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

text:
    James Walsh, an Infant, by his Guardian ad litem, etc., Resp’t, v. Fitchburg Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Negligence—Railroads—Turntables.
    Where a company leaves unguarded a turntable at an accessible place, it is liable for injuries therefrom to children non sui juris who are attracted to the premises to play with it, in the absence of fault or negligence on the part of parents or guardians.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      T. F. Hamilton, for app’lt; Townsend, Boche & Nason {Henry T. Nason, of counsel), for resp’t.
   Mayham, P. J.

The plaintiff, James Walsh, aged about five years, went upon the premises of the defendant, in company with other children, and, while playing upon a railroad turntable of the defendant, was injured. The turntable was located on the line of the defendant’s railroad. This turntable was located in an open space in the city of Troy, and pedestrians were in the habit, without any special consent or objection of the defendant, of passing over this space near the turntable, in going from one point or street in the city to another. It is also in proof that children were in the habit of playing upon the turntable, some riding upon the same, while others revolved or turned the same by getting into the pit in which it was located, and pushing it around. The table was of the ordinary construction, and of the same kind in use by the defendant at various other points on the line of the defendant’s railroad. It revolved easily upon a pivot in the centre, upon which it rested, and at the time of the injury was being pushed around by a lad 15 or 16 years old. It was not kept locked or bolted when not in use by the defendants. The evidence showed that the plaintiff, who resided with his mother, about 300 feet from the turntable,' bad been forbidden going onto, or playing on, the same,and at the time of the injury he had eluded his mothers vigilance, and gone upon the table, without her knowledge or consent. ibis case has once before been before this court, on an appeal from a judgment of nonsuit, and was sent back for a new-trial on the ground that the question of the negligence of the mother, in permitting this child to escape upon this turntable, and also the question of the negligence of the defendant, in allowing this table, without being bolted or locked, to be open, and accessible to children who desired to play upon the same, were both questions of fact for the jury. Walsh v. Fitchburg Railroad Co., 67 Hun, 604; 51 St. Rep. 240. The court then held, upon the authority of Kunz v. City of Troy, 5 St. Rep. 642, that it was not negligence per se to allow children non sui juris to play in the public street, and whether or not it was negligence depended upon circumstances, which must be,submitted to the jury. But it is claimed by the learned counsel for the appellant there is a distinction bétween a public street, where all may lawfully be, and private property, which is ¡lawfully open to the entry of the owner and his servants only, and that, so long as the turntable was properly constructed for the use of the defendant on its own premises, the defendant owed no duty to the plaintiff, who, at, mo§t, was there only under an implied license, growing out of the frequenting of this place by children for play without objection. In support of this doctrine, he cites Larmore v. Crown Point Iron Co., 101 N. Y. 391; 1 St. Rep. 43; Splittorf v. State, 108 N. Y. 205; 13 St. Rep. 472 ; Cusick v. Adams, 23 St. Rep. 548 ; Murphy v. City of Brooklyn, 118 N. Y. 575; 29 St. Rep. 858. All of these cases proceed upon the theory that a defendant, who has lawfully placed upon his own premises something by which another is injured while trespassing thereon, is not liable therefor, on the ground that he owes no duty to such trespasser,— a doctrine well established by authority, and which, in the abstract, cannot be questioned. But the evidence in this case seems to disclqse an element not found in any of the cases cited. That element was the allurement and attraction furnished by this revolving table to the playful instincts of children, against which the defendant seems not to have furnished any protection, and, by indulging children in the use of which, the defendant seems to have extended to them an implied license, without the revocation of which it could not have treated their entry as trespass. This element the learned trial judge submitted to the jury, to say whether the defendant, under all the circumstances, had invited, allured, or enticed the plaintiff upon the premises, to play with the turntable, ahd, if it had, whether such turntable was left in-such a condition as to charge it with any resulting injury. This rulingffollows .the determination of this court when the case was here on a former appeal. Walsh v. Fitchburg R. R. Co., 67 Hun, 604; 51 St. Rep. 240. It is also in harmony with the decision of the United States supreme court in Railroad Co. v. Stout, 17 Wall. 657. In that case, Henry Stout, a boy six years old, without the knowledge of his parent, went, in company with two, other boys (one nine, and the other ten, years old), to the defendant’s railroad depot, and from there, at the suggestion of one of their number, to the defendant^ railroad turntable, to play. The turntable was a heavy structure, composed of wood and iron, but so balanced as to turn easily upon its center pivot or axle. It was not locked or bolted, nor was it watched or guarded by any employe of the company. While the ■other two boys were turning or revolving the table, the plaintiff attempted to climb upon it, when one of his feet was caught between the end of the rail on the turntable and the end of the rail on the stationary track, and was crushed. For this injury the plaintiff sued the railway company, and recovered a judgment. Two cases could scarcely be more nearly alike than that case and the one at bar. In delivering the opinion of the supreme court of the United States on appeal to that tribunal, Justice Hunt uses this language: “ That the turntable was a dangerous machine, which would be likely to cause injury to children who resorted to it, might fairly be inferred from the injury which actually occurred to the plaintiff. There was the same liability to injury to him, and no greater, than existed with reference to all children. When the jury learhed from the evidence that he had suffered serious injury by his foot being caught between the fixed rail of the roadbed and the turning rail ón the table, they were justified in believing that there was a probability of the occurrence of such accidents. So, in looking at the remoteness of the machine from inhabited dwellings, when it was proved to the jury that several boys from the hamlet were at play there on this occasion, and that they had been at play upon the turntable on other occasions, and within the observation and to the knowledge of the employes of the defendant, the jury was justified in believing that children would probably resort to it, and that the defendant should have anticipated that such would be the case. As it was the fact on this occasion, so it was to be expected that the amusement of the boys would have been found in turning this table while they were on it, or .about it. This could certainly have been prevented by locking the turntable when not in use by the company. It was not shown that this would cause any considerable expense or inconvenience to the defendant. * * * The j ury may well have 'believed that if the defendant had incurred the trifling expense of replacing the latch, and had taken the slight trouble of putting it m its place, these very small boys would not have taken the pains to lift it out, and thus the whole difficulty would have been avoided Thus reasoning, the jury would have reached the conclusion that the defendant had omitted the care and attention it ought to have given, that it was negligent, and that its negligence causea the injury to plaintiff.”

In Mullaney v. Spence, 15 Abb. Pr. (N. S.) 319, it was held that the defendant, who operated a coal elevator upon his own land by machinery calculated to attract the curiosity of children, was liable for injury to a child non sui juris, who was attracted into and upon the defendant’s premises, which were not guarded or protected, and was injured, although the child was technically'a trespasser upon the defendant’s land; and, although this was the determination of the general term of the city court of Brooklyn, it seems to have been well considered, and the learned judge cites Lynch v. Nurdin, 41 E. C. L. 423; Vale v. Bliss, 50 Barb. 358 ; Birge v. Gardner, 19 Conn. 506; Whirky v. Whiteman, 1 Head, 610; Mangara v. Brooklyn Railroad Co., 38 N. Y. 455 ; Cosgrove v. Ogden, 49 id. 255. While the question cannot be regarded as entirely free from doubt, the weight of authority seems to be that if a defendant erect and maintain upon his own land, for his own use, a structure capable of inflicting injury to persons, and, by its appearance and operation, calculated to attract or allure children non sui juris, and to endanger their lives or limbs, and leaves the same unguarded, and injury results therefrom to such children, without the fault or negligence of their parents or guardians, it is negligence on the part of the' defendant, for which a recovery may be had; that under such circumstances the party erecting and maintaining such dangerous structure owes a duty to society to so guard the same that young children shall not be lured thereto, to their destruction.

If we are right in this, the only remaining question is as to the amount of damages in this ease.

While the damages in this case are larger than we, sitting as jurors, might have awa'rded, we m'ust recognize the fact that ordinarily it is the province of jurors, under proper instructions, to regulate the amount of damages to be awarded in a given case, and that the court should not usurp that prerogative of the jury unless the damages are so disproportionate to the amount of injhry suffered as to evince bias, prejudice, or passion on the part of the jury. We fail to see in the amount of this verdict any evidence of the presence of such improper emotions "on the part of the jury. We think the trial judge was right in denying a motion to set aside the verdict as excessive.

Judgment and order denying a motion for a new trial affirmed, with costs.

Putnam, J.

The decision of the court in Walsh v. Fitchburg Railroad Co., 67 Hun, 604 ; 51 St. Rep. 240, renders an affirmance of the judgment necessary, and I therefore concur.

Herrick, J., concurs.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    First National Bank of Lowville, Resp’t, v. George D. Moffatt et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    1. Fraudulent conveyances—Son as grantee.
    The fact that a debtor conveyed his land to his son for an alleged preexisting debt, is evidence of an intent to defraud creditors.
    2. Evidence—Declarations—Grantor.
    The declarations of the grantor are admissible to contradict his testimony given on the trial.
    3. Equity—Belief.
    Courts of equity have power to award such relief as the exigencies of , the case require.
    Appeal from a judgment in favor of the plaintiff.

      Hannibal Smith, for app’lts; Charles S. Mereness, for resp’t.
   Hardin, P. J.

