author: INGALLS, J. : Beady, J.:

text:
    LOUIS F. THERASSON, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Obtaining a signature to the 'satisfaction of a mortgage by false pretences — is an offence within 2 R. 8., 677, § E3.
    Upon the trial of .the plaintiif in error, it appeared that in 1874, and while he was acting- as attorney and confidential adviser of one Mrs. Zabriskie, she, by his advice, loaned §15,000 to a church, taking back a bond therefor, secured by a mortgage on real estate belonging to the church, payable three years from date; that thereafter, and in March, 1875, the said plaintiff in error, feloniously ' and with intent to cheat and defraud Mrs. Zabriskie, falsely pretended and represented to her that the said mortgage was not a good security for the said loan; that he believed that unless he could procure immediate payment thereof she would incur a loss thereon; that he expected to have great difficulty in inducing immediate payment thereof from the church, but that if Mrs. Zabriskie would execute and deliver a satisfaction piece thereof to him he would use his influence to procure such payment; that, relying upon said representations, Mrs. Zabriskie executed and delivered the satisfaction piece to him; that by means thereof he received the amount due on the mortgage from the church, and converted it to his own use.
    The statements made by him were false and untrue, and were known by him to be so, as the agent of the church had apx>lied to him to see if Mrs. Zabris-kie would allow the church to pay off the mortgage, as the church had just received some §40,000 in cash, and had determined to use it, where possible, • in paying off mortgages whether due or not due.

      Held, that procuring the signature of a mortgagee to a certificate of satisfaction of the mortgage by means of false pretences, made with intent to cheat and defraud, was within the provisions of 2 Revised Statutes, 677, section 53, and that the plaintiff in error was properly convicted thereunder.

      Writ of Error to review the conviction of the plaintiff in error in the Court of Oyer and Terminer of the city and county of New York.

      William A. Beach, for the plaintiff in error.

      Benjamin K. Phelps, district-attorney, for the People.
   INGALLS, J. :

The plaintiff in error was indicted, tried and convicted for having, by certain false and fraudulent pretences, obtained the signature of Sarah J. Zabrislde to a satisfaction piece, by means of which a mortgage executed to her by the ministers, elders and deacons of the Reformed Low Dutch Church of Harlem, for the sum of $15,000; became discharged. The offence is alleged in the indictment in the following manner, viz. :

“ City and County of New York, ss. :
“ The jurors of the People of the State of New York, in and for the body of the city and county of New York, upon their oath, present: That on the nineteenth day of February, in the year of our Lord one thousand eight hundred and seventy-four, and at all other times hereinafter mentioned, the ministers, elders and deacons of the Reformed Low Dutch Church of Harlem, in the ninth ward of the city of New York, was a religious, corporation, duly organized and existing under the laws of the State of New York, and as such corporation was empowered and authorized by such laws to acquire and own in'fee and its corporate name, for the proper uses of said corporation, the lands and tenements hereinafter more particularly specified, and in its corporate name to convey the said lands and tenements by indenture of mortgage or otherwise, and that on said day the said corporation was the owner in fee, and was duly seized of certain lands and tenements situate and being in the said city and county of New York, to wit: Two lots of land situate and being on the south-east corner of Third Avenue and One Hundred and Twenty-third street in said city, and that the same was then of great valúe, to wit, of the value of thirty thousand dollars and more. That on the said nineteenth clay of February in the year aforesaid, the said corporation duly executed and delivered to one Sarah J. Zabriskie, a certain indenture of mortgage, whereby the said corporation conveyed the lands and tenements aforesaid to the said Sarah J. Zabriskie, conditioned upon the payment to said Sarah J. Zabriskie by the said corporation, at the expiration of three years from said date, of the sum of fifteen thousand dollars, named in a certain bond bearing oven date with said indenture of mortgage, and on said day executed and delivered by said corporation to said Sarah J. Zabris-kie ; the said bond and mortgage being so executed and delivered by said corporation to secure a loan of the sum of fifteen thousand dollars, lawful money of the United States, made to it on said day by the said Sarah J. Zabriskie, which said mortgage was thereupon duly recorded in the office of the register of the city and county of New York, on the twenty-first clay of February, in the year of our Lord one thousand eight hundred and seventy-four, at nine o’clock in the morning of said last mentioned clay in liber 1167 of mortgages, at page 47 ; the said bond and mortgage were good, valid and existing obligations and securities ; and the said mortgage was a good, valid and existing lien upon the said lands and tenements, on the third clay of March in the year of our Lord one thousand, eight hundred and seventy-five.
“And the jurors aforesaid, upon their oath aforesaid, do further present: That Lewis F. Therasson, late of the first ward of the city of .New York, in the county of New York, aforesaid, on the said 19th clay of February, in the year of our Lord 1874, was then and there ah attorney-at-law, and as such, was then and there the attorney and agent for the said Sarah J. Zabriskie in the matter of said loan to the said corporation, and on said clay, and during all the times mentioned in this inquisition, such relation was maintained and existed between said Lewis F. Therasson and said Sarah J. Zabriskie as to her loans on real estate security.”

And the jurors aforesaid, upon their oath aforesaid, do further present:

“That the said Louis F. Therasson, late of the first ward of the city of New York in the county of New York aforesaid, on the third clay of March, in the year of our Lord one thousand eiejrt hundred and seventy-five, and at the ward, city and county aforesaid, with force and arms on the day and year aforesaid, with the intent to feloniously cheat and defraud the said Sarah J. Zabriskie, did then and there feloniously, unlawfully, knowingly and designedly, falsely pretend and represent to the said Sarah J. Zabriskie that the said mortgage was not a good security for the payment to her of the said sum of fifteen thousand dollars; that she (the said Sarah J. Zabriskie thereby meaning), had made a bad investment in loaning said sum of money on such security that he (the said Louis F. Therasson thereby meaning), was of opinion, and that he believed, that unless he could procure immediate payment of said loan by said corporation, she (the said Sarah J. Zabriskie thereby meaning), would incur a loss, and would fail to realize from said mortgage when due the full amount loaned; that he expected great difficulty in inducing immediate payment thereof by said corporation ; that if she, the said Sarah J. Zabriskie would execute and deliver to him (the said Louis F. Therasson thereby meaning), a certain satisfaction of mortgage, which he, the said Louis F. Therasson, then and there exhibited to her, he would exert his influence to induce the said corporation to repay said loan at once, and that he expected that said corporation would refuse to make such payment until said mortgage became due.
■ “ And the said Sarah J. Zabriskie then and there believing the said false pretences and representations, so made as aforesaid by the said Louis F. Therasson, and being deceived thereby, was then and there induced by reason of the false pretences and representations, so made as aforesaid, to sign, and being so induced as aforesaid, put her signature to a certain written instrument of the kind, commonly called a certificate of satisfaction of mortgage, and which said certificate of satisfaction of mortgage is in- the words and figures in substance, and to the effect following, that is to say :
“ STATE OF NEW YORK, }
“City and County of New York. } ss"
“ I, Sarah J. Zabriskie, of the city of New York, do hereby certify that a certain indenture of mortgage, bearing date the 19th day of February,. 1874, made and executed by the ministers, elders and deacons of the Reformed Low Dutch Church of Harlem, in the ninth ward of the city of New York, to me, and recorded in the office of the register of the city and county of New York in liber 1167 of mortgages, page 47, on the 21st day of February, 1874, at 9 o’clock, a. m., is paid, and I do hereby consent that the same be discharged of record.
“ SARAH J. ZABRISKIE.
Dated, the 3d day of March, 1875.
“ In presence of
“L. F. TherassoN.”

And the said Sarah J. Zabriskie then and there, being so induced as aforesaid, did deliver the said written instrument, with her signature thereto, to the said Louis F. Therasson, and the said Louis F. Therasson did then and there feloniously and designedly receive and obtain from the said Sarah J. Zabriskie her signature to the aforesaid written instrument by means of the false pre-' fences and representations aforesaid, and with intent feloniously to cheat and defraud the said Sarah J. Zabriskie thereby.

Whereas, in truth and in fact, the said mortgage was a full and sufficient security for the payment of said sum of $15,000; and whereas, in truth and in fact, the said Sarah J. Zabriskie had not made a bad investment in loaning said sum of money on such security ; and whereas, in truth and in fact, the. said Louis F. Therasson was not of opinion, nor did he believe, -that said Sarah J. Zabriskie would fail to realize the full amount loaned upon said mortgage when due, nor that she would incur a loss, unless he could procure immediate payment of said loan by said cor-Xioration; and whereas, in truth and in fact, he, said Louis F.. Therasson, did not expect great difficulty in inducing the said corporation to make immediate payment thereof; and whereas, in truth and in fact, the said corporation was then and there ready and . anxious to make such payment, and it did not need the exertion ■ of any influence by said Louis F. Therasson to induce it to make such payment at once, and he did not then and there expect that said corporation would refuse to make such payment until said mortgage became due ; and whereas, in fact and in truth, the pretences and representations so made as aforesaid, by the said Louis F. Therasson to the said Sarah J. Zabriskie was and were in all respects false and untrue, to wit: On the clay and year last aforesaid, at the ward, city and county aforesaid ; and whereas, in fact and in truth, the said Louis F. Therassop, well knew the said pretences and representations so by him made as aforesaid, to the said Sarah J. Zabriskie to be utterly false and untrue at the time of making the same.

