author: Tatcott, P. J. :

text:
    BESSIE MORRISON v. JAMES MORRISON, Appellant, and ALEXANDER MORRISON and ELLEN MORRISON, Respondents.

      Notice to limit ajypeal wider Code, § 332 — limits appeals by one defendant against his co-defendant.

    In this action, brought by a judgment-creditor of one defendant to set aside as fraudulent a conveyance made by him to another defendant, the plaintiff recovered a judgment, which was entered and notice thereof served, under section 332 of the Code, upon the attorney who had appeared in the action for all the defendants.

      Held, that the service of the notice limited the time to appeal, not only as against the plaintiff, but also as to an appeal by one defendant as against his co-defendant.
    Appeal from a judgment, entered upon the report of a referee.

      W. H. Whiting, for the appellant.

      J?. M. Orandall, for the respondents.
   Tatcott, P. J. :

This is an appeal by James Morrison, one of the defendants, from so much of the judgment in this case, as orders the surplus, if any, after payment of a judgment in favor of the plaintiff, and the costs, etc., of this action out of the proceeds of the sale of certain real estate situate on Graham street in the city of Rochester, to be paid to Alexander Morrison, another of the defendants.

The action was a creditor’s suit, commenced in August, • 1872, by the plaintiff Bessie Morrison, who had recovered a judgment against the defendant J ames Morrison, in the Supreme Court, for the sum of $404.32 damages and costs, and upon which an execution was returned unsatisfied by the sheriff of Monroe county, upon a cause of action which originated prior to the time when a certain conveyance of real estate on Rowe street, in the city of Rochester, was made by the said James Morrison, to his son Alexander Morrison, without other than a parol agreement, whereby the said Alexander agreed to pay to tire said J ames and wife, for their support during their lives and the life of the survivor, the weekly sum of five dollars per week.

The action was referred to the late Hon. SaMuel L. SeldeN, before whom the same was tried, and he reported that the said conveyance was fraudulent, as intended to hinder, delay and defraud creditors of the said James Morrison; but it appeared that soon after the conveyance of the Rowe street property to Alexander Morrison in pursuance of the fraudulent agreement between himself and James Morrison, Alexander Morrison conveyed the said Rowe street property to Mary Ray, and she, in consideration of the conveyance of the Rowe street property, together with her husband and one John Kline, in pursuance of the agreement between James and Alexander Morrison, conveyed a certain house and lot situated on Graham street, in Rochester, to J ames Morrison and wife, for the term of their natural lives, with remainder to the said Alexander Morrison, in fee. And Alexander Morrison further to secure the performance of the agreement to pay the said five dollars per week for the support of the said James and Bridget his wife, executed with Ellen, the wife of the said Alexander, a mortgage for the nominal sum of $2,000, but specifically conditioned for the support, as aforesaid, of the said J ames and Bridget Morrison.

The referee found the conveyance of the Rowe street property to be fraudulent as against the plaintiff, and that she had an equitable lien for the payment of her judgment debt against the Graham street property, which had been conveyed to said James and Bridget for life, with remainder to Alexander in fee, in consideration of his conveyance of the Rowe street property to Mary Ray, and the referee directed that the plaintiff should be at liberty to apply to the court for the appointment of a receiver, whose duty it should be to sell the Graham street property at public auction, and out of the proceeds to pay, first, the expenses attending the receivership, sale, etc.; and, second, the amount due to the plaintiff on her said judgment, and the judgment for costs in this case; and, third, the residue, if any, to the defendant Alexander Morrison, and a judgment was entered in accordance with the said report on the 14th day of July, 1873. The appeal of the defendant James Morrison is brought from so much of the judgment as directs the payment of the surplus, if any, to Alexander Morrison.

The receiver was appointed and the property was sold, the plaintiff paid in lull out of the proceeds, and a surplus was left in the hands of the receiver of upwards of $800.

This appeal was brought by James Morrison on the 28th day of June, 1877. At the last January Term of this court, the attorney for the defendants, Alexander and Ellen Morrison, made a motion to dismiss the said appeal, upon the ground that the time for appealing had expired before the said appeal was brought.

The judgment, from a portion of which the appeal is brought, it will be perceived, was entered on the 14th day of July, 1873. The motion to dismiss the appeal was by this court at the last January Term ordered to stand over and be heard at the same time with the appeal itself, and at the last October Term, the said appeal of James Morrison from that portion of the judgment appealed from by him, and the motion to dismiss the said appeal, were submitted by the counsel for the respective parties.

The defendants originally appeared by the same attorney, but the appeal is brought by the said James Morrison by a new attorney.

It appears, and is conceded, that, on the 14th day of July, 1873, the plaintiff’s attorney, for the purpose of limiting the time to appeal, under the 332d section of the Code of Procedure, served notice of the judgment upon the attorney for all the defendants. The said section 332 provides that “ the appeal allowed by the fourth chapter of this title must be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing.” It is to be observed that there is a marked difference between the language here used and that used in section 327, which provides for a notice of appeal. In the latter section, it is provided that an appeal must be made by the service of a notice in writing on the adverse party, etc., and under that section it has been held in several cases that a notice of appeal must be given to the party who is interested in sustaining the judgment, or such part thereof as is appealed from. Such are the cases cited by the counsel for the appellant on his points made in opposition to the motion to dismiss the appeal (Cotes v. Carroll, 28 How. Pr., 446; Hiscock v. Phelps, 2 Lans., 106, and Thompson v. Ellsworth, 1 Barb. Ch. Rep., 624), in which it was held, in substance and effect, that the adverse party, within the meaning of the statute, was the party whose interest in relation to the subject of the appeal is in conflict with the reversal of the order or judgment appealed from;, and, as applicable to the case at bar, the notice of appeal, to be effectual, must be given to Alexander Morrison.

The requisition of a written notice of the judgment, in order to limit the time within which it may be appealed from is a feature of the Code of Procedure, which, except as to interlocutory orders and decrees of chancery, introduces a new practice. Before the Code, a writ of error must have been brought within two years after the rendering of the judgment, and an appeal from & final decree of the Court of Chancery must have been brought within the same time (2 R. S., 594, § 21; 2 id., 605, § 78), and appeals from other orders of the Court of Chancery within fifteen days “after notice thereof shall have been given to the party against whom such order or decree shall be made or to his solicitor.” (2 R. S., 605, § 79.) It appears, therefore, that in cases where, before the Code, the time for appealing was limited by a notice, there was no provision that the notice must proceed from the adverse .party; but it was sufficient if the notice was given to the party against whom the order or decree was made. The same regulation, in substance, was adopted by the Code of Procedure in regard to the limitation of the time to appeal under the 332d section, and the marked difference between the phraseology of section 327 of the Code and section 332 can scarcely be deemed to have been accidental, but'seems to have had a purpose. This purpose was, as it seems to us, only to secure a notification to the party against whom a judgment has been rendered or appealable order made, of the fact that such judgment has been rendered or order made, in order that parties may not be surprised in cases where so short a time is allowed within which to appeal.

In other cases, where a writ of error or appeal might be brought within two years after the rendering of the- judgment, this provision was continued by the Code of Procedure as to final judgment, with the addition that the judgment must be perfected by filing the judgment-roll. (Code of Procedure, § 331.) This provision as to an appeal to the Court of Appeals is continued in the Code of Civil Procedure, except that the time to appeal from a final judgment is thereby reduced to one year after final judgment. (Code of Civil Procedure, § 1325.) In several cases the question has been raised, as to whether an appeal from an order was in time, and it has been always held that when the time was limited by statute, the court had no jurisdiction to entertain the appeal after the statutory limitation had expired.

The contention of the appellant's counsel is, that notice of the judgment should have been given in behalf of Alexander Morrison to James Morrison, in order to limit the time within which James might appeal from the judgment. No authority is referred to sustaining this position, and after diligent search none has been discovered by the court; and from the difference in the phraseology of the two sections of the Code of Procedure referred to (§§ 327 and 332) we think the proposition of the appellant’s counsel cannot be sustained. If the appeal was from a final judgment of the General Term to the Court of Appeals it could not, as we have seen, have been brought at the time when it was, in consequence of the expiration of two years after the entry of judgment. The intention of the Legislature was to limit the time within which an appeal might be brought to the General Term to a shorter period of time, where there has been notice given of the judgment, such as that the party appealing has been apprised of the fact that a judgment has been entered against him in the action; and we think a notice from the plaintiff's attorney to the attorney for the defendant appealing is all that the Code requires. The defendant is by such notice called upon to ascertain whether any portion of the judgment is ei’roneous, and is bound to appeal within the time prescribed by the statute, if at all. Our conclusion, therefore, is, that the motion made on behalf of the respondent, Alexander Morrison and wife, to dismiss the appeal of James Morrison, must prevail.

The fact that a motion was made at a Special Term to dismiss this same appeal, and there deified, is no bar to the motion now made here. The Special Term had no authority to dismiss an appeal to this court. (Barnum v. Seneca County Bank, 6 How. Pr., 82; Harris v. Clark, 10 How., 415; People ex rel Larocque v. Murphy, 1 Daly, 462.)

It is to be presumed that the Special Term denied the motion on this ground.

The appeal should be dismissed, without costs to either party.

Smith and Hardin, JJ., concurred.

Appeal of James Morrison dismissed, without costs to either party.


source: Caselaw Access Project

author: Taloott, J.:

license: Public Domain

text:
    BENJAMIN W. FOLGER, and M. N. FOLGER, Respondents, v. JOHN B. WEBER, Appellant.

      Chattel mortgage on vessel — sufficient, if recorded as required by the act of Congress.

    A chattel mortgage on a vessel, which is duly recorded in the office of the collector of customs of the port where the vessel is registered, as required hy the act of Congress, is valid, although the formalities required hy the State laws, as to the execution and recording of such instruments, have not heen complied with.
    Nor is the validity of such a mortgage so recorded affected hy the fact, that hy the laws of the State where the parties reside or the vessel is registered, a failure of the mortgagee to take possession, within a specified period after default has heen made, renders the mortgage fraudulent pei• se.