Plaintiff, as a judgment creditor of George D. Moffatt, after execution returned wholly unsatisfied,- brings this action to set aside conveyances of lands described in the complaint, and alleges the conveyances were fraudulent. The trial court has found as matter of fact that when plaintiff’s debt was contracted by the debtor, in 1886, he was the owner in fee simple of the real estate described in the complaint, being a farm of forty-eight acres, with farm buildings, which the debtor occupied then, and has continued to occupy down to the time of the trial. The value of the property was from twelve to fourteen hundred dollars. On the 11th or 12th of July, 1889, an agent of the plaintiff had an interview with the debtor, with a view of obtaining payment of plaintiff’s debt, or a mortgage from the debtor on his farm, and the debtor left his deed of the lands with the agent, and promised to see him again, and arrange the matter. Instead of doing so, he returned from Lowville to liis home, in Montague, and formed a plan to convey the land to his sons, and in pursuance of that plan returned to Lowville, and had a deed drawn and' executed on the 13th of July, 1889, by means of which he conveyed and transferred to his sons all his property. He was careful to disregard the arrangement made with plaintiff’s agent, and to keep the knowledge of his conveyances from the agent and from the plaintiff on the occasion of the execution of the deed to his sons. The trial court has found that the deed “was made, executed, and delivered by the grantor therein, and accepted by the parties, with intent to liinder, delay, and defraud the creditors of the said George D. Moffatt, especially the plaintiff in this action.” There was evidence tending to support the finding, and, as it was a question of fact, we are not inclined to disturb the finding, inasmuch as the evidence supports the conclusion reached by the trial court. Scofield v. Spaulding, 54 Hun, 527; 28 St. Rep. 108, and cases cited in the opinion; Partridge v. Stokes, 66 Barb. 586. In Allen v. McLendon (N. C.) 18 S. E. 206, it was said: “ It is proper to instruct the jury that the law looks with suspicion on a transaction wherein one indebted to others conveys his property, or a part of it, to a brother-in-law, for an alleged pre-existing indebtedness.” We see no reason why the same rule should not obtain where a conveyance is made by a father to his sons.”

2. George D. Moffatt was called and sworn as a witness in behalf of the defendants, and gave material evidence upon the vital issues in the case. When the case was under consideration by the trial judge he ruled that the evidence of Bush, which had been received, and as to which the ruling had been reserved, was admissible, and the defendants have taken an exception to that ruling, and now claim that the court erred. We think the ruling was correct. Bush's evidence was admissible for the purpose of contradicting and qualifying the evidence of Moffatt, and it also furnished some evidence of [he acts and conduct of Moffatt tending to support the contention of the plaintiff that the conveyance made by him was fraudulent. In Wright v. Nostrand, 94 N. Y. 41, where a similar question was presented, the court said the “evidence was competent not -only for a limited purpose as against him [the debtor] as an admission in the case made by one of the defendants therein, but was also competent, at the time it was offered, as against all the defendants for the purpose of affecting the credibility of the testimony given by such witness for them on the trial.” See Scofield v. Spaulding, 54 Hun, 527; 28 St. Rep. 108; Loos v. Wilkinson, 110 N. Y., 211; 18 St. Rep. 110. The case of Vidvard v. Powers, 34 Hun, 221, is distinguishable from the case before us. The declaration of Hedden was made after the transaction which was involved in the issue, and no conspiracy was “shown or alleged.” In Petrie v. Williams, 68 Hun, 597; 52 St. Rep. 587, the evidence offered of the declarations of Breen was taken subsequent to the transfer of the notes, and it was admitted as against Williams as affirmative proof, the vendor not having been sworn as a witness. The case does not support the contention of the appellant here. We find nothing upon the appellants’ brief submitted to us adverting to or discussing the ruling made at folio 159, when the deposition of Alvinza Moffatt’was offered in evb dence. Perhaps, if we were to follow Cummings v. Morris, 3 Bosw. 578, and Mayor, etc., of New York v. Hamilton Fire Ins. Co., 10 Bosw. 538; affirmed 39 N. Y. 45, we might assume that the exception taken to the .ruling then made was waived. However, it may be observed that the objection taken to the deposition was “that it is incompetent, being no part of a transaction.” It is not improbable that the trial judge was of the opinion that it .was not necessary that the deposition, in order to be competent evidence, should be a “part of a transaction,” and therefore overruled the objection. No request at a later stage of the case seems to have been made that the deposition be regarded simply as evidence against Alvinza Moffatt, and not evidence against the other defendants. After a careful inspection of the testimony found in the deposition, and a comparison of the same with the testimony given by Alvinza Moffatt- when upon the stand as a witness, it is not apparent that there was any grave difference between the utterances of the witness when giving the deposition and the utterances of the witness upon the stand. We think the judgment ought not to be disturbed because of the ruling we have been considering.

3. Courts of equity have power to award such relief as the exigencies of the case require. Valentine v. Richardt, 126 N.Y. 272; 37 St. Rep. 12. The special term did not exceed its jurisdiction and powers in awarding relief, and its judgment should remain.

■ Judgment, so far as appealed from, affirmed, with costs.

Merwin, J., concurs; Martin, J., not voting.


text:
    The People, Resp’t, v. Harry Burton et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    1. Evidence—Arson—Conduct before fire.
    On á trial oí an indictment for arson, evidence of the movements of defendant just before the fire is admissible. »
    3. Arson—Sufficient proof.
    The evidence was held sufficient, in this case, to require the question of the defendants’ guilt or innocence to be submitted to the jury. '

      ■S. Trial—Comments op district attorney.
    The district attorney has a right to allude to any circumstances disclosed hy the evidence, which, in his view, renders the story of the defendant improbable.
    4. Same—Question op pact.
    .The question whether there is any motive for the crime disclosed by the evidence, is one of fact for the jury to determine.
    5. Same—Charge.
    The court cannot be required to repeat a portion of his charge, or answer again to different portions as analized by the counsel.

      ■S. Witness—Credibility.
    The degree of credence to which a party is entitled is to be decided by the jury, and not the court.
    Appeal from a judgment of conviction for arson.

      Gibbs & Wilbur, for app’lts; Frank L. Smith, Dist. Atty., for the People.
   Hardin, P. J.

From, the evidence it appears that the blacksmith shop mentioned in the indictment is a wooden building, and was discovered on fire at the rear end thereof, and being situated within about three feet of the Lacey block, which is also a wooden •building, and the roof of the blacksmith shop is built into or against the Lacey block. The description of the location of the buildings and their situation with respect to each other sufficiently indicates that the fire in the blacksmith shop endangered the Lacey block. The fire was discovered about 4 o’clock in the morning of June 14th, on the outside of the blacksmith shop, at rear end thereof; and the circumstances attending the discovery of the fire sufficiently indicate that it was caused by an incendiary-.act, and warranted the jury in finding the fire was incendiary. The evidence also indicated that the defendants had spent the ■larger portion of the night in and'about the village, drinking and ■carousing, and that they had passed these premises several times during the night, in company with each other; and that about 2 •o’clock preceding the fire one of the defendants endeavored to ob•tain beer from one Hecox, who conducted the business of bottling ■beer in the basement of the Lacey block, next to the blacksmith •shop, and that, upon being refused, he became angry. The defendants were in company with one Osterhout and others a portion of the night preceding the discovery of the fire, and had been •drinking very extensively in the yard of the boarding house, where one of the defendants boarded, about 1 o’clock at night, when they were driven out of the yard by the keeper of the boarding house. Subsequently, in company with Osterhout, they went up the street, passing in the vicinity of the blacksmith shop ; and when they reached the Windsor hotel one of the defendants got possession of six bottles of lager beer, after drinking some at the hotel; and that, after obtaining the bottles of beer, they went back down Main street, passing the blacksmith shop, and halting near the residence of Barnes, where they continued their drinking. In speaking of the movemepts of the defendants, Osterhout testifies: “We went down Main street, by this 'blacksmith shop, and down to and in front of the residence of A. M. Barnes, the undertaker, and there is a low stone wall next to the sidewalk. We drank the lager up, laid the bottles on the bank. I said I would fetch the bottles back, and they proposed to set-the building afire. I can’t tell which one spoke -first. They both talked about it. . They did not say what building. They didn’t say with reference to any wooden building. They said they wanted to set fire where it would make the biggest fire. They said I had better go along. I told them I wouldn’t, and got up, and picked up the bottles, and went back to the Windsor. They got up, and started in the opposite direction, as I started up the street. I started up the street, and went to the Windsor hotel, and they started towards the railroad track.”

It appears by this witness that upon reaching the Windsor hotel a conversation was had, and the witness continues: “I heard one of them say,-—I can’t tell which one it was,-—said ‘There will be a helVof a time around there in a few minutes.’ I can’t say whether it was Clapper or Burton that said that. They were both present when one of them said it. They went right out. Didn’t stay there over five minutes, I don’t think. They went out together. I couldn’t say how long after they went out before I heard an alarm of fire. Oh, it might have been twenty minutes or half an hour. It might not have been to long as that. The alarm I heard was, Bissell went up stairs to call the help, came down stairs, and he says, ‘By God, there is a fire out there.’ Fred Bissell, the clerk, said so. I went out doors then, and I saw the fire in back there. I couldn’t tell just exactly where it was .then. It was down on Main street. The hose cart came down along there, but I could see the fire on the rear of the blacksmith shop from the Windsor when I came out.”

