text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. MAGGIE CARTMILL and Others v. THE CITY OF ROCHESTER, Respondent.

      City ordinance forbidding noise in streets — when singing by members of the Salvation Army does not constitute a nuisance or violate such an ordinance —form of judgment for the penalty and of the execution to be issued upon it.

    The relators were convicted of violating a penal ordinance of the city of Rochester, which provided that no person shall make, aid, countenance, or assist in making, any noise, disturbance or improper diversion in any of the streets, public squares, lanes, alleys or other public places in the city of Rochester; nor shall any assemblage or crowd of persons collect in such streets, public squares, lanes or alleys, or on any of the bridges, to the annoyance or disturbance of any of the citizens or others, under a penally of ten dollars for each offense. Upon the trial it appeared that on the occasion in question (a Sunday afternoon) seven members of what is known as the “ Salvation Army,” including the relators were walking in single file on the sidewalk on North avenue, towards and near their barracks. Three of them were singing the words of a religious song, and one of them was carrying a small flag. Their object was to draw into their barracks those who were on the streets and in the saloons in order to convert them and to persuade them to leave their evil ways.
    There was no evidence tending to show that there was any disorderly crowd, or that there was anything indecent or immoral in the appearance or conduct of the relators, or in the words which they sang, or that any person was disturbed or annoyed by their singing.

      Held, that the conduct of the relators did not constitute a nuisance, nor did it justify their conviction of a violation of the ordinance.
    That the provision of the ordinance that no person should make any noise in the public streets was not to be construed literally, nor was it intended to interfere with individual liberty of action in any respect, except so far as might be necessary to preserve the public peace and order and to prevent public annoyance or disturbance.
    That a procession in a public street is not necessarily a nuisance.
    That the fact that the occurrence was on Sunday did not affect the question.
    That it was not pertinent to inquire into the sentiments or purposes of the organization of which the relators were members, or the expediency or propriety' of their practice, in a religious or moral point of view, so long as there was nothing in their conduct which was unlawful or which threatened some tangible public or private mischief.
    Judgment was taken against the relators “for ten dollars or to be imprisoned in the Monroe County Penitentiary for twenty days.”

      It seems, that the court had no power to enter such a judgment; that, under the provisions of the city charter and the ordinances passed pursuant thereto, it could only enter a judgment ior tlie penalty, and that the execution to be issued thereon could only direct the imprisonment of the defendant in case no property of the defendant could be found out of which to make the amount of the judgment. (Smith, P. J.)
    Certiorari to review a judgment of the Police Court of the city of Rochester, convicting the relators of a violation of an ordinance of said city relating to nuisances.

      W. Henry Davis, for the relators.

      Iva/n Powers, city attorney, for the respondent.
   Smith, P. J.:

The relators were convicted of violating a penal ordinance of the city of Rochester, relating to nuisances, by creating a noise and disturbance upon a public street of said city. The ordinance under which the conviction was had provides that no>person shall make, aid, countenance or assist in making any noise, disturbance or improper diversion in any of the streets, public squares, lanes^ alleys or other public places in the city of Rochester, nor shall any assemblage or crowd of persons collect in such streets, public squares, lanes or alleys, or on any of the bridges, to the annoyance or disturbance of any of the citizens, or others, under a penalty of ten dollars for each offense. The charter of the city (Laws 1880, chap. 14, § 40) confers upon the common council power to make such ordinances as it may deem desirable within said city, for the following purposes, among others, viz. (Sub. 1.): “ To prevent vice and immorality, to preserve public peace and good order, to» prevent and quell riots, disturbances and disorderly assemblages-.” (Sub. 16.) To regulate the ringing of bells and the crying of goods and other commodities for sale at auction, and otherwise, and to' prevent disturbing noises in the street; .and subdivision 5 of said section gives authority to abate or remove nuisances of every kind.”

The relators were members of what is known as the “ Salvation Army.” On the occasion in question (a Sunday afternoon) seven of the members of that organization, including the relators, were walking in single file on the sidewalk on North avenue, towards and near their barracks. Three of them were singing the words of what one of the witnesses termed a religious song, “ We Will Walk in the Light of God,” and one of them was carrying a small flag. Their object, as some of them testified, was to draw into their barracks those who were on the streets and in the saloons, in order to convert them and to persuade them to leave their evil ways. While they were thus engaged, they were arrested by a person who was not shown to have held any official position that authorized him to make the arrest, and who admitted on the stand that he had no warrant. They were taken before the police justice, by whom they were tried. Larragy, the person who arrested them, testified that they were “ acting in a disorderly manner,” but it is obvious from his testimony that what he regarded as disorderly was that which he characterized by the double appellation of “ singing and hallooing ” on the streets, he not stating that there was any hallooing other than the singing. He did testify that he heard one of them say, '•“we will fight,” but which of them said it he did not state. He also testified that there was “ a crowd following them, any place from twenty-five to fifty, or one hundred to one hundred and fifty,” a statement in which he was not corroborated by any other witness, while several of the witnesses for the defense testified that there were very few persons on the street before the arrest was made. If there was a crowd, there is no evidence that it was disorderly or that it disturbed anyone. There was no proof that there was anything indecent or immoral in the appearance or conduct of the relators, or in the words which they sang, nor that any person was ■' disturbed or annoyed by their singing, unless it was the one who • arrested them. It was not shown or claimed that there was any collision, tumult or disturbance of any kind before the arrest, except that one of the witnesses testified that the horse he was driving was disturbed by the flag, but to what extent, or how the disturbance was manifested by the animal, did not appear. It is apparent, therefore, from all the testimony, that the relators were simply marching upon the sidewalk, carrying a flag and singing, according to their custom, to induce those who happened to see or hear them to follow them to their barracks. And the question is presented, whether such conduct amounted to a nuisance within the meaning of the ordinance and the provisions of the charter above referred to.

'• The .provision of the ordinance that no person shall make any noise in the public streets is not to be construed literally. It was not intended to wrap the streets of a commercial city in unbroken silence, or to suppress or diminish the roar of travel and traffic with which they almost incessantly resound. Nor was it intended to interfere with individual liberty of action in any respect, except so far as may be necessary to preserve the public peace and order, and to prevent public annoyance or disturbance. If the ordinance in question goes beyond that limit it exceeds the authority given by the charter to the common council. The provisions of the charter, in pursuance of which the ordinance was enacted, are designed to prevent public disorder and disturbance. The same clause which gives power to the common council “ to prevent disturbing noises m the streets,” impliedly withholds the power to prevent “the ringing of bells and the crying of goods for sale at auction ” in the streets by giving authority merely to “regulate” them. Unless the practice is permitted there is nothing to regulate,

A procession in a public street is not necessarily a nuisance. It can hardly be supposed that a political procession, like those which frequently march through the streets of our cities and villages, with banners and bands of music, in a presidential campaign, is within the purview of the provisions referred to. So of like military and civic demonstrations. But if such processions are lawful, wherein did the relators offend ? Had they stopped and gathered a crowd, blocking the sidewalk an unreasonable length of time, and impeding the progress of passengers, doubtless their conduct would have amounted to a nuisance at common law. (Rex v. Carlile, 6 Carr. & P., 636.) Had they made any indecent or immoral demonstration, or used abusive or insulting language towards others, or sought a quarrel with passers-by, they might well have been held guilty of making a “ disturbance or improper diversion ” in a public street. But, as we understand the testimony, it does not appear that anything of that kind occurred. Their singing and display of the flag were simply the means they ordinarily used to attract attention and procure followers to their quarters, and we do not think the use of those means can be said, under the circumstances, to have amounted to a disturbance of the public peace, within the meaning of the ordinance and the charter. Like means used by showmen, exhibitors and vendors of wares, under ordinary circumstances, to attract public attention, would hardly be regarded as infractions of the ordinance.

The fact that the occurrence -was on Sunday, we think, does not affect the question. The ordinance is not a Sunday regulation. It applies to all days alike. As the conviction is under the ordinance alone, the only question is whether the acts of the relators were a violation of the ordinance, without reference to the day of the week on which they occurred. Nor, in our judgment, is it pertinent to inquire into the sentiments or purposes of the organization of which the relators are members, or the expediency or propriety of their practices, in a religious or moral point of view, so long as there is nothing in their conduct which is unlawful, or which threatens some tangible public or private mischief. At the same time, to use the words of a distinguished jurist, “we cannot accede to the suggestion that religious liberty includes the right to introduce and carry out every scheme or purpose which persons see fit to claim as part of their religious system. There is no legal authority to constrain belief, but no one can lawfully stretch his own liberty of action so as to interfere with that of his neighbors, or violate- peace and good order. The whole criminal law might be practically superseded if, under pretext of liberty of conscience, the commission of crime is made a religious dogma. It is a fundamental condition of all liberty, and necessary to civil society, that all men must exercise their rights in harmony, and must yield to such restrictions as are necessary to produce that result. It is not competent to make any exceptions, either for or against the body of which petitioner is a member because of its theories concerning practical work. In law it has the same right, and is subject to the same restrictions in its public demonstrations as any secular body or society which uses similar means for drawing attention or creating interest.” (Per Campbell, C. J. [Mich. Sup. Ct.], In the Matter of Frazee, 6 Western Rep., 140.)

