author: Q-aynor, J.

text:
    In the Matter of the Application by Philip Dwyer for a Writ of Habeas Corpus.

      (Supreme Court, Kings Special Term,

      Filed May, 1895.)

    Lotteries—Horse race.
    Where the winner of a horse race is to receive a certain stake, to he made up from the entrance fees and an additional sum to be added by the manager of the race if the entrance fees are insufficient, such race is not a lottery.
    Application for a writ of habeas corpus.

      John M. Bowers and Gharles J] Patterson, for petitioner; Howe & Hummel, opposed.
   Q-aynor, J.

The two recent decisions in civil cases cited on the argument scarcely apply. The defendant is accused of “ contriving, proposing, and maintaining a lottery,” a crime defined in section 825 of the Penal Code. The undisputed facts are as , follows: The defendant is the president of the Brooklyn Jockey Club, an association formed under the laws of this state for the incorporation of associations for improving the breed of horses, and located in the city of Brooklyn, where its grounds are. Acting for the association, the defendant advertised and organized a horse race to be run on the association’s grounds on May 15, 1894. The race was to be open to all thoroughbred horses three years old and upwards; but, in order to run, horses had to be entered on theassociation’s books. An entry fee of $250 was charged, part of which was to be remitted in the case of horses withdrawn before the race. The race was to be for a stake of $25,000, of which $18,000 was to go to the winner, $5,000 to the second horse, and $2,000 to the third. This stake was to be made up by the association adding to the total of the entry moneys a sum sufficient for that purpose. This is what the complainant calls a lottery. There is no foundation for his contention. It is not a lottery, either in common speech, or within legal definition. A lottery depends on lot or chance, such as the casting of lots, the throwing oí dice, or the turning of a wheel. In the* scheme of this race, horse owners do not pay a sum to win a larger sum by lot or chance, but in order to enter into the contest of skill, endurance, and speed, upon which the stake depends. With" the matter as a debatable moral question, I have nothing to do. I cannot make laws. I am bound to administer the laws as I find them. The complainant is free to urge the moral considerations suggested in his behalf to churches and religious societies, or wherever he may get a hearing, with a view of elevating the moral tone of the public to his standard, out of which would come an equally improved legislature, to make the law as he seems to want it. There can be no question as to what lottery is under the laws of this state. Our statutes concerning lotteries constitute from an early beginning a distinct line of legislation. The subject has a legal literature all its own. The first statute concerning lotteries was the colonial one of 1721. It prohibited under penalties all lotteries not licensed by the government. After the independence, namely, in 1783, a similar act, more stringent and penal, was passed!" It forbade private lotteries, and gave the state a monopoly of the business. From that time down to the making of the state constitution of 1821 there were many bills introduced into the legislature, no less than forty-four of which became acts, for the establishment and management of lotteries for the raising of public revenue. As these acts show, money was thus raised for opening and improving roads, for improving the navigation of the Hudson river, for orphan asylums, boards of health, and the like. Lotteries were favorite means of raising money for educational purposes, and the title “ An act instituting a lottery for the promotion of literature” did not look strange then, though it does now. In 1814 a lottery act for that object was preceded by the preamble, “Whereas, well regulated seminaries of learning are of immense importance to every country, and tend, especially by the diffusion of science and the promotion of morals, to defend and perpetuate the liberties of a free people;" therefore, etc. Union College was endowed by means of a state lottery. This mixture of morals and lotteries, and the elevation of the one by means of the other, continued until the adoption of the constitution of 1821, which contained the provision that “ no lottery shall hereafter be authorized in this state," and this prohibition has remained in our constitution through the subsequent revision and amendments of that instrument. The debate over it in the constitutional convention of 1821 is interesting and enlightening, and form part and parcel of the legal literature of lotteries in this state. Ho one, after recurring to that discussion, can have any doubt about what was meant by the word “lotteries" in the prohibition. The entire debate was conducted with precise and scientific reference to lotteries as then conducted by the state, and prohibited by statute to private individuals. Even Chancellor Kent rather opposed the prohibition, on the ground that lotteries were the best means for the state to get money for revenue from purse-proud misers and spendthrifts. A proposition to add to the prohibition against lotteries another forbidding horse racing was voted down in the convention. Ho one there ever thought of a horse race for a stake being a lottery, and no such suggestion seems ever to have been made until now. When the constitution of 1821 went into effect, ample penal laws against private lotteries were already in the statute books, as has been seen. The lottery laws constituted a distinct system, with its own distinct literature and terminology ; and it is now the time to state that precisely the same was true of the penal statutes against racing horses for stakes, against betting on such races, and against betting and gaming generally. The first penal statute concerning horse races was passed in 1802. It declared, among other things, the racing of horses “for any bet or stake" a public nuisance, and prescribed penalties against any one taking part therein or contributing to, or getting up the stakes. So complete was this statute that, like the first two penal lottery statutes, it served as a basis for all subsequent legislation on the subject, except the statute against pool selling, which was first adopted as late as 1877. Thus there existed two distinct lires of legislation on two distinct subjects,—two distinct systems of statutes, the one on lotteries and the other on betting and gaming, —no one ever suggesting that the statutes in the one system also created or covered the offenses created and covered by those of the other. That was left until now, but there is no foundation for it whatever. To continue the parallel, in the first general revision of the statutes of this state, namely, in the codification known as the Revised Laws of 1813, we find these two systems separately revised, and placed in separate chapters; and from thence they, come, still preserving their .separate identities, into the next statutory revision and codification, namely, the Revised Statutes of 1830, where they were placed in separate articles, the one under the heading “Of Raiding and Lotteries” and the other under that “Of Betting and Gaming”; and, to bring the parallel down to the present time, so they 3'emained until the legislature in 1881 gathered together all of our penal laws into one scientific statute, called the “Penal Code,” where we find the two subjects still distinctly separated in different chapters, the one headed “Lotteries” and the other “Gaming.” Racing hoi'ses for stakes was made penal by the statute of 1802, as has been seen, and the same provision, coming from the beginning down the same line of distinct legislation, is now found in section 352 of the Penal Code, which in so many words makes “all racing or trial of speed between horses or other animals for any bet, stake, or reward ” a misdemeanor. It indisputably covers the facts of this case, namely, the racing of horses for contributed stakes. But by chapter 479 of the Laws of 1887 the operation of this section is suspended during thirty days in each year on the grounds of the said association, and all like associations, and the day of the race on which the alleged offense is predicated was one of those days. The complainant, therefore, being unable to have the defendant arrested for any actual offense, but being apparently bent on having him arrested anyhow, called racing horses for a stake a lottery, and accused him, as has been seen, under section 325 of the Penal Code, which is found in the chapter on “Lotteries,” and makes the conti'iving, proposing, or maintaining of a lottery a C3'ime.

The legislature having specifically singled out racing for stakes and make it a distinct crime, and prescribed a punishment for it, it cannot be called some other crime, and punished as such. Racing horses for stakes may be bad, but unlawful arrests are worse. The arrest and detention of the defendant was unwarranted. It was an exercise of arbitrary power, and history teaches that we have more to fear from arbitrary power than from all species of gambling combined. The prisoner is discharged.

Prisoner discharged.


source: Caselaw Access Project

author: Ward, J.

license: Public Domain

text:
    Town of Wirt, Pl’ff, v. Board of Supervisors of Allegany County, Def’t. Town of Belfast, Pl’ff, v. Same, Def’t. Town of Friendship., Pl'flf, v. Same, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

      1. Statutes—Repeal .
    The omission of a provision of an act ‘ amended unconditionally repeals such provision.
    2. Same.
    The right of action is a matter of remedy merely, and any remedy given by a statute may be repealed by a statute.
    3. Same.
    A right given by the legislature through a statute can be divested by the legislature at will.
    4. Bridges—Liability of county to towns.
    Where the claims against a county under section 130, chapter 568 of 1890, are rejected by the county supervisors, and an agreed submission of facts for a test case is not filed until after the provision of section 130 has been unconditionally repealed, such claims are not perfected within section 31, chapter 677 of 1892.
    5. Same—Proceedings before supervisors.
    Where the supervisor of the town participates in the proceedings of the board of supervisors, postponing, without prejudice, the consideration of such town’s claims against the county, and adopting on the same day a resolution asking the legislature to repeal the statute under which the claim arose, such town will be presumed to have had notice of the proceedings.
    6. Statutes—Repeal—Revival.
    The retention in section 130, chapter 568 of 1890, of the provisions for the allowance of claims did not save those claims arising under the portion of the act omitted by chapter 416 of 1895, which were not perfected before its repeal.
    Controversy submitted without action on an agreed statement of facts, under section 1279 of the Code.

