text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. MARY B. HILL, Appellant, v. HOWARD R. CRISSEY and Others, Respondents.

      Cwnell University — selection of scholars for university scholarships under section 9 of chapter 585 of 1865, as amended by chapter 654 of 1872, chapter 614 of 1886 and chapter 291 of 1887 — students in Normal schools are not eligible.

    The term “public school,” as used in section 9 of the act establishing Cornell University (chap. 585 of 1865, as amended by chap. 654 of 1872, chap. 614 of 1886 and chap. 291 of 1887), authorizing the commissioners of each county and the board of education of each city to “ select annually the best scholars from each academy and each public school of their respective counties or cities as candidates for the university scholarship,” does not include “Normal schools,” and students in such schools cannot be selected.

      Appeal from an order of the Erie Special Term, denying a motion for a mamdamus.

      N. H. Hill, for the appellant.

      I. S. Lambert, for the respondents.
   Smith, P. J.:

Section 9 of the act establishing Cornell University (Laws 1865, chap. 585), as amended (Laws 1872, chap. 654; Laws 1886, chap. 614), provided for the admission to said university, for free instruction, of one student from each assembly district, annually, to be selected as therein provided. By the terms of the section, as amended by the acts referred to, the power of selection was vested in the school commissioner or commissioners of each county, and the board of education in each city, and in performing the duty, they were required to select the best scholar from each academy and each public school of their respective counties or cities as candidates for the university scholarship.” They were then to examine the persons so selected and determine which of them were “ the best scholars,” and to certify the two highest candidates, the first of whom should be admitted to the university as provided in the act, and so many of the second as the trustees of the university, in their discretion, should admit, not exceeding the full number for the class of each yeai

It appears from the appeal papers that in the year 1886 the school commissioners of the county of Chautauqua made no selection of candidates for examination, but instead of selecting gave notice by publication in certain newspapers in the county, that at a time and place therein specified, they would examine such persons as should attend for that purpose, and determine to whom the scholarship for that year should be awarded. The county of Chautauqua is divided into two assembly districts and is entitled to two scholarships each year, under said statute. An examination was held pursuant to such notice, and six persons appeared as candidates and were examined. Among them were Herman L. Gifford, who was determined to be. the best scholar, Howard B. Crissy, one of the defendants, the second, and the relator, Mary B. Hill, the third. The relator contends, among other things, that said Howard B. Crissy was not eligible to such scholarship by reason of the fact that he was a student in the State Normal and Training school, at Fredonia, and not of any other school cr academy, and that -such Normal school is not one of the ‘‘ public” schools oi the county within the meaning of the acts referred to. That contention presents the only question which we propose to consider.

We are inclined to the opinion that by the words “ public schools ” the legislature intended “ common ” schools only, and that Normal ” schools were not included. It is true that in an enlarged sense, normal schools are public schools, inasmuch as any citizen of the State, possessing the requisite qualifications and being selected as provided by law, may be admitted to them. In the same sense, colleges are public schools, but clearly they are not embraced in the act. The object of normal schools is to give instruction in the art of teaching. The distinctions between them and the common schools are marked. They have been defined by the Court of Appeals as follows : These normal schools differ materially from the common schools to winch the Constitution refers. They are not intended for tiie education of the children of the inhabitants of the districts where they are located, but for the training of teachers for all the common schools. They are not open to all, but only to such as inay be selected -at times, and in the manner prescribed by the superintendent of public instruction Each part of the State is entitled to its due representation. Applicants for admission are required to possess certain qualifications, which must be tested by preliminary examination.” (Gordon v. Cornes, 47 N Y., 616.)

Normal schools were in existence in this State when the act of 1865 was passed, the first having been established in 1844. (Laws 1844, chap. 311.) It is to be presumed that if they had been intended by the act they would have been named. That the legislature regarded the term public schools” as not embracing academies, is evident from the fact that academies were specially mentioned. What reason is there for supposing that the term was intended to embrace normal schools and not academies %

A practical construction has been given to the act of 1865, that favors the relator’s contention. In December, 1867, the superintendent of public instruction issued a circular to the several school commissioners and supervisors in the State, calling their attention to the act and urging them to make efforts to fill the scholarships created by it. In the circular be stated that the candidates were to be selected from all the academies and common" schools of the State. He evidently regarded the term public schools ” used in the act as synonymous with common schools.’' (Code of Public Instruction, 1868, p. 490.) In 1869 the Regents of the University made a report to the legislature upon a subject specially referred to them, in which they used the terms public schools " and “ common schools” indiscriminately. (Historical Record of University of New York, 1885, p. II.) In numerous reported decisions of the courts the terms referred to are used as synonymous. Instances of such use are found in Dallas v. Fosdick (40 How. 249), and in the recent case of People ex rel. King v. Gallagher (93 N. Y., 438), not to cite others, The latter case arose under Laws 1850, chapter 143, in which act the like use of the terms in question is made by the legislature. It is entitled an act to reorganize and regulate the common schools and the board of education in the city of Brooklyn, and its second section provides that “ the board of education shall have the entire charge and direction of all the public schools of said city *'* * * and shall possess the powers and be subject to the general duties of trustees of common schools in this State.” And in other instances the act uses the terms referred to indiscriminately.

One object of the act of 1865, in providing for free scholarships in Cornell, was to furnish an incentive to pupils in the academies and public schools to strive for as high a degree of scholarship as those schools would afford. But that incentive would be greatly lessened if they were subjected to competition with students enjoying the more favorable opportunities and the higher grade of instruction furnished by the normal schools. It can hardly be supposed that such competition was intended by the authors of the act. The force of this consideration is not impaired by the fact that there have been, and still are, teachers’ classes in the academies, the members of which are possibly eligible as candidates for the Cornell free scholarships, within the letter of the act. Whether students of that class were intended to be made eligible may be questionable; but even if they were, it does not follow that students ■in the normal schools were intended to be included. The normal schools were established because the need was felt of a higher grade of instruction, and better opportunities for learning the art of teaching, than were or could be furnished to teachers’ classes in the academies.

But the question seems to have been put at rest by the action of the legislature at its late session. Chapter 291 of the Laws of 1887 further amends section 9 of the act of 1865, and it shows very clearly that by the words “public schools,” used in the act, the “common” schools, and those only, were intended. After providing, in the language of the original act, that the free instruction provided for shall be accorded to the students selected, in consideration of their superior ability and as a reward for superior scholarship in the academies and public schools of the State,” it goes on to enact that “ none but pupils of at least sixteen years of age and of six months’ standing in the common schools or academies of the State, during the year immediately preceeding the examination, shall be eligible.” This not only prescribes a clear rule for the future, but it seems to be an express legislativo definition of the term “ public schools ” as used in the original act and its' several amendments. If these views are correct, it follows that the .defendant Crissy was not eligible, and that the relator was entitled to the second certificate.

The order appealed from should be reversed, and the- motion for a manda?nus granted, but without costs of the- appeal, as the question is new and one of public interest, and the commissioners appear to have acted in good faith.

Haight and Bradley, JJ1, concurred.

Order reversed, without costs, and motion for' mandamus' granted.


source: Caselaw Access Project

author: Smith, P. J.:

license: Public Domain

text:
    ELIZABETH QUIGLEY, Appellant, v. LOUIS J. QUIGLEY, Respondent.

      Action for divorce — an answer may be stricken out for a failure, to pay alimony — no favor will be granted to a party in contempt — when an application to open a judgment of divorce entered against the defendant should not be granted on the petition of the person with whom the adultery is found to have been committed.

    The defendant in this action, Drought by his wife for a divorce on account of his adultery, having failed to comply with the terms of an order requiring him to pay $100 as alimony, an order was, on January 18,1886, entered striking out Ms answer and appointing a referee to take proof of the facts alleged in the complaint and report the same to the court. The referee having reported that the defendant had committed adultery with one Anna G. Steele, a judgment dissolving the marriage and requiring the defendant to pay certain sums as alimony and for the support of a minor son, together with costs, was, on February 16, 1886, duly entered. Subsequently the plaintifE, by proceedings instituted in the County Court and at an expense of fifty dollars, procured her name to be changed. Thereafter, and on August 19,1886, an order was made setting aside the judgment, the order striking out the answer, and all orders granted in the action subsequent to the service of the defendant’s answer. Among the papers used on the motion was a petition and affidavit of the said Anna G. Steele, with whom the referee had found that the defendant had committed adultery.

      Held, that as it appeared that the defendant was in contempt and that the motion was granted solely as a favor and upon terms, the order, in so far as it concerned the defendant, was unwarranted and should be reversed.
    That, in so far as the order was made in the interest and in behalf of the said Anna G. Steele, it was unauthorized for the following reasons:

      First. That the motion was not made by her or in her behalf, but was made by the defendant, it not appearing but that her petition was used simply as one of the defendant’s moving papers to strengthen his own case.

      Second. That if it were assumed that the application was made in her interest alone, and that the only effect cf the order would be to afford her relief, there was no practice in the Stale which authorized the court to make it.

      Olay v. Olay (211-Iun, 610) distinguished.

      Third. That if it were assumed that the court had power to make the order in her interest, the motion should have been denied by reason of her laches.