And so the jurors aforesaid, upon their oath aforesaid, do say :

“That the said Louis F. Therasson, by means of the false pre-tences and representations aforesaid, on the day and in the year aforesaid, at the ward, city and county aforesaid, feloniously, unlawfully, falsely, knowingly, fraudulently and designedly did receive and obtain from said Sarah J. Zabriskie her signature to the written instrument aforesaid, with intent feloniously to cheat and defraud her thereby, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.”

We perceive that the indictment charges that'the pretences and representations were made with the felonious intent on the part of said Therasson to cheat and defraud the said Sarah J. Zabriskie, and that she, believing such pretences and representations to be true, was induced to and did sign the said written instrument. All of which pretences and representations are therein alleged to have been false. The plaintiff in error interposed a demurrer to the indictment, which seems to have been fully argued by counsel, and deliberately considered by the court, as appears by the able opinion submitted by Justice Barrett in deciding the case, and to which we refer with confidence, thereby restricting the discussion herein in regard to the validity of the indictment. The statute which is alleged to have been violated provides : 11 Every person who, with intent to cheat and defraud another, shall designedly by color of any false token or writing, or by any other false pretence obtain the signature of any person to any written instrument, or obtain from any person any money, personal property or valuable thing,” etc. Wo are convinced that procuring, by false pretences made with intent to cheat and defraud, the signature of a mortgagee to a satisfaction piece by which. the mortgage is discharged, so far affects a valuable interest as to bo within the purview of the statute referred to. (The People v. Crissie, 4 Denio, 525 ; Bacon v. Frisbie, 15 Hun, 26 ; Dord v. The People, 9, Barb., 675.) Judge KiNG remarks, in his opinion in the-case last referred to, as follows : “ Under the statute relative to false pretences the obtaining of the signature by the false pretence is the gist of the offence, but it having been 'decided, as is but reasonable, that the instrument to which the signature ivas affixed sliould be one which might possibly prejudice the party,” etc. (The People v. Sully, 5 Park. C. Rep., 143; The People v. Galloway, 17 Wend., 540.) In the case we are considering, by the execution and delivery of the satisfaction piece it was intended that the mortgage should be discharged, and that result was accomplished, in consequence of the statement of Therasson that the mortgage was not a good investment. He procured the money, and without the consent of Mrs. Zabriskie appropriated the same to his own use, and she was thereby sub-jcctcd to a serious pecuniary loss. The facts show clearly that Tlierassou could not have entertained the opinion that the mortgage was not a good investment, as he is shown to have possessed actual knowledge, at the time, to the contrary. It was the statement of an existing fact which at the time he knew to be untrue, and was intended to control the conduct of Mrs. Zabris-kie, and was not merely the expression of his .opinion, accompanied with a fair statement of the facts as he understood them, leaving it for her to weigh all the circumstances and to form her own judgment in regard to the soundness of the security, and whether it would be for her interest to discharge the same. He, at the time, could not have entertained a doubt in regard to the soundness of the security.

Charles Mott, the secretary of the church, testified as follows in regard to the ability of the church to pay the mortgage, and that Therasson was informed thereof, and of its desire to satisfy the same:

Q. Can you state whether or not this corporation made any attempt early in 1875 to pay off any mortgages outstanding against them ?

A. I can.

Q. What was the fact in regard to that ?

A. The fact was that in the month of January, 1875, the church came into possession of nearly $40,000 in cash, and early in the month of February a resolution was adopted authorizing -the treasurer out of those moneys to pay any mortgages of the church whether due or not, provided the consent of the mortgagees could be obtained. * # *

Q. In consequence of that resolution did you take any steps with regard to the Zabriskie mortgage ?

A. Immediately after the adoption I notified Mr. Therasson of the' resolution and asked if the mortgage given to Mrs. Zabriskie could be paid.

Q. Well, you say immediately after the passage of that resolution ; can you give the date of the passage of the resolution ?

A. My book of minutes is at the other end of the table.

Q. Is this it ?

A. That’s it.

Q. If you will just fix the date, if you can,' of tbe adoption of that resolution ?

A. [Reads.] February 12, 1875.

Q. And you say that immediately after the adoption of that you notified Mr. Therasson ?

A. Yes, sir.

Q. By immediately after do you mean within a day or two ?

A. Yes, sir ; very possibly the next day, but immediately after.

Q. What did you say to him, precisely ?

A. I told him of the adoption of the resolution, and asked him if the mortgage given to Mrs. Zabriskie could be paid.

Q. What answer did he make, if any ?

A. He said that he couldn’t say positively whether he could or not; that it was regarded as a good investment, and he would have to see Mrs. Zabriskie about it'; that he would see her and notify me of her decision.

Q. At that time did you inform him of the fact of the possession by the church of money which they wished applied in this way ?

A. I had done that prior.

The indictment charges as follows: “ Whereas, in fact and in truth, the said Louis F. Therasson, well knew the said pre-tences and representations so by him made as aforesaid, to the said Sarah J. Zabriskie, to be utterly false and untrue at the time of making the same.” The finding of the jury which, in. effect, sustains that allegation, is supported by competent evidence ; as we have seen, he was informed that the church had received $40,000 with which it desired to pay the mortgage in question, as well as other incumbrances. The conclusion from the facts, established by the verdict of the jury, seems inevitable that Therasson made a deliberate statement to Mrs. Zabriskie which he knew to be false, and which he desired and expected would induce her to execute and deliver the satisfaction piece, thereby enabling him to procure the money, and to devote the same to his own use. The suppression of the facts, which are shown to have been within his knowledge at the time, in regard to the pecuniary condition of the church, and the desire to pay the mortgage, indicates that he did not intend to express his opinion in regard to tbe security; but by the representations to convey to her mind an impression which he knew to be without foundation and contrary to any opinion which he could possibly have entertained.

Sarah J. Zabrislde testified upon the trial as follows :

Q. Will you please state what took place between Mr. Theras-son and yourself with regard to this investment ?

A. To my surprise, he told me it was' not a good investment; I replied that he got it for me, and he always said his investments were the best; he said he could do better with it, and I remarked that they paid their interest regularly, “what more do we want; ” he remarked that he could do better. •

Q. What was said with regard to the nature of the investment ?

A. He said it was not a 'good investment, which, as I say, surprised me.

She further testified that she was not informed, prior to the execution of the satisfaction piece, that the church had the money, and desired to pay the mortgage; and that for a long time subsequent thereto she supposed the mortgage had not been discharged ; that written statements had been furnished her by Therasson, in regard to her investments, which contained one item “ church loan $15,000 " and in connection therewith carrying out the annual interest; such statements were calculated to mislead, by creating the impression that the mortgage remained undischarged. The evidence shows that Therasson and Mrs. Zabrislde had been intimate friends for a long time previous to the transaction in question, and that she had been in the habit of consulting him in regard to her business; and that he was her legal adviser, from which it is reasonable to infer that she confided in him and would be likely to follow his direction in regard to a matter of business; he procured the loan in question, and was, or should have been, familiar with the value of the security; assuming her evidence to be entitled to credit and that it exhibits the transaction as it actually occurred, we are unable to perceive wherein there is any failure in the proof to. sustain the offence charged in the indictment; it is true the evidence of the plaintiff in error upon the trial was in direct conflict with that of Mrs. Zabrislde upon material questions ; yet it became the duty of the jury to determine, in the light of all the circumstances, which was entitled to be credited, and we are unable to declare, in view of all the facts and circumstances ' of this case, that the jury were not justified in the conclusion at which they arrived ; it is evident from the recommendation which accompanied the verdict that the jury were influenced by no feelings of prejudice or unkindness towards the prisoner, but were constrained by the force of the evidence to render the verdict which they declared. The charge of the judge seems to us unobjectionable and sufficiently favorable to the prisoner, as much so as the facts and law would justify. The refusal of the judge to charge the following proposition accompanied as such refusal was with additional direction by the judge, and considered in the light of the entire charge we do not think material error.

“ I ask your honor to charge the jury that, although they may find the false pretence to have been made, although they may find the necessary fraudulent intent, that in determining the question whether the pretence exerted a material influence over the mind of Mrs. Zabrislde, they have no right to consider the question or the evidence as to the fraudulent intent, or as to the false representation.”

The Court — I charge they have a right to consider all the evidence in the case bearing on that subject, directly of indirectly. Exception was taken to the court’s refusing to charge.

Mr. Beach — On the contrary, I ask you to say to the jury that there is no sufficient evidence upon which they can justly find, in the absence of testimony on that point by Mrs. Zabrislde, that the alleged false pretence, as proven, did exert a mateiarl influence.

