text:
    Wilhelmina Gennerich, Resp’t, v. Charles Ulrich et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Estoppel.
    Where an estoppel is claimed upon the ground that it would be unjust to allow a person to stand by and permit another to purchase property, supposing the title to be in the seller, and subsequently claim that property as his own, the evidence of such estoppel must be clear and convincing, and resort cannot be had to inference only.
    2. Same.
    The mere fact that a party knew that her mother had borrowed some money is not sufficient to charge her with knowledge that the mother had also executed a mortgage on her property so as to estop her from after-wards setting up her title as against the mortgagee.
    Appeal from certain portions of an interlocutory judgment of partition.

      Nelson Smith, for app’lt; Rabe & Keller, for pl’ff, resp’t; H. A. McTiernan, for executors, resp’ts.
   Van Brunt, P. J.

There is no objection raised to that part of the decree which provides for a partition of the premises in question, but the appellants appeal from so much of the judgment as seeks to charge the premises with a $1,500 mortgage given to August tom Harve.

One Charles Brendel died in the year 1866 seized of the lot in question, leaving him surviving his widow and four children, his son, Chas. Brendel, Jr., and three daughters, Margaret, then the wife of the defendant, Chas. Ulrich, the defendant, Annie Brendel, and the plaintiff, his only heirs at law. In his life-time the said Chas. Brendel had executed a mortgage upon the said lot to one John Hubener for $1,000. Chas. Brendel, Jr., died in 1867 without issue, and without ever having been married. From the time of the death of Charles Brendel, Sr., up to January 11,1889, when she died, his widow solely exercised active ownership in respect to the said property, and collected the rents. In March, 1877, John Hubener demanded payment of his mortgage, and the widow of Chas. Brendel borrowed from August tom Harve the sum of $1,500, and executed her individual bond, and gave a mortgage upon the premises in question to secure the same.

It was represented to the mortgagee that Mrs. Brendel was the owner of the property and he did not have the title searched. Subsequently Mrs. Ulrich died leaving the appellants her heirs-at-law.

Upon the trial it was established by the evidence of the plaintiff and of the defendant Annie Brendel that Mrs. Ulrich knew that her mother had borrowed this money through the instrumentality of her brother-in-law, and that she thanked her brother-in-law for his kindness to her mother. This brother-in-law, who is one of the executors of the will of the mortgagee tom Harve, was also examined as a witness for the purpose of establishing the knowledge of Mrs. Ulrich .of the giving of this mortgage. This evidence was objected to upon the ground that he was a party in interest hostile to the appellants, and that he could not testify to personal transactions between himself and Mrs. Ulrich.

This objection alone would seem to be fatal to the judgment as it stands, because it is clear that this executor, as far as the establishment of the lien of this mortgage is concerned, was a party in interest and testifying in his own behalf to conversations and transactions between himself and a deceased party.

But we think that there is no evidence going to show that Mrs. Ulrich had any knowledge whatever that her interest in this property was attempted to be mortgaged by her mother to secure this loan. She undoubtedly knew that her mother borrowed the money and probably that she had given a mortgage, but as to its nature or extent there is no proof whatever:

H the evidence established that, although her mother had not the title to this property, she stood by and allowed her to mortgage it as though she were the owner, she would be estopped from setting up her title as against the mortgagee; but the case is entirely barren of evidence going to show that she had any idea that her mother was claiming the right to mortgage her interest in the property in question.

In order that an estoppel of this kind snail be sustained the evidence tending to establish it must be of a satisfactory nature. It must be clear and convincing and resort cannot be had to inference only.

It is the deprivation of a party of his property upon the theory that it would be unjust to allow a person to stand by and permit another to purchase property supposing the title to be in the seller and subsequently claim that property as his own. The evidence in the case at bar is not of such a character. It is meagre at the best and its whole strength depends upon the inference which it is claimed may be drawn therefrom that Mrs. Ulrich must have known all about the details of this transaction of her mother’s.

We do not think the mere fact of Mrs. Ulrich’s'knowledge that her mother had borrowed some money is sufficient to charge her with knowledge that she had also executed a mortgage upon her property, and this seems to be all that the evidence established. It is clear that such testimony would entirely fail to support the proposition that Mrs. Ulrich ever gave her consent to the mortgage in question.

The judgment so far as it is appealed from should be reversed and a' new trial ordered, with costs to appellant to abide event.

Beady and Daniels, JJ., concur.


source: Caselaw Access Project

author: Dwight, P. J.

license: Public Domain

text:
    The People, Resp’ts, v. Thomas H. Eddy, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Dairy law—Adulterated milk—Evidence.
    The crime of selling adulterated milk under § 1 of chap. SOS, Laws 1884, is made out by proof by chemical analysis that such milk was below the standard fixed by the act. Guilty knowledge or criminal intent form no ingredient of the crime, and hence evidence to show that defendant neither knew nor had reason to suspect that the milk was below standard quality; that it was as it came from the cows, which were perfectly healthy and well fed, and that the condition of the milk was caused by the rapid and watery growth of the grass in a wet season, is immaterial, irrelevant and inadmissible.
    Appeal by the defendant from a judgment of the court of sessions of Monroe county,- affirming a judgment of the police court of the city of Eochester, convicting the defendant of the crime of selling adulterated milk, and from an order denying defendant’s motion for a new trial on newly discovered evidence.

      Wm. H. Davis, for app’lt; J. W. Taylor, for resp’ts.
   Dwight, P. J.

The was under 202 of the Laws of 1884. By § 1 of that act the sale of any “unclean, impure, unhealthy, adulterated or unwholesome milk ” is declared to be a misdemeanor. By § 13 it is provided that “ in all prosecutions under this act relating to the sale * * * of unclean, impure, unhealthy, adulterated or unwolesome milk, if the milk be shown to contain more than 88 per centum of water or fluids, or less than 12 per centum of milk solids which shall contain not less than 3 per centum of fat, it shall he declared to he adulterated."

The provisions of this statute have received repeated interpretation at the hands of this court and of the court of appeals, and its operation and effect are no longer subject of discussion. It is settled that guilty knowledge or criminal intent not only are not required to be shown, but they need not even be presumed to exist ; that neither is requisite to constitute the crime; that “ as the law stands knowledge or intention form no element of the crime; ” .that “ the act itself, irrespective of motive, constitutes the crime.”' People v. Kibler, 106 N. Y., 323; 8 N. Y. State Rep., 707; People v. West, 106 N. Y, 293; 8 N. Y. State Rep., 713; People v. Schaeffer, 41 Hun, 23; 2 N. Y. State Rep., 705. It is also settled that it was competent for the legislature to prescribe, as they have done in this case, a mode and kind of proof, namely, by chemical analysis, conclusive of guilt and incapable of contradiction except by other chemical analysis. In the case of the People v. Cipperly, 37 Hun, 324, it was held by a majority of the general term in the third department, that to convict and punish a man for crime without proof of guilty knowledge or criminal intent, upon evidence arbitrarily prescribed, purely technical in character and incapable of refutation by the ordinary modes of contradiction, was to deprive him of liberty or property without due process of law. But the' learned presiding justice of that court held otherwise, and the dissenting opinion by which he upheld his views was adopted by the court of last resort as a correct exposition of the law. People v. Cipperly, 101 N. Y., 634.

These decisions are conclusive upon all the real questions in this case. Under the law as thus settled all the evidence given or offered by the defendant showing, or tending to show, that he neither knew nor had reason to suspect that the milk sold by him was of less than standard quality; that it was in fact absolutely pure and as it came from the udders of his cows; that his cows had been carefully selected, were in perfect health, cleanly kept and well and properly fed; all the evidence tending to show, and which the jury, if the question might have been submitted to them, would probably have found that the fraction of a few hundredths of one per cent by which the milk fell below the statutory standard was due to the rapid and watery growth of the grass in a season of almost constant rains; all this evidence was entirely unavailing to the defendant; it was irrelevant and immaterial, because it did not tend to controvert the evidence furnished by the chemical analysis, upon which evidence alone, by the terms of the statute, the milk must be “ declared to be adulterated.”

In this view of the case there was no error to the prejudice of the defendant in the rulings of the police justice upon the admission of evidence, nor in his instructions to the jury. There being no evidence to impeach the correctness of the chemical analysis it was only a matter of form to submit to the jury the question whether the defendant’s milk was adulterated,” within the definition of the statute. There was but one verdict which the jury could render, and the well-meaning attempt of the justice to reconcile their minds to the inevitable duty by a defense of the statute may not have been entirely successful, but it was entirely immaterial.

The affidavits which seem to have been presented to the court of sessions as the basis of a motion for a new trial on the ground of newly-discovered evidence, lack the requisites of proof for that purpose.

The judgment and order appealed from must be affirmed.

Judgment and order appealed from affirmed and case remitted to the court of sessions of Monroe county to proceed therein.

Macomber and Corlett, JJ., concur.


text:
    The People, Resp’ts. v. Charles H. Schad, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    New trial—Misbehavior of jury.
    After the jury had retired and during the time they were deliberating on their verdict, one of them separated from the rest, went to the bar of the hotel where they weie taking their meals, and called for and drank brandy. Held, that this was misconduct on the part of the jury which furnished ground for setting aside the verdict and granting a new trial in the case of a prosecution for a felony,
    Appeal from a judgment of conviction of the court of sessions of Niagara county, and from an order denying the defendant’s motion for a new trial.

      John T. Murray, for app’lt; P. F. King, district-attorney, for resp’ts.
   Dwight, P. J.

