author: O’Brien, J. Earl, J., (dissenting.)

text:
    The People ex rel. Henry S. Hoyes, Resp’t, v. The Board of Canvassers of Chemung County, App’lts.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Election—Board oe county canvassers—Certificate of inspectors. BREVAILS OVER WRITING ON BALLOTS.
    The writing in the body of the certificate, expressing the result of the count by the inspectors at the close of the polls, and publicly announced by them, and certified under their official certificates to be correct, must prevail over any contrary result that can be obtained from the writing on the ballots attached thereto, and the board of county canvassers is bound by the statement in the body of such certificate:
    2. Same.
    The board of canvassers may return a statement to the inspectors for the purpose of attaching the sample ballots and noting thereon the number of each kind voted, so far as that could be done, but not for a recount to vary or contradict the result expressed in the body of the certificate.
    (Earl, J., dissenting.)

      Appeal from judgment of supreme court, general term, fourth department, affirming order of special term granting writ of mandamus.

      Hamilton Harris and Frederick Collin, for app’lts; W. A. Sutherland, for resp’t.

       Affirming 36 N. Y. State Rep., 1019; 34 id., 127.

   O’Brien, J.

The supreme court, upon the application of the relator, has made an order directing that a peremptory mandamus issue to the board of supervisors of the county of Chemung, constituting the board of county canvassers, commanding them forthwith to reassemble and reconvene, recanvass and retabulate and forward to the secretary of state a true and correct canvass and statement of the result of the last general election, so far as the same relates to representative in congress in six of the election districts in the city of Elmira. The board was further required to make the estimate and tabulated statement from the face of the original returns of the inspectors of election in these election districts, instead of from the ballots on the back thereof. The order directing the writ was made after the board of county canvassers had canvassed the votes given for all officers voted for at the general election held in the county, including the vote for representative in congress for the twenty-eighth congressional district, of which the county composed a part, and had filed a certified statement of the result of such canvass in the office of the county clerk of the county and the secretary of state, as required by law. The relator claims that the board did not comply with the statute in making the canvass, and that the result of the vote, in respect to representative in congress in the six election districts so made, certified and filed by them, is not correct. Before examining the question involved in the appeal from the order, it is proper to notice a preliminary question. The record submitted to us is accompanied by a motion to the court, made upon notice and affidavits, from which it appears that the board of state canvassers, in pursuance of the statute, met and organized as such board at the office of the secretary of state, on the 5th day of December, 1890. That they then and there proceeded to canvass, and did canvass, the vote given for officers at the preceding general election, including representatives in congress for the various congressional districts of the state, from the returns and certified statements on file in the office of the secretary of state, made and filed by the various boards of county canvassers in the several counties. That the vote for representative in congress from the twenty-eighth congressional district was canvassed from the returns and certified. statements received from the several boards of county canvassers of the counties comprising the district, as certified and filed in the office of the secretary of state by the county clerk of the several counties. That there was but one return or certified statement from each county in the congressional district, and no protest or claim that any return on file and before the state canvassers was, in any respect, erroneous. That from the statement of the vote for congress, contained in the statements from the counties comprising the twenty-eighth district, it appeared that Hosea H. Rockwell had received the greatest number of votes and was elected to that office. The board of state canvassers made a statement in writing of the result, duly signed and filed the same and delivered a certificate to said Rockwell of his election, in compliance with the statute.

On these facts we are asked by counsel for Rockwell to stay all proceedings upon this appeal, on the ground that any decision that we can make will be entirely ineffectual. That there is no power to review or change the action of the . state canvassers upon the returns before them, or to recall the certificate of election issued. That the only authority now competent to review the action of the state canvassers is the house of representatives, in virtue of its ultimate power, under the constitution, to judge of the election of its members. No good reason has been or can be given for staying the appeal at the request of the parties bringing it here, but to my mind there are cogent reasons for refusing to hear it and disposing of the case by dismissal. The time and attention of this court is sufficiently occupied by the pressing demands of actual and practical litigation, and it ought not to be asked to listen to arguments and examine records involving questions purely abstract or theoretical, or when it appears that its judgments or decisions can have no practical effect, upon the controversy. This seems to me to be a case of that character. But the court has arrived at the conclusion that we ought not to anticipate what may occur in the future in regard to the practical consequences of our decision, as a reason now for declining to hear an appeal regularly and properly before us. We do not know, from the record before us, what effect, if any, the method of canvassing the vote in the six election districts, adopted by the county canvassers, had upon the result as declared by the state canvassers. All we do know is that, the principle adopted gave, in these districts, to Mr. Rockwell a few votes more, and to Mr. Noyes a few votes less than the manner of canvassing directed by the mandamus. It is conceded that immediately after the close of the polls in each of the six election districts, on the 4th of November, 1890, the inspectors-counted the vote for representative in congress in its regular order, publicly announced the result, inserted in words written at full length in the body of the certificate the whole number of votes given for each candidate, certified the statement to be correct and signed the same, and then dissolved as a board of inspectors and canvassers. The result thus announced and inserted in the certificate, in these particular districts, gave, in the aggregate, to Hosea H. Rockwell, 458 votes, and to Hemy T. Noyes, 488 votes for member of congress. The election was held under chap. 262 of the Laws of 1890, and it is possible that the inspectors may have been ignorant as to-what parts of the law governing the conduct of elections and the canvass of the vote, existing prior to that enactment, remained still in force. No facts appear in the record upon which intentional fraud or dishonesty can be imputed to them. That they were wanting in the knowledge necessary for an efficient performance of the duty imposed upon inspectors of election is quite clear. They failed to attach to the statement signed by them the sample ballots as directed by the statute, 1 R S., 8th ed., p. 421, § 42, and they also failed to destroy the ballots voted, but carefully preserved them, some of the inspectors, apparently, being of the impression that they were required to file them with the county clerk. The inspectors returns were presented the next day to the county clerk for filing in his office, but he refused to-receive or file them for the reason that no sample ballots were attached The inspectors, or a majority of them, in each district thereupon opened the sealed packages in which the ballots voted •were placed the night before, in some of the districts, and the boxes in which they were locked up in others, recounted them, and attached in each case one of each variety cast to the return and wrote, partly upon the ballot and partly upon the paper to-which it was attached, in words, the number of such ballots voted, as required by the .statute, and then the returns were delivered to the county clerk, and by him filed. These facts are common to five of the districts. In the other, the second of the first ward, the inspectors attached the sample ballots with the statement thereon to a new certificate, in which was written in the body thereof the number of votes cast for each candidate as shown by the writing on the ballots, and which was four votes less for Mr. Noyes and four votes more for his opponent than announced and inserted in the paper the night before. The numerous affidavits embraced in the record contain many details touching the counting of the vote at the close of the polls and the event following, with possibly some shades of difference, none of which, we think, is important to notice here, as the foregoing statement is sufficiently full and accurate for all purposes of the question which we are to-decide.

The controversy arises upon the conceded fact that there was-before the board of county canvassers a certificate of the inspectors of election which contained one result of the vote for member of congress in the body of the paper, and another and different result in the writing on the attached ballots. The board canvassed and estimated the vote for member of congress in these districts according to the writing on the ballots, and not according to that contained in the body of the paper, and this method of canvassing and estimating the result gave Rockwell four hundred and eighty-one votes, and Noyes four hundred and sixty-six votes, or Rockwell twenty-three votes more and Noyes twenty-two votes less than the number announced at the close of the canvass by the inspectors, and inserted by them in the certificate. The question is whether the board of county canvassers, in thus canvassing and certifying the vote, performed the duty imposed upon them, by the law. It was not their duty to ascertain which of the candidates was, in fact, elected, nor even which of them in fact received the greatest number of votes in the six districts, but simply to determine from the documentary evidence before them, furnished by the action of the inspectors, and upon which alone they could act, the number of votes given for each candidate respectively for representative in Congress. This document, from which. the canvassers are required, in a ministerial capacity, to estimate and certify the vote, is called in the statute a statement; and this controversy arises from what appears to be an honest difference of opinion between the learned counsel who have presented the case as to the true scope and meaning of that word. On the one hand it is argued that when there is a conflict between the writing on the attached ballot and that inserted in the body of the paper, the board, in canvassing the vote, is bound by the latter, while, on the other hand, it is insisted that the attached ballots and the writing thereon are a part of the statement, and it is within the power of the board to estimate and certify the true vote from them. The question thus becomes one purely of construction. The importance of an honest and consistent administration of the laws governing the conduct of elections and the preservation of every safeguard granted by the law, for the purpose of ensuring a true and honest canvass and return of the vote cast, has often been emphasized in the opinions of courts, and cannot be too often stated.