The Court — That I decline. Defendant excepted.

Whether the false representation did exert a material influence upon the mind of Mrs. Zabrislde was certainly a question which the jury were to settle as an important fact in the case, in the same manner other facts were required to be established.

Mrs. Zabrislde might have been asked, when on the stand as a witness, whether she was induced by the representations to execute the paper in question. (The People v. Sully, 5 Park., 142 ; People v. Herrick, 13 Wend., 87.) Yet it was equally competent for the jury to determine that question from all the evidence, and certainly the latter course was more favorable to the prisoner. Suppose she had been asked the question directly, and had answered in the affirmative, it cannot be doubted but that the jury might have been asked by the prisoner, upon all the evidence, to discredit such statement. So after all we perceive that as a fact it could be established as other facts in the case. The jury were at liberty to infer from all the evidence the influence which the representations must or should have produced upon the mind of Mrs. Zabriskie. (Thomas v. The People, 34 N. Y., 351.) The proof of the contents of the letter claimed to have been addressed to Mrs. Zabriskie was properly rejected, because it may have been sent by a clerk of the prisoner, in which event the clerk would be a competent witness to prove its delivery, and as the defence sought the benefit of secondary evidence, a case therefor must have been established before it could be resorted to. We have carefully examined this case, impressed with its vital importance to the prisoner, and with a desire to discover whether any error has intervened prejudicial to his case, and are convinced that the indictment is sufficient in law, and the verdict of the jury is supported by competent evidence.

The conviction must be affirmed.

Beady, J.:

The only doubt I entertain about the legality of the conviction in this case rests upon the extended character of the cross-examination of the defendant, and by which various subjects seemingly foreign to the charge against him were investigated, and it may be to his prejudice. I cannot say, however, that it was not warranted by his examination in chief, in which explanations were given, and which, doubtless, within existing rules opened the door so as to admit the inquiries made by the prosecution. It has been recently suggested by the Court of Appeals, and with great force, that accused persons are to be dealt with in reference to the particular offence charged, and with reference to that alone, all extraneous matters not bearing upon it legitimately being carefully excluded.

It may be said, generally, that a bad man may be guiltless of a crime charged against him, and yet his moral status, if known, would in the majority of instances prejudice him on trial. It is the result of suspicion which naturally springs out of the element of bad or doubtful character, and against which good character would generally be a perfect shield. And in a case like this, where a confidential relation existed between the complainant and the defendant, any mismanagement of her affairs, any conduct creating suspicious of unfairness would tend to magnify the elements which lead to the conclusion that a false pretence, if made, was made with a fraudulent intent.

It is the province of courts in the administration of criminal justice to protect the accused against extraneous influences. The majesty of the law is never conserved by the conviction of a person on doubtful grounds or by processes which are in themselves doubtful on the score of exact justice. When, however, the accused, from the seeming necessity of the situation in which he is placed, departs from the line of examination which would otherwise be observed, he cannot complain, perhaps, that it has exposed a more extended field of inquiry, the consequences of which were disastrous or prejudicial. I deem it my duty, therefore, to concur in the opinion of Justice IN&alls.

Present — Beady and INGalls, JJ.

Judgment affirmed.

       Barrett, J. : (1 ) There is no doubt that, to constitute a statutory false pre-tence, the misrepresentation must ordinarily have regard to an existing fact. The difficulty is to draw the line between assertion of fact and expression of opinion. A fact may be stated upon hearsay or as the result of reasoning. It is then in effect but an expression of opinion. Upon the other hand a statement may be made in the form of an opinion which necessarily imports knowledge of a fact. The solution of the present question does not therefore depend upon the mere form of expression, but upon its substance and intent.
      To illustrate: It is charged that the corporation was rea.dy and anxious to pay off the mortgage when the defendant made the alleged misrepresentations. Under this indictment it is competent to prove the defendant’s knowledge of that fact. If proved, the pretence that he expected a present .refusal on the part of the corporation was, as averred, false; and, though in form a matter of belief, was in reality a misrepresentation of fact. The same may be said of the other alleged pretences.
      It was neither necessary nor proper to plead the evidence of the guilty intent. The fact is set forth. The indictment is not bad if, in any aspect, an actual misrepresentation with respect to an existing- fact, as distinguished from a future contingency, promise, expression of opinion, or mere naked lie, can be gathered from its averments.
      The pretences are clearly averred and negatived. Now, some of these pre-tences are certainly pleaded as statements of,existing fact, e. g., that the mortgage was not a good security for the sum of fifteen thousand dollars, and that the complainant had made a bad investment in loaning that sum on such security. Even in form this -was a statement of fact, and of an existing fact. 'Whether a security is good or bad is a matter of fact; and a positive and unqualified assertion upon the subject imports personal knowledge of an existing state of things from which the fact stated is necessarily deducible.
      Of course the evidence may show that the statement was a matter of opinion. That depends, not altogether upon the mere phrase, but upon the circumstances attending its use. It is sufficient to sustain the indictment that the statement was of fact and not necessarily predicated of mere opinion. As previously remarked, it is the substance and intent which is in question, rather than the form.
      If, for instance, the defendant had the money in his pocket at the time he made these statements (having, we will say, been entrusted therewith by the corporation upon the promise that it should not be used until the procurement of the satisfaction-piece), will it be said that there was no false pretence because the phrase “ a bad investment ” imports judgment as to value ?
      Such an interpretation would defeat the entire purpose of this wholesome statute. Its evasion would then require but a little literary ingenuity in the formulating- of falsehood. The object of the statute was to protect the weak and credulous against the wiles and stratagems of the artful and cunning. (Language of Jewett, J., in The People v. Crissie, 4 Denio, 525).
      This observation applies with even greater force where the case is that of a lady in the hands of her trusted legal adviser. Here the professional relation must not be overlooked. It is impressed upon and colors the statements. The parties were not on an equality. It was not like the undue puffing of his wares by a tradesman. Every word the attorney uttered carried with it the weight attached to superior knowledge acting upon the responsibility of a sacred trust. Indeed, we are not prepared to say that, under such circumstances, what might otherwise be treated as a mere naked lie, would not amount to a false pretence.
      As to the cases, we have examined those cited, with instruction as to the 'general principle involved and with admiration of the firm purpose displayed by •many eminent judges to interpret and administer the statute in the interest of morality and fair dealing (notably the remarks of Chancellor Walworth in The People v. Haynes, 14 Wend., 546) but without discovering their special applicability to the case at bar, except in a single instance. That is the case of The People v. Tomlin, 5 Dutcher (N. J.), 13. The tendency of this case is to sustain the present indictment. The defendant there represented that “ Tomlin was insolvent.” This was held to be a statement of an existing fact. Yet such a statement may well have been predicated of the estimated value of Tomlin’s assets. But the court said: “ Can the positive declaration of that fact by the defendants be held to be a mere conjecture or uncertain opinion 1 The status of the debtor is a fact, and he who unqualifiedly undertakes to declare what such status is, represents a fact, and does not express an opinion merely.”
      It is true, the court added, that if the statement had been confined to Tomlin’s inability to pay, it would have been a naked assertion, which, if untrue, would have been a simple lie. The remark was obiter, and we confess that the distinction seems somewhat shadowy. In that particular, however, the cases are not analogous while in what was decided they are.
      The positive declaration here that the security was not good, and that the investment was bad, was as much an assertion as to an existing fact, as that Tomlin was insolvent; and there was quite as much of conjecture or mere uncertain opinion in the latter as in the former statement.
      (2.) Next, it is contended that a satisfaction-piece is not a written instrument within the meaning of the statute, and for the reason that it creates no liability. We are unable to perceive the force of this much urged objection.
      There is no such limitation in the statute itself, and the cases all hold that it is only necessary that the instrument should not be utterly worthless (The People v. Galloway, 17 Wend., 540 ; The same v. Crissie, 4 Denio, 528 ; The same v. Stone, 9 Wend., 182 ; The same v. Genung, 11 id., 18 ; The same v. Gates, 13 id., 320), otherwise, said Bronson, J., in the case first cited, “a man might be punished criminally for obtaining the signature of another to an idle letter, or any other writing of no legal importance.”
      It need only appear that the instrument, on its face, is one calculated to prejudice the party who has signed it (The People v. Crissie, ubi sup.)

