author: JaMes, J.:

text:
    In the Matter of the Application of the HUDSON CITY SAVINGS INSTITUTION.

      Befunding taxes — chap. 855 1869, and chap. 695 of 1871 — power of Oount/y Oowt unden' — Title of statute.

    Under section 5 of chapter 855 of 1869, as amended by chapter 695 of 1871, requiring the hoard of supervisors of the counties therein named, upon the order of the County Court, to refund to any person aggrieved the amount of any tax illegally or improperly assessed or levied, the County Court has no power to make such order until the assessment has been adjudged illegal or improper by a competent tribunal. The power to make such adjudication is nowhere vested in the County Court, and it rests, if anywhere, with the board of supervisors.
    The title of a statute may, in cases where the intent is not plain, be resorted to, to aid in the discovery of the design of the legislature.
    Appeal by the board of supervisors of Columbia county from an order of the County Court of said county, ordering said board o ' supervisors to refund to the Hudson City Savings Institution the sum of $1,468.20, collected of said institution, for a tax which said court adjudged illegally and improperly assessed and levied, in the year 1873.

      R. R. Andrews, for the appellant.

      Newlcirlc <& Chace, for the respondent.
   JaMes, J.:

In 1869, an act was passed by the legislature of this State (chap. 855) entitled, An act to extend the powers of boards of supervisors.” The fifth section of said act was as follows: The board of supervisors of any county, except New York and Kings, may, by a vote of two.-thirds of all the members elected thereto, legalize the informal acts of any town meeting in raising money for any purpose for which such money is authorized to be raised by law ; and by a like vote, legalize the irregular acts of any town officer, performed in good faith and within the scope of his authority, provided such legalization shall be recommended by the County Court of such county; and also, on like recommendation, correct amy ma/nifest, clerical, or other error, in any assessments or returns made by any town officer to such board of supervisors, or which shall properly come before such board for their action, confirmation or review.”

This section was amended, in 1871, by adding to it these words : “ And upon the order of such court, made on application of the person aggrieved, and notice thereof, to such board, it shall refund to such person the amount collected from him of any tax illegally or improperly assessed or levied.”

The Hudson City Savings Institution presented to the county judge certain affidavits, showing that in the year 1873, it was assessed by the assessors of the city of Hudson for surplus earnings, pursuant to the act of 1867, $60,000; that said surplus earnings were then invested in United States securities, of which investment the assessors at the time had no knowledge ; that a tax was levied on such assessment, and paid by said institution in January, 1874. Upon such papers the county judge made an order, that said board of supervisors show cause before the County Court why said board should not refund to said institution the tax so levied and collected on said assessment. At the time and place designated, the board, by its attorney, duly appeared, and for cause showed that said assessors, before making said assessment, sought information of the directors of said institution, as to the amount of its surplus earnings, and endeavored to ascertain if such surplus was taxable, and notified said directors that -if such surplus was not taxable, said assessors ought to be informed. After learning the amount of its surplus earnings, and not being able to ascertain any reason why it should not be assessed, the board of assessors duly assessed the institution that sum. Upon said affidavits and statements, after hearing, the county court adjudged said assessment illegal and improper, and made an order that said board of supervisors refund to said savings institution $1,468.20, the amount of tax levied and collected on said assessment. This appeal is from said adjudication and order.

The purpose of the statute of 1869, was, “ to extend the powers of boards of supervisors,” in certain cases therein specified, viz., to legalize the informal acts of town meetings in raising money, etc.; to legalize the irregular acts of town officers in certain cases; to correct any manifest, clerical, or other error, in any assessments, or in returns made by a town officer to a board of supervisors, or which should come before such' board for its action, confirmation or review; in the last two instances, only, provided such action was recommended by the County Court of the county.

The amendment is claimed as the authority for the proceeding now under consideration, and was, like the original, also entitled, “ An act to extend the powers of boards of supervisors.” The important question, in this case, is the construction to be given to said amendment. As construed by the County Court, it becomes an act to extend the powers and increase the jurisdiction of County Courts, with powers and jurisdiction to hear, review and reverse the action of boards of assessors, without limitation as to time; and, in case of reversal, to compel a tax, collected on such reviewed assessment, to be refunded by boards of supervisors. Standing by itself, such construction would not be inconsistent with the language of the amendment. But such could not have been the legislative intention in its adoption. That intention must be sought by joining the amendment with the act to which it is an addition, and considering the whole together, or as one act.

While the title of a statute is no part of the statute itself, in modern times it not unusually states the purposes of its enactment, and may, in cases where the intent is not plain, be resorted to in aid of discovering the design of the legislature. In both the original and amended acts, the purpose of each is distinctly stated in the title of each. By the original act, boards of supervisors, on the recommendation of County Courts, were vested with power and authority to correct any manifest, or clerical, or other error, in any assessment or return made by any town officer to boards of supervisors, or which should come before such boards for their action, confirmation, or review. The original act, however, contained no provision for refunding a tax, based on an illegal or improper assessment, which had been collected. The amendment was undoubtedly intended to supply that omission, and place power with boards of supervisors, on the order of a County Court, obtained in the manner provided, to refund any such tax collected. But before a County Court could make such an order, the assessment must have been adjudged illegal or improper by a competent tribunal ; such power is nowhere vested in County Courts; if anywhere, it rests with the boards of supervisors. It might, perhaps, be held that, under authority of the original act, a board of supervisors, upon proper evidence, could, in its discretion, declare an assessment illegal, or improperly made; but it is certain that, until some lawful action declaring the illegality, there is no authority in a County Court to call upon a board of supervisors to refund a tax collected. In this case there had been no action by' the board of supervisors, or any authorized body, declaring the assessment upon which the tax collected from the savings institution was based, illegal or improper; and hence the order of the County Court appealed from was unauthorized. This view makes the amended act and the original act consistent with each other, in harmony with their several titles, and the whole not inconsistent with the general tax law of the State. „

But whether or not the foregoing is the proper construction of said amended act, the order of the County Court cannot be upheld. County Courts are not vested with authority to review, reverse or modify the determinations' of boards of assessors. Before a County Court can order a tax coflected to be refunded, the illegality of the assessment upon which the tax is based must be adjudged; a County Court cannot do that. But if it was conceded that a County Court could review the action of the board of assessors, and, upon proper evidence, adjudicate the illegality of their action in a given case, there was not sufficient evidence before said court, on this occasion, to establish the illegality or impropriety of the assessment. The question presented was not one of new trial upon new and additional evidence, but whether, at the time, it was illegal or improper. Before a court, it could only be treated as a legal question, not as one of discretion. Before a board of supervisors it might be treated either way, and facts eon-sidered, not within the knowledge of the assessors, at the time of the assessment.

It was the duty of the assessors to make this assessment; all property within the State is declared liable to assessment and taxation, except specially exempted. The surplus earnings of savings institutions had been declared by statute personal property and liable to assessment and taxation, unless invested in United States securities. The assessors had knowledge of this prbperty, but no knowledge of its investment; nor could they acquire any information after proper inquiry. It is not claimed that the assessors erred upon facts within their knowledge, or that they disregarded any facts presented for their consideration. It) for any reason, said property was exempt from assessment and taxation, it was the duty of the owner to present that tact to the assessors, or lose the benefits of it. Like the case where a minister of the gospel is entitled to a certain exemption, the duty was upon him to make the fact of exemption known, or he became estopped. (Prosser v. Secor, 5 Barb., 607.)

Therefore, in this case, whatever may be the fact about exemption, the assessment was legal and proper, and the County Court was without authority either to review, or upon new facts to retry, said assessment, and adjudge it illegal or improper.

For these reasons the adjudication and order of the County Court should be reversed and set aside, with costs of this appeal to be taxed, and ten dollars costs of appearing before the County Court to show cause, against the Hudson Savings Institution.

LearNed, P. J., and BoaRdmaN, J., concurred on first ground.

Ordered accordingly.


source: Caselaw Access Project

author: Janees, J.:

license: Public Domain

text:
    JACOB FARRINGTON, Respondent, v. CYNTHIA A. BUNDY and another, Appellants.

      Basement — stairway— right of way over •— reasonable width of.

    The defendant’s grantor, being the owner of two adjoining lots, the most westerly of which was covered by a building, access to the second story of which was had by means of a stairway situated upon the outside of the easterly side of the house, and upon the adjoining lot, conveyed the westerly lot and the building thereon to the plaintiff by a warranty deed, which provided that he should have “ the right and privilege to have an outside stairs leading to the upper rooms of the store and to he a part of the premises.” Meld, that by the deed the plaintiff took a perpetual easement or right of way to his second story, over the said stairway on the adjoining lot, and that as its width was not declared, the law implied that it should be of a reasonable width.
    The counsel for each party stated in his points that this was an appeal from a judgment. The court accepted this statement and acted upon it, although the papers did not show an appeal. It did appear, however, that the case was tried before the court, a finding had, and a judgment entered on the finding.

      Bundy c& Seramling,,fov the appellants.

      JE. Countryman, for the respondent.
   Janees, J.:

This was an action in equity for a perpetual injunction, and to recover damages. No exceptions were taken to the findings of fact, as such, but certain exceptions were taken to the conclusions of law. The case seems to have been tried partly on the facts as they existed when the action was commenced, and partly upon such facts and the subsequent action of the parties. As both parties seem to have assented to such course, and have argued the case without any objection, it may be as well to dispose of it as thus presented.

It appears from the findings, that previous to May, 186'4, one Burton was the owner in fee of two certain adjoining village lots in Oneonta, fronting southerly on a street; on the westerly lot was a stone building, two stories high, covering its entire front; the lower story being used as a store, and the upper story as a dwelling, which was reached by an outside open stairway, four feet wide, with a platform at the.top, fifteen feet long and six and one-half feet wide; this stairway was on the east end of said building, and extended. its width on to the said east lot. May 11th, 1864, said Burton sold and conveyed to the plaintiff said lot and building by warranty deed, with a right of way, in the following words: And the said Jacob Farrington is to have the right and privilege to have an outside stairs leading to the upper rooms of the store and to be a part of the premises; and the said party of the first part [Burton], in case he should erect a building close to said store, shall put in a light,” etc. This deed was duly recorded; under it plaintiff entered into possession, and by himself and tenants has ever since been in possession, having an outside, open stairway, four feet wide, with a platform fifteen feet long and six and one-half feet wide. During the whole of 1872, the said second story was occupied by a tenant.

