text:
    The People, Pl’ff, v. William W. McLoughlin, Def't.

      (Supreme Court, Kings Special Term,

      Filed June, 1895.)

    1. Criminal law—Stay—Certificate.
    Where the court has a reasonable doubt of the validity of certain proceedings had in the case, a certificate of reasonable doubt, to stay the judgment, pending appeal, under section 527 of the Code of Criminal Procedure, will be granted.
    2. Same.
    The court held that it had such doubt and granted a certificate of reasonable doubt to operate as a stay of the judgment pending an appeal.
    Motion for a certificate of reasonable doubt, pending an appeal from a judgment of conviction.

      Edward 0. James and Abram I. Elkus, for motion; John JR. Fellows, Dist. Atty., Daniel G. Rollins and Bartow S. Weeks, opposed.
   Gaynor, J.

The law does not cast upon me the duty of concluding whether error was actually committed in the defendant’s case. On the contrary, the statute (Code Oiv. Proc. § 527) is, that if any assigned error give rise to “ reasonable doubt whether the judgment should stand,” it is my duty, without going further, to grant a certificate of reasonable doubt to operate as a stay of' the judgment, pending appeal. I have such doubt, and, being unable to resolve it, after careful deliberation, I must unhesitatingly respond to the injunction which the law lays upon me, and allow the stay, without regard to my personal inclination. Whether this ruined defendant shall be imprisoned pending his-appeal is insignificant, indeed, compared to the importance of maintaining a deliberate and orderly administration of criminal justice, and the necessity of preserving those individual rights-which, while they shield the innocent and the unfortunate, do not. protect the guilty. I have not merely this defendant’s case in mind, but the case of every one hereafter to be tried for a criminal offense. I shall specify two alleged errors. The defendant was tried in a court of oyer and terminer. His first trial ended on Saturday, May 11, 1895, by a disagreement of the jury. The case was at once set down for another trial in the same court nine days ahead, namely, on Monday, May 20th. Counsel for defendant then decided to make a motion in the supreme court for a change of the place of trial to another county, on the ground that a fair and impartial trial could not be had in the county of New York. They prepared a voluminous record for that purpose, setting forth that the difficulty of getting impartial jurymen was so great that it took three weeks to get a jury on the first trial; that the deliberation of the jury was marred by unusual passion, those voting for acquittal reporting in open court that they were threatened with state’s prison by those voting for conviction; that immediately after the discharge of the disagreeing jurymen, their intelligence, honesty and motives were assailed, in public meetings and elsewhere, all of which was reported in the newspapers; that, in addition, some newspapers joined in the attack, which was also leveled in advance against any jurors who should vote for acquittal upon the second trial; and the defendant also claimed that the learned judge who presided at his first trial, and was also to preside at his second, participated in these public discussions in a way adverse to a fair and calm consideration of his case, and calculated to deter jurymen from being independent. In this state of things, the defendant’s counsel claimed that he had not had, and could not have, in the county of New York, that deliberate, fair and impartial trial which the law guarantees to every one. I need form no opinion as to the truth of these allegations. It is enough that they were by no means light or frivolous, and that defendant was entitled to have them calmly heard; for the law, taught by the experience of the past, had wisely so provided. ■ From the irregular and disorderly trial of Jesus down to the present time history in almost every generation affords instances of trials conducted without due calmness and attention, in which sometimes the innocent and sometimes the guilty were convicted, ■ but, invariably, in either case, with the like effect in the end that the conviction was generally deemed unjust, and proved more' demoralizing and detrimental to social order than acquittal would have been. It is a maxim of manliness and healthy human nature, as old as the human race, that one who ■cannot be convicted by fair play should not be convicted at all. The defendant having decided, as was his unquestionable legal right, to move the supreme court to change bis place of trial, what followed? He was confronted with a difficulty; for, while the statute was explicit that he could bring on - such a motion only u upon notice of at least ten days to the district attorney” (Code Or. Proc. § 346), his second trial had been set only nine days ahead, as has been seen, and would, therefor, sunersede his motion, and make it useless. But the law did not leave him in such evil case, for it provided that any justice of the supreme court might grant a stay of the trial until the motion should be heard and decided. 0 >de Or. Proc. § 347. By the exercise of diligence, the defendant's attorneys had the record necessary to the motion ready in four days, viz. on Friday, May 17th; and, regularly presenting the same to a justice of the supreme court on that day, they obtained of him the temporary stay of the trial which the law allowel until the motion should be heard, viz. on Monday, June 3d. The following morning, viz. Saturday, copies of the motion papers, including the stay and notice of motion, were served upon-the district attorney. The defendant had acted strictly in accordance with law. He could not have noticed his motion for any day prior to the day set for the trial; for the statute, as has been seen, required that he should give a notice of motion of not less than ten days. On the following Monday morning, however, at the unusual and irregular hour of 6 o’clock, the district attorney caused to be served upon the defendant’s attorney an order requiring the defendant to show cause at 10:30 o’clock that same morning, before the special term of the supreme court in New York city, why the defendant’s motion to change the place of trial should not then and there, “ forthwith," proceed and be heard. The senior counsel for defendant was under engagement to be before the court of appeals at Albany on that day, and went there. The junior counsel appeared before the supreme court at the hour required, and, submitting affidavits bearing evidence of the unseemly haste in which he had been forced to prepare them, objected to the court proceeding, and, denying its jurisdiction to do so, asked that a time be set to argue the question of jurisdiction. The court, refused the request, overruled every objection, and required the defendant to proceed at once to present to it his motion to change the place of trial. This his counsel refused to do. The court thereupon made and entered an order to the effect that the motion was heard and denied, and vacating the stay, but reciting the refusal of defendant to make the motion before it; and thereupon the court of oyer and terminer, which had awaited the outcome, immediately commenced the trial of the defendant, against the objection of his counsel that the supreme court had acted without j uvisdiction, and that, therefore, the stay of the trial was still in force, and the trial could not be had.

I have a reasonable doubt of the validity of this precipitate proceeding in the supreme court. If it is to be allowed in this defendant’s case, then it can be repeated in any one's case. It is quite as important that justice appear to be done as that it be done. It is important that crime should be punished, but far more important that the rights of the individual should be held inviolable ; for that alone is all that stands between him and tyranny, whether executive or judicial. If the order of the supreme court, was void, then the stay was in force when the court of oyer and terminer tried the cause. I do not see how a court may force a party to bring on a trial or application of any kind within less time-than he has legally noticed it for, unless by express statutory authority to shorten the time, which did not exist in the present instance. It might as well try to make a party bring on a trial or application that he had not given notice of at all. The notice was shortened in this case by the aforesaid order of the special term of the supreme court, upon the ground that the public interest required that there be no delay of the trial of defendant. If that be a valid ground, then a notice of trial or of motion in any case involving public interest may be shortened or disregarded by a court. It seems to me the learned district attorney mistook his course, and that the court acted without jurisdiction. The way for the district attorney to prevent delay of the trial was plain. The law had not left it in the power of the defendant to delay the trial at will. He had to get a stay pending his motion in order to delay the trial at all; and the district attorney had the right to apply to the judge who has granted the stay, to vacate it, unless the defendant would stipulate, as an alternate, to argue the motion in a shortened time. The like is often done in civil causes in respect o£ both notices of trial and of motion. But, that a court has inherent jurisdiction to shorten at will notices essential to give it jurisdiction I cannot believe. There was no due process of law by which the special term of the supreme court was able to do what it assumed to do in this case.