      Fourth. That it should also be denied for the reason that it was stated in an affidavit of the plaintiff, which was read on the motion, that the said Anna G. Steele had admitted that she had been intimate with the defendant, and that this statement was not denied by the said Anna G. Steele, nor was any application made in her behalf for leave to do so.

      Fifth. That the terms imposed were inadequate as not including the costs of the plaintiff’s proceedings in the County Court to change her name.
    Appeal from an order of tbe Erie Special Term setting aside tbe judgment of divorce granted herein by default, and other proceedings taken by and in behalf of the plaintiff, on terms.

      William C. Watson, for the appellant.

      George Bowen, for the respondent.
   Smith, P. J.:

This is an action for divorce on the ground of adultery. It was commenced 24th February, 1885, by service of summons on defendant personally. The complaint which was verified on 17th April, 1885, charged that the defendant, who was a music teacher in the State institution for the blind, at Batavia, committed adultery with Ann? Gr. Steele, a pupil and inmate of the institution, on numerous occasions during the period of three years, next preceding the 1st of April, 1885. The defendant answered, denying the charges contained in the complaint. On 2d June, 1885, an order was made requiring the defendant to pay $100, alimony, within thirty days from the date of the order. The defendant did not comply with the order, but left the State, and on 18th January, 1886, upon plaintiff’s motion an order was entered striking out the defendant’s appearance and .answer by reason of his non-compliance with the order, and appointing a referee to take proof of the facts alleged in the complaint, and to report the same to the court with his opinion. The referee took proofs and reported, among other things, that on the 18th of June, 1884, and at divers other times in that year, the defendant committed adultery with the said Anna G-. Steele, in the said institution, and on 16th February, 1886, the report was confirmed by the court, and judgment was entered dissolving the marriage of the parties, requiring the defendant to pay $200 a year for the support of the plaintiff and $100 a year for the support of their minor son, and also to pay the plaintiff’s costs of the action, which were fixed at the sum of $201.44. Subsequently the plaintiff procured the name of herself and of her son, to be changed from Quigley to Englehart, which was her name before marriage, by proceedings in the County Court, at an expense of fifty dollars. Thereafter, and on 19th August, 1886, the order now appealed from was made, setting aside the judgment, the order of 18th January, 1886, and all proceedings taken on the part of the plaintiff, and all orders granted in the action, subsequently to the service of the defendant’s answer. Among the papers upon which the order was made were a petition and an affidavit of the said Anna G. Steele which will be referred to more particularly, further on.

In determining whether the order should be affirmed, it will be useful to consider it first, as it relates to the defendant. That the defendant was guilty of a contempt in leaving the State and neglecting to obey the order requiring him to pay alimony can not be questioned. Nor is there any doubt that by reason of his contempt, the court had authority to strike out his answer, and direct a reference, and allow the action to proceed in the same manner as if the defendant had not answered or appeared. And the order made to that effect was in accordance with the well-settled practice of the court. (Farnham v. Farnham, 9 How. Pr., 231; Walker v. Walker, 20 Hun, 400; S. C., affirmed, 82 N. Y., 260, and authorities there cited by Folgek, Ch. J.) The defendant has not purged his contempt, and it is well settled that a party who is in contempt cannot successfully apply to the court for a favor connected with a matter out of which the contempt arose (Barker v. Barker, 15 How. Pr., 568; Brinkley v. Brinkley, 47 N. Y., 40), although he may be heai’d on matters of strict right. (Id.) It appears from the notice that the defendant’s motion was based in part upon certain alleged irregularities, and partly was addressed to the favor of the court. It was granted solely as a favor and upon terms. But as has been seen, the defendant, being in contempt, was entitled to no favor until he had purged the contempt, and that he has not done. So far as he is concerned, therefore, the order is unwarranted, and it is evident from the opinion of the Special Term judge contained in the appeal papers that he granted the orders solely in view of what appeared to him to be to tire interest of Anna Steele.

How stands the case with respect to her % She is not a party to the suit. The motion was not made by her or in her behalf. The order is record evidence of that fact, as it recites that the motion was made on behalf of the defendant. For aught that appears, her petition was used simply as one of the defendant’s moving papers to strengthen his case. It contained a formal prayer that an order be entered allowing her to be present at the trial, with counsel, to cross-examine the witnesses, to testify as a witness in the cause, and to examine such other witnesses as' she may be advised shall be proper, but apparently she made no application to the court and no pai’t of that relief was granted by the order. So that while the order sets aside the judgment and permits the defendant to come in and defend, it provides no mode by which Anna Steele, who, for convenience, will be referred to as the petitioner, can rightfully intervene in the action or upon the trial, and she will be dependent, for even notice of the trial, upon the favor of one party or the other. That circumstance is not very prejudicial to her interests, perhaps, as she can probably rely on getting notice from one of the parties, but it shows that she is content with an order which, refusing the relief suggested in her petition as needful to herself, grants all that the defendant can desire.

But let us suppose that the application was made in the interest of the petitioner alone, and that the only effect of the order will be to afford her relief, which, as we have seen, is the only view in which it can be sustained. The sole ground upon which she can ask to be permitted to intervene is that she is incidentally affected by the judgment. That she is so affected by it is true. So every child who, in effect, is pronounced illegitimate by a decree of divorce is in a like unfortunate position, but there is no practice in this State permitting a child so situated-to intervene in the action. The English practice of allowing the party with whom the adultery is alleged to have been committed to come in as a co-respondent does not obtain here. There is a single reported case in this State in which relief similar to that suggested in the petition of Anna Steele was granted in a divorce case. (Clay v Clay, 21 Hun, 610.) But there the application war made before judgment and also before any proofs were taken, and it is apparent that the court thought in that case that they were going to the very verge of their discretionary authority. The defendant in that case had made default, and thereupon the petitioner asked leave to come in and answer and defend on the merits, but that was held to be beyond the power of the court tc grant. Here, however, the defendant having lost the right to answer, not by a mere default, but by a flagrant contempt of the order of the court, the petitioner obtains indirectly, through an answer and defense interposed in the defendant’s name, what the court has not power to grant to her directly. Subsequently to the decision in Clay v. Clay, Mr. Justice DoNohue expressed the opinion at chambers, that by reason of the danger of collusion in thus permitting what is substantially a full litigation without personal responsibility, that case should not be treated as a general precedent. The case now before us shows the wisdom of that remark. "Without imputing collusion, in an offensive sense, it is obvious that in the motion which- resulted in the order under review, the petitioner and the defendant acted in concert, the petitioner having furnished the defendant with her petition and affidavit, and the notice of motion being signed by one attorney in the name of each. And by this concerted action, relief has been obtained, to which neither party would have been entitled, moving alone. Had the motion for-leave to answer been made by the defendant in his own interest solely, it would have been denied because he was in contempt; had it been made by the petitioner alone, it must have been denied on the authority of the Clay ease, for want of power.

But let it be assumed, for argument, that the court has power to make the order in the interest of the petitioner, nevertheless, vre think the motion should have been denied by reason of her laches. That she was informed of the action, of the time when it was commenced, of the time when the complaint was served, and of the charges contained in it respecting herself, appears by her petition, but she does not state when she obtained the information, nor why the statement is omitted, and as she is to be presumed to have presented her case as strongly as the truth would permit, the inference follows that a statement of the time when she learned those facts would not have tended to her advantage. That she knew, or was informed, of the fact that the defendant had answered denying the .charges in the complaint, appears from her statement that she had no notice that the answer had been stricken out, and that she expected that the cause would be tried upon the defendant’s denial, “and that an opportunity would be afforded her through the defendant to establish her innocence of the charges made against her.”

Upon what was such expectation based? She is no exception to the maxim that every person is presumed to know the law. For aught that appears, she was of full age and of good understanding. She had made no application to the court for leave to intervene in the action or at the trial, or for relief of any kind. The order of reference was not executed until nearly a year after the suit was begun. The judgment was entered in February, 1886, and she does not deny that she knew the fact at the time, yet her petition was not made until about five months thereafter. This delay is in nowise excused or explained. Such delay, unexplained and unexcused, would defeat a like application by a party to the suit, and the obstacle it presents is equally formidable in the case of a third person appealing to the sound discretion of the court.

The papers used on the motion present another fact which we think is fatal to the application, considered as that of the petitioner. The judgment-roll was used on the motion, and the proofs contained in it taken by the referee, made at least a prima facie case in respect to the charges connected with the petitioner. It is true the petitioner in her affidavit denied the truth of those charges. But in opposition to the motion an affidavit of the plaintiff was read in which she stated that in a conversation which she had with the petitioner, before the suit was commenced, the latter admitted that she had received numerous love letters from the defendant which she had burned, and the affidavit further averred that when charged by the plaintiff with “having been intimate” with the defendant, she admitted that she had been, and she asked plaintiff to forgive her. More was stated to have been said by the petitioner in that con-conversation, and the whole of the conversation, as detailed in the affidavit justified the inference that the purport of the admission was that there had been criminal intercourse between the petitioner and the defendant. The statement that such admission was made stands uncontradicted. If true, it should defeat the application. True, it was contained in an opposing affidavit, to which no reply could be made on the hearing of the motion. But leave might have been asked to prepare replying affidavits, the motion to stand over for the purpose; or, if no postponement could be had, then that the motion be denied, with leave to renew. Nothing of the kind was asked for, and the motion was submitted and decided, and the appeal is to be disposed of, with the uncontradicted statement of the fact of such admission in the case. The affidavit of the plaintiff also alleged an admission to her by the defendant of criminal intercourse between him and the petitioner. That averment, also, is not controverted.