May 5th, 1867, said Burton sold and conveyed the said east lot to the defendant Bundy, and in said deed, after the description of the lot, were these words : “subject to the right of Jacob Farring-ton to an outside stairway leading to the upper part of his store, but not as it now exists, or the frame now constructed.”

In the fall of 1872, the defendant Parkus contracted with defendant Bundy to erect a brick building on said east lot, and on the sixteenth of October, under the direction of the defendant Bundy, entered upon said premises, tore the stairway down, dug a trench under where it had stood, and within three feet of said store, laid a foundation wall therein, and a brick wall on top, five feet high. This action was then commenced, and the defendants restrained by injunction from further acts.

Since then, said foundation wall has been removed, a new wall has been built four feet distant from the stone store, now forming the wall for the western end of a new brick building on said east lot; a new stairway has been constructed, four feet wide, with a platform fifteen feet long, four feet wide for seven feet, and three feet wide for eight feet; which said stairway is covered and now used by both parties to reach the second stories of their respective buildings.

The plaintiff, by virtue of his deed from Burton, took a fee in the stone store and lot, and a perpetual easement or right of way, to his second story, over the said stairway on his grantor’s adjoining lot. The act of the defendants, in tearing down this stairway and erecting a wall within the right of way, was an injury to the estate, entitling plaintiff to nominal damages, notwithstanding the second story of the building was at the time under lease and occupation of a tenant. The action was also properly an equity action, as its principal feature was to restrain defendants from a further threatened injury. The action was also properly brought by the owner of the easement threatened with injury.

The grant of the easement did not define or declare its width: the law, therefore, implies a reasonable width, and the judge who tried the cause found and adjudged four feet a reasonable width. The defendants excepted to this finding, but did not press the point on the ai'gument. The width fixed by the court below is not •unreasonable; it was the width of the stairway at the time of the grant, and a practical location of the grant.

In the grant of said easement, no mention was made of a platform or landing; yet one of reasonable length and width would be implied and attach from necessity. Without a proper landing the easement would not be complete, nor yield the benefits intended and expected by the parties thereto. The Special Term held six and a half feet a reasonable width for a platform; but, under the peculiar features of this case, the allowance was too liberal to the plaintiff. The way for these stairs and platform is all taken from the east lot, a village lot, over the entire front of which it would eventually be desirable to build; and it would not be desirable to have in a wall a jog of thirty inches; it could not have been intended or contemplated by the parties to the grant, as the purpose was merely to give a way to reach the second story of the building conveyed. Considering the purpose, and all the facts and surroundings, a landing of four feet in width for a reasonable length, was all that could be reasonably claimed or allowed under the grant.

There is no doubt that the owner of the east lot had the right to build up to the building on the west lot and cover over the stairway and landing, if done with proper care and in a proper manner, respecting plaintiff’s rights.

The plaintiff’s right in said stairway and platform is merely that of way; not exclusive, but in common with the defendant Bundy, her agents, servants, tenants and grantees.

The judgment as entered must be amended and so modified as to give the plaintiff the right in a stairway four feet wide, with a platform at the end thereof fifteen feet long, four feet in width for seven feet, and three feet wide the other eight feet, with the right to use and maintain the same in person or by his agents, servants, tenants or grantees; and restraining the defendants perpetually, and all claiming under them or either of them, from hereafter inter-meddling with said stairway and platform, except to use in common and repair the same; and from preventing or interfering with such use by the plaintiff, his agents, servants and grantees, as a right of way in common with said defendant and those claiming under him. In other respects the judgment should be affirmed, but without costs to either party.

Present — LeaeNbd, P. J., Boakdman and James, JJ.

Ordered accordingly.


author: LEARNED, P. J.:

text:
    WILLIAM HOWELL and another, Plaintiffs in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
    Jury— verdict — pow&r of court to direct, in m'vminal cases.

      In criminal cases, where the accused has plead not guilty, the court has no power to direct the jury to bring in a verdict of guilty.

      United States v. Anthony (11 Blatch., 200) criticised.
    Weit of error to the Court of Sessions of the county of Fulton, to review the conviction of the plaintiffs in error of a violation of the excise law.
    The plaintiffs in error were indicted for a misdemeanor, and were brought to trial. After the evidence was closed, and the court had charged the jury, one of the jurors stated to the court that one of them thought that they had better retire. The court stated that the evidence was uncontradicted and undisputed, and that they would not allow the jury to retire. And they directed the jury to find the defendants (plaintiffs in error) guilty. To this their counsel excepted. The jury then found the defendants guilty, and the court sentenced them.

      II. JB. Oushney, for the plaintiffs in error.

      II. F. Smith, for the defendants in error.
   LEARNED, P. J.:

We think it was error for the court to direct a verdict of guilty. The defendants were entitled to a jury trial. And it is for the public interest that this right should be preserved. (The People v. Cancemi, 18 N. Y., 128.) The right to trial by a j ury means that the persons indicted are entitled to have the question of their guilt passed upon by the jury. It does not mean that the court is to decide that question, and the jury are only to utter the verdict of the court. It is true that the court may direct, and in a proper case ought to direct, a verdict of acquittal. (The People v. Bennett, 49 N. Y., 137; Duffy v. The People, 26 id., 588.) Of this the prisoner cannot complain. And the State has no right to put him to the peril of a trial, when its own court says that there is no sufficient evidence of his guilt. But to direct his acquittal is one thing, to direct his conviction is another; as any prisoner on trial would know. Thus it is said that the court may direct a verdict of acquittal, because, if the defendant were convicted by the jury, the court would have the power to grant a new trial, if the verdict were against evidence. (United States v. Fullerton, 7 Blatch. C. C., 177.) But if the jury should acquit, could the court grant the people a new trial, and put the prisoner in jeopardy again ? The very power, then, of granting a new trial, which, by implication, is said to authorize a direction to acquit, does not exist in the case of an acquittal by a jury. No implication, then, authorizes a direction to convict. '

So it is said that the court is the judge of the law, and the jury of the fact; that is, it is the duty of the jury “to be governed by the instructions of the court as to all legal questions involved in such [general] verdicts. They have the power to do otherwise, but the exercise of such power cannot be regarded as rightful, although the law has provided no means, in criminal cases, of reviewing their decisions, whether of law or fact.” (Duffy v. People, ut supra.)

In the present case, the court might have said to the jury : If you find that the prisoners did so and so, it will be your duty to convict them. But even then, if the jury had disregarded such instructions, and had acquitted, that would have been a matter for thier consciences. It is better that, in some rare case, a jury should violate their duty and acquit a prisoner, unquestionably guilty, than that the power to compel a conviction should be in the hands of the court. Thus, even before the passage of the libel bill, and when the courts were asserting, in the strongest manner, their right to decide questions of law in criminal prosecutions for libel, Lord MaNSKibld said, in the Dean of Si. AsapKs (Jase: “It is the duty of the judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between Grod and their own consciences.” (21 State Trials, 1040.) Such language could not have been used, if that great judge had supposed that the court could not only tell the jury how to do right, but could compel them to render such verdict as the court chose.

The present case was undoubtedly plain on the evidence. But it is in just such plain cases that danger to the system of trial by jury may creep in. If the defendants had been indicted for murder, no matter how plain the evidence, no court would have dared to direct a verdict of guilty, while a plea of not guilty stood on the record. The defendants had the same rights in this case.

A distinction was suggested between offenses in which intent is a necessary ingredient, and those in which it is not. There is no such limitation of the right of trial by jury. Again, in a certain sense, intent enters into all offenses; not, perhaps, intent to do wrong, but, at least, an intent to do the act. The only case relied upon to sustain this conviction, is that of The United States v. Anthony (11 Blatch., 200). The real object of that trial was rather to obtain an authoritative decision on the question involved, than to punish the defendant. The fine imposed was small, and there was no commitment for non-payment. Still it is to be regretted that the learned judge who tried the case did not content himself with declaring the law as to the right to vote. In assuming the power to direct a verdict of guilty, we think he violated a well established and most valuable rule of law. Unfortunately there was no right of appeal. The action of the learned j udge, however, was criticised in an able report of Senator Carpenter, made to the senate of the United States (Documents 1874, vol. 2, No. 472); and by the judiciary committee of the house. (Documents 1874, vol. 8, No. 608.) The only arguments in support of the court in that case are, that the court is the judge of the law ; and that it may direct an acquittal. These arguments have been already considered. No precedent is found sustaining that decision. The contrary is assumed in the able examination as to the right of juries, in the State v. Croteau (23 Vt., 14), and seems to follow from the decisions in Commonwealth v. Porter (10 Metc., 263), and Commonwealth v. White (id., 14).

Courts once claimed the, right to punish jurors for wrong ver- ■ diets. That no sucli right exists was settled in the famous Bush-nelVs Case (Vaughan, 135). And it is well said in that old case: “For if the judge from the evidence shall by his own judgment first resolve, upon any trial, what the fact is, and so, knowing the fact, shall then resolve what the law is and order the jury penally to find accordingly, what either necessary or convenient use can be fancied of juries, or to continue trials by them at all?”

So Chief Justice Shaw, in The Commonwealth v. Porter (ut supra), after saying that a jury may render a general verdict, adds, that if “ the court should express or intimate any opinion upon any such question of fact, it is within the legitimate province of the jury to revise, reconsider and decide, contrary to such opinion, if in their judgment it is not correct, and warranted by the evidence.”

It follows, therefore, that no court has power to direct a verdict of guilty.

We think the action of the court below was erroneous in law, and dangerous as a precedent.

The judgment and conviction should be reversed, and a new trial granted.

Present — LearNed, P. J., BoardmaN and Bocees, JJ.