Another assigned error raises a grave question. The indictment was for the extortion of §50 from one Seagrist. To make out the crime it became necessary for the prosecution to prove a continuing illegal concert between the defendant and his ward man, Burns, to extort money; for the acts necessary to constitute the particular crime for which defendant was being tried were not all committed by defendant personally, but, on the contrary, some, or, as the prosecution finally claimed, all of them, were done by Burns. This illegal concert being established, then the act of either one was the act of the other, and in that way the defendant could be convicted. Evidence had been produced from which the jury could have found that the illegal relation existed. Next it was proved that Burns stopped the work of pulling down a building which Seagrist was engaged in, and told him he could not go on with it till he saw the captain, namely, the defendant. This was the coercion used to extort the money. Seagrist says he went to the station to see the captain, but he was not in. The next thing to prove was that the money was paid. Seagrist swore positively that he paid $50 to either the defendant or Burns, but that he could not remember which. His dubiety was upon this .point only. He then testified that he made a true memorandum of the occurrence at the time of payment, and pro luced it. Being requested to look at the memorandum,to refresh his memory, he did so, and then said: “I have no distinct recollection, by looking at the book, to whom I paid it, because it was a double entry.” The memorandum was then offered and received in evidence, against the objection of defendant’s counsel. It is as follows: “November 21, 1891. Material. Paid to MoLuighlin for protection, per Sergeant Burns, ordinance officer, $50.” Seagrist said : as we have seen, that he could not tell, from this memorandum, to' which one he paid the money, because it was a “double entry,” not referring to double-entry bookkeeping (for no such thing was before him), but meaning that the entry was double in meaning, or equivocal. And so the memorandum seems to be; for who can say from it, any more than Seagrist could, whether it conveys the statement that the money was paid to McLaughlin per or through Burns for protection, or paid directly to McLaughlin for protection to be given per or through Burns ? It follows that this delphic memorandum was not competent to prove to which one the money was actually given by Seagrist. That was the only point upon which his memory failed, and the memorandum could not be competent to prove anything except something which the witness could not recollect. National Ulster County Bank v. Madden, 114 N. Y. 280 ; 23 St. Rep. 220; 3 Rice, Ev. 100. He remembered positively that he paid the $50 to one or the other, so that the memorandum could not be received to prove that. But, in another aspect, it seems that the memorandum could not be legal evidence. The rule allowing an original written memorandum of a fact to be used as evidence of such fact, in the absence of recollection of the fact by the person who made the memorandum, relates only to memoranda of facts, and not to memoranda of inferences or conclusions. The memorandum in question is of a conclusion. It contaihs a conclusion that an illegal concert •existed between McLaughlin and Burns; that payment to Burns' was payment to McLaughlin for his protection, or else that payment to McLauglin was for his protection through Burns. Indeed, it contains a statement of a conclusion that the very crime for which the defendant was being tried was committed. It was competent for Seagrist to testify that he paid the money to Burns, but not competent for him thereupon to state the conclusion that such payment amounted to payment to McLaughlin. Yet that is what this memorandum was interpreted to state by the prosecution. If one could make a written memorandum of his conclusions, and in -that way afterwards have them received in evidence, no one would be safe in liberty or property. There would be no end of fabricated memoranda. Even an original memorandum of a simple fact is received in evidence with hesitation, and only from necessity ; and such caution is necessary, as our highest court has said, “until the moral infirmity of human nature becomes exceptionally less than it yet has.” 114 N. Y. 285 ; 23 St. Rep. 220.

The motion is granted. Ordered accordingly.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    The People ex rel. George Keller, App’lt, v. William C. Many et al., Composing Common Council, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Municipal Corporation—Improvement-Estoppel.
    A person who, with knowledge that the city, in paving a street, would change the grade, allows the work to be completed without objection, cannot, on certiorari, attack the legality of the assessment for the work on such ground.

      Certiorari to review an assessment made by the common council of the city of Mount Vernon.

      Milo J. White, for relator ; David Swits, for resp’ts.
   Pratt, J.

The subject-matter of grading and altering or changing the grade of streets in Mount Vernon was plainly within the jurisdiction of the respondents. The relator’s contention that they proceeded without jurisdiction depends upon the question whether or not this work was in fact an alteration or change of grade, within the meaning of the statute. The allegation of the petition that South Fourth avenue had been for many years used as a public highway before the respondents began work to pave is not definitely controverted by the return. There is, therefore, some ground for the relator's contention that the grade of the avenue had been established by long usage at the surface of the old road, and thus to make the case one of change or alteration of an established grade. So, too, it is obvious that the work authorized and done actually raised the former surface of the avenue three feet in some places. But it is equally plain that the respondents did not proceed upon the theory that, by authorizing this work, and causing it to be constructed, they were changing or altering the grade of the avenue, within the meaning of that term as used in the statute. Their proceedings seem to have been open, notorious, and duly advertised. Presumably, therefore, the relator knew their purpose, and the precise plans and specifications for the work, in •other words, he knew precisely what it was proposed to do. Long before the contract was made, he knew that his land was within the prescribed assessment district. He also knew the theory of the whole procedure. We cannot presume that the work done was a damage to the relator without some benefit, or that the damage was greater than the benefit. There is nothing in the papers before us to justify such presumption. .There is no pretense that the relator objected to the proposed improvement when it was proposed, or that he contended that it involved a change of grade, or that he made any remonstrance, on any ground, at any time before the work was actually done. On the contrary, he seems to have acquiesced in the proposal, and in the plans and specifications for the work. His petition shows that he subsequently presented a claim of some sort to the common council for adjustment, growing out of the performance of this work. Under these circumstances, it is fair to presume that he acquiesced in the known theory that the improvement was not an alteration or change of grade. Hence, since his attack upon the respondents’ jurisdiction ■depends upon proof of extrinsic facts his allegation respecting those facts is met by inferences deducted from his conduct which tend to show acquiescence in the theory of jurisdiction ; that is to ■say that, with full knowledge of the respondent’s proposal, he lies by, waits, suffers an important public improvement to be made, without objection, on the assumption that it did not involve an alteration or change of grade, until he obtains all the benefit which can arise therefrom (maybe presents his claim for damages), and then turns about and attempts to escape payment of his share of the expense by alleging that the wdrk, after all, really did involve a change of grade. There certainly is no equity in such a case, and if it succeeds at all, it should be striciissimi juris. To interfere now would involve the rights of many others. Hence, upon principle, and as matter of discretion, we are disinclined to interfere, on the theory of want of jurisdiction.

Hor do we see that the respondents did any wrong in the lot-ting. The contracts seem to have been awarded to the lowest bidder. The fact that there was a lower bid than Murray’s, lot excavation, is met by the fact that his aggregate was lower than any other aggregate which included excavation.

We cannot interfere with the amount of the assessment on relator’s land. That was a matter plainly within respondent’s jurisdiction. It depended upon the valuation of his land, and, perhaps, on special considerations which arc not before us. There appears to have been no departure from principle in the entire business.

Finally, the warrant for the collection of the assessment was issued and delivered to the collector before relator’s petition was prescribed. We ought not, therefore, attempt to interfere.

The writ must be quashed, and the relator’s proceeding must be dismissed, with costs.

Dykman, J., concurs. Brown, P. J., not voting.


author: Brown, P. J.

text:
    Thomas W. Johnson, Resp’t, v. William H. Synett, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Libel—Libelous per se.
    An article in a newspaper, “ It is reported about town that Rev. Mr.. Johnson, the M. E. colored minister from this place * * * was arrested. * * * It is" claimed that he was too much of a family man— He is still under cover,” is libelous per se. ,
    2. Same—Circulation.
    The evidence as to the circulation of the libelous article was held sufficient to warrant the submission of the question of publication and circulation to the jury.
    Appeal from a judgment in favor of plaintiff.

      Charles H. Noxon, for app’lt; C. H. & J. A. Young, for resp’t.
   Brown, P. J.

This action was brought to recover damages for an alleged libel. The appellants are the proprietors and publishers of the Westchester County Tribune, a newspaper published at New Rochelle, in Westchester county. On May, 25, 1894, the following article appeared in that paper :

‘‘ It is reported about town that Rev. Mr. Johnson, the M. E. colored minister from this place, was, one day last week, arrested in New York, after he alighted from the train at the Grand Central station. It is claimed that he was too much of a family man. He is still under cover.”

At the opening of the case, the appellants’ counsel moved to dismiss the complaint, upon the ground that the article was not libelous, and, at the close of the plaintiff’s testimony, moved that a verdict be directed for the defendants, on the ground that facts sufficient to- constitute a cause of action had not been proven. These motions were denied, and exceptions taken to the court’s ruling. There is no doubt the publication was libelous per se. Shelby v. Sun Printing, etc., Association, 38 Hun, 474; id., 109 N. Y. 611; 14 St. Rep. 919; Moore v. Francis, 121 N. Y. 199-204; 30 St Rep. 467; Morey v. Morning Journal Association, 123 N. Y. 210; 33 St. Rep. 49. The defendants admitted that they were the publishers of the newspaper and that the article was published therein, but denied that it was published with malice or intended to injure the plaintiff. The plaintiff gave evidence that the paper was generally sold on the streets of Hew Rochelle, but proved no sales of the issue containing the article in question. He, however, proved an interview with the defendants, in which they admitted the publication, and offered, if the article was untrue, to publish a retraction. A copy of the paper with the article therein was produced on the trial. This proof was sufficient to carry the question of publication and circulation to the jury, and the request to charge the jury that there was no evidence of circulation, and that one copy was not evidence of circulation, was properly denied, Marx v. Press Publishing Co., 34 St. Rep. 316; id., 134 N. Y. 563; 47 St. Rep. 775; Townsh. Sland. & L. (4th ed.) section 373.

The judgment must be affirmed, with costs

All concur.


text:
    James Reynolds, Resp’t, v. New York Building Loan Banking Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Building and loan associations—Stock—Withdrawal—Waiver.
    Where the secretary of a building and loan association receives a notice of withdrawal of stock without objection and does not inform the person who gives the notice that the transfer of the stock to him must he entered on the corporation books, the condition is waived and cannot afterwards be insisted upon.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion to set aside the verdict and for a new trial, made on the judge’s minutes.

      Booraem, Hamilton, Beckett & Ransom for app’lt; Isaac N. Mills for resp’t.
   Pratt, J.

