text:
    NORMAN L. MASON and Another, as Administrators, etc., of ALBERT GORRINGE, Deceased, Respondents, v. HERBERT WEDDERSPOON, Appellant.

      'Evidence — entries in the boohs of a deceased, person are not admissible to provea claim in favor of Ms estate.

    Upon tlie trial of tliis action, brought to recover seventy-five dollars for a coach harness, made by the plaintiff’s,intestate at the request and upon the order of the defendant, the plaintiff was allowed, against the objection and exception of the defendant, to put, in evidence the following entry in an order book kept by the deceased: “Herbert Wedderspoon, coach harness, gold and black trimmed, inch and quarter trace, breeching, $75.”

      Held, that the evidence was not admissible.

      Livingston v. Arnoux (56 N. Y., 518), and Peck v. ValeoMne (29 Hun, 668) distinguished.
    Appeal from a judgment of the County Court of Otsego county, affirming a justice’s judgment in favor of the plaintiffs.
    The action was brought to recover damages upon an allegation that, in June, 1883, “ the defendant employed one Albert Gorringe to make for him one coach harness, with gold and black trimmings and breeching, and agreed to pay for the same, upon the delivery thereof, seventy-five dollars; ” that the harness had been made and tendered to the defendant, who had refused to receive it.
    Gorringe died in January, 1884, and the plaintiffs were appointed his administrators. The defendant set up that the harness “ was not made in accordance with the orders and instructions given said deceased therefor, and, as made, was entirely useless to this defendant,” and that the defendant’s refusal to take it was satisfactory to deceased. Judgment was given for plaintiffs for seventy-five dollars damages and four dollars and thirty cents costs, and was affirmed by the County Court without any opinion being delivered. During the trial the plaintiffs proved that the deceased kept an order book, and, against defendant’s objection and exception, were allowed to prove an entry therein to be in the handwriting of the deceased, and then to offer it in evidence against defendant’s objection. It was received and read, viz.: “Herbert Wedderspoon, coach harness, gold and black trimmed, inch and quarter trace, breeching, $75.”

      E. M. Harris, for the appellant.

      Lynes c& Pierce, for the respondents.
   Hardin, P. J.:

Entries made in the order book or account book of the deceased by him, not in the presence of the defendant, were not competent evidence. (Peck v. Von Keller, 76 N. Y., 604; Bigelow v. Hall, 91 id., 145 ; Dean v. Ætna Life Ins. Co., 2 Hun, 358; reversed, on other grounds, 62 N. Y., 642; Gould v. Conway, 59 Barb., 355; Collins v. Rochwood, 64 How., 57.)

Respondent’s counsel calls our attention to Livingston v. Arnoux (56 N. Y., 518), but it does not support the ruling made below and is not in conflict with the cases we have cited. In that case the written memorandum ivas made by an officer, in a matter pertaining to his official duty against his interest, and he had no interest to misrepresent or mistake the facts, nor does tfie case of Peck v. Valentine (29 Hun, 668) justify the ruling made by the court below. In that case the witness, who made original entries of money received by defendant, which he was charged with embezzling, reported them to the plaintiff, and witness and plaintiff testified that the memorandum produced was transcribed from the one actually made by the witness, but even that case was reversed. (94 N. Y., 569.)

Respondent’s learned counsel calls our attention to section 3063 of the Code of Civil Procedure, which requires the appellate court to give “judgment according to the justice of the case without regard to technical errors or defects which do not affect the merits.” The issue of fact was close, and until that is properly and legally determined, the court may not say where the “ j ustice of the case” lies. The error in the ruling introduced incompetent evidence which bore upon the very core of the issue, and that incompetent evidence may have produced the determination of the issue of fact made by the justice adverse to defendant.

In Wright v. Dugan (15 Abb. N. C., 121), the court, in speaking of the improper evidence admitted, said : “ But we cannot see that it could rightfully have affected the result to such an extent as to demand a new trial.” That was an equity case and fell under section 1003 of the Code of Civil Procedure.

1'n the case in hand, we think it very probable that the improper evidence affected the result; we are unwilling to guess or say that it did not affect the merits. The error is such that we ought to attend to it, and reverse the judgments below. (Collins v. Rookwood, supra.)

Boardman and Follett, J. J., concurred.

Judgment of the County Court of Otsego county, and the Justice’s judgment affirmed thereby, reversed, with costs.


source: Caselaw Access Project

author: Hardin, P. J. :

license: Public Domain

text:
    ELLEN HENDERSON, Respondent, v. JAMES SCOTT, Appellant, and JOSEPH HENDERSON, Respondent, Impleaded with CAROLINE SCOTT.

      Practice — power of the court to award costs and expenses to the plaintiff and defendant in an action for the partition of real estate— Gode of Oiml Procedure secs. 1579, 1580.
    ■After the premises, described in the complaint in this action brought to procure a partition thereof, had been sold to the defendant Scott for the sum of $800, an order was made confirming the sale and directing the referee to convey the premises to the purchaser, provided that he “ shall pay the taxable costs of the plaintiff, and the sum of ten dollars costs to the defendant Joseph Henderson, which costs are allowed to said parties, payable out of the purchase-money. ” By the terms of the judgment Scott was entitled to receive the sum of $970.77 out of the proceeds of the sale, for improvements ‘made upon the premises by him.

      Held, that as the court had power to award costs to the plaintiff and the defend ant, Henderson, payable out of the proceeds of the sale, the defendant, Scott, had no cause to complain of the order appealed from, as he was just as well off as if the court had formally ordered the $800 bid by him to be paid over to the referee, and had directed the referee to pay therefrom such costs and expenses as the court should award to the plaintiff and Henderson.
    Appeal from parts of an order of the Onondaga Special Term, confirming a sale in partition and awarding costs to the plaintiff and the defendant, Henderson.
    The action was for the partition of certain real estate, the defendant, James Scott, and his wife Caroline being in possession and claiming to be absolute owner. A decree was obtained and entered establishing the title to one-seventh of said property in the plaintiff,, to one-seventh thereof in the defendant Joseph Henderson and to five-sevenths thereof in the defendant J ames Scott. The share of plaintiff, Ellen Henderson, was subject to her malting compensation to James Scott to the amount of $138.68, being one-seventh of the improvements put on by him, and the defendant Joseph Henderson’s-share was subject to the same contribution. Commissioners were appointed and made their report that the property could not be divided, and a sale was ordered and the property was bid in by the defendant, James Scott, for $800. The value of the improvements put on by Scott and his grantors were allowed ai $970.77. The sale was confirmed upon Scott’s application. The order confirming the sale directed the referee to convey the premises to Scott, provided, among other things, that he shall “ pay the taxable costs of the plaintiff and the sum of ten dollars costs to the defendant, Joseph Henderson, which costs are allowed to said parties payable out of the purchase-price.” The order also directed that “neither party should receive any costs against the other.”

      B. B. Burt, for the appellant, Scott.

      J. A. Hathaway, for the plaintiff and respondent.

      O, Whitney, for J. Henderson, defendant and respondent.
   Hardin, P. J. :

After the sale the referee was entitled to receive from the defendant, Scott, $800, that being the highest sum bidden, and Scott being the bidder. If that sum had been paid over to the referee the court would have held it as the proceeds of the property. It would have been chargeable with the costs and expenses. The court had the right to deduct the costs and expenses. Section 1580 of Code of Civil Procedure: That section also provides that the balance of any proceeds of sale “ must be awarded to the parties whose rights and interests have been sold in proportion thereto.”

Section 1519 also provides “ that where final judgment confirming a sale is rendered, the costs of each party to the action and the expenses of the sale, including the officers’ fees, must be deducted from the proceeds of the sale and each party’s costs must be paid to his attorney.” .

If the $800 had been paid over to the referee, any cost allowed either party and the officer’s fees would be deducted therefrom. However, no deduction of costs could be made until the award of costs was made. The latter part of the section confers a discretion upon the court to direct that the costs and expenses of any trial, reference or other proceeding in the action be paid out of the share of any party in the proceeds.”

The court has by its judgment, in effect, determined that the defendant, Scott, was entitled to the proceeds of the sale remaining after deducting the costs and expenses allowed, by it to the plaintiff and J. Henderson. It has exercised its discretion in regard to the costs allowed — it has, in effect, awarded plaintiff her costs, payable out of the fund arising upon the sale, and also allowed the defendant, Henderson, ten dollars costs, and, in effect, directed that they be paid out of the proceeds. Hnder the award made by the court the defendant, Scott, who appeals, is in the same situation that he would be in had the court directed him as purchaser to pay over to the referee $800, the purchase-price bid for the premises, and the referee to pay with and out of it the plaintiff’s costs and the defendant, Henderson, ten dollars, and the balance of it to the defendant, Scott. Had such direction been given then the plaintiff’s costs and the ten dollars allowed Henderson would have been allowed out of the proceeds of the sale, and the balance of the proceeds would have been turned over to Scott to satisfy his equities in the premises. Those equities seem to have been adjusted and allowed to Scott upon the assumption that the lands were worth more than the betterments. (Ford v. Knapp, 102 N. Y., 135.) However, the sale took place because an actual partition was found impracticable, and the proceeds of the sale if actually paid into the court by a deposit into the hands of the referee, would be held for distribution to the parties whose rights and interests have been sold in proportion thereto.” (Code of Civil Procedure, § 1580.)

It having been determined that the “rights and interests” of Scott in the premises were more than the premises brought, he was entitled to the whole proceeds of the sale “ after deducting therefrom the costs and expenses chargeable against them.” (Code, § 1580.)

