text:
    Aaron R. Stevens et al., Resp'ts, v. The Central National Bank of Boston et al., App'lts.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Injunction—Restraint of proceedings under federal court judgment.
    In certain exceptional cases parties to an action in a state court may be enjoined from taking any proceedings under a judgment in a federal court. ' •
    2. Same.
    One S., who claimed to be a bondholder of a railroad, brought action, professedly in aid of all the bondholders, and procured lhe_ appointment of a receiver, who, under direction of the court, issued certificates of indebtedness, and the road was sold to defendants F. and H. Thereafter, the defendant bank, as holder of certificates, brought action in the federal court, which resulted in a decree directing a sale of the road and payment of any deficiency by F. and H. In this action, brought by bondholders-who were not parties to the suit hy S., the court held that said suit was not representative in its character, but was brought to realize certain claims of S. and one T., at the expense of other bondholders, and set aside and vacated the judgment and all proceedings thereunder in that suit, and directed a sale under a prior judgment of foreclosure. Held, that as the sale under the federal judgment would convey no title and would create a cloud on the title of the property to be derived under the sale in this action, the judgment properly included an injunction of such sale.
    Appeal by the Central National Bank and other defendants from an order denying their motion to strike out from the judgment a provision perpetually enjoining said defendants from proceeding with a sale of the Lebanon Springs Railroad under a decree. of the federal court.
    The Lebanon Springs Railroad was mortgaged to the Union Trust Company of New York to secure bonds to the amount of two millions of dollars. Default having been made, the Union Trust Company brought two actions to foreclose, one in this court and one in the court of chancery of Vermont (five miles of the railroad being in V ermont), and in December, 1872, it obtained a judgment of foreclosure and sale in the former action, and a decree of foreclosure and sale in the latter action.
    Under the judgment, the part in New York was sold to one Duncan for one hundred thousand dollars, none of which has ever been paid, but a deed was given to one Hull, a clerk of Duncan's. Under the decree the part in Vermont was sold to one Park for twenty-five thousand dollars, none of which has ever been paid. And by the direction of Park a deed was given to one Lincoln, one of Park’s clerks. Hull and Lincoln then united in a mortgage of the railroad to Park and Duncan for five millions of dollars, payable in six months.. There was no consideration for this either.
    Having given this mortgage, Hull and Lincoln, again without any consideration, deeded the entire railroad to the New York, Boston & Montreal Railway Company. The latter company mortgaged it for twenty-five millions of dollars, sold enough of the bonds in France to realize six millions of dollars, and then failed, and all its property passed into the hands of a receiver.
    The railroad was then taken possession of by one Root, who ran it in the name of a company which he organized under the manufacturing law of New York, and which he called The Harlem Extension Railroad South Coal Transportation Company.
    Matters being in this state, one Marvin Sackett, in September, 1880, brought an action in this court against the New York, Boston & Montreal Railway Company, Glen. Butterfield, its receiver, Root and his Harlem Extension Railroad South Coat Transportation Company. Sackett alleged that he owned bonds of the original two million mortgage to the amount of eight thousand seven hundred dollars ; that the purchase by Hull and Lincoln, and their mortgage to Park and Duncan was for the benefit of the bondholders under the original mortgage, and in his complaint he professed to bring his suit on the behalf of those bondholders. He, however, made parties only the above.

      It is also declared by the judgment that one Tilden was associated with Sackett in that action.
    The New York, Boston & Montreal Railway Company and Gen. Butterfield, its receiver, made default. Root and his Harlem Extension Railroad South Coal Transportation Company put in an answer, in which they did not allege any facts which showed that they had any interest in, or right to the possession of the railroad. Sackett then moved for a receiver, and one Yan Yalkenburgh was appointed. Yan Yalkenburgh applied for leave to issue certificates, and the court authorized him to issue them to the amount of three hundred and fifty thousand dollars. Sackett and Tilden then presented claims, which, if valid, were behind the mortgage, to the amount of about $28,000, (Sackett, $3,-997,80; Tilden, $23,967.37). They were paid by the receiver. This was accomplished in June, 1881.
    Nothing further was done until October, 1884, when a trial was had which resulted in a judgment entered 27th January, 1885. By this judgment a sale of the road was directed to be made subject to the principal of the receiver’s certificates. The interest upon the certificates then due was directed to be paid out of the purchase money.
    Under this judgment the road was sold after June of the year 1885 to the defendants, Foster and Hazard, for $155,000.
    It is also declared that Van Yalkenburgh realized upon his $350,000 of certificates $236,500, and no more; that out of this amount he paid out $115,784,41, in the above claims, counsel fees, interest on the certificates and to himself. The entire sum of $155,000, realized by the sale, was absorbed by the interest on the certificates then due and the accumulated debts of the receivership, and the sum was made up in advance with that view.
    The interest of 1886, upon the certificates, not having been paid, the defendant, the Central National Bank, a large certificate holder, brought an action in this court against the defendants, Hazard and Foster, and another railroad company to which they had conveyed the railroad. That action was removed to the circuit court of the United States, and resulted in a decree in March, 1887, which directed the sale of the road, and that Hazard aud Foster should pay any deficiency. The action was brought by the Central Bank in behalf of all other certificate holders as well as itself.
    The officer of the United States court immediately advertised the road for sale (for a day in June, 1887), and has kept the sale adjourned from time to time until now.
    This is the sale which the injunction complained of relates to, all the parties to that action being parties to this.
    This action was begun in April, 1887, and the road has been in the possession of this court, by its receiver appointed in this action, since shortly after its commencement. It is brought by other bondholders under the same mortgage, and the Union Trust Company is a party.
    The judgment was entered on the 12th of November, 1891. It adjudges that the foreclosure judgment and decree of 1872 be now enforced. That the five million mortgage is held by Duncan and the administrator of Park impressed with a trust for the benefit of the Union Trust Company as trustee under the original mortgage : that the judgment and, all the proceedings in Sackeit's suit, including the sale to Hazard and Foster, and the referees deed to them, be reviewed and reversed, set aside aud vacated. It directs the sale of the road; the proceeds to go to the original bondholders, except that the proceeds coming to bonds, the owners of which were actually concerned in Sackett's suit, are to go to the receivers certificates, and it directs a reference to ascertain which, and how many bonds were owned by persons who were so concerned in Sackeit's suit.

    Among many provisions it perpetually enjoins all the parties to the suit from proceeding with the sale advertised under the decree of the circuit court of the United States.
    The following is the opinion of the court below:
    Putnam, J.—The facts on the second trial being substantially the same as on the first, in directing judgment herein I based my conclusion on the holding of the general term, feeling bound to follow that court. If the question in the case had not already been passed upon by the appellate tribunal, I might have reached a different conclusion. But, of course, the opinion of the general term on the same state of facts concluded me.
    The effect of my decision, therefore, was to carry out the judgment of the general term, and, hence, to determine, in reference to the “Sackett” suit that “such an action, thus instituted, controlled and resulting cannot be upheld It was not a representative suit in fact; if it was such in form and regularity, then it is effectually impeached for fraud. The plaintiffs are * * * entitled to relief substantially the same as if the Sackett action had never existed. They were in no sense parties to that action, and, therefore, their rights remain untouched. It is said they are bound by the receiver’s certificates which were declared to be a first lien upon the property. This cannot be so without a violation of constitutional protection. The court acquires jurisdiction of the parties, and of the subject matter before it, but, from the nature of the case, can only acquire jurisdiction of so much of the subject matter as all the parties before it- hold. * * * Those who take receiver’s certificates must be deemed to have taken them subject to the rights of parties who have prior liens upon the property, and who have not, but should have been, brought before the court. * * * The Central National Bank of Boston, a large holder of these certificates, as plaintiff for itself and all other certificate holders, brought an action against Hazard and Foster, the purchasers of the railroad upon the sale of the Sackett suit, and against the New York, Rutland & Montreal Railway Company, to which company Hazard and Foster conveyed the road, and against the American Loan & Trust Company, trustees of mortgage bonds issued by said railroad company. Judgment was obtained said the bank’s ownership of its certificates, and their lien upon the railway, and providing for the sale of the railway to pay the plaintiff ancl such others as should come in and establish their ownership. Such a judgment is good against the defendants in that action. They derive title to the railroad under the Saekett sale which preferred the certificates. It is not binding upon the plaintiffs.’'
    In pursuance of the decision of the appellate court, I, therefore, found that the plaintiffs were entitled to a judgment providing that the Saekett judgment and all the proceedings in that action, including the sale and the deed by the referee to the defendants, Hazard and Foster, be reviewed and reversed, and all the property and franchises described in the complaint, together with all the interest therein of all the parlies to this suit, and all the Lebanon Springs and Harlem Extension bondholders, be sold for the purposes above stated. Also holding that the holders of the certificates issued (in the Saekett suit) by the receiver, Yan Yalkenburgh, are entitled to such proceeds of the sale as shall belong to those Lebanon Springs bonds which were in the trial and judgment in the Saekett suit represented.
    In this discussion we must assume that my conclusions and findings, based as they are on the authority of the appellate court as to the Saekett suit, are correct, and that the Saekett judgment, and sale thereunder, was properly set aside.
    Having reached the conclusion then that the Saekett suit was fraudulent, and not a representative action, and that the sale thereunder should be vacated and set aside, and that the certificates issued in said action are, as to the plaintiffs, invalid and not enforceable, and that there must be a new sale of the property under the judgment in this action, it remains to be seen whether the defendant, The Central National Bank of Boston, should be allowed to proceed with the sale under the certificates issued in the Saekett suit under the judgment in the circuit court of the United States.
    For what purpose ? The sale under the judgment in that action could convey no title. It must be subject to and over-reached by the sale directed by the judgment herein. Yet, being made subsequent to said last named judgment the effect would necessarily be to cast a cloud upon the title and to embarass the subsequent sale to be made in this action.
    The judgment in the United States court cannot be interfered with as far as it determines the rights of the Central National Bank to recover the proceeds of the bonds represented in the Saekett suit as against the defendants in the federal action.
    On the sale in this action the bank will receive the proceeds of the bonds represented in the Saekett suit which would go otherwise to the bondholders. On the sale so to be made it is to be presumed that the property will bring as high a price, if not higher, as on the sale under the United States judgment; and hence defendants will, in fact, receive the same proceeds as under the sale in the federal action. Why, then, should the property be sold in that action, such sale being necessarily over-reached by the sale to be made herein, and conveying no title ?

