author: Barker, J.:

text:
    THE FIRST NATIONAL BANK OF BATAVIA, Respondent, v. HENRY F. TARBOX, as Assignee and Trustee of JAMES H. JONES and EVELYN F. HOUSE, Insolvent Debtors, Appellants, Impleaded with Others.

      Pwtnerrship debts we joint, and not joint and several, obligations ofthepairtm&i's — when a mortgage mil be construed to cover only individual and not firm debts.

    December 28, 1880, one Jones and bis wife executed and delivered to the plaintiff a bond secured by a mortgage upon real estate owned by Jones, conditioned “ as a security for the payment of any and all indebtedness which said James H. Jones now owes, or may hereafter owe, at the First National Bank of Batavia (the plaintiff), and as a continual security therefor to the amount of seven thousand five hundred dollars. ” Prior to that time J ones had formed a copartnership with one House, which was to commence business on January 1,1881. February 2, 1881, the plaintiff loaned Jones, individually, $500, and thereafter $1,500, which latter amount was repaid by Jones. Thereafter the $500 so loaned to Jones was, with $1,000 loaned to the firm, carried into a note made by the firm. Subsequently Jones made a general assignment for the benefit of first his individual and second the firm creditors.
    In an action subsequently brought by the plaintiff to enforce the mortgage:

      Held, that the condition of the mortgage could not be construed as indicating an intention on the part of the mortgagor to secure the payment of the firm debts.
    That as the firm debts were joint, and not joint and several, obligations they were not debts .of Jones as an individual and were not covered by the mortgage.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action at the Genesee County Special Term.
    The action was brought to foreclose a mortgage executed by James H. Jones and wife to the plaintiff, on the 23d of December, 1880. The mortgage was intended as a security for debts thereafter to be contracted. In September, 1883, Jones made a general assignment of his individual property, including the mortgaged premises, giving a preference to his individual creditors, the remainder to be applied in payment of the copartnership indebtedness of Jones & House, of which firm he was a member. At the time of the commencement of this action the assignment had been executed and delivered, and there was due from Jones individually, to the plaintiff, $500, and there was due also to the plaintiff a copartnership debt of $7,000. The trial court held, that by the terms of the mortgage the same was a security for both the individual and copartnership indebtedness, and directed a decree accordingly. The assignee in whom the title was vested brings this appeal from this decree, insisting that the mortgage, as a security, was limited to the individual indebtedness of Jones. That is the only question presented on this appeal.

      Myron H. Peck, for the appellants.

      George Bowen, for the respondent.
   Barker, J.:

The legal proposition presented by the exception is this: Can the mortgage be enforced as a security for the payment of the debt owing by the firm of Jones & House, to the plaintiff? The plaintiff’s position is, that a copartnership indebtedness is a several as well as a joint liability on the part of the members, and payment of the same can be enforced against each individually. It was upon this view of the law that the learned trial judge disposed of the case in the plaintiff’s favor, and held that the copartnership debt was secured by the mortgage. In our consideration, the rule of law applied by the trial court does not prevail in this State as it does in England and some of the other States, but has been condemned by our courts as unsound, and the law in this State is now settled to be, that copartnership obligations are joint and not several, and this rule prevails both at law and in equity. Mr. Story, in his work on Equity Jurisprudence, does say, in speaking of the rights of copartnership creditors and the mode and manner in which they may enforce the payment of their debts out of the effects of a deceased member, that the doctrine is, “that every partnership debt is joint and several; and, in all such cases, resort may primarily be had for the debt to the surviving partners or to the assets of the deceased partner.” (Vol. 1, § 676.)

In Collyer on Partnership the rule is stated to be the same in a discussion of the same questions. But both of these authors rely wholly on the English cases as their authority for the rule laid down, and neither attempts to support the proposition by any argument of their own, based upon principle, or upon the nature of a copartnership promise.

Since the appearance of these commentaries, the question haa been settled, in our own courts and the legal proposition stated by these eminent commentators has been distinctly repudiated and the true rule is held to be, that a copartnership debt is a joint obligation only, and copartnership creditors must observe that principle in all legal proceedings instituted to enforce the collection of their debts. (Lawrence v. Trustees, etc., 2 Denio, 587; Haines v. Hollister, 64 N. Y., 3; Pope v. Cole, 55 id., 124; Lane v. Doty, 4 Barb., 537; Voorhis v. Childs’ Exr., 17 N. Y., 354; Richter v. Poppenhausen, 42 id., 373; Tracy v. Suydam, 30 Barb., 110; Trustees v. Lawrence, 11 Paige, 80.)