There in no dispute that the secretary was the proper person to receive notices of withdrawal of funds. The power to receive notices implied the power to reject them, if irregular, and the duty to inform the applicant of the action taken. Any other rule would give a corporation a license to commit fraud. Had the secretary, when the notice was given, announced to plaintiff that the transfer of shares to him must be entered on the corporation books, that would have been promptly done. That obligation was for the benefit of the company. Once waived, it cannot now be insisted upon.

Judgment affirmed, with costs.


text:
    James H. Ryan et al., Resp’ts, v. Frances Pistone, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

      1. Contract—Novation.
    To constitute a novation, there must be a mutual agreement among three or more parties, whereby the debtor, in consideration of being discharged from his liability to his original creditor, contracts a new obligation in favor of a new creditor.
    2. Same—Promise to pay another’s debt.
    The case was held to present nothing more than an oral agreement, without consideration, to pay the debt of another.

      Appeal from a judgment in favor of plaintiff’s, and from an-order denying a motion for a new trial.

      Clarence D. Jones, for app’lt; Ralph Hichox, for resp’ts.
   Brown, P. J.

The exception taken to the denial of the motion to dismiss the complaint must be sustained. It appears that one Ceburre entered into a contract with the defendant to erect a house. Ceburre sublet the roofing and plumbing to the plaintiffs, and there was a balance unpaid for their work. The plaintiff -Ryan testified to a conversation with the defendant, in which defendant orally agreed to pay the plaintiffs’ bill, and deduct it from the amount due to Ceburre.' It does not appear that Ceburre consented to this arrangement, or was consulted about it. The testimony was that he was present at the conversation, but said nothing. Thereafter defendant paid plaintiffs $200, and this action was brought to recover the balance. . The case presents nothing more than an oral agreement, without consideration, to pay the debt of another. 0 To constitute a’novation, there be must a mutual agreement among three or more parties, whereby a debtor, in consideration of being discharged from his liability to -his original creditor, contracts a new obligation in favor of a new creditor. Ceburre could not be held to have discharged the defendant from the mere fact that he was present at trie conversation between Ryan and the defendant. That fact did not estop him from enforcing his claim against the defendant. If he had sued defendant for the balance due him upon his contract the day following the conversation, defendant could not successfully have pleaded an oral agreement ro pay the plaintiffs. Kelly v. Roberts, 40 N. Y. 482. But if the agreement was not binding upon Ceburre the moment it was made, it did not become so by anything that occurred thereafter. The case does not fall within the doctrine of Lawrence v. Fox, 20 N. Y. 268.

The judgment must be reversed, and a new trial granted, costs to abide the event.


text:
    Thomas E. Donlon, Resp’t, v. Joseph English, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Contract—Business under firm name.
    The fact that the plaintiS is carrying on business under the name of a firm which has no interest therein, is no defense to an action brought by him for goods sold, where the defendant knew such fact.
    2. Evidence—Memoranda.
    The rule, which renders a bill of items of goods sold taken from an original account book admissible, is not applicable when the witness has a distinct recollection of the essential facts to which it relates.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.

      Henry G. K. Heath, for app’ltG. H & J. A. Young, foi resp’t.
   Brown, P. J.

This action was brought to recover a balance alleged to be due to the plaintiff for coal sold to defendant between June 1, 1892, and January 17, 1893.. The plaintiff and his brother William, during the period aforesaid, carried on business under the firm name of F. J. Mulligan & Co. Mulligan was a brother-in-law of the plaintiff, but was not a member of the co-partnership, and was not interested therein. At the close of the evidence the court denied a motion made by the defendant to dismiss the complaint on the ground that the plaintiff was guilty of violating the law of the state which forbids persons transacting any business to use the name as a partner of one not interested with them as a partner. Penal Code. § 363. There was testimony in the case that, at the time the coal was purchased, the defendant knew that Mulligan was not a member of the partnership, and that the plaintiff and his brother were the only persons interested therein, and we are of the opinion that the court properly denied the motion to dismiss the complaint on the ground stated. In Gay v. Siebold, 97 N. Y. 472, it was said that the purpose of the statute was to protect persons giving credit to the fictitious firm on the faith of the fictitious designation, and that it was not needed to protect those who obtained credit from such a firm,—that the statute was highly penal, and should be strictly construed. It was accordingly there held that the transaction between the parties to that action was not within the statute, it appearing that all parties knew who the real partners were. Under the rule of the case cited, the question whether the defendant dealt with the firm in reliance on the apparent fact that Mulligan was a member thereof was properly submitted to the jury.

The plaintiff gave testimony tending to prove the sales of coal to the defendant during the period aforesaid He testified that all the sales were made by himself or his brother, who at the time of the trial was dead, but that he was present at the sales made by his brother, and knew of them of his own knowledge. He was then shown a bill which contained in detail a list of the sales, and the amount of each; and enumerated thirty-four items thereon as the sales he had made. This bill was not an original memorandum, but was made up from the firm’s order book. The bill was then offered and received in evidence, against the defendant’s objection that it was incompetent and irrelevant. We think the court erred in the admission of this paper. The case, in respect to this ruling, cannot be distinguished in principle from National Ulster County Bank v. Madden, 114 N. Y. 280; 23 St Rep. 220. That was an action against the defendant as indorser upon eighteen checks. The defense was that the checks were altered, in respect to the time of payment, after, they were indorsed, and the defendant was permitted to read to the jury a memorandum, which he testified he had made at the time of the indorsement, showing the dates, amounts and time of payment of each check respectively. This memorandum was held to have been improperly admitted, and a judgment in the defendant’s favor was reversed. The opinion cites many cases, and it was said that “ the rule which renders such evidence admissible rests upon the principle of necessity for the reception of secondary evideuce, and is not applicable when the witness has distinct recollection of the essential facts to which it relates.”

In the case before us the witness had a distinct recollection of all the sales contained in the bill. The plaintiff contends the evidence was admissible as a detailed statement of the items testified to by the witness. It does not appear to have been so restricted by the court, but was admitted without limitation, and would necessarily be regarded by the jury as corroborative of the witness’ testimony. In Howard v. McDonough, 77 N. Y. 592, cited by the plaintiff, the court appears to have held that a list of items to which a witness would testify of his own knowledge, but which were so numerous that he could not carry them or the respective values in his mind, might be put in evidence as a detailed statement of the witness’ testimony. That case, however, has no application to the present controversy, and lays down no other or different rule than National Ulster County Bank v. Madden and the cases there cited.

We are unable to say that this paper may not have influenced the verdict of the jury, and the judgment must be reversed, and a new trial granted, with costs to abide the event.

All concur.


text:
    Louise M. Beekman, App’lt, v. Brooklyn and Brighton Beach Railroad Company, Resp’t. Marion B. McCullom, App’lt, v. Brooklyn and Brighton Beach Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Railroads—Connection with elevated railway.
    A railroad, organized under the act of 1850, can connect with an elevated railway by means of an elevation, where such elevation and extension are not a mere cover for the construction of an elevated railway.
    2. Same—Act of 1892.
    The prohibition of the railroad act of 1892 as to railroads on certain streets does not apply to a railroad incorporated under the act of 1850.
    8. Same—Consent or petition of property holders.
    The requirement of the consent or petition of property holders, under the city charier of Brooklyn, does not apply to the construction of a road “across ” a street.
    Appeal from a judgment in each case, dismissing the complaints on the merits.

      Wingate, Cullen & Miller (Geo. W. Wingate, of counsel), for app’lts ; George I. Murphy, for resp’t.
   Pratt, J.

This is an appeal by the plaintiff from a judgment at special term sustaining the right of the defendant to change its terminus and grade so as to connect with an elevated railroad. To do this it is necessary to cross at very nearly right angles two streets. From a careful examination of the case it appears that the conclusions of law are amply sustained by the evidence, and the opinion rendered at the special term covers every material point raised in the case, and we think the judgment may well be affirmed upon it. I may add, however, that the case seems to be devoid of all merit in equity, as the plaintiff shows no irreparable injury which she can suffer, and in my judgment has no standing in court to oppose the proposed improvement. First, it is to be noticed that no encroachment is threatened upon any land or easement o£ the plaintiff, but the same is to be built upon the private property of the defendant; and the plaintiff does not even abut upon the streets to be crossed by the defendant near the point where such crossing is to be made. It is claimed that an act of the legislature forbids the building of a railroad in one of the streets to be crossed, but what private citizen can champion the cause except one who is interested in having the law enforced? • It is common knowledge, too plain to require proof or to be disputed, that the proposed connection will greatly add to the public convenience, and that it falls within the settled rule of policy of the state to permit railroads to connect for the convenience of the traveling public. The case is fully discussed by the opinion below, and renders any further discussion unnecessary.

Judgment affirmed, with costs.