    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.

      Delavan F. Olarlc, for the appellant.
    At the time of the execution of such mortgage, this schooner being within the State of Illinois (and at her home port), formed a part of the property and wealth of the State of Illinois, and was therefore subject to the law of that State. (Wharton on Conflict of Laws, § 357; Kelly v. Orapo, 41 Barb., 603; Kellys. Chapo, 16 Wallace, 610; 35 Barb., 663; Thomas v. The Kosciusko, 11N. Y. Leg. Ob., 38.) Thestatute of the United States requiring the recording of mortgages did not operate to nullify the common law then existing relating to fraudulent sales of chattels. Its only effect was to add another to the grounds which previous to that statute might avoid the mortgage. (Woodr. Levy, 17 Wend., 492; Smith v. Acker, 23 id., 671, opinion of Verplank Senator.)

      George Clinton, for the respondent.
    The plaintiff's mortgage having been recorded under the act of Congress, the fact that they did not take possession of the vessel, even after default, could not invalidate their ownership. (Scott’s Case, 1 Abb. [U. S.] R., 336, 342; The Skylark, 2 Bissell, 251; The Grace Greenwood, 2 id., 131; The Barque Great West, 57 Ill., 168; The Prop. Hilton, 62 id., 231; Wood v. Stockwell, 55 Maine, 76; White’s Bank v. Smith, 7 Wall., 646; Aldrich v. AEtna Ins. Co., 8 id., 491; 2 Pars, on Shipping, 60, 61, noto 1 to p. 61.)
   Taloott, J.:

This is an appeal from a judgment entered for the plaintiff on the report of a referee.

The action was to recover the possession of a schooner which the defendant, as sheriff of Erie county, seized under an attachment issued to him against the property of Thomas O’Conner, in an action brought against him by James Bowen. The case shows that O’Conner was indebted to Bowen in a large sum upon a judgment recovered in the State of Illinois.

On the 13th of December, 1875, Bowen commenced his action^ in the Supreme Court of New York upon the said'judgment, in which action he procured an attachment, under which the sheriff of Erie county seized the vessel in question, then lying in the harbor of Buffalo. The plaintiffs claimed the title and right to the possession of the vessel under a mortgage of the vessel executed by O’Conner, the owner, to secure an indebtedness to the plaintiff. The mortgage was didy filed in the office of the collector of the port of Chicago, October 26, 1874, and was given to secure two notes made by O’Conner, both of which matured prior to the 15th day of October, 1875. The notes were made and payable in the State of Illinois, of which State both O’Conner and Bowen are residents.

The mortgage contains a provision to the effect that the mortgagor is to remain in possession and use of the vessel until the maturity of the notes, unless the mortgagee shall, at any earlier date, declare the mortgage forfeited for non-performance of any of the covenants contained in the mortgage ; or, if the mortgagee shall deem himself in danger of losing the debt, or any part thereof, by delaying the collection thereof until the expiration of the time above limited for the payment thereof.

The mortgage was dated the 24th day of October, 1874, and duly acknowledged before a notary public in Chicago on that day. Chicago was the home port of the vessel, and she was lying there some five or six days after the maturity of the last due of the notes which the mortgage was given to secure, during which time the mortgagees had reasonable time and opportunity to have taken possession of the' vessel, had they been so disposed. Both of the notes secured by the mortgage were given at Chicago for an indebtedness originating there, and the mortgage was given in good faith for a valuable consideration, and without any intent to hinder, delay or defraud any creditor. The mortgage was duly recorded in the office of the collector of the port of Chicago, on the day of its date, pursuant to the act of Congress of July 29, 1850, and the vessel remained enrolled at the port of Chicago, and was regularly licensed and engaged in the commerce of the lakes until she was seized by the defendants under the attachment in the suit of Bowen v. O’Conner, which was on the 13th day of December, 1875.

The mortgage had never been filed or recorded in the office of the recorder of Cook county, Illinois, as required by the provisions of the statute of Illinois.

It was proved that, by the common law, as established and adjudicated by the court of Illinois, every mortgage of chattels, not accompanied by the possession of the chattels, is void as to the creditors of the mortgagor, who, in due time, acquire a lien on the chattels; but that, when a mortgage has been regularly executed and recorded, which gives the mortgagor a light to the possession for a specified time, as required by the statute of that State, the protection of the statute does not extend beyond the specified time; and if the mortgagee suffers and permits the mortgagor to retain the possession after the expiration of that time, the mortgage becomes void as to the creditors of the mortgagor.

By an act of Congress, passed July 29, 1850 (R. S. of the U. S., § 4192), it is enacted as follows: “No bill of sale, mortgage, hypothecation or conveyance of any vessel or part of any vessel of the United States, shall be valid against any person other than the grantor or mortgagor, bis heirs, and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation or conveyance is recorded in the office of the collector of the customs where such vessel is registered or enrolled,” etc. The courts of the United States have held that this statute gives validity to a mortgage, otherwise free from objection, whatever may be the laws of the State where it is executed or where the mortgagee or mortgagor reside. In the case of White’s Bank v. Smith (7 Wallace, U. S., 646), it was held that the act of Congress “ has the effect by its own force and irrespective of any formalities required by the State statute, to give effect to chattel' mortgages, and to give the mortgagee a preference over a subsequent purchaser or mortgagee.” A fortiori then, it must be a lien superior to that of a subsequent attaching creditor. It is also held that the law provides a registration which excludes all State legislation in respect to the same subject.

The counsel for the appellant insists that by the laws of' Illinois, the domicile of the owner and the situs of the property, the mortgage, after default in payment, is deemed fraudulent per se as to creditors, by reason that it was not accompanied by possession of the property mortgaged. But, as we understand it, the Supreme Court of the United States, in the construction of •the act of July 29, 1850, has decided otherwise. In the case of Aldrich v. The Ætna Company (8 Wallace, U. S., 491), the Supreme Court holds the following language: “Asa registry act, there can be no doubt, upon the recording of the mortgage, the fact that it is not accompanied by possession of the vessel affords no ground of impeachment of the transaction, as the record is regarded as satisfactorily accounting for the non-delivery of the possession.” This, as we understand, goes the length of saying that whatever may be the law of the State, a vessel subject to the act of Congress may be mortgaged and the mortgage, when duly recorded in accordance with the act, cannot be impeached for want of possession in the mortgagee. The act of Congress contains no limitation of time during which the possession may lawfully remain in the mortgagor, and to import into it the limitation of time prescribed by the statute of Illinois would be to hold that the Legislature of Illinois could alter or set bounds to the effect of an act of Congress, passed on a subject over which Congress has, when it may see fit to exercise it, exclusive jurisdiction.

The judgment should be affirmed.

Mullin', P. J., and Smith, J. concurred.

Judgment affirmed.


author: Talcott, P. J. :

text:
    EDWARD W. SENTELL, Respondent, v. THE OSWEGO COUNTY FARMERS’ INSURANCE COMPANY, Appellant.

      Policy of insurance — -when condition against ineimbrances violated — when company bound by the knowledge and acts of Us agent.

    “While plaintiff was engaged in building a house an agent of the defendant applied to him, at the house, to insure it. The agent filled out the application. Among other questions put by the agent to the plaintiff, he asked if there was any incumbrance on the property. Plaintiff said no, but that he owed for materials, etc., and said he was going to incumber it to payoff these debts; and in answer to the question “how much,” said “he really did not know; not less than @1,000.” The agent inserted in the application that it was incumbered for $1,000, and the policy contained the same statement, and a condition avoiding it, if the incumbrances were increased without the company’s consent. The application was not read over to plaintiff. Subsequently plaintiff gave a mortgage on it for $1,200.
    In an action on the policy, held, that it was to be presumed that defendant meant, by its policy, to allow plaintiff to incumber the property, when the house was completed, for $1,000, and that the giving of a mortgage for a greater sum avoided the policy.

      Held, further, that even if the plaintiff were to be allowed to mortgage the property to an amount sufficient to pay the debts incurred in building it, it must be shown that such debts amounted to $1,200.
    The knowledge of a general agent of an insurance company is the knowledge of his principal.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      H. L. Howe, for the appellant.

      8. K, Williams, for the respondent.
   Talcott, P. J. :

This is an appeal from a judgment in favor of the plaintiff, recovered at the Wayne County Circuit, in December, 1876. The action was brought on a policy of fire insurance, originally issued to one William H. Sentell and by him, prior to the loss and with the consent of the company, assigned to the respondent. The defense rests upon two conditions contained in the policy. 1. A condition to the effect that if the dwelling-house insured should cease to be occupied in the usual and ordinary manner in which dwelling-houses are occupied, the policy should be null and void until the written consent of the company at the home-office should be obtained; and, second, that if the property should become incumbered after the making of the policy, without the written consent of the company, then it should be void; and also upon an alleged misrepresentation or warranty contained in the application to the effect that the title of the applicant was by deed.

One Claven was the agent of the defendant and applied to the party assured, when the dwelling-house insured was in process of construction, to take insurance thereupon in the defendant’s company. The agent Claven acted as agent of the company, and had appointed sub-agents and adjusted losses in its behalf. The party insured was not informed of or acquainted with any limitations upon his agency, but had a right to suppose him a general agent, with as full powers as are conferred upon and exercised by any agent of an insurance company. Claven filled up the application himself, asking William Sentell, the assured, some questions. Sentell told Claven, at the time the latter took the application, that he, Sentell, hold the title under a contract; that he should have a title to the premises when the building was completed, but at that time did not have the title:

The application was taken by Claven at the house, which was then unfinished and, as Claven knew and could see, unoccupied: On the question being read by Claven, How occupied ?” Sen-tell said that was a hard question to answer. Claven then asked Sentell, “ Are you going to occupy it, or some one else ?” Sen-tell then told him that Mr. Pussey would probably occupy the house. Claven also asked Sentell if there was any incumbrance " on the property. Sentell said there was not now, only he owed for the materials and mechanics for labor on it, and told Claven he was going to put an incumbrance on it for the purpose of clearing up these debts. Claven then asked him “ how much ?” and Sentell said “he really did not know; not less than $1,000.” Claven, the agent, then entered in the application, in answer to the question, “What title has the applicant of premises?” the word “deed,” and in answer to the question, “If incumbered, how and for what amount ?” $1,000; and that the premises were “ occupied by tenant as a dwelling.”