There remains to be considered the question of the power of the court to award costs to the plaintiff and defendant Henderson, payable out of the fund. We think the court possessed the power and had the right, in the exercise of its discretion, to award to the plaintiff and Henderson costs, and to direct them to be paid out of the share of any party in the proceeds. It also possessed the power and might, as a matter of discretion, have ordered plaintiff’s costs and Henderson’s paid by defendant Scott, and might have rendered judgment against him therefor. (Code of Civil Pro., § 1579; Code of Civil Pro., § 3230; Ford v. Knapp, supra; Black v. O'Brien, 23 Hun, 82.)

We are of the opinion that the court exercised its discretion properly in the premises, and that the defendant Scott has no ground that is secure and substantial upon which to stand in his complaint of the action of the court. He is just as well off, so far as we can see, as though the court had formally ordered the $800 bid by him paid over to the referee and distributed to pay such costs and expenses as the court awarded the plaintiff and Henderson.

The question is a novel one, we may affirm without costs to either party. (Chipman v. Montgomery, 63 N. Y., 221.)

Boaedman and Follett, JJ., concurred.

So much of the order as is appealed from affirmed, without costs to either party to the appeal.


author: IIardin, P. J.:

text:
    CHARLES COPPINS, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Duty of a railroad to its employees, as to using new and improved switches —the question should not be left to the jury.

    On May 10, 1880, the plaintiff, who had been employed by the defendant as a brakeman for many years, was injured by the derailment of an express train on which he was working, by reason of a switch which had been negligently left open. At the place where the injuries were sustained the main tracks of the defendants were crossed by a branch, known as a cross-over, which was kept by the defendant for the purpose of the business passing from a freight-house, coal depot and water tank on the north side of the tracks to an engine house and other structures on the south side. The switch which was left open had been in use for passing trains from one side of the tracks to the other, and had served the purposes for which it was designed and safely carried trains across, and had proved to be an adequate instrumentality for accomplishing that purpose.
    Upon the trial the plaintiff claimed that a certain safety switch, known as the “ Cook switch,” should have been used in connection with a trailing cross-over and set for such cross-over, and that if this had been done the train would have passed along in safety notwithstanding the misplaced switch. The court left it to the jury to say whether the switch in use was a proper and suitable instrumentality, or whether it was not the duty of the company to have used a different one that would serve the purpose of meeting all exigencies brought about by the negligence of the co-employees of the plaintiff. Held, that it erred in so doing.
    That it should not be left to the jury to say what switches, patented articles or contrivances, shall be used by a railroad company, in order to escape liability for injury to an employee caused by the negligence of a co-employee.
    Appeal from a judgment in favor of the plaintiff entered on the the verdict of a jury for $15,000, at the Onondaga Circuit, and from .an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried, and from an order granting an extra allowance.
    The plaintiff, who was a brakeman in the employ of the defendant, and had been in its service quite a number of years, was injured on May 10, 1880, by the derailment of an express train coming west on track No. 2, occasioned by a switch at St. JohnsVille having been left open. On the north side of the road there was at that placo a freight-house, coal depot and water tank, and on the south side of the tracks, an engine house and other structures.
    A branch, known as a cross-over, was kept by the defendant for the purpose of the business passing across the main tracks from the north side of the engine house and from branches on the south side of the main tracks. It was what is known as a direct cross-over and was connected to the main track by switches. The switch connecting the cross-over with track No. 2, on which plaintiff’s train was running, had been unlocked. When the train reached the switch it took the cross-over- and passed toward track No. 1 and, before reaching track No. 1, as defendant claims, or after reaching.it, as plaintiff claims, it left the track and was wrecked. The plaintiff claims that a certain safety switch, known as the “ Cook switch,” should have been used on No. 2 in connection with a trailing crossover and set for such cross-over, and that the train, if this had been done, would have passed along No. 2 in safety notwithstanding the misplaced switch.
    The defendant claims that the one in use was in fact a “ Cook switch,” properly constructed and in good working order at the time of the accident. The court left it to the jury to say whether or not defendant was negligent in maintaining a direct cross-over at this place.
    The defendant’s superintendent, and others said it was needed in the business and was proper and suitable for the use required. Evidence was given by plaintiff tending to show the contrary.
    The plaintiff also claimed that other negligence existed on the part of defendant. That Schrara, the switchman, was an improper and incompetent employee and was improperly retained in defendant’s service.
    The court charged the jury: “You are to take all the surroundings of this case as they existed at and just prior to this accident in 1880, and say whether at that time, with the means that this company had in its hands, with the knowledge it had of safety switches, and the knowledge it had of the different kinds of cross-covers, with the knowledge it then had of the liability to accident; you are to consider what it was reasonable and proper that this company should be required to furnish as a means of safety against the occurring of accidents. "Was a direct cross-over, as they liad it there, safe and proper, reasonably so, for this company to furnish at that tizne ? Or, in order to have furnished a reasonably safe and proper cross-ovei’, ought they to have had a trailing cioss-over ?” Also, “ the question of fact is for you upon this question we are considering now, wdiether there was a failuz-e at that time and immediately prior to this accident to furnish reasonably safe and proper road-bed, track and appliances at the point of this accident.” Also, “ if the cross-over had been a trailing one and the Cook switch there izi use, would the train still have been derailed and the accident occurred ? If it would, notwithstanding a trailing cross-over was there, then there is no right of action. But if a trailing cross-over had been there and then the train would have gone over in safety, why then you may find that the failure of the defendant to put a trailing cross-over thez’e where the direct now is, was the cause of the accident; that in the absence of that neglect on the part of the company the accident would not have occurred.”
    The court was requested to charge “ that the defendant had the right to assume that the train in question would pass through St. Johnsville on the usual track, and that its switches would be properly closed by its employees, and that it was not bouzid to provide escapes from that track to the south track as a guard to its servants possible neglect of duty, and that it was one of the risks taken by the plaintiff in his employment and continuing in defendant’s service.” This request was refused and an exception was taken by defendant.
    The court was requested to charge, viz.: “ That whether the employee knows or not that the best and safest kind of appliances are not used, still by entering upon a hazardous employment he assumes any risk resulting from oz'dinary structures used by his employer in carrying on its business and proper for that purpose.”
    The court replied: “ I cannot charge in that language. I have charged upon that subject, azid I leave it as I have already charged.” Exception to the refusal and to the charge as made. The defendant requested the court to charge “ that proper switches do not mean the latest and znost improved kind.”
    The court replied, viz., “ I charge that they do not necessarily mean the latest and most improved.” There was an exception to the refusal and to the modification. The defendant requested the court to charge, viz., “ and that the company were not bound to use the Point switch or the Cook switch in the place of the Wharton switch or any other switch that they had in use.”
    The court replied, viz., “ I leave it as a question of fact for the jury as to whether it was necessary in order to furnish a reasonably safe and proper road-bed, track and structure at this point where the Wharton switch was, to use any one or more of these switches. I leave it to the jury, and do not hold that they are bound to or that they are not.” An exception was taken to the refusal and to the charge as given. The defendant requested a charge “ that the defendant was not bound to furnish a switch which would safely conduct the train leaving track No. 2 to and upon track No. 1 in case the switchman negligently left the switch open on No. 2.” The court replied: “I leave that question to the jury. I do not charge that they were bound to.” An exception was taken to the refusal and also “ to the leaving of that question to the jury.” Later on the defendant requested the court to charge “ that the defendant was not bound to furnish a switch which would safely conduct the train leaving track No. 2 to and upon track No. 1 in case the switchman negligently left the switch open on No. 2.” The court then replied: “ I think I will charge that, that it was not bound to. I will charge that.”

      William G. Tracy, for the appellant.

      Louis Marshall, for the respondent.
   IIardin, P. J.:

When the plaintiff was injured on May 10, 1880, he was in the employ of the defendant as a brakeinan upon an express train approaching St. Johnsville from the .east at 5.03 p. m., and it was not expected that the train would stop at that station, but the engineer failed to look and discover by the signal given by the target that there was an open switch near the station and to apply his brakes and stop the train. Schram, the switchman, had left the switch open. The train was derailed and the plaintiff injured.

It was apparent, at the trial, that the engineer and Schram were negligent, but the court told the jury that the plaintiff could not recover, as lie was a co-servant, if their negligence solely caused the injury. But he allowed other inquiries to be made as to whether the defendant had not itself been guilty of negligence, and the jury to find that the accident “ would not have occurred if it had not been for the negligence of the defendant itself.” (Cone v. D. L. and W. R. R. Co., 81 N. Y., 206.) The switch which was left open by Schram had been in use for the purpose of passing trains from the north side of track No. 2, on which plaintiff’s train was running westwardly, to the southerly side of track No. 2. It had served the purpose for which it was designed and safely carried trains across; for all the ordinary and usual purposes it had proved and appeared to be an adequate instrumentality.”

The court left it to the jury to say whether it was a proper and suitable instrumentality, and whether it was not the duty of the company to have a different one, one that would serve the purpose of meeting all exigencies brought about by the negligence of two employees of the defendant, who were co-servants of the plaintiff. Primarily the negligence of the engineer, and proximately the negligence of Schram, the switchman, in leaving the switch open, carried the train off of the track No. 2 and produced the derailment which injured the plaintiff.

If the stringent exaction of the rule which defendant is under in regard to passengers were applicable, the theory of the plaintiff might De proper. (Smith v. N. Y. and Harlem R. R. Co., 19 N. Y., 127; Hegeman v. The Western R. R. Co., 16 Barb., 353 ; S. C., affirmed, 3 Kern. [13 N. Y.], 9.) But a different rule obtains when the injured party is an employee, who, by his contract of employment, takes upon himself the risks caused by the negligence of his co-employees, and the usual risks incident to the hazardous employment in which he engages.