      S. M. Norton, for pl’ffs; Charles H. Brown, for def’t.
   Ward, J.

The towns of Wirt, Belfast and Friendship, in the county of Allegany, in December, 1894, respectively presented to the board of supervisors of Allegany county a verified petition through the supervisors of their respective towns setting forth that in several years mentioned the expense for the construction, care maintenance, and repair of its bridges Had exceeded one-sixth of one.per centum on the. assessed valuation of the taxable property of the town for that year, and claiming that the county should pay not less than one-third part of such excess. These claims were under section 130 of chapter 568 of the Laws of 1890, known as the “Highway Law,” which was as follows : ■

“The towns of this state, except as otherwise herein provided, shall be liable to pay the expenses for the construction and repair of its public free bridges constructed over streams or other waters within their bounds, and their just and equitable share of s.uch expenses when so constructed over streams or other waters upon their boundaries, except between the counties of Westchester and New York; and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties, such towns shall - be jointly liable to pay such expenses, except that when the whole expense in any one town, for any one year, for the construction, care, maintenance, preservation and repair of its bridges, shall exceed one-sixth of one per centum of the assessed valuation of the taxable property of the town for that year, the county' in which such town is located shall pay not less than one-third part of such excess.Bach of the counties of this state shall also be liable to pay for the construction, care, maintenance, preservation and repair of public bridges, lawfully constructed over streams or other waters forming its boundary line, not less than one-sixth part of the expenses of such construction, care, maintenance, preservation and repair.”

The petition of the town of Wirt simply set forth that from the 1st day of March, 1894, to the 8th day of November in that year, the expense of the town in the construction, repair, and maintenance of its bridges was $2,193.20, and exceeded one-sixth of one per centum of the assessed valuation of the town for that year in the sum of $1,365.89, and prayed that one-third of such excess should be spread by the board of supervisors of the county upon the county. The bridge or bridges upon which this expenditure was made were not described in the petition, nor was the expense incurred given in items, as required by section 132 of the act quoted, which section is as follows:

“ The commissioners of highways of every town in which the whole or any part of any free bridge may be, shall make and deliver to the supervisor of the town, on or before the first day of November in each year, a written statement, verified by one of them, containing a description of such bridge, the whole expense in1 items'iucurred by the town during the year preceding for its construction or repair.”

The petition of the town of Friendship set forth that between the 1st of-March and November, 1892, the town expended in building an iron bridge at the foot of Belmont Hill, known as “Dayton Bridge,” $4,002.46 ; repairing Pierce bridge, $5.00; repairing. bridge at Nile, $40 ; making an excess of expenses above the one-sixtii of one per centum of the assessed valuation of the town for the year 1892 in .the sum of $2,702.82. No further items were given of the expenses or description of the bridges.

The town of Belfast presented four separate claims for construction and repairs of bridges within that town for the years 1891, 1892, 1893, and 1894. In these claims the bridges upon which the expenditures properly made out in items, as required by the statute. The éxcess of the one-fourth of one per centum* of the assessed valuation of the town for 1891 was claimed to be $2,-277.88 ; in 1892 such excess was claimed to be $885.10 ; in 1893, $1,132.44; apd in 1894 such excess was $3,076.43. All of these claims were presented after the 1st day of November, 1894.

Upon the presentation of these claims the chairman of the board of supervisors, as the case disclosed, was duly authorized by the board by resolution to execute the statement of facts contained in the submission. The submission recites that a controversy existed between the plaintiffs and defendant pursuant to section 1279 of the Code of Civil Procedure, and contained a statement of the facts above briefly referred to, and was verified pursuant to the statute on the 11th day of April, 1895. On the 30th day of April, 1895, the submission was filed in the Alleghany county clerk’s office. The counsel produced upon the argument a paper which they treated as a part of the case on submission, being in the form of a stipulation, which was as follows :

“The Town of Writ, Belfast, and Friendship vs. The Board of Supervisors of Alleghany County.

“On December 12, 1894,. the following resolutions were adopted by the board of supervisors of Alleghany county : “Whereas, certain claims for the repair, maintenance,, and building of bridges in some of the towns of Alleghany county have been, presented or may be presented, such claims arising under the Laws of 1890, § 130, chap. 568 ; and whereas, it is thought advisable on the part of the board of supervisors, as such, not to audit any such claim or claims for such purposes prior to 1894, and, there being no decision of the courts on such claims prior to said date, a test case must be had: Therefore, resolved, that the chairman of the board of supervisors be authorized to enter into an agreement with a representative of the several towns, and submit a test case, and that the chairman be authorized to employ an attorney. Resolved, that the action of the board of supervisors on all claims presented by towns for money expended for bridge work be postponed until the annual session in 1895, and that no claim heretofore presented shall be prejudiced, and no advantage shall be taken or objection made by the supervisors of Alleghany county to any such claims by reason of such postponement, and the said claims shall be taken up and acted upon the session in 1895 with the same effect as though disposed of at the annual session of 1894.’ On the evening of the same day, and after the passage of the above resolution, the following resolutions were adopted: ‘Resolved, that the supervisor of Alleghany county do respectfully ask our senator from this district and member of assembly from this county to use their influence to secure the repeal of the Laws of 1890, chap. 568, § 130, in so far as it may create a liability on the part ofá county to reimburse any town therein for the building, maintaining, constructing, or repairing of public bridges within the bounds of said town. Resolved, that in case there is a mandamus served upon the board relative to the claims presented against the county for building bridges in certain of the towns, that the chairman of the board be hereby empowered to employ counsel for the board to defend the county against any and all of such claims in such manner and to such an extent as he may deem for the best interests of the county. ’

“It is hereby stipulated that the following statement and resolutions be added to the agreed case hereinbefore made herein, and filed m Alleghany county clerk’s office.

“Dated August 15,1895.”

This paper was filed in the Alleghany county clerk’s office August 15, 1895. It is doubtful whether this last paper should be considered by us at all, as section 1281 of the Code of Civil Procedure provides that, the action .instituted by the filing of the submission “ must be .tried by the court upon the case alone; and the case, submission, affidavit, and a certified copy of the judgment, and of any order or paper necessarily affecting the judgment constitutes the judgment roll.” But perhaps it may be treated as an additional statement, under the latter clause of section 1289. On the 26th day of April, 1895,—four days prior to the filing of the submission in the clerk’s office,—an amendment to section 130, above quoted, took effect, being chapter 416 of the Laws of 1895,, and entitled “An act to amend the highway law relating to liability of towns for construction and care of public bridges,” and provided :

“Sec. 130 of chap. 19 of the general law known as the ‘Highway Law’ is hereby amended so as to read as follows: Sec. 130. The towns of this state except as otherwise herein provided shall, be liable to pay the expenses for the construction and repair of its public free bridgtes constructed over streams or other waters within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon their boundaries, except between the counties of Westchester and Mew York; and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties such towns shall be jointly liable to pay such expenses. Bach of the counties of this state shall also be liable to pay for the construction, care, maintenance, preservation and repair of public bridges, lawfully constructed over streams or other waters forming its boundary lines, not less than one-sixth part of the expense of such construction, care, maintenance, preservation and repair. ”

Thus eliminating entirely from the statute the provision upon which the claims of the plaintiffs in this action were predicated, so that at the time of the filing of this submission the law upon which the claims of the plaintiffs were founded had no existence, but' was repealed. In re Prime's Estate, 136 N. Y. 335 ; 49 St. Rep. 658 ; People v. Wilmerding, 136 N. Y. 363 ; 49 St. Rep. 651; McDonald Railroad Co., 63 St. Rep. 803; 32 N. Y. Supp. 884.

The defendant contends, first, that the claim of the town of Wirt should be rejected because it is not in conformity with the statute in not describing the bridge, and in not setting forth the items of expenditure. The same objections are made to the claim of the town of Friendship so far as the items not being set forth, and, further, that it was not presented in time. As to all the claims of' the town of Belfast the defendant objects that they were not presented in time, with some other objections, which will not be considered. And, finally, the defendent contends that, the law upon which all these claims were founded having been repeated prior to the commencement of this action, none of them are valid, or can be enforced and asserts the principle that a right of action is a matter of remedy merely, and arty remedy given by a statute may be repealed by a statute. This proposition seems to be well supported by authority. Butler v. Palmer, 1 Hill 324; Church v. Rhodes, 6 How. Prac. 281; Washburn v. Franklin, 35 Barb. 600; Curtis v. Leavitt, 15 N. Y. 153; McCotter v. Hooker, 8 id. 506; Hartung v. People, 22 id. 103; Smith v. People, 47 id. 338; Smith v. Banker, 3 How. Prac. 142; Manufacturing Co. v. Beecher, 25 Hun, 49; Board of Health v. City of Rochester, 1 N. Y. Supp. 726.