Sentell signed the application in pencil, but the same was not read to him, nor did he read it. It was not read over by either Claven or Sentell, and the application was in that form sent to the company which, in reply, issued the policy in question, and returned it with the name of Claven indorsed on it as agent, and without any intimation that his powers as agent were in any manner restricted, or that he was only a special and not a general agent.

Claven delivered the policy so indorsed to William II. Sentell, the insured. The testimony of Claven, the agent, and of Sentell, the insured, in regard to what passed at the interview when the application was made out, are substantially in accord. Though the representations made by Claven in the application were not according to the literal facts existing at that time, they wore doubtless intended by him to represent the facts as he supposed they would exist at, or soon after, the issuing of the policy. At all events the facts were truly stated by Sentell, and ho in fact knew nothing of the representations which Claven had inserted in the application.

It is held in Van Schoick v. The Niagara Fire Ins. Co. (68 N. Y., 434), that “ the information of the agent is the information of his principal.” Therefore, in judgment of law, the defendant in this case was informed that the premises were then, in fact, unoccupied; that Sentell’s only title thereto was an executory contract, and that he designed to place an incumbrance on the premises of not less than $1,000. In the face of this information, it goes on and issues the policy in question and receives the premium. The defendant must, therefore, be held to have waived-those conditions of the policy and application, which it knew weie not in accordance with tbe existing facts. See Van Schoick v. The Niagara Fire Ins. Co. (supra).

But the insured, Sentell, after the issuing of the policy, and while it was running, executed a mortgage of the premises to the Brooklyn Life Insurance Company, dated February 28, 1874, to secure the payment of $1,200. Conceding that the statement in the application, $1,000, made in answer to the question, “If incumbered, and for what amount," would have operated as a permission to execute a subsequent incumbrance on the premises to the amount of $1,000, we do not understand how it can be extended beyond that amount. If it can be extended so as to cover a mortgage for $200 more than the permission given, it might, for aught we see, be extended so as to embrace an amount equal to or exceeding the value of the premises. It is to be presumed that the agent of the company intended to give permission that an incumbrance should be executed in the future for no more than $1,000, and that the company, in issuing the policy, gave its consent that an incumbrance to the extent of $1,000 only might be created in the future. Supposing the statement of Sentell to the insured that he intended mortgaging the property for a sum which would be sufficient to discharge the debts which ho had contracted in the erection of the building could, under the circumstances, have the effect of enlarging the amount of the mortgage, to which the agent and the company consented, for which the insured was authorized to incumber the premises in the future, there is no evidence that the amount of the debts to be provided for was equal to the sum of $1,200. Whether the conversation between the agent and Sentell on that subject could have the effect to enlarge the consent in the manner indicated is not presented in the case, because there is no evidence that the amount of the debts for materials and mechanics labor, spoken of, were any greater than the sum of $1,000. Clearly, in order to present this question, it should be shown that the amount of the mortgage which would be required for the purpose of satisfying these debts was equal to the amount for which the mortgage was given, and it is possible in such Case that the policy may need reformation.

The plaintiff’s counsel objects that the justice at the circuitil had no power to allow an amendment by which the new defense of the mortgage 'to the Brooklyn Life Insurance Company was set up ; but we think an answer to this objection is found in the fact that the case does not show that any objection was taken to the allowance of the proposed amendment, and the order itself does not appear to have been appealed from, so that it can be reviewed.

Judgment should be reversed and a new trial ordered, costs to abide the event.

Hardin, J., concurred ; Smith. J., not sitting.

Ordered accordingly.


text:
    DAVID CRONIN as Overseer, etc., Plaintiff, v. BOSILLA GUNDY, Defendant.

      Commissioner of excise — Ms failure to file a bond does not, ipso facto, vacate the office.

    At a town meeting held on February 8, 1876, one Bellinger was elected excise commissioner for the term of three years, the other two commissioners holding over (one being elected each year under the statute), March 11, 1876, he filed his bond, which was approved by.the tow clerk, instead of the supervisor as required by law. May, 1876, Bellinger met with the other members of the board, and adjourned for a year. At the town meeting in February, 1877, one Bliss was elected to fill the place of a commissioner whose term then expired, and one Kinne to fill the place of Bellinger, whose office was claimed to be vacant, by reason of his failure to file the bond required bylaw. Subsequently Bellinger presented his bond to the supervisor by whom it was approved. In March, 1877, Kinne and Bliss met as a board of excise and issued licenses.
    In an action to recover the penalty imposed by statute for selling liquor without a license, brought against one claiming to have a license from Bfiss and Kinne, held, that the failure to file the bond did not ipso facto work a forfeiture of Bellinger’s office, and that there was no vacancy to fill, to which Kinne could be elected.
    That as Bellinger had acted at the meeting held on May 1, 1876, he was a commissioner both de jure and defacto, and that licenses issued by Bliss and Kinne were wholly void.
    Motion for judgment, on a verdict in favor of tbe plaintilf directed by the court subject to the opinion of the court at General Term.

      Thomas Richardson, for the plaintiff.

      J. & A. B. Steele, for the defendant.
   Talcott, P. J. :

This is a motion for judgment on a verdict directed for the plaintiff, at the Herkimer County Circuit, subject to the opinion of this court.

The action is brought by the plaintiff, as overseer of the poor of the town of German Flats, in Herkimer county, to recover three penalties of fifty dollars each for selling a glass of ale, and another glass of strong beer, on three several occasions, on the 24th day of May, 1877.

The defense is that the defendant acted under what purported to be a license granted under section 24 of the excise law (2 R. S. [6th ed.], 939, § 24), granting to the defendant a license to sell ale or beer, and granted on the 2d day of April, 1877, by H. M. Bliss and J. W. Kinne, as commissioners of excise for the said town of German Flats, and the controversy sought to be raised is whether the said J. W. Kinne was a commissioner of excise for the said town when the said license was granted.

The facts in the case seem to be as follows : Prior to February, 1876, the town of German Flats had three excise commissioners. At the town meeting held on the 8th of February, 1876, Lucius Bellinger was elected a commissioner of excise for said town for the term of three years, the other two commissioners holding over, only one being elected in each year under the statute.

Bellinger filed his oath of office in the office of the town clerk, on the 11th day of March, 1876, together with his official bond, which was approved by the said town clerk, instead of the supervisor of the said town as required by the statute. (2 R. S. [6th ed.], 943, § 49.) It having become known that Bellinger’s bond had not been approved, as required by the statute, some of the inhabitants of the town, under the belief, probably, that the office of Bellinger had become vacant by his omission to have his bond approved by the supervisor, proceeded, at the town meeting held in February, 1877, to elect the said J. W. Kinne in his place, claiming to act under the authority of the statute in reference to filling vacancies in the office of commissioners of excise. (2 R,. S. [6th ed.], 942, § 48.) H. L. Bliss was, at the same town meeting-in February, 1877, elected one of the commissioners of excise, in the place of one Hall, whose term of office had expired at that time.

After the town meeting of February, 1877, and the attempted election of Kinne to fill the supposed vacancy in Bellinger’s office, Bellinger presented his official bond to the then supervisor of the town and the same was by him approved.

On the 10th of March, 1877, a meeting of the board of excise, as composed of Bliss, Lewis and Kinne, was held at the Globe hotel, at Mohawk, in the town. This meeting was called on the notification of II. M. Bliss; but Lewis, one of the commissioners, being notified, refused to attend and was not present. Bliss and Kinne attended and proceeded to act as a board of excise of the said town. They kept a record of their proceedings as commissioners of excise, and at that meeting sundry applications for licenses under the excise law were made, and they adjourned to April 2, 1877. On the 2d of April, 1877, Bliss and Kinne again met pursuant to such adjournment, and sundry other applications for such licenses were presented, amongst others an application from the defendant in this case, and the license in question was granted to him, he paying therefor to the said Bliss and Kinne, as such commissioners of excise, the sum of twenty dollars; and Bliss and Kinne continued to meet as such board of excise, various adjournments intervening, so far as the record kept by them shows, down to and including the 15th of November, 1877. The license granted to the defendant was in duo form, bearing date on the 2d day of April, 1877, purported to be granted in pursuance of the act of the Legislature of the State, entitled “ An act to suppress intemperance and to regulate the sale of intoxicating liquors,” passed April 16, 1857 (ch. 628), and the acts amendatory thereof and supplementary thereto, and reciting that the defendant had paid to them the sum of twenty dollars, the license fee prescribed by them therefor, licensed the defendant to sell ale and beer at his saloon in said town of German Flats, and provided that the said license, unless sooner revoked, should continue in force one year from the date thereof. The said license was signed by II. W. Bliss and J. W. Kinne, as commissioners of excise, and the money received for the said license, by the said Bliss and Kinne, as the board of excise for the town, was paid over by them to the supervisor of the town. Bliss also met with Bellinger and Lewis on the first Monday of May, 1877, as a board of excise for the said town, and after electing one of their number as chairman and another as secretary of said board, they adjourned till the first Monday of May, 1878, without granting any licenses.

We think that the omission of Bellinger to have his bond approved by the supervisor of the town, as required by the statue referred to, did not create a vacancy in the office to which he had been elected, and to perform the duties of which he had taken the official oath.

