author: Per Curiam. “Davy, J.

text:
    John H. Ashton et al., Resp’ts, v. The City of Rochester et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Municipal corporations—Rochester—Ordinances.
    The common council of the city of Rochester has power to r°neal an-ordinance passed by it for a street improvement.
    2. Same—Reconsideration.
    An ordinance, when passed over the mayor’s veto, cannot be reconsidered.
    3. Same—Repeal.
    A resolution _ that the action taken on an ordinance formerly duly enacted be reconsidered is not a repeal of such former ordinance.
    Appeal from judgment dismissing complaint.

      Parker & Drake, (John Van Voorhis, of counsel), for app’lts; Henry J. Sullivan, for resp’ts.
   Per Curiam.

This is an appeal from a judgment entered in Monroe county on the 8th day of January, 1891, on the decision of the special term, dismissing the plaintiffs’ complaint at the trial upon the merits.

The plaintiffs bring this action not only for themselves, but also in behalf of all others similarly circumstanced who may come in as parties, to vacate an assessment for paving Lake avenue, in the city of Roghester, from Lyell avenue to Driving Park avenue, with asphalt. The letting of the contract for such improvement was in accordance with a writ of mandamus issued by the special term of this court on the 25th day of April, 1889, whereby at the instance of certain residents of this part of Lake avenue, none of whom are parties to this action, the executive board of the city to whom, by the charter, Laws of 1880, chap. 14, the power of letting. contracts made in' pursuance of ordinances passed by the common council, is exclusively given, was directed to be made according to law. On the hearing of the motion for that mandamus, all the questions involved on this appeal were fully considered by the court in an opinion delivered by Mr. Justice Davy, which is as follows:

“Davy, J.

This is a motion for a peremptory mandamus requiring the executive board of the city of Rochester to proceed to let, in the manner prescribed by law, a contract for the improvement of Lake avenue, under final ordinance Ho. 3,568, passed by the common council of the city of Rochester on the 26th day of December, 1888, which ordinance was vetoed by the mayor of said city and was subsequently unanimously passed by the common council over his veto. The ordinance was then certified by the city clerk to the executive board, which body proceeded under it and obtained bids for the contract, and was about to let the same when, upon March 19, 1889, at the fifth regular meeting of the common council after'the ordinance was passed over the mayor’s veto, a resolution was adopted by the common council to reconsider the adoption of the ordinance. That resolution was also vetoed by the mayor, and on the 28th day of March the common council passed it over the mayor’s veto. Thereupon the executive board refused to make a contract for the improvement upon the ground that the resolution of the common council to reconsider the ordinance deprived it of that right.

“ The power vested in the common council under the charter to pass ordinances and to repeal then, and whether the ordinance in question was repealed must be first considered and passed upon before reaching the question as to whether the application for a mandamus in this case shall be granted or refused. The city charter provides that the common council shall have the management and control of the fiscal and prudential affairs of the city and may make such ordinances and by-laws relating to the same as it shall deem proper and necessary. It also provides that that board shall not ordain any work or improvement, the expense whereof is to be defrayed in whole or in part by local assessment, except upon the petition of a majority of the owners of the property to be assessed therefor, unless three-fourths of all the members elected to said council vote therefor, after allegations have been heard; that before the common council shall determine to make any such public improvement it shall cause an estimate therefor to be made and entered in its minutes, describing the portion and part of the city which it deems proper to assess for the expenses of such improvement, and it shall cause a notice to be published daily in at least two of the daily newspapers printed in the city of Rochester, for four days, which notice shall specify such improvement, the estimated expense thereof, the amount if any to be paid from the public treasury and the portion or part of the city to be assessed for the rest of the expenses, and shall require all persons interested in the subject matter of such improvement to attend the said council at a time appointed in such notice. At the time appointed the common council shall proceed to hear the allegations of the persons interested in the subject matter of such improvement, and after hearing the same shall make such further order in respect to such improvement as it shall deem proper. The charter also provides that the city treasurer shall ascertain the cost of the improvement which has been theretofore ordered by the common council and report the same to that body, who shall adjust the same and order an assessment to be made ; that upon the return of the assessment roll, when completed, the aldermanic council may confirm it or set it aside or order a reassessment in its discretion.

“ The charter also provides that the executive board shall have sole power to let all contracts to be made in pursuance of any ordinance, except such as are by law directed to be otherwise made, and shall superintend the execution of the same. It shall have the superintendence and control of all work ordered by the common council and shall have control of the construction, improvement, repair and cleaning of the streets, alleys, etc., and shall have control of the expenditure of all funds therefor, but whenever the expense of any such work or improvement shall be required to be defrayed by local assessment, the common council shall alone have power to pass ordinances therefor. That after the common council shall have directed an improvement to be made, the executive board shall then advertise in one or more of the daily newspapers of the city, for at least ten days before letting the contract, for sealed proposals to do the work, which proposals must be accompanied by a bond signed by at least two responsible sureties, conditioned that the person making the bid, if it is accepted by the executive board, will perform the work mentioned in such proposal and fulfill any contract that may be made with him. But the board may let any contract it deems for the best interest of the taxpayers. The executive board, however, is required to publish all bids received by it and the persons to whom the contracts are awarded.

“ It will be seen by the provisions of the charter that the common council alone has power to pass ordinances for the improvement of streets when the expenses to be incurred therefor are defrayed by' local assessment. It is conceded that the ordinance in question, when passed received the requisite number of votes; that it was vetoed by the mayor and again reconsidered by the copimon council and passed over his veto. The learned counsel for the relators contends, first, that the municipal council had no legal right to repeal the ordinance; and, second, that what it did do was not a repeal thereof. Upon these two points hinge, not only the power of the executive board to proceed and let the contract for the improvement of the avenue, but the duty of the court to entertain and grant this motion.

“ The common council of the city of Rochester is the legislative branch of the city government, and, acting for the taxpayers in its legislative deliberations, can alone determine the necessity of a public improvement, and when and how that improvement shall be made.

“I am unable to concur in the position taken by the learned counsel for the relators, that the ordinance in question cannot be repealed. In this country nearly all legislative acts are repeal-able. The most injurious consequences would result if a contrary precedent were established. To allow ordinances to be placed beyond repeal would not only establish, but fix a principle by which the 'property of our citizens might be depreciated in value and the growth of the city impeded and its prosperity destroyed. Nuisances might multiply by reason of the inability of the board of aldermen to repeal. No legislative body in this country can so part with its power by any proceeding as not to_ be_ able to continue the exercise of it. It can and should exercise its powers as often as the public interest require, but in exercising those powers it must act legally and adhere in its deliberations to the well settled parliamentary law governing legislative bodies. The American authorities all hold that a statute can be repealed, but it can only be repealed by'an express provision of a subsequent law, or by necessary implication. A repealing act is a total abrogation of the law repealed, but rights acquired and which become vested under the law before its repeal, are not affected by the repealing act.

“ It is equally clear that after the common council decides upon an improvement it devolves upon the executive board to proceed without delay and let the contract. That board is clothed with no discretionary power. Its duty is to execute the laws pertaining to the improvements of streets, after the common council have, by ordinance, vested it with authority to do so. For the court to hold that the executive board, independent of the common council, can and must proceed under the charter and let the contract, even though the ordinance has been repealed, would be assuming a position which, in my judgment, could not legally be sustained. It was the intent of the legislature, as expressed in the charter, to confine the éxercise of this power to the common council, the members of which are elected by the people, and who are responsible to those whose property they are allowed to tax for public improvements.

“ Ordinances for the improvement of streets, being among the most important acts of the municipality affecting the interests and rights of the taxpayers should be strictly construed, and it is therefore essential to their validity that they should be passed by the municipal council when duly assembled, in the manner prescribed by the charter, and such ordinances can only be repealed by the act of the legislative body that created them. A repealing ordinance is a total abrogation of the law repealed. The suspension of an act or an ordinance cannot be construed to be a repeal of it.

It is highly important to the taxpayers of the city that these proceedings in all respects be regular for the reason that the city at large is held responsible and liable by the contract which may be made for the improvement of any street; but the common council, under the charter, may reimburse the city in such an amount as may be decided upon by that body by means of local assessment. But if any of the proceedings relative thereto shall prove-to be invalid, then the city at large will be precluded from reimbursing itself by means of local assessments.

“I now come to the second point raised by the counsel for the relators, which is, has the ordinance been repealed ? If it has been, it was repealed under the motion or resolution by Alderman Williams, which reads, That action on the final ordinance for Lake avenue asphalt improvement, Ho. 3,568, published at pagg 336, current proceedings, and adopted January 4, 1889, be reconsidered.’ Does the adoption of this resolution rescind the ordinance ? If it does, then the executive board is powerless to proceed any further by way of letting the contract and improving the avenue under the ordinance. In my opinion the vote which was taken Alderman Williams’ motion did not repeal the ordinance. The vote to reconsider is to consider it again, which the municipal council in this case omitted .to do, which left the ordinance unrepealed.