Ordered accordingly.-


author: Learned, P. J.:

text:
    THE BANK OF HAVANA, Respondent, v. LEWIS W. MOORE and another, Appellants.

      Order of arrest— defeats in copies of papers served — effect of— Renewal of motion — when lea/oe must be obtained.

    Where the papers upon which an order of arrest is granted are perfect, the fact that the copies which are served upon the defendant are defective, is not a ground for setting aside the order.

      Barker v. Cook (40 Barb., 254) followed.
    A motion once denied cannot be renewed as a matter of right, except upon a different stale of facts arising subsequent to the decision of the former motion.
    Appeal from an order made at the Special Term on July 27th, 1875, denying a motion to vacate an order of arrest, and from an order made on the 24th day of August, 1875, denying a motion for leave to renew this motion and to vacate the order of arrest.
    The order was granted upon a vei-ified complaint and affidavits. The copy of the complaint served upon the defendant was defective in that the affidavit was not signed and that there was no jurat. The copy of the order of arrest served was defective in not stating the sum in which the defendant was to be held to bail.

      8. 0. Keeler, for the plaintiff.

      Jno. J. Van Allen, for the defendants.
   Learned, P. J.:

The imperfections in the copy of the order of arrest, and of the' affidavits on which it was granted, are not grounds for setting the order aside. (Barker v. Cook, 40 Barb., 254.) The order was granted under subdivision 5, section 179, on the ground that the defendant had removed or disposed of his property, or was about to do so, with intent to defraud his creditors. Without stating all the affidavits in detail, it is enough to say that Moore stated the claim of S. D. Wood against the firm to be unjust, and made a proposition to the plaintiff to purchase the firm property; that when this was declined he said he would take care of himself; that he afterward assigned a great part of the firm property to Wood, who is in possession ; that he himself has since received $2,000 at least, and bas not paid any creditors therewith; that he was intending to go to California. There is, w.e think, no reason to reverse the order of July twenty-seventh, refusing to vacate the order of arrest. It must be affirmed, with costs and printing disbursements. • This disposes of the first appeal.

An appeal is brought from another order, made under the following circumstances: The defendant moved, on the 27 th day of July, 1875, to vacate the order of arrest. This motion was made on notice, and only upon the affidavits upon which the order of arrest was granted ; and it was denied. That is the order from which the first appeal was taken. The order of July twenty-seventh, refusing to vacate, contained no leave to renew the motion. Subsequently, the defendant prepared affidavits on his behalf, tending to deny the alleged fraud, and upon these affidavits and on notice he moved, on the twenty-fourth of August, to vacate the order of arrest: First, on the ground that it was not properly served; second, that a proper copy was not served; third, on the merits; and to discharge from arrest; and that the hearing of the motion theretofore had, in July, be reopened and reheard. When this motion was brought on to be heard, on the twenty-fourth of August, an affidavit was read on the part of the plaintiff, showing that when the motion of July twenty-seventh had been decided, the defendant at that time applied to the judge who decided it, to have such decision made without prejudice to a renewal of the motion ; and that the judge refused such application. The motion of the twenty-fourth of August was thereupon denied, on the ground that a similar motion had been absolutely denied, on the twenty-seventh of July, without leave to renew. From the order denying this motion the defendant appeals.

The motion was properly denied. The defendant, instead of merely asking leave to renew his former motion, gave notice of a motion to vacate on two technical grounds, the same upon which he had unsuccessfully moved on the twenty-seventh of July. He also moved on the merits, without having obtained permission to do so; and the former motion had also been made upon the merits.

The proper practice in such matters is well stated in Belmont v. Erie Railway Co. (52 Barb., 637) and Smith v. Spalding (3 Robt., 615).

The motion was not made upon a different state of facts whieh a/rose subsequently to the decision of the former motion, and, therefore, it could not be made as a matter of right. It was therefore necessary for the defendant to obtain leave to renew.

The court sometimes denies a motion without prejudice. This is merely done when it is apparent to the court that, for some reason, the full merits have not been heard, and that it is very proper that the party should be allowed to move again. But even when this privilege is not given, the court may subsequently, for good cause •shown, permit a renewal of the motion. This, however, is a question of discretion, which should be addressed to the court below.

We think that the second order appealed from should be affirmed, with costs and printing disbursements. As, however, the matter affects personal liberty, and as there seems to have been some misapprehension, the defendant, on paying the costs of -the order of July twenty-seventh, and the costs and disbursements of these two appeals, may apply, on affidavits and notice, to the Special Term, for leave to renew his motion to vacate the order of arrest on the merits; these costs and disbursements to be paid within ten days after service of a copy of this order. Nothing is hereby intimated upon the question, whether such leave ought or ought not to be granted.

Present — LeaiíNed, P. J., BoaedmaN and James, JJ.

Ordered accordingly.


text:
    THE PEOPLE OF THE STATE OF NEW YORK v. WILLIAM L. LEARNED, Justice of the Supreme Court.

      Commission to imestigate canals —poweo' of legislature to create by resolution — chap. 91 of 1875 —power of commission to cmnpel production of boohs and papers.

    In March, 1875, a commission was created, by concurrent resolution of senate and assembly, to investigate the affairs of the canals of this State. Upon the hearing of an application for the discharge of a person committed by the commission for contempt in refusing to produce before it certain books and papers, it was insisted that such a commission could only be created by bill enacted by both branches of the legislature and signed by the governor. Reid, that there was no clause in the Constitution expressly prohibiting the creation of a commission by concurrent resolution; and that, when not expressly prohibited, the legislative power was unrestricted and unlimited.
    The act (chapter 91, Laws of 1875) provided, that in case of the refusal of a witness to obey the subpoena, he should be brought before the commission by attachment, and that “ the like proceedings shall thereupon be had as if such commission was a court of record and such witness had been duly subpoenaed to attend before it.” Held (1), that the act was not in conflict with the constitutional provision declaring that no person shall be deprived of life, liberty or property without due process of law; (2), that the act was not in conflict with section 17 of article 3 of amended Constitution, providing that no act shall be passed which shall enact that any existing law shall be deemed a part of or applicable to the said act, except by inserting it therein; (3), that the said commission was empowered to issue subpoenas to enforce the attendance of witnesses and to compel the production of books and papers, and to adjudge any person willfully refusing to produce such books or papers guilty of contempt, and to commit him therefor.
    This clause of the Constitution, last mentioned, should receive a strict construction. (Per James, J.)
    This was a writ of certiorari issued under the provisions of the Revised Statutes (2 R. S., 573, § 69), to review the decision of the defendant, Mr. Justice LeasNed, discharging Henry D. Deni-son, brought before him on habeas corpus.

    By the return to that writ of habeas corpus made by the sheriff of the county of Albany, it appeared that Denison was held in by custody under and by virtue of the following commitment, issued the Canal Investigating Commission, under chapter 91, Laws of 1875: •

      The People of the State of New York to the Sheriff of the County of Albcmy, greeting:

    "Whereas, in a certain investigation of the affairs of the canals of the State of New York pending before a commission appointed to investigate the affairs of the canals of the State, duly appointed under and by virtue of the authority of the legislature of the State of New York, one Henry D. Denison had two certain contracts with the people of the State of New York for the performance of work upon the canals of the State, one of said- contracts being for the performance of work, between Port Schuyler and the lower Mohawk aqueduct, and the other of said contracts being for the performance of work at Htica, from the eastern limits of the city of Utica to the junction of the Chenango canal. And, whereas/the said commission was investigating the subject of the said contracts of the said Henry D. Denison. And, whereas, the said Henry D. Denison had been duly subpoenaed to attend before such commission, to give such information touching the subject of the inquiry of said commission as might be in his possession, and had been further ordered, by said subpoena, to bring with him before said commission all his books and papers relative to his contracts with the State to be performed between Port Schuyler and the lower Mohawk aqueduct, and at Utica, from the eastern limits of the city of Utica to the junction of the Chenango canal, and had been paid his fees upon said subpoena.
    And, whereas, the said Iienry D. Denison did appear before said commission, said commission being then duly organized and holding a regular meeting to investigate the affairs of the canals of the State, on the 14th day of July, 1875, and did then and there admit and declare that he had in his possession books and papers relative to his said contracts with the State for work to be performed between Port Schuyler and the lower Mohawk aqueduct, and at Utica, from the eastern limits of the city to the junction of the Chenango canal, and did then and there, in the immediate presence of said commission, willfully refuse to produce said books before said'commission, and to obey such subpoena.
    And, whereas, the said Henry D. Denison has thus been guilty •of willful disobedience of process lawfully issued by said commission to investigate the affairs of the canals of the State, and of contemptuous behavior in the immediate view and presence of said commission during its sitting, tending directly to interrupt its proceedings and impair the respect due to its authority.
    And, whereas, the aforesaid misconduct of the said Henry D. Denison is calculated to impair or defeat the rights of the State in said investigation.
    And, whereas, the said Henry D. Denison, being now here before this commission, has, for the causes aforesaid, been adjudged guilty of contempt of thé said commission, now, therefore, you are hereby ordered to take the body of the said Henry D. Denison and commit him to the common jail of the county of Albany, and there keep him imprisoned until he shall have consented to produce and shall produce to and before this commission all his books and papers relative to contracts with the State for work to be performed between Port Schuyler and the lower Mohawk aqueduct, and at Utica, from the eastern limits of the city to the junction of the Chenango canal, not exceeding thirty days.
    Witness the hands of this commission, affixed hereto at the present sitting of this commission appointed to investigate the affairs of the canals of the State,'at the capital, in the city of Albany, the 14th day of July, 1875. .
    (Signed) • JOHN BIGELOW,
    D. MAGONE,
    A. E. ORE,
    JOHN D. YAN BUREN, Je.,

      Commissioners.

    The judge held that, conceding that the canal commission was given power to compel the attendance of witnesses and might compel such attendance, it could not compel them to answer when attending or to produce such books and papers.