The act, it is true, provides that, before entering upon the duties >of their offices, the commissioners shall take and subscribe the constitutional oath of office and file the same with the town clerk, and shall execute a bond to the supervisor thereof, to be approved by him, conditioned for paying over to him all the moneys received by them as commissioners of excise. (Laws of 1874, ch. 444, § 2, p. 562.) This is the only provision of the statute under which Bellinger was elected. He took the oath of office and filed his official bond, but did not get it approved by the supervisor of the town until after the election of Kinne, in February, 1877. There being no time specified, within which the oath shall bo taken and the bond approved and filed, in the act by which the office was created, it must be governed by the general law on that subject. The Revised Statutes provide on that subject, as follows: When a different time shall not be prescribed by law, the oath of office shall be taken, subscribed and deposited in the proper office within fifteen days after the officer shall be notified of his election or appointment, or within fifteen days after the commencement of his term of office. (1 R. S. [6th ed.], 417, § 25.) That any public officer required by law to execute any official bond shall cause the same to be filed in the proper office within the time prescribed for filing his oath of office unless otherwise provided by law. (1 R. S. [6th ed.], 418, §30), and by section 36, it is provided, that “if any person shall execute any of the duties or functions of any office, without having taken and subscribed the oath of office required by law, or without having executed and filed in tbe proper office any bond required by law, be shall forfeit the office to which he may have been elected or appointed, and shall be deemed guilty of a misdemeanor punishable by fine and imprisonment.”

This statute is the only one which provides for the conesquenccs of an omission to file the official bond of the commissioners of excise duly approved. The consequences enumerated by the statute are, liability to forfeit the office, and to a conviction for misdemeanor. The office does not become ipso facto forfeited or vacant by such omission, but the officer hereafter holds by a defeasable title, and until some proceedings shall have been taken by the proper authorities to declare the forfeiture, the official acts of him 'who has been guilty of such omission to file his official bond are valid to all intents and purposes. (Foot v. Stiles, 57 N. Y., 399), so that, we think there was, legally, no vacancy in the office to which Bellinger had been elected in February, 1876.

But it is claimed that the board of excise commissioners, which granted the license to the defendant, and which received his money was a board of commissioners defacto, and that the license granted by them operated to protect the defendant in the business thereby purporting to be licensed, although one of the members of such board was not a commissioner de jure.

The rule is that where a party claims to hold an office, and in fact exercises its functions under color of an election or appointment thereto by the proper authority, the acts which he assumes to perform as such officer, and which he might rightfully perform if he was such officer de jure, are valid and binding so far as the public and third parties are concerned, in the same manner as though he rightfully held the office. This is a rule necessary to the protection of the public and third parties, because they cannot be supposed to be able to know or determine whether the person assuming to be such officer is rightfully in office or not. But it is said that there cannot be an officer de jure and another in the same office de facto at the same time. (Boardman v. Halliday, 10 Paige, 223; The People ex rel. Devlin v. Peabody, 6 Abb. Pr. R., 236; Morgan v. Quackenbush, 22 Barb., 72.)

In this case Bellinger, before the granting of the license to the defendant, had acted as commissioner of excise on one occasion as a member of the board, to wit, on the first Monday of May, 1876, at which time no licenses were granted and the board adjourned till the first Monday of May, 1877. A reference to the record of the proceedings of the commissioners of excise, which was shown to have been kept aecording to law, and deposited with the proper custodian, would have shown who were the commissioners of excise de facto, exercising the duties of the office; and that Bellinger, in point of fact, claimed to be one of such commissioners at the time when the license in this case was granted; and that Bellinger being not only a commissioner de jure but de facto, Kinne could not legally be a commissioner of excise of the town of German Flats. By an examination of the records of the commissioners it would have appeared that Bellin-ger had met with the board and was recognized as a member thereof on the first Monday of May, 1876, and that the board had then adjourned till the first Monday of May, 1877, so that he was in the office and exorcising the duties thereof, so far as there were any duties to perform, at the time when the license was granted to the defendant by a board composed of H. M. Bliss and J. ~W. Kinne; Bellinger being, therefore, not only a commissioner de jure but also de facto, at the time when certain of the electors of the town assumed to elect Kinne, such election was wholly void and Kinne could not, by virtue thereof, act as a member of the board, either de jure or de facto. The whole question in the case seems to be disposed of by the decision of the Court of Appeals in Foot v. Stiles (supra), holding that an omission to file the bond did not ipso facto work a forfeiture of Bell-inger’s office. Judgment must therefore be ordered for the plaintiff on the verdict.

Smith, J., concurred; HaeeiN, J., not sitting.

Judgment ordered for the plaintiff on the verdict.


author: Talcott, J.:

text:
    JACOB L. HAAS, HENRY NANEST, JOHN W. KLEIN, and GEORGE BOLLER, Respondents, v. EDWIN ROAT and JOHN MAAR, alias Prof. J. M. McALLISTER, alias Prof. TELASCO, Appellants.

      Interest in profits — renders persons liable as partners, as to third persons.

    The defendant Roat advanced Sj>700 to defendant Maar, a traveling showman, upon the agreement that, after payment of all expenses, Roat was to receive back the ¡5>700, and one-half of the net profits.

      Held, that the defendants were partners as to third persons, irrespective of any agreement to the contrary between themselves.
    Appeal from an order granting a new trial, upon a motion made on a case containing exceptions.

      Thomas Oorletf, for the appellants.

      George Wadsworth for the respondents.
   Talcott, J.:

This is an appeal by the defendant from an order made at the Special Term of Erie county, granting a new trial in the action.

The defendants were sued for work, labor, and materials furnished by the plaintiff, in printing certain hand-bills and programmes for certain shows which, it was alleged, were carried on and exhibited by the defendants as copartners. The defendant Maar was a traveling showman, and being about to start out on an expedition to exhibit his show the defendant Roat advanced to Maar $700, under an agreement that after paying expenses of the trip, Roat was to receive back the $700, and one-half of the not profits.

There was also evidence tending to show that the work and materials were ordered when both parties were present, and that both defendant and Maar had stated to the plaintiff that they, Roat and Maar, were partners in the business of exhibiting said shows, and would jointly pay the plaintiffs for said work and materials, and that the same were furnished upon the joint credit and responsibility of both defendants.

The cause was tried before Barker, Justice, who afterwards, at the Special Term, ordered a new trial on account of errors in the charge to the jury. The defendant Maar did not appear in the action, and the agreement between the parties was testified to by Boat. The justice at the circuit instructed the jury in substance that the advance of the $700 for the purpose of exhibiting the show, with an agreement that the same was to be refunded to Boat, and he was also to receive one-half of the net profits, did not constitute the parties copartners as to the business, and as to third parties dealing with the defendants in that behalf, unless the parties intended by such agreement to become copartners.

The charge was duly excepted to by the plaintiffs’ counsel, who also requested the court to charge the jury that the agreement between the defendants, as testified to by Boat, made the defendants copartners as to the plaintiffs, and the refusal to charge this was also excepted to.

The agreement between the defendants, as testified to by Boat, one of them, did, in law, constitute the defendants copartners in the business undertaken under it, so far as third parties were concerned, without regard to the question whether the defendants intended by the agreement to become copartners or not. The admission of the defendant Boat, the only party who contested the fact of the copartnership, brings the case clearly within the rule established by the later authorities in this State, and the defendants are by those decisions held to be copartners as to third persons, even though they expressly agree not to become such, from the fact that the profits were to bo divided between the defendants. (Manhattan Brass, etc. Co., v. Sears, 45 N. Y., 797; Ontario Bk. v. Hennessey, 48 id., 545; Leggett v. Hyde, 58 id., 272; Greenwood v. Brink, 1 Hun, 227.) Such is the law clearly established in this State, although there are modern English decisions (probably founded on the statute of 28, 29, Vic. Ch., 86) to the contrary.

The order granting a new trial should be affirmed, costs of appeal to abide the event.

MulliN, P. J., and Smith, J., concurred.

Order granting new trial affirmed; costs of the appeal to abide the event.


text:
    MARY FRANE, as Administratrix, etc., of ELIZABETH ROCKETT, Deceased, Respondent, v. HENRY K. VANTINE and JOSHUA BEEMAN, as Executors, etc., of SAMUEL BEEMAN, Deceased, Appellants.

      Reference of claim against estate — judgment on refereés report— nob appealable if the report be by consent confirmed by the court.

    A claim against the defendants’ testator having been referred, in pursuance of the statute, the report of the referee in favor of the plaintiff was, with the consent of defendants’ attorney, confirmed, and judgment was entered thereon. Upon an appeal by the defendants, held, that as the confirmation of the report was not opposed, and as no motion was made at Special Term to set aside the report, or for a new trial, the judgment was not appealable.
    Appeal from a judgment in favor of the plaintiff, entered upon an order confirming the report of a referee.

      G. W. Oothrane, for the appellants.

      O. F. Tabor, for the respondent.
    The defendants should have appeared and resisted the confirmation of the referee’s report at Special Term. They cannot consent to the confirmation and then appeal to the General Term in the first instance. (Boyd v. Bige-low, 14How., 511; Flukes. Van Wagner, 54N.Y. R., 28; Radley v. Fisher, 24 How., 405; Smith v. Velie, 60 N. Y. R., 119; Van SioJoler v. Graham, 7 How., 208; Summerville v. Croolc, 9 Hun, 666.)
   Talcott, J.:

This was a claim in behalf of the administratrix of Elizabeth Rocket against the defendants, as executors of Samuel Beeman, deceased.

The claim having been presented to the defendants as such executors was disallowed, and with the consent of the surrogate, under the statute in such case provided, was referred to a referee, who decided that there was due and owing to the plaintiff, as the administratrix of the said Elizabeth Rockett, the sum of $194.63, with interest from December 30, 1873, and that tbe plaintiff was entitled to judgment therefor.

At a Special Term held in Erie county on the 7th day of August, 1878, the plaintiff moved that the said report be confirmed, and for judgment on the same.

It appears by the order granting the said motion that the attorney for the defendant appeared on the said motion and consented that the same should be granted, and thereupon the said report having been, by consent, confirmed, the plaintiff entered judgment thereon, and from the judgment thus entered the defendants bring this appeal.

This presents the precise question discussed in Smith v. Velie (60 N. Y., 106). The case fails to show that the appellants made any motion at the Special Term, upon a case or otherwise, to set the report aside, or for a new trial, or any opposition to the confirmation of the report of the referee; but, on the contrary, shows that the order confirming the report, and for judgment thereupon, was entered by the consent of the appellants.