In one respect, it seems to us that the Police Court erred in a matter of procedure. The record states that the defendants were found guilty of violation of the ordinance, and judgment was taken against them “for ten dollars or be imprisoned in the Monroe County Penitentiary for twenty days.” It further states that “judgment was suspended against Mrs, Grieve, and the other defendants were sent to said penitentiary.” It seems to us that the judgment, so far as it subjected the relators to imprisonment, was unauthorized. Our views upon this point are advanced with some hesitation, as the point has not been argued or suggested by counsel, and it is possible there is some provision in ■ the charter or. ordinances of the city, authorizing the judgment in that form, to which our attention has not been directed. But the case appears to us to stand thus : The charter provides that where, by its provisions, the common council have authority to pass ordinances on any subject, they may prescribe any penalty, not exceeding $150 (except when a penalty is therein otherwise provided for) for a violation thereof, and may provide that the offender, on failing to pay the penalty recovered, shall be imprisoned in the Monroe County Penitentiary or county jail, for any term, not exceeding 150 days, which penalties may be sued for and recovered, with costs, in the name of the City of Rochester. We are informed by the brief of the counsel for the respondent, that it is provided by the .forty-second section of the ordinance under which the judgment was rendered, that every execution issued upon a judgment recovered for a violation of said ordinance, except as therein otherwise provided, shall command the amount to be made of the property of the defendant, if any such can be found, and if not, then to commit the defendant to the Monroe County Penitentiary for a period not exceeding twenty days. We have not been referred to, and are not aware of any other provision of the charter or of the ordinances bearing on the subject,with the exception of the first section of the same ordinance which imposes a penalty of ten dollars for each violation of said ordinance therein described. Under these provisions the only judgment authorized was for the penalty. The execution, issued on the judgment, was required to direct the imprisonment of the defendants, but only upon the condition that no property of the defendants could be found out of which to make the amount of the judgment. The judgment did not even follow the direction respecting the form of the execution, for it adjudged the penalty, or imprisonment in the alternative, and did not impose as a condition of the latter, that no property could be found. And for aught that appears, the defendants, except Mrs. Grieve, were sent to the penitentiary without any attempt having been made to find property.

As no appeal is provided by statute from a judgment of the Police Court, the proper remedy for a review of the determination of that court is by certiorari. (Code of Civil Pro., § 2120.)

Por the reasons above stated the judgment should be reversed, with disbursements and fifty dollars costs to the relators.

Haight and Bradley, JJ., concurred; Barker, J., not voting.

Judgment reversed, with fifty dollars costs to relators, also disbursements to relators.


source: Caselaw Access Project

author: Smith, P. J.:

license: Public Domain

text:
    PETER WELLER and CATHARINE WELLER, his Wife, Respondents, v. LOUIS WELLER and Others, Appellants.

      Conveyance of property by an aged and infirm parent to his child — when it will be set aside although no fraud is proved — what facts must be affirmatively proved by the child in order to sustain the deed.

    In May, 1884, Jacob Weller, a son of the plaintiffs, died intestate, leaving his father his only heir-at-law. At the time of his death he owned real estate of the value of $165,000, and personal estate of the value of $105,000. The plaintiffs were, at that time, upwards of eighty years of age, the father especially being infirm. Neither of them could read or write or understand the English language. The husband’s occupation had been that of a mechanic or day laborer until age and his infirmity incapacitated him for hard labor, and he had but little or no property except that left by his son Jacob. Shortly after the death of Jacob the plaintiffs, having confidence in the judgment of another son, Louis, and relying upon him and believing that he would be faithful to them, requested him to take charge of the property as the agent and on behalf of the father, and executed a deed and a bill of sale by which they conveyed to the said Louis, and to his brother Adam, all the said real and personal property absolutely and in fee.
    Upon the trial of this action, brought to set aside the deed and for an accounting, the judge found that at the time the plaintiffs exeented the deed they did not know its contents, import or effect, and that if they had known its import er effect they would not have executed it; but he did not find, in terms, either false representations or fraudulent concealment, or a fraudulent intent on the part of the defendants, or either of them, or that the defendant Louis promised to take care of the property for the plaintiffs, or that the deed was without consideration.

      Held, that a judgment setting aside the deed should be affirmed.

      That although no fraud appeared affirmatively, yet the presumption was against the propriety of the transaction, and the burden rested upon the party claiming under it to show that it was fair, well understood by the donor and freely entered into by him, and this must appear by evidence in addition to that derived from the execution of the instrument conferring the gift.

      JBergen v. Udall (31 Barb., 0); Sears v. Shafer (1 id., 408) followed.
    Appeal from a judgment entered on tlie decision of the court in a case tried at the Erie Equity Term.

      Spencer Clinton, for the appellants.

      Fred. Greiner and Truman C. White, for the respondents.
   Smith, P. J.:

The judgment appealed from sets aside and annuls a deed of real estate executed by the plaintiffs to the defendants, Louis and Adam Weller, in May, 1884, and orders an accounting for the rents and profits. The plaintiffs are husband and wife, and the defendants, .Louis and Adam, are their sons. The other defendants are the wives of Louis and Adam. Jacob J. Weller, another son of the plaintiff, died intestate, at Buffalo, May 10,1884, leaving his father, the said Peter Weller, his only heir-at-law. At the time of his death Jacob owned real estate in Buffalo of the value of about $165,000, and personal property worth about $105,000. He owed debts amounting to not more than $185,000. Shortly after the death of Jacob, the plaintiffs executed and acknowledged the deed above referred to, purporting to quit claim and convey to the defendants, Louis and Adam, all of said real estate, absolutely and in fee About the same time, they executed to their said sons a bill of sale of all the personal property left by Jacob. Each of the plaintiffs was upwards of eighty years of age at the time of the execution of said deed. The husband, especially, was infirm, and neither of them could read, write or understand the English language. The husband’s occupation had been that of a mechanic or day laborer, until age and infirmity incapacitated him for hard labor, arid the plaintiffs had little or no property except that left by Jacob. Adam and Louis were active business men in the prime of life.

The complaint alleges, in substance, that upon the death of Jacob, the defendant Louis, at the request of the plaintiffs, promised to look after the property left by his brother Jacob, and to take all necessary steps and proceedings to preserve the same and to turn over to the plaintiffs the proceeds of such, if any, as he should sell or dispose of, and that the plaintiffs, relying upon Louis and believing he would be faithful to them in looking after their interest in the property left by their deceased son, entrusted to him the duty of so doing, and executed said deed and other instruments in writing presented to them by Louis and Adam, not knowing or understanding their contents, but relying upon their statements and representations that such papers were necessary for the purpose of taking care of said property. And the complaint alleges that Louis and Adam did not disclose to .the plaintiffs, but concealed from them, the nature of said deed of conveyance, with intent to cheat and defraud the plaintiffs out of said real estate. The complaint al&o alleges that said deed was without consideration.

The trial judge has not found, in. terms, either false representations or fraudulent concealment, or a fraudulent intent on the part of the defendants or either of them, or that the deed was without consideration, or that the defendant Louis promised to take care of the property for the plaintiffs. He has found that after the death of Jacob the plaintiffs requested Louis to take charge of the property as the agent, and on behalf of his father; that the plaintiffs relied upon Louis, and had confidence in his judgment, and believed he would be faithful to them in looking after the interests of Peter in said property; that they executed the deed, without knowing its terms, import or effect, and that if they had known its import or effect they would not have executed it.

To those several findings the appellants excepted, and they now challenge their correctness, contending that they are without evidence or against the weight of evidence. The appellants requested the court to find, among other things, that the deed was read to Peter and explained to him before its execution; that it was executed by the plaintiffs, because Louis made it a condition of his taking charge of the property, in conjunction with his brother, that the property should be transferred to him; that the deed was executed under an agreement with Louis and Adam to the effect that it should be executed, and that Louis and Adam should pay the plaintiffs during their joint lives the sum of $300 yearly for their support, and in case of the death of Peter, leaving his wife surviving him, should pay to her the sum of $900 yearly, during her life, for her support, and that Louis and Adam should divide the property among all the brothers and sisters of said Jacob, equally; and that the terms of the agreement under which the deed was executed were discussed soon after the death of Jacob, in the presence of the plaintiffs and of the other brothers and sisters of Jacob, except one. The several requests were declined, and the appellants excepted.

In respect to the questions raised by the exceptions above referred to, it is enough to say that, after a careful reading of the printed case, we find that there is evidence which, although controverted, is sufficient, if believed by the trial judge (as we are to presume it was), to support the several findings excepted to; and that whatever testimony there may be tending to sustain the propositions embraced in the several requests declined by the judge, it is controverted to such an extent as that the decision of the trial judge upon those matters is 'conclusive. In this view of the subject, the exceptions above stated point to no error, and we are to assume the facts of the case, in the particulars above mentioned, to be as found by the trial court.