In Lawrence v. Trustees, Mr. Justice Jewett, in his opinion, says, in speaking of a copartnership debt, “that it is joint and not joint and several.” And in Pope v. Cole, Judge G-boveb uses substantially the same language in discussing the question whether a copartnership debt is several as well as joint. And in the other cases it was held, as in the last case, that upon the death of a member of a copartnership the common-law right of action survived against the surviving member, and none existed against the representatives of the deceased member. If the debt is several as weu as joint, then upon the death of a member of the firm an action at law may be prosecuted as a matter of right for the purpose of securing payment of the debt against the representatives of the deceased member as well as against the survivors. It is because there is no several liability on the part of each member unless created by an express promise to that effect, that the courts have held that a partnership creditor cannot enforce payment of his debts out of the assets of a deceased member' until he has failed in proper judicial proceedings to collect the same from the survivor by reason of his insolvency. The assets of a deceased member are subject to an equitable lien in favor of the copartnership creditor, which may be enforced in equity when the remedies against the survivors have been. exhausted. As a general rule,, courts of equity do not entertain an action in any case where there is an adequate legal remedy by which full redress can be obtained. Hence it follows, to enable a creditor to collect his debt in equity from the estate of a deceased joint debtor, that he must show he has no legal remedy against the representatives of the deceased member; and this is established on showing that the suit is to enforce the payment of a copartnership debt which cannot be collected from the survivor.

The judgment, therefore, so far as it holds that the mortgage is a security for the partnership debts of Jones & House, cannot be upheld on the grounds assigned by the Special Term.

We have been cited by the respondents to the case of Doggett v. Dill, an Illinois case, and reported in full in the Albany Law Journal (vol. 30, p. 274), to the effect that every partnership debt in equity is joint and several, and the holder of the same may, in case of the death of a partner, resort, in the first instance, to the surviving partners or to the assets of the deceased partner as he may elect; and the failure to proceed against the surviving partners until their insolvency is established is no bar to its collection from the estate of the deceased partner. In that case the court observed that a contrary rule had been established and followed in this State, and cited some of the authorities to which we have referred.

Another question remains for our consideration and it is: Does, it appear by the terms of the mortgage and the attending facts and j circumstances that it was the intention of the mortgagor to include the copartnership debt as -an obligation to be secured by the mortgage lien? The referee has found that the copartnership had been formed prior to the execution of the mortgage, with a view of commencing business on the 1st day of January, 1881, which was seven days after the date of the mortgage. The condition of "the mortgage is as follows: “Which said mortgage is given as a security for the payment of any and all indebtedness which said -James H. Jones now owes or may hereafter owe at the First National Bank of Batavia and as a continual security therefor to the amount of $7,500.” It does not appear that any money was advanced by the bank to Jones individually or to the firm until the 2d day of February, 1881, on which day the bank loaned Jones :$500, which at the time of the failure of the firm had been carried into a note made in the copartnership name, which also included the sum of $1,000, a debt owing by the firm. After the mortgage was given the bank loaned Jones individually other sums to the •amount of $1,500, which he had paid before he made an assignment. These are the collateral facts and circumstances from which We are to determine, together with the terms of the mortgage,, whether it was the mortgagor’s intention to secure any portion of the firm’s indebtedness to the bank.

When a copartnership debt is created there is an obligation, assumed by each member to pay the same, which can be enforced during the lifetime of the several members by an action at law prosecuted against all the members, based on their joint promise or liability, and in that mode of procedure their separate property may be reached by process of execution issued on the judgment. But this obligation is not primary and direct, it is ultimate or secondary. The debt created is not the debt of the individual members,, it is the debt of the firm which, in the law, has a recognized existence independent of the membership. In a sense one owes a debt when he is under a legal obligation to pay it, which payment can be enforced by a resort to the course of procedure established by law. Yet at the same time it may be primarily the debt of another which can only be enforced upon certain conditions which he or the law has imposed. It did secure Jones’ indebtedness which it is conceded the parties contemplated. Thus a purpose was effected by its execution without including the copartnership debts. The-individual indebtedness of the mortgagor is specifically mentioned, and proper and apt words were used to secure that purpose. To give the instrument a broader meaning, the intention of the mortgagor should be plainly and unmistakably indicated. When the-mortgage was executed the copartnership had been created; but it had not then commenced business operations. If its -debts were intended to be secured thereby, by either party to that instrument, it is very natural to suppose that it would have been indicated by the use of words plainly importing that purpose. If it be said that the bank did not know at that time of the existence of the copartnership, then that circumstance tends to support the appellant’s contention, that the mortgage was not given to secure the debts of the firm. We are of the opinion that the mortgage cannot be construed as indicating an intention on the part of the mortgagor to embrace the copartnership debts.

The judgment should be reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulates within twenty days to reduce the amount to be made by judgment to $500, and interest from September 11, 1883. Being tbe individual indebtedness of Jones, if he so stipulates, the judgment as so modified affirmed, without costs to either party.

Smith, P. J., and Bradley, J., concurred.

Judgment reversed and new trial ordered, costs to abide event, unless the plaintiff stipulates within twenty days to reduce the amount adjudged to be due to the sum of $500, with interest from the 11th of September, 1883, in which case the judgment, as so reduced and modified, is affirmed, without costs of this appeal to either party.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HENRY K. STEVENS, Appellant.