But, unlike the case of Smith v. Velie, supra, the respondent does take the objection here that the case was not presented to and passed upon by the Special Term, and that there was no objection then made to the confirmation of the report. This objection is apparently fatal to any attempt by the General Term to review the decision of the referee. (See the case of Smith v. Velie, supra, and the case of Somerville v. Crook, 9 Hun, 664, and the cases there cited.)

The appeal should be dismissed, with costs to the respondent.

MulliN, P. J., and Smith, J., concurred.

Appeal dismissed, with costs to the respondent.


author: HaudiN, J. :

text:
    ISADORA GEROULD, Appellant, v. JAMES R. WILSON, Respondent, Impleaded with BYRON H. WILSON.

      Bevoeation of lettei-s of administration — power of surrogate to compel accounting on application of next of kin — mistake in bond, when immaterial.

    May 11, 1864, Byron H. Wilson was appointed administrator of James Wilson, deceased, by the surrogate of Steuben county, and the defendant, James R. Wilson, became a surety upon his bond. November 3, 1864, the letters issued to Byron H. Wilson were, upon the application of his surety, James It. Wilson, revoked. No other administrator was ever appointed. In 1876 the plaintiff, as one of the next of kin, procured a citation, requiring the administrator to account, and an order was made on such accounting requiring him to pay over to her ¡¡¡>401,57. The bond having been assigned to the plaintiff, this action was brought upon it.

      Held, that the surrogate had jurisdiction, upon the plaintiff’s application to require the administrator to account, and to decree payment by him of the amount due to the plaintiff.
    That the decree made by the surrogate was binding upon the surety, and established prima facie the amount due from the administrator.
    By mistake the bond provided that the administrator should obey “all the orders of the surrogate of the county of Ontario," instead of Steuben. Held, that as it appeared that the surety knew of the use to be made of the bond and of its delivery to the surrogate of Steuben county, the mistake was immaterial.
    Appeal from judgment in favor of defendant, entered upon the report of a referee.
    The action was brought upon a bond given by Byron H. Wilson as administrator, against the defendant, James R. Wilson, who was a surety on said bond. The bond was filed in Steuben county and letters of administration granted by the surrogate of that county. On the 3d of November, 1864, the surrogate, upon the application of .the surety, granted an order removing the administrator and revoking the letters. No successor or new administrator was appointed. In 1876, and after the expiration of eighteen months from the time of his appointment, plaintiff obtained from the surrogate of the county of Steuben a citation requiring the administrator to render an account, and on such accounting- an order ivas made by the surrogate that he pay to plaintiff $401.57, as her share as next of kin. The order was made on the 25th of February, 1876, by the surrogate of Steuben county.
    The administrator’s bond was assigned to plaintiff and this action brought against the defendant as surety on said bond, to recover the sum found, as aforesaid, by said surrogate to be due the plaintiff. The plaintiff and the administrator were the only next of kin of the deceased.
    By mistake the bond was conditioned that the said Byron H. Wilson should “obey all the orders of the surrogate of the county of Ontario.”

      H. M. Field, for the appellant.
    The principal in this bond having obtained the possession and control of all the property of this estate, upon the strength of the bond, the principal and his' sureties should be held liable on the bond. {People v. Falconer, 2 Sandf. Sup. Ct., 81; Kelly v. McGormick, 28 N. Y., 818; Loaners Bank v. Jacoby, 17 Sup. Ct. R. [Hun], 143; Wheaton v. Fay, 62 N. Y., 275; Bussell v. Freer, 56 id., 67; 63 id., 388; Gates v. McKee, 2 Kern., 232; Wiser, an infant, v. Blackly, 1 Johns. Ch., 607; Coleman v. Bean, 3 Keyes, 94; Bpring steed, Adm'r, etc., v. Samson, 32 N. Y., 703.) The contract is to be construed most strongly against the person giving it. (DeColyar on Guarantees, 202; Fell on Suretyship and Guarantees, 503; French v. Gathcart, 1 Comst., 96, 102.)

      Wm. Bumsey, for the respondent.
    The defendant here (the surety) is not liable for the failure of the administrator to obey the order of the surrogate of any county but the county of Ontario. The contract of the surety is the measure of his liability and the extent of it. He is bound only so far as he has agreed to be bound. {Getty v. Binsse, 49 N. Y., 385, 389; Lang v. Pike, 28 Ohio St., 488; Pickersgill v. Lahens, 15 Wal., 140, 144.) The surrogate had not jurisdiction to order said Byron H. Wilson to pay said money to the plaintiff, the plaintiff not being the successor of Byron H. Wilson in the administration of said estate. (2 Edm. Stat., 98, §§ 68, 69; 71; 4 id., 493, §36; 2 id., 94, § 52; Annett v. Kerr, 2 Robt., 556, 566.) So far as the decree goes beyond the jurisdiction of the surrogate, it is to be treated as void everywhere. (Gilliland v. Sellers, A.drrir, 2 Ohio St., 223; Gos. sett v. Howard, 10 Q. B., 359 [59 E. C. L.] ; 1 Smith’s Lead. Cas. [11th cd.], 1100, 1101; People ex rel. Tweed v. Idscomb, 60 N. Y., 559, 568, 570, 571.)
   HaudiN, J. :

Section 52 of the Revised Statutes (2d vol. [Edm. ed.], p. 9.4), permits any creditor or legatee to apply, after eighteen months from the appointment of an administrator or executor, to the surrogate for a citation requiring an accounting by such administrator or executor. Section 60 provides that if the administrator or executor is so required “ to render an account,” he may apply to the surrogate for a citation requiring the next of kin, the legatees and creditors, to appear and “ attend the settlement of such accounts.” Section 68 provides that “whenever the authority of an executor or administrator shall cease or be revoked or superseded for any reason, he may be cited to account before a surrogate, at the instance of the person succeeding to the administration of the same estate, in like manner as hereinbefore provided for a creditor,”

This section provides for a proceeding to be instituted by “the person succeeding to the administration of the same estate.” The “manner” of conducting the proceeding shall be like that prescribed for a creditor’s proceeding. Thus we -find a special course provided whero “the authority of the executor or administrator shall cease,” or be revoked or superceded for any reason.” The sixty-ninth section provides that the executor or administrator may turn round and apply for citations, and cite “the person succeeding to the administration of the same estate, to attend an account or settlement of his proceedings before the surrogate.” This enables the executor or administrator, whose authority has ceased or been revoked, to have a final settlement. Section 71 expressly excepts the proceedings instituted under section 68 and 69 from its provisions, in respect to distribution of payments to creditors, legatees, widow and next of kin.

But a careful examination of sections 68 and 69 will lead to the conclusion that the proceedings, then to bo taken “ at the instance of the person succeeding to the administration of the same estate,” are permitted to be instituted as soon as the authority of the executor or administrators has ceased or been revoked. “ Whenever” the event has occurred, the proceedings may be instituted at the instance of the person succeeding to the estate. As the proceedings may take place early in the course of the administration, there is propriety in excepting such proceeding from the provisions of Revised Statutes (§ 71), which provides for a distributive decree.

By the Laws of 1862, chapter 229, the thirty-sixth section of the Laws of 1837, chapter 460, was amended, and it was provided, viz. : The surrogate shall have the same jurisdiction in requiring any executor or administrator whose letters have been revoked, as is conferred by the third article of title 3, chapter 6, of the second part of the Revised Statutes. (2 R. S., 91.)

Here are general words conferring jurisdiction upon the surrogate in cases where the letters have been revoked. The amendment of 1862 farther provides that “ the new executor or administrator shall, within a reasonable time, or in case of his neglect, the other person mentioned in such article may make application for such account, and such application may be made at any time after the revocation of the letters as aforesaid.” Here are two provisions which may be availed of. First. If a new executor or administrator is appointed, it is made his duty to proceed within a reasonable time. Second. “ Or in case of his neglect the other person mentioned,” to wit, “ some joerson having a demand against the personal estate of the deceased, either as creditor, legatee, or next of kin.” The concluding part of section 36, as amended in 1862, provides : “ Such application may be made at any time after the revocation of the letters as aforesaid.”

The letters were revoked by the surrogate 3d of November, 1864. No new administrator was appointed. After the expiration of eighteen months from his appointment, it was competent for the plaintiff, as next of kin of deceased, to apply to the surrogate for an order requiring the administrator to 1 ‘ render an account of his proceedings.” The act of 1865, chapter 733, provides additional powers. (1.) Whenever letters shall have been revoked, the administrator “ shall be liable to account.” (2.) The accounting may be “on the application of his-successor.” (3.) The surrogate shall have jurisdiction to enforce and-settle such account, and to decree the payment and delivery over to such successor of all assets, money, or property that may have come to his hands as such executor or administrator, remaining undisposed of, and to compel the performance of such décroe in the same manner as of decrees made in other cases of accounting.

It does not in terms refer to the antecedent provisions of law upon the subject of the jurisdiction of the surrogate. It does not in terms modify, alter, or repeal the provisions of law then existing. It simply declares such proceedings as are therein named “ may be taken ” whenever any person shall bo removed, * * etc. (2.) That the person “shall be liable to account on the application of his successor,” and then it confers in broad terms jurisdiction upon the surrogate to “settle such account,” and to decree the payment and delivery over to such successor of all assets, money, and property that may come to his hands as such executor or administrator, * * * etc.

The act of 1865 does not by implication repeal the amendments of 1862. Such repeals are not favored. (McCartee v. Orphan Asylum, 9 Cowen, 437.) Nor is the act of 1865 inconsistent with, or repugnant to, the provisions of the act of 1862. (Staats v. Hudson R. R. Co., 3 Keyes, 196; Bowen v. Lease, 5 Hill, 225; Wallace v. Bassett, 41 Barb., 96.) We must hold, therefore, that the surrogate had jurisdiction to call upon the administrator to account, upon the application of the plaintiff, who was one of the next of kin, and'that when the account was settled and stated by the surrogate’s order, it became the duty of the administrator, the defendant’s principal, to abide by the order. (Casoni et al. v. Jerome, 58 N. Y., 315.)