The only terms imposed by the order are the payment of the amount of alimony fixed by the order, for non-compliance with which the defendant was in contempt, and payment of the costs of opposing the motion. No mention is made of the costs of the plaintiff in the proceedings taken by her subsequently to the making of that order, including the proceedings in the County Court for a change of name, which she conducted, relying on the validity of the judgment of divorce. In that respect the terms imposed seem inadequate. Perhaps this feature of the order, although apparently unjust to the plaintiff, is not enough, of itself, to warrant a reversal, but it is a circumstance to be considered in disposing of the appeal.

Por the reasons stated, we are not prepared to sanction the practice -for which an affirmance of the order, in the circumstances of this case, would furnish a precedent. Actions for divorce involve public interests as well as private rights. While the courts should take care that divorces are not granted on insufficient evidence, they should also see that when granted they are not set aside, even upon the application of a party, unless the application is made upon substantial and just grounds and with reasonable diligence. An equal degree of circumspection, to say the least, is required when the application is made by one not a party and who could not have been made a party to the action.

The order Bhould be reversed and the motion denied, with ten dollars costs and disbursements, to be paid by the defendant.

Haight and Bradley, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, to be paid by the defendant, and motion denied.


text:
    BENJAMIN F. ROGERS, Appellant, v. ANDREW MURDOCK, as Executor, etc., of HELEN P. VALENTINE, Deceased, and Others, Respondents.

      Sight of am, executor to a Men on a legacy for an amount dm from a legatee to the testator — when such right may be exercised, as to a debt which is barred by the statute of limitations — Code of Owü Procedure, § 380.
    In this proceeding, instituted by an executor to have his accounts finally settled, it appeared from the account that there was in his hands the sum of $810.96, being the amount unpaid of a legacy given by the will to the appellant, and that the appellant was also entitled, as one of the next of kin, to a distributive share of the estate; that among the assets in the. hands of the executor were two claims against the appellant, consisting of a promissory note made by him for $367, with interest from April 7, 1875, and a justice’s judgment recovered against him on August 81,1877, for $67.33, each of which was wholly unpaid, and each of which accrued more than six years prior to the death -of the testatrix. The appellant served an 'answer admitting the claims and setting up the statute of limitations.

      Held, that the executor had a lieu ou the legacy and distributive share of the appellant, so in his possession, for the payment of the said claims, and that a decree directing that the amount of said claims be deducted from said legacy should be affirmed.

      Smith v. Kearney (2 Barb Ch., 533) followed.
    That the equitable lien and right of retainer existing in this case was not affected by the statute of limitations, as that statute (Code of Civil Pro., § 380, etc.) did not raise a presumption of payment, but merely created a bar to the remedy by action.
    That the doctrine that where there is a legal and also an equitable remedy in respect to the same subject-matter, the latter is under the control of the same statute bar with the former, was inapplicable to this case, as that rule only applied to an action, or a proceeding in the nature of an action, brought to enforce an equitable remedy, in which the statute was set up as a defense, while in this case no affirmative action on the part of the executor had been taken, or was required to be taken, to make his lien and right of detention available.

      Smith v. Hemington (43 Barb. 75); Horst v. Corey (15 N. Y., 505); Bundle v. Allison (34 id., 180); McCartee v. Camel (1 Barb. Ch., 450) distinguished.
    Appeal from a decree of tbe Surrogate’s Court of Cayuga, settling the accounts of Andrew Murdock, as executor, etc., of Helen P, Yalentine, deceased.

      Howland db Wheeler, for the appellant.

      F. F. Storke, for infant respondents.

      D W. Hurlbut, for executors and others, respondents.
   Smith, P. J.:

The appellant is a legatee under the will of the said executor’s testatrix, aud the amount of his legacy in the hands of the executor unpaid is $810.96, as stated in the account. He is also entitled, as next of kin, to a distributive share of the estate. Among the assets in the hands of the executor are two claims against the appellant, consisting of a promissory note made by him for $267, with interest from 7th April, 1875, and a justice’s judgment recovered against him on 31st August, 1877, for $67.33, each of which is wholly unpaid, and each of which accrued more than six years prior to the death of the testatrix. Oa the accounting the infant respondents appeared by guardian and interposed an answer asking that the executor’s accounts be surcharged with the amount of said claims against tbe appellant, and the sums charged to him. The appellant replied to the answer, admitting the claims and setting up the statute of limitations. The surrogate found the facts as above stated, and held as matter of law that the executor has a lien on the legacy and distributive share of the appellant, so in the possession of the executor, for the payment of said claims, and he directed that the amount of said claims be deducted from said legacy, and that the executor pay the remainder of the legacy to the appellant. From the judgment entered upon that direction, this appeal is taken In Smith v. Kearney (2 Barb. Ch. R., 533), Chancellor Walworth said that the right of an executor or administrator to retain the whole, or a part, of a legacy or distributive share, in discharge or satisfaction of a debt due from a legatee or distributee to the estate, is not only consistent with the soundest principles of equity, but is perfectly well settled. (P. 547.) He also remarked, as the result of the cases cited by him, that it is not a mere question of legal offset, but of equitable lien and right of retainer, and that the right to retain depends upon the principle that the legatee or distributee is not entitled to his legacy, or distributive share, while he retains in his own hands a part of the fund out of which that and other legacies or distributive shares ought to be paid, or which are necessary to extinguish other claims on that fund. (P. 549.)

The equitable lien and right of retainer referred to exist in this case, and are not affected by the statute of limitations. That statute (Code of Civil Pro., § 380 et seq.) does not raise a presumption of payment, but merely creates a bar to the remedy by action. (Smith v. Kearney, supra; Stagg v. Beekman, 2 Edw. Ch., 89; Kincaid v. Richardson, 25 Hun, 237; Matter of Bogart, 28 id., 466; Rose v. Henry, 37 id., 397.)

The doctrine that where there is a legal and also an equitable remedy, in respect to the same subject-matter, the latter is under the control of the same statute bar with the former; is inapplicable to the present case. The rule relates to an action, or a proceeding in the nature of an action, brought to enforce an equitable remedy, in which the statute bar is set up as a defense. The cases cited by the appellant’s counsel are of that description. Smith v. Remington (42 Barb., 75), was a proceeding in a Surrogate’s Court instituted by a legatee against an executor to compel the payment of a legacy. Borst v. Corey (15 N. Y., 505), was an action to enforce a vendor’s equitable lien for purchase-money Rundle v Allison (34 N. Y., 180), was an action against executors to recover certain moneys alleged to have been received by their testator in trust for the plaintiff. In McCartee v Camel (1 Barb. Ch. R., 456), the rule was stated thus: *' In analogy to the statute of limitations, suits by creditors, legatees or distributees, before a surrogate, to obtain payment of their debts oi legacies or distributive shares should be instituted within the time in which suits of the same character are required to be commenced in the courts of common law or of equity.”

If, in the present case, the executor were suing to recover the claims above mentioned, the rule would apply. But that is not the case. The only object of the proceeding instituted by the executor is to settle his accounts and distribute the assets of the estate. As the claims against the appellant have not been paid in fact, and no presumption of payment arises from, the lapse of time, they are assets in the hands of the executor for which he must account. And as no affirmative action has been instituted, or is necessary on his part, to make his lien and right of detention available, the statute of limitations does not stand in his way.

The decree should be affirmed, with costs. "We are asked to allow costs to each of the respondents separately. The question whether they are entitled to separate bills can [only be raised by motion at Special Term. It cannot be considered on this appeal.

Haight and Bradley. JJ., concurred.

Decree affirmed, with costs.


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

      Conviction by a Court of Special Sessions — what objections cannot be first raised on .an appeal — sections 188 and 189 of the Code of Criminal Procedure are only applicable tc proceedings prosecuted by indictment — what acts wilt be deemed a, request to 3>e tried by the court — the fact that the crime charged is a first ofiense need not be ■alleged.in the warrant.

    Upon 'an appeal from a judgment of a Court of Special Sessions held by the police justice of the city of Rochester, convicting the defendant of petit larceny, it appeared from the return that when the defendant was arraigned the charge was read to him, and that upon his pleading not guilty, and being asked by tne court if he was ready for trial, he replied that he was; that the trial was entered upon forthwith, the complainant being sworn as a witness and giving testimony, at the close of which the trial was adjourned at the request of the defendant, to enablo him to produce other witnesses; that on the adjourned day he appeared, in person and by counsel, and was convicted.

      field, that an objection to tne sufficiency of the affidavit of the complainant, upon which the warrant was issued, could not he raised on the appeal, as it was not taken at the trial.
    'That an objection made by his counsel that', under the provisions of sections 188 and 189 of the Code of Criminal Procedure, it was the duty of the police justice to have informed him of his right to the aid of counsel, and to have afforded him an opportunity to procure counsel, should not be sustained.