We have said that the trial judge did not find, in terms, that the deed was without consideration. Neither did he find that it was executed for a good consideration or a consideration of any kind. On the contrary, having been requested by the defendants’ counsel to find that it was executed upon a good and valid consideration, he declined to do so, and he also declined the defendants’ request to find that the deed was executed upon an agreement by the defendants to pay. a certain sum annually for the support of the grantors during their lives, which was the only consideration for said deed alleged by the defendants. The agreement, so alleged, purported to be in writing, executed-by Adam and Louis, only, and bearing even date with the deed. The judge found that neither of the plaintiffs knew the contents or effect of that writing; that it was never accepted by them or either of them; nor did either of them ever consent to the making or execution thereof. There is evidence in the case which, although controverted, tends to sustain those findings. But if the agreement had been made under such circumstances as to be binding, it is apparent from the testimony that the defendants were to be reimbursed from the property left by Jacob, the amount of their advances for the support of the plaintiffs. This appears from the cotemporaneous agreement made by the defendants with their four sisters, by which they agreed to pay over to each of them one-sixth of the surplus of the yearly-rents and profits of the real estate, after the payment of all expenses which they might incur for the support of their parents, and also one-sixth of the proceeds of a sale of any of such real estate, after providing from such proceeds a fund for the future support and maintenance of their parents. The same feature appears in the declaration of trust in behalf of the sisters, which the defendants executed after the commencement of this suit. In corroboration of this view of the matter, is the fact, found by the trial judge, that all moneys paid to the plaintiffs by Louis and Adam came from the personal estate left by Jacob. The deed is, therefore, to be regarded as being without consideration; and the question is presented whether such voluntary conveyance, executed by needy parents, in extreme old age, to their sons, in whom they confided, and in ignorance and misapprehension of its contents and effect, should be upheld by a court of equity, although not found by the trial court, as a matter of fact, to have been induced by actual, positive fraud.

Upon well established principles, a transaction of that nature, accompanied by the circumstances existing in this case, should not be allowed to stand. A voluntary gift will not necessarily be set aside, because made to a donee standing in a relation of trust and .confidence to the giver, but transactions of that nature are viewed by courts of equity with suspicion, and scrutinized with the extremest vigilance. It is not enough that no fraud appears affirmatively, but the presumption is against the propriety of the transaction, and the burden rests upon the party claiming under it to show that it was fair, well understood by the donor and freely entered into by him ; and this must appear by evidence in addition to that derived from the execution of the instrument conferring the gift. And, usually, evidence is required that a third and disinterested person advised the party of all his rights. These rules are so frequently and uniformly asserted in adjudged cases and by text writers that it is hardly necessary to make citations in support of them. It may be well, however, to refer to a few authorities for the purpose of showing their decisive control in the present case.

Story, in his work on Equity Jurisprudence, after remarking that in cases of constructive frauds arising from some peculiar confidential or fiduciary relation between the parties, there is often to be found some intermixture of deceit, imposition, overreaching, unconscionable advantage, or other mark of direct and positive fraud, goes on to say, that “ the principle on which courts of equity act in regard thereto, stands, independent of any such ingredient, upon a motive of general public policy; and it is designed, in some degree, as a protection to the parties against the effects of overweening confidence and self delusion, and the infirmities of hasty and precipitate judgment.” (Vol. 1, § 307.) Again: Courts of equity “do not sit, or affect to sit, in judgment upon cases as bustodes m,orwm, enforcing the strict rules of morality. But they do sit to enforce what has not inaptly been called a technical morality. * * * Courts of equity will not, therefore, arrest or set aside an act or contract merely because- a man of more honor would not have entered into it. There must be some relation between the parties which compels the one to make a full discovery to the other, or to abstain from all selfish projects. But when such a relation does exist, courts of equity acting upon this superinduced ground in aid of general morals, will not suffer one party standing in a situation of which he can avail himself against the other, to derive advantage from that circumstance.” (Sec. 308.) And, in speaking of transactions between attorney and client, the same learned writer says: “ On the one hand, it is not necessary to establish that there has been fraud or imposition upon the client: and, on the other hand, it is not necessarily void throughout, ipso facto. But the burthen of establishing its perfect fairness, adequacy, and equity, is thrown upon the attorney, upon the general rule that he who bargains in a matter of advantage with a person placing a confidence in him is bound to show that a reasonable use has been made of that confidence; a rule applying equally to all persons standing in confidential relations with each other. If no such proof is established, courts of equity treat the case as one of constructive fraud.” (Sec 311.)

In Bergen v. Udall (31 Barb., 9), a grant without consideration, from a daughter who had just attained her majority, to her father, •of a valuable easement upon her land, was held to be void and was ,set aside upon the application of the rules above stated. Although it was held that the evidence fell short of showing either gross intentional misrepresentation and fraud, or threats and coercion on the part of the father; yet as the grant was not the result of the •deliberate, unaided and uncontrolled action of the daughter’s own tmind, but was procured by the agency of means and motives and the .suggestions of others, it was set aside. It will be observed that the means and suggestions made use of by the others thus adverted to were not held to constitute, per :se, what the law regards as ■“ undue influence; ” the impropriety of their use resulted wholly from the relation of confidence existing between the parties. •“ There is an inflexible principle/’ said Emott, J., who tried the case, “ both of public policy and private justice, which forbids a parent making use of his influence or his child’s affection to impose upon her mind a purpose of bounty to him.” (P. 25.) He referred to the case of Hoghton v. Hoghton (11 Eng. L. and Eq. R., 134), in which Sir John Romilly, M. R., first clearly states the rule, on the authority of Lord Eldon in Gibson v. Jeyes (6 Ves., 266), that whenever a man takes a voluntary donation he must assume the burden of proving the transaction righteous, that is, of showing that the donor understood what he was doing; and in the next place, upon the same authority in the noted case of Huguenin v. Baseley (14 Ves., 273), that where the donor and donee were so situated towards each other that undue influence might have been exercised, the question is not merely what was the intention of the donor, but how that intention was produced. He then proceeds: “ In many cases the court, from the relations existing between the parties to the transaction, infers the probability of undue influence having been exerted, and in such cases the court watches the whole transaction with great jealousy, not merely for the purpose of ascertaining that the person likely to be so influenced fully understood the act he was performing, but also for the purpose of ascertaining that his consent to perform the act was not obtained by reason of the influence possessed by the person receiving the benefit. This court holds, as an inseparable condition, that this influence must be exerted for the benefit of the person subject to it, and not for the advantage of the person procuring it.” (Pp. 23, 24.)

Sears v. Shafer (1 Barb., 408), was the case of a release executed by a widow to her three brothers of her interest in certain real estate of which heir father had died seized in 1807, leaving a will by which he devised the same to his sons generally, without words of limitation or inheritance, the release reciting that the parties believed that the testator intended to devise in fee, but that the terms of the will gave only a life estate, and the release was designed to give effect to such intention. The widow having died, - her children filed their bill to obtain a decree setting aside the release on the ground that it was obtained by fraud and undue influence. There was no evidence of actual fraud, and none that the particular paper — the release — had been procured by undue influence. A witness testified that a few days after Elizabeth (the widow) had been to her brothers, the witness while standing at the door overheard Elizabeth tell her brother that she was not willing to sign any more papers; that he had compelled her to sign those papers that she had signed before against her will, and she was very sorry for it. It did not appear, that the release was one of the papers referred to, and from the connection in which that item of testimony is alluded to in the opinion of' the trial court, it would seem that it was not introduced by the plaintiffs as tending to show that the release was procured by undue influence, but it was brought in by defendants to show that the execution of the release was not kept secret, but was talked about by the grantor, though, as the court remarked, the testimony tended to weaken rather than strengthen the defendant’s case; (P. 417.) The circumstances relied upon in granting the decree were (1) the enfeebled bodily condition of the sister, she having been afflicted with a fatal malady for years; (2) the relationship of the parties; (3) the fact that the release was prepared at the instigation of one of the brothers, and (4) the want of satisfactory proof that the sister fully understood the nature and effect of the release. Under the latter head, stress was laid upon the circumstances : (1) There was no proof that the release was read over in her hearing; and (2) she was unable to read English, or even to write her name. Judge Barculo, who tried the case at Special Term, set aside the release, applying to the case the principles above stated. The decree was reversed at General Term, but was affirmed by the Court of Appeals (2 Seld., 268).

In some material particulars the present case closely resembles that of Sears v. Shafer. Here, the plaintiffs were old and feeble. They were unacquainted with business. They confided in their sons to manage their affairs. The conveyance executed by them was without consideration. It was prepared by the grantees, and nothing was known about it by the grantors till it was presented to them for execution. It was not read to them. They could not read or write English, or even understand it, except to a very limited extent. In these respects the present case is almost a repetition of Sears v. Shafer. But it exceeds it in its equities, so far as the equities depend upon the amount of property involved.