      Larceny — an undelivered satisfaction-piece of a mm'tgage is not the siibject of la/rceny — Penal Oode, secs. 528. 718, sub. 15, 536.
    The defendant having agreed to purchase, free from incumbrances, a house and lot in the city of Buffalo, the owner thereof sent to her agent in that city, a deed of the premises and also an instrument satisfying a mortgage upon the property which mortgage was held by her sister. The satisfaction-piece was in proper form, and duly signed and acknowledged by the mortgagee, but the debt which it purported to satisfy had not in fact been paid, and the satisfaction-piece had been placed in the hands of the mortgagor, and had been by her sent to the agent with the understanding that it was only to be used upon the happening of certain conditions.
    The defendant, by means of false and fraudulent representations, and without compliance with the conditions imposed, procured possession of the satisfaction, piece from the agent and caused it to be placed on record.

      Held, that as the satisfaction-piece had never been delivered, it was not'when taken by the defendant the subject of larceny, and that he could not be con victed of that crime.
    Appeal from the judgment of the Erie County Court of Ses sions, based upon a verdict convicting the defendant of the crime of grand larceny in the first degree, under which he was sentenced to imprisonment for a period of five years.
    Ella S. Comstock was the owner of a house and lot in the city of Buffalo and she entered into an executory agreement in writing, to sell and convey the same to the defendant. Hpon this property there was a lien by mortgage executed by Ella S. Comstock to one Sarah Comstock, to secure an indebtedness of $1,500, and the same was recorded in the Erie county clerk’s office. By the terms of the sale the premises were to be conveyed to the defendant free of this incumbrance. Without paying the debt the mortgagor procured to be placed in her hands by the mortgagee a discharge of the lien, to be used upon certain conditions. The words of discharge after describing the mortgage are as follows: “ is paid, and I do hereby consent that the same be discharged of record.” The mortgagee resided in this State and. the mortgagor in the State of Louisiana, and the latter, with a view of closing the transaction with the defendant, placed in the hands of one Walker the discharge-and a deed of the premises ; thereupon he called upon the defendant in the city of Buffalo and before the deed was delivered placed the discharge in the hands of the defendant, who caused the same to be placed on record. Before receiving a deed of the premises the defendant, without the consent of the owner, entered into possession of the premises. Misunderstandings and disagreements arising between the parties, several suits were commenced in which the defendant and his vendor were parties. The evidence tended to prove that the defendant was guilty of mis-statements and false representations in procuring possession of the discharge from Walker and that his actions were fraudulent, and that the act of placing the discharge upon record was fraudulent and against the wishes of the parties to the mortgage, and without the consent of Walker the custodian of the same at the time it was delivered into the possession of the defendant.
    The act on which the charge of larceny was based was the alleged stealing of the discharge, and in the indictment it was averred to be the property of Walker and of the value of $1,500.

      Joseph P. Carr, for the appellant.

      George T. Quinby, assistant district attorney.
   Barker, J.:

The important and underlying question presented by the appeal is tliis, was the written instrument set forth in the indictment, called a discharge of the mortgage, the subject of larceny ? It is conceded by the counsel for the people that Sarah Comstock, the mortgagee, who executed the instrument, had not been paid the debt secured thereby and that she placed the discharge in the hands-of the mortgagor to be used by her upon the happening of certain conditions and in exchange of certain other securities in lieu thereof. The pi’oseeution was conducted upon the assumption that these facts were true, and the court submitted to the jury legal propositions to he applied by them if they should so find the facts. The defendant acquired the possession of the instrument from the hands of Walker, the custodian, with his consent. The people claim that such actual possession by the defendant was acquired by means of deceit and false pretenses practiced upon Walker with the intent to cheat and defraud the mortgagee, and that the act of the defendant in thus securing possession of the discharge and placing the same on record, was larceny as that offense is now defined.

It will simplify the question now under consideration if we consider the case the same as if the defendant had taken the written instrument from the possession of the mortgagee vi et armis and against her consent. If such an act would not constitute larceny, for the reason that an undelivered instrument of this nature is not the subject of larceny, then very clearly it was not larceny on the part of the defendant to acquire possession of the same from Walker, the custodian, by means of fraud and deceit practiced on him by the defendant. The custody of Walker was, under the circumstances of the case, in law the custody of the maker of the instrument. It is the general rule that to constitute larceny of a written instrument, the paper must be effective and operative when taken. Was this instrument effective and operative for any purpose when the defendant acquired the possession? I think not. It had never been delivered, nor was it intended to be used for the purposes therein mentioned until the performance of certain things thereafter to take place. The debt it was intended to secure remained unpaid. The possession of the paper by the defendant did not, nor did its record, and could not in law, release the debt nor discharge-the land from the mortgage lien. Until the instrument was delivered to some one by the maker for the uses and purposes expressed therein, it possessed no value and was not personal property, in the sense and meaning of that term as defined by the statute. The instrument, although complete in form and bearing the signature of the mortgagee and duly acknowledged, ready to be delivered and used according to its design, could not, while in this state, be the subject of larceny. (People v. Loomis, 4 Denio, 380.)