“It is usual in legislative bodies, especially the House of Representatives, to regulate by special rule the time, manner and by whom a motion to reconsider may be made ; that it shall be made only on the same or succeeding day and by a member who voted with the majority, and such motion shall take precedence of all other questions except a motion to adjourn. A motion to reconsider, if made in time, may be entertained if the house has control of the bill. It is customary, however, pending a motion to reconsider a vote on the passage of a bill, for the speaker to refrain from signing it even if reported by the committee on engrossed bills, until the motion to reconsider is disposed of, and when the bill has been sent to the senate it is usual in such cases to send a message to that body requesting its return in order that the motion to reconsider may be properly entertained. And where a bill has been ordered to be engrossed, it is not in order to move a reconsideration thereon until the order of engrossment has first been reconsidered.

“ The ordinance in question when passed over the mayor’s veto became a municipal law, and was as binding upon the people of the city of Rochester as the statute laws are binding upon the people of the state. After a bill has passed the legislature and becomes a law, it would be contrary to all parliamentary law and precedent for that body to attempt to reconsider it. The act might be repealed but it could not be reconsidered. The ordinance in question may be repealed but it cannot be. reconsidered, for the reason that when it was passed over the mayor’s veto it became a law, and thereby passed beyond the control and power of the municipal council to reconsider it. According to the uniform parliamentary practice of legislative bodies where a motion to reconsider has been passed in the affirmative, the question immediately recurs upon the question reconsidered. The question reconsidered was never acted upon in this case; therefore, if the common council had the power to reconsider the ordinance, it never rescinded it, because the question reconsidered was never acted upon.

“There is another fatal point in this case, which is, that the ordinance, when passed over the mayor’s veto, could not be again reconsidered. It is a rule well settled by parliamentary law that a vote on the reconsideration of a vetoed bill cannot be reconsidered again. Barclay’s Constitutional Mantial, 197; American Manual of Parliamentary Law, by George T. Fish, 90. Years ago, in the house of representatives, a motion to reconsider could not be entertained after the bill was disposed of if another subject had risen and was pending before the house, until that subject was acted upon. It was then often too late to make the motion, for the reason that the bill had been sent to the senate. It was under this practice that Mr. Randolph was unable to move a reconsideration of the settlement of the Missouri question.”

We concur in the foregoing opinion. It follows that the judgment appealed from should be affirmed.

DWight, P. J., and Macomber, J., concur.


source: Caselaw Access Project

author: Childs, J.

license: Public Domain

text:
    Ellen Demings, Resp’t, v. The Supreme Lodge, Knights of Pythias of the World, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Benefit societies—Forfeiture—Burden of proof.
    Where the forfeiture of a mutual benefit certificate is claimed by reason of the non-payment of an assessment as a defense in an action upon such certificate, the burden is upon the defendant to establish that the assessment was properly and legally made within the laws, rules and regulations of the society, and the service of a notice will not even, prima facie establish the legality of the assessment.

      2. Same—Declarations of member.
    Declarations of the member made after the issuing of the certificate are not admissible for the purpose of defeating any right of the beneficiary.
    Appeal from a judgment entered in Erie county, October 1, 1890, on the verdict of a jury at the circuit, and also from an order denying the defendant’s motion for a new trial The following is the opinion of Mr. Justice Childs :
   Childs, J.

This action was brought by the plaintiff upon a beneficiary certificate issued by the defendant to George Lemings, her husband, whereby the defendant, in consideration of the payment thereafter by George Demings of all assessments as required, and the compliance with all laws governing the rank and of his being in good standing under the laws, agreed to pay to Ellen Demings, plaintiff, as directed by said George Demings in his application, or to such other person or persons as he might subsequently direct by will or otherwise, the sum of $1,000. The complaint, among other things, alleged the issuing of the certificate of membership by defendant to said George Demings, set forth in the complaint, whereby the defendant, “ in consideration of the payment hereafter to said endowment rank of all assessments as required and the full compliance with all the laws governing this rank now in force, or that may hereafter be enacted, and shall be in good standing under said laws, agree to pay the sum of $1,000 to Ellen Demings, plaintiff, as directed by said George Demings in his application for such membership; and further alleged that said George Demings during his lifetime, duly complied with and performed all the above mentioned terms and conditions of said certificate of membership, on his part, and complied with all the laws, rules and regulations governing said defendant and said section 419, endowment rank, and that said contract and agreement was, at the time of the death of said Demings, in full force and effect. The defendant, by its answer, admitted substantially all the allegations of the complaint except the allegations that said Demings, during his lifetime, complied with and performed all the terms and conditions of the said contract and agreement with the defendant, which was denied.

In the sixth clause of the defendant’s answer it was alleged that on or about the 22d day of November, 1884, an assessment was duly made in pursuance of the laws governing said endowment rank, and upon George Demings, among others; that due and proper notice of such assessment was given to and received by said George Deming pursuant to the by-laws of the defendant; that said Demings neglected and refused to pay said assessment, and for failure to pay the same as required, was duly suspended from said class of the endowment rank, and forfeited all claims upon the endowment fund belonging to said class, as provided in and by said contract. Upon the trial the defendant admitted the issuing of the certificate of membership to George Demings ; that Demings died at the city of Buffalo, on the 5th day of February, 1889, and that the plaintiff is the beneficiary mentioned in said certificate; that the plaintiff gave due notice to the defendant of the death of said George Demings, and caused to be prepared and served upon said defendant due proofs of said death, September 23, 1889, and thereafter demanded the sum of $1,000 from the defendant, payment of which was refnsed.

After placing in evidence the certificate set forth in the complaint and the application referred to in said certificate, the defendant admitted that there was at the time of the death of the said George Demings over one thousand members of the defendant’s society. Plaintiff here rested her case. Defendant’s counsel read in evidence the general laws and constitution for the government of sections of the endowment rank, adopted by the defendant, August, 1880; also the general laws and constitution for the government of sections of the endowment rank, adopted by the defendant April 30, 1884, and in force at the time of the death of George Demings, and then called as a witness one William Fraize, who was the secretary and treasurer of section 419 of the endowment rank of the Knights of Pythias, of which section said George Demings was a member in his lifetime, and offered to prove by said witness and others, “that a notice was received from the supreme secretary of the supreme lodge, together with notices of assessment from them for mailing; that the secretary duly notified the said George Demings of the levying of the assessments 66 and 67; that he, the said Demings, received those notices of assessment; that he failed within thirty days thereafter to pay such assessment; that he was called upon personally afterwards by the secretary to pay it; that the said Demings then notified the secretary that he intended to pay no more assessments, and stated to said secretary and treasurer that the lodge should suspend him, and accordingly, after the expiration of thirty days, the fact was reported to branch 419, and he was declared suspended for noil-payment of his dues, and that fact was reported by the secretary to the supreme lodge, and that he has never paid any of his dues or assessments.”

The plaintiff objected to this offer, and the objectiop was sustained by the court, and the evidence excluded upon the ground that the defendant was required to establish the fact that the assessment for the non-payment, of which the defendant claimed the forfeiture, was regularly and properly levied, according to the laws of the defendant.

No further testimony being offered, the court thereupon directed a verdict for the plaintiff for $1,262.50, the amount agreed to be paid in said certificate, with interest thereon, to which ruling the defendant’s counsel duly excepted.

The correctness of the ruling upon this offer presents the only question to be examined upon this motion. It will be observed that the offer embraced two distinct propositions; first, the offer to show the service upon George Lemings by the secretary and treasurer of a notice received from the supreme secretary of the defendant, as a full compliance with the laws of the defendant, justifying the suspension of Lemings in the event of the non-payment of such assessment, and the consequent forfeiture of all rights of the plaintiff under the certificate mentioned; second, the declarations of George Lemings, made after the issuing of said certificate, for the purpose of defeating any right of plaintiff thereunder.

The introduction of the certificate in evidence, established the good standing of George Lemings at the time it was issued, and the same will be presumed to have continued until the contrary appears; and the burden was on the defendant to show that, by the violation of some law of the defendant, the deceased had lost his good standing. Supreme Lodge Knights of Honor of the World v. Johnson, 78 Ind., 110.

Such being the rule, the question is sharply presented as to whether the proof of the non-payment of an asssessment notified to the deceased, as in this case, would satisfy the rule and cast the burden upon the plaintiff of establishing the fact, that the assessment was improperly or illegally made. I am not able to assent to this proposition as claimed by the defendant, but, on the contrary, am of the opinion that the burden of establishing this pivotal fact rests with the defendant until the end, and that if a forfeiture of membership and benefits is claiméd, that the defendant must affirmatively establish the fact that the assessment was properly and legally made within the laws, rules and regulations of the defendant, and that the service of a notice as claimed in this case would not even prima facie establish the legality of -the assessment This question does not appear to have been con sidered by any of the courts in this state, but was considered in the court of appeals of Kentucky in the American Mutual Aid Society v. Helburn et al., 2 Southwestern Rep., 495, in an elaborate opinion by Bennett, J., whose conclusion seems to be well supported by the authorities cited, which is to the effect that in making assessments upon its members a corporation of the character of this defendant does not act in a judicial but in a ministerial capacity, and that no presumption, can arise in favor of the regularity or legality' of its assessments.

