text:
    The People ex rel. Charles Young, Pl’ff, v. John W. Hannan, as Sheriff of Monroe County, Def't.

      (Supreme Court, Monroe Special Term,

      Filed September, 1894.)

    1. Extradition—Eor what offense tried.
    Extradited fugitive cannot be tried and convicted of any offense except that for which he was extradited, even though the offense for which he is tried may be of a minor or less grade than the one for which he was surrendered.
    2. Same.
    Nor can he be tried for the extradited crime and convicted of a minor offense for which he could not have been extradited, though the former includes the latter offense.
    3. Same—Claim of exemption.
    He has a right to claim exemption from trial upon any other charges than those mentioned in the extradition proceedings.
    4. Same.
    Special term concluded not to discharge relator and permit him to return to country from which he was extradited, until the general term shall have passed upon the legality of his conviction, as the question, presented in this case, is novel and not entirely free from doubt.

      H. J. & W. H. Sullivan and P. McIntyre, for relator, Charles Young; Howard H. Widener, assistant district-attorney, for def’t, Hannan.
   Davy, J.

—The relator, Charles Young, was indicted by the grand jury of Monroe county in the month of June, 1893, for the crime of assault, with intent to murder Herbert Guerin.

The indictment was sent from the court of oyer and terminer to the sessions, in which court the relator gave bail for his appearance to answer the indictment, when prosecuted. Shortly thereafter he escaped to England, from which country he was extradited for the said crime. He was subsequently arraigned on the indictment, and plead not guilty. At the commencement of the trial, he objected to the form of the indictment, and to being tried for any other crime than assault in the first degree. He contended that he had been brought from England upon a warrant of extradition charging him with assault, with intent to commit murder, and for that crime, and that only, he asked to be tried. This request was denied by the court, to which ruling the defendant excepted. Upon the trial, he conducted his defense without the aid or assistance of counsel.

The trial resulted in his being convicted of assault in the second degree. He was then sentenced to be confined in the state prison at Auburn for the period of four years and six months. The relator then presented a petition to this court, in which he alleged that he was unlawfully restrained of his liberty, and imprisoned in the county jail of Monroe county. Upon this petition, a writ of habeas corpus was issued, directing the sheriff of said county to produce the relator, so that the court might inquire into the cause of his imprisonment. A return was made by the sheriff to the writ, stating, in substance, that the relator was held bv him, as such sheriff, by virtue of a bench warrant issued and delivered to him by the district-attorney of the county of Monroe, upon an indictment duly found by the court of oyer and terminer, whereby the relator was charged with the crime of assault in the first degree. To this return, the relator answered, denying that the imprisonment was legal. He also offered in evidence the warrant of extradition and the testimony taken upon the trial, showing that he was extradited from England for the crime of assault with intent to murder, and that he was convicted of a minor offense, namely, assault "with intent to do bodily harm.

The relator contends that, under the treaty between Great Britain and the United States, he could not be tried or convicted of any other offense than the one for which he was extradited.

The right of this government to demand from Great Britain the surrender of Young, as a fugitive from justice, depended upon the extradition treaty existing between the two countries, which provides, among other things, “That all persons charged with the crime of assault, with intent to murder, committed within the jurisdiction of either government, who seek an asylum, or shall be found, within the territory of the other, shall, upon mutual requisitions, be delivered up to justice.”

The question whether a person, surrendered under the treaty between Great Britain and the United States, could be tried for an offense, other than that for which he was extradited, once formed between the two governments the subject of a good deal of controversy. A wide difference of opinion also prevailed in the federal and state courts, until the decision of the- supreme court in the case of 2he United States v. Rauscher, 119 U. S. 407. Prior to this decision, and in 1869, a supplemental act to the treaty was passed by congress, which provides, in substance, that where a person was delivered by a foreign government for the purpose of being tried for a crime for which he had been extradited, that he should be protected against lawless violence, until the final conclusion of his trial for the crime or offense specified in the warrant of extradition. §§ 5272, 5275, of U. S. Rev. Stats.

The English parliament also passed an act, known as the Extradition Act of 1870, S3 and 84 Viet., ch. 52, which provides, “That a fugitive criminal shall not be delivered up, unless by the law of a foreign country or by -agreement; he shall not be tried for any but the extradited offense, until he has an opportunity of returning to that country and the same protection from prosecution is secured in favor of fugitives delivered to that country."

Rauscher, who was a second mate on the American Ship Chapman, was extradited from Great Bridan to the United States upon the charge of having murdered, on the High Seas, a member of the ship’s crew by the name of Janssen. He was subsequently tried and convicted for a minor offense, namely, cruel and inhuman punishment of the same seaman. His conviction was obtained upon the identical facts proved in the extradition proceedings. The case was taken to the supreme court of the United States, which held that Rauscher was illegally convicted; that, under the treaty and laws of Congress, he could not be tried and convicted of any offense, except that for which he was extradited; even though the offense for which he was tried might be of a minor or less grade than the one for which he was surrendered.

Mr. Justice Miller, who delivered the opinion of the court, said : “That it was not intended that the treaty should be used for any other purpose than to secure the trial of the person extradited for one of the offenses enumerated in the treaty." He also said, “That if there was any doubt as to the construction of the treaty, the language of §§ 5272 and 5275 of the U. S. Rev. Stats, would be conclusive upon the courts, as to the right of extradited persons. That right, “he said,” as we understand it, is that he shall bo tried only for the offense for which he was delivered up, and that, if not tried for that, or after trial and acquittal, he shall have a reasonable time to leave the country before he is arrested upon the charge of any other crime committed previous to his extradition.

Mr. Justice Gray, in concurring in the decision of the court, based it upon the single ground, that, by the Act of Congress of 1869, the prisoner could not be tried for any other crime than the one specified in the warrant of extradition.

In Ker v. Illinois, 119 U. S. 443, it was held, that where an extradited person is brought to this country, he comes clothed with the protection which the nature of such proceedings, and the true consideration of the treaty gives him. One of the rights with which he was thus clothed, was that he should be tried for no other offense than that named in the warrant or extradition.

In the case of the People ex rel. Post v. Cross, 135 N. Y. 540 ; 48 St. Rep. 545, Judge O’Brien, in referring to the Rauscher Case, states the point very clearly. He said that when the United States took Rauscher, “its faith and honor was pledged, at least impliedly, to the effect that it would not permit its courts- to try him for any other offense, even though it might be of a lesser grade t-han that upon which he was surrendered.”

It appears, therefore, from these decisions, that the jurisdiction given by the treaty to the courts to try criminal offenders, is limited to the particular offense for which extradition may be had, and which is specifically designated in the warrant of extradition.

The learned district attorney contends, however, that the rule laid down in the Rauscher Case is not controlling in this case, for the reason that the crime of assault, with intent to murder, for which the relator was extradited, includes within itself the crime of assault in the second degree. This contention, in my judgment, cannot be maintained.

By § 278 of the Code of Grim. Pro., and indictment must charge but one crime, and in one form, except as provided in § 279. That section provides, that where the act complained of constitutes different crimes, such crimes may be charged in separate counts in the indictment.

* It is enacted by § 217 of the Penal Code, that a person who, with intent to kill a human being, assaults another with a loaded firearm or any deadly weapon likely to produce death, is guilty of assault in the first degree.

Section 218 of the Penal Code also provides, that a person who, with intent to injure another, may be found guilty of assault in the second degree, where the circumstances do not amount to the crime of assault in the first.degree.

The Code, therefore, makes a distinction between the crimes of assault in the first and second degrees.

The indictment in this case contains separate counts. The first count charges that Young, on the 31st day of March, 1893, at the city of Rochester, unlawfully and feloniously fired a loaded revolver at Herbert Guerin, with intent to kill, which constitutes the crime of assault in the first degree. The second count alleges the assault to have been made with intent to do bodily harm, which comes under the statutory offense of assault in the second degree. The two degrees of crime, therefore, are not blended together in one count; but they are distinctly and separately stated, so that the relator could have been tried on the first count only in the indictment.

The second count is based upon an entire absence of any intent to kill. The intent to kill is the distinguishing element or feature between assault in the first and second degrees. In order to justify a conviction of an assault, with intent to kill, it must appear from the evidence that if the assaulted party had died, the accused could be convicted of murder. To justify a conviction of assault in the second degree, the facts and circumstances must be so entirely different as not to amount to the crime of assault in the second degree.

The offenses are so entirely different in their character and severity of punishment, that, if the district attorney had abandoned the first count in the indictment, and the relator had been tried and convicted on the second count, there could, it seems to me, be no question as to the illegality of such a conviction, under the treaty. '

I am unable, therefore, to discover any sound reason for holding that an extradited fugitive may be tried for the extradited crime and convicted of a minor offense, for which he could not have been extradited.