      It'seems that as the case, as it stood before the police justice, was one not to be prosecuted by indictment, the provisions of the said sections were not applicable to :l
    When the defendant was arraigned the affidavit was not read to him, nor was he informed that he had a right to a trial by jury nor did he elect to be tried by the court, or waive a jury trial.

      .Held, that the action of the defendant, on having the charge read to him, in saying that he was ready for trial, and in failing to demand a trial by jury, was equivalent to •>. request to be tried by the Court of Special Sessions.
    That although Courts of Special Sessions can only try cases of petit larceny charged as a first offense, it is not essential to the jurisdiction of the court that, in a case of petit larceny, the information or the warrant should state that the crime charged was a first offense.
    That if such an allegation was material for any purpose the defendant was not injured by its omission, as the provision requiring it was in the interest of the public to prevent criminals guilty of a second offense from escaping the full measure of punishment imposed by the statute, which Courts o£ Special •Sessions have not the power to inflict.

      Appeal from a judgment of the Court of Sessions of Monroe county, affirming a judgment of a Court of Special Sessions, held by the police justice of the city of Rochester, convicting the defendant of the crime of petit larceny.

      Ivan Powers, for the appellant.

      George A. Benton, district attorney, for the respondent.
   Smith, P. J.:

The defendant was arrested and brought before the police justice by virtue of a warrant issued by that magistrate upon the affidavit of one Nettie Archer, which alleged that the defendant got and obtained from her the sum of fifteen dollars in money, by representing to her that he'was part owner and had an interest in a certain jewelry store on State street, in Rochester, besides being auctioneer in said store, which, deponent averred, upon her information and belief, was not true.

The justice’s return shows that when the defendant was arraigned the affidavit was not read to him, nor was he informed that he had a right to a trial by jury, nor did he elect to be tried by the court or waive a jury trial, but the charge was read to him, he pleaded not guilty, and on being asked by the court if he was ready for trial, he replied that he was, aud the trial was entered upon forthwith. The complainant was sworn as a witness on behalf of .the people and gave her testimony, at the close of which the defendant said he had not all the witnesses he desired, and thereupon the trial was adjourned to the next day, and the defendant then appeared in person and by his attorney.

It is now contended by the defendant’s counsel that the affidavit of the complainant was insufficient to authorize .the issuing of the warrant, inasmuch as it averred the falsity of the alleged representations upon information and belief only, without stating the source of the information or any fact or circumstances tending to justify the belief. "Without .considering the question whether the affidavit was insufficient in that respect, we are of the opinion that the objection is not available to the defendant on this appeal, it not appearing to have been made before the trial court. The trial was entered upon and concluded without objection from the defendant or his counsel that the affidavit was insufficient, and on the trial the defendant, who took the stand as a witness in his own behalf, gave positive testimony which showed that the alleged representations, if made, were untrue. It is true that he also denied making the representations, but the denial merely raised a conflict of testimony upon that point, which was decided adversely to the defendant. So that upon the trial the falsity of the representations was established beyond doubt. In these circumstances we think the appellant should not now be heard to object to the sufficiency of the affidavit in the particular referred to.

The counsel for the appellant refers to sections 188 and 189 of the Code of Criminal Procedure, and claims that it was the duty of the police justice to have informed the defendant of his right to the aid of counsel, and to have afforded him an opportunity to procure counsel, as provided in section 189. The question is raised by the respondent’s counsel whether those sections apply to the case. They are found in part IY of the Code, which is entitled “ of the proceedings in criminal actions prosecuted by indictment.” Part Y is entitled “ of proceedings in Courts of Special Sessions and Police Courts*” and the requirement contained in one of its sections (§ 699) that the charge against the defendant be read to him, seems to have been complied with in this instance. As the offense charged against the defendant -was one of which Courts of Special Sessions have exclusive jurisdiction, subject to the power of removal provided for in chapter 1, title 6 of the Code of Criminal Procedure, section 56, the case, as it stood before the police justice, was one not to be prosecuted by indictment, and we are inclined to the opinion that the provisions of sections 188 and 189 were not applicable to it.

We think the action of the defendant, on having the charge read to him, was equivalent to a request to be tried by a Court of Special Sessions. He pleaded not guilty, and on being asked by the court if he was ready for trial, he replied that he was, and the court proceeded to try him forthwith, without objection on his part. The case is distinguishable from People v. Mallon (39 How., 454); People v. Berberrich (20 Barb., 224) and People v. Lied (19 Alb. L. J., 400, 401) cited by the appellant’s counsel. In the first case, Mallon demanded to be tried by a jury; in each of the other two cases the defendant offered bail for his appearance at the Court of Sessions, and in each case the demand or offer was refused. In this case no such offer or demand was made. The Code, of Criminal Procedure provides that before the court hears the testimony upon the trial, the defendant may demand a trial by jury (§ 702) and that upon a plea other than a plea of guilty, if the defendant do not demand a trial by jury, the court must proceed to try the issue (§ 701). The defendant not having demanded a trial by jury, the proceedings seem to have been authorized by these provisions.

The appellant’s counsel also contends that, irrespective of the questions above considered, the police justice had no authority to try the defendant and the conviction is without jurisdiction and void. His argument is understood to be that jurisdiction to hear and determine charges of petit larceny is given only to Courts of Special Sessions, and not to police courts, and he cites sections 56 of the Code of Criminal Procedure. That section enumerates certain powers of Courts of Special Sessions, and does not mention Police Courts, but by section 265 of the charter of the city of Hochester, the police justice of that city is empowered to hold Courts of Special Sessions for the trial of all offenses triable in a Court of Special Sessions. (Laws of 1880, chap. 14.)

It is also contended that courts of Special Sessions can only try cases of petit larceny, “charged as a first offense.” (Code of Grim. Pro., § 56, sub. 1.) We do not understand that it is essential to the jurisdiction of a Court of Special Sessions, in a case of petit larceny, that the information or the warrant should allege that the crime charged is a first offense. If it be a first offense in fact, the court has jurisdiction to try the case, and it is to be deemed a first offense unless the contrary is charged. Put if such allegation is material for any purpose, the defendant is not harmed by its omission. The provision requiring such allegation is, in the interest of the public, to prevent criminals guilty of a second offense from escaping the full measure of punishment imposed by statute (Penal Code, § 688), and which courts of Special. Sessions have not the power to inflict.

A perusal of the entire record satisfies us that, the contention of the appellant’s counsel, that the evidence was insufficient to warrant a conviction, is unfounded. There is no other question in the case requiring comment.

The judgment should be affirmed.

Haight and Bradley, JJ., concurred.

Judgment affirmed.


author: Haight, J.:

text:
    ALVIN MARTIN, Respondent, v. JAMES M. HODGES and Others, Appellants.

      Reference ordered to aid the court in deciding a motion pending before it — General Rule Ho. 30 of the Supreme Court is not applicable — in what cases such a reference should be made — costs of one motion only can be allowed.

    Upon the hearing of a motion made by the defendant to have a judgment, entered against him by default, opened and for leave to answer, the question as to whether or not an answer had been served within twenty days from the service of the complaint being in dispute, the Special Term made an order referring the matter to a referee to take proof as to the time when the complaint was served and to report to the court. The referee having heard the parties and reported in favor of the plaintiff, an order was made by the court confirming the report and allowing the defendant to answer upon the payment of twenty dollars motion costs and twelve dollars disbursements.

      Held, that a claim that the court had no power to confirm the referee’s report for the reason that it had not been filed in the office of the clerk of the county eight days, in accordance with the requirements of General Rule No 30 of the Supreme Court, could not be sustained, as the rule cited had no application to references made for the purpose of aiding the conscience of the court in determining questions pending before it.
    That it was not the usual practice to order a reference in such a case, and that the practice should not be followed except in extraordinary cases where the court is unable to determine the facts from the papers read upon the motion.
    That the court had no power to allow costs of two motions.
    Appeal from an order of the Erie Special Term, confirming the report of a referee, and granting leave to answer, upon the payment of thirty-two dollars, costs.

      W. H. Hill, for the appellants.

      Wiltsie & Lewis for the respondent.
   Haight, J.:

The plaintiff entered judgment on default. The defendants moved to have the default opened, and for leave to answer. The moving. affidavits were to the effect that the complaint was served on the 10th day of July, 1886, and that the defendants had twenty days thereafter in which to serve their answer, and that on such twentieth day the answer was duly served upon the plaintiff’s attorneys. The opposing affidavits were to the effect that the complaint was served on the ninth day of July, and that, consequently, the defendants were in default in not serving their answer within twenty days thereafter. Upon the hearing of the motion, the Special Term made an order referring the matter to E. R. Booty, Esq., to take proof as to the time when the complaint was served and to report to the court. Thereupon the parties appeared before the referee so appointed, who took the evidence submitted by the respective parties and reported the same to the court, together with his opinion to the efEect that the complaint was served on the ninth day of July, instead of the tenth of July, as claimed by the appellants. The court thereupon confirmed the referee’s report, and made art order allowing the defendants to answer upon payment of twenty dollars, motion costs, and twelve dollars, disbursements. From that order this appeal was taken. It is now contended that the court had no power to confirm the' referee’s report for the reason that it had not been filed in the office of the clerk of the county eight days in accordance with the requirements of Rule 30.