That a deceased member of the society should have died; that his representative was entitled to a benefit arising from his death, and that an assessment upon all the surviving members was actually made for the purpose of paying said assessments, are conditions precedent to the right of the society to demand payment of an assessment from any of its members, and the society must show affirmatively that the assessment was made in the manner indicated, otherwise the member cannot be said to be in default. It is true that the question here decided arose upon demurrer, but the pleadings presented substantially the same issue as in this case, and necessarily required the question now under consideration to be determined by the court. In that determination I concur, and do not understand the defendant to insist upon this motion, that the court was in error in ruling that the defendant was required to establish as part of his affirmative defense the-legality of the assessment in question, but to rely upon the second proposition involved in the offer quoted.

This proposition presents the single question as to whether a member of a rank of the defendant, who has, in the certificate received by him, indicated the person to whom, in case of his death, the benefit should be paid, can, by his declaration made after the rights of the parties are thus fixed, defeat the rights of such beneficiary under the certificate.

I do not think that any declaration of the member can have the effect of terminating his membership and working a forfeiture of the rights of the beneficiary named in the certificate, but that to entitle the corporation to suspend or expel a member, and thus deprive the bedeficiary named in its certificate of any rights thereunder, it must strictly observe the rules and laws, and that whenever it asserts a forfeiture it 'must affirmatively establish such compliance with its rules and laws.

The purpose of proving the statement of Demings, as contained in the offer, could only be to excuse proof by defendant of the regularity of the assessment,, the alleged non-payment of which furnished the ground for his suspension, for it is quite plain that with proof of the regularity of the assessment in question; and non-payment thereof followed by suspension of Demings, the defense would be complete and the statements wholly immaterial. Again, that part of defendant’s offer now under consideration was to prove, first, a refusal to pay the particular assessment in question, which we have seen is quite immaterial in the absence of proof of the legality of the same; and second, to prove the request of the member for his suspension, and that his branch thereafter, upon report of such request, and in pursuance thereof, did suspend him and thereby terminate and put an end to the rights of the plaintiff under the certificate. It would not seem necessary to say that the defendant could only terminate the membership of Demings in the manner and for a cause pointed out and provided for in its laws, and this not being one of the causes so provided, that the action referred to did not, as against this plaintiff, work the result claimed. It is unquestioned that evidence of the declaration of Demings would be competent in connection with proof of the legality of the assessment for the purpose of establishing notice to him of the assessment and his refusal to pay, but such evidence cannot establish the fact of the legality of such an assessment as against the beneficiary. Her rights cannot be disposed of in this manner, and such was the ruling on the trial. The evidence offered was excluded only upon

Charles B. Wheeler, for app’lt; Samuel M. Welch, for resp’t

the statement of defendant’s counsel that he was unable to prove further or different facts than those embraced in the offer.

The cases referred to by the defendant do not, upon examination, seem to be in conflict with the views expressed.

This question was considered and determined adversely to the claim of the defendant in Supreme Lodge, Knights of Pythias of the World v. Schmidt et al., in the supreme court of Indiana, 98 Ind., 374, and, also, in Lazensky v. Supreme Lodge, Knights of Honor, circuit court, southern district of New York, 31 Fed. Rep., 592.

No reason is perceived why the rule established in these cases should not be followed. To hold that the rights of a beneficiary in such a certificate could be wholly defeated by some declaration or admission made by the member would not only be opposed to the current of authority, but would open the door to the grossest frauds. The member is dead; plaintiff has no means of contradicting or disproving any statement made as to such declaration or admission, and is left wholly at the mercy of any person who would, through any evil motive, be prompted to give false testimony. While it is not asserted that such would be the natural or probable result of such a holding, yet it is deemed to be much better that the rule should exclude the possibility of such injustice. My conclusion is that the ruling of the court upon the propositions here presented was correct, and that the motion should be denied, with ten dollars costs.

Judgment and order affirmed on opinion of Childs, J., at special term.

Dwight, P. J., and Macohber, J., concur.


author: Macomber, J.

text:
    Baldwin’s Bank of Penn Yan, App’lt, v. John H. Butler, Impl’d, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Bills and notes—Attorneys—Endorsement by firm.
    In an action upon a note endorsed by a firm of attorneys, no express authority to make the endorsement was shown, but it appeared that the money had been drawn by the firm and passed to their credit. It, also, appeared that one of the firm had no knowledge that its avails were passed to the credit of the firm or had been drawn out by it. Held, that under these circumstances a new trial was properly granted as to such member of the firm after a verdict for plaintiff

      2. Hew trial—Terms.
    Such new trial should have been granted on condition that the defendant pay the costs of the former trial.-
    Appeal from an order made on the minutes entered in Yates county, April 15, 1890, granting a new trial to the defendant Butler, after a general verdict against him and others at. the December circuit in 1889.

      M. A. Leary, for app’lt; John Q. Gillette, for resp’t
   Macomber, J.

This action was brought to recover upon two notes, respectively for $1,000 and of $500, against Wood, Butler & Morris, a firm of lawyers doing business in Penn Yan.

The thousand dollar note, which was dated the 28th day of February, 1883, has no place in this appeal, inasmuch as the court at the trial nonsuited the plaintiff in respect to it,' and submitted only to the jury the question of the defendant’s liability upon the five hundred dollar note. The latter note was also dated the 28th day of February, 1883, and was made by one J. P. Farmer, to the order of the Farmer Manufacturing Company, and claimed to have been endorsed by the defendants for value and transferred before maturity to the plaintiff. The defendant Wood did not answer. The defendants Butler and Morris answering separately, in substance, allege a want of knowledge that the name of the firm was endorsed upon the notes, and denied that the avails of the note were used by the firm for its benefit, or for the indvidual benefit of either of them, and as to these two defendants the endorsement of the firm name was without authority; that they never received notice of protest, and that such notice was never served.

The firm of Wood, Butler & Morris was engaged in no business except that of attorneys and counselors at law.

The learned judge at the trial charged that the plaintiff knew that this law firm was organized for the practice of law only, and therefore was bound to know that, by the rule of law applicable to it, it was not engaged in general commercial business, and that it was put on inquiry as to the right of Wood to use the firm name in the endorsement of the note, and in procuring the same to be discounted at the bank.

He further charged that there must have been shown an express authority for that act of endorsement, because there was no claim made that the same had been ratified by Butler. This authority, the court further instructed the jury, need not necessarily be conferred in words, but might be implied from acts on the part of the defendants, which would indicate to the mind that they had authorized the use of their names upon the note. He then called the attention of the jury to the fact that the firm, in some way or other, had drawn the money, and that the pass book showed that it had been passed to their credit; that the pass book was at the office of the defendants, and many other circumstances claimed by the plaintiff to establish such authority, and which the court instructed the jury they were at liberty to consider and to say whether they established Wood’s authority or not. Opposed to this there was evidence to show that Butler did not know that the avails of the notes were placed to the credit of the firm, or that he knew that the same had been drawn out by the firm. The verdict of the jury was in favor of the plaintiff’s contention.

Upon the motion for a new trial on the minutes, the court, evidently, after proper deliberation, granted the defendant Butler a new trial upon the ground that the verdict as to him was against the evidence in the case. After an examination of the testimony, and in view of a better opportunity which the trial justice had in observing the manner of the witnesses, we are not disposed to disturb the order so made. But we think that under the established practice an order granting a new trial for this cause under § 999, should have imposed as a condition thereof, that the defendant pay the costs of the former trial, together with ten dollars costs of the motion. Bailey v. Park, 5 Hun, 41.

The order appealed from must be modified m this particular, and as so modified, affirmed, without costs to either party on this appeal.

Dwight, P. J., concur.


text:
    The People, Resp’ts, v. Newton A. Drown, et al., Impl’d, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Criminal law—Good character—Charge. '
    On the trial of an indictment for receiving stolen goods the evidence on the part of the prosecution consisted of the testimony of confessed felons, which was controverted by the defendants, who also gave evidence of good character. Referring to this, the court charged as follows: “ While, of course, good character at no time shields or should shield a man from punishment for crime, it is in and of itself one of the most insidious influences that finds the way into the court room. So, gentlemen, it will be your duty to carefully consider how far and in what manner this presumption of innocence and this proof of good character has any influence or weight on the proof which has been presented on the part of the people.” And declined to charge otherwise. Held, error, as the jury was probably misled by the use of the phrase “ insidious influences ” from giving proper weight to the evidence of good character.
    Appeal, by the defendants from a judgment of the Monroe county sessions, rendered April 7, 1890, convicting them of the crime of feloniously receiving stolen property, knowing it to have been stolen, under § 550 of the Penal Code; and also an appeal from an order made by the same court denying their motion for a new trial on the minutes, bringing up the decision of the same court denying a motion in arrest of judgment, and an order overruling the defendants’ demurrer to the indictment.

      W. Henry Davis, for app’lts; William P. Goodelle, for resp’t.
   Macomber, J.

The appellants were jointly indicted with one George W. Drown, composing the firm of Drown Bros. & Company, for having feloniously received certain brass car journals, stolen from the Syracuse, Ontario & New York Railroad Company. The jury acquitted George W. Drown, but found the other two defendants guilty.

The defendants have for several years been doing business in the city of Rochester, as dealers in metals and junk. It is claimed on behalf of the People, that Clarence Turner and William Campbell, ostensibly pedlers, but, in reality, thieves, and the former an inmate of state’s prison at the time of the trial, undertook to find, with the defendants,- a market for the brass fittings and steel railroad journals, which they intended to steal either from the above mentioned railroad company or from some other.