The real object of extraditing Young was to secure his presence in court, for the purpose of trying him for the specified crime stated in.the warrant of extradition. To obtain his surrender, therefore, for the purpose of trying him for assault, with intent to murder, and then permitting the jury, against his protest, to convict him of an assault, with intent to do bodily harm, which is a minor offense, and one for which he could not have been extradited, is, in my opinion, a violation of the laws of congress, and the treaty between this government and Great Britain, as interpreted by the supreme court of the United States in the Rauscher case. The good faith of both countries, after having entered into a treaty naming certain crimes as the ones for which extradition may be had, demands that the extradited criminal shall not be tried, convicted or punished for any other crime or offense than the one for which he was extradited and named in the warrant of extradition.

When Young requested to be tried for the extradited crime, and for that offense only, the court, in my judgment, should have granted his request.

It was held in Ex parte Coy, 32 Fed. Rep. 911, that the relator had a right to claim exemption from trial upon any other charges than those mentioned in the extradition proceedings.

In the United States v. Watts, 14 Fed. Rep. 130, the court held that an extradited fugitive cannot be held to answer for an offense for which his surrender could not have been asked, and would not have been granted.

I am aware that the opposite view is maintained by Mr. Moore in his work on Extradition, vol. 1, § 171, published since the decision in the Rauscher case. He says, “ That the rule that an extradited person cannot be tried for an offense other than that for which he was surrendered, does not necessarily follow that the conviction and sentence must be for that crime and no other. Thus, if charged with the crime for which the extradition was granted includes within itself a charge of another, there appears to be no reason why, upon a trial for the crime as charged, there may not be á conviction for the lesser crime which it includes. But the trial,” he says, “ must be for the extradited crime, and it is only in case where, upon a trial for that crime conviction may be bad of another, because included in it.”

An opinion of the department of state, to the same effect, is found in a letter from Mr. Bayard, as secretary of state, to Mr. Essery, May 26, 1885. It appears, from the correspondence with the state department, that a man by the name of Henderson was extradited from the United States to Canada, on the charge of assault, with intent to commit murder. The indictment upon which the prisoner was tried contained two counts, one for assault with intent to kill, and the other for assault to do bodily harm. He was acquitted on the first count, and convicted on the second. The learned secretary, in his letter, says: “Were assault, with intent to do bodily harm, an offense entirely distinct from the assault, with intent to kill, then the question put in the petition, which accompanied your letter, might be considered ; but there is no variance between the two offenses. Under these circumstances, this department holds that there is no ground whatever for the intervention of this government in the matter.”

The views of so learned and able a writer on international law as Mr. Moore, and the opinion of so distinguished a lawyer and statesman as Ex-secretary Bayard, are entitled to great weight; but it seems to me that their opinions are in conflict with the reasoning of Mr. Justice Miller in the Rauscher case, and they certainly do not accord with my views.

My attention, however, has not been called to a case where the • precise question raised upon this motion has been decided by any of the state or federal courts. This question, therefore, may be regarded as novel, and not entirely free from doubt.

I have, therefore, reached the conclusion that the relator ought not to be discharged and permitted to return to England, until the general term shall have passed upon the legality of his conviction.

The writ of habeas corpus granted herein is quashed, and the relator is remanded to the sheriff of Monroe county, who is directed to enforce the sentence and judgment of the court of sessions.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    George Hayes, Resp’t, v. Linbonier R. Mestaniz, App’lt.

      (New York Superior Court, General Term,

      Filed July 2, 1894.)

    Bills and notes—Consideration.
    The surrender of a note, upon which defendant is not liable, is a sufficient consideration for a new note made by him.
    Appeal from a judgment entered oh a verdict directed by the court in favor of the plaintiff, and from an order denying a motion for a new trial.

      D. S. Ritterband, for app’lt; A. T. Goodwin, for appellee.
   Freedman, J.

—The complaint is upon a promissory note made by the defendant to the order of the plaintiff. Upon the trial, the defendant at once assumed the burden of establishing lack of consideration for the note sued upon. At the close of the evidence given by the defendant, both parties moved for the direction of a verdict. Neither claimed that there was any question of fact for the jury. The evidence not only failed to establish lack of consideration, but showed a sufficient consideration; namely, the surrender of a prior note, upon which other parties were liable, even if the defendant, who had indorsed the same, was not. This prior note came from the possession of the defendant, and was put in evidence by him. Under the circumstances, the verdict was properly directed for the plaintiff. The judgment and order should be affirmed, with costs.


author: McAdam,

text:
    The People ex rel. Patrick McClosky, Pl’ff, v. William S. Andrews, as Commissioner, etc., Def’t. The People ex rel. Patrick McNulty, Pl’ff, v. Same, Def’t.

      (New York Superior Court, Special Term,

      Filed September, 1894.)

    Municipal corporation—Officers—Removal.
    Drivers in the street cleaning department may be removed without a trial.
    Motion for writ of mandamus requiring the defendant to reinstate the relators as drivers and members of the uniformed force in the department of street cleaning.

      A. & C. Steckler, for relators; W. H. Clark and T. Connoly, for resp’t.
   McAdam,

—The act of 1892 (chap. 269, § 704b) provides that “ no member of the clerical force of the department of street cleaning shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity to make an explanation, and in every case of removal, the true grounds thereof shall be entered upon the records of the department. The commissioner of street cleaning shall have the power, in his discretion, on evidence satisfactory to him, that a member of the uniformed force has been guilty of any legal or criminal offense, or neglect of duty, violation of rules, or neglect or disobedience of orders, or incapacity, or absence without leave, or conduct injurious to the public peace or welfare, or immoral conduct, or any breach of discipline, to punish the offending party by forfeiting or withholding pay for a specified time, suspension, for a period not exceeding thirty days, or by dismissal from the force,” etc.

It will be observed that the language of the act carefully discriminates between a member of the “ clerical force ” and a member of the “ uniformed force ” by affording an opportunity to the former of making an explanation before dismissal, but dispensing with any such requirement in the case of the latter. As regards the uniformed force, it is left to the discretion of the commissioner on evidence satisfactory to him to determine whether a member of that branch of the department has been guilty of any of the acts before specified, and when satisfied of the guilt of such person the commissioner has the power, without affording the offender any hearing, to dismiss him at once.

Section 704a of the act expressly provides for the discrimination aforesaid by declaring that the members of the department of street cleaning shall be divided into two general classes, to be designated respectively the clerical force and the uniformed force.

The -act of 1894 (chap. 368) in no manner affects the power conferred by the act of 1892.

Members of the uniformed force take no oath of office, and are not officers in any' sense of that term, and, though required to pass a physical inspection, do not undergo a civil service examination, and are treated by the law as laborers rather than officials. If it were otherwise, it is difficult to see how discipline could be enforced. I

McClosky is charged with striking a horse with a heavy whip, and with being at work without the prescribed uniform and badge ; and McNulty’s offence is that he drove at a high rate of speed a team of horses attached to a heavy truck loaded with steel cans. Bach of these matters constitutes a breach of discipline, and charges having been made to the commissioner by other officials of the department, the commissioner, by virtue of the authority vested in him by law, inquired into the accusations, and, the evidence being satisfactory to him, he summarily discharged the offenders. This he had a legal right to do. Hence, the relators were legally discharged, and have no cause for reinstatement.

The applications for writs of mandamus must, therefore, be denied, without costs.


author: White, J.

text:
    Buffalo Ice Company, Resp’t, v. Wesley A. Cook, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July 18, 1894.)

    1. Appeal—Order denting new trial.
    Unless the order denying a motion for a new trial recites the ground of motion, the facts cannot he reviewed on appeal therefrom.
    2. Pleading—Assignment.
    An assignee cannot recover on his claim unless the assignment is alleged and proved.
    Appeal from a judgment entered upon a verdict in favor of plaintiff and from an order denying a motion for a new trial on the minutes.

      Adolph Rebadow, for app’lt; Frank Gibbons, for resp’t.
   White, J.

—William L. Markham was carrying on the ice business in Buffalo during the year 1891, and until September 10, 1892. The defendant was one of his customers, and was supplied by him with ice to that date. By the verdict of the jury, it is established as a fact that Markham was to receive, and the defendant was to pay him, ten cents per hundred. On August 31, 1892, Markham gave to the plaintiff an option to purchase his ice business. The plaintiff availed itself of the option thus given to it on September 10, 1892, on which date the business was transferred to it by Markham, by a bill of sale which included an assignment of his claim against the defendant for ice theretofore delivered during the ten days in September. After September 10th, the plaintiff supplied the defendant with ice. The value of the ice supplied by Markham during the ten days in September was $20.75.