By the common law larceny could only be committed of personal goods, mere movables having an intrinsic value. By the Penal Code it is larceny to steal the personal property of another. (Sec. 528.) The same provision existed in a former statute. The term personal property as there used, is defined to mean and include every description of money, goods, chattels, effects, evidence of rights in action, and all written instruments by which any pecuniary obligation, right or title to property, real or personal, is created, acknowledged, transferred, increased, defeated, discharged or diminished, and every right and interest therein.” (Penal Code, sub. 15, § 718.) This definition of the term personal property is only new in form, the various previous enactments on the subject having been simply collected and consolidated. (2 B. S., 702, § 33.) As no statute enlarging or changing the definition of personal property has been enacted since the decision of the People v. Loomis, that case stands as an authority in construing the statute as it now reads. The new statute defining the crime of larceny has enumerated the kind of written instruments which may be the subject of larceny, although they have not been issued or delivered for use as follows: “ An instrument for the payment of money, an evidence of debt, a public security, or a passage ticket, completed and ready to be issued or delivered, although the same has never been issued or delivered by the maker thereof to any person as a purchaser or owner.” (Penal Code, § 536.) This provision does not embrace instruments intended to be used as a release of a debt or a discharge of a mortgage lien. As such instruments are not included in the enumeration it creates a strong presumption that it was not the purpose and intention of the legislature in creating and defining the offense of larceny to embrace written instruments of this nature, which were not effective and operative at the time they were taken. If this instrument had been delivered so as to be effective as a discharge of the mortgage, it then would be property in the hands of any person interested in the premises and would be the subject of larceny if feloniously taken from the possession of a rightful holder, and then it would he personal property as defined by the statute already quoted.

The case of Phelps v. The People (72 N. Y., 334) does not support the argument of the learned district attorney. It was there held that the draft, which was the subject of the larceny as charged in that case, was a legal operative instrument when it reached the hands of the defendant. It has been held in this State (People v. Wiley, 3 Hill, 194,) that bank bills, complete in form and ready for circulation, but not in fact issued, are the property of the bank and may be the subject of larceny. The facts of the case were such as to form an exception to the general rule as it then existed as to unissued instruments. JBank bills when stolen and in the possession of the thief are as valuable to him as if the same had been issued and in circulation, and he has it in his power to ruin the bank by their use. Bank bills in that form pass from hand to hand like coin and when stolen the payee, to whom they are passed, takes a perfect title to the same. Although not put in circulation by the bank, they may be proj>erly considered money in its hands when complete in form and ready for circulation. The bona fide holder acquires a perfect title as against the bank, and as the bank has a title to the paper on which the instrument is printed, it is not unreasonable to hold as matter of law, as against the thief, that such bills in the hands of the bank are each of the value of their respective denominations. This and nothing more was decided in Wiley’s case. The rule of that is now incorporated in the statute. There was no rule of law laid down nor any principle asserted in that case which supports the argument that this instrument, when taken by the defendant, was operative and effective for any purpose.

The judgment should be reversed and a new trial granted.

Smith, P. J., and Bradley, J., concurred.

Judgment and conviction reversed and new trial ordered in the Court of Sessions of Erie County, to which court the proceedings are remitted.


text:
    REGINA ZORN, Respondent, v. JOSEPH ZORN, Appellant.

      Pleadings — a cause of action for am, absolute divorce cannot be united with, onsfor a separation — the failure of the plaintiff to separately state his causes of action does not deprive the defendant of his right to demur.

    The complaint in this action, -brought by a wife against her husband, stated facts sufficient to constitute a cause of action for .an absolute divorce on the ground of his adultery, and also other facts sufficient to constitute a cause of action for a separation. It prayed for a separation, that the defendant be compelled to make provision for the defendant’s support, and for such other and further relief as might be equitable.

      Meld, that the complaint was demurrable upon the ground that two causes of action had been improperly united therein.
    That the fact that the two causes of actions were not separately stated and numbered, as required by the Code and Rules of Practice, did not deprive the defendant of his right to demur.
    Appeal from a judgment, entered upon the decision of the Monroe Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.
    The action was brought for a divorce, and the relief demanded in the complaint is, that a separation from bed and board forever may be adjudged, and that the defendant be compelled to make provision for the support and maintenance of the plaintiff; and that the plaintiff may have such other and further relief in the premises as shall be equitable and the circumstances of the case may require.
    One of the grounds of the demurrer, as stated therein, avers that there is a misjoinder of causes of action. The averments in the complaint are set forth in the opinion.

      J. A. AdVmgton, for the appellant.

      W. E. Edmunds, for the respondent.
   Barker, J.:

The serious question presented by the demurrer is, whether separate and distinct causes of action have been improperly united. By the rule of pleading established by the Code of Civil Procedure the plaintiff may unite, in the same complaint, two or more causes, of action, whether they are such as were formerly denominated legal or equitable, or both, if each of such causes of action belong to one or the other of the several classes stated in either of the subdivisions of section 484 of the Code.

In support of the demurrer, the defendant contends that the complaint states a good cause of action for divorce a vinculo, as provided in article 2, chapter 15, of the Code; and also a good cause of action for a separation a mensa et ihoro, as provided in article 3 of the same chapter. (See §§ 1756, 1762.)

In the first paragraph of the complaint it is alleged, in substance, that the parties were married in the city of Rochester, and that they continued to live and cohabit together until about four years prior to the commencement of the action, when the defendant separated from the plaintiff and went to Oneida, in this State, where he now lives; that. before leaving Rochester he was living Avith a woman by the name of Winderman, who accompanied the defendant to Oneida, where he has kept and supported her, and lived an adulterous life with her; and that the defendant gives out that he has married the said woman, and in fact is now living with and supporting her at the said village of Oneida.