Turner testified that he had a talk with Newton Drown before the theft in question, in which he informed him of this felonious purpose. He swears that Drown told him there had been trouble about railroad brass, and that he did not want to handle any brass which was taken near Rochester; whereupon Turner assured him that he would not bother anything close to Rochester. He further testified that Newton Drown told him not to put too much in a barrel. Turner and Campbell reached Port Byron on the 7th day of January, 1887. They then walked to Weedsport, where they jacked up five cars and took out brass journals, and broke into the car inspector’s building and stole three hundred pounds more of new brass journals. Turner testified that the next day these brass journal were barreled up, taken to Jordon on the New York Central Railroad, and shipped to Drown Bros. & Company at Eochester as old rubber, and as coming from Charles Thomas.

It is further testified by Turner that, on the night of the 9th, or early in the morning of the 10th day of January, 1889, he and Campbell jacked up the axles of six cars of the Syracuse, Ontario and New York Eailroad Company, and stole about four hundred pounds of brass journals. These were also, he says, put in a barrel, headed up and taken by Turner and Campbell to the New York Central station at De Witt, and by them shipped to Drown Bros. & Co., at Eochester, as T lead, and as coming from George Smith. On or about the 18th of January, 1889, the defendant, Newton Drown, received these two packages, one marked T lead and the other old rubber, and duly receipted for the same.

The defendants claim that the story told by Turner, and the witness Boas, also a felon, is entirely untrue; that they made no arrangements with Turner and Campbell, or either of them for the shipment of railroad brasses or other railroad property, but that they received these two consignments believing that the one contained old rubber and the other T lead. They deny, emphatically, that there was in the barrels received by them any brasses whatever. There is no evidence to corroborate Turner upon the question whether these barrels actually contained brasses or not, except some slight circumstances.

It is extremely doubtful from the whole evidence whether the witness Turner has been corroborated in respect to the actual presence of brass in the packages received by the defendants, so that it may be said that there is other evidence than his own to connect the defendants with the commission of the crime charged under § 399 of the Code of Grim. Pro. Whatever took place prior to the reception by the defendants of these two barrels, it is quite clear that their intention to receive goods, knowing them to be stolen, could not be made out unless it was established that the barrels actually contained stolen brass, and not old rubber or T lead. So far as can be discerned from the evidence, there is nothing to corroborate Turner, except some slight circumstances which render it extremely doubtful whether it was competent for the court to submit the question of the guilt or innocence of the defendants to the jury. But upon this matter we do not now definitely pass, because whatever may be our view of it, we think the learned county judge fell into an inadvertent error in his charge to the jury, and which should necessarily lead to a reversal of the judgment in any event.

The defendants had shown affirmatively in the way in which such facts are usually established, that they were men of good character. Such good character was relied upon by the counsel to protect them against many embarrassing circumstances, and from the evidence of two apparently utterly corrupt men, Turner and Boas.

The circumstances alluded to were in the main brought about by the machinations of. these two felons and Campbell. Under these circumstances it was of the greatest importance that the jury in passing upon the question of the guilt or innocence of the defendants should have had laid before them the correct principle in respect to the defense of good character. It is not. too much to say that judges and others have often witnessed the exculpation of persons charged with crimes where the evidence was quite as 'strong against them as it is in this case, because up to the time of the charge made they were men of honest repute.

The learned judge said .in his charge: “ There, gentlemen, you have to consider the further fact that in every criminal case, and particularly in a case of this character, where the nature of the business in which a man is engaged, itself involves himself sometimes in suspicion and in trouble without any guilty intent on his part, that a life long good character means all that it means under any circumstances; and while, of course, good character at no time shields or should shield a man from punishment for crime, it is in and of itself one of the most powerful and at the same time one of the most insiduous influences that finds the way into the court room. So, gentleften, it will be your duty to carefully consider how far and in what manner this presumption of innocence and this proof of good character has any influence or weight on the proof which has been presented on the part of the People.”

Evidently referring to this portion of the charge, the counsel for the defendant asked the court to charge as follows: “I also ask the court to charge that good character in a doubtful case is usu-. ally sufficient to exculpate the defendants.

“ The Court: I decline to charge, except as I have charged. Exception.”

The charge as given and the refusal to charge as requested, it seems to us, prevented the jury from considering the influence and advantage to the defendants of the good character which they had established by the evidence. Appellate courts do not grant new trials, it is true, upon the mere misuse of a single word or phrase, unless it is seen that such misuse must necessarily, in connection with other matters, have deprived the defendant of some right or prevented the jury from giving him the benefit of certain evidence. As the jury had a right to look upon this charge, the ' defense of good character was but a cunning, artful and deceitful device designed or adapted to entrap the court and jury.

If the jury, as they must be presumed to have done, gave the meaning of the expression insidious influences,” the only definition of which it is susceptible, it cannot be said that they were not mislead thereby to the great- prejudice of the defendants. This, in connection with the exception to refuse to charge as requested, was such an error as to lead to a new trial.

Under the circumstances good character was an element in the case important to the defendants, environed as they were by the testimony of the confessed thieves, with scarcely a circumstance pointing to guilt, except as it had been created by one or another of those felons. The accused had a right to an instruction to the jury by the court, but their good character afforded a presumption against the charge made against them. The court in Cancemi v. People, 16 NT. Y., 506, say: “ This presumption arises from the improbability, as a general rule, that a person who has uniformly pursued an honest and upright course of conduct will depart from it and do an act so inconsistent with it. * * * But in cases when the other evidence is nearly balanced, but slightly preponderating against the defendant, the presumption from proof of good character is entitled to great weight, and will often be sufficient to turn the scale and produce an acquittal.” The language of the court last above given is such as to lead to the conclusion that the request to charge, as hereinbefore stated, was correct, and that the exception to the refusal of the court so to charge was an error. See, also, to the same effect the case of Remsen v. The People, 48 N. Y., 8.

The learned judge also, after pointing out to the jury the pre-. sumption of innocence of parties accused of crime, said: And before they can be called upon either to defend themselves or to deny the fact of their guilt, they must be proven guilty beyond a reasonable doubt; that is to say, in the first instance, it is sufficient for the People to prove such a case as that without any explanation on the part of the defendant, there would be no doubt left in the minds of the jury as to his guilt; but when the whole evidence is in, then the burden is so far shifted that from all the evidence that the people and the defendants give, there shall be left no doubt as to the guilt or innocence of the accused.”

Again, he says, seven pages thereafter: “ So, gentlemen, you will carefully consider all the facts and all the circumstances and all the testimony given here on behalf of the People, to the end that you may ascertain whether, taken as a whole, it completes such a chain of evidence that there is no reasonable doubt in your mind as to the guilt or innocence of these defendants.”

If by these two portions of the charge occurring so widely separated, the learned judge intended to instruct the jury that the burden of proof was, in a criminal trial, ever shifted from the People and thrown upon the defendant, or, that if the jury had any reasonable doubt of the innocence of the accused upon the whole evidence in the case, they could render a verdict of guilty, no one would be swifter than himself to correct any such impression, and to restore the case as he had elsewhere clearly stated it, that it was the People alone and not the accused who must maintain their contention beyond a reasonable doubt.

Judgment and conviction appealed from should be reversed and new trial granted.

Dwight, P. J., concurs in result, on the ground of error of the court in the charge to the jury.


author: Dykman, J.

text:
    David D. Weaver, an Infant, etc., by Charles E. Weaver, Guardian ad litem, Resp’t, v. John N. Bullis, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Negligence—Damages—Degree op care required op child.
    Plaintiff, a boy nine years of age, came upon defendant’s farm in search of a pig. Defendant, who was mowing, requested him to go to the barn and bring a whip, which he did, and in handing it to the defendant was struck by the knives in the mowing machine and one of his legs cut off and the other terribly lacerated. Meld, that injury cannot be carelessly inflicted even upon a trespasser, and under any circumstances the defendant was under obligation to observe care and prudence towards the child, and that the rule respecting the degree of care required of a child of tender years, as laid down by the court of appeals in Thurber v. Harlem, etc., R. R. Co., 60 N. Y., 326, must govern.
    Appeal from judgment for plaintiff entered after trial of issues by the court without a jury, in the county of Dutchess, and from-an order denying a motion for a new trial.

      Hackett & Williams, for resp’t; Daniel W. Guernsey, for app’lt.
   Dykman, J.

This is an action for the recovery of damages for injuries sustained by the plaintiff, a boy about nine years of age, by coming in contact, with a mowing machine belonging to the defendant, and which he was using at the time of the accident.

The boy and the defendant were the only persons who witnessed the occurrence, and they differ so radically in their statements that their testimony is entirely irreconcilable. The boy says the defendant requested him to bring him a whip, and that he did so, and that when he handed him the whip he was seated upon the machine, which was in motion, and the knives cut off one of his feet and injured the other.

The defendant says, on the contrary, he had stopped his team, dismounted from the machine, and was some distance behind it, when he heard the boy make a noise, and looked up and saw him down with his foot severed from his leg.