That rule provides that, “ In references, other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the testimony of the witnesses- shall be signed by them, and the report of the referee shall be filed with the testimony, and a note of the day of the filing shall be entered by the clerk in the proper book, under the title of the cause or proceeding, and the said report shall become absolute and stand, as in all things, confirmed, unless exceptions thereto are filed and served within eight days after service of notice of the filing of the same. If exceptions are filed and served within such time, the same may be brought to a hearingat any Special Term thereafter, on the notice of any party interested therein.

The matter referred in the case under consideration was pending before the Special Term, and the reference ordered was merely to aid tbe court in determining the questions involved in the motion. The evidence was returned with the report of the referee. The report of the referee was in nowise binding upon the court, for it had the power to disregard it and draw its own conclusions from the evidence. (Marshall v. Meech, 51 N. Y., 140.) The report, if hied with the- clerk under the provisions of the rule, would stand confirmed if no exceptions were filed after the expiration of eight days.. But this would not determine the motion, for it still would be pending before the Special Term, and the court, as we have seen, would not be bound by it. For this reason we conclude that the rule has no application to references made for the purpose of aiding tbe conscience of the court in determining questions pending before it.

It is contended, on the part of the appellants, that unless exceptions were filed to the report, that they have no opportunity to review the same. That is not the case; an opportunity is given to review the same when the evidence and report are brought before the Special Term, and again by an appeal from an order made by the Special Term thereon. We have examined the evidence taken before the referee and are of the opinion that it sustains the report. It is true that the evidence is conflicting, but this court cannot reverse upon that ground.

The charging of the defendant’s thirty-two dollars costs as a condition for answering for a mistake of a single day, doubtless honestly made, is somewhat of a hardship. It is not the usual practice to order a reference in such a case, and we think the practice should not be followed, except in extraordinary cases where the court is unable to determine the facts from the papers read upon the motion. In this case there was but one motion, and that was to vacate the judgment, open the default and permit the defendants to answer. On the first hearing this motion was not disposed of but was postponed until the coming in of the referee’s report. The hearing upon the return of the referee’s report, was but a continuation of the same motion, and we are of the opinion that the court did not have power to allow two motion costs.

The order of the Special Term should be modified by deducting therefrom ten dollars costs; and the appellants should have ten days after the entry of this order in which to comply with the conditions of that order, and the order, as so modified, should be affirmed.

Smith, F. J., and Bradley, J., concurred.

Order modified by deducting therefrom ten dollars costs, and the appellants are given ten days after the entry of this order, in which to comply with the conditions of the order; and the orjier, as so modified, is affirmed without costs of this appeal to either party.


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    THE VILLAGE OF NIAGARA FALLS, Respondent, v JOHN SALT, Appellant.

      Power of the trustees of the viUage of Niagara Falls to prohibit runners and solicitors for hotels, etc.— they may prohibit persons from so doing though such persons remain on their own property — 1855, chap. 98, sec. 1, sub. 4.
    Subdivision 4 of section 1 of chapter 98 of 1855, amending the charter of the village of Niagara Falls, as amended by chapter 57 of 1862, provides that “the trustees of the said village shall have power, in their discretion, in addition to the powers granted by section fifty-eight ” of the general act of 1847, providing for the incorporation of villages, " to restrain and prohibit all runners, solicitors or guides for boats, carriages, railroads,public houses, places of resort or for any other place or purpose whatsoever.” Pursuant to the power thereby conferred, the board of trustees passed a by-law, enacting “ that all persons are prohibited within the corporate limits of this village from running for or soliciting any passenger or passengers, or person or persons, for any steamboat, or other public or private conveyance, or for any tavern, boarding-house, store or other place of resort, under penalty of not less than one dollar nor more than twenty-five dollars for each offense.”

      Meld, that the power given by the charter to the trustees to restrain all runners solicitors, etc., was not limited to the public places or streets of the village, but the power was given to restrain them wherever they might be within the corporate limits, even though they might be upon their own private property.
    Appeal from a judgment of tbe County Court of Niagara county, affirming a judgment of tbe police justice of tbe village of Niagara Falls.

      Frank Brundage, for tbe appellant.

      W Cary Ely, for tbe respondent.
   Haight, J.:

This action was brought to recover a penalty. The facts were agreed upon, and are, in substance, as follows : The defendant was one of the lessees and proprietors of the Western Hotel, in the village of Niagara Falls. The premises are on the northerly side of Falls street, directly opposite Second street, and fronting on the same side of Falls street as the depot of the New York Central Railroad Company, into which run several different lines of railways. Large numbers of passengers emerging from the depot pass down the same side of the street to the Niagara river and other points of interest, and in doing so pass the defendant’s hotel. The hotel stands nine feet from the line of the street, and in front is a stoop or verandah about seven feet in width, running to within two feet of the street line. In front of the stoop are planks nailed crosswise over the planks of the sidewalk, which occupy the remaining two feet of the defendant’s premises. The defendant and his son ran the house as an inn or tavern, and kept conveyances which were used for the conveyance of passengers for hire. On the 30th day of May, 1SS6, about eight o’clock a. M., just after the arrival of a train at the depot, the defendant, while standing upon that' portion of the premises marked by the planks nailed down as aforesaid, at about the center of the same, accosted four persons, who were passing along the sidewalk, saying: Breakfast is all ready, gentlemen; if everything is not satisfactory your money will be refunded.” One of the party- said they had been to breakfast. The party just halted and passed on. The defendant, standing on the same planks, again accosted them, saying: Would you like a carriage to go around and see the points ? ” The party kept on down the street, without response.

Subdivision 4 of section 1 of the defendant’s charter, as amended by section 1 of chapter 57 of the Laws of 1862, pro rides that, The trustees of said village shall have power in their discretion, in addition to the powers granted by section 58 of an act entitled An act to provide for the incorporation of villages, passed December 7, 1847, * * * to restrain and prohibit all runners, solicitors or guides for boats, carriages, railroads, public-houses, places of resort or for any other place or purpose whatsoever.”

Under and by virtue of tbis charter the board of trustees of the village, on the' 5th of September, 1877, passed and duly published section 1 of chapter 5 of the by-laws of the village, which is still in force, and is as follows: “ JBe it enacted as follows, that all persons are prohibited, within the corporate limits of this village, from running for or soliciting any passenger or passengers, or person or persons, for any steamboat or other public or private conveyance, or for any tavern, boarding-house, store or other place of resort, under penalty of not less than one dollar, nor more than twenty-five dollars for each offense.”

It will be observed that the by-law in question is fully within the provisions of the charter and authorized by it. It is contended, however, that because the defendant stood upon his own land, upon the planks in front of his piazza outside of the sidewalk, that lie was not within the public street, and that consequently he was not within the provisions of the charter or by-law excluded from soliciting patronage for his hotel or tavern. But we do not think the charter or by-law in question should be so construed. The charter gives to the trustees of the village the power to restrain and prohibit all runners, solicitors or guides, etc. The power to restrain and prohibit them is not limited to the public places or streets of the village, but the power is given to restrain them wherever they may be within the corporate limits. The by-law is equally explicit, for by it all persons are prohibited, within the corporate limits from running for or soliciting any person or persons for any public or private conveyance, or for any tavern, boarding-house, etc. Had it been the intention of the legislature or of the trustees to limit solicitation for passengers and patronage to the public streets, such limitation would doubtless have appeared by express terms in the provision of the charter and by-law.

Nor do we think that the charter or ordinance in question is a violation of any common law right, for no person has the right to so conduct himself or use his property as to annoy and vex others when passing along the public way. At common law the highways were under the jurisdiction and control of the king; and in this country that of the sovereign power of the State. In municipal governments the legislature has seen fit, in most instances, to require the municipality to take charge of and keep the streets in proper repair for tbe use of the public. But it still retains the power to preserve peace and good order and protect the people in their unmolested use of the highways. It may be just as much annoyance to travelers to be accosted by a person standing a few inches from the sidewalk, over which they are passing, as it would be to be accosted by a person standing in the middle of the street.

It is suggested that if the soliciting from private property of those passing upon the street is an offense, that then if the village trustees saw fit, they could pass a by-law prohibiting persons from singing or playing upon the piano in their own houses, so that the sound could be heard upon the streets. It does not, however, appear to us that there is any force in the suggestion, for the reason that no power is given the trustees under the charter to pass by-laws restricting singing or music in private houses.

In the case of the City of Rochester v. Close (35 Hun, 208) it was held that the charter did not authorize the ordinance, and for that reason the ordinance could not be enforced. The other cases to which the appellant refers, were in reference to entirely different ordinances or by-laws, and have no application to the question under consideration.

It appears to us that the trial court and County Court properly held that there was a violation of the by-law in question, and that the defendant was properly held liable for the penalty.

The judgment should, therefore, be affirmed.

Smith, P. J., and Bradley, J., concurred.

Judgment affirmed.


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    ANDREW ZIEGLER, Respondent, v. LETITIA J. GALVIN, Appellant, Impleaded, etc.

      Mechanics' lien — under Laws of 1880, chapter 143 — the contract must he made with the owner or his agent.