The pivotal question upon this branch of the case turns upon the solution of the question as to whether the defendant was negligent in not providing a safety switch, a trailing switch, or such a contrivance, in addition to the ordinary cross-over, as would guard against the exigency which came about by reason of the neglect of the engineer and Schram, the switchman. That question seems to be determined adverse to the plaintiff by the case of Salters v. Delaware and Hudson Company (3 Hun, 338). It was said in that case that “ a railroad company is not bound to employ mechanical appliances to protect one servant from injuries liable to result from the negligence of another.”

The negligence asserted was the omission of the defendant to have a target switch, and Landon, J., said: “ The switch was not open in consequence of any defect in its construction or for want of proper repair. It was an adequate and sufficient switch so far as the adjustment of the tracks to each other was concerned, and that seemed to be the chief office of a switch. It was a common switch.” In that case it was held error to leave it to a jury to say whether defendant was not guilty of negligence “ for not getting a target switch.” Apparently the court, in the case before us, went beyond the rules laid down in that and other adjudged cases in the charge as given and the refusals made.

Appellant’s learned counsel cites us to Smith v. New York and Harlem Railroad Company (19 N. Y., 133), but it does not apply. Seluen, J., said: “As between the deceased and the defendants no such relation as that of master and servant existed. The question between them, therefore, is the same as if the deceased had been a passenger upon the train to which the accident occurred.” That case followed the rule laid down in Hegeman v. The Western Railroad Company (16 Barb., 353) and affirmed in 3 Kernan, to the effect that “ all inventions and improvements known” to defendant which will contribute materially “to the safety of their passengers, whenever the utility of such improvement has been thoroughly tested and demonstrated,” must be used. (Smith v. R. R. Co., supra, 133.)

The case of Kirkpatrick v. Railroad Company (79 N. Y., 240), was one where the engine in use was defective, and by reason of the defect the explosion took place which killed the foreman, whose representative brought suit. Nor does Pantzar v. Tilly Foster Company (99 N. Y., 368) apply, as that was a case where a dangerous overhanging rock fell and caused an injury, and was clearly a ease of want of ordinary care and prudence on the part of the master, Stringham v. Stewart (100 N. Y., 516), was a case of a dangerous and dtfective machine, or an elevator, which fell for want of proper safety appliances while being operated by the plaintiff. Probst v. Delemater (100 N. Y., 266), was a case where a cable was used to haul in connection with a derrick and .there ivas an injury, and the jury found that the cable was not safe and secure, and there was no evidence of any care in selecting the cable and a verdict was, therefore, sustained in favor of plaintiff.

In Ellis v. The New York, L. E. and W. Railroad Company (95 N. Y., 546), the buffers were defective and failed to perform the duty which they were provided for, and, therefore, a recovery was sustained. That case was distinguished by Danforth, J., from Salters v. Delaware and Hudson Company [supra). Employers are not bound to insure against accidents; in the case of employees they are only obliged to provide appliances which are safe so long as used without negligence; the employee takes the risk of danger from negligence of his co-employee.” (Burke v. Witherbee, 98 N. Y., 562; Rummell v. Dillworth, 3 Eastern Rep., 820; Salters v. Delaware and Hudson Company, supra; Piper v. Railroad Company, 1 T. & Cook, 290.)

In the case last cited Boardman, J., remarked, viz.: “ If a common switch is property cared for it is as safe as any other.” (See, also, Bajus v. S., B. and N. Y. R. R. Co., 25, Weekly Dig., 5 ; Randall v. B. and O. R. R. Co., 109 U. S., 478; Sammon v. The N. Y. and Harlem R. R. Co., 62 N. Y., 255 ; Gage v. D., L. and W. R. R. Co., 14 Hun, 447.) Between employer and employee the law does not require the safest appliances or instruments, nor does it fix a liability upon the employer “ for the failure to discard ” those which are not safest for every exceptional exigency. (Thomp. on Neg., 983.)

It may not be left to the jury to say what switches, what patented article or contrivance, shall be used by a railroad company in order to escape liability from injury to an employee caused by the negligence of. a co employee.

A new trial should be ordered.

Boardman and Follett, J. J., concurred.

Judgment and order reversed and a new trial ordered with costs to abide the event.


author: Hardin, JP. J. : Boardman, J.: Follett, J.:

text:
    JAMES HAND, Appellant, v. ROBERT E. DORCHESTER, Respondent.

      Practice — an order of a County Court, granting a new trial on the ground that the verdict was against the weight of evidence, cannot be revieioed by the General Term.

    Appeal from an order of the County Court of Onondaga county, granting a motion made upon its minutes for a new trial, and directing that the verdict recovered by the plaintiff “be, and the same hereby is, .in all things, set aside and vacated, and a new trial granted herein, upon the grounds that said verdict is and was contrary to the law and to the evidence, and against the weight of evidence.”

      Held, that the appeal should be dismissed, as it would be useless for the court to attempt to review the order, as, even if. it should find no valid exception upon which the order could be sustained, it could not reverse it, as it could not review so much of the order as granted a new trial, upon the ground that the verdict was contrary to the evidence.

      Reilley v. The Delaware and Hudson Railroad Company (102 N. Y., 888) followed.
    Appeal from an order of the County Court of Onondaga county, granting a new trial and setting aside a verdict in favor of the plaintiff."

      Baldwin da Kenned/y, for the appellant.

      Sisooók, Gifford da Doheny, for the respondent.
   Hardin, JP. J. :

After the plaintiff had recovered a verdict in the Connty Conrt of Onondaga county for $225, the defendant made, upon the minutes of the court, a motion for a new trial, specifying numerous grounds, which resulted in an order of that court.

The order states that the verdict “be, and the same hereby is, in all things, set aside and vacated, and a new trial granted herein upon the grounds that said verdict is and was contrary to the law and' to the evidence, and against the weight of evidence.” Apparently the County Court exercised its discretion. That discretion is 'not re viewable in this court. (Reilley v. The D. and H. C. Co., 102 N. Y., 385 : S. C., 5 Eastern Rep. 706, 707) Whether or not a verdict is contrary to evidence, in a case tried in the County Court, is a question to be determined by that court. (Hinman v. Stillwell, 34 Hun, 179.) But the County Court fell into error in not following the settled rule, which is to the effect that a new trial is granted when the verdict is against the evidence, upon payment of costs. (Bailey v. Park, 5 Hun, 41.) In that case the court modified an order by striking out the words “ with costs to abide the event,” and substituted the words “upon the payment of costs,” and the order, “as amended,” was affirmed.

In Kelly v. Frazier (2 Civil Pro. R., 327) the court had allowed only ten dollars costs to the defendant. The order did not state on what ground it was made. The court said, the part of the order as to costs “was unwarranted by the practice prevailing upon the subject, for whén a verdict is set aside as against the evidence, the moving party is required to pay the costs of the trial. (Bailey v. Park, 5 Hun, 41.) In that respect the order should be modified, and an order entered setting aside the verdict, upon payment by the defendants of tiie costs of the trial, and, as so modified, it should be' .-affirmed.” That, however, was an appeal from an order made at the Circuit Court in a cause originating in the Supreme Court.

In Reilley v. D. and H. C. Co. (supra), Rapallo, J., says: “We do not think * * * that the provision of the Code of Civil Procedure changed the former rule, or was intended to give jurisdiction to the Supreme Court to review the exercise of the discretion of an inferior tribunal.” (102 N. Y., 387.)

In Cramer v. Lovejoy (24 Weekly Dig., 572) the General Term of the Fifth Department held that the County Court had power to .allow an amendment upon just terms, and that the action of the ■County Court, in that regard, is reviewable in this court, and distinguished the case from Reilley v. D. and H. C. Co. (supra). The abstract in the digest does not point out the distinction. The appeal in the case of Cramer v. Lovejoy was from a judgment entered in :the County Court.

If this court is without power to review the discretion of the •County Court, and that discretion has not been exercised properly by the County Court, then the appeal may be dismissed and the plaintiff allowed to apply to that court=for an amendment of its order. (Smith v. Platt, 96 N. Y., 636.)

Appeal dismissed, without costs.

Boardman, J.:

We cannot say that the new trial was granted because the verdict was against evidence. It was granted “ on the grounds that said verdict is and was contrary to law and to the evidence, and against the weight of evidence.” It was granted on the law, therefore, and in such a case the moving party should not be charged with the costs of last trial. If there be error in the form of the order, that should be corrected, on motion, in the court below, and not on appeal

The appeal should be dismissed, without costs, as in 31 Hun, 178.

Follett, J.:

It is useless to attempt to review this order, for should we find no valid exception upon which it could be sustained, we would be met by the fact that it also was granted upon the ground that the verdict was contrary to the evidence, and under Reilley v. The D. and H. C. Co. (102 N. Y., 383) we cannot review an order of a County Court granting or refusing a new trirl upon this ground. If the order is not appealable we are without jurisdiction to reverse, affirm or modify it. If we are without power to review the whole order, we are clearly without power to review any part of it.

The appeal should be dismissed, and, as the question is new, without costs to either party.

Appeal dismissed, without costs.


author: Boardman, J.: Hardin, P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EUCEBIA FITZGERALD, Appellant.

      A coroner cannot exhume and dissect a dead body, except upon complying with all the requirements of the statute — Code of Criminal Procedure, secs. 777, etc. — he must summon a jury —■ what evidence justifies a conviction of body stealing under section 311 of the Penal Code.