As the order denying the defendant’s motion for a new trial does not recite the grounds upon which the motion was made, the appeal from the order raises no question of fact for-review. Pharis v. Gere, 107 N. Y. 231; 11 St. Rep. 393 ; Moorehead v. Holden, 7 Civ. Pro. Rep. 188; Maas v. Ellis, 12 id. 323. The only question presented for our consideration, therefore, arises upon the defendant’s exception to the refusal of the court to charge the jury, and to rule, that the ice business was transferred by Markham on September 10th, and that the ice supplied to the defendant to September 10th was so supplied on his own account, and that for such ice the plaintiff was not entitled to recover. There can be no dispute but that the facts were as the defendant requested the court to charge them to be. The plaintiff contends that, notwithstanding the fact that the plaintiff must recover the $20.75, if at all, by virtue of the assignment from Markham, the assignment is unimportant, for the reason that “ it is only one link in the chain of his title.” As to that part of the claim, the plaintiff was entitled to recover only as the assignee of Markham, and no assignment is alleged or proven, nor was any request made to amend the complaint in. this respect on the trial, although it was made apparent that it was necessary. In such a case the recovery must be supported by the complaint

The judgment appealed from should be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff stipulates to reduce the verdict, and the judgment entered upon it, by $20.75. If he so stipulate, the judgment should be affirmed, without costs to either party on this appeal, but with costs in the action to be adjusted.


author: White, J. Titus, Ch. J.

text:
    Juliette C. Smith, Resp’t, v. George E. Matthews et al., App’lts.

      (Buffalo Superior Court, General Term,

      Filed July, 1894.)

    1. Appeal—Charge.
    The only remedy for any omission to instruct the jury fully or any assumption of facts not warranted by the evidence, is an exception to a refusal to supply omission or to correct the false assumption.
    2. Same.
    Where the instruction, excepted to, is such that prejudice may have resulted therefrom to the exceptant, the judgment will be reversed.
    Appeal from an order denying motion for a new trial on the minutes and from a judgment entered in favor of the plaintiff on the verdict of a jury.

      Charles B. Wheeler, for app’lts ; B. Frank Dake, for resp’t.
   White, J.

—The defendants are proprietors of two newspapers published in this city, known as the Buffalo Morning Express and the Buffalo Illustrated Express. The Morning Express is issued daily at about five o’clock, in the morning, and had a circulation of about 8,000 papers, while the Illustrated Express was issued weekly in four parts, known as the A, B, C and D editions, and had a, circulation of about 7,000 papers. The A edition was issued on Friday afternoon and about 1,000 papers of that editioú were sent to Toronto, Ganada, where the plaintiff resided, for sale by newsdealers and by boys in the streets on Saturday. None of the B, 0 or D editions were sent to Toronto by the defendants for sale. The B edition was issued in the forenoon, and the 0 edition in the afternoon of Saturday, and the D edition was issued Sunday morning. Of the daily or Morning Express six papers were sent by the defendants to Toronto, three to exchange, two to a newsdealer for a customer of his, and one to a public library.

On June 14 and 15, 1890, the defendants published a libel upon the plaintiff in all the editions of their two newspapers, except the A edition of the Illustrated Express. The publication was .made under the direction of an editor in their employ who had authority in his discretion to publish or refuse to publish the libelous article, which was received by him in the usual course of the defendants’ business in the evening of June 14,1890, at about ten o’clock in the evening. The defendants had no personal knowledge or information concerning the receipt or publication of the obnoxious article at the time, and only learned the fact when this action was begun. Immediately upon their attention being called to it, they investigated the matter, satisfied themselves that injustice had been done the plaintiff, and caused a retraction and apology to be published in all their papers which contained the libel.

It is conceded by the plaintiff that neither the defendants nor any one in their service, or for whose acts they were responsible, were moved by actual malice in the publication of the libel, but there was evidence in the case which would warrant an inference of reprehensible negligence on the part of the defendants in having failed to make any effort to ascertain the truth or falsity of the libelous article before it was published, it appearing from the testimony of the editor himself, who directed the publication to be made, that with but little trouble and at a trifling expense he could have learned of the falsity of the article before it was published.

It is urged by the defendants that the order and judgment appealed from should be reversed on the ground that the trial court in its charge to-the jury failed to comment with sufficient emphasis and definiteness upon the extenuating facts and circumstances in the case, notably the fact that the article complained of had been received by the defendants from an association of high character and repute, engaged in gathering and furnishing the press of the country with items of news for publication, and that the article in question came to them in the usual course of business, and -had in fact been already published in other newspapers in Chicago and New York, and that the subject-matter of the article was already common gossip on the streets and in the clubs of Toronto ; and it is further alleged that the court assumed and authorized the jury to find facts not warranted by the evidence, beside that of actual malice, which will be discussed hereafter.

If we were to assume that the learned counsel for the appellant is right on this point, it would not constitute reversible error. No -exception was taken by him to the charge in these respects, nor was any request made by him for a modification or correction of the charge in these particulars.

The purpose of the charge was, of couse, to lay before the jury an impartial statement of the whole case, but for a simple failure on the part of the court in the respects complained of, if the complaint were well founded, an appellate court should not reverse a judgment. It is well settled that for any omission on the part of the trial court to fully instruct the jury, or for any assumption by the court of facts not warranted by the evidence, the only remedy is an exception to a refusal to supply the omission or to correct the false assumption at the request of the party aggrieved at the time the error is committed. Harris v. Northern Ind. R. R. Co., 20 N. Y. 232, opinion of Selden, J., at page 239 ; Graser v. Stellwagen, 25 id. 315.

It is urged in this connection by the appellants that ihe vt rdictis excessive and that the jury was unduly influenced to make it so by the language of the court in its charge. In order to justify this claim it should appear that the jury was, actuated by passion, prejudice or corruption, and the verdict must strike the mind as extravagant and exorbitant and, under the circumstances of the case, outrageous.

In the light of such well-considered cases as Enos v. Enos, 135 N. Y. 609 ; 48 St. Rep. 392; Scott v. Sun Printing & P. Assn., 74 Hun, 284; 56 St. Rep. 419 ; Alliger v. Brooklyn Daily Eagle, 25 St. Rep. 330; 6 N. Y. Supp. 110 ; Smith v. Sun Printing & Publishing Assn., 55 Fed. Rep. 240, the verdict iu this case should not be set aside as excessive.

When the court had completed its charge to the jury in the first instance the defendant’s counsel requested a further charge to the effect that “ unless the defendants were moved by actual malice ” in the publication of the libel the jury should not award damages to the plaintiff by way of punishment, whereupon the court, addressing the jury, replied : “Yes, I charge you they must be moved by actual malice; but you may find actual malice if you find they failed to make an investigation as to the truthfulness of the charge.”

To which ruling and charge an exception was taken by the defendants.

It cannot be questioned but that the meaning of the charge thus excepted to does and was understood by the jury to embrace two propositions, viz.: (1) That in order to justify exemplary damages the defendants must have been moved by actual malice toward the plaintiff in publishing the libel, and (2) that the jury might find actual malice from the neglect of the defendants to investigate as to the truthfulness of the libelous article before it was published. Nor can it be questioned, I think, that both propositions were erroneous in law, because it was conceded by the plaintiff that there was no actual malice, and the court had already so charged, and there was no evidence in the case upon which actual malice could be predicted. As to the other proposition thus charged by the court, it was erroneous, because the evidence was such as to justify exemplary damages, notwithstanding there was no actual malice. Alliger v. Brooklyn Daily Eagle, 25 St. Rep. 330; 6 N. Y. Supp. 110.

In its relation to cases like the one at bar malice is either actual or implied, but the distinction between malice actual and implied is vital and lies at the foundation of the true measure of damages ; the first is to be presumed only in cases where there is an intent or active purpose to injure, or where the wrongful act proceeds from ill-will or hatred ; the second exists irrespective of the intent or motive or state of the feelings where the wrongful act is intentionally done without just cause or excuse.

The first erroneous proposition in the erroneous charge now complained of was advanced as a principle of law applicable to the case at the special request of the defendants’ counsel, and the second proposition was volunteered by the court.

The plaintiff now invokes the rule of practice which provides that a party who requests the court to charge an erroneous proposition of law cannot be heard thereafter to dispute its correctness to the prejudice of his opponent, and the further rule that where a portion of a complete charge is erroneous and a portion is correct, an exceptant can derive no benefit from a general exception to the whole; that the only way in which an exceptant can secure any benefit to himself under such circumstances is by excepting only to the erroneous portion. The rules invoked by the plaintiff are firmly established and need no citation of authority in their support. The purpose of an exception to an erroneous charge or refusal to charge by a trial court upon a question of law is to enable an appellate tribunal to pass upon the correctness of the ruling or decision complained of, and to that end it is incumbent upon the party who complains of the ruling in the court below to make his exception explicit and in such a manner as to present the very point in issue. If parties were permitted to deliberately lead the court into error, or to remain silent when error is committed, and then have their cases reviewed on theories and assumptions other than those adopted and acquiesced in by them upon the trial, and to raise and discuss questions before appellate tribunals never tried or thought of until after an adjudication against them, the confusion and uncertainty now prevalent even in the highest courts would be greatly increased. Good faith requires that a litigant who claims to be prejudiced by a ruling of the court shall at once call attention to the fact by apt language, to the end that if an error has been committed it may be corrected or put in shape for review on the spot, and that is why the rules of practice invoked by the plaintiff exist. It is also well settled that an appellate tribunal will not exercise its ingenuity to find, and that it will not seize upon isolated portions of a charge to a jury for the purpose of discovering errors upon which to base a reversal, but will look to the charge as a whole, and if it shall appear reasonably certain that the jury understood and adopted the correct rule of law in arriving at their verdict, although there may have been harmless error in the charge, the court will refuse to disturb the verdict. Hickenbottom v. Delaware, L. & W. R. R. Co., 122 N. Y. 91; 33 St. Rep. 312.

