author: Brady, J.;

text:
    LEMUEL COFFIN and others, Appellants, v. GEORGE H. GOURLAY, Respondent.

      A debtor imprisoned for fraudulently disposing of property, is not entitled, to a discharge on compliance with Mev. /St., part 2, chap. 5, tit. 1 of art. 6.
    A debtor who bas been imprisoned for removing’ and disposing of his property, with, intent to defraud his creditors, is not entitled to a discharge under the provisions of the Revised Statutes relating to voluntary assignments.
    Appeal from an order discharging- George Gourlay, an imprisoned debtor, from imprisonment on his petition under part 2, chapter 5, title 1, article 6 of the Revised Statutes.

      H. G. Hull, for the appellants.

      Richard 8. Hewcomhe, for ’the respondent.
   Brady, J.;

The defendant in this case, upon the commencement of the action, was arrested under and by virtue of an order, in which the ground of arrest was stated that the defendant had removed and disposed of his property with the intent to defraud his creditors ; but, disregarding that circumstance as a controlling one, we have examined the proofs taken in this proceeding bearing upon the question, and are satisfied that the fraudulent disposition charged was made, and this conclusion renders the decision of this appeal comparatively easy. In The Matter of Walter Brady (69 N. Y. R., 215), an imprisoned debtor, it was declared that such a debtor is not entitled to his discharge, under the provisions of the Revised Statutes relating to voluntary assignments, and which were resorted to by the defendant herein. The Court of Appeals, in pronouncing the judgment, said that this construction of the statute might lead in some case to unlimited imprisonment, but that it had nothing to do but to construe the law and enforce it as it was ; they had no power to abrogate it, or soften its hard features.

We do not possess such power, and therefore, if this was a case in which upon all the facts the defendant was entitled to a lenient consideration, it would be impossible to extend it to him. The decision of the court of last resort has defined our duty, which is to reverse the order made below.

Ordered accordingly.

Davis, P.. J., and Bakrett, J., concurred.

Order reversed.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    ORLANDO E. BRADFORD, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Indictment for procuring an abortion— the prisoner must shorn the me of an inskrwnent to have been necessary — chap. 181 of 1872.
    Upon tlie trial of one indicted, under chapter 181 of 1872, for causing the death of a woman hy using an instrument upon her with intent to produce a miscarriage, it is not necessary for the People to show that the use of the instrument was not necessary to preserve the life of the woman, or of the child, but the burden of proving such necessity for its use rests upon the accused.
    In any event the absence of any such necessity need not be established by direct proof, but may be shown by circumstantial evidence bearing upon the subject.
    Wbit of Errok to the General Sessions of the city and county of New York, to review the-conviction and sentence of the relator for causing the death of one Sarah Y. Conners, by employing some instrument upon her with intent to produce an abortion.

      Wm. F. Howe, for the plaintiff in error.

      Daniel G. Rollins, for the defendant in error.
   Brady, J.:

The principal question presented for consideration upon this appeal is, whether, under the statute relating to abortions, it is necessary for the People to show, in order to secure a conviction under its provisions, where an instrument has been used, that the use of the same was not necessary to preserve the life of the mother or of the child; in other words, to prove that .the case is one not excepted by the provisions of the statute. This precise question has not been decided by any adjudication in this State ; but the doctrine by which it is to be controlled is to be found in the decision of the Court of Appeals in Fleming v. The People (27 N. Y., 329). In that case the court, in construing the statute defining and punishing bigamy, held that, notwithstanding there Were certain exceptions in it, the indictment need not set forth that the offence charged was unaffected by those exceptions, and also that as matter of evidence the onus próbandi was upon the prisoner to show that his case was covered by one of the exceptions, and therefore not within the statute. This decision is in accordance with the ruling in the case of the Apothecaries' Company v. Bentley (Ryan & Moody, 159), which was a suit for a penalty, charging the defendant with practicing as an apothecary without the certificate required by law, in which it was determined that the burden was upon the defendant to prove the possession of the certificate. This was grounded upon the doctrine well stated in the note to 1st Phillips on Evidence (5th Am. ed.), 695, in which it is said: “ In cases where the negative does not admit of direct pijpof, or the facts lie more immediately within the knowledge of the defendant, he is put to his proof of the affirmative.” It is true that the general rule is, that where an offence is created by statute and negatives are employed in the enacting part descriptive of the offence, the burden of proving that negative lies upon the prosecution. ' But this rule must be taken, says Phillips, at page 821, subject to another,. namely, that the burden of proof lies upon the person who is to support his case by proof of a fact which lies more peculiarly within his knowledge and of which he is supposed to be cognizant. And Mr. Phillips, by way of illustration, instances actions for penalties under the old game laws where, although it was necessary that the plaintiff should aver the absence of certain qualifications, it was repeatedly held that the defendant was bound to show himself qualified.

It seems to be a just rule, that when an instrument is employed in cases of pregnancy, there should be proof of the necessity for its use, or at least, when employed by a professional man, proof of a conviction honestly entertained and conscientiously exercised that the instrument was necessary for the preservation of the mother or the child as contemplated by the statute, and that' this .proof should be made by the physician or expert using the instrument. Whether, under any given state of facts, the use of an instrument would be requisite, would be necessarily more within the knowledge of the person making tire examination for the purpose of determining that fact than of any one else, unless he were attended by associates who assisted in the examination and participated in the judgment that the rise of the instrument was necessary or judicious. It is not at all likely that courts in the administration of justice would require more, in explanation of the operation performed, to overcome the existing penalty than that an honest judgment was exorcised declaring the necessity of resorting to an instrument for the purpose of relieving the mother or saving the child.

But, even if this view of the question be erroneous, it cannot be held 'that the absence of necessity may not be determined by circumstantial evidence bearing upon the subject, and calculated, when the circumstances are grouped, to demonstrate that the instrument was not necessarily employed. In this case the real issue on this subject was not whether the plaintiff' in error did what was charged against him legally, and in good faith, but whether he did 'it at all.

He denied the commission of the offence, and prepared a certificate which falsely assigned consumption as the cause .of death, and suppressed the fact, confessedly within his own knowledge, that, a few weeks before her death, the deceased had suffered from a miscarriage, the fact also being beyond dispute that the death was caused by the abortion.

These circumstances, together with others developed on the trial, were sufficient, we think, to justify a conviction that his use of the instrument was not predicated either of its necessity, or of his honest judgment, that such necessity existed. Indeed, his denial, and his general attitude with regard to the offence, is such as to make it indisputable that, if he used the instrument, it was unlawfully and improperly employed.

The result of the consideration of this branch of the case is, therefore, that the plaintiff in error cannot derive any advantage from the proposition suggested.

We have examined the other exceptions in the case, and without any extended comments upon them, which we deem unnecessary, we dispose of them by saying that they are not, nor is any of them, well taken.

The evidence seems to have demonstrated, beyond reasonable doubt, the guilt of the plaintiff in error, whose case was fairly submitted to .the jury, and who had the benefit of all the rules which he could properly call into requisition.

The judgment should be affirmed.

Davis, P. J., and Bakkett, J., concurred.

Judgment affirmed.


author: Barrett, J.:

text:
    ETTA ARMSTRONG, Respondent, v. HENRY M. CUMMINGS AND CHARLES D. INGERSOLL, Appellants.

      Summary 'proceedings are applicable to the lessee of a furnished house — when the court will not restrain the issuing of a warrant in such proceedings — courts take judicial notice of wards and districts in New York city.

    The court will only restrain the dispossession of a tenant, under a warrant in summary proceedings, in cases of fraud, surprise, or undue advantage in the actual conduct of the proceedings.
    The court will take judicial notice that premises described by the street on which they are situated are within a certain judicial district where the entire street is within the statutory boundaries of such district.

    The provisions of the Revised Statutes authorizing the dispossession of a tenant by summary proceedings, for non-payment of rent, are applicable to a lessee of a furnished house at a gross rent; the furniture in such a case is but an incident, and the rent issues out of the land only.
    Appeal from an injunction order restraining tbe defendant Ingersoll from issuing a warrant (in summary proceedings) to remove tbe plamtiff from certain premises, and restraining tbe defendant Cummings from taking any further steps to dispossess tbe plaintiff.
    On September 25, 1879, the appellant Cummings leased to tbe respondent Armstrong a furnished bouse, known as No. 149 West Forty-fifth street, New York city, for tbe term of one year, at tbe yearly rent of $1,500, payable monthly in advance.
    All of West Forty-fifth street is contained within tbe seventh judicial district in tbe city of New York.
    On November fifteenth Cummings, as landlord, took summary proceedings, under tbe statute, before Charles D. Ingersoll, Esq., tbe justice of tbe seventh judicial district in the city of New York, and one. of the appellants herein, to remove said Armstrong from tbe premises for non-payment of rent due November first. Tbe defendant filed a counter affidavit, which was a general denial, and on tbe issues raised a trial was bad before said justice, and a judgment was rendered in favor of tbe landlord and against tbe tenant. Thereupon tbe tenant obtained from Mr. Justice Lawrence an injunction and order to show cause, which stayed all proceedings on the part of tbe landlord to dispossess tbe tenant. The temporary injunction was sustained, pendente lite, by order dated December fourth, from which the defendants appealed.