    Upon tlie trial of the defendant by a Court of Oyer and Terminer, upon an indictment charging her with the crime of body stealing, evidence was given tending to show that in the latter part of March, 188-I, the defendant, in company with a detective employed by her. having in their possession two written instruments purporting to be affidavits made by persons residing in San Francisco, exceedingly informal in character and uncertified by any officer so as to make them admissible as evidence in this case, applied to a coroner in the county of Chemung, and requested the exhumation of the hody of General Irvine for the purpose of dissection and examination. Irvine died in San Francisco in November, 1882, his remains being subsequently removed to Elmira, and there interred, in 1882.
    The defendant, who claimed to bo a foster sister of the deceased, claimed that Irvine was murdered by his wife and daughter; and in attempting, unsuccesfully, to enforce claims made by her against the estate of Irvine, threats and suggestions of criminal agency, on the part of the family of the deceased, in producing his death were made by her.
    Pursuant to this application the coroner, without notifying the wife or daughter, or any of the friends of Irvine, and without summoning or impanneling any jury, directed the superintendent of the cemetery to exhume the body of Irvine. In accordance with this direction the body was disinterred and an autopsy was made by physicians, the slomach, gall and a portion of the duodenum being removed and the body again interred.

      Held, that as the coroner failed to summon a jury, as required by sections 773 and 774 of the Code of Criminal Procedure, he lost all jurisdiction, and his act was not the act of an officer but of an individual; that he was a trespasser and a wrong-doer, and that his official character could not be invoked to protect others acting under his directions.
    That, as the evidence justified the jury in.finding that he acted at the instigation of the defendant, and that the defendant was actuated by malicious motives, the jury were justified in finding the defendant guilty of body stealing, as that offense is defined in section 511 of the Penal Code. (Hardin, P. J., dissenting.)
    The question as to the jurisdiction of a coroner of Chemung county to direct the exhumation of a dead body interred in that county, where the death occurred in the State of California, was not decided in this case, although, as the conviction could be affirmed on other grounds, it was assumed to exist.
    .Appeal from a judgment of conviction rendered against tiie appellant in the Court of Oyer and Terminer of Chemung county on tlie 3d day of December, 1885, upon the verdict of a jury declaring her guilty of the crime of body stealing.
    The indictment accused “Eucebia Fitzgerald, Edmund A. Eeilly and J. Thomas Nealson of the crime of body stealing, committed as follows: That said Eucebia Fitzgerald, Edmund A. Eeilly and J. Thomas Nealson, on the 9th day of April, 18S5, at the city of Elmira, in the county of Chemung, with force and arms, unlawfully and feloniously did remove the dead body of a human being, to wit, that of William Irvine, from a grave or place where the same had been buried, without authority of law, for the purpose of dissection, for procuring the reward for the return of the same, and for motives of malice and wantonness, against the form of the statute in such case made and provided.” A separate trial was had of the appellant at the December Oyer and Terminer, and the jury found lior guilty of tlie crime charged in the indictment. Thereupon the court sentenced her to be confined in the Monroe County Penitentiary for the term of two years.
    In the latter part of March, 1885, Eucebia Fitzgerald, in company with one J. Thomas Nealson, having in their possession certain alleged affidavits of an undertaker and physicians residing in the city of San Francisco, applied to E. A. Reilly, a coroner of the county of Chemung, and requested the exhumation of the body of General "William Irvine, for the purpose of dissection and examination. Irvine had died in the city of San Francisco,'November 12, 1882,' from the assigned cause of pulmonary appoplexy.' His wife and daughter were with him at the time, and his remains were subsequently transferred to the city of Elmira, and there interred in tfie month of December, 1882.
    The defendant Fitzgerald claimed to be. a foster-sister of the deceased, and to be interested in such proposed examination in behalf of public justice. She publicly stated that his death had resulted from the administration of poison and by violence at the hands of his wife. Irvine left a large estate at the time of his decease, and within four-and-twenty hours after it had occurred the defendant Fitzgerald called upon his wife and daughter and stated that she was the owner of real estate of much value which stood in Irvine’s name ; that she had loaned him $2,400, or thereabouts, the day of his demise, and that he was largely indebted to her for services rendered in the capacity of a nurse during the years immediately preceding, and that unless some amicable settlement was made with her, by which her rights were protected, she would make the air blue with scandal, and stated in a written note to Irvine’s wife certain family secrets affecting her chastity, in the possession of which -she claimed to be.
    Coroner Reilly, without consultation with the criminal authorities of the county, and without notifying the wife and daughter or any of the friends or relatives of the Irvine family, directed the superintendent of Woodlawn Cemetery, situated in the city of Elmira, to exhume the body of the said Irvine. Acting in accordance with such direction, the body of Irvine was disinterred April . 8, 1885, during the night-time and in the early morning of the ninth. Coroner Reilly, with the man Nealson, and two or three physicians, made an autopsy of the body of the said Irvine, aüd dissected various portions of it; and an examination of the coffin was made to the extent of cutting open the pillows enclosed in it, and the cloth-side enclosing the corpse, and practically destroying it, in a search — as the defendant and her detective stated — for a will, which it was supposed to contain. The body, as the physicians stated, already showed that one autopsy'had been held upon it in the city of San Francisco. Coroner Reilly took the stomach, the gall, liver, spleen and a portion of the duodenum and carried them away with him. The body was then replaced in its coffin and restored to the grave from which it had been taken. No jury was summoned by the coroner, and none ever appeared or were sworn. After such examination of the body, and until the present day, no jury has ever been drawn, summoned or sworn in the case. The subsequent discovery of these facts led to the arrest, indictment and conviction of this defendant. On the trial, and prior thereto, it appeared that a chemical examination of the portions of the body of Irvine, which had been removed by Coroner Reilly at the instance of the defendant, revealed the fact that there was no poison contained in them.

      Jacob Schwartz, for the appellant.

      John B. Stanchfield, for the respondent.
   Boardman, J.:

The coroner has no jurisdiction to act except in the manner provided by law. (Code Crim. Pro., § 773.) He had no right, on his own motion, or at the request of the defendant, to take up a dead body and have portions removed for analysis. No one can suppose that a coroner is possessed of such an irresponsible authority to be exercised upon suspicion upon the buried bodies in our cemeteries. He can proceed only by the aid of a jury. The statute was not complied with in this case. No jury was summoned. The act done was without authority of law. In failing to comply with the law he lost all jurisdiction, and the act was not the act of an officer but of an individual. He was a trespasser — a wrong-doer, and his official character could not be invoked to protect others. He acted at the instigation of the defendant alone. No one else had any motive to act or desired action. And who was the defendant, and what was her motive? Was it in the interest of a just administration of the criminal law ? She knew, in California directly after the death of Gen. Irvine in 1882, from Dr. Wooster, exactly what she makes use of in 1885 in New York to accomplish her purpose here, as appears by the evidence of her son, Horace N. Wooley. She claimed to be a relative by adoption to Gen. Irvine from his youth. By reason thereof, and for other reasons, she claims an interest in his affairs and the ownership of his property. Both claims are successfully controverted. She sends a hired detective or servant to shadow the family and get some evidence in her interest. In the midst of the California litigation over the title and ownership of Irvine’s property there, she leaves San Francisco and follows her detective to Elmira, where she attempts to get a favorable adjustment of her claims against the property of the deceased. Threats are made use of. Suggestions of criminal agency on the part of the family of the deceased producing his death are made. All these means failing, more active measures are instituted and she proposes and urges the disinterment of the body and the examination of some of the organs for poison. To carry out this purpose she has procured for use two written instruments, affidavits, or bogus affidavits, exceedingly informal, uncertified by any officer to make them evidence in this State, and produces them to the coroner to induce action. This is the only evidence, known to her in 1882, as well as it was in 1885, on which is founded the suggestion that Irvine was murdered by his wife and daughter. It is used to incite action by the coroner, and he undertakes to act. The defendants’ motive is further illustrated by her search for a will in the coffin. She requests the coroner and Nealson to search for a will of deceased in the coffin, and they do so, cutting open the pillow for that search. She came to Elmira to have the body taken up and the stomach examined, and she proposed to stay until that was done. She was the guiding, animating spirit for her own malicious and selfish motives in securing this disinterment. Mr. Reilly (the coroner) ceased to be coroner, and as her agent, and at her request, searches the coffin for a will. Was there anything in the relations of the defendant and Gen. Irvine, as shown by the evidence, which could justify her action? Was there any evidence that the deceased, came to his death by criminal agency ? The jury has answered both questions in the negative. It has also found that the defendant was actuated by malicious motives, that she was attempting to extort money or property from the family, of the deceased, and that failing in persuasions or threats, she resorted to more violent proceedings to bring the family to terms or to blacken their reputation with suspicions of criminal agency in the ■ death of the husband and father. The jury has found that what was done was so done at her request, by her instigation, for her purposes and with malice.

Of course it is not intended to say that the jury made such express findings. What we do say is, that the evidence would justify such findings, which, being found, would sustain this conviction. (Penal Code, § 29.) . This section, with section 511 of the Penal Code, are all that are necessary in a proper ease to connect the defendant with the act done by others, and make her responsible therefor as if done by herself.

Let us review the exceptions taken upon the trial, and see whether error was there committed. The district attorney was allowed to prove that Gen. Irvine came to his death from natural causes. This evidence tended to show that the conduct of the defendant in charging a violent death was false, without any reasonable foundation and instigated by malice. The motives of defendant were properly in issue. The ruling limiting the answer of the witness, Nealson, upon his cross-examination was proper. The defendant, on cross-examination, .'had no right to the conversation further than was limited by the court, viz.: Such portions of the conversation as relate to matters called out by Mr. Staunclifield.” The rulings as to the admission of the testimony of the physician who conducted the autopsy as to what was said to him by Reilly, etc., are explained upon the denial of the motion to direct an acquittal of the defendant, and as so explained the exceptions are not valid. It is possible, however, that whatever was said or done on that occasion was a part of the res gestm showing, among other things, that no coroner’s jury was called, and that Reilly had not contemplated calling one. Besides, if Reilly was acting for, and at the request of the defendant, his declarations in connection with his acts, and tending to characterize them, were proper. "We see no valid exception to the evidence allowed to be read from the first commission.