The surrogate having jurisdiction of the subject-matter and of the person of the administrator his order must be uphold. The decree made by the surrogate is prima facie evidence of the amount due from the administrator as against the defendant — his surety. (Douglass v. Howland, 24 Wend., 55; Annett v. Terry, 35 N. Y., 261.) The surety was privy-to the proceedings, and in the absence of fraud or collusion is bound by the decree of the surrogate. (58 N. Y., 322.)

The bond of the administrator was conditioned that he “ shall faithfully execute the trust reposed in him as such.” This provision is in accordance with the requirements of the statute. (2 R. S., 78, § 42.) We think the insertion of the word “ Ontario ” instead of “ Steuben,” prior to county, did not, under the circumstances disclosed by the evidence, prevent the administrator and his sureties from being bound to the performance of its condition. The use to be made of the bond seems to have been understood by the principal and the surety when it was executed, and shortly after its delivery to the surrogate of Steuben, and his appointment of the administrator, the surety applied to the surrogate of Steuben to be released from the bond. (Casoni v. Jerome, 58 N. Y., 315 ; Coleman v. Bean, 3 Keyes, 94 ; Rowe v. Parsons, 6 Hun, 338.)

We think the - judgment should be reversed, and a new trial ordered before another referee, with costs to abide the event.

So ordered.

Talcott, P. J., concurred; Smith, J., not voting.

Ordered accordingly.


author: IIakdin, J. :

text:
    ALFRED A. BROWN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Indictment for procuring a signature to a deed by false pretences — question of intent to cheat and defraud, one for the jury.

    Upon an indictment for obtaining- by false pretences the signature of any person to a deed, the intent “to cheat and defraud” is an essential element of the .offense, and the question as to whether or not such intent existed should be submitted to the jury.
    Certiorari to review the conviction of the plaintiff in error, for obtaining tho signature of the complainant to two deeds by means of false pretences.
    The plaintiff was indicted in December, 1876, for falsely pretending that certain lands in tbe town of Georgetown, and county of Madison, were free and clear from all encumbrances, and thereby obtaining the signature of one Benjamin Kinne to a conveyance of lands owned by him in the town of Carrolton, and county of Cattaraugus; whereas, at the time of the making of such pretences December 30, 1873, the lands in Georgetown were encumbered by judgments recently recovered against the plaintiff and one Torpey, to the amount of about $5,000.
    On the 10th day of November, 1873, a judgment was recovered and docketed in the office of the clerk of Madison county, against the defendant and said Torpey, for $4,000 damages, and $6.69 costs, which judgment was rendered upon confession. On the 9th day of December, 1873, another judgment was recovered and docketed against the same parties, in the same office, for $811.01 damages, and $23.90 costs. After this indictment was found, but before it was tried, these two judgments were satisfied of record.
    The defendant was sworn upon his own behalf; and in the course of his testimony admitted that he stated to Mr. Kinne that the property was free and clear, but also said that he had .gtold him before the sale that there were liens upon the property, «without describing them, or stating that they were judgments, jrlie also swore that he had made arrangements to have those ! encumbrances discharged, and that ho did not intend to cheat or defraud Mr. Kinne. It further appeared that the defendant, before trading with Mr. Kinne, made a verbal arrangement with the holder of one of the judgments to take an indorsed note for the judgment and have it discharged, but that he had not given the note at the time of the exchange, and did not give it for some time thereafter; that he had also made a verbal arrangement with the holder of the other judgment to have it released upon paying $1,000 ; but the money had not been paid nor the judgment released at the time of the exchange of property.

      Lansing & Lyman, for the plaintiff in error.

      JST. M. White, district attorney, and I. G. Vann, for The People.
   IIakdin, J. :

The statute provides tbat every person wbo, with intent tj cheat or defraud another, shall designedly * * or by any other false pretence, obtain the signature of any person to any written instrument * * * upon- conviction thereof shall be punished. (3 R. S. [6th ed.], 948, § 58.) In order to convict under this statute the jury must find as a fact that the “ false pretence” was uttered “ with the intent to cheat or defraud another” In each case the jury should be allowed to find upon the question of intent to cheat or defraud. (People v. Thomas, 3 Hill, 169 ; People v. Williams, 4 id., 9 ; People v. Kendall, 25 Wend., 399 ; Parmelee v. People, 8 Hun, 623; Sherman v. People, 13 id., 575.)

The learned judge in his charge to the jury said : “I charge that the act of procuring these deeds by falsehood, if false it was, under the circumstances of this case as they were stated, is a crime.” The prisoner’s counsel excepted to it.

This statement of the learned judge was too broad. It was, in effect, passing upon the essential facts of the case aud concluding thereon that a crime had been committed by the prisoner. The intent with which the representations were made, which were claimed to have been false, should have been loft to the jury, as a matter of fact. (People v. Crissie, 4 Denio, 525; Skiff v. People, 2 Park. Crim. Rep., 139.)

The conviction should be reversed, and the proceedings remitted to the General Sessions of Onondaga county for a new trial.

Talcott, P. J., and Smith, J., concurred.

Conviction reversed, and the proceedings remitted to the sessions of Onondaga county and a new trial ordered.


author: HakdiN, J.:

text:
    SYLVESTER W. GOULD, Respondent, v. THE HOLLAND PURCHASE INSURANCE COMPANY, Appellant.

      Policy of insurance — condition against incumbrances — what sufficient evidence of the existence of an incumbrance.

    In this action, brought upon a policy of insurance, the defense was that the policy was avoided, by the assured having, subsequently to its issue and in violation of a condition of the policy, incumbered the property, without notice to, or permission from, the company. Upon the trial, the defendant put in evidence a certified copy of the record of a mortgage given by the plaintiff, after the issuing of the policy, to one Mudge for §850, such mortgage having been given without the knowledge or consent of the company.
    Held, that this sufficiently established a breach of the condition, and that, in the absence of any evidence to the contrary, the x>resumption was that the amount for which the mortgage was given was still due thereon.
    Appeal by defendant from a judgment entered upon the report of a referee. The action was upon a policy of insurance issued by defendant June 23, 1873, for three years, covering a dwelling-house to the amount of $1,000, and household furniture, etc., to the amount of $300. The plaintiff’s application for insurance stated “that the title to the promises was by deed ; ” “that the said premises were incumbered at that time by a mortgage in the sum of $4,400.” The application was a printed form, and by its terms the applicant was requested to state “ the amount of incumbrance existing on the property at the time the application for insurance was made.” One of the conditions of insurance c "tained in, and forming a part of the policy, read as follows:
    “If any property insured in this company shall be incumbered for an additional amount, it shall be the duty of the party insured to immediately give notice to the company, and the company may continue the insurance upon the same terms, or they may cancel the policy by refunding the money for the unexpired term.
    “ If the insured shall omit to notify the company in such a case, then such insurance shall be void.”

    The house and a portion of the personal property wore destroyed the first day of January, 1874.
    It appeared on the trial that the plaintiff, August 8, 1870, made bis bond and mortgage to one Bemis, to secure $4,400, part of tbe purchase-money of said premises, upon which the house was located, which was duly recorded. The defendant also put in evidence another mortgage, executed by the plaintiff and wife to one Rebecca N. Mudge, dated December 5, 1873, given to secure $850 and interest named in a note.
    The case on appeal contained the following statement: “ There was no evidence showing or tending to show that any part of either of said mortgages had been paid, or that the plaintiff, before the fire, gave the defendant notice of any additional incumbrance upon the property, and that the defendant had notice thereof previous to the said fire.”
    Shortly after the fire, the adjusting agent of defendant called on plaintiff and settled for the personal property lost, “ but refused to settle or pay for the dwelling-house, for the reason as stated by him to plaintiff at that time, that the plaintiff had incumbered the property since effecting the insurance thereon in an additional amount, by giving the mortgage thereon # # to Mudge for
    $850, and that no notice thereof had been given to the company, as required by the policy.” The plaintiff then accepted the pay for the personal property, and signed a receipt in full satisfaction of the whole loss and in cancellation of the entire policy, and then and there surrendered it to the agent, and he canceled it,, delivered it to defendant, and defendant produced it on the trial.

      George Bowen, for the appellant.

      W. H. Henderson, for the respondent.
   HakdiN, J.:

The certified copy of the Bemis mortgage was entitled to the same force and effect as the original mortgage. (1 R. S., 759, § 17; 2 id., 1146 [6th ed.], § 35; Clark v. Nixon, 5 Hill, 36.) The application referred to that mortgage, and stated that it was an incumbrance to the extent of $4,400. There was no proof given of payment of any part of it having been made prior to the fire. It is true the plaintiff “ produced the bond on the trial, and put the same in evidence.” But the trial was in July, 1877. The fire occurred January 1, 1874. The case states “there was no evidence showing or tending to show that any part of either of said mortgages had been paid.” Thus it appears affirmatively to us that there was no evidence to establish payment of either of the mortgages prior to the fire. We must, therefore, ’treat the plaintiff’s possession of the $4,400 bond as having been acquired subsequent to the fire. We are brought to consider the case as it is presented with the Bomis mortgage of $4,400 in evidence and the Mudge mortgage of $850 in evidence, and no evidence of payment given by either party upon the trial in respect to the amount due upon them at the time of the fire.

The referee finds and holds that “in the absence of proof that there is anything unpaid on a mortgage appearing on the record to be unsatisfied, it cannot be presumed, for the purpose of enforcing a forfeiture, that there is anything, or if anything, what amount remains unpaid upon it.”

When the Mudge mortgage of $850 was given and recorded, it became “an additional incumbrance” upon the property. It was made an “actual and real” incumbrance “upon the property insured in this company.” The parties by the application and policy had treated the Bemis mortgage as an incumbrance to the extent of $4,400, and referred to it as the specific one which was embraced in the limit fixed by the parties, which should rest upon the property without notice to the company. There had been no such lapse of time as to justify a presumption of payment of the Bemis mortgage. It was given in 1870. The insurance application referred to it as an incumbrance for $4,400 in the month of May or June, 1873.