Prior to the act of 1890, the burden of supporting the bridges within the towns was cast • upon the town alone. The counties could not be compelled fo contribute towards such support. The remedy, therefore, given the towns in 1890 was purely statutory, and the principle is a familiar one that a right given by the legislature through a statute can be divided by the legislature at will. Sometimes the repeal is conditional, reserving rights of action that had accrued under the repealed statute. There was no saving clause in this case. The repeal was unconditional. Ho right by contract existed in these towns against the county. The inchoate right under the statute to contribution from the county to the expenses.incurred about the bridges had not ripened into a perfect claim. The claim had simply been presented, and upon being disputed, papers were executed looking towards a submission of the controversy to the court. Ho action had been commenced. By section 1280 of the Code of Civil Procedure it is provided :

■í‘ The case, submission, and affidavit must be filed in the office of the clerk of the court, to which the submission is made. * * * The filing is a presentation of the submission; and thenceforth the controversy becomes an action.”

But the learned counsel for the plaintiffs cites sectiqn 31 of the statutory construction act, being chapter 677 of the Laws of 1892, which provides that:

“ The repeal of the statute or part thereof shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been, effected; and all actions and proceedings, civil or criminal, commenced under or by virtue of any provision of a statute so repealed, and pending immediately prior to the taking effect of such repeal, may be prosecuted and defended to final effect in the same manner as they might be if such provisions were not' so repealed.”

The precise effect that is to be given to this statute seems not to have been passed upon to. any extent by the courts. It seems to be intended as a legislative panacea for many judicial ills. In the section quoted it not only assumes to voice the intent of all subsequent legislatures in repealing statutes, but to assume the function of the court in construing them. Our.attention has not been called to a similar statute in this state except chapter 21 of the Laws of 1828, which repeals numerous statutes, and adds (section 6):

“No offense committed and no penalty or forfeiture incurred; previous to the time when any statutory provision shall be repealed shall be affected by such repeal.”

This statute was passed upon in Mongeon v. People, 55 N. Y. 613, 618, 619, where the court confines the effect of this saving •clause to the statutes repealed by said5aot, and the court (Allen, J.) significantly adds:

“ The legislature could not declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon •existing statutes.”

There is appended to the statutory construction law a statement of laws and statutes repealed thereby, and whether section 31 above quoted, under the authority of Mongeon v. People, should not be limited to the statutes repealed by the statutory construction lawj—query.

The legislature may properly, as it often does, define the meaning of the terms used, and the purposes and objects of particular statutes that are in force, to take effect- contemporaneously with the statute of definitions; but it is difficult to see how the legislature of one year can so far comprehend the nature, extent, and purposes of statutes to be thereafter enacted, and by other legislatures, as to prescribe a rule iu advance for their construction -and operation. But, assuming that the saving clause of the statutory construction act is to .be 'regarded as attached to and made a part of the repealing act (chapter' 415, Laws 1895), does it aid the plaintiffs? No action had been commenced when the repeal took effect, or any légal proceedings, in the proper sense; nor had any vested rights accrued or been acquired, or act done, further than as we have stated, to present the claims to the board of supervisors, and have them rejected. If it be said that the towns may have incurred increased expenditures in regard to their bridges after the passage of the original act, and before it was repealed, upon the faith thereof, and therefore the repeal impaired an act done or right accruing, the answer is that no such presumption can be indulged- in, because it will not be assumed that the town authorities expended any more money upon their bridges than was actually necessary, or what they would have been compelled to have done at all events. In-any view of the case, therefore, the repeal of this statute is fatal to the plaintiffs’ case.

But the learned counsel for the plaintiffs further insists that the defendant is not in- a position to assert the defense of the repeal of this statute ; that it is estopped from so doing, or has waived the right to insist upon such a defense, by reason of the resolution of the defendant, above quoted, postponing the consideration of the plaintiffs’ claims until the annual session of 1895; and that such postponement should not prejudice the claims, and that no advantage should be taken or objection made by the defendant by -reason of such postponement. Assuming that the bear’d could waive the effect of a statutory repeal,—which is exceedingly -doubtful,—the most that can be said of this resolution in connection with the subsequent' resolutions is that it waived the objection as to time because the statute required that the claims should be presented and acted upon the same year that they accrued, and the resolution postponed the matter a year. But the v/cry same day of the passage of this resolution the board (including the supervisors) from the plaintiff towns) passed a further resolution, asking the legislature to repeal the very act under which the plaintiffs claim, and providing, further, that in case of any attempt by way of mandamus to compel the board to pay the claims in question, the chairman of the board was empowered to employ counsel to defend the county against such proceedings. Of this resolution the' plaintiffs had notice through their supervisors, who participated in the proceedings, as we assume so that it is difficult to see how this contention can prevail, or how the defendant can be charged with any bad faith in procuring the repeal of the statute under which the plaintiffs claim.

It is also urged by the plaintiffs’ counsel that the omission of the legislature to repeal sections 132 and 133 of chapter 568 of the Laws of 1890, which point out the mode of procedure in procuring the allowance of claims, and the imposition by the supervisor of the tax therefor, indicated an intention to leave the supervisors free to act in all cases which had previously accrued; thus amounting to a saving clause in the repeal. It will be seen that these sections were necessarily retained to carry out the statute as it existed after the repeal in 1895, because then, in certain cases, the counties were liable to pay not less than one-sixth part of the expense for the construction, care, and maintenance and preservation of public bridges lawfully constructed over streams forming its boundary lines, which would, of course, be the boundary lines of towns as well. When a statute is revised, and parts of the former statute omitted from the statute revising it, the part so omitted cannot be revived by construction. In re Southworth, 5 Hun, 55.

These conclusions render it unnecessary to consider the other objections raised by the defendant to the enforcement of these claims.

Judgment should be rendered upon the several claims enumerated in the submission in favor of the defendant, but without costs to either party

All concur.


author: Follett, J.

text:
    McLarney, App’lt, v. Phelan et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Wills—Married women—Revocation.
    A will, executed by a married woman during coverture, is not revoked by her subsequent marriage.*
    Proceeding for the probate of a will and appeal from a decree admitting such will to probate.
    Juiy 23, 1884, the testatrix, then being the wife of Edward P. Brophy, executed her will, by which she disposed of her entire estate. January 29, 1889, her husband died. May 13, 1890, she wrote the following on the back of her will:

      “I, Mary E. Brophy, of the city of New York, being of sound, mind, do make, publish, and declare this to be my last will and testament in manner and form following; that is to say First. I direct that all my just debts and funeral expenses be paid. Second. I give unto my brothers, James J. Phelan and Michael F. Phelar., all my real estate wheresoever and whatsoever; to have and "to hold the same to them'and their heirs and assigns, forever, as tenants in common. I hereby request that my said brothers will pay to St. Yincent’s Hospital, also to the Little Sisters of the Poor, $500 each. Third. I give and bequeath to my cousins, Mary A. and Kate Murphy, all my furniture, carpets, wardrobe, and wearing npparel; to have and to hold the same forever. Fourth. I give and bequeath to my nephews, John J. Phelan and James Tl Phelan, sons of my brother, all money not invested in real estate or banks or otherwise; to have and to hold the same forever; but the same is not to be paid to them until they respectively arrive at the age of twenty-one years. Fifth. I give and bequeath to my three nieces, daughters of my brother, all my jewelry, diamonds. All the residue and remainder of my estate I give and bequeath unto my brothers, James J. Phelan and Michael F. Phelan ; to have and hold the same forever. Sixth. I hereby nominate and appoint my brothers, James J. Phelan and Michael F. Phelan, executors of this my last will and testament, and I hereby revoke all other former wills by me made.
    “ In witness whereof I have hereunto set my hand and seal, at the city of New York, this 13th day of May, "A. D. 1890.
    “(Signed) Mary M. Brophy.”
    February 5, 1894, she married James. E. McLarney, the contestant, and April 19,1894, she died, leaving said will unrevoked. There was no issue of either marriage. May 22, 1894, the executors nominated in the will filed it in the surrogate’s court and began proceedings to have it probated. James E. McLarney appeared, and contested upon the grounds : (1) That the instrument of May 13, 1890, was a revocation of her will; (2) that the will was revoked by the subsequent marriage of the testatrix ; (3) the execution of the will was not the free, unconstrained, and voluntary act of the testatrix; (4) that the testatrix was not of sound mind, memory, and understanding when the will was executed ; (5) that the will was not subscribed, published, and attested in conformity*with the statutes in such cases made and provided. There was no evidence given on the trial to support the third and fourth objections to tile probate of the will. At the close of the trial all of the contestant’s grounds were overruled by the surrogate’s court, and the will admitted to probate.

      James P. Campbell, for app’lt; Abel Crook, for resp’ts.
   Follett, J.