      What would be the effect of such a sale ? The general term holds that the certificates are void as to plaintiffs and all bondholders not represented in the Sackett suit. That the judgment in the federal action is not binding on such bondholders. That plaintiffs are entitled to relief the same as if the Sackett suit had never existed; that is, a judgment of foreclosure and sale under which a title to the road can be given. What, then, would be the effect of a sale under the federal judgment in favor of the bank ? As stated, such a sale would not give any title to the property. At the most it would convey to the purchasers the interest of the certificate holders who have acquired the interest of the bondholders represented in and assenting to the Sackett action, and who were also represented in the federal action. But what bondholders? As held by the general term there must be an identification of those bondholders who held aloof from the Sackett suit, for such are not bound by any proceedings therein and are entitled to the benefit of this action. Therefore, if there is a sale under the federal judgment its only effect will be to transfer to the purchasers the interest of the certificate holders representing the bondholders who were represented in the Sackett action to the proceeds of the sale in this action. But such interest is already preserved and taken care of by the judgment herein. Under the judgment entered in this action under the direction of the appellate court, there can be no sale under the federal judgment, that is, a sale that will transfer any title to the purchasers.
    For the above and various other reasons not necessary to be stated, I think that the clause in the judgment restraining the sale under the federal judgment should be retained. If the bank has a claim against Hazard and Foster, the purchasers on the sale under the Sackett judgment, for any deficiency, after the judgment in this action setting aside the Sackett judgment and sale, I think they may recover such deficiency as well if the property is sold pursuant to the judgment herein as if sold under the federal judgment.
    It is suggested, however, that the state court cannot enjoin parties from proceeding in the United States court in an action or under judgment therein.
    There are statements in various authorities that would seem to sustain that position.
    Thus in 2d Story’s Equity Jurisprudence, § 900, the author says, referring to the power of the chancery court to restrain parties within its jurisdiction from proceeding in foreign courts in certain cases, “ There is one exception to this doctrine which has long been recognized in America; and that is, that state courts cannot enjoin proceedings in the courts of the United States ; nor the latter in the former courts.”
    Chancellor Walworth, also, in Mead v. Merritt, 2 Paige, 402, says: “ Although the court has the physical power to act coercively on a party within its jurisdiction to the same extent, it has frequently decided that it would not sustain an injunction restraining a suit or proceeding previously commenced in a court of a sister state; or in any of the federal courts. The same principle has been adopted by the supreme court of the United States. Diggs v. Wolcott, 4 Cranch, 179; Me Kim v. Voorhies, 7 id., 278. And I am not aware that any court of equity in the Union has deliberately decided that it will exercise the power, by process of injunction, of restraining proceedings which have been previously commenced in the courts of another state.”
    To the same effect is the case of Rio Grande Railroad Compamj v. Gomila, 132 U. S., 483, the otner case cited by defendant. See Schuyler v. Pelissier, 3 Edw. Chan., 191; Coster v. Griswold, 4 id., 376.
    On the other hand, in Dinsmore v. Neresheimer, 32 Hun, 206, the general term of the first district enunciates this doctrine: “ The principle has been regarded and stated as elementary in its character, that a court of equity should interfere, when sufficient equitable reasons are presented for doing so, to restrain the prosecution of an unconscionable action, although it may be pending in the courts of another state or country. Story’s Eq. Jur., § 899. This may be done without interfering with the proceedings themselves, by controlling the conduct of the parties when they are subject to the jurisdiction of the court so interposing for the prevention of injustice.” In that action an injunction was granted to restrain the prosecution of an action in the supreme court of the District of Columbia, sufficient equitable grounds existing therefor.
    In Dehon v. Foster, 4 Allen, 550, the court remarked: “ The authority of this court, as a court of chancery, upon a proper case being made, to restrain persons within its jurisdiction from pros ecuting suits, either in the courts of this state or of other states or foreign countries, is clear and indisputable. In the execution of this power courts of equity proceed, not upon any claim of right to interfere with or control the course of proceedings in other tribunals, or to prevent them from adjudicating on the rights of parties when drawn in controversy, and duly presented for their determination, but the jurisdiction is founded on the clear authority vested in the courts of equity over persons within the limits of their jurisdiction, and amenable to process, to restrain them from doing acts which will work an injury to others, and are, therefore, contrary to equity and good conscience. As the decree of the court, in such cases, is pointed solely at the party, and does not extend to the tribunal where the suit or proceeding is pending, it is wholly immaterial that the party is presenting his action in the courts of a foreign state or country.”
    This case was followed in Vail v. Knapp, 49 Barb., 308 and 309 ; Clajlin & Co v. Hamlin, 62 How., 284. In Town of Thompson v. Norris, 11 Abb. H. C., 171, 172, Justice Learned intimates that there may be exceptional cases where an injunction would lie restraining the prosecution of an action in the United States courts.
    See also Burgess v. Smith, 2 Barb. Chan., 280, where Chancellor Walworth intimates that in a very special case the rule of comity forbidding the granting of an injunction to stay proceedings in a court of competent jurisdiction of a sister state might not be followed.
    In Barry v. Bruñe, 8 Hun, 395 ; 71 N. Y, 261, an action was commenced to collect an insurance policy and to restrain the enforcement of a judgment obtained by the defendant Bruñe in the federal court as assignee of the policy of insurance ; plaintiff obtained a judgment for the amount of the policy and a perpetual injunction against the defendant restraining the enforcement of the United States judgment. This case would seem to determine that in a special case parties might be enjoined from proceeding in the courts of the United States.
    In People v. Brie Railway Co., 36 How., 132, the defendant was enjoined from delivering its property to a receiver appointed by a United States district court. See also Bowers v. Durant, 43 Hun, 348; 6 St. Rep., 535 ; Garrison case, 1 How., N. S., 352 ; Kittle case, 8 Daly, 72 ; Hayes v. Ward, 4 Johns. Chan., 123.
    If the judgment of the Central National bank on the certificates had been in the supreme court of the state, being so obtained on certificates issued in an action held to be fraudulent and the judgment and proceedings in which are, so to speak, “ wiped out ” by the judgment in this action, it would hardly be claimed that a sale on the foreclosure of said certificates, which could convey no title and which would • necessarily cast a cloud upon the title of the property under the sale in this action, should be allowed to proceed.
    There are cases which hold that where the jurisdiction of the United States is derived from the citizenship of the parties no higher sanctity or effect can be claimed for a judgment of a circuit court of the United States than is due to judgments of the state courts in a like case and under similar circumstances. See Dupasseur v. Rochereau, 21 Wall, 135 ; Crescent Live Stcclc Co. v. Butchers' Onion, 120 U. S., 147.
    If the doctrine as enunciated in these cases is correct, then the court could as well enjoin the parties from proceeding to a sale on the judgment in the federal court in favor of the Central National bank as if that judgment had been rendered in the supreme court of this state. Especially in a case like this, where the action was commenced in the courts of this state and only removed to the courts of the United States because of the citizenship of the parties.
    With some hesitation I have reached the conclusion under the authority of the cases above cited that in some cases this court as a court of equity by its judgment may restrain parties from proceeding in the federal courts, equity demanding such a judgment. It is true that ordinarily parties in an action in a state court will not be enjoined from proceeding in the action in the courts of the United States. This is the usual rule. It may be said to be the rule. But there are exceptions to the rule as held in the authorities hereinabove cited.
    In 1 High on Injunctions, 92, note to § 111, the author referring to the dicta 6 Wallace, 514, says: “While the doctrine as thus stated is undoubtedly true as regards any effort on the part o£ a state or federal court to operate by injunction upon the process of any other tribunal, state or national, it should be borne in mind that courts of equity, in the exercise of their extraordinary powers by injunction, have never assumed to enjoin the court itself, but only to arrest the action of the parties- litigant ; and this in the exercise of a jurisdiction strictly in personam.”