If these allegations are true, then the plaintiff is entitled to a judgment for an absolute divorce from the defendant, founded upon the fact of adultery, as charged. An act of adultery is alleged, Avith a woman whose name is given, and the place where it was committed is stated, and the time when :nentioned. There is no material fact necessary for the plaintiff to prove left unstated in the complaint. There is a complete compliance with the rule on this question, as now established and laid down in Mitchell v. Mitchell (61 N. Y., 398). It is very clear that a demurrer to this part of the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, could not be supported, and if there be any pretense that there is want of particularity or certainty in the statement, the proper mode of relief would be to demand a bill of particulars. (Tilton v. Beecher, 59 N. Y., 176; Tim v. Tim, 16 Abb. Pr. [N. S.], 39.)

In the remaining paragraphs of the complaint, it is alleged that since the 1st of September, 1883, the defendant has refused to pay anything towards the support of the plaintiff, and that she is in poor and. destitute circumstances, and that there is no issue of the said marriage; that during all the time the parties lived and cohabited together, as husband and wife, the plaintiff faithfully discharged her duties as wife of tli • defendant, and at al! times treated him with kindness and forbearance; that during the years 1870 to 1878, inclusive, and while living together at Rochester, New York, the defendant treated her in a cruel and inhuman manner; that besides living with the said woman, he repeatedly assaulted her and beat her; that he threatened her life; that his said acts of cruelty and inhuman treatment were continuous during the years from 1870 until the time he left the plaintiff as herein stated; that the said defendant is a man of violent passions and ungovernable temper, and on innumerable occasions during the years 1870 to 1878, inclusive, but the dates of which this plaintiff cannot now definitely state, the defendant addressed to her the most opprobrious epithets and threats of personal violence.” It is also alleged that the defendant possesses means and income amply sufficient to aid in her support and maintenance. In these allegations sufficient facts are stated to entitle the plaintiff to a judgment of separation from bed and board, and for relief in the way of proper support and maintenance.

That two causes of action of a distinct nature and character are embraced in the complaint, seems clear and is not seriously disputed in the printed argument submitted by the plaintiff’s counsel. Under the prayer for relief, the plaintiff would be entitled to a separation on proving the acts of cruelty averred, and, if failing in that, on maintaining the allegations in the complaint as to the charge of adultery, the plaintiff would be entitled to an absolute divorce under the clause asking for such “relief as the plaintiff might be entitled to in the premises, and as should be equitable and just under the circumstances of the case.” The prayer for relief is so framed and bo broad in its terms that the question whether separate and distinct causes of action are set out in the complaint must be determined upon the allegations of fact set forth therein.

The suggestion that the act of adultery set out in the complaint is mentioned simply to aid the charge of cruelty cannot be accepted to defeat the demurrer, if by any fair construction of the complaint and the relief asked for the plaintiff would be entitled to a judgment for either an absolute divorce, or separation, as the facts might appear upon the trial. But the plaintiff’s main contention is, that both causes of action may be united in the same complaint without violating the statutory rule as to the joinder of causes of action. The charges of adultery and of cruel usage are not only distinct and unconnected charges, but they lead to separate and distinct issues. The mode of proceeding is different; and it leads to confusion to connect them in the same action. One of the causes of action asks for a judgment dissolving the marriage contract ; and the other for relief based upon its existence and continuance. The charge of adultery overbears and destroys the effect of the one of cruelty and ill treatment and the remedy is merged in the other, and it would be vexatious and improper, as well as useless, to pursue the charge of cruel usage until the charge of adultery had been tried and determined adversely to the plaintiff. These views were expressed by the Chancellor, in Johnson v. Johnson (6 Johns. Ch., 163), where it was distinctly held, that charges of adultery and of cruel usage were distinct and independent in their character and cannot be joined together in the same action. This rule has never been departed from in this State and has been adhered to since the adoption of the statutory rule of pleading. (Smith v. Smith, 4 Paige, 92; McIntosh v. McIntosh, 12 How., 289; Henry v. Henry, 17 Abb., 411; McNamara v. McNamara, 9 id., 118.)

We need not further restate, in this opinion, the reasons and arguments upon which these decisions are founded, as we consider them controlling upon the question.

In Doe v. Doe (23 Hun, 19), the learned judge there remarked, that the cases in this State were not, in his opinion, conclusive on this point, but declined to pass upon the question, and stated that by the rule as now established in the English courts, these causes of action might be united, and cited Hughes v. Hughes (Law Rep., 1 Prob. & Div., 219).

In the complaint the separate causes of action were not separately stated and numbered, as required by the Code and rules of practice. But this omission to comply with the rule does not deprive the defendant of his right to demur. (Wiles v. Suydam, 64 N. Y., 173; Goldberg v. Utley, 60 id., 427.) We are unable to escape the conclusion that the' demurrer was well interposed and should have been sustained.