The specification, in the notice of appeal, of the order denying the defendant’s motion for a new trial, was unnecessary, since the statute provides that upon an appeal from the judgment the decision of the court on the motion for a new trial may be reviewed. Code of Crim. Pro., §§ 485, 517.

The conviction was of a felony, and the judgment pronounced was of imprisonment in the state prison for the term of five years and eight months.

The motion for a new trial was on the ground of misbehavior ■of the jury. The facts, in this respect, conceded to be true, are "that after the jury had retired to deliberate on their verdict, the officer having them in charge, without leave of the court, took them to dinner at a hotel a quarter of a mile distant from the court house; that before dinner one of the jurors separated himself from his fellows and entered the public bar-room of the hotel, where he called for and drank brandy at the bar; that on the same occasion another juror, after dinner, went alone to the water closet in the basement of the hotel, and the jury having in the meantime set out to return to the court house, he followed, but did not overtake them until they arrived at the court house; that when, by leave of the court, the jury, not having yet agreed upon a verdict, were taken to the hotel for supper, the same juryman who had taken brandy before his dinner repeated the indulgence before eating his supper, going alone as before to the bar-room for that purpose.

We have no hesitation in saying that this narrative discloses misconduct on the part of the jury which vitiated the verdict and for which a new trial should have been granted. The conduct of the officer in taking the jury to dinner without leave of the court, and permitting two of the jurors to separate from their fellows, was in violation of his oath “ to keep the jury together in some private and convenient place without meat or drink, water excepted and, by express provision of the statute, it was in the power of the court in which the trial was had to set aside the verdict for the sole cause of the separation of the jury. Code Grim. Pro., § 465, subd. 3. The provision cited specifies, among other cases in which the trial court may grant a new trial, the case “ when the jury have separated without leave of the court after retiring to deliberate upon their verdict.” The concluding clause of the subdivision, viz.: “ or have been guilty of any misconduct by which a fair and due consideration of the case has been prevented,” is disjunctive in effect as it is in form, and relates to acts of misconduct other than that particularly specified. In this case, in the absence of evidence that either of the jurors, while separated from his fellows, conversed with any person on the subject of the trial, we should, no doubt, support the trial court in the exercise of its discretion not to grant a new trial for the sole cause of the separation of the jury; but the conceded fact that during the time devoted to the deliberations of the jury one of their number twice indulged in the use of intoxicating liquor, we regard as_fatal to the verdict. The last clause of subd. 3 of § 485, above quoted, must be regarded as including all acts of misconduct on the part of the jury or of a juror which either are shown or may be presumed to have interfered with the due and proper consideration of the case submitted to them. It is apparent that there are few cases in which actual prejudice can be affirmatively shown to have resulted from any misconduct of a jury. Even though it were shown that a juror has been subjected outside the jury room to direct personal efforts to influence his action, it would be easy for him to affirm, and impossible to deny, that his mind was already made up and that his action was wholly unaffected by the attempt to influence it.

But no one will contend that in such a case the verdict should stand or that it would be in the discretion of the trial court to refuse to set it aside. So in respect to the use of intoxicating liquor, it is impossible for the court to measure or estimate the effect of an alcoholic stimulant, which varies with the susceptibility of the person by whom it is taken ; it is enough that its well known tendency is to produce an abnormal elevation, and, in the reaction, a corresponding depression of mind, and a consequent disturbance, in a greater or less degree, of the reasoning powers. It is for this reason that the use of intoxicating liquor by jurors while deliberating on their verdict is not permitted except as a necessary medicine; and its unauthorized use, at such time, by one or more jurors has usually been regarded in this country as furnishing ground for setting aside a verdict in a case -of felony.

In the early and leading case of Commonwealth v. McCaul, 1 Virginia Cases, 271, the report of which is reproduced in a note to the case of Smith v. Thompson, 1 Cowen, 235-237, Mr. William Wirt challenged the prosecution to cite a case in which a verdict of felony, procured under such circumstances, had been allowed to stand. It was with reference to that case that Mr. John 0. Spencer, for the prisoner, in the case of the People v. Douylass, 4 Cowen, 26, said: “ The great principle decided by this case is that the door to abuse shall not be opened.” In the case of the People v. Lee Chuck, reported in 39 Alb. Law Journal, 354, the supreme court of California reviewed the cases on this subject in all the states, and reached the conclusion “ that where the proof of the drinking is clear and undisputed, and that it was done while the jury was actually deliberating upon their verdict in a capital case, a verdict of conviction should not be allowed to stand.”

There can be no valid distinction in this respect between the case of a capital and that of any other felony. It is instructive to note that the decision in California was made under a provision of the Penal Code of that state which is a transcript of subdivision 3 of § 465, supra, of our Criminal Code. The fact that in the California case the use of wine with their dinner was indulged in by all, or most of the jurors, is unimportant; the defendant on trial has the right to the exercise of the cool, clear and undisturbed judgment of every member of the jury, and whether it be the intellect of one or more of the twelve which has been clouded or unbalanced by the use of alcoholic stimulants, the effect, in eithér case, must be equally fatal to the verdict rendered. ‘

We think the court of sessions in this case failed to attach due importance to the facts bearing upon the question here discussed, and erred in not granting defendant’s motion for a new trial.

The judgment appealed from should be reversed, and anew trial granted.

Judgment reversed, and a new trial granted, with costs to abide the event .

Macomber and Corlett, JJ., concur.


author: Corlett, J. Dwight, P. J.

text:
    The People, Resp’ts, v. Thomas F. Stark, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Lebel—Indictment.
    An indictment for libel under § 243 of the Penal Code must state the manner in which the publication was made. A mere allegation that the libel specified was published by defendant is not sufficient.
    2. Same—Evidence.
    In a criminal prosecution fpr libel, it is error to exclude evidence on the part of the defendant tending to show that no malicious intent existed on his part, especially where the evidence tends to show a conspiracy between the complainant and another to cause the publication with a view to prosecute the defendant.
    Appeal from a judgment of the Wayne court of sessions, convicting the defendant of libel.

      W. Henry Davis, for app’lt: John H. Camp, for resp’ts.
   Corlett, J.

In June, 1889, the grand jury of Wayne county at a court of oyer and terminer found an indictment against the defendant, the formal parts of which are as follows:

“ The grand jury of the county of Wayne, by this indictment accuse Thomas F. Stark, of the city of Rochester, in the county of Monroe, of the crime of publishing a libel, committed as follows, to wit: “ That the said Thomas F. Stark, at the town of Savannah, in the county of Wayne, on or about the 5th day of March, in the year of our Lord one thousand eight hundred and eighty-nine, and prior to the date hereof, wrongfully, unlawfully and maliciously did publish of and concerning one Asa T. Soule, and of and concerning the part alleged to have been taken by him, said Asa T. Soule, in a certain riot which occurred at and in the city of ■Cimarron, in the county of Gray, and state of Kansas, on the 12th day of January, A. D. one thousand eight hundred and eighty-nine, in which said riot, and during the continuance thereof, certain guns and pistols then and there being loaded with powder and leaden balls, and held in the hands of certain person or persons to the grand jury aforesaid unknown, who were then and there engaged in said riot, were shot off and discharged by the said persons so holding them as aforesaid, by reason and in consequence of which said holding in the hands, shooting off and discharge of said guns and pistols so loaded as aforesaid, one man was killed and eight other men each received and suffered gun-shot wounds in and upon or about their respective bodies, a false, scandalous and malicious libel in the words and of the tenor following: ”

Then it contains a copy of the alleged libel.

The indictment was sent to the court of sessions, and in December of the same year the defendant was tried upon it in that court. He was convicted and sentenced to imprisonment in the Monroe county penitentiary for ten months. A stay was obtained and the defendant appealed to this court

The case shows that the defendant demurred to the indictment upon the ground that no criminal offense was alleged. The court overruled the demurrer. On the trial evidence was objected to on the same ground and overruled, to which exception was taken by the defendant’s counsel. A motion in arrest of judgment was also made upon the same ground, which was denied, and exception taken.

The evidence showed that the defendant lived in the city of Rochester, and that Soule lived either in Rochester or Savannah. It also tended to show that in February, 1889, the defendant sent to Ammon S. Farnum, a resident of Savannah, Wayne county, a newspaper containing the alleged libel set out in the indictment. The defendant objected to the evidence upon the ground that the facts were not alleged in the indictment, and the other grounds above stated. The objections were overruled, the defendant excepted and the article in the newspaper was read in evidence. The evidence also tended-to show that Farnum wrote to the defendant and got the newspaper at the request of Asa T. Soule, the person libeled; also, that the purpose was to obtain evidence to secure the indictment and conviction of the defendant.

On the trial’the defendant was examined as a witness and asked on his own behalf this question: “Did you have any malice or malicious intent when you sent that paper? ” The counsel for the People objected to the evidence. The court sustained the objection and the defendant excepted.

Section 242 of the Penal Code defines a libel as follows :

“A malicious publication by writing, printing, picture, effigy, sign or otherwise than by mere speech, which shall expose any living person, or the memory of any person now deceased, to hatred, contempt, ridicule or obloquy, or which causes or tends to cause any person to be shunned or avoided, or which has a tendency to injure any person, corporation or association of persons in his or then- business or occupation, is a libel.”

Townshend on Slander and Libel (3rd ed.), § 95, p. 146, states among other things, as follows: “Any communication of language by one to another, is a publication.”

Section 98 states : “ The publication of language may be oral or in writing; the distinction is material to be observed as it marks 'the boundary line between slander and libel.”

Section 99 is: “ Where the communication has not been reduced to writing its communication from one to another must be an oral publication.”