      An instrument is defined by Burrill as a writing expressive of some act. Here the act was the formal acknowledgment of satisfaction. It tended to the injury of the complainant, in that, according to well-settled custom, it was requisite to obtain payment, and in that, according to law, the mortgage could not otherwise he satisfied of record.
      A distinction was attempted to he drawn between an instrument creating and one discharging an obligation, on the ground that in the latter case injury can only result from the use of the instrument. But how can injury result in the former case without use ?
      It is further argued that there was no crime, because the use of the instrument was contemplated, and the conversion of the money was not a false pre-tence. This is another way of asserting that the instrument is not within the statute. The crime does' viot consist of the conversion of the money, but of the false pretence whereby the instrument was obtained.
      i Substitute a note for the satisfaction-piece, and where is the distinction 1 By means of a false pretence the note is obtained for the express purpose of raising money for the complainant. It might with equal force be said (we quote from •the language of counsel with respect to the satisfaction-piece) that the use of the note cheated no one, that it effected a proper and legitimate purpose, and that the complainant received (through her agent) just what the note was designed to raise!
      The question would still recur, was the no.te obtained by false pretences ? It all comes back to the original proposition, that the satisfaction-piece is just as much an instrument within the statute as the note. The question is not whether the money could have been obtained upon the satisfaction-piece without the mortgage, or upon the mortgage without the satisfaction-piece, but whether a writing acknowledging the payment of a debt, and consenting to a record discharge of the security therefor, is a mere worthless piece of paper.
      (3.) There is nothing in the point that the fraudulent use of the instrument or some actual damage to the complainant should have been averred. The offence is complete when the signature is obtained by false pretences, with intent to cheat and defraud. (The People v. Genung, ubi sup. ; The same v. Stone, ubi sup.) The intent is averred, and, to support it, the fraudulent use may be proved.
      In our judgment the indictment is sufficient in form and substance, and the demurrer must be overruled, with judgment against the defendant.

        “Respondeat Ouster”


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    NICHOLAS F. PALMER AND RICHARD H. BOWNE, Executors, Etc., of FRANCES B. HEGEMAN, Deceased, Respondents, v. MATTHEW HORN and others, Appellants.

      Construction of will — when grand-children not included in the words “children” or “issue.”

    A testatrix gave to her executors §20,000, to divide the same “ into as many shares as there shall he lawful issue of my deceased nephew, Matthew Horn, living at my death, and to invest the same and apply the interest and income from each of said shares to the use of each of said children respectively, and as they depart this life to pay over the principal of their share to their lawful issue share and share alike.” At 'the death of the testatrix there were living three children of the said Horn, and two grand-children, the children of a deceased child.

      Held, that the grand-children by the deceased child took no interest under the will.
    Appeal from a judgment, entered upon tbe trial of this action by tbe court without a jury.
    This action was brought to obtain a construction of a clause in the will of Frances B. Hegeman, who died in the city of New York.
    By this will the testatrix gave her executors so much of her estate as would enable them to comply with the provisions of the will, among which was a clause in this language :
    “ Seventh. To divide the sum of $20,000 into as many shares as there shall be lawful issue of my deceased nephew Matthew Horn living at my death, and to invest the same and apply the interest and income from each of said shares to the use of each of said children respectively, and as they depart this life to pay over the principal of their share to their lawful issue, share and share alike.”
    At the time of the death of the said Frances B. Hegeman there were living three children of her deceased nephew Matthew Horn, all adults, viz.: Margaret Sutton, Carrie Haight, and Mary Ely, and two grand-children of Matthew Horn, viz.: Nellie and Charles Berry, children of a deceased child named Elmira Berry, daughter of said Matthew Horn. Elmira Berry died prior to the making of the will under consideration.
    At the time of the death of the testatrix there were living children of the said Margaret Sutton and Mary Ely, and grand-children of Matthew Horn, viz.: Gilbert Sutton, Edward Sutton, Lewis Sutton, children of Margaret Sutton; Frank Ely and Joseph Ely, children of said Mary Ely. The question presented was whether, under the seventh clause of the will, the children of Elmira Berry, who was a daughter of Matthew Horn, and who had died before the will, took any share or portion.
    The following opinion was delivered by the justice at Special Term: •
    “ VaN Brunt, J.:
    “The main argument used, by the counsel for the defendants Berry, to show that the construction which he contends for must be given to the will, is, that otherwise these grand-children can have no participation in the estate and that the testatrix has shown no intention to omit them from the benefaction.
    It seems to me that, in the clause of the will under consideration, the testatrix has used the terms 1 lawful issue ’ and ‘ children’ synonymously, because after directing the bequest to be divided into as many shares as there shall be lawful issue of her deceased nephew Matthew Horn living at her death, she directs the income to be applied to the use of each of the said children respectively, phraseology which would seem clearly to indicate that the clause must be read as though the word children occurred in both parts of the subdivision.
    That this is the true interpretation seems to be conceded by the counsel for the defendants Berry, as his argument seems to be to establish that the use of the word “children” includes grandchildren, and he cites the case of Prowit v. Rodman (37 N. Y., 42) to sustain this proposition.
    ' This construction has never been put upon the term children unless there are no children to take. Grand-children are not permitted to take under the term children, unless the intent of the testator would be completely frustrated, and.it has been a much contested question whether the term lawful issue could in any event be construed to take in grand-children where there were children who could inherit. But in the case at bar, the term lawful issue is clearly intended to have no greater signification than the word children, and the testatrix evidently had in mind the children of her deceased nephew Matthew Horn who should •be living at her death, as the recipients of her bounty, and that grand-children should not participate if their parent was not living at her death, and then only upon the death of the parent.
    I am unable to see that the language used in the fourth and thirteenth clauses of the will gives us any aid in construing the clause in question, and a discussion of the language of the fourth and thirteenth clauses would lead to an expression of an opinion as to what was meant by these clauses, a question which is not before me. I refrain from any allusion to these sections or to their construction.
    I am of the opinion, therefore, that the grand-children of Matthew Horn took no interest under the will of Frances B. liegeman.”

      Milton A. Fowler, for the appellants.

      John Reynolds, for the respondent.
   Per Curiam:

Although the questions presented for consideration in this case are not entirely free from doubt, the better opinion is that the disposition made”of it by the Special Term is correct.

We adopt the opinion expressed by the learned justice in the court below, as expressive of our views of the question and of the conclusion at which he arrives.

The judgment should be affirmed; the costs of both parties to be paid out of the fund.

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

Judgment affirmed; costs of the parties to be paid out of the fund.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ELIZABETH P. ROBBINS, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK.

      Certiorari to correct an assessment will not lie to the city of New York — it must he issued to the hoard having the matter in charge.

    A writ of certiorari will not lie to the corporation of the city of New York to correct alleged errors of the hoard of assessors, or of the hoard of revision and correction of assessments therein.
    The writ must he directed to the board having the matter in charge at the time it issues from the court.
    MotioN to compel a further return to a writ of certiorari issued herein.
    February II, 1879, a writ of certiorari was issued to tho respondent to review alleged errors in an assessment for constructing a sewer in the city of New York, which had been confirmed by the board of revision and correction of assessments on December 31, 1877.
    It commanded the mayor, aldermen and commonalty to certify and send before the justices of the Supreme Court at General Term, to be held on the first Monday of March, 1879, the decision of the board of revision and correction, and the record thereof, and the assessment list certified to the last mentioned board, and all the matters of record which respondents had within their control, upon which the judgment of the said board of revision and correction of assessments depended.
    The assessment was laid for building sewers in Ninety-sixth street, between Eighth and Tenth avenues, and in the Ninth avenue, between Ninety-second and Ninety-sixth streets, with branches.
    Upon the return day of the writ a motion was made and argued to quash the writ, but, by some accident, the papers in the case were misplaced.
    Recently the relator obtained an order for a reargument, which reargument came onto be heard on the 7th day of January, 1880. The court ordered that the mayor, aldermen and commonalty make a return to the said writ on the third Monday of January, and that tbe hearing of said motion to quash be continued until the hearing on said return at the opening of the court on that day. The mayor, aldermen and commonalty thereupon made a return by the Hon. Edward Cooper,-mayor of the city of New York. This return certified to the court that none of the pa|>ers or records called for by the writ of certiorari were within the control of the mayor, aldermen and commonalty, and that therefore they were unable to return the same to this honorable court.
    The return further set out that the respondents were informed that the judgment and decision of the board of revision and correction, and the record thereof, were in the possession of the board of revision and correction of assessments, and that the assessment list is in the bureau of arrears, in the custody of the clerk of arrears.

      James F. Buggies and John J. Townsend, for the relator.

      H. L. Gole, for the respondent.
   Per Curiam:

We regard it as extremely well settled that a writ of certiorari will not lie to the corporation of the' city of New York to correct alleged errors of the board of assessors, or the board of revision and correction of assessments. That writ should be directed to the board having the matter in charge at the time it issues from the court. (The People ex rel. Vanderpoel v. The Mayor, MSS. opinion, May General Term ; Bogart v. The Mayor, 7 Cow., 158 ; The People ex rel. Law v. The Commissioners of Taxes, 9 Hun, 612 ; Tone v. The Mayor, 70 N. Y., 165 ; Maxmilian v. The Mayor, 62 id., 164.)

The principle running through the cases above cited seems to us so strongly entrenched in authority as not to be disturbed except by a court of last resort. The return made by the corporation presents this question, and compels us, in our judgment, to deny the motion for an amended return.

Motion denied, with ten dollars costs.

Present — Davis, P. J.; Brady and Barrett, JJ.

