the statutory requisites are unnecessarily rigorous for the preservation and protection of the rights of creditors and debtors, the subject of modification is for the legislature.

The application of the plaintiffs to supply the defects in the affidavits by adding new ones, was met by the objection that the court had no power to grant such relief, and the court denied it upon that ground. It is contended that the power is furnished by the statute providing for the allowance of amendments of “ process, pleading or other proceeding,” etc. (Code Civ. Pro., § 723.) And reference is made to Kibbe v. Wetmore (31 Hun, 424), where it was held that the provisions of such section were broad .enough to cover an amendment .allowed of a warrant of attachment, to obviate an objection taken on motion to vacate it. The amendment there had relation to the ground stated in the process as that upon which it was issued. Here the motion was not to amend the process, but to supply by amendment additional proofs to support it. And the statute provides for application to vacate an attachment founded only upon the papers on which it is granted, or upon proof by affidavit on the part of the defendant, and that in the latter case the plaintiff may .add new proof by affidavit to sustain the attachment. (Code Civ. Pro., § 683.) And the practice has uniformly been such under this section, as to exclude suppletory affidavits in support of attachments, when the motions to vacate have been founded solely on the papers upon which they were issued. (Steuben County Bank v. Albergar, 75 N. Y., 179; Smith v. Arnold, 33 Hun, 484; Sutherland v. Bradner, 34 id., 519.)

This is put upon the ground, that the rule of practice and proceeding in such case is prescribed by the section last referred to, and denies to them the application of any other provision of the statute to modify to any extent the rule by it prescribed. And so far as relates to the provisional remedy the question arising upon the application, made solely on the papers before the officer when he granted it, is treated as jurisdictional’and, therefore, support will not be allowed to the attachment by proofs nwnopro tuno. (Rupert v. Haug, 87 N. Y., 141; Sutherland v. Bradner, supra.)

These views require the conclusion that the orders should be affirmed.

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

Orders affirmed, with ten dollars costs and disbursements.