The declarations of the defendant to Mrs. Merkle, in 1882, in Elmira, as to her relations with Gen. Irvine, were properly admitted in evidence and were the proper subject for contradiction. For the same purposes witnesses were properly called to show that Irvine never lived in Kentucky, and could not have been adopted by defendant’s father, as .and when she claimed, thus overthrowing the pretended youthful intimacy between defendant and deceased, upon which the defendant based their later friendship.

We do not see any error in the cross-examination of Charles A. Collins. The latitude allowed on cross-examination is reasonably broad. The defendant had proved the advice which Collins had given to her, and this cross-examination related to what was said in connection with the advice given, and tended greatly to qualify, if not destroy it, so far as it was to be used as a justification for her action.

Numerous other objections and exceptions are cited upon appellant’s points without any comment or authority, showing the rulings of the court to have been erroneous. The reading of the case and of such objections, as they occurred during the progress of the trial, does not show any errors. In fact the ease appears to have been tried in a painstaking and careful way, and we are convinced that the rights of the defendant were carefully guarded by the learned judge.

Inasmuch as this conviction can be sustained upon other grounds, it has not been deemed necessary to consider the question of the jurisdiction of a coroner of Chemung ccuuty after interment of a dead body in such county where the death 'occurred in the State of California. This opinion assumes that the coroner, so long as he follows the statute, has such jurisdiction, but without so deciding.

We think the judgment should be affirmed.

Follett, J., concurred.

Hardin, P. J.

(dissenting):

General Irvine died in the city of San Francisco, on the night of November 12, 1882, suddenly, having during the day been out gunning, returning to his home in the evening, after partaking of a light repast, consisting of tea, eggs, cold meat and bread and butter, prepared by his wife Phoebe, who, with their daughter, Mrs. Merlde, were occupying apartments together. Soon after partaking of the refreshments, he became distressed and made complaints of internal pains. The daughter left for a physician, and upon returning they found' that death had taken place. The remains were taken that night to the rooms of an undertaker, and they were subsequently embalmed, and on the 4th of December were conveyed by the widow and daughter to the city of Elmira, where they were interred in Woodlawn cemetery.

About a year after the death, inquiry was instituted as to the cause thereof, and tiie defendant employed a detective named Nealson, who visited the city of Elmira and returned to San Erancisco and made a report to the defendant, who then applied to the undertaker who embalmed the body, and to Dr. Wooster, the deceased’s intimate friend and physician, who had viewed the body, and they gave affidttvits of certain facts within their knowledge.

In the affidavit of Dr. Wooster, subscribed March 11, 1885, in connection with the statement of facts, he adds: “ In my opinion, he was first poisoned in his food or drink, and then, when in agony from the effects of the dose, he was struck on the head to stop his contortions and groans.”

Porter, the undertaker, stated in the affidavit subscribed by him, the condition of the remains when he received them, and that sundry persons viewed the remains, “among others Dr. Wooster, who remarked that to him it looked as having been poisoned.”

With these papers in her possession, the defendant visited the city of Elmira, where she met the detective Nealson. She sought legal counsel as to the method to be pursued in order to investigate whether General Irvine died a natural or unnatural death. She consulted an attorney, who advised her that the coroner of the county of Chemung had jurisdiction to hold an inquest over the remains, and that the “papers, upon their face, authorized him, the coroner, or were sufficient upon which he might exercise his discretion in the matter.”

The defendant and Nealson visited the office of Dr. Reilly, the coroner of the county 'of Chemung, and held a conversation in regard to the circumstances attending the death of the deceased. The affidavits of Porter and Dr. Wooster were presented to the coroner, and the defendant asked Dr. Reilly “ to do his duty as a coroner — to examine and see if the proofs were sufficient to authorize him in proceeding,” and “ that she wished the body to be taken up and the stomach, or some part of it, to be analyzed, to see if there was any trace of poison there.” She made the request that the evidence should be produced if it was there.

After that interview, Coroner Reilly determined to proceed in the premises. He visited Nathan Baker, superintendent of Wood-lawn cemetery, at his house, and said to him, viz. “ That he had evidence to. satisfy him that a wrong had been perpetrated, or sufficient to warrant him in making an examination of the body of General Irvine; that he had sufficient grounds of acting, and he asked Baker, the superintendent, to act,” showing him one of the affidavits and stating that he had others. Thereupon the superintendent determined to act in the premises and facilitate the proceedings in behalf of the coroner. Thereupon directions were given Abbott, the sexton, to open the grave and remove the remains to the vault in the cemetery, for the purpose of an examination.

Reilly, the coroner, also applied to Dr. Wey to become one of two physicians to make the examination, and on the evening of the 8th of April, Reilly visited the office of Wey, with Nealson, avowing that he had full authority in the premises “ to conduct an examinaton and have an examination made by the physicians.” The hour was fixed for an examination at ten the next morning, and Reilly informed Wey that he would “notify Dr. Squires, and we might expect to meet at the receiving vault in Wooodlawn cemetery” at ten the next morning. Accordingly they met the next morming at the receiving vault in Woodlawn cemetery, where the physicians found Coroner Reilly and Nealson and Baker and Abbott. The body was found lying in a coffin or casket on .the floor of the receiving vault. The coroner made a minute of the nature of the covering of the coffin and its handles and the plates, and the descriptions of every- other matter connected therewith. Drs. Wey and Squires raised the head and shoulders of the body, and after carefully scrutinizing the face, and the coroner making a minute thereof, a careful examination was made of the head, and the stomach and duodenum and certain other parts ot the body were removed and delivered to Dr. Reilly, who placed them in a vessel he had prepared for that purpose. After the examination, the coroner went over to the house of Abbott, the sexton, in the cemetery grounds, where Baker suggested the propriety of having a coroner’s jury, and Wey replied, “It is too late for such a proceeding.”

Baker testified that he was present at the request of the coroner, to identify the remains, and that lie did so identify them, and that he was sworn upon that point by the coroner; that while at the vault he had a conversation with Dr. Reilly, the coroner, and he adds, viz : “ Dr. Reilly and myself conversed for a few minutes about having a jury, and I said to Dr. Reilly there was enough within the bounds of the cemetery to make up a jury, and he asked if I would have them all come to the house, and I so ordered and they came. I think there were five men that came off the cemetery; I think there were nine men there then. When I had sent for the men, I went back to the house and did not go into the vault again. About that time Dr. Wey came'over to the house.”

He also testifies that he held a conversation with Dr. Wey and stated as follows, viz.: “ Dr. Reilly has seemed to think it advisable to have a jury. There are men enough here to have a jury without delaying, and there are men enough. They are already here, and Dr. Wey said it was of no use; that if there was anything found to show that this man died from any causes other than natural causes, the whole procedure would have to go to California, and this jury would never be heard of again. I stepped out of doors and Reilly was coming over from the vault and he had not yet come in the house, and I said Dr. Wey thinks it is entirely useless to have a jury, and I don’t wish to urge this matter one way or the other, doctor, and Dr. Wey came out and he repeated to Dr. Reilly what he had said to me in the house, that it was no use to have a jury, and he gave his reasons as I have stated'”

No jury was, in fact, sworn to hold an inquest. The remains were recoffined and returned to the grave, except the part removed therefrom as already stated.

Powers and duties of a coroner are conferred by statute. Section T73 of the Code of Criminal Procedure provides, viz.: “ When a coroner is informed that a person has been killed or dangerously wounded by another, or has suddenly died under sucn circumstances as to afford a reasonable ground to suspect that his death has been occasioned by the act of another, by criminal means, or has committed suicide, he must go to the place where the person is, and forthwith summon not less than nine or more than fifteen persons, qualified by law to serve as jurors, to appear before him forthwith, at a specified place to inquire into the cause of the death or wound.”

Section 774 provides that “ when six or more of the jurors appear, they must be sworn by the coroner to inquire who the person was, and when, where and by what means he came to his death, or was wounded, as the case may be, and into the circumstances attending the death or wounding, and to render a true verdict thereon, according to the evidence offered to them or arising from the inspection of the body.”

Section 775 authorizes a coroner to issue subpoenas for witnesses returnable forthwith, or at such time and place as he ,may appoint. He must summon and examine as witnesses every person who, in his opinion, or that of the jury, has any knowledge of the facts. It also prescribes he must summon as a witness a surgeon or physician,' who must, in the preseuce of the jury, inspect the body and give a professional opinion as to the cause of the death or wounding.”

These sections of the law are substantially a re-enactment of the provisions of the Revised Statutes in respect to coroners’ inquests. (2 R. S., 743.) We aré of the opinion that the affidavits and information lodged with the coroner were sufficient to justify his exercise of his discretion to proceed in the premises.

The expression in section 773 of the Code of Criminal Procedure, to wit: “ When a coroner is informed that a person has been killed or dangerously wounded,” etc., seems to warrant the conclusion that affidavits, or information even not sworn to, may be acted upon by a coroner in determining whether it is his duty to proceed in a given case. When such information produces in the mind of the coroner “ a reasonable ground to suspect that a death has been occasioned by the act of another by criminal means ” he must go to the place where the person is.

We find no exception or exclusive words in the statute which restrict or limit the duty of a coroner in case such information shall be given to him so as to exclude the examination of the body found within his jurisdiction, although the death may have been occasioned or produced in another jurisdiction. The coroner is “ a very ancient office at the common law.” (1 Black. Com., 347.)

