author: Daniels, J.;

text:
    In the Matter of the Estate of MARY ANN HANLEY, Otherwise Called MARY ANN O’REILLY, Deceased.

      Evidence — to disqualify a person from testifying as to 1/ransactions with a deceased person on the ground of his interest in the result — his interest must he a present and fixed one— Code of Oiml Procedure, sea. 829.
    Appeal by James Toole and others, next of kin, from an order denying a motion to revoke and vacate letters of administration issued to James O’Reilly.
    The intestate died at 510 East Thirteenth street, the place of her preceding residence, on the 28th of April, 1880, and letters of administration were issued upon her estate to James O’Reilly, as her husband. She left no children and her first cousins were her next of kin. They applied to the surrogate to vacate and set aside the letters of administration, upon the allegation that the intestate was not at any time the wife of O’Reilly. This was denied by him, he asserting that he was her husband at and before the time of her decease. 1't was thereupon referred by the surrogate to a referee to take the proof upon this controverted allegation, and to return it with his opinion upon it to the surrogate. The referee took a large amount of testimony and stated his opinion or conclusion to be that the intestate and the administrator never sustained the relation of husband and wife to each other. It was conceded in the course of the proceeding before him, that there was no ceremonial marriage between the parties, and whether they had been married in fact by their own agreement and conduct, was a controverted subject before the referee. The surrogate took a different view of the evidence from that which had impressed itself on the mind of the referee, and held that it did establish a marriage between these parties, and because of that fact the application to vacate or set aside the letters of administration was denied.
    The court at General Term after considering the evidence, and not deciding whether or not the proof was sufficient to justify a finding that a contract of marriage had been entered into, said, referring to the decision of the surrogate: “ But while that decision may have had the support of the evidence it did not justify a denial of the application, for exceptions have been taken on tlie hearing to the exclusion of evidence by the referee, which should have been received by him. And until that evidence is in the case, and the ruling corrected in this manner, it will not be in a condition for final decision. It was proposed to be shown by Mary Devin, who wras a second cousin of the intestate, that she had a conversation with her during her last illness regarding her relations with O’Reilly. This was objected to on the ground that the witness was incompetent to relate the conversation under section 829 of the Code of Civil Procedure, and her evidence was excluded under the construction that she was interested in its result. But she had no other interest than that of being entitled to participate in the estate as one of the next of kin of the intestate, after the decease of all the first cousins of the latter, and that on account of their number was so remote as scarcely to arise to the dignity of a possibility. What this section of the Code has done in the way of directing the exclusion of witnesses, is restricted to those who are interested in the action or proceeding. That exclusion depends upon a present fixed interest, not one remote and contingent, as was the mere possible interest of this witness. That was also the rule under the preceding system of practice excluding interested witnesses as incompetent. It never was applied to the exclusion of the testimony of a witness having but a bare possibility of becoming interested at some future period of time. And the referee, therefore, erred in the ruling excluding the testimony proposed to be given by this witness. And as it related to a conversation with the intestate during her last illness, it may have been entirely controlling over this controversy. A like ruling was made excluding a conversation with the same witness, proposed to be shown to have taken place on the 7th of April, 1880. The referee also struck out, as incompetent, an answer given by the witness Mary Ann Fagan, testifying that she did not believe the intestate was married, although she had previously received information that the fact was otherwise from the intestate. But this ruling was corrected by an answer afterwards received and retained to the same effect. A very large number of other exceptions were taken in the progress of the hearing before the referee, but these seem to be the only ones deserving of any special attention. The evidence proposed to be taken from the witness Mary Devin should have been received, and the order denying the application to vacate or set aside' the letters testamentary should be reversed, and an order made sending the case back to the referee with directions to receive this testimony, and any other additional evidence bearing upon the controverted marriage which may be offered by either party and the eosts of the appeal should abide the final result of the proceeding.”

      Johnson <& Tilton, for the appellants, James Toole and others.

      A. Latham Smith, for James O’Reilly administrator, respondent.
   Opinion by

Daniels, J.;

Van Brunt, P, J., and Brady, J., concurred in the result directed in opinion, costs to abide event.


source: Caselaw Access Project

author: Bartlett, J.;

license: Public Domain

text:
    CHARLES G. LANDON and Another, as Executors, etc., of BENJAMIN H. HUTTON, Deceased, Respondents, v. MARY N. TOWNSHEND and Others, Appellants.

      Assignee in banlcruptey — when his interest as such is barred by a judgment in foreclosure in an action to which he was made a party individuality, no reference being made to his office.

    Appeal from a judgment entered upon the report of a referee.
    The court, at General Term, said: “ This is an ejectment suit, in which the defendants introduced no evidence, but relied solely on the weakness of the plaintiffs’ case. According to the plaintiffs, the title to the premises in question at one time became vested in W. Coventry H. Waddell as the assignee in bankruptcy of one Ebenezer L. Williams. It was material to the plaintiffs to show that the assignee was subsequently divested of the title. To prove this they introduced the judgment-roll in a foreclosure suit in which Waddell was a defendant, and in which it is claimed that any interest he had in the land, as assignee, was foreclosed. In that suit, however, Waddell was simply named as a defendant in his individual capacity, and no reference to him as assignee in bankruptcy appeared in the title of the action, or anywhere else in the record. The appellants argue that Waddell could not have been divested of the estate in bankruptcy by the judgment in a case in which there was nothing to show that he was sued in his official character. The allegation in the complaint in the foreclosure suit was that the defendant Waddell had, or claimed to have, some interest in or claim upon the mortgaged premises, which interest or claim was, subsequent to that of the plaintiff therein, upon the mortgage. There is no evidence in the present case that he had any other interest save as assignee in bankruptcy. Here, therefore, as in the case of Wagner v. Hodge (34 Hun, 524), ‘ it is to be presumed that he was made a party to the foreclosure, and that he himself so understood the fact to be, to obtain all his interest in the property as assignee.’ Such interest was clearly subsequent to the mortgage, and, as Waddell appears to have had no other interest, we think the judgment should be deemed effectual to foreclose it.”

      John Townshmd, for the appellants.

      E. H. Landon, for the respondents.
   Opinion by

Bartlett, J.;

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


author: Per Curiam,.

text:
    MARY M. WATSON, Appellant, v. JOHN D. PHYFE and JAMES CAMPBELL, Respondents.

      A case upon the general calendar in the Mrst Department, which 7ias been reversed at General Term, may be placed on the day calendar at the circuit on two daps’ notice — no new notice of tiial is necessary when a new calendar is made up.

    Appeal from an order of Mr. Justice Andrews to advance a cause and place it on the day calendar for the first Monday in March.
    The cause was at issue in July, 1884, and was tried in October, 1885, and a verdict rendered by direction of the court for defendants. This judgment was reversed by the General Term and a new trial ordered in January, 1887. The order of reversal was entered February 18, 1887. The cause was noticed for trial for the first Monday in March, on the 19th day of February, 1887, the last day in which causes could be noticed for trial for the March term.
    The court at General Term affirmed the order, saying: “ In a case like the one at bar, where there has been a reversal at the General Term and a new trial has been ordered, if the case is upon' the. general calendar, the party may move upon two days’ notice, at the circuit to have the case placed upon the day calendar for trial. If, pending the appeal, a new calendar has been made up and the case has been omitted from such new calendar, the party desiring to place the case upon the calendar may move at circuit to have the. case restored to the general calendar in the place its original date of issue entitled it to occupy; and may then make a motion upon two days’ notice to have the same put upon the day calendar for trial! 1 No new notice of trial is necessary as the case has not been disposed' of. In the case at bar the motion was improperly made at the Special Term or Chambers, but as no such objection was taken upon the: hearing of the motion it cannot be considered upon this appeal.
    “The order appealed from should be affirmed, with ten dollars; costs to abide the event.”

      George PI. Curtis, for the appellant.

      William, H. Arnoux and U. II. JBovee, Jr., for the respondents.
   Opinion

Per Curiam,.

Present — Van Brunt, P. J., Bradt and Daniels, JJ.

Order affirmed, with ten dollars costs and disbursements to abide the event.


author: Brady, J.,

text:
    E. CRAWFORD SANDFORD, Respondent, v. HARRIET A. SANDFORD, Appellant.

      What facts must be alleged to justify proceedings for contempt for the non-payment: of alimony.