Motion denied, with ten dollars costs.


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    BERNARD EARLE, Respondent, v. JOSEPH HART and others, Appellants.

      Right of one interested in an action to he made a party thereto — when such right . is absolute— Code of Civil Procedure, § 452.
    Under section 452 of the Code of Civil Procedure á person interested in the subject of an action, or in the real property the title to which is sought to be affected thereby, at the time of the filing of the lis pendens therein, has an absolute right to be made a party thereto, if he elect so to do; but whether or not one acquiring such an interest after the filing of the lis pendens shall be allowed so to come in and defend rests in the sound discretion of the court.
    Appeal from an order denying* a motion made by Weeks W. Culver, under section 452 of tbe Code, to be made a party defendant to this action.
    This action was commenced to foreclose a mortgage, and tbe complaint and notice of pendency thereof were filed with tbe clerk of tbe city and county of New York, the county in which the venue is laid, on the 10th day of February, 1879. Two of the parties defendant in the action were Peter Rice and Eliza Rice, as administrator and administratrix of Joseph Dowling, deceased, who had held an agreement in respect to,the transfer of the lease and leasehold premises mortgaged by Joseph Hart, one of the defendants, to the plaintiff Bernard Earle, by the mortgage sought to be foreclosed in this action.
    Five days after the filing of the complaint and notice of pend-ency of suit in this action, to wit, on the 15th day of February', 1879, the agreement above mentioned was assigned to Weeks W. Culver, and the assignment was recorded February 25, 1879, two days after service upon Rice of the summons and complaint. Culver then made a motion upon petition to be brought in and “made a party defendant, or otherwise that Peter Rice, as administrator, and Eliza Rice, as administratrix, should be stricken out as parties defendant.
    From the order denying this motion this appeal was taken.

      8. Jones, for the appellants.

      IT. P. Townsend' for the respondent.
   Per Curiam:

We think that the amendment in question (section 452 of the Code of Civil Procedure) was intended to enable a person who is not a party to an action, but who had an interest in the subject thereof at the time of the filing of the lis pendens, to come in if he elects to do so. Otherwise the Legislature would have referred to a person claiming an interest at any time prior to the judgment in the cause. As to persons having an interest at the time of the fifing of the lis pendens the right is absolute under the amendment. But the court may in a proper case allow parties to come in who acquire their interests subsequently to the fifing of the lis pendens. As to that, however, we do not think that the right is absolute under the amendment, but depends upon the sound discretion of the court.

In this case we think the discretion excluding the party was properly exercised.

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

Present — Davis, P. J., Beady and Baeeett, JJ.

Order affirmed, with ten dollars costs, besides disbursements.


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    CHARLES PARDEE, Respondent, v. DAVID TILTON and others, Appellants.

      Supplementary proceedings — right of the representative of a deceased judgment creditor to institute them— Code, § 283— Chap. 417 of 1877.
    Where a judgment creditor was entitled, at the time of his death, to institute supplementary proceedings against his debtor, the right conferred by section 283 of the Code upon his personal representative to institute and enforce such proceedings was not taken from them by the subsequent repeal of said section by subdivision 8 of section 1 Of chapter 417 of the Laws of 1877, but such right was preserved and continued in full force by the qualification of such repeal contained in section 3 of the said act.
    Appeal from an order of a judge of the Supreme Court, denying a motion to vacate an order made in supplementary proceedings.

      8. J. Groóles, for tbe appellants.

      JE. T. Bartlett, for tbe respondent.
   Per Curiam:

On tbe 13tb of June, 1877, Charles Pardee recovered a judgment in this court against tbe appellants for $1,074.09, and, $110.35 costs, which judgment was on that date docketed and filed in tbe office of the clerk of the county of Onondaga. On tbe 15th of June, 1877, a transcript of tbe judgment was duly filed and docketed in tbe office of tbe clerk of tbe county of New York, and an execution was issued against the property of tbe appellant to tbe sheriff of tbe county of New York, which was returned wholly unsatisfied.

On tbe ninth of April, 1878, Charles Pardee, the plaintiff in said judgment, died, and on tbe twenty-second of July following Jacob C. De Witt was duly appointed administrator with tbe will annexed, of said Pardee.

Tbe defendants in the judgment then resided and still reside in tbe city of New York. Application was made on tbe third of May, 1879, on behalf of said administrator,.to Mr. Justice NoxoN, of this court, residing in Onondaga county, for an order in supplementary proceedings, based upon said judgment and execution and its return unsatisfied. He thereupon made an order by which be directed tbe appellants to appear for examination before a referee named in the order, in tbe city of New York, and directed him to reduce tbe examination to writing, and report the same. The order also directed that all subsequent proceedings should be bad before Mr. Justice Donohue, at the city of New York, “where the defendants to be examined reside.”

Tbe order of Justice Noxon having been served on tbe appellant, application was made to Justice Donohue for an order to show cause before him why the order of Justice Noxon should not be vacated, on the ground that the plaintiff in the action was dead, and that no proceedings had been taken for a revival of the action in the name of his personal representative, and that it appeared that the execution bad been issued and returned in the life-time of the plaintiff, and that the administrator acquired no right under it to institute supplementary proceedings. The order to show cause was granted, and on the hearing the motion was denied by Justice DoNOHue, who ordered that the examination of the appellants proceed upon the day to which the same had been adjourned. ' The order of Justice DoNOHue haying been duly entered by the clerk of the city and county of New York, this appeal was taken.

The order of Mr. Justice NoxoN, made under -section 292 of the Code of Procedure, was irregular in requiring the evidence and proceedings had before the referee to bo returned to him. He had the power to make the order for the examination, and probably under section 300 he had authority to appoint a referee to take the testimony. But section 292 requires that where an order is made by a justice of the Supreme Court “ all subsequent proceedings shall be had before some justice in the judicial department where the judgment debtor resides to be specified in the order.” The direction should therefore have been that the referee report the testimony and proceedings to the justice designated in -the order Before whom the subsequent proceedings were to be had, and not to the justice who made the order.

But the principal question on the appeal is whether, under the circumstances, the administrator of the deceased plaintiff could institute supplementary proceedings .upon the execution issued and returned during the lifetime of the plaintiff. The provisions of the Code of Procedure clearly conferred this right .upon the representative. Section 283 of the Code, as amended in 1866, reads as follows :

“ Section 283. Writs of execution for the enforcement of judgments, as now used, are modified in conformity to this title, and the party in whose favor judgment has been heretofore, or shall hereafter be given, and in case of his death his personal representatives duly appointed may, at any time within five years after the entry of judgment, proceed to enforce the same as prescribed by this title.”

The title mentioned included supplementary proceedings. But this section is repealed by chapter 417 of the Laws of 1877, section 1, sub. 8. The Code of Civil Procedure did not re-enact it in Jicbg verba. Section 1376 of the latter Code is in these words:

“ § 1376. Where the party recovering a final judgment has died, execution may be issued at any time within five years after the entry of the judgment by his personal representatives, or by the assignee of the judgment, if it has been assigned, and the execution must be indorsed with the name and residence of the person issuing the same.”

No execution under this provision has been issued in this case ; but the administrator claims the right to institute the supplementary proceedings by virtue of the execution issued by the plaintiff' before his decease. The plaintiff, at the time of his death, was entitled by law to invoke the remedy of supplementary proceedings, and it is insisted by the administrator that upon his death the right then existing passed to his legal representatives, and is preserved by the saving and qualifying provisions of the general repealing act of 1877. (Laws of 1877, chap. 417.)

Section 3 of that act provides : “ The repeal effected by the first section of this act is s'ubject to the following qualifications, viz :

“ 1. It does not render ineffectual or otherwise impair any proceeding in an action or special proceeding, taken according to any provision of the existing laws, before this act takes effect; and where it would render ineffectual or otherwise impair such a proceeding, that provision must be deemed to remain unrepealed, for the purpose of avoiding such a result.
“ 2. It does not affect any lawful act done or right accrued or established before this act takes effect; but every such act or right remains as valid and effectual as if this act had not been passed. * * *
“9. It does not affect an execution issued out of a court of record before this act takes effect, or the proceedings taken by virtue of such an execution, including the sale of property and th'e redemption of real property, or a chattel real, sold by virtue thereof. All such proceedings are governed by the provisions of the existing laws relating thereto, which provisions for that purpose remain in force as if this act had not been passed.”

The question is whether the right which existed in the plaintiff at the time of his death to institute supplementary proceedings, by reason of his execution returned in due form, vested upon his death in his legal representative. We are of opinion that the qualifying provision above cited did have the effect to preserve that right, and that notwithstanding the repeal, in general terms by the repealing act above referred to, of section 283 of the Code of Procedure, the right which had accrued under it was preserved and could still be enforced by the representative of the plaintiff,, and that the order made by Mr. Justice NoxoN ivas therefore legally made, and was regular except in respect to the direction above given to the referee. That direction, it is apparent, was a mere oversight, and the question upon it does not appear to have been made upon the motion below. It is suggested by the respondent’s counsel that Justice Donohue had not jurisdiction to entertain the motion, but that it should have been made before Mr. Justice NoxoN, who granted the order. We are inclined to think this objection was well taken, but as we are of opinion that the order was properly made, it is not necessary, inasmuch as the motion was denied by the judge below, to pass distinctly upon the question of his jurisdiction.