      George J. Peet, for the appellants.

      H. 3.. Morange, for the respondent.

         See People ex rel. Duchardt v. Kelly, page 549.

   Barrett, J.:

The present injunction was granted upon two grounds : First. That only the street and number (omitting the ward) were specified in the landlord's affidavit. Second. That furniture was included in the lease.

At the outset it is apparent that these questions could, and should properly, have been raised by certiorari. The statute expressly forbids any court or officer by any writ or order from staying or suspending such proceedings. There are an exceedingly limited class of cases where for fraud, surprise, or undue advantage, in the actual conduct of the proceedings., courts of equity have interfered. But the proceedings in the case at bar were entirely regular, the tenant had every proper opportunity of being heard, and the .present action is simply an irregular attempt to review the rulings of the justice.

It is insisted that the justice was without jurisdiction. If that were so it should have been proved, as a matter of fact, that the premises were not situated in either the nineteenth or the twenty-second ward. The absence of an affirmative statement on that head, in. the landlord's affidavit, is no ground for what in substance, if not in form, is a writ of prohibition. Overruled ■ objections to the preliminary affidavit can only be reviewed by certiorari. Where, in truth, the subject-matter is not within the justice’s jurisdiction, that fact is the gravamen of the complaint and should be affirmatively averred and established. It is proper, however, to say, that the courts will take judicial notice of the statute cre'atmg these wards, and, doing so, we find the premises in question within their boundaries.

What has been said upon the subject of jurisdiction applies equally to the point with regard to the furniture. But we have no doubt of the correctness of the justice’s ruling. “ Rent,” as defined by Bouvier and other writers, “is a return or compensation for tbe possession of some corporeal inheritance and is a profit issuing out of lands or tenements in return for their use.” (See too Hilliard on Real Property, 227; Co. Littleton, 141, c ; 2 Black., 42, n. 53 [Wend. ed.])

The furniture was but an incident. As was said by Bockes, J., in Fay v. Holloran (35 Barb., 297), “rent cannot be reserved out of chattels personal. If such chattels are demised with land, at an entire rent, the rent issues out of the land only.” (See also, 2 Platt on Leases, 85; Archibald, Land and Ten. Marg., 106; Newman v. Anderton, 2 Bos. & P. [N. S.], 224.)

In the latter case it was hold that a landlord is entitled to distrain for the rent of ready furnished lodgings, Mansfield, Ch. J., observing that: “It must occur constantly that the value of demised premises is increased by the goods upon the premises, and yet the rent reserved still continues to issue out of the house or land and not out of the goods; for rent cannot issue out of goods.” So, the lessor may declare as on a demise of the land or house without noticing the goods. (2 Platt on Leases, 85; and cases cited.)

Were this otherwise, the statute would be practically valueless. If fully furnished houses are not within its provisions, neither are the partially furnished. And so on, whenever the slightest element of personalty enters into the rental, the statute becomes inapplicable; e. g., if gas fixtures are included or a portable heater or portable washtubs.

This contention proceeds upon the idea, that where the rent of premises and the hire of furniture are mingled, there can be no apportionment. The fallacy of this reasoning becomes apparent, when we consider the legal quality of rent and the rule that it issues solely out of the land. There is, therefore, no question of apportionment and consequently no such practical inconvenience as the plaintiff suggests.

Upon this latter branch of the case we have been assisted by, and have substantially followed and adopted a MSS. opinion of Mr. Justice McAdam, in the case of Sivicley v. Jones (filed in the Marine Court November 2, 1878). If this opinion had been reported we would have contented ourselves with a simple reference to it.

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

Davis, P. J., concurred.

Present — Davis, P. J., and Barrett, J.

Order reversed, with ton dollars costs and disbursements.


author: Barrett, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM HANNIGAN v. CHARLES D. INGERSOLL, Justice of Seventh District Court, AND MARY BEGEN.

      Lease made by a general guardian— Ms ward may recover rent falling dme wider, after he comes of age, and may institute swnmary proceedings.

    Whalen, the general guardian of one Davis, leased certain premises belonging to the latter to the relator for the term of one year from May 1, 1878. On December 4, 1878, Davis came of age.

      Held, that a grantee of Davis, claiming under a deed executed subsequently to the termination of the lease, could institute summary proceedings against the relator as a tenant holding over after the expiration of his term.

      Semble, that Davis was entitled to receive and collect the rents falling due on the lease after he came of age, and to institute summary proceedings to dispossess the tenant.
    That his right so to do was not affected by the fact that he was indebted to his guardian for over-payments made to him, and that the latter had forbidden the tenant from paying the rent to him.
    Certiorari to review summary proceedings for the removal of the relator from certain premises in the city of New York, as a tenant holding oyer after the expiration of his term. The district judge decided against and issued his warrant for the dispossession of the tenant.
    Upon the hearing in the District Court the following facts were agreed upon by the parties. The relator, William Han-nigan, tenant, hired the premises, for the possession of which ibis proceeding was brought, from John Whelan as landlord, on the 1st day of May, 1878, for the term of one year. John Whe-lan was at the time the general guardian of William J. Davis, the owner of the fee of said premises. William J. Davis became twenty-one years of age on the 14th clay of December, 1878. A short time thereafter the said John Whelan rendered his accounts as guardian of the said William J. Davis, by which accounts it appeared that the said William J. Davis was indebted to his guardian in the sum of $294.17 for advances made during the minority of the said William J. Davis, besides the guardian’s commissions and the expenses of the final accounting, amounting in all to about $450. The account was disputed by the said William J. Davis, and was referred to an auditor for' examination. The matter was heard before the auditor, and no part of the account was impeached; but the account was contested solely on the ground that the guardian had no legal right to make the advances made by him, and the auditor had decided that the account was correct, and that there was due to the said guardian from the estate of said William J. Davis the sum of $294.17, as stated in the guardian’s account.
    While the matter was awaiting decision John Whelan, the guardian, died.
    The personal representatives of the guardian claimed a lien upon the rents and profits of the real estate of his ward for the amount which had been found due to the guardian. The guardian, jr his life-time, directed the above-named tenant not to pay rent to the said William J. Davis until the said guardian had been paid the amount due to him as guardian, and directed the tenant not to attorn to the said William J. Davis, as landlord, and the said tenant has never attorned to or recognized the said William J. Davis, as landlord; but, on the contrary, on the 1st day of May, 1879, hired the premises in question from the said John Whelan, as landlord, from month to month.
    The tenant has never recognized Mary Begen, the grantee of William J. Davis, as landlord, and has never attorned to her as such. Mary Begen’s conveyance from William J. Davis was made aild delivered May 21, 1869.

      John Hardy, for the relator.

      James P. Camjpbell, for the respondents.
   Barrett, J. :

It is well settled that to authorize these summary proceedings the conventional relation of landlord and tenant must bo shown to exist, and not a tenancy created by mere operation of law. (Benjamin v. Benjamin, 5 N. Y., 383 ; The People ex rel. Williams v. Bigelow, 11 How. Pr., 83 ; Roach v. Cosine, 9 Wend., 227 ; Sims v. Humphrey, 4 Den., 185.) This conventional relation may be created by agreement, express or implied. (See opinion of Selden, J., in The People v. Simpson, 28 N. Y., 59.) Care must be taken to distinguish between a tenancy created by operation of law and an agreement implied by law from particular facts.

In the present case, the infant Davis was vested with tho title to the land. The rents belonged to him, and whatever the guardian did was for his benefit. (Porter v. Bleiler, 17 Barb., 153.) He could maintain an action for use and occupation, although he had a general guardian. (Id.)

Undoubtedly the guardian had authority to rent during the infant’s minority, but no longer. Whelan rented the premises to Hannigan for one year from tho 1st day of May, 1878. Davis attained his majority on the 4th of December, 1878.

It seems, however, that Davis thereafter ratified Whelan’s act, for he took ho step in disaffirmance, permitted continued occupation and must have demanded the rent. Wo infer the latter from the fact that Whelan directed the tenant not to pay.