The defendants in this case sought to prove a state of facts, which, if established, would have taken the case out of the operation of the rules above stated, but in that effort they failed. Several particulars have already been referred to, in which the testimony produced by them was controverted, and the fact was found against them. Only one other need be mentioned. Louis and Adam testified positively that at the time when the deed was executed by the plaintiffs, it was read over to them by Mr. Avery, the notary before whom it was acknowledged and in whose presence the plaintiffs signed it by making their mark. In that they are contradicted by several witnesses, including Mr. Avery, who, although he did not recollect distinctly all that occurred, stated that he did not believe that he read the deed to, them, and he explained the grounds of his belief. All the testimony on the part of the defendants about a prior agreement between themselves and the plaintiffs being excluded (as it must be in the consideration of the appeal, since the finding of the trial court is against it upon sufficient contradictory evidence), the case is the bald one of a grant to the sons, without consideration, of the valuable real estate of these old people, prepared by the grantees, and by them presented to their parents and procured to be executed by them in ignorance and under a misapprehension of its contents. The presumption of improper influence is irresistible. No disinterested third person repels it by his testimony. Neither Mr. Avery, the notary, nor Mr. Wilson, who drew the deed, knew anything of the circumstances that preceded and led to its execution. The unilateral agreement of Louis and Adam, respecting the support of their parents — 'Unilateral because signed by them without the knowledge, consent, acquiescence or acceptance of the other parties named — obviously avails nothing as a defense. Neither does the declaration of trust made by them, for the benefit of their sisters, after this suit was commenced.

We have examined the several exceptions taken by the defendants’ counsel, but do not think they point to any substantial error. Most of them have been met by the views already expressed, and the others, obviously, are immaterial.

The judgment should be affirmed, with costs. .

Bradley, J., concurred; Barker, J., not voting; Haight, J., not sitting.

Judgment affirmed, with costs.


author: Bradley, J.:

text:
    SALLY A. CONDERMAN, Appellant, v. CALEB CONDERMAN, Respondent.

      Action for divorce on the ground of adultery — the right to a trial of the issue by a jury is a constitutional one — it cannot be reduced to a discretionary one by the General Mules of Practice— General Mule No. 81 — to what class of cases it must be confined.

    In this action for divorce, upon the ground of alleged acts of adultery of the defendant, the commission of which were denied by him in his answer, the plaintiff, on notice, moved for an order directing such issues to be tried by a jury. The motion was denied on the ground that the application was not made within ten days after the issue was perfected, as required by General Rule No. 81, without prejudice to a renewal of the motion addressed to the discretion of the court.

      field, that the order should be reversed.
    That the right to have the issues of fact upon the question of the alleged adultery tried by a jury was preserved by the Constitution, and could not be modified or limited by a rule of practice so as to reduce it to a matter in the discretion of the court if not made within ten days after issue.
    The limitation of time for making such application, as a matter of right, imposed by Rule 31, is applicable to the cases embraced within the provisions of section 971 of the Code of Civil Procedure, and those in which the framing of specific issues is not requisite for the trial, and it cannot have the effect of qualifying the right to make the application and have it granted in an action like this, where the right of trial hy jury exists and the framing of issues is essential to enable the party to have a trial of the issues in that manner.
    Appeal from an order of the Monroe Special Term, denying the plaintiff’s motion for a direction that certain issues of fact be framed and be tried by a jury.

      Daniel L. Denton, for the appellant.

      J. H. & Q. W. Stevens, for the respondent.
   Bradley, J.:

The action is for divorce upon the ground of alleged acts of adultery of the defendant, which are denied by the answer of the latter. The plaintiff, on notice, moved the court for an order directing such issues to be tried by jury, and that they be framed for such purpose. The motion was denied on the ground that the application was not made within ten days after the issue was perfected, without prejudice to a renewal of the motion addressed to the discretion of the court. The plaintiff appeals. The trial by jury of the issues of fact upon the question of the alleged adultery is a matter of right preserved by the Constitution, which provides: The trial by jury in all- cases in which it has been heretofore used shall remain inviolate forever, but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.” (Art. 1, sec. 2.)

The trial by jury of the question of adultery, when put in issue in an action for divorce, has been used ever since the power was given to the courts of this State to grant relief in such cases. This power was first transferred from the legislature to the Court of Chancery by Laws of 1787 (chap. 69.) In 1818 there was a further enactment on the subject. (2 R. L., 197.) And afterwards it went into the revision of the statutes. (2 R. S., 145, § 40.) The right of trial by jury in such cases was given by the statutes referred to, and was an existing right at the time of the adoption of the Constitution of 1846, and therefore comes within the provision before referred to of that instrument. (Batzel v. Batzel, 10 J. & S., 561; S. C., 54 How., 139; Dietz v. Dietz, 2 Hun, 339; Morrell v. Morrell, 17 id., 324.) The trial by jury is a matter of right. The method before the Code was to send feigned issues to the jury for trial, for which the present statute has provided as a substitute that in such cases the party may, upon notice, apply to the court for an order-directing the questions of fact arising upon those issues to be distinctly and plainly stated for trial by jury, and “ upon the hearing of the application the- court must cause the issues * * * to be-distinctly and plainly stated-”' (Code Civil Pro., § 970.) This is not a) matter of discretion with the court. The right of tidal by jury in this case takes' with it the duty of the court to render such-right available, according' to the course and practice prescribed, and' hence the provisions of the statute are imperative that the court by order direct the trial by jury, and cause the issues to be framed for that purpose. (Id., § 1757.) But in actions in equity, where a party is not as of right entitled to a trial by jury, the court may in its discretion, upon or without application of a party, direct that one or more questions be tried by jury, and cause issues to be framed for such trial. (Id., 971.)

The limitation of time for making such application, as matter of right, given by Rule 31 of the court, is applicable to the cases embraced within the provisions of the section last referred to, and those in which the framing of specific issues is not requisite for the trial, and cannot have the effect, to qualify the right to make the application and to have it grantejl in an action like thisj where the right of trial by jury exists, and the framing of issues is essential to enable the party to have a trial of the issues in that manner. The rules of practice authorized are suchas are not inconsistent with the statute. (Code Civil Pro., § 17.) And they cannot have the effect to modify it or to provide a practice not in harmony with it. (Rice v. Ehele, 55 N. Y., 518; Glenney v. Stedwell, 64 id., 120; French v. Powers, 80 id., 146; Palmer v. Phenix, 22 Hun, 224.) The right to make the application, and the imperative requirement of the statute that it be granted do not seem to be the subject of modification or limitation by a rule of practice, so as to reduce it.to a matter of discretion of the court if not made within ten days after issue. Nor can the rule have the effect to produce a waiver ot the right if not exercised within such limited time. The Constitution preserves the right of trial by jury in such case unless waived in the manner prescribed by law. The law has provided the manner that it may be waived. (Code Civil Pro., § 1009.) It is unnecessary to hold that it cannot be done in any other way. The right of trial by jury does not appear to have been waived by the plaintiff.

The order should be reversed, with ten dollars costs and disbursements, and the application remitted to the Special Term to proceed thereon.

Smith, P. J., Haight and Lewis, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and application remitted to the Special Term to proceed thereon.


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    JOHN T. BAXTER, Plaintiff, v THE BROOKLYN LIFE INSURANCE COMPANY, Defendant.

      Pleading — action on a policy of life insurance — the burden of proving s&rmce of the notice required by chapter 841 of 1876, as amended by chapter 321 of 1877, rests upon the company, and its failure so to do need not be alleged in the complaint.

    In this action, brought by the plaintiff, as the assignee of a policy of insurance issued on May 24, 1884, upon the life of one Mattison, who died on September 6, 1884, the complaint alleged the payment of the quarterly payment required to be made by the policy. The answer denied the payment of the installment due August 24, 1884. No evidence of the payment of this installment having been given upon the trial the defendant moved for a nonsuit.

      Held, that the motion was properly denied, as the company was prevented from forfeiting the policy by its failure to serve the notice prescribed by chapter 341 of 1876, as amended by chapter 371 of 1877.
    That the burden of proving that the notice specified in said act had been sei'ved rested upon the defendant, and that the plaintiff was not required to allege its failure to serve it in the complaint.
    Motion by the defendant for a new trial on exceptions taken at the Cattaraugus Circuit, and ordered to be heard at the General Term in the first instance.

      Charles E. Cwry, for the plaintiff.

      William, H. Ford, for the defendant.
   Bradley, J.:

The action is upon a policy made by the defendant May 24,1884, on the life of Joel J. Mattison, to the amount of $3,000, payable to Maria Mattison, his wife, within sixty days after the receipt of proofs of his death, subject to the condition that twenty dollars and ninety-seven cents be paid in advance on the delivery of the policy, and a like sum on the twenty-fourth day of August, November, February and May, in every year during the continuance of the contract, and that the policy be void, if any premium, or any part of a premium, be not paid when due. The insured died September 6, 1884, and the requisite proofs of death were furnished to the defendant more than sixty days before the commencement of this action. The alleged cause of action against the defendant, upon the policy, was assigned to the plaintiff.

There is no evidence that the quarterly premium which became due the 24th day of August, 1884, was paid. And that is the ground of the exceptions taken to the denial of the defendant’s motion for nonsuit, and to the direction of a verdict for the plaint-1 iff. The complaint alleges payment of the quarter-yearly payments as required by the agreement with the defendant. And the answer denies payment of the installment due August 24, 1884. The failure to make such payment would be fatal to the plaintiff’s recovery, but for the statute, which provides that no life insurance company shall have power to declare forfeited any policy, by reason of non-payment of any premium, until the expiration of thirty days after the service, on the person whose life is insured, of the prescribed notice, and in case the payment is made within that time the same shall be taken to be in full compliance with the requirements of the policy in that respect. (Laws of 1876, chap. 341, as amended by Laws of 1877, chap. 321.) It is contended by the defendant’s counsel, that upon the allegations of the complaint, the issue presented by the pleadings is whether or not the payment was in fact made, and that the statute referred to is not available to the plaintiff, because he has not alleged, in support of his action, the failure of the defendant to serve the notice, required by the statute, to permit forfeiture of the policy for non-payment of the premium.