    This action was brought hy the plaintiff, a sub-contractor of one Galvin, to foreclose a mechanics’ lien, filed under chapter 143 of 1880, against the defendant Letitia, who owned a house in the city of Buffalo. Upon the trial it appeared that in August, 1884, the husband of the defendant, with her full knowledge, consent and approval, and in pursuance of her desire, entered into a written contract with one Galvin to make certain repairs and improvements upon the house, which were intended to and did improve the property; that at the time of the making of the contract her husband resided upon the premises with her . and his family, which he wholly provided for and maintained, and that she had no separate business or income, nor did she assume or promise personally to pay any part of the consideration named in the contract; that her husband in fact intended to carry out the contract himself and to pay the consideration therein named to the contractor, according to the terms of the contract, and that she did not expect or intend to pay any part theieof herself.

      Held, that a finding by the trial court that the husband was the agent in fact for his wife, and that she was bound by his contract, could not be sustained.
    That as the plaintiff had not shown that he acted “by virtue of any contract with the owner” of the premises “or his agent,” as required by the act, he acquired no lien upon the property.

      Jones v. Walker (63 N. Y., 612); Cornell v. Barney (94 id., 894) followed; Otisr. Dodd (90 ÍT. Y., 336); Burkttt v. Harper (79 id,, 273); Husted v. Mollies (77 id., 388) distinguished.
    Appeal from a judgment entered upon the decision of the Erie County Court.

      Nathaniel W. Norton, for the respondent.

      William L. Marcy, for the appellant.
   Haight, J.:

This action was brought to foreclose a mechanic’s lien. The defendant, Letitia J. Galvin, was the owner of a house and lot in the city of Buffalo. About the month of August, 1884, her husband, Michael J. Galvin, entered into a written contract with one Michael Galvin, a contractor, to make certain repairs and improvements upon the house. The plaintiff, a sub-contractor, filed a lien and brought this action to recover the amount alleged to be due from the contractor to him. The trial court found as facts, that the contract was made by her husband with her full knowledge, consent and approval, and in pursuance of her desire that more room should be added to the house; that the contract was intended and did improve and benefit the property, and that she knew of the contract and improvements being made at the time they were made, and was desirous that they should be made; that at the time of making the contract, her husband resided upon the premises with her and his family, which he wholly provided for and maintained, and that she had no separate business, or income, nor did she assume or promise, personally, to pay any part of the consideration in the contract for the improvement of the premises; that her husband in fact intended to carry out the contract himself and to pay the consideration therein named, to the conti’actor, according to the terms of the contract, and that she did not expect or intend to pay any part thereof, herself.

As conclusions of law, the court found that her husband was her agent in fact, and that the plaintiff was entitled to a judgment establishing his lien upon the premises for the sum his due, and that he was entitled to judgment, that the property bo sold, etc., to satisfy the same.

Upon the facts found we must differ with the trial court as to its conclusion “that her husband was her agent in fact.” Her knowledge, consent and approval that the improvements should be made, standing alone, is not sufficient to constitute an agency. The trial court, as we have seen, has expressly found that her husband made the contract himself and intended to carry it out and pay the consideration named, to the contractor, and that she did not expect or intend to pay any part thereof. It appears to us that this finding is inconsistent with the theory that she was acting as principal and her husband as agent. For if her husband was agent and she principal, then she would become bound by the contract, and would be obliged to pay the amount that became due thereon, and the same could be enforced against her. The fact that she did not expect or intend to pay herself, and that her husband did, tends strongly to show that the husband contracted as principal and not as agent. This is further evident from the other finding to the effect that the husband resided upon the premises with his family, which he wholly provided for and maintained, and that she had no separate business or income. If she had no separate business or income, she may have had nothing with which she could pay the contractor, and the necessary consequences would be the sale of her premises to pay the debt. Her husband, living with her upon the premises, had the right, with her consent, to rebuild and improve the same, at his own expense, for his own comfort and convenience, and that of his family; he had the right to so contract and bind himself, without involving his wife. This view leaves but one other question necessary for our determination, and that is, whether or not a contractor or sub-contractor can establish a lien for work performed and material furnished, when there is no contract on the part of the owner or his agent, but where the work performed and material furnished is with the knowledge and consent of the owner. Chapter 143 of the Laws of 1880, under which the lien in question was filed, provides as follows: “ Any person who shall hereafter perform any labor or furnish any materials which have been used or are to be used in building, altering or repairing any house, building or other improvement upon lands or appurtenances to such house or building, by virtue of any eontraet with the owner thereof, or his agent, or with any contractor or sub-contractor, or any other person contracting with the owner of such lands * * * shall * * * have a lien,” etc.

It will he observed that under this act, in order for a person to acquire a lien, the work must be performed or the materials furnished by virtue of a contract with the owner or his agent. This act is local and is limited to the city of Buffalo

Chapter 305 of the Laws of 1844 provided: “ Any person who shall hereafter, by virtue of any contract with the owner thereof or his agent, or any person in pursuance of an agreement with any such contractor * * * shall * * * have a lien,” etc.

The words "by virtue of any contract with the owner thereof, or his agent,” are identical with those appearing in the act under consideration. Under the former act these provisions were considered in the case of Jones v. Walker (63 N. Y., 612) in which it was held that no lien could be perfected for the reason that the work was not performed or material furnished under any contract with the owner or his agent. The case resembles the one under consideration; the wife was the owner of the premises; she resided with her husband in the house; the husband maintained the family; it did not appear that she had any other property or income or that she assumed to pay any of the charges in respect to the premises ; the contract was made with her husband, all as in the present case.

In the case of Cornell v. Barney (94 N. Y. 394) the action was to foreclose a mechanic’s lion in the city of New York. The Statute applicable to that city provided that every person performing labor upon or furnishing materials to be used in the construction, etc., of any building, shall have a lien, etc., where done or furnished at the instance of the owner of the building or his agent. In' that case it was held that no recovery could be had against the owner, for the reason that the work was not done or material furnished at his instance or that of his agent.

The language of the statute in that case is also similar to the one under consideration, and it appeal’s to us that these authorities must be controlling upon the question. We have not overlooked the cases of Otis v. Dodd, (90 N. Y. 336); Burkitt v. Harper (79 id. 273); Husted v. Mathes (77 id. 388), and kindred cases, in each of which the statute provided for a lien where the work was performed, or the material furnished with the consent cf the owner, and for this reason they are distinguished from the case of Jones v. Walker, to which we have referred, upon the ground of the differences in the statutes under which the lien was sought to be perfected.

It is contended on the part of the respondent that the appellant had a conversation with one of the plaintiff’s attorneys, just prior to the filing of the lien, in which she stated that there was enough due upon the contract with the contractor to pay the claim of the plaintiff, the sub-contractor, and that she is now estopped because of this conversation. But the estoppel, if any, would only go to the question as to the amount due upon the contract, and does not reach the question as to the right of the plaintiff to establish and maintain a lien. We are aware that this conclusion may result in a loss to the plaintiff and seem a hardship, inasmuch as her property has been benefited by the plaintiff’s labor; but this reason cannot change the effect of the statute or b8 considered in construing the same. Contractors and sub-contractors must conform to its provisions, for they cannot be changed to meet the exigencies in individual cases. The wife who has a homestead coming to her through her mother (as in this case) may be willing, even pleased, to have her husband repair and improve the same, and yet if she has no income or resources with which she can pay for the repairs or improvements, she might not have consented or be willing that they should be made if, in order to pay for the same, she had to submit to a sale of her homestead.

Tbe judgment should be reversed, and a new trial ordered, with costs to abide the event.

Smith, P. J., and Bradley, J., concurred.

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


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    LOUISA STER, Appellant, v. CATHARINE TUETY, Respondent.

      Accident —proof of other persons having fatten at the same place at which the plaintiff was injured.

    Upon the trial of this action, brought by the plaintiff to recover damages alleged to have been sustained by falling upon the sidewalk in front of premises owned by the defendant, because of a defect therein, it appeared that the defendant had let a contract to a builder to construct a house on her property, and that the sidewalk, which was constructed of planks lying crosswise upon stringers embedded in the earth, was taken up to enable the builder to excavate che loundation and take in the material required to erect the building. The plaintiff, while passing in the evening along the portion of the sidewalk from which the planks had been removed,, stubbed her foot against the plank where the walk again commenced and fell, receiving the injuries to recover damages for which this action was brought.
    Upon the trial the plaintiff’s attorney offered, but was not allowed, to prove “ that other persons, passing back and forth over this walk, fell on the same .spot where the accident occurred to the plaintiff, while the walk was in the condition described.”

      Seld, that as no question was put to any witness the offer, which was made the basic of error, should be strictly construed.
    That as no reference was made in the offer to the character or condition of the persons, and the time when and the conditions under which they had fallen the court did not err in excluding the evidence.

      Quinlan v. Oily of JJtica (11 Hun, 317); affirmed, 74 N. Y., 608; District of Columbia v. Armes (107 U. S. H., 519-525); Pomphrey v. Village of Saratoga Springs (10 Eastern Kep., 857) distinguished.
    Appeal from a judgment in favor of the defendant entered upon a verdict rendered at the Monroe Cii’cuit, and fi’om an order denying a motion for a new trial.

