author: Brady, J.:

text:
    THOMAS CUNNINGHAM, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Forgery—Instrument not known to the common law — what constitutes forgery of such an instrument.

    The prisoner caused to be engraved and printed what purported to be warrants drawn by the auditor of public accounts on the State treasurer of Mississippi, and had a seal made. He filled in the blanks of two warrants, but made no impression with the seal upon them. He then sent all the warrants and the seal to Mississippi. The warrants, by the law of Mississippi, were invalid without a seal. Held, that the instruments, being invalid on their face, were not the subject of forgery.
    If a statute authorizes an instrument not known to the common law, and so prescribes its form as to render any other form null, forgery cannot be committed by making an instrument in a form not provided by the statute, even though it is so like the genuine as to be liable to deceive most persons.
    Appeal from a conviction in the General Sessions for forgery in the third degree.
    The plaintiff in error was indicted for forgery in the third degree and brought to trial in the General Sessions on the 24th day of September, 1872.
    The evidence showed that the prisoner procured to be engraved and printed two books containing blank warrants, purporting to be drawn by the auditor of public accounts of the State of Mississippi, upon the State treasurer of that State; and also procured a seal to be engraved. This work was done in the city of New York, under the prisoner’s directions. He then filled up two of the warrants, and shipped the books so prepared, together with the seal and the signed warrants or drafts, to Jackson, Mississippi, where the package fell into the hands of the authorities. The prisoner was subsequently arrested in this city, and admitted his agency in the scheme.
    He was convicted of the forgery of the signed warrant found in the box with the books of blanks and the seal. There was no impression of the seal upon the warrant which was the subject of the indictment. He now brings error to review that conviction, upon various exceptions to the evidence admitted upon the trial, and also to the instruction of the learned recorder to the jury, that upon the indictment the prisoner could be convicted of forgery.

      Wm. F. Howe, for the plaintiff in error.

      B. K. Phelps, for the people.
   Brady, J.:

The prisoner was tried and convicted for forging warrants purporting to be drawn by the auditor of public accounts of the State of Mississippi upon the State treasurer of that State. The evidence established the facts that he procured them to be engraved and printed, and a seal also to be made, and that the work was done in this city. It also appears that he filled in the blanks of two warrants, and shipped or sent the books containing all the warrants signed and unsigned, together with the seal, to Jackson, Mississippi, where the package fell into the hands of the authorities. It also appears that he confessed his connection with the scheme upon his arrest, but there is no proof, other than the transmission of the drafts or warrants to Jackson, of any attempt on 1ns part to utter them. He had not filled up all the warrants, because, he said, he had not sufficient data to do so satisfactorily. There was no impression of the seal upon the warrant which was the subject of the indictment, and for the forging of which he was convicted. It appeared upon the trial that the warrant was invalid, by the law of the State of Mississippi, without a seal. It would also seem that it lacked vitality because it did not purport to be registered. This does not distinctly appear howevey, although it was so declared by the recorder before submitting the case to the jury. The chief question presented on this appeal is, therefore, whether the instrument was one which, under our laws, could be the subject of an indictment for forgery. The rule established by the adjudications in this State, and after a thorough consideration of the question, is, that if the instrument be invalid on its face, it cannot be the subject of forgery, because it has no legal tendency to effect a fraud. (People v. Shall, 9 Cow., 778; People v. Fitch, 1 Wend., 198; People v. Wilson, 6 Johns., 320 ; People v. Stearns, 21 Wend., 409; People v. Harrison, 8 Barb., 560.) And, as these cases show, there are many English decisions to the same effect. Whether, for' instance, a.bond or other instrument is of a form to be valid, is a question of law; if, therefore, a statute authorizes an ^ instrument not known to the common law, and so prescribes its form as to render any other form null, forgery cannot be committed by making a false statutory one, in a form not provided by statute, even though it is so like the genuine as to be liable to deceive most persons. (2 Bishop Cr. Law, § 538, and cases cited.) Hence the decision in People v. Harrison, that an indictment would not lie for forging a certificate of the acknowledgment of a deed, when the certificate did not state (and was therefore imperfect) that the grantor acknowledged the execution of the conveyance. Legal forgery cannot be made out by imputing a possible, or even actual, ignorance of the law to the person intended to be defrauded. However dark may be the moral hue of a transaction, courts of justice can only act upon the legal crime, upon criminal breaches of perfect legal obligations. (Per Cowen, J., in People v. Shall, supra.) How clear soever the fraudulent purpose, unless the writing is sufficient to accomplish that purpose, it is not forgery, since, with a single exception, actions only, and not evil intentions, are punishable by the English law. (Hammond Digest, Forgery, ch. 1, § pl. 102.) The invalidity of the warrant upon its face, on which the case for the prosecution rested, judged by the principles stated, rendered it improper to convict the prisoner. The evidence on the subject of the locality in which the warrants were to be uttered, if there be any evidence relating thereto, shows that they were to be circulated in the State of Mississippi, because they were all sent there; and if the general public of this country are not chargeable with knowledge of the law of each State, it is at least incumbent upon them, when the obligations of a State are in the market for barter, to examine them, and every prudent man would examine them, nay, investigate their origin and issue, to ascertain whether they were genuine and authorized by law. If, however, the rule be, that the knowledge of the law of each State must be restricted to its residents, as suggested in this case, it cannot be applied until a criminal attempt upon the citizen of another State is shown to have been made, and under such circumstances that he could not shield or excuse himself from the consequences of his presumed knowledge of the law. This case presents no feature of that kind. There was, as suggested, no attempt to use the warrants in this State. The inference to be drawn from the modus ojoerandi of the prisoner and associates is, that they selected the State of'Mississippi for the circulation of the warrants, as the most likely territory for the success of the enterprise. The duty of reversing the judgment rendered in this case seems to be imperative, for the reasons assigned.

Daniels, J., concurred.

Judgment reversed, and new trial ordered.


source: Caselaw Access Project

license: Public Domain

text:
    THOMAS C. DOREMUS, Appellant, v. DAVID WILLIAMS, Respondent.

      Debt—assignment of, by patrol—Power of court of equity to compel assignor to execute written assignment.

    A parol assignment of a debt, made upon a good consideration, is valid, both at law and in equity.
    In a proper case the court will compel the assignor to execute a written instrument. of assignment; but his failure so to do is no defense to an action, brought by him upon a promissory note, given by the assignee in consideration of the assignment to him of the claim.
    Appeal from a judgment in favor of the defendant, entered on the report of a referee.

      Edward P. Wilder, for the appellant.
    The ownership of Doremus & Nixon’s claim against the Long Island Navigation Company became vested in respondent when he made and delivered his notes. The very making and delivery of the notes by Williams, and their acceptance by Doremus, concluded the transaction. (Kessel v. Albetis, 56 Barb., 362; Sexton v. Fleet, 2 Hilt., 485; Davis v. Shields, 26 Wend., 362.) Ho written assignment of said claim was exacted as a condition precedent on the delivery of the notes, nor was any written assignment necessary. The parol transfer was valid. (Hooker v. Eagle Bank of Rochester, 30 N. Y., 83, and cases there cited; Prescott v. Hull, 17 Johns., 284; Briggs v. Dow, 19 id., 95; Ford v. Stuart, id., 342.) The neglect or refusal of Doremus & Hixon to execute and deliver to respondent a written assignment of their claim, after the making and delivery of the notes in question, is no defense to this action. (1 Parsons on Notes and Bills, 200; Moggridge v. Jones, 14 East, 486; Freligh v. Platt, 5 Cow., 494.)

      Williams Brothers, for the respondent.
   Brady, J.:

This action was brought to recover on five promissory notes, made by defendant and payable to the order of the firm of Doremus & Hixon. At'the date of the notes that firm held a valid claim against the Long Island navigation Company, equal to the amount of the notes, for goods sold and delivered to them upon the order of the defendant, who was then president. The company, at the time the notes were given, was not able to pay its debts, and the defendant gave his notes for the amount of the plaintiff’s demand, upon the consideration of the firm’s assigning to him their claim against the company, which was agreed to, and the notes delivered. Ho formal or other assignment in writing was executed, and whether any such instrument was in fact presented to be signed, is a disputed question, and one upon which the evidence is conflicting. The notes were assigned after maturity to the plaintiff, the surviving partner of the firm of Doremus & Hixon, by the administratrix of Hixon. The referee found that no consideration for giving said notes was ever received by said defendant, and said firm never parted with any consideration therefor, a finding which seems to be predicated of the omission or refusal to transfer or assign the claim of Doremus & Hixon to the defendant. If it be not based upon that fact, there is nothing upon which it rests. It is conceded by the plaintiff that the claim was to be assigned, although he asserts that no formal assignment was proposed when the arrangement about the notes was made between his firm and the defendant. The question presented on this appeal, it will be perceived therefore from this statement, is whether any written assignment was necessary, and, if yea, whether the refusal of the firm of Doremus & Nixon to make it, is a defense to this action. The notes were delivered without exacting the written assignment. The application for it was subsequently made. The transaction was complete, therefore, because the assignment of the claim was accomplished by parol. (Sexton v. Fleet, 2 Hilt., 485.) If two men agree for the sale of a debt, says Sir Jambs Mansfield in Heath v. Hall (4 Taunt., 327), and one of them gives the other credit in his books for the price, it is a good assignment in equity. (See, also, Kessel v. Albetis, 56 Barb., 362; and Hooker v. Eagle Bank of Rochester, 30 N. Y., 83; Dix v. Cobb, 4 Mass., 508; Jones v. Witter, 13 id., 304.) Under the Code an equitable assignment is equally valid in law. (Code, § 111; Hooker v. Eagle Bank, supra.) In this case the defendant gave his notes for the claim, and, having paid the consideration in the manner agreed upon, the claim passed to him by the oral assignment. It was a valid ' transfer in equity and in law. (Cases, suprai) The evidence does not disclose the fact, and, therefore, it would not justify the finding thereto, that the assignment in writing was a condition of the agreement to pay the debt of the Long Island ¡Navigation Company. The delivery of the notes by the defendant without it, is strong presumptive evidence that-such was not the understanding. The firm of Doremus & ¡Nixon having thus disposed of' their claim, could not enforce it against the company. They did not own it, for it had become the property of the defendant, and his right to collect it from the company was perfect. The referee was mistaken, therefore, in assuming that no consideration was given for the notes by the firm, and. his finding on that subject was erroneous. As to the other branch of the question, namely, whether the omission or refusal to execute an assignment excuses the non-payment of the notes, it is only necessary to say that as such a ceremony was not a conditional part of the arrangement, and was not necessary to the validity of the defendant’s ownership of the claim, the omission could not in any way affect his rights. If, however, he desired to have a written instrument of assignment, he had his remedy and should have pursued it. It might be decreed him in an action for specific performance, if the facts and circumstances presented by his case warranted the exercise of the power of the court to enforce it. The omission to do it is no defense to the notes. (Moggridge v. Jones, 14 East, 486 ; Freligh v. Platt, 5 Cow., 494.) The assignment might be necessary for his protection against a subsequent transfer of the debt, or to facilitate the collection of the demand, but, as we have seen, it was not essential to the validity of his title. And the evidence shows that the firm of Dor emus & ¡Nixon acted upon the proposition or fact that they had parted with the ownership of the demand against the company, and took no steps toward its collection from them. The necessity of a new trial is apparent, and it must be ordered, with costs to the defendant, to abide the event.

Davis, P. J., and Daniels, J., concurred.

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


author: Brady, J.: Davis, P. J.

text:
    THE PEOPLE ex rel. LUCY S. DEVELIN, Appellant, v. THOMAS B. ASTEN and others, Board of Assessors of the City of New York, Respondents.

      Chapter 697 of 1867—construction of—Grade of streets — damages for change-of— where grade not established, by law.

    The act (chap. 697 of 1867), authorizing the commissioners of Central park, New York, to alter and amend the present grade of any street, avenue or road, that might be retained by them, and to establish new grades for all other streets within a certain boundary, refers to the existing grade of any road" or street used as such, although shell grade may not have been formally established by any law or ordinance of the common council. (Davis, P. J.. dissenting.)
    Appeal from an order of the Special Term, denying a motion for a mandamus.
    This is an application on the part of the relator for a writ of peremptory mandamus directed to the respondents, the board of assessors, commanding said board, or its members, to ascertain the loss and damage sustained by the relator by reason of the amendment or change of grade in One Hundred and Thirty-eighth street, in the city of Hew Y ork, between the boulevard and Twelfth avenue.
    The facts alleged in the relator’s affidavit upon which the application was made are as follows:
    First. That the relator is, and for many years has been, the owner of property having a frontage on One Hundred and Thirty-eighth street of 375 feet, upon which is erected a dwelling-house, out-buildings and fences, which property is located between the boulevard and Twelfth avenue, and which buildings were erected more than ten years last past.
    Second. That many years prior to 1867 said One Hundred and Thirty-eighth street was opened as a public road or street, and that thereafter, up to the year 1871, was traveled and worked upon an established grade, and was the only means of access to said buildings and lots.
    Third. That in the year 1868 the commissioners of the Central park, acting under, chapter 697 of the Laws of 1867, greatly amended, altered and changed the grade.of said street, and began to grade a portion thereof to conform to said new grade.
    That, in the year 1872, the commissioners of public works, pursuant to an order of the common council, proceeded to finish such regulating and grading, and to curb and gutter said street between the boulevard and Twelfth avenue.
    Fourth. That the present grade of said street, as established and regulated, is from fifteen to five feet higher than the old grade.
    Fifth. That the damage to the relator by reason of the change of said grade is $7,750.
    That the respondent, the board of assessors, have proceeded to levy an assessment for the cost of said work upon the property benefited; that,, although the relator had presented to the board of assessors her petition requiring said board to ascertain the loss and damage sustained by her by such change of grade, the board had refused so to do.

      W. C. Trull, for the appellant.

      T. B. Clarkson, for the respondent.
   Brady, J.:

The relator was, and at the time of the presentation of her petition had been for ten .years, the owner of property situate and fronting on the north side of One Hundred and Thirty-eighth street, in this city. There were erected upon it a dwelling-house, outhouses,and fences. For many years prior to 1867 the street named had been used as a public street or road, and thereafter, up to the year 1871, was traveled upon as a road or street, and was the only means of access to said houses and lots. The commissioners of Central park, under and by virtue of chapter 697 of the Laws of 1867, and in the year 1868, changed the grade of the street, and, in 1869, began to conform it to such change, and, in 1872, proceeded to finish it, and to curb and gutter the street upon the new or changed grade. The relator, having suffered damages in consequence of these proceedings, asked the board of assessors to ascertain and award her the damages to which she had been subjected, and they refused to do it. The refusal seems to rest on the proposition that the grade of One Hundred and Thirty-eighth street had not been fixed or established by any law or ordinance of the common council of the city of New York. This is inferred from the affidavit read on behalf of the city on the motion which the relator made for a mandamus, and which was denied. The act of 1867, swpra, authorized the commissioners, among other things, to alter and amend the present grade of any street, avenue or road, that might be retained by them, and to establish new grades for all other streets within a certain boundary which includes the plaintiff’s property. The present means the existing grade of any road or street' used as such. It may be that the grade of One Hundred and Thirty-eighth street was not formally established by any law or ordinance of the common council relating to that subject, or having that object expressly in view, but the street or road had been used, and had been recognized as an existing street or road by the legislature. The act of 1864 (chap. 405, § 1, Laws 1864, 940), contains an appropriation to repair it, and in these words: u Eoads and avenues as follows: The sum of $4,000 for One Hundred and Thirty-eighth street.” It could not be used as a street or road without a grade, and the act of 1867, by the power it confers, contemplates a change, not only from, grades established by law or ordinance, but those 'existing and at present adopted by general use. The language employed is not to alter and amend the established grade or one made in accordance with any law or ordinance expressly relating thereto, but the present grade ; that is, the grade of the street or road as existing and used. Indeed the use óf the word “ road,” shows that it was not the intention of the legislature to confine the award to owners whose property fronted on streets, the grades of which had been established by ordinance. The grades of roads on this island have not been established by ordinance of the common council. The act of 1852 (chap. 52),.which relates to the change of established grades, provides for them expressly. Section 1 declares that the grades of the streets and avenues of the city, as now fixed and established by the common council, shall not be changed or altered, except, etc. The act of 1867 authorizes the commissioners of Central park to alter and amend the present grade of any street, avenue, road, etc.; and, by section 3, declares that all damage to any land, or to any building or other structure thereon, existing at the time of the passage of the act on any street, avenue or road, laid out on the map of the city of Eew York within the district specified, shall be ascertained, etc.' The difference between established and existing grades would seem, by comparison of these statutes, to hav'e been in view when the act of 1867 was passed, and hence the use only of the language “ present grade of any street, avenue' or road,” which means either by law duly established, or existing and in use by the public. To construe it otherwise would do injustice. It would deprive owners, as in this case, of all indemnity, who, accepting the existing and established grade established by general use and recognition, built in conformity to it, taking only by the proceeding,, properly regarded, the risk of such changes as might be made at some subsequent time. For these reasons the answer made as suggested was not sufficient. It is not denied that the street or road was used as such, and duly recognized as one existing, but 'only that the grade had not been fixed or established by law or ordinance. It is not true that the grade is not fixed or established by law. It may be, by the general use of the public as it exists, become a grade established by law. ■ The evidence shows that to have been so in regard to One Hundred and Thirty-eighth street, and the recognition of it as a street or road by the 'legislature (supra), confirms the general use and the then “ present” existing grade. The result of these views is, that the relator’s application to have her damages ascertained and awarded should have been granted, and that the motion for a mandamus should, therefore, also have been granted. The order made at Special Term should be reversed.

Daniels, J., concurred.

Davis, P. J.