We think the evidence produced upon the trial was such that the court was required to submit the question of the guilt or innocence of the defendants to the jury, and that there is sufficient evidence in the case to warrant the finding made by the jury.

2. We think no error was committed by the trial court in receiving evidence of the movements and acts of the defendants during the night at a short period prior to the breaking out of the fire. The declarations of the defendants were not received for the purpose of establishing an independent crime, but rather with a view of establishing the condition of mind they were in. As said in People v. Everhardt, 104 N. Y. 595; 5 St. Rep. 793: “Such proof is not received for the purpose of showing other crimes than that charged in the indictment, but for the purpose of showing the guilty knowledge and intent, which are elements of the crime charged.”

3. We are of the opinion that the court committed no error in refusing to advise an acquittal of the defendants at the close of the evidence offered by the people. The learned counsel for the appellants endeavors to escape the force of some of the evidence given by the people upon the suggestipn that some of the admissions made are to be taken with caution, and calls our attention to Law v. Merrills, 6 Wend. 277. In that case it was said that “evidence to establish a fact by the confessions of the party should always be scrutinized, and received with caution.” We assent to the doctrine, and we must assume that the jury performed its duty in scrutinizing, weighing, and comparing the admissions shown to have been made with all the facts and circumstances appearing in the case. Our attention is also invited to Garrison v. Akin, 2 Barb. 27, where Judge Harris, in speaking of admissions, says: “It is so easy, too, by the slightest mistake or failure of recollection, totally to pervert the meaning of the party, and change the effect of his declarations, that all experience in the administration of justice has proved it to be the most dangerous kind of evidence, always to be received with great caution, unless sustained by corroborating circumstances. Then, indeed, the character of this species of evidence is changed, and the mind receives it without suspicion.”

We think it was, within the spirit of that authority, the duty of the trial judge to submit the force and effect to be given to the declarations or admissions of the defendants to the jury, and that no error was committed in that regard.

4. Defendants called one Jones as a witness, who" was a baker by trade, and the bakery in which he was at work on the night of the fire was in a small store in the basement on the opposite side of the street from the blacksmith shop, and a little further east; and he testified that about 10 o’clock of the night in question the defendant Clapper entered his shop, and that Burton was on the sidewalk; arid that he saw him, after that, in the bake shop, at half past 12, and received from him a couple bottles of beer; and that he next saw him, about half past 3 or 20 minutes to 4, coming across the railroad track on Main street, coming towards the bakery, and from the direction of Mrs. Martin’s, where he was boarding, and that Burton was with him. The witness continued: “They were wrestling and punching each other, as boys would that had a little in them. Burton couldn’t get along very well. I couldn’t say whether they got down in the dirt. They were tumbling around there quite a little this side the crossing. When crossing there they were on the sidewalk and in the highway both. That was at half past three, and I was in the bake-shop door. I next saw them, after seeing them at the crossing, come up by the old blacksmith shop, on the other side of Main street (I don’t know who owns it), by Mrs. Fox’s millinery store, which is on the same side of the street as the bakery. I was in the door of my bake shop. They came right along up past Grove street, and down to me, and past the blacksmith shop in question. They stopped there, and Mr. Clapper came down to me, and got a few cakes,—cookies I had baked, that lay on the table. He wanted to get money of me. I should say he was there about twenty minutes. He ate some cookies, and was monkeying with the bread, and wanted to get some money of me. * * * When they left my bakery it was about five minutes to four, which was the last I saw of them until I went home to breakfast. I heard the alarm of fire. I was the first that heard it, about five, eight, or ten minutes, or something like that, after defendants left me.”

This witness was very extensively cross-examined as to all the circumstances mentioned by him in his testimony in chief, and as to the surrounding obstacles and buildings, and as to the maneuvers and whereabouts of the defendants; and when the district ' attorney was summing up, the defendants’ counsel asked the court to direct the district attorney “that there is no evidence in this case that there are buildings to obstruct the vision of the witness Jones from the bake shop to the crossing.” The request was refused, and an exception was taken, and the court thereupon remarked, “I will leave it to the jury to say whether there are any buildings or not.” In the course of the opinion delivered in People v. Rohl, 138 N. Y. 620; 52 St. Rep. 147, it was said: “The district attorney had a right to allude to any circumstances disclosed by the evidence, which, in his view, rendered the story of the defendant improbable.” See, also, Fry v. Bennett, 3 Bosw. 243. We think the trial court committed no error in refusing to place the restrictions upon the district attorney requested by the defendants.

After the trial judge had delivered a careful charge covering all the essential elements of the case, he was requested to charge “that the jury may and should take into consideration that no motive has been shown on the part of the defendants to commit the offense charged.” The court refused the request “upon the ground that it is the province of the jury to say whether there is motive or not from the evidence,” to which the defendants excepted.

In Shepherd v. People, 19 N. Y. 544, Judge Dentó, in speaking of the ground upon which evidence of motiye inducing the commission of a crime in cases resting upon circumstantial evidence is received, says: “It does not of itself prove anything, but it tends to remove the improbability of his having done an act which he must have known to be wrong.”

In People v. Bennett, 49 N. Y. 138, Church, C. J., in speaking for the court, says: “Motive is an inducement, or that which leads or tempts the mind, to indulge the criminal act. It is resorted to as a means of arriving at an ultimate fact; not for the . purpose of explaining the reason of a criminal act, which has been clearly proved, but from the important aid it may render in completing the proof of the commission of the act when it might otherwise remain in doubt. With motives, in any speculative sense, neither the law or the tribunal which administers it has any concern.”

In People v. Trezza, 125 N. Y. 740; 36 St. Rep. 149, it was • said: “Whether the acts of the accused proceeded from some motive, or from general depravity of mind and a reckless disregard-of human life, in either case, in the absence of lawful excuse or justification, if the other elements of the crime charged are proved, a conviction is proper.”

In People v. Minisci, 12 St. Rep. 719, Smith, P. J., said, in speaking of motive : “ It is enough that the evidence does not absolutely exclude the existence of motives.”

We think no error was committed by the trial judge in leaving the question, as one of fact, for the jury to determine,—whether there was a motive for the crime disclosed by the evidence.

Defendants also requested the court to charge “that the defendants are presumed innocent until they are proven guilty, and that the burden of proof rests upon the people to satisfy them beyond a reasonable doubt.” This request was refused by the court “upon the ground that he had so charged already,” to which refusal the defendants excepted. In the body of the charge it was said: “The defendants are presumed to be innocent until the contrary is proved, and, in a case of reasonable doubt as to the guilt of either of them, that one is entitled to an acquittal.” We think the trial judge properly refused to repeat that portion of his charge in response to the request made. The benefit of a. reasonable doubt was suggested in the course of the charge, and no rule of law was violated in that regard. Raymond v. Richmond, 88 N. Y. 671. We think the trial court observed the rule laid down in O' Connell v. People, 87 N. Y. 377, and, as was said in that case, “the court could not be required to repeat it [a portion of his charge], or answer again to different portions as analyzed by the counsel.”

5. Appellants criticise the testimony of Osterhout, and refer to the testimony of the defendants, and urge upon this court to hold that the jury have found contrary to the testimony of the defendants. We think it was for the jury to determine what credence should be given to Osterhout, and what faith and credit should be given to the defendants as witnesses in their own behalf. In Newman v. People, 63 Barb. 631, it was said: “ The degree of credence to which he [the defendant] was entitled was to be decided by the jury and not the court.” In speaking of the force and effect that should be given to the verdict of a jury, it was said in People v. Taylor, 138 N. Y. 398; 52 St. Rep. 914, that the court will not interfere with it “unless it is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake, or corruption. The fact that there is, in the judgment of the court, a rational doubt of the guilt of the defendant, is not a sufficient ground for a reversal.” Applying the rule thus laid down to the evidence presented in this case, we are of the opinion that the verdict should remain. See § 542. Code Cr. Proc. Conviction and judgment of the court of sessions of Otsego county affirmed, and, after the judgment is entered in the judgment book, a certified copy of the entry shall be forthwith remitted to the clerk of Otsego county, “with whom the original judgment roll is filed,” in accordance with § 547, Id.

All concur.


author: Hardin, P. J. Martin, J. (dissenting).

text:
    George S. Tillinghast, as County Treasurer, etc., Resp’t, v. J. Herman Merrill, as Supervisor, etc., et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    Supervisors—Public moneys.

      A supervisor and his sureties are liable for moneys which come to the principal’s hands, are by him deposited in a private bank, and subsequently lost by reason of the failure of such bank, though the bank was solvent and in good standing at the time of the deposit.
    Appeal from, a judgment in favor of plaintiff.

      Henry B. Coman, for app’lts; John H. Smith and Joseph Mason, for resp’t. \
   Hardin, P. J.