In a government resting wholly on popular suffrage, few questions can ever come before the courts so intimately connected with the very structure of political society and exerting such a wide influence upon the' public welfare as those concerning the enforcement and construction of the laws relating to elections and the canvass and return of the vote. When they are open to construction they should receive from the courts, if possible, such an interpretation as is most likely to secure the object of their enactment It is quite unreasonable to suppose that the election laws of this state have been so framed as to render it legally possible, in every election district, to produce a conflict between the result of the vote, as written upon the attached ballots, and that expressed in the body of the paper, and at the same time leave the county canvassers in each county at liberty to adopt whichever result is most in harmony with their personal or political affiliations. Such a construction would open the door to abuses the most grave and dangerous. A system so elastic would destroy all confidence in the result of elections and would very soon become intolerable. An intelligent and consistent administration of our statutes relating to the canvass of the vote by county canvassers, requires that when there is conflict in this respect they shall be bound by some rule that is reasonable and certain, and not subject to variation according to the discretion of each board. In my opinion the writing in the body of the certificate, expressing the result of the count by the inspectors at the close of the polls, and publicly announced by them, and certified under their official certificates to be correct, must prevail over any contrary result that can be obtained from the writing on the ballots. The words written into the paper by the inspectors must be deemed to express the actual and correct result of their count. They are precise and certain and to the effect that a certain number of votes were given for a person therein named for a designated office. Not so with the writing on the ballot. That imports simply that a certain number of tickets of each variety were voted, from which and from an inspection of the sample ballots themselves the actual vote for any given candidate may or may not be accurately ascertained. A result so deduced would practically amount to a recount of the ballots by the board of county canvassers, instead" of an estimate .and canvass of the vote upon the certified statement of the inspectors.

The act of the inspectors in stating the vote in the body of the paper, the certificate that the same is correct and the signature of each of them to the certificate is, so far as the county canvassers are concerned, fundamental, jurisdictional and controlling, while the words on the ballot are subordinate and incidental and the duty of the inspectors in respect to the same is probably directory merely. The form of the statement which the inspectors are to make and upon which the board is to act is pointed out by the statute with care. It must have a caption, stating the day on which, and the number of the district, the town or ward and the county in which the election is held, a statement showing the whole number of ballots for each person, designating the office, which shall be written in words at length; and, at the end thereof, a certificate that such statement is correct in all respects, which shall be subscribed by the inspectors. Section 44. By a recent, statute it is enacted that this statement shall be made upon a single sheet of paper, or if not, each half sheet shall be signed at the end thereof, by the inspectors. Laws 1880, chap. 56, § 11. When this word statement was first used to designate the return of the district inspectors to the county canvassers, there was no provision for attaching any ballots, but, on the contrary, it was expressly provided that, upon the subscription thereof by the inspectors, they should immediately destroy all the poll books and the ballots voted. Laws 1822, chap. 250, | 9. The case of The People v. Ferguson, 8 Cowen, 102, decided in 1827, turned upon the effect to be given to certain ballots, which the inspectors had rejected as defective. The Revised Statutes, enacted soon after this decision, changed the law as previously existing only so far as to require defective ballots to be preserved and filed with the town clerk, „In the next election law, passed in 1842, Laws 1842, chap. 130, the inspectors were required to attach to the statements, not only the defective ballots, but a sample of all others voted, with the writing thereon, showing the number of each kind cast, and this section has remained unchanged ever since. Id., § 42, p. 122. At the same time it was enacted that the poll books should be preserved and all the ballots voted, not so attached, should be destroyed. The history of the provision first requiring the specimen ballots and writing thereon to be attached to it, shows that it was never intended that the latter could be used by the county canvassers to overthrow the result certified by the inspectors in the paper made immediately after the count. People v. Pease, 27 N. Y., 85, 86.

They are mere exhibits that no more control the words of the statement than did the defective ballots when first required to be preserved and attached. The county canvassers may cause any return to be sent back to the inspectors for the purpose of correcting clerical errors. The ballots voted are, in contemplation of law, destroyed immediately after the completion of the count by the inspectors, except such as are required to be attached to the statement. The board might return a statement to the inspectors for the purpose of attaching the sample ballots and noting thereon the number of each kind voted, so far as that could be done, but not for the purpose of a recount to vary or contradict the result expressed in the body of the certificate. It would be absurd to require inspectors to recount votes after they were required by law to destroy them. The recent statute (Laws 1880, chap. 460,) confers power upon the court to require, by order, a board of county canvassers, after it has dissolved, to reconvene and correct any errors in its canvass of the vote at an election, and the order granted in this case is, we think, fairly within its scope. In our opinion the statement in the body of the paper as to the vote for representative in congress in the five districts, and in the other, the statement made on the night after the election, must control the action of the county canvassers. If it be claimed that the actual result at the polls was different in fact from that shown by this statement, that question must be left for the determination of another tribunal.

These views lead to an affirmance of the order.

Earl, J., (dissenting.)

The duties of the officers concerned in ascertaining and returning the results of any election are particularly pointed out in the statutes, and the faithful discharge of all those duties is enforced by severe penalties; and frauds therein are not easy and ought to be very uncommon.

The mode of canvassing the votes and ascertaining the results of elections are provided for in the act, chap. 130 of the Laws of 1842, and subsequent acts. In article 4 of title 4 of the act of 1842, the duties of inspectors of elections are prescribed. They are first to see that the whole number of ballots corresponds with the whole number of votes shown by the poll-lists, and then, as provided in § 40, they are to proceed to canvass and estimate the votes. Section 42 contains a provision for the first time found in the laws of this state as follows: “ The canvass shall be completed by ascertaining how many ballots of the same kind corresponding in respect to the names of persons thereon, and the offices for which they are designated, have been received; and the result being found the inspector shall securely attach to a statement of such canvass one ballot of each kind "found to have been given for the officers to be chosen at such election, any or either of them, except those given for electors of president and vice-president ; and they shall state in words at full length immediately opposite such ballot, and written partly on such ballot and partly on the paper to which it shall be attached, the whole number of all the ballots that were received which correspond with the one so attached, so that one of each kind of the ballots received at such election for the officers then to be chosen shall be attached to such paper, with a statement of such canvass. They shall also attach to such paper the original ballots rejected by them as being defective which were given at such election.” Section 43 contains a similar provision as to the canvass and ■statement of the votes given for presidential electors. Section 44 is as follows: “ The statements to be made by the inspectors •shall contain a caption stating the day on which, and the number of the district, the town or ward, and the county at which the ■election was held in relation to which such statement shall be made; it shall also contain a statement showing the number of ballots taken for each person, designating the office for which they are given, which statement shall be written in words at length; and at the end thereof a certificate that such statement is correct in all respects; which certificate shall be subscribed by "the inspectors.”

In this case, in some of the returns placed before the county ■canvassers there were discrepancies between the number of votes written in the statements, under § 44, which, for brevity, I will call .general statements, and the numbers written on and opposite the ballots attached under § 42, which I will call detailed statements, the latter numbers being greater than the former in most cases where discrepancies existed. The canvassers decided to canvass the returns by taking the detailed statements, and they did so ■canvass; and the relator complains of this, claiming that they were bound to take and canvass the general statements and ascertain the results of the election from them. The court below upheld the claim of the relator, and commanded the canvassers to canvass the returns by taking the general statement and wholly -disregarding the detailed statements. The sole question of law for our consideration is whether the court could legally issue this peremptory command to the canvassers, and this question must be solved by a careful reading and scrutiny of the statutes, and thus arriving at the intention of the law makers.

Under § 42, the inspectors are first to ascertain how many ballots of each kind have been received, and then they are to attach one ballot of each kind, omitting none, to the statement, and write opposite to it, or partly on it, the number of such ballots received. The detailed statements will thus show, by adding the numbers thus written, the whole number of votes given at the election and how many were given for each candidate.

Why are the ballots required to be thus attached? In 1842, when this provision first came into the law, ballots could be written or printed, in any form, of any size and upon any paper, and hence the requirement that the ballots should be attached could not have been to show whether or not some law had been complied with. Yet the ballots were to be attached for some purpose. -For what purpose ? Undoubtedly, as an additional security for an accurate canvass, and as an additional safeguard against frauds and mistakes. The ballots are not only to be attached, but the numbers of the ballots are to be written partly on the ballots and on the paper to which they are attached. Why is this minute requirement if they are to serve no purpose and have no ■effect ? Can it be supposed that all this is a mere idle ceremony ? Who shall say that the general statement and the detailed statement are not of equal importance ? One is evidently intended as a check on the other. The general statement is made up of the details contained in the other, and they should exactly correspond. The canvass is not completed until the hallo's have been counted, attached and written on. The detailed stab ment is part of the canvass. It is made under the same sanctions as the general statement, and the same punishment can be meted out to inspectors for any fraud or wrong in respect thereto. It is to be canvassed and verified in the same way as the general statement, and the general certificate required by § 44 applies to it as well as to-the general statement Section 11 of the act, chap. 56 of the Laws of 1880, requires that “ every return or statement of the result of the canvass of any election shall be made upon a single sheet of paper, or, if not, each half sheet shall be signed at the end thereof by the inspectors,” and here the return or statement means the whole return or statement which the inspectors are bound to make,, including the attached ballots and what is written thereon. Sections 45 and 48 of the act of 1842, and § 14 of the act of 1880, require that a true copy of the statement shall be filed in the office of " the clerk of the town or city, that the original statement duly certified shall be delivered to the supervisor of the town or ward, and that a duplicate thereof shall be filed in the office of the county clerk. What statement is meant by these provisions? Evidently the whole statement, the general as well as detailed, made by the inspectors. And these statements are, by § 15 of the act of 1880, made public records, open to inspection and examination by any elector of the state. The two statements are never to be divorced, and where the one goes, the other must also go.