Section 242 of the Penal Code above quoted shows that a libel may be “ by mere speech,” but such a form of libel is not indictable. The distinction is shown in § 98 of Townshend above quoted. .

Webster, also, defines a publication as being by words or writing.

There is nothing in the indictment showing whether the libel was written, printed or spoken

It was long since held that the indictment must show on its face that the libel was written or printed. 2 Archbold’s Criminal Practice and Pleadings (7th ed.), pages 223, 224.

It is the rule that where an exception is stated in the statute defining the offense, the indictment must show that the case is not within the exception People v. Brown, 6 Parker’s Crim., 666.

In Jefferson v. People, 101 N. Y., 19, this rule is restated; but it was held not to be applicable to the indictment in that case.

In Harris et al. v. White, 81 N. Y, 532, it was held that where the exception is contained in the enacting clause, the indictment must negative the exception. The "exception in the present case is embodied in the section of the statute creating the offense, the enacting clause.

If the publication was by words it'would be simply slander and not indictable. There are no exceptions" to the rule that an indictment upon a statute must state all the facts and circumstances which constitute the statutory offense, so as to bring the accused perfectly within the provisions of the statute. People v. Allen, 5 Denio, 76; People v. Taylor, 3 id., 91; People v. Burns, 7 N. Y. Crim., 96; 25 N. Y. State Rep., 97; People v. Dumar, 106 N. Y, 505; 11 N. Y. State Rep., 19; Phelps v. People, 72 N. Y, 349.

The exception here is in the section defining the offense and the enacting clause. People v. Robertson, 3 Wheeler’s Crim. Cases, 189.

Even in an action to recover damages for fraud, it is the established rule that where the proof is equally consistent with guilt or innocence, there must be a verdict for the defendant Morris et al. v. Talcott, 96 N. Y., 100.

It is also settled that a party in pleading must clearly state his cause of action or defense, and when a statement in a pleading is susceptible of two meanings, the one most unfavorable to the pleader must be adopted. Clark v. Dillon, 97 N. Y., 370.

In criminal cases it is the universal rule that where the indictment will admit of a construction in favor of innocence, it should be adopted.

Construing this indictment by these rules, which may'be treated as practically elementary, it is obvious that it fails to charge a criminal offense. The alleged libel may have been simply the verbal utterances of the defendant. There is nothing in the bill which charges him with either writing, printing or circulating written or printed matter. It necessarily follows that no criminal offense is charged in the indictment.

This doctrine is illustrated in People v. Standish, 6 Parker’s Crim., 111. In that case the defendant was indicted for illegal voting. It was alleged generally that he “ not then and there being a qualified voter ” did vote, etc. The particular disqualification under which he rested was not alleged. It was proven upon the trial that the defendant made a bet which under the statute disqualified him. The court held that the particular disqualification should have been alleged in the indictment “ Those facts which give character to the act, and which render it criminal, should be alleged in the indictment, otherwise the great object of pleading, that of informing the party what he is called upon to answer, will be defeated.”

The indictment omits to state, as before suggested, whether the alleged libel was spoken, written or printed; it also fails to state the manner or mode of publication; whether he wrote to Farnum or sent him the newspaper, or went to his residence and talked with him, is nowhere stated It is not even stated that he published it to Farnum, or to whom or in what way he published it; nor is it alleged that any of the above omissions were unknown to the juror’s. The cases above quoted throw light upon this branch of the case, and tend to show that all the particulars requisite to show the exact character and nature of the offense must be clearly stated. But the proposition has been decided in numerous analogous cases.

In prosecutions for the sale of liquor, it has been repeatedly held that the name of the person to whom sales were made, or that it was unknown to the jurors, must be stated. Commonwealth v Thurlow, 24 Pick., 378; Commonwealth v. Thornton, 14 Gray, 41; Commonwealth v. Murphy, 2 id., 513.

In People v. Burns, decided under the new Criminal Code, 7 N. Y. Crim., 96; 25 N. Y. State Rep., 97, the indictment charged the defendant with selling impure milk, but there was no statement showing to whom the sale was made. The court held this to be a fatal defect

Section 275 of the Code of Criminal Procedure shows that an indictment must contain “ a plain and concise statement of the act constituting the crime, without unnecessary repetition.”

The act in this indictment is not stated at all. It merely alleges the publication of a libel, which is a mere conclusion of law, but it contains no plain or other statement of the facts, how it was published, or in what way the act was criminal. The question whether a publication is, or is not, a libel depends upon the facts. The term libel without further allegations involves simply a legal proposition.

In Butler v. Viele, 44 Barb., 166, it was held that where the complaint alleged that a deed was procured by false and fraudulent representations and practices, and by undue and improper influences, it stated mere conclusions of law and failed to show a cause of action. To the same effect are all the cases. Bonnell v. Griswold, 68 N. Y., 294; Cohn v. Goldman, 76 id., 284; Buffalo Cath. Inst. v. Bitter et al., 87 id, 250.

The indictment in the case at bar simply charges the publication of a libel without alleging any facts.

It is obvious, therefore, that the indictment in the two particulars above stated is fatally defective. In addition to this a serious question arises whether the record of conviction would be a bar to another prosecution on account of its vagueness and uncertainty, it being in evidence that numerous papers might be sent to different persons in different localities and counties, and that the defendant might be guilty of a great number of criminal offenses. But the indictment in the case at bar throws no light upon which of these various offenses the indictment was founded. Phelps v. People, 72 N. Y., 349, illustrates the necessity of this certainty. The publication, as the statute above quoted shows, to be libelous must be malicious. Malice imports an evil intent, or wish or design to vex, annoy or injure another person. Section 718 of the Penal Code.

To constitute a crime, there must in all cases be a criminal intent. Reg. v. Mullins, 3 Cox’s Crim. Cases, 526; People v. Farrell, 30 Cal., 316; Town of St. Charles v. O'Mailey, 18 Ill., 407; Campbell v. Commonwealth, 84 Pa. St, 197; Genet v. Mitchell, 7 Johns., 130; People v. Terrell, 33 N. Y. State Rep., 368; People v. Sullivan, 4 N. Y. Crim., 197.

At one time it was looked upon as doubtful whether the party accused could swear directly as to his intent when that question was involved in the issue.

In People v. Baker, 96 N. Y., 340, while the indictment was for obtaining property under false pretences, the defendant was asked by his counsel to state what was his intention in receiving the $575. This was objected to, excluded and held error. The same principle is decided in McKown v. Hunter, 30 N. Y., 625, which was a case for malicious prosecution. Another illustration is found in Kerrains v. People, 60 N. Y., 228, which was the case of an- assault with a deadly weapon with intent to kill. The question in that case was: “What was your intention in taking the ax from the shed ? ” It was rejected. The court on appeal held this to be error, and reversed the judgment.

The principle decided in the above cases clearly shows that it was error to reject the evidence of the defendant in this case. Where the question involved in the issue is a material fact, it is of no consequence whether it is fraud, malicious prosecution, assault or libel. There can be no'conviction for libel, as the statute shows, without a malicious intent. And when it was proposed to show by the defendant that no such intent existed on his part, it was error to reject the evidence within the above authorities. Where the question of .intent is material, it may be negatived by the parties accused, under the rules new firmly established.

In the case at bar there is another reason in favor of its admission. The evidence tended to show that there was a conspiracy on the part of the person alleged to be libeled with Farnum to cause the publication with a view to prosecute the defendant He was written to to send the paper; he complied with this request with the understanding that it was to be returned to him. Under these circumstances, it is very clear that the motive he had in sending the paper might bear directly upon the question of his guilt.

The learned counsel for the respondent argues that the publication of the libel imports malice. This is true; but the statute does not go to the length of making the publication conclusive evidence on that question.

The case does not rest upon the rejection of evidence, but is necessarily disposed of by the fatal defects in the indictment

It follows that the conviction must be reversed and the defendant discharged.

Dwight, P. J.

I fully concur in the opinion of Justice Corlett, to the effect that the indictment in this case was fatally defective, for the want of a sufficient description of the offense sought to be charged.

An indictment is an accusation in writing * * * charging a person with a crime. Code of Grim. Pro., § 254. It must contain a plain and concise statement of the act constituting the crime. Id., § 275. The crime sought to be charged in this case was the publication of a libel. Penal Code, § 243. In the indictment that crime is charged, in terms, without any statement of the act of the defendant which constituted the crime. The words and tenor of the alleged false," scandalous and malicious publication are set out in the indictment, but there is no statement of the manner in which the publication was made. Such a statement was essential to the indictment because the manner of the publication was of the essence of the crime. It is not every false, scandalous and malicious publication which constitutes a libel. By statutory definition such publication must be “by writing, printing, picture, effigy, sign or otherwise than by mere speech.” Penal Code, § 242. There is no allegation in this indictment that the publication was by either of the means specified, or that it was otherwise than by mere speech.

Counsel for the prosecution refers to § 289 of the Code of Criminal Procedure as justifying the omission of a more full description of the offense. But it is very clear that the provisions of that section have no application to the question here considered. The section reads: “An indictment for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled of the defamatory matter on which the indictment is based; but it is sufficient to state generally that the same was published concerning him; and the fact that it was so published must be established on the trial.”

It is plain that the sole purpose and effect of this provision is to dispense with the allegation of extrinsic facts of the particular character specified, viz., of facts showing the application of the libel to the complainant; that it prescribes a form of allegation sufficient in that respect alone; that it substitutes for the allegation of those extrinsic facts the general statement that the defamatory matter was published - concerning the party charged to be libeled, and that it does not dispense with the allegation of all or any facts necessary to bring the act of the defendant within the definition of the crime sought to be charged.