The opinion of Mr. Justice Cullen, at special term, is as follows :

The defendant is organized under the general act of 1850, with a railroad constructed and operated from Coney Island to Atlantic avenue, Brooklyn. It is an ordinary steam surface road, built, not through streets, but on its own right of way, with its grade generally at the surface of the adjacent territory, though passing under some streets or avenues by tunnels or culverts. The Kings County Elevated Bailroad operates an elevated railroad on Fulton street, two blocks to the north of Atlantic avenue. The defendant desires to connect its road with that of the Kings County Company, by extending its road northerly to Fnlton-street. To reach the elevation of the Kings County road, it is necessary that the extension, and also part of its present road, should be carried on an elevated road. To accomplish this result, the defendant has, by resolution of its directors, changed its terminus to Fulton street, acquired by purchase a right of way to that street, and obtained the consent of the common council to the extension and construction of its road. The extension crosses Leffert’s Place on an elevated structure. The plaintiffs, owning property in the vicinity, one on Franklin avenue and the other on Leffert’s Place, bring this action to restaain the construction of the road across Leffert’s Place, claiming that the defendant is without legal right to erect it.

The first objection to the defendant’s authority is the claim that a company organized under the general act of 1850 is without power to construct an elevated road in this city; that such power can be acquired only through a commission and the procedure prescribed in the rapid transit act of 1875, the provisions of which are now incorporated in the railroad law of 1892. That an elevated railroad through a city for the purpose of affording merely rapid transit or serving as a substitute for a street railroad, even though built on its own right of way, cannot be constructed under the authority of the railroad act of 1850, has been decided. Matter of People's Rapid Transit Co. v. Dash, 125 N. Y. 93; 34 St. Rep. 595. But the opinion of the court carefully declares that a railroad under the act of 1850 need not be wholly confined to the surface, and not at all an elevated or underground structure. This must be so, for in few railroads of any magnitude in the East are there not to be found tunnels or viaducts. As is said in the case cited, the judgment proceeds on special facts of the case, that the structure and scheme were entirely foreign to anything contemplated by the general act. The counsel for plaintiffs very fairly concedes that a railroad like the New York Central might be constructed through a city on an elevated viaduct without acquiring rights under the rapid transit act. I think that this conception covers the case at bar, unless it appears that the elevation and extension of defendant’s road is a mere cover for the construction of a rapid transit elevated railroad, or in reality the extension of the Kings County Elevated Road. But the agreed state of facts contains no allegation to this effect, nor are there facts set up which would justify such an inference. Common knowledge informs us that an elevated railroad of less than a half a mile in length, and dropping to the surface in that distance, can neither be operated by itself for rapid transit nor as a part of the elevated railroad system in Fulton street. That the connection may be very advantageous to both roads, and increase the travel on each, is plain, and doubtless for this purpose the extension is to be made. But I find that the structure intended to be erected is not made for purposes of changing in any manner the general character of defendant’s railroad, but solely that it may connect its road with the-Kings County road at the grade of the latter. Such a structure,, built for that purpose, is not within the condemnation passed in the Dash Case.

The nex’t objection is based on the prohibition of the rapid transit sections of the railroad law against locating a railroad upon certain streets in Brooklyn, of which Leffert's Place is one. It is-found in section 123 of the statute of 1892 : l< No such railroad shall be located in or upon Leffert’s Place, * * * Franklin avenue * * * between the southerly line of Lexington avenue and the northerly line of Atlantic avenue, * * * but such railway may be located and constructed across such excepted streets, avenues and places at their intersection only -with other streets, avenues and places.” The direction that no such railroad shall be located is plainly, as a matter of context, limited to railroads incorporated under the rapid transit law. I should be unwilling to so restrict it if any immunity given to the statute to the adjoining property owners was substantially violated. The power to locate and construct roads across the excepted streets is expressly given. It is true, the roads are to be constructed at the intersection of these streets with other streets. That Franklin avenue is an intersecting street within this provision, I am clear. If intersecting, a railroad could unquestionably be constructed along it. Here the railroad is to be constructed not on the street, but on the property abutting on the street. I think such a location may fairly be considered as being at the intersection of the street. But if I am wrong in this, similar strictness of construction will exclude any railroad but those organized under the rapid transit act from the provisions of the section cited.

The last objection is that the requirement of the city charter (title 19, § 23) has not been complied with. I think the section cited has no application to any but street railroads. It was, indeed, decided in the Dash Case that, under the act of 1860, relating to the City of Hew York, “across” a street was “upon” a street; but it is plainly not so under this section, for the only provision for consent or petition by property owners is upon the street “along” which the road is to be operated, and the difference between, “along” and “across” is unquestionable.

There should be judgment for the defendant, with costs.


author: Tompkins, J.

text:
    The People, Resp’t, v. Edward C. Van Houten, App’lt.

      (Court of Sessions, Rockland County,

      Filed July, 1895.)

    1. Villages—Ordinances—Enforcement.
    A proceeding for the violation of a village ordinance, under section 7, title 8, chapter 291 of 1870, is a criminal or quasi criminal proceeding.
    2. Same—Arrest without warrant.
    A police Constable, under section 4, title 5, chapter 291 of 1870, as amended by chapter 229 of 1889, and under section 1, chapter 385 of 1875, may arrest, without warrant, a person violating in his presence a village ordinance.
    3. Same—Obstructing sidewalk.
    A person may be convicted for the violation of an ordinance prohibiting the obstruction of a sidewalk, without proof that any one has been interfered with in its use.
    4. Same—Justification.
    Such violation is not justified by the fact that other persons obstructed the sidewalk in front of other buildings in the same block.
    5. Same—Jury.
    The right to a jury trial, granted by section 2, article 1 of the state constitution, does not apply to an offense thereafter created and tried in a court not then existing. Such provision does not apply to cases for violation of village ordinances before police justices, but only to crimes and misdemeanors defined by the Penal Code. The trial of such violation before a police justice is without a jury.
    Appeal from judgment of a police justice, for violating a village ordinance.

      G. Z. Snider, for app’lt; Alonzo Wheeler and Richard S. Harvey, for resp’ts.
   Tompkins, J.

The village of Hyack is a municipal corporation organized under the general village law of 1870, having a police justice. Section 3, tit. 3, chap. 291, of the Laws of 1870, provides, among other things, as follows :

“The trustees shall have power as to acts and matters within the corporate bounds to make publish and amend, and repeal rules, -ordinances and by-laws for the following purposes: To prevent incumbering the streets, squares, sidewalks, crosswalks, lanes and alleys with any material whatever.”

And by the same section the trustees are given power to prescribe penalties for a violation thereof, not exceeding $10 for each offense. And the same act, by section 7 of title 8, piovides for the imprisonment of a defendant of whom a judgment for the penalty cannot be collected. The trustees of the village of Nyack, pursuant to the power conferred rrpon them by the section above quoted, adopted and published an ordinance or by laws as follows:

“Sec. 10. Ho person shall place or suffer to be placed any casks, boxes, wood, stone, dirt, lumber or other material whatever in any street or any sidewalk in said village so as to incommode or obstruct the free passage or use thereof, under a penalty of ten dollars for each offense.”

The defendant, Edward 0. Yan Houten, occupied a store on the west side of Broadway, in said village, and, after several times being notified by the police officers of the the village to refrain from •obstructing the sidewalk in front of his store, was arrested by one •of the village policemen on the 19th of April, 1895, and charged by said officer with a violation of the ordinance above quoted. At the time of the arrest the boxes, barrels, produce, and other material which it was alleged constituted the obstruction were upon the sidewalk, and observed by the officer, and the defendant was in and about the store. He was arraigned before the police justice, and after several adjournments, some of which were at the defendant’s request, he was found guilty by the police justice of having violated the said ordinance, and ordered to pay a fine of $10, and, in default of payment, to be imprisoned in the county jail for a term not exceeding ten days. The justice refused the defendant’s request for a trial by jury. The defendant was represented by counsel, who raised before the police justice all the questions which are now presented on this appeal. Ho evidence was offered on behalf of the defendant. From the judgment of the police justice an appeal was taken to this court

We will take up and consider the reasons assigned by the defendant’s counsel for a reversal of the judgment in the order in which they were presented on the argument. It is first claimed by the defendant that the acts specified in the information do not constitute a crime. It is true that a village board of trustees cannot create or define crimes; that the legislature alone has power to constitute acts or omissions as criminal offenses. But in the adoption of this ordinaance the trustees have only done what the legislature has given them power to do, i. e. forbidden the incumbering of sidewalks, and have provided a penalty for the doing of such an act. Whether the act be called a crime, or otherwise, it is nevertheless a violation of an ordinance or by-law which the board of trustees had power to enact ; and whether it be called a crime, or not, matters not. The punishment can be no greater than that provided by the ordinance.

The question as to whether it be a crime, or not, is only material when we consider the question of how the ordinance should be enforced, and what proceedings should be instituted to punish the offender. This brings us to the second point presented by the appellant.

It is contended that the only remedy for a violation of this section is by a civil action, to be commenced by the service of the usual form of„ summons, and not by a warrant. Section 7 of title 8 of the general village law of 1870 is as follows:

“ The first process in any suit brought by the village for a penalty under this act, or a rule, by-law or ordinance adopted by the board of trustees in pursuance of said act, shall be a summons or warrant.”