    Appeal from an order granting an attachment for contempt in not paying alimony.
    The Court at General Term said: “ The affidavit upon which the order was made herein to punish the defendant makes no suggestion whether the defendant had property or not, and the order does not declare that the conduct of the defendant was calculated to, and actually did impair, impede or prejudice the rights or remedies of the respondent. The proceedings to punish a defendant for the non-payment of alimony are initiated by sections 1769-1772, 1773 of the Code and embrace sections 2266-2282 also. If it appears presumptively to the satisfaction of the court that payment of the alimony ordered cannot be enforced against the party directed to pay by sequestration of his personal property, and the rents and profits of his real estate, the proceedings to punish him may be taken under the sections lastly mentioned, and to which the defendant resorted in this proceeding. It does not appear whether the plaintiff has any real, or personal property, and it does not presumptively appear from anything contained in the record that payment cannot be enforced by the sequestration of such property, and consequently the order made is not maintainable. In Rahl v. Rahl (14 Weekly Dig. 560), the necessity of allegations in reference to the requirements stated was recognized. (See also Isaacs v. Isaacs, 61 How. Pr. Rep., 369). It is not necessary to consider in addition the point taken by the appellant, that it should also appear as adjudicated, that the misconduct of the plaintiff tended to and did impair the rights of the defendant, inasmuch as the proceeding is fatally defective in substance as suggested. The Code contem- " plates the appropriation of the property of the party first, and if that be not sufficient to pay the amount, then to punish, by mandatory process. (Cases supra).

    For these reasons the order appealed from must be reversed, but as the plaintiff has not answered the application on the merits, no costs will be allowed.”

      W. B. TulUs for the appellant.

      Albert Bay for the respondent.
   Opinion by

Brady, J.,

Van Brunt, P. J., and Daniels, J., concurred.

Order reversed, without costs,


author: Brady, J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK SHEPPARD, Appellant.

      Evidence — an entry in a family bible as to the age of a female, is not admissible in a criminal prosecution for the offense of using a female under the age of sixteen years for the purpose of sexual intercourse, except where a case is made justifying the introduction of hearsay evidence.

    Appeal from, a judgment of the Court of General Sessions convicting the defendant of feloniously taking, etc., a female under the age of sixteen years for the purpose of sexual intercourse.
    The court at General Term said : The defendant was indicted under section 282 of the Penal Code for that he did feloniously take, receive, harbor and use one Mamie Sherman, who was then and there a female under the age of sixteen years, to wit: of the age of fifteen years, for the purpose of sexual intercourse; he, the said Frank Sheppard, not being then and there the husband of the said Mamie Sheppard, against the form of the statute in such case made and provided.
    “ The section referred to declares that a person who takes, receives, harbors or uses a female under the age of sixteen years for the purpose of "sexual intercourse, not being, her husband is guilty of abduction. The intercourse having been established by proper proof, or admitted as it was in this case, the prosecution undertook to show beyond reasonable doubt and by proper evidence the age of the complainant.
    “ Upon the trial it appeared that the father of the complainant was living, notwithstanding which an entry in what was said to be the family bible as to the time of the birth of the complainant, was admitted in evidence against the strenuous objection of the appellant’s counsel. We have not been referred to any authority which justified the proceeding. On the contrary, it appears that in one case, cited on behalf of the people, viz., the Berkeley Peerage Case (4 Camp., 401), the father of the infants’ whose ages were in question, was dead. And in Phillip’s on Mmdenee (4 Am. ed. with Cowen & Hill’s notes, at page 255), it is stated that, although ‘ an entry in a family bible has been considered to derive credit from the circumstance of its being entered in a book which is kept as the ordinary register of families, and as admissible, therefore, on account of its publicity in the family, without proof that such entry was made by 'a member of the family,” it is, nevertheless, said to be hearsay evidence adinissible in matters of pedigree only.
    . ■“ The. rule is distinctly stated in G-reenleaf on Evidence, section 10i, •.as follows: ‘ An entry by a deceased parent or other relative, made ’■in a bible, family missal, or any other book, or in any document or paper, stating the fact and date of the birth, marriage or death of a child, or other relative, is regarded as a declaration of such parent ■ or relative in a matter of pedigree.’ Although it is stated in the margin to have been held that the declarations of the deceased ’ parent as to the place of birth of a child were inadmissible.
    “ This case involves no question of pedigree. The admission of the family bible was, therefore, error. It may probably be claimed that it was properly received for the reason that the whereabouts (to use the language of the learned counsel for the people) of the father were not known, that he had deserted his family and.it was impossible to bring it any closer to him. It appeara in the case that after his wife’s death, he left New -York to work on some road in Pennsylvania. But the record does . not disclose any effort on the part of any person connected with the .prosecution to discover the locus m quo of the father. -Fon constat .but that he might have been in the city of New York. This is not •regarded as a sufficient reason for admitting the bible in contraven- . tion of the established rule as shown in the citations made.
    “ It is declared in section 527 of the Code of Criminal Procedure, ■ that an Appellate Court may order a new trial if satisfied that justice requires it whether any exception was taken or not in the court below.
    “ We think, that for the reasons given, injustice was done, and that a new trial should be ordered.”

      W. F Sowe, for the appellant.

      Jno. D. Lindsay, for the respondent.
   Opinion by

Brady, J.;

Van Brunt, P. J., and Daniels, J., concurred.

Judgment reversed, new trial ordered.


author: Learned, P., J.:

text:
    THE FARMERS’ NATIONAL BANK OF MALONE, Respondent, v. MARGARET HOUSTON and DWIGHT DICKINSON, as Administrators, etc., of JAMES HOUSTON, Deceased, and Others, Appellants.

      Power of the court to order a compulsory reference — it cannot order testimony to he taken 'before a referee, to be used on a trial.

    In. this action, brought to foreclose a mortgage, an order was made directing that it be referred to a referee ‘to take the evidence herein and report the same to the court, and that after the evidence had been taken and filed in the office of the clerk of Franklin county the cause be brought to trial, upon the pleadings and evidence so taken, before the court sitting in said county.

      Held, that the order should be reversed.
    That the court has no compulsory power to order that testimony, to be used on a trial, should’be taken before a referee.

      Bathhun v. Bathhun (3 How., 139); Stewart v. Gardner (Id., 156) followed; Elmore v. Thomas (7 Abb, 70); OampY. Ingersoll{86 N. Y., 433); Ketchumv. Olarh (22 Barb., 319); Muhlenbrinah v. Pooler (1 N. Y. State R., 223) distinguished.
    Appeal from an order made at a Special Term of this court, and entered in Franklin county, directing that it be referred to a referee to take the evidence and report the same to the court, and that after the evidence had. been so taken and filed in the clerk’s office of Franklin county, the cause be brought to trial upon the pleading and evidence so taken before the court sitting in said county.

      The action is brought to foreclose a mortgage upon which plaintiff claims $16,104.85, and interest on different amounts from different dates.

      John P. Kellas, for the administrator and Margaret Houston, appellants.

      Newcomb II. Mansell, for infant defendants.

      William P. Cantwell, for the respondent.
   Learned, P., J.:

The Constitution provides that testimony in equity cases shall be taken in like manner as in eases in law (art, 6, § 8). This does not mean that equity cases shall be tried by a jury. The difference in the two courts as to the manner of taking testimony had previously been this. In courts of law the witnesses were produced, sworn and examined before the tribunal which was to decide. In courts of equity witnesses were examined before an examiner, and only their written testimony was presented to the tribunal. It was this difference which was abolished by the Constitution.

Of course, this did not disturb the exceptional cases of testimony taken on commission, etc. Because, in such exceptional cases, written testimony was used in courts of law.

But the Constitution by this section abolished the old mode of taking testimony in equity cases, and put such cases in the same position, in this respect, as cases at law (Phillips v. Gorham, 17 N. Y., 273.) And it is well known that dissatisfaction had arisen before the Constitution with this and other peculiarities of the court of chancery.

The Code has not attempted to interfere with this provision of the Constitution. Section 968 specifies the actions which must be tried by a jury; substantially common la.w actions. Section 969 says that all others must be tried by a court, unless a reference or a jury trial is directed. The present action then must be tried by a court, unless a reference or a jury trial is directed. References are provided for in sections 1011 and 1013, and they are references to try the issues. No intimation is given that any other reference can be made when an action is at issue.

Although for convenience we speak of equitable and common law rights, yet there is but one form of action, and the distinction between actions at law and suits in equity is abolished. (Code, § 3339.) If, therefore, a reference to take testimony upon issues joined can be made in an action for foreclosure, it can be made in an action for assault and battery. The latter proposition probably no one would admit.

The constitutional provision above cited may have two constructions. It may mean that, after its passage, testimony must be taken in the same manner in both classes of cases. Or it may further mean that the mode of taking testimony in both classes shall be that which had been previously used in courts of law. Taking it in connection with article 1, section 2, the latter is probably the meaning. For the production of witnesses before the jury has always been an important characteristic of that mode of trial. But on the present question either meaning is sufficient. Because it cannot be claimed that in actions of every kind such a reference could be ordered. And if not in every action ; then in none.

In this connection it may be noticed that, even in cases of special motions, the language of the Code is that the reference is to be “ to determine and report upon a question of fact; ” not to take evidence. (Section 1015.)