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

Present — Davis, P. J., Beady and Ingalls, JJ.

Order affirmed, with ten dollars costs and disbursements.


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    In the Matter of the Complaint of EDWARD M. TOWNSEND AND HENRY C. YALE, Appellants, v. ISAAC NEBENZAHL AND MONTAGUE S. MARKS, Respondents.

      One arrested in an action before judgment, under an cn-der of airest, cannot after judgment be re-arrested for the same offence under the Stilviell act.

    Where a defendant has, "before the entry of judgment in an action, been arrested and held to bail under an order of arrest, which order has not been vacated, and where the defendant has not been discharged therefrom, nor his bail exonerated, the plaintiff cannot, after the entry of judgment, procure his arrest for the same offence, upon a warrant issued under and by virtue of the Stilwell act.
    Appeal from a final order dismissing a proceeding under tbe Stilwell act; and a certiorari to review proceedings under said act bad before tbe justice making tbe order" appealed from.
    The complainants’ affidavit charged that tbe defendants had property and rights in action which they unjustly refused to apply to the payment cf a judgment recovered against them belonging to the complainants ; that they have assigned, removed and otherwise disposed of some of their property with intent to defraud their creditors, and that they fraudulently contracted the debt respecting which tbe suit was brought.
    Tbe defendants being arrested denied, under oath, tbe allegations of complainants’ affidavit. It also appeared that in the plaintiffs’ action against tbe defendants, a provisional order of arrest had been made on affidavits and had been executed, and that tbe defendants bad given bail. They had not, however, been arrested on final process, no execution against tboir persons having been issued.
    On argument, tbe judge dismissed the proceedings, and discharged defendants, on the ground that as tbe plaintiffs had elected to proceed under tbe provisions of the Code, they could not take proceedings under the' Stilwell act.
    The following is the opinion delivered by tbe justice at Special Term:
    Lawrence, J. :
    In these cases it appears that the plaintiffs, before the recovery of the judgment against the defendants, obtained orders of arrest and held the defendants to bail, and that such orders have never been vacated, and that the defendants have never been discharged nor their bail exonerated.
    The judgment of Townsend & Yale was obtained on the 13th of October, 1877, and that of Bliss & Allen on the 11th day of December, 1876. The warrant for the arrest of the defendants was issued on the 13th day of November, 1878, in the case of Townsend & Yale, and in the case of Bliss & Allen at or about that date. An examination of the affidavits upon which-the orders of arrest and the warrants were issued shows that the facts on which the plaintiffs proceeded, in both instances, were substantially the same ; and that the fact that orders of arrest had been previously issued in the actions was not stated in the affidavits on which the warrants were issued.
    The act of 1831, entitled, ‘ an act to abolish imprisonment for debt and to punish fraudulent debtors ’ (Laws of 1831, chap. '300), was not superseded by the provisions of the Code of Procedure relative to arrest and bail. (Code of Procedure, § 178 ; People ex rel. Latorre v. O'Brien, 6 Abb. [N. S.], 63.)
    Section 178 of the Code of Procedure provided that the act to abolish imprisonment for debt should not be affected thereby.
    In section 548 of the Code ox Civil Procedure, which is the substitute for section 178 of the Old Code, the exception as to the act of 1831 is omitted, and it is provided that “ a person shall not be arrested in a civil action or special proceeding, except as prescribed by statute.”
    Whether this change in the phraseology of the statute was intended as a repeal of the act of 1831, it is not necessary, in the view which I take of this case, to determine. Assuming that the act of 1831 is still in full force and effect, counsel have failed to refer me to a single case in which it has been held that the creditor is entitled to both remedies. On the contrary, so far as I have been able to ascertain from an examination of the authorities, whenever the question has been touched upon, the intimation of the courts has been that while the creditor may elect as to which of the two courses he will adopt, he cannot resort to both. In delivering the opinion of the General Term of this court in the case of The People v. Goodwin (50 Barb., 564), Mr. Justice SUTHERLAND says : “ Certainly there may be. two processes or remedies for the same wrong or for the collection of the same debt. Certainly two different processes under different laws, issued by the same judge or officer, or by different judges or officers, for remedying tho same wrong or collecting the same debt, may be issued without being inconsistent with each other, and without the jurisdiction or. power to issue the one last issued being at all impaired or affected by the fact that the other had been issued ; but it by no means follows that a debtor charged with a fraudulent disposition or concealment of his property to avoid the payment of a debt can be arrested and imprisoned for such fraudulent disposition or concealment at the instance of his creditor, both under the Btilwell act and under the Oode.”

    And in the case of Latorre v. O'Brien (6 Abb. Pr. [N. S.], 66), Mr. Justice Woodbuef uses this language: “ In a more general statute, providing for the arrest not only of a debtor, but a tortfeasor, the Legislature has seen fit to authorize plaintiffs in certain specified cases to elect whether to proceed under the act of 1831, by warrant and commitment, or to proceed by order for arrest and bail.”
    In these cases the plaintiffs have made their election. They have preferred to hold the defendants under the provisions of the Code.
    In Wright v. Ritterman (1 Abb. [N. S.], 431), the General Term of the Superior Court say : “It is a legal maxim that no man. shall be twice arrested for the same cause. This applies to same jurisdiction, and is conceded to be the general rule. We think it a safe rule, and one that is reasonable and easy of application, that where a defendent has been discharged from imprisonment under an order of arrest by due course of law, he should not be re-arrested and imprisoned a second time for the same cause, though in a different form of action.” (See also Matter of Johnson, 7 Robt., 269 ; Enoch v. Ernst, 21 How., 96 ; Hernandez v. Carnobeli, 10 id., 433.)
    My conclusion, therefore is, that as the plaintiffs have elected to proceed under the provisions of the Code, they cannot take proceedings under the Stilwell act, based upon substantially the same facts as those which are disclosed in the affidavits on which the orders of arrest were granted.

      If this conclusion is well founded, a consideration of the numerous other questions discussed by the learned counsel in their elaborate briefs is unnecessary. The defendants must be discharged.

      Thomas M. North, for the appellants.

      A.. Blumenstiel, for the respondents.
   Per Curiam:

We have examined the affidavits upon which the original arrest took place, and the affidavit upon which the Stilwell warrant was granted, and hud that they are substantially the same. The additional ground of arrest is specified in the affidavit upon which the Stilwell warrant proceeded, which relates to an unjust refusal to apply property in satisfaction of the judgment. As to this we can only say that there was no proof furnished to support the charge, and the mere statement of an unjust refusal has always been deemed insufficient without proof of a specific demand and refusal; and more particularly should this- be the case where the charge has been upon information and belief.

We are fully satisfied with the opinion of LawreNCe, J., and adopt it as the opinion of the court.

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

Order and proceedings affirmed, with costs, on the opinion of Lawrence, J.


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    PEOPLE ex rel. ANDREW L. ROBERTS AND VALENTINE GLEASON v. PETER BOWE, Sheriff, etc.

      Amst of a defendant under an order of arrest and also under an execution issued on the judgment — effect on the order of arrest of a reversal, on appeal, of the judgment.

    In an action on contract, the defendant was arrested under an order of arrest, granted upon grounds extrinsic to the causes of action, and confined in the county jail. Subsequently he was taken and held by the sheriff under an execution against his person, issued upon a judgment entered in the action in favor of the plaintiff, which judgment was affirmed by the General Term but was reversed by the Court of Appeals, by which latter court a new trial was granted because of errors committed on the trial.

      Held, that the reversal of the judgment by the Court of Appeals only operated to restore the parties to the same position in which they were before any trial had been had, and did not supersede the order of arrest, or authorize the discharge of the defendant from confinement.
    Habeas corpus issued by the presiding justice-of the General Term to inquire into the detention of the relators.
    November 1, 1873, the New York Guaranty and Indemnity Company of the city of New York commenced an action against the relators, in the New York Superior Court, to recover money alleged to be due and owing from them to the plaintiff. June 5, 1875, the relators were arrested by virtue of an order of arrest, granted in the said action upon grounds extrinsic to the cause of action, and were imprisoned in jail thereunder until the 15th day of December, 1877.
    In December, 1875, the action was tried and a verdict rendered for the plaintiff in which a judgment for $91,015.35 was duly entered on January 6, 1876.
    On December 15, 1877, the plaintiff issued an execution upon the said judgment against the person of the relators, under which they were and still are imprisoned by the sheriff. Subsequently the said judgment was affirmed on appeal by the General Term of the Superior Court, but was reversed by the Court of Appeals, and a new trial was granted because of errors committed on the trial.
    The judgment of the Court of Appeals having been made the judgment of the Superior Court, this application was made to j procure the release of the relators from imprisonment. j

      William jSutjohen, for the relators.