    Probably the state courts cannot enjoin proceedings in a federal court, nor can a state court ordinarily enjoin parties from proceeding in a federal action, but there are exceptional cases where the parties may be so restrained. The cases cited by defendant I think are not quite similar to this. In Riggs v. Johnson County, 6 Wall., II. S., 166, an injunction was issued by a state court to stay proceedings on a judgment duly rendered in a United States court on the ground that the coupon bondts upon which the judgment was obtained were void under the holding of the state court, the federal court having held them valid. In fact by the action in which the injunction was issued the state attempted to reverse and set aside the holding of the United States court on questions of law involved in the case. And the court held: “ That the injunction of a state court is inoperative to control or in any manner affect the process or proceedings of the circuit court. ”
    It will be perceived that the action of the state court in that case was in direct conflict with the United States court. The cases of the United States v. Keokulc, 6 Wall., 514; Mayor v. Lord, ■9 id., 409 ; Supervisors v. Durant, id., 415, are similar to- that of Riggs v. Johnson County, supra, and very clearly not like this case. In Rio Grande R. R. Co. v. Gomila, 132 U. S., 478, the property of the debtor had been seized under execution on a judgment obtained of the federal court, and it was held that probate Jaws of the state would not take the property from the hands of the marshal. The court held that it would have been different had there not been any seizure under the United States judgment (pp. 48M-485). Of course such a decision follows the doctrine that the proceedings in the courts of the United States cannot be interfered with by the state courts. The court then through its officers being in the actual possession of the property. The case of Amy v. Supervisors, 11 Wall., 136, is similar to that of Riggs v. Johnson County, supra. In McKim v. Voorhies, 7 Crancli, 279, it is held that the state court has no jurisdiction to enjoin a judgment in the circuit court of the United States. In that case the state court attempted to enjoin all proceedings in a judgment of ejectment obtained in the federal court, thus restraining proceedings on the judgment, not the party.
    I think that no injunction should be granted by state courts restraining the enforcement by parties of a federal judgment where the effect of such injunction is to raise a conflict with the federal court. Neither, probably, can proceedings in the federal courts be enjoined by a state court. But authorities above cited seem to holcl that in certain exceptional cases parties to an action in a state court may be enjoined from taking any proceedings under a judgment in a federal court.

      Although the doctrine enunciated in some cases cited by defendant, if taken literally, seems different, yet such doctrine in each of such cases was stated in reference to the facts of the case before the court, which, as we have seen, were very different from those in this case.
    In this action the authority to issue the certificates, under which the Central National Bank is proceeding in the federal court, is an order made in the supreme court of this state in the Sackett suit. The same court in which the Sackett order was entered now vacates and sets aside, as it lawfully may, the Sackett judgment and sale, and all proceedings in that action, except as far as it determines the rights of the Central National Bank and Hazard and Foster and their grantees as against parties represented in that action to the proceeds of the bonds held by parties so represented.
    The supreme court, therefore, on setting aside the proceedings in the action under which the Central National Bank received its certificates, may properly restrain by injunction that bank from proceeding upon the judgment it obtained upon such certificates.
    That bank is striving to enforce certificates issued by the supreme court of this state, which that court now adjudges void. It is proper for that court to prevent the bank from selling under a judgment upon the void certificates, which sale would give no title and tend to cast a cloud upon the title of the property to be derived under the sale herein. Such action of the state court is not at all in conflict with the holding of the federal court. The judgment obtained in that court was’in the action by the Central National. Bank against Hazard and Foster, their grantees, and the American Loan & Trust Company, as subsequent mortgagees. Said judgment was based on the validity of the Sackett suit and judgment. The question as to whether that was a representative action or a fraudulent one was not involved. The only question in the federal court was, were the certificates issued pursuant to the order of the state court in the Sackett suit and was the plaintiff the owner of such certificates. No question raised in this action was involved in that. The judgment in this action raises no issue with the federal court. That judgment was to enforce the certificates of this court, which this court now vacates with the proceedings and judgment in the action in which they were issued.
    Hence this case is one where, in the language of the counsel for the defendant, “ something has arisen since the rendition of the federal judgment to render its enforcement inequitable.” It is true that the judgment of the federal court has not been reversed ; but the certificates on which that decree was based are by the judgment entered in this action, and hence since the federal judgment was obtained, with the proceedings in that action, “ wiped out.” Since the federal judgment a judgment has been duly entered in the state court that avoids as against the plaintiff and parties to this action the certificates on which the federal judgment was based and renders a sale thereunder inequitable and ineffectual to convey any title.

      In fact, in my opinion, the effect of the judgment for the resale of the property and the vacating the decree, and sale thereunder, in the Sackett suit readers an injunction of the sale under the certificates issued in the Sackett suit not only proper, but necessary. If this court cannot award such an injunction it could not render the judgment given in this case. Such an injunction is a part of the relief the plaintiff is entitled to, if entitled to any judgment. To vacate the Sackett judgment and sale and proceedings on the ground that the action was not a representative one or was fraudulently conducted, and yet to allow, under certificates issued in that action, defendant to sell the property, would not be reasonable or proper.
    I think, therefore, that the motion should not be granted. I presume that no order is necessary to be entered. The matters discussed on this motion might properly have been discussed before the rendition of judgment, and hence no costs should be allowed.
    As to the $2,000 allowance to the plaintiff I thought, considering the amount involved and the necessary labor in the case, that such allowance was not excessive. But, of course, if desired the parties should be heard in the matter, and I am willing to hear any suggestion in that regard. Possibly other parties are entitled to some allowance.

      Campbell & Paige (H. W. Paige, of counsel), for app’lts; Hale & Bulkley (Matthew Hale, of counsel), for resp’ts.
   Herrick, J.

This is an from an order denying a motion to strike out the clause in the decision in the above entitled action directing judgment perpetually enjoining the sale in the suits by the Central National Bank of Boston et al, against defendants Hazard, Foster et al, in the United States circuit court, and staying all their proceedings under the judgment rendered in said action.

The learned justice before whom such motion was made has given his reasons for denying the same in an elaborate opinion in which I concur. I can see no reason for writing another one.

The order appealed from should be affirmed, with costs and disbursements.

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


source: Caselaw Access Project

author: O'Brien, J.

license: Public Domain

text:
    La Societa Italiana Di Beneficenza, Resp't, v. Catharine Sulzer, App'lt.

      (Court of Appeals,

      Filed June 6, 1893.)

    1. Contbact—Counterclaim.
    In an action on contract for the hiring of pic-nic grounds of defendant the latter interposed a counterclaim alleging that the plaintiff made oral statements or promises as to the number of people that would attend and the benefit defendant would derive from the festival through the sale of wine, cigars, etc., and a breach tliereo!'. Held, that in the absence of fraud or mistake the writing must be conclusively presumed to express all the binding stipulations of the parties, and hence the pleading did not state any facts constituting a defense or counterclaim.
    2. Appeal—Amount in controversy.
    When it appears that the cause of action stated in the complaint involves a sum less than $500, the court of appeals will not obtain jurisdiction to review the judgment by the mere fact that what purports to be a counterclaim for a greater amount appears on the record, but will examine the pleading, and if it is plain that no facts are stated which would enable the defendant to give proof under it or to recover any counterclaim, in fact, will dispose of the appeal in the same manner as if no attempt whatever had been made to interpose a counterclaim.
    Appeal from judgment of the New York superior court, gem eral term, affirming judgment in favor of plaintiff, entered upon verdict.

      Lorens Zeller, for app’lt; Warren W. Foster, for resp’t.

       See 47 St. Rep., 292.

   O'Brien, J.

The action was brought to recover upon a written contract of a peculiar nature. It is admitted by the answer that the plaintiff is a domestic corporation, and that it holds by assignment whatever claim the parties who signed or executed the contract could enforce against the defendant. The complaint avers that on June 29, 1889, certain united Italian societies in the city of New York, for and in behalf of the plaintiff, a corporation organized for benevolent purposes, entered into an agreement with the defendant whereby, in consideration of the promise or agreement of such societies to hold their annual picnic and festival on her grounds, which were a park or place maintained for such purposes by her, she agreed to pay to these societies, for the benefit of the plaintiff, $400. The festival was held upon these grounds, but the defendant never paid the sum so agreed upon. The answer, after putting in issue the making of the agreement, avers, for defense and counterclaim, in a separate count, that the alleged agreement was signed by three persons, who claimed to be a committee of the united Italian societies, who stated to the defendant that they represented all said societies; that they were united and not split up ; that they were composed of many thousand persons; that it would be the largest picnic ever held in .New York, and large profits would be derived therefrom, but they did not represent all the socities; that they were not united but split up; that but a small number of persons attended, and that she went to great expense in preparing for it by employing persons to attend upon them and in purchasing goods therefor, and that, owing to the small attendance, she sustained a loss by the contract. It was not claimed that any fraudulent statement was made.