The question of the sufficiency of this indictment is presented by several exceptions of the defendant, any one of which was fatal to the judgment.

The judgment of the court of sessions of Wayne county must be reversed, the indictment dismissed and the defendant discharged.

Macomber, J., concurs.


author: Corlett, J.

text:
    The People, Pl’ffs, v. Charles Featherly, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Game law—Great Sodus Bat a part op Lake Ontario.
    Great Sodus Bay is a part of Lake Ontario, and within the exemption contained in chap. 534, Laws of 1879.
    Application for judgment on a verdict directed in favor of the plaintiff- for fifty dollars, subject to the opinion of this, court

      Howard H Widener, for pl’ffs; John Gillette, for deft
   Corlett, J.

This action was brought to recover penalties for the alleged illegal shooting of duck on the waters of Great Sodus Bay, contrary to the provisions of the “Act for the preservation of moose, wild deer, birds, fish and other game.” Chap. 534 of the Laws of 1879. The charge in the complaint against the defendant was, that he used a floating battery or device which concealed him, for the purpose of killing wild geese, brant and duck on Great Sodus Bay, in the county of Wayne, contrary to the provisions of § 6 of the session laws above referred to. The second count of the complaint charged the defendant with shooting out of this battery, at the time mentioned, at wild geese, brant and duck. Judgment for $100 was demanded.

Section 6 of the act referred to, is as follows:

“ No person shall use any floating battery, machine or other device, whereby the gunner is concealed, for the purpose of killing any wild fowl, or shoot out of ■ any such floating battery, machine or device, at any wild goose, brant or duck, in any of the waters of this state, or use any decoy or construct any bow-house, at a greater distance than twenty rods from the shore,- for the purpose of shooting at or killing any such birds. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of fifty dollars for each offense. But nothing in this section shall apply to the waters of the Great South Bay west of Smith’s Point, or the waters of Peconic Bay, or Shinnecock Bay or Lake Ontario, or the River St Lawrence, or the Hudson River below Albany.”

The answer put in issue any unlawful act on the part of the defendant. The record shows no exceptions. At the close of the evidence the court directed a verdict of fifty dollars for the plaintiffs, subject to the opinion of this court

George M. Schwartz, one of the fish and game inspectors of this state, went to Sodus Bay in April, 1890, on information that the game law had been, or would be violated.

Sodus Bay is a body of fresh water in Wayne county, about five miles long and three miles wide, which has an opening into Lake Ontario,- from which it is separated by a bar about a mile in length. This bar varies in width from three to ten rods, with bushes or/small trees growing upon it at different places. At times this bar would be washed away at places by the waters of the lake, but at the time of the trial there was practically but one outlet, which was three hundred or four hundred feet wide, at the west end of the bar. This outlet is dredged to make a harbor for vessels, and is protected by piers. The lake shore is on the north side of the bay, and is not ordinarily connected except by the channel.

Several streams empty into the bay, known as the First, Second and Third Creeks on the west side, and Glenmark creek at the head of the bay. More or less water continually flows in those creeks, but in dry weather the amount conveyed by them is comparatively trifling. There is also a small stream of the east side of the bay called Clark’s Creek. Heavy winds from a northerly direction occasionally break over the bar from the lake and make openings through it.

On the first day of April, 1890, the defendant was in a floating battery on Long Island near the bay. This contrivance was six feet square and six feet deep,with eaves out about twelve feet The whole arrangement concealed the defendant from view. Nearly two hundred decoys were anchored about this machine, which was between- sixteen and forty rods from the shore. He shot out of this box at ducks. It does not appear that he hit any, but at the time they were flying about.

The controlling question before the court is whether Sodus Bay is a part of Lake Ontario. The only evidence given on the trial bearing on the subject is as follows

Schwartz, the game inspector, testified, among other things: “ I do not doubt that some of the waters in the bay come from Lake Ontario. There is quite a channel for it to come from the lake into the bay. I do not know how much. It is wide enough to have boats run in. There are three or four hundred feet of the channel which is navigable.”

Frederick C. Wickam, a witness for the defendant, testified in substance that he had sailed on the bay, and had for forty years. That the sand bar between the lake and the bay, so far as he had any knowledge or recollection, was formed by the action of the waters and waves of the lake. That he had known gaps to wash through the bar on different occasions.

Charles A. Featherly, the defendant, testified in his own behalf that at the time of the shooting he was not over sixteen rods from the shore, and a little less than a mile from the lake. That for more than forty years he had been familiar with the bay and outlets. That but a small portion of the waters of the' bay comes from the creeks; that the great bulk is supplied by the lake. When the wind would be in a certain direction, the waters of the lake would wash over the bar, and there would be a strong current in the channel running three or four miles an hour, three or four hundred feet wide; that the channel was sixteen feet deep.

. Edward H. Sentell, a witness for the defendant, testified in substance that he had lived on Sodus Point sixteen years, and was familiar with it and the lake, including the streams. That at certain seasons of the year considerable water would flow from the streams, but in dry times very little. That occasionally the bar would in places be entirely carried away by the waters of the lake, and that the supply of the waters of the bay was furnished mainly from the lake. That in the channel there is a natural flow in and out, the waters running both ways at short intervals, and that the flow did not altogether depend on the.direction of the wind. That the bay was navigable from the lake before the piers were built, since which dredging was necessary to keep the channel open. He also testified in substance that occasionally the waters of the lake and bay would commingle by the washing out of portions of the bar.

Section 23 of the above act provides that, “ No person shall kill or catch, or attempt to kill or catch, any fish except minnows, bullheads, eels, suckers and catfish in any of the fresh waters or canals of this state, or in the American waters of the St. Lawrence river, or in the waters of the Niagara river on the American side, between the falls of said river and Lake Erie, in any way or manner, or by any device whatever, except that of angling with hook and line, save only in the following waters, viz.: the Hudson river, below the dam at Troy; Black river, in the county of St. Lawrence; St. Regis river, Grass river and Racket river, below the line of the Ogdensburg & Lake Champlain railroad; and in Lake Ontario, except Great Sodus Bay, Port Bay, East Bay, in the county of Wayne; Henderson Harbor or Henderson Bay, in the county of Jefferson; and, also, except in Lake Otsego, and also in Lake Champlain, during the month of October and the first fifteen days in November.”

The learned counsel for the defendant contends that this section proves that the legislature construed Sodus Bay to be a part of Lake Ontario, and urges this view, in connection with others, in support of his contention that the bay was a part of the lake. In view of the location of the bay, which was nearly separated by a sand-bar from the waters of the lake, it is quite evident that the bay was originally part of the lake.

All the evidence satisfactorily' shows that the creeks feeding the bay were inadequate to supply anything like the amount of water it contained. The lake and bay emptied into each other, the flow either way being determined by the course and strength of the wind.

If it had been the intention of the legislature to exclude shooting in the bay, when it was allowed in the lake, it is reasonable to assume that clear language would have been used to show such legislative intent. But when in the same chapter creating the offense the legislature indicate that they construed the bay as belonging to the, lake, it would require a forced construction to treat it as forming no part of the lake.

The general rule is, that an act will not be construed as imposing a penalty if the language will fairly admit of a different construction. Hayes v. Davidson, 98 N. Y., 22; Wood v. Erie R. R. Co., 72 id., 198; Hintermister v. First Nat. Bk., 64 id., 212; Hoyt v. Bennett, 50 id., 538; Verona Central Cheese Co. v. Murtaugh, 50 id., 317.

7If sufficient reasons existed for having different rules on the subject of game for Sodus Bay from those which apply to the lake, the legislature would have made them. But in view of the fact that all the probabilities as well as the evidence indicate that the waters of the lake and bay were tíre same, and that the bar was formed by the action of wind and, wave, it would be a forced construction to hold that under the charter referred to a person shooting in the bay would be liable for a penalty, and, also, guilty of a misdemeanor, while one doing like acts upon the lake would be exempt.

Penalties should not be imposed or punishments inflicted unless clearly authorized by statute or other provision of law.

In Lawton v. Steele, 119 N. Y., 226; 29 N. Y. State Rep., 581, Black River Bay of the lake was held to be a part of it.

The defendant’s act was not prohibited by the statute, and judgment must be directed in his favor.

Dwight, P. J., and Macomber, J., concur.


author: Macomber, J.

text:
    Jennie B. Dewey, Resp’t, v. Calvin P. Brown, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Services—Commissions oe traveling agent.
    Plaintiff’s assignor was employed by defendant to sell Ms goods wMle on a trip in the west. Orders were obtained by Mm on such trip, and on his return, at defendant’s request, he wrote to persons he had seen, soliciting further orders, which were obtained. No new employment by defendant on his return was shown. Held, that plaintiff was entitled to recover commissions on the sales so procured by letter; that for aught that appeared the letters were but a continuation of the efforts to secure sales, though sent at defendant’s special request.

      Appeal from, a judgment entered in the clerk’s office of Ontario county on the 8th day of May, 1890, for the sum of $551.08, upon a report of a referee.

      H M. Morse, for app’lt; EHdwin T. Hicks, for resp’t
   Macomber, J.

This action was brought to recover commissions upon sales made by the plaintiff’s assignor, Albert L. Dewey, in behalf of the defendant, in the months of November and December, 1886, in the states of Ohio and Michigan.

The defendant is the proprietor of a manufacturing establishment known as the Shortsville Wheel Company. On the 20th of November, 1886, a verbal contract was made between Albert L. Dewey, the plaintiff’s assignor, and the defendant, whereby Dewey agreed to sell wheels for the defendant during a trip which he then contemplated in Michigan and elsewhere. The compensation secured by this agreement to Dewey on all sales made or orders taken by him was a commission of five per cent, being the sum ordinarily allowed for such services by the defendant and other manufacturers. After bis return from a canvassing trip in the states of Ohio and Michigan, and on the 27th day of December, 1886, Dewey, at the request of the defendant, wrote to various persons and companies soliciting further orders for wheels to be filled as they should be wanted during the year 1887.