It is thus clear, too clear, it seems to me, for reasonable doubt, that the detailed statement is part of the statement and return which the inspectors of election are required to make. The election laws applicable to the city of New York throw some light upon the meaning of the word “ statement ” as used in the acts of 1842 and 1880. Section 1892 of the consolidation act, chap. 410 of the Laws of 1882, contains the substance of §. 42 of the act of 1842 as to attaching ballots and as to writing the numbers upon ■ them; and § 1895 contains the substance of § 44 of the act of 1842 in reference to what I call the general statement. The inspectors are required to make triplicate statements of .the results of the canvass and estimate, one to be delivered to the clerk of the board of aldermen, one to the county clerk and one to the chief of the bureau of elections, and all these statements must be complete, containing the attached ballots and what is written upon them.

The statement having thus been made, delivered and filed, then follows the duty of the county canvassers. The original statements are to be placed before them by the supervisors to whom they have been delivered by the inspectors, and they are to canvass them. Their duty is confined solely to the canvass of such statements. They cannot go outside of or disregard them, and they are to determine what they show as to the number of votes cast for each candidate, and declare the results. The returns placed before them containing the general and detailed statements with ballots attached are called statements, and they are the statements upon which they are to act. They cannot omit a portion of any statement, ■but they are to consider the whole statement and base their conclusion upon that.

Now, when these canvassers came to act, they found upon the returns placed before them two sets of numbers, which ought to have agreed, but did not agree. What was their duty then? Clearly to send back the returns to the inspectors for correction, under the act of 1842, where it is provided, that “ if, upon proceeding to canvass the votes, it shall clearly appear to the canvassers that in any statement produced to them, (the word statement here evidently meaning the whole return or statement), “ certain matters are omitted in such statement which should have been inserted, or that any mistakes which are clerical merely exist, they shall cause such statement to be sent by one of their number,” to the inspectors to have the same corrected, and the inspectors are to be convened and make such correction as the facts of the case require, but not change or alter any decision before made by them, only causing their canvass to be correctly stated. Under this provision of law, if the canvassers find that ballots have not •been attached to the returns by the inspectors, that is a case of omission, and they can send the returns back to have the omission ■supplied. Here the discrepancy between the two sets of numbers appears to be and was manifestly on the face of the returns the result of clerical mistakes, either in writing the numbers or in adding up figures, and the canvassers could have sent the returns back for the correction of these mistakes. The inspectors could have corrected them by resort to the tally sheets, or to their memories, or to any other facts in their possession which would enable them to make the corrections so that the two sets of numbers would correspond. But the county canvassers, as this record discloses, refused to send these returns back for correction.

Assuming now that they were not absolutely bound to send them back for correction, how were they bound to canvass them ? Then it was for them to determine the significance, meaning and result of the returns. If they thought one set of numbers was more reliable than the other, they could take that and base their canvass upon it All that was written upon or in the returns ■constituted the statement which they were to canvass. There is certainly ground for claiming that a detailed statement made up of the numbers of each kind of the ballots was more reliable than the general statement composed of totals reached by adding up the ballots. The general statement must have been reached by adding up the votes contained in all the ballots of every kind, and there is one chance of error, that of mistakes in addition, which is absent from the detailed statement It was for the canvassers to determine in the case of any return which of the two statements was the most reliable and the safest guide. Where does the court get the power to command them absolutely to take the one statement rather than the other ? What right has it to-interfere with and control the discretion vested in the canvassers ? If the canvassers had taken the general statements as their guide, and found the results of the election from them, it would have been quite as competent and equally erroneous for the court to-have commanded them to make their canvass from the detailed statement

If the court had commanded them to send the returns back for correction, some argument for the jurisdiction of the court could have been made, and the jurisdiction could be upheld if the canvassers were under an absolute legal duty under the circumstances to send them back. Whether they were under such an absolute legal duty we need not now determine, because no such command has been issued. The court, without any correction of. the apparent mistakes, and without giving the canvassers any opportunity to have them corrected in the mode pointed out in the statute, an opportunity which they might-embrace rather than canvass the general statement, has absolutely commanded them to canvass the returns with these mistakes apparent upon them in a particular way, disregarding an important, and material portion of them. What right has the court to command the canvassers to disregard any portions of the returns which, under severe penalties, the inspectors were bound to make for the purpose of showing the results of the elections in the election districts.

Suppose the detailed statement shows that ten or a hundred ballots of the kind attached were cast at any election, while the general statement makes no mention of such ballots, what then are the canvassers to do ? They may send the returns back for correction. But can the court command them to make their canvass from the general statement, disregarding wholly the detailed statement showing beyond question a number of votes cast

There certainly can be no policy which requires greater weight to be given to the general statement than to the detailed statement.. Frauds are easier and mistakes more liable in the former than in the latter.

I do not deem it important to give particular attention to the-return of the votes in the second district of the first ward of the city of Elmira. That stands upon a different footing from the-other returns of inspectors. Even if the court below is right in. reference to that return, its order cannot be justified.

A careful consideration of the whole case leaves upon my mind no doubt that the learned court below fell into error in its construction of the statutes. To me it appears -demonstrably clear that the canvassers acted within their jurisdiction in making the canvass as they did, and if any wrong has been done in canvassing votes, and the relator has actually received the greatest number of votes for representative in congress, he must seek his remedy in the House of Representatives, the only body that can give him relief, and the public justice for violated law must be vindicated in the criminal courts.

The orders of the general and special terms should be reversed and the writ of mandamus denied, with costs in all the courts.

Order affirmed, with costs.

All concur, except Earl, J., dissenting, and Huger, Ch. J.$ not voting.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    In the Matter of the Accounting of Henry Huss.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Wills—Legacy to foreign community—Evidence of capacity to TAKE.
    When proof of a law of a foreign state has been given, from a publication made under governmental authority, the rules and principles of evidence entitle it to be considered as the existing law of the land in the absence of some equally good evidence that it has been changed or repealed.
    2. Same.
    Where by the customary or common law of the place of its domicil, confirmed by a public statute, a “ community” of a foreign country is entitled to take, hold and manage property in the right of its citizens as a whole or as an aggregate body incorporate, it is entitled to take its share of the personalty under a bequest in a will.
    Appeal from a judgment of the supreme court, general term, second department, affirming decree of surrogate adjudging that the proofs of appellant’s right to take were insufficient

      Richard M. Bruno and E. Countryman, for app’lts; Jacob F. Miller, for resp’t.

       Reversing 30 N. Y. State Rep., 359.

   Gray, J.

The testator gave one-fourth of his residuary estate to the community of Hochhausen, a municipality situated in the Grand Duchy of Baden, a state of the German Empire, and the question raised upon the settlement of the accounts of his executor was whether it has legal capacity to take its distributive share of the personal estate; no claim being made upon the realty. The surrogate decreed adversely to the claim of the legatee; his decree reciting that the proofs were insufficient to allow it to take any of the property, or to be a legatee under the laws of this state. This decree has been affirmed by the general term. The surrogate expressly found that the legatee had been a municipal body for the past 900 years ; but refused to find that by the unwritten, or by the written law of the country, it was authorized to take and hold bequests of personal property, or to hold personal property as a corporation. In so ruling upon the question of the legatee’s legal capacity, I think the surrogate has erred. By a competent witness, in the person of the German Vice Consul, who, before entering upon the foreign service of the German Empire, had filled a judicial position and was acquainted with the laws of the different states comprising that empire, it was proved that the Grand Duchy of Baden had an unwritten and a written law.

By the unwritten law of the county “ communities,” by which term a city or township was characterized, had a right to acquire and to manage property and to.take by bequest' A copy of the laws and statutes of the Grand Duchy, printed by governmental authority in the official printing office, in 1832, was offered in evidence, and from it proof was given that “every community has a right to administer its affairs as a community and to manage property independently for itself;” and that “all movable and immovable property of communities is the property of the citizens ” as “ a corporation” or “as a body ” or “ as a whole” (the German word in the act being the equivalent of these terms). This witness gave the only evidence in the case and nothing was offered in contradiction of it; nor any other proof given upon the question of what was the law of the domicil of this legatee. But because it appears that, since this publication of the Grand Ducal laws and statutes in 1832, a legislature has been in existence, and that the evidence of the witness that these statutes, and the unwritten law concerning which he had testified, remained in force, was predicated upon the fact that by virtue of his official position he would have been made acquainted with any changes by legislative enactment, it was thought that the proofs were insufficient. The surrogate held that it must be shown that the law relied upon to establish the corporate capacity was in force at the time of the testator’s death and that the evidence here was merely hearsay and, therefore, incompetent He also held, upon the authority of Hynes v. McDermott, 82 N. Y., 41, that there was no presumption of the continued existence of the earlier law. That case is not controlling upon the question here. The books offered upon the trial, in that case, as containing the laws of France, were the publication of a private person. They were not proven nor did they purport to have been published by governmental authority, and were there seen for the first time by the witness.