The case at bar seems to me to be clearly distinguishable, however, from any case which I have been able to discover wherein the rules invoked by the plaintiff as a reason why the judgment appealed from should be allowed to stand have been applied. In the case at bar it may be assumed that the defendants are precluded from taking any advantage of that part of the charge in which the court instructed the jury that in order to award exemplary damages they must find that the defendants were m'oved by actual malice. The remaining portion, which authorized them to find actual malice in fact, was entirely distinct from and independent of that portion of the same charge which preceded it; both portions were erroneous, and so the case here is not one where portions of a complete charge are correct and other portions thereof are incorrect, and it is to such a case only, or to one where the apparently conflicting instructions could not have misled the jury, that the rule invoked has ever been applied. The charge excepted to was not a portion of the main charge, but stands in the record disconnected from and independent of it. Nor can it be said with reasonable certainty that the jury did not base their verdict upon actual, as distinguished from implied malice. In the case before us, accurately speaking, the reason of the rule invoked fails, and in such a case the rule itself has no application.

It is true that we are required, as is well said in Losee v. Buchanan, 51 N. Y. 476, to examine and consider the charge as a whole, and if, from its whole scope and taking it altogether, it presented the questions of law fairly to the jury so as not to mislead them, exceptions to separate propositions in it, or to detached portions of it, should not be upheld. If the language of the charge were capable of different constructions, that construction should be adopted which would lead to an affirmance of the judgment appealed from. But where the instruction excepted to is such that prejudice may have resulted therefrom to the exceptant, a reversal is inevitable.

The instruction of the court in this case authorizing the jury to find actual malice was not consistent nor in harmony with other portions of the charge on the same subject, and may have influenced their verdict to the prejudice of the defendant, and, therefore, the judgment and order appealed from should be reversed and a new trial granted, with costs to abide the event.

Titus, Ch. J.

—I concur with my associate in the conclusion reached by him, that the judgment in this case must be reversed. Ho complaint is made by the learned counsel for the defendants that the case was not fairly submitted to the jury by the court. A careful reading of the charge satisfies me that the claims of the parties were clearly and correctly stated to the jury, and the law correctly laid down. In fact, no complaint is made of the charge either as to the statement of fact or law, but in the statement to the jury, in response to the request of the defendants’ counsel to charge, I think error was committed. Although the court had previously told the jury that no actual malice was claimed by the plaintiff or was shown by the evidence, yet the statement, when the case was finally submitted to the jury, that “you may find actual malice if you find they failed to make an investigation as to the truthfulness of the charge,” which is conceded tobe erroneous, may have led to some confusion in the minds of the jury as to what the law was, and influenced their verdict in the amount of damages given. I think, therefore, a new trial should be ordered, with costs to abide the event.

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


author: Pryor, J.

text:
    In the Matter of Sawyer, Wallace & Company. In the Matter of Gustave Muller.

      (New York Common Pleas, Special Term,

      Filed May 15, 1894.)

    Assiusmeut tor creditors—Wageis—Preference.
    Where a contract provided that an employe should receive a certain salary and a percentage of the profits of the business, if they should amount to a certain sum for Ihe year, but the employer, before the year expired and the specified amount of profits were realized, terminated the contract of employment, the employe is entitled to a preference for the percentage of the profits, as for wages due.

      Motion to confirm the referee’s report.
    The claimant, Gustave Muller, had. been for upwards of five years, and was at the time of the execution of the assignment, an employe of the assignors. His employment since May 1, 1890, had been under a written contract, which provided that he should continue in charge of what was known as the “ Petroleum Department ” of the assignors’ business for one year from May 1, 1890, and should receive a salary of five thousand dollars per annum, and additional compensation equal to 7-|- per cent, on the net profits of the business in his charge, provided such net profits amounted to not less than $20,000 for the year. There was no provision for payment by installments, but the contract was entire,—for one year’s services for the stipulated compensation. On September 4, 1890, the assignors failed, and made a general assignment for the benefit of their creditors. The net profits made by Muller up to that date on all business in his charge, then wholly completed and closed, amounted to $10,628.87. All transactions then entered upon, but unclosed, were included in a separate arrangement made by Muller with the assignee, whereby he went on and completed them as the employe of the assignee, and they were eliminated from the account of Muller with the assignors. Muller thereupon presented to the assignee his claim for a balance of salary unpaid at the date of the assignment, as a preferred claim rejected for that reason. The claim was tried before John Yard, Esq.,-—a referee appointed to hear and determine disputed claims; and he found that the account of Muller with the assignors, at the time of the execution of the assignment, stood as follows:
    Guaranteed salary, at the rate of $5,000 per annum, for four months and four days, from May 1,1890,
    to September 4, 1890,........................ $1,721 41
    Contingent salary on profits realized up to September 4, 1890, being equal to 7-|* per cent, on $10,628.87.................................. 797 16
    Making a total of guaranteed and contingent salary,
    at the date of said assignment, of............... $2,518 57
    That of this amount there had been paid to and received by said Muller, prior to the date of said assignment.................................. 1,860 39
    Leaving a balance unpaid at the date of said assignment of..................................... $658 18
    The referee found that Muller had a valid claim against the assigned estate for $658.18, but that it was not a preferred claim, nnder the statute, for the reason that it was not actually owing at the time of the execution of the assignment. Exceptions were filed on behalf of Muller, and a motion was made on behalf of the assignee to confirm the report, and overrule the exceptions.

      Cardozo & Nathan (Edgar J. Nathan, of counsel), for assignee; Eugene Frayer, on behalf of the claimant.
   Pryor, J.

—Obviously, the percentage of profits was as essentially a portion of Muller’s “wages” or “salary” as the $5,000. Ol' this percentage, the referee finds that, at the date of the assignment, Muller had earned $658.18. By the act of the assignors in terminating the contract, they prevented the contingency which might have made Muller’s percentage more or less, or nothing, and fixed it at this sum. By the act of the assignors in terminating the contract, which would have postponed payment till the end of the year, this sum instantly became due and payable, and is recoverable by action, with interest from the date of the assignment. In ever sense of the word, it was actually owing to Muller. The statute is “a beneficent as well as a remedial' provision, and should be liberally construed, so as to meet a wrong and advance the remedy which the legislature had in mind.” In re Heath, 46 Hun, 114; 11 St Rep. 627. Motion denied, with costs.


author: Clement, C. J.

text:
    The People ex rel. William T. Noonan, Pl’ff, v. Halsey Corwin, as Comptroller, etc., Def’t.

      (Brooklyn City Court, Special Term,

      Filed May 24, 1894.)

    1. Municipal corporations—Clerks—Salary.
    The head of a department in the city of Brooklyn may increase the salary of a clerk at any time, so long as he keeps the expenses of his office within the amount allowed by the board of estimate.
    3. Same—Extra services .
    Where certain clerks are paid for copying by the folio instead of salary as was previously done, the compensation for such work out of office hours is an increase of salary and not pay for extra services.
    Application for writ of mandamus -to compel comptroller to sign a warrant payable to the order of "relator.

      Johnson & Lamb, for relator; A. G. McDonald, for resp’t.
   Clement, C. J.

—The relator applies for a writ of mandamus compelling the respondent to sign a warrant to the order of the relator, as compensation for extra services performed by him in the department of assessment, in June and July, 1893. His claim is not in conflict with the rules of the civil service commission. .It must be assumed, as a general principal of law, that an officer in the employ of the city, receiving a fixed salary, cannbt be paid for extra work, even though performed after office hours. The claim of the relator was submitted by the comptroller to the former corporation counsel, who held that the same could not be paid. As I understand, it was submitted to him as a claim for extra pay only, and he very properly followed the rule of law before stated, and reccommended its disallowance. It now appears that the claim is not for extra pay, but for an increase of salary which was allowed by the president of the department of assessment before the performance of the work. It therefore follows that my conclusion in this matter in no wise overrules the opinion of Mr. Jenks. On the contrary, I hold that he was right, on the facts before him.