Under chapter 555 of the Laws of 1864 it is made the duty of the school commissioners in each county to apportion the public money, and prepare a certificate thereof to be delivered to the supervisor, and to deposit a copy in the office of the respective town clerks; and § 30 of the act provides that the moneys so apportioned to the towns shall be paid to the respect-' ive supervisors immediately upon their compliance with the requirements of § 31 of the act. Section 31 provides as follows: “Immediately on receiving the commissioners’ certificate of apportionment, the county treasurer shall require of each supervisor, and each supervisor shall give to the treasurer in behalf of the town, his bond with two or more sufficient sureties approved by the .treasurer, in the penalty of at least double the amount of the school moneys set apart or apportioned to the town, and of any such moneys unaccounted for by his predecessor, conditioned for the faithful disbursement, safe keeping and accounting for such moneys, and of all other school moneys that may come into his hands from any other source. If the condition shall be broken, the county treasurer shall sue the bond in his own name, in behalf of the town, and the money recovered shall be paid over to the successor having first.given security as aforesaid.”

It is provided in § 32 that the “refusal of a supervisor to, give such security shall be a misdemeanor. * * *” In § 3 of title 4 of the act it is provided as follows : “A supervisor who shall embezzle or apply to his own private use any money or security received by him under any provisions of this act, including the two preceding sections of this title, shall be guilty of a misdemeanor. * * * ”

Pursuant to such legislation, the appellant Merrill, as princi-” pal, and the other appellants as sureties, executed and delivered the bond prescribed by statute, which contained the following conditions, to wit: “ That if the above bounden, J. Herman Merrill, supervisor, shall safely keep, faithfully disburse, and justly account for all the school moneys which have or shall come into his hands, apportioned and paid from the state treasury, and all other school moneys that have or may come into his hands from any other source, then this obligation to be void; otherwise, to remain in full force and virtue.”

Upon that bond this action is brought, and the complaint alleges a breach of the condition of the bond, in that the supervisor neglected and failed to safely keep, or faithfully disburse and account for, the school moneys placed in his hands; and that he was delinquent in the sum of $951.30; and that he had’ neglected and refused to faithfully disburse or account for that sum, according to the tenor of his bond. The answer interposed iu this case allegés that the school moneys, after their receipt by the supervisor, were by him deposited in the banking house of E. C. Stark & Co. (individual bankers), in the village of Oneida, to his credit as supervisor of the town of Stockbridge, and that at the time of the deposit thereof, in March, the said E.- C. Stark & Co. were in good credit, and by the supervisor believed to be solvent, having a reputation of being .a solvent and prosperous company. It is further alleged that on the 14th day of July, while the surn of $951.30 was so deposited in said banking house, Stark & Co. failed, and made a general assignment for the benefit of their creditors, whereby the said money was lost, without any fault or negligence on the part of the said supervisor. The answer also alleged that he acted in good faith, without any negligence, in making such deposit. From the findings made by the trial court it appears that orders were drawn upon the supervisor by the trustees of the school districts of the town, directing him to pay and disburse, out of the school moneys in his hands applicable to the payment of teachers’ wages, several sums specified in said orders, and that the-supervisor neglected and refused to pay said orders upon the same being presented to him, and neglected and refused to disburse the school moneys in his hands applicable to the payment of teachers’ wages, and disburse the library money upon written orders of a majority of the trustees of school districts of the said town, “and that payment of the same was duly demanded of the defendant Merrill, .and that he declined and refused to pay the same, upon the grounds that he had no money applicable to their payment; that such orders were presented to said Merrill after the failure of the banking house of E. C. Stark & Go.” It is also found that he deposited the moneys paid to him “ to his credit, as supervisor of the towft of Stockbridge, in the bank or banking house of E. C. Stark & Co., in the village of Oneida, Madison county, N. Y., which bank or banking house was composed óf E. C. Stark and E. M. Bingham, who were then engaged in carrying on an unincorpor.ated private bank at said village of Oneida; that, at the time when said deposits were made, the said E. C. Stark & Co. were solvent; that at the time when said deposits were made, and down to the time of their failure and assignment, the said E. C. Stark & Co. were doing a general banking business usual to private banks, but were not incorporated either under national or state laws.” It is also found that E. C. Stark & Co. were in good standing and credit, and doing a large and apparently prosperous business, and had a large number of regular depositors, and a large amount of money constantly on deposit in their said bank, and many good business men of the village of Oneida and of said town of Stockbridge were depositors in said bank at the time when said deposit was made, and at the time of their failure; that, at the time when said deposits were made, the village of Oneida was the most convenient and accessible place for the defendant Merrill to do banking business.” It is also found “that, in making such deposits of said money in said bank of E. C. Stark & Co., the defendant Merrill acted in good faith; ’’ also, “ that, in making such deposits of said moneys in the said bank of E. C. Stark £ Co., the defendant Merrill was not negligent, and was not guilty of any personal negligence, as to said moneys, or the care and management thereof, or as to his said office and the performance of the duties thereof.” It also appears that when the said deposits were made, and for several years prior thereto, there were in the village of Oneida two national banks incorporated under the United States banking law, and a savings bank incorporated under the laws of the state of New York, which were solvent and in good standing and credit. It is also found that, at the time when the said deposits were made with E. C. Stark & Co., they were, and for a long time “ had been, in the-habit of receiving special deposits of funds, moneys, and valuable papers for safe-keeping.” It is further found “that on the 14th. day of July, 1891, the said E. C. Stark & Co. failed, and made a general assignment for the benefit of their creditors ; that at the time of their failure, and of the making of said assignment by them, there was thus on deposit with the said E. C. Stark & Co. the sum of $951.30 of the said school monej's which the said defendant Merrill had thus deposited with the said E. 0. Stark & Co.; that, by reason of the said assignment and insolvency of E.« C. Stark & Co., the said sum of $951.30 became lost; that the defendants claim that, by reason of said assignment an,d insolvency of the said E. 0. Stark & Co., the said sum of $951.30 has become lost; that the said assignment is still in force, and said assignee has not had any settlement of his account, and, down to the time of the commencement of this action, had not made any distribution of the assets among the creditors.” It is found as a conclusion of law that the supervisor “ became the debtor of the town in the said sum of $2,150.95 thus received by him; that he-became absolutely responsible for these moneys as the debtpr of the town; and that it is no defense that the moneys were lost, without any fault, want of care, or omission of duty on his part.”' It is also found, as a matter of law, viz. : “ That the loss of the said sum of $951.30 of the said school moneys thus received by the said defendant Merrill, by reason of the insolvency of E. C. Stark & Co., with whom the defendant Merrill deposited the same as a general deposit, is no defense to. this action; ”, also,. “ that this money was within his control, placed there by force of the statute, and, if he saw fit to intrust it to the care of these insolvent bankers, he did so at his peril, and it was a breach of his bond which required him to safely keep it and disburse it; ” also,. “ that said moneys so deposited in said bank of E. C. Stark & Co. were lost without any personal fault or negligence of the defendant Merrill,”—and a judgment was order for the sum of $951.30, and interest from the commencement of the action, in favor of the-plaintiff, and against the defendants. At the instance of the defendants the- court found “that there was duly presented to the defendant Merrill, as such supervisor (after the failure of E. 0. Stark & Co.), orders in due form as required by law, drawn by trustees of school districts of said town of Stockbridge in favor of qualified teachers, upon said Merrill as supervisor, to the amount of $200. and payment of the same was duly demanded of the defendant Merrill, and he declined and refused to pay the same, upon the ground that he had no money applicable to their payment.” It was also found, at the instance of the defendants, “that the defendant Merrill acted in good faith in making such deposits of said moneys.” It was also found that “ Stark & Co. were, and for a long time had been, in the habit of receiving special deposits of funds, moneys, and valuable papers for safe-keeping.” Defendants took exceptions to the findings of fact and conclusions of law made, and to several refusals to find in accordance with the requests made by the defendants. Considering the evidence in connection with the allegations of the pleadings upon the subject of the moneys, we are of the opinion that the trial court was warranted in finding that there was a breach of the bond of the defendants before the commencement of this action, and that the defendants had failed to comply with the terms of the bond executed by them. Supervisors v. Van Campen, 3 Wend. 49; Supervisors v. Bristol, 99 N. Y. 317; State v. Nevin, 13 Nev. 162. In accordance with § 31 of the school law, requiring the bond to be “ conditioned for the faithful disbursement, safe keeping and accounting for such moneys, and of all other school moneys that may come into his hands for any other purpose," it became the duty of the supervisor to honor the orders that were drawn upon him by the trustees, which duty he failed to perform in declining to accept and pay the orders drawn in pursuance of the provisions of the statute.”