The provision of section 827 does not affect this question. That section by its language and its position, has evidently nothing to do with the trial of issues. The reference thereby authorized is such as, just previous to the abolition of the Court of Chancery, might have been made to a clerk or a master. Whatever may have been the early history of the office of master, it is well known that at the time referred to, evidence on an issue was not taken before a master but before an examiner. (1 Barb. Ch. Pr., 277.) A master exercised certain judical and executive powers. An examiner was little more .than a scribe, writing down questions and answers. Whether a master might not do an examiner’s work is immaterial to this question. For no such work as the taking of testimony on an issue is intended in this section. The taking of such evidence was not “a matter referable.” The parties took their evidence before any examiner, as they might choose. No reference was made; and indeed the words “ a matter referable ” would not include an issue in chancery.

Some cases cited by plaintiff should be noticed. Elmore v. Thomas (7 Abb., 70), was a case referred by consent. The only remarks of the court which are cited respect facts other than those presented by the pleadings.” Those remarks do not apply here. Camp v. Ingersoll (86 N. Y., 483), reversed an order of reference, on the ground that the issues did not directly involve the examination of a long account. The court referred also to section 1015, and said that if the suit was one in equity, the testimony as to value of the assets might be taken by a referee. An examination of that section will show that it does not speak of a reference to take evidence upon the issues but only upon what may be called collateral matters. Nor was anything decided by the Court of Appeals except a reversal of the order of reference. Ketchum v. Clark (22 Barb., 319), was a case of a reference merely to take :and to state an account.

Muhlenbrinck v. Pooler (1 N. Y., State Rep., 223), presented no question as to the validity of such a reference. The reference may have been by consent; and at any rate no objection was made. The subject is mentioned only in answer to the position that the court was concluded by the facts found by the referee.

On the other hand, the case of Rathbun v. Rathbun (3 How 139), and Stewart v. Gardner (3 id., 156), are decisions on this very point, and are in conflict with the order in this case. We concur with these two decisions, and are of the opinion that the court has no power compulsorily to order that testimony to be used on a trial should be taken before a referee. Of course this does not prevent the taking of testimony de bene esse, and on commission and the like.

As there was no appeal from the refusal to refer to hear and determine as a long account, that question is not before us.

The part of the order appealed from is reversed, with ten dollars costs and printing disbursments.

Bookes and LaNDON, JJ., coneured.

Part of the order appealed from reversed, with ten dollars costs and printing disbursements.


author: Learned, P. J.:

text:
    In the Matter of the Proof of the Last Will and Testament of JAMES MACKAY, Deceased.

      Will — what ,proof as to the acknowledgment of Ms signature by the testator is required.

    Upon an application for the probate of a will of one Mackay, it appeared that tlie instrument offered had been drawn up by a lawyer, at the request of Mackay (who told him he wanted it for a friend) with the exception of the names of the deceased and of the legatees and executrix, which were in the handwriting of the deceased. The deceased told the two witnesses .that the paper was his will, and that he wanted them to sign it. The paper was folded so that they could see only the attestation clause; they did not see him sign the will, nor did they see his signature or seal, or know that there was any signature or seal; nor.did he acknowledge that any signature was his.
    Held, that a decree of the surrogate, paper be affirmed, as it was not shown that the testator had acknowledged to the witnesses that he had signed the will.
    It is impossible_for a person, under the statute, to acknowledge that a signature has been made by him unless the witness sees the signature which the person attempts to acknowledge.
    Appeal from a decree of the surrogate of St. Lawrence county, refusing to admit to probate an instrument purporting to be the last will of James Mackay, deceased.

      William Peters and Louis Sasbrouclc, for the executrix, appellant.

      W. P. Sawyer, for next of kin, contestants.
   Learned, P. J.:

This is an appeal by tbe executors and legatees from the decree of the surrogate refusing to admit to probate a paper purporting to be the will of James Mackay, deceased. There is but one question in regard to the proper execution of this paper. That is, whether the testator acknowledged to the subscribing witnesses that the subscription to the will had been made by him.

This is not a case like that of the Cottrell Will (95 N. Y., 329), where neither the surrogate nor the appellate courts believed the testimony of the subscribing witnesses; and where the probate was granted because the courts believed that all the requisites of the statute were iu fact complied with. In the present case there is no reason to doubt that the subscribing witnesses give an accurate account of all that took place. And the question must be whether the. facts, as they state them, show a proper execution of the instrument.

The instrument had been drawn up by a lawyer at the request of the deceased, except the names and residences. The deceased had stated to the lawyer, at that time, that he wanted it for a friend who could not come and see the lawyer. The names and residences (that is of the deceased and of the legatee and executrix) are in the handwriting of the deceased. The signature to the paper is in the handwriting of the deceased.

The attestation clause does not contain the name of the testator or any date, except by reference to the date of the instrument.

The deceased told the two witnesses that the paper was his will, and that he wanted them to sign it. The paper was folded so that they could see only the attestation clause. They did not see the deceased sign the will, nor did they see his signature or seal; nor did they know that there was any signature or seal; nor did he acknowledge that any signature ivas his.

One of the witnesses says that, a few days before that time, he was at the house of the deceased, and deceased took the paper out of the envelope and read it to himself, and the witness says he was sitting some distance off and caught the reflection of the seal. But there is no evidence that the instrument had been signed at the time when the witnesses were requested to witness it. That is, unless the transaction which then took place as above detailed, is to be considered evidence that the instrument had been previously signed. The attestation clause states that the instrument was signed in presence of the witnesses; not that the signature was acknowledged. This is plainly incorrect;

The statute requires either that the witnesses shall see the deceased subscribe his name, or shall hear him acknowledge some subscription already made to be his. This plainly implies that they shall see the subscription which the deceased thus, acknowledges. Thus in the Phillips case (98 N. Y., 267), the.deceased produced the will, laid it on the table in front of the witnesswith his (the deceased’s) signature visible on the face of it.” And the court say that the exihibition of the will, and of the testator’s signature attached thereto, and the declaration that it was his last will, were a sufficient acknowledgment of the signature. So that the decision rested, among other facts, upon the exhibition to the witness of the testator’s signature.

It is well settled that each of the several formalities required by the statute must be substantially observed. (In re Hewitt 91 N. Y., 261.) And it certainly is impossible for a person, under the statute, to acknowledge that a signature has been made by him, unless the witness sees the signature which the person attempts to acknowledge.

Let us suppose (and there are no facts inconsistent with the supposition) that the deceased did not sign the instrument until some time after the interview with the witnesses. On that supposition, the instrument was never duly executed.

We have examined the cases cited by the appellant, but we find no others which seem to us to need discussion in connection with this case. The simple question is whether the propf shows satisfactorily an acknowledgment of his signature by the deceased. We think it does not. The folding of the paper by the deceased so as to disclose only the attestation clause shows that he did not exhibit, and did not intend to exhibit, his signature, if any then existed. Of course no special form is needed for such an aeknowl-' edgment. But the thing which is acknowledged must be seen by the witnesses. Yery possibly, also, if the facts were not known, the attestation clause might be presumptive evidence that the instrument was properly executed. But in the present case the facts are known and are clearly proved.

It seem to us that the safe course in all questions of this kind is to follow the statute strictly. Attempts by courts to relieve interested parties against imperfect execution of wills, while they maybe made with very benevolent motives, lead to confusion and uncertainty in the law. The formalities required by the statute are not technical. They are intended as safeguards against fraud and imposition. And it is best that they should be adhered to, although in some instances snch adherence may disappoint would-be legatees. Even in those instances it is not a great evil that the property of a deceased should go to his heirs and next of kin.

We are of the opinion that tbe decision of the surrogate was correct.

Decision affirmed, with costs against appellants.

LANDON and Parxer, J J., concurred.

Decision affirmed, with costs against appellants.


author: Learned, P. J.: Landon, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ABEL S. MYERS v. JOHN BARNES and Others, as the Board of Town Auditors of the Town of Highland.

      Boa/rd of town auditors — rejection of a claim — the remedy of a party aggrieved by the erroneous rejection of a claim is by certiorari and not by mandamus.
    An application was made by the relator to compel the hoard oí town auditors of the town of Highland to certify to the hoard of supervisors as town charges the ' amount of a judgment recovered against the relator, as a commissioner of highways,'in an action brought by him to recover a penalty from an overseer, and .algo an amount found due him by a former board of town auditors; upon the hearing.it was admitted that the bills had been presented to the board in Í885; that they had examined them, decided that the town was not legally liable to pay for the whole, or any part of them, and rejected them.