Under the charter of this city (title 3, § 1), heads of departments may appoint and remove their clerks, assistants, and other subordinates, “and fix their salaries.” By § 18 of title 2, the board of estimate fixes a certain amount to be raised for the use of each of the several departments for the ensuing year. If the board sees fit to itemize the account, the head of department is not bound to make his salary list and expenses conform to such items, but each head must see that the total expenses of his department does not exceed the amount fixed by the board of estimate. There is no time named in the charter when the head of department shall fix the salaries for his clerks and subordinates. I see no legal reason why the president of the department of assessment may not increase the salaries of his clerks during the month of July and August, or during any other month of the year, provided he keeps the expenses of his office for the year within the amount allowed by the board of estimate. It is clear that the work of copying the tax rolls should be performed by men who are familiar with books of that description, and who can be trusted. If this application should be denied, I infer that the work for the coming year will have to be performed by extra clerks, who are appointed for a period of only thirty or sixty days, and who have had no experience in work of that kind. It might result, if the rolls are copied by an unskilled force of clerks, that the tax levy, or a portion of it, for the year 1894, would be in peril. The rule of law that an employe of the city v:ho receives a fixed salary cannot be paid for extra services has no application to the facts of this case. The president of the assessment department had the power to and did increase the salary of the clerks employed in copying the tax rolls. He determined that, for such employment, they should be paid at the rate of 10 cents per folio, and that their salaries should be increased by the amount they earned while so employed. The motion for a writ of peremptory mandamus is granted, without costs.


author: Stern, S.

text:
    In the Matter of the Last Will of Katharine Backes, Deceased.

      (Supreme Court, Erie Special Term,

      Filed August, 1894.)

    Will— Cohstruction—Bequest for masses.
    A direction in the will of a Roman Catholic appropriating a reasonable amount of money in offering masses for the remission of her and her deceased husband’s sins, is valid.
    Probate of will.

      Frederick W. Ely, for petitioner; George T. Hogg, for Jacob Backes; Frederick G. Bagley, for Peter, Nicholas and Joseph Backes, Barbara Neuner and Margaret Beyer.
   Stern, S.

—Katharine Backes died in Buffalo, R Y., on the 2d day of January, 1894, aged seventy years. She left surviving seven children, the youngest of whom is over thirty years of age. Prior to the making of her will she divided $1,200 among her children. After making such division, she had left about $250 cash. She made her will in August, 1891. It provides that her daughter Katharine should take the property, excepting her cash money. It directs her executors “ to cause masses to be read in a German Catholic church in the city of Buffalo, for herself and her deceased husband, for any balance of cash money which might be left.after the payment of her just debts, doctor bills and funeral expenses.” The will further makes it known that prior to the execution thereof she had paid to each of her seven children $171.40. All her children except Katharine object to the probate of the will. The evidence shows that all the formalities required by law were complied with, and that at the time of the execution of the instrument the testatrix was of sound mind, memory and understanding. The objections must, therefore, be overruled and the will admitted to probate.

In Gilman v. McArdle, 99 N. Y. 451, Judge Rapallo says: “In this case the agreement was to expend the surplus, if any should remain after providing for the support of Mrs. Gilman and her husband, and their funeral expenses and monument, in procuring certain masses to be solemnized according to the ritual of the Roman Catholic church, of which they were members, a duty quite definite and easy of performance on payment of the customary charges. We concur with the court below in holding that there was nothing illegal in the purpose, nor can any person rightly complain that it involved any injustice. The money was her own. She disregarded no ties of kindred, for she had none, and she undertook to devote her little accumulations to the benefit of herself and her aged husband so long as they might live; and so securing them a becoming burial, to be followed by those religious ceremonies which, according to their belief, were important.”

In Holland v. Alcock, 108 N. Y. 329; 14 St. Rep. 761, the same judge says : “ The efficacy of prayers for the dead is one of the doctrines of the Roman Catholic church, of which the testator was a member, and those professing that belief are entitled in la# to the same respect and protection in their .religious observances thereof as those of any other denomination. These observances cannot be condemned by any court, as matter of law, as superstitious, and the English statutes against superstitious uses can have no effect here. Const. U. S. amendment, art. 1 ; Const. of N. Y., art. 1, § 3.”

Judge Cullen, in a case before him, reported in the N. Y. Daily Reg., January 29, 1886, and quoted in 40 Hun, 372, says: “ I think a provision for masses for the benefit of the testator’s soul is exactly akin to a provision for his funeral or monument. While decent burial is given by law nut of even an insolvent’s estate, I think the monument is no more an adjunct or concomitant of burial than the masses.”

It would be useless to cite other authorities on this question; the views above expressed are ample and sufficient.

Had the testatrix died leaving only the $250 cash to pay her debts, doctor’s bills, funeral expenses and masses for the repose of her and her deceased husband’s souls, it is not likely that her children would or could have made any objections, because the appropriation would have been in accordance with her station in life. But it now happens that, instead of.the last-mentioned amount, she had $900 cash. The intention of this was very plain. Having reached the age allotted to mankind, and being warned of approaching death, she divides her property among her childred, retaining about $250, enough in her judgment to pay her debts and funeral expenses and to defray the charges for the solemnization of masses for herself, and remembering her husband, who has gone before her, she has the sacred rights of the church administered in his behalf. The intent of the testator is the rule of construction. Whenever the expressed intention can be ascertained the court must carry it into effect, provided it can be done without doing violence to some rule of law.

In Emans v. Hickman, 12 Hun, 425, the testator gave to his executor all his property, amounting to about $1,200, for his funeral expenses and monument. The court, in construing the effect of this appropriation, held that the deceased did not intend to give all, but only such an amount to be expended for a monument as would be reasonable, and accordingly allowed $150 for that purpose.

In Matter of Boardman, 46 St. Rep. 444, the" testator provided that after the payment of his debts the balance of his real and personal property should be expended in the building and erecting of a monument, together with suitable fence and fixtures. The surrogate held the true construction to be that a reasonable amount should be expended for that purpose, and allowed $500. It is fortunate that her property increased, otherwise the litigation of her children over her will would undoubtedly have swallowed up the money and the court would have been unable to carry out the intentions of the deceased, which are always more sacred than the wishes of the living.

The testatrix was a member of St. Mary’s Eoman Catholic church. She had a right to appropriate a reasonable amount of her money in offering masses for the remission of her and her deceased husband’s sins. The direction to her executor to have the masses said in a German Eoman Catholic church in Buffalo is not indefinite. The deceased could not have intended any other than a German Eoman Catholic church. There is no difficulty in carrying out.the direction of the testatrix.

I decide that the direction contained in the will for the masses is valid. That the executor expend for masses the amount intended by the testatrix, which is the difference between the sum of $250 and the amount of her debts and funeral expenses. The residue of her cash money, amounting to about $650, must, after the payment of the necessary expenses of the administration of her estate, be distributed as though she died intestate.

Decreed accordingly.


author: Coffin, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Theodore Tompkins, as Surviving Exec’r of John Purdy, Dec’d.

      (Surrogate’s Court, Wesctchester County,

      Filed July 14, 1894.)

    Will—Legacies—Payment.
    Legacies, directed to be paid out of converted real estate, must be paid in full without any deduction for expenses of administration or commissions, provided there is other personal property sufficient to pay all legacies in full, besides such expenses and commissions.
    The testator bequeathed all his household furniture to his widow. He then devised a certain parcel of land to his son, Stephen L. Purdy, and next provided as follows:

      “Third. I order and direct my executors hereinafter named, within one-year after the probate of this my last will and testament, to sell or dispose of, either at public or private sale, the remainder of that piece or parcel of land, situate in Yorktown in said county, which was conveyed to me by Jacob Tompkins and wife by deed dated April 15, 1865. * * * Out of the proceeds of such sale I direct my executors to pay and discharge all my just debts and funeral expenses, and the surplus thereof I give and bequeath to my wife Eliza Ann, my son, Stephen L. Purdy, and my daughter Tamar Ann Bedell, in equal parts.” By the next clause he gave, devised and bequeathed to his executors all the rest and residue of his real and personal property in trust for certain specified purposes. The above-named parcel of real estate was sold for $1,500. The debts and funeral expenses paid therefrom amounted to $180.58. The personal estate," other than the household furniture bequeathed to the widow, was abundantly sufficient to pay all of the expenses of administration, including commissions, but the executor claims that the $1,500, less the $108.58, should pay its proportional share of them.

      D. W. Travis, for executor; Lent & Herrick, for James B. Arcularius, assignee of Tamar A. Bedell, legatee.
   Coffin, S.

—A testator may, at his option, give land or the proceeds of the sale of land. Here'his will converted the land into personalty one year from the time of his death, and the proceeds of the sale were given by him to his widow and two children, share and share alike, less the sum of his debts and funerdl expenses. Thus he gave them residuary legacies. Deducting the amount of the debts and funeral expenses from the $1.500, for which the land was sold, left a balance of $1,319.42, each one’s share being $439.81. Thus it was, in effect, a legacy of that amount to each one. And legacies must be paid in full, without any deduction for’1 expenses of administration or commissions, where there is other personal property sufficient to pay all other legacies in full, besides such expenses and commissions. Such is the well-settled rule. The executor, however, having sold the land and paid the debts and funeral expenses, will be entitled to his commissions on the proceeds of sale out of other funds of the estate, on paying the legacies mentioned to the parties entitled thereto. Ordered accordingly.


author: Coleman, S.

text:
    In the Matter of Proving the Will of Lavinia (Donkersley) Coburn, Deceased.