Then there was testimony respecting the admissions of the boy that the defendant was not upon the machine, which was disputed by the boy, and there was considerable testimony introduced on both sides from which inferences might be drawn in favor of the theories of each party.

The trial was before a judge without a jury, and he has found that the defendant so carelessly managed a mowing machine that by his neglect and carelessness the plaintiff’s leg was cut off below the knee; that the boy was as careful as could be expected of a boy of ten years of age, and that he did not by lack of prudence occasion the accident, in whole or in part

As a conclusion of law, the finding was that the plaintiff was entitled to recover a judgment against the defendant for the sum of $1,500.

From the judgment entered upon that decision and the order denying the motion for a new trial, the defendant has appealed to this court.

If the facts found by the judge are justified by the testimony, then his conclusion of law is sustained and the judgment must be sustained. Injury cannot be carelessly inflicted even upon a trespasser, and, under any circumstances, the defendant was under obligation to observe care and prudence towards the child, and the finding of his failure to do so has some support in the testimony and is not against the weight of the evidence. The finding of the judge stands in the place of a verdict of a jury, and must receive the same consideration, and we would not feel justified in setting aside a verdict where the testimony is so contradictory as we find it in this case.

The rule respecting the degree of care required of a child of tender years as laid down in Honegsberger v. Second Avenue R. R. Co., 1 Keyes, 574, and insisted upon by the appellant, has been repudiated by the court of appeals in the case of Thurber v. Harlem, etc., R. R. Co., 60 N. Y., 826.

We discover no ground upon which an appellate tribunal can interfere for the relief of the defendant and the judgment and order should be affirmed, with costs.

Pratt, J., concurs.


text:
    Frank W. Ehrman, an Infant, by Henry Ehrman, Jr., Guardian ad litem, Resp’t, v. The Brooklyn City Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    1. Negligence—Horse railroad—Children.
    Plaintiff, an infant, about three and a half years old, started to cross the street from, his residence with another boy about ten years of age, and reaching the opposite side, some one called him and he started back wiili the other boy, and in so doing was struck by defendant’s car, which was coming with the horses upon a gallop, and the driver looking the other way, and sustained injuries which necessitated the amputation of his leg. The child’s parents kept a bakery, and while the mother was waiting upon a customer the child left the sidewalk to cross the street. Held, that there was evidence sufficient to sustain a verdict against the defendant, and that the parents were not negligent in allowing the child to go upon the sidewalk.
    2. Same—Damages—Excessive—Personal injuries.
    Damages to the amount of $25,000, given a child for the loss of his leg occasioned by the negligence of defendant., a horse railroad company, is not more than sufficient for so great a calamity.
    Appeal by defendant from a judgment for $25,636.18 entered upon a verdict and from an order denying defendant’s motion to set aside the verdict, and for a new trial, upon the grounds mentioned in Code Giv. Pro., § 999.

      Dailey & Bell, for resp’t; Moore & Wallace, for app’lt.
   Dykman, J.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff for $25,000 in an _ action based upon negligence, and from an order denying a motion for a new trial upon the minutes'of the court

The testimony on the part of the plaintiff tended to show that he was an infant child about three years and six months old; that he started to cross the street from his residence in the city with another boy who was about ten years of age, and when he reached the opposite side of the street some one called him and he started hack to recross the street with the other boy; that when the plaintiff reached the track of the defendant’s road nearest his house, one of the cars came along with the horses upon a gallop, while the driver was looking the other way, and the near side horse struck the boy with his near side fore leg and knocked him down, and before the car was stopped the forward wheel had crushed the boy’s leg so that amputation became necessary, and the leg was taken off about two inches above the knee.

To establish the freedom of the parents from negligence in respect to the care of the plaintiff, the proof was that ifchey carried on a bakery with the store in the front room. Immediately previous to the accident the child was upon the sidewalk where his mother could see him, and she looked out and saw him with the older boy, and then turned to wait upon a customer, when she heard a cry of alarm and went to the door just as her child was knocked down by the horse.

Such proof was sufficient to carry the case to the jury, both upon the question of the negligence of the parents and of the driver of the car.

It is not negligent for a parent to allow children of the age of the plaintiff to go upon the sidewalk even in a city, and as the child in this case went upon the street with an older boy, without the knowledge of the parents, they cannot be charged with negligence therefor, even if the act evinced a want of care; neither can the parents be held responsible for the act of the person who called the child back, when it was in a place of safety, and thus precipitated the accident.

The testimony on the part of the defendant tended to show that the driver of the car saw the child when he started with the boy from his own door, and saw him cross the street in safety, and that then the child started back and ran into the whiffle trees and fell, and the driver stopped the car as quickly as possible.

Upon such evidence it was plainly the province of the jury to determine the questions of fact involved, and the refusal of the court to dismiss the complaint was not erroneous.

The jury solved the questions in favor of the plaintiff upon abundant testimony to support such solution, and there is no room for the interference of an appellate court

Complaint is made of the size of the verdict, but that also is a question for the jury, and we cannot say that its size evinces the presence of either passion or prejudice. The child has lost his leg and must go through life maimed, and we cannot say the verdict is more than sufficient for his compensation for so great a calamity.

The judgment and order denying the motion for a new trial should therefore be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    William H. Boggs, Resp’t, v. Theodore S. Bird and James D. Leary et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Partnership—Survivor—Parties—Heir of deceased partner.
    Where a surviving partner takes possession of all the partnership property and assets, including the real estate, which he subsequently conveys, and the personal property of the firm is insufficient to pay the partnership debts, an heir at law of the deceased partner is a proper party to maintain an action to compel the surviving partner to account for the partnership assets, and to have the conveyance of the real property declared a mortgage, and to have the real estate sold and the proceeds divided among .the parties entitled thereto; the settlements between the surviving partner and his grantee, and the administratrix of the deceased are not conclusive against such heir-at-law of the deceased partner.
    Appeal from interlocutory judgment entered on report of referee.

      George C. Eldridge (George W. Miller, of counsel), for app’lts; James R. Steers, Jr., for resp’t.
   Dykman, J.

The plaintiff in this action' is the son of William Boggs, deceased, who died intestate in April, 1879, and who, previous to his death, was a copartner of the defendant, Theodore S. Bird, in the business of ship building.

At the time of the death of Boggs, he and Bird were the owners of valuable real estate, which they held as partnership property, and the defendant, Susan J. Boggs, the wife of William Boggs, was appointed the administrator, of his estate.

Upon the death of William Boggs, the defendant Bird, as surviving partner, took possession of all the partnership property and assets, including the real estate, which he subsequently conveyed to the defendant, James D. Leary.

This action was commenced to compel the defendant Bird to account for the partnership property and assets, and have the conveyance from him to Leary of the real property declared a mortgage, and to have the real estate sold, and the proceeds divided among the parties entitled thereto.

The cause has been tried before a referee, and he has made a report in favor of the plaintiff, upon which an interlocutory judgment has been entered thereon, from which the defendants Bird and Leary have appealed.

The referee decided that the conveyance to Leary was a mortgage, to secure the payment of the indebtedness to him, and that conclusion is so obviously just, and is so well sustained by the proof, that it requires no vindication or examination here.

An objection is made to the maintenance of this action by the plaintiff as an heir at law, and while it is true that these actions are usually and properly instituted, and carried .on in the name of the personal representative of the deceased partner, yet, as the personal property of the firm in this case was insufficient to pay the partnership debts, and a sale of the real property of the firm will become necessary, the heirs at law of the deceased partner are necessary parties to the action to secure a conveyance of the title to the land. Cheeseman v. Wiggins, 1 N. Y. Sup. Ct. R., T. & C., 598.

In this case the conveyance of the real property was taken in the name of both the partners, and while it belonged to the partnership, and is to be treated as personal property for all purposes of the firm, yet what remains after the debts are paid and the equities between the members of the firm are adjusted is considered as real estate, which goes to the heirs of the partners. Buchan v. Sumner, 2 Barb. Ch., 165 ; Collumb v. Bead, 24 N. Y., 505; Fairchild v. Fairchild, 64 id., 478.

These rules are sufficient to enable the plaintiff to maintain this action and to justify the conclusion of the referee that the settlement between the defendants Bird and Mrs. Boggs, and between the defendants Bird and Leary, were not conclusive against the heirs-at-law of the deceased partner.

There is no reason for interference with this judgment The referee has made a full and fair examination and statement of the partnership affairs, and his report does ample justice to all the parties.

The ends of justice will be attained by carrying the judgment into execution, and it should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Barnard, P. J.

text:
    Charles McLaren, Resp’t, v. Thomas Stokes and James Stokes, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Guaranty of sales—Collectibility of claims—Evidence.
    Plaintiff employed defendant under an agreement that he was to have one-half the profits on the goods he sold, but should be liable for one-half the losses made on the sales of such goods. In an action against him for his share of losses, Held, that it was not necessary to sue a worthless account to have it considered a loss: uncollectibility may be proved otherwise than by return of an execution unsatisfied.
    Appeal by both defendants from judgment granted at special term, Kings county, against James Stokes for $37.12, and for $129.36 costs against Thomas Stokes.