Moreover, one of the volumes was edited at a date subsequent to the transaction to which they were sought to be made applicable. Nor was it considered that the evidence of the witness as to the reception of these private works in the French courts amounted to proof of that fact Upon the question of whether the presumption should prevail that a law once shown to have existed continued the same until the time of the event about which the controversy turned, the court refused to pass definitely, as being unimportant to the decision. Judge Folger intimated, however, pretty strongly, on the authority of Raynham v. Canton, 3 Pick., 293, that if the question of presumption was in the case, the court would have to make it In Raynham v. Canton, in connection with proofs relating to a marriage in Rhode Island in 1817, a volume of the laws of that state, published by its authority in 1798, was offered; but it was rejected upon the mere objection or denial interposed by counsel that the law so evidenced was not the law at the time of the marriage. Judge Parker, delivering the opinion of the supreme court in reversal of the judgment, held that “ the law being proved to have existed in the manner above stated, it must be presumed to exist until proved by as good evidence to have been repealed.”

I think the rule in the Massachusetts case should be adopted by us as correct upon principle. The rule of presumption as applied to the continuance of a law may well rest upon the same basis that is found for similar presumptions in many human affairs. In Greenleaf on Evidence, vol. 1, § 41, the author states the rule that, “when the existence of a person, a personal relation, or a state of things is once established by proof, the law presumes that the person, relation or state of things continues to exist as before until the contrary is shown, or until a different presumption is raised from the nature of the subject in question.” In People v. Manhattan Company, 9 Wend., 351, is an illustration of the rule, where it was held that a corporation having been shown to have been legally created, it is “ in judgment of law supposed to continue to exist until the contrary is shown.’!

If in such instances the presumption should obtain, how much greater the reason for it in the case of a public law in a foreign state or country. In addition to the Massachusetts case of Raynham v. Canton, there is to be found authority for the rule in the opinions of the courts of other states. In People v. Calder, 30 Mich., 85, the question arose as to the law governing marriage in the state of Hew York in 1869. A volume of Hew York statutes printed in 1852 was held to be competent proof of what the law was; the court considering that, as no proof was offered to indicate any change in the law, the jury might fairly presume that it continued as it was. In Harryman v. Roberts, 52 Md., 64, a volume of Ohio Revised Statutes, published in 1860, was admitted as evidence of the existing law of that state, when the question to which it was made applicable arose in 1879. And see State v. Patterson, 2 Ired., N. C., 346. It may be observed that the very notion of a law, as furnishing a rule of government, or of conduct, suggests permanence as a characteristic and does not involve the idea of change.

I am led -to the opinion that when proof of a law of a foreign state has been given from a publication made under governmental authority, the rules and principles of evidence entitle it to be considered as the existing law of the land, in the absence of some equally good evidence that it has been changed or repealed. We have, then, in this legatee a collective body of individuals, which has existed for past hundreds of years as a municipality, under the description of a “community.” It had acquired and by the unwritten or common law it possessed and exercised certain rights of self-government and powers to acquire and to manage property for itself. By enactment of the Grand Ducal government, its franchises and powers were recognized and confirmed to it The public statutes, in providing that all the property of a community is the property of its citizens, as a corporation, or as a body, in fact, thereby invested the existing municipal body aggregate with an essential attribute of a corporation. This legislation would seem to have amounted to an incorporation by sovereign recognition and grant of powers and franchises. But whether chartered or incorporated by statute or not, we are bound to consider the community as an artificial legal person.

In Germany, in the eye of the law, it is a “ judicial person ” according'to the evidence of the witness in this case. As under the Roman law, in the classification of the writer Savigny, it was a “juristical person.” It is conceded by the law such powers and rights as to give it the character of individuality and to enable it to take, hold and administer upon property. The ability to take the testamentary bequest depends upon the law of the legatee’s domicil Our laws do not prohibit the bequest, or the taking, and the sole question to be considered relates to the legatee’s capacity. See Chamberlain v. Chamberlain, 43 N. Y., 424.

When we find that by the customary or common law of the place of its domicile, confirmed by a public statute, this “ community ” was entitled to take, hold and manage property in the right of its citizens, as a whole, or as an aggregate body incorporate, we need proceed no further in search of capacity to take the legacy.

For the reason stated I think that the judgment of the general term and so much of the surrogate’s decree as has been appealed from, should be reversed, and that it should be decreed that this ■ appellant is entitled to take its share of the personalty under the bequest in the will, with costs to the appellant here and in the courts below, to'be paid out of the estate.

All concur.


author: Andrews, J.

text:
    The People ex rel. John P. Leo et al., App’lts, v. David B. Hill, as Commander in Chief, et al., Resp’ts.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Military law—National guard—Order disbanding a company not beviewable by certiorari.
    An order by the commander in chief, disbanding a company of the National Guard and rendering the commissioned officers supernumerary, is not reviewable by certiorari. The officer whose command is taken away is still an officer and must seek his redress in an appeal to his superior officer.
    3. Same—Constitutional law.
    Section 5 of art. 11 of the state constitution, which declares that “no commissioned officer (in the militia) shall be removed from office unless by the senate on the recommendation of the Governor, stating the grounds on which such removal is recommended, or by the decision of a court martial pursuant to law,” is not violated by such disbanding of a company, as an officer so long as he retains his commission retains his office.
    3. Same—Laws 1883, chap. 899, § 7—Constitutional law.
    Section 7, chap. 299, Laws 1883, authorizing such disbanding, etc., is not unconstitutional as being in conflict with the Federal Constitution or statutes, as that power is implied in the power given by § 1630 of the U. S. Statutes.
    Appeal from order of the supreme court, general term, first department, denying application for writ of certiorari, directed to the commander-in-chief of the state militia, etc., to review an order made by respondent disbanding Co. I of the Twenty-second regiment, National Guard.

      Asa Bird Gardiner, for app’lts; Charles F. Tabor, attorney-general, for resp’ts.

       Affirming 37 N. Y. State Rep., 112.

   Andrews, J.

The order of October 10, 1890, disbanding Co. I, of the Twenty-second regiment of the National Guard, and rendering the commissioned officers thereof supernumerary, was made by the executive as commander-in-chief of the military forces of the state. Const., art. 4, § 4. The power to make the order was conferred by the seventh section of the Military Code (Laws of 1883, chap. 299), which authorizes the commander-in-chief to alter, divide, annex, consolidate, disband or reorganize the brigades, regiments, battalions, troops, batteries and companies of the uniformed militia, “ whenever in his judgment the efficiency of the state forces will be thereby increased.”

By the forty-fourth section, as amended by chap. 332 of the Laws of 1888, commissioned officers of disbanded organizations are characterized as “supernumerary,” and they are exempt from military duty, except in case of war, insurrection and rebellion, on condition of reporting themselves annually to the adjutant-general, but they may be assigned by the commander-in-chief to active duty.

Enlisted men, discharged by reason of consolidations or the disbandment of the organization of which they are members, fall back into the general body of citizens as part of the reserve militia of the state, and unless re-enlisted, the time of their prior service, if less than five years, is not counted in determining a claim to exemption from military or jury duty. Military Code, § 13, as amended by act of 1888; also, §§ 1, 145.

The present appeal is by the relators, one the captain and the other a private in Co. I, of the Twenty-second regiment, from the denial of the general term of the first department of' their application for a writ of certiorari to review the validity of the order of October 10, 1890. The granting of a writ of certiorari to review the determination of a body or officer is for the discretion of the general or special term. ■ Code Civ. Pro., § 2127.

This would be a conclusive answer to this appeal except for the claim that the writ was denied by the court for' want of power to issue it in the case presented. But assuming that the order of the general term denying the application proceeded exclusively upon the want of power, we are of opinion that the application was properly denied on the merits, and also for the reason that the order of October 10, 1890, disbanding the company, is not in its nature reviewable on certiorari. It is claimed that the order in question violates that clause of § 5, of art 11, of the state constitution, which declares that “ no commissioned officer (in the militia) shall be removed from office unless by the senate on the recommendation of the governor, 'Stating the grounds on which such removal is recommended, or by the decision of a court martial pursuant to law.” This question has come before the supreme court in two .cases and in both was decided adversely to the .contention of the relators. People v. Scrugham, 25 Barb., 217; People v. Ewen, 17 How., 375. The decisions in those cases proceeded upon satisfactory reasons. The deprivation of an officer of command is not a removal from his office. An officer rendered supernumerary by the disbandment of the organization in which he holds command does not thereby lose his rank or commission. He is relieved from active service until he shall be assigned to duty again by the commander in chief, or is appointed or elected to another command.

The constitution prohibits a removal of an officer from office, except in the method prescribed. But an officer, so long as he retains his commission, retains his office.

The question of the status of supernumerary officers was considered by Caleb Cushing when attorney general of the United States, in the Matter of Virginia Bounty Land Warrants, 6 Opinions of Atty.-Genl., 252. He said: “ The supernumerary officers were not out of commission nor discharged. Out of command and out of service are different things in military sense.”

The word “ office ” used in this section of the constitution is synonymous with “commission.” It is the commission which constitutes a man a military officer. The final sentence of the section, which immediately follows the language quoted, shows the identity in meaning between the two words in the understanding of the body which drafted that instrument The sentence is: “ The present officers of the militia shall hold their commissions subject to removal as above provided.”

The contention that rendering an officer supernumerary under the act of 1883 was a removal from office within the constitution, is, we think, untenable. But the main question argued before us in behalf of the relators relates to the constitutionality of the seventh section of the act of 1883 under the federal constitution and statutes. The claim, in brief, is that power in the state legislature to authorize the disbandment of any part of the military force of the state is excluded by the provisions of the federal constitution and the laws of congress enacted pursuant thereto relating to the militia.