The written contract is a very brief one. It states that “ the undersigned committee,” in behalf of the societies, for the plaintiff, “ hereby engage the use of the grounds of the above-named place ” for the purpose of the picnic and summer night’s festival, and they agreed to be governed by the rules and regulations adopted by the defendant for the good conduct and government thereof, as set forth in a paper attached to the contract, under the penalty of forfeiting all right or claim to the use of the park and all moneys paid or deposited on account thereof. The defendant, on her part, agreed to pay the $400 for holding the festival in her park. At the general term, the defendant’s counsel stated that he did not rely upon a breach of any of the covenants in the agreement, but upon the exceptions taken at the trial. This referred to another defense set up in the answer, to the effect that the rules of the park, which were made part of the contract, had been violated, and, consequently, the contract was forfeited by the sale of wine and cigars by the societies or the committee at the festival, as such sales were expressly prohibited. That question had been submitted to the jury at the trial and a finding had in favor of the plaintiff, and the court below was not asked to pass on any ■question growing out of it. Therefore, there are no questions here but such as were raised by exceptions at the trial, and there are but one or two exceptions that require any notice. 1. At the opening of the trial the court, at the request of plaintiff’s counsel, required defendant’s counsel to elect whether he would rely upon the defenses set up in the answer or the counterclaim, on the ground that they were inconsistent. The defendant’s counsel excepted to this ruling. 2. At the close of the case defendant’s counsel moved to dismiss the complaint on the ground, among others, that the contract was not proved. This was denied and exception taken. In regard to the last question, it is sufficient to say that the writing was produced, and on its face purported to have been made by' the committee for the plaintiff. It was, therefore, a contract made by others for the benefit of the plaintiff, and it, therefore, had such an interest in the claim as enabled it to maintain the action. Lawrence v. Fox, 20 N. Y., 268. In this view the assignment was not necessary, although it is possible that the parties who signed the contract bond, as the officers or representatives of unincorporated societies or associations, could maintain the action under § 1919 of the Code of Civil Procedure, and if they could the assignment would carry that right to the plaintiff. Under the present system of pleading a defendant may set up as many defenses as he may have, whether inconsistent or not Bruce v. Burr, 67 N. Y., 237; Goodwin v. Wertheimer, 99 id., 149; Code Civ. Pro., § 507.

It is possible that an error was committed in compelling the defendant to elect which defense she would stand upon, and requiring her- to abandon the other, but if there was it is wholly immaterial, because no valid counterclaim was pleaded, and hence the defendant lost nothing by being required, in effect, to abandon a pleading that was clearly insufficient The counterclaim did not allege any breach of the written agreement. All that it alleged was that the committee made oral statements at the time of and preceding the execution of the paper, which were mere expressions of opinion as to the number of people that would attend, and the benefit the defendant would derive from the festival. Even if they were not opinions, but in the nature of promises, they were all merged in the writing, and it could not be enlarged or altered by proof of the parol statements and negotiations that preceded the final execution of the agreement. It is not claimed that there was any fraud or mistake, or that the writing itself does not embody all the obligations of the parties. Under such circumstances the writing must be conclusively presumed to express all the binding stipulations of the patties, and hence the pleading did not state any facts constituting a defense or counterclaim. The court might have held that no proof was admissible under it, and, therefore, the fact that the defendant abandoned it, under a ruling of the court requiring him to make an election, constitutes no ground of error. When the counterclaim is thus eliminated from the case, as it must be. the amount in controversy is less than $500, and consequently no appeal lies to this court from the judgment. When it appears that the cause of action stated in the complaint involves a sum less than $500, this court will not obtain jurisdiction to review the judgment by' the mere fact that what purports to be a counterclaim for a greater amount appears upon the record, but will examine the pleading, and if it is plain that no facts are stated which would enable the defendant to give proof under it, or to recover any counterclaim in fact, will dispose of the appeal in the same manner as if no attempt whatever had been made to interpose a counterclaim.

The appeal should, therefore, be dismissed, with costs.

All concur.


author: Earl, J.

text:
    The People, Resp'ts, v. Charles F. Peck and Elbert Rodgers, App'lts.

      (Court of Appeals,

      Filed June 6, 1893.)

    1. Criminal law—Destruction of public records by public officer.
    The commissioner of statistics of labor is a public officer and occupies a public office, and collects the facts from manufacturers, etc., in the discharge of his duty. It is his duty, after gathering such facts, to preserve them, and lie may be punished under § 94 of the Penal Code for destroying the answers made to his circulars calling for statistical details.
    2. Same.
    When the information is given by manufacturers, etc., it becomes public, and is for a public purpose, and no stipulation or promise on the part of the commissioner of statistics of labor can give it any other character.
    Appeal from' the j udgment of the general term of the supreme court, third department, reversing the judgment of the court of sessions of Albany county, which sustained the demurrer to the indictment against the defendants and discharged them.
    This indictment is as follows :
    “ The grand jury of the county of Albany accuse Charles F. Peck and Elbert Rodgers of the crime of removing and destroying public documents, committed as follows:
    “ The said Charles F. Peck, heretofore and at the time of the commission o£ the acts hereafter stated, was and now is the commissioner of statistics of labor of the state of New York, a public officer and a public office duly created by an act of the legislature of the state of New York, and as such commissioner it became and was his duty to collect, assort, systematize and present, in annual reports to the legislature, statistical details relating to all departments of labor in this state, and especially in relation to the commercial, industrial, social and sanitary conditions of workingmen, and to the productive industries of this state; and that at all the times hereafter referred to it was the legal duty of every person, owner, operator, manager and lessee of every mine, factory, workshop, warehouse, elevator, foundry, machine-shop and other manufacturing establishment in the state, and of evey agent and employe of such owner, operator, manager and lessee of every such mine, factory, work-shop, warehouse, elevator, foundry, machine-shop and other manufacturing establishment, to furnish to such commissioner, when requested by him, statistical and other information, in their possession or under their control, relative to the lawful duties of such commissioner as above set forth, and to truthfully answer questions concerning such lawful duties of the said commissioner sent to them by said commissioner bjr circular.
    “ That heretofore and in the year 1891, between the 1st day of January and the 31st day of December in said year, and in the year 1892, between the 1st day of January and the 1st - day of September in said year, the said defendant, Charles F. Peck, as Commissioner of Statistics of Labor of the State of New York, in pursuance of the duties devolved on him by law to collect, assort and systematize statistical details relating to all departments of labor in this state, and especially in relation to the commercial, industrial, social and sanitary condition of the workingmen, and to the productive industries of this state, sent circulars to the owners, operators, managers and lessees of the mines, factories, workshops, warehouses, elevators, foundries, machine shops and other manufacturing establishments of this state, which said circular’s did then and there contain questions asking for statistical information relating to the lawful duties of such commissioner, and relating to the details of all departments of labor in this state, and especially in relation to the commercial, industrial, social and sanitary condition of workingmen in this state, and to the productive industries of this state, and did at the times aforesaid receive answers to the questions contained in said circulars from the owners, operators, managers and lessees of the mines, factories, workshops, warehouses, elevators, foundries, machine shops and other manufacturing establishments of this state, which said answers were contained in and written on the circulars so sent out by the said Charles F. Peck, as Commissioner of Statistics of Labor of the State of New York, and which said answers, then and there being, were and are the statistical details-relating to all departments of labor in the state of New York, and especially in relation to the commercial, industrial, social and sanitary condition of workingmen of the state of New York and to the productive industries of the state of New York, and which said circulars containing the questions aforesaid, and the answers aforesaid, were sent to and received by the said defendant, Charles F. Peck, as such Commissioner of Statistics of Labor of the State of New York, by due authority of law, at his office in the new capítol in the city of Albany, and known as the Bureau of Labor Statistics of the State of New York, he, the said Charles F. Peck, being then and there a public officer of the state of New York, and received and filed and deposited by said Charles F. Peck in the office of the Bureau of Labor Statistics of the State of New York, at the headquarters thereof in the new capítol, in the city of Albany, the said Bureau of Labor Statistics being and was then and there a public office of the state of New York, and being then and there received, filed and deposited by due authority of law, and being and were then and there public records, books, papers and documents of the state of New York.
    And the grand jury further say that the said Charles F. Peck and Elbert Rodgers, on the 11th day of September, 1892, at the city of Albany, in this county, feloniously, wilfully and unlawfully did remove, mutilate, conceal and destroy the public records, books, papers and documents so as aforesaid filed and deposited by due authority of law in the office of the Bureau of Labor Statistics of the state of New York, in the new capitol, at the city of Albany, the same being then and there a public office of the state of New York, and the same being then and there filed and deposited by due authority of law,with the Commissioner of statistics of Labor of the state of New York, at his office in the new capítol, in the city of Albany, he being then and there a public officer of the state of New York, and which said public records, books, papers and documents aforesaid, did then and there relate to and were the official statistical details relating to all departments of labor in the state of New York, and especially in relation to the commercial, industrial, social and sanitary condition of the workingmen of the state of New York, and to the productive industries of the state of New York for the years 1890 and 1891, and were and are the official and public records, books, papers and documents of the Bureau of Labor Statistics of the State of New York, and the official and public records, books, papers and documents of the People of the state of New York
    “And the grand jury aforesaid further say that the public records, books, papers and documents aforesaid have been and are withheld by the said Charles F. Peck and Elbert Rodgers, and have been and were removed and mutilated by the said Charles F. Peck and Elbert Rodgers, and have been destroyed by the said Charles F. Peck and Elbert Rodgers, so that the grand jury are unable to give a better description of them than as above set forth, "and so that the grand jury are unable to set them out in detail, and are unable to set them out in words and figures.
    “And so the grand jury aforesaid charge and accuse the said Charles F. Peck and the said Elbert Rodgers with feloniously, wilfully and unlawfully removing, mutilating, concealing and destroying public records, books, papers and documents contrary to the statute in such case made and provided.
    “James W. Eaton,

      “District Attorney of the county of Albany."