It is a rule of pleading that a waiver or excuse for non-performance of a condition, precedent to a right of action upon a contract, must be alleged, to admit evidence of the fact. (Baldwin v. Munn, 2 Wend., 399; Crandall v. Clark, 7 Barb., 169; Oakley v. Morton, 11 N. Y., 25, 33.) And the question is usually raised by objection to evidence offered to prove such waiver or excuse, while here no proof was required as the protection against the right of forfeiture, without notice, was given by a public statute, of which judicial notice would be taken. This case, in that respect, therefore differs from those where the parties have, by agreement, modified their original contract, or by some arrangement the strict performance of its terms has been waived, or in some manner excused. Then it becomes a fact to be established by evidence, and the reason is apparent that the defendant should be advised by the allegations of the complaint, of such excuse relied upon, that he may traverse the issue tendered and be prepared to meet it at the trial. The law declares the continued validity of the contract of insurance, notwithstanding the failure to pay a premium on the day specified in the policy, and until default arising from failure to pay within the designated time after the statutory notice. The same reason, therefore, does not seem to exist for pleading the omission to pay on the day mentioned in the policy, and in support of the contract and the right of action, the failure of the defendant to serve'the requisite notice to put the insured in default, as is applicable to a modification of a contract by the parties to it. There it is in some sense a new contract, and upon it the right of action rests. Here there is no modification of the contract of insurance, and no waiver or excuse for the non-performance of any condition precedent to relief by action, produced by any agreement or act of the parties subsequently to the execution of the contract, but the policy was made subject to the provisions of the statute, which became part of the contract at the time of its execution. And in view of this statute the allegation of performance was within the meaning of the contract as made. The practical interpretation and effect of it is that the insured is not in default for non-payment of a premium until the expiration of the time to pay, after the notice is given. This is fairly within the import of the statutory provision, that “ in case the payment demanded by such notice shall be made within the thirty days limited therefor, the same shall be taken to be in full compliance with the requirements of the policy in respect to the payment of said premium.” The contention that the plaintiff was not entitled to the benefit of the statute upon the issue made by the pleadings is therefore not supported. The burden, we think, was with the- defendant, to show that it had done what was required of it to put the person whose life was insured in default. This would seem to be so from the fact that the service of the notice is an affirmative act, to be performed by the company, and its existence is peculiarly within its knowledge. And in view of providing the means of preserving and producing such evidence, for the benefit of the insurance companies, the statute provides that an affidavit of the service of the notice shall be presumptive evidence of the fact of service. (Laws 1877, chap. 321, § 2 ) If these views are correct, it follows that in the absence of proof on the subject the presumption is that no notice had been served by the defendant upon the insured, that at the time of his death the policy remained valid, and that the plaintiff was entitled to recover.

The motion for new trial should be denied, and judgment ordered for the plaintiff on the verdict.

Smith, P. J., and. Haight, J., concurred ; Barker, J., not voting.

Motion for a new trial denied and judgment ordered for the plaintiff on the verdict.


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    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. MARY WILEMAN, Appellant.

      Evidence — the good, character of one upon trial for a criminal offense should, always he considered hy the jury.

    Upon tlie trial of the defendant for killing lier husband by administering arsenic to him, after evidence of her previous good character had been given, the court charged as follows: “ Good character is sometimes the turning point in the investigation of a criminal charge. When the evidence is vague, shadowy and unsatisfactory, then it is that the evidence of good character stands the defendant in hand; then it is that it is to be considered by the jury as almost amounting to a defense. But when the evidence in the case satisfies the jury that the crime has been committed, and that the accused has committed the crime, then the evidence of good character is of no avail.”

      Held, that it was error to so charge.

      Eemsen v. The People (43 1ST. Y., 6) followed.

      Appeal from a judgment of the Cattaraugus Oyer and Terminer, convicting the defendant of the crime of murder in the first degree, and directing the execution of the sentence.

      Hudson Ansley and Wm. G. Laidlaw, for the appellant.

      G. M Rider, district attorney, for the respondent.
   Bradley, J.:

The indictment charges that the defendant, with the deliberate and premeditated design to effect the death of Edward Wileman, administered to him a fatal quantity of a deadly poison called arsenic,, and by that means feloniously did kill and murder him. He was the husband of the defendant. They had lived together as husband and wife for about twenty years. On Friday, the 18th day of September, 1885, he was suddenly taken sick, and died in the afternoon of the next day. He was of the age of fifty-four years at the time of his death. And the evidence tended to prove that up to the time of this illness he had usually been in good health; that on this Friday, a little after noon, he came from his work to his house to get dinner, and the defendant gave him a lunch, consisting of pumpkin pie and bread and milk, which he ate, and shortly after had a, severe attack of pain and suffering in his stomach; that medical aid was called which gave him no relief and he continued in that condition until shortly before his death, which occurred about four o’clock in the afternoon of the next day. The autopsy disclosed the presence of arsenic in his stomach and liver, and the conclusion was fairly justified from the evidence, that his death was caused by arsenical poison. Whether it was taken with the food given him by the defendant for his lunch, and whether it was purposely so furnished him by her, were the questions litigated at the trial and they were fairly and properly submitted by the trial court to the jury. The burthen was with the'people to establish by evidence every fact essential to the offense, and to do it bv such evidence and in such manner as to exclude all reasonable doubt as to the guilt of the accused, to justify or permit her conviction. The presumption of the innocence of the defendant existed until it was completely overcome by evidence to the contrary. The means by which the poison was furnished to, or obtained by the deceased, and the purpose with which it was supplied to, and taken by him, rested somewhat in circumstantial evidence. While on the part of the prosecution it was contended that it was purposely, by the defendant, placed in his food with a view to take his life, it- was insisted on the part of the defense, that it was obtained and taken by the deceased voluntarily, without any instrumentality of the defendant, and evidence was given on her part going in support of that view of the defenee.

The question of motive, and whether any existed on the part of the prisoner to take the life of the husband, therefore, was treated as an essential element in the case; and with a view to that fact, evidence was given to the effect that the husband had taken on his life a policy for $1,600, in a co-operative aid insurance society, in which she was named as the beneficiary. And some evidence was given tending to prove that some relations had grown up and existed between her and a man referred to, not consistent with her marital relations and duties. The evidence'tending to prove those facts was competent and proper to go to the jury for their considerations, and whether if established, they constituted a motive on the part of the accused for the crime charged, or were sufficient for that purpose, was wholly for their determination. There was no exception taken to the charge of the court to the jury, or to any refusal to charge. But if the court is “ satisfied that the verdict is against the weight of evidence or against law, or that justice requires a new trial,” it may grant it whether any exception has been taken or not, in the trial court. (Code Grim. Pro., § 527.) This was the rule applicable to all appellate courts of the State in capital cases at one time. (Laws of 1855, chap. 337, § 3.) The statute does not require the reversal of conviction and the ordering a new trial for every error committed which would be available upon exception duly taken, but for such errors only as it can be seen may have prejudiced, and in the judgment of the court did prejudice the defendant. (People v. McCann, 16 N. Y., 58; O’Brien v. People, 36 id., 276; People v. Newton, 3 N. Y. Crim. Rep., 406; People v. Sullivan, 4 id., 198; People v. Sweeney, 41 Hun, 343.)

It is contended by the defendant’s counsel that the court erred in the charge defining the reasonable doubt applicable to the trial of criminal cases, and took from the jury the force, in an essential degree, to which it was entitled in their consideration of the case presented by the evidence and the inferences legitimately derivable from it. The definition and explanation- given by the court did not in terms embrace all the elements out of which a reasonable doubt may spring, or all the views which might enter into the consideration to produce it. It may arise out of failure of proof, or its insufficiency to exclude or overcome the legal presumption of innocence of the accused, “ for it is not enough that the evidence goes to show his guilt, it must be inconsistent with the reasonable supposition of his innocence.” (3 Greenl. Ev., 29.) To confine the definition of the term to such doubt as arises from the testimony given upon the trial, would be too restricted in its application, and might be construed to exclude the reasonable doubt which might arise from a want of evidence. (Densmore v. State, 67 Ind., 306; 33 Am. Rep., 96.) There was no error in the charge in this respect taken as a whole, unless it may be construed as an unqualified restriction of the term reasonable doubt, to the definition and explanation there given of it. (Commonwealth v. Webster, 5 Cush., 320; 52 Am. Dec., 711; People v. Guidici, 100 N. Y., 503.) We do not think it fairly entitled to such construction for the purposes of this review.

The court, so far as it proceeded to charge on the subject, was substantially correct, and there was evidently no purpose to exclude the presumption of innocence, and the force to which it was entitled in support of a reasonable doubt founded upon the inquiry whether the evidence as a whole was such as to overcome it, and in the judgment of the jury to require the conclusion that the facts established by the evidence were inconsistent with any hypothesis other than that of the guilt of the accused. The same degree of criticism will not necessarily be given to a. proposition charged, ■when there is no exception, as might seem to be required if a specific exception had been taken. It evidently would have needed only a remark from counsel at the trial to have removed the ground upon which it is now sought to predicate error.