(dissenting):

I am not able to concur in the views of my brethren. In my opinion, the statute under which the relator asserts her claim was only intended to give damages in cases where the owner of the land had conformed the buildings thereon to a grade established by law or ordinance and in reliance upon the action of the public authorities, and not to cases where the natural surface of the ground over which a street has been laid, has been voluntarily assumed to be the grade by the party erecting such buildings. In the latter case, the party acts with knowledge that the grade of the street has not been officially established, or, in other words, that there is no “ grudeP He must be held to know that one of the steps necessary to complete the street will be to establish a grade, and to change, so far as required, the natural surface for that purpose. The views of the court, as it seems to me, extend the statute beyond its reason or intent; for it was adopted, as to me seems apparent from an examination of the several statutes relating to the same subject, to change the law as established by the decisions of the courts, in favor of persons who, in reliance upon official acts by which the grade of a street had been fixed and established, have been led to erect buildings conforming thereto, by allowing to such persons the damages sustained by the establishment of a new and different grade. In such a case the owner of the buildings has a right to complain that the official acts have induced him to put himself into a position to suffer damage from a subsequent change of grade, while the person who builds in conformity to the natural surface, assumes to judge for himself that such surface will be adopted, when the street comes to be worked and completed, as the established grade. His misjudgment is his own fault, and he cannot be said to-have been misled, or induced by the public authorities to act with regard to a condition of things established by law or public ordinance.

In my opinion the order below should be affirmed.

Order reversed and mandamus ordered.


author: Davis, P. J.:

text:
    PETER S. MARCH and others, Respondents, v. THE FIRST NATIONAL BANK OF MOBILE, Appellant.

      Bill of exchange — acceptance of induced by fraudulent concealment of facts.

      In an action for fraudulent concealment by which the plaintiffs were induced to accept a bill of exchange, it was held, that if a bill of lading was exhibited at the time of the presentment of the bill of exchange for acceptance, and the plaintiffs were thereby induced to believe that the bill of exchange was secured by certain cotton mentioned in the bill of lading, and if,- at the time of such presentment, defendant knew that the cotton had not been paid for and that steps were being taken to reclaim it, and such facts were concealed from plaintiffs with the intention of inducing the acceptance of the bill of exchange, upon •the faith of the security of the cotton, and the bill of exchange was accepted upon the faith that the bill of lading was a valid bill for the cotton described in it, the plaintiffs were entitled to recover.
    Appeal from a judgment for plaintiff, entered on a verdict.
    The action was brought for an alleged fraudulent concealment by the. defendant, whereby the plaintiffs were induced to accept a bill of exchange. The plaintiffs alleged that on or about the 7tli day of July, 1870, certain persons, doing business at Mobile under the name of Stannard Brothers & Co., shipped to New York 215 bales of cotton, to be delivered to order on payment of freight, dangers of the seas, etc., excepted, and they .received a bill of lading therefor, which they indorsed in blank and delivered to the defendant, whereby the defendant became the owner and consignee of the said cotton, with full power to receive and hold the same. That the said Stannard Brothers & Co. did also, at or about the same time, draw a draft upon the plaintiffs, dated 9th July, 1870, whereby they requested the plaintiffs, thirty days after sight, to pay the defendant $17,985.32 in currency, and to charge the same to their account as advised, and delivered the draft, unaccepted by the plaintiffs, to the defendant. That the defendant received the said bill of lading and draft, and, after indorsing upon the said draft the words “ Pay 3d N. Bk., N. Y., or order, for collection account First National Bank, Mobile, Ala.,” and after writing on the bill of lading, over the blank indorsement of the shippers, the words “Pay 3d National Bank” (meaning thereby that the cotton therein mentioned should be delivered to the said Third National Bank), sent the said bill of lading and draft to the Third National Bank of the city of New York, with instructions, in substance and effect, to present the said draft to the plaintiffs for acceptance, and if accepted, to retain and collect the same at maturity, and place the proceeds thereof to the credit of the defendant, and to retain the said bill of lading, and to receive and hold the cotton therein mentioned until the said draft should be accepted and paid, and then to deliver the same to the plaintiffs.
    That the said Third National Bank having, as the agent of the defendant, received the said bill of lading and draft so indorsed for the purpose aforesaid, the defendant, by and through the said Third National Bank as its agent, did afterward and on the thirteenth July, in the year last aforesaid, cause the said draft to be presented to the plaintiffs, at the city of New York, for acceptance, and in order to induce the plaintiffs to accept said bill, did also at the same time exhibit to the plaintiffs the said bill of lading, and did thereby then and there, in substance and effect, represent, state and give the plaintiffs to understand and believe, that the defendant was the legal owner or pledgee of the cotton mentioned in the said bill of lading, and had power to dispose of the same. That thereupon the plaintiffs, relying upon the truth of the statements and representations, and upon the promise so made, accepted the said draft. That the plaintiffs accepted the said draft solely upon the faith of the representations and statements of the defendant, so made by or on its behalf as aforesaid. That the representations and statements so made by and on behalf of the defendant as aforesaid, and upon the faith of which the plaintiffs accepted the said draft, were not true, because the defendant was not such owner or pledgee of the said cotton", with power to hold and deliver it to the plaintiffs on payment of the said draft, as the defendant claimed' and pretended to be, but, on the contrary, as the defendant well knew, the said cotton was then and there subject to liens in favor of certain persons. at Mobile, commonly called' factors, for unpaid purchase-money, which several liens were prior to any right, title or claim thereto by the defendant, and the said cotton was liable to be reclaimed and taken from the said steamer to satisfy such liens. That a large number of suits were, commenced by the said factors as such lienors of said cotton as aforesaid, in the Circuit Court of Mobile county, Alabama, against the master of the said .steamer ; that process of law was thereupon issued, under and by virtue of which the sheriff of the said county, with the knowledge of the defendant, did, on or about the eighteenth of July, in the year last aforesaid, levy upon, seize, take and remove 212 bales of cotton out of said steamer, being parcel of the aforesaid 215 bales of cotton, and held and still holds the same, to satisfy the aforesaid liens thereon, which liens amount to, or about, or nearly, the value of said cotton. That said Stannard Brothers & Co. have failed in business and become insolvent. That afterward the draft fell due and the plaintiffs were obliged to pay it.
    The answer admitted the shipping of the cotton; its seizure; the indorsement of the bill of lading; its presentment with the draft; the acceptance of the latter; the insolvency of Stannard Brothers & Co.
    And the defendant alleged, that at various dates during said time, and in the course of said business between said Stannard Brothers & Co. and the plaintiffs, the said Stannard Brothers & Co-negotiated to the defendant numerous drafts drawn by them upon the plaintiffs, all of which were duly and regularly accepted and paid by the plaintiffs, and that the defendant thereby, and by the course of dealing between said Stannard Brothers & Co. and the plaintiffs, was induced to believe, and at the time of the negotiation to the defendant of the draft mentioned in the complaint did believe, that the said Stannard Brothers & Co. were authorized by the plaintiffs to draw and negotiate, at said city of Mobile, drafts on the plaintiffs, and that the defendant was induced thereby to purchase,and on the faith thereof did, in the usual course of its business, in good faith and without notice or knowledge of any irregularity connected therewith, purchase from said Stannard Brothers & Co. the said draft in the complaint mentioned, receiving at the same time from said Stannard Brothers & Co. the said bill of lading, as further security for the payment of the amount of said draft as aforesaid.
    And the defendant further alleged that the said Stannard Brothers & Co. were authorized by the plaintiffs to draw the draft mentioned in the complaint, and to negotiate the same to the defendant as aforesaid.
    The judge charged the jury: “I charge you that if the jury believe that by the exhibition of the bill of lading at the time of and in connection with the presentment to the plaintiffs of the bill of exchange for acceptance, the defendant intended to mislead the plaintiffs into the belief that such bill of exchange was actually secured by the pledge of the cotton described in said bill of lading; and if the jury further believe that before the bill of exchange was accepted, the defendant knew that. the cotton described in the bill of lading had not been paid for, and that the vendors to Stannard. Brothers & Co. were taking steps with a view to reclaim it, under the law of Alabama, and intentionally concealed these facts from the plaintiffs, in order to lead them to accept the bill of exchange upon the faith of the security of the said cotton, and they accepted such bill on the faith of the bill of lading being a valid bill for the cotton described in it, they have a right to recover against the defendant the damages resulting from the bill of lading being a defective or insufficient security; otherwise not.”
    The jury rendered a verdict for the plaintiffs for the sum of $21,541.90.

      Wm. H. Scott, for the appellant.