      Knox & McLean, for the sheriff.
   Per Curiam:

We are of opinion that the decision of the Court of Appeals, reversing the judgment of the Superior Court and ordering a new trial for errors occurring in the course of the trial, has no other legal effect than to restore the parties to the same position in which they stood before any trial in the action was had. The judgment and the execution founded thereon having by the decision of the Court of Appeals been held for naught there is no good reason for allowing that decision to operate further than above indicated.

If the order of arrest may be said to have been superseded by the execution against the persons of the defendants, issued upon the judgment since vacated, it cannot in reason be. claimed that such supersedure continues any longer than the judgment and execution are operative. When they ceased to have any effect the order resumed its former vigor, and it was the duty of the sheriff to continue to hold the relators by virtue of such order.

The writ must be dismissed and the relators remanded to the custody of the sheriff.

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

Writ dismissed, relators remanded to the custody of the sheriff.


author: per Curiam.

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    JULIA H. SUYDAM, Appellant, v. THOMAS BELKNAP, Jr., Respondent.

      Discharge from arrest undea' the insolvent law — when granted — the fact that the defendant converted money received in a fiduciary capacity does not prevent his discharge.

    Appeal by an opposing judgment creditor from an order discharging the defendant from arrest, under title 1, chapter 5, article 6 of part 2 of the Revised Statutes.
    The petitioner was arrested in this action, brought by the above named appellant, for converting to his own use moneys and securities belonging to the appellant, while acting in a fiduciary capacity. Petitioner was imprisoned in default of procuring bail in the amount of thirty-five thousand dollars.
    Judgment was subsequently entered and an execution duly issued against the petitioner’s person. Subsequently the petitioner brought these proceedings pursuant to the above title of the Revised Statutes for his discharge.
    The petitioner was duly examined under the proceedings, and his testimony showed that after accepting the trust reposed in him he fraudulently and in violation of said trust used the money and property of the appellant for his own personal use and benefit.
    Notwithstanding these facts Mr. Justice Westbrook held that the petitioner was entitled to his discharge, on the ground that the evidence did not show that he disposed of or made over any part of Ms own property with a view to the future benefit of himself or his family, or with an intent to injure or defraud any of his creditors.
    The court, at General Term, said: “This case is distinguishable from that of In re Brady (69 N. Y., 215), because the charge is that the defendant received money in a fiduciary capacity for which he has not accounted. The defendant Brady was charged with a disposition of his property with the intention of defrauding Ins creditors, and for that reason it was held that his proceedings were not just and fair.
    “This case docs not show any appropriation of this kind, and therefore that he has property attainable by recourse to his grantee, or otherwise. The money received was disposed of by him, and though improperly used does not subject him to the rule established by the case referred to.
    “We cannot say, under the circumstances, that his proceedings have not been just and fair.”

      James C. Van Dyke, for the appellant. William McDermot, for the respondent.
   Opinion

per Curiam.

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

Order affirmed, with $10 cost and disbursements.


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    ALEXANDER HAMILTON as Executor, etc., Plaintiff, v. THE NEW YORK STOCK EXCHANGE BUILDING COMPANY, Defendant.

      jPower of sale in will — construction of.

    Case submitted upon an agreed statement of facts, under the provisions of section 1279 of the Code of Civil Procedure. The only question involved was the construction of a clause in the will of John P. Marsh, which was in these words :
    “ I hereby authorize and empower my executors and trustees, if they shall deem it advisable, to sell and dispose of the whole or any portion of the real estate, and re-invest the proceeds from time to time in real or personal securities, the consent of my wife and of my sons, if of full ago — being first had and obtained to such sale or sales.-”
    The testator died on the 25th of November, 1873. He left him surviving, his widow and his two sons, Charles D. and Clement Marsh, both then being infants, one of whom has since attained the age of majority, and the other, Clement Marsh, is still a minor under the age of eighteen years.
    The question was whether the executors could, with the consent of the widow and of the son who had attained his majority, convey a good title on a sale of the testator’s real estate.
    The court, at General Term, said:
    “We have given the will a careful examination with a view to ascertain whether any of its provisions require'a different construction to be given to the .above clause than that which its language naturally imports. The whole scheme of the will-, in our opinion, is harmonious with such natural construction, and in no sense in conflict with it.
    “The testator obviously designed to put the whole of his residuary estate in trust for the use of his wife during her life, if she should remain unmarried, but in case of her re-marriage to put the whole residuary estate in trust for her until his youngest son Clement should attain the age of thirty years, and thereafter to limit the trust for her benefit to one-third of such residuary estate, and after her decease to give the use and income of one-third of such estate to each of his children for life, and to their children respectively upon their deaths, share and share alike, and also to vest in his wife the power of absolute disposition by her last will of the other third of such estate.
    “ The power absolutely conferred upon the executors and trustees is altogether consistent with that scheme, because it is apparent that it might be greatly advantageous to the estate to have such power in existence and operative at any time.
    “ The language, therefore, of restriction contained in the power must be so construed as to carry out the plain intent of the testator. To us it is manifest'that that intention was that the executors and trustees should have during the minority of the children an absolute power of sale upon the consent of the wife, and after the children should become of full age, an absolute power of sale upon the consent of the wife, and of such children.
    “ The sale, therefore, made with the consent of the wife and of the son, who had attained his majority, is valid and effectual and will if completed carry a perfect title to the purchaser.
    “ The language is in no sense that of postponement of the time of executing- the power. It is simply that of condition as to the mode of executing it, and that condition was fully satisfied when the consent of the wife and of the son now of full age had first been had and obtained.”

      Samuel F. Lyon, for the plaintiff. John A. Weeks and George II. Forster, for the defendant.
   Opinion

per Curiam.

Present — Dayis, P. J., Beady and Barrett, JJ.

Judgment ordered for plaintiff, without costs.


author: Ingalls, J.

text:
    JOHN C. FOGG, Respondent, v. JOHN EDWARDS, Appellant.

      Right of a plaintiff to offer in evidence an original answer, after an amended, complaint and answei' have been served — right of the plaintiff to disprove the allegations contained in such original answei'.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    An amended complaint and answer had been served in the action. Upon the trial the plaintiff offered in evidence the original answer, and the same was received by the referee against the-defendant’s objection and exception, The plaintiff was also allowed against the defendant’s objection and exception to give evidence tending to contradict and disprove certain of the allegations contained in the said original answer.
    With reference to these rulings of the referee the court at General Term said:
    “We think the original answer was properly received as evidence, under the circumstances. While the service of the amended answer had the effect to supersede the original as a pleading, it did not have the effect to render it inadmissable as evidence ; it could be received for the latter purpose, but subject to explanation. (Strong v. Dwight, 11 Abb. Rep. [N. S.], 319; Bearss v. Ooply, 10 N. Y., 93; Lawrence v. Ocean Ins. Go., 11 Johns. Rep., 260.)

      “ Philips on Evidence (vol. 2, p. 70), speaking of using defendant’s answer in evidence, says : ‘ And though a defendant has a right to claim that the whole shall be read and taken together, yet it does not follow that all in his favor shall operate as evidence for him of equal weight with that which goes against him. But the allegations, adverse to the plaintiff, may either be discredited by matters apparent on the answer itself, or by proving perjury in some particulars, or by direct proof contradicting all the allegations adverse to the party who called for the answer.’
    “ It will be observed that the grounds of objection stated at the trial to the introduction of the answer were very different from those raised and insisted upon by the defendant’s counsel on this appeal. The grounds of objection stated to the referee were the folloiving:
    “ First. That it is only competent, as the declaration of the defendant, to contradict, and that the defendant has not, up to the time, been examined.
    “ Second. That the paper offered was an answer to a complaint, the original complaint in this action; that the original complaint has been superseded by an amended complaint, which entirely changed the cause of action and entirely changed the allegations ; and that the paper offered has been entirely superseded by the service of an amended answer to the amended complaint.
    . “ Third. That it is not competent in any aspect.
    “And on the further ground that it is offered by the plaintiff to operate as an estoppel, and is not competent in that aspect.
    “We do not perceive that the defendant, upon the trial, demanded the introduction of the original complaint, or offered it himself, at a basis for the objection' which ho now seeks to raise. When the answer was offered as evidence by the plaintiff, the defendant was called upon to state clearly any objection which he had to its introduction, for, if so stated, they might have been obviated.
    “Although the answer was introduced as evidence by the plaintiff, he was not concluded by it, to such an extent, as not to be allowed to explain the facts therein stated. It was in no sense like the introduction of a witness by a party, and then attempting to impeach the witness. That rests upon a very different principle, wholly inapplicable to the question here raised. There is no rule better understood than that a party may show that his own witness is mistaken in regard to a fact to which he testifies. We are convinced that no error was committed either in allowing the answer to be introduced as evidence, or in receiving the evidence of the plaintiff in relation to the facts therein stated.”