      Held, that the writ should not be issued as the board had made a decision. That the remedy of the relator was by certiorari and not by mandamus. (Landon, J., dissenting as to the judgment.)
    ' Motion for a new trial on exceptions ordered to be beard in the first instance at the General Term, after the court had dismissed the proceedings.
    Hpon the trial before the Hlster County Circuit of the issues framed by a writ of alternative mandamus and the return, the court, at the close of the testimony, dismissed the proceedings and directed that the exceptions be heard in the first instance at the General Term. The relator now moves for a new trial. The relator was sole commissioner of highways for the town of Highland for the year 1882. He appointed one Hickok overseer of highways for road district No. 3, and also appointed an overseer for each of the road districts Nos. 12, 18 and 27. He issued road warrants to each of these overseers. The overseers in the three districts last named thereupon resigned their respective offices, their resignations were accepted by the relator, and he thereupon made an order abolishing districts Nos. 12, 18 and 27 and extending the bounds of district No. 3, so as to include within it the same territory and the same assessments which were embraced in the abolished districts. The warrant to Hickok was amended so as to embrace the a'dded territory and assessments. Hickok consented to act as overseer of district No. 3. The relator being commissioner, and Hickock overseer of highways, the relator required the overseer to proceed to discharge, in a manner indicated by him, certain duties respecting the highways in his district; also to proceed to enforce certain fines and penalties alleged to have been incurred by certain delinquents. The overseer refused and the relator sued him in a Justices’ Court to recover the penalties prescribed by the statute against a delinquent overseer. Two trials were had in the Justices’ Court; the juries not agreeing, the relator withdrew his suit, paid the costs and then brought another suit against the overseer before another justice, was heaten, appealed to the County Court, where he was again beaten He paid the latter judgment, seventy-six dollars and ten cents. He also paid eighty dollars and fifteen cents for expenses in these suits, in addition to the judgment.
    He expended, as commissioner of highways, in repairing the roads and bridges that were damaged after the town meeting of 1881, $128.17 of his own money. This sum was found due him by the board of town auditors, March 4, 1882. All these bills were presented to the board of town auditors for audit, and to be certified to the board of supervisors. The board of town auditors examined the bills and refused to allow them. They were again presented to the board of town auditors in 1885, duly verified. The board of auditors was requested to audit the bill for costs and expenses, and to include this audit, and the amount of the judgment, and the amount found due the relator in March, 1882, in its certificate and statement of the town charges to the board of supervisors. The board of auditors refused, and the writ of alternative mandamus, the return, and trial followed.

      T. F. Bush, for the relator.

      John F. Anderson and L. E Carr, for the respondents.
   Learned, P. J.:

Tlie case says: “ It is admitted that the bills were presented to the board of town auditors of 1885. That they examined them and decided that the town was not legally liable to pay for the whole, or any part of them, and rejected them. The same admission is made as to the action of the board in the year 1883.”

The distinction between auditing a bill and rejecting it, on the one hand, and refusing to audit on the other, may seem small, but it is real.

It is pointed out in People ex rel. Thurston v. Town Auditors of Elmira (82 N. Y., 82), where the court say that “ if the relator’s bill has been in fact audited by the town board, the mandamus awarded was improper. If it has not been so audited it was right to command performance of that duty.” In that case the board “ assumed the right to allow what they pleased, without disputing the facts on the one hand, or the law on the other.”

Now, in the present case, the stipulation says that the board examined the bills and decided that the town was not legally liable. That plainly means that, without disputing the facts, they did dispute the law. Therefore, the board made a decision.

Grant that it was erroneous, it was a decision. Can we by mandamus compel them to decide otherwise ? I think not. If there was an erroneous decision of law, the relator’s remedy, assuming that he had any, was by certiorari. (Code Civil Pro., § 2140, sub. 3.) If, without competent evidence, the board had decided the facts against the relator, he would not be without remedy. (Sub. 5.)

Thus, again, in People ex rel. Brown v. Board of Apportionment (52 N. Y., 227), it is said “ to audit a claim ex vi termini impiorts the exercise of judgment.” Again it was said of a mandamus to audit: “This of necessity submits to those officers the power of determining pro hac vice ’ the legality of the claim as well as its amount.” (People ex rel. Vandervoort v. Cooper, 24 Hun, 340.) To the same effect People ex rel. Everett v. Supervisors (93 N. Y., 404.) So People ex rel. Equitable Fire, etc., Insurance Company v. Fairman (12 Abb. N. C., 272; affirmed, General Term and Court of Appeals), which seems quite in point.

Now there are certain cases in which an auditing board has to exercise its judgment upon the amount of a claim. In such cases, if tbe board refuses to exercise its discretion, mandamus has been held to lie to compel this exercise of discretion. Possibly it would be difficult to make certiorari applicable, where the inferior tribunal had not decided on the question of facts. (See People v. Supervisors, 45 N. Y., 196.) But in the present case there is no discretion which the board has refused to exercise. The amount of the claim on the judgment against relator was fixed. If it was a legal claim, the refusal to allow it was an error of law; an incorrect decision; to be reviewed, as it seems to me, by certiorari.

But again, what would the mandamus command? Not certainly that the board should allow relator’s claim. We are not by mandamus to direct an inferior tribunal how to act. The command would be only to audit, that is, to examine and pass upon the claim. But this the defendants have already done. (See remarks in People ex rel. Thurston v. Town Auditors, Elmira, ut supra.)

I think the judgment should be affirmed with costs.

Mayham, J., concurred.

Landon, J.

(dissenting):

The judgment in the County Court was recovered against the relator in his name of office in an action which he was authorized to bring. The judgment was a town charge. (1 R. S., in. p. 357, § 8.) An execution, however, would issue against the relator; he was, therefore, obliged to pay the judgment. (Code of Civ. Pro., § 1931.) This section requires that the sum collected must be allowed the officer in the settlement of his official accounts, except as otherwise specially prescribed by law.

It appears that this sum has not been allowed the relator in the settlement of his official accounts, and the only way open to him to obtain it is to have the board of town auditors include it in their statement and certificates of the town charges to the board of supervisors. The defendants, however, object that the relator is not entitled to be reimbursed the amount of this judgment (1.) Because he brought the action against Hickok, the overseer of the highways, upon his own motion and not upon the complaint and indemnity of any resident of the town. (2.) He was defeated, and, therefore, had no cause to bring the action. (3.) As he was beaten in the Justice’s Court he had no right to appeal. (4.) The account has once before been presented to the town auditors and rejected.

First. We think the commissioner may prosecute a delinquent overseer upon his own motion, if, in his judgment, the public interest requires it, that is, if he does so in good faith. The commissioner of highways is charged both with the power and the duty to give directions for the repairing of the roads and bridges ” (1 R. S., m. p 501, § 1), and to enjoin certain duties upon the overeeer, whose duty it is to obey under peril of penalties to be sued for by the commissioner. (Id., p. 504, § 16.) Unless the commissioner can of his own motion sue for these penalties, he is denied the means to enforce his authority The seventeenth section provides that the commissioner- shall, upon complaint made to him by a resident of the town that the overseer has refused and neglected to perform any of such duties, and upon such resident’s giving or offering to give sufficient security to indemnify the commissioner against the costs, forthwith prosecute such overseer for the penalty. Authority implies power to enforce it. The seventeenth section is clearly an additional provision to compel the commissioner to use the power he possesses, not a condition precedent to his possession of the power.

Second. That the relator failed to recover in his actions against the overseer does not deprive him of recourse to the town.- The law is not so unreasonable as to require a public officer to guarantee the success of a litigation in which he may, within the scope of his official duties, become involved. In good faith, perhaps not wisely, he sought to exercise a power with which he was clothed. The power to bring the action implies the power to incur its charges. The People ex rel. Van Keuren v. Town Auditors (74 N. Y., 310) is cited. The difficulty with the relator in that case was, he thought he was lawfully acting'as an overseer of highways in removing an obstruction from a public highway, and he found out on the trial that he was simply an individual trespasser upon the private road of the person who sued him. The court held the town was not obliged to reimburse him for the judgment and expenses he incurred in his law suit with the person whom' he' had no official or personal right to injure. If, in the suit with Hickok, it had been shown that Hickok was not an overseer of highways, either deju/re or de facto, then this relator would have been outside of the statute and its protection, because he would not have sued an overseer, and the case cited would have been in point.

Third. But the case cited is claimed to be authority for the position that the relator, having been beaten in the Justice’s .Court, had no right to appeal solely upon his own motion. That was held true of an overseer who was the subordinate of the commissioner, and who committed the trespass complained of in obedience to the orders of the commissioner, in the belief that his action was lawful.' In such case it was said, that if he could look either to the commissioner or to the town as his immediate superior, he was entitled to indemnity against the natural consequences of having innocently performed their unlawful requests, but having once been beaten he could not enhance the damages by continuing, by appeals, the litigation without the consent of one or the other.

In this case the commissioner is the officer charged with instituting and carrying on this litigation against the overseer. Why he was defeated we do not know, but he was clothed with the power, and hence with the judgment and discretion applicable to the case.