Be that as it may, Davis, as landlord, could have maintained an action on the lease for the rent accruing subsequent to his majority. The suit would of itself be an affirmance. In Pond v. Curtiss (7 Wend., 46), an action in the guardian’s name, even after the ward had attained his majority, was sustained. This was under the rules governing sealed instruments, and upon the further ground, that there was nothing m the case to show that the suit was not actually brought by the ward in the name of his guardian, who executed the lease. There was not a suggestion that the ward could not have maintained the action in his own name. On the contrary, SUTHERLAND, J., observed that “ where the suit is brought ” in the guardian’s name, “ with the approbation of the ward and for his benefit, it is a question of form rather than of substance ; ” aud again, “ I perceive no objection, in principle, to allowing the toard, in a case like this, to enforce the covenant made for bis benefit, in tbe name of his guardian. It is to be intended that the suit is brought for the benefit of the ward, and with his approbation, until the contrary is shown.”

The guardian has no interest in the lands and nothing but a naked authority. His control is limited to the rents aud profits, and that entirely ceases at the ward’s majority.

Here the occupation by the tenant, with Davis’ approbation, after the latter’s majority, constituted between them the conventional relation of landlord and tenant. It was not a tenancy created by operation of law, but by and under the express agreement of May 1st, 1878.

That agreement was made on behalf of Davis and for his sole benefit. During his minority, the guardian was authorized to reduce the rent to possession. Thereafter, the ward was entitled to receive it directly and to so receive it under the original agreement. The operation of the law is not upon the creation of the tenancy, but upon the right to proceed directly under the agreement. Mary Begen as the assignee of Davis was authorized to institute summary proceedings.

There being nothing in any of the other points, the proceedings and judgment of the justice must be affirmed, with costs.

Davis, P. J., concurred.

Present — Davis, P. J., and Barrett, J.

Proceedings and judgment affirmed.


text:
    GUSTAVUS G. WRIGHT AND ANTONIO MARTINS LAGÉ, Respondents, v. JOHN S. WILLIAMS, Appellant.

      Policy of marine inswanee — construction of — what is a sufficient averment of a total loss.

    The plaintiffs alleged in the complaint herein that they had advanced and laid out moneys for necessary repairs and supplies furnished to the bark Flora, “ upon the credit of the said bark and her said cargo severally in proportion, and accordingly as it should be determined upon adjustment in the usual course; ” that, thereafter, a policy of insurance was procured for their benefit “ on advances on vessel and cargo, free of general and particular average, and without reclamation.” The defendant demurred to the complaint.

      Held, that the policy did not require that the advances should have been made upon vessel and cargo jointly to be covered by it,, but that it covered advances made upon the vessel and cargo separately and independently.
    The complaint alleged that the vessel was, while proceeding on her voyage, “ by the perils of the sea, so greatly and seriously damaged and disabled, that she was obliged, for the safety of her crew and cargo, to put into Bahia, in the empire of Brazil, and that after having arrived at said Bahia, the said bark was found to be irreparable, unfit and unable to proceed on her said voyage, and on or about the 6th day of December, 1867, was duly condemned and sold.”

      Held, that this was a sufficient averment of a total loss.
    Appeal from an order of the Special Term, overruling a demurrer to the complaint.
    The complaint alleged : That in or about the month of May, 1867, the bark Flora, whilst on a voyage from Rio de Janeiro to Baltimore, with a cargo of coffee, was so greatly and seriously damaged and disabled by the perils of the sea that she was obliged to put back into the said port of Rio de Janeiro for the pux-pose of refitting and repairing, and to enable her to perform her said voyage.
    “That the said bark, having been so damaged and disabled, returned to and reached the said port of Rio de Janeiro on or about the 7th day of May, 1867 ; and that thereafter, upon the applicatio.ii of the said master thereof, who was without funds or means to meet and pay for the necessary repairs and supplies and expenses of said vessel, the plaintiffs, as partners, doing business at said Bio do Janeiro, under the firm name or style of Wright & Co., at said Bio do Janeiro, at various dates between the 7th day of May, 1867, and the 24th day of June, 1867, advanced, paid, laid out and expended for said necessary repairs, supplies and expenses, and upon the credit of the said bark, and her said cargo severally in proportion, and accordingly as it should bo determined upon adjustment in the usual course ; that the said vessel and cargo were respectively chargeable therewith the sum of $19,514.38, over and above all credits and repayments.
    “ That alter the said advances had been made by the plaintiffs, as aforesaid, and the said bark had been therewith and thereby repaired, refitted and supplied as aforesaid, she, on or about the 28th day of June, 1867, again resumed and set sail with her said same cargo, on her said voyage from Bio de Janeiro to thó port of Baltimore aforesaid.”
    “ That thereafter the plaintiffs, by John S. Wright, their agent in that behalf, on the 23d clay of July, 1867, at the city of New York, caused a policy of insurance to be taken out in their behalf, which was under written by the defendant, and was “ on advances on vessel and cargo, free of general and particular average, and without reclamation.”
    “ That afterwards, and whilst the said vessel was proceeding on her said voyage, she was again, by the perils of the sea, so greatly and seriously damaged and disabled, that she was obliged, for the safety of her .crew and cargo, to put into Bahia, in the Empire of Brazil; and that after having arrived at said Bahia, the said bark was found to be irreparable, unfit and unable to proceed on her said voyage, and on or about the 6th day of December, 1867, was duly condemned and sold, and never did arrive at the said port of Baltimore ; and that the plaintiffs thereby lost and were deprived of .their lien and interest upon and in the said vessel, and their said advances to the extent to which they were chargeable to said vessel, as hereinafter shown ; that the cargo of the said bark Flora was removed from the said bark Flora, and re-shipped on board of a schooner called the Lundi, to be carried to the said port of Baltimore; and that the said schooner Lundi, with the said cargo on boai’d, afterwards arrived in safety at the said port pf Baltimore. And the plaintiffs further show that the whole amount realized from the sale of said bark at Bahia as aforesaid, over and above the expenses of her surveys, condemnation and sale and other necessary expenses, was the sum of about $3,400, which was received by the master of said bark; and no part thereof was ever applied in payment of the plaintiffs’ said advances; and that no part of said advances have ever, in any way, been paid or collected.”

      Treadwell Cleveland, for the appellant.

      William H. Scott, for the respondents.
   Barrett, J.:

The action is upon a policy of marine insurance. The demurrer is upon the sole ground that the complaint does not state facts sufficient to constitute a cause of action. The insurance, in the language of the policy, was “ on advances on vessel and cargo, free .of general and particular average, and without reclamation."

The first question is as to the true construction of these words. The defendant contends that they refer to advances on both vessel and cargo unitedly, as an integral subject; while the plaintiffs insist that they should be treated severally and independently.

The importance of this question consists in the fact that the cargo was transferred and arrived in safety; and consequently, if the defendant’s interpretation be correct, he is entirely free from liability.

We have given the subject full consideration and are of opinion that the defendant’s reading of the clause, though supported by an able and ingenious argument, is altogether too narrow and contrary to just and well settled rules of interpretation.

In the first place the expression, “on advances on vessel and cargo ” is, in itself, in its present connection, somewhat indeterminate. ‘ It does not necessarily import advances upon vessel and cargo jointly. Still less when we consider the rules of law applicable to each.

Then the object in view must be considered.

The plaintiffs had made no advances on vessel and cargo jointly, and it is unreasonable to suppose that they applied, paid for and accepted a policy •which could never, under any circumstances, avail them. Their liens were really several and distinct. The parties necessarily contracted with reference to that fact, for it must be inferred that it was so stated in the application, and that the underwriters acted advisedly. The intention to insure such separate liens iu au effectual manner necessarily follows.

As a contract of indemnity to the assured, the' policy is to be liberally construed. (D’uer on Insurance, 161.) And where the language of the promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee. (Hoffman v. Ætna Ins. Co., 32 N. Y., 405.)

“It is also a familiar rule of law,” said Portee, J., in this case, “ that if it be left in doubt, in view of the general tenor of the instrument, and the relations of the contracting parties, whether given words were used in an enlarged or a restricted sense, other things being equal, that construction should be adopted which is most beneficial to the promisee.” (See also, as to exceptions, Yeaton v. Fry, 5 Cranch, 341; Blackett v. Royal Ex. Ass. Co., 2 Crompt. & Jervis, 244; Palmer v. Warren Ins. Co., 1 Story, 360.)

In Wallerstein v. The Columbian Ins. Co. (44 N. Y., 204), the insurance was simply on “merchandise.” The latter consisted of wool and coffee. The court held citing Biays v. Chesapeake Ins. Co. (7 Cranch, 418), and Wadsworth v. Pacific Ins. Co. (4 Wend., 40) that “ the insurer of the wool and the coffee is liable for a total loss of either the wool or the coffee. Each is deemed the subject of a distinct insurance under the clauses in question.”