      William E. Werner, for the appellant.

      Martin W. Cooke, for the respondent.
   Haight, J.:

This action was brought to recover damages which the plaintiff is alleged to have sustained by falling upon the sidewalk in front of .the defendant’s premises on Saxton street, in the city of Rochester, because of a defect in the walk. The defendant was the owner of the premises abutting upon the walk in question, and had let u contract to a builder to construct a house thereon. The sidewalk in front of the premises was constructed of planks, laying crosswise upon stringers embedded in the earth. The contractor in removing the earth for the foundation, and taking in the materials for the building, had to cross the walk in question with teams. In order •.to do so, a portion of the walk was taken up. The plaintiff, whilst passing along the walk on or about the first day of July, 1885, in the evening, passed over that part which had been taken up, .stubbed her foot against the plank where the walk again commenced, and fell, breaking a finger and receiving other injuries. Upon the trial the jury found a verdict for the defendant. It is ■now claimed that the judgment should be reversed, because of ■errors of the court in the exclusion and admission of evidence, and in refusing to charge as requested..

Upon the trial the defendant was permitted to prove that she had entered into a contract with one Stalker to build a house for her upon her lot on Saxton street; that he entered into possession of the premises and constructed the house, and that the walk in question was taken up by those doing the mason work for him. This evidence was taken under the plaintiff’s exception, and it is now contended that it was improperly received. The defendant, in her answer, alleged that she had let a contract to construct a building for her, and that the contractor had taken possession of the whole' of the premises under the contract, and that she was not in possession of the premises at the time of the plaintiff’s accident, and had no notice of any defect of any kind in the sidewalk, and denies that she ever took up or removed, or caused to be taken up or removed, any portion of the sidewalk in front of the premises, and never authorized the same, directly or indirectly. The defendant had the right to establish this defense if she could, and evidence bearing thereon was properly admitted by the court. If she could 'have shown that the premises had been let by her to another, who bad entered into tbe exclusive and entire possession thereof, with the right to control the same, and, after acquiring such possession, had removed the sidewalk without the knowledge or consent of the defendant, that she had no notice, actual or constructive, of such removal, then it would have amounted to a defense, so far as she was concerned. (Wolf v. Kilpatrick, 101 N. Y., 146-151.)

But the defendant failed to establish her defense in this regard, and the court instructed the jury that by making the contract she did not relieve herself from the responsibility of keeping" the sidewalk in a reasonably safe condition for persons traveling thereon. The court could not determine in advance that the defendant would fail in this regard. The evidence was properly received, and after it was received, the court very properly held that she was not relieved from liability because of the contract.

A more serious question is presented in the exclusion of evidence as to other persons falling on this walk. The plaintiff asked the witness Bertha Stapel the question, “ Do you know of any other person who stumbled or fell at this walk?” The question was objected to, but the case does not show that the court ruled thereon. The plaintiff’s attorney then offered to show “ that other persons passing back and forth over this walk fell on the same spot where the accident occurred to the plaintiff while the walk was in the condition described.” This was excluded, and exception taken. And, again, of the witness Adeline Frank, the question was asked, Did you ever stumble and fall at that place ? ” And she answered “ Yes, sir.” This was stricken out, and exception taken. Inasmuch as this question did not refer to the time or condition that the walk was in at the time that the witness Frank fell, the exception taken to the striking out of the answer is unavailable to the plaintiff; and the question resolves itself into the inquiry as to whether or not it was error to exclude the evidence embraced in the offer.

In the case of Quinlan v. The City of Utica (11 Hun, 217), the condition of the walk was very fully and minutely described by the witnesses ; and photographs, measurements, and a model of the surface of the walk, showing its elevations and depressions, were put in evidence. The testimony showed that for several years immediately preceding the accident, including the various times to which the testimony under consideration referred, the walk was in the same condition that it was in when the plaintiff received her in juries. It was held, under these circumstances, that evidence that others had slipped and fallen at the place in question was competent, on the ground that it tended to show that the walk, tested by actual use, had been demonstrated to be in unsafe and improper condition, and that such was its condition at the time when the plaintiff was injured. This case was affirmed by the Court of Appeals (74 N. Y., 603), and has been approved by the Supreme Court of the United States in District of Columbia v. Armes (107 U. S., 519-525); Pomphrey v. Village of Saratoga Springs (10 Eastern Rep., 357), and has been followed in other cases. The rule is, therefore, too firmly established to be questioned here. But we are inclined to the opinion that the rule should not b$ enlarged so as to raise numerous collateral issues; for if the walk was not in the same condition, or if the other persons who had fallen were intoxicated, aged and infirm, the evidence might mislead and- do harm instead of tending to show the actual condition of the walk. The offer is to show that other persons passing back and forth over this walk had fallen, etc., while the walk was in the condition described. No such question was put to any witness, and an offer which is made the basis of error, should be strictly construed.

The character or condition of the persons, the time when and the conditions under which they had falien does not appear in the offer. It is true that the offer states- the “ condition described,” but on referring to the evidence of the witness Staple, just preceding the offer, and who was then upon the stand, we find three conditions of the walk described. In the first place, a portion of the walk was taken up and it was leveled off with dirt taken from the cellar; after that another portion of the walk was taken up and the walk left at the end was above - the ground some distance, which the witness appears to have indicated, but which does not appear in the case, and afterwards an entire new walk was constructed of plank. It -will thus be observed that the words “condition described” appearing in the offer, do not necessarily confine the evidence offered to the condition that the walk was in at the time the plaintiff fell, and we are consequently inclined to regard the offer as falling short of the rule laid down in the case of Quinlan v. The City of Utica.

In submitting tbe case to tbe jury -tbe court was requested to charge that tbe taking up of tbe walk was a wrongful act, and if done by the authority or permission of tbe defendant, or if allowed to remain by her after a discovery of tbe fact, or after such a reasonable length of time bad elapsed that she ought to have known its condition, she was liable for any injury which occurred by reason of it, irrespective of tbe question of negligence on tbe part of tbe plaintiff or defendant. This request was declined, and exception was taken by tbe plaintiff. Tbe main question tried and submitted to the jury was as to whether or not tbe walk was in a reasonable safe and proper condition at tbe time of tbe plaintiff’s alleged injury. Upon this branch of tbe case there was considerable conflict in the testimony. That upon tbe part of tbe plaintiff tending to show that tbe walk that was left after the removal of tbe planks was four or five inches from tbe ground; that it was up upon stringers so that a foot could catch under tbe plank, whilst on tbe part of defense the evidence tended to show that tbe stringers upon which tbe planks rested were embedded in tbe ground; that tbe planks rested upon tbe earth, and that tbe grass and sod bad grown over tbe end, so that tbe elevation from tbe earth of the walk to tbe top of tbe plank was but a part of an inch. This question was carefully tried and properly submitted to tbe jury. The removing of a sidewalk is not wrongful under all circumstances. It appears that tbe defendant caused a new walk to be constructed in tbe place of tbe old one. Tbe old walk of necessity bad to be removed in order to give place to tbe new. In tbe construction of buildings in crowded cities it often becomes necessary to temporarily remove a sidewalk in order to excavate cellars and carry in tbe material used in tbe construction of tbe buildings. Such temporary removal does not constitute a nuisance, but tbe person doing it is bound to properly guard and furnish reasonably safe passage for tbe public; and if such provision is made be is not chargeable with a wrongful act or with creating a nuisance, and unless tbe act was wrongful, or a nuisance was created, tbe question of negligence was involved in the case.

Tbe judgment and order should be affirmed.

Smith, P. J., and Bradley, J., concurred.

Judgment and order affirmed.


author: Haight, J..

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. FREDERICK B. WRIGHT v. THE COURT OF SESSIONS OF ONTARIO COUNTY.

      Bastardy cases — ilie judgment should be reviewed by appeal and not by certiorari — Code of Criminal Procedure, secs. 515 and 740, as amended by chapter 872 of 1884 — what questions are to be determined — a wife cannot prove non-access of her husband.

    ]By tlie passage of chapter 872 of 1884, amending sections 515 and 749 of the Code of Criminal Procedure, the writ of certiorari was abolished as to proceedings and special proceedings of a criminal nature, and from and after its passage orders of the Court of General Sessions, made in bastardy proceedings, can only he reviewed on an appeal.

      People ex rel. Fuller v. Ccvrney (29 Hun, 47) explained and distinguished.
    While the provisions of section 2140 of the Code of Civil Procedure, prescribing the questions which are to be determined by the court upon the hearing on a return to a certiorari, “are limited to civil actions and proceedings,” yet, as the adoption of the section seems to show that the legislature approves of the rule therein laid down, it should be used by the court as a guide in determining the questions to be determined in criminal proceedings.
    In proceedings instituted to have the relator adjudged the father of a bastard child, the mother, a married woman, was allowed to testify as to non-access of her husband for the year previous to the birth of the child.

      Held, that the evidence was incompetent.
    That the common-law rule which made such evidence incompetent had not been changed by the adoption of sections 828 and 831 of the Code of Civil Procedure.
    RetueN of the Court of Sessions of Ontario county to a writ of certiorari.