The power conferred upon congress by subd. 16, § 8, art. 1 of the federal constitution, “ to provide for organizing, arming and disciplining the militia, and for governing súch part of them as may be employed in the service of the United States; reserving to the states respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by congress,” does not exclude state legislation upon the same subject, unless the power conferred on congress is actually exercised.

The power to control and organize the militia resided in the several states at the time of the adoption of the constitution of the United States and was not taken away by that instrument. The power of legislation over the subject, after its adoption, was concurrent in the states and in congress, and the power of state legislation remained until congress, in the exercise of the power conferred upon it by the constitution, had legislated. State legislation in relation to the militia is only excluded when repugnant to, or inconsistent with, federal legislation enacted within the purview of the power conferred by the federal constitution, and there is authority for regarding state legislation as inconsistent, which undertakes to supplement laws passed by congress, covering the subject of the power, by annexing new qualifications or incidents not prescribed by the federal law. The general question was elaborately considered in the case of Houston v. Moore, 5 Wheat, 15, which involved the question of the right of courts martial, organized under the laws of a state, to punish delinquent militia men.

In the absence, therefore, of a law of congress prohibiting it or inconsistent with a state statute which authorizes the disbandment of a company of the National Guard, the order of the general term is not in contravention of the federal constitution. The acts of congress in respect to the militia, commencing with the act of 1792, are now consolidated in the Revised Statutes of the United States. Section 1625, et seq. By these acts the militia comprised the whole population of the several states between the ages of eighteen and forty-five years. They provide for their enrollment and equipment and their organization and arrangement into divisions and other subordinate bodies, and that the discipline prescribed for the regular army shall be observed. The statutes are filled with details which are practically obsolete in the actual situation. The system has grown up and prevails in most of the states of organizing therein, under state authority, certain bodies of men out of the great body of the militia, as a uniformed force known as the National guard. They are part of the militia of the state. Their limited number makes it possible to arm, equip, and discipline them more perfectly, and to bring them to a much higher degree of efficiency as a militia force than can be attained by the great body of the militia They are always available in an emergency requiring the prompt exertion of the military power of the state and nation, and their usefulness was signally proved in the war of the rebellion. The state assumes’the burden of maintaining them. They are subject to the orders of the chief executive of the state as commander in chief, until called into the actual service of the United States. State Const., § 2, art. 2. They are organized and governed pursuant to state statutes, and are disciplined in substantial conformity with the discipline of the army of the United States. Laws 1883, chap. 299, § 8.

We perceive no reason to doubt the power of the state to organize the National guard. Section 1630 of the United States Revised Statutes declares that “ the militia of each*"state shall be arranged into divisions, brigades, regiments, battalions and companies, as the legislature of the state may direct.” The fact that but a portion of the militia have been so organized does not impair the validity of such organizations as have been made.

It is contended, however, that the power of the state to disband an organization once made is not conferred by the section of the United States statute above quoted. Assuming, but without deciding, that authority to disband a company must be found in the Federal statute, we are of opinion that this power is implied in the power given by § 1630 of the United States Statutes above quoted to organize and arrange. It would be a very inconvenient construction to hold that the power to organize did not include the power to rearrange or disband a particular organization, to promote the efficiency of the force. We entertain no doubt that it was the intention of congress that the whole subject of organization and reorganization should remain under the control of the respective states, subject to the power of congress, and that the power conferred on the commander-in-chief by the act of 1880, to disband an existing military organization, is not. in conflict with the constitution or statutes of the United States. The certiorari might have been properly refused on the merits, as was in fact the case, as appears from the opinions below. See Proctor v. Slone, 1 Allen, 193, and opinion of judges annexed.

We are also of'opinion that, assuming the invalidity of the order of October 10, 1890, the question is not reviewable. on certiorari at the instance of the relators. It is the order of the commander-in-chief of the military forces of the state. It is revocable by the authority which issued it. The relators have no such interest as entitles them to the interposition of the civil courts. The order deprives them of no property, subjects them to no penalty, and affects no personal right cognizable in a civil tribunal. The officer who complains is still an officer as before, and the fact that his command is taken away is the result of a military order of his superior, and he must seek his redress in an appeal to him. Deprivation of command is not a civil injury. The private soldier who complains has no vested right which is affected by his discharge from the service. See People v. Roper, 35 N. Y., 629.

If the order is void Company I is not disbanded and the relator is still a member of the company. The order was not a judicial determination and such determination only is reviewable on certiorari. People ex rel. Corwin v. Walter, 68 N. Y., 410; People v. Board of Commissioners, etc., 97 id., 43. The statute authorizing it put the matter in 'the discretion of the commander-in-chief, and because that discretion was confided to his judgment this did not make its exercise a judicial act. Mor does the fact that an act of the legislature is unconstitutional alone authorize the intervention of the judicial power. Where such an act is sought to be enforced against an individual, so as to touch some private right or interest cognizable by courts of law, then he may invoke their aid.

The facts of this case do not, we think, authorize such intervention by certiorari. See Adams, Petitioner, etc., 4 Pick., 25; Grove v. Mott, 46 N. J. L., 328.

The order should, therefore, be affirmed.

All concur.


author: Macomber, J.

text:
    Jonas P. Varnum, Adm’r with the Will Annexed, App’lt, v. James W. Taylor, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Executors and administrators — May sue for goods sold by them IN BUSINESS AUTHORIZED BY THE WILL.
    Where executors continue the business of their testator under an authorization contained in the will, an indebtedness for goods sold in such business is due to them in their representative capacity, and an action may he maintained therefor by them or their successor.
    2. Pleading—Pabties.
    An objection that the plaintiff is not the real party in interest must be taken by demurrer or answer; a failure to do so precludes the defendant from raising the question at the trial.
    Appeal from a judgment of the Monroe county court, entered upon a nonsuit directed by the special county judge May 22,1890, ■dismissing the plaintiff’s complaint.

      Howard L. Osgood, for app’lt; W. Henry Davis, for resp’t.
   Macomber, J.

The plaintiff, who is the administrator with the will annexed of Charles J. Hayden, deceased, brings this action to recover a balance due the estate which he represents, arising out of dealings of the executors appointed by the will. One •of the executors, Charles A. Hayden, was empowered by his associates to manage the business which had previously been conducted by the testator, and which, by the terms of the will, the executors were authorized to continue, .in their discretion, after the decease of the testator. The indebtedness of the defendant was incurred between the 20th and 30th of August, 1888, being for merchandize of the estate, manufactured and sold by the acting executor, amounting in all to the sum of $347.50. Subsequently, and on the 14th day of September of that year, the executors were permitted to resign their trust, and this plaintiff was appointed by the surrogate of Monroe county in their place as administrator with the will annexed. On the 27th day of November, 1889, Charles A. Hayden, under whose management the estate had been previously administered, assigned to the plaintiff, as administrator with the will annexed, the claim in action, upon which it was shown at the trial there was unpaid, .at the time the action was begun, the sum of $232.50, there having been previously paid by the defendant to Charles A. Hayden the sums of $100 and $Í5 respectively.

Upon the trial the special county judge, at the close of the evidence, nonsuited the plaintiff upon the ground, as stated in the case, that the plaintiff, as the administrator with the will -annexed of Charles J. Hayden, was not the real party in interest'

This direction of the court was erroneous. Under the allegations and the proofs, the defendant was indebted to the estate represented by the executors of the decedent, which indebtedness was incurred under lawful power contained in the will by which the business theretofore carried on by the testator might ■be continued by the executors in their representative capacity.

By reason of such authorization in the will, followed as it was by the approval of the surrogate’s court, the indebtedness which the defendant incurred was owing to the executors in their representative capacity, and an action might be maintained therefor by them or their successor.

But there is another reason why this judgment should be reversed, and that is, that the objection to the maintenance of this ¡action by the plaintiff was not taken by the defendant either by demurrer or by answer. All of the facts disclosing any objection which might be taken to the capacity of the plaintiff to sue appeared in the complaint, and if it was intended to raise the objection that the plaintiff, as the administrator with the will annexed, could not maintain the action, it was incumbent upon the defendant to demur to the complaint; or, if it was deemed doubtful whether the facts were all disclosed in the complaint, to allege in his answer that the plaintiff had not legal capacity to sue.

The failure either to demur or to answer precluded the defendant from raising the question at the trial. Section 488 of the Code of Civil Procedure provides that the defendant may demur where it appears upon the face of the complaint that the plaintiff has not legal capacity to sue. By § 499 of that Code, if such objection is not taken, either by demurrer or answer, the defendant is deemed to have waived it. This is distinctly so decided in the case of Nanz v. Oakley, 122 N. Y., 631; 33 N. Y. State Rep., 330; 19 Civ. Pro., 246. This principle is in accordance, also, with the case of Wright v. Wright, 54 N. Y., 437, where it is held that the objection to the ability of the plaintiff to bring suit in the form adopted is in the nature of a dilatory plea, and to be made available it must be strictly pleaded.

The judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Dwight, P. J., and Corlett, J., concur.


author: Dwight, P. J.

text:
    The Third National Bank of Buffalo, Resp’t, v. The Butler Colliery Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Principal and agent—Authority op agent to endorse.
    Evidence to the effect that defendant’s agent had for a long time been accustomed to endorse notes taken upon sales of defendant’s goods, and have the same discounted by the plaintiff and other banks; that defendant received the proceeds of such discounts, and of the notes in suit, is sufficient to sustain a finding that the agent had authority to make such endorsements for defendant.
    Appeal by the defendant from a judgment entered on the verdict of a jury directed by the court at the circuit.

      J. W. Dinniny, for app’lt; A. Moot, for resp’t.
   Dwight, P. J.

The action was against" the defendant as endorser of four several promissory notes, of several makers, which were discounted by the plaintiff. The notes were taken by one Hubbell, the agent of the defendant at Buffalo, for coal sold by him for the defendant to the several makers of the notes. They were by their terms payable to “ E. S. Hubbell, agent,” in one case, “ E. S. Hubbell, agent for Butler Colliery Company,"- and they were endorsed by him as “ E. S. Hubbell, agent of Butler Colliery Company.”

The only substantial question in the case was that of the authority of the agent to endorse for the defendant for discount by the plaintiff. The plaintiff’s case upon that question consisted' of very voluminous evidence relating to a long continued course of dealing between the agent and the plaintiff and other banks in Buffalo and elsewhere, on the one hand, and with the defendant on the other hand; evidence tending to show that the defendant was in the constant receipt, during all that time, of the avails of discounts procured by the agent upon endorsements of the same character as those in question, and that it was chargeable with knowledge of the sources from which such discounts were procured ; evidence tending to show that it had received the avails of the discount of the very notes in suit; evidence, in short, tending to establish facts which effectually estopped the defendant to deny that the agent had authority to procure the discounts of the notes in question by the endorsements with which the defendant is sought to be charged. .

All this evidence being before the court, both parties asked for the direction of a verdict, and neither party asked to go to the jury upon any question of fact This practice had the effect to submit all the questions of fact in the case to the court for its decision; and, a direction being thereupon given to find a verdict for the plaintiff, the case comes to us as if the action had been tried by the court" without a jury, and all the material facts involved in the issues had been found in favor of the plaintiff. Bank of Attica v. Pottier & Stymus Manufacturing Co., 17 N. Y. State Rep., 327, 332. Such findings we should regard as abundantly sustained by the evidence in the record before us; and that such findings would sustain the judgment appealed from we can have no doubt, especially in view of the judgments made in two previous actions -of the same character against the same defendants. They are the actions of the Lake Shore National Bank v. The Butler Colliery Co., 20 N. Y. State Rep., 688, and The Marine Bank of Buffalo v. The same, 23 id., 318. Both of these cases involved the same questions which were litigated here; in both of them judgments in favor of the plaintiffs were affirmed in this court, and in the latter of them judgment was lately affirmed in the court of appeals, without an opinion.

We have examined the several exceptions to rulings on questions of evidence in this case, and find none which should be fatal to the verdict.

The judgment should be affirmed.

Macomber and Corlett, JJ., concur.


text:
    William H. Warmer, Assignee, Resp’t, v. Clarence H. Lake, Sheriff, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 6, 1891.)

    Tbaudulent conveyance—What will constitute.
    A merchant in failing circumstances made a bill of sale of all his stock, fixtures and book accounts to his father, taking from him notes running from two months to three years from date, and immediately left the state. Two months thereafter the father made an assignment for the benefit of creditors, including such notes, the property assigned being little more than that covered by the bill of sale. The son testified that his father was to take the goods and pay the debts in the order they came due, and that after the debts were paid, the balance of the notes was, to be paid to him. Held, that as the effect of the arrangement was to delay creditors in the collection of their debts it was in fraud of their rights and therefore-void.
    Appeal by the defendant from a judgment in favor of the-plaintiff, entered on the verdict of a jury at the circuit, and from an order denying the defendant’s motion for a new trial on a case; and exceptions.

      A. Moot, for app’lt; M. Shire, for resp’t.
   Dwight, P. J.

The action was for the alleged wrongful conversion of a stock of goods claimed by the plaintiff, as assignee for the benefit of creditors of one Benjamin F. Williams. The goods were seized and sold by the defendant as sheriff of Chautauqua county, by virtue of executions in favor of the judgment creditors of one Charles F. Williams, and as the property of the latter. The final question, of fact and law, was whether at the time of the levy and sale the goods in question were the property of the plaintiff as such assignee, or of Charles F. Williams the judgment debtor.

On the 9th day of November, 1887, the goods were the property of Charles F. Williams, and were in his possession as the stock in trade of his business as a country merchant at Hamlet, in Chautauqua county. He was at that time largely indebted; his notes had gone and were going to protest; his creditors were pressing him for payment, and he was unable to pay his debts as they became due. On the day mentioned, he made a bill of sale to his father, Benjamin F. Williams, of the entire stock of goods and fixtures of his business, valued in the bill of sale at $6,500, and of his book accounts, estimated at $3,000. The bill of sale recited that notes were to be given for the entire purchase price, and specified the several amounts and days of payment óf such notes, nineteen in number, which were to run for periods of from two months to three years from their date; and it -purported to give immediate possession of the property to the vendee. The next-day after this transaction Charles F. Williams took all the property he had left, consisting of $275 in money, and went to the state of Georgia, where he has remained ever since. Two months-after the transaction, Benjamin F. Williams made the general assignment for the benefit of creditors to the plaintiff, under which the latter claims title to the stock of goods in question, in trust, to pay the debts of his assignor, including the notes for $9,500 given by the latter to Charles F. Williams for the goods themselves. The inventory of assets, verified by the assignor, shows no other property than what remained of the same stock of goods and accounts after the sales and collections of two months, $18 in money and a house and lot in Buffalo, valued in the schedule at $1,600, and incumbered by a mortgage of $800, and a judgment of $274.

Many other facts and circumstances, of more or less significance as badges of fraud, are in evidence, but we regard their production as a work of supererogation in view of the facts established without contradiction and by evidence introduced by the plaintiff in respect to the real character of the transaction between the debtor Charles F. Williams and the plaintiff’s assignor, which is evidenced in part by the bill of sale. The testimony of Charles F. Williams was taken in the State of Georgia on an open commission issued to that state on the application of the plaintiff, and he was examined orally by counsel representing both parties. He testified in answer to a question by counsel for the defendant: “ My father in consideration of my transfer to him agreed to accept these goods in trust for the payment of my debts; if you want to call it ‘trustee,’ that was the purpose for which I transferred the goods to him.”

This statement he modified by the succeeding answer to the counsel for the plaintiff: “ My father had a title to the goods at the time; I gave him a title to the goods then and there; I sold him the gpods for the express purpose of paying my debts.”

By Mr. Moot: * * * “ I did not make him a trustee.”

By Mr. Shire: “He was to pay my debts with this property.” * * *

By Mr. Moot: “I think, perhaps, it might have been three weeks before I sold out, that I had the first conversation with my father. * * *. I can’t tell all that was then said; the substance was that I wanted he should take the goods and pay the debts, and he said if it would be all right he would do it * * * There was more or less talk for a couple of days before the bill of sale was made; the bill of sale was made the day he took possession; about November 7th, 8th or 9th; he remarked that if I should leave it to Mm he would do the best he could; this was the substance of what he said.”

These statements were in effect reiterated by the witness several times in the course of his testimony, with the addition that after the debts were paid the balance of the notes were to be paid in cash to him; and that debts were to be paid in the order in which they fell due.

This testimony, of itself, we think discloses a transaction which was in direct contravention of the statute of frauds. That statute declares that every assignment of any interest in goods or things in action made with the intent to hinder, delay or defraud creditors of their lawful suits, damages, debts or demands, as against the persons so hindered, delayed, etc., shall be void. 2 R. S., 137, § 1. This statute applies equally to assignments in trust and to absolute sales and transfers of property; equally to the case of an actual intent to defraud the creditor of his just dues, and to the case where such intent is absent, but the.necessary effect óf the sale or transfer is to postpone the creditor even for. one day in the enforcement of his demand. Nicholson v. Leavitt, 2 Seld., 510; Brigham v. Tillinghast, 13 N. Y., 215 ; McConnell v. Sherwood, 84 id., 522. For the words of the statute which characterize the intent which renders the transfer void are in the alternative; and an intent to hinder or delay is as fatal as the intent to defraud; and the law presumes that the grantor intends the result which must pecessarily follow his act.

That the necessary result of the transfer in this case, whether considered as a trust or as an absolute sale, if it were upheld, would be to hinder and delay the creditors of the vendor in the legal enforcement of their demands against him is apparent. If effect were to be given to the arrangement described in his testimony, creditors must wait the process of disposing of the goods and collecting the accounts transferred; and even then must be content to receive satisfaction of their demands in the order in which those demands fell due. This is nob in accordance with the rights of creditors. They are nob to be compelled to wait till their debtor can pay in cash. They are entitled to the benefit of their “ lawful suits ” for the enforcement of their demands against his property, and that, not in the order in which their demands fall due, but according to their vigilance in instituting such lawful suits and obtaining the process of the courts for their satisfaction or security. Moreover, even if it were possible for the creditor to enforce performance of the agreement of the transferee of this property for the payment of their claims, the terms of credit given to him for the payment of his notes must necessarily result in delay varying from two months to, possibly, three years, before payment could be enforced.