The referee has found, upon adequate testimony, that while the agent was in these states, and between November 20th and December 27, 1886, he took orders for wheels for the defendant of the persons, corporations and firms named in the report. In response to such letters written by Dewhy after his return home, orders were sent in from some of such persons so addressed, and the total sales made by the defendant upon such orders were $12,088.54, five per cent of which would be $604.18. There remained unpaid to the plaintiff’s assignor the amount of these moneys stated in the report.

The principal litigation turns upon the question whether or not Albert L. Dewey was entitled to commissions on these particular orders so procured at least in part by letter. The contention in behalf of the appellant is that he is entitled only to commissions upon such sales as he effected while personally in Ohio and Michigan, and not on sales which resulted from letters which he wrote after his return home. The defendant, though availing himself of the profits of such orders given in response to Dewey's letters, seeks to avoid liability upon the ground that Dewey’s services ceased upon his return home as an agent travelling upon commissions, and that he was engaged merely in clerical work for the accommodation of the defendant in writing these letters. But the defendant has failed to show any new employment of Dewey. After the latter’s return home, the interview and consultation between the employer and employe were in harmony with the original contract and supplemental thereto. We are unable to discover any reason why the commissions of the agent should be limited to the orders'personally received by him while away from home. For aught that appears, the soliciting letters, written after his return from his western trip, were but a continuation- of his efforts to secure sales, though sent at the special instance of the defendant. It is not perceived that the orders so sent in were different in character from those the agent had personally received.

It follows, therefore, that when the sales made by the defendant resulted from such efforts of his agent, the percentage contracted for was due and p'ayable. Alike in the case of personal solicitation by written communication, the purchaser and the seller were brought together and the contract resulted to the advantage of the seller upon which the percentage contracted for -is to be reckoned. There remains nothing more to be done in the «sales thus effected than in cases of orders which were personally received by the agent while traveling. In either case the manufacturer had the right to reject the order, if it contemplated a credit with which he was not satisfied. But where the minds of the parties, seller and buyer, are brought together by the acts of the agent which are the approximate cause of the sale, the commissions provided for by the contract are recoverable. Sussdorff v. Schmidt, 55 N. Y., 319; Martin v. Silliman, 53 id., 615; Lloyd v. Matthews, 51 id., 124

The learned referee has, with great discrimination, rejected all -claims made by the plaintiff’s assignor which were not clearly brought within the terms of the original contract.

The judgment appealed from should be affirmed.

Dwight, P. J., and Corlett, J., concur.


text:
    Charles Burlingame et al., Resp’ts, v. James D. Shelmire, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Account stated—Personal services.
    In cases where the prices are not agreed upon, or where they are not fixed by the marker, but depend solely upon personal services, the value of which is to be determined by the principle of quantum meruit, the general rule relating to accounts stated does not necessarily prevail.
    3. Same.
    Defendant was employed by plaintiffs to receive from farmers and ship fruit needed by them in their business, and was furnished with money to pay for the same. No rate of compensation was agreed upon. In an action to recover the balance alleged to be in his hands, he set up an account furnished in 1888 to plaintiffs containing his charges for services, and claiming a balance due him, which he claimed to be an account stated. Held, that the rule as to accounts stated did not apply, and that evidence as to the value of the services was properly received.
    Appeal from a judgment of the county court of Monroe county, ■entered February 26, 1890, affirming a judgment of the municipal court of the city of Rochester in favor of the plaintiffs for the sum of $68.90, damages and costs.

      H. FI. Woodward, for app’lt; Nathaniel Foote, Jr., for resp’ts.
   Macomber, J.

The sole contention made at the trial and upon this appeal in behalf of the defendant relates to an account sent by the defendant to the plaintiffs for services in receiving and shipping fruit in behalf of the former.

The plaintiffs, who conduct a canning factory at Fairport, N. Y., purchased in the summer of 1887 fruits for canning, such as tomatoes, apples and pears, of farmers in the vicinity of Brighton, with an arrangement by which such fruits should be delivered at the railroad station at the village of Brighton. The contract with the defendant was, that he should receive the goods from such farmers, measure or weigh and load them upon cars and ship the same to the plaintiffs at Fairport. The compensation for such services was left open and undetermined. From .time to time the plaintiffs furnished money to the defendant, amounting in all to the sum of $525. The defendant, between the 19th day of August, 1887, and October 11th of that year, expended $323.18 of such moneys in paying the freight and for weighing and handling fruit and in paying in certain instances the farmers who desired advanced payments. At the close of the business defendant had in his hands of the plaintiffs’ moneys the sum of $201.82, for which sum this action was brought. The answer alleged that on the 1st of March, 1888, the defendant rendered to the plaintiffs an account stated, wherein there was set forth all the matters between the parties up to that date showing fully the items of the defendant’s charges for services and claiming a balance due the defendant, for which judgment was asked, in the sum of $7.75. It was claimed, inasmuch as the plaintiffs retained this statement without making objection thereto for a year and upwards, that it thereby became an account stated between the parties. The only matter litigated, and the only matter before us upon appeal, is the value of the defendant’s services, and whether the evidence offered by the plaintiffs upon that subject was properly received under the claim made that the account so rendered, by the defendant to the plaintiffs, was an account stated and thus binding upon the parties.

No pretence is made in behalf of the plaintiffs that any deceit was practiced by the defendant or any evidence given that the account was fraudulent or that the same was a result of a mutual mistake.

The general rule doubtless is that one who receives an account and retains it without objection will be deemed by his silence to have acquiesced in its correctness, and that it will become presumptively binding upon him. This presumption, however, is only one relating to the evidence, and may be overcome by setting up fraud of the party rendering it, or the mutual mistake of the parties. Avery v. Leach, 9 Hun, 106.

But the cases relating to this subject are those where an actual account has existed between the parties. But in cases where the prices are not agreed upon, or where they are not fixed by the market, but depend solely upon personal services, the value of which is to be determined by the principle of quantum, meruit, the general rule relating to accounts stated does not necessarily prevail. We think the rule is not applicable to the facts disclosed in this case. In Williams v. Glenny, 16 N. Y., 389, the plaintiff had performed services for the defendant as solicitor and proctor, and subsequently rendered a bill thereof to the defendant, in which he charged the gross sum of $150. About eight months thereafter the plaintiff brought an action to recover the value of such services on a quantum meruit, and proved such value to be largely in excess of the sum charged in the bill previously rendered. On putting in evidence the bill as rendered by the plaintiff it was contended that the same was conclusive against the plaintiff, and the recovery should be limited to the sum then claimed. The decision was otherwise. The court held that there was no estoppel pleaded or proved to preclude evidence of the actual value of the services. The question of the value of the services was held to be open to proof as a matter of fact

In the case of Harrison v. Ayers, 18 Hun, 336, an architect had presented a bill for professional services, which was retained sufficiently long by his client to permit the principle of an account stated' to be applied, provided the nature of the claim was one to which it was applicable.

The bill not having been paid, an action was brought for a much larger sum than was claimed to be due according to the terms of the bill, and a recovery was had for the actual value of such services, which was considerably more than the sum charged for in the bill originally rendered. The court there held, in accordance with the principle laid down in Williams v. Glenny, supra, that the right to compensation was still open to be controlled by the evidence concerning the actual value of the services rendered.

We have considered the other point made by the learned counsel for the appellant in respect to the actual value of the defendant’s services, and we are of the opinion that the judgments of the municipal court and the county court were based upon a clear preponderance of the evidence, and that the allowance made to the defendant under his counterclaim was all that could be exacted on the principle of quantum meruit.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Corlett, J., concur.


author: Corlett, J. Macomber, J.

text:
    Siragan S. Costikyan, Adm’r, Resp’t, v. The Rome, Watertown & Ogdensburg Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Bailboads—Negligence.
    Plaintiffs intestate, while a passenger on defendant’s train, started to leave the smoking car and pass to the one in the rear, when the coupling between the cars broke and he was thrown down a steep gorge over which the train was passing and was killed. It was shown that the breaking of the coupling was caused by defendant’s negligence. Held, that no contributory negligence on the part of the deceased was shown; that he had a right to go to the smoking car and return while the train was in motion, and that in doing so he only assumed the visible risks incident to such act, and had a right to assume that the couplings and appliances were in a safe and proper condition.

      Appeal by the defendant from a judgment entered in Brie county, and from an order denying a motion for a new trial upon the minutes of the court.

      Edmund B. Wynn, for app’lt; Abram Bartholomew, for resp’t.
   Corlett, J.

On the 28th day of June, 1888, the deceased took passage on the defendant’s road from Miagara Falls to Watertown. The train consisted of an engine, baggage, smoking car, and several passenger coaches. A short time after entering the coach he went into the smoking car with a cigarette. After smoking he started back into the passenger coach. While he was in the act of stepping from the platform of the smoker to the coach in the rear, the coupling between them broke and the deceased was thrown down a steep gorge over which the train was passing, and killed.

The plaintiff was appointed administrator. This "action was-brought; a trial was had in April, 1890, which resulted in a verdict of $5,000 for the plaintiff. A motion for a new trial was-made and denied and the defendant appealed from the judgment and order to this court.