Judgment reversed, the demurrer to the complaint sustained, with leave to the plaintiff to amend within twenty days.

Bradley and Haight, JJ., concurred; SMITH, P. J., not sitting.

Judgment and order reversed and demurrer sustained, with leave to the plaintiff to amend the complaint within twenty days.


author: BARKER, J. I

text:
    MICHIGAN CARBON WORKS, Respondent, v. CHARLES H. SCHAD, Appellant.

      JSkidence — admissions by a defendant, when they are the only positive evidence against him, are to be ca/refully sc/rutinized — their weight and effect should be submitted to the jury — so should the credibility of witnesses coded by the plaintiff who are in his employment.

    This action was brought by the plaintiff to recover an amount alleged to be due to it from the defendant for goods shipped by it to the defendant, and sold by him as its agent. The answer was a general denial. Upon the trial no direct and positive proof was given as to the quantity of any actual shipment of goods by the plaintiff, or as to any sales thereof made by the defendant, hut the plaintiff sought to recover upon the testimony, of two witnesses called by it, relating to admissions made by the defendant that the amount claimed was due from him to the plaintiff. The details of the interview with the defendant, but not the actual language used, were given by the witnesses. One of the witnesses was an agent of the plaintiff and had sold some of the goods to the defendant, and the other was an attorney employed by the plaintiff to collect claims due to it, and the interview, as to which he testified, was had while attempting to collect this particular claim. The defendant requested that he should be allowed to go to the jury upon the question of the nature, extent and meaning of his admissions, and his intent and purpose in making them, and as to the credibility of the plaintiff’s witnesses.

      Held, that the court erred in denying the application and directing a verdict in favor of the plaintiff.
    Appeal from a judgment in favor of tbe plaintiff, entered upon a verdict directed by the court, and from an order of the trial judge denying a motion for a new trial made upon his minutes.
    At the close of the evidence a verdict was directed against the defendant in tbe plaintiff’s favor for tbe sum of $1,417.53, to wbicb tbe defendant’s counsel excepted.

      William Q. Greene, for tbe appellant.

      E. M. db F. M. Ashley, for tbe respondent.
   BARKER, J. I

Tbe plaintiff, a Michigan corporation, is tbe manufacturer of fertilizers doing business at Detroit, and on tbe 24th day of July, 1882, appointed tbe defendant its agent for Niagara county, tbis State, for tbe sale of the same by an instrument in writing, by tbe terms of which goods were to be shipped to tbe defendant, who was to receive and sell tbe same upon commission, collect tbe proceeds and pay over tbe same, tbe title of tbe property to remain in tbe plaintiff, tbe defendant agreeing to be responsible for any loss to tbe property arising from fire or otherwise. His commissions were stipulated in tbe agreement. Tbe proofs tended to establish that under tbis agreement a quantity of goods were shipped to and received by tbe defendant and sold and some of tbe money collected. ^Prior to making tbis contract a car load of goods bad been placed in tbe bands of tbe defendant for sale, but there was no direct proof as to the quantity or tbe terms of tbe arrangement under wbicb they were delivered. In March, 1883, tbe account being unsettled, tbe plaintiff made out a statement of tbe same and caused it to be presented to tbe defendant, as testified to by wit. nesses called in tbe plaintiff’s behalf, and on tbe failure of tbe defendant to pay over tbe moneys wbicb were claimed to have been collected by him tbis action was commenced.' There was no direct and positive proof presented by tbe plaintiff of tbe quantity of goods delivered to the defendant, tbe quantity of tbe same that was sold, or of tbe amount of money collected on tbe sales actually made. Tbe plaintiff relied entirely upon tbe admissions made by tbe defendant to its attorney and agent at tbe time tbe account was presented and a demand made for its adjustment and tbe payment over of such moneys as be bad collected. Tbe account as made out consisted of items of tbe quantity of goods shipped, tbe price of tbe game, tbe date, and was brought to a balance, in wbicb tbe plaintiff claimed a balance in its favor of $1,517.53.

Tbe defendant’s answer contained a general denial, putting in issue all the allegations in the complaint. The admissions of the defendant as to the quantity of goods received by him, the extent of the sales, the goods on hand unsold, and the amount of money collected on the sales and in his hands were attempted to be estab lished by the plaintiff’s own witnesses. After the defendant was in default as alleged, and the account mentioned was made out, it was placed in the hands of Mr. Myers, one of the plaintiff’s general attorneys, and not the attorney of record who lived in Cleveland, who called upon the defendant at his place of business for the purpose, as the witness testified, of settling and closing up the matter in controversy and presented to him the account and had conversations with him concerning the matter in dispute. The other witness, Mr. Palmer, who was called by the plaintiff was its salesman and’ had been in its employ for the period of five years, negotiated the terms of the written contract and as he testified received an order from the defendant for one of the items of goods mentioned in the bill. Neither of these witnesses claimed to have any personal knowledge as to the shipment and receipt of goods by the defendant, or of the quantity sold, or of the sums collected, or as to the accuracy of any item contained in the bill as presented. They were both present, as we understand from their testimony, and gave evidence as to the same interviews and admissions claimed to have been made by the defendant.