But it seems unnecessary to argue or illustrate further the proposition that the transfer by the debtor, in this case, of his entire property, except the small sum which he retained for his own use, upon the agreement disclosed by his own testimony was, within the letter and spirit of the statute,' in fraud of the rights of his creditors.

We think there was no question for the jury in this case, and that the court erred in denying the defendant's motion for a non-suit and for the direction of a verdict in his favor.

The judgment and order appealed from must be reversed and a new trial granted, with costs to abide the event

So ordered.

Macombeb, J., concurs; Corbett, J., not sitting.


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    In the Matter of the Petition of Fanny Dunn, Resp’t. Harrison Dunn, a Supposed Lunatic, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Appeal—Orders.
    An appeal will not lie to the general term of the supreme court from an order granted ex parte. Such order can be reviewed in the first instance only by a motion, on notice, to vacate or modify it, and the order granting or denying such motion is appealable.
    S. Lunatics—Proceedings before commissioner.
    After the return of the precept for a jury, issued by a commissioner in a lunacy proceeding, an order was served upon him staying the proceedings until the hearing of a motion to set aside such proceedings. No adjournment was taken. The motion having been denied, the court made an order directing the commissioner to issue a precept requiring the sheriff to notify the same jurors to attend at a time and place to be named therein. Held, that, under the peculiar.circumstances of the case, the order was proper.

      Appeal from an order of the county court of Wayne county, made ex parte on the application of the petitioner.

      T. Collins, Jr., for app’lt; J. Dunwell, for resp’t.
   Dwight, P. J.

Although we prefer to determine this appeal on the merits, we are unwilling to sanction the practice adopted by the appellant in bringing the appeal from an order granted ex parte. The statute relating to appeals to the general term from orders made in actions in the supreme court expressly limits such appeals to the case of orders made “ upon notice.” Code Civ. Pro., chap. 12, title IV, §§ 1347, 1348. Sections 1356 and 1357 of title V of the same chapter provide for appeals from orders in special proceedings, whether made at special term or, as in this case, by another court of record of original jurisdiction; and § 1360 applies to all such appeals the general provisions of title IV, including, apparently, those of §§ 1347 and 1348 above referred to. This establishes a uniform practice in respect to all appeals from orders, whether in actions or in special proceedings, and whether made at special term or by an inferior court. Under a practice so regulated an order made ex parte can be reviewed, in the first instance, only by a motion, on notice, to vacate or modify it, and the order granting or denying that motion is open to review by appeal. So in the case of In re Johnson, 27 Hun, 538, the general term in the third department held that an appeal did not lie from an order made ex parte by a surrogate’s court, saying: “The proper course is to move on notice to vacate an ex parte order. If the motion is denied an appeal may lie; but unless both parties have been heard by the court below there is not such a decision between them as we should be asked to review.” See, also, People v. Com. Council of Buffalo, 30 Hun, 636. The case of Lancaster v. Boorman, 20 How., 421, was decided under the former Code of Procedure, and upon the ground of the particular language of § 349 of that statute. That section has been replaced by § 1347, supra, of the Code of Civil Procedure, which, as we have seen, expressly confines appeals from orders to such orders as have been granted on notice. The cases of Finck v. Mannering, 46 Hun, 323; 12 N. Y. State Rep., 453, and Billington v. Billington, 16 Civ. Pro., 56, were cases of orders which adjudged parties in contempt and were presumably made on notice; but whether so or not, the cases were decided under a special provision of the Code, § 2433, applicable to supplementary proceedings only.

We are of opinion, therefore, that this appeal might properly be dismissed; but in order to avoid further protraction of a proceeding which ought to be speedily concluded, we think we should dispose of this appeal on its merits.

On the 10th day of November, 1890, on the petition of the respondent, Fanny Dunn, a commission was duly issued out of the county court of Wayne county, directed to a sole commissioner, to inquire concerning the alleged lunacy of Harrison Dunn, the appellant In pursuance of the direction of such commission the commissioner duly issued his precept to the sheriff, commanding him to summon the necessary jury, to be and appear before the commissioner, at a place named, oh the 22d day oí ¡November, 1890, at 9 o’clock A. m. On that day, and before the hour named, the sheriff made return to the commissioner oí the execution of such precept, containing the names of twenty-four jurors duly summoned by him.

On the same day, and before the hour named for the appearance of the jury, an order of the same court which issued the commission was served on the commissioner staying all proceedings in the matter until the hearing and decision of a motion on behalf of the alleged lunatic to set aside and vacate the proceedings so far had therein; notice of which motion, by an order to show cause for the 2d day of December, 1890, was served with the ■stay. Accordingly no step in the proceedings subsequent to the return of the precept by the sheriff was taken on the 22d day of ¡¡November; the jury was not convened or sworn, and no adjournment was made of the proceeding.

The result of the hearing on the order to show cause, on the 2d day of December, was the denial of the motion on the behalf of the alleged lunatic, and the stay of proceedings was thereby dissolved. Thereafter, and on the 4th day of December, on the ecc parle application of the petitioner and an affidavit showing the facts above stated, the same court made an order directing the commissioner to issue his precept to the sheriff requiring him to notify the same jurors previously summoned and returned by him to appear before the commissioner at a time and place to be named in such precept, to make the inquiry mentioned in the commission and in the former precept It is from that order that this appeal was taken.

We áre unable to see that there is any valid objection to the order. The situation was anomalous, and called for measures not prescribed by the statute. Here was the commissioner with a valid commission in full force; a precept duly issued to the sheriff, and returned by him; jurors duly summoned, and their names returned to the commissioner, but the day fixed for their meeting was past, and there had been no adjournment to a later day.

It is very clear that the proceeding has not abated, nor the commission lost its force. The only question is how shall the commissioner obtain a jury by means of which to prosecute the inquiry committed to him? He has no power to compel the attendance of jurors at a time later than that for which they were summoned, and he cannot issue a new precept, because his authority in that respect was spent by its exercise in the first instance. He has resort, therefore, to the source of all authority in the premises, viz., to’the court which alone has jurisdiction of the proceeding. Then,‘it would seem, two courses were open; either to empower the commissioner to issue a new precept to summon a new jury, or to direct him to reconvene the jury already summoned. The latter course was adopted, and it seems to us to have been the least objectionable of the two. We are unable to see that it was to the prejudice, in any manner, of the rights of the alleged lunatic, nor that it was in contravention of any rule of the statute, or of the practice. It was an exercise of discretion on the part of the court to meet an exigency not provided for by the statute; but in it no provision of the statute was contravened or disregarded. It was the same jury, selected by the sheriff, and not by the court, which had been originally summoned; the order objected to, in effect, simply supplied the place of the adjournment of the proceeding, which ought to have been provided for in the order to show cause.

We regard the order as substantially unobjectionable, as within the reasonable discretion of the county court, and one that should be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Corlbtt, J., concurs; Macomber, J., not voting.


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    Francis M. Schuyler, App’lt, v. Emory A. Ross et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Sale—Evidence.
    In an action for a balance claimed to be due on a sale of goods, the question was as to the place of measurement. One of the defendants testified on cross-examination that he bought similar goods of other parties about the same time on the same terms and to be measured at the same place as those in question. One of these other parties was then called and testified that the goods were to be measured at the place claimed by plaintiff to be the place of measurement. Held, that the evidence was properly admitted as an admission of a party and relating directly to the main subject of inquiry.
    3. Same—Settlement—Account stated.
    After the goods had been received, defendants mailed a statement thereof to plaintiff, which showed a balance in his favor, and also a check for the amount so appearing due to him. Plaintiff retained the same without objection and used the check. Held, that by this affirmative action on his part he estopped himself from afterwards claiming that the payment so made was not in full of the account, or that there was any balance due to him.
    3. Same—Evidence—Justice’s court.
    Evidence of such facts is admissible under, an answer in justice’s court pleading a payment in full.
    Appeal from a judgment of the county court of Chautauqua county, rendered on the first Tuesday of December, 1889, and entered January 22, 1890, reversing the judgment of a justice of the peace.

      Sessions & Woodward, for app’lt; Cook, Fisher & Wade, for resp’ts.
   Macomber, J.

This action was brought to recover the value of a quantity of bark sold and delivered by the plaintiff to the defendants.

Judgment was rendered in favor of the plaintiff before a justice of the peace upon the verdict of a jury for the sum of $7,603 damages, being for a balance of account On appeal to the county court this judgment was reversed, with costs. Upon the trial it was claimed by the plaintiff that the bark so sold to the defendants was to be measured at a place called Frewsburg, where the same was to be loaded upon cars for shipment. On the other hand the contention made by the defendants was, that the bark. was to be measured by the tanneries to which the same should be shipped, and that the measurements returned to the defendants should be accepted by the plaintiffs. If the measurements made at the tannery were correct, then it is established beyond question that the defendants had fully paid the plaintiff the amount of his claim.

According to the plaintiff’s testimony, a portion of the bark was to be sold at the sum of $4.40 per cord, delivered on the cars at Frewsburg, and the other portion thereof at $4.50 per cord.. This transaction was had in the year 1886.