4. The fact that the town auditors had once before refused to audit and certify this judgment, does not defeat the relator’s claim. The law says it shall be allowed him; the town auditors are the officers to give effect to the law. They cannot by their perverseness or misjudgment repeal it, and we see no reason why that duty does not remain in full force until it is performed. (The People ex rel Thurston v. Town Auditors, 82 N. Y., 80.) To reject the bill altogether is a refusal to audit, wliat the law says shall be allowed. Such a claim differs from the ordinary unliquidated claim in this respect; in the former, the board of town auditors have no jurisdiction of the amount of the claim; in the latter they have. It is true that it is remarked in People ex rel. Everett v. Board of Supervisors (93 N. Y. 404), that the provision requiring the claim upon the judgment to be presented to the board of town auditors implies the power on their part to reject it altogether, but this remark is obiter. If, as we think, the relator had a clear legal right to have this claim allowed him and that right was denied or refused, there is nothing to review upon certiorari and mandamus is his only remedy. The foregoing views dispose of the relatoi’’s other claims adversely to him. They were rejected, and we cannot say, as in the case of the judgment, that the claims were not judicially examined and disallowed. If so, the relator is bound by the decision of the board of town auditors, unless he brings certiorari to review it.

It follows that the relator is entitled to a new trial, costs to abide event.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. FRANKLIN N. WRIGHT, Respondent, v. REUBEN WILLARD. Appellant.

      Appointment to office —necessity of a written appointment — 1 S. 8., m. p. 118, sec. 19.
    Upon the trial of this action, in the nature of a quo wa/rranto, to oust the defendant from the office of trustee of the village of Northville, it appeared that the relator claimed to be entitled to the office by virtue of a resolution adopted by the board of trustees of the village, appointing him to fill a vacancy in that office created by the resignation of a former trustee.

      Held, that as it did not appear that any commission, signed by the presiding officer of the board, had been issued to the relator, as was required by section 19 of 1 Revised Statutes (m. p. 118), the complaint should be dismissed.
    Appeal from a judgment in favor of the relator, entered in Eulton county upon the trial of this action by the court without a jury.
    This is an action in the nature of quo warranto and is brought by the authority of the attorney-general to oust the defendant and to restore the relator to the office of trustee of the village of North-ville in the county of Fulton. At the annual'election in 1885, one James A. Cole was duly elected trustee of the village of Northville and duly qualified and held such office until J uly 24,1885, when he resigned and his resignation was accepted. Thereupon the board of trustees of said village appointed the relator to fill the vacancy caused by the resignation of said Cole, and caused a resolution to that effect to be entered upon the record of its proceedings. The relator thereupon duly qualified and entered upon the discharge of his duties, and continued to act as such trustee until the 16th day of March, 1886, at which time the election for the elective village officers was held. At such election the defendant received votes to fill said vacancy, and no other person received any votes for said office; thereupon the defendant assumed the duties of the office and continued to act as such trustee until the trial of this action, and excluded the relator therefrom.

      Lee 8. Aníbal, for the defendant, appellant.

      L). O’Brien, attorney general, and J. M. <& LT. Dudley, for the relator, respondent.
   Learned, P. J.:

1 Revised Statutes (m. p. 118, § 19) says: “ The commissions of all other officers (meaning other than those previously mentioned) where no special provision is made by law, shall be signed by the presiding officer of the board or body, or by the person making the appointment.” People ex rel. Babcock v. Murray (70 N. Y., 521), holds strongly the necessity of a written appointment, and goes far to modify the authority of People ex rel. Kresser v. Fitzsimmons (68 N. Y., 514). At any rate, both cases concur in the necessity of a writing, signed by some one authorized to sign. The question then must be whether there is any special provision made by law for the signature of commissions issued to village officers, or whether such commissions fall under the general rule of the Revised Statutes. It is claimed by the relator that the general act for incorporation of villages (chap. 291, Laws of 1870) makes such special provision. Title 2, section 10, authorizes the board of trustees to fill any vacancy. That provision gives them the power, but does not prescribe how its exercise shall be manifested. Section 13, title 8, requires a record to be kept, and section 16 provides that every rule and resolution may be read in evidence in all places from the original records.

Now the provision of the Revised Statutes is general, in many cases the board or body making the appointment must have a clerk or secretary, whose duty it is to keep a record. Such records are generally admissible in evidence. Can it be, then, that in making this provision the legislature overlooked this fact ? Did they not rather intend that, in so important a matter as the appointing to office, a commission signed by the presiding officer should always be issued ?

In section 11 they had provided that certificates of boards of canvassers should be evidence of election. And they might have provided in a similar manner for resolutions of appointment signed by clerks of boards.

Now it seems to us that the above cited provision in the act for incorporation of villages in regard to resolutions could not have been intended to supersede the general law of the Revised Statutes in respect to commissions. The village act speaks of rules, resolutions and proceedings. It has no special reference to appointments. And we think it could not have been intended as a special provision, made by law, for the commissioning of appointees. And it must be noticed that the power of the board to fill vacancies is not confined to vacancies in their own body. So that, if the resolution in the records is good in the case of a trustee, it is good also in the case of any other village officer whose vacant place the trustees may fill. W e think that the language of the Revised Statutes implies that some paper is to be issued to the appointee.

Judgment reversed and complaint dismissed, with costs against relator.

Mayham, J., concurred, Landon, J., not acting.

Judgment reversed and complaint dismissed, with costs against the relator.


author: Learned, P. J.: Mayham, J.: Landon, J.

text:
    EDWIN R. LAWRENCE, Appellant, v. DWIGHT B. BAKER, Respondent.

      Statute of limitations — effect of the giving of his own note by the debtor for a part of the claim — when a payment of the note to an indorsee for value will not be treated as an admission of indebtedness.

    Upon the trial of this action, commenced in September, 1884, to recover for lumber sold to, the defendant, the plaintiff proved a balance of eighteen dollars and seven cents due on May 1, 1876. and an additional balance of $162 due for other lumber sold on July 1, 1878. He also proved that on July 1, 1878, the defendant gave his note to him for $300, at three months, upon account of the lumber sold; that the plaintiff had the note discounted at a bank, the proceeds thereof being credited to and drawn out by him. The note was paid but whether at, before or after maturity was not shown.

      Reid, that the action was barred by the statute of limitations. (Landon, J., dissenting.)
    That even if it were assumed that the note was paid to the hank on the day it became due, October 4,1878, it would not remove the bar of the statute.
    That as the defendant could not avoid paying the note, which had passed into the hands of a Iona fide holder for value, the payment could not be treated as an admission of his indebtedness to the plaintiff at that time. (Landon, J., dissenting.)
    To what extent the giving of the note was an acknowledgment of the debt, considered.
    MotioN for a new trial by tbe plaintiff upon exceptions taken on the trial at the Sullivan Circuit, and directed to be heard in the first instance at the General Term.
    The plaintiff, by his complaint, for lumber sold to the defendant, claimed a balance of eighteen dollars and seven cents due May 1, 1876, also an additional balance of $162 for other lumber sold July 1, 1878. The action was commenced September 30, 1884. The answer was the statute of limitations. The plaintiff proved' the sales and balances as of the dates claimed. He also proved that on the 1st day of July, 1878, the defendant gave his note for $300, at three months, upon account of the lumber sold. The plaintiff had the note discounted at a bank, and the proceeds placed to his credit, which he subsequently drew out upon his check. This note was paid hy the defendant to the hank, but whether at, or before or after maturity was not shown. He also proved that he received from the defendant, at its date, the following letter:
    “ Sueeern, N. Y., July 10, 1880.
    “ Mr. E. R. Lawrence : • ,
    “ Dear Sir. —Inclosed find check for $18.07 to balance account.
    “ Yours truly,
    “D. B. BAKER.”
    There was no other evidence touching a check. The court, upon the close of the plaintiff’s case, granted the defendant’s motion for a nonsuit.

      James J. Gurtis, for the appellant.

      G-erret Z. Snider, for the respondent.
   Learned, P. J.:

Tbe giving by a debtor of a note of a third person to apply on his debt is a payment under the statute of limitations (Smith v. Ryan, 66 N. Y., 352; Code Civ. Pro., § 395), because it is immaterial, so far as the effect of payment goes, whether the debtor pays in cash or in chattels, or in the obligation of another. In either case he parts with something of value and transfers it to the creditor to apply on the debt. But when he gives his own note he parts with nothing of value. He only makes a new promise in a new form. He makes a written acknowledgment or promise under the section above cited. (Kincaid v. Archibald, 13 N. Y., 189.)