This section, then, expressly authorizes the use of a warrant as the first process in a proceeding to enforce any village ordinance adopted pursuant to the statute, and a warrant is always suggestive of a criminal proceeding; and where a summons is made use 6f to initiate the proceeding the action is of a quasi criminal nature, for the reason that the penalty may be enforced by the imprisonment of the defendant if he fails or refuses to pay the penalty. Section 4, tit. 5, of chapter 291 of the Laws of 1870, as amended by chapter 229 of the Laws of 1889, provides:

“ The person appointed police constable shall have the powers and be subject to the same duties in criminal and civil cases * * as constables of towns, * * * and shall be subject to the directions and orders of the president. He shall have the power, and it shall be his duty, to keep order in all public places in the village; to arrest persons concerned in riotous or noisy assemblages, or who are breaking the peace or violating this act, or the by-laws, rules or ordinances of the village.”

And that the police officer has the right to make such an arrest without a warrant is made very clear by section 1 of chapter 885 of the Laws of 1875, which provides that:

“ When any person shall be arrested by a police constable without process, under section 4, title 5 of the act entitled ‘An act for the incorporation of the villages,’ passed April 20, 1870, the justice shall proceed,” etc.

It seems clear, therefore, that the village had power to adopt and enforce this ordinance, and that the police officer had the right to arrest the defendant, either with a warrant or without a warrant, if the defendant violated the ordinance in his presence.

The case of Roderick v. Whitson, 22 St. Rep. 858, decided by the general term of the supreme court of this department, seems to be decisive of all the questions so far considered by us. In that case it was expressly held that a village incorporated under the general village law of 1870 had power to adopt ordinances; that the police constable had power to arrest for a violation of them, either with or without a warrant; and that the justice thereupon acquired jurisdiction “forthwith to hear, try, and determine the complaint or charge on which such person was arrested,” etc. And Mr. Justice Dykman, writting the opinion of the court, says, “We think that the statute contemplates a criminal proceeding against persons who violate the ordinance in question." In that case the ordinance violated forbid any person to go about or remain in any of the streets or sidewalks of the village of Matteawan, beating any drum or tambourine, etc., without permission of the village president, and for a violation thereof a penalty of five dollars was imposed. The power of the trustees of the village of Matteawan was derived from the same source as that under which the Nyack trustees acted in adopting the ordinance in question, so that the-decision in that case is applicable to this, and is controlling and binding upon this court.

The appellant further contends that the evidence taken before-the police justice fails to show that the acts complained of constituted a violation of section 10 of the village ordinances. We have-carefully examined the testimony, and are of the opinion that the charge made against the defendant was made out by the evidence. The adoption and publishing of the ordinance was proven, and it was- put in evidence. M.r. Tuttle, the president of the village, testified that the morning the arrest was made he saw, in front of defendant’s store, bags, barrels, and boxes; that nearly the whole-front of the store on the sidewalk was covered by these boxes, barrels, and bags ; they were on the flagging in front of the store. Officer Wood, who made the arrest, corroborated Mr. Tuttle. It. was shown that the same condition of things existed for some timé before, and that he had been several times notified to remove the obstruction. Defendant admitted that he had placed these-things there. This testimony, in the absence of any denial and explanation on the defendant's part, was ample evidence to justify the justice in finding that the ordinance had been violated. It was not necessary to show that any person had been actually interfered with or obstructed is his use of the sidewalk. The public were entitled to the use of the sidewalk at its full width ; and the placing of any articles or material upon it, and suffering it to there remain, which interfered with the use of the walk, or the right to use it or any part of it, constituted a violation of the law. There-is no evidence on the part of the defendant controverting the testimony of Tuttle or Wood that these articles were upon the sidewalk. From their knowledge of it, and its general use, the witnesses could testify directly to the fact that these articles were-upon the sidewalk, subject to cross-examination and proof on defendant’s part that they were not upon the sidewalk. There seems to have been no claim on defendant’s part, so far as the evidence goes, that the place where his goods were was not a part, of the sidewalk. Therefore, the testimony of Tuttle, supported by the testimony of Wood, is sufficient to justify the finding of fact by the justice.

It is further claimed, in defendant’s behalf, that the justice erred in excluding evidence as to the obstructions in front of other buildings on the same block. Other violations of the ordinances could not justify the defendant.

The justice did not prevent the defendant showing the actual width of Broadway at the place defendant is alleged to have placed the obstructions, nor did defendant attempt to show that his property was not placed on a part of the sidewalk.

The return shows that the defendant “ asked his constitutional right to be tried by a jury,” and the refusal of the justice to grant his request is now urged as an error, and a ground of reversal. The defendant had no “ constitutional right” to a jury trial. .Section 2 of article 1 of the constitution reads as follows: “ The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.” When the constitution was adopted, police courts and courts of special sessions did not exist, nor did the acts charged against the defendant constitute an offense; hence the constitutional provision does not apply. If the right to a jury trial exists, it must be by virtue of the provision of section 702 of the Criminal Code. We think that it does not apply to cases for violations of village ordinances before police justices, but ■only to crimes and misdemeanors as created and defined by the Penal Code, and not to such offenses as the one at issue, iii the absence of any other special statutory provision. Section 74 of the Code of Criminal Procedure reads: “Police justices have such jurisdiction and such only as is specially conferred upon them by statute.” Subdivision 4 of section 725 of the Penal Code provides that among the statutes continuing in force notwithstanding the Code, are “ All acts defining and providing for the punishment of offenses that are not defined and made punishable by this Code.” The village law was enacted prior to the adoption of the Code, and violations of village ordinances are offenses ” not defined and made punishable by the Code, and it was evidently the intention of the legistature that the manner of enforcing such ordinances which was then provided for by statute should continue in force. Section 72 of the Criminal Code, above referred to, was intended to continue the statutes already in force, as regards the power of police justices in reference to offenses ■created by special statutes, and existing at the time of the adoption of the Code, in 1881, and not defined by the Code. In re McMahon, 64 How. Prac. 290. Section 1 of chapter 885 of the Laws of 1875 provides that:

“ When a person is arrested * * * without process * * * .and brought before a justice of the peace for the violation of a village ordinance, the magistrate shall proceed forthwith to hear, try and determine the complaint or charge on which such person is arrested, and such person shall, upon conviction by such justice, be fined by such magistrate in accordance with any by-law or ordinance of the village and imprisoned in the county jail until such fine be paid, not exceeding ten days.”

This provision provides for the procedure before the justice, and is controlling, and is applicable to police justices as well as to justices of the peace, for the reason that chapter 514 of the Laws of 1875, which provided for the election of police justices, gives them power to try actions to recover penalties, etc., for violation of village ordinances, and to give and enforce judgments, etc.; "and by chapter 308 of the Laws of 1876 the last act was amended by giving the police justice exclusive jurisdiction in all cases of violation of village ordinances. These statutes do not repeal chapter 885, section 1, of the Laws of 1875, as to the method of procedure, as claimed by appellant’s counsel, but clothe the police justice with the power there conferred upon justices of the peace. In short, the police justice is substituted for the justice of the peace. Under section 5 of chapter 885 of the Laws of 1875, the justice had the power, and it was his duty, to proceed “forthwith to hear, try and determine ” the case, and such language neccessarily implies that it must be without a jury. He could not proceed “ forthwith ” or “ determine ” the case “if defendant had a right to a jury. This power is not inconsistent with any statute, or with the policy of the law. There are numerous offenses with which the justices are empowered to deal summarily. Judge Pratt, of this department, says in the case of People v. Putnam, 3 Parker, Cr. R. 386:

“ There was always a class of persons or offenders who, from the commencement of the government, have been accustomed to be dealt with summarily before inferior magistrates, and to whom the right of trial by jury had not been granted.”

The case of People v. Burleigh, 1 N. Y. Or. R. 526, which was an appeal from a summary conviction of appellant, as a disorderly person, under the excise act of 1857, the following was, in part, the opinion of the court:

“It is, however, urged that the provisions of law above referred to, and under which the defendant was convicted, are repugnant to the constitution, and void, because the accused is thereby deprived of the right of trial by a common-law jury after indictment. We are of the opinion that this position is untenable. * * * It was decided in People v. Justices of Court of Special Sessions, 74 N. Y. 406, that this constitutional provision did not apply to the petty offenses triable before a court of special sessions. * * * The very manifest intent of the law is that the trial should be had by the magistrate without jury. It is made the duty of the magistrate “ forthwith to try the offender, and, upon his conviction by the officer, sentence must be pronounced. The fair reading of the act is to the effect that the entire proceeding shall be had by the magistrate. To him is given exclusive jurisdiction to examine, to try, and to convict.”

This decision was made two years after the adoption of the-Code of Criminal Procedure. In the excise act of 1857 the word “ forthwith ” is used in the same manner and sense as ih chapter 385 of the Laws of 1875. If our reasoning is correct, the defendant was not entitled to a jury trial, and the justice did not err in that respect.

The judgment of the police justice should be affirmed.