The exception upon which reliance seems to be mainly placed for an affirmance of the judgment of the county court, is the admission of incompetent testimony against the defendants by the justice of the peace. One of the defendants had given evidence to the effect that the measurements were to be made at the tanneries, and that he should account to the plaintiff in accordance therewith. He was asked upon cross-examination the following question:

“Did you buy bark of Brant & Yenman about the same time, at the same terms ? ”

This question was objected to, but the objection was overruled, and the defendant answered to the effect that he did buy bark of Brant & Yenman on the same terms and to be measured at the same place as was the bark which was bought of the plaintiff. Yenman was then called as a witness to show that the bark which his firm had sold to the defendants was to be measured at Frewsburg.

This ruling of the justice is urged upon our attention as being erroneous. Yet, as it seems to us, if this was the ground upon which the judgment of the justice of the peace was reversed, we should be obliged to reverse the judgment of the county court and affirm that of the justice of the peace, for the reason that the admission so given in evidence was that of the party, not simply of a witness, and that it related directly to the main subject of inquiry, namely, the place where the bark purchased by the defendants was to be measured.

But there is, however, a reason why the judgment of the county court should be affirmed. About the middle of February, 1887, an account was rendered by the defendants to the plaintiff of all of the purchases of the bark covered by this transaction, made out in the form of the indebtedness of the defendants to the plaintiff, in which the receipts of certain cars and their dimensions and the amount of money realized therefrom was stated on the one hand, and on the other the amount of money paid thereon, and closed with the statement that there remained unpaid to the plaintiff the sum of $3.42, for which a check was given. This account was received by the plaintiff. It was put in evidence without objection. Ho question of its accuracy was made by the plaintiff at that time, and he made use of the check by collecting the amount thereof from the bank upon which it was drawn. We think if the plaintiff was ever to repudiate the claim thus made by the defendants, he should have done so when he received this account and this check, and that by using the check, thus taking an affirmative .action in the line indicated by the defendants, he could not afterwards claim that the payment so made was not in full of the account. The plaintiff himself testifies, that in the letter which accompanied the delivery of the check and a statement of the account it was stated that the check was in full of the payment of the balance due from the defendants to the plaintiff.

Under these circumstances, it is too late for the plaintiff to claim that there is any balance due him growing out of this disputed account. The evidence it is true, under which the statement in the letter to the effect that the enclosed check was in full payment of the balance due the plaintiff, was objected to by plaintiff’s counsel upon the ground that an account stated had not been pleaded in the answer. But this objection was overruled by the justice of the peace, and the evidence given.

The answer had pleaded a payment in full of the claims made by the plaintiffs. By § 2943 of the Code of Civil Procedure a variance between an allegation in a pleading and proof in a court of a justice of the peace must be disregarded as immaterial, unless the court is satisfied that the adverse party has been mislead thereby to his prejudice. While, therefore, the answer did not technically set up an account stated between the parties, it did allege a payment in full of all demands, and this was proved conclusively by the admission of the plaintiff himself that the letter inclosing the check contained a statement that the check was delivered as payment in full of the demand growing out of the transaction between the parties. This was about two years before this action was begun. But the account itself which was put in evidence was not objected to on any ground. It was this paper and not the letter which concluded the plaintiff, for he unequivocally acquiesced in and by his acts adopted it as a final settlement

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Corlett, J., concur.


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    Emily Rathgaber, App’lt, v. The Village of Tohawanda, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Highways—Dedication—Revocation.
    Occupation of a portion of a street by an adjoining owner prior to acceptance of the dedication of such street by the municipal authorities is not a revocation of the previous dedication, where such owner’s deed recognizes the street itself, and his lands are bounded by it.
    Appeal from a judgment entered in Erie county December 31, 1889, and from an order, made on the minutes at the .circuit, setting aside a verdict previously directed for the plaintiff and dismissing the complaint

      Daniel N. Lockwood, for app’lt; Emery & Sickmon, for resp’t.
   Macomber, J.

This action is ejectment to recover certain premises in the village of Tonawanda, N. Y., which the defendant had, in the year 1887, opened and occupied as a public highway or street. Upon the trial, at the close of' the evidence, the court directed a verdict for the plaintiff for the recovery of the amount of the land claimed, together with $15 damages for the withholding of the property. This disposition of the case, however, was made with the apparent consent of the counsel on both sides that if, after further consideration of the case, the learned judge should reach a different conclusion, he should, instead of granting a new trial, dismiss the complaint The form, therefore, of the order by which the verdict previously directed was set aside and the complaint dismissed, is not available to the appellant

In the year 1853 the Cleveland Company,' the source of title of both parties to this action, employed a surveyor to make a map of this and other land into city or village lots with well defined streets upon which the several lots were bounded. The designation of such lots by streets was followed in the year 1874 by a deed to Christoph Rethgaber, the plaintiff’s husband, of the lot including the portion of land now in controversy in this action. The following is the description contained in such conveyance: “ All that piece or parcel of land situated in Tonawanda, county of Erie, state of New York, lot No. 110, bounded as follows: Northerly by lot 109, easterly by Main street, southerly by Kohler street, westerlyby lot 107, containing about an acre and a half more or less.”

A portion of Kohler street above mentioned is the land in controversy.

In January, 1875, Christoph conveyed these premises to his wife by the same description, with a slight and unimportant variation. In order to remove any doubt of the legality of making the deed directly from the husband to the wife, both husband and wife joined in a conveyance to one George W. Pattison, which was acknowledged and recorded on the 28th day of March, 1877. The deed, however, to Pattison was for the purpose only of enabling him to make an effective and indisputable conveyance to the wife, which was accordingly done shortly thereafter. The plaintiff took possession of the land, including Kohler street to the width of two rods, and cultivated the whole in the usual manner in which such lands were cultivated. Up to that time no street or highway had ever been opened through the plaintiff’s land to Kohler street, but had been opened from the canal to the railroad, which was but a short distance from the land in question.

It is-a noticeable fact, to which the learned trial justice gave due importance, that no part of Kohler street, so-called, was included in the conveyance to any of the parties claiming under the title of the Cleveland Land Company; on the contrary, the land deeded to the plaintiff was bounded by such street. By § 9, chap. 45 of the Laws of 1854, the streets in this village, which had theretofore "been dedicated to public use by making of maps and selling lots fronting thereon according to or by reference to such máps, by ■ the owners of the adjoining lands, which had not been altered by the commissioners of highways, and the alleys and roads opened and used by the public for six years then passed, were declared to be established as highways, whether the same had been laid out in compliance with the law in all respects or not. It is somewhat doubtful whether this act adds any strength to the position occupied by the defendant, for no steps were taken by it until June, 1887, to accept the dedication of the street theretofore made by the Cleveland Land Company or others, nor had it exercised any dominion over the land in question until that time. On the whole, it may not be improper to assume that the public did not accept the proffered opening of Kohler street until the acts of the defendant in the year 1887. During this period of non-user or nonacceptance of the dedication there had been no act done by the original proprietors, or others, excepting as above mentioned, indicating a revocation of the previous dedication. The occupation of a portion of that street by the plaintiff is not a revocation thereof, because her deed recognized the street itself, and the lands therein are bounded by it

Under these circumstances, we think that this action cannot be maintained, and that, consequently, the learned judge at the trial was correct in revising his previous decision, made in the stress of the trial, in finally dismissing the complaint upon its merits. This conclusion is well supported by the case of Bridges v. Wyckoff, 67 N. Y., 130.

In that case the owner of certain lands had caused them to be laid out into lots and streets, and a map thereof to be made and filed. In the year 1836 some of the lots were conveyed to Joseph F. Bridges, the deed to him describing them as bounded on the sides of the streets adjoining. The deed conveyed also the grantor’s interest in one-half of the streets lying immediately in front of the lots, “ the same to be used, however, as public streets or roads forever.” The plaintiff built a fence in front of some of the lots, inclosing eighteen feet in width of the adjoining street. By several mesne conveyances the lots in 1862 came to the plaintiff; all of the deeds contained the same provision as to the street; the portion thereof not so excluded was open for travel, although not formally opened or worked as a street. In 1871 the commissioners of highways of the town by order declared the street to be a public highway, and thereafter the defendants, as commissioners, removed the fence. In an action brought by the plaintiff for trespass, it was held that the act of the original owner was a dedication of the land contained in the street as a highway, and there was no revocation of the dedication up to the time of the acceptance of it by the commissioners, that an erection and maintenance of the fence was not, to the extent of the land included therein, a revocation, as in the deeds the dedication was expressly recognized; and that by the acceptance the dedication became complete, the street a public highway, and the defendants were justified in removing the fence. It was there further held that the provision of the statute, 1 R. S., 520, § 99, amended by-chap. 311 of the Laws of 1861, declaring that a highway shall cease to be such which is not opened and worked within six years, did not apply, as the land did not become a highway until accepted as such in the year 1871, and that the plaintiff could not claim the land by adverse possession, as he' took it under a conveyance recognizing the public right. Under that authority, as well as on principle, the final decision made at the circuit was correct.

The judgment and order appealed from should be affirmed.

Dwight, P. J., concurs; Corlett, J., not sitting.