We are asked to reverse the decree of the surrogate on two grounds: (1) That there is no evidence that the testatrix requested the subscribing witness Philip Furlong to sign as a witness; (2) that the will was revoked by the testatrix’s subsequent marriage to the contestant. The witness Furlong testified that he was asked to become a witness to the will by Mary Ann Murphy, who was an attendant of the administratrix, then ill. He testified that he saw the testatrix sign the will ;• that he signed immediately after, iii her presence, pursuant to the request of Miss Murphy, made in the room, and in the presence of the testatrix. ' He also testified that he did not hear the testatrix request him to sign as a witness, nor did he recollect that he heard her speak on that occasion. The witness testified that he was quite hard of hearing. The contestant called as a witness Michael P. Phelan, who testified that he heard testratrix twice ask Philip Furlong to become a witness to the will, and that the testatrix said it was her last will and testament, and she wished him (Furlong) to sign as a witness; and that she said the same thing to Jane Farrington, the other subscribing witness. Jane Farrington testified that the testatrix requested her to sign as a witness, that she did so, and that she saw Philip Furlong sign. The evidence is uncontradicted that the testatrix and the two witnesses saw one another sign, their names.. This witness (Farrington) testified that she heard the testatrix ask Philip Furlong to sign her will; that he did not hear her, and she asked him a second time, and then he came forward and signed it This was a sufficient publication, and a sufficient request for the witnesses to sign. Four witnesses were sworn in respect to the execution of the will — the subscribing witnesses and Mary Ann Murphy and Michael F. Phelan — and none of them gave any testimony which would justify a court in holding that the will was not duly executed, published, and witnessed.

Was the testatrix’s will revoked by her subsequent marriage ? The following are the provisions of the Revised Statutes relating to the powers of married women to devise and bequeath their property, as originally enacted, and as now in force:

“ Section 1. All persons, except idiots, persons of unsound mind, married women and infants, may devise their real estate, by a last will and testament, duly executed according to the provisions of this title.” 2 Rev. St. pt. 2, c. 6, tit. 1, art 1, § 1.

“Sec. 21. Every male person of the age of eighteen years, or upwards, and every female not being a married woman, of the age of sixteen years, or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate, by will in writing.” Id. § 21.

“ Sec. 44. A will executed by an unmarried woman, shall be deemed revoked, by her subsequent marriage.” Id. § 44.

These provisions remained unchanged until the passage of chapter 375 of the Laws of 1849, which empowered married women to devise real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in- the same manner and with like effect as if she were unmarried.” By chapter 782 of the Laws of 1867 the Revised Statutes were amended by striking from section 1, above quoted, the words “ married women,” so that the section now reads:

“ Section 1. All persons, except idiots, persons of unsound mind and infants, may devise their real estate, by a last will and testament duly executed according to the provisions of this title.”

The twenty-first section, above quoted, was amended by striking out the words not being a married woman,” so that the section now reads:

“Sec. 21. Every male person of the age of eighteen years or upwards, ánd every female of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate, by will in writing.”

It is urged by the learned counsel for the appellant that the words, “in the same manner and with like effect as if she were unmarried,” contained in chapter 375 of the Laws of 1849, are words of limitation, and that the wills of married women under that statute, stand in all respects on the same footing as the wills of ummarried women, fall within section 44, above quoted, and are revoked by a subsequent marriage. The answer to this seems to be that by the amendment of the Revised Statutes in 1867 it is not provided that the wills of married women shall have the same effect only as the wills of unmarried women, but married women now have the same power to dispose of their property by will as men have. There is no restriction on their power, and the effect of their wills is in no wise limited or restricted. This brings us to the question whether a will executed by a woman during coverture is revoked by her subsequent marriage. The statute does not so declare, which relates simply to the wills of unmarried women. It is not the duty of the courts to enlarge the effect of statutes by importing into them words and provisions not contained in them.

We think that the will was rightly admitted to probate by the surrogate, and that his decree should be affirmed, with costs. In re Burton's Will, 4 Misc. Rep. 512.

All concur.


text:
    Richard K. Fox, Resp’t, v. Rural Home Company, Limited, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Corporations—Note—Accommodation indorser.
    A corporation cannot be held liable as an accommodation endorser without proof that it had authority to make such endorsements.

      2. Samb. '
    No presumption of the corporation’s liability arises from the fact that the proceeds were deposited to its account, and checked out by it to the-one for whom the plaintiff was informed the money was obtained.
    3. Same—Burden op proof.
    Where there is evidence showing that the company’s cashier was authorized to bind it by accommodation endorsement and that plaintiff knew before taking the note that the cashier had no such authority, the burden is on him to show that the company had power, and that its cashier Was authorized to make this or such endorsement.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      This action was begun April 21, 1893, to recover the amount due on a promissory note made December 9, 1892, by Arthur Gr. Gates, whereby he promised to pay H. H. Warner, or order. $5,000, at the Gallatin National Bank of New York, four months after date, which, December 23, 1893, was indorsed by the payee and by the defendant in the form following: “ The Rural Home Go., Limited. E. 0. Stebbins, Cashier.” The note was discounted on the same day by the plaintiff, who drew his check for the avails—$4,908.33—payable to the order of the Rural Home Company, Limited, which was deposited to the credit of its bank account, and on the same day it, by its cashier, drew two checks payable to “the order of William M. Earl, treasurer,” amounting to $4,908.33. William M. Earl was then the treasurer of the Industrial & Mining Company, to which corporation the checks were paid. When the note fell due it was dishonored, and duly protested for nonpayment, of which the indorsers had due notice. This action was brought against the maker and both indorsers. The maker and first indorser did not answer, and the action was continued against the present defendant. It is alleged in the complaint, and not denied in the answer, that the defendant is a domestic, corporation ; but it is not alleged, nor was it proved on the trial, under what statute or for what purpose it was incorporated. As a defense it is alleged that the defendant is an accommodation indorser, which was well known to the plaintiff when he discounted the note, and that Edward C. Stebbins was without authority to make the indorsement. When the note was discounted, Edward C. Stebbins told the plaintiff that the money was not for the Rural Home Company, Limited, but was for the Industrial & Mining Company. The Rural Home Company, Limited, did not retain the proceeds of the note, and at the time it was not indebted to the Industrial & Mining Company. Edward C. Stebbins had authority to draw checks and indorse notes taken by defendant in the course of its business, but there is no evidence that he was authorized to make accommodation indorsements. These facts are undisputed. At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the ground that the corporation was not bound by the indorsement, which was denied, and an exception taken, and thereupon a verdict was directed for the plaintiff, and the exceptions were ordered to be heard at the general term in the first instance.

      Joseph N. Tuttle, for pl’ff; Gharles Steele, for def’t.
   Follett, J.

It is unfortunate that the record does not disclose under what statute and for what purpose this defendant, a domestic corporation, was incorporated, for it would have enabled the court to deal with known facts, instead of resting its decision on presumptions. So far as we know, no corporations organized under the statues of this state are authorized toi "bind the property of their shareholders by accommodation indorsements, except corporations organized under the statutes providing for the incorporation of guaranty and indemnity companies; and we know of no statute authorizing such corporations to make accommodation indorsements without receiving a valuable consideration. It has been held that banks organized under the statute of this state have no such power. Bank of Genesee v. Patchin Bank, 13 N. Y. 309; Farmers' & Mechancis' Bank v. Butchers' & Drovers' Bank, 16 N. Y. 125, 128; Morford v. Bank, 26 Barb. 568. Manufacturing corporations have no such power. Central Bank v. Empire Stone-Dressing Co., 26 Barb. 23; Bridgeport City Bank v. Empire Stone-Dressing Co., 30 Barb. 421; Farmers' & Mechanics' Bank v. Empire Stone-Dressing Co., 5 Bosw. 275; Wahlig v. Manufacturing Co., 25 St. Rep. 864; Filon v. Miller Brewing Co., 38 St. Rep. 602. The .same rule is held in Massachusetts. Monument Nat. Bank v. Globe Works, 101 Mass. 57; Davis v. Railroad Co., 131 Mass. 258. In the latter case it was also held that a railroad had no such power. Warehousing and security companies have no such power. National Park Bank v. German-American Mut. Warehouse & Security Co., 116 N. Y. 281; 26 St. Rep. 675. In Connecticut it is held that life insurance companies are without this power. Aetna Nat. Bank v. Charter Oak Life Ins. Co., 50 Conn. 167. In California it has been held that turnpike companies have no such power. Hall v. Turnpike Co., 27 Cal. 256. In Pennsylvania it is held that corporations organized to hold real estate,- mine for and deal in oil, have no such power. Culver v. Real-Estate Co., 91 Pa. St. 367; 1 Mor. Corp. (2d ed.) §§ 389, 423, el secq.;. 3 Thomp. Corp. § 5738 et secq. The learned counsel for the respondent does not gainsay this rule, but urges that the indorsement was not an accommodation one, because the check given by the plaintiff .for the avails of the note was payable to the defendant’s order, was indorsed by it, and credited to it by the bank where it kept its account. Edward C. Stebbins, defendant’s cashier, was called as a witness by the plaintiff, and testified that he told the plaintiff, when the note was discounted, that the money was not for the defendant, but was for the Industrial & Mining Company, which was not disputed. On the same day two checks were drawn by defendant’s cashier on the bank where it kept its account for the full amount of the avails of the note, payable to “ the order of William M. Earl, treasurer,” who was the treasurer of the Industrial & Mining Company. There is no evidence showing that defendant’s cashier was authorized to bind it by an accommodation indorsement, and, it having been shown to be such, which the plaintiff knew before taking the note, the burden was on him to show that the defendant had power to make such an indorsement, and that its cashier was authorized to make this or such indorsements. This burden the plaintiff did not assume, and the evidence is not of the character to authorize the court to presume that the defendent was authorized to make an accommodation indorsement, or that its cashier had power to make such indorsement. The fact that the defendant’s cashier, acting without authority, deposited the avails of the note to defendant’s credit, and on the same day checked it out for the benefit of the Industrial & Mining Company, is of no more significance than though he had taken the money and given it to the latter corporation, or had indorsed the plaintiff’s check to that corporation; and neither a consideratian nor an estoppel can be predicated upon these facts. Bank v. Atkinson, 55 Fed. 465; affirmed, 17 U. S. App. 88; 10 C. C. A. 87, and 61 Fed. 809. There being no evidence that the defendant was authorized to bind itself by this indorsement, and no evidence that its cashier was authorized to make it, and no evidence upon which an estoppel can be based, the plaintiff failed to establish a cause of action, and the defendant’s exceptions should be sustained, the verdict set aside, and a new trial granted, with costs to the defendant to abide the event.