      Hall and Blandy, for the appellant. Eugene Smith, for the respondent. •
   Opinion by

Ingalls, J.

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

Judgment modified as directed in opinion, without costs.


author: Learned, P. J.: Bockes, J.:

text:
    AMBROSE GILLIGAN, Respondent, v. THE COMMERCIAL FIRE INSURANCE COMPANY, Appellant.

      Policy of insurance — condition requiring a certificate of the notary “ nearest to the place of fire ” — what not a compliance with.

    A policy of insurance, issued by the defendant upon certain buildings belonging to the plaintiff, contained a clause providing that the loss should not be payable, until the assured should have produced proofs of loss, as therein required, and a certificate under “ the hand and seal of a magistrate or notary public nearest to the place of fire.” The certificate furnished by the plaintiff was signed by a notary who resided in the village in which the buildings were situated, and whose office was distant about twenty-five rods from them; others, justices of the peace, resided and had places of business nearer the burned buildings than did the certifying notary, but only by a few rods; neither of the said justices nor any notary had any office, as such magistrate or notary, nearer than the office of the certifying notary.

      Held, that the certificate was not signed by the magistrate or notary “ nearest to the place of fire,” and that the failure of the plaintiff to produce such a certificate prevented any recovery upon the policy.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought upon a policy of insurance issued by the defendant.
    The referee found, among other things, these facts : “ That the subject of insurance was described in said contract as follows ;

      “ On his frame building, slate roof, now occupied by P. Lorigan as a store and dwelling, situate on the west side of Liberty street, in the village of Fair Haven, Yermont, as per diagram No. 134,767, on file in this office.
    ‘ ‘ That the diagram referred to in said contract was a map or plan in which the insured premises were laid down as being on one side of Liberty street, with a dwelling-house on one side, about thirty feet distant, a hotel barn on the other side, partially retired from the street, about fifty feet distant, and hotel on the same side, distance not indicated.
    “The diagram correctly located the insured building with reference to said street, and to said buildings appearing upon said diagram.
    “ There was a barn or stable at that time standing nineteen feet from plaintiff's property, which was not represented on said diagram. The said barn or stable was an exposure to plaintiff's property in question. The distance between the barn and plaintiff's property was actually thirty-six and a-half feet, instead of about fifty feet, as stated in the diagram.
    “ The contract of insurance contained this provision : ‘ If any application, survey, plan or description of the property herein insured is referred to in this policy, such application, survey, plan or description shall be considered a part of this contract and a warranty by the assured.’
    “ That said policy also contains clauses or conditions as follows : ‘ Assured shall also procure a certificate, under the hand and seal of a magistrate or notary public (nearest the place of fire not concerned in the loss as creditor or otherwise, nor related to the assured), stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount which such magistrate or notary shall certify, and that until such a certificate is furnished or produced the loss shall not be payable.’
    “ That proofs of loss were filed with defendant May 25, 1878, which included a notarial certificate in the form required by the policy.
    “ No objection was made to said proofs of loss until June 10, 1878, when defendant objected that the certificate of the notary public was not made by the notary nearest the place of fire.
    “That the plaintiff did not subsequently furnish to defendant any other certificate than the one aforesaid.
    “The notary who made the certificate resided and had his office in the same village, and near the place of the fire, his office being within about twenty-five rods of such fire.
    “ Other persons were justices of the peace, who resided nearer and had offices of business nearer than said certifying notary, but only by a few rods, and not exceeding thirteen rods.
    “ That none of said justices nor any notary, not connected with this case as counsel, had any office as such magistrate or notary nearer than the office of said certifying notary.”

      Q. A. Clement, for the appellant.

      Tanner & Potter, for the respondent.
   Learned, P. J.:

The plaintiff insists, first, that the submission to appraisers was a waiver of a certain alleged defect in the proofs of loss. But the agreement was merely for appraisal of damages', and it expressly states that it is without reference to any other questions or matters of difference. There is no reason to give it a meaning which it expressly excludes.

Again, the plaintiff insists that there was a waiver by the retaining of the certificate some sixteen days. It appears that a certificate, signed by one Gibbs, was sent to the defendants about the ninth of May, to which they objected. Thereupon a certificate of one Rustedt was sent, and was received about May twenty-fifth. On the tenth of June the defendants wrote a letter to the plaintiff objecting that Rustedt was not a magistrate or notary nearest the place of the fire, and also making other objections. This letter was received in due course of mail, but no reply was made, or other certificate promised. I am unable to see that there was any waiver. The defendants expressly objected, and pointed out the objection. Doing this, they afforded the plaintiff an opportunity to correct or amend the alleged defect. He had lost nothing by their retaining the certificate sixteen days, unless, indeed, they should afterwards have refused to receive a certificate intended to obviate their objections. In O'Neil v. Buffalo Fire (3 N. Y., 128), the defendants did not point out the objection. In Turley v. North Am. Fire (25 Wend., 373), the agent of the company refused to return the proofs for amendment.

On the trial it appeared that Rustedt’s office was about twenty-five rods from the fire ; his residence further ; that Lloyd, a magistrate, had a place of business about eight rods from the fire ; Allen, about twelve, and Pitkin about fifteen. Plainly, then, Rustedt was not the nearest. Lloyd did no business as a justice ; Allen did no other business than that of justice (except his private affairs); Pitkin was a merchant, and did not do much business as a justice. The referee finds that other persons were nearer than Rustedt by not exceeding thirteen rods, but that no one had an office as magistrate or notary nearer than Rustedt.

The policy ends with a clause that it is made and accepted with reference to the foregoing terms and conditions, and one of these terms is that the insurer shall produce the certificate of a magistrate or notary nearest to the place of the fire. The policy is not distinguishable in this respect from that in Inman v. Western Fire (12 Wend., 452), where such a clause was held to be a condition precedent. And while it seems to me iniquitous for a company to insist on the letter of such a provision, I feel bound by that decision. The remedy is with the Legislature, who should prohibit the insertion of such conditions, and many others in common use, that are of no good except to defeat honest claims.

If such a clause had not been held to be a condition precedent, if it were held to be only an agreement on the part of the insured, then plainly the company would have suffered no loss by the breach of the agreement. For it is evidently of not the least consequence whether the notary lives ten rods or twenty from the fire. But the case above cited has made the performance of what is required in this clause a condition precedent to the recovery, and if it be, then I cannot say that it was performed in this case. The Turley Case does not apply, for the company threw obstacles in the way of the proper performance of the condition and the preparation of proper proofs. Nothing of the kind exists here. The company plainly stated their objection. The plaintiff neglected to amend the alleged defect.

I come to this conclusion with reluctance, but I am compelled to say that I think the judgment must be reversed, a new trial granted, the referee discharged, and that the costs abide the event.'

Bockes, J.:

I concur in the conclusion reached by my brother LeaeNEd, that there was no waiver, of the objection urged against the certificate of the officer, Rustedt; which objection seems fatal to the plaintiff's right of recovery in this action. The production or delivery of a certificate, such as was called for by the policy, within the specified time, was a pre-requisite to the right of action. The parties so expressly agreed; and I am unable to see anything reprehensible in law or morals where a party insists upon all lawful conditions imposed by a contract to which both gave their free assent. Parties make contracts for themselves, and, in the absence of fraud or mistake, it is right that due observance should be required of its lawful provisions. It does not lie with the court to relieve either because of an apparent hardship in the enforcement of terms or conditions which', it must be assumed in a case like the present, were deliberately considered and expressly agreed upon.

I am further of the opinion that here was also a breach of warranty oh the part of the plaintiff, as regards the diagram showing the surroundings of the insured property. This was made by the plaintiff or his agent for reference by the company, and was accepted by it as explanatory of the risk to be assumed on the delivery of the policy. The diagram was more than imperfect. It was, in point of fact, actually erroneous in its delineation of surrounding buildings. * It was provided in the policy that if a survey, plan or description of the property insured should be referred to in it, such survey, plan or description should be considered a part of the contract and a warranty by the assured; and further, that any false representation by the assured of the condition or situation of the property, or any omission to make known every fact material to the risk, should render the policy void. The diagram was referred to in the body of the policy as “Diagram No. 134,767, on file in tbe office.” This was tbe imperfect and erroneous diagram produced. It is only necessary to compare this witb tbe accurate plan or diagram established by tbe proof to see tbe very important and material difference between them. As above stated, Diagram No. 134,767, referred to in tbe policy, was both imperfect and erroneous. It was, in point of fact, a false representation of the property insured, as regards other buildings thereon delineated. There was an omission to designate thereon other buildings situated in its immediate vicinity. This was an “omission” to make known facts material to tbe risk. For these reasons the policy was inoperative and void by the express stipulation of the contracting parties.

The judgment must be reversed and reference discharged, costs to abide the event.

Boakdman, J., concurred in the opinion of Bockes, J.

Judgment reversed, new trial granted, referee discharged, costs to abide event.