      J. George Flammer, for app’lts; L. B. Bunnell, for resp’t.
   Barnard, P. J.

The plaintiff and Thomas Stokes were partners in business. James Stokes was a clerk of the firm under an agreement by which he was paid for his services according to the amount of goods which he sold for the firm. This agreement was that the clerk should have one-half of the profits of the goods so sold by him, but he should be liable for one-half of the losses made on the'sales of such goods. There was no conflict as to the amount of these losses. The exact amount was proven to have been $2,027.32. There was no conflict as to the uncollectibility of the several accounts which made up this sum. The firm treated them as worthless and the defendant Thomas Stokes swore that the accounts “ were not worth going after.” There was no conflict upon the question of the sale of the goods which made up the accounts, having been made by James Stokes. The plaintiff had sold out to one John Kiddie, but these accounts had been crossed off as worthless and did not pass by the transfer which was given to secure a debt and as collateral thereto.

It was not necessary for the partners to sue a worthless account. Proof of uncollectibility may be proved other than by return of' an execution unsatisfied. The plaintiff was entitled to one-quarter of this loss. The case contained nothing for a jury to pass upon if the case was one triable by a jury. A verdict for the plaintiff' would have ordered as matter of law. The question, therefore whether.the correct mode of trial was by jury or by court, without a jury, was one of no importance. The costs were property awarded against Thomas Stokes. He joined in an answer and made denials which he could not support on the trial. His evidence is in entire harmony with the complaint which he by his-answer with the other defendant denies, and denies under oath.

The judgment should, therefore, be affirmed, with costs.

Dykman, J., concurs._


text:
    The People, Resp’ts, v. Fred. Wilkinson, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Grand larceny—Sufficiency of evidence.
    The defendant was indicted for grand larceny. On the trial it appeared-that two ladies were standing in front of a store, when three men came up, one of whom, the defendant, crowded himself between the women and shortly thereafter went away. It was soon discovered by one of the ladies that her pocketbook, containing two ten dollars bills, was gone. She identified the defendant as the man who jostled her in front of file-store, at which time he wore a derby hat. When he was arrested he had on a cap, but two derby hats were found in his room, and on his person a ten dollar bill. The account given by him to his landlord as to occupation and former residence was shown to be utterly false. Held, that the jury was justified in drawing the conclusion from the circumstances disclosed-to them, not only that the pocketbook was stolen by theft in the crowd, but that the defendant was the one who took it.
    2. Same—Evidence—Admissibility of.
    On the trial a detective was allowed to answer this question: “On the night before this larceny, had you heard that there were three pickpockets-working this town ?” asked with a view of having the officer explain how he came to be connected with the case against defendant. Held, that the question was, in its nature, preliminary to something else, and though it might be deemed to have no proper place in the examination of the witness, it cannot be said that it did the defendant any harm.
    3. Same—Proper question—Improper answer—Striking out part of-.
    A detective, a witness from Toronto, who had shown much familiarity with defendant in that city, was asked: “ What does he do there?” The answer was: “ I never knew him to do any legitimate work there. He is hanging around with thieves.” Defendant’s counsel moved that the last part of the answer be struck out, and it was struck out accordingly by the court. Held, that there was no error in the question, the answer was not responsive, or at least was incompetent, and the only remedy of the defendant’s counsel was a motion to strike out; having only asked that a portion be stricken out, he was bound by the remaining part.
    4. Same—Evidence to disprove previous statements.
    Where a party is accused- of crime, and he denies or undertakes to explain away the case against him, the falsity of such allegations in his own behalf may be shown by persons acquainted with his private history, occupation and residence.

      Appeal from a judgment of the court of sessions of Monroe county, entered on the 17th day of February, 1891, upon the verdict of a jury convicting the defendant of the crime of grand larceny in the second degree, being larceny from the person.

      P. Chamberlain, Jr., for app’lt; George A. Benton, for resp’ts.
   Macomber, J.

The indictment charges the defendant with having stolen money from the person of one Elizabeth Pamment, on the 13th day of December, 1890. Mrs. Pamitient, with her daughter and the latter’s little boy were in front of a store on Main street, on the last named day, looking at the attractions in the windows, when three men came up, one of whom brusquely crowded himself between the women and shortly thereafter went away. It was soon discovered by Mrs. Pamment that her pocket book, containing two ten dollar bills and some small change, amounting to about twenty cents, was missing. Her pocket book was in her pocket on the right side of her dress, and the crowding was done by the man on that side. She further testifies, that after the jostling or crowding of her by the defendant, she looked sharply and indignantly at him, and, as she says, “ he cowed and looked sheepish.” The person who thus jostled this lady was said by her to have worn a derby hat. When he was arrested, the defendant had on a cap; but two derby hats were found by the officers in the room where he lodged.

The daughter, Mrs. Sanders, testifies that three fellows came up behind the ladies and the boy, and one of them pushed her a little. to one side and got into her place. She then says : “ I turned around, but noticed enough to know that there were three of them.”

On Wednesday, before the defendant was arrested, he, with two others, had engaged a room on Clinton street, and they represented to the proprietor that they were going to a certain newspaper establishment in the city of Rochester, and, as he understood it, they were going there for the purpose of work. The account given by these men of themselves at the time where they lodged and where they formerly lived was shown to be utterly false. The defendant gave when arrested his name as Fred. Wilkinson, and his occupation as that of a cigar maker, and said that he came from Detroit. It is shown by a witness that his real name is Fred. Collins, and that he was known in Toronto for several years last past. The three were shown to be old acquaintances.

There is not, it is true, any direct evidence that the crime charged against the defendant was, in fact committed. The evidence tending to that result is wholly circumstantial, but it is, in our judgment, none the less convincing, for, as it appears, all the circumstances point strongly to the fact that Mrs. Pamment was deprived of her pocket book while standing in front of the par ticular show window named. The identification of the defendant is complete as being the person who rudely jostled against the woman at that place. We think the jury was justified in drawing the conclusion from the circumstances disclosed to them, not only that Mrs. Pamment lost her pocket book containing twenty dollars and upwards through the theft of a person in that crowd, but that the defendant was the one who took the money. The latter conclusion is based largely upon the falsehoods uttered by himself in regard to his name, residence, occupation and acquaintanceship, and upon the further fact that he had changed his Derby hat for a cap, and that a ten dollar bill was found .upon his person. It is true that this ten dollar bill is not identified by the complainant as being one of the two possessed by her. But the jury had, it seems to us, a right to say, from the antecedents of the man as disclosed by the case, that it was in fact one of those bills.

It follows, therefore, that the judgment should be affirmed unless the trial court committed some error prejudicial to the defendant which requires us to grant a new trial.

One of the detectives was allowed to answer this question: “ Q. On the night before this larceny, had you heard that there were three pickpockets working this town? ” This was objected to by the defendant’s counsel as immaterial and incompetent, and the objection was overruled and an exception was taken. His answer was, “Yes, sir; I was looking for these people; I had other cases on hand, but I kept my mind on those three men.” .

This question, as is contended for by the People’s counsel, was doubtless asked with a view of having the officer explain how he came to be connected with the case against this defendant and the two other men. It was, in its nature, preliminary to something else, and though it might be deemed to have no proper place -in the examination of the witness, it cannot be said that it did the defendant any harm.

A detective, a witness from Toronto, who had shown much familiarity with these persons in that city, after testifying that the defendant’s real name was Bred Collins, said that he had known him for seven years in Toronto. He was then asked this question : “ Q. What does he do there? ” This was objected to as incompetent, irrelevant and immaterial. The objection was overruled, and exception taken by the defendant. The answer was, “ I never knew him to do any legitimate work there; he is hanging around with thieves.”

Counsel for the defendant moved that the last part of the answer be struck out, and it was struck out accordingly by the court. If it had been moved that the whole answer be struck out as not being resposive to the question, the entire motion, doubtless, would have been granted. There was no error in the question. The answer was not responsive, or at least was incompetent, and the only remedy of the defendant’s counsel was a motion to strike out.

The defendant’s counsel also excepted as follows: “To that portion of the charge wherein the court says the evidence of the detectives that were sworn was competent, in showing the character, occupation and previous reputation of the defendant.”

ÍTpon this subject the judge charged the jury as follows: “ How, you have the testimony of officer Cuddy from Toronto, who said he knew this man in Canada; in fact, knew these three men; knew this defendant as an habitue of pool rooms and drink-

ing places there; had known him for years previous, and that his name was Collins. ¡Now, I deem it my duty to tell you, in relation to this testimony, that, if competent at all, it is pretty close to the line. In cases of this character, it is almost always, if not always, impossible for officers of the. law to prove by direct testimony, that is, by people who saw the act and knew sufficient of the parties as to be able, by word of mouth, to make, a story so complete as to prove all that is necessary to secure the conviction of the prisoner charged with crime; it is necessary that full effect shall be given to every circumstance that is competent, to the end that the wheels of justice may not be blocked by captious objection raised on the part of the counsel, and in that view it seems that this evidence is competent to show the character and previous occupation and reputation of these men, in contrast with the story and statements which were made to the officers here.”