Yan Brunt, P. J., concurs in result.


author: Putnam, J. Mayham, P. J.

text:
    Willis T. Honsinger et al., Resp’ts, v. John Mulford, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 2, 1895.)

    1. Contracts—Consideration.
    The extention by a creditor of a corporation of the time of payment of his claim, at the request of a stockholder, is a sufficient consideration for a promise by such stockholder to pay the debt.
    2. Pleading—Statute of frauds—Waiver.
    A defendant waives the benefit of the statute of frauds by not setting up the invalidity of the contract as a defense.
    Appeal from a judgment in favor of plaintiffs.

      Hackett & Williams (T. F. Conway, of counsel), for app’lt; John H. Booth (L. L. Shedden, of counsel), for resp’ts.
   Putnam, J.

On the conflicting evidence in this case, the jury were authorized to find that on September 2, 1890, the Mutual Benefit Ice Company, a domestic corporation, was indebted to plaintiffs in the sum of $6,000 then due, and that plaintiffs were about to commence an action upon said claim; that defendant was the principal stockholder, in said corporation, and its president ; that in an interview with two of the plaintiffs, at the date above mentioned, defendant requested them to extend the time of payment of said indebtedness, and agreed, if such extension was granted, to personally become liable for and pay the said claim when it became due under the arrangement then made; that, relying upon such agreement of defendant, plaintiffs extended the time of payment of such debt, and took two notes of the corporation set out in the complaint, payable at a future date. The agreement of defendant to pay the claim of plaintiffs was not in writing, but in the complaint it was not stated whether it was written or oral. On the trial the defendant objected to evidence tending to show the alleged agreement made between plaintiffs and defendant at the time in question, on the ground that such an agreement, to be valid, must be in writing, and that the oral agreement of defendant to pay the debt of the corporation was void under the statute of frauds, and afterwards-moved to strike out such evidence for the same reason, and upon plaintiffs’ resting, and again at the termination of the trial, moved to dismiss the eomplaint on the ground that the promise of defendant on which the action was based was not in writing, and was therefore within the statute of frauds and void. This motion was denied. The case was submitted to the jury by the trial court, and a verdict rendered in favor of the plaintiffs.

The agreement of defendant to pay plaintiff’s claim against the Mutual Benefit Ice Company on their extendi pg the time of payment was founded upon a sufficient consideration. Meltzer v. Doll, 91 N. Y. 365; Coal Co. v. Blake, 85 id. 226-232; Hamer v. Sidway, 124 id. 538; 36 St. Rep. 888. Hence the plaintiffs were entitled to recover on the defendant’s promise, unless the objection made by defendant, on the trial, to the recovery, on the ground that the promise of defendant, not being in writing, was wiinin the statute of frauds and void, should have been sustained by the trial court. As we have seen, it did not appear by the allegations in the complaint whether defendant’s promise was in writing or oral. Hence we think defendant, not having set up the statute of frauds in his answer, waived the benefit of that statute. In Hamer v. Sidway, supra, Parker, J., says:

“ It does not appear on the face of the complaint that the agreement is one prohibited by the statute of frauds, and therefore such-defense could not be made available unless set up in the answer.”'

And the learned justice cites Porter v. Wormser, 94 N. Y. 431, in which case the same doctrine is stated in the opinion of Andrews J. (page 450). In Wells v. Monihan, 129 N. Y. 166 ; 41 St. Rep. 409, Finch, J., says :

“ As far as the defense in this case, rests upon the statute of frauds, it must fail for two reasons. No such defense has been pleaded, and it is not raised by the averments of the complaint; and, without one or the other of these conditions, the defense, if existing, cannot be made available.”

But if any doubt existed before as to whether it was necessary to plead the statute of frauds as a defense, or otherwise the benefit of the statute was waived, no such - doubt "can be entertained since the late decision of the court of appeals in Crane v. Powell, 139 N. Y. 379 ; 54 St. Rep. 650. That esse in effect holds that, unless the statute is pleaded, objection upon the trial to verbal proof of the contract will not avail the defendant. If it appears from the complaint that the contract on which plaintiff seeks to recover is within the statute, defendant must demur. If the invalidity of the contract does not appear from the complaint, defendant must take the objection by answer, and if the objection is not taken, either by demurrer or answer, it is waived. In the case cited no objection was taken by defendant to verbal proof of the contract, as being within the statute of frauds, although at the close of the evidence he moved to dismiss the complaint on that ground. In his opinion, O’Brien, J., adverted to that fact, and said:

“But the important question in the- case, and upon which we prefer to let the decision rest, is whether, in the light of the adjudged cases, it is not necessary for a defendant who intends to avail himself of the benefit of the statute, as a defense to an action for damages for breach of a verbal agreement, within the statute, to specifically plead it.”

The learned j udge further said:

“ In this state cases may be found where the opinion is expressed that the defendant may avail himself at the trial of the benefit of the statute, under the general issue, by objection to verbal proof of the contract. Some of these "cases, and perhaps the principal ones, have already been cited to show when and how the defendant is deemed to have waived the benefit of the statute by.admitting the allegations of the complaint. It is proper, I think, to observe that they are cases where the complaint was admitted in some way, or the decision was before the Code, ór founded upon authority antecedent to it. The recent cases in this court sustain the view that it is necessary to plead the statute. * * * The statute of frauds is a shield which a party may use, or not, for his protection, just as he may use the statute of limita-' tians, the statute against usury, that against betting and gaming, and others that might be mentioned. I take it to be a general rule, of universal application, that the statutes last mentioned are not available to a party unless specifically pleaded, and there is no reason for making the statute of frauds an exception to the rule.

“ The present system of procedure is founded upon the idea that litigants should, when possible, know in advance the precise questions they must meet on the trial. When a contract is set out in the complaint as thé cause of action, and the defendant intends to assail it on some special or statutory ground, the general spirit of the system is not complied with unless notice is given of this intention to the opposing party by the pleadings. * ‘ * * When the defect in the plaintiff’s cause of action appears on the face of the complaint, the defense must be interposed by demurrer. Code, § 488, When the complaint does not, as in this case, disclose an invalid agreement upon its face, but it is in fact invalid for some reason, the defendant must take the objection by answer (section 498); and, if the objection is not taken in either way, the defendant is deemed to have waived it (section 499). The conclusion is thus reached that the defendant waived the benefit of the statute in this case by omitting to plead it.”

Under the above authorities, we are of opinion that defendant waived the benefit.of the statute of frauds by not- setting up- the invalidity of the contract as a defense, and hence that the trial court did not err in submitting the case to the jury.

We have examined the exceptions taken by the defendant on the trial to the charge of the court, and to its rulings in excluding and receiving evidence, and do not think that either of such exceptions requires a reversal of the judgment

Judgment affirmed, with costs.

Hisrriok, J., concurs.

Mayham, P. J.

(dissenting).—This action was brought upon an alleged personal agreement of the defendant to pay two notes made by the Mutual Benefit Ice Company, payable to the order of W. T. Honsinger & Co;,—one for $1,000, and one for $5,000. The $1,000 note is in the following form :

“$1,000.00. New York, Aug. 27, 1890.

“One hundred and fifty days after date we promise to pay to order of W. T. Honsinger & Co. $1,000.00, at the West Side Bank, New York city, with interest; value received.

“Mutual Benefit Ice Co.,

“John Mulford, President.”

The $5,000 note is in the following form:

“$5,000.00. New York, September 2nd, 1890.

“Thirty-five days after date we promise to pay W. T. Honsinger & Co. $5,000.00, at West Side Bank, New York city, with interest ; value received.

“Mutual Benefit Ice Co.,

“John Mulford, President."