This brings us to the consideration of the principal question involved in this case, which arises in connection with the fact alleged and proved and found, to wit, that after the execution of the bond, and after receiving the public moneys, instead of keeping the same on hand in the actual, personal possession of the supervisor, instead of keeping them in specie, and instead of making a special deposit in incorporated banks or in the banking house of Stark & Co., he made a general deposit of the moneys in the hands of Stark & Go., individual bankers, who were believed by him, at the time of the deposit, to be solvent (but who, in fact, were insolvent), and that subsequent to such deposit Stark & Go. failed, made an assignment, and became unable 'to return the deposit of moneys so made by the supervisor to him, or to furnish him with means wherewith to honor the orders drawn upon him. Appellants rely upon Supervisors v. Dorr, 25 Wend. 440; affirmed, 7 Hill, 583. In that case Dorr was county treasurer, and had given a bond for the faithful execution of the duties of the office, and to pay, according to law, all moneys that should come into his hands as such treasurer; and the defense interposed to an action upon the bond was that the “ identical moneys received by him as county treasurer at his office in the city of Albany, and before he was requested to pay out the same, * * * were feloniously stolen from his office, without any negligence, want of due care, or other blame or fault whatever on his part; ” and upon a demurrer to the plea it was insisted that the treasurer did not. upon the receipt of the money, become an absolute debtor to the county for the amount received, but that he held it as the* agent of the county, and, in the respect mentioned, the case differs from the one before us. And in a note to the case found in 7 Hill it is said: “ The law seems to have been once settled,—and properly, it is believed,—directly the other way, by the case of Muzzy v. Shattuck, 1 Denio, 233,' decided by the supreme court in May, 1845.” In Muzzy v. Shattuck, supra, the action was upon a collector’s bond of the town of Hamilton, conditioned to faithfully execute the duties of his office of collector ; and in answer to an action upon it it was alleged that after he had “collected the said moneys upon the said warrant issued bv the said board of supervisors, etc., and before the return day of the said warrant at the dwelling house of the said defendant in the town of Hamilton aforesaid, the said moneys in the said declaration mentioned as the amount to be paid over to the said treasurer of the county of Madison were feloniously stolen, taken, and carried away from the said dwelling of the said defendant by some person or persons unknown to the said defendant, who burglariously broke into the said dwelling house of the said defendant in the night-time for that purpose; and that the said moneys were so stolen, taken, and carried away feloniously, as aforesaid, without any fault, want of care, or omission of duty on the part of the said defendant; ” and upon a demurrer to the plea it was held that “ it is no defense that the collector had collected the money, and that the same had been stolen from his dwelling house, without any fault, want of care, or omission of duty on his part.” The decision was affirmed by the court for the correction of errors. And in the course of the opinion delivered by Jewett, J., in the supreme court, he says: “Nothing short of a credit or payment, in my judgment, amounts to the performance of the condition of the bond. * * * The statute imposes a definite liability on the collector and his suretiss for the omission to collect and pay; and, whether that omissioeis the result of malfeasance or neglect, unavoidable accident, ou felony committed by another, I do not think it furnishes any der fense to the action.”

Besides the note found in 7 Hill, to the effect that the case of Supervisors v. Dorr was overruled by Muzzy v. Shattuck, it appears in the opinion of Strong, J., in Boyden v. U. S., 13 Wall. 23, that upon an inspection of the.two cases he was of the opinion that Supervisors v. Dorr “ is no longer authority, even in the state of New York,” and he adds: “ Muzzy v. Shattuck, subsequently decided, and affirmed unanimously, in the court of appeals, is utterly irreconcilable with it, and it has settled the law otherwise in that state.”

However, in People ex rel. Nash v. Faulkner, 107 N. Y. 487 : 12 St. Rep. 273, after referring to the decisions in the federal courts and to the decisions in our state courts, it was said : “In view of the decisions of the federal and state courts above cited, and the fact that that decision has been much questioned, and has by some been supposed to have been overruled by the decision in Muzzy v. Shattuck, it should probably not be regarded as binding authority in this state, and the question therein decided may yet be regarded as an open one. When a case arises against an officér for not paying over and accounting for public moneys intrusted to him in his official capacity, it will be necessary to determine whether his liability, in the absence of statutes specially defining it, shall be governed by the common law, or whether the broad and more rigid rule of responsibility laid down in the cases above referred to shall be enforced in this state. It is not necessary to decide that question in this case, because the money here received by the surrogate was ■ not public money, but the money of a private estate or of private individuals.”

Considering the force of the statute to which reference has been made, and the long line of authorities bearing on the pivotal question involved here, we may properly sustain the decision of the trial court overruling the defense. Muzzy v. Shattuck, 1 Denio, 233 ; U. S. v. Prescott, 3 How. 578; Boyden v. U. S., 18 Wall. 21; Board v. Jewell, 44 Minn. 427; Taylor Tp. v. Morton, 37 Iowa, 550 ; Thompson v. Trustees, 30 Ill. 99 ; Halbert v. State, 22 Ind. 125 ; Commissioners v. Jones, 18 Minn. 199 (Gil. 182) ; Commissioners v. Lineberger, 3 Mont. 231; Morbeck v. State, 28 Ind. 86: Rock v. Stinger, 36 Ind. 346 ; Union Tp. v. Smith, 39 Iowa, 9 ; Hancock v. Hazzard, 12 Cush. 112 ; Redwood Co. v. Tower, 28 Minn. 45; State v. Nevin, 19 Nev. 162; State v. Harper, 6 Ohio St. 607; Inhabitants of New Providence v. McEachson, 33 N. J. Law, 339 ; State v. Clarke, 73 N. C. 255; Com. v. Comly, 3 Pa, St. 372.

It is quite obvious that the point decided in People v. Faulkner, supra, is not controlling in this case, and in pointing out the distinction between an officer holding public moneys in virtue of public statutes and an officer who held moneys, like a surrogate, for the benefit of individuals, the court said of the latter, to wit, the surrogate: “He is merely the trustee or agent of the private parties interested in the money, and no greater or higher responsibility should be imposed upon him. than would be imposed upon any agent or trustee.”

Inasmuch as the trial court found the questions of fact relating to the alleged negligence of the defendants arid their good faith favorable to them to quite as great an extent as a jury would have been warranted in finding upon the evidence produced, we think the appellants cannot complain as to the mode of trial adopted at the circuit. The foregoing views lead to an affirmance of the judgment. Judgment affirmed, with costs.

Merwin, J., concur.

Martin, J. (dissenting).

It seems to me that the weight of authority is to the effect that, in the absence of any statute enlarging it, the responsibility of a public officer is measured by the common law liability of a bailee for hire, other than common carriers and innkeepers, and that, while such an officer is bound to act in good faith, and exercise reasonable diligence in the discharge of his duties, he is not responsible for the loss of money coming into his hands, which occurred without fault on his part, Supervisors v. Dorr, 25 Wend. 440; People ex rel. Nash v. Faulkner, 107 N. Y. 477; 12 St. Rep. 273 . U. S. v. Thomas, 15 Wall. 337; Peck v. James, 3 Head, 75; Cumberland Co. v. Pennell, 69 Me. 357. I do not regard the cases of Muzzy v. Shattuck, 1 Denio, 233 ; Looney v. Hughes, 26 N. Y. 514; Fake v. Whipple, 39 N. Y. 394; and Bradley v. Ward, 58 N. Y. 401,—as in conflict with the doctrine of the foregoing authorities. The latter cases were all actions upon a collector’s bond, and it was held that, under and by virtue of the express provisions of the statute relating to the collection of taxes, a collector, upon receipt of his warrant, became a debtor to the county in tne sum which he is authorized to collect, and that such indebtedness could be discharged only by producing to the treasurer a duplicate receipt of the officer to whom the collector was directed to pay the moneys collected, or by making his affidavit that certain taxes remain unpaid, and that, -upon diligent inquiry, he has been unable to discover any property belonging to the person charged with such taxes, whereof he could levy the same. It is quite manifest, I think, that the cases first cited are not overruled by, or in conflict with, the latter ones, and that the question involved in this case is not affected by the doctrine of those decisions. While itv has been said that the case of Supervisors v. Dorr was overruled by the decision in Muzzy v. Shattuck, it does not seem to me that that statement is correct. There was no mention of the former case in the opinion of the latter, and one, at least, of the judges who joined hr the decision of the latter case, concurred in the opinion of the prior one. I can see no reason why the case of Supervisors v. Dorr should not be regarded as an authority upon this question. It is true that it was said in People v. Faulkner that as the.decision in the Dorr Case had been much questioned, and been supposed by some to have been overruled in the Muzzy Case, it should probably not be regarded as binding authority in this stat*», and that the question therein decided may yet be regarded as an open one. The logic of that suggestion is not quite apparent, as it had already been distinctly stated that there was no conflict between the two decisions; that the Muzzy Case did not expressly or by implication overrule the decision in the Dorr Case, and that the supposition that it had been so overruled was erroneous. Under such circumstances, I cannot perceive any reason for rejecting the Dorr Case as an authority, nor why it should not be given the weight to which any decision of that court is entitled. I am of the opinion that the decision in the Dovr Case, if not controlling or binding, should be regarded as some authority upon this question, and, when considered in connection with the other cases cited, should be regarded as persuasive authority upon the question of the liability of a public officer for loss of money which comes into his official custody, and is lost without any fault upon his part. I think that, independent of any provision in the bond which enlarges or increases the liability of the officer, a public officer is not responsible for the loss of money which comes into .his official custody, occurring without fault on his part.

This leads to the consideration of the question whether the provisions of the bond in suit in any way increased or enlarged the ' ■defendant’s liability. The condition of the bond was that the defendant should “safely keep, faithfully disburse, and justly account for all the school moneys which have or shall come into his hands, apportioned and paid from the state treasury, and all other school moneys that have or may come into his hands from any other source.”" This bond does not, I think, in any essential particular differ from that of a county treasurer or of a surrogate; and, with regard to the latter, the court of appeals, in People ex rel. Nash v. Faulkner, 107 N. Y. 489; 12 St. Rep. 273, said; “There is nothing in the phraseology of the bond given by the surrogate which enlarges his statutory liability.' It is a bond simply for the faithful performance of his duties, and the faithful application and payment of all moneys that may come into his hands. It imposed upon the surrogate no broader responsibility or liability tiian the statute. It was simply designed to enforce and secure the faithful discharge of his duties, and any defense which he would have had when called to account for the money which came to his hands is available to his sureties when sued upon the bond.”