Whether he makes any written acknowledgment or promise except to the extent of the note which he gives, seems to be doubtful. A man who makes a note promising to pay $300 does not thereby acknowledge that he owes, nor does he promise to pay $460. If there be any presumption, it is that the amount of the note is all that he owes. At any rate, the time when the acknowledgment or promise is actually delivered is the time when it takes effect, in respect to the statute of limitations, as a written promise or acknowledgment. (Kincaid v. Archibald, ut supra.) If, then, the giving of the $300 note was an acknowledgment or pi’omise under section 395, in respect to the alleged residue of the debt, it was such at delivery; and the statute of limitations began again to run from that time as to the alleged residue. As to the $300 the statute did not begin to run until maturity of the note, three months later. Assuming, then (which I doubt), that the giving of the $300 note was an acknowledgment or promise as to the alleged balance of $162, its effect was to make the statute of limitations run as to the $162 from July 1, 1878, the time of the giving of the note; while as to the note itself the statute would begin to run only from maturity, viz., October 4, 1878. The plaintiff at once had the note discounted at the bank. No direct proof is given of the payment of the note; but it may be inferred that it was paid by defendant at some time, whether before or after maturity is not shown. This action was commenced September 29, 1884. If, then, the defendant paid that note a week before it was payable, all the plaintiff’s argument falls. And if the plaintiff tries to take a case oat of the statute of limitations on. the ground of a payment, he should show positively when that payment was made.

But even assuming that payment was made on the exact day of maturity, the plaintiff is no better off. The defendant could not avoid the payment. The note had passed into the hands of the bank and was evidently negotiable. The defendant had no alternative but to pay. He could not have defended on the ground that he owed plaintiff nothing. Now there is no mysterious virtue in a payment. It is held to avoid the statute of limitations, because, by making a partial payment the debtor admits the debt. The courts say: “ Why did he make a partial payment if he did not owe the debt.” (Harper v. Fairley, 53 N. Y., 412.) Now when the debtor is in such a position that he has to make the so-called payment, whether he owes the whole debt or not, then there is no longer any admission. This defendant was obliged to pay his note at the bank whether he owed plaintiff any balance or not; or even whether he had ever owed plaintiff an'ything. Therefore, the payment of the note was no admission by the defendant of any indebtedness to the plaintiff. The bank was not plaintiff’s agent, but held the note in its own right. Defendant’s money, when he paid, did not go to the plaintiff but to the bank. The payment was no admission of any facts except such as might have served as a defense to the note if the defendant had refused to pay. And that he did not owe the plaintiff would not have been such a fact. Therefore, he did not admit his indebtedness to the plaintiff by paying this note. Judgment should be granted for defendant on the nonsuit, with costs, and motion for new trial denied.

Mayham, J.:

I concur; the giving of the note was not in itself an acknowledgment of an unpaid balance not included in it. If any inference is to be drawn from it, it is that the note was prima facÁe evidence of a settlement, and that the note represented the amount found due. But if this presumption does not apply, still it could at most only be used as an admission of indebtedness at the time of its delivery. As the note was negotiable at the bank, by indorsement, and became the property of the bank before payment, the payment by defendant to the bank cannot, it seems to me, be treated as a payment on the account so as to amount to an acknowledgment of any other indebtedness from the maker to the payee at that time. Again, as the evidence does not show when the note was paid, there is no affirmative proof that the note even was paid within six years before the commencement of the action.

Landon, J.

(dissenting):

The note for $300 was given more than six years before the action was commenced, but it was paid within the six years. The giving of the note was an acknowledgment as of the date when given. The statute (Code Civil Pro., § 395), provides that an acknowledgment or promise, contained in a writing, signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract, whereby to take a case out of the operation of this title.” "What we need, therefore, is a new or continuing contract.” The original one is too old tó be valid. If we have a new one we can see whether that is not recent enough, and we can only determine that by ascertaining the date it was made. Such seems to be the tendency of the decisions in this State. (Kincaid v. Archibald, 73 N. Y., 189; Smith v. Ryan, 66 id. 352; McCahiil v. Mehrbach, 37 Hun, 504; Chace v. Higgins, 1 T. & C., 229.)

The giving of the note postponed the statute of limitations, upon the amount stated in the note, but it did not, unless paid, postpone it upon the residue of the indebtedness. This was held in Smith v. Ryan (supra), in a case in which the debtor gave the note, yet to become due, of a third person.

Gowan v. Forster (3 B. & Ad., 507) was the case of a draft drawn by the debtor upon his consignees in favor of his creditor and delivered to the latter. Turney v. Dodwell (3 E. & B., 136) was a similar case. It was held in these cases that the acknowledgment was of the date of the drafts and not of the day of payment. Both cases are cited with approval in Smith v. Ryan. Irving v. Veitch (3 M. & W., 90) was to the same effect.

Was the payment by the defendant at maturity of the note of $300 to the bank a payment of money upon the whole debt to the plaintiff ? If so, then it was a recognition of the residue of the debt not embraced in the note, and the statute would begin to run from the date of the payment. The cases last above cited are to the effect that when the debtor gives in' part payment a note or draft of a third person payable at a fatare day, the payment thereof by the third person is not the payment of the debtor, and, therefore, does not affect him. The reasoning of the cases seems to proceed upon the theory that if the payment can be traced to the original debtor, he may be regarded as paying upon the original obligation. (See, also, Harper v. Fairley, 53 N. Y., 442; Fowler v. Clearwater, 35 Barb., 143.)

The note was given as a conditional part payment of the entire demand. By it the defendant may be considered as promising to pay three months afterwards $300 upon the entire claim. He paid no less to the plaintiff, because the plaintiff had indorsed the note and transferred it to the bank. Payment to the bank was practically payment to plaintiff. It satisfied his liability upon his indorsement.

We think a new trial should be granted, costs to abide event.

Judgment affirmed with costs.


author: Landon, J. :

text:
    SAMUEL PRUYN and Others, Appellants, v. EUGENE LYNCH, Respondent.

      Code of Civil Procedure — when costs im, an action commenced before tts passage are • not affected by it.

    Or September 1, 1880, au appeal was pending in a County Court, taken by the defendant from a judgment recovered in a Justices’ Court, for forty dollars and six cents damages and five dollars costs, tlie defendant demanding a new trial and claiming in bis notice of appeal that the judgment should have been more favorable to him, in that it should have been against him for only ten dollars and costs, and also that it should have been in his favor for costs. ISTo offer to allow judgment to be taken was made by either party within fifteen days thereafter. In May, 1886, the plaintiffs served an offer to allow a judgment to be taken against them wholly reversing the judgment, without costs, which the defendant refused to accept. Upon the trial in the County Court the plaintiffs recovered a judgment of thirteen dollars and ninety-three cents.

      Held, that as the action was commenced before September 1, 1880, the costs upon appeal were governed by the provisions of the Code of Procedure, and not by those of the Code of Civil Procedure.

      Atkina. Pitcher (31 Hun, 352) followed; Gfariing v. Ladd (2?,Hun, 112) criticised and doubted.
    That as the judgment obtained was not more favorable to the defendant thaD the judgment offered, the plaintiffs were entitled to costs from the time that the offer was made, under subdivision 5 of section 366 of the Code of Procedure.
    Appeal from, an order made at Special Term and entered in Warren county, refusing costs to the plaintiffs and affirming the clerk’s taxation in favor of the defendant.
    On the 1st of September, 1880, an appeal was pending in the County Court in this action. Judgment had been obtained by the plaintiffs in the Justice’s Court for forty dollars and six cents damages and five dollars costs. The defendant had appealed to the County Court and had demanded a new trial. In his notice of appeal, the defendant claimed that the judgment should have been more favorable to him, in that it should have been against the defendant for only ten dollars and costs; also that it should have been in defendant’s favor for costs. No offer to allow judgment was made by either party within fifteen days thereafter. In May, 1866, the plaintiffs served an offer on defendant to allow judgment to be taken against them, wholly reversing the judgment, without costs. Defendant refused to accept the offer. The action was then certified by the county judge to the Supreme Court and was tried at the Warren County Circuit in September, 1886,. when plaintiffs recovered a verdict for thirteen dollars and ninety-three cents. Each party claiming costs, they were awarded to the defendant.