The complaint alleged that prior to the making of these notes, and at the time of the making of the same, the Mutual Benefit Ice Company, which was a corporation organized under the laws of the state of New York, was indebted to the plaintiffs, who were copartners, in the sum of $6,000, and wjiich indebtedness, at the time of the making of the notes, was due; that John Mulford, the defendant, was president of the ice company, and was a large stockholder therein ;. that at the time of or prior to the making of the notes the plaintiffs wei;e pressing the ice company for payment, and the defendant offered to give them the ice company’s notes for the amount o'f such indebtedness ; that the plaintiffs expressed a willingness to accept such notes, provided the defendant would indorse them ; that the defendant declined to indorse as an individual, but then and there promised and agreed to pay said notes if the plaintiffs would receive them ; and that, pursuant to that agreement, the notes were made and delivered by the president of the company to the plaintiffs. The answer denied that the defendant agreed to be personally bound for the payment of the notes, or that the notes were made in consideration of any such agreement by him, or in consideration of the plaintiffs forbearing to sue the ice company on its indebtedness; and contained also a general denial of-the allegations of the complaint. The case shows that before the maturity of the notes the ice company became insolvent, and its assets passed into the hands of a receiver.; that on the maturity they were duly presented to the bank at which they were made payable, and payment demanded and refused, and they were duly protested for nonpayment; that thereafter, and on the 13th of July, 1891, the receiver paid to the plaintiffs $621.34 on said notes, and on the 31st day of May, 1892, the further sum of $627.56 was paid pn account of said notes; that to recover the balance unpaid on said notes this action was brought.

The principal question of law presented on this appeal is as to the defendant’s personal liability arising out of his alleged promise to pay the notes at maturity, or his liability upon the face of the notes as a joint maker. On the trial of the action, at the conclusion of the plaintiffs’ evidence, which, in the main, supported the allegations of the complaint, the defendant moved for a nonsuit on the grounds : (1) That the promise upon which this action is based against the defendant is not in writing, and therefore, within the statute of frauds, void. (2) That there is no evidence or pr.iof that the promise was for the defendant’s special benefit. (3) That it appears from the proof that the debt was due from the Mutual Benefit Ice Company, and there is no proof that defendant intended to or did become personally liable for it; that, upon the testimony of We ver and Honsinger, defendant did not charge himself with the payment of the debt in question. (4) That it appears from the pleadings that the notes were made by the corporation, and no promise of Mulford to pay them, which is not in writing, can bind him; that, if the promise to pay by Mulford was made, as stated by Honsinger and We ver, it was a promise to answer for the debt of another, and void. This motion was denied, and defendant duly excepted. The evidence on the part of the defendant tended to show that Mulford made no individual promise or agreement to pay the notes or the indebtedness, and was in substantial conflict with the testimony offered on the part of the plaintiffs. At the conclusion of the defendant’s testimony, and when the testimony was closed in the case, the defendant renewed his motion for a nonsuit upon the same grounds stated in the original motion, which was also denied by the court, to which the defendant excepted.

If this case turned upon the question of fact as to whether defendant did or did not agree to pay the amounts of these nptes, the jury were authorized to find, from the evidence, either for the plaintiffs or defendant; and their verdict for the plaintiffs was therefore upon a disputed question of fact, and could not be disturbed by this court on appeal. It therefore becomes a question of law, to be determined on this appeal, whether, upon the facts as disclosed by the plaintiffs’ evidence, a legality was established against the defendant personally. It is insisted on the part of the defendant that the paroi promise of the defendant to pay these notes was a paroi collateral promise to answer for the debt, default, or miscarriage of the Mutual Benefit Ice Company, and was, therefore, a promise to answer for the debt or default of another, and, not being in writing, and signed by the defendant, was void, within the statute of frauds. The language of the statute is:

“ Every special promise to- answer for the debt, default or miscarriage of another person shall be void, unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged thereby.”

The above is the language of the statute, although transposed. But it is insisted on the part of the plaintiffs that the defendant cannot avail himself of the defense of the statute of frauds, because the same was not specially pleaded in his answer. On the trial of this action, when paroi evidence was offered by the plaintiffs to prove the negotiations between the parties, or prior thereto, and which seem to have led up to the making of these notes, such evidence was objected to by the defendant by the following specific objection:

“ Defendant objects that, if any promise was, to be proved of the nature alleged in the complaint, it must be in writing; otherwise it was void under the statute of frauds.”

This objection was overruled by the court, and the defendant duly excepted. - It will be observed that the complaint, in setting out what is claimed to be the special contract of the defendant to pay these notes, is silent as to whether the promise was in writing or by paroi. The answer of the defendant denied the making of any such contract, and the question here presented is whether such denial was equivalent to an allegation that any paroi agreement would not amount to a valid contract, and in that form put in issue the question whether the contract alleged by the complaint was ever made in a form such as to amount to a valid agreement. It is well settled upon authority that a defendant cannot avail himself of the defense of the statute of frauds unless he either pleaded the same in his answer, or, where he has denied the plaintiff's allegation of the existence of a contract, objects to the introduction of paroi evidencé to prove an agreement which the statute requires should be in writing. In Barrett v. Johnson, 77 Hun, 528; 60 St. Rep. 271, Herrick, J., in discussing the rights of a defendant to avail himself of the defense of the statute of frauds, uses this language:

“The complaint of the plaintiff and the answer of the defendant were both in writing. The defendant, in his answer, did not plead the statute of frauds as a defense, although it will be seen from the substance of the complaint, as hereinbefore stated, he was fully apprised of the nature of the plaintiff's claim. Neither was there any objection made by the defendant upon the trial to the reception of the evidence establishing the contract by paroi.”

And in Grampp v. De Peyster, 80 Hun, 135; 61 St. Rep. 622, the same learned judge, in discussing a similar question, uses this language:

“If we arrive at the conclusion that it was an agreement to pay the debt of another, then the defense of the statute of frauds, asserted by the defendant, is not available to him now, because he did not raise it by his answer, and the evidence establishing such paroi contract to pay the debt of another was not objected to by him, on the trial.v

In Crane v. Powell, 139 N. Y. 379; 54 St. Rep. 659, it was held, in an action upon an alleged contract, which was to be performed in one year, but where the defendant did not plead the statute of frauds, and permitted the plaintiff to prove, without objection, a verbal agreement to the effect set forth in the complaint, that a motion to dismiss the complaint on the ground that the agreement, not being in writing, was void under the statute, made at the close of the evidence, was properly denied.

These cases seem to give weight to the fact that the evidence, when offered to prove the contract, which, by the statute, was not objected to, and the' learned judge in the case last cited, on page 384, 139 N. Y., in discussing the statute of frauds, uses this language:

The statute of frauds does not prohibit the making of an ■agreement in any way that the parties may see fit, nor render them illegal or immoral, if not made in some particular way. It simply requires that certain agreements must be proved by writing. It introduces a new rule of evidence in certain cases without condemning as illegal any contract that was made legal before. The vital fact that was in issue in this case was whether the agreement set forth in the complaint was made.”

In the case last cited the evidence was offered and received without objection. The judge also, in the case last cited, adds:

- “When the proof is offered to establish it, that is not of the quality or character required by law, and it is not objected to, the other party is deemed to assent to another mode of proof of an inferior and secondary nature; and when such proof is in the ■case, the error, if any, is not reached by motion to dismiss the •complaint. Now, the plaintiff in this case gave proof of an oral agreement that the minds of the parties met, and that there was mutual assent with reference to the subject-matter; and this is ordinarily the very essence of a contract. It tended to sustain the complaint, as the defendant did not elect to insist upon the statutory form of proof, but virtually assented to the mode of proof that has always been sanctioned by the rules of the common law. Under these circumstances it seems to me that we cannot say that the finding of. the jury is without evidence to sustain it, or that the defendant’s exception to the refusal of the trial judge to dismiss the complaint is good.”

It will be observed that this case differs from the onb at bar in this: that the oral common-law proof was received on the trial without objection in this case, while in the case at bar the paroi evidence to establish the contract was objected to when offered, and the objection was overruled by the trial judge. No such objection and ruling were before the court of appeals in Crane v. Powell,

In Flora v. Carbean, 38 N. Y. 111, it was held that:

“ Where testimony tending to establish a material fact, although incompetent in its nature, is received without objection, the party has a right to insist upon the fact shown thereby or based thereon.” Sharpe v. Freeman, 45 N. Y. 808; In re Yates, 99 N. Y. 101.

It will also be seen from the reasoning of the learned judge and the cases cited that he by no means holds that, where the allegations of the complaint are denied by the answer, and objection is taken to paroi evidence at the time it is offered to prove the illegal contract, the defendant may not avail himself of the defense of the statute; and on page 385, 139 N. Y., and the judge uses this language:

“If the defendant neither pleads the statute nor objects to what may be called common-law proof of the agreement, it ought to be held, I think, even upon the authority of the earlier cases, that he has waived the objection. These views are confirmed and illustrated by the application of a-principle which is settled beyond debate. When the complaint alleges the verbal agreement within the statute, and the defendant, by his answer, admits it without pleading the statute as a defense, he is deemed to have waived its benefits.”