The evidence on the trial tended to show, and the jury found that the. breaking of the coupling was caused by the negligence of the defendant. The central contention of the defendant on this appeal is based on the assumption that it was negligence on the part of the deceased to go into the smoker and return while the train was in motion. It is undoubtedly true that ordinarily a passenger who goes from one car to another while the train is in motion assumes the risk incident to such an undertaking. If the ordinary motion of the train should shaké him from the platform, there being no defect in coupling or machinery, the company would not generally be liable. Mot that the act of the passenger in passing from one car to another would be one of negligence, but because he would have just as good an opportunity as the defendant to know that there was some hazard attending a journey through the train while it was in motion. This fact being manifest and as much within the knowledge and observation of the passenger as the company, in the nature of things he incurs the ordinary risk attending a passage from one car to another under such circumstances.

There is no statute or rule of the company forbidding a passenger from going from a passenger coach in which he is riding into the smoker and after that returning. In fact a smoking car constitutes a part of the train for the accommodation of passengers, and in the absence of instructions or notices by the company to passengers not to go to it and return while the train is in motion, there is an implied license that they may do so, subject, of course, to the ordinary risks obviously involved. It is not seen how they ■would incur any greater risks than the visible ones attending, the journey. There is nothing tending to show that this accident would have happened except for the defective coupling. If the connection of the cars had been safe, the deceased • would have gone and returned, so far as appears, in perfect safety. It is not negligence per se for a passenger to stand on the platform while the train is in motion. Nolan v. Brooklyn City & Newtown R. R. Co., 87 N. Y., 63; Marquette v. C. & N. W. R. R. Co., 33 Iowa, 570; Goodrich v. Penn. & N. Y. Canal Co, 29 Hun, 50.

The position of the deceased was, in many respects, the same as that of an employee.

In Goodrich v. N. Y. C. & H. R. R. R. Co., 116 N. Y., 398; 26 N. Y. State Rep., 767, it was held that a railroad corporation owed its employees the duty of furnishing cars properly equipped with safe and suitable appliances. All the cases are to the same effect. The same is true in the case of a passenger. The company owes him the duty of providing safe machinery and appliances, and if by its negligence in those respects a passenger is injured, no reason is seen why it is not liable for the damages sustained, in the absence of negligence on his part which contributed to the injury.

It was uot shown on the trial that in the present case the deceased in any way contributed to produce the accident which caused his death. The evidence tends to show the reverse. He only assumed the visible risks incident to going from one car to another while the train was in motion. In doing so, he had a right to assume that the couplings and appliances were in a safe and proper condition. The injury was caused bj the want of safe couplings.

The case was properly submitted to the jury. Palmer v. D. & H. C. Co., 120 N. Y., 170; 30 N. Y. State Rep., 817.

Ho errors appear on the record which would authorize a reversal.

The judgment and order must be affirmed.

Dwight, P. J., concurs.

Macomber, J.

I concur in the result reached in the opinion herein of Mr. Justice Corlett.

On account of the decision of this court in the case of Goodrich v. Penn. & N. Y. Canal & R. R. Co., 29 Hun, 50, which is _ in principle the same as this, we should, I think, affirm the judg-" ment irrespective of the reasons hereinafter expressed. There is, also, language used by the court of appeals in Nolan v. Brooklyn City & Newtown R. R. Co., 87 N. Y., 67, which though possibly, as is claimed by appellant, was not necessary to the decision of that case, cannot be ignored by us. There Judge Finch says: “ The rule is settled, that, independént of the mandate of the statute, * * * it is not, even in the case of steam cars, negligence per se for a passenger to stand on the front platform of a moving car,” referring to those cases where the passenger was unable to procure a seat within the car.

But I think it extremely doubtful if the statute, § 46 of chap. 140, Laws of 1850, known as the general railroad act, and the regulations thereunder made by the defendant, are applicable to the case of a passenger passing carefully, upon a lawful errand, from one car to another while the train is in motion. The language of the statute is: “ In case any passenger on any railroad shall be injured while on the platform of a car, or on any baggage, wood or freight car, in violation of the printed regulations of the company posted up at the time in a conspicuous place inside of the passenger cars then in the train, such company shall not be liable for the injury, provided said company at the time furnished room inside its passenger cars sufficient for the proper accommodation of the passengers.”

The language there used is broad enough to include passengers in getting on and off the cars at proper times and places. But clearly no such construction can be put upon the statute, notwithstanding the comprehensiveness of the words used: “ while on the platform of a car,” etc. A passenger must pass upon the platform both in getting on and getting off the train. If, while in that act he is injured, say by the giving away of the platform, could it be reasonably contended that there could be no recovery, because he was “injured while on the platform,” and while there was sufficient room inside the cars for the proper accommodation of passengers ? The question is not debatable, though the words in a literal sense would, in this case.supposed, exempt the company from liability.

The true meaning of this section is that the pkssenger shall not stand or remain on the platform while the cars are in motion, when there is sufficient accommodation inside the car. It does not make the presence of the passenger on the platform per se an act of negligence, and such has been its practical construction and application by railway companies. The regulation of this defendant, posted inside its cars, printed on metal, is as follows : Passengers are not Allowed to Stand on the Platform.”

Passing from one car to another while in motion is not of itself a violation of these regulations. In so doing, it may well be conceded that, even outside the statute, the passenger takes upon himself the ordinary hazards attending the act, such as the perils of the lurching and jerking of the train, of the elements, of his own misstep or want of nerve, and other like hazards. But I am not prepared to hold that his presence on the platform while returning from the smoking-car, where he went to smoke, to his seat in another coach, when the train was running at its usual speed, is per se such a reckless act as to absolve the defendant from the duty of furnishing couplings sufficient to hold the cars together, thus by its negligence adding to the well-known and ordinary perils of transit the unknown and extraordinary, namely, the omission of duty of the company to provide suitable and proper appliances for holding the cars together, a failure of obligation to the public which is inexcusable under the law governing the liability of common carriers of passengers for hire. In my judgment the jury was justified by the evidence in finding that, except for the defective couplings the plaintiff’s intestate would have passed in safety from the one car to the other.

The judgment should be affirmed


text:
    Seth H. Tracy, Resp’t, v. Solomon H. Tracy, App’lt.

      (Supreme Court, General Term, Fifth, Department,

      Filed January 23, 1891.)

    Pleading—Complaint—Non-payment must be alleged.
    The complaint in an action for goods sold, for services, upon a promissory note, or contract must allege non payment or breach of the contract. In weighing a pleading no presumption can be indulged that a person in the ordinary course of business does not fulfill his contracts.

      {Salisbury v. Stinson, 10 Hun, 243, overruled.)
    Appeal from an order and interlocutory judgment entered in Allegany county, June 27, 1890, overruling the defendant’s demurrer to certain causes of action stated in the complaint

      Rufus Scott, for app’lt; Loveredge & Leggett, for resp’t
   Macomber, J.

The defendant demurred to the first, second, third, fourth, fifth, sixth, ninth, tenth and eleventh counts or causes of action stated in the plaintiff’s complaint, on the ground that they severally fail to state facts sufficient to constitute a cause of action.

The second, third, fourth and fifth causes of action are, undoubtedly, sufficiently stated. Each of them contains an allegation of an indebtedness owing by the defendant to the plaintiff upon contract. The language of each count is that the defendant is indebted to this plaintiff,” thence follow the particulars of such indebtedness in each instance.' Section 531, Code Civ. Pro.

The decision in respect to the other causes of action, namely, first, sixth, ninth, tenth and eleventh, stated in the complaint, rests upon different considerations.

The first cause of action is for professional services as attorney and counselor-at-law. The allegation is that from the year 1871 to and including the year 1882, the plaintiff at the request and under the retainer and employment of the defendant rendered to the latter services as a lawyer, giving the items thereof. There is no allegation that the services were not paid for as they were rendered nor any other allegation tending to show a breach of the contract made by the defendant

The sixth cause of action is based upon an alleged renting, in the year 1884, by the plaintiff to the defendant of a harness used by the latter for two years in which the same was materially injured and depreciated in value to an amount therein stated. In this instance there is no allegation of a failure on the part of the defendant to pay for such use.

The ninth cause of action is upon a promissory note alleged to have been made by the defendant whereby six months after the date (viz.: 2d day of July, 1883) the defendant promised to pay to the plaintiff or bearer $100 dollars with interest for value received, and then and there delivered the said note to the plaintiff.

The tenth and eleventh causes of action are upon other notes under like allegations.

In neither instance is there an allegation that the note remains unpaid or that the defendant failed to pay it or that he is indebted to the plaintiff for any sum of money upon either of these instruments.

The special term in deciding against the sufficiency of the demurrer in respect to the causes of action demurred to other than the second, third, fourth and fifth, deemed itself bound by the decision of the case of Salisbury v. Stinson, 10 Hun, 242. In that case the general term of the first department held that a complaint alleging that the plaintiff “ sold and delivered to the defendant certain goods of the value and for which the defendant agreed to pay' $164.68,” is sufficient, and that it is not necessary to allege that the demand has not been paid or that it remains due and unpaid at the time of the beginning of the action.

In its opinion the court says that proof of the facts and sale and of the delivery of the goods to the defendant, together with an agreement to pay a stipulated price therefor, are all the facts that need be alleged or proved upon thev trial. The court there conceded that under the former practice the complaint would, doubtless, have been bad on special demurrer for not alleging a breach of contract, but held that under the present system of pleading a breach is presumed on proof of the facts alleged.

The reasoning of the learned justice writing that opinion, notwithstanding the high character of the court pronouncing it, is not altogether satisfactory to us. That judgment stands alone upon this subject. That it has not met the approval of the profession may be seen in the 15th Albany Law Journal, 479.