The more serious question arises upon the charge in respect to the effect which might be given to the evidence of the good character of the defendant, which was given on the trial. The court charged the jury on that subject as follows: Good character is sometimes the turning point in the investigation of a criminal charge. When the evidence is vague, shadowy and unsatisfactory, then it is that the evidence of good character stands the defendant in hand, then it is that it is to be considered by the jury as almost amounting to a defense. But when the evidence in the case satisfies the jury that the crime has been committed, and that the accused has committed the crime, then the evidence of good character is of no avail.”

The further charge upon the subject does not materially modify that quoted. There having been evidence given on the part of the defendant that her character was good up to the time of the charge in question against her, the effect of that fact as evidence was unduly qualified by the charge of the court. The practical effect of which was that the consideration of the evidence of good character was dependent upon the effect which the other evidence, exclusive of it, had upon the minds of the jury, and to be considered only in the event the other evidence failed to satisfy them that the defendant committed the crime. In other words, the jury were permitted to understand from the instruction given that the other evidence was first to be considered, without the aid of that of the good character of the defendant, and if that satisfied them of her guilt the evidence of her good character was of no avail. The court may not have so intended to instruct them, but we think they were at liberty to so understand the court. The evidence of good character of the defendant in'the trial of a criminal case, is to take its place with other evidence on the part of the defense, and is entitled to consideration with it. The force and bearing of it is wholly with the jury. Its consideration by them is not confined to cases of doubt arising upon the evidence, but it may have the effect to aid in producing or supporting a doubt, which might not otherwise arise, if, in the judgment of the jury, it was entitled to such effect. In Remsen v. The People (57 Barb., 324) the court charged the jury that “ where the evidence is positive, leading you to a conviction logically and fairly derived, of guilty from all the testimony, the simple fact that a person possesses previous good character will be of no avail. It is only in cases where you have a well-reasoned doubt, a doubt logically arrived at, arising out of all the testimony, that evidence of good character steps in, and then it becomes your duty, under your oath, to give a verdict in favor of the prisoner.” The prisoner was convicted. "When that case came into the Court of Appeals for review (43 N. Y., 6) the court held that such charge to the jury was erroneous, and reversed the conviction, and in the opinion of the court by Allen, J., said: “ There is no case in which the jury may not, in the exercise of a sound judgment, give a prisoner the benefit of a previous good character. No matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury and lead them to believe, in view of the improbabilities, that a person of such character would be guilty of the offense charged. * * * An individual accused of crime is entitled to have it left to the jury to form their conclusion upon all the evidence whether he, if his character was previously unblemished, has or has not committed the particular crime alleged against him. The weight of the evidence is for the jury alone to determine.” And the court in that case adds that evidence of good character will sometimes of itself create a doubt, when, without it, none would exist. (See, also, People v. Lamb, 2 Keyes, 360, 377, 378; Stover v. People, 56 N. Y., 315; People v. Clements, 42 Hun, 353.) It can be seen that the defendant may have been prejudiced by the instruction given to the jury, so limiting the consideration and effect to be given to the evidence, and to the fact, if so found, ot her previous good character, which should have been left to the jury, like the other evidence in the case, for them to determine whether it was entitled to any and what importance and bearing upon the questions presented and upon the result to be given by their verdict. Upon this ground alone we think justice requires that a new trial should be granted. It, therefore, becomes unnecessary to consider any other question presented.

The judgment and conviction should be reversed and a new trial ordered; and for that purpose the proceedings here are remitted to the Court of Oyer and Terminer of Cattaraugus county.

Smith, P. J., and Haight, J. concurred.

Judgment and conviction reversed and a new trial ordered ; and for that purpose the proceeding is remitted to the Court of Oyer and Terminer of Cattaraugus county.


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    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. DAVID SNYDER, Respondent.

      Appeal by the people in criminal cases — is wholly dependent on statute — Code of Criminal Procedure, sec. 518.
    No appeal can be taken by tbe people from a judgment of a Court of Sessions reversing, on an appeal taken thereto, a judgment of a Court of Special Sessions convicting the defendant of an assault.
    Appeal by the people from the judgment of the Ontario Sessions reversing the judgment of a Court of Special Sessions convicting the defendant of an assault.

      O. C. Armstrong, district attorney, for the appellant.

      John E. Robson, for the respondent.
   Bradley, J.:

The right of the people to take an appeal in a criminal case is-wholly dependent upon the statute. (People v. Corning, 2 N. Y., 9) It provides tnat an appeal to the Supreme Court may be taken by the people in the following cases and no other. 1. Upon a judgment for the defendant on a demurrer to the indictment. 2. Upon an order of the court arresting the judgment. (Code Crim. Pro., § 518.) The subject of appeals from Courts of Special Sessions is embraced in Code of Criminal Procedure (pt. 5, tit. 3). And it is provided that if on such appeal the judgment be against the defendant, he may appeal •• to the Supreme Court, and that its judgment upon the appeal is final. (Id., §§ 770, 771.) We find no other statute-permitting an appeal from a judgment of the Court of Sessions on ¡ an ■ appeal thereto from a Court of Special Sessions in criminal cases. It seems to follow that the people cannot in such case take an appeal to this court.

The provisions of sections 524, and 526, have application only to cases in whieh appeals may, pursuant to other provisions of the statute, be taken to the Supreme Court, and have no reference to cases arising in Courts of Special Sessions. The appeal should be dismissed.

Smith, P. L, and Haight, <L, concurred.

Appeal dismissed.


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    In the Matter of the Petition of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY for the Appointment of Commissioners to Appraise Certain Rights in Real Estate of CATHERINE MILLER, Appellant, Impleaded with Others.

      .Acquisition of an easement for railroad purposes — right of the owner of land through which the road runs to a fcorm crossing —1850, chap. 140, sec. 44.
    The appellant conveyed to the petitioner, a railroad company, a strip of land, which divided her farm so as to leave the farm buildings on the north, and five acres on the south of the strip conveyed, by a deed which contained a covenant on the part of the company that it would make and maintain for her use a grade .crossing over its railroad. Thereafter the petitioner, alleging that it required the land described in the deed for the purpose of constructing warehouses and trestles thereon, and for other lawful yard purposes, applied for and obtained an order appointing commissioners to ascertain and determine the compensation to be made .to the appellant for her right or .easement of crossing.

      Meld, that if the purpose and effect, if successful, of this proceeding was not only to extinguish the right of way already provided for her over the railroad, but to entirely defeat her right to any means of crossing the petitioner’s land, the prayer of the petitioner should not be granted. But that if it was to be treated as a proceeding instituted to merely extinguish the easement at the place where it was then located and used, without denying to the petitioner the right to a farm crossing, then the court might properly grant it.
    Appeal from an- order of the Erie Special Term appointing ■Commissioners to ascertain and appraise tlie compensation to be made to Catharine Miller-, as the owner or person interested in a right or easement on ’certain real ‘éstate.

      J. L. JRomer, for the appellant.
    J. G. Milium, for the petitioner, respondent.
   Bradley, J.:

The appellant owned about ten acres of land and conveyed to the railway company a strip of it upon which its railroad was constructed. This so severed her land that the portion on which her buildings were located was north of the road, and about five acres ■south of it. By this deed of- conveyance it was provided, and such was the covenant, that the company should make and maintain, for her use a grade crossing over its railroad. The road was constructed, and this was done. The petitioner now alleges that it requires the land described in the conveyance for the purposes of constructing thereon warehouses and trestles and facilities for handling and storage of coal and other freight, and for the transfer of it from car to car, and other lawful yard purposes, and therefore seeks to extinguish her easement. This the appellant resists and by her answer, which was at the Special Term, and must for the purposes of this review be taken as true, it is alleged that she has no means of access to the southern portion of her land other than by crossing the railroad ; that the land is used for farming purposes and it is necessary for sucn purposes to pass to and from the southern portion to the northern portion of her land. She cannot, by any proceeding in invitum taken by the petitioner, be denied the right of a passage way across the railroad lands to and from those sections of her farm. This right is preserved to her by the statute, and in like manner is imposed upon the company the duty of providing the means of such passage. (Laws of 1850, chap. 110, § 11.) And in doing it regard must be had to the convenience of the land owner. (Wademan v. A. and S R. R. Co., 51 N. Y., 568; Smith v. N. Y. and O. M. R. R. Co., 63 id., 58; Jones v. Seligman, 81 id., 190.) If, therefore, as contended by the appellant’s counsel, the purpose and effect, if successful, of this proceeding is not only to extinguish the right of way already provided for her over the railroad, but to entirely defeat her right to any means of crossing the petitioner’s lands, the prayer of-the petition was improperly granted. That purpose aud such effect are disclaimed here by the counsel for the company. The purposes for which it is alleged that the premises embracing the location of the present crossing are required, are within those which support the exercise of eminent domain. (Laws 1850, chap. 140, § 21, as amended by Laws 1881, chap. 649; Laws 1882, chap. 82.) Treated as a proceeding merely to extinguish the easement at the place where it now is and as located, without thereby denying to the appellant the right to a farm crossing, there seems to be no want of power to accomplish that result, provided it will not have the effect of such denial. It is not alleged in the answer to the petition that such would be the effect of the appropriation by the company of this particular place of crossing. And it will not now be assumed that the consequence will be to deprive her of the right which the statute gives, or- that the duty imposed by it upon the company of providing for her a suitable crossing may not be observed and performed. This duty is imperative as applied to railroad companies seeking to appropriate land so situated as to require farm crossings for the convenience of the land owners, and in such case the taking of lands for those purposes is in some sense subject to the right of provision for such crossings. Assuming, for the purposes of this review, that the land owner can and may be provided with a proper crossing, and that the appropriation of the right and means reserved and provided pursuant to the covenant in the deed does not defeat her statutory right in that respect, we see no reason why this private easement as now located may not come within the property which the statute permits to be taken for the purposes in question. But as the prayer of the petition and the terms of the order are such, that they may have produced apprehension that the purpose and effect of the latter may have been to wholly extinguish her right to a crossing and deny to her the benefit of the statute as applied to the premises, we think the order should, by its terms, qualify the effect of the proceeding in that respect. The order should, therefore, be modified by adding thereto the words this proceeding shall not have the effect to deny to the said Catherine Miller the right to a suitable farm crossing through the lands of the petitioner, or to relieve the latter from the statutory duty of providing it for her, but is subject to such, right- and duty.”