Citing several authorities with approbation, among which is Harris v. Knickerbacker, 5 Wend. 638. In that case Marcy, J., in delivering the opinion in the court of errors, where the statute of frauds was under discussion, uses this language:

“I apprehend that it is now settled that, if the defendant admits the agreement, and insists on the statute, he can protect himself from a decree for specific performance, notwithstanding his admission : but if he admits the agreement, but neither pleads the statute nor insists on it in his answer, he is deemed to have renounced the benefits of it. If the bill states generally a contract, which the law requires to be in writing, the court will presume it was made with the requisite formalities to give its validity, until the contrary appear. The defendant, in answering, may either plead that the contract was not in writing, or insist upon that fact in his answer. If he meets the allegation of a contract in the bill with a general denial, and the complainant is put to his proof to establish it,-he must show a written contract; and, if he does not, the evidence to establish the issue will be adjudged incompetent.”

Hone of the cases referred to by the learned counsel for the plaintiff in express terms controvert the law as laid down in the case last cited. On the contrary, .all seems to admit that, if the objectionable matter in the complaint is denied by the answer, and the defendant objects to paroi proof tending to establish the allegations of the complaint, he may, in that-way, defend himself from the illegal contract under the statute of frauds. The reason of that rule seems quite obvious. While it is true that the contracts required-by the statute of frauds to be in writing are held to be neither immoral nor improper in themselves, yet the statute declares them void; and, applying the legal maxim that “void contracts are as no contracts,” the defendant, by a general denial of the existence of such a contract, forces the plaintiff to- prove a contract in writing, or leave himself without the proof of any legal contract. Under such circumstances, as was said in Harris v. Knickerbacher, supra;

“If he failed to prove a written contract, the évidence to establishjhe issue on his part will be adjudged incompetént."

If these views are correct, then the admission of paroi testimony of this contract was error, and the plaintiffs have failed by any competent evidence to establish the liability of the defendant, if it shall be found that the contract under consideration is one in Violation of the provisions of the statute of frauds.

This brings us to the consideration of the quéstion: Was the contract, as proved, a promise bythe defendant by paroi to answer-for the debt, default, or miscarriage of the Mutual Benefit Ice Company, the' maker of the notes? Since the enactment of the statute of frauds, the question as to what cases do or do not come within its provision has been the subject of elaborate discussion in the various courts of this state as well as in England. The side lights thrown upon this question by the numerous décisions along the line of judicial investigation have, from time to time, discussed the meaning, force, and effect of this statute, until its real interpretation must now be gathered from the recent decisions of the highest court in this state, giving construction and effect to this statute. It will be unprofitable here to undertake to enumerate or repeat the numerous decisions made upon this subject; and if we can apply the result of the decisions, as they are focused in the most modern "announcements by the court of appeals, to the facts of this case, we will accomplssh all that is profitable in its examination. This subject received an exhaustive examination in the opinion of the court as pronounced by FINCH, J., in White v. Rintoul, 108 N. Y. 222; 13 St. Rep. 495; and, after examining the cases of Leonard v. Vredenburg, 8 Johns. 29 ; Mallory v. Gillett, 21 N. Y. 412; Brown v. Weber, 38 N. Y. 187; and Ackley v. Parmenter, 98 N. Y. 425,—and comparing the decisions in each of these leading cases, respectively, with the others, and discussing the modifications of the rules applicable to this statement that were made from time to time in each of these cases as compared with the cases preceding it, he sums up his conclusion in the following language:

‘“These four cases advancing by three distinct stages in a common direction have ended in establishing a doctrine in the courts of this state which may be stated with approximate accuracy thus: That whéfe the primary debt subsists, and was antecedently contracted, the promise to pay it is original when it is founded in a new consideration, moving to the promisor, and beneficial to him, and such that the promisor thereby comes under an independent duty of payment, irrespective of the liability of the principal debtor.”

Applying that rule to the case at bar, does the alleged agreement of the defendant take the case out of the operation of the statute? Comparing the case at bar in its leading features with the case under discussion by Judge Finch, and applying the rule laid down by him and the result reached by him in that case to the case at bar, the answer to the above question, it seems to us, must be in the negative. It is undisputed in this case that the indebtedness sought to be recovered was the prior indebtedness of the Mutual Benefit Ice Company, and not of this defendant as an individual. The indebtedness, by the making of the notes in question by the ice company, continued to exist against that company as its indebtedness. There was no such valuable consideration moving to this defendant in the alleged agreement as to place him under an independent duty of payment, irrespective of the liability of the principal debtor. It is true that it was held in Watson v. Randall, 20 Wend. 201:

“ That an agreement to forbear to sue a debtor is a good consideration for a promise of a third person to pay the debt, but, to render the promise obligatory, it must be in writing.”

That rule does not seem to have been abrogated by the rule laid down in White v. Rintoul, supra; and if we are to look for a sufficient consideration to the promisor to take the case out of the statute, and make the debt on which this action is brought his debt, we find that no sufficient consideration of benefit to him exists in this case, when compared with the consideration which seems to exist, moving to the promisor, in the case of White v. Jiinioul. In that case the defendant, who was sought to be charged upon a paroi promise, was the father of one of the members of the firm owing the original debt, and was himself a creditor to a large amount of that firm. ' He was asked by the plaintiff in that action to indorse the note of the firm to secure its indebtedness to the plaintiff. This he declined to do. The firm notes were held by the plaintiff, and just before maturity the defendant stated to plaintiff “that the only and best way would be to give the firm time; that it was late in the season, and that by waiting until next summer they could sell their beer, and that he would pay the plaintiff for the two notes.” The plaintiff claims that pursuant to that request he waited, relying upon that promise, which he insisted was upon a consideration of benefit to the defendant, not only in the way of favor to his son, but to furnish him a better opportunity to collect the $5,000 the firm owed him which he stated in the conversation he might lose.

But the court, in passing upon that question, held that that was not a sufficient consideration, within the rule established, to take the case out of the statute, and that the promise came clearly within the meaning of a collateral promise to answer for the debt of another, and was void In the case at bar it is urged that the fact that „the defendant was a stockholder in the company, and therefore interested in having favors extended to the company, furnished a sufficient consideration to uphold his promise as an original agreement to pay the debt, and therefore made him primarily liable for its paymeut, and took the case out of the operation of the statute.

It has been frequently held that the relation of a stockholder to a company does not constitute him a party in interest, even to such an extent as to disqualify him, under section 829 of the Code, from being a witness against the representative of a deceased person as to a personal transaction between the stockholder and such deceased person. There was, therefore, no such direct interest moving to the defendant as a stockholder of the company as would uphold a promise by him to pay the debts of the company, and we can see no sufficient consideration moving to the defendant in his transaction with the plaintiffs to take the case out of the statute, and charge him with payment of these notes, irrespective of the liability of the debtor.

But it is urged that the note up“on its face charged the defendant with a liability as a maker, and that the word “ President,” suffixed to his name, is simply a description of the person, and not of the character of his liability, and we are referred to cases to support that contention. But this contention does not seem to be justified either from the acts of the parties as proved contemporaneous! v with the malting of the note, or from the allegations of the complaint. His liability under the complaint clearly arises, if at all, out of his contemporaneous paroi agreement, and not from the note itself.

The ninth paragraph of the" complaint charges : “ That on or about the 2d of September, 1890, the defendant, John Mulford, as president of said company, for value, received, made, executed, and delivered to the plaintiffs two certain promissory notes, of which the following is a copy.”

The notes, therefore, were notes of the company, and as between the original parties thereto in this case must be held as the notes of the corporation, and not as of the individual who signed them as president.

For the various reasons above stated, we are of the opinion that the plaintiffs failed in establishing a liability against the defendant personally, and that the court, on the motion of the defendant should have dismissed plaintiffs’ complaint.

Judgment must be reversed, and a-new trial ordered; costs to abide the event.


author: Gaynor. J.

text:
    Joseph Loader, Pl’ff, v. Brooklyn Heights Railroad Company, Def’t.

      (Supreme Court, Kings Special Term,

      Filed January, 1895.)

    1. Street railway—Burning op cars.
    A street railway company may not stop its cars for one hour, much less one week or one year to thereby beat the price or conditions of labor down to the price or condition which it offers.
    2. Same—Mandamus.
    In such case, a writ of mandamus may be allowed to.compel the corporation to perform its corporate duties.
    3. Same—Arrangements.
    Where it is admitted that the company is not fully operating its lines of road, it is the duty of the court to allow a writ "of mandamus, either in its peremptory or alternative form, unless a sufficient answer has been made in law.
    4. Same.
    Pending the question of hours and of wages between the company and its employes, the company has no right to stop its cars, while it is gradually getting other men.
    5. Same—Answer.
    Where the answer to an application' for a writ of mandamus raises an issue of fact, an alternative, but not a peremptory, writ may be granted, leaving such issue for trial.
    6. Same—Number op cars.
    The number of cars or trains, which a railroad shall run, is left to the discretion of its direcfors, subject to review by the courts upon an applica- . tian for a writ of mandamus to make it run more if the public convenience requires it.
    Application for a writ of mandamus to compel the railway company to run its cars.