The lord chief justice of the King’s Bench is the principal coroner in the kingdom, and may, if he please, exercise the jurisdiction of a coroner in any part of the realm. The office is of equal antiquity with the sheriff. There the coroner was chosen for life, and his office and power were, like those of the sheriff, either judicial or ministerial. (1 Black., 348.) The coroner’s court was one of record. (4 Black., 247.) Ilis proceedings being in a court of record might be reviewed by certiorari. While certain of the powers and duties which devolve upon a coroner and his court in England have been devolved upon a coroner by statute in this country, it has uniforiríally been held that a coroner does not hold a court of record and that he has only such powers as are conferred upon him by the statute. (People v. Budge, 4 Park. Crim. R., 522 ; Crocker on Sheriffs, 907.)

In England the finding of a coroner’s jury is equivalent to a bill of indictment. Not so in this country. (People v. Budge, supra.)

In Regina v. Ellis (2 C. & K., 470) it was held that in a case of manslaughter where the cause of the death and the death occurred in a county, and the body after death was removed to a city, and the coroner of the city held the inquest, and he was tried for the manslaughter on the inquisition, that the inquest was properly held, under 6 and 7 Victoria (chap. 12).

We think it was properly held, at the trial, that the coroner of Chemung had jurisdiction to pi’oceed, under the statute, to inquire into the cause of the death. For that purpose he was authorized to employ a surgeon or physician to makeaywi mortem examination. (Code of Crim. Pro., § 775.)

Necessarily, in the discharge of the duties of a coroner, he must exercise some discretion as to the order of events. In the case in hand, before a surgeon or physician could examine the body, it was necessary that it should be removed from the grave, and proper that it should be placed, as it was, in the vault, a suitable place for making the examination by the surgeons or physicians, and, also, for the purpose of being viewed by a jury.

It seems that in England, where the duty of the coroner is judi cial, he can only take an inquest super visum corporis, and that an inquest not thus taken is void. King v. Ferrand, 3 Barn. & Ald., 261.) In the case last cited it was said: “ If a body be interred before he come, he must dig it up.” “This he may do lawfully within any convenient time, as within fourteen days.” If the coroner had summoned a jury and had them sworn in the presence of the body in the vault, undoubtedly his inquest would have been valid. In the ordinary discharge of his duty such jury should have been sworn, viewed the remains and certified to their inquest.

Though it be conceded that no valid inquest was held, we are to inquire whether the acts of the coroner, and those inducing him to act and aiding him in the performance of his duty, are criminal, because, forsooth, the coroner improperly omitted to complete a valid inquest.

It must be assumed that the coroner had jurisdiction and was, therefore, warranted in causing the body to be removed from the grave for the purpose of enabling him to hold an inquest thereon, and that he had authority to employ a physician to aid in a postmortem examination of the remains.

Section 308 of the Penal Code provides, viz.: “The right to dissect the dead body of a human being exists in the following cases: First. In cases prescribed by special statutes. Second. Whenever a coroner is authorized by law to hold an inquest upon the body, so far as such coroner authorizes dissection for the purposes of the inquest, and no further. Third. Whenever and so far as the husband, wife or next of kin of the deceased, being charged by law with the duty of burial, may authorize dissection for the purpose of ascertaining the cause of death and no further.

It must be assumed that there was no unlawful dissection authorized or carried forward by the coroner (Rhodes v. Brant, 21 Hun, 1), and that the coroner had a discretion “ to determine whether any persons, and what persons, may be present besides the surgeons.” (Crisfield v. Perine, 15 Hun, 202; S. C. affirmed, 81 N. Y., 622.) In that case it was said: “Not even the jurors have a right to witness the examination. They are to be informed of what it discloses by the testimony of the surgeons.” We do not understand that the trial judge indicated that there had been any unlawful dissection of tlie body of tlie deceased. Assuming, pursuant to section 29 of tlie Penal Code, that the defendant was a principal, or, as the law stood before the adoption of that section, an accessory before the fact, it is claimed that she was guilty of the crime of body stealing, in that she induced or procured the coroner to commit that crime.

Section 311 of the Penal Code provides who shall be liable for that crime in the following language, viz.: “A person who removes the dead body of a human being, or any part thereof, from a grave, vault or other place where the same has been buried, or from a place where the same has been deposited while awaiting burial, without authority of law, with intent to sell the same, or for the purpose of dissection, or for the purpose, of procuring a reward for the return of the same, or from malice or wantonness, is punishable by imprisonment for not more than five years or by a,fine not exceeding one thousand dollars, or both.”

In order to constitute the crime under this statute there must be a removal of “ the dead body of a human being from a grave, vault or other place where the same has been buried without authority of law.'” If such removal is made with the authority of law no crime can be predicated of the act, and where the removal trikes place without any warrant of law it must also be found, as a fact, that it was made with intent to sell the body or for the purpose of dissection or for the purpose of procuring a reward for the return of the same, or from malice or wantonness.

It is not claimed upon the evidence before us that the body was removed with any intent to sell the same, nor was it held at the trial, nor do we think upon the evidence given at the trial it could justly have been held that it was removed for the purpose of dissection. Nor do we think upon the evidence given upon the trial that a finding that the removal from the grave was for the purpose of procuring a reward for the return of the body was authorized.

But it is claimed that the removal Avas made from malice or wantonness. The physical, actual removal, was made by Abbott, the sexton. Surely the evidence does not warrant a finding that he AAas actuated by malice or wantonness, nor does the evidence indicate or warrant the conclusion that Baker, the superintendent of the cemetery, in giving directions to open the grave and make a fransfer of the remains to the vault preparatory to an examination by a physician and an inspection by a jury, was actuated by malice or wantonness. Apparently he believed it was his duty to yield to the requests made by Reilly, the coroner, in that regard. Nor is there any evidence which satisfies the judgment that Reilly, the coroner, entered upon the discharge of his duty in the premises, collusively, maliciously or wantonly. On the contrary the evidence seemed to warrant the conclusion that he entered upon the discharge of his duty and the exercise of his powers in the premises as a public officer charged with the performance of difficult and delicate duties. Nor do we think the evidence warrants the conclusion that when he commenced the discharge of his duty in the premises he had formed a determination or conclusion not to summons a jury, or not to fully and properly execute his duty in the premises. It seems more reasonable to suppose that he entered upon the performance of his duty with reasonable and proper motives. It is but reasonable to presume that he, as a sworn public officer, fully intended to exercise the duties and functions cf his office when he requested the superintendent to direct to be removed the remains to the vault for the purpose of being inspected by a surgeon.

The case was exceptional and unusual. A death had occurred in California. And if the.death was unnatural or caused by criminal agencies the coroner may have supposed that the finding of the jury in a formal inquest would not be effective in aid of the execution of the criminal laws in the State of California.

There is evidence in the ease tending to show that he entertained the idea of having a jury sworn and an inquest formally found immediately after the examination of the body had been had by the physicians at the house of Abbott, the sexton. It is not unreasonable to suppose that he was dissuaded from completing the inquest by the discussion had in respect thereto at the time.

"While it is not important to determine on this occasion at precisely what period of time the coroner abandoned the'ideaof'imp'anneling a jury, it is important to give some consideration thereto in determining the questions which were made in respect to the defendant’s knowledge thereof. We have found nothing, however, in the evidence which leads us to the conclusion that there was any preconceived design on the part of the coroner to omit to summon a jury. ¥e are inclined to the opinion that he suddenly fell into an error, in regard to his duty, at the house of the sexton, perhaps in the innocent supposition that the ends of justice would not be sub-served by further continuance of the proceedings incident to an inquest. If the coroner, when be entertained the application of .the defendant and received the affidavits and information in respect •to thé circumstances of the death of Irvine, came to the conclusion that it was his duty to act in the premises, and entered upon the discharge of the duty in the manner detailed by the evidence without collusion, or malice or wantonness,'fully intending to do his duty in the premises, and took the several steps in performance thereof down to the period of time when it was possible for him to have impanneled a jury in the presence of the remains, after the examination by the physicians, and then and there came to the conclusion, improperly, that the further continuation of the proceedings of the inquest would be useless, though he was mistaken in such conclusion, we are of the opinion that he had not violated the statute against body stealing. But it is claimed the defendant is guilty of a violation-, of that statute, “ if she knew that the coroner was not to hold an inquest, or do whan he did, with a coroner’s jury.” Indeed, such, in effect, is the tenor of the charge delivered to the jury.

The counsel for the defendant requested the court to charge, as a proposition of law, viz.: “ That the fact- that no coroner’s jury was •called or sworn does not constitute the crime of body stealing.” To that request the court replied, “That is technically correct. The fact that no coroner’s jury was called does not steal the body.” Thereupon the defendant’s counsel requested of the court to charge as follows: “ If the jury believe that the defendant requested the ■coroner simply to do his duty she is not responsible for'any violation of law.” To that the court replied: “ If she knew that the •coroner was not to hold an inquest, or to do what he did without a coroner’s jury, she is responsible; and if she was attempting to use legal forms as a cover to accomplish the ulterior purpose of getting possession of the stomach of General, Irvine to coerce a settlement of her claims, and with malice and wantonness, she is responsible.” The defendant’s counsel then asked the court if there was a refusal ■to charge the request and the court replied: “Yes, sir; further or other than I have already charged.” An exception was taken by the defendant and a further request made, viz.: “ I ask your honor to say to this jury that there is no evidence in this case that this defendant knew, or had cause to know, that coroner Reilly would not call a jury.” To that request the court replied, viz.: There is no evidence, of which I am aware, further than or other than the fact that she had instruction from Mr. Collin of the necessity of a coroner’s jury, and there is no evidence that she asked to have a coroner’s jury, and that Mr. Nealson, her detective, wdio was here under her employ, as I understand, for a per diem compensation, was present at the time without the suggesting of a coroner’s jury, and that there was no suggestion from any quarter, except from Mr. Baker, that a coroner’s jury was necessary; and under all the circumstances of the crse I think it is for the jury to say whether there was a purpose on the part of coroner Reilly to call a jury, and whether she knew it.” To that refusal there was an exception, and also to the qualification. Thereupon the defendant’s counsel asked the court to charge that if it was not necessary for this defendant, when she requested coroner Reilly to make an examination, to ask him also that he should call a jury. To that request the court replied: “ That would be so if there was no knowledge on her part that he did not intend to call a jury.” The counsel for the defendant excepted.