Within the principle of that case, and the case of Supervisors v. Dorr, I think it should be held that there was nothing in this bond which in any way increased or enlarged the liability or responsibility of the defendants, and that as the trial court has found that the defendant Merrill acted in good faith, and that the moneys were lost without any fault or negligence on his part, the plaintiff was not entitled to recover. Thus I am led to dissent from the opinion in this case of my brother Hardin.


author: Van Brunt, P. J.

text:
    Solomon Jones, App’lt, v. Joseph Wittner, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June, 1894.)

    JEviDBrrcE—Parol.
    In an action for specific performance of a contract for the exchange of real estate, a receipt, which recites generally the terms of the arrangement and provides that a more formal contract should be executed subsequently, does not preclude the admission of parol evidence to show the actual knowledge on the part of the plaintiff of incumbrances on the premises sold, not mentioned in the receipt.
    Appeal .from judgment entered after trial at special term.

      Adolph Cohen (B. N. Cardoza, of counsel), for app’lt; David Leventritt {J. H. Cohn, of counsel), for resp’t.
   Van Brunt, P. J.

This action wag brought to compel the specific performance of an alleged contract for the exchange of property in the city of New York. In the disposition of this appeal it is not necessary to state with particularity the facts which were developed by the testimony. It would appear from the evidence that the plaintiff was a mere dummy, if he ever had any substantial existence ; and that his name was used for the purpose of concealing from the defendant the real parties with whom lie was dealing.

After a considerable number of negotiations, in which an unusual number of alleged brokers seem to have intervened, a payment on account of the contract to be entered into was made by the plaintiff to the defendant; and a receipt given, reciting generally the terms of the proposed contract. It appeared upon the face of this receipt that a more formal contract was to be entered into. At the time fixed for the execution of the formal contract, objections were raised upon the part of the persons pretending to represent the plaintiff, but really representing themselves, that certain leases were upon the premises, and that they would not execute the contract unless additional time was given them and concessions made in respect to certain mortgages and payments. The evidence more than justified the finding that, at the time of the giving of the receipt in question, and the making of the payment, the parties interested were told of the existence of these leases upon the defendant’s premises, and that this excuse in respect to the leases was availed of for the purpose of securing their wishes, in reference to the change of terms, they having come to the conclusion that they had probably paid a little too much for the property in question. It is urged that the receipt upon the part of the appellant was a complete contract, and that, therefore, the defendant could not show that the existence of these leases was known to the parties interested, and had been disclosed to them prior to the making of the receipt, upon the ground that it varied the terms of the contract; but it is apparent, upon a reading of this instrument, that it was not intended to be the contract between the parties, but it was a mere general statement, and that the parties were to meet together for the purpose of signing a formal contract, and at that time making an additional payment. The parties having made the payment on account, with full knowledge of the existence of these leases, they could not avail themselves of the objection, when the formal contract came to be signed, that the receipts for money did not mention these incumbrances. As has already been suggested, this question in regard to the leases was a mere afterthought, they having come to the conclusion that they desired a variation in the terms agreed upon, and it was attempted to be used for that purpose. Under these circumstances, certainly, the plaintiff cannot come into a court of equity and claim either a completion of this contract or a recovery of the payment.which he has made on account. He refused to complete; he failed to comply with the agreement in respect to the execution of the instrument, and it was too late for him, upon the trial, to attempt to put the defendant in the wrong when the latter had been ready and willing to perform his part of the agreement, and the plaintiff for the real parties in interest had refused to carry out their part. It is true that there was an attempt made upon the part of the plaintiff to show that there had beén an offer to perform on the 20th day of August, the day at which the title was to have been passed. But the evidence upon the part of the defense is that there was no such tender as was alleged on the part of the plaintiff; but that only„the money which was to have been paid on the 21st day of July was tendered, and that there were no papers offered or shown. It is manifest that the whole plan upon the part of the parties operating in the name of the plaintiff was to force the defendant to accept different terms from those which he had agreed upon, and upon his refusal to alter the same, they refused to carry out the contract. The defendant was not called upon to hold his property subject to the whims and caprices of these persons.

The judgment should be affirmed, with costs.

Follett and-Parker, JJ., concur.


author: Barrett, J.

text:
    Sarah T. Knapp, App’lt, v. Esther E. Greene, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June, 1894.)

    Limitations—Note on demand after three months’ notice.
    Tlie statute of limitations begins to run against a note payable “on demand after three months’ notice,” from its date.

      George H. Pettit, for app’lt; Jacob F. Miller, for resp’t
   Barrett, J.

The sole question here is whether the note in suit was barred by the Statute of Limitations. The note is in the following form:

“$600. Hillsdale, April 2, 1880.

“On demand, after three months’ notice, for value received, we, or either of us, promise to pay to the order of Tammie S. Spencer the sum of six hundred dollars', with interest from date.

“And I, Esther E. Greene, do hereby charge my sole and separate estate with the payment thereof.

“Esther E. Greene.

“John E. McAlpine.’’

This note was given for $600, which John E. McAlpine borrowed from the plaintiff upon the day it bears date. The defendant signed the note to enable him to borrow the money.

' Nothing further occurred between the" parties until the 24th of September, 1891, when the following notice was served upon the defendant:

“ Dated September 24th, 1891.

“To Mrs. Esther E. Greene :

“You will please take notice that three months after the service of this notice upon you, you will be required .to pay the amount due for principal and interest on the promissory note to my order, and held by me, and made by you and John E. McAlpine.

“ Sarah T. Knapp.’’

Upon this'state of facts the learned judge at circuit held that the statute of limitations had run against the note, and the plaintiff’s complaint was accordingly dismissed.

We think this disposition of the case was correct. The defendant’s liability, as distinguished from the plaintiff’s right to sue, did not depend upon the performance of a condition precedent.

The money was borrowed, and the note was given to evidence the fact. The words “on demand” have a precise legal meaning. They do not limit the obligation to pay presently, but are used to show that the debt is due. Wenman v. Mohawk Ins. Co., 13 Wend. 267. And the statute runs against a note payable on demand, whether with or without interest. Wheeler v. Warner, 47 N. Y. 519; Mills v. Davis, 113 N. Y. 243; 22 St. Rep. 580. The only question here is whether the expression “ on demand ” is so qualified by the words “ after three months’ notice,” which immediately follow, as to take the contract out of the general rule with regard to demand notes. This is a close question, but upon the whole we think not. The notice required, as was said in Dickinson v. The Mayor, 92 N. Y. 591, “was a condition of maintaining the action, and not an essential part of it, upon which the inception of a right is based and the cause of action founded.”

Such, we think, was the intention of the parties, to be gathered from the peculiar phraseology of the note and the surrounding circumstances. The notice was for the benefit of the debtor, not for the benefit of the creditor. ' The debtor could at any time waive the notice and tender the debt and interest. The real object was to give the debtor a reasonable time to pay the debt before the creditor could charge him with the costs of a suit. In other words, the debt was due, but the creditor agreed to limit his right to sue presently.

Let us see where the opposite construction of the instrument would lead. The plaintiff contends that the note should be construed as though it read “ three months after demand,” and as though the demand and notice were conditions precedent to the existence of a cause of action. If that be so, then the holder of the note could postpone his right of action indefinitely, while the maker could never stop the running of interest or compel the acceptance of payment. As was said in Palmer v. Palmer, 36 Mich., 490: “ If there was any infirmity in the consideration, or any defect in the binding character of the obligation, he might retain it until all testimony was lost, and defeat the defense. This is the mischief which the statute of limitations was intended to remedy.”

In this case of Palmer v. Palmer it was held that if a creditor "has the means at all times of making his cause of action perfect, it would be unjust and oppressive to hold that he could postpone indefinitely the time for enforcing his claim by failing to present it. He is really and in fact able," said the learned judge who delivered the opinion of the court, “at any time to bring an action when he can by his own jict fix the time of payment. It is no stretch of language to hold that a cause of action accrues for the purpose of setting the statute in motion as soon as the creditor, by his own act and in spite of the debtor, can make the demand payable.”

Substantially the same view was taken in Morrison v. Mullin, 34 Pa. St. R., 12; Rhines v. Evans, 66 id. 194; First National Bank of Garrettsville v. Greene, Admins., 64 Iowa, 175; Lower v. Miller, 66 Iowa, 408; Prescott v. Ganser, 34 Iowa, 175.

The illustrations furnished by these cases help us to a .reasonable construction of the instrument in question. They indicate with great clearness and force the evil consequences which would result from the construction given to -it by plaintiff; consequences which the parties could never have forseen, and which amount to a practical nullification of the statute.

These parties could not, in our judgment, have intended to permit the holder of the note to postpone its maturity as long as she chose to do so. Hor did they intend thus to evade the statute, or, in fact, to prevent its running in the ordinary way.