      (Surrogate’s Court, Orange County,

      Filed July, 1894.)

    1. Will—What law governs.
    The law of a testator’s domicil at the time of his death governs as to the validity of his will.
    2. Same—Revocation—Marriage.
    Will, wherever executed, of an unmarried woman, residing in this state at the time of her death, is revoked by her subsequent marriage.
    Proceedings for probate of will.

      M. N. Kane, for proponent; W. D. Mills, for husband, contestant.
   Coleman, S.

—The testatrix on the 10th day of June, 1884, being at the time a resident of the state of New Jersey and an unmarried woman, made her will. On the 22d day of June, 1884, being still a resident of the state of New Jersey, she married Bartholomew Coburn, also a resident of that state, and they continued to reside in that state until the year 1889, when they removed to the town of Monroe, in the state of New York, where the testatrix died, without children, leaving her said husband her surviving. That will is now here offered for probate.

The husband objects upon the ground that, by the law of the state of New York, the will was revoked by the marriage of the testatrix subsequent to its execution. 2 B. S. 64, § 44. That statute reads as follows: “A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage.”

In answer the proponent urges : (1) That as the will was executed in the state of New Jersey by a resident of that state, and the subsequent marriage contracted in that state between residents thereof, the effect of the marriage upon the validity of the will must be determined by the laws of that state; (2) that by the law of the state of New Jersey the subsequent marriage did not invalidate the will (Webb v. Jones, 36 N. J. Eq. 163), and (3) that' the will not having been invalidated by the subsequent marriage it remained valid after the removal to this state, and should be ad mil tad to probate. § 2612, Code Civ. Proc. That section conmins the following: “The right to have a will admitted to probate, the validity of the execution thereof, or the validity or construction of any provision contained therein, is not affected by a change of the testator’s residence made since the execution of the will.” , 0

Is the proponent correct in this position? Or does the law of this state work a revocation of all wills, wherever executed, of unmarried women who subsequently marry so that they are invalid and cannot be admitted to probate in this state? This would seem to be the case, but I have been unable to find any case reported where this question has arisen.

Section 2612 does not go the extent of declaring that the validity of a will is not affected by change of .the testator’s residence made since the execution of the will, but only says that the right to have the will admitted to probate, the execution thereof, or the validity or construction of any provision contained therein is not affected by such a change of residence. The preceding language of the section, “A will of personal property executed according to the laws of the testator’s residence,” etc., indicates that this right is not an unqualified right, but is a right which is given becáuse the will has been executed in conformity with the laws of the state of the testator’s residence at the time of its execution. I think it would not, be claimed that this section gives the right to have a will admitted to probate which had been executed by a person fifteen years of age in the state where the laws of that state (if there was-such a state) permitted such a person to make a valid will. Nor do I think it would allow a will to be admitted to probate where the testator had done an act, wherever done, which, by the laws of this state, is declared to be revocation of the will.

The law of decedent’s domicile at the time of death governs and gives effect, or otherwise, to his will. If Mrs. Coburn had died a resident of the state of New Jersey her will would have been admitted to probate there as valid, and undoubtedly such personal property as was in this state could have been administered according to the will under ancillary letters issued in this state. But it is not true that, having made her will in New Jersey while a resident there, her will should have the same effect now and here as it would have had if she had been resident there at the time of her death. The case of Braithwaite, 19 Abb. N. C. 113 ; 10 St. Rep. 170; In re Witter, 15 N. Y. Supp. 133 ; Trimble v. Dzieduzyiki, 57 How. Pr. 208.

In the case of Braithwaite, 19 Abb. N. C. 113 ; 10 St. Rep. 170, the testator, being a resident of this state, duly executed his will at Rochester, bequeathing all his property to his children and grandchildren. He afterward married here and subsequently removed to the state of Maryland and died a resident of that state. The will was admitted to probate in the county of Monroe in this state. By the law of Maryland the widow of a man who dies leaving a will in which she is unprovided for takes one-third of his personal property after the payment of debts, etc. It was held that the will was revoked as to the one-third by the testator’s removal to and death in the state of Maryland, his estate having thereby become subject to the law of that state." In re Witter, 15 N. Y. Supp. 133. is a case of very similar character. And in the case of Trimble v. Dzieduzyiki, 57 How. Pr. 208, it was held, upon the distribution in New York of the estate of a woman who had died domiciled in Italy, leaving a son. born in Italy after the execution of her will there, that the son was entitled as “ necessary heir” to one-half of the real and personal estate, notwithstanding that the property was held in the state of New York under a trust created by the testatrix in an ante-nuptial agreement in which the right to make a testamentary disposition was reserved to her, and that she had executed a will by which all was given to her husband, executed, however, before the birth of the son.

The principles maintained in these cases go further than establishing the rule by which the domiciliary law governs the disposition of personalty; they also prove that this law overrides previously existing conditions by which a different result would have obtained.

A will is ambulatory not only in being subject to revocation and alteration, but in being incomplete and inchoate. 1 Before rights can be acquired under it the testator must die, and at the time of his death the will must be valid under the laws then existing. Moultrie v. Hunt, 23 N. Y. 398. And this I suppose to be true whether a change in the law has occurred by legislation or by removal to another state where different laws exist.

1 am of the opinion that this will was revoked by the subsequent marriage of the testatrix and should not, therefore, be admitted to probate.

Decreed accordingly.


author: McLaughlin, J.

text:
    Morris Kusselewskey, Resp’t, v. Samuel Fabricant, App’lt.

      (Essex County Court,

      Filed April, 1894.)

    Justice’s coubt—Verified complaint—Judgment by default.
    The plaintiff, in an action for deceit, cannot recover without proving his case, though his complaint is verified and the defendant fails to appear.
    Appeal from a judgment rendered in favor of plaintiff on the verified complaint.
    The complaint alleges as a cause of action:
    That on the 6th day of November, 1893, at the village of Keeseville. New York, the defendant, with intent to deceive and defraud the plaintiff, induced plaintiff to sell him, the said defendant, goods and merchandise, to wit, dry goods and men’s clothing, falsety, fraudulently and unlawfully representing to plaintiff that he, said defendant, was solvent and worth in cash on hand $200, and in dry and dress goods the sum of $600, and debts standing out about $200, and a horse and wagon, over and above all his liabilities. That plaintiff, relying on said representations so made by defendant, and believing the same to be true, was thereby induced to and did sell to the defendant certain goods, wares and merchandise, namely, dry goods, dress goods and men’s clothing, at the time and place above mentioned, at the agreed price and value of $180. That said representations so made by defendant were false, fraudulent, untrue and unlawful in each and every particular, and were then known to defendant to bo false, untrue and unlawful. That no part of the same has been paid, except the sum of $100, and none of said goods have been returned to plaintiff, and to plaintiff’s damage $80. Wherefore, plaintiff demands judgment against defendant for $80, besides the costs of this action.

      A. W. Boynton, for app’lt; E. T. Stokes, for resp’t.
   McLaughlin, J.

—I think this judgment should be reversed, because the cause of action set out in the complaint is clearly one to recover damages for fraud or deceit. It was so understood by the justice who rendered the judgment; otherwise, he would not have rendered a judgment against the person of the defendant. Section 2891 of the Code of Civil Procedure provides that, “if the defendant fails to appear and answer, the plaintiff cannot recover without proving his case.’’ The defendant did not appear, and no proof whatever was offered. The respondent's counsel conceded, upon the argument, that this would call for a reversal of the judgment, except for the fact that no proof was required, inasmuch as a verified complaint was served, and that the plaintiff was entitled to a judgment without any proof, by virtue of chapter 414 of the Laws of 1881. This statute provides that in any action arising on contract for the recovery of money only, or on an account, the plaintiff may serve upon the defendant with the summons a copy of the complaint, verified, as in the supreme court, and, unless the defendant files a verified answer, the justice must render a judgment in favor of the plaintiff for the amount claimed in the complaint, with costs, without putting the plaintiff to any proof. The action is obviously one that does not fall within th,e provisions of the statute- referred to. It is not an action to recover a judgment “on a contract for the recovery of .money only, or on an account.” Plaintiff,claims to have suffered damage by reason of the fraud practiced upon him by the defendant, and he could not obtain the judgment without proving the fraud. The justice, therefore, was not authorized to render the judgment which he did without proof to establish the allegation of fraud, and he, having rendered a judgment merely upon the verified complaint, it follows that the judgment must be reversed. Vorzimer v. Shapiro, 6 Misc. Rep. 143; 55 St. Rep. 693.