      Samuel Rand, for the appellant.
    The act of 1875 gives the Canal Investigating Commission explicit power to subpoena persons not only to appear before it, but to testify and to produce books and papers, and on their failure to obey this subpoena in any respect, whether by-failing to attend or to testify when attending, or to produce books and papers, the commission are authorized to proceed to compel them in the same manner as a court of record, and the judge erred in holding otherwise. (Laws of 1875, pp. 80, 81.) The claim that the law of 1875 gave to the commission power to compel the “witness” to attend, but if the witness on attendance refused to open his mouth or to produce books called for, they must acquiesce in his silence and contumacy, and are powerless to compel him to obey the subpoena, is too absurd a construction to -be adopted unless it is the plain and unmistakable meaning of the language. The theory that because the commission is to issue an attachment to bring the witness before them, that therefore when he is before them, they can do nothing, is directly at war with the act. The act expressly says, that in ease of failure to “ obey the subpoena,” the commission shall have power, in the first pla’ce, to issue an attachment to bring him before them, and then to proceed as a court of record could, in case of failure to obey a subpoena. It is making a part of the statute the whole, to say that if he is before them, they can do nothing, because if not before them they woiild have to attach and get him before them before they could do any thing. When the disobedience consists in non-attendance as well as failure to produce books, they must attach him as a preliminary to dealing with him. When the disobedience is in refusing to produce books, that attachment is not a necessary preliminary, he being already before them, and they are to deal with him, as a court of record would, without it. The plain meaning of a statute is not to be defeated by clinging to the closest literal interpretation of the letter. A thing within the intention is within the statute, even though not within the letter. (Olíase v. Ff. Y. O. R. R., 26 N. Y., 523; Dwarr. on Stat., 562; Weed v.. Tucker, 19 N. Y., 422 ; Turnpike Oo. v. McKean, 6 Hill, 616; People v. N. Y. O. R. R., 3 Kern., 78; Dresser v. Brooks, 3 Barb., 429 ; James v. Patten, 2 Seld., 9.) The suggestion that the title of the act controls, is erroneous. It is settled that it does not. (U. 8. v. Fisher, 2 Craneh, 386 ; U. 8. v. Palmer, 3 Wheat., 610; People v. MeOann, 16 N. Y., 58 ; Jackson v. Gilchrist, 15 Johns., 116; Constantine v. Van Winkle, 6 Hill, 177.) It is no valid objection that the commission was authorized by a joint resolution of the legislature, and not by act. ’ There is no constitutional prohibition against this method of appointing officers. (.People v. K. Y. C. R. R., 34 Barb., 123; S. C., 24 N. Y., 485 ; People v. Fisher, 24 Wend., 215 ; Grant v. Courier, 24 Barb., 232.) Except as limited by the express restrictions of the State Constitution, the State legislature is unrestricted in power, and as omnipotent, in a legal sense, as the British parliament. The legislature possesses the whole power of the people, subject to the Constitution. The rule is that the legislative power is only restrained by the Constitution, not conferred by it. In this respect State legislatures contrast with congress. (ANDbews, J., People v. Dayton, 55 N. Y., 380 ; Leggett v. Hunter, 19 id., 445, and cases cited; Ba/nk of Chenango v. Brown, 26 id., 467; Oath-cart v. Fire Dept., id., 529; People v. Morrell', 21 Wend., 563; Butler v. Palmer, 1 Hill, 324; People v. Rodgers, 13 Cal., 159; Bushndl v. Beloit, 10 Wis., 195 ; Page v. Allen, 58 Penn., 338; Comm. v. Drury, 15 Gratt. [Va.], 1.) The power, therefore, immemorially exercised, both by the State and national- legislatures and by parliament, of expressing their will by resolution, especially in reference to the designation of its officers, is clearly mtra vires, unless the petitioner can affirmatively show some express constitutional provision forbidding it, and on this point the burden is on him. (People v. Dayton, 55 N. Y., 368.) This method of naming officers and commissioners has been constantly used by the legislature without question by any department of the government, not only before, but since the Constitution of 1846, and this alone is entitled to controlling weight on the question of its constitutionality. (People v. Dayton, 55 N. Y., 367, 378; Story on Const., § 408 ; Cooley on Const. Limit., 67, and cases there cited. As instances of legislative usage, reference is made to the following’ joint resolutions: Laws of 1848, p. 579, resolution appointing Code commission; Laws of 1849, p. 729, authorizing secretary, of State to appoint three persons to investigate blind institution; Laws of 1849, p. 737, authorizing government to appoint commissioners to mature plans for agricultural college; Laws of 1852, p. 737, authorizing legislative committee to investigate canal affairs, and send for persons and papers; Laws of 1853, p. 1260, authorizing governor to appoint two commissioners to codify military laws; Laws of 1857, p. 795, appointing committee to examine tunnel project; Laws of 1860, p. 1079, appointing commission to examine affairs of prisons; Laws of 1861, appointing peace commission; Laws of 1862, p. 904; Laws of 1864, 1865, appointing stenographer to legislature; Laws of 1865, appointing commissioners to settle with Banks Bros.; Laws of 1866, p. 2131, authorizing prison association to appoint a commission to examine, on oath, management of prisons; Laws of 1867, p. 2495, appointing joint committee to investigate, also, inebriate asylum; Laws of 1866, p. 2501, authorizing investigation of savings banks; Laws of 1870, p. 2149, authorizing governor to appoint • three persons to revise assessment laws; Laws of 1870, p. 2180, authorizing governor to appoint commission to investigate convict labor; Laws of 1871, authorizing governor to appoint commission to extinguish Indian title; Laws of 1871, p. 2183, authorizing governor to appoint agent to collect claims against United States; Laws of 1871, p. 2189, governor to appoint part of centennial commission; Laws of 1873, p. 1389; Laws of 1874, p. 940, both authorizing governor to appoint commissions. In addition to these may be mentioned joint resolutions, as the .expression of the will of the legislature as to constitutional amendments, filling vacancies in office of comptroller, the election of United States senators, of superintendent of public instruction, instructions to members of congress, 'and various other matters.) The argument that the clause in the bill of rights (Const., art. 1, § 6), declaring that no person should be held to answer for a capital or otherwise infamous crime unless on presentment or indictment, and that no person should be deprived of life, liberty or property, without due process of law, goes not to the power of the legislature to give this commission power to enforce obedience to subpoena, or to treat disobedience as a contempt, but to the whole power to punish contempt summarily by any body; or, in other words, denies that summary imprisonment for refusal to testify is “ due process of law.” But this question has long since been settled otherwise. (Oswald’s Case, 1 Dal., 319 ; Hollingsworth v. Duane, J. B. Wall., IT ; State v. Doty, 32 N. J. Law, 403; He Gooper, 32 Term., 253; Ex parte Grace, 12 Iowa, 208 ; Bradley v. Yeaaie, 47 Me., 85.) The concession that legislatures have power to compel witnesses to testify, and to punish them for refusal, is sufficient for-our purpose. (1 R. S., 154, § 13.) For the legislature may, wherever it can or may delegate a duty, delegate the powers accompanying it. (Bloodgood v. Mo. emd Hudson H. H., 18 Wend., 9; Buff. H. H. Go. v. Brainard, 5 Seld., 100.) A more decisive answer to the petitioner’s objection is, that the legislature may be considered to 'have made the commission a court of record, as to the investigation, the subpoenaing of witnesses, and the compelling them to testify. (Laws of 1875, chap. 91; Case of • Twelve Oommitnnents, 19 Abb., 394; Briggs v. Maekellar, 2 id., 61; Groesevelt v. Bunvell, 1 Comyn, 76.) That the legislature has the power thus to make a court of record, or give an officer power to act as a court, will not be disputed. (Brandon v. Avery, 22 N. Y., 469; Hayner v. James, 17 id., 316; Doubleday v. Heath, ■ 16 id., 80; Int. Bank v. Bradley, 19 id., 245.) There is nothing in this claim of the constitutional right of a witness to withhold private papers from the commission, for these are riot shown to be private papers; but there is no such constitutional right. (See the whole subject thoroughly discussed in Burnham v. Morrissey, 14 Gray [Mass.], 226, 240.) As to tbe witness being exempt from giving evidence or furnishing books or papers tending to criminate himself, it is enough to say that he made no such pretense, and raised no such objection. It does not at all appear that the books would criminate him, and that must be shown. (Hoab, J., Burnham v. Morrissey, 14 Gray, supra j Amey v. Long, 9 East, 473 ; Byass v. Sullivan, 21 How., 50, 53 ; Bull v. Loveland, 10 Pick., 9; 2 Phil. Ev. [Edw. ed.], 814, 816; Doe v. Egrement, 2 M. & R., 386.) Subpoena duces tecum is the proper process, and is so expressly made by the statute of 1875 (chap. 91), to obtain the production of books and papers. (Davenbagle v. McEmnie, 5 Cow., 27; Ailcin v. Ma/rtm, 11 Paige, 499 ; Cook v. Nash, 9 Bing., 723; Terry v. Bubel, 12 L. 0., 147; MitchelVs Case, 12 Abb., 249; Bonestell v. L/ynde, 8 How., 226; Lane v. Cole, 12 Barb., 680.) And refusal to produce them is as much a contempt, and to be punished as such, as a refusal to answer or attend. {MitchelVs Case, 12 Abb., 249; Begina v. Lla/n-faethly, 2 El. & Bl., 940 ; Burnham v. Morrissey, 14 Gray, supra.) The requirement of the subpoena was sufficiently definite. All that is necessary is that the witness should know what is wanted. {Low v. Qraydon, 14 Abb., 443.) Party may seal up parts of books not relating to the contracts. {Titus v. Cortelyou, 1 Barb., 449; Burn-ham v. Morrissey, supra.) The relevancy or materiality of the evidence cannot be inquired of on habeas corpus. {People v. Sheriff, 29 Barb., 622; 2 R. S., 568, § 42.) It was not an indispensable preliminary to the proceeding, that the commission should issue an attachment to bring the petitioner before them. (Black. Com. [4th book], 28 ; Bespublica v. Oswald, 1 Dal., 328.)