The cases all agree that the mere literal form of words must give way to the real purpose, to the extent even of turning the copulative into the disjunctive, and vice versa. (Rees v. Abbott, Cowp., 832; Davis v. Boardman, 12 Mass., 80; Parsons on Marine Insurance, 82, 83.)

The valuation of the advance at a lump sum does not control.

The precise amount chargeable to each was not known when the policy was applied for, and had to be settled by a subsequent adjustment. Then the entire clause bears evidence of haste and carelessness of expression. It reads, “ the said goods and merchan dise hereby insured tiro valued at $19,000.” Even this latter amount was not intended to be precise, for we find that the advances were actually $19,514.38. It is apparent that the sum was inserted m a loose, general way, and without intending to characterize the insurance as joint. In. every view of the matter, wo think there was a distinct insurance upon the advances on the vessel and the cargo severally.

The remaining contention is, that even if the insurance be thus viewed, still the underwriter is not liable, for the reason that there was not a total loss of the vessel.

This question has been elaborately argued, as though the cause were before us after a trial upon the merits. We are, however, at present confined strictly to the pleadings, and must simply determine whether any cause of action is set out.

It is undoubtedly the general rule, in insurance free of particular average, that the underwriter is only liable for a total loss. This is not necessarily a total loss in specie, but of value. There may either be an actual or a constructive total loss. In the former case the thing insured is physically destroyed — substantially so at least. In the latter, the material form may exist, but the value to the owner is gone. The rule, then, is that if the expenses of repair will exceed half the value of the ship when repaired, there is a constructive total loss, and she may be abandoned. Due and formal notice of the latter act then becomes essential. (Arnold on Ins., 844; 2 Parsons on Ins. [ed., 1868], 125, 126; 2 Phillips’ [4th ed.], 274, § 1535; Marshall on Ins. [5th Eng. ed.], 440.)

The argument here is, that as there was no absolute extinction of the vessel, the complaint fails to show a cause of action, because no constructive total loss or- abandonment is averred. This latter question may become important hereafter. It need not now bo considered, for the reason that the averments in the complaint are broad enough to cover an actual total loss.

In McCall v. The Sun Mut. Ins. Co. (66 N. Y., 505), it was held that the mere fact that an insured vessel exists m specie does not necessarily prevent the insured from claiming a total loss without abandonment. If, after encountering a sea peril, it is, for that reason, justifiably sold by the master, the insured may claim a total loss, accounting to the insurer for the proceeds of the sale as salvage received for h'is benefit.

“The shattered condition of the bark,”- said ANDREWS, J., “ away from herbóme port, the impossibility of getting her off the rocks during the winter, the probability of her early and entire destruction from the violence of the winds ánd sea on an exposed and dangerous coast, and the fact that the expense of repairs would exceed her value when repaired, constituted, within the cases, an urgent necessity which justified the master in malting a sale, and an abandonment was, therefore, unnecessary.”

Now, let us look at the present complaint in the light of these rules. It is charged that, after being “ greatly damaged and disabled by the perils of the sea, the bark was found to be irreparable, unfit and unable to proceed upon her voyage,” and that she was thereupon “ duly condemned and sold.” This is an averment of an actual total loss within the case cited. She was unfit and unable to proceed, and entirely past repairing. Not that the expenses of the repairs would exceed one-half or even the entire value, but that she could not be repaired at all. That is to say, she could not be used as she was, and she could not be put m condition to be used. She was thus lying on the master’s hands, utterly destroyed and valueless as a vessel, just as much so as though she “lay thumping on the rocks in a violent gale, bilged and filled with water, and badly strained and logged ” (as in the McOall Case).

The facts thus set up constituted an urgent necessity which, to repeat the language of the McQall Case, “justified the master in making a sale, and an abandonment was therefore unnecessary.”

Nor is this sequence from the specific averment affected by the fact, also set out, that the bark realized so considerable a sum as $3,400. We must assume, in view of the previous averments, that this was realized not for the bark as such — Tor it is in substance charged that she was valueless as a vessel'— but for the material, chains, anchors, sails, rigging and hull.

The defendant may be entitled to credit for the product of the sale. There may ultimately be questions of fact as to whether there was an actual or constructive total loss, with interesting questions of law, should the latter prove to be the truth of Iho case.

Suffice it at present to say that an actual total loss is averred, and that a cause of action for some amount is fairly deducible' from the complaint as thus framed.'

The order overruling the demurrer must therefore be affirmed, with costs.

Davis, P. J., concurred.

Present — Davis, P. J., and Bakeett, J.

Order affirmed, with costs.


text:
    WILLIAM GRAHAM AND JAMES AITKIN, Appellants, v. THE FIRST NATIONAL BANK OF NORFOLK AND ORSON ADAMS, its Receiver, Respondents.

      Payment of dividends on 'bank stock is governed by the laio of the place where they are declared, and not by the law of the stockholder’s domicile — Right of a husband to receive the dividends on his wife’s stock — by what law determined.