      S. P. Nash, for the respondents.
   Davis, P. J.:

The questions presented by this case are by no means free from doubt, and .they well deserve the consideration of the court of last resort. The bill of exchange drawn by Stannard Brothers & Co. on the plaintiff’s firm, made no reference to the bill of lading. It was sent to the agent of defendants in the city of New York, pinned to the bill of lading, properly indorsed to the defendants. This was notice to the agent that the bill had been drawn against the cotton described in the bill of lading, and that the latter bill and the title of the property had been transferred to and were held by the defendants as security for the acceptance and payment of the bill of exchange. The agent of the defendants was thereby authorized to present the bill of exchange to the plaintiffs for acceptance, with the bill of lading annexed, which act was equivalent to saying that the bill of exchange had been drawn against the cotton mentioned in the bill of lading, the title of which was held as security by the defendants, and would, upon acceptance, become the security of the plaintiffs, It was shown that the bill of exchange was presented to the plaintiffs on the thirteenth day of July. At the time of presentation, the bill of lading was annexed and presented to the plaintiffs, but was taken off by the person presenting the papers, on leaving the bill of exchange for acceptance. The plaintiffs were entitled to the possession of the bill till the next day, before accepting. They were called upon in the afternoon of the thirteenth and requested to accept, but declined; on the fourteenth they made their acceptance and delivered the bill to the agent of defendants, by whom, under instructions from defendants, it was sold to a bona fide purchaser at a discount, and without recourse. Evidence was given tending to show that before the fourteenth of July the defendants knew that the cotton was claimed by the factors who had sold the same to Stannard Brothers & Co., on the ground that it had not been paid for by that firm, and that as early as the twelfth, and certainly on the thirteenth, the defendants had reason to believe that the bill of lading was not security of any value in their hands, and that with this knowledge they hurried up their agent by divers telegrams to procure immediate acceptance, saying nothing of those facts either to the agent or to plaintiffs. If the withholding of their knowledge of the true state of affairs in relation to the value of the bill could in law charge the defendants on the ground of fraudulent concealment, enough evidence on that subject was given to carry the case to the jury. The court, in submitting the case to the jury, left it to them to say “ whether, in presenting the bill of exchange to the plaintiffs for acceptance, with the bill of lading attached to it, the defendants intended to convey to the plaintiffs the idea that it was a bill of exchange secured by the cotton described in the bill of lading,” and he instructed the jury that if they did not find such to have been the intent, that was the end of the case. He instructed the jury also, that to entitle the plaintiffs to recover, they “ must find that the acceptance was upon the faith of the exhibition of the bill of lading alone. If it was on the credit of Stannard Brothers & Co., or upon any request from them, or for any other reason, the plaintiffs cannot recover.” He charged also, that the element on which the case could alone stand was fraud, and that if they found as above stated in respect' to the intent in presenting the bill of lading with the bill of exchange, they should then inquire whether the defendant knew at the time that it was not true that the cotton was any security for the bill of exchange; and finally he submitted, as he said, the proposition which contained the whole law of the case,” in these words : “ I charge you that if the jury believe that by the exhibition of the bill of lading, at the time of and in connection with the presentment to the plaintiffs of the bill of exchange for acceptance, the defendants intended to mislead the plaintiffs into the belief that such bill of exchange was actually secured by the pledge of the cotton described in. said bill of lading; and if the jury further believe that before the bill of- exchange was accepted, the defendants knew that the cotton described in the bill of lading had not been paid for, and that the vendors to Stannard Brothers & Co. were taking steps with a view to reclaim it, under the law of Alabama, and intentionally concealed these facts from the plaintiffs, in order to lead them to accept the bill of exchange upon the faith of the security of the said cotton, and they accepted such bill on the faith of the bill of lading being a valid bill for the cotton described in it, they have a right to recover against the defendants the damages resulting from the bill of lading being a defective or insufficient security; otherwise not.” Doubtless, if the bill of exchange had been sent alone and accepted by plaintiffs, they would have had no redress against the defendants, however well the failure of the bill of lading as security might have been known to them. The defendants were under no obligations to make any disclosure of facts to the plaintiffs to prevent their acceptance of the bill, but they were also under obligations to do nothing and say nothing, with knowledge of the real facts, which would operate to secure an acceptance by an expression of falsehood or a suppression of truth. Knowing that the bill of lading was of no value, the defendants had no right to induce the acceptance of the bill of exchange, by presenting the bill of lading as one of value, concealing their knowledge of its true character. In the cases cited by the learned counsel for the defendants, where the bill of lading turned out to be a forgery, it can hardly be doubted that if the holder of such a bill had presented it annexed to the draft as a genuine one, with, knowledge that it was in fact forged, and in silence on that subject, he would not be heard to say that there was no fraud iti inducing an acceptance by presenting the false appearance of security when he knew that in reality he was giving commercial currency to a forgery.

We think the judgment should be affirmed.

Daniels and Brady, JJ., concurred.

Judgment affirmed.

       Cayuga County Bank v. Daniels, 47 N. Y., 631; Marine Bank of Chicago v. Wright, 48 id., 1.

         The Marine Bank of Chicago v. Wright, ubi supra.


author: Davis, P. J.: Brady, J.

text:
    JAMES McDONNELL, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Chaptor 613 of 1873, chapters 122 and 308 of 1874 — when claims under, must be presented for audit— Westchester county—towns of, annexed to New York city.

    Under the provisions of the acts providing for the annexation of a portion of Westchester county to the city of New York, one who has a valid demand, duly certified, agaiiist a town therein, for the erection of a school-house, cannot maintain an action against the city thereon, until it has been audited by the board of education of the city of New York.
    Appeal from a judgment in favor of plaintiff, entered on the verdict of a jury.

      D. J. Dean, for the appellant.

      W. C. Reddy, for the respondent.
   Davis, P. J.:

The claim upon which the recovery was had in this action has never been audited by the board of education of the city of New York. The obligation upon the comptroller as the financial officer of the city to p>ay the claim, is dependent upon the fact that the board of education of the city has audited and allowed the claim. The legislature, in transferring the indebtedness of the annexed towns to the city of New York, had .the right to establish that safe-guard against fraudulent and exorbitant claims, and to impose it as a condition precedent to the obligation to pay. The question on the trial, was not who was bound to present the claim for audit by the board or who must procure the auditing to be done. The question was, has it been done on any one’s presentation or procurement. If the plaintiff was not able to show that the audit had taken place, he failed to show that his right of action was ripe. If it were, as suggested, the duty of the comptroller to have the account audited, that officer if he unjustly refused to perform the duty should have been set in motion by mandamus. If it was the duty of the board of education to audit without presentation by any one, the same remedy would' set that body in motion. If the duty rested upon the plaintiff he should have taken the necessary steps. It is not enough to show that the claim is a just one; nor that it received the approval of the local officers of the town by which the debt was created; because, however essential those things may be, they do not alone answer the requirement of the statute which imposes the debt on the city. The case is analogous to those in which the certificate of a public officer or of some designated person is requisite by statute. or by contract before payments can be claimed. In such cases it is settled by many authorities that the certificate must be produced; or that it was fraudulently and unjustly withheld or refused after proper application.

It follows that the absence of all evidence that the claim had been audited by the board, or that the condition required by the statute had become impossible of performance, or such other excuse as the law will accept in place of such performance, the plaintiff failed to show that the liability of the defendants to pay the indebtedness had become a legal obligation which can be enforced by suit.

The plaintiff was not, therefore, upon the evidence given by him, entitled to recover, and the judgment must be reversed and a new trial ordered, with costs to abide the event.

Daniels, J., concurred.

Brady, J.

(dissenting):

The plaintiff made and completed a contract to erect a school building in West Farms, Westchester county. It was made with the proper officers, and the claim therefor remaining unpaid was duly certified, so that it became a valid demand against the town. Under the provisions of the act of the legislature annexing certain parts of Westchester county to this city, all the debts and obligations of the several boards of education in either of the towns annexed, of which West Farms was one, were charged upon and declared to be the debts and obligations of the mayor, aldermen and commonalty of the city of New York. (Laws of 1873, chap. 613, § 8; Laws of 1874, chap. 122, § 2; id., chap. 308, § 1.) The only defense offered on the part of the defendants, upon the trial, was, that the plaintiff’s claim had not been audited by the board of education of the city of New York, and that there was no appropriation for the purpose of paying it. The former purpose is based upon a provision in section 8 (supra), which declares that the board of education of the city- of New York shall audit and examine, and' the comptroller shall pay, all the obligations of the several boards of education existing in the towns annexed, and which have thus been audited and examined, and which shall have been legally incurred prior to the 1st of January, 1874. It will be perceived, that it is not by the terms of the statute made the duty of the creditor to present his claim for audit. It is made the duty of the board of education to audit and examine, and that of the comptroller then to pay. If this were a proceeding by mandamus, to compel the board of audit or the comptroller to pay, and it could be entertained because the plaintiff had no remedy by action, the objection made would be fatal. The comptroller is -to pay on the audit and examination of the board of education, but the city is to pay the debt whether the audit thus contemplated is made or not. It is charged upon the city. The claim herein was presented to him as required by law, and the opportunity was therefore given him to have the audit and examination, if he required it, either for his own protection against a mandamus, or that of the city, if the audit revealed fraud or illegality in the claim made, and which might be interposed as a defense thereto. The plaintiff was not obliged by the act, as suggested, to have the audit made to give him a right of action. This claim was a legal, subsisting one when the act of 1874 (chap. 329, § 8), was passed. It became a debt of the city, and one therefore which the city is bound to pay. The consideration of the obligation was the laud annexed, with its appurtenances. The school-house erected by the plaintiff passed with it. The courts have not favored the retrospective operation of statutes so as to. take away a vested right. (Dash v. Van Kleeck, 7 Johns., 477; 4 Burr., 2560; 2 Shower, 17; 2 Mod., 310; 1 Vent., 330; Ganson v. City of Buffalo, 1 Keyes, 454.) And there is nothing in this case which would warrant a departure from that rule. The plaintiff’s claim was due and unquestioned by the original obligors who made the contract and received the benefit of the plaintiff’s labor and materials. The statute took the consideration of his demand, and transferred it to the city, but at the same time imposed upon the city the duty of paying any debt relating to it legally due. The cases upon which the defendant relies to sustain the point considered, are adjudications on proceedings for a mandamus, and we concede therein their full force, but say they have no application to this controversy. The absence of proof of no appropriation was not urged on the argument, and is not stated on the points submitted. It is regarded as abandoned therefore, but if to be considered, is overruled as untenable so far as the right of the plaintiff to a judgment is concerned.