      Wm. C. Buyer and Frank Hiscock, for the relator.
    The legislature have no constitutional power to pass any law under which “ a citizen may be deprived of life, liberty or property without due process of law.” (Const., art. 1, § 6; Westervelt v. Gregg, 12 N. Y., 209;. Taylor v. Porter, 4 Hill, 145; Wynehamer v. The People, 13 N. Y,, 393 ; Bockwell v. Nea/rmg, 35 id., 308 ; Yates v. Lansing, 9 Johns., 416.) The right for punishing for contempt by summary conviction is inherent in all courts of justice and legislative assemblies, and is essential for their protection and existence. It is a branch of the common law adopted and sanctioned by our State Constitution. (1 Kent’s Com., 236-300; Mitchell's Case, 12 Abb., 249.) The respondent must, in order to escape the effect of this constitutional guarantee, show that the proceeding of this commission was according to some mode in existence at the time of the adoption of the Constitution. It cannot be claimed that the commission are in any sense a legislative body, or that they enjoy any of the powers of such bodies by delegation. It follows, then, that unless the claimed and exercised powers pertain to them as a court of justice, they have no legal existence. .If the powers claimed to belong to this commission are the proper attributes of a court, the legislature have exceeded their powers in its creation. The legislature have no power to create any court except one of local inferior jurisdiction. (Const., art. 6, § 19.) The commission should have been created by bill or law, and not by joint resolution. (New Const., § 14, art 3; Cushing’s Law and Practice, §§ 707, 798, 799, 2403.) The Constitution prohibits legislation by resolution, and requires the assent of the executive to all laws not passed over his veto by constitutional forms. (Art. 4, '§ 9.) It is claimed that the act, chapter 91 of the Laws of 1875, has given vitality to an otherwise void act of the legislature by its recognition thereof. It is submitted that the' constitutional .provision, article 3, section 17, would prohibit the legislature from giving effect to this void resolution, even if they had expressed their intention explicitly in the subsequent act; much less could it be done by its mere recognition. (3 City Hall Rec., 113.) A discovery of books and papers has never been heretofore ordered in any of the following cases: 1st. When it would expose the party to a criminal prosécution. 2d. When discovery would or might involve the party making it in a penalty or forfeiture. 3d. When it would render the party making it infamous. (.McKellar v. Briggs, 2 Abb. Pr., 61; Bailey v. Beam, 5 Barb., 297; Leggett v. Porthy, 2 Paige, 599 ; McIntyre v. Monci-us, 16 Johns., 593; Marsh v. Bmison, 9 Paige, 480; 1 Mad. Ch., 214; 2 id., 320; 4 Johns. Ch., 415; 1 id., 367; 2 Barb. Ch., 301; 4 Paige, 639; 10 id., 583.) The same principle has been repeatedly decided by the courts of the United States. {Atwell v. Fennet, 2 Blatch., 39; Stewart v. Brocha, 4' McLean, 563; U. S. v. Twenty-eight Packages, (xilpin, .306; Frinck v.
      Bikeman, 2 Blatch., 301; Ocean Ins. Co. v. Fields, 2 Story 0. Ct., 59; People v. Mather,.4 Wend., 229; People v. Hackley, -24 N. Y., 82; PLenry y. Bank of Salina, 5 Hill, 623.)
   JaMes, J.:

The return to the writ of certiora/ri shows that one Denison was brought before a justice of this court on habeas corpus issued to the sheriff of Albany county. In his return to the writ of habeas corpus, said sheriff sets forth that said Denison was in his custody by virtue of a warrant of commitment for contempt, issued by the Canal Investigating Commission; that said warrant recited the creation of such commission, the appointment of its members, the matters pending before it, that said Denison had been subpoenaed to attend before it to testify, and to bring with him certain books and papers relating to certain specified’ contracts with the State; that on the 14th day of July, 1875, said commission being duly organized as a board, and holding a regular meeting for purposes of investigation, etc., said Denison appeared before it in answer to said subpoena, and did then and there admit that he had present with him the books and papers relating to the contracts with the State then under investigation, and did then and there in the presence of said commission, willfully refuse to produce said books and papers, and to obey the subpoena, issued to and served upon him; whereupon said Denison was adjudged guilty of contempt, and ordered to be punished.

After a hearing on the return to the habeas corpus, the said Denison was discharged from the custody of said sheriff, the learned justice holding, that although the commission had power to enforce the attendance of witnesses, it had no power to compel a witness to answer, or to produce books and papers, or to punish him for refusal.

This investigating commission was created in March, 1875, by a concurrent resolution of the senate and assembly of this State; the members thereof were duly appointed by the governor with the advice and consent of the senate. Its duty, as defined by the resolution, was to investigate the affairs of the canals of this State, etc., and power was given it to compel the attendance of witnesses, and require the production before it of any books or papers in the custody or possession of any witness touching the subject of such investigation, etc.

This resolution and the appointments under it were subsequently recognized and ratified by the legislature (ehap. 91, Laws of 1875, page 80), which also gave to the commission authority to issue subpoenas, compel the attendance of witnesses and the production of books and papers before it, and, on failure of any witness to obey its mandate, power to issue attachments with the like proceedings as courts of record.

In this case Denison had been properly subpoenaed to appear before said commission, and to produce before it certain books and papers. He did so appear; he brought with him said books and papers, but he refused to produce them, without giving any reason or making any excuse.

Upon the argument it was claimed that the refusal was justified, because the commission had no legal existence; no legal power to act. That it could not be legally created by concurrent resolution, and that all its doings were void. That s.uch a tribunal could only be created by bill, enacted by both branches of the legislature, and signed by the governor. Certain clauses of the Constitution were cited in support of said objections. It is not necessary to discuss those clauses in detail. It is sufficient to say that there is no clause in the Constitution expressly prohibiting the creation of a commission by .concurrent resolution (People v. New York Central Railroad Company, 24 N. Y., 485); and where not expressly prohibited by the Constitution, the legislative power is unrestricted and unlimited. (People v. Dayton, 55 N. Y., 367; Leggett v. Hunter, 19 id., 445.)

Appointing commissions for various purposes by concurrent resolution, has been practiced by both State and national legislatures more or less from the organization of this government. It has been repeatedly.done in this State since the adoption of the constitution of 1846, as the Session Laws of the State will show. This’ fact alone would seem entitled to a controlling weight on the question of constitutionality. (People v. Dayton, supra; Story on the Const., § 408 ; Cooley on Const., 67.)

But conceding the concurrent resolution unauthorized, the legislature has, by bill and enactment, recognized the commission as a legal entity, validated its creation, and vested it with all the powers exercised in this proceeding. (Laws of 1875, chap. 91, p. 80.)

But it is claimed this act is also unconstitutional. First. As in conflict with that clause of the Constitution which declares that no person shall be deprived of life, liberty or property without due process of law.” This provision has no more application to this act than it has to any other act requiring witnesses to answer, and authorizing their punishment if they refuse. In such cases the proceedings to adjudicate, and to impose sentence, if adjudged guilty, is due process of law. Second. As in violation of article 3, section 17, a new clause which came into the Constitution in January, 1875, which declares that: “No act shall be passed which shall provide that any existing law, or part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law shall be applicable to it, except by inserting it.” The act in question is not obnoxious to said clause of the constitution in the sense in which it is used in that instrument; the said act neither comes within the letter or spirit of the inhibition. ■ And besides, this, clause should receive a strict construction, and if said act is not strictly within the mischief sought to be provided against by the Constitution, it should be held as not within the inhibition.

I am, therefore, of the opinion that the commission was lawfully created; that it was vested with authority to issue subpoenas, to enforce the attendance of witnesses, and to compel the production of boohs and papers ; and in case of disobedience or refusal, it was authorized to proceed as if it were a court of record. It is true the language of the act does not say, in express words, the commission may punish,. but that power is fairly to be implied from its whole scope and purpose.

In this ease the witness was guilty of a willful disobedience; his refusal was without explanation or excuse, and the commission very properly adjudged him guilty of contempt, and awarded a warrant of commitment against him. He should have been remanded.

' The order of the justice should be reversed, and an order entered directing that the relator be remanded to the custody of the sheriff of Albany county, with costs against the relator.

Present- — JaMes and BoabdMAN, JJ.

Ordered accordingly.


author: Bookies, J.:

text:
    GEORGE CLARK, Appellant, v. ISAAC B. WELLINGTON, Respondent.

      Bhm't summons — affidavit—when sufficient.

    Where a short summons was issued by a justice of the peace upon an affidavit of the plaintiff, stating that he had, as he believed, a good cause of action arising on contract against the defendant, “upon which, according to the provisions of the thirty-first section of the act to abolish imprisonment for debt, and to punish fraudulent debtors, no warrant” could issue, and that both plaintiff and defendant were non-residents of the county: held, that the affidavit was sufficient and the summons properly issued.

    Appeal from a judgment of the County Court of Greene county, reversing a judgment in favor of the plaintiff, recovered in a justice’s court..
    A short summons was issued in this action upon the following affidavit:
    Geeene County, ss.

    George Clark being duly sworn, deposes and says, that he has, as he believes, a good cause of action arising on contract against Isaac B. Wellington, who is a resident of the city of New York, upon which, according to the provisions of the thirty-first section of the act'to abolish imprisonment for debt and to punish fraudulent debtors, no warrant can issue against the said Isaac B. Wellington, and that the said George Clark is a resident of the county of Otsego, and not of the said county of Greene, and this deponent prays a short summons against the said Isaac B. Wellington, on giving security according to the statute.
    GEORGE CLARK.
    William Salisbuey,

      Justice of the Peace.

      The defendant claims that the affidavit was insufficient, on the ground that it did not state facts and circumstances, but merely conclusions of the deponent.

      King dh Hallock, for the appellant.

      Jas B. Olney, for the respondent.'

       See Wende v. Bradley, ante, p. 513. — [Rep.