The evidence to which the learned county judge refers in this portion of his charge was adduced for the legitimate purpose of disproving the declarations made by the accused at or about the time of his arrest under this charge. We do not understand that the rule is questioned, that when a party is accused of crime and he denies or undertakes to explain away the case against him, the falsity of such allegations in his own behalf may be shown by persons acquainted with his private history, occupation and residénce. This is not affirmative evidence to show bad character or reputation. It is ordinarily given in a case to contradict the declarations made by the defendant in his own behalf. The expression used by the learned county judge, that the evidence was competent to show the previous reputation of the men was inadvertent undoubtedly. The jury, however, could not, as it seems to us, have been misled by it, and consequently it was not such an error as would justify this court in granting to the defendant a new trial.

The foregoing are the only exceptions in the case which are worthy of consideration. On the whole, we think the judgment should be affirmed.

Judgment affirmed.

Dwight, P. J., concurs.


author: Dwight, P. J.

text:
    The People, Resp’ts, v. William Trimble, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Criminal law—Felony—Code Criminal Procedure, §§ 453 and 471—
    What judgment to be pronounced.
    The two general verdicts of “ Guilty,” after a trial of the general issue, and “ For the People,” after a trial of the issues of a former conviction or acquittal, are placed in the same category in all the provisions of the Code, and there is no indication that the judgment to be pronounced in the one case is different from that in the other. But this was evidently a casus omissus. It was never the law that the plea of a former conviction or acquittal was, in case of a felony, an admission of the facts charged in the indictment, except for the purposes of the trial of the issues actually joined.
    2. Plea op former conviction—General issue not raised.
    The general issue is not raised by a plea o" a former conviction or acquittal, and on the trial of that question the People are not required to give evidence tending to establish the guilt of defendant. The affirmative is with the defendant on the issue actually made.
    3. Pemal Code, § 697—Sentence mot void fob mistake.
    Where a sentence imposed does not expire between the months of March and November, as required by § 697 of the Penal Code, it is competent for the court to correct the error on its own motion at the same term. The mistake in the first sentence does not vitiate the judgment.
    Appeal by the defendant from a judgment of the court of sessions of Niagara county convicting him of the crime of larceny in the first degree.

      JR. Crowley, for app’lt; P. F. King, for resp’t.
   Dwight, P. J.

The indictment was found in the oyer and terminer, and the defendant, being arraigned in that court, pleaded only a former conviction of the crime charged. Code of Ci'im. Pro., § 332. The case was then sent to the court of sessions, where the sole issue joined as above was tried by a jury and a verdict was rendered “for the People.” This was, by definition of the Code of Criminal Procedure, a general verdict, § 437, and, under the provisions of §§ 453 and 471 of the same statute, it was the duty of the court thereupon to appoint a time for, and, at such time, to pronounce judgment upon the defendant. What judgment was to be pronounced in such case is not expressly provided. The two general verdicts of “ Guilty,” after a trial of the general issue, and “ For the People,” after a trial of the issue of a former conviction or acquittal, are placed in the same category in all the provisions of the statute cited; the same proceedings leading up to judgment are prescribed in both cases, and there is no indication in the statute that the judgment to be pronounced in the one case is different from that in the other. But this is evidently a casus omissus. It was never the law that the plea of a former conviction or acquittal was, in case of a felony, an admission of the facts charged in the indictment, except for the purposes of the trial of the issue actually joined, and to effect that, upon the trial of that issue, nó evidence need be given by the prosecution in support of the allegations of the indictment. At common law, in case of a felony, the judgment against the defendant on such a plea was respondeat ouster, let him answer over or plead again, People v. Saunders, 4 Parker's Grim. Rep’s, 198, and cases cited; 1 Arch. Grim. Prac. & Plead., Waterman’s Ed., p. 871; and, unless the new plea was of guilty, he was put upon his trial ,on the merits.

Such was, substantially, the course pursued in this case. No formal judgment to that effect was pronounced, but the defendant was allowed to plead anew to the indictment; his plea of not guilty was received, a day was fixed for the trial of the issue newly joined, and such trial was had before another jury at the time appointed; and all this was without objection on the part of the defendant. Objection is now made in his behalf, that the first jury should not have been discharged, but that both issues should have been tried by the same jury. It is evident that such is not the intention of the statute in case the two pleas are separately interposed.

Indeed if the defendant had insisted upon a strict compliance with the statute, at least two days must have intervened between the rendition of the first verdict and judgment thereon (§ 472) which must have preceded the trial of the new issue.

Although the provisions of the statute were not strictly complied with, the deviation was without objection on the part of the defendant, and was not to his prejudice. He had the full benefit of a judgment of respondeat ouster, and of a separate trial •of both the issues joined by his successive pleas.

An exception taken by the defendant on the trial of the preliminary issue raised the question whether the People were required, on that trial, to give evidence tending to establish the guilt of the defendant. The ruling to the contrary was clearly ■correct. The general issue is not raised by plea of a former conviction or acquittal, and the affirmative is with the defendant on the issue actually made. Abbott’s Trial Brief, Grim. Causes, § 742, and cases cited.

The defendant’s motion in arrest of judgment was based upon the ground, already sufficiently considered, of the want of a formal judgment on the preliminary issue, and on the ground of the insufficiency of the evidence to warrant the verdict against the defendant on the general issue. We have very carefully read and considered the evidence contained in the record, and although we find it wholly circumstantial in character, we regard it as raising a very strong presumption of the guilt of the defendant, and as making a case in which the jury might well have ■found their minds free from reasonable doubt on that subject. We think the motion in arrest of judgment was properly denied on both the grounds assigned. None of the exceptions taken by the defendant to rulings on questions of evidence are argued on this appeal, and we find none which' seem to require discussion.

An objection is made on the argument here that the sentence of the court was void and illegal under § 697 of the Penal Code, which prescribes that the term of imprisonment shall be so limited, as that, with due allowance for probable commutation for •good behavior, it shall expire between the months of March and November.

It is conceded that the first sentence imposed in this case, which was for five years, was subject to this objection; but it was corrected by the court on its own motion and at the same term. This it was competent for the court to do. Miller v. FinMe, 1 Park. Grim., 374. The mistake in the - first sentence did not vitiate the judgment and it was the duty of the court to correct the error, as it did. The second sentence (of five years and four months), passed June 28, 1890, by counsel’s own computation was strictly in accordance with the direction of the statute, since it would expire on the 4th day of April, 1894.

There seems to be no other question in the case which requires .attention.

The judgment appealed from should be affirmed.

Macomber, J., concurs.

Judgment and conviction appealed from affirmed, and the case remitted to the court of sessions of Niagara county to proceed thereon.


text:
    Ludwick H. Carter, App’lt, v. William Stevens, App’lt; George Carnahan, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Bond—Penal sum.
    Where an order substituting the actual for the nominal defendant, a constable, required the former to give a bond indemnifying the latter from all loss, but did not specify any penal sum, and the former procured to be executed a bond in the penal sum of §500, Held, that an essential part of a bond conditioned otherwise than for the payment of a definite sum of money is the specification of a penal sum in which the obligors are bound, and it was necessary, to comply with the order, that the obligation of the bond should be in a sum specified, and the only question for the court when called upon to determine whether the order had been complied with, was whether the sum specified was reasonably sufficient to meet the condition of the bond.
    2. Same—Notice of filing.
    Where an order requiring a bond does not direct that notice of the filing be given, such notice is not necessary; as long as the order stands without modification, it must have effect according to its terms.
    Appeal by both plaintiff and defendant (of record) from an order made at the Cattaraugus circuit, denying the motion in which plaintiff and defendant (of record) united, to strike the cause from the calendar of that court.

      Wm. H. Henderson, for app’lts ; C. D. Davie, for resp’t.
   Dwight, P. J.

The action was replevin for personal property taken on execution by the defendant Stevens, as constable, as the property of the judgment debtor, one Delos Carnahan. The judgment creditor was the respondent, George Carnahan, who had indemnified the constable against costs and damages by reason of his taking the property.

George Carnahan was thus the real party (defendant) in interest, and he employed the attorneys who appeared for the nominal party, Stevens, and put in the defense. The action being thus-pending, the plaintiff and the nominal party defendant made a collusive settlement of the action by an offer by Stevens and acceptance by the plaintiff, of judgment awarding the property to the plaintiff and adjudging its return to him; and such judgment, was accordingly entered in favor of the plaintiff, without the knowledge of the real party (defendant) in interest or of the attorneys who had appeared by his employment for the nominal defendant in the action.

These facts being made to appear to the court at special term, on motion of the real defendant, that judgment was set aside, and it was ordered that the real defendant in interest, George Carnahan, have leave to continue the defense of the action in the name of the nominal defendant Stevens, “ upon his executing and filing a bond, with sufficient sureties, conditioned that the said George Carnahan shall keep and fully indemnify and save harmless, the said William Stevens, of and from all loss, costs and expense which he has already incurred in the defense of said action, and which may hereafter be incurred in the defense of said action.’’ The order further provided that if the said Carnahan should neglect to execute and. file such bond within twenty days after the entry of the order the motion should be denied. The appellants here appealed to this court from that order, and it was affirmed. 28 N. Y. State Rep., 646.

The respondent, Carnahan, thereupon procured to be executed by three sureties, each of whom justified in the sum of $500, a bond in the penal sum of $500, conditioned in precise accordance with the order of special term above mentioned, and filed such bond in the office of the clerk of Cattaraugus county within the time limited by that order, and served a copy of the bond and notice of its filing on the attorneys for the plaintiff, who also appeared for the appellants on the appeal from that order and who now appear for the appellants here.