Judgment affirmed.


text:
    Aaron A. Degrauw, Resp’t, v. Samuel A. Warner, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Trespass—Possession.
    A person who is not in possession of premises, cannot maintain an action for trespass thereon.
    Appeal from a judgment entered on a verdict in favor of plaintiff, rendered pursuant to the direction of the court.

      Charles De Kay Townsend, for app’lt; Henry A. Monfort, for resp’t.
   Pratt, J.

The conveyance to defendant includes the locus in quo, and so do several of the instruments executed at the time with intent to vest the title in him. The conveyance from plaintiff to defendant’s immediate grantor, executed and delivered at the same time, is defective by the omission of one or more courses, and the description is, therefore, .imperfect. But, as plaintiff had knowledge of all the conveyances, and of their object, was present when they were delivered, gave no notice of any claim on his part, and received the whole of the consideration money, we think he is clearly estopped from advancing any claim to the premises. The action is for trespass alleged to have been committed in 1889. The proof is that the defendant went into possession in 1887, immediately after the conveyance to him, and has remained in possession ever since. That proof was not disputed, and the correctness was conceded. The fact is fatal to this action. One out of possession cannot maintain an action for trespass while he is out of possession. Wood v. Lafayette, 68 N. Y. 181.

The judgment must be reversed, and a new trial must be had, with costs to abide event.

Brown, P. J., and Dykman, J., concur in the result.


text:
    In the Matter of the Application of Edward Freel for a Writ of Mandamus.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Mandamus—When issued.
    Where, upon an application for a writ of mandamus, the petitioner makes out a full case for a peremptory mandamus, and the denials are in such form and so open to objection, because of their general and indefinite character, that they must be disregarded, the exercise of the discretion of the special term in granting the writ will not be disturbed on appeal.
    Appeal from an order, granting an application for a writ of mandamus.

      Albert G. McDonald, Corp. Counsel, for George W. Palmer; Tracy, Boardman & Platt, for resp’t.
   Pratt, J.

This is an appeal by the comptroller of the city of * Brooklyn from an order of the special term entered March 2,1895, directing a peremptory mandamus to issue, commanding said official to approve petitioners claim lor $82,068 and to make and ■sign a warrant for its payment. The proceeding is based upon a petition and numerous affidavits. On the 16th day of December, 1889, the city, acting through its mayor and its commissioner of -city works, entered into a contract with petitioner for the laying of water pipes and the construction of a reservoir. The work was to be done under the direction of the chief engineer of the department of city works. Amounts due or to become due under it were to be ascertained, determined and certified by the chief engineer. The work was completed upon August 21, 1893. Thirty monthly estimates, made as prescribed, have been paid.' The thirty-first monthly estimate and the thirty-second (called on its face the “ final monthly estimate ”) have been awaiting payment since Rovember, 1893. They constitute the petitioner’s claim herein, which "represents their total amount, less $30,000, paid by the city, on account of the contract, on July 1,1894. The learned justice presiding at the special term held that the petitioner made out a full case for a peremptory mandamus. That opinion we .share, and the proofs and allegations of petitioner were in no way ■drawn into controversy. In this case, however, several answering affidavits were filed, in which there was at least an attempt to ■controvert the main and material allegations of the petitioner. To these affidavits the petitioner filed eight affidavits in reply. If the application, after this complexion was put upon it, had seemed to the learned justice below to have presented issues of fact material to petitioner’s right, and fairly raised "within the rules of procedure and pleading in such cases, doubtless he- would, at most, have directed the issuance of an alternative writ. His examination of this branch of the case is peculiarly exhaustive, and his conclusion is that the denials are in such form, and are so •open to objection because of their general' and, indefinite character, that they must be disregarded. Ro adequate reason appears or is urged before us for overturning this exercise of discretion. 'This case, as presented, may not have been absolutely free from ■doubt; but it was easy for the city to present its case much more forcibly, if its contention is meritorious. The corporation counsel urges that at the special term the case was, treated as if an issue of fact was npon trial, and that it should have been treated as the •determination of the question whether an issue of fact was fairly raised. This cause of grievance would have been avoided by a different presentation of the city’s defenses, if those defenses are susceptible of different or better presentation. It appeared, upon the argument, that by no possibility could the city ever be damaged by the issue of a mandamus, for the reason that it bad a large sum (ten per cent.) on the contract price reserved, which would amply indemnify the city for any possible claim that the city could hereafter have arising out of the contract. There was, therefore, no possible defense suggested upon the merits, and no issue of fact raised.

If these views are correct, it follows that the judgment must be .affirmed. Affirmed, with costs.

Dykman, J., concurs; Brown. P. J., concurs in the result.


text:
    The People, Resp’t, v. Thomas Jones, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Lotteries—Charge.
    Where a statute recognizes a distinction between lottery policies and lottery tickets, but fails to state in what it consists, it is error, upon the trial of an indictment for selling a lottery policy, to charge that it was not a lottery ticket.
    Appeal from a judgment of conviction for selling a lottery policy.

      James & Thomas FI. Troy, for app’lt; James W. Ridgway, Dist. Atty. of Kings County, for People.
   Pratt, J.

I regret to express the conviction that the learned trial judge erred in telling the jury that the paper in question was not a lottery ticket. True, the defendant was indicted for selling lottery policies, and, in one sense, it may be said that it was immaterial what the paper was, so long as it was not a lottery policy. But the trouble is precisely this : The statute recognizes a distinction between lottery policies and lottery tickets, but does not state in what it consists. It assumes that somebody knows, and that the distinction is susceptible of proof, and that courts and juries must have proof on that subject before they can convict. There was proof here that the paper in question was what is commonly known as a lottery policy. The court; notwithstanding this proof, submitted that question of fact to the jury, accompanied by the statement that it was not a ticket. This was apparently a ruling of law, the tendency of which was to help prevent the jury from entertaining a reasonable doubt whether or not the paper was a lottery policy. Non constat, since the question was submitted to them, the jury might otherwise have entertained a reasonable doubt whether this paper was a ticket or a policy. I am not able to say that this ruling did not prejudice defendant on the other questions.

A new trial, should, therefore, be granted.

Dykman, J., concurs. Brown, P. J., dissents.


text:
    James F. Smith et al., Resp’ts, v. Sheltering Arms, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Mechanic’s lien—Assignment—Preference.
    The indorsement and delivery of a certificate, issued by the architect, which calls for a payment under the contract, by a contractor to a subcontractor in payment of money due to the latter, constitute an assignment of such payment to such subcontractor, and, if it was executed and delivered before the lien of another subcontractor was filed, give the assignee a preferential right' to the amount due upon such payment, and a subsequent lien cannot defeat his right to the money.
    8. Same—Building contract—Time of payment.
    The contract price is nresumed to be payable only on completion of the work, in the absence of evidence as to the terms of the building contract.

      3. Same—Abandonment—Subcontbactob.
    Where the contractor willfully abandons the work before completion, a subcontractor is not entitled to a lien for his claim.
    4. Same.
    Where there is a failure on the part of the contractor to perform a substantial part of the work, and no provision in the contract for its completion by the owner in the event of the failure of the contractor, and no understanding between them that the owner should proceed with the work, and no failure on the pan of the owner to perform his obligation under the contract, a subcontractor cannot recover.
    5. Same—Substantial peefebence.
    The building contract, in this case, was held not to have been substantially performed.
    Appeal from a judgment in favor of plaintiffs.

      Ghas B. Meyer, for app’lt; G. S. Davison, for resp’t Smith Platt & Thompson, for resp’t Emberson.
   Brown, P. J.

The referee decided that the plaintiffs had a valid lien upon the premises of the appellant for the sum of $561.45 and that the defendant Emberson had a valid lien against the same premises for the snrn of $252.88. On September 14, 1891, one Charles W. Bandham entered into a contract with the appellant for the construction of a building, and on the same day entered into' another contract with the “Children’s Eold” for the construction of a building on the appellant's land with the appellant’s consent. The plaintiffs furnished material, which was used in the buildings, and filed their lien on March 23, 1893. The referee found that, at the time said lien was filed, there was earned by Banham, under said contract, more than the sum of $561.45, and that there was due and unpaid to him, for extra work upon said buildings, the sum of $100. He further found that Banham did not substantially complete either contract. The work on the Sheltering Arms contract, however, proceeded so far that the sixth payment thereunder was earned, and a certificate therefor was given by the architect, and, at the time of the filing of plaintiffs’ lien, $640 thereof was unpaid. This sum was subsequently paid to one John W. Winmill, and it is the plaintiffs’ claim that their lien attached to this balance, and that the payment to Winmill was unauthorized.

We agree with the plaintiffs’ counsel that Winmill’s relation to the transaction, so far at least as plaintiffs are concerned, was that of a subcontractor, and that plaintiffs’ rights. were in no way affected by the arrangement between Banham and Winham, by which the payments to he made under the contract were apportioned between them. But it appears that when the sixth payment came due two certificates were given, one of which, for $1,140, was indorsed by Banham and delivered to Winmill There is no question but that sum was then due to Winmill, and on March 11th the Sheltering Arms paid to him upon it the sum of $500. The indorsement and delivery of this certificate to Winmill was an assignment to him, pro tanto, of the sixth payment for a good consideration, and, as it was executed and delivered before the plaintiffs' lien was filed, gave to Winmill a preferential right to the amount due on the contract, and a subsequent lien could not defeat his right to the money. Lauer v. Dunn, 115 N. Y. 405; 26 St. Rep. 412; Stevens v. Ogden, 130 N. Y. 182; 41 St. Rep. 831.