I think the judgment should be affirmed.

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


text:
    ISIDOR WORMSER, Appellant, v. ISABELLA GARVEY, Respondent.

      Contract of sale of real estate—Specific performance — right to impose conditions.

    The plaintiff agreed to purchase certain real estate of the defendant, the contract providing that in case the defendant was unable to give a good title at the time therein named, or in case an injunction or attachment should issue to prevent her disposing of the property, the amount paid on the contract should be refunded and the contract rescinded. At the time named, plaintiff refused to fulfill the contract unless defendant would sign an affidavit in regard to the solvency of her grantor; defendant refused to do so, tendered back the amount received, and declared the contract at an end.
    In an action for specific performance, held, that the plaintiff had no right to require the defendant to sign the affidavit, and that her insisting upon it was equivalent to objecting to the title, and that defendant was thereby authorized to rescind the contract.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    In the month of September, 1871, one Andrew J. Garvey, the owner of certain premises in the city of Hew York, situate on Madison avenue, between Sixty-seventh and Sixty-eighth streets, conveyed said premises to his brother, John Garvey, for a nominal consideration, and John Garvey conveyed them to the defendant, the wife of Andrew J. Garvey.
    The defendant, being desirous of disposing of this property, to pay claims which were pressing, offered the same for sale,-and it was placed in the hands of Messrs. Kennedy & Fox, real estate brokers. These brokers negotiated with the plaintiff’s agent for its sale, and the terms of a bargain were finally closed at the house of Simon Wormser, who was acting as attorney for the plaintiff, on the evening of December 18, 1871, Mr. John Garvey acting as the attorney for the defendant.
    The defendant at first claimed that there should be a payment of $10,000 made on the signing of the contract, but. the plaintiff’s agent refused to pay that amount to John Garvey, and- it was finally arranged that the payment should be fixed at $500, as the contract was to be closed so soon. By the terms of the contract the plaintiff was to pay $215,000 for the property, and was to be allowed, upon the closing of the title, for all mortgages, taxes or assessments which affected the premises sold ; and the balance of the purchase-money was to be paid in cash at ten o’clock, a. m., of the twenty-sixth of December, at bio. 7 East Forty-seventh street, blew York city. This agreement further provided that in case any legal proceedings, in the nature of attachments, injunctions or otherwise, should prevent the defendant, from conveying, or should incumber the title to the premises, or in case the title should be in any way defective, or in case the defendant could not give a good and sufficient title, the agreement should be canceled, and the $500 returned.
    After the signing of the contract, the counsel for the plaintiff adverted to the provisions of the bankrupt act, and suggested that he would draw up the required affidavits in respect to the solvency of Andrew J. Garvey, and on or about December twenty-second, he sent certain affidavits to the counsel for Mrs. Garvey, the defendant, to be sworn to by her and by John Garvey, to the effect that they were well acquainted with Andrew J. Garvey’s affairs, and that they knew him to be solvent. At this time it was well known that the people of the State of blew York had commenced an action against William M. Tweed, Andrew J. Garvey and others, to recover $6,000,000, and that in this action an order of arrest, bailable in $1,000,000, had been issued against the defendants, and it was currently reported that Garvey had fled the country to escape the service of these papers. The plaintiff claimed that if he took this title under these circumstances, that at any time within six months from the time of the conveyance from Andrew J. Garvey to his brother, this conveyance could be set aside by an assignee in bankruptcy in case Andrew J. Garvey should be declared insolvent, and thus the plaintiff’s title be defeated, and that it was for this reason that he asked for these assurances of the solvency of Andrew J. Garvey. The parties, on the twenty-seventh of December, met at the office of defendant’s counsel, and there it was stated by the plaintiff’s counsel that they would not take the title without these affidavits, or some written assurance in reference to Andrew J. Garvey’s solvency. The defendant refused to give the affidavits required, upon the ground that they were untrue, although John Garvey stated that his brother was solvent. On the twenty-eighth of December the parties met, with a like result, the defendant pressing to have the title closed, and the plaintiff refusing to take the title, unless evidence, satisfactory to his counsel, was furnished of the solvency of Andrew J. Garvey. The parties met again on the twenty-ninth of December, and the plaintiff, still persisting in his demand for affidavits of Andrew J. Garvey’s solvency, besides the assurance of John Garvey, was notified by the defendant’s attorneys that unless the contract was closed the next day, it would be canceled. The parties met the next day; the defendant tendered a good and sufficient deed of the premises, which deed the plaintiff refused to receive, unless accompanied by satisfactory proofs of Andrew J. Garvey’s solvency. The plaintiff tendered the purchase-money, demanding the deed and proofs of solvency, but would not pay the money upon the delivery of the deed alone. The defendant, upon the refusal of the plaintiff to take the deed, declared the contract canceled, pursuant to its terms, and subsequently tendered back the $500 paid thereunder. This was on Saturday, the thirtieth of December, and on the fourth day of January following, this action for a specific performance was commenced by the service of the summons and complaint; and the relief asked was that the defendant be ordered and adjudged to furnish satisfactory proof of the solvency of Andrew J. Garvey, and that she execute and deliver a valid conveyance, etc.

      John W. Edmonds, A. J. Dittenhoefer, Runkle & Englehart, for the appellant.

      Luther R. Marsh and Gilbert & Smedley, for the respondent.
   Davis, P. J.:

This case was carefully tried by the learned judge at Special Term, and his findings of fact and conclusions of law, as well as the reasons expressed in his able and elaborate opinion, seem to us to be equitable and just.

In suits of this character there can be no fixed and arbitrary rule by which all cases are to be determined. Each case must depend and he disposed of upon its own circumstances. When and under what circumstances time is or is not of the essence of the contract, are questions which have received so much and such elaborate discussion, that an attempt to shed further light upon them is quite likely to result in an effort “ to darken counsel.” (Delavan v. Duncan, 49 N. Y., 485 ; Hubbell v. Von Schoening, id., 326; Finch v. Parker, id., 1; Duffy v. O'Donovan, 46 id., 223 ; Peters v. Delaplaine, 49 id., 362; Myers v. De Mier, 52 id., 647; Merchants' Bank v. Thomson, 55 id., 7.)

Within the established rules of equity we think time was not of the essence of the contract between the parties to this action at the time the same was made and delivered. It was however material, and especially so to the vendor, who was anxious to realize the consideration for the purpose of meeting pressing debts. The time for performance was fixed for an early day. It was for that reason that so trifling a sum as $500 was accepted as the payment down; and the parties took particular and unusual pains to provide for a rescission of the contract and the return of the $500, “ in case the title to the premises is defective, or in ease the party of the first part shall be unable to give at the time [mentioned in the contract] a good and sufficient title to the premises; ” and, also, to stipulate for the same consequence, “in case any legal proceedings in the nature of an attachment, injunction or otherwise, shall, in any manner, prevent the said party of the first part from conveying or making title to the said property, or shall incumber the title thereof.”

The parties thus stipulated in substance for the consequence of an actual condition of things, in praesenti, affecting the title of the lands, the fear of which, as a possibility in futuro, led the vendee to refuse to perform the contract on his part.

It might well be claimed that if the plaintiff regarded the title as defective by reason of the contingencies which he feared and asserted, and which arose without any fault of defendant, his taking that ground and refusing to perform, except upon the conditions he imposed, would give defendant the right, by the terms of the contract, to rescind and return the money paid.

It appears that the parties met from time to time; that the defendant was ready with her deed, and tendered performance on payment of the consideration ; that the plaintiff made it an express condition of his performance, that the defendant and her agent should each make an affidavit in relation to the solvency of the. defendant’s husband and grantor, the extent of his indebtedness, and the amount of his property over and above his debts, which they refused to make, and could not, as they assert, with truth, have made; and finally, that at the last meeting the defendant gave notice that if the deed was not then accepted and the money paid, she should regard the contract as at an end, and tender back the $500, and rescind the agreement. The plaintiff refused to accept the deed, persisting in his demand for the affidavits, and thereupon the defendant offered back the' $500, and declared the contract at an end.