   Bookies, J.:

The plaintiff’s affidavit contained, as we think, all that was necessary to obtain a short summons. It stated that he had, as he believed, a good cause of action against the defendant arising on contract, “ upon which, according to' the provisions of the thirty-first section of the act to abolish imprisonment for debt and to punish fraudulent debtors, no warrant could issue ; ” and further, that both plaintiff and defendant were non-residents of the county. It is conceded that all requisite formalities were observed to‘authorize the proceeding by short process, in case it was sufficiently made to appear that the action, being on contract, was one for which no warrant could issue against the defendant. The point of objection is, that facts and circumstances should be stated in the affidavit showing that no warrant could issue. We are of the opinion that the general averment contained in the affidavit is sufficient, and is a compliance with the requirements of the statute. No warrant could issue for the cause of* action stated, unless' authorized by section 31 of the non-imprisonment act; and the affidavit averred, in terms, that according to the provisions of that section no warrant could issue in the case. On referring to the section cited, it would be seen in what cases a warrant might issue, and the affidavit averred that tlie plaintiff’s cause of action was not either of them. In this way it was made clearly to appear that no warrant could issue; hence the proceeding by short summons was well authorized. In the ease of Waters v. Whitamore (13 Barb., 634), there was no proof of non-residence, nor any proof that no warrant could legally issue; and all that was there decided was, that proof of those facts was requisite. So, in Morgan v. House (36 How., 326), there was no averment whatever, to the effect that no warrant could issue. These decisions have no application to the case at bar. Here we have the distinct averment of fact, that the ground authorizing the issuing of a warrant did not exist, in the statement that according to the provision of the thirty-first section of the,non-imprisonment act, no warrant could issue. This was equivalent to an -averment negativing the grounds stated in the act giving the right to proceed by warrant. Nor is this conclusion at all in conflict with the rule, that to obtain a warrant against the person, or an attachment against property, facts and circumstances must be set forth as a basis for judicial action.

The judgment of the County Court should be reversed, and that of the justice affirmed.

Present — LbaeNEd, P. J., Booties and BoaedmaN, JJ.

Ordered accordingly.


author: per Curiam.

text:
    MELANCTHON VANDERCOOK, Respondent, v. THE COHOES SAVINGS INSTITUTION and others, Appellants.

      Sale under decrree of foreclosure — when action cam, he lyrought to set aside- — when set aside on motion — right of subsequent• mortgagee to dema/nd an assignment of a prior mortgage.

    An action may be brougnt to set aside a sale made under a decree of foreclosure, when tbe sale has been fraudulently conducted to the prejudice of a party interested in the property, even though such party may have a concurrent remedy by motion. But where the proceedings are entirely regular and free from fraud, and the party is entitled to relief on some mere equity, his remedy is by motion in the action in which the proceedings were had, and not by action. (MaOotter v. Jag, 30 ÍT. Y., 80; Gould v. Mortimer, 26 How., 167; Smith v. The Am. Life Ins. Go., Clarke’s Ch. Cas., 307.)
    A party to an action brought to foreclose a mortgage, who desires to have the mortgaged premises sold in a particular order, should have a clause to that effect inserted in the decree; or, after the entry thereof, he should move for an order directing the referee as to the order in which the premises are to be sold; or he may, after the sale, move to set the same aside, in case the referee shall have disregarded any proper request made to him at the time thereof.
    To enable a subsequent mortgagee to compel the assignment to himself of a prior mortgage, there must be some equitable reason for it, and the mere fact that he is a subsequent mortgagee does not constitute such equitable reason. (Blls-worth v. Loalawood, 42 ÍT. Y., 89.)
    Appeal from an order denying a motion to dissolve a temporary injunction granted in this action, which was brought to set aside a sale of certain premises, under a decree of foreclosure, and to restrain all proceedings thereunder.

      Nathaniel G. Moak, for appellants. Ii. W. Peckham, for respondent.
   Opinion

per Curiam.

Present — Learned, P. J., Bocees and Boardman, JJ.

Order reversed with ten dollars costs and disbursements, and motion to dissolve injunction granted with ten dollars costs.


text:
    OCTAVIUS M. HAWLEY, Appellant, v. GEORGE W. DAVIS, Respondent.

      Off&r of judgment — right of plaintiff to proceed with trial aftm\ and hefoi'e the expiration of the ten days — Costs — trial fee.

    An issue of fact having been joined, in this action, and the case duly noticed for trial for a Circuit commencing June fourteenth, the defendant, on the ninth of June, served upon plaintiff's attorney an offer of judgment and a notice of withdrawal of answer. On the fifteenth of June plaintiff took an inquest and entered judgment for the amount claimed, with costs. Held (1), that the notice served by defendant must be treated as equivalent to an offer of judgment under section 385 of the Code; (2), that as the ten days within which the Code required the plaintiff to accept or reject the offer had not elapsed when the action was tried, the plaintiff was entitled to the fee allowed for the trial of an issue of fact.

      Pomeroy v. Hulin (7 How., 161) followed.
    Appeal from an order made at the Special Term, striking out the fee allowed for the trial of au issue of fact from a bill of costs taxed by the clerk of Broome county.

      SeoviU db De Witt, for appellant. . Isaac 8. Newton, for respondent.
   Opinion

per Curiam.

Present — Learned, P. J., Boardjian and Bocees, JJ.

Order reversed with ten dollars costs, and motion to strike out denied without costs.


author: f>er Cwriam.

text:
    PEOPLE ex rel. FREDERICK K. LAWRENCE v. SIMON P. LYONS. PEOPLE ex rel. AUGUSTUS CHURCHILL v. SIMON P. LYONS.

      Sunday law — 2 B. 8. {5th ed.), 936, § 66 — place where labm' performed must he stated — admission in answer.

    The relators were arrested by virtue of a warrant, issued by the defendant upon an affidavit charging them with a violation of the Sunday law (2 R. S. [5th ed.], 936 § 66), “ in tending lock on the Delaware and Hudson canal, contrary to the statute in such case made and provided.” Held, that the affidavit was defective, in not alleging the place where the alleged offense was committed.
    Bach relator, by his answer, admitted that, on “ the first day of the week, called Sunday, he was personally engaged in tending lock on the Delaware and Hudson canal, but that such tending was not contrary to statute or any law.” Upon this plea, without any testimony being taken, the relators were convicted and fined. Held, error; that the words “tending lock” did not of themselves purport to be servile labor not necessary; that to “tend” was to watch, to guard, to do things necessary, etc., and would rather imply a necessary work.
    Oeetiobaei to review the conviction of the relators before the defendant, a Justice of the Peace, for a violation of the Sunday law.

      F. L. Westbrook, for relator. A. Sohoonmaker, Jr., for defendant.
   Opinion

f>er Cwriam.

Present — LeabNed, P. J., BoaedmaN and Bookes, JJ.

Judgments and proceedings reversed.


author: jper Gv/riam.

text:
    WILLIAM DOLSON and another, Assignees, Respondents, v. JOHN W. KERR, Sheriff, and another, Appellants.

      Assignment for the benefit of crreditm's — when void — exempt property — when does not pass under.

    Where, at the time of the execution of an assignment for the benefit of creditors, it was agreed between the assignor and assignees that they should lease all. the assigned property to the wife of the assignor, which agreement was carried into effect, the assignees never taking possession of the property, but leaving it with, the assignor and his wife: held, that the assignment was void, as tending to hinder, delay and defraud creditors.
    All exempt property, although expressly excepted from the assignment, was included in the inventory and lease. Held, that as the assignees acquired no title by the assignment or the delivery under it, the wife’s title would not he superior to that of the creditors of her husband, and that his assent to the possession would not preclude the sheriff from levying upon a portion of such exempt property — viz., a team of horses — to satisfy a judgment obtained for their purchase-price upon the sale to the husband.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      A. Schoonmaker, Jr., and J. M. Gooper, for appellants. J. Newton Fiero, for i-espondents.
   Opinion

jper Gv/riam.

Present — Learned, P. J., Boardman and James, JJ.

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


author: BoaedmaN, J.

text:
    WILLIAM HANNAHS, as Executor, etc., Appellant, v. DELIA HANNAHS and others, Respondents.

      Costs of administration — Retm'n — when should contain evidence.

    Upon the final settlement of the plaintiff’s accounts, the expenses of administration and accounting were allowed at $652.55. Upon an appeal from the decree of the surrogate, the items, vouchers and evidence of such expenses were not returned, but the surrogate certified that they were presented to him in detail, and duly verified, proved, adjusted and allowed by him at that sum. Held, that the court was precluded by the return from reviewing such expenses. If the respondents desired a review thereof, they should have secured a return by the surrogate of all the facts and evidence upon which the claim was allowed by him. In the absence of any apparent error, the allowance was to be presumed correct.
    Appeal by the plaintiff from a decree of the surrogate of the county of Otsego, entered upon the final settlement of his accounts as executor.
    Upon the hearing of the appeal, the respondents objected to the amount allowed to the plaintiff for the expenses of administration and accounting.

      E. M. Harris, for appellant. L. I. Bwxliit, for respondent.
   Opinion by

BoaedmaN, J.

Present — Leaened, P. J., BoaedmaN and JaMbs, JJ.

Decree modified by charging executor with $12.50 and interest, with costs of appeal.


author: jper Curiam.

text:
    DANIEL M. HARRIS and others, Appellants, v. ISAAC WESSELS, Impleaded, etc., Respondent.

      Chattel mortgage — execution of., by pa/rty not evidence of his sole mnen'ship in properly mortgaged.

    This action was brought to recover the value of certain repairs made upon a canal boat, alleged to be the joint property of the defendants Wessels and Waggoner. The latter did notappear in the action. Upon the trial Wessels, to prove that Waggoner was the sole owner of the boat, offered in evidence two chattel mortgages executed by him, one to one Wells, and the other to Wessels himself, which were, upon the plaintiffs’ objection, excluded.

      Held, that their exclusion was proper: 1st. Because Waggoner’s declarations were not admissible as against the plaintiff. 2d. Because the fact of the execution of the mortgage did not tend to show that Wessels was not a joint owner, as either one of two joint owners has the right and power lawfully to mortgage his interest, without the consent, concurrence or knowledge of the other.
    Appeal from a judgment of the County Court of Montgomery county, reversing a judgment of a justice of the peace, in favor of the plaintiffs.