The notice was seemingly an afterthought It was not given for upwards of eleven years after the borrowing of the money and the delivery of the note. If the plaintiff is right in her contention, the notice could just as well have been postponed for fifty years; in fact, indefinitely—the cause of action accruing ■only at her pleasure.

We cannot agree with this view of the contract, in our judgment, the statute had run against the note when the notice was given. It follows that the exceptions should be overruled and judgment ordered for the defendant, with costs.

Van Brunt, P, J., concurs in result; Parker, J., concurs.


author: Van Brunt, P. J. Follett, J. (concurring).

text:
    Arthur G. Levy, by Moses M. Levy, his Guardian ad Litem, etc., App’lt, v. Carrie Levy et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June, 1894.)

    1. Partition—Who mat maintain.
    The holder of a vested remainder may, under certain circumstances, maintain an action for partition.
    8. Parties—Foreclosure action.
    Vested remaindermen under a will are necessary parties to an action to foreclose a mortgage, given by the testator on the devised land.
    Appeal from interlocutory judgment sustaining demurrer to the complaint.

      Ira Leo Bamberger, for app’lt; T. W. Bulls, for resp’ts.
   Van Brunt, P. J.

Thia action was brought for the partition of certain premises in the city of Hew York; and the demurrer to the complaint was upon the ground that it did not state facts sufficient to constitute a cause of action.

The complaint alleges that the plaintiff, with the other defendants (except certain lessees), are tenants in common of a vested remainder in and to the premises in question; and that he is entitled to a one undivided ninth of and in the said premises in fee; which allegation, however, seems to be at variance with the title of the plaintiff as disclosed in the complaint. Judgment is prayed that the real estate be partitioned, or if that cannot be done without detriment to the several interests so partitioned, the same to be sold.

It is urged by the defendant that, as the plaintiff is not among those enumerated in § 1582 of the Code as entitled to maintain, this action, the demu'rrer must be sustained. But by § 1583 it is expressly provided that the holder of a vested remainder may maintain partition under certain circumstances.

It may be suggested that as the premises, according to their description, consist of a single lot of land, with buildings thereon, it is difficult to see how it can be actually partitioned; and in the case of an action brought by remaindermen there can be no sale, but where actual partition cannot be had, the bill must be dismissed. As perhaps the court may not be able to take judicial notice of the fact that, upon the hice of this bill, the same must ultimately be dismissed, because of the provisions of § 1533 of the Code, it may be necessary to consider the question as to whether the plaintiff in this action has such an estate as authorize him in any event to bring an action in partition.

The facts out of which the controversy arises are as follows, Adolph Levy died in 1885, owning the premises in question, subject to a mortgage, and leaving a will whereby he devised the residue of his estate, including said premises, to his executors in trust to receive the rents, income and profits thereof, and to divide the same into five equal parts or shares, and to apply such income and profits in the manner following; and so far as respects the-alleged interest of the plaintiff herein the provisions of the will are as follows:

“ Fourth. To receive the rents, income and profits of one of said shares and apply the same to the use of my son Samuel Levy so long as he shall live; and upon his death to divide the principal of such share equally among his children, share and share alike.” Then follows a provision, that if any of these grandchildren are under the age of twenty-one years the trustee shall apply such income to the support, education and maintenance of such child until he or she should become of age; and upon the arrival of the infant at the age of twenty-one years the principal of his or her portion of such share was to be paid over to such child. Similar provisions were made in regard to the other children.

The testator also provided in said will that in the event of the death of any of his said sons without leaving issue him surviving, he gave and devised the share of his said son to and among his other children, share and share alike.

The mortgage above referred to was foreclosed in 1892, and all the children and the grandchildren of said Levy, except this plaintiff and his sister, were made parties to such foreclosure suit; and such proceedings were had that the premises were sold subject to the rights and interests of the plaintiff and of the said Carrie Levy, his sister, and subject also to a lease of the premises to the firm of Vogel Brothers. The referee conveyed the said premises, subject as aforesaid, to the purchasers as joint tenants; and the plaintiff, claiming that he, his sister and the purchasers are tenants in common of a vested remainder in and to the said premises, has brought this action for a partition of the same.

The question which is presented is whether the rights of the plaintiff and his sister in their grandfather’s estate were cut off by the proceedings in foreclosure. It is urged upon the part of the respondent that they were not necessary parties defendant in the foreclosure action, because the executors and trustees under their grandfather’s will were made parties, and they were vested with the whole legal estate under the will. And in support of this proposition the cases of U. S. Trust Company v. Roche, 116 N. Y. 120; 26 St. Rep. 394; and Townshend v. Frommer, 125 N. Y. 446; 36 St. Rep. 153, are cited. If the latter case is to be considered as an authority upon this proposition, it would seem that the position of the respondent is well taken. But, after an examination and comparison of that case with the decision in the case of Campbell v. Stokes, 142 N. Y. 23 ; 58 St. Rep. 451, I have been unable to reconcile the same. And as the rule laid down in the latter case, in respect to the vesting of estates, seems to be that which most clearly conforms to the provisions of the Revised Statutes defining such estates, it should be followed.

And it is evident from the language of the court, in the case of Campbell v. Stokes, that the authority of Townshend v. Frommer, supra, is questioned, and a distinction between the two cases is attempted to be drawn from the fact that one arose under a trust deed and the other under the will. In the case of Campbell v. Stokes the will directed the executors to divide the testator’s residuary estate into as many shares as the testator had children, and gave for each child surviving him one share to the executors to be held in trust for said child for life; and upon the death of such child the executors were directed to convey, pay over and deliver the share to his or her lawful issue, if any, and if none, then provision was made for the distribution of the estate. And it was held that the issue of any child living at his death took a vested remainder in the share held in trust for the parent, subject to open and let in after-born children and to be divested by their, death before the death of the parent; and that the rights of the grandchildren were not dependent in any way upon the action of the trustee, nor did the vesting of their interest await the exercise by the trustees of their power to convey, transfer, etc., but they took as remaindermen independent of the power.

This definition of the estate under such provisions in a will or in a deed—because I know of no difference in estates whether created by deed or by will—is in accordance with § 13, page 723, volume 1, of the Revised Statutes, which is as follows:

“Future estates are either vested or contingent. They are vested when there is a person in being who would have the immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate.’’

In the case cited it was held that immediately, without any intervention of the trustees, upon the termination of the intermediate estate the grandchildren would have been entitled to possession, and, therefore, they took a vested remainder. It is true that that vested remainder might be cut off by death prior to their termination of the life estate. But the court say that this did not affect the vesting of the remainder, because it was not a condition precedent but a condition subsequent; and it is only because of uncertainties arising from conditions precedent that a remainder becomes contingent which otherwise would be vested.

In the case at bar the provisions of the will are a devise of the estate to the executor; and there is some ambiguity as to whether they are to divide the principal of the estate or the rent. It would seem that they had the right to divide the principal, as well as the rent, and they are.required to receive the rents, income and profits of each of said shares, and apply them to the use of the sons of the testator, and upon their death to divide the principal among their children share and share alike. In the case of Campbell v. Stokes, it was held that language of a similar character was a present gift to the children of the son, to be enjoyed by them upon the death of their parent; and in that case, as in the ease at bar, there was no intention that the testator should die intestate as to any portion of his estate, because he provides that in the event of the death of any of his sons without issue his estate shall go elsewhere.

Without discussing this question further, it would seem to be beyond dispute that the children of the sons of the testator took vested remainders, and the trustees did not represent that part of the estate.

The judgment should be reversed, and the demurrer overruled, with leave to the defendants to answer upon payment of the costs of this appeal and in the court below..

Parker, J., concurs.

Follett, J. (concurring).

Under the fourth clause of the will of Adolph Levy, the children of Samuel Levy acquired vested remainders in the premises described in the complaint. The plaintiff, Arthur Gr. Levy, and the defendant, Carrie Levy, are two of the children of said Samuel Levy. Vested legal interests in lands cannot be affected by judgments unless the persons owning those estates are parties to the judgment. Arthur Gr. Levy and Carrie Levy, having vested legal estates at the time the judgment in foreclosure was recovered, were necessary parties to that action, and not having been made such, the sale under that judgment did not cut off their estates.

In United States Trust Co. v. Roche, 116 N. Y. 120; 26 St. Rep. 394, it was held that James C. Foster was not a necessary party to that action for the foreclosure of a mortgage, because he had not a vested legal or equitable estate in the land. In that case the legal estate was held by a trustee who and the beneficiary were parties.

In Townshend v. Frommer, 125 N. Y. 446; 36 St. Rep. 153, it ■was held that when a certain mortgage was foreclosed the children of Clarissa Curtis had no vested or legal interest in the land, and, therefore, not necessary parties to the foreclosure. In that case the legal title was hel'd by a trustee who and the beneficiary were parties.

In Campbell v. Stokes, 142 N. Y. 23; 58 St. Rep. 451, it was held that the grandchildren of John Mortimer, Jr., had vested-legal estates in the land when it was sold under a judgment in partition, and that they were necessary parties to the action, and not having been such their titles were not cut off. The opinion, in Campbell v. Stokes concluded as follows: “ Whether the remainders in this case were vested or contingent, the persons in being when the partition action was commenced, presumptively entitled to possession on the death of the life tenant, were necessary parties:” This remark is a mere dictum, for the court had decided that the grandchildren had vested remainders at the time the partition judgment was entered.