Judgment reversed, with costs.


author: Putnam, J.

text:
    William A. Dean, App’lt, v. Andrew R. Clark et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Contkact—Validity—Public policy.
    Contract of indemnity to a taxpayer against taxes, resulting from his vote in favor of bonding his town in aid of a railroad, is void as against public policy.
    Appeal from a judgment dismissing the complaint.

      H. W. & G. McClellan (John C. Dardess, of counsel) for app’lt; Cadman & Peck, for resp’t Clark; Mead & Hatt, for resp’t Gray.
   Putnam, J.

—Section 1, ch. 373, Laws 1866, provided that on the application in writing of twelve or more freeholders in any town in either the counties of Rensselaer or Columbia it should be the duty of the county judge of the county where such town was situated, or any justice of the supreme court at special term, to appoint not more than three freeholders to carry into effect the purposes of the act. Section 2 authorized said commissioners to borrow on the faith and credit of such town such sum of money as a majority of the taxpayers therein representing a majority of the taxable property thereof should determine, not exceeding 25 per cent, of the assessed valuation of said town. The act further provided that the authority conferred by § 2 should only be exercised upon condition that the consent of such majority of the taxpayers appearing upon the assessment roll of 1865 should first be obtained in writing, acknowledged before a justice of the peace, and which writing should be filed, with a copy of the assessment roll annexed, in the office of the clerk of such town and the county clerk of the county. The act further provided for the raising of the money by taxes to pay the principal and interest of the money borrowed in pursuance of its provisions. Under the said act three persons were appointed commissioners for the town of New Lebanon, Columbia county, and the plaintiff, a taxpayer of said town, with others comprising a majority in number, and representing a majority in amount of the taxable property of said town appearing upon the assessment roll of 1865, consented to and requested in writing that the said commissioners should borrow on the faith and credit of said town the sum of $100,000. On the same day, the defendants, Andrew R Clark and Henry D. Gray, and others, executed to plaintiff a bond in the penalty of $1,500, with the following condition: “ Whereas, the above-named Dean has this day signed a certain request to Ransom R. Grillett, Moses Y. Tilden, and Joseph K. Boyce, commissioners appointed under the first section of the act of the legislature of the state of New York approved the 4th day of April, 1866, entitled ‘An act to authorize any town in the counties of Columbia and Rensselaer to aid in the completion of the Lebanon Springs railroad ’ (a copy of which is hereto annexed), that the said commissioners, in conformity with the said second section of said act, shall borrow on the faith and credit of said town one hundred thousand' dollars, and issue town bonds therefor; and whereas, the said Dean is recorded upon the assessment roll of said town for the year 1865 for the sum of thirty-five hundred and fifty dollars ; and whereas, the said William A. Dean fears a tax may be levied upon the property appearing upon the said roll to pay the interest that shall fall due upon the town bonds, as well as the principal of the same when they shall become due: Now, therefore, the condition of this obligation is such that, if the said obligors shall save harmless and indemnify the-said Dean from all payments he may make on account of any tax levied upon the property appearing upon the said assessment roll in any year, and which tax shall be levied and collected for the purpose of paying interest or principal of the town bonds issued' as aforesaid, then this obligation shall be void : otherwise remain in full force and effect.”

The action was brought on this undertaking, the plaintiff claiming to recover the sum of $1,500. It was shown that bonds of the town were afterwards issued, in pursuance of the request and consent of plaintiff and other taxpayers, for the sum of $100,000 borrowed thereon; and it was admitted on the trial that plaintiff had been compelled to pay $1,000 in taxes levied on his property to apply upon the principal and interest of such bonds. The trial court held that the instrument upon which the action was brought was not supported by any legal consideration, and was in contravention of public policy, and dismissed the complaint.

The learned counsel for the appellant insists that it was an unwarranted assumption on the part of the trial court that the promise of indemnity to plaintiff contained in the instrument above set out was made in inducement and in consideration of plaintiff’s signing the request to the commissioners to loan on the faith and credit of the town $100,000; that such assumption was not justified by the language of the bond or by the evidence given on the trial. It does not appear that any such position was taken by the counsel on the trial. An exception was allowed to the decision of the court 'dismissing the complaint on a statement of facts made by the trial judge. The plaintiff, on the trial, made no objection or criticism upon the assumption of the court as to the facts, and made no request to go to the jury on any question in the case. We think, however, that the assuption of the trial judge was justified by the language of the instrument in question. It recites the making of a request to the commissioners by plaintiff on the day of the execution of the paper; that he was recorded on the assessment roll of said town for the year 1865 for $3,550; that he feared a tax might be levied upon his property appearing on said roll, to pay the principal and interest on the bonds to be issued by the commissioners; and the undertaking provided for the payment by the obligors of all such taxes. The instrument in question may properly be deemed an agreement to indemnify plaintiff for the damages he might sustain in the way of taxation in consequence of procuring (with others) the commissioners to make the loan. The paper said : “ Whereas you have requested the commissions to borrow $100,000, and fear a tax may be levied on your property to pay the principal and interest on such loan, therefore the obligors agree to pay such taxes.” The word “ whereas ” is defined to mean “ the thing being so that; ” “ considering that things are so.” The undertaking, therefore, said: “ Considering that you have requested the town commissioners to borrow $100,000, and fear a tax may be levied on your property to pay said loan, we agree to indemnify you against said tax.” We think it presumptively appeared from the recitals of the instrument in question that it was given to plaintiff in consideration of his requesting the commissioners in writing to borrow said sum of $100,000 on the faith and credit of the town, and to issue town bonds therefor. It is a well-settled principle that whatever may be fairly implied from an instrument in writing is, in judgment of law, contained in it. Rogers v. Kneeland, 13 Wend. 114. The language of the instrument fairly implied that it was made to indemnify plaintiff from the consequences of his act in requesting the town commissioners to bond the town for $100,000.

Counsel for plaintiff contends that the instrument in question, if given in consideration of plaintiff’s signing the request to the commissioners to issue bonds of the town, or to indemnify him from the payment of taxes on his property resulting from the issuing of said bonds, did not contravene any principle of public policy, hence was not illegal ; and that the court erred in dismissing the complaint. The legislature by § 2 of chapter 373, of the Laws of 1866, gave authority to the commissioners appointed in the town of New Lebanon pursuant to § 1 of said act to borrow on the faith and credit of the town such sum of money, not exceeding 25 per cent, of the assessed valuation of the town, as a majority of the taxpayers representing a majority of the taxable property therein should determine upon, on condition that the consent of such majority of the taxpayers appearing on the assessment roll of 1865 should first be obtained in writing. In pursuance of the authority -so conferred by §§ 1 and 2 of the act of 1866, on the request of plaintiff and other taxpayers, the sum of §100,000 was borrowed, and the town bonded therefor. It was clearly a matter of public concern in said town whether or not $100,000 should be borrowed for the benefit of the Lebanon Springs Railroad, and bonds issued therefor, to pay which, and the interest thereon, the citizens of the town would be afterwards taxed. It was a question affecting the public interest of the town, which plaintiff and other citizens and taxpayers were compelled to pass upon. Such an expenditure on behalf of the town might or might not be beneficial to it. It might be for the interest of the taxpayers to pay the tax assessed against them on account of such loan in consideration of the benefit they would derive from the proposed railroad, or it might not. The question submitted to the taxpayers was one of great public importance to the town. Plaintiff’s action in the matter affected not only himself, but other taxpayers. It affected those citizens who refused to make any request to the commissioners, and also others who did consent to the bonding of the town, but were induced to do so by by the action of the plaintiff. We think public policy required the unbiased and uninfluenced judgment of the several taxpayers on the question submitted to them pursuant to the statute. The action of the taxpayers in determing whether the $100,000 should be loaned might be deemed similar to an act of legislation. The legislature, instead of passing on the question of the loan, submitted it to the taxpayers of the town, a majority of whom voted in its favor. By the bond of indemnity the obligors agreed to pay plaintiff the amount he should be taxed in consequence of the proposed loan. Such a bond naturally and necessarily affected his judgment as to the propriety and necessity of the loan. It was like a bribe to him with a view of affecting his action as a citizen on a matter affecting the public interest of the town. The question submitted to the taxpayers was whether the taxable property of the town should be mortgaged, so to speak, to secure a loan of $100,000 for the purpose of aiding the construction of the Lebanon Springs Railroad. Plaintiff, as a citizen, was called upon to vote upon the proposed measure, which, as we have said, was of great importance. The agreement of the obligors to indemnify him from the payment of taxes to result in consequences of his vote and that of the other taxpayers was very much like an undertaking to pay him $1,000 for his vote. By such a procedure a minority of the taxpayers of any town could have induced a majority to vote for the bonding of the town under the act, when the judgment of the majority of such taxpayers, if uninfluenced, was opposed to the project. We think public policy required that the vote of each taxpayer of the town of New Lebanon on the proposal to bond it for the benefit of the Lebanon Springs Railroad should be uninfluenced, and that hence the promise of the defendants to indemnify plaintiff against taxes resulting from his vote was not enforceable.