      II. Olay Hall, for appellants. B. B. Fish, for respondent.
   Opinion

jper Curiam.

Present — Leaened, P. J., Boaedman and Booees, JJ.

Judgment of the County Court reversed, and that of justice affirmed, with costs.


author: Leakned, P. J.

text:
    DANIEL S. READ and another, Respondents, v. NICHOLAS H. DECKER, Appellant.

      Counter-claim — what constitutes— Contract — condition precedent.

    The defendant agreed to perform work and furnish materials in constructing additional tracks for tlie New York Central and Hudson River Railroad Company, the contract providing “ that all stone obtained from excavations which may, in the opinion of the engineer, he suitable for masonry, shall * * * be the property of the company.” Subsequently, the defendant sub-let a portion of the work to the plaintiff, by a contract containing the same provision-In an action brought by the plaintiff upon this sub-contract, the defendant, in his answer, set up a general denial and payment. Upon the trial he offered to prove that the plaintiff took from the excavations 1,149 yards of stone, and used the same; that the value thereof was $1,546.80, with which amount defendant was charged on his final settlement with the company. This evidence was, against his objection and exception, excluded. Held (1), that the defendant’s claim was in the nature of a counter-claim, and should have been pleaded as such; (3), that as it was not alleged that the stone were, in the opinion of the engineer, suitable for masonry, they did not become the property of the company, and the plaintiff was entitled to use them.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      II. B. Oushney, for appellant. D. 8. Morrel, for respondent.
   Opinion by

Leakned, P. J.

Present —LeaRned, P. J., Boabdman and Bookes, JJ.

Judgment affirmed, with costs.


author: Leaenkd, P. J.

text:
    THE PEOPLE ex rel. ORRIN W. SMITH, Appellant, v. THE BOARD OF TOWN AUDITORS OF THE TOWN OF DELHI, Respondent.

      Town auditors — allowance of claim — right to reconsider account.

    On the 7th of November, 1878, a claim of the plaintiff for $450 was presented to and audited by defendant. On the tenth of the same month, at another meeting of the board, the same members being present, it was unanimously voted that the bill be reduced to $200. On the same day the board adjourned, after making and signing a summary of accounts and certificate, including therein the relator’s claim at $200. This summary and certificate were, on the 12th of November, 1873, recorded in the town clerk’s office and delivered to the supervisors. EM, that the resolution of the board allowing the relator’s claim at $200, with their action in making and signing the certificate required by law, in which the claim was included at that amount, must be taken as their allowance of the claim. (People v. SioeJcing, 50 Barb., 573.)
    It is the final action of the board, which consists in making and signing a certificate, that terminates their right to reconsider and re-examine accounts.
    Appeal from an order made at the Special Term refusing to grant a peremptory mandamus.

      O. W. Smith, relator, in person. F. Jacobs, Jr., for respondent.
   Opinion by

Leaenkd, P. J.

Present — Leabned, P. J., Boardkan and James, JJ.

Order affirmed, with costs.


author: per Quriam.

text:
    GEORGE W. THOMPSON, Respondent, v. HARVEY PINE, Appellant.

      Code,% 352 — power of Oounty Court to strikeout answer on appeal from Justice's Court.

    Although, under section 352 of the Code, making the right to a new trial depend on the amount of the claim of the parties, the defendant may take an undue advantage by setting up a claim fictitious in amount, yet the Oounty Court has no right to strike out the answer, or a part of the answer, when the action has been tried in a Justice’s Court. . (Fuller v. Brierley, 36 How., 47.)
    The pleadings must stand as they were in the court below, because upon them depend certain rights of the parties in the County Court.

      Appeal from an order of the County Court of Rensselaer county, striking out a counter-claim interposed by the defendant in this action, commenced in a Justice’s Court.

      H. B. Stiles, for appellant. Samuel Foster, for respondent.
   Opinion

per Quriam.

Present — Leaened, P. J., BoaedMan and Bocees, JJ.

Order reversed with ten dollars costs and printing disbursements, and motion denied with five dollars costs.


author: Bocees, J.

text:
    MATHIAS M. DUNTZY, Respondent, v. CORNELIUS VAN BUREN, Appellant.

      Evidence — Physical condition — opinion of witness.

    Upon the trial of this action, brought by the plaintiff to recover damages for an assault, his wife was asked: “Did your husband have a rupture before that night (the night of the assault)?” to which she answered, “No.” She was then asked: “Has he one now?” to which she answered, “Yes.” Defendant objected to both questions as calling for the opinion of the witness on a matter as to which it was not shown that she was competent to testify. Held, that the questions were properly allowed; that the question whether or not the plaintiff had a rupture was a fact not resting in opinion, nor did its determination necessarily involve a subject of skill or science.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the ground of surprise and newly discovered evidence.

      O. M. Hungerford, for appellant. J. H. Olute, for respondent.
   Opinion by

Bocees, J.

BoaedMAN, J., concurred. Leaened, P. J., took no part.

Judgment and order affirmed, with costs and printing disbursements.


author: per Gu/ria/m.

text:
    THE BOARD OF SUPERVISORS OF THE COUNTY OF SCHUYLER, Respondent, v. THE BANK OF HAVANA, Appellant.

      Deposit in bank by county treasure^' — when belongs to eounty.

    Where a county treasurer, who has deposited money belonging to the county in a hank, the account being kept in his name as “ treasurer,” and no money of his own being mixed therewith, becomes bankrupt, the balance of such account belongs to the county; payment thereof by the bank to an assignee in bankruptcy, constitutes no defense to an action brought by the county for its recovery.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the trial of this action by the court without a jury.

      J. McGuire, for appellant. O. H. Hurd, for.respondent.
   Opinion

per Gu/ria/m.

Present — Learned, P. J., Boardman and James, JJ.

Judgment affirmed, with costs.


text:
    ANDREW M. WAIT, Plaintiff, v. GEORGE W. RAY, as Sole Trustee of School District, etc., Defendant.

      Teacher — power of tnistee to employ.

    The trustee of a school district can make a contract with a teacher extending beyond the term of such trustee’s office.

      Gillis v. Space (63 Barb., 177) followed.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff.

      Isaac 8. Newton, for plaintiff. George W. Has/, for defendant.
   Opinion

per Curiam.

Present — Learned, P. J., Boardman and Bocees, JJ.

Motion denied, and judgment ordered for the plaintiff, with costs.


author: Boaedman, J.

text:
    THE PEOPLE ex rel. WILLIAM D. MOTT, Appellant, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF GREENE, Respondent.

      Chapter 815 of 1869 — re/jeelwn of elaims under, by supervisors— not conektsive on subsequent boos’d.

    Appeal from an order denying a motion for a peremptory mandamus.
    This was an application for a mandamos, to compel the respondent to pay the interest due on certain bonds issued by it, and subsequently purchased by the relator. The relator claimed that certain banks in Greene county had been illegally taxed upon capital invested in United States stocks exempt from taxation, and that in pursuance of chapter 215 of 1869 the defendant adjusted and allowed the amount of such illegal taxes, and issued to said banks the bonds of Greene county in repayment for the taxes illegally levied aud collected. The application was resisted on the ground that the bonds were illegally issued. The respondent insisted that the claims of the banks had, at one time, prior to their final passage and allowance, been rejected by the board of supervisors, and that such rejéction was conclusive .upon the banks and the county. The General Term held, however, that, if the banks had been illegally assessed, and paid an undue proportion of the taxes, the county was under a moral obligation to correct the wrong, and repay the moneys illegally assessed. That even, conceding that the action of the respondent under chapter 215 of 1869 was discretionary, yet a refusal to recognize and allow the claims at one time, would not preclude it from a subsequent allowance and payment. That such subsequent action having been so taken, and the claim being thus settled, adjusted and paid, no future.board of supervisors could annul or revoke such former action by resolution. (People ex pel. v. Supervisors of Herkimer, 56 Barb., 452; People ex rel. v. Supervisors of Otsego, 53 id., 564; affirmed, 51 N. Y., 401; Town of Guilford v. Supervisors of Chenango, 13 id., 143;
      Supervisors v. ü. S., 4 Wall., 435; City of Galena v. Amy, 5 id., 705.)

      Jacob I. Werner, for appellant. Amasa J. Parker, for respondent.
   Opinion by

Boaedman, J.

Present- — Leaened, P. J., Boaedman and James, JJ.

Order reversed with ten dollars costs and printing disbursements, and peremptory mandamus granted, with costs.


text:
    GEORGE DAVIS, Respondent, v. PETER REYNOLDS, Appellant.

      Pa/ri/y entitled to me — Principal and agent.

    Appeal from a judgment of the Chenango County Court, reversing a judgment of nonsuit in the Justice’s Court.
    The action was brought to recover the price of a mowing machine sold by plaintiff to the defendant.
    The plaintiff testified, among other things, as follows :
    I am the plaintiff in this action. I know the defendant, Mr. Reynolds. I sold a mowing machine the forepart of July — a Wood mowing machine, manufactured at Ilion; I sold in my own name; he promised to pay me ; the price was agreed upon; it was-sixty dollars; he agreed to pay me that for the machine; he said, when I was there and started it, he would pay me in three or four weeks; has not paid me any thing on it.
    Cross-examined : I was at the storehouse in Sherburne village; it was Lobdell & Co.’s storehouse; was agent for that machine ; I was in the employ of the Remington Agricultural Company; I swapped one of their new machines for this ; I swapped with Mr. Hubby, in Columbus. I have paid the company for the machine I sold Reynolds; I have not accounted to the company for the sixty dollars I was to have from Reynolds; I have not written to the company about this machine; I have seen the agents, but did not tell them I would assume the payment;.! do not keep books of account between myself and company ; I have not on my books anywhere charged myself with this machine; I have sold a good many machines for the company ; I have no agreement to guarantee the sale.
    The court, at General Term, said : The judgment of the County Court in this case is affirmed. There was but one contract made; that was between these parties. The plaintiff did not disclose his principal, or make known that he was acting for any other than himself. The defendant dealt with the plaintiff alone, and knew of no other party in interest. Since the contract was wholly between these parties, the plaintiff not disclosing the fact that he was not acting solely for himself, and the defendant believing that he was acting solely for himself, the defendant cannot be wronged by insisting upon the contract as so made.
    Plaintiff’s right of recovery is due to the fact that the contract was made with him alone. That he had the absolute right to receive the pay and discharge the defendant’s obligation, and that such payment and discharge would bind the real party in interest, the person or corporation for whom the contract was made.
    The defendant, by his answer, admits that the contract was made with plaintiff, substantially as alleged; and that such contract was supported by a good consideration moving from the plaintiff. Under such circumstances, we do not think the defendant can interpose the relative rights existing between plaintiff and a third party, by way of a defense to his own contract, made without knowledge of such rights, and without the pretense of any injury or possibility of injury by reason thereof.