    The right of a husband to receive, and of abankto pay to him, dividends declared upon shares of its stock owned by and standing in the name of his wife, must be determined by the law of the country in which the bank is located and the dividends are declared, and not by that of the country in which the husband and wife are domiciled.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee.
    The action was brought to recover dividends declared by the defendant’s bank upon certain shares of its stock to which the plaintiffs claimed to be entitled. The action was brought against the bank and was continued against its receiver.
    The referee found among other things :
    “That at the organization of said bank, and prior to January, 1865., one James Graham subscribed for and paid for (whether by and out of the funds of Mrs. Eliza A. Graham, his wife, does not appear) 196 shares of the capital stock of said bank, and directed the certificate thereof to be issued in the name of Mrs. Eliza A. Graham, his wife.
    “ That it does not appear whether said certificate and shares were ever delivered to said Eliza A. Graham, or used by or for the benefit of or controlled by her ; but I find that after their issue said certificate and shares were used, according to the direction of said James Graham, as security for divers loans made to him, said James Graham, by various parties.
    “ That on or about June 8, 1865, the certificate of said shares was, by the direction of said James Graham, delivered to the plaintiffs as security for a loan then and there made by them to said James Graham; but said shares were never transferred to the plaintiffs on the books of said bank, nor does it appear that said bank ever had any notice of such pledging or delivery of said stock to the plaintiffs, nor does it appear that said certificate was ever assigned in writing to the plaintiffs, or that the power of attorney and assignment printed on the back (which was in the. usual form) was ever signed or executed by said Eliza A. Graham, or by said James Graham.
    ‘1 That the plaintiffs held (as aforesaid) said certificate and stock from June 8, 1865, until on or about September 5, 1866, at which last named date it was delivered to said bank, and became its property upon said bank paying $20,000 to take up the loan for which the plaintiffs held possession of it.
    “ That while the plaintiffs held said certificate, as above mentioned, said bank declared three dividends, as follows: On or about January 1, 1866, a dividend of ten per cent; on or about April 1, 1866, a dividend of thirty per cent; on or about July 1, 1866, a dividend of five per cent; the aggregate of said three dividends being the sum of $8,820.
    “ That said bank paid said thirty per cent in cash to James Graham, the husband of said Eliza A. Graham, who received the same on or about the 18th day of June, 1866 ; that said dividend of ten per cent and said dividend of five per cent were, by the direction, authority and approval of said James Graham, credited, on or about the dates of their declaration, to an account of ‘James Graham, cashier,’ and went to reduce and pay an indebtedness which said James Graham, either individually or as cashier of the Farmers aucl Merchants' Bank of Elkton, Maryland, or the Elkton National Bank, owed said First National Bank of Norfolk, Virginia.
    “ That James Graham departed from nis home and disappeared on September 10, 1866, and has not since communicated with wife or family or been heard from, and that there is no evidence, beyond the bare fact of his disappearance, showing or tending to show that said James Graham died at any period within the period of seven years from September 10, 1866.
    “That on September 24, 1866, said Eliza A. Graham, at the request of the plaintiffs, and without any consideration being paid to her, and without the joining by, or the concurrence of, or the knowledge or approval of her husband, James Graham, executed and delivered to the plaintiffs an intrument in writing assigning to them all claims she had against the bank.”
    The opinion of the referee, Henry Nicoll, Esq., after reviewing the evidence, proceeds :
    And this brings me to the important question of law, whether the Norfolk Bank is to be protected in making these payments. In other words, whether the law of Virginia — the place where the transaction took place — or the law of Maryland, the domicile of Mr. and Mrs. Graham at the time, is to prevail.
    It lias been fully proved before me, and it is in fact conceded, that at the times when these dividends were declared and credited, as already stated, the common law prevailed in Virginia in respect to marital rights, and that Mr. Graham being by that law entitled to reduce these dividends into possession, his rights in the matter are to be determined by it, and not by the law of Maryland. It is also conceded that, by the law of Maryland, these dividends were the separate property of Mrs. Graham, and were not subject to be reduced into possession by her husband.
    Whatever difference may have heretofore existed among our own and British writers on international law, as to what law shall govern in the disposition of personal property inter vivos as distinguished from cases of intestacy and succession, the better opinion would now seem to be that the lex loci contractus aut actus is to govern in determining the validity of contracts or transactions. It is true that the continental j mists still adhere to the rigid rule, which has generally been laid down by them, that personal property is always governed by the law of domicile, but the exigencies of business growing out of the increasing international relations of mankind have brought our own jurists to see the necessity of adopting a more liberal rule.
    In the early case of Thompson v. Ketcham (8 Johns., 189) a plea of infancy was interposed as a defence to a note made in the Island of J amalea, but there was no proof as to the age at which minority ceased by the laws of that island. From the opinion of the court, it is very clear that if it had been proved that, by the laws of Jamaica, the defendant was disabled by his non-age from making a valid contract, the defence would have been admitted. There are numerous cases in our books in which it has been held that the lex loci contractus must govern in the interpretation of contracts, and there are also several in which the law of domicile has been held to prevail in cases involving the marital rights of husband and wife inter sese. In cases of succession or intestacy the law of the domicile has been recognized and enforced, but there is no case that I am aware of in which the particular question now before me, as to which law shall prevail inter vivos, has ever been passed upon by our courts. The current of authority, however, both in England and in the other States of the Union is m favor of holding that the law of the place where the transaction is consummated must prevail. The recent case of Millihen v. Pratt, in the Supreme Court of Massachusetts, not yet reported (see Albany Law Journal, April 19, 1879, p. 311), is a direct authority in support of this proposition. A married woman, domiciled with her husband in the State of Massachusetts, sent to the plaintiff, in the State of Maine, to induce him to sell her husband merchandise, her guaranty for the payment of his purchases. The guaranty was sued upon in Massachusetts. By the then existing laws of that State a married woman could not make such a contract, but the Supreme Court of Massachusetts held that inasmuch as the contract was to be performed in Maine, where no disability existed on the part of a married woman to make contracts, the law of that State must govern, and the contract was therefore held to be a valid one, binding upon the wife. In delivering the opinion in that case, Chief Justice Gray remarles as follows: “In the great majority of cases, especially in this country, where it is so common to travel or to transact business through agents, or to correspond by letter from one State to another, it is more just, as well as more convenient, to have regard to the law of the place of the contract as a uniform rule operating upon all contracts of the same kind, and which the contracting parties may be presumed to have in contemplation when making their contracts, than to require them at their peril to know the domicile of those with whom they deal, and to ascertain the law of that domicile, however remote, which in many cases could not be done without such delay as would greatly cripple the power of contracting abroad at all.” "
    It is only by comity that laws can be said to have any extra territorial effect. They do not operate jprojorio vigore in other States or countries, and are never enforced or recognized when in doing so the State’s own citizens or subjects would be prejudiced.
    A forcible illustration of the extent to which this doctrine has been carried is presented in the case of Gfuillander v. Howell (35 N. Y., 657). In this case a party domiciled in the State of New York made an assignment of personal property situated in the State of New Jersey. The assignment was valid by the laws of'this State, but was void as against creditors under the laws of New Jersey; the Court of Appeals held the law could have no operation in the latter State, and that it was void as against attaching creditors in New Jersey.
    All the reasons which support the doctrine of these latter cases apply with equal if not greater force to the one' before me. The liability of the Norfolk Bank was one of contract; they had agreed to pay in Virginia the dividends which had been declared on the stock standing in Mrs. Graham’s name on their books ; they were not bound to take notice of the law of Maryland ; in fact, they had the right to presume that the common law prevailed in Maryland as it. did in Virginia. (Abell v. Douglass, 4 Denio, 305.)
    If, after having made these payments to Mr. Graham, an action had been brought for their recovery by his wife in the courts of Virginia, the defendants would have been protected, and if Mrs. Graham or persons claiming under her could not have recovered these dividends in Virginia, the courts of this State would, in my judgment, equally refuse to afford relief. The fact that a different rule prevails in regard to the succession of and distribution of personal property in case of death is not inconsistent with the general principles which govern transactions inter vivos. The reasons for this distinction are forcibly stated by a very recent writer on the Conflict of Laws (see Wharton on Conflict of Laws, § 343), and they are to my mind satisfactory and conclusive.
    Upon the whole, I must hold that the dividends in question were paid by the defendants’ bank to Mr. Graham, and that he had the legal right to receive them under the laws of Virginia where the transaction took place.
    These views of the case renders it unnecessary for me to pass upon the other questions which would have required examination, had I held otherwise on those which I have briefly discussed.
    There must be judgment dismissing the complaint, with costs.”

      Malcolm Campbell, for the appellants.
    The assignment of claim by Mrs. Graham to the plaintiffs was a perfectly valid transfer. (Barton v. Barton, 32 Md., 214; Whitridge v. Barry, 42 id., 140; Trader v. Loioe, 45 id., 1; see also Bany v. Bquit. Life Ass. Boc’y, 59 N. Y., 587; Btoneman v. Erie R. R. Co.,‘52 id., 429..) The law of Virginia is not applicable to the case ; but the law of Maryland, the domicile of James Graham and his wife, is the law properly applicable thereto, and under that law the payment to the husband was not binding on the wife. (Wharton on Conflict of Laws, §§ 118-121, 331cí; Le Breton v. Miles, 8 Paige, 261; Parsons v. Lyman, 20 N. Y., 112; Hoyt v. Commissioner of Taxes, 23 id., 224; BonatiY. Welsch, 24 id., 157; Hill v. Pine River Bank, 45 N. H., 300; Petersen y. Chemical Bank, 32 N. Y., 21; Leev. Belleck, 33 id., 615; Guillander v. Howell, 35 id., 657; Loney v. Penniman, 43 Md., 130; Blaybacker v. Bank of Gettysburg, 10 Pa., 373.) But the law of Virginia cannot be invoked to aid the defendants, unless there is clear proof of actual payment of the dividends or an actual reduction to possession by the husband of the dividends themselves. Even the exercise of control by him over the stock does not amount to a reduction to possession of the dividends, and such reduction must be actual, not constructive. (Hcircum v. Hadnall, Ma’r, 14 Grattan, 382, 383; Searing v. Bearing, 9 Paige, 283.)

      Francis Q. Barlow, for the respondents.
   Barrett, J. :

We have gone over this case carefully and, upon the whole, are satisfied with the conclusions of the referee. It will not bo necessary to give our reasons in extenso, as the referee’s opinion is quite full and covers all the ground. The only point upon which we entertained any doubt was as to the fact of payment; but, after reviewing the testimony we think there was enough to sustain the finding. As to the legal conclusion, the referee, in our judgment, was entirely right.

The lex loci contractus aut actus should govern in the payment of corporate dividends. Any other rule would be inconvenient and almost intolerable. The declaration of the dividend imports a contract. Thereby the corporation agrees to pay the specified amount to the shareholders registered upon its books. Assumpsit would lie therefor. The place of such contract is that of the corporate action. The place of the act of payment, which is that designated' by the corporation, must also be considered. The company should not be required to look beyond the law of the place where such dividend contract is made and such act of payment is performed.

There can be no good reason why the rule in intestacy and succession should apply to such transactions inter vivos. There is no true analogy between the cases, and every consideration of public policy and business interest is opposed to the application of the lex domicilii to such payments.

It would be an exceedingly dangerous policy to require every corporation to look to the lex domicilii of each of its shareholders, under penalty of possibly being called upon to pay the dividend over again.

There being nothing in the objections to the admission and rejection of evidence, and the rulings throughout being substantially correct, the judgment should be affirmed, with costs.

Davis, .P. J., and Beady, J., concurred.

Judgment affirmed.


author: POTTER, J. : Brady, J.: Ingalls, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JACOB SIEBERT v. THE BOARD OF POLICE COMMISSIONERS AND THE MAYOR, ETC., OF THE CITY OF NEW YORK.