Assuming that their evidence is in all respects truthful, and the nature and character of the defendant’s admissions are stated by these witnesses substantially in the language used by the witnesses, it was fairly established that the defendant received from the plaintiff the quantity of goods mentioned in the bill and that he had collected and had in his hands unaccounted for the amount of money for which the verdict was directed. Before the court directed the verdict the defendant’s counsel requested permission to go to the jury as to the nature, extent and meaning of the defendant’s admissions, and the intention and purpose of the defendant in making the same, and upon the question as to the credibility and reliance which should be placed, under the circumstances, upon the evidence given by the defendant’s attorney and agent. These requests were denied and the defendant excepted.

Among other things testified to by the witnesses they state that the defendant presented his own books of account and reference was made to the same with a view of ascertaining the true situation of the matters of which he had charge. They also stated that the defendant himself checked off some of the items in the bill presented, but none of the particular items are indicated in their testimony, nor do either of them state that he gives his testimony 'in the language in which the conversation with the defendant was carried on, and it is manifest, on a perusal of the same, that they did not. The witness Myers, among other things, testified as follows: I was told by Schad that he had some goods on hand; the amount was not then known; Mr. Schad fixed a time when we would go out to his sheds and inventory the goods on hand; Palmer, Shad and I went out to the sheds, took the inventory and agreed upon the amount of goods on hand, and the goods were surrendered to me that day by Schad; the amount agreed on was $875.74; I then said the amount which you owe us now is $1,517.53; he said that is correct; after we had agreed upon this balance I asked him if he had collected this money and whether it was all paid in ; and he said it was not all paid in, and from reference to his books he gave me the amount that was not paid in; that is the amount which he had not collected; he gave us the items of it, and I can’t give the exact sum, but it was in the neighborhood of forty dollars that had not been paid in; the rest, he said, had been paid; he said he had turned the unpaid accounts over to his assignee; Schad said the-money collected had been used; I think he said there had been some more than forty dollars uncollected, which Mr. Stebbins, his assignee, had collected since they were turned over to him, and that at the time of that conversation there was forty dollars unpaid, and that the amount of money which he had at the time of the assignment had been used; I had two conversations with Schad after-wards; they were repetitions of the above conversations, not as full, and did not refer to the books again; Schad examined the: statement which I have here, and the pencil marks thereon were-made in his presence. ” This witness gave further evidence on the same subject, all of which tended to show that the defendant admitted that there was due from him to the plaintiff the amount for which the verdict was ordered. The witness Palmer did not give his evidence in the same language and phrases as the first witness Myers, but it was in effect substantially the same as to the conversation and admissions claimed to have been made by the defendant.

As the plaintiff relied upon the evidence of these witnesses for the purpose of proving all the facts upon which its alleged cause of action was based, and neither of them had any personal knowledge of the material facts to be established, I am of the opinion that it was for the jury to determine the facts, if any, which were established by the admissions of the defendant in the interviews and conversations related by the witnesses, and that it was error for the court to direct a verdict in the plaintiff’s favor. It is a competent way to establish the existence of a material fact in a legal controversy, to prove the admissions, of a party, of the fact sought to be established against him; but such evidence is always received with great caution and scrutiny, and as a general rule it is for the jury to-say whether the admission, as made, established to their satisfaction the fact in issue. Mr. Greenleaf, commenting upon this class of evidence, says : “ With respect to all verbal admissions, it may be observed that they ought to be received with great caution. The evidence, consisting as it does in the mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say. But where the admission is deliberately made and precisely identified, the evidence it affords is often of the most satisfactory nature.” As to the effect of admissions when proved, he says: “It is for the jury to consider, under all the circumstances, now much of the whole statement they deem worthy of belief, including as well the facts asserted by the party in his own favor, as those making against him.” (Yol. 1, §§200, 201.) For the purpose of determining the particular facts admitted by the defendant, by the body of evidence as given by these witnesses, the same must be scanned, scrutinized, reconciled, the meaning of words and phrases considered, and all the facts and circumstances under which, the conversation took place, must be weighed and reflected upon with a view of determining the particular fact or facts which the defendant did admit. This was the province of the jury and not of the court. It may be that the jury would be justified in finding the defendant was indebted in the sum for which judgment was ordered, and that the evidence would not leave the question in much doubt in the mind of any intelligent and impartial person, nevertheless, as a deduction was to be made from the particular facts stated by the defendant, the question was for the jury.

The other question presented for our consideration relates to the credibility of witnesses, and I am of the opinion, in view of the relation which each of them bore to the plaintiff relative to this particular transaction in dispute and controversy between the plaintiff and the defendant, the defendant had the right to have the •question of their credibility submitted to the jury. It is a general rule that when evidence has been given by a disinterested, unimpeached and uncontradicted witness, and there is no intrinsic improbability in the statements made, neither a court or jury can’, arbitrarily disregard his testimony. (Newton v. Pope, 1 Cow., 110; Lomer v. Meeker, 25 N. Y., 361; Elwood v. Western Union Telegraph Co., 45 id., 553; Kavanagh v. Wilson, 10 id., 179.) But this rule is subject to many qualifications.