In Moore v. Appleby, 36 Hun, 868; aff’d 108 N. Y. 237; 13 St. Rep. 492, it was held at the general term that the children of Charles Tucker had vested interests in the land when the judgment in partition was entered, and not being parties thereto were not affected by it. In the court of appeals it was assumed without discussion, that these children had vested estates in the land. It is said: “But to which action certain persons entitled to the property in remainder were not made parties.”

Assuming the premises in the four cases cited to be correct, they are harmonious, and where correctly decided in so far as the question of parties is concerned. Story’s Eq. Pldg., § 144, et seq.

The judgment should be reversed, and the demurrer overruled, with leave to the defendants to answer upon the payment of the costs of this appeal and in the court below.


author: Parker, J. Van Brunt, P. J.

text:
    David McClure, as Temporary Receiver of the Life Union, Resp’t, v. Louis P. Levy, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June, 1894.)

    1. Trial—Direction of verdict.
    Where both parties request the court to direct a verdict, -which results in a direction that plaintiff have judgment, the facts most favorable to plaintiff’s contention must be deemed to have been found.
    2. Corporation—Reserve fund.
    A judgment is recoverable by a receiver against the former president of a corporation for a payment, out of the reserve fund, of corporate notes held by him, which show on their face that the money was not properly so applicable.
    Appeal from a judgment entered upon the verdict of a jury directed by the court in favor of the plaintiff, for $10,751.40, and from the order denying defendant’s motion for a new trial.

      Browne & Sheehan (Ghar les Strauss, of counsel), for app’lt; Herbert B. Turner (James F. Horan, of counsel), for resp't.
   Parker, J.

The contents of the record now before us only the more strongly confirm the view taken by this court on the appeal from the order of arrest granted in this action, that the defendant was chargeable with having wrongfully withdrawn a portion of the funds of the Life Union and converted the same to his own use. 68 Hun, 525; 52 St. Rep. 568.

The facts inducing and constituting the alleged conversion are as follows: Early in- April, 1891, the directors of the Life Union, for the purpose of extending its business, which was then at a standstill, entered into negotiations with the president of the Flour City Life Association of Rochester, JST. Y. The result was, in effect, an agreement to purchase the Flour City Association for the sum of $40,000, the major portion of which the directors of the Life Union expected to raise on its notes, to be made in the following form:

“ $1,000. “New York, April 13, 1891.

“ On or before twenty-four months after date, the Life Union of the city of New York promises to pay to the order of —--- -one thousand dollars, at its office in the city of New York, from such portion of the income of the said, the Life Union as may be properly applicable thereto, with interest, value received. “ The Life Union,

“ By J T. Baldwin, President

“[Seal.] Ralph Marsden, Secretary.”

Eleven of such notes'were made payable to the order of certain of the then directors of the Life Union, and delivered to the payees, who cashed them, the money being turned over to Mr. Baldwin, who had previously been authorized by resolution to act as the agent of the corporation in carrying out the contract with the Flour City Association. The money thus advanced by the directors was by Baldwin paid over to Underhill, the president of the Flour City Association.

In pursuance of the plan which the officers of the two corporations had agreed upon as affording the most feasible method by which the Life Union could absorb the Flour City Association, several of the directors of- the latter corporation resigned, and in their places were elected certain of the directors of the Life Union. But there the matter of amalgamation practically terminated, for, on the recommendation of the superintendent of the insurance department, the attorney-general, in behalf of the state, commenced a suit to dissolve the Flour City Association, and distribute its assets among those entitled thereto, and, judgment was thereafter rendered in accordance therewith. The Life Union, therefore, received no benefit whatever from the notes or their proceeds, but that fact did not necessarily relieve it from liability to respond, so far as it might be able to do so, in pursuance of the conditions expressed in the notes, provided its officers were invested with authority to make the agreement and issue the notes.

Our attention has not been called to any decision holding that corporations, such as were parties to this attempted amalgamation, have the power to bring about an absorption of one corporation by the other. The law does allow one company to reinsure the risks of another, but that was not the purpose of the agreement in question. It contemplated the acquisition of the franchises and assets of the selling company, as well as the opportunity to reinsure its risks.

As this question has not been discussed by one of the counsel on this appeal, and there still remains another ground on which we think the affirmance, of the judgment may be safely predi-, cated, we shall not attempt to pass upon the question of power.

A little over a year after the date of the notes, the defendant was elected a director and president o£ the Life Union. At the same time there was chosen such other directors as he clesired, in order to give him control of the board. What it was that so stimulated his ambition to become the presiden t of the corporation, and have the control of the board of directors, as induced him to pay something like $12,000 for these notes, we are not informed. Certain it is that lie did pay such amount for the notes, and that he could not have secured the presence of his friends in the board of directors, and the presidency for himself, otherwise. And he purchased these notes with full knowledge of the facts attending their execution and delivery to the several directors of the corporation. In making this assertion we do not lose sight of the fact that the evidence relating to several questions of fact permit contrary inferences, but at the close of the trial the defendant asked for a direction of a verdict in his favor, which was promptly followed by the same request on the part of the plaintiff, resulting in a direction of a verdict by the court that plaintiff have judgment. Both parties having requested the court to direct a verdict, the facts most favorable to the plaintiff’s contention must be deemed to have been found. Being apprised by the face of the notes that they were non-negotiable, and payable only out of such a portion of the income of the Life Union as might be properly applicable thereto, and having, as we have already observed, knowledge of the facts attending their making and delivery, it follows that defendant was in no better position as against the company than thé directors themselves. They would clearly have been liable as wrongdoers had they, through official action, diverted from the reserve fund a sum of money sufficient to pay the notes. That is what the defendant by his own action and that of his chosen directors accomplished.

About six months after he had entered upon the discharge of the duties of his office as president of the Life Union, he took the first step, so far as we are informed by the record, in the direction of securing the payment of the notes.

It is not unlikely that he fully appreciated the impending storm, which a few weeks later drove the corporation into a receivership.

November 7, 1892, the bylaws were amended as follows:

“The board of directors shall have authority to fix and determine the amount of benefits for which certificates of membership will be issued, rates of assessments, admission fees and annual dues, and to adopt such other rules and regulations as they may deem best for the interest of the association ; and shall have the authority to adopt and execute in addition to the mode in these bylaws provided for, such other or additional plans and systems of participation in benefits of membership, and of the holding, division and legal investment of reserve fund and accumulations in conformity with the laws of‘the state of New York, and of the use thereof for any lawful purpose deemed to be for the promotion, well-being and interest of the association, and for the benefit of members, from time to time, as the board of directors may deem expedient and for the best interest of the association.”

Having thus provided, as the president supposed, a way by which the moneys in the treasurer’s hands could be applied in payment of the notes with some appearance, at least, of regularity, the president, qft some day during the following month, called a meeting of the board of directors. During the morning of the-day of the meeting, and before the hour fixed for that purpose, the president, evidently with full confidence that his chosen directors would, not attempt to thwart his intended raid upon a fund set apart for a particular purpose, directed the treasurer, Winaus, to ascertain the entire amount of the reserve fund then on deposit in the National Park Bank, and to draw a check payable to cash for such amount. It turned out that the amount of the reserve fund was less than the face of the notes, but a check for all there was, amounting to a' little over $10,000, was made out by the treasurer and delivered to the president. The president promptly sent the check to the bank for certification,- and an hour or so-later the directors’ meeting was called to order and the following resolution promptly passed :

“Resolved, It being apparent, from notes presented, that Mr. Louis P. Levy has taken up notes to the amount of eleven, thousand ($11,000) dollars drawn by the company, we hereby authorize our officers to draw upon our reserve fund to pay such, notes, with "interest.”

The resolution having been safely passed, and the certified check for every cent in the reserve fund having come into the president’s possession, he on the same day resigned his trust.

The" bylaw may have been passed to give the appearance of regularity to the action contemplated, or possibly on the assumption that its authorization to use the reserve fund for any lawful purpose deemed to be for the “promotion, well-being and interest-of the association, and for the benefit of members,” would protect, the directors in appropriating "the funds to any purpose not absolutely disassociated from the affairs' of the Life Union. The bylaw does not admit of such a construction, but were it otherwise it. would be invalid, because in excess of the power of the directors.

The statute then in force provided for the accumulation and maintenance of a reserve or emergency fund, which “shall be held, for the benefit or protection of its members, their legal representatives or beneficiaries,” chap. 690, Laws 1892, § 205, while the-scheme which this bylaw is invoked to protect is one to deprive the members of the benefit and protection of the reserve fund.

As the officers and directors of the" corporation were without, authority to make use of the reserve fund in payment of the notes, and the action taken was not only witli the knowledge of, but induced by the defendant while charged with the duty of protecting' and preserving the fund, it follows that judgment was properly ren-dered against him. The judgment should be affirmed, with costs.

Follett, J., concurs.

Van Brunt, P. J.

I concur. Upon the face of the notes it. appeared that the moneys used to pay the notes were not properly applicable thereto.