      L. M. Brown, for the appellants.

      H. A. Howard, for the respondent.
   Landon, J. :

As this action was commenced before September 1,1880, the costs upon appeal are governed by the old and not by the new Code. (Atkin v. Pitcher, 31 Hun, 352.) It is remarked in this case that (Garling v. Ladd 27 Hun, 112), holding that the new and not the old Code governed the costs in a case like this, must be regarded as overruled by the Court of Appeals. (In Matter of Weston, 91 N. Y., 501.) Be that as it may, a re-examination of the question convinces us that full force was not given to subdivision 11 of section 3347, Code of Civil Procedure, in Garling v. Ladd. That subdivision provides: “ So much of chapters * * * 19, * * * as regulates the proceedings to be taken in an action or special proceeding and the effect thereof, applies only to an action or a special proceeding commenced on or after the 1st day .of September, 1880.” Chapter 19 of the Code of Civil Procedure regulates the proceedings to be taken in an action in a Justice’s Court, including appeals, and prescribes the effect thereof ” upon the right to costs, and hence cannot affect such right in this case. This subdivision also excludes so much of chapter 19 as regulates the proceedings in this action. Such proceedings must, therefore, be regulated by the old Code, or be without statutory regulation. It was undoubtedly .the intention by the saving clauses in the Code of Civil Procedure sections 3349, 3352, and of the repealing act, chapter 245, Laws of 1880, section 3, to continue the provisions of the old Code in force with respect to actions and proceedings and the effect thereof, to which the new Code, by express words, was made inapplicable.

The plaintiffs did not accept the privilege given them by section 371 of the old Code, to offer to correct the judgment in any of the particulars mentioned in the notice of appeal, but did avail themselves of the privilege given them by subdivision 5 of section-366 of the old Code. This subdivision provides that either party may at any time before trial, serve upon the opposite party an offer in writing to allow judgment to be taken against him * * * to the effect in such offer specified, and with or without costs.” The section further provides that in case the party to whom such offer be made shall not accept it, and shall fail to obtain a judgment more favorable to him than the judgment offered, he “ shall not recover costs, but must pay the other party’s costs from the date of the service of the offer.”

Here the appellants failed to obtain a more favorable judgment than the respondent offered them. The respondent offered, in effect, to waive all recovery, and recovered thirteen dollars and ninety-three cents. We must compare results without including costs in order to determine which party is entitled to costs..

It follows that the appellant “ shall not recover costs, but must pay the other party’s costs from the date of the service of the offer,” namely, May 11, 1886.

The same result would follow, if we give force to the proceedings taken under the old Code before September 1,1880, and regard the new Code as applicable to the subsequent practice and the respondent’s offer of judgment made under section 3072.

The order of the Special Term is reversed, with ten dollars costs and printing disbursements, and costs of the appeal in the court below are allowed the plaintiffs from May 11, 1886, to be taxed under the Code of Procedure.

Parker, J., concurred; Learned, P. J., not acting.

Order of Special Term reversed, with ten dollars costs and printing disbursements and costs of appeal in courts below allowed plaintiffs from May 11, 1886, to be levied under Code of Procedure.


author:
Landon, J.:
      Learned, P. J.

text:
    ELLEN M. VEDDER, Respondent, v. OLIVER R. LANSING, Appellant.

      Issue of execution upon a judgment recovered, in a Justice's Court and docketed in two counties — execution may be issued by the clerk of either county.

    On January 29, 1876, the plaintiff recovered a judgment against the defendant for $200, a transcript of which was filed and the judgment docketed in the Pulton county clerk’s office on January 29, 1876. On February 1,1876, a transcript of the Pulton county judgment was filed and the j udgment was docketed in Saratoga county. The county judge of Pulton county having, in 1886, made an order permitting the plaintiff to issue execution upon the said judgment, an execution was, on August second of that year, issued by the county clerk of Pulton county to the sheriff of Saratoga county, the county in which the judgment debtor resided.

      Held, that the Pulton county judge could make the order, and the Pulton county clerk could issue the execution, although it might have been properly issued by the Saratoga county clerk. (Learned, P. J., dissenting.)
    Appeal from an order of the Fulton county judge, denying a motion made to vacate an order made by him requiring the defendant to answer upon examination before a referee concerning his property. Plaintiff obtained judgment against the defendant before a justice of the peace of Fulton County January 29, 1876, for $200. A transcript was filed, and the judgment docketed in the Fulton county clerk’s office January 29, 1876. A transcript of the Fulton county j udgment was filed, and the j udgment was docketed in the Saratoga county clei’k’s office February 1,1876. The affidavit upon which the order for examination was granted recites that an execution against the property of the judgment debtor was duly issued August 2, 1886, out of the Fulton County Court and delivered to the sheriff of Saratoga county, the county in which the judgment debtor resided; that the judgment debtor has property which he unjustly refuses to apply upon the judgment.
    It did not appear upon the motion that any order had been granted allowing execution to issue in 1886, but a certified copy of such an order made by the county judge of Fulton county was presented upon the argument in this court.

      Emmett Blair, for the appellant,

      John M. Gardner, for the respondent.
   Landon, J.:

The justice’s judgment became a judgment of the Fulton County Court. (Code Civil Pro., § 3017.) "When the transcript was filed and the judgment docketed in Saratoga county, it had the like effect with respect to the enforcement thereof, as if it had been rendered by a justice of the peace of the latter county, except that application for leave to issue an execution would need to be made in the Fulton County Court. (Sec. 3022.) The county clerk issues the execution. (Sec. 3017.) The execution was properly issuable by the Saratoga county clerk. (Secs. 3022, 3043), and was returnable to his office. (Sec. 1367.) But the Fulton county clerk might also issue it. (Sec. 347.) This order was made under section 2436. The Fulton county judge could make it. (Sec. 772.) The objection that there was no order for leave to issue the execution in 1886, is now obviated by the presentation of the order granting leave. As it appeared from the affidavit that more than five years had elapsed before the issuing of the execution, the affidavit was no doubt defective in not showing leave granted. (Hutson v. Weld, 38 Hun, 142.)

The order should be affirmed, but without costs.

Mayham, J., concurred.

Learned, P. J.

(dissenting):

It seems to me that sections 3022, 3043 show that the execution should have been issued by the clerk of Saratoga county to the sheriff of that county, and not by the clerk of Fulton county. I do not think that the general language of section 347 should be construed to affect these sections subsequently passed and having a special reference to the matter in question. The Code of Procedure (§ 64, sub. 13) was to the same effect, and it is improbable that it was intended that an execution, in such a case as this, might be issued by either of two county clerks.

Further, what official knowledge would the clerk of Fulton county have of the fact that the transcript had been filed and the judgment docketed in Saratoga county, and of the time of such docketing and filing ? If a county clerk is to issue an execution (as he must in the case of a justice’s judgment), he must have official knowledge of the facts which are to be stated in the execution. And that the clerk of Fulton county could not have had, when he issued an execution to the county of Saratoga, based upon the docketing of the judgment in Saratoga county. There is nothing in section 1665 which helps the plaintiff. I do not think there is any other defect in the proceedings. But this appears to be fatal.

The order should be reversed and the order to examine defendant set aside, but without costs.

Order affirmed, without costs.


author: Landon, J.: Learned, P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK v. PATRICK McDONALD.

      Game laws — right of the disti'ict attm'ney to bring an action to recover a penalty for a violation of such laws in a county adjoining his own — ] 888, chap. 317, sec. 1.
    Under the provisions contained in section 1 of chapter 317 of 1883, an action to recover the penalties imposed for a violation of the game laws may, upon the request of a game protector, be brought by any district attorney where the offense was committed in his county, or in an adjoining county. (Learned, P. J., dissenting.)
    The question as to whether any district attorney could begin such an action in any county except his own, or for penalties incurred in other than his own or an adjoining county, not decided.

      Appeal from an order of a Special Term entered in Saratoga county denying a motion to dismiss the complaint.
    The action was brought to recover certain penalties under the game laws. The defendant is charged with having had on the 20 th of April, 1886, in his possession in Saratoga county certain speckled trout, after they had been caught, contrary to section 19 of chapter 534 of the Laws of 1879 as amended by section 1 of chapter 124 of the Laws of 1886. The action was commenced by the district attorney of the county of Fulton, which county adjoins Saratoga county, and the place of trial was laid in Fulton county. The action was commenced upon the request of the game protector of the eighth game district.
    The motion to dismiss was made upon the ground that the district attorney of Fulton county was not authorized to bring the action for a penalty incurred in Saratoga county.

      Charles C. Lester, for the appellant.

      C. M. Parlce, for the respondent.
   Landon, J.:

Section 19 of chapter 534 of the Laws of 1879, as amended by chapter 124, Laws of 1886, provides that no person shall have in his possession after the same has been caught, any speckled trout, save from May first to September first in each year, except in certain counties, among which Saratoga and Fulton are not included.

Any person violating this provision is liable to a penalty of twenty-five dollars for every such trout so had in his possession.

Chapter 317 of the Laws of 1883, section 1, authorizes the appointment of game protectors, whose duty it is, among other things, to bring or cause to be brought, actions in the name of the people to recover these penalties. It further provides, “ such actions may be brought in the name of the people in like cases, in the same courts, and under the same circumstances as they might now, or may hereafter be brought by any individual, under or by virtue of any existing or hereafter enacted statutes for the protection of deer, game and fish, or any of them. * * * The district attorney of any county of this State shall, upon the request of any one of such protectors, commence and prosecute to termination, in the name of the people, actions and proceedings against any person reported to him by such protector to have violated any such statute or laws, for the recovery of the penalty for violation thereof.” Section 33 of chapter 534, Laws of 1879, provides that all penalties imposed by this act may be recovered with costs of suit by any person in his own name,' * * * before any justice of the peace in the county where the offense was committed, or in an adjoining county, when the amount does not exceed the jurisdiction of such justice. * * * And such penalties may be recovered in like manner in any court of record in the State.”