A plain and concise statement of the facts constituting the cause of action is all that is required to be pleaded. But what is the cause of action ? It is certainly not the sale and delivery of the goods with a promise to pay. The only cause of action of the seller against the buyer arises when the buyer fails to perform his contract according to the agreement and when there is an actual breach of the contract. That it is the breach of the contract and not the contract itself that gives the right of action, is assumed throughout all systems of procedure. In the Code of Civil Procedure that assumption appears clearly in §§ 420 and 1212. If there be a fallacy in the reasoning of the court in the case of Salisbury v. Stinson, supra, it consists in confounding pleading with proof. In an action upon a promissory note, for instance, on the trials if the plaintiff appears with the note in, his possession a presumption arises that the note remains unpaid, but it is a presumption of evidence and has no relation to the matter of pleading. The complaint should be such that if there is no answer or appearance by the adverse party a true judgment could be taken under §§ 420, 1212 and 1213 of the Code. In weighing a pleading no presumption can be indulged that a person in the ordinary course of business does not fulfill his contracts; and we do not see that a pleading which merely brings the allegation of fact up to the breach without alleging the breach can be made good by indulging in any such presumption.

It follows that the order and interlocutory judgment in respect to the first, sixth, ninth, tenth and eleventh counts of the complaint should be reversed, and that in respect to the second, third, fourth and fifth counts such order and judgment should be affirmed, without costs of this appeal to either party, with leave, however, to the plaintiff to amend his complaint in respect to the counts above ad j udged to be insufficient, and with leave to the defendant to withdraw his demurrer in respect to the other counts, and to answer.

Dwight, P. J., and Corbett, J., concur.


text:
    Nelson L. Button, Pl’ff, v. Rathbone, Sard & Co., Def’t.

      (Supreme Court, General Term,, Fifth Department,

      Filed January 23, 1891.)

    Chattel mortgage—Bora vide purchaser.
    Plaintiff received from one T. a chattel mortgage on certain stoves, which mortgage was given in good faith and without intent to defraud creditors, in consideration of a loan made by him.' Before the mortgage was filed T. gave a bill of sale of the stoves to defendant, who gave back an instrument in writing agreeing that on payment to it in twenty days of the sum of §1,000 it would reconvey the stoves to T. and satisfy his indebtedness tQ it. Held,, that the bill of sale and agreement constituted a chattel mortgage or security for the payment of such indebtedness; that as defendant parted with nothing on delivery of the property, but accepted it in pledge for the payment of a debt, it was not a Iona fide purchaser within the meaning of the statute, and that plaintiff’s mortgage being valid between the parties to it, was valid as against defendant.
    Motion by the defendant for a new trial on exceptions taken at the Monroe circuit, March, 1890, and ordered to be heard at the general term in the first instance.

      Arthur L. Andrews, for def’t; Wm. F. Cogswell, for pl’ff.
   Macomber, J.

The plaintiff, at the circuit, recovered a verdict for the value of certain merchandise, consisting of stoves, upon which a chattel mortgage had been given to him by the owner, one Francis Tully, Jr., for a loan of $1,200 made on the 28th day of March, 1884. Tags indicating the ownership of the property in the plaintiff were affixed to the several stoves so mortgaged ; but no actual possession of the property was delivered by the mortgagor to the mortgagee, nor was the mortgage itself filed until after the rights of the defendant accrued.

On the 13th day of June, 1884, Tully transferred and delivered to the defendant a portion of the property so mortgaged, and the defendant received such transfer in ignorance, and without any actual or constructive notice of such pre-existing mortgage.

The court of appeals (S. D.) in this case, 118 N. Y„ 666 ; 27 N. Y. State Rep., 938, held that, under the statute, the fraudulent character of the plaintiff’s mortgage was open to the defendant, and accordingly reversed the judgment of this court affirming a judgment entered on a former verdict of the jury at the circuit in favor of the plaintiff. That decision was placed upon the ground that the defendant, by acquiring possession of the property covered by the chattel' mortgage, without notice or knowledge of the plaintiff’s unfiled lien, was in a position to question its validity, Upon this sole ground the former judgment of this court was reversed. At the new trial, now under consideration, close attention appears to have been given to this decision, and the case was accordingly submitted to the jury under instructions that unless the mortgage to the plaintiff had been shown to have been given in good faith, and without any intent to defraud the creditors of Tully, or purchasers or mortgagees from him in good faith, the defendant should recover a verdict. The charge of the court was made in accordance with 2 R. S., 136, § 5. The verdict of the jury, therefore, in favor of. the plaintiff ujdou this issue removes one obstacle interposed by the defendant in the way of the plaintiff’s ultimate recovery. '

There is, however, still open to the defendant the contention that it was a purchaser or mortgagee in good faith under our statute of frauds, and that such purchase confers rights paramount to the plaintiff’s mortgage, which was not filed in pursuance of the statute. It is necessary, therefore, to inquire into the exact relation which the defendant bears to this property under the uncontested facts appearing in the case.

By the terms of the transfer signed by Tully, under which the defendant claims, a consideration of $968.65 is recited to sustain such transfer, the bill of items of such indebtedness being prefixed thereto. The paper is a bill of sale absolute in form. Had this instrument been the whole of the writings between the defendant and Tully, undoubtedly the defendant would be held to be the absolute owner of the property described as against all parties except the plaintiff. But simultaneous with the execution of that instrument the defendant in its turn, in consideration of the paper executed by Tully, agreed in writing that upon the payment to it by Tully of the sum of $1,000 in money within twenty days from the date thereof (both papers being dated on the 13th day of June, 1884), it would reconvey and transfer all of the property so turned out to it to any person whom Tully might designate, and would release and discharge all indebtedness which it held against Tully, and that in case of non-payment of such sum of $1,000 within the time mentioned the agreement made by the defendant should be void.

These two papers taken together constitute a chattel mortgage or a security in the hands of the defendant for the payment by Tully of the indebtedness owing by him. It matters not that the agreement is contained in two instruments, because the two papers must be construed together. The intention of the parties is to govern, and that intention is plainly read in the words to which the several parties have subscribed. Smith v. Beattie, 31 N. Y., 542.

The situation, therefore, of the plaintiff and defendant is this: The plaintiff is a mortgagee in good faith of the personal property involved, having advanced the full value thereof at the time of receiving his security; the defendant in ignorance of such preexisting chattel mortgage receives the property from the debtor, without notice, to be applied in the manner above stated to the extinguishment, in whole or in part, as subsequent steps might determine, of the indebtedness to it.

Under these circumstances the plaintiff’s mortgage, being valid as between the parties thereto, must in pursuance of the verdict be deemed to be valid also as against the defendant, unless the latter is a purchaser or mortgagee in good faith, within the meaning of the statute. 2 B. S., 136, § 5.

When the act respecting the filing of chattel mortgages was passed, the term, “ bona fide purchaser ” had acquired a settled meaning which did not include a person whose purchase was on account of an existing debt, and who parted with no property or right to obtain his conveyance. Van Heusen v. Radcliff, 17 N. Y., 580.

The precedent debt owing to the defendant by Tully did not make the defendant the purchaser or mortgagee in good faith. Thompson v. Van Vechten, 27 N. Y., 568.

For a collation of the authorities upon the subject in general, reference may be made to the case of Phœnix Ins. Co. v. Church, 81 N. Y., 218, showing in what cases the surrender by the creditor of the debtor’s own obligation may or may not be regarded as a parting with value.

But under the facts disclosed in the record before us there is no room for a discussion of the refinements of the rule pertaining to the subject; for it is conclusively established by .the writings already referred to, executed between the defendant and Tully, that the defendant on the delivery of the property to it surrendered no rights and parted with no obligation of its own or of any other person, but accepted the delivery of such property as a creditor, in pledge for the payment of a debt, with the privilege to the debtor to reclaim its possession on payment of a certain sum. This appears in the instrument signed by Tully by which it is stated that the transfer was made “ for value received and the credit of $968.65 to me upon the account due from me to Bathbone, Sard & Co.”- The amount so stated was the actual appraised value of the property so turned out to the creditor. Bathbone, Sard & Co., in an instrument signed by its agent, agreed as follows: “Now, in consideration of the premises and for value received, the said Bathbone, Sard & Co. do hereby promise and agree that upon the payment to them by said Tully of the sum of one thousand dollars in money within twenty days from the date hereof, they will reconvey and transfer all said goods specified in said bill to whom said Tully may designate, and also release and discharge all indebtedness which they so hold against said Tully; but in case of the non-payment of the said sum of one thousand dollars within said time this obligation to become void.”

There is nothing in the appeal papers to vary in any respect the conclusive character of these two instruments. The defendant gave up nothing in consideration of the receipt of the property. It merely placed to the credit of Tully the amount of the valuation of the property; but this even was provisional only, for at the same time it was agreed that the property should be redelivered to Tully in case of payment of a sum substantially the same as the valuation which was made at the time mentioned. It appears to us that such evidence removes this case from the category of those where it can be reasonably contended that the party claiming against an unfiled chattel mortgage may prevail upon showing a giving up of any valuable thing. The defendant parted with nothing.

The motion for a new trial should be denied, with costs, and judgment directed for the plaintiff upon the verdict.

Dwight, P. J., and Corlett, J., concur.


text:
    George W. Clemons, Resp’t, v. The Livingston County Mutual Fire Ins. Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Insubance (fibe)—Payment.
    A disagreement arose between the parties hereto as to the amount of a loss covered by a policy, but finally plaintiff agreed to take such sum as the company deposited in bank for him, the same to be accompanied by a receipt to be signed by him before receiving the money. The deposit was made and plaintiff notified thereof. He went the following day to the bank, but was unable to obtain the money as the bank had failed, having, in fact, been insolvent for some time, but of this the parties' were not aware. In an action to recover such moneys of defendant, Held, that no payment was shown, and that a verdict for plaintiff was properly directed.
    Appeal from a judgment in favor of the plaintiff entered in Livingston county and from an order denying a new trial.