The witness, Baker, testified while at the vault he held a conversation with Dr. Reilly “ abofit having a jury, and I said to Dr. Reilly there was enough within the bounds of the cemetery to make up a jury, and he asked if I would have them all come to the house, and I so ordered and they came; I think there were five men that came off the cemetery; I think there were nine men there then; when I had sent for the men I went back to the house and did not go in the vault again, and the men came, and about that time Dr. Wey came over to the house, and Dr. Wey said it was of no irse, that if there was anything found to say that this man died from any causes other than natural causes the whole procedure would have to go to California and this jury would never be heard of again.”

Dr. Wey is called later in the trial and testified that he did not say to Reilly on that occasion “ that the calling of a jury was all flummery; * * * that the drawing of a coroner’s jury was a. piece of flummery, or all flummery.” In other respects, however, he does not contradict the testimony given by Baker, tending to show that up to that time the coroner entertained an intention and commenced the execution of that intention by summoning jurors, and that he then and there fell into the error of omitting further to consummate the proceedings by a completed inquest.

We think the court fell into an error in refusing to yield to the requests which we have already quoted, and that the defendant was entitled to have the jury instructed in accordance with the tenor of said requests. We are not able to say that the jury would have reached the same conclusion had they been told that it was not necessary for her, when she requested Coroner Beilly to make an examination,” to ash him, also, that he should call a jury. It does appear by the evidence that in an interview she held with the coroner at the time the affidavits were presented and the information communicated which led him to act, that she demanded of him that he discharge his duty in the premises. As we have alre'ady seen, a part of that duty was the impanneling of a jury and returning and filing a formal inquest.

The foregoing views lead to the conclusion that the conviction and judgment should be reversed and a new trial ordered.

Judgment affirmed.


author: Boardman, J.:

text:
    WILLIAM DUFFUS, Appellant, v. ELI T. BANGS and JANE E. BANGS, Respondents.

      Fixtures — nursery stock is severed from the freehold by the giving of a chattel mortgage thereon —• the rights of a mortgagee are superior -to the rights of a lessor under 'a lien reserved by the lease — the mortgagee is not bound by a judgment of dispossession against a tenant in proceedings to which he was not a party.

    By a lease bearing date September 16, 1876, the defendants demised certain premises to the”firm of Will & Co., to be used as a nursery, for the term of ’five years, with a right to an extension for two or three years as to part of the lancl, reserving to the lessors a lien upon the growing crops, fruit and grain to be raised on the premises as security for the rent. On November 25,1878, the tenants, then in possession of and owning the nursery stock, mortgaged the same to the plaintiff,-to secure him against indorsements made for them, by a chattel mortgage, which was duly filed. In February, 1879, proceedings'to dispossess tlie tenants for non-payment of rent were instituted, and on Marcli fifth, a warrant was issued under a judgment recovered therein, which was never served upon the tenants. In April, 1879, the plaintiff foreclosed the chattel mortgage and bid in the property. Upon the refusal of the defendants, who were in possession of the nremises, to allow him to remove the stock, he brought this action to recover the damages thereby sustained.

      ■Held, that ho was entitled to recover.
    That the nursery stock was personal property, and that the chattel mortgage given by the tenant worked a severance of it from the real estate, causing the title to the property to vest absolutely in the plaintiff after a default.
    That the defendants acquired no title to the property as against the plaintiff. That the plaintiff’s rights were not affected by the judgment and warrant, in the proceedings to disposses the tenant as he was not a party to the proceeding in which they were obtained, nor could they be affected by the voluntary act of the tenants in-surrendering the possession of the property to the defendants.
    Appeal from a judgment in favor of the defendants entered upon a nonsuit at the Onondaga Circuit, ordered upon the trial of this action by the court without a jury.
    The action was brought to recover the value of property consist-' ing of trees, plants, shrubs and nursery stock, to which the plaintiff claimed title under a chattel mortgage given to him by the tenant in possession of the premises, by whom the said property was then owned. At the time of the execution of the chattel mortgage, and of the sale at which the plaintiff purchased the property, it was situated upon a farm leased to the mortgagors by the defendants, which contained a provision by which it was agreed that the lessors were to have a lien upon the growing crops, fruit and grain to be raised on said premises as security for said rent, except the .annual picking of fruit and the first year’s grain crop.

      Walter 8. MacGregor, for the appellant.

      Waters & McLennon, for the respondents.
   Boardman, J.:

The nursery stock was personal property and not real estate. It consisted- of trees, plants and shrubs planted by tenan for the purposes of trade, and to be removed and sold when ready for the market. (King v. Wilcomb, 7 Barb., 263; Green v. Armstrong, 1 Denio, 550; Smith v. Jenks, id. 580; S. C., Jencks v. Smith, 1 Comst., 90; Hamilton v. Austin, 36 Hun, 138, 112.) The tenants held by .virtue, of a lease from defendants under seal for a term of five years from September 16,1876, with a right to an extension of two or three years on lands planted to currants and raspberries. The tenant owned as against the landlord raspberries, etc., planted under such lease. November 25, 1878,. the tenants, then in possession of and so owning said nursery stock, mortgaged the same to the plaintiff to secure him against his indorsement of their notes for $600 due in about two months. The mortgage was duly filed. In February, 1879, proceedings were begun by defendant to dispossess the tenants for non-payment of rent due. After a contest possession was awarded the defendants and a -warrant issued March 5, 1879, but never served upon the tenants. While the tenants were still in possession and about March 14, 1879, the plaintiff claimed the property under his chattel mortgage of defendant, Eli- T. Bangs, who promised plaintiff that he might take up the property in the spring when the frost was out of the ground so it could be done. Plaintiff about the 1st of April, 1879, foreclosed his mortgage and bid in the property. When he went for the property the latter part of April the defendant refused to give it up. The respondents claim that the lease operated as a chattel mortgage in favor of defendants for any unpaid rents, but if so it was never filed, nor had plaintiff any notice of it. He was a mortgagee in good faith.

The chattel mortgage given by the tenants to plaintiff worked a severance from the real estate, and after default the absolute title became vested in plaintiff, who became entitled to enter upon the land and remove his personal property, there being, with as little injury to the defendants as was possible. (King v. Wilcomb, supra, and other cases; Wintermute v. Light, 46 Barb., 278; Bank of Lansingburgh v. Crary, 1 id., 548.) The defendants had acquired no title to the property as against the plaintiff’s superior title. It may have been otherwise in respect to the tenants whose rights of removal of the property may not have survived the existence of their lease. Whether such lease expired when the warrant for dispossession was issued may well be doubted. (Powers v. Carpenter, 15 N. Y. Weekly Dig., 155; further illustrated in Newell v. Whigham, 102 N. Y., 28.) But we think in no event ought such judgment and warrant to destroy the rights and title which the plaintiff in good faith had acquired in the mortgaged property. He was not a party to that proceeding and was not bound by it. Now clearly he ought to have a reasonable time after such removal to enter up and take away the stock. (Moore v. Wood, 12 Abb. Pr., 393.) Nor could the tenants, by their voluntary act of surrender of possession, deprive plaintiff, as mortgagee, of his rights under his mortgage to this property. He could still enter and remove the mortgaged property. (Ombony v. Jones, 19 N. Y., 234; London etc., Loan Co. v. Drake, 6 Com, Bench [N. S.], 796, 809.) We conclude that the nonsuit ought not to have been granted upon the facts shown.

The judgment must be reversed and a new trial granted, with costs to abide the event.

Hardin, P. J., and Follett, J., concurred.

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GEORGE McGANN, Appellant.

      Appeal from, a judgment of a Court of Special Sessions — a failure to comply with the requirements of section 211 of the Code of Criminal Procedure cannot be raised upon such an appeal — all objections must be stated in the affidavit upon which the appeal is allowed — Code of Criminal Procedure, secs. 751, 756 — a demand for an immediate trial before the special sessions, waives the right to demand a trial by another court in a different manner.

    The defendant, who had been arrested on a complaint charging him with an assault in the third degree, was brought before a Court of Special Sessions and told that he could have time to procure counsel and that he was entitled to a trial by jury. On being asked, after he had pleaded not guilty, if he was ready for trial, and if he elected to be tried by a jury, he demanded an immediate trial by the court without a jury. After having been convicted and sentenced the defendant made an affidavit, setting forth various grounds of alleged error in such proceedings and conviction, and obtained thereon an allowance of an appeal from the judgment.

      Held, that as it appeared that the objections stated in the affidavit were such as could only be raised because of a failure by the court to comply with section 211 of the Code of Criminal Procedure, and as the requirements, specified in that section, were only applicable to cases in which the defendant had an absolute right to be tried by a jury, after an indictment, the objections could not be considered in this case.
    That an objection that the magistrate had not informed the defendant of his rights, under sections 57 and 58 of the Code of Criminal Procedure, as required by the. latter section, was unavailing for the reasons:
    First. That the error relied on was not specified in the affidavit, upon which the appeal was allowed; and,
    Second. That the statute was directory only and not mandatory, and that while the statute should be observed in the interest of justice and fairness a failure to give the notice was not a jurisdictional defect.
    That the defendant, by demanding an immediate trial by the court, waived all considerations of other modes of proceeding.
    Appeal from a judgment of a Court of Sessions of Onondaga county, modifying and affirming, as so modified, a judgment of a Court of Special Sessions convicting the defendant of an assault in the third degree and sentencing him to imprisonment in a penitentiary for four months. The Court of Sessions reduced the term of imprisonment to thirty days.