      Police hoard of New York — power of to create offences, upon conviction of which a member may be removed from the force — when a conviction must fii’st be had in a common law court — sect. 55 of chap. 335 of 1873.
    Under section 55 of chapter 335 of 1873, creating- the board of police of the city of New York, and conferring upon it the right to remove members of the force, upon their conviction of certain offences therein prescribed, the board cannot try and remove an officer, upon the charge of conduetunbecoming an officer, in that he swore falsely when testifying as a witness upon the trial of another member of the force before the said board ; to justify a removal for such an offence, the officer must first have been convicted of false swearing upon a trial before a jury, and in the ordinary courts of justice. (Ingalls, J., dissenting.)
    Ceetioeaei to the board of police commissioners of the city of New York, to review a judgment convicting the relator of conduct unbecoming an officer, and removing him from his office as a captain of the police force.

      A. J. Dittenhoefer and Oeorge Bliss, for the relator.

      Charles F. MacLean, for the respondent.
   POTTER, J. :

This case comes before the court upon a return to a certiorari issued to the board of police commissioners of the city of New York, to review a judgment convicting the relator of a charge preferred against him and removing him from the office of a captain of the police force.

The charge upon which the relator was tried and convicted was as follows :

CENTRAL DEPARTMENT, |
New YorK, November 13, 1877. j
“To the board of police of the police department of the city of New Yorh:
“I hereby charge Jacob Siebert, captain of the thirty-first precinct, with conduct unbecoming an officer.
“ SPECIFICATIONS. — In this, to wit: On the eighteenth of October, last past, patrolman Mark Haggerty, of the thirty-first precinct, was on trial under charges before the board of police, and the said Jacob Siebert was a witness, and was sworn in the case. He was shown a written letter or communication, addressed to the board of inspectors of the fourth district, and was asked, “ have you ever seen that letter before ? ” to which he falsely replied, “no, sir;” on being asked the question, “it has never 'been shown to you before ? ” he falsely replied, “no, sir;” and he further falsely stated, “the letter I did not see.” Whereas, in truth and in fact, he had seen the letter, and it had been shown to him, and he had read it and made comments upon it. The testimony of said Siebert was important and material to the issue in the case against Haggerty, and was willfully false, and in violation of rule 644 of the manual of the police department.
“ GEORGE W. WALLING,
“ Witnesses: Superintendent.
“ Mark Haggerty, thirty-first precinct.
“ Sergeant Cass, thirty-first precinct.
“ Sergeant Larkin, thirty-first precinct.
“ Daniel McLaughlin, thirty-first precinct.
“ Inspector Thorne, fourth district.
“ Henry Botts, thirty-first precinct.”

No question is made by the relator, that he had not due notice of the charge and of the time and place of the trial, and of the orderly conduct of the trial.

The real question in this case is much moré important than the manner of trial or the regularity of the proceedings.

It is a question of jurisdiction, and of the right of the respondent to create an offence, and to convict and punish a person charged with the commission of the offence so created.* It is, in brief, a combination of legislative, judicial and executive powers in the respondent.

That state of things is no doubt necessary to secure an efficient organization of the police force of a large city, and the courts are not inclined to interfere upon slight occasion with its practical operation; but it seems to me the action of the respondent in this case involves questions of a very serious nature.

We will proceed to consider what offence the respondent has convicted the relator of, and whether the respondent has created or had the right to create or the right to try such offence. The charge preferred against the relator “ is conduct unbecoming an officer,” in this, that on a trial of one Haggerty, the relator, who was a witness, testified falsely in relation to having seen a certain letter referred to upon such trial.

The charge is, virtually, false swearing as a witness upon a trial. It is not with any violation or neglect of any duty, official or otherwise, arising from having seen or known of the letter or in anywise connected with it.

All the pertinent evidence upon the trial had sole relation to that issue, whether it was true or false that the relator had seen the letter, and that alone was the question decided jsy the respondent.

Now, has the board any power or right to create or declare the offence charged upon the relator ? Whatever of power the respondent possesses in that regard is derived from chapter 335, Laws of 1873. That act creates the respondents and confers upon them such powers as-they have. By section 41 of that act the government and discipline of the police department shall be such as the board may, from time to time by rules and regulations, prescribe.

All the rules and regulations must be for the government and discipline ; beyond these purposes and objects the board cannot prescribe any rule or regulation. The rules and regulations can have no binding force upon the police officers except while upon duty and acting officially.

Accordingly, it will be seen by reference to section 55 of that act, which contains a specification of the offences for which the board may inflict punishmeni, that except the first class (which we will notice further on) they all relate to the government and discipline of the police, and are for violations or neglects of their duties as policemen.

That section provides that the board of police shall have power, in its discretion, on conviction of a member of the force of any legal offence or neglect of duty or violation of rules, or neglect or disobedience of orders, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming an officer, or other breach of discipline, to punish, etc.

It will be observed, after specifically naming several offences against discipline and duty, it concludes with this language, “ or other breach of discipline.”

The design of these two sections is apparent and consistent. It is that the board of police may make rules of discipline and duty for the policemen, and try and punish those who break them.

It was not shown that the board had ever made a rule against false swearing or perjury by a policeman while testifying as a witness. The board probably did not contemplate that any policeman would or could testify as policemen, or while on duty as such. The board no doubt contemplated that if a policeman was called to testify as a witness in any controversy between another policeman and the board, or between a policeman and a citizen or the city, or between any other parties, he would testify as any other citizen, and under the same pains and penalties for false swearing.

The oath taken by the relator was, in no sense, an official oath as policeman, but was the same oath that was taken by other witnesses not officers on the trial referred to, and that oath required all the witnesses alike, whether officers or private citizens, to tell the truth in relation to the matters in issue.

The true issue upon the trial was, whether the relator had testified falsely or committed perjury upon the trial of Haggerty. Tbat was the question tried and decided by the respondent. It is too far fetched and puerile to call the trial of so imporant a question a mode of ascertaining whether the relator had been guilty of conduct unbecoming an officer.

The respondents might, with quite as good a show of sense and propriety, have charged the relator with conduct unbecoming an officer, specifying that he committed murder or rape, some time and place when off duty, and have tried him for that offence. And this brings us to the consideration of the exceptional class of offences mentioned in said section 55, for which the respondents may remove policemen upon conviction. Besides the power to try and remove policemen for a violation or neglect of duty, the respondents have the power to remove any member of the police force upon conviction of any legal offence.

By legal offences are meant crimes and misdemeanors enacted by the legislature, or existing at the common law. When a policeman has been convicted of any of these offences by the tribunal, and in the manner prescribed by law, the respondent may remove for such conviction.

The idea that the board of police may try and convict persons charged with perjury or murder, arson, or other legal offence, is simply preposterous. Those offences can only be tried by a jury, and in the mode provided by law. Neither an act of the Legislature, or the consent of the accused, will justify a trial for these offences in any different manner.

The word “ conviction,” as used in this section, has the same meaning as when used in similar statutes. It means a judgment of guilty pronounced against the accused by the tribunal, and in the mode prescribed by law. (Blaufus v. People, 69 N. Y., 107; Schiffer v. Pruden, 64 id., 47.)

The conclusion is, therefore, that the respondents may, under section 55, supra, remove their subordinates, upon conviction, for two classes of offences: the one, offences against the laws of the land ; and the other, offences against the rules of discipline. For the former class conviction must first be had in the courts of justice and, in the latter, in the court of the board of police.

The relator was convicted and punished for an offence belonging to the former class, in the court only competent to convict for offences of the latter class. The conviction of the relator was without jurisdiction, and should be reversed.

Brady, J.:

The differences between my brethren are irreconcilable, and create a doubt of the propriety of the judgment of the respondents. The charge made is sought to be established by proof that the relator swore falsely on a trial, on which he was examined as a witness, and as to a material fact, and the effect of the judgment against him must be that he did so testify, because of the character of the evidence against him. There can be no doubt of the power of the commissioners to try and punish an officer for falsehood in reference to his duties, because it would be embraced in the charge of conduct unbecoming such a person j but that is a very different thing from the charge of false swearing, which must be more serious in its consequences, if declared to have been committed. The line is close, I admit, but in such a case I think the doubt should be to the benefit of the relator, leaving the respondents to a further review, if one should be desired. I place my concurrence with Judge Potter on the proposition, that the commissioners cannot investigate the charge of falsehood by resorting to proof of what the relator said when he was under oath as a witness, and then assailing it by testimony calculated to show that the statement made as a witness was f^lse. The legal effect of the crime of perjury does not flow from such a trial; but the moral effect is the same while the element of the jury was not invoked and was absent.

Ingalls, J.

(dissenting).