      Hubbard & Coyne, for app’lt; James Wood, for resp’t.
   Corlett, J.

About the 5th day of April, 1886, the defendant issued to the plaintiff a policy of insurance on his farm buildings, contents, stock and farming implements in a sum not exceeding $2,200. On the 9th day of July, 1887, a fire occurred which consumed the dwelling house and some farm implements covered by the policy. About forty days after the fire McFetridge and Cole, a director and adjuster of losses, went to the plaintiff's house and adjusted the loss at the sum of $200. The plaintiff refused to accept this sum and an oral agreement was made for an arbitration, which the plaintiff afterwards revoked, stating in substance he would accept the $200. This the company refused to pay without the assent of the executive committee, which was obtained and the sum as adjusted, $200, was agreed to be paid.

The evidence of Cole, the director and adjuster, on the subject of the payment of the $200 was as follows :

“ Clemons asked me if we would allow him $250. McFetridge told him he was positive that they wouldn’t allow him more than $200. He said he thought they would allow him that. He said he would see the executive committee and beyond a doubt the money would be deposited for him in the bank at Dansville. He was to notify him what amount the executive committee would allow him. He asked them to allow him $250. Mr. McFetridge thought they wouldn’t. Mr. Clemons had agreed to take-whatever was deposited for him.' He was to find out whether they had allowed the claim or deposited anything by going to the bank and ascertaining. I think there was an understanding that he was to be notified by Mr. McFetridge when the money was deposited. I don’t remember that he was to be notified how much; only when the money was deposited. It was generally understood that it was to be $200 and I understood that when I went away from there. When he asked me on the road if I considered it settled .at $200, I considered it settled at $200. A receipt was to go with the money and he was to have the money when he signed it.”

On the 24th day of August, a letter, of which the following is a -copy, was sent to the plaintiff:

“ Scottsburg, N. Y., August 24, 1887.

Mr. George W. 0lemons:

Dear Sir.—I am authorized by the executive committee to write you that $200 is the amount that the insurance company will pay you on fire loss and that the money and receipt for you to sign is now at the First National Bank of Dansville, which jou can get at any time by calling there. v

You can see Romaine Cole, and he will settle with you for the unexpired time of your policy.

“ Truly yours,

“E. L. McFetridge.”.

This letter was received by the. plaintiff at eight o’clock the •same evening. The next day the plaintiff went to the bank, and found that it had failed, having closed its doors the day before. The failure was a disastrous one.

The cashier of the bank, Mr. Brattle, testified, among other things, to the effect that the money was not to be paid until a receipt was signed. He also testified that he credited the. money to the plaintiff, but did not know that he made an entry in the books ■on'that subject.

The money was never paid by the bank. The plaintiff demanded the money from the defendant, which it refused to pay. An action was brought, issue was joined, and the cause was tried before a justice and jury in February, 1890. A verdict was directed for the plaintiff for the amount of $200 and interest. A motion for a new trial was made, and denied, and the defendant appealed to this court from the judgment and order.

The appellant claims that the implements burned were stated in the application and policy to be in the barn; that in fact they were in the house at the time of the insurance and fire. The appellant also claims that the house was not occupied by a tenant at the time of the insurance as stated in the application and policy.

No controversy ever arose as to the defendant’s liability. The only question was the amount of the loss. The company upon investigation adjusted the loss at $200; the plaintiff was dissatisfied with the amount, but finally agreed to accept that sum. It is very clear that no question as to the defendant’s liability is before this court. The question of payment is the only one about which there was ever any contention between the plaintiff and the company.

The learned counsel for the appellant claims that the executive ■committee had no power to adjust the loss. This may be so. It is not claimed that the adjusters did not have power, and the agreement to pay was finally based on the plaintiff’s agreeing to accept the sum originally fixed by the company. It was assumed by both parties that the bank was solvent, and that the plaintiff would receive the money deposited. It was a part of the arrangement that a receipt should be signed at the time the money was paid. It turned out' that the bank was utterly insolvent at the time the money was deposited; in fact, long before that time. But. neither of the parties knew it.

The defendant owed the plaintiff the sum of $200. It was never paid to him, and he never received the money. The defendant’s contention is that the moment it deposited the money in the bank for the benefit of the plaintiff, the debt was paid. The plaintiff was guilty of no laches. He went to the bank as soon as possible after the receipt of the letter notifying him of the deposit. He found the bank had failed, and he could not get the money. The debt existed before the money was deposited.

It is a familiar rule that in an action for the collection of a preexisting debt the onus of proving payment rests upon the defendant. Bradford v. Fox, 38 N. Y., 289.

■ All the testimony and the letter strongly tend to show that the-defendant at the time it deposited the money assumed to claim dominion over it to the extent'of preventing its payment until a receipt was signed. It evidently wished to keep it as a voucher, and if it was not signed until after the money was paid there might be ' trouble in getting it. The defendant, therefore, when it delivered the money to the bank directed upon what conditions-it should be paid. It is not probable that any consideration was given to the subject, as it was supposed that the bank would pay the money. If payment had been made by an officer of the company, the taking a receipt would naturally have formed a part of the same transaction. The money and receipt would be exchanged at the same time. This was the substance of the instructions given to the bank when the money was delivered.

Under all the circumstances, the direction of a verdict by the trial justice was correct, and the judgment and order must be affirmed. -

Dwight, P. J., and Macomber, J., concur.


text:
    Ada A. Hyer, App’lt, v. George Sutton, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Chattel mortgage—Insecurity—Bad faith in taking possession.
    Where a person takes property under a clause in a chattel mortgage giving a right to take possession in case he deems himself unsafe, inspired by other motives, and not because he deems himself unsafe, he is not protected by the power conferred in the instrument.
    2. Same—Pleading.
    Plaintiff, claiming to deem herself unsafe, took possession of mortgaged property and sold the same. In an action to recover the deficiency under the mortgage, the answer denied that plaintiff _ in taking the property deemed herself unsafe, and.alleged that she took it in bad faith, influenced by malice and from a pressing need of money. On demurrer, Held, that the answer set up a valid defense to the action.

      Appeal from a judgment entered in Erie county, overruling á demurrer.

      Tracy C. Becker, for app’lt; William S. Rann, for resp’t
   Corlett, J.

On the 2d day of July, 1888, the defendant executed a chattel mortgage to the plaintiff to secure the sum of $700. It covered a printing press and some other personal property. It provided for payment within five years from the date of the mortgage, with semi-annual interest, with the right to pay .$100 and interest at any time.

It provided that in case of non-payment the mortgagee could ■enter the premises and take possession, and then contained the following clause: “And in case the said Ada A. Johnson shall •deem the said property or debt unsafe, it shall be lawful for her to take possession of such property and sell the same,” etc.

On the 28th day of May, 1890, the plaintiff took the property, claiming that she deemed herself unsafe, and sold it at public auction for $118.65. The expenses of the sale amounted to $38.50, leaving the amount unpaid, $630.85. This action was brought to recover the deficiency.

The complaint alleged among other things that the plaintiff deemed herself unsafe, and had good reason for such belief. The answer denied these allegations and alleged that the “ plaintiff took possession of the property in bad faith and from motives not contemplated or provided for in said chattel mortgage or connected with the fact or feeling of the security or insecurity of said property or debt, to wit: From malice and from a pressing need for money.”

The plaintiff demurred to the portion of the answer above quoted and to another portion setting up a counterclaim upon the ground that such a plea was not permissible in an action of tort. The last branch of the demurrer was abandoned on the argument. The demurrer was heard at a special term in Buffalo in September, 1890, and was overruled, with costs. Judgment was entered and the plaintiff appealed to this court.

The terms of the mortgage were such that the right of possession of the property described in it remained in the defendant until the debt fell due, unless the plaintiff deemed herself unsafe. She took the property claiming to have done so by virtue of this power conferred by the mortgage. The sole question upon this ■appeal is whether the plaintiff had a right to take the property under the circumstances, and inspired by the motives stated in tlie ■answer.

The plaintiff’s contention is that as the answer admits the mortgage to be a valid instrument, and that as something remains unpaid thereon, she had a right to take the property, and that malice or bad faith constituted no defense. The learned counsel cites several authorities in support of this position; but all of them proceed upon the assumption that the mortgagee deemed himself unsafe. Such was Allen v. Vose, 34 Hun, 57, and all the cases •cited.

The argument of the learned counsel for the appellant seems to proceed upon the theory that the taking of the property is conclusive evidence that the mortgagee deemed-herself unsafe. In the absence of proof, it would be assumed that the taking was by virtue of the authority conferred in the instrument, and no bad faith would be presumed. But the demurrer in the case at bar admits that the plaintiff took the property in bad faith, influenced by malice, and from a pressing need of money, and not because; she felt unsafe. The plaintiff’s contention cannot be sustained either upon principle or authority.

It is entirely clear that if a person takes property -under such a. clause in a mortgage, not because he deems himself unsafe or the debt insecure, but inspired by other and unjustifiable motives, he-would not be protected by the power conferred in the instrument. Werner v. Bergman, 28 Kans., 65; Furlong v. Cox, 77 Ill, 293; Davenport v. Ledger, 80 id., 574; Roy v. Goings, 96 id., 361.

The judgment must be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.