There were other small sums paid to Winmill after the plaintiffs’ lien was filed, but none of them represented money due to Ban ham under the contracts, and were not applicable to the payment of the plaintiffs’ lien. We are of the opinion that the only sum to which the plaintiffs’ lien attached was the sum of $100 due for extra work. Brnberson was a subcontractor, with Winmill, who, after Ban ham abandoned his contract, entered into an agreement with the Children’s Fold to complete its building. It does not appear whether Winmill’s contract was verbal or in writing, or what the terms of payment were. Brnberson alleged in his answer that such a contract was entered into between Winmill and the Children’s Fold with the knowledge and consent of the appellant, which allegation is admitted by the appellant, and the fact of the making of such a contract to complete the building for $3,400 is found by the referee. In the absence of any testimony as to its terms, the contract price must be presumed to have been payable upon the completion of the work. In his first report the referee found that Winmill entered upon the performance of the work, but abandoned the same before completion, and did not substantially complete the same. In a supplemental report, he found that Winmill substantially performed all said contract, and completed said building with the exception of putting in a few locks, knobs of doors, some doorsteps, and a small amount of plastering, and some painting. This uncompleted work was done by the Children’s Fold at an expense of $267.62. Deducting this and the amount paid to Winmill from the contract price, there was left a balance of $253, upon which Brnberson was awarded a lien.

The case, in respect to the facts stated, cannot be distinguished from Larkin v. McMullin, 120 N. Y. 206; 30 St. Rep. 902, or Hollister v. Mott, 132 N. Y. 18; 42 St. Rep. 848. It was held in those cases that, when there was a failure on the part of the contractor to perform a substantial part of the work, and no provision in the contract for the completion by the owner in the event of the failure of the contractor, and no understanding between them that the owner should proceed with the work, and no fail - ■ ure on the part of the owner to perform his obligation under the contract, a subcontractor could not recover. There is, in such a case, nothing due to the contractor upon which the subcontractor’s lien can attach. We are also of the opinion that the contract was not substantially performed by Winmill. The finding in the supplemental report in this respect does not amount to a substantial performance. The testimony is that Winmill left the work uncompleted, and new contracts were made with other mechanics for its completion. The abandonment of the work was willful, and precludes a recovery by a subcontractor. Van Clief v. Van Vechten, 130 N. Y. 571; 42 St. Rep. 736; Anderson v. Petereit, 86 Hun, 600; 67 St. Rep. 563.

The judgment in favor of Brnberson must therefore be reversed, and a new trial granted, with costs to abide the event. The recovery in favor of the plaintiffs must be reduced to $100 and costs, and, as so modified, the judgment is affirmed, without costs of appeal.

Pratt, J., concurs; Dykman, J., dissents.


text:
    In the Matter of the Application of George Keymer for a Writ of Mandamus, etc.

      (Supreme Court, General Term, Second, Department,

      Filed Sept. 11, 1895.)

      1. Civil service—Veterans.
    Chap. 344 of 1895, which exempts veteran soldiers and sailors from competitive examination, where the compensation does not exceed four dollars per day, is unconstitutional.
    2. Same—Power of legislature.
    The power to determine in what cases competitive examinations are practicable does not include the power to exempt or relieve one class of citizens from such examination and exact it from others.
    3. Same.
    The obvious lutent in embodying the principle in reference to appointments to office m the civil service was to restrict the power of the legislature upon the subject, and withdraw from its power of determination the question whether merit and fitness should thereafter prevail in appointments to office in the civil service of the state.
    4. Same—Compensation.,
    The practibility or impractibility of an examination to ascertain the fitness of applicants for office has no relation to, and does not depend upon, the compensation attached to the office.
    5. Same—Review.
    The judgment of the legislature upon the propriety of laws, passed in the exercise of discretionary power, is not final, but is subject to the review of the courts.
    6. Same.
    The validity of every law relating to appointments and promotions in the civil service of the slate, or of the municipal corporations thereof, is to be tested by the inquiry whether the statute tends to enforce the provi- - sions of the constitution.
    7. Same—Void.
    A statute, whose plain purpose is to extend to the veteran soldiers and sailors a preference in appointment, which is not given to them by the • constitution, is not within the power of the legislature and is void.
    Appeal from an order, directing that a peremptory mandamus issue to the civil service commission of the city of Brooklyn.

      Albert Q. McDonald, for app’lt; Horatio 0. King and Jessie Johnson, for resp’t.
   Brown, P. J.

On May 17, 1895, the respondent presented to the civil service commission of the city of Brooklyn, an application, of which the following is a copy:

Brooklyn, N. Y., May 17, 1895.
“ Civil Service Commission of Brooklyn, W. J. D. Campbell, Esq., Secretary—Dear Sir: I respectfully apply for a noncompetitive examination as messenger in the service of the city of Brooklyn, in pursuance of, and in conformity with, chapter 344 of the Laws of Mew York, which became a law April 18,1895. I served in the army of the United States in the late civil war, and have been honorable discharged therefrom. An early reply will oblige. “ Very truly yours,
1 George Keymer.”

This application having been denied, the respondent instituted this proceeding, and the order appealed from directs that a peremptory mandamus issue, directed to said civil service commission, requiring it to examine said respondent for the position of messenger in the civil service of said city, pursuant to chapter 344 of the Laws of 1895. The statute referred to in the order of the court, so far as it is material to the case before us, is as follows:

‘‘ In grateful recognition of the services, sacrifices and sufferings of persons, who served in the army or navy of the United States, in the late Civil War, and have been honorably discharged therefrom, they shall be certified as such by the commissioners or board of officers, authorized to report names for appointment or promotion to the appointing officer or other appointing power, and when such honorably discharged soldiers and sailors of the late civil war are applicants, they shall be preferred for such appointment and promotion, and competitive examinations shall not be deemed practicable or necessary in cases where the compensation or other emolument of the office does not exceed four dollars per day, but the examination shall be such as is calculated only to ascertain the merits and fitness of the applicant for the position for which he applies, and if found fitted to fill such position the applicant’s name shall be placed on the eligible list and he shall be certified therefrom. ”

It is the contention of the appellant that this statute, so far as it declares competitive examinations not to be practicable or necessary, is in conflict with section 9, article 5, of the constitution, and is, therefore , void, while the respondent claims, and the learned judge who heard the case at special term has decided, that what is practicable or impracticable, in respect to examination, is, by the constitution, left to the judgment of the legislature, and that the judgment of that body is not subject to the review of the courts. The constitutional provision- is as follows:

“ Section 9.' Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late Civil War, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section.”

Prior to the adoption of the present constitution, the civil service laws existed only by statute, and were subject to changes or repeal at the will of the legislature. The first statute was passed in 1883 (chapter 354). That act was repeatedly amended, and there was a gradual relaxation of its provisions with reference to honorably discharged soldiers and sailors who had served in the war, until finally, by chapter 717 of the Laws of 1894, the legislature declared that the civil service laws did not apply to such persons for any position the compensation of which did not exceed $4 per day. Under the decision of the court of appeals in the case of People ex rel Killeen v. Angle, 109 N. Y. 564; 16 St. Rep. 647, persons employed under the direction of the superintendent of public works and in the state prisons were also exempted from the operation of the civil service laws. But, with these exceptions, the laws were applicable to all other persons in the civil service of the state and the cities thereof; and it was provided that the fitness of applicants for office should be tested by open competitive examination. Laws 1883, chap. 354, § 2 ; Laws 1884, chap. 410, § 8. And such were the regulations for the city of Brooklyn.

The effect of the provision of the constitution referred to has recently been considered in another branch of this court in two cases. In People v. Roberts, 68 St. Rep. 503, it was decided by Justice Herrick that appointment in the department of public works and in the state prisons were now subject to the civil-service laws, and in Re Sweeley, 12 Misc. Rep. 174; 67 St Rep. 257, the same justice decided that the constitutional provision had abrogated chapter 717 of the Laws of 1894, and that soldiers and sailors of the late war are now subject to the operation of said laws, and that the preference in appointment and promotion that ’the provision in question gives to them is a preference of selection from an eligible list, made up after examination of applicants, upon which list the soldier applicant must secure a standing by examination. This decision ivas affirmed by the court of appeals without opinion all the judges concurring except Judge Peckham, who did not sit. The effect of the constitutional provision, therefore, is that the whole civil service of the state has been brought under the operation of the civil-service laws. Veteran soldiers and sailors have the preference that the constitution gives them. This preference is exclusive of all others. The legislature can give them no more. If, therefore, the law which is referred to in the order of the court is applicable only to veterans, it creates a preference that it was beyond the power of the legislature to grant, and is void. The power to determine in what cases competitive examinations are practicable does not include the power to exempt or relieve one class of citizens from such examination, and exact them from others. All applicants for the same office, in reference to the manner of examination, must be treated alike.