The Mudge mortgage was made in December, 1873, and the fire took place 1st of January, 1874. There were no circumstances given to raise a presumption of payment, to enable us to make it exceptional from the provision of the Revised Statutes, in respect to lapse of time giving rise to presumption of payment. (Lawrence v. Ball, 14 N. Y., 477; 2 R. S., 301, §48; Moreys. Farmers’ L. and T. Co., 14 N. Y., 303; Henderson v. Henderson, 3 Denio, 314; Heyer v. Pruyn, 7 Paige, 465.)

The proof therefore- established an incumbrance beyond the permitted amount, and that avoided the policy. We think the learned referee fell into an error in finding that there was no evidence that the property was “incumbered for an additional amount.” If he had not given the plaintiff the benefit of a presumption, that did not arise, of payment, he would have so found.

For such error, wo think the judgment should be reversed and a new trial ordered before another referee, with costs to abide the event.

'Talcott, P. J., and Smiitii, J., concurred.

. Ordered accordingly.


author: HaediN, J. :

text:
    JOSEPH WESTFALL, Administrator, etc., of MARY WESTFALL, deceased, Appellant, v. HENRY WESTFALL, Respondent.

      Absolute deed, when in fact a mortgage — the wiclow of the grantor (moi-tgagor) must tendel- the amount due, before she can obtain her dower — ■claim for dower, when barred by the statute of limitations.

    In 1818 George D. Westfall and wife conveyed certain land to Samuel D. Westfall by a deed absolute on its face, but which was in fact a mortgage. George D. died in 1827, leaving a widow, Mary, and eight children. In 1832 two of the children, Joseph and Samuel D., 3d, purchased the land from Samuel D. Westfall (whether or not in good faith, believing his title to be good, was in dispute), and thereafter, Joseph having purchased his brother's interest, conveyed a portion of it to one Yandermark for §4,891. One of the children died unmarried and intestate before the conveyance. The widow made no claim to dower in the land or its proceeds, nor to a life estate in the interest of the deceased child. Mary, the widow, died February 14, 1870, and Joseph was appointed her administrator. Upon Ms accounting the surrogate charged him with the dower interest of his mother in the proceeds of the sale to Yandermark, and with the life estate in one-eighth of the same subject to such dower, less the lien of Samuel D. Westfall, with interest on such amount from the date of the conveyance.

      Held, that even if the proceeds of the sale were to be treated as land, neither the widow nor the heirs could make any claim thereto without first tendering the amount due, and to secure which the conveyance was made.
    That in any event both claims were barred by the statute of limitations.
    Appeal from the decree of the surrogate of Monroe county, made upon the final accounting of the administrator, adjudging the administrator indebted to tlie estate of Mary Westfall in the sum of $6,291.92, and directing payment thereof to respondent — less $800 allowed for costs. The administrator presented his account and his individual claim against the estate, and the contestant filed objections thereto, and a reference to an auditor was had, and his report was presented to the surrogate, who took some further proofs and heard the parties, and modified the findings of the auditor, and made the decree appealed from.
    In June, 1818, George D. Westfall owned about 252 acres of land in Ontai’io, and with his wife Mary executed a warranty deed thereof to one Samuel D. Westfall, his brother. George D. died in 1827, leaving his widow Mary and eight children, to wit, Samuel D., 3d, Joseph, Henry, George, Mary, Lydia, Sarah, and Cynthia Jane. In 1832, September 15, Joseph and Samuel D., 3d, made an agreement to purchase the lands for $864, and Samuel D. and his wife, on the 15th day of December, 1832, conveyed 124 acres of the farm to Joseph and Samuel D., 3d. There was a dispute as to whether Joseph and Samuel D., 3d, took, without knowledge of the conveyance, to their grantor being simply a mortgage. December 12, 1833, Joseph and Samuel D., 3d, partitioned the 124 acres between themselves ; September 3, 1834, Joseph purchased of Samuel D., 3d, his interest in the 124 acres; November, 1837, Joseph purchased the interest of Samuel D., 3d, in the rest of the 252 acres, and Samuel D. shoi’tly thereafter removed to Michigan; Cynthia Jane, one of the eight children, died in October, 1835, intestate, aged about eleven years. October 1, 1836, Joseph sold and conveyed the 124 acres to Orson and Frederick Yandermark, by warranty deed, for $4,891. In March, 1838, Samuel D. conveyed the balance of the 252 acres to Joseph; Joseph paid Samuel D., 2d, $864, and to Samuel D., 3d, $1,500 for his interest. In 1837 a question arose as to the title of -Yandermark, and the evidence tended to show an amicable adjustment between Joseph, the widow Mary, and the heirs; and conveyances were executed with a view of perfecting the title of the Yandermarks to the 124 acres, and to Henry and George to the balance of the 128 acres. Mary, the widow, gave her quit-claim deed of all her interest in the whole farm to Henry and George; they gave a bond to pay her an annual sum of $70, and $1,000. That same day Joseph gave a quit-claim deed to Henry and George of the 128 acres. On the 4th of Jauuary, 1837, Joseph gaye a quit-claim tó Henry and George of the 128 acres. It seems to have been understood at the time of the adjustment that Samuel D. held the title under a deed absolute on its face, which was, in fact, intended as a mortgage. The evidence tended to show that the purchase by Joseph and Samuel D., 3d, was in good faith; Joseph believing that Samuel D.’s title had become absolute. It also appears that Mary executed a deed to Henry and George of her interest in the farm of 252 acres in 1837. Mary, in her lifetime, made no claim upon Joseph for any of the land, nor for any of the money received by him for his conveyance to the Yandermarks. The surrogate held that Joseph, the administrator, was liable to his mother’s estate for the interest on ten-tweuty-fourths’of the $4,391, the sum for which he sold part of the premises in question to the Yandermarks, for the dower interest of the mother, and a life estate in one-eighth of the sum, subject to dower, less Samuel D. Westfall’s lien; and also for interest on it from the 1st of October, 1836, the day of the sale to the Yandermarks, down to the day of her death, which was on the 14th day of February, 1870.

      D. O. Hyde, for the appellant.

      O. Mason, for the respondent.
   HaediN, J. :

The surrogate has jurisdiction to decide upon all claims arising between the administrator and the estate of the deceased, whether such claims be equitable or legal. (Gardner v. Gardner, 7 Paige, 112; Jumel v. Jumel, id., 591; Dayton, Surrogate, 598.) It was therefore proper to inquire as to the supposed liability of the administrator to the estate, and the surrogate had jurisdiction to pass upon the questions made in respect thereto. (Jumel v. Jumel, 7 Paige, 591.) It may be assumed that the conveyance by George D. Westfall and his wife to Samuel D. Westfall, though absolute upon its face, was, in fact, a security by way of mort-' gage. (Horn v. Keteltas, 46 N. Y., 608.) It was recorded simply as a deed, and therefore a purchaser from the grantee, in good faith, or from one deriving title from the grantee, in good faith, with no actual notice of the fact that it was a mortgage, would acquire a good title. (Willard’s Eq. Jur., 430.)

Joseph Westfall’s conveyance on the 1st day of October, 1836, to the Yandormarks, of the 124 acres, vested in them a good title to the premises. It may be assumed that Joseph would have hold the premises subject to his mother’s dower, and to her life estate in Cynthia’s share, and that upon an action brought against him to redeem them from the mortgage debt, the amount being ascertained and paid off or tendered, that the mother would have been entitled to recover her dower and the life estate in Cynthia’s share. But that action was not brought by her while Joseph .had the title to the premises. He sold the premises and received pay therefor from the Yandermarks, and they acquired a good title to them, as we have before seen : now assuming the moneys received by Joseph for the sale to be, for the purposes of the question made here, land, still, the mother must have the amount of the mortgage debt ascertained and paid or tendered, in order to entitle her to come in for any share of the fund remaining after the mortgage debt was paid. She made no claim to such moneys in her lifetime, she did not seek to redeem her dower, nor to redeem her life estate in Cynthia’s share. Presumptively she knew of the sale made by Joseph to the Vandermarks, in October, 1836, and she made no claim upon him prior to her death, which occurred February 14, 1870. Assuming that she had the same right to the moneys that she would to the lands, had they remained in the hands and possession of Joseph, she failed to bring her action in equity for an accounting and ascertainment of the amount due on the mortgage debt, and to redeem therefrom within ten years, and her right of action must be held to be barred by the lapse of thirty-four years or upwards.

It was held that such an action must be brought within ton years in Miner v. Beekman (50 N. Y., 337.) In Hubbell v. Sibley (50 N. Y., 469), it was held that such an action is purely an equitable one and must be brought within ten years, and it was held in that case that the statute begins to run when the mortgagee enters under claim of title. Now, it may be said upon the facts in this case that when Joseph bought the 124 acres in September, 1834, he went into possession as mortgagee and claimed to own the lands.

Again, in October, 1836, when he gave his warranty deed to the Yandermarks, he claimed to own the lands, and took and received the moneys, representing the purchase-money as his own and claimed them, and continued to claim to own them, down to the time of the death of his mother. She made no claim to the contrary of him. She might have brought a suit to have her rights ascertained and declared,' and for leave to pay off the mortgage debt. She delayed to do that while Joseph had the possession of the lands, and she did not bring her action within her lifetime. (2 Wash. Real Estate, 164, book 1, m. p. 555; Sawyer v. Spofford, 4 Cush., 599.) And we think her estate cannot enforce, against- her administrator, a claim to any of the moneys received by Joseph at the time of the sale to the Yander-marks.

The claim is barred by the statute of limitations. (3 E. S. [5th ed.], 515, Code, § 115.) This defense was duly insisted upon before the surrogate, and, we think, was improperly overruled. (Smith v. Remington, 42 Barb., 75.) If it be assumed that the title to the lands remained in the original grantor, inasmuch as his deed was but a mortgage, and that his heirs and widow took from him, then they should have brought their action to redeem or tendered the money due upon the mortgage debt as a condition precedent tp the right to bring a law action for the land or the moneys received therefor. (Trimm v. Marsh, 54 N. Y., 599.)