We think the plaintiff had no right to impose the condition of making the affidavits on the defendant and her agent, and that his doing so was equivalent on his part to denouncing the title as defective, and thereby giving to defendant the right of rescission as stipulated for in the agreement. But if this be not so, the plaintiff had, in our judgment, no right to impose such a condition, and, on-refusal of defendant to comply with it, to resort to a court of equity to enforce the contract with the condition, or if he failed in the latter, to enforce specific performance of the contract itself. To allow purchasers of real estate to make such or similar conditions, and to speculate upon the chances of enforcing them by suit in equity, and all the while preserve the right to enforce specific performance of the agreement without the conditions, would not only open a new branch of equity jurisdiction, but operate to give an undue advantage to one party to such contracts, and render the rights of the other uncertain and subject to the caprice or necessities of the vendee.

We think the judgment should be affirmed, with costs.

Daniels and Brady, JJ., concurred.

Judgment affirmed


text:
    JAMES BURKE, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Mayhem — Premeditation—Evidence of statements of complainant as to his fear of assault from, prisoner.

    In order to bring an act within the fourth class mentioned in the statute relative to mayhem, i. e., to “ cut off or disable any limb or member,” the cutting or disabling must be done on purpose, and not be the result merely of an unexpected, instantaneous encounter, or of the heat of sudden passion, or of the excitement produced by the fear of-bodily harm.
    In a prosecution for mayhem, it is error to allow the statement, made by the complainant to a third -party, in the absence of the prisoner, that he was afraid the prisoner would return and assault him, to be given in evidence, when there is nothing in the case going to justify such apprehension.

      People v. McMahon (2 Parker, 663) followed.
    Appeal from, the General Sessions, on conviction for maiming.
    The plaintiff in error was convicted in the Court of General Sessions of the city of Hew York, on the 15th day of December, 1874, before Hon. John K. Haokett, recorder, and a jury, of the crime of mayhem, and was sentenced to imprisonment in the State prison for the term of fifteen years.
    The indictment charged that, on the 24th day of Hovember, 1874, the plaintiff in error did feloniously bite off a piece of the left ear, and disable a member of one James McLaughlin, and that he did feloniously and on purpose maim him, against the form of the statute, etc.

      Peter Mitchell, for the plaintiff in error.
    The offense of which the defendant stands convicted, is not mayhem, as contemplated by the statute; he is not brought within the provisions of the statute, either by the indictment or proof. (See People v. Allen, 5 Denio, 76; Wood v. The People, 53 N. Y., 511.) Such statutes are to reach no further in meaning than their words. (Bishop on Statutory Crimes, §§ 194, 196, and authorities cited in notes.) The biting off of the outer edge of the fleshy part of the ear, in this case, was neither maiming nor disabling within the provisions of the statute. (See State v. Abram, 10 Ala., 128.)

      B. K. Phelps, for the defendants in error.
    There was no error in denying the motion to strike out the testimony as to what McLaughlin said about Burke’s coming into the store. The statements were a part of the res gestee. The testimony having been admitted _ without objection, there was no obligation on the part of the court to strike it out. (People v. McMahon, 2 Parker, 663.) It was at most entirely discretionary with the court. The offense of maiming may be committed without removing the whole of the limb or member “ cut off or disabled.” If a permanent injury is inflicted upon the member, it is disabled. (Bishop on Stat. Crimes, § 316, and note; 2 Bishop on Crim. Law, § 1007.)
   Brady, J.:

The injury inflicted upon the complainant is described by the physician who attended him, thus: The wound was merely the outer edge of the left ear; it was pulled off from there right down to the lower lobe of the ear; it was merely the outer edge, just reaching as far as the cartilage—a simple, clean wound.” “ This cut was one-eighth of an inch deep all the way round.” The circumstances under which the wound was made were these: The complainant and the prisoner had been together, drinking and disputing, but had not come to blows. They separated, the complainant going to a saloon, and the prisoner elsewhere. The complainant, from some fancy that the prisoner would return and assault him, tried to borrow a pistol, and then an ice pick, but getting neither, he took a poker and kept it. The prisoner finally came into the saloon, and presently went up to the complainant, taking hold of the lappel of his coat. It was, it would seem, a social approach. It is apparent that it was not a hostile demonstration — at all events, from the testimony given. The complainant was very much intoxicated then, and there is no doubt that the prisoner was drunk. While in this position, something was said by the prisoner, which is not revealed, and the complainant thereupon struck at him with the poker. They clinched, and the prisoner bit his ear. It would seem, from the evidence of the physician, that he must have seized the outer edge with his teeth, and torn off that part of the complainant’s ear, unless, indeed, the complainant tore it off in his efforts to free himself. The complainant did not know at the time that his ear was bitten, and could not say that the prisoner did it. He had, as he stated, another matter with a man before his collision with the prisoner. He also admitted that he was a quarrelsome man when in liquor.

Upon the trial, the district attorney asked the bar-tender of the saloon the following question: “Do you remember what McLaughlin said about Burke’s coming into the store?” and he answered, “Yes, sir; he told me, when I wanted him to go and sit down and go to sleep, that he was afraid Burke would come in and beat him. I said ‘ nobody will beat you; sit down and go and take a sleep.’ ” The counsel for the prisoner moved to strike out this answer, upon the ground that he did not hear the question put to the witness, and because of its incompetency. The application was refused, and exception was taken to such ruling. There is no doubt, it should be said here, that the injury received by the complainant was the result of a drunken brawl, and none that it was not inflicted by premeditation — by lymg in wait for the purpose. The collision which occasioned it was one really begun by the complainant, who, as already stated, on some observation being made, struck at the prisoner with a poker. During their wanderings earlier in the day, they had wordy disputes, as the complainant said, but the prisoner had neither struck him nor threatened to strike him, and the case presents no evidence which warrants the conclusion that he designed to do him any harm other than taking hold of the lappels of his coat, which, as already suggested, was apparently a social and not a hostile action.

The statute under which the prisoner was convicted is as follows: “ Every person who, from premeditated design, evinced by lying in wait for the purpose, or in any other manner, or with intention to ldll or commit any felony, shall,

1. Cut out or disable the tongue; or,

2. Put out an eye; or,

3. Slit the lip, or destroy the nose; or,

4. Cut off or disable an'y limb or member

Of another, on purpose, upon conyiction thereof) shall be imprisoned in a State prison for such term as the court shall prescribe, not less than seven years.” (2 Edmonds’ Statutes at Large,. 683, 684.)

The court was asked to charge the jury that the fact of lying in wait was not made out by the prosecution, and the court declined so to charge, to which exception was duly taken. The court was also aslted to charge that the jury could find a verdict of assault and battery. This request was granted, but coupled. with a statement that the jury could find a verdict of arson, or anything they liked; that they had the physical power to do so, but they should hold themselves responsible to their oath and intelligence to decide according to evidence and the law. The court was also requested to charge the jury that the offense committed was not mayhem, as contemplated by the statute, and the proposition evidently rested upon the fact that a portion of the ear only was destroyed. The court, in answer to this request, said: Thé mere fact that the ear was partially taken off-—that that should constitute no offense — that the ear should be perfectly destroyed, I shall leave to the jury to say whether any disability was attached to this ear. The ear is a member of the human face. It is a component part of a man’s countenance. It is not denominated by the statute. It would be an absurdity to say that the statute limits the application to the entire destruction of this member. In order to provide for that difficulty, the statute says, if any person shall ‘ cut off or disable any limb or member.? It is a question for the jury to say whether this ear was bit off by this man, and whether there was any disability to the ear from this partial destruction. I shall leave that to them. If they shall so decide, I shall instruct them to convict this man of the charge.” The prisoner’s counsel excepted to this ruling.

Upon the exceptions thus stated the appeal in this matter depends. In reference to the first, it may be said that the statement of the complainant before the occurence, when the prisoner was not present, was not admissible. It is not necessary to cite authorities for a rule so well established by the law of 'evidence. The testimony was admitted without objection, it is true, but that arose from the failure of the prisoner’s counsel to hear the question, if we are to believe his declaration in open court, and which was not questioned. The statement was injurious to the defense of the prisoner, because he claimed to have acted in self-protection; and the effect of it was to make the prisoner the aggressor, and to put the complainant in fear of bodily harm, thus justifying his resort to the poker when, he could get neither pistol nor ice-pick, when, on his own testimony, there was nothing from which he was authorized to draw the conclusion that the prisoner meant to assail him in such way as to put him in any jeopardy. In the exercise of a sound discretion, the testimony should have been stricken out. It was entirely incompetent. (See People v. McMahon, 2 Park., 663.)