We think the views above suggested are sustained by the authorities. In Sedgwiclc v. Stanton, 14 N. Y. 291, it was held that 11 Contracts illegal at common law as being contrary to public policy are such as injuriously affect or subvert the public interest; * * * such contracts as, by their terms or contemplated manner of performance, must work some mischief affecting the body politic.”

In 19 Am. & Eng. Enc. Law, 565, quoted by counsel for the appellant, “ public policy ” is defined as follows: “ That principal of the law which holds that no one can lawfully do that which has a tendency to be injurious to the public, or against the public good, may be termed the policy of the law—the public policy in relation to the administration of the law.”

It seems clear that a contract of indemnity to a taxpayer against taxes resulting from his vote in favor of the bonding of his town had a tendency to influence his action, and hence injuriously affected the public interests. As bearing on the question involved, see, also, Stanton v. Allen, 5 Denio, 434; Smith v. Applegate, 23 N. J. Law, 352, and cases cited; O'Hara v. Carpenter, 23 Mich. 410; Thomas v. Caulkett, 57 Mich. 394; Noyes v. Day, 14 Vt. 384; Gibbs v. Smith, 115 Mass. 592. Our conclusion, therefore, is that the trial court make the proper disposition of the case, and that the judgment should be affirmed, with costs.

All concur.


text:
    Importers and Traders’ National Bank of New York, Resp’ts, v. Cebra Quackenbush et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Supplementary proceedings—When instituted.
    Supplementary proceedings may Be instituted within ten years after the return of the last execution issued on the judgment.
    Appeal from an order denying a motion to vacate an order for discovery.

      A. & W. Lansing (Abraham Lansing, of counsel), for app’lts; Dyett & Townsend (A. R. Dyett, of counsel), for resp’t.
   Putnam, J.

—The plaintiff obtained a judgment against defendants on January 22, 1879, which on that day was docketed in the county of Hew York, and on January 23, 1879, in the county of Rensselaer. An execution was issued thereon to the sheriff of the last mentioned county on January 24, 1879, and afterwards returned unsatisfied. On March 22,1894, said judgment was docketed in Albany county, and an execution was issued thereon to the sheriff of that county, and afterwards returned unsatisfied. Plaintiff obtained a second judgment against defendants in the county of Hew York on January 22, 1879, which on -the next day was docketed in Rensselaer county, and on February 20, 1879, in Albany county. On January 26, 1879, an execution -was issued on said judgment to the sheriff of Rensselaer county, and after-wards returned unsatisfied. On February 22, 1879, one was also issued to the sheriff of Albany county, and also returned unsatisfied. On March 22, 1894, another execution was issued on said judgment in the last named county, and also returned unsatisfied. Defendants, at the time of the obtaining of said judgments, were, and ever since have been, residents of Albany county. On March 27, 1894, plaintiff, upon affidavits showing the above facts, obtained from a judge of the supreme court on each of said judgments an order in supplementary proceedings requiring defendants to appear before a referee named in said orders to make discovery on oath cqncerning their property. The defendants thereupon moved to vacate such orders, and to set aside the executions issued upon the aforesaid judgments - in 1894, and the returns thereon, and for other relief. From the order denying said motion this appeal is taken, bringing up for our consideration the question of the validity of the said orders for the examination of said defendants in supplementary proceedings. The second judgment above specified having been docketed in Albany county on February 20, 1879, and an execution having been then issued and returned unsatisfied, an execution could issue thereon without an order of the court, under the provisions of § 1377 of the Code of Civil Procedure. Hence the execution issued by plaintiff on said judgment on March 22, 1894, although so issued about fifteen years after the rendition of the judgment, was regular, and authorized by the statute.

It is claimed by appellant that the order in supplementary proceedings for the examination of defendants was improperly granted, after the expiration of ten years from the "return of the first execution issued in 1879 on the judgment in question, under the provisions of § 2435 of the Code of Civil Procedure. The following is a copy of said section, viz: “ At any time within ten years after the return, wholly or partly unsatisfied, of an execution against property, issued upon a judgment, as prescribed in section two thousand four hundred and fifty-eight of this act, the judgment creditor, upon proof of the facts, by affidavit, or other competent written evidence, is entitled to an order requiring the judgment debter to attend and be examined concerning his property at a time and place specified in the order ”

Defendants urge that the right to institute supplementary proceedings accrued to plaintiff in 1879, on the return of the first execution, and, it having permitted over ten 3’ears to expire before instituting these proceedings, it was precluded from doing so under the provisions of the above quoted section. It is claimed, on the other hand, that under the provisions of said section, when an execution is regularly and properly issued on a judgment, be it the second or third execution, an order in supplementary proceedings can be granted within ten years thereafter. The statute says an order in supplementary proceedings may be granted within ten years after the return of an execution. With some hesitation we reach the conclusion that the language means within ten years after the return of any execution legally and properly issued upon a judgment. In the case under consideration the proceeding was instituted in 1894, shortly after, and within ten years of, the return of an execution unsatisfied. Section 2435, supra, does not prescribe that the proceedings shotild be taken within ten years after the return of the first execution, but from the return of an execution. This view of the statute in question was taken by the superior court of the city of New York in Levy v. Kirby, 51 N. Y. Supr. Ct. Rep. 69. See, also, 3 Rum. Pr. 411; 5 Fiero, Spec. Proc. 517, 518. In the case of Conyngham v. Duffy, 125 N. Y. 200; 34 St. Rep. 736, cited by defendants, it does not appear that a second execution had been issued, and the question here raised was not befóse the court in that case. In Baumler v. Ackerman, 63 Hun, 40; 43 St. Rep. 87, the. court was apparently influenced by the fact that the plaintiff’s judgment had ceased to be a lien upon the real property of defendant, and that the execution issued in that action was ineffectual to reach that class of property, and that, in order to institute supplementary proceedings, an execution should be issued and returned unsatisfied against real estate as in the case of a creditors’ bill; that the provisions of § 1252 of the Code of Civil Procedure did not apply in that case, as the judgment had been obtained in 1876. In this case, however, the judgment was obtained in 1879, and under the provisions of § 1252 the execution issued in 1894 could be collected out of any real or personal property of the defendants in the county of Albany. We conclude, therefore, that the supplementary proceedings may be instituted at any time within 10 year’s from the return of any execution properly issued on a judgment. Under _ the provisions of § 2436, which provides for the examination of a defendant after the issuing and before the return of an execution unsatisfied, it is quite clear that supplementary proceedings may be taken at any time while the judgment remains in force after the issuing of any execution, whether the first or second. There seems to be no satisfactory reason why the provisions of § 2435, prescribing the limitation of 10 years, should not be deemed to refer to the last execution legally issued.

The first above described judgment was not docketed in Albany county, where the judgment debtor resided, until March 22,1894, and the execution was not issued thereon until that time. Section 2435, supra, provides that the 10-year limitation applies where an execution against the property of the judgment debtor has been issued as prescribed in § 2458,—that is, in the county where the defendant resides or has a place of business. As no execution had been issued in the county of Albany, where defendant resides, until 1894, the limitation prescribed by § 2435 did not commence to run until that time, and the only question to be considered is whether the execution then issued'by plaintiff in Albany county was authorized by the statute. The judgment had been docketed in Rensselaer county in 1879, and an execution had in that year been issued and returned unsatisfied in that county. Hence in 1894, under the provisions of § 1377, supra, plaintiff could without any order of the court have issued a new execution in Rensselaer county. The defendants contend that under the provisions of said section a second execution after the expiration of five years from the rendition of the judgment could only go to the same county where the first was issued. Ho authority is cited to sustain this contention, and we think that the language of § 1377 does not admit of this construction. If an execution had been regularly issued in five years after the entry of the judgment in any county where the judgment was docketed, the statute provides that another execution may be issued thereon. There is no limitation in the said section. The right to issue an execution given by the statute is general, and should be deemed such a right as the plaintiff had to issue execution within five years from the rendition of the judgment, to any ceunty where the judgment was or may be docketed. As suggested above, in 1894, under the provisions of § 1252, supra, the execution issued- and returned unsatisfied may be deemed an exhaustion of plaintiff’s remedy as against the personal and real estate of the judgment debtor. It is clear that supplementary proceedings may be instituted after a judgment has ceased to be a lien on real estate. Under the provisions of § 2435, such proceedings may be instituted 10 years after the return of an execution unsatisfied. In a case where the first execution should be issued at the end of 5 years after the rendition of the judgment, supplementary proceedings could clearly be instituted within 10 years thereafter ; that is, within 14 or 15 years after the rendition of the judgment, and when it had ceased to be a lien upon real estate. We conclude, therefore, that the order should be affirmed, with costs and disbursements. As defendants desire to submit the question involved to the court of appeals, proceedings may be stayed until the decision of that court.

Mayham, P. J., concurs; Herrick, J., not acting.