      The defendants demurred separately to the indictment on the ground that it did not state facts sufficient to constitute a crime.

      Edward J. Meegan, for app’lts; James W* Eaton, for resp’ts.

       Affirming 51 St. Rep., 475.

   Earl, J.

Chapter 356 of the Laws of 1883, as amended by chapter 205 of the Laws of 1886, provides,as follows:

“Section 1. The governor shall, by and with the advice and consent of the senate, appoint, within ten days after the passage of this act, and thereafter tri-ennially on the first Wednesday in April, some suitable person who shall be designated Commissioner of Statistics of Labor,' with headquarters in the new capítol at Albany
“ Section 2. The duties of such commissioner shall be to collect, assort, systematize and present in annual reports to the legislature, within ten days after the convening thereof in each year, statistical details relating to all departments of labor in the state, especially in relation to the commercial, industrial, social and sanitary condition of workingmen, and to the productive industries of the state.
“ Section 3. Said commissioner shall also have power to send for persons and papers, to examine witnesses under oath, to take depositions, to cause them to be taken by others by law authorized to take depositions ; and said commissioner may depute any uninterested person to serve subpoenas upon witnesses, who shall be summoned in the same manner and paid the same fees as witnesses before a county court; and any person or owner, operator, manager or lessee of any mine, factory, workshop, warehouse, elevator, foundry, machine shop or other manufacturing establishment, or any agent or employe of such owner, operator, manager or lessee, who shall refuse to said commissioner admission therein for the purpose of inspection, or who shall, when requested by him, wilfully neglect or refuse to furnish to him any statistical or other information relative to his lawful duties, which may be in their possession or"under their control, or who shall wilfully neglect or refuse, for thirty days, to answer questions by circular or upon personal application, or who shall knowingly answer any such questions untruthfully, or who shall refuse to obey the subpoenas and give testimony according to the provisions of this act, provided that no witness shall, against his will, be compelled to answer any question respecting his private affairs, shall for every such wilful neglect or refusal, be deemed guilty of a misdemeanor, and, on conviction therefor, shall be punished by a fine of not less than fifty or more than two hundred dollars.”

Section 4 provides that the commissioner shall receive an annual salary of $2,500 and his expenses, and that he may appoint a clerk at an annual salary of $1,200.

There can be no doubt that the commissioner is a public officer. He has a fixed term of office, a salary and discharges duties for the public. He is to have and keep an office in the capitol, where he and his clerk are to discharge their principal functions. What can a statute mean which requires a public officer to have his “ headquarters” at the capitol?

It does not mean temporary headquarters, but permanent headquarters during his term of office. It does not mean that he is to occupy the corridors, rotunda or some other open space in the capitol. Obviously it means that, like the other public officers, he is to have a room in the capitol for his occupation and for the discharge of his duties. The statute gives him the right to such a room, and thus it is made the duty of those who, by law, have charge of the capitol to assign him a room, and if they should refuse to do so they could be compelled by mandamus. The indictment shows that he did occupy a room in the capitol as his office, which was styled the Bureau of Labor Statistics. So here was a public officer and a public office officially occupied by him.

This act has relation to the workingmen of the state engaged in pi’oductive industries. They constitute a very large portion of the people. They are generally without capital and more or less dependent. The relations between capital and labor are yet an unsolved problem, and statesmen and scholars are engaged in its solution. Measures for the amelioration of the condition of workingmen and the promotion of their welfare are frequently agitated, many of which are based upon imperfect knowledge and crude ideas. Knowledge of the facts, knowledge of the social condition, the wages, the material needs of the workingman, of the profits of labor and of capital, and of the condition of the productive industries, must precede any intelligent legislation, any remedial measures looking to the welfare of workingmen, and the wise and beneficent solution of the problem above mentioned. So the main purpose of this act is to get at the facts. The primary duty of the commissioner is to collect the facts—called in the act statistical details—in relation to labor and production. Having collected the facts, then he is to assort and systematize them, and then present them in his annual report to the legislature. He is not to collect the facts merely to enable him to discharge a duty, but in the discharge of a duty. He is to collect them, not for his private, personal use, but for a public purpose—not merely to enable him to make his report, but for preservation, so long as they can be useful.

These statistical details for a single year would be inadequate for accurate deductions and generalizations. For that purpose a series of years are needed. One year may be abnormal as to the conditions of labor and industries, and thus the statistical details for that year might be misleading and illusory. The facts gathered are not only for the use of the commissioner, but for everybody who has occasion to use them ; for lawmakers, for students of sociology, political economy and the science of government, and for the general historian, and they may become more valuable as the years go by and the opportunity to gather them has in a great measure passed away. Could it have been the intention of the legislature that there should be no means to test the accuracy and value of the report of the commissioner ? Is he, under the act, to be permitted to present a picture of the condition of labor and the productive industries, the accuracy of which, in consequence of the suppression of the facts, cannot be tested ? Shall an inferior state officer be the sole judge of the significance and value of the facts he gathers under the act ? Can he be permitted to manipulate the facts to sustain some pet theory of his own, or even to serve some perverse purpose, without the. opportunity of detection and exposure ? It is obvious that the act would be worse than useless; might even be dangerous in its operation, if the statistical details are not to be preserved, and the manifest purpose of the act makes it important that they should be preserved. If untruthful answers be given to questions contained in circulars sent out to the persons named in the act, any person giving such answers is guilty of a misdemeanor, and may be convicted and punished; and to this end it is important that the written answers be kept. The act clothes the commissioner with extraordinary powers to gather the facts. He may use compulsory process for that purpose, and yet may he destroy the papers and documents in which they are contained at any time after receiving them? The duty to preserve them after he has received them and they have reached his office, we think, is plain, and is implied in the act, and just as much a part thereof as if expressly written therein. United States v. Babbit, 1 Black, 55, 61; Gelpcke v. City of Dubuque, 1 Wall., 221.

It is true that the commissioner may, under the act, obtain pertinent information by observation, which may not be reduced to writing, and thus become a record. But if he examines witnesses, under the act, it is implied that such examination is to be reduced to writing, and all the pertinent information which is furnished to him in writing, under the act, should be preserved by him in his office. It belongs to the public, is obtained at the public expense for the public, and should be preserved until it may be destroyed or otherwise disposed of by authority of law.

Such we believe to be the scope and purpose of the act.

It appears from the indictment that the commissioner sent out circulars calling for the statistical details mentioned in the act, and that he obtained answers to such circulars written thereon, which were filed and deposited by him in his office in the capitol, and that he and the other defendant subsequently destroyed the papers and documents thus filed and deposited; and the indictment was found against them under § 94 of the Penal Code, which provides as follows:

“ A person who wilfully and unlawfully removes, mutilates, destroys, conceals or obliterates a record, map, book, paper, document or other thing filed or deposited in a public office or with any public officer by authority of law, is punishable by imprisonment for not more than five years, or by a fine of not more than five hundred dollars, or by both.”

We can perceive no defect in this indictment. The facts alleged therein show the commission of a crime. As we have shown, the circulars and answers written thereon were public papers or documents. They were deposited, and also, according to the general and common understanding of the term, “ filed ” with a public officer by authority of law, and the indictment alleges that the defendants feloniously, wilfully and unlawfully destroyed them.

It matters not, as we have shown, whether this destruction took place before or after the commissioner had prepared his report. As the destruction is alleged to have taken place on the 11th day of September, it was certainly before he had made his report to the legislature.

To test the matter a little further, suppose the commissioner resigns, or is removed from his office after he has, at great labor and expense, obtained these statistical details, can he destroy the papers containing them? Can he use such parts of them as tend to support some theory or some policy which he wishes to maintain and foster, and destroy the rest ? Can a clerk in his office, or some stranger, take and destroy them without responsibility under the law ? Are these valuable papers absolutely without protection except such as the commissioner may voluntarily give ? Can he not be compelled to deliver them over to his successor in office under the Eevised Statutes and under the Code as now-amended ? The answers to these questions, it seems to us, are quite obvious.

The learned counsel for the defendants claims that these circulars, with the answers therein, were not “ statistics ” as defined by the authorities which he cites. But that they contained statistical details, the primary elements out of which a table or system of statistics could be framed cannot be doubted.

It is quite true that every paper that comes into a public office in the performance of the duties of the officer who has charge of the office is not within the section of the Penal Code claimed to have been violated by the defendants. It is not easy to give a definition or description so comprehensive and accurate as to include every paper contemplated by the section. It is enough for the present purpose to say that papers which a public officer is required to obtain in the discharge of his official duties, which have public importance and are of permanent value and may serve a useful purpose after they have been deposited in his office or with him, are under the protection of the law.

If these papers had actually served their whole purpose so that they could no longer be of any use, they could have been destroyed with impunity, and it cannot be supposed that it was intended by the law to save such papers from destruction.

If these papers contained material and pertinent information collected under the act and for the purposes contemplated by the act, then the indictment could not be defended on the ground that the papers were the private papers of the persons sending them to the commissioner, or that the information thus communicated was confidentially disclosed. The statute makes it the duty of the commissioner to procure the information and makes it the duty of the persons designated to give it, and when the information is given it becomes public and is for a public purpose, and no stipulation or promise on the part of the commissioner can give it any other character.

We regard this as a plain case involving no abstruse questions of law. We have not, therefore, deemed it important to refer to or criticise the authorities, having more or less bearing, cited upon the argument. They will be found in the carefully prepared briefs submitted.