      Isaac 8. Newton, for appellant. D. L. Atkyns, for respondent.
   Opinion by

BoaedmaN, J.

Present'— LearNed, P. J., Boardman and James, JJ.

Judgment affirmed, with costs.


author: LearNBD, P. J.

text:
    THE KINGSTON BANK, Appellant, v. ROELIFF ELTINGE, President, etc., Respondent.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee. The .judgment from which this appeal was taken, was entered after a new trial ordered by the Court of Appeals; the opinion of that court being reported in 40 New York, 391.
    The General Term held, that the case now presented differed from that upon which the Court of Appeals passed, in two respects: First. Upon the former hearing it was established as a matter of fact, by the finding of the trial court, that the payments to the defendant were made from the proceeds of the sale of the Alida ; while upon the second trial the referee found, as a matter of fact, that the payments were not made from the proceeds of such sale. Second. Upon the former appeal the Court of Appeals decided that the mere fact that the defendants had satisfied their judgments, did not prevent a recovery by the plaintiff, saying that the Supreme Court might vacate the satisfaction. They declined, however, to consider what the effect might be, if rights of third parties to the real estate had intervened. The referee now found, as matter of fact, that after the satisfaction of the defendant’s judgments, land upon which they were liens had been sold to satisfy executions issued on subsequent judgments, and that the plaintiffs had received the benefit thereof.
    The General Term were of the opinion that the present findings of fact were authorized by the evidence, and that the referee rightly found, as a matter of law from them, that the plaintiff was not entitled to recover.

      Samuel Hcmd, for appellant. Frcmeis Kerncm, for respondent.
   Opinion by

LearNBD, P. J.

Present — Learned, P. J., Boardman and Bocees, JJ.

Judgment affirmed, with costs.


text:
    JANE C. HAM, Respondent, v. EDMUND H. VAN ORDEN, Appellant.
    Appeal from a judgment of the County Court of Greene county, affirming a judgment of a justice of the peace in favor of the plaintiff.
    This appeal was heard at the June Term, and an opinion delivered by Learned, P. J.; subsequently it was discovered that Mr. Justice LeaRned was disqualified from sitting in the case, and it was accordingly reargued at this term, and the judgment reversed, for the reasons stated in the opinion formerly delivered by Mr. Justice Leaened, which is reported in 11 Supreme Court (4 Hun), page 709.

      Jacob I Werner, for appellant. E. Kami, for respondent.
   Opinion

per Curiam.

Present — Bocees and BoardMan, JJ.

Judgment of County Court reversed, and that of justice affirmed.


author: Davis, P. J.:

text:
    WILLIAM B. DUNCAN and others, Respondents, v. MARGARET D. KATEN, sued by the name of ELLA SHAW, Appellant.

      Code, § 179 — when female may he arrested under — meaning of “ willful injury ” to property.

    It is the intention of section 179 of the Code to exempt females from arrest in all cases except where the injuries specified in the Code are affirmatively shown to he willful, and to make them subject to arrest when the injury is attended with that element.
    Any disturbance of the right of the owner of an article to have, use and enjoy it, securely and without molestation, is an injury fo.r which the law gives an action, irrespective of any damage to the thing itself, in which the right of property exists.
    Accordingly, where the defendant, a female, persuaded and induced a clerk in the employ of the plaintiffs to take from them certain gold certificates and deliver the same to her, which she willfully converted or concealed from the plaintiffs: held, that she was guilty of a willful injury to then property, and was liable to arrest under section 179 of the Code.'

      Ihe Northern Railroad Company v. Ca/rpentier (3 Abb. Pr., 259) followed.
    Appeal from an order of tbe Special Term, denying a motion to vacate an order of arrest.
    The defendant was arrested on a charge of wrongfully converting to her own use $20,000 in gold certificates, the property of the plaintiffs. The affidavit of one Leslie showed that, while a clerk in the employ of the plaintiff, he, at the instigation of the defendant, wrongfully took the gold certificates from his employers and gave the same to the defendant, who had converted and concealed the same.

      Peter Mitchell, for the appellant.

      Townsend <& Weed, for the respondents.
   Davis, P. J.:

On decision at Special Term, the court gave the following-opinion :

“ Barrett, J. The defendant seeks to vacate the order of arrest upon these grounds : first, upon the merits; second, that she is a married woman; third, that she is a female, and as such not liable to arrest, except for a'wilful injury to property.

As to the first, it is only necessary to say that the plaintiffs have made out aprima facie case, and that the court, under well settled rules, will not try the merits upon affidavits. As to the second, it is by no means certain that the defendant is a married woman, and the question as to whether her relations with Katen were those of concubinage or marriage, may well be left to a jury. It is not pretended that there was any ceremonial, nor even a present agreement. Cohabitation is shown, and, to a certain extent, reputation. But these could very easily be shown by almost any woman similarly circumstanced, and they are rebutted by evidence of other cohabitation, indeed of loose life, and by the conceded fact (for it is testified to by Pinkerton and not denied), that the defendant hired a house of ill-fame in Thirty-first street as “ Ella Shaw,” and, as late as last April, signed and acknowledged a sub-lease of the same premises, in the same name. As to the third, I am unable to distinguish the present case from that of the Northern Railway Company of France v. Carpentier (3 Abb. Pr., 259). Whatever my own views upon this branch of the case may be, I feel bound by this decision, and am compelled to hold, while it remains unreversed, that the defendant has been guilty of willful injury to the property in question; and, so far as the plaintiffs are concerned, has destroyed it. The motion to vacate the order of arrest, or to reduce the amount of bail, must therefore be denied, with ten dollars costs.”

"We think the opinion of Justice Barrett rightly disposed of the motion on proper grounds. The defendant and her alleged husband had ample opportunity in their replying affidavits, to have shown how, when, where, and by whom they were married, if they had chosen to do so. Instead of that, they left the ease to stand upon their naked assertions, which may, after all, be altogether based upon the assumption that their relations have been such that marriage would be presumed against them, and therefore might be presumed in their favor. The character of defendant seems to be such that cohabitation or reputation is of less force in favor of the presumption of actual marriage than under other circumstances they would be; and she seems to have put on and off the marital name and relation at convenience. Her actual marriage is very questionable under the conflicting affidavits, and the court was quite justifiable in regarding her relations with Eaten as not those of husband and wife.

The Code (§ 179), provides that “ no female shall be arrested in any action, except for a wilful injury to person, character, or property.” The authorities are somewhat conflicting as to what is a wilful injury to property under this provision. In Tracy v. Leland (2 Sandf., 729), it was held that the concealment and removal of a piano by a female was not sufficient, ground for her arrest; that it was necessary to show that the article itself was injured.

In Starr v. Kent (2 Code Rep., 30), and in the Northern Railway Co. v. Carpentier (3 Abb. Pr., 259) it was held, in substance, that the injury intended was a wilful injury to the property of the owner in the thing, and not merely to the thing itself; and in Solomon v. Waas (2 Hilt., 179), Tracy v. Leland was also disapproved. The weight of authority is with the eases last cited, and they seem to us correct expositions of the law. The construction turns upon the force to be given to the word “wilful.” If the Code had provided that a female should only be arrested for an injury to property, there would be no doubt of her liability to arrest, whether the injury was intentional or accidental, or constructive. The word wilful was designed to define the nature of the injury, so that to arrest a female it should be made to appear that the act which the law holds to be an injury to property was a wilful and an intentional one. Mere negligence was not to be sufficient; nor were constructive injuries, nor accidental consequences, nor any of the various wrongs which the law treats as tortious quite independently of the intention of the actor. Many illustrations might be given, but it seems unnecessary. In short, we think the manifest intention is to exempt females in all cases, from arrest, except when the injuries specified in the Code are affirmatively shown to be wilful; and to leave them subject to arrest whenever the injury is attended with that element. It is elementary that an injury to property is not necessarily in destruction, or other damage of the article itself. The pickpocket who takes a watch from the owner’s person may do it no harm whatever; he may on the contrary benefit the watch, by repairs or improvements, and having enhanced its value, sell it for more than it was worth when stolen. Yet if all that appeared on a trial for its value, if would be very absurd .for the law to hold that the property of the owner of the watch had not been injured. The property is the right, and not the thing — the right to have, use and enjoy the thing securely and unmolested — and whenever that right is disturbed or' destroyed, the law gives an action for the injury, irrespective of the condition of the thing in which the right or property exists. But against a female the law allows no arrest for such injury, unless it be wilful; that is, designedly done. The affidavit on which the appellant was arrested shows such an injury. It shows that a clerk of the plaintiffs had delivered to defendant about $20,000 of gold certificates, the property of plaintiffs, which said clerk had been induced and persuaded by her to take from his employers and to give to her. She knew them to be their property, and she had wilfully received and converted, or concealed the same, in fraud of plaintiffs and with the express intention of fleeing the country with her guilty confederate, and had refused to surrender them to plaintiffs. It is claimed that these acts are not a wilful injury to plaintiffs’ property, because it is not shown that she had done some physical injury to-the paper on which the gold certificates are printed and written. This is refining too technically for the benefit of crime.

The order must be affirmed, with ten dollars costs and disbursements.

Daniels and Brady, JJ., concurred.

Ordered accordingly.