In reference to the second exception, it is clear, beyond all doubt, that the prosecution did not make out the fact of lying in wait, contemplated by the statute. The intention of the prisoner to do what he did, was not evinced by lying in wait for the purpose, according to the testimony, and he was entitled to the benefit of the request made. The refusal to charge as requested was error therefore. It may be that it was not necessary to prove that fact; indeed, it is quite apparent that it was not because the premeditation might be shown in any other manner,” but the prisoner’s case was to be determined by the “ other manner ” when it was not shown that he was lying in wait. The jury could not assume that he was, when tiie evidence did not warrant it; and the absence of proof of a material fact like that, was a feature in the prosecution to which the prisoner was clearly entitled.

In reference to the third exception, it must be said that there was no evidence that the ear was disabled. The physician did not so state. Its perfection, as an organ of the human frame, was destroyed, but its usefulness for the purpose for which it was designed, was not at all affected, if this case is to be disposed of on the evidence. There was no distinct exception to this part of the answer of the court, given to the request in relation to the necessity of showing the entire destruction of the ear, but the exception was to the ruling upon the request, and it was part of the ruling that it should be left to the jury to say whether any disability was attached to the ear. In this, under the evidence, the learned recorder was in error. The disability was not for their speculation or conjecture, but to be considered and disposed of on the evidence. Whether the offense of which the prisoner stood charged, was within the statute to which reference has been made, it may not be necessary here to decide; because, assuming it to be, the exceptions taken are such as to require a new trial; but it is proper to say that it comes, if at all, within the statute, certainly and only Within the fourth class, namely, to cut off or disable any limb or member;” and to bring it within that class, the cutting or disabling must be done on purpose, that is, with premeditation. It must be designedly done. It must be the intention to do it; otherwise it is not done on purpose ; and, it seems to me, must not be, under a proper interpretation of the statute, the result of an unexpected, instantaneous encounter, or óf the heat of sudden passion, or of the excitement produced by the fear of bodily harm. The violent intentional disfigurement of the ear is an offense which should be punished, and doubtless with severity; and it may be that such an act woidd be a felony within the provisions of the statute mentioned, although the legislature has not so expressly declared. It.reads, “to cut off or disable.” It is not mayhem at common law to cut off an ear. It is not, by the principles of that system, regarded as rendering a man less competent to attack his adversary or to defend himself. (Barb. Crim. Pr., 81; 4 Black. Com., 205; Ros. Cr. Ev., 654 [ed. 1836]; 1 East P. C., 393; State v. Marns, 1 Coxe, 453; Comm. v. Newell, 7 Mass., 245.) We think, however, that upon the exceptions discussed, the prisoner is entitled to a new trial. We arrive at this conclusion the more readily, because we think that the observations which accompanied the charge that the jury might find a verdict of assault and battery, were such as in effect to modify the charge on that subject, or destroy its benefit to the prisoner, and thus leave the jury to infer that such a verdict would be at variance with then-intelligence and the evidence and the law. It was not so intended, doubtless, and perhaps there may be some inaccuracy in the report of the language used, but we find it in the case, and feel it our duty to allude to it.

Judgment reversed and a new trial ordered.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed, and new trial ordered.


author: Daniels, J.: Brady, J.: Davis, P. J.

text:
    THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent, v. HENRY W. GENET, Appellant.
    Code, § 229 — affidavit for attachment—when it sufficiently shows non-residence— "Domicile and residence—distinction between.

    Upon an application for an attachment on the ground of the non-residence of the defendant, the affidavit is not required to state in positive terms that he is not a resident of the State. It is sufficient when that conclusion is the only one which can be consistently drawn from the facts set forth in the affidavit.
    Domicile is the habitation fixed in any place with the intention of always staying there, while residence is much more temporary in its character.
    Where, on an application for an attachment, an affidavit was presented showing that the defendant had been indicted and convicted of obtaining, by false pretenses, the money to recover which the suit was brought; that after conviction and before sentence he escaped, and, though the most strenuous efforts had been made to discover his whereabouts, he still continued concealed: held, that it sufficiently appeared that he was a non-resident, and that an attachment was properly issued. (Davis, P. J., dissenting.)
    Appeal from an order denying a motion to vacate an attachment. The motion was made solely upon the affidavit upon which the warrant was granted.

      Oliver W. West, for the appellant.

      John E. Parsons, for the respondent.
   Daniels, J.:

The Code allows an attachment to be issued against the debtor’s •property in an action on contract for the recovery of money, whenever it shall appear by the affidavit on which the application may be made, that a cause of action exists, and the defendant is not a resident of the State. The affidavit is not required to state in positive terms that he is not a resident of the State; it is sufficient that the fact appears by the affidavit (Code, § 229); and that may as clearly be the case, when the conclusion is the only consistent one which can be drawn from the facts set forth in it, as it would be from a positive statement of the fact itself. What the law requires is, that the fact shall appear by the affidavit prodúced on the creditor’s behalf; and it does so appear whenever the circumstances set forth are consistent with no other rational conclusion-.'

The affidavit in this case, although very imperfectly and in artistically drawn, shows that the defendant was tried and convicted, in December, 1873, of the offense of obtaining a portion of the money sued for, by means of false pretenses; that, shortly after his conviction, and before the time fixed for him to receive sentence, he escaped from the custody of the sheriff of the city and county of New York and absconded; and, though the most strenuous efforts have since been made to discover his whereabouts, he still continues concealed. The defendant had been convicted of a grave crime about three months before the attachment was issued, and, to avoid sentence and punishment, escaped from the officer having him in custody, and has ever since remained a fugitive from justice, successfully eluding the efforts of the officers to discover his place of concealment.

The plain and reasonable inference indicated and supported by these circumstances, is, that he at once left the State, in order to place himself beyond the control and power of its officers. Safety could be secured in no other manner; and that being the defendant’s object, he would be inclined to attain it in that way, and as expeditiously as circumstances would permit. The supposition that he could remain within the State and be discovered by no one, is incredible, in view of the exertions made to find him. The natural impulse prompting his flight would be at once to place himself out of its limits, and that he must be presumed to have done as soon as circumstances , allowed it to be accomplished. And, for the same reasons, it cannot be plausibly supposed that he has ever, since then, returned within its borders. From the time of his escape from the officers, it is to. be presumed he has been a fugitive in some foreign State, for that alone could furnish him the security sought by him against their vigilance and efforts to recapture him. And it is not to be supposed that his absence from the State is intended to be voluntarily abridged. The motive that led to his flight will induce him to continue his residence abroad indefinitely, for in no other, way can he protect himself from the punishment due to his crime.

These facts and conclusions, which appear by the affidavit on which the attachment was issued, are clearly sufficient to show that the defendant was not a resident of the State when the attachment was issued. . The fact that his family may continue to reside within this State, and that his home or domicile may be here, is not enough, under the circumstances shown, to render him a resident of the State; for a person may have his home or domicile in this State, and be -at the same time a resident of another; and, when that is the case, he is subject to the attachment laws as a non-resident debtor. The domicile is the habitation fixed in any place with an intention of always staying there, while simple residence is much more temporary in its character. These subjects were fully examined in the case of Thompson. (Reported in 1 Wend., 43.) His domicile seems to have been in this city. He left it partly on business and partly on pleasure, and remained away until an attachment was issued against him as a non-resident debtor. In delivering his opinion in that case Savage, C. J., said : It appears to me, the object of the statute was to authorize creditors to prosecute for their debts when their debtors were abroad; and whether their absence from this State is permanent or temporary, whether it is voluntary or involuntary, the reason for giving this remedy to the creditor is the same. * * * The question, I think, is, where was his actual residence, not his domicile. * * * The reason why this remedy is given against the property of debtors resident abroad, is equally applicable, whether the debtor is absent permanently or temporarily. No length of residence, without the intention of remaining, constitutes domicile. A debtor, therefore, by residing abroad, without declaring an intention to remain, might prevent his creditors from ever collecting their debts.” (Id., 45, 46.) The same principle was applied to the case of a debtor who had been absent from this State, from May, 1836, to March, 1837, when he returned on a visit to his family and was arrested as a non-resident. Though his domicile was in this State, it was held, under the circumstances, that his residence was out of it, and for that reason his arrest was sustained. (Frost v. Brisbin, 19 Wend., 11.) And both these.cases have since been approved by the Court of Appeals in Haggart v. Morgan (1 Seld., 423), where the property of the defendant was held liable to an attachment as a non-resident of this State, upon a mere absence of three years in New Orleans, where he was necessarily detained in attendance upon a lawsuit. The attachment in the present case was issued under a similar provision of the law to those before the courts in the other cases, and it was properly allowed under the construction which they maintain. While it would have been more formal if the affidavit had in plain terms stated the fact of the defendant’s non-residence, that was not indispensably requisite, as long as the circumstances disclosed pointed in the ' most unmistakable manner to that conclusion. The length of absence cannot be important when it appears, as it does in this case, to have been accompanied with a design of remaining beyond the limits of the State. When he left the State with that intention he became a non-resident, and liable to have his property seized by attachment.