      E. W. Gardner, for the relator.

      Edin Eicks and Henry M. Fields, for defendant.
   Haight, J..

On the 6th day of February, 1886, an order of filiation was made by two magistrates of the county of Ontario, adjuding the relator to be the father of a bastard child born of one Eunice Horton. From sucb order an appeal was taken to the Court of Sessions of that county, in which court the' order was affirmed. Whereupon, and on application by the relator to the Special Term of this court a certiorari was issued to the Court of Sessions requiring that court to- return all of the proceedings therein to this court.

In the case of the People ex rel. Fuller v. Carney (29 Hun, 47) we bald that since the adoption of the Code of Criminal Procedure,, orders of the Court of General Sessions, made in bastardy proceedings, could only be reviewed at the General- Term upon a common law writ of certiorari ,- that under section 515 of the Code of Criminal Procedure the writ of certiorari was abolished only in criminal actions, and that it was not abolished as to special proceedings of a criminal nature. The next year, however, this section of the Code was amended (chap. 372, Laws of 1884), and the writ was abolished as to proceedings and special proceedings of a criminal nature, and it was provided that, “ hereafter the only mode of reviewing a judgment or order in a criminal action or proceeding or special proceeding of a criminal nature is by appeal.”

At the same time' section 749 of the Code of Criminal Procedure-was also amended by inserting in that section the words, or proceedings or special proceedings of a criminal nature,” so that as it stands amended it reads, “ a judgment, upon conviction rendered' by a Court of Special Sessions, Police Court, police magistrate or justice of the peace, in any criminal action or proceedings or special proceeding of a criminal nature, may be reviewed by the Court of Sessions of the county upon an appeal as prescribed by this statute.- and not otherwise,” etc.

Section 770 provides: “If the judgment on the appeal be-against the defendant, he may appeal there!rom to the Supreme-Court in the same manner as from a judgment in an action prosecuted by indictment and may be admitted to bail upon the appeal' in like manner.”

• Section 771 provides that, “ the judgment of the Supreme Court' upon the appeal is final.”

It thus appears that the amendment of 1884, has changed the practice in this regard, and that the proceedings can now only be reviewed on an appeal. The respondents, however, have not moved to quash the writ; but upon the argument waived any question in reference to the right of this court to review the proceedings upon the writ, and consented that the court might review the same with the same force and effect as if the writ had not been abolished.

It is contended, however, that the facts are not brought before this court for review under the writ, and that the only questions we can consider, are those as to jurisdiction of the subject-matter of the person of the defendant, and to see that some proof was made which had a tendency to establish the material allegation in issue. There is a considerable conflict in the authorities as to what questions are brought up for review by a common-law writ of certiorari, but we regard the question as now virtually settled by legislative act.

In the case of the People ex rel. Haines v. Smith, (45 N. Y., 772-776), it was held that upon the return to such a writ, the court is not limited to the inquiry whether jurisdiction of the parties and subject-matter was acquired; but should examine the evidence and determine whether there was any competent proof of the facts necessary to authorize the adjudication made and whether, in making it, any rule of law affecting the rights of the parties, has been violated.

In the case of the People ex rel. Wilbur v. Eddy (57 Barb., 593-601), it was held to be the duty of the court to examine, in all cases on certiorari : 1. As to jurisdiction. 2. The court will reverse if the moving party, upon their own showing, fail legally to make out their case. 3. Where the testimony fails to support the matter charged. 4. Where some evidence is given to support the charge, however slight, if judgment be given thereon, and where there is evidence upon the merits on both sides, the court will not reverse, unless the case be one in which the weight of evidence is very greatly preponderating or is so strikingly so as to create a suspicion of injustice arising from prejudice or passion.

Subsequently to these decisions, the legislature adopted section 2140 of the Code of Civil Procedure, which makes provisions as to the questions to be determined upon the hearing of a common law writ of certiorari. It provides that “the questions involving the merits to be determined by the court upon the hearing are the following only: 1. Whether the body or officer had jurisdiction of the subject-matter of the determination under review. 2. Whether the authority conferred upon the body or officers in relation to that subject-matter has been pursued in the mode required by law, in order to authorize it or him to make the determination. 3. Whether in making the determination, any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator. 4. Whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination. 5 If there was such proof, whether there was, upon all the evidence, such a preponderance of proof against the existence of any of those facts, that the verdict of the jury affirming the existence thereof, rendered in an action in the Supreme Court, triable by a jury, would be set aside by the court as against the weight of evidence.”

The reviser in his note tells us that this section was framed to settle the law as to the questions to be reviewed under the’ writ, and that it was intended to embody the rule as laid down in the cases above referred to- Whilst these provisions ’of the Code are limited to civil actions and proceedings, and were not intended to have any application in criminal proceedings, still the section quoted appears to have a legislative approval of the rule as laid down in the cases referred to, and they should, therefore, form our guide in determining the questions involved in this case.

Upon examination of the return, it appears that some evidence was received that should have been excluded as incompetent. But we do not understand that the proceedings can be annulled by reason of errors in the admission or rejection of evidence only, provided no rule of law affecting the rights of the parties has been violated to the prejudice of the relator, and where there is any competent proof of all the facts necessary to be proved in order to authorize the determination. (The People ex rel. Mizner v Hair, 29 Hun. 125.) But if there is no competent proof of a fact necessary to be proved, then the proceeding must be reversed

Upon the hearing before the Court of Sessions, Eunice Horton was sworn as a witness on behalf of the respondents, and gave evidence rending to show that she had illicit intercourse with the defendant, and bad subsequently given birth to a child. On her cross-examination she testified that she was married nine or ten years ago to Willis Lansing, that they were married in Sheshire, Ontario county, and that she had never heard of Willis dying. On her redirect-examination she was asked the question how long since you have seen your husband ? This was objected to as incompetent, that she was not a competent witness to show or prove non-access of her husband. The objection was overruled, exception taken, and she answered eight years. It is upon this evidence that the court has found that the child born was a bastard.

Section 838 of the Code of Criminal Procedure provides that “a bastard is a child who is begotten and born. 1. Out of lawful matrimony. 2. While the husband of its mother was separated from her for a whole year previous to its birth, or 3. During the separation of its mother from her husband, pursuant to the judgment of a competent court.” There is no pretense that she had ever been separated from her husband by any judgment or decree, so that it was necessary for the respondents to establish that she had been separate from her husband for a whole year previous to the birth of the child in order to make it a bastard.

The only other evidence bearing upon the subject which we have been able to discover, was that of William Anderson, who worked for Wright, for whom Eunice Horton also worked, from the seventeenth of March until the fifth of October, who testified that there was no one there during that time claiming to be her husband, or that she seemed to recognize as such. But this evidence, if competent, does not cover the year prior to the birth of the child. There is no pretense that he was acquainted with her husband, or would have known him had he seen him. It is true she worked for Wright, and lived there during that season, but it does not appear that she was there all of the time. On the contrary it appears that she was away some time between the fifteenth of March and the of middle April; and that it was between these dates that she must have conceived the child of which she was subsequently delivered.

The witness McClure testified that he overtook her upon the road, that she was on her way to Canandaigua, and that ho asked her to ride. The question is therefore narrowed to the competency of tbe mother to prove non-access of her husband, for it is upon her testimony alone that the fact appears that she had not seen her husband for the year prior to the birth of the child. At common law there is no question but that this evidence is incompetent. Public morals and decency would not permit a wife to testify to any fact tending to show her own child to be illegitimate. (Wharton on Evidence, § 608.)

In the case of the People ex rel. Crandall v. The Overseers of the Poor of the Town of Ontario (15 Barb., 286) the same class of evidence was offered and received, and it was held that the evidence was incompetent and did not establish the fact that the husband had been absent a year. But it is contended that the rule has been changed by the Code, and that such evidence is now competent. If any change has been made it is because of sections 828 and 831 of the Code of Civil Procedure. The first section provides that Except as otherwise specifically prescribed in this title, a person shall not be excluded or excused from being a witness by reason of his or her interest in the event of an action or special proceeding, or because he or she is a party thereto, or the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed or defended.” It will be observed that the witness Ilorton was not the wife of a party to the action, or of a person in whose behalf the action or special proceeding is brought, prosecuted, opposed or defended, and consequently she is not brought within the provisions of this section. A careful reading of the next section fails to disclose any provision authorizing such testimony. We think that the statute has failed to change the common law rule in this regard (Chamberlain v. The People, 23 N. Y., 85.)

It follows that the evidence received was incompetent, and that there was no competent evidence establishing the fact of non-access of her husband for the period of. 'one year prior to the birth of the child. For these reasons the proceedings must be reversed and remitted to the Court of Sessions of Ontario county, in which court a rehearing is ordered, costs to abide event. This disposition of the case renders it unnecessary to consider the questions involved in the appeal from the order denying a new trial upon the ground of surprise and newly discovered evidence.

An order may, therefore, be entered as to that appeal of reversal, but without costs to either party.

Smith, P., J., concurred; Beadley, J., concurred in result.

Order of filiation reversed, and proceedings remitted to the Court of Sessions of Ontario county, in which court a rehearing is ordered; order appealed from reversed.