Thereafter the attorneys for Carnahan, the respondent here, noticed the cause for trial and placed it on the calendar of the Cattaraugus circuit held in February, 1890; whereupon the plaintiff and nominal defendant united in the motion to strike the same from the. calendar, and from the order denying that motion this appeal is taken.

There seem to be no merits in this appeal. The only grounds upon which it is urged are (1) that the bond filed did not comply with the requirements of the order because it specified a penal sum of $500 when no penal sum was specified in the order, and (2) because no notice of the filing of the bond was given to the nominal defendant. There is nothing in the last objection, because the order did not require that such notice should .be given, and as long as the order stood without modification, it must have effect according to its terms. In respect to the other objection, it is to be observed that the order required Carnahan to give “ a bond" and an essential part of a bona, conditioned otherwise than for the payment of a definite sum of money, is the specification of a penal sum in which the obligors are bound. It was necessary, 'therefore, to compliance with the order, that the obligation of the bond should be in a sum specified, and the only question for the court at the circuit, when called upon to determine whether the order of special term had been complied with, was whether the sum specified was reasonably sufficient to meet the condition of the bond. That question we regard as decided at the circuit in the exercise of a reasonable discretion and judgment as to the probable expense to the nominal defendant of the litigation which the real party in interest was permitted to defend, and with that discretion this court is not disposed, even if it has the power, to interfere.

The order appealed from should be affirmed.

Macomber, J., concurs.

Order affirmed, with ten dollars costs and disbursements.


author: Myron M. Peck, Referee.

text:
    Charles H. Moore, Receiver, etc., of the Estate of Roswell S. Burrows, Dec’d, App’lt, v. The American Loan & Trust Company et al., Resp'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    I. Jury—Not to be prejudiced by appellate court’s statements on former APPEAL.
    Where a judgment is reversed on appeal and the case sent back for a new trial, nothing which was said by the appellate court on the appeal concerning the facts must prejudice or control the jury upon the new trial in th'e performance of their duty.
    S. Loan in good faith—Not responsible for subsequent misdeeds of BORROWER.
    Where a person loans money to another in perfect good faith, he is not to be held responsible for subsequent misdeeds of the latter; and if any loss has resulted therefrom, the former is not legally chargeable therewith, or required to suffer thereby.
    Appeal from a judgment entered in Orleans county, October II, 1890, on report of a referee dismissing the plaintiff’s complaint on the merits. The general term affirmed the judgment on the opinion of the referee, which is given below.
   Myron M. Peck, Referee.

This action is brought to determine the rights as between the plaintiff and defendant, the American Loan & Trust Company, to the possession of the certificates for 200 shares of the stock of the Miagara Falls International Bridge Company, specified in the complaint. The stock, at the time of' the commencement of this action, was held by said American Loan & Trust Company in pledge as security for a loan of $25,000 made by said company, and was part of the assets belonging to the estate of one Roswell S. Burrows, deceased.

The sole point in controversy is as to the legality of this pledge and its binding force and effect upon the plaintiff as the representtative of said estate, and turns entirely upon the question of fact to whom and for whose use and benefit such loan was made.

Upon the .former trial of the action, certain questions of a legal character were presented for determination. These questions having been formally adjudicated and passed upon by the decision then made and sustained by the courts upon review, may now be regarded as eliminated from the controversy.

'The history of the prior litigation discloses the fact that, as to the sole remaining questions above adverted to, the supreme court at special and general term came to the conclusion sustaining the contention of the Loan & Trust Company in favor of the validity of the loan and the right of said Company to retain possession of such securities, while, on the contrary, the court of appeals reached a conclusion favorable to the position of the plaintiff, in opposition thereto, and his right to recovery against said Trust Company in accordance with the relief demanded in his complaint.

It is neither necessary or advisable for the referee to criticise or comment upon the reasoning and conclusions reached by these respective tribunals, nor to express any opinion with reference to the correctness of such reasoning and conclusions. Inasmuch, however, as I am not able to assent to the proposition, that a question is one of law only, which is differently determined by different judges, solely by reason of their different interpretation of the evidence given upon the trial, and the different inferences and deductions made by them in the examination and consideration of such evidence, I, of course, cannot agree with the learned counsel for the plaintiff that the determination of the court of appeals is to be regarded as in any manner binding and conclusive in the present determination of the case. Especially is this true in view of the fact that new and additional evidence to quite an extent has been produced upon the present trial. Entertaining this view of the character of the question to be determined, I may properly adopt and act upon the suggestion contained in a more recent utterance of the higher tribunals as to the duty of the trial court in its consideration and determination.

“ The question, therefore, must be submitted to a "jury. And when that is done, nothing which we have said about the facts in the performance of our duty must prejudice or control their performance of their own. 119 N. Y, 256-262. 29 N. Y. State Rep., 686.

The findings contained in the report give such a minute and detailed history of the case, as to render any extended reference to the facts in this opinion quite unnecessary, and any elaborate discussion of the question involved quite superfluous, especially in view of the extensive disoussion heretofore indulged in by the courts in their disposition of the same question, and consideration of the evidence bearing upon the same. It is, in my judgment, a proposition of fact so thoroughly demonstrated by the evidence in the case, as to preclude reasonable dispute or controversy, that the whole transaction in regard to the making of the loan was understood by the parties to be, and was in fact, between the executor of the estate of Boswell S. Burrows, deceased, on the one hand, and the American Loan & Trust Company, by its officers and agents, on the other.

The evidence does not disclose, nor legitimately tend to prove, that at any point of time, during these negotiations, the company refused to make the loan to said estate upon the security of said stock. The officers of the company at all times expressed themselves as entirely satisfied with such security. The sole difficulty existing, or supposed to exist, consisted in their erroneous interpretation of the law, as to the power and authority of one of several executors to make a loan of money, and pledge as security for its repayment the assets of the estate. And this persistent perversity of legal opinion upon this particular question, and the measures resorted to for the avowed purpose of avoiding this imaginary obstacle, has produced all the obscurity and created all the confusion which ever had existence in the case.

Except for this erroneous understanding of the law, it is entirely plain that this loan would have been promptly made by the company to the executor for the benefit of the estate upon the security originally tendered by him. But whatever erroneous opinion as to the existence of this supposed legal obstacle may have been entertained, and whatever "of transparent subterfuge may have been resorted to in the effort to surmount it, the real nature and character of the transaction itself remain the same.

From first to last it was nothing more or less than a continuous application and effort on the part of the executor to secure this loan of money with which he might be able to relieve the estate of its then alleged temporary financial embarrassment, persisted in until the purpose was finally accomplished and the loan applied for secured. He was the only party at any time,desiring to make any loan or having any pretended use for the moneys to be realized therefrom. It vras never the understanding or intention of Mary Burrows Smith that she was to become a borrower of this money. She had no occassion to become such, but was content under the circumstances to assist the executor in procuring the loan by the loan of her credit and responsibility for the purpose. It is simply sacrificing substance for shadow, and displacing sense with nonsense, to insist that any movement or proceeding connected with the transaction in any legal sense transformed Mary Burrows Smith from the position of simple surety to that of the actual borrower of the money, and rendered the pledge of the stock as security an unauthorized appropriation by the executor of the assets of the estate, which operated as a devastavit. There is no warrant in the evidence for imputing to the trust company other than the most perfect good faith in this transaction. It is not to be held responsible for the subsequent misdeeds of the executor, and if any loss has resulted therefrom the company is not legally chargeable therewith, or required to suffer thereby.

I do not attach any importance to the evidence relating to the subsequent conduct and operations of the respective parties with reference to the moneys arising from this loan and remaining apparently on deposit in the First National Bank of Albion at the time of its failure. The representatives of, and parties interested in, the estate, thereafter received certain information inducing them to suppose and believe that such moneys properly belonged to said estate, and they so alleged in certain legal proceedings thereafter instituted in favor of the estate against the receiver of the bank. On the other hand, I am furnished by the plaintiff’s counsel with the record of a recovery in the supreme court in favor of Mary Burrows Smith against said receiver for the same moneys. Affirmed on appeal, vol. 10 N. Y. Supp., 278; 32 N. Y. State Rep., 5. It is not surprising that Mrs. Smith, having discovered that no certificates of stock or other securities had ever been in fact transferred to her by way of indemnity against her liability incurred in and about the procuring of said loan, should avail herself, legally or otherwise, of the action of the officers of the bank in placing said moneys to her credit upon the books of that institution. It is manifest that no party upon either side of the question had any personal knowledge in regard to the actual occurrences connected with the making of the loan in the city of New York, and therefore the action of neither as to the recovery of said moneys possesses any particular force or significance. In view of her evidence given upon the trial, Mrs. Smith could not have consistently claimed to have been the borrower.

These proceedings cannot determine the nature and character of the contract in fact entered into resulting in the loan of thus sum of $25,000 by the defendant, the American Loan & Trust Company. There is no merit in the-plaintiff’s case, and his complaint should be dismissed.

Per Curiam.—Judgment affirmed, with costs.