It sufficiently appeared that a cause of action on contract for the recovery of money existed in the plaintiff’s favor, although the precise amount of the demand was not clearly defined. The affidavit was hurriedly and most carelessly drawn. That is entirely apparent from its statements and the manner in which they were made. But the public interests should not be jeopardized by dismissing the proceedings in order to secure their correction, as long as the facts required for their support can be reasonably gathered from the affidavit produced.

The order should be affirmed, with ten dollars costs besides disbursements.

Brady, J.:

Although it may be, that it does not appear that the defendant in this action fled from the jurisdiction of this court to avoid the service of civil process, it is not denied that he left for the purpose of preventing the consequences of his conviction for a criminal offense. The effect of such an act must be to deprive the person committing it of his character as a resident. He places himself designedly beyond the reach of the power of the State by leaving its territory, and in terror of its laws. The presumption arising from that eircumstanqe, in reference at least to the exercise of jurisdiction over his property, is, that he does not intend to return. It is not susceptible of any other conclusion consistent with the object and intent of his flight. He abandons deliberately his residence. It is an unqualified, unconditional act, and one which, as the decision of this court and the Court of Appeals show, deprived him of the right to review on exceptions the trial by which he was convicted. When a man thus conducts himself, he waives acquired rights which depend upon his presence within the State, or circumstances which warrant its presumption, and is to be treated as if he were not present, and had no rights founded upon that legal attitude. He became, in other words, to all intents and purposes, for the enforcement of remedies, a non-resident of this State. I agree with Justice Daniels that the order should be affirmed.

Davis, P. J.

(dissenting):

This motion was made upon the affidavit on which the attachment was granted. -Assuming that the cause of action, and the grounds, and amount thereof, sufficiently appear by the affidavit, it is still fatally defective in other respects ; and it cannot be upheld without a departure from established rules and practice, greater than the court can be justified in making. Section 229 of the Code provides that a warrant of attachment may be issued when it shall appear by affidavit (amongst other things) that the defendant “ is not a resident of the State, or has departed therefrom with intent to defra/ad his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent.’’’’ It is within one of these provisions that the affidavit is claimed to have brought the defendant. But as it is not asserted that he is not a resident of the State, it is essential that it should appear either that he has departed from the State with intent to defraud his creditors, or to avoid service of a summons, or that he keeps himself concealed within the State with like intent. The facts to be established are, either the departure from the State or the concealment therein with intent to defraud creditors, or to avoid service of summons; and if a case is shown from which it appears that, he lias done one or the other of those things, it is not necessary clearly to establish which of them, for the application may be in the disjunctive and embrace all the alternatives of the section. (Van Alstyne v. Erwine, 11 N. Y., 331; The People v. The Recorder of Albany, 6 Hill, 429; Morgan v. Avery, 7 Barb., 656.) In Van Alstyne v. Erwine, the court say: The remedy is precisely the same, whether the debtor had absconded or was concealed; no difference whatever existing in the proceeding in the two cases. A case may be so circumstanced that, although it may be conclusively shown that the debtor has left his place of residence in order to defraud his creditors by depriving them of their remedies, yet it may be impossible even to conjecture whether he has continued his flight beyond the boundaries of the State, or has resorted to some place of concealment in it. * * * If the objection is well founded, there could be no proceeding under this statute in a case thus circumstanced. The debtor would have only so to conduct his evasion as to make it uncertain which course he had adopted, and he would avoid this remedy.” And again the court say: The same considerations apply to the other alternative — whether the debtor’s intent was a general one to defraud his creditors, or whether it was to avoid the service of civil process.” That case, as well as the case in 6 Hill, arose under the Revised Statutes, but the provision of the statutes is so nearly identical in language with that of the Code, that no possible reason can be assigned for a different’ construction. It follows, therefore, that the intent of the debtor may be stated in the alternative, and so may the departure or the concealment, but the facts stated by the affidavit must be such as to show that one or the other of each set of alternatives exists; that is, a departure from the State or a concealment within it, and an intent to defraud creditors or to avoid service of summons. The intent to defraud creditors or to avoid service of summons, is a question of fact to be established to the satisfaction of the judge, and it has been more than intimated that the affidavit should assert the intent either positively or as matter of belief. (Miller v. Brinkerhoff, 4 Denio, 120; Genin v. Tompkins, 12 Barb., 265.) Undoubtedly that is the better practice, and should always be adopted; but as neither the most positive assertion of the affiant, nor the statement of his belief, is sufficient without setting forth facts upon which the judge can legally find its truth, it would seem to follow upon sound principles, that the statement of facts which show the intent so that the judge can be legally satisfied of its existence, ought to be held enough. (Ex parte Robinson, 21 Wend., 672.) The affidavit in this case is barren of any assertion, either positively or on information or belief, that the defendant had departed the State with intent to defraud creditors, or to avoid service of summons, or that he keeps himself concealed therein with intent to do either of those things. ■ Assuming that statement not in strictness to be necessary, the question becomes: Has the affiant stated facts, from which the judge who granted the warrant could lawfully be satisfied that one or the other intent existed, and that defendant had departed the State, or concealed himself within it, to effectuate such intent? All that can be found in the affidavit bearing on the subject, may be briefly stated: First, in the statement tending to show that the indebtedness for which the action was brought, is. for moneys fraudulently obtained by defendant, and wrongfully applied to his own use; second, that an indictment for obtaining a portion of the moneys, had been tried in December, 1873, and the defendant had been convicted by the jury; third, that “ shortly after his conviction, and before the time fixed for him to receive sentence, he escaped from the custody of the sheriff of the city and county of New York and absconded, and that, though the most strenuous efforts have since been made to discover his whereabouts, he still continues concealed.” These statements failed to show whether the defendant had departed from the State, or had concealed himself therein, but they did establish that he had escaped from the custody of the sheriff, and had concealed himself either within the State or elsewhere. They were quite enough to answer one or both of the alternatives of the Code, as to the mere fact of departure from the State, or concealment within it. But did they establish the intent to defraud creditors, as required by the Code, or some other intent — the intent to avoid service of summons, or some other process ? In my opinion they show an intent, by flight and concealment, to avoid sentence and punishment under the conviction of crime, and fail to show an intent to defraud creditors, or to avoid the service of civil process.

In Lynde v. Montgomery (15 Wend., 461), it was held not sufficient to sustain an attachment, to show that the defendant had concealed himself to avoid service of criminal process. That case arose upon the statute which allowed attachments to issue from justices’ courts, where it was made to appear that the defendant had kept himself concealed “with the intent to avoid service of civil process.” (2 R. S., 230, § 26.) And the court, holding that the process described in the affidavit xvas a criminal qne, held' the attachment invalid, saying: “To sustain the attachment it should have appeared affirmatively that the process was a civil process.” [Evans v. Saul, 8 Martin [N. S.], [La.], 247; People v. O’Brien, 6 Abb. [N. S.], 63, 68; 2 Wait’s Pr., 138.) The 'analogy between the statutes is complete, for the summons mentioned in section 229 of the Code, is .clearly the civil process provided for the commencement of actions under the Code.

It is no argument to say that the defendant’s departure and concealment were with intent to avoid punishment for crime, and therefore creditors ought in such a case to have the process of attachment. Perhaps so; but the Code has not given it, except in the specified cases, and to add another, is to legislate, which is not the province of the court. It is easy to see that other fact's (if they exist) might have been added, which would tend to show that the escape and concealment involved the element of intent to defraud creditors, or avoid service of process, such as the disposing of, or incumbering or attempting to remove property; the failure to meet or provide for debts ; the neglect to put any one in charge of property or business left behind; and a variety of incidents of that nature, from which it might be justly inferred that an intent to defraud creditors was coupled with a design to evade punishment of crime; for very clearly, where both exist, the right to the warrant of attachment would not be prejudiced by the fact that the defendant was also evading criminal punishment. With all reasonable desire to uphold the attachment in this case, I find myself constrained to the conclusion that it cannot lawfully be done. My brethren are, however, of opinion that the facts are sufficient to establish that defendant is a' non-resident of the State, and that the attachment should be held valid on that ground. I cannot agree to that conclusion. The warrant was not sought or granted on that ground. •There is no assertion of non-residence. The defendant is a fugitive from justice, and the idea of non-residence is based altogether upon a supposed presumption that he has fled to a foreign country or State, and there remains because he would be safer there from the vigilance of the officers from whom he escaped, than in this State. I am not able to see that such a presumption exists. If official vigilance has been no greater since than at" the time of the escape, a presumption based upon it .has small ground to stand upon. But the State is large enough to furnish numerous places of concealment, and even the city itself has harbors of refuge, in which criminals may be safe from the search of those who seek diligently not to find. In my judgment the facts alleged in the affidavits' fail to show non-residence as required by the Code, which is, I think, a fact to be distinctly asserted and affirmatively proved.

I cannot concur in the affirmance of the order:

Order affirmed, with ten dollars costs and disbursements.

       See Matter of Genet, 1 Hun, 293 — [Rep.].