On the 13th day of November, 1877, the relator was a captain of police in the city of New York, and the following charges and specifications were preferred against him, and were served upon him:

To the board of police of the police department of the city of New YorJe :
November 13, 1877.
“ I hereby charge Captain Jacob Siebert, of the thirty-first precinct, with conduct unbecoming an officer.
“ Specifications. — In this, to wit: On the eighteenth of October last past, patrolman Mark Haggerty, of the thirty-first precinct, was on trial, under charges, before the board of police, and the said Jacob Siebert was a witness, and was sworn in the* case. He was shown a -written letter or communication addressed to the board of inspectors of the fourth (4th) district, and was asked : “ Have you ever seen that letter before ? ” to which he falsely replied, “no, sir.” On being asked the question, “it had never been shown to you before? "he falsely replied, “ no, sir;” and farther falsely stated, “ the letter I did not see;” whereas, in truth and in fact, he had seen the letter, and it had been shown to him, and he had read it and made comments upon it.
“ The testimony of said Jacob Siebert was important and material to the issue in the case against Haggerty, and was willfully false and in violation of “ rule 644 ” of the manual of the police department.
“ GEORGE W. WALLING,
“ Witnesses: Superintendent.
“ Mark Haggerty, thirty-first precinct.
“ Sergeant Case, thirty-first precinct.
“ Sergeant Larkin, thirty-first precinct.
* ‘ Daniel MoLoughlin, thirty-first precinct.
“ Inspector Thorne, fourth precinct.
“ Henry Butts, thirty-first precinct.
“I admit due personal service on me of copies of the above complaint, charges, specifications and notice of trial.
“ (Signed), JACOB SIEBERT.”

A trial was had, which was attended by the relator, assisted by counsel, and the following order was made in accordance with the decision of the board of police commissioners :

“ Police Department of the City of New York,)
“No. 300 Mulberry Street, New York, >
February 26, 1878. )
“ At a meeting of the board of pólice of the police department of the city of New York, held pursuant to law, and the rules and regulations of the said board, at the time and place above set forth.
“Present — William F. Smith, Dewitt C. Wheeler, Joel B. Erhardt and Sidney P. Nichols, commissioners; the following among other proceedings were had:
Pólice department of the city of Nexo York. In the Matter of charges against Jacob Siebert, captain.
“It appearing to the said board of police that on the 13th day of November, 1877, charges of 1 conduct-unbecoming an officer/ against Jacob Siebert, captain, a member of the police force of the city of New York, were preferred to the said board In manner and form prescribed by law, and filed in the office of the chief clerk thereof; that a copy of such charges, with a notice in writing from the said chief clerk that said charges have been so preferred and filed, and that the said Jacob Siebert, captain, was required to appear and answer to such charges, at a time and place fixed by the said board, and mentioned in said notice, to wit: on the seventeenth day of January, at eleven o’clock a. m., at the said police department, No. 300 Mulberry street, in the city and State of New York, had been served on the said Jacob Siebert, captain, personally, at least two full days before the time fixed for appearing and answering, as above set forth in the manner required by law, and the rules and regulations of the said board. The said Jacob Seibert, captain, having appeared and answered to said charges, at the time and place required in and by said notice, the said board, at such timo and place publicly heard the proofs and allegations in support of said charges ; and -the said Jacob Siebert, captain, having so appeared, and a full opportunity to be heard in his defence having been offered him, and due deliberation been thereupon had, it is found that the said captain, Jacob Siebert is guilty of the charges so made as aforesaid; whereupon, for the cause aforesaid, it is ordered and adjudged by the said board that the said captain Jacob Siebert be and is removed from the police force of the police department of the city of New York. All the commissioners present voting aye.
“By order of the board of police.
“ (Signed), S. C. HAWLEY,
Qhief Clerk.”

The manner, and the extent to which such proceedings may be reviewed, is very clearly defined in The People v. Board of Police and Excise, etc. (69 N. Y., 409). Chief Judge Church says: “ Only errors in law affecting materially the rights of the parties may be corrected ; and the evidence may be examined in order to determine whether there is any competent proof to justify the adjudication made.” (See also The People v. The Board of Police, etc., 39 N. Y., 506.) The relator was charged with, and tried for, conduct unbecoming an officer, viz. : in falsely stating under oath, as a witness, upon the trial of Mark Haggerty, that he had not seen the letter which is referred to in the specification. There was pertinent evidence in support of the charge produced to, and considered by the police commissioners, and upon which they based their decision dismissing the relator from service, and it cannot, we think, be successfully contended that their decision is unsupported by competent evidence. Such being the case, it is quite clear that this court cannot consistently, Avith the adjudications to Avhich we have above referred, interfere and reverse the decision of the commissioners, even though as an original question it might incline to a different conclusion upon the merits of the entire case. It Avas the province- of the board of police commissioners to hear, and Aveigh the entire evidence, and deduce a conclusion therefrom, and having done so in accordance. Avith the rules and regulations by which they are governed their decisions must be regarded as conclusive. Certainly if the relator had been guilty of a false statement under oath, in regard to a matter connected Avith the management of the police department, of which he was a member, it constituted an offence Avhich rendered him amenable to discipline. The board of police commissioners are authorized to exact from the members of the police force obedience to its rules, fidelity, and truthfulness, at least in regard to all matters connected with such department. We are not able to adopt the theory for which the counsel for the relator contends that a conviction, upon the charges preferred, could only be sustained by evidence which would authorize a conviction for perjury as defined by the Revised Statutes, or chapter 335, section 48 of the Luavs of 1873. We are convinced that a statement which is untrue, and made under oath by a member of the police force, in regard to a matter connected with the business of that department, would constitute conduct unbecoming an officer, and subject the offender to punishment, although the evidence might be insufficient to justify a conviction for the crime of perjury upon a trial under an indictment. It could not have been tbe intention of tbe Legislature to require tbe police department of tbe city of New York to retain in its service a member of the police who bad been guilty of conduct unbecoming an officer until tbe conclusion of a protracted litigation in tbe courts, for thereby tbe efficiency and reliability of that branch of tbe city government would be likely to become impaired. We conclude that it was tbe intention rather to confer upon tbe board of police commissioners ample authority to investigate summarily all such .charges, and if sustained by evidence to suspend or discharge tbe offender; and, as we have seen, tbe appellate tribunal will only inquire far enough to see that tbe conviction is in accordance with tbe law which authorizes tbe proceeding and is sustained by competent evidence, .but will not substitute its judgment for that exercised by tbe commissioners in regard to the weight to be attached to tbe evidence, or tbe inferences to be drawn therefrom. The 23roceeding before such commissioners is not to bh regarded as tbe trial of tbe relator for tbe offence of perjury, as defined by tbe statutes to -which we have referred, but for conduct unbecoming an officer, in making a false statement under oath in regard to a transaction connected with tbe business of tbe police department; and tbe fact .that such statement was made under oath only added to tbe gravity of tbe offence. Mark Haggerty was on trial for a violation of tbe following rule :

“ All letters or communications, anonymous or otherwise, in relation to any matter which concerns police duties or business, received by any member of tbe police force, must be, at tbe close of their respective tours of duty, immediately delivered to them respective captains, or officer commanding tbe precinct or squad. All such communications shall be forwarded with tbe next morning reports to tbe superintendent through tbe inspectors of their respective districts. Tbe date of receiving tbe letter and tbe substance thereof to be entered on tbe blotters kept at tbe respective precincts,” and charged with omitting to return to the proper officer a letter which bad come to the possession of Haggerty. And upon such trial Siebert stated on oath that be had not seen such letter previous to such trial, and evidence was produced to tbe effect that be saw tbe letter and commented upon tbe same wben it was in the possession of Haggerty. We cannot doubt but that the board of police commissioners would be authorized to discharge from-service a member of the police force, who was shown to be guilty of immoral practices, which tended to impair the efficiency and reliability of such person for the service which he had undertaken to perform, even though such vicious conduct was not directly connected with the business of the police department. As an illustration, suppose a member of the police force should be shown, when off duty, to be engaged in promoting burglaries in a foreign county or State, could it be doubted for a moment but that the board of police commissioners would be authorized to discharge such person from service without regard to the maimer in which he performed the duties assigned him as a member of the police force. Following the. rule established by the adjudications, to which we have referred, we discover no sufficient ground which will justify a reversal of the order of the commissioners, and the same should be affirmed. If, upon further consideration, the commissioners shall become satisfied that they have ‘dealt too severely with the relator, under all the circumstances, it is doubt less in their power to restore him; but it is their province, and not that of. the court, to accomplish such result.

Proceedings and judgment reversed.


author: Brady, J.: Barrett, J.:

text:
    ANTONIO MEUCCI, Respondent, v. CHARLES RAUDNITZ, Appellant.

      A court may, in its discretion, grant a second order of arrest after a former order has been vacated in the same action.

    The fact that an order of arrest has been vacated, on the ground that the affidavit upon which it was granted failed to establish any fraudulent intent on the part of the defendant, does not prevent the com’t from granting a second order of ai’rest in the same action upon farther facts, if satisfied that the application for such second order is not vexatious.
    Appeal- from an order made at Special Term, denying a motion to vacate an order of arrest.