The action at law was not brought before the same became barred by the statute. Dower is barred by lapse of twenty years. (3 R. S. [5th ed.], 33.) In any aspect we can look upon the claim set up for the proceeds of the land or for the land, wo think it must be held barred by the statute of limitations. (Borst v. Corey, 15 N. Y., 505.) The surrogate therefore erred in charging the administrator, in the settlement of his accounts, with the claim made for a portion of the moneys he received upon the sale of the lauds in October, 1836, to the Yandermarks, and for that error the decree should bo reversed and the proceedings remitted to the surrogate of Monroe, with costs of this appeal allowed to the appellant, to be taxed and allowed him upon the final accounting out of the estate.

Talcott, P. J., and Smith, J., concurred.

Decree of the surrogate of Monroe county reversed, and proceedings remitted to the surrogate, with costs of tins appeal allowed to the defendant on the final accounting.


author: HaiidiN, J. :

text:
    DAVID K. McCARTHY, Respondent, v. PATER McCARTHY, otherwise called, etc., Appellant.

      Substituted service — when ordered— Code of Civil Procedure, § 435.
    What facts are sufficient to authorize an order directing' a substituted service of the summons and complaint under section 435 of the Code of Civil Procedure, considered.
    Appeal from an order denying a motion to set aside an order directing substituted service.
    A motion to vacate the order has already been before the court, and is reported in 54 Howard, 97, and in 20 Now York Supreme Court Reports (13 Hun), 579.
    September 4, 1877, a chamber order was granted directing substituted service of the summons in this action.
    The summons was originally delivered to one Redfield for service, August 22, 1877, and he went to the house of defendant’s father in New York, whore she was supposed to be, on the twenty-third of August, and was informed “she was out shopping.” At a later hour of the same day Hallock went to the same house and was informed by her father he could not see her. August twenty-five Hallock again called and was informed he could not see her. August twenty-seventh one Church called at the house to make service, and was informed she was not in. August twenty-eighth and thirtieth, and September first and third, Bedfield called on Mr. Davis, her attorney, with reference to an appearance in the action, and ho finally refused to appear*. ■September 4, 1877, Mr. Bedfield, on an affidavit of the facts by Hallock, obtained an order for substituted service. Hallock states in the affidavit that he called at the house of Albert Gilbert, her father, on the twenty-third. August and requested to see her, and “was informed by the servant that the said defendant was in the house, and deponent then stated to said servant that he had a paper for her.”- The servant thereupon went up stairs and returned with said Gilbert and the mother of defendant. Hallock then asked to see defendant, as he had a paper for her, and Gilbert then said he was the father of defendant “ and that she could not be seep, and that all communications must be through him.” Hallock called twenty-fifth August and was told she was in, and sick, and her mother said she could not be seen. Hallock also states that “ he has made diligent effort to serve said summons and has watched said house and for said defendant and has been unable to serve her,” and that “ he believes she is keeping herself concealed so that personal service cannot be made.” Upon such proofs the justice determined that it appeared to his satisfaction that proper and diligent effort had been made to serve the summons, and that she is within the State and avoids service so that personal service cannot be made, and thereupon made the proper order. Upon the hearing of the motion, affidavits of explanation and contradiction were submitted to overturn the affidavits used to obtain the order.

      _A. G. Davis and J. K. Porter, for the appellant.
    HiscocJc, Gifford and Doheny, for the respondent.
   HaiidiN, J. :

By section 435 of the Code of Civil Procedure power is given to a justice of this court to order a substituted service upon a defendant residing within this State, “ upon satisfactory proof by the affidavit” of a person not a party to the action * * * that proper and diligent effort has been made to serve the summons upon the defendant,” and that he avoids service so that personal service cannot be made.” First. The affidavit presented called upon tbe justice to determine whether diligence had been used to serve the summons. Second. The efforts were stated and the justice properly determined that they indicated “ that proper and diligent effort had been made ” to serve the summons. Third. That she was within the State. Fourth. And that she avoided service, so that personal service could not be made. The justice was called upon judicially to determine upon “satisfactory proof” and he found all the facts required by the statute to be stated, and upon them concluded that a proper case had been made out for substituted service.

He, therefore, properly exercised the power confered by the 435th section of the Code. In Simpson v. Burch (4 Hun, 316), GilbeRT, J., said : “The evidence presented to him was competent, and tended to prove the facts on which his authority to issue the order depended ; nothing more is required.” (4 Dept.)

The proofs submitted by the defendant upon this motion, and her subsequent efforts to get rid of the order for substituted service, and the affidavits used by the plaintiff, if examined de novo, indicate an effort on the part of the defendant to “ avoid service,” and such conclusion is in harmony with the one reached when the order was granted September 4, 1877, for substituted service. We think the learned justice properly refused to set aside the order for substituted service, and that his order should be affirmed with ten dollars costs and disbursements.

Talcott, P. J., and Smith, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Habdin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff in Error, v. THEODORE T. ADAMS, alias THEODORE T. LING, Defendant in Error.

      Chapter 261 of 1877 — what an offense under — ■ when the discharge of a prisoner is renewable on a writ of error.

    The defendant in error was indicted for a violation of chapter 261 Of the Laws of 1877, providing that “ any person who shall willfully place an obstruction upon any railroad * * so as to endanger the safety of any train * * shall upon conviction be punished,” etc. The counsel for the people, in opening, stated that he would prove that the defendant, unlawfully and without permission jumped upon an engine standing on a side track in the yard at Syracuse, started the same, pursued some ten miles and overtook a freight train, kept it on the track half an hour, and ran the engine back westward on a track used only for trains going east. He admitted that the defendant “ had no purpose to wreck a train.” The court refused to direct the jury to acquit, but discharged the prisoner.

      Seld, that the people were entitled to review the discharge on writ of error.
    That the court erred in directing a discharge, as the case should have been submitted to the jury.
    Writ of error issued to the Court of General Sessions of Onondaga county. The defendant in error was indicted for an alleged violation of chapter 261 of the Laws of 1877, entitled an act ‘1 to punish trespassing on railroads.” The indictment charged that the' defendant, on the 24th of July, 1877, at the town of Manlius, “with force and arms, willfully and maliciously and felo-niously did place and put a certain obstruction, to wit, a locomotive engine, on the New York Central and Hudson River railroad (so called), so as to endanger the safety of a certain train, and the safety of said train was, by means and reason of said obstruction being put and placed on said railroad as aforesaid, greatly ‘ endangered ’ against the form of the statute,” etc.
    The second count charges that, with force, etc., uhe did place a certain obstruction, to wit, a locomotive engine, upon the New York Central and Hudson River railroad (so called) against the form,” etc.
    The defendant pleaded not guilty, and was put upon trial before said court and a jury. The counsel for the people stated the facts to be shown, among others, to wit: 1st. That the defendant, with three or four others, at East Syracuse, in said county, jumped upon an engine standing in the yard, and on a branch track off the main trades, none-of them being engineers, without permission, and unlawfully set the engine in motion and pursued eastward a freight train running east; and, after running the distance of ten miles, overtook and stopped the freight train, and held it on the track for about one-half hour before it was allowed to proceed on •its regular passage; and during all this time the- engine was standing on the track. The engine was run back westward on a track on which trains eastward bound only are allowed to run. Other facts were also stated, and the counsel for the people admitted the defendant “ had no purpose to wreck a train.”
    The prisoner's counsel moved that the court direct the jury to acquit the prisoner, on the ground that the facts stated did not constitute a crime. This motion was denied. The prisoner’s counsel then moved that the court discharge the prisoner on the same grounds. This motion was granted, and the people duly excepted, and asked the court to submit the case to the jury, which motion and request were refused, and the people excepted. Final judgment was entered, and the people obtained a .writ of error to review it.

      W P. Goodell, for the plaintiff' in error.

      Lansing & LymJan, for the defendant in error.
   Habdin, J.:

There was no direction to the jury to acquit. It is made to appear clearly by the case that the court discharged the prisoner, ■and final judgment was entered thereupon, and therefore a writ of error lies in behalf of the people to review. There was a distinct refusal to submit the case to the jury, and the jury did not ■acquit the prisoner. (Chap. 82, Laws of 1852; People v. Bennett, 49 N. Y., 137; People v. Clark, 7 id., 385; Appo v. People, 20 id., 532, and People v. Nestle, 19 id., 583.)

The statute provides that .“any person who shall willfully place an obstruction upon any railroad, * # * so as to endanger the safety of any train-, * * * shall, upon conviction, be punished by imprisonment in State prison.” * * * The indictment charges that the prisoner “ did place and put a certain obstruction, to wit, a locomotive engine, on the New York Central and Hudson River railroad, so as to endanger the safety of a certain train.” The indictment was sufficiently definite in first, naming the town; second, the railroad ; third, the obstruction ; fourth, the fact that it was willfully placed on the railroad; fifth, and so as to endanger the safety of a certain train.

It therefore states all the essential facts to constitute a crime, in violation of the statute aforesaid. The statute declares that the placing of an obstruction, “so as to endanger the safety of a certain train,” shall be a crime. It does not require an affirmative statement in the indictment of an intent to endanger. It is enough if the act is done as charged, to wit, “so as to endanger the safety of a certain train.” That is sufficient to bring the case within the terms of the statute. The natural consequence of the act charged was to endanger the safety of trains. (Reg v. Managhan et al., 11 Cox C. L. Cas., 608; Reg v. Halrogel, 2 Mood. & R., 339; Commonwealth v. Bakeman, 105 Mass., 53.) There was sufficient evidence stated in the opening of the counsel for the people to present a proper case for submission to the jury, and the court erred in refusing to submit the case to the jury, and in granting the motion for the discharge of the prisoner.

The judgment should be reversed and a new trial awarded in the court of General Sessions of Onondaga county, to wVN court the proceedings are remitted.

Talcott, P. J., and Smith, J., concurred.

Ordered accordingly.