We are of the opinion that the law, by its express terms, applies only to veterans of the war. The original civil-service law of 1883 contained no provision exempting veteran soldiers and sailors from its operation. That exemption was first made by chapter 410 of the Laws of 1884. That act was an amendment of the law of 1883, but the exemption was contained in a new section which was added to the original law. This section related solely to veteran soldiers and sailors. It was amended in 1886, and again, in 1894, and in each amendment related solely to exemption of soldiers and sailors from the operation of the civil-service laws. The law referred to in the order appealed from is, in form, again an amendment of the original section in the statute of 1884. It provides that, in recognition of the services of those who served in the army and navy in the late Civil War, and were honorably discharged therefrom, they shall be certified as such by the commissioners, and when such honorably discharged soldiers and sailors are applicants, they shall be preferred for appointment. It then declares competitive examinations not practicable or necessary, .and that the examination shall be in effect noncompetitive, and if found fitted to fill the position for which he applies, the applicant’s name shall be placed on the eligible list. The further provisions of the law relate exclusively to the appointment of soldiers and sailors to positions of which the compensation exceeds four dollars per day. The history and context of the law both show that it relates solely to veterans. It is true that the sentence which declares competitive examinations impracticable, if it stood alone, would apply to all applicants. But it does not stand in the law as a separate sentence, but as part of a provision relating only to soldiers and sailors. It cannot be separated from the context, and its plain reference is to the examination of applicants who are veteran soldiers and sailors. It is the soldier who is referred to as “applicant,” and whose name is to be placed on the eligible list, after an examination calculated only to ascertain his fitness, and it is as to such applicants that competitive examinations are declared not to be practicable or necessary Moreover, if it was intended that this law should be applicable to all applicants for office, the amendment would naturally have been to section 2 of the act of 1883, or section 8 as amended by the act of 1884. Those sections provide for open competitive examinations, as to all offices, “as nearly as the condb'óns of good administration will warrant.” That those sec s of the law were left to stand as originally enacted, and the .endment inserted in the section which related only to veterans, is strong evidence that the legislature intended it to be appplicable only to veterans. It is intelligible that the legislature, overlooking the effect of the provision of the constitution, winch had gone into operation only on January 1, 1895, should desire and i-ntend to give a preference, in the appointments to the civil service, of the veterans of the war: but I have too much respect for the intelligence of that body to suppose that it intended to declare as its deliberate judgment that a competitive examination was impracticable for an office when the compensation did not exceed four dollars per day, but practicable if the compensation exceed that sum by the merest trifle.

We are of the opinion, therefore, that the court erred in holding that the law applied to all applicants for office. Its plain purpose is to extend to the veteran soldiers and sailors a preference in appointment which is not given to them by the constitution, and for that reason, it was not within the power of the legislature, and is void.

But if we could give to this law a general application to all applicants for promotion, we are of the opinion that it could not be sustained as a valid exercise of power by the legislature. That the judgment of the legislature upon the propriety of laws passed in the exercise of discretionery power is not final, but is subject to the review of the courts, has been frequently decided. Thus, the power of taxation, which is the broadest possessed by the legislature, is not without its limitation, and its action in reference thereto is constantly reveiwed by the courts. In the exercise of the power of eminent domain, although the legislature may declare the use for which property is sought to be taken a public one, that determination is not conclusive, but may be reviewed by the courts, and the question determined as one of fact; and any owner of property which it is sought to take for a use which is in fact private may invoke the aid of the courts to protect his property against invasion. Rockwell v. Nearing, 35 N. Y. 302; In re Deansville Cemetery Ass'n, 66 id. 569; In re Eureka Basin Warehouse & Manuf’g Co., 96 id. 42. The exercise of the police power by the legislature is constantly reviewed, and its action thereon frequently annulled, by the courts. In re Jacobs, 98 N. Y. 98; People v. Marx, 99 id. 377. And m reference to the power given to congress, by the federal constitution, to pass laws which shall be necessary for carrying into execution the enumerated powers of the general government, the supreme court of the ITnited States has frequently held that the question whether such laws were properly passed was open to judicial inquiry. McCulloch v. Maryland, 4 Wheat. 316; Hepburn v. Griswold, 8 Wall. 603. Also, see the Legal-Tender Cases, 15 Sup. Ct. 683, 913, and the recent cases as to the validity of the income tax. These citations show that laws passed pursuant to a constitutional limitation that they shall relate to the enforcement or carrying out of a constitutional mandate are always open to judicial review.

It may be conceded, as a general proposition, that it is in the power of the legislature to determine with reference to what offices or class of offices examinations or competitive examinations are practicable; but whether a particular statute is a valid exercise of that power is a judicial question. It will be observed that the power of the legislature is, by the section quoted, restricted to the passage of laws for the enforcement of this section. The limit of legislative power is thus accurately defined, and the validity of every law relating to appointments and promotions in the civil service of the state, or of the municipal corporations thereof, is to be tested by the inquiry whether the statute tends to enforce the provision of the constitution. If it is apparent that such is not the real object and purpose of á law, the courts will interfere and protect the constitutional rights of the people. The expression “so far as practicable,” which is used in this provision of the constitution, qualifies the declaration that merit and fitness of office shall be ascertained by examination, as well as the declaration that such examination shall be competitive ; and, if the legislature have power to determine that competitive examinations are not practicable with reference to certain offices, they have equal power to declare that all examinations as to such offices are impracticable. It is also clear that, if the legislature may determine that examinations are not practicable with reference to offices to which is attached a stated compensation, it may fix the limit of compensation at any sum it chooses, and that it is thus within its power to include within such limitation the whole civil service of the state. To uphold the law in question, therefore, requires the recognition of a power in the legislature to annul the constitutional provision altogether. If the legislature should pass a law which should declare that examinations were deemed impracticable with reference to all appointive offices in this state, there is no one, I think, who would hesitate to say that such a law was unconstitutional. Yet, if we admit the power to pass the law in question, that is precisely what the legislature may do. Questions of power do not depend upon the manner of their exercise. If the power exists, it may be exercised at the will of those who possess it; and, if the legislature may declare that examinations are not practicable with reference to an office with a named salary, it may so declare with reference to all offices in the state. The constitutional guaranty that merit and fitness'for office, to be ascertained by examination, should be the sole basis for appointment in the civil service, would be of very little worth if the legislature may so easily destroy. Under such a construction, no advance has been made by the insertion of the principle in the constitution, as its operation is still made dependent on the will of the legislature. In construing the section of the constitution with reference to appointments in the civil service, we must keep in mind that the construction did not, in this respect, establish a new rule or principle of government, but ingrafted upon and embodied in the fundamental law of the state a principle, in reference to appointments for office, that had been in operation in the state for upward of ten years, and in determining the purpose and intent of this provision of the constitution, we must assume that the convention that framed it and the people who adopted it had in view the then existing laws. Looking, therefore, at the history of the law, the obvious intent in embodying this principle in the constitution was to restrict the power of the legislature upon the subject, and withdraw from its power of determination the question whether merit and fitness should thereafter prevail in appointments to office in the civil service of the state.

It would be difficult to define the extent of the legislative power to declare in what cases examinations or competitive examinations are not to be deemed practicable. It is not necessary to do that in this case, and we shall not attempt it. It is only necessary to say that laws passed in the exercise of that power mnst have some relation to the objects and ends which the people, by adopting the constitutional provision, intended should prevail in the civil service of the state. It is too plain to need argument that the practicability or impracticability of an examination to ascertain the fitness of applicants for office has no relation to, and does not depend on, the compensation attached to the office. A rule upon that subject must have relation to the duties of the office, and the character of the services to be performed. Illustrations of the proper distinctions in this respect are to be found in the regulations now existing in the civil service of the states and in the -cities. We are of the opinion that no valid rule on this subject ■can rest upon the fact of the amount of compensation attached to the office, without some reference to the duties of the office and the character of the services to be performed ; and the reason is ■obvious: that such a rule has no tendency to enforce the constitutional provision, but annuls it absolutely as to all offices within the limit of compensation named. Such a law is opposed to the rule established in the statute of 1888, and to the experience of the state thereunder for the past ten years. The rule as to open -competitive examinations, and the manner of its operation and effect, were well known to the people of the state when the -constitution was submitted to the popular vote. It had been in operation in the federal seven, and in this and other states for ten years. That the people intended to embody the result of that experience in the fundamental law of the state is beyond question; and in construing the power7 of the legislature over the manner of examinations we must give due and proper effect to that purpose and intent. A rule such as the law under consideration would establish, if we should construe it as having a general application, would not tend in any way to enforce the constitutional mandate, but would pro tanto annul it; and for that reason, it would transcend the power of the legislature, and be void. The order appealed from must be reversed, and the motion denied.

All concur.