And as so modified affirmed, with ten dollars costs and disbursements of this appeal to the appellant.

Angle, J., concurred.

So orderd.


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    In the Matter of CHARLES C POTTER Appellant, v. OLIVER DURFEE, as Assignee, etc., of LEROY B. HOWD, Respondent.

      County Court —power of, to settle controversies between creditors and an assignee — a claim to property, m possession of an assignee who denies the claimant’s title, should not be determined on the petition of the davmamt.

    One Potter having presented to the County Court of Wayne county a petition praying that Durfee, the general assignee of one Howd, be directed to deliver to Potter certain property which he claimed to own, and the assignee having opposed the application on affidavits, the County Court directed the issue so made to he heard and determined by a referee. Upon the report of the referee, who found that the petitioner owned the property and that he was entitled to a judgment requiring the assignee to return it to him, a judgment for such relief with costs, was entered by the petitioner without any direction from . the court

      Held, that an order of the County Court, granting a motion made by the assignee to have the judgment vacated and set aside, should be affirmed.
    That the County Court had no power to determine the controversy between the - claimant and the assignee, as to the title to the property in question on the petition of the claimant, where the assignee was rn possession of and claimed to own the property.
    That the proceeding instituted by the claimant was a special proceeding, and that no judgment could be entered therein without the direction of the court
    That the costs in such proceedings are wholly in the discretion of the court, except where a right to them is expressly given by statute.
    Appeal from an order of the Wayne County Court, setting aside a judgment entered in favor of the appellant,

      S. B. McIntyre, for the appellant-'

      Charles Mclouth, for the respondent.
   Bradley, J.:

The claimant, Charles C. Potter, presented to the County Court of Wayne county his petition praying that Oliver Durfee, the assignee for the benefit of tile creditors of Leroy B¿ Howd, be directed to deliver to him on demand certain property in his possession as such assignee.

The petition set forth the facts upon which the petitioner relied to support his title and right to the relief asked for The assignee upon affidavits presented opposed the application. The court directed a reference to a referee, of “the issues made by said petition and said affidavits, to hear and determine.” The hearing was had before the referee, who made his report finding the fact that the property in question belonged to the petitioner, and as conclusion of law that he was entitled to judgment requiring the assignee to return it to him.

TJpon this report the petitioner entered judgment for such relief with costs, without any direction of the court And on the motion of the assignee upon notice to the petitioner, the judgment was vacated and set aside by the order of the court, from which this appeal is taken The questions presented are; 1. "Whether there is any power in the County Court on petition of a party claiming property of which the assignee has taken possession under the assignment, to determine the controvesy between him and the assignee when the claim is contested by the latter. And if so : 2. "Whether the judgment upon a report of the referee, to whom the issues thus presented are referred to hear and determine, can be legally or regularly entered without any confirmation or direction of the court. The power to take any proceeding in that manner depends upon the statute, which provides that any proceeding under the act shall be deemed for all purposes to he a proceeding had in the court as a court of general jurisdiction, and the court shall have full jurisdiction to do every act relating to the assigned estate the assignees, assignors and creditors, and jurisdiction shall be presumed in support of the orders and decrees therein unless the contrary be shown. And the court may exercise the powers of a court of equity in reference to the trust and any matters involved therein. (Laws of 1877, chap. 466, § 25) The court may order a trial by jury or before a referee, of any disputed claim or matter arising under the provisions of the act (id., § 26, as amended by Laws of 1878, chap. 318, § 7), and all orders or decrees in proceedings under the act shall have the same force and effect, and may be entered, docketed and enforced the same as if made in an original action brought in the County Court. The clerk of the court shall record the orders and decrees of the court settling, rejecting or adjusting claims, and directing the payment of money and releasing assets by the assignee in a book kept for that purpose. (Id., § 22) These are the only "provisions of the statute to which it will be necessary to specifically refer. It is contended on the part of the petitioner that in them is embraced the power, in view of the practice given and recognized iu actions, to accomplish all that was done in this case in his behalf.- The act of 1877, and those amendatory of it, relate solely to the subject of assignments made for the benefit of the creditors of the assignors, and create a system relating to and for the execution of the trusts arising out of such relation of assignees as such trustees, which includes the adjustment of matters between the creditors claiming the benefit of the assignments. J3ut the statute does not in its provisions and purposés contemplate any proceeding in hostility to an assignment and its execution. And so far as powers of the court are given by this statute, they are in harmony with the existence of the trust, and m support of its-execution. (In re Assignment of Holbrook, 99 N. Y., 539; In re Witmer, 40 Hun, 64.) The contest in the matter at bar lias relation to property which the assignee claims was embraced within the assignment, and that he took title to it as such..

The proceeding, therefore, is founded upon an alleged claim adverse to that of the assignee, and m that respect, and so far as relates to such property, is in hostility to the execution of the trust. We think no power is vested in the County Court by the statute to-determine the title to property in such a proceeding as that taken in this matter^ when it is contested by the assignee. The remedy sought by a claimant to obtain property in the possession of an assignee, and which the latter claims to have taken under the assignment and refuses to' deliver,, is in the nature of that of an action of replevin. And the statute evidently was not made with any view to confer power upon the court by a summary proceeding' like this, to divest the assignee of the property which he should claim to have taken by the assignment The provision of section 22,. providing for entering orders and decrees of the court “ releasing assets by the assignee,” evidently contemplated cases where the assignee should himself be satisfied that release should be made, and be willing to make it; and that in such case the court might have the power, if satisfied that the relinquishment was proper, to authorize and approve it, and thus furnish by the record protection to the assignee. And while the manner adopted, with the consent. of an assignee, for investigation of such a claim made by a third person, with a view to information, and to guide his way to a conclusion on the subject, is not important, the court could not in such a proceeding, against the objection of the assignee, or without his consent, effectually direct the release or surrender of the property. The claimant must in such case seek his relief by action. In this case the assignee has denied and continues to contest and deny the claimant’s right to the property.

The proceedings provided and permitted by the statute referred to are special proceedings, and no judgment can be entered upon the report of a referee in cases of that character without the authority of some statute permitting it. The act in question does not provide for the entry of judgment upon a report of a referee, and our attention is called to no general statute providing for the entry of judgment upon a referee’s report in a special proceeding. It is not within the provisions of section 1228 of the Code of Civil Procedure. That section has relation to actions only, and to entry of judgments in actions, as it may be observed by reference to section 3313, subdivision 20, that the word “judgment,” when used in the Code, refers to a judgment in an action, while the word “ order,” when so used, refers to an order in an action or special proceeding, and in fact there seems to be no general provision in’the Code for entry of judgment in special proceedings. The subject of entry, generally, in them is defined as an order. The proceedings under, the assignment act are of an equitable nature. The verdict of the jury or the report of the referee ' is not there made the decision of the court on the matters submit'ted. They must be deemed ancillary-to the direction of the court, and do not express its judgment until' approved and confirmed by its order, and no judicial force can be given to them without .the direction of the court, and then in legal effect it comes from its determination. It seems to follow that the judgment was entered without authority. Amd the allowance of costs in special proceedings is wholly in the discretion of the court, except when the right to them is expressly given by statute. (Code Civil Pro., § 3240; Matter of Prot. E. Pub. School, 86 N. Y., 396.)

The order should be affirmed.

Haight, J., concurred ; Parker, J., not voting.

Order affirmed, with ten dollars costs and disbursements.


author: Barker, J,:

text:
    THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Respondent, v. MARTHA A. GILBERT, as Executrix, etc., of COLGATE GILBERT, Deceased, Appellant.

      Contraéis made by an executor do not bind the estate — actions for breach of them, must be brought against the executor as an individual — right of creditors to a lien upon money used, by an executor in carrying on a business as directed by the testator.