      Frederick A. Lyman, for the appellant.

      Ceylon II. Lewis, district attorney, for the respondent.
   Boardman, J.:

The defendant was arrested on a complaint charging him with assault in the third degree, an offense of which Courts 'of Special Sessions have exclusive jurisdiction under section 56 of the Code of Criminal Procedure, except as provided by sections 5.7, 58 and 59. He was brought before"the court, was told that he could have time to procure counsel and was entitled to a trial by jury. On being asked if he was ready for trial and if he elected to be tried by a jury, after having pleaded not guilty, he demanded immediate trial by the court without a jury. A trial was accordingly had; the defendant was convicted and sentenced to four months in the penitentiary, which sentence, on the appeal to the Court of Sessions, was reduced to thirty days. Immediately after his conviction defendant made an affidavit, setting forth various grounds' of error in such proceeding and conviction, and ■ applied for and obtained an allowance of an appeal therefrom. The objections called to the attention of the justice in defendant’s affidavit are such as would arise in a proper case under section 211 of the Code, of Criminal Procedure. That section is found in part 4 of the Code, the caption of which is as .follows: “ Of the proceedings in criminal actions prosecuted by indictment.” We have held in People v. Bales (38 Hun, 180) that this caption might be taken into consideration in determining the signification of words used in it. By doing so we find the requirements in section 211 aimed at cases in which the defendant had an absolute right to be tried by a jury after indictment. Such is not the present case, and the defendant had no such right. It might be given to-him under section 57, in the discretion of certain officers. It would have been absurd, therefore, for the magistrate to inform the defendant that he had such right. He was asked how he would be tried. He replied, by the court without a jury, and was so tried. So far as section 211 applies to the present case (if at all), its provisions were complied with. By section 58 the magistrate is required to inform the accused of his rights, under sections 57 and 58, to remove the proceeding so that it may be tried after indictment if the requisite certificate and bail can be obtained. This was not done so far as the returns show. Two answers are made to the omission:

First. That the return is silent on that subject because the affidavit is silent in respect to it. In People ex rel. Baker v. Beatty (39 Hun, 476) it is held that the error to be relied upon on appeal must be specified in the affidavit upon which the apppeal was allowed, or it will not be considered in the appellate court. (Sec. 751.) The reason is given in section 756, whereby the magistrate “ must make a return to all the matters stated in the affidavit, and must cause the affidavit and return to be filed,” etc. He is not required to make returns as to matters not contained in the affidavit. This is reasonable. When the appeal is taken it must be presumed the appellant knows what alleged errors he wants to review. The return is made with reference to such errors only. If this be not true all sorts of technical objections may be urged, upon appeal, when but one worthless objection is alleged in the affidavit. It should be presumed that the proceedings were legal and valid unless it is affirmatively shown that they are otherwise.

Second. We are not prepared to hold the requirement of such notice to the prisoner mandatory and that a failure to give it is a jurisdictional defect. The large majority of magistrates authorized to liold Courts of Special Sessions are laymen possessed of little legal knowledge and still less experience in legal affairs. We cannot think it was intended that the neglect of this and similar provisions should prove fatal to a conviction. If so, what shall be the limit of the information to be given? Will a verbal statement of the substance of sections 57 and 58 be enough, or must the section be read through to the accused ? While the statute should be observed in the interest of justice and fairness, we think it is only directory.

The defendant, by his demand of an immediate trial by the court, waived all considerations of other inodes of proceeding than that demanded. The right was one that he could waive. (People ex rel. Murray v. The Justices of the Court of Special Sessions, etc., 13 Hun, 533; affirmed, 74 N. Y., 406.)

The judgment of the Court of Sessions should be affirmed.

Hardin, P. J., and Follett, J., concurred.

Judgment of the Court of Sessions of Onondaga county affirmed.


text:
    HARVEY A. MOYER, Appellant, v. GEORGE W. McINTYRE, Respondent.

      Conditional sale of property — the condition is void unless the contract be filed as required by chapter 315 of 1884.
    On August 5, 188-5, the plaintiff sold a wagon to one Smith for seventy-two dollars and fifty cents, five dollars being paid in cash and a note for the balance being given by Smith to the plaintiff, which note provided that the title • to the wagon was to remain in plaintiff until the note was paid, and that the plaintiff might take possession of the wagon whenever he felt insecureSmith took possession of the wagon and eight weeks thereafter sold it to the defendant, who took the same without notice of the plaintiff’s claim, paying ! therefor ten dollars in cash and applying fifty-five dollars upon an old debt owing to him by Smith. The plaintiff, after tendering to the defendant ten dollars and demanding the wagon, brought this action to recover its value in a justice’s court.

      Held, that as the contract was not filed as required, by chapter 315 of 1884, the conditions and reservations contained in the note, qualifying and limiting Smith’s ownership, were as against the defendant, who purchased in good faith and without notice of the same, absolutely void.

      Appeal from a judgment of the County Court of Onondaga county, reversing a judgment of a justice of the peace in favor of the plaintiff.

      A. L. c& E. O. Johnson, for the appellant.

      M. E. Driscoll, for the respondent.
   Boardman, J.:

This action, to recover the value of a wagon alleged to have been converted by defendant, was brought in a justice’s court, where the plaintiff recovered judgment. Upon appeal to the County Court, the judgment was reversed, and from such judgment of reversal the plaintiff appeals to this court.

On the 5th of August, 1885, plaintiff sold the wagon to one B. Smith, at the price of seventy-two dollars and fifty cents, upon which sale Smith paid five dollars, and gave his note for sixty-seven dollars and fifty cents to plaintiff for the balance. By the' terms of the note, the title to the wagon was. to remain in plaintiff until the note was paid, and he was to have the power to take possession of the wagon whenever he felt insecure, etc. Smith took possession of the wagon, and in about eight weeks thereafter, sold the wagon to defendant for ten dollars cash, and fifty-five dollars was applied to an old debt owing by Smith to defendant. Defendant had no knowledge of plaintiff’s claim upon the wagon, and, so far as the casé shows, the defendant acted in 'good faith. When plaintiff learned of the sale by. Smith to defendant, he tendered to defendant ten dollars and demanded the wagon. The defendant refused the ten dollars and did not give up the wagon, whereupon this action was brought for the conversion. It stands conceded that defendant was a purchaser in good faith to the extent of the ten dollars paid by him to Smith. No contract of sale with the condition and reservation therein was filed as required by section 1 of chapter 315 of Laws of 1881. Under this law, the conditions and reservations contained in Smith’s note, and qualifying his title to the-wagon, are absolutely void as against the defendant, who purchased in good faith, and as to him the sale shall be absolute. The defendant, McIntyre, has bought this wagon without notice of any equity in plaintiff, and has paid ten dollars in cash and allowed fifty-five dollars on an old debt due from Smith, who had possession of the wagon and the apparent right to sell it. Prior to the act of 1884, the defendant would have been deemed a purchaser in good faith for a valuable consideration, and he would have acquired a valid title. ( Weaver v. Barden, 49 N. Y., 286; Caldwell v. Bartlett, 3 Duer, 341; Smith v. Lynes, 1 Seld., 41.) Indeed, the learned counsel for the appellant concedes that the plaintiff would be estopped from enforcing his claim if the defendant were a purchaser in good faith for value, and insists he w'as not such a purchaser as to the fifty-five dollars applied by defendant on an old debt due from Smith. He also claimed that an offer to return the ten dollars to defendant makes his refusal to give up the wagon on demand a conversion for which this action will lie. "We do not think such positions can be sustained. Under the evidence, the defendant was clearly a purchaser in good faith, and we think, as such, he took title to the property, in spite of plaintiff’s equity. That title was absolute so far as plaintiff’s interest is concerned. In certain cases, as in Weaver v. Barden (supra), equity might be invoked in aid of a party whose property had been taken from him without his fault, as against a person who had acquired it for a small portion of its value; but this action was brought in a justice’s court, not to enforce an equity, but in the claim of a legal right. No case is cited where, under such a state of facts, a tender has been held to divest a purchaser of the title he has acquired under the law and the facts. If the purchaser has acquired a title by his contract and payments, it is absolute. If lie has acquired no title, a tender vas unnecessary before action was brought.

If any doubts existed on these questions prior to the. law of 1884, we think that law' has settled them by making the defendant’s title absolute under the present facts. The plaintiff is a mortgagee of the V'agon, his mortgage not being filed. The defendant is a purchaser in good faith, without notice and for value of the mortgagor. The statute says such mortgage shall be absolutely void as against subsequent purchasers in good faith; as to them, the sale shall be deemed absolute. Language cannot be more clear and comprehensive. We must hold that the law means what it says.

In Taylor v. Mayor, etc. (67 N. Y., 87), the construction was given to the words, "as against purchasers or mortgagees in good faitb,” used in section 282 of the old Code in providing for securing a judgment pending appeal, so as to discharge the lien. It was held that a mortgagee who took his mortgage fairly and honestly in payment of an old debt and for full value, was protected. It is not necessary to hold that such rule applies to the case under consideration, because an actual present consideration was parted with by this defendant.

The judgment of the County Court, reversing the judgment of the justice, should be affirmed, with costs.

IlARDiN, P. J., and Follett, J., concurred.

Judgment of the County Court of Onondaga county, reversing a justice’s judgment, affirmed, with costs.