It thus appears that the penalty may be recovered in an action brought in the name of the people by any district attorney, upon the request of the game protector in the county where the offense was committed, or in an adjoining county, either before a justice of the peace, when the amount does not exceed his jurisdiction, or in any court of record. (See Leonard v. Ehrich, 40 Hun, 460.)

The argument of the learned counsel for the appellant is to the effect that the district attorney is by statute the prosecuting officer for offenses committed and .penalties incurred within his own county. However true that may be, as a general rule, it will be seen (chap. 317, § 4, Laws of 1883), that for the preservation of game, the State is to be divided into protection districts, and the district attorney of any county may become a prosecuting attorney at the request of the game protector for the district.

It was competent for the legislature to impose the duty upon existing county officers. Whether any district attorney could begin such an action in any county except his own, or for penalties incurred in other than his own or an adjoining county, we are not now called upon to decide.

Order affirmed with ten dollars costs and printing disbursements.

Mayham, J., concurs and adds:

By section 33 of chapter 534, Laws of 1879, actions for penalties under that act may be prosecuted before a justice of the peace of the county where the offense was committed or in an adjoining county, when the amount does not exceed the jurisdiction of a justice and when it exceeds in amount the jurisdiction of a justice * * * such penalties may be ’ recovered in like manner in any court of record of this State * * * and it shall be the duty of any district attorney in this State, and he is hereby required to ' prosecute or commence actions in the name of the people for the recovery of the penalties allowed hereby. This language, it seems to me, is too broad to be restricted to prosecutions by district attorneys in their own counties; but extends their authority to prosecute to adjoining counties; whether beyond that, is not necessary to inquire in this case.

Learned, P. J.

(dissenting):

The question here arises on the construction of chapter 317, Laws of 1883, which, in the respect in question, is like chapter 591, Laws of 1880. Section 1 says : “ The district attorney of any county of this State shall, upon the request of any one of such protectors, commence and prosecute to termination, in the name of the people, actions and proceedings against any person reported,” etc. “ All money necessary for witnesses’ fees * * * shall * ■ * * be advanced by, and all money, except costs * * * recovered, * * * shall be paid to the treasurer of the county in which the actions * * * shall have been commenced.”

The question is, whether this means that the district attorney of every county in the State may commence an action for violations occurring in every other county, in which he is requested by a game protector to bring such an action; or does it mean that every district attorney must, on request, bring such an action for violations •occurring in his own county? The plaintiff insists on the former; the defendant on the latter. Either is possible, and we must judge which is intended from other things than the mere words in this statute. There is no doubt that the district attorney is a county officer; that he is to reside in his county; that his salary is paid by the county; that he is to attend the courts of his county, and specially that he is to prosecute for penalties incurred in his county. (1 E. S., m. p. 383, § 91.) When his salary is fixed, he is to pay to the county treasurer of his county all moneys received for judgments, fees and costs. (Laws 1852, chap. 304, § 6; see, also, Code Civil Pro., § 1968.) It is plain that the general scope of the duties of • district attorneys is confined to their counties, and the moneys collected by them go to the county treasurers of their respective counties. Now, if we take this general system and apply it to the construction of this statute, we shall find everything harmonious. It will be the duty of each district attorney, on the request of a game protector, to prosecute and recover penalties for violations of the game laws which have occurred within his county. If chapter 317, Laws of 1883, gives him the right to bring an action in the name of the people for these penalties in an adjoining county to that in which the violation occurred, then he may prosecute within his own or an adjoining county (I do not understand that this was necessarily decided in Leonard v. Ehrich, 40 Hun, 460) but he can go no further. The special authority (if it be given) to prosecute in an adjoining county to that where the offense is committed does not make him the prosecuting officer for offenses committed in all parts of the State. If the plaintiff’s construction is right, then the district attorney of (say) Pulton county may commence suits in the name of the people in the city of New York, to collect penalties for violations of the game laws committed in that city ; and, on his mere requisition, the county treasurer of that county (the chamberlain) must advance all money necessary for witnesses’ fees and disbursements. Now, I cannot think that a construction is correct which permits the prosecuting officer of one county thus to take on himself the enforcement of the law for offenses committed in another county, and to call on the treasurer of such other county for all the money he may deem necessary for witnesses’ fees and disbursements. Suppose the language of the statute had been, “district attorneys shall upon the request,” etc., it would have been understood that the duty, of each was limited to offenses within his own county. I think the words used have the same meaning. If the meaning was intended which the plaintiff takes, then the language would have been more explicit; and it would have said that any district attorney might prosecute for violations committed in his own or in any other county of the State. A provision so contrary to the general scope of our legal system would have been unmistakably expressed.

I think, therefore, that the order should be reversed and motion granted. (Comr. Excise v. Purdy, 13 Abb., 434; Town of Lyons v. Cole, 3 T. & C., 431.)

Order affirmed, with ten dollars costs and printing disbursements.


author: Landon, J.:

text:
    NATHAN CRAWFORD, as Administrator, etc., of HANNAH CRAWFORD, Deceased, Appellant, v. MARY E. HAINES, Respondent.

      Evidence — when a plaintiff may testify as to a transaction between the deceased, and the defendant— Code of Civil Procedure, sec. 829.
    Upon the trial of this action, brought to recover of the defendant money alleged to belong to the plaintiff’s intestate,' it was proved that one Covenhoven, who owed the intestate $485, paid the money to the intestate, at her house, by laying the same upon a table before her, in the presence of both plaintiff and defendant. The plaintiff was called as a witness in his own behalf, and was asked: “ Can you state whether after that payment was made by Covenhoven, Mary, the defendant, made any disposition of that money, and if so, what?” and his counsel stated that the purpose of the question was to prove that the defendant took the money and put it in her bed-room.

      Held, that the court erred in refusing to allow the witness to answer, as it did not appear that the transaction as to which the witness was to testify was a transaction between her (the plaintiff) and the deceased person, but was in fact one between the defendant and the deceased.

      Simmons v. Havens (101 N. Y., 427); Cary v. White (59 id., 836) followed; Holcomb v, Holcomb (95 N. Y., 316) distinguished.
    Appeal from a judgment in favor of the defendant, entered in Albany county, upon the report of a referee.
    The plaintiff, among other things, sought to recover of defendant $485, which the complaint alleged belonged to his intestate, and which, coming into the possession of the defendant, she converted to her own use. The referee found that no demand had been made of the defendant before action brought and reported in favor of the defendant. The only question urged upon the appeal is stated in the opinion.

      N. P. Simmam,, for the appellant.

      J. H. Gl/ute, for the respondent.
   Landon, J.:

The intestate, Hannah Crawford, was the mother of these parties. The defendant resided with her. One Covenhoven, owed the intestate $485, and paid her the money at her house by laying the same upon a table before her in the presence of both plaintiff and defendant These facts having been testified to upon the trial, the plaintiff, upon direct examination, as a witness in his own behalf was asked, can you state whether, after that payment was made by Covenhoven, Mary, the defendant made any disposition of that money, and if so, what ? His counsel stated that the purpose of the question was to prove that the defendant took the money and put it in her bed-room. The defendant objected, that what was done there must have been done by the consent and direction of the intestate, and that the plaintiff is incompetent under section 829, Code of Civil Procedure The objection was sustained, and the plaintiff excepted. We think this was error. If the defendant took the money and put it in her bed-room this may have been a transaction between the defendant and the deceased, but the case does not show that it was a transaction between the witness and the deceased. As the case stood he was merely a passive and nonparticipating witness of the transaction, and therefore not within the exclusion of this section of the Code. (Simmons v Havens, 101 N. Y., 427; Cary v. White, 59 id., 336)

We are referred to Holcomb v. Holcomb (95 N Y., 316), as authority for the ruling. The court there says, that any transaction with the deceased, in which the witness in any manner participated is excluded. There is no evidence here that the witness did m any manner participate. The sole evidence given upon this subject was, that he also was present when the money was paid by Covenhoven. The testimony called for, relates to the action of the defendant. It is possible that plaintiff’s further examination would have shown his participation, but we do not know. As it was, his testimony was competent, and for aught we know, might have established the conversion, the failure to prove which, defeated the plaintiff.

The judgment must be reversed, the reference discharged, a new trial granted; costs to abide the event.

LeaeNed, P. J., Mayham, J., concurred.

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