    Upon the trial of this action, brought in a County Court against the defendant, as the executrix of her deceased husband, to recover the price of one car load of coal sold and delivered to her, it appeared that the testator had, by his will, authorized his executrix to continue the business of manufacturing and selling starch for the period of ten years from the time of his death, and to use the capital then invested in such business and to divide the proceeds and profits of the business between the executrix and the testator’s children. It was conceded that the coal was purchased to be used in the starch business.

      Held, that no cause of action against the executrix, in her representative capacity, was established by these facts, and that a motion made by the defendant for a nonsuit should have been granted.

      Austin v. Munro (47 N. Y., 360); Thompson v. Whiimarsh (100 id., 35) followed. Before the judgment was entered a motion, made by the defendant to set aside the verdict and for a new trial, was denied by the County Court, which permitted the plaintiff to enter a judgment containing a provision directing that it be enforced against the property of the decedent’s estate invested in the business carried on by the defendant, as executrix, for the carrying on of which business the coal in question was purchased.

      Held, that the court erred in so doing as the complaint was not framed for the purpose of obtaining relief of this character; nor was the judgment, as so modified, capable of being enforced so that the rights of other creditors would be protected.
    An Appeal from a judgment of tbe Erie County Court entered upon a verdict in the plaintiff’s favor, and from an order denying the defendant’s motion for a new trial founded upon a case containing exceptions.
    The action was for the price of one car load of coal alleged to have been sold and delivered to the defendant, as the executrix of the last will and testament of Colgate Gilbert, deceased. It was admitted by the defendant that there was an executory contract for the sale and delivery of the coal, but the delivery was disputed, and that was the only question of fact litigated on the trial. The verdict rendered by the jury was a general one, assessing the damages at eighty-two dollars and ninety cents All the legal questions considered in the opinion were raised by proper exceptions made to rulings upon the trial.

      Charles B. Wheeler, for the appellant.

      Frederick Howard, for the respondent.
   Barker, J,:

It was conceded upon the argument that the form of the action is against the defendant in her representative capacity. In the body of the complaint the sale of the coal is charged to have been made to her as executrix of the last will and testament of the testator. By his will the testator authorized his executrix to continue the business of manufacturing and selling starch for the period of ten years from the time of his death, and to use the capital then invested in such business and the proceeds and profits of the same not necessary to be used in conducting it he directed to be divided and distributed between the executrix and his children.

It was conceded by both parties that the coal was purchased to be used in the starch business, which the defendant, as executrix, carried on after the death of her husband. The contract sued upon was not made by the testator. It was a contract entered into between the plaintiff and the defendant. The rule is well settled that the contracts of executors, although made in the interest and for the benefit of the estate they represent, are the personal contracts of the executors and do not bind the estate. The principle of the rule is, that an executor may disburse and use the funds of the estate for purposes authorized by law, but he may not bind the estate by an executory contract and thus create a liability not founded upon the contract of the testator. (Austin v. Munro, 47 N. Y., 360.)

It is conceded by the learned counsel for the respondent that this was the rule prior to the adoption of the Code, but he contends that by the provisions of section 1814 the rule has been changed, and upon the facts established by the verdict a judgment against the defendant, in her representative capacity, was regular and proper. The section is as follows : “ An action or special proceeding hereafter commenced by an executor or administrator, upon a cause of action belonging to him in his representative capacity, or an action or special proceeding hereafter commenced against him, except where it is brought to charge him personally, must be brought by or against him in his representative capacity. A judgment, in an action hereafter commenced, recovered against an executor or administrator, without describing him in his representative capacity, cannot be enforced against the property of a decedent, except by the special direction of the court contained therein.” None of the provisions of this section change the rule as it existed prior to its adoption, that an action cannot be maintained against an executor in his representative capacity founded on his promise, based upon a transaction which originated after the death of the testator. The statutory rule is but a mere codification of the rules of law and procedure as they existed at the time of its adoption.

In Thompson v. Whitmarsh (100 N. Y., 35) the court, in giving a construction to this section, said that ‘ upon new contracts made by the executor or administrator, and never existing in favor of the decedent, but growing out of the contracts and dealings of the former alone, the action is properly brought in the name of the individual.” That “ the effect of the section and -She change produced by it is upon the class of cases in which the action could have been maintained in either form; as where, upon a contract made with the testator, the cause of action accrued after his death; or where, upon a debt or obligation due to the deceased, the executor or administrator has taken a new security or evidence of debt. In these cases, before the Code, the action might be in the individual or representative name, but now must be in the latter.” (See, also, Buckland v. Gallup, 40 Hun, 61.) In Bingham v. Marine National Bank (41 Hun, 377) it was also held that as to original contracts made by an executor after the death of the testator section 1814 had, in reality, made no change in the law as to the character or form of action against the executor making the contract.

The power conferred by the testator on the executrix to carry on the starch business after his death, did not authorize her to create debts in the execution of that trust which could be collected out of the general assets. The executrix could not lawfully use the general assets for the purpose of supporting the special business of manufacturing starch, and if her contracts made in the carrying on of such business coulu be enforced out of the general assets, it would be accomplishing through her action, in an indirect manner, what she was prohibited from doing directly. All persons dealing with executors or trustees are charged with the knowledge of the limitar tions which the law places on their powers. Nothing but the most clear and unambiguous language, demonstrating in the most positive manner that the testator intends to make his general assets liable for all debts contracted in the continuing of a trade after his death, .would justify a court in arriving at such a conclusion. (Burwell v. Mandeville's Executor, 2 How. U. S., 580; Smith v. Ayer, 101 U. S., 330.)

In Pitkin v. Pitkin (7 Conn., 306), the executor was authorized by the testator to carry on a special business after his death, and it was held that the general assets of the testator were not liable to any creditors who became such after the testator’s death ; and that such creditors had no lien .on the general assets, although the devisees might eventually participate in the profits of the trade.

«The trade creditor who may deal with the executor, relative to the special business which he is authorized to continue, has as his security the personal liability of the executor and a lien upon that part of the estate of the testator which he has directed to remain in the business. He has no other remedy for the enforcement of his debt.

In Ex parte Garland (10 Vesey, Jr., 109), in speaking of the remedies of those who are creditors, not of the testator, but of the trade creditor who becomes such after the death of the testator, it was stated: “ In the first place they may determine whether they will be creditors. Next, it is admitted that they have the whole fund that is embarked in the trade, and in addition they have the personal responsibility of the individual with whom they deal. * * * They have something very like a lien upon the estate embarked in the trade. They have not a lien on anything else.” The American cases are in full' accord with these propositions. (Pitkin v. Pitkin, 7 Conn., 306; Laible v. Ferry, 32 N. J. Eq., 791; Lucht v. Behrens, 28 O. St., 231; Smith v. Ayer, 101 U. S., 330; Burwell v. Mandeville, 2 How. [U. S.], 560.)

We hold, therefore, that no cause of action against the executrix, m her representative capacity, was established by the facts averred m the complaint or proved upon the trial, and the defendant’s motion for a nonsuit should have been granted

Before judgment was entered the defendant moved to set aside the verdict and for a new trial, which was denied by the County Court, and an order made thereupon decided that a clause be inserted in the order denying a new trial, permitting the plaintiff to enter a judgment containing a provision directing that “the judgment be enforced against the property of the decedent’s estate invested in the business carried on by the defendant as executrix, under the name and style of C. Gilbert, mentioned and described in the complaint, for the carrying on of which the coal in question was purchased/’ and the judgment as entered was in conformity with these directions, By the form of the judgment an attempt was made to change the form of action from one at law to one m equity, for the purpose of foreclosing the equitable lien which the plaintiff had upon the assets of so much of the decedent’s estate as was, at the time of the entry of the judgment invested m the starch business. The complaint was not framed for the purpose of obtaining relief of this character, nor is the jndgment, as now modified, capable of being enforced so that the rights of other creditors may be protected. Ordinarily the trade creditors would have no occasion to resort to the enforcement of their equitable lien upon the- assets unless the business had proved a failure and the Trustee was unable, in the exercise of the powers vested m him, to so dispose of the property so as to meet the pecuniary obligations of the business The other creditors, if there are any, would be entitled to a hearing, that they might share, pro rata, m the distribution of the proceeds of the assets. In winding up the affairs of an insolvent business or estate where the assets are not sufficient to satisfy all demands m full, the court always proceeds upon the principle that equality is equity, and apportions the property pro rata among all the creditors In order to obtain this result, and to carry out the principle of equality, it is necessary to marshal the assets, and for the court to take charge of the same upon the application of any one of the creditors, to be followed by such proceedings as will give all parties interested an opportunity to establish their claims. There is no precedent for the enforcement of an equitable lien in the mode and manner attempted in this action,-and to permit the judgment as it now stands to be executed might lead to unjust results.

We do not need now to inquire whether the creditors must exhaust their legal remedy against the personal liability of the trustee before they would be at liberty to foreclose their equitable lien. As this action originated m another court and is brought into this court by virtue of its appellate jurisdiction, for the purpose of correcting errors in the court below, we have no power to determine whether by amendment the action may be continued as a personal action against the trustee, or prosecuted as a suit in equity, for the purpose of foreclosing the lien.

Judgment reversed, new trial- granted in Erie County Court, with costs to abide the event.

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

Judgment and order reversed and new trial ordered m the Erie County Court, costs to abide event.