We ought not to close this discussion without referring to the very able prevailing opinions delivered in the court below. We would have rested our decision upon those opinions but for the novelty of this case and its public importance.

The judgment should be affirmed.

All concur.


author: Maynard, J.

text:
    The People, Resp'ts, v. William G. Taylor, App'lt.

      (Court of Appeals,

      Filed June 6, 1893.)

    1. Homicide—Insanity.
    T., a convict in Auburn state prison, killed a fellow convict. T. had previously been in the asylum for insane criminals under treatment for melancholia. His conduct was generally good, but he lured deceased into a shed and killed him with a knife, and then walked to the office of the keeper and showed him the knife dripping with blood, and told him that • if he would go down under the shop he would find a carcass there. He also said that he did it in order “to be electrocuted.” In order to bring about a reform in the prison management he had intended to kill a warden, but not having an opportunity he decided to kill a fellow convict, and selected the deceased because he claimed he had been placed as a spy over him, etc. He refused upon his trial to aid his counsel in his defense. Three physicians testified that he was insane, but five medical experts were of the opinion that he was sane. Held, that the issue of sanity was a proper subject for final determination by the jury.
    2. Same.
    An insane delusion with reference to the conduct and attitude of another cannot excuse the criminal act of taking his life, unless it is of such a character that if it had been true it would have rendered the homicide excusable or justifiable.
    3. Same.
    A desire for self destruction, and the adoption of means to secure, it do not of themselves indicate a mental impairment which has advanced to the stage of irresponsibility.
    4. Same—Charge to jury.
    Single expressions in a charge cannot be dislocated from the context and construed as if they were the statement of separate and independent propositions; but the entire exposition of the law upon a given point by the judge must be taken.
    Appeal from the Cayuga county oyer and terminer, convicting defendant of the crime of murder intefirst degree.

      Frank C. Cushing, for app’lt; Adelbert P. Rich, dist. att’y, for resp’ts.
   Maynard, J.

Judgment of death has been pronounced upon the defendant, William Gr. Taylor, a convict in the state prison at Auburn, for killing Solomon Johnson, a fellow convict, on September 20, 1892. The felonious act was executed with great deliberation, and ■ had, evidently, been long premeditated.. The method of its accomplishment was planned with great cunning and forethought, and every element, apparently, existed which the law requires to be present in order to establish this most atrocious crime. Counsel, assigned by the court to defend the prisoner, have discharged that most delicate and responsible duty with great diligence and fidelity, and have urged a reversal of this judgment upon the sole ground of the legal irresponsibility of the defendant for the offense of which he has been convicted. It is manifest that this defense has some basis upon which to rest, and that it has not been invented to meet the exigencies of the trial. In determining whether the verdict was against the weight of evidence, or whether justice demands that a new trial shall be had, it becomes incumbent upon us to make a careful and critical examination of the evidence in view of the previous history and conduct of the defendant.

The defendant has been living the life of a felon since 1886, when he was sentenced to Dannemora prison upon a conviction for burglary, for a term of three years, which expired in the summer of 1888, having received the usual commutation for good behavior. Very soon after his discharge, and in the same year, he was returned to the prison to serve out two sentences for burglary, aggregating about eleven years. From the time of his readmission his conduct was exemplary with a single exception. He was obedient and tractable, and readily submitted to all- of the requirements of the prison discipline until April 28, 1890, when, without provocation or warning, he assaulted his keeper with a hatchet and felled him to the floor. He was immediately seized and placed in close confinement. His demeanor was such as to lead the prison physician to suspect that he might be insane.

He was therefore closely watched and examined daily, and this physician reached the conclusion that he was suffering from that form of insanity known as melancholia. His physical symptoms indicated the correctness of the diagnosis. He had the stolid appearance, the slow muscular movements, the flabby, tremulous and coated tongue, and the slow and weak.pulse, usually observable in such cases. When questioned as to his purpose in assaulting the keeper, he always told the same story, that he had concealed the hatchet in his cell on Saturday to enable him to dig his way out and escape, and failing in that, and knowing that his attempt would be detected, and believing that he would not outlive his sentence, he knocked the keeper down, not intending to kill him, but to secure his revolver and kill himself. He avoided the association of others and wished to be allowed to remain in his cell, saying that he thought he would either kill himself or some one else if he was allowed the liberty a prisoner was usually given. On September 29, 1890, he was transferred as an insane convict to the asylum for insane criminals at Auburn, and in the certificate of transfer the prison physician stated, among other things, “ I believe him to be suffering from temporary melancholia, and not a safe man to keep in state prison, as he -is both suicidal and homicidal. I would, therefore, suggest caution and watchfulness in handling him,-as I think he is bent on escape at any cost.”

The defendant was detained in the asylum until September 20, 1891, when the entry “ not insane ” was made in the “ case book ” opposite his name, and he was transferred to the prison and put to work in the broom shop. The medical superintendent of the asylum states that during this period he was sane, and this entry was made by his direction. The assistant superintendent, in whose charge the defendant was, and who bad, perhaps, better opportunities to know his mental condition, objected to this entry as not correctly describing his status, and testifies that during all the time there was a doubt in his mind as to his sanity; that while he expressed no well-defined delusions, his facial aspect and actions were those of a man not mentally sound, and that he favored making an entry that he was recovering, which would indicate that he had been insane and might have a recurrence of the attack, while the statement “ not insane ’’ would be construed to mean that he had always been sane; but yielding to the directions of his superior, he made the entry as stated.

The defendant and deceased worked in the same shop and at benches a few feet apart. The latter was a quiet, inoffensive man, and between the two friendly and somewhat intimate relations seem to have existed for some months. From the time of his admission, in September, 1891, until the homicide, the defendant’s prison record was good. He was quiet, self-contained, diligent, industrious and skillful in his work, and was never reproved, for any misbehavior. It appears, from the testimony of several of the convicts who worked in the same shop, that, in the month of April, he exhibited, without any apparent cause, a feeling of great hostility to the deceased. The professed occasion for it was, as he claimed, that he had been thwarted in a scheme which he had formed of making his escape by means of a gateway which was in process of construction between the asylum and the prison grounds, and that the deceased had informed the prison authorities of his design, and thus caused its failure. It would seem that his plan of escape was not a rational one, if he ever really entertained it; it does not appear that he ever confided it to the deceased ; or that the latter had informed anyone in regard to it; or that any person had told the defendant that the deceased bad given any such information; and we think that the weight of the evidence favors the conclusion that his feelings in this respect towards the deceased were the offspring of an insane delusion. From the defendant’s manner, the deceased became apprehensive of bodily harm and he was, at his own request, transferred to a distant part of the shop, where he would not be within reach of the defendant. Daring the summer the defendant frequently threatened to kill the deceased, because the latter had, as he believed, informed upon him, and there was no intercourse between them until the day before the homicide, when the defendant, upon his own motion, effected a reconciliation and established friendly relations with the deceased, and seems to have regained his confidence. The next afternoon, when the work of the day was over and all the other convicts had left the shop, the defendant lured him into a shed under the shop upon the pretense that he had some contraband articles to show him, and there killed him with a knife which he had concealed upon his person, almost completely severing the head from the body. Without displaying any trace of emotion or excitement, and with his arms folded, he walked to the office of the principal keeper and, exhibiting the knife dripping with blood, told him that if he would go down under the shop, he would find a carcass there. When questioned as to the motive which prompted the deed, he said that he had to do one of three things, either starve to death, or kill the deceased or kill himself, and that he did it in order “ to be electrocuted,” and that he did not want his execution to be delayed.

The loss of commutation for good behavior, which he had incurred by his conduct at Dannemora, seemed to weigh heavily upon his mind, and he apparently despaired of his physical ability to survive the full period of his sentence, and his prison life had become so unendurable that he desired to put an end to his own existence, which he conceived he could not do except in one of the three ways indicated. His morbid condition of mind was aggravated by the effects of a pernicious habit, which he believed had wrecked him both physically and morally; and by his belief that there were many other prisoners in the same condition ; that they would be greatly benefited by a change of prison management; and that it was necessary to kill someone to attract attention to the matter and bring about a reform; that his first intention was to kill the warden, but not having an opportunity, he decided to kill a fellow-convict, and selected the deceased because he had been placed as a spy over him, and had informed the authorities of his plan to escape.

The trial was had on January 10, 1893, less than four months after the homicide, and it is shown that there was no change in the mental condition of the defendant during that time. He refused to aid his counsel in the preparation of his defense, or give him any specific information in regard to his previous life or his family, and repeatedly stated in substance to the physician who examined him that he didn’t want any nonsense about the thing, and didn’t want his trial postponed, but wanted it quickly over, and “ to be electrocuted.”

He was thrice examined by the assistant physician of the asylum between the time of the homicide and the trial, who unhesitatingly pronounced him insane, and added that in his opinion he was a dangerous lunatic, and suffered from melancholia, with homicidal delusions. He was also examined three times by another physician, who had given some special study to the subject of insanity, who reached the same conclusion. Both of these physicians say that upon each examination he exhibited a marked tremor, or independent twitching of the small fibres of the tongue, which is characteristic of lunatics. He also had the well-recognized facial expression indicating melancholia and other physicial symptoms of that form of mental disturbance, such as cold and clammy hands, and the involuntary movement of the muscles about the mouth. The prison physician at Dannemora affirmed upon oath the truth of the statement contained in the transfer certificate, that he believed him then to be insane, with suicidal and homicidal tendencies.