      M. L. Towns and Delos McOurdy, for application; Thomas M Moore and eTullen T. Davies, opposed.
   Gaynor. J.

It is my duty to declare the law of this case. This railroad corporation is not in the position of a mere private individual or company carrying on business of private gain and free to suspend business temporarily or permanently at pleasure. On the contrary, it has a dual relation,—a public relation to the people of the state, and a private one to its stockholders. It must not be forgotten here, though it may seem to be growing dim, if not wholly -forgotten elsewhere, that in its chief aspect it is a public corporation, having duties to perform to the public which transcend any obligation which in its private aspect it owes to its stockholders. It has received franchises of great value from the state, and had conferred upon it the state’s transcendent power of eminent domain. In return it took upon itself the performance of public duties and functions, in the performance of' which it is, in law and in fact, not an independent individual or entity, but. the accountable agent of the state. Though these principles are xold, and inherent in the idea of the sovereignty of the people, it would seem that in the recent rapid growth of corporate power, and of the tendency to use public franchises for the aggrandizement of individuals first, and for the service and benefit of the public second, they have come to be somewhat overlooked, and need to be restated. They have often been declared by the highest courts of this state and the supreme court of the United States. Olcott v. Supervisors, 16 Wall. 687, 694; Bloodgood v. Railroad Co., 18 Wend. 9; People v. New York Cent. & H. R. R. R. Co., 28 Hun, 543. The duty of the company now before the court is to carry passengers through certain streets of Brooklyn, .and to furnish, man, and run cars enough to fully accommodate the public. It may not lawfully cease to perform-that duty for even one hour. The directors of a private business company may, actuated by private greed or motives of private gain, stop' business, and refuse to employ labor at all, unless labor come down to their condition's, however distressing; for such are the existing legal, industrial and social conditions. But the directors of a railroad corporation may not do the like. They are not merely accountable to stockholders. They are accountable to the public first, and to their stockholders second. They have duties to the public to perform, and they must perform them. If they cannot get labor to perform such duties at what they offer to pay,, then they must, pay more, and .as much as is necessary to get it. Likewise, if the conditions in respect of hours or otherwise which they impose repel labor, they must adopt more lenient or just conditions. They may not stop their cars for one hour, much less one week or one year, to thereby beat or coerce the price or conditions of labor down to the price or conditions they offer. For them to do so.would be a defiance of law and of government, which, becoming general, would inevitably, by force of example, lead to general disquiet, to the disintegration of the social" order, and even the downfall of government itself. Experience shows the wisdom of our fathers in retaining at least some bontrol of corporations to which are given public franchises for the performance of public duties. I shall quote from a, case decided upon appeal by the. supreme court of this state in 1883, after mature1 deliberation, and which is an authority I am bound to follow, even though I were not of the same view, and which, I need scarcely say, the corporation now before this court is bound to acquiesce in, and which I doubt not it will immediately acquiesce in, for example’s sake, if for no other reason. -That case arose out of the failure of the Hew York Central & Hudson River Railroad Company to receive and forward freight as a common carrier. The language of the court is as follows:

“According to the statements of the case, a body of laborers, acting in concert, fixed a price for their labor, and refused to work at a less price. The respondents (the railroad company) fixed a price for the same work, and- refused to pay more. In doing this neither did an act violative of any law, or subjecting either to any penalty. The respondents had a lawful right to take their ground in respect of the price to be paid, and adhere to it, if they chose; but if the consequence of doing so were an inability to exercise their corporate franchises, to the great injury of the public, they (the railroad company) cannot be heard to assert that such consequence must be shouldered and borne- by an innocent public, who neither directly nor indirectly participated in their causes.” People v. New York Cent. & H. R. R. R. Co., 28 Hun, 543.

The court in" that case allowed a writ of mandamus to compel the corporation to do its corporate duties.

That-a private citizen has sufficient standing to make this application, which could unquestionably be made by the attorney-general of the state, has heretofore been twice decided by this court, and I must accept it as law. And, it being admitted that the company is not fully operating its lines of road, it follows that it is my duty to allow the writ prayed for, either in its peremptory or alternative form, unless a sufficient answer has been made in law. I do not think the answer of the company is sufficient to prevent a writ from being issued. The claim of violence amounting to a prevention is not legally made out. Instances of violence, generally by others than the former employes of the company, are shown, but it is also, shown that not only the police force of the city, but also over 7,000 soldiers, are preserving order; and I cannot believe that this company is not protected in its rights, nor do I think any question of fact is fairly raised on that head. Besides, the persistence of the company in failing to run its cars except as it may gradually get employes to accept its terms, being in itself unlawful, as I have shown, must necessarily, by its bad example, tend to public disquiet, if not to some disorder. In respect of the question of hours and of wages between the company, and its employes, its duty was to have gone on, and now is to go on, with its full complement of employes, having the right gradually and from day to day to supersede its employes if it can, by new employes who will work on its terms, or to supersede them all at once when it has obtained a sufficient number of new employes for that purpose; but in such a controversy it has not the right to stop its cars while it is thus gradually getting other men. If the people of the state were running these roads, they would not thus incommode and damage themselves, and it must not be forgotten that this corporation is intrusted with the running of these roads as the servant of the people of the state.

It therefore -only remains for me to determine the form of the writ,—whether it shall be peremptory or alternative. In one aspect of the case, there seems to be an issue of fact presented; and, if such an issue be presented, the law does not permit me to decide it and allow a peremptory writ, but requires me to allow an alternative writ, which has the effect of reserving such issse of fact to be tried by a jury, or by the court, if so agreed-upon. At one place in its answer the company avers that a reason why its employes would not continue working for it was “ that it refused to run its cars as required by said employes, in respect to the frequency with which cars should be run, and the number of cars to be run.” The number of cars or trains which a railroad shall run is left to the sound discretion of its directors, subject to review by the courts upon an application for a writ of mandamus to make them run more if the public convenience require it. .Its employes may not assume to determine the number of cars to be run. If, however, this allegation in the answer refers to the controversy in respect of what are called “ trippers,” then it has no force, for that controversy is, in its essence, one in respect of hours and wages. Alternative writ is granted.


author: GIaynor, J.

text:
    Joseph Loader, Pl’ff, v. Atlantic Avenue Railroad Company, Def't.

      (Supreme Court, Kings Special Term,

      Filed January, 1895.)

    1. Street car company—Failure to run cars—Excuse.
    Where it does not appear that the civil authorities have failed to protect the company fully in its efforts to operate its road, the company cannot excuse a railure to run its cars on the ground that it has been prevented by violence from so doing.
    3. Same—Employes.
    “ The fact that the company cannot get employes to accept its terms, gives it no right to stop running its cars.
    3. Mandamus—Answer — Alternative writ.
    Under section 3070 of the Code, an alternative writ only can be granted in the first instance, where the answer to the application raises an issue of fact.
    Application for a writ of mandamus to compel the railroad company to run its cars.

      M. L. Towns and Delos McOurdy, for application; Thomas E. Moore and Julien T. Davies, opposed.
   GIaynor, J.

To deny this application, I would have to decide that this company is prevented by violence from operating its roads ; but that I cannot find, upon the papers before me. I do not find that the city and the state have failed to fully protect its power house, its stations, its roads, and the cars it has offered to run. I do not find that the government has failed at all in its obligation of protection. The answer to the statement that there have been instances of violence is that they were swiftly suppressed. I cannot acquiesce, or even seem to acquiesce, in statements which have made it appear that mob riot has ruled in Brooklyn, and which have not only given a law-abiding community a bad name, but, by exciting fear in many, must have done incalculable damage to business interests. To try to forcibly prevent the company from doing its public duties would be lawlessness ; while, on the other hand, for the company to ¿top running cars to beat down the price or lawful conditions of labor would be lawlessness of a much more dangerous and far-reaching character. The company’s public duty is to run its cars, and it may not lawfully cease to do so on the ground that it cannot get men to work at the price or conditions it offers. The law requires it to continue to run its cars to the full accommodation of the-public, leaving it free to supersede its men from day to day by men who are willing to work on its terms, or to supersede them all at once when it has obtained men enough to enable it to do so. ' In all lawful conduct the company is entitled to the full protection of government, but it is not entitled to such protection to .aid it in lawlessness. The relation between it and government is reciprocal. Performance of duty, on the one side, and protection, on the other, go hand in hand. But the company, by its answer, having raised issues of fact, the law requires that an alternative, instead of a peremptory, writ be issued, so that there may be a jury trial. Code Civ. Proc. § 2070. This court cannot change the law, but must obey it, whether it be obeyed elsewhere or not. If it be a defect in the law that the time for the trial of such issues may not be shortened by the court, the suggestion is one to be made to the legislature, not to the court. Let the writ issue.