      Rudolph Sampler, for tbe appellant.

      Raul Fuller, for tbe respondent.
   Brady, J.:

An order of arrest was granted in this action against the defendant by Justice LawreNCE. Tbe motion to vacate it was duly made and its vacatur directed.

Tbe opinion of Mr. Justice Barrett, before whom the motion to vacate was made, was as follows: “ The ground stated in tbe order is inconsistent with tbe complaint. But, even if fraud in contracting the debt had been specified, tbe arrest could not be sustained. Nothing is stated but tbe purchase and tbe notice' declaring an intention to make an assignment. It is not shown that the defendant was insolvent when he purchased the goods, nor, if lie were, that he knew it. There was no representation, no tricks or artifice, no suppression of fact even ; the assignment, if made, may pay one hundred cents on the dollar for aught that appears. It is a bald case, and the motion must be granted, with costs.”

Subsequently the plaintiff, having ascertained the existence of other facts which he regards as establishing a fraudulent intent, applied for a second order of arrest upon notice of motion which, though opposed, was granted. A motion was then made to set it aside upon the papers upon which it had been allowed, which was denied, and this appeal is from such denial.

The defendant insists that the second order ivas improperly granted, on the ground that no person can be twice arrested for the same cause of action. We think that the principle invoked, and so broadly stated, does not present the rule by which a second arrest in the same suit for the same cause of action is to be governed. We think it depends entirely upon the consideration whether the second order is vexatious. There is nothing in the case to show that the application for the second oi’der was of this character. Indeed, the contrary conclusion seems to have been arrived at by the learned justice who issued it. The first order was vacated because the affidavit was not sufficient. But the additional facts presented, though they relate to the same cause of action, assume a very different legal significance, because they establish what the previous affidavit failed to do — namely : the existence of a fraudulent intent — and entitled the party to an order of arrest. The presentation of additional facts properly invoking the jurisdiction of the court demonstrates not only the propriety of the order itself, as a matter of law, but of the fact of the application for it was not vexatious.

It is true that in the case of the People v. Tweed (63 N. Y., 205) it was determined that an order of arrest in a second action might be assailed, being vexatious, and that it is not, therefore, strictly in point here. But, nevertheless, we think that the principle in that case justifies the order herein, and more particularly because it was granted upon notice to the defendant, and he was afforded an opportunity therefore to prevent its issuance, which would not have been given him in the first instance if another action had been commenced, because the order would have been granted ex parte,

For these reasons we think the order appealed from should be affirmed; but, as the question is comparatively new, without costs.

Barrett, J.:

Generally speaking a party should not be permitted to obtain a second order of arrest upon affidavits merely strengthening the original case. Certainly not unless good reasons are given for the omission to embrace all existing facts in the first application. But where fresh facts have been developed the defendant should not have immunity, merely because he was able successfully to meet earlier and perhaps entirely different charges. There may for instance be a successful defence to a charge of fraud in contracting the debt and yet the defendant may subsequently be guilty of a fraudulent disposition of property. There should be no inflexible rule except against vexation. I, therefore, concur with my learned brother, Mr. Justice Brady.

Davis, P. J., concurred.

Order confirmed, without costs.


author: Barrett, J.: Brady, J.

text:
    In the Matter of the Petition of THOMAS MURPHY to vacate or reduce assessments, etc.

      Resolution for paving — when it authorizes the pavement of the streets which hound, at each end the portion of the street improved —• Error in the amount of an assessment — when it may he corrected on petition, under chapter 312 of 1874.
    A resolution directing- “ that Madison avenue, from Forty-second to Eighty-sixth streets, be paved with Belgian pavement, and that at the several intersecting streets and avenues cross-walks Joe laid,” etc., authorizes the paving of Eighty-sixth street as being one of the intersecting streets. (Brady, J., dissenting.)
    Where, under a resolution directing the pavement of Madison avenue, from Forty-second to Eighty-sixth street, the latter street was paved, and the petitioner’s lot, situated on the north-west corner of Madison avenue and Eighty-sixth street, was by mistake assessed, not only for its proportionate part of the paving done at the intersection, but as though it were situated wholly within the area of assessment, held, that the error could be corrected on a petition to vacate the assessment under chapter 312 of 1874.
    Appeal from an order made at Special Term denying a motion to vacate an assessment in the city of New York.

      E. M. Neville, for the petitioner, appellant.

      J. A. Beall, for the City of New York, respondent.
   Barrett, J.:

The petitioner makes two objections : First. That his property was not included in the area of assessment ,• and, Second. That the amount was excessive.

The first objection is based upon the terms of the resolution, the material part of which is as follows :

“Resolved, that Madison avenue, from Forty-second to Eighty-sixth street, be paved with Belgian pavement, and that at the several intersecting streets and avenues cross-walks be laid where not now laid,” etc.

It is contended that the words, “to Eighty-sixth street,” mean to the southerly line, and that, consequently, the petitioner’s property on the north-west corner of Madison avenue and Eighty-sixth street is not included. This is not a fair construction of the resolution ; the language is, from and to the streets in question, not from the northerly line of the one to the southerly line of the other.

The intention plainly was to cover and include these streets and to treat them as “intersecting,” within the other branch of the resolution. There can be no doubt, for instance, of the authority to lay cross-walks on these streets.

The same view applies to the notice for objections ; that was sufficient under the construction which supplies the word “inclusive” at the end of the sentence “both sides of Madison avenue from Forty-second to Eighty-sixth streets.”

The second objection, however, is well founded. The testimony shows very clearly that there was a mistake as to the large amount assessed upon the petitioner's property, and that great injustice was thereby done him. According to the well established custom and governing rule of the assessors, the petitioner’s lot was assessable only for the work done at the intersection. This was just, for the reason that his frontage was beyond the line of improvement. By an aclenoioledged error he was assessed as though his frontage were included iu the area of assessment. The same mistake seems to have been made with respect to the opposite lot upon the north-east corner. Not so, however, as to the lots upon the southwest and south-east comers of Forty-second street and Madison avenue. They were properly assessed for their proportion of the intersection work and no more.

All this appears most explicitly from the testimony of the secretary of the board, and even the president, Mr.. Asten, speaking of the amount imposed says, that “ it is his impression that it was an error.”

We were doubtful at first whether this error could be remedied in these proceedings. But an examination of The Matter of the Protestant Episcopal Public School (75 N. Y., 324) has convinced us that it may.

In that, case, the act of 1874 (chapters 312 and 313) were held to embrace an error in the adoption of an illegal rule, by which the amount imposed upon the petitioner was improperly increased.

A fortiori these acts apply where, as here, the principle is well enough, but there has been a clear and probably unintentional mistake in its application. If, in the former case, the injured party is not limited to a certiorari, certainly he should not be in the latter. It is enough to sustain these proceedings under the case cited that there was substantial error. The question of laches was not raised and has not been considered.

The testimony is not clear as to the proportional amount for the paving done at the intersection. Mr. Tully says : “I should judge, to look at it, it would be less than $100.” That is not enough to enable us to dispose of the matter with precision.

The order must, therefore, be reversed, with ten dollars costs and disbursements of the appeal, and the proceedings remitted for further proof as to such proportional amount, with instructions to reduce assessment to the sum so ascertained.

Davis, P. J., concurred.

Brady, J.

(dissenting).

The improvement, to which this application related, extended from Forty-second to Eighty-sixth streets, and when it touched the southerly line of Eighty-sixth street it ended. It was not within its language to cross that street.

The words “intersecting streets,” in the resolution, give no force to the contrary view. These were the streets between Forty-second and Eighty-sixth streets, and over the bed of which if, in a continuous line, the improvement intersected. There was to be no intersection at Eighty-sixth street; the improvement stopping at the lino of that street, and, therefore, not cutting it at all.

To intersect, is to cut, divide or cross mutually. Two lines are said to intersect when they cross each other, having a point in common. The etymology of the word makes this moro apparent, being enter, between, and seco, to cut — Worcester’s Dictionary. If the resolution had provided for the improvement to the northerly side of Eighty-sixth street, or to and including Eighty-sixth street, the intersection would have occurred, but it did not. It was to Eighty-sixth street, and, when the point indicated was reached, its power was spent. This fact did not limit the area of assessment, doubtless, to the boundary lines given; but the notice to tbe petitioners was deficient, because it did not describe the limits of the assessment so as to embrace his property, and he was not properly advised of its imposition. It followed and repeated the language of the resolution, which was not enough. (See Laws 1841, chap. 171, § 1.)

Order reversed, with ten dollars costs and disbursements.