On the part of the prosecution five medical experts were examined, and all of them were of the opinion, clearly and unequivocally, that the defendant was sane. This opinion was not based upon hypothetical questions or an assumed state of facts, but was derived from- repeated personal examinations. All the witnesses had given special study and attention to the subject of insanity. One of them was the medical superintendent of the asylum, in whose charge the defendant had been for the period of a year, who had spent a large.portion of his professional life in the care and treatment of insane persons, and is now the superintendent of the state hospital for insane convicts at Matteawan. Another was the prison physician, who saw the defendant at the time of the homicide, and who, with an associate, made a careful examination of him the following day; and another witness had attended the defendant professionally shortly before the crime was committed. They all, therefore, had adequate means for the formation of a correct judgment as to his mental condition. No one of them discovered any of the physical symptoms of insanity described bv the defendant’s witnesses.

In this state of the evidence the issue of sanity was a proper subject for final determination by the jury, and we do not think that this court, even if it'possessed the power, should disturb their verdict. But the rule is now firmly established by repeated decisions of this court, that in exercising the jurisdiction conferred by § 528 of the Criminal Code in capital cases, we shall be governed by the practice regulating the review of questions of fact upon appeal to the supreme court, and that in such cases, if there is a fair conflict in the evidence, or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake or corruption. People v. Loppy, 128 N. Y., 629; 40 St. Rep., 410; People v. Trezza, 125 N. Y., 740; 36 St. Rep., 149; People v. Fish, 125 N. Y., 136; 34 St. Rep., 840; People v. Stone, 117 N. Y., 480; 27 St. Rep., 823.

If, in the judgment of this court, there was a rational doubt of the guilt of • the defendant, it would not be a sufficient ground for reversal. Under our system of criminal jurisprudence, it becomes the exclusive province of the jury to determine whether the evidence pointing to the guilt of the accused is so lacking in convincing force as to leave an intelligent and discriminating mind in doubt as to the truth of the charge contained in the indictment.

When the jury, by their verdict, have declared that no such condition of mental uncertainty has arisen from a contemplation of the evidence, the prisoner has had the full benefit of the rule of law which protects him from punishment unless his crime is established beyond a reasonable doubt, and the question is not open for review in this court, unless the case is so weak that the verdict should be set aside because against the weight of evidence, or for other sufficient cause. The charge of the trial judge upon this point was full and explicit, and eminently fair to the defendant. The jury were told that upon the issue of the defendant’s sanity, as upon every other controverted question in the case, the defendant is entitled to the benefit of every doubt which is reasonable, which can be reasonably entertained by a reasonable man; and this proposition was reiterated- and emphasized, so that it must have been prominently and pervasively in the minds of the jury when they retired for their final deliberation.

Counsel relies with great confidence upon the proof of an insane delusion as to the part which the deceased had taken in preventing the execution of the defendant’s plan of escape, but this delusion, if established, would not of itself be a sufficient answer to the present indictment. It may be that if the question of its existence were separately submitted to a jury they might find, as we might be compelled to find, if submitted to us, that the weight of evidence seemed to indicate its existence. That fact, if conclusively established, would fall far short of a defense. An insane delusion with reference to the conduct and attitude of another cannot excuse the criminal act of taking his life, unless it is of such a character that, if it had been true, it would have rendered the homicide excusable or justifiable. If the defendant had actually planned a mode of escape from prison, and had confided his scheme to the deceased, and the latter had betrayed his confidence, and informed the authorities of his purpose, and by means of such information it had been frustrated, it would have afforded the defendant no justification for his act, but would have augmented its enormity, because inspired by the unholy motive of revenge. How then can the false belief, standing by itself, that these things had happened, affect the criminal nature of the defendant’s wrong ? The existence of such a delusion, or of any delusion, might be considered, and doubtless was considered by the jury in this case, in determining whether the defendant was so far mentally sound as to be conscious that he was doing a prohibited act.

The provision of the Revised Statutes, part 4, chap. 1, title 7, § 2, which declared that “ Ho act done by a person in a state of insanity can be punished as an offense,” was abrogated by the Penal Code, which provided, § 17, that responsibility is to be presumed, and the burden of disproving it is upon the accused, and, § 21, that he cannot be excused from criminal liability as an insane person, except upon proof that at the time of committing the alleged criminal act he was laboring under such a defect of reason as either not to know the nature and quality of the act he was doing or that the act was wrong. Partial insanity, or incipient insanity, is not sufficient, if there is still the ability to form a correct perception of the legal quality of the act and to know that it is wrong. If, when a specific act is contemplated, he has the power to know whether it is wrong to do it and right to refrain from doing it the law presumes that he has also the power to choose between the right and the wrong course of action, and will not permit either courts or juries to speculate as to its possible non-existence. Eminent alienists criticise the rule of the Penal Code, because it excludes consideration of the question whether the accused possessed sufficient power of self-restraint to forbear the commission of an act which he clearly perceived to be criminal. They contend that it is unreasonable and unjust to punish a human being for that which he does not have the power to refrain from doing, but if such a result may follow, which we by no means admit, it is an argument to be addressed to the body which makes the law, and not to the tribunal whose sole duty it is to construe, apply and enforce it.

The learned physicians who testified that, in their judgment, the defendant was insane and irresponsible, candidly admitted that they did not approve of the statutory measure of responsibility, and that their opinion was not circumscribed by it, and that the defendant, when he killed the deceased, undoubtedly knew that the act was a violation of the law of the state. It must be admitted that he so understood it, for it is evident that it was planned and executed in order that he might expose himself to-the extreme penaltjr which follows its commission. He has uniformly and consistently adhered to the declaration that his principal object was to terminate his own existence by meriting the punishment of death. The proof is thus very strong and conclusive that he correctly recognized the legal quality of his act and truly appreciated its criminal character. Here, again, it is urged that if his real motive was to eventually compass his own death, it should be accepted as evidence of a disordered mind. While this may be considered in connection with other circumstances in determining the issue of sanity, it is not entitled to controlling weight. A desire for self-destruction and the adoption of means to secure it do not of themselves indicate a mental impairment which has advanced to the stage of irresponsibility, otherwise the law would not make the attempt to kill one’s self a crime.

The verdict of the jury in this case is fortified by the report of a special commission appointed pursuant to the provisions of § 658 of the Criminal Code. Before sentence was pronounced the defendant’s counsel moved for the appointment of this commission to determine his present sanity, and the trial court appointed a physician of high standing, and eminent in his profession as a specialist in the treatment of the insane, to make the examination. The commissioner was attended by the district attorney and the counsel for the defendant; all the evidence taken at the trial and appearing in this record was read to him; the hearing occupied three days, and it is evident that it was of the most searching and impartial character, and the learned commissioner reported that after having heard the evidence, and personally examined the defendant on several different occasions and obtained his family history, he is of the opinion that the defendant was sane at the time of the examination and is now sane.. As it is quite clear from the evidence before us that the defendant’s mental condition at the time of the trial was not in any material respect different from what it was at the time of the homicide, this report renders it highly improbable that any error of judgment was committed by the jury in determining the principal issue submitted to them.

We think the witness, Mead, was properly allowed to characterize as rational or irrational the acts and conversations of the defendant which he had detailed. The evidence was admissible within the rule repeatedly recognized in this court. Paine v. Aldrich, 133 N. Y., 544; 44 St. Rep., 308; People v. Conroy, 97 N. Y., 62; Clapp v. Fullerton, 34 id., 190. Similar questions were put to other witnesses who had only stated in general terms the acts and conversations which they were permitted to characterize. Under a strict application of the rule, these had not been described with sufficient minuteness of detail to render an opinion as to their rational or irrational character competent, but no objection was made to the evidence, and it is to be assumed upon appeal that if objection had been made, on that ground, it would have been obviated, and we cannot see that the defendant was materially prejudiced by its admission.

It is insisted that the charge to the jury contained an erroneous instruction to the effect that the defendant was responsible for his act if he had sufficient mental vigor and capacity to distinguish between right and wrong in the abstract. We do not think the charge was fairly susceptible of such a construction. The learned trial judge instructed the jury with great clearness and precision upon the statutory rule of responsibility for crime, and directed their minds to the very point upon which the rule rests, and repeatedly charged them, in substance, that if the defendant’s mind was so far impaired or deranged as to render him incapable of knowing the nature and quality of the act he was perpetrating, or that the act was wrong, he should be acquitted, and that if they had any reasonable doubt upon the subject he should be given the benefit of it. Whérever reference is made throughout the charge to the power of discrimination between right and wrong, it is evident that the particular act charged in the indictment is intended, and the jury must have so understood it. Single expressions cannot be dislocated from the context and construed as if they were the statement of separate and independent propositions ; but the entire exposition of the law upon a given point by the judge must be taken, and when the charge is so analyzed it is apparent that no error was committed; but the prisoner was accorded the benefit of every rule which has been established for his protection.

The judgment of conviction must, therefore, be affirmed.

All concur, Peckham and O’Briem, JJ., in result.


author: Andrews, Ch. J.

text:
    Charles Gotthelf, Resp't, v. James S. T. Stranahan, App'lt.

      (Court of Appeals,

      Filed June 6, 1893.)

    Specific performance—Assessments levied pending completion of CONTRACT OF SALE.
    Plaintiff contracted to purchase from defendant a plot of land in Brooklyn bounded by a road and by a proposed street which was then under water. The time for completion was extended, at first for plaintiff’s convenience, and later to enable defendant to remove squatters on the lands. During this time assessments were laid for the improvement of said road and street. Defendant refused to give a deed with covenants against incumbrances as of the final adjourned day, but tendered one with covenants as of the original date. Held, that in view of the condition of the property when the contract was made and the fact that assessments in Brooklyn are made in advance of the making of the improvement, it would be inequitable to require defendant to covenant against such assessments; that under the charter of Brooklyn such assessments were not incumbrances within the meaning of the contract.
    Appeal from judgment of the city court of Brooklyn, general term, affirming judgment for plaintiff in an action for specific performance of a contract for the sale of land.

      Wm. C. De Witt, for app'lt; George G. Reynolds, for resp't.

       Modifying 46 St. Rep., 312.

   Andrews, Ch. J.

The original contract, made on the 7th day of January, 1891, was by its terms to be completed by a conveyance and payment of the unpaid purchase money on the 9th day of February in the same year. The vendee was to pay for the property the sum of $22,500 as follows: $2,000 on the execution of the contract, $4,750 on the execution of the deed, and the balance of $15,750 in five years, with interest, to be secured by mortgage on the land. The vendor was to convey the land by warranty deed in fee simple, free from all incumbrance. The vendee, on the execution of the contract, paid the sum of $2,000 as provided. If the contract had been performed on the 9th day of February, 1891, according to its terms, the question now presented would not have arisen. The assessments had not then been laid, and if the deed had been given on that day, they would have become a charge on the land subsequent to the conveyance, and the defendant would have been under no obligation, legal or equitable, to pay them. They would have attached as a charge upon the title acquired by the plaintiff.

But by the mutual assent of the parties the completion of the contract was postponed from time to time, in all for a period of three months, until May 9, 1891. The first postponement, until February 16, 1891, was for the accommodation of the plaintiff. The others were for the accommodation of the defendant, to enable him to clear the land of squatters who had gone upon it without permission and erected shanties and hovels in which they lived, and between whom and the defendant, in some cases, an irregular sort of tenancy had grown up, by the payment and receipt, from time to time, of small sums as rent. During this period of three months two assessments on the property for local improvements were laid and confirmed by the city of Brooklyn; one on,the 3d day of March, 1891, for $901.12, for the grading and paving of Bush street, and one on the 28th day of April, 1891, for $1,079.-33, for the grading and paving of William street.

This action is brought by the vendee against the vendor to compel a specific performance of the contract of sale. The defendant is ready and willing, and has offered to convey the premises with covenant of warranty as of the 9th day of February, 1891, the day originally fixed for the execution of the deed. The plaintiff insists that the vendor is bound to warrant the title as against the assessments mentioned. This is the controversy in the case, and the point for determination is whether the plaintiff, upon equitable principles, is entitled to the relief he seeks, and to east upon the defendant the burden of paying the assessments. He does not ask to be relieved from the contract. He elects to have a decree for performance upon such conditions as the court shall determine, in case it shall be held that, upon principles of law or equity, he is not entitled to demand a covenant by the defendant covering the lien created by the assessments.

The premises contracted to be sold consisted of a block and part of a block of land in one of the outlying wards of Brooklyn, which, when the contract was made, was partly covered by water, and was unfenced and commons. Bush street, adjoining the southerly side of the land, was a traveled road, and had been such for many years. It was graded to some extent, but had not been paved. It was an ordinary country road. One of the assessments was for the contemplated improvement of Bush street. William street, to which the other assessment related, was mostly under water. In view of the peculiar system of local improvements prevailing in Brooklyn, one question presented is, whether the assessments in question constituted incumbrances on the land in May, 1891, when the defendant offered to convey, within the true meaning of the contract of sale. The charter of Brooklyn is unique in respect to its system of local improvements. The district of assessment is to be prescribed, and the estimated cost of contemplated local improvements is required to be assessed on the district benefited, and a warrant for the collection of the assessments issued, and at least one-third of the aggregate assessment must have been collected before any contract for making the improvement is authorized to be made, and the city may, even after the assessments have been collected, decline to make a contract, or to go on with the improvement, and may discontinue the proceedings, returning the money collected on the assessments. Laws of 1888, chap. 583, title 19. §§ 1 to 8 inclusive.

In other cities assessments for local improvements follow the performance of the work. In Brooklyn they precede the execution, and are collectible in advance. The contemplated improvements of Bush and William streets, for which the assessments in question were laid, have not yet been made. There is no explanation, of the delay. When the proceedings were initiated does not appear, and referring to the charter provisions, there can be no inference that any step whatever had been taken when the contract of sale was executed, or prior to the 9th of February, 1891, when, by the original contract, the deed was to have been given. The parties entered into a contract for the sale of unimproved land. The consideration to be paid and received was presumably based on the value of the land in its existing condition. William street had no existence except on the city map, and Bush street was an ordinary road. Whether this condition would be changed at any time, and whether William street would be raised and made dry land, and Bush street be improved and brought to the condition- of an ordinary city street, could not be known by the parties to the contract. If they anticipated that at some time the city would enter upon the improvement of this section of the city, they knew that any charge which might be imposed on the property embraced in the contract for the expense of such improvement would represent the benefit received by it from the improvement, as the theory of such assessment is that the value of the land would be enhanced by at least an equivalent amount. It is impossible to suppose that the parties contemplated when the contract was executed that incumbrances created by the force of public law for improvements initiated after the making of the contract, and intermediate that date and the time fixed for the conveyance, should be paid by the vendor. If the contract can have this construction, then the plaintiff is entitled to property not in the condition it was in when he contracted to purchase it, but an improved estate, improved at the expense of the vendor by the act of the city, which he could not control, initiated'after the contract was made. This construction would compel the vendor to pay out of the purchase money the cost of an improvement which by so much has increased or will increase the value of the property, and the vendee would acquire property which he did not pay for.

The question as to the true meaning of the contract to convey free from all incumbrances is quite different from that which would be presented by an assessment made intermediate the date of the contract and the time fixed for the conveyance for a local improvement made before the contract was entered into. In that case the purchaser buys with the improvements made and presumably pays a price fixed with reference to the land in its existing condition. The case of periodical taxes for the support of government, assessed and laid between the date of a contract and the time fixed for the conveyance, would constitute an incumbrance within the meaning of the covenant. The time of the imposition of such taxes is known in advance, and unless excepted from the covenant would be deemed to be covered thereby. But under the charter of Brooklyn assessments for local improvements are made in advance of the execution of the work. They represent, or are supposed to represent, benefits thereafter to be secured to the property assessed. The time when improvements will be initiated cannot be known.

The contract to convey free from incumbrances ordinarily has reference to incumbrances or liens actually existing when the contract is executed, or thereafter created, or suffered by the act or default of the vendor. While the assessments in question constituted, under the charter of Brooklyn, liens on the lands assessed from the time of their confirmation by the common council, and are in a strict sense incumbrances thereon, we are of opinion that they are not incumbrances within the meaning of the contract. They did not diminish the value of the subject of the contract. The plaintiff will acquire what the defendant intended to sell and what he expected to receive, and but for the postponement of the time of the execution of the deed the plaintiff would have taken his title before the assessments were laid. This incident ought not to impose upon the defendant a loss pro tanto of so much of the purchase money.

But even if the contract by its true interpretation imposes upon the defendant the legal obligation to pay the assessment, this is not decisive of the right of the plaintiff to relief by way of specific performance. This equitable remedy cannot be claimed as a matter of right. It is discretionary with the court to grant or withhold it in furtherance of justice, or to prevent injustice. Where by reason of circumstances attending the making of the contract, such as fraud, accident, mistake, or where unconscionable advantage has been taken, or where by reason of circumstances which have intervened between the making of the contract and the bringing of the action the enforcement of the equitable 2-emedy would be inequitable and produce results not within the intent or understanding of the parties when the bargain was made, and thei’e has been no inexcusable laches or inattention by the party resisting performance in not foreseeing and providing for contingencies which have subsequently arisen, the court may and will refuse to specifically enfoi’ce the contract, and will leave the party to his legal i’emedy.

The cases are very numerous under this head, and no hard and fast rule can be formulated by which it can be readily determined how the discretion of the court in a given case should be exercised.

But it seems to us to be very clear that to enforce the contract in this case by requiring the defendant to covenant against the assessments in question would violate the spirit of the conti-act and convert the equitable power of the court into an instrument for the accomplishment of rank injustice.

The case of Willard v. Tayloe, 8 Wall., 564, contains an able discussion of the principles governing the courts in administering relief by way of specific performance of contracts, and Mr. Justice Field, in his opinion in that case, so fully cites the authorities that .a further reference to them here is unnecessai’y.

We think the judgment of the special and general terms should be modified by excepting from the scope of the covenant in the deed to be given by the defendant the assessments in question, and that, as modified, the judgment should be affirmed, with •costs to the defendant in all courts.

All concur, except Gray, J., not voting.