Whenever it is made to appear that the witness entertains a bias, however slight, towards the party against whom he is called to testify, then the triors, whether a court or a jury, must reflect upon his evidence and determine upon the weight and consideration which should be given to the same. In Starks v. The People (5 Denio, 106) the rule is stated as follows: “ It is always competent to show the relations which exists between the witness and the party .against, as well as the one for, whom he was called. The inquiry is material as it goes directly to the credit of the witness in the particular case.” That was a criminal case, but the same rule applies in civil actions. (1 Greenl. Ev., §§ 449, 450; 1 Starkies’ Ev., 135; Long v. Lamkin, 9 Cush., 365; Collins v. Stephenson, 8 Gray, 441.)

It is also competent to prove the social and business relations existing between the witness and the party calling him to the stand, .and if it is established that they are such as usually and ordinarily produce an interest in tbe mind of the witness in favor of the party calling him on the question in dispute,1 then it is for the jury to say to what extent, if any, the relationship impairs or destroys the credibility of the witness. In the case now here Myers, one of the witnesses, was the attorney in fact for the plaintiff, having charge of the settlement of the claim after the dispute arose concerning the matter in controversy. It is no different in principle and the rule should be applied with the same force and effect as if he was the attorney of record. It is manifest from the witness’ own statement that he was collecting attorney for the plaintiff, and the-circumstance that subjects his evidence to criticism and scrutiny is .the same as if he were the attorney of record, and in such cases the-credibility of a witness’ standing in that relation is never withheld from the consideration of the jury where the fact to which he testifies is in dispute. The other witness was plaintiff’s traveling salesman and agent, and appointed the defendant as agent and received from him an order for some of the goods mentioned.

In Kavanagh v. Wilson (supra) the court assigned as one of its reasons why the credibility of a witness called by the plaintiff should-have been submitted to the consideration of the jury; that he was a son of the plaintiff, engaged in his business, and was thus biased and interested in feeling in favor of the party calling him. Without imputing a want of truthfulness to either of these witnesses we think that their relation to the subject-matter in controversy was, of itself, sufficient to take from the court the right to dispose of the case upon their evidence and to require that the jury should pass upon the weight to be given to their' statements. In all essential respects the case is like Elwood v. Western Union Telegraph Company (45 N. Y., 549); Day v. Stickney (14 Allen, 261); and the rule laid down in these cases is applicable to this.

For these reasons a new trial should be granted, with costs to abide the event.

Smith, P. J., and Beadley, J., concurred.

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


author: Bareer, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. MICHAEL NEWELL, Respondent.

      Naturalization of children of resident aliens — when effected by the marriage of their mother with a naturalized, alien — V. S. Bevised Statutes, sees. 1994, 2172.
    The defendant was horn in Ireland, of alien parents, who, when he was four years old, emigrated to this country and became residents of this State. The father died here when the defendant was eight years old. Afterwards, and in August, 1861, his mother married one Began, who was then an alien and resident of this State. Afterwards, and when the defendant was sixteen years old, and while he and his mother were living m this State with Began, the latter was duly naturalized under the act of congress.

      Held, that as the mother by her marriage with Began, became, under section 1994 of the United States Bevised Statutes, a citizen of the United States, the defendant also thereby became a citizen thereof, by virtue of section 2172 of the United States Bevised Statutes, which provides that “ the children of persons who have been duly naturalized under any law of the United States * * * being under the age of twenty-one years at the time of the naturalization of their parents shall, if dwelling in the United States, be considered as citizens thereof.”
    Appeal from a judgment, entered upon tbe decision of the Erie ■County Special Term, dismissing the plaintiffs complaint.

      Denis O'Brim, attorney general, and J. H. Humphrey, for the people.

      Day & Homer, for the respondent.
   Bareer, J.:

The mayor of the city of Buffalo was empowered and required to appoint two commissioners of police for that city. (Laws of 1883, chap. 359.) In the exercise of the authority thus conferred, he did, on the 7th of May, 1885, in due form, appoint the respondent to that position, who thereupon took the official oath as prescribed by said act and assumed the duties of that office.

The people claim that the respondent is ineligible to the office and for that reason he should be ousted therefrom. This is the only question presented on this appeal and the facts on which its decision depends are undisputed.

By the terms of the act the appointee must be a citizen of the United States and also an elector of this State, and at the time of bis appointment a resident of tbe city of Buffalo. The incumbent was born in Ireland, of aben parents, who emigrated to this country when he was four years of age and they became residents of this State, he living with them until the death of his father, which occurred when he was eight years old. Afterwards, and on the 18th of August, 1861, his mother intermarried with one Thomas Regan, then also an alien and a resident of this State, but he was duly naturalized, in pursuance of the laws of congress, on the 4th of October, 1864. At this time the respondent was sixteen years of age and he, his mother and Regan, were all residents of the city of Buffalo. The defendant never, by any proceeding on his part, sought to comply with the laws of the United States relating to the naturalization of aliens.

When Regan, the husband of the defendant’s mother, became a citizen by virtue of his naturalization, she also immediately became a citizen, by force of an act of congress passed in 1855, now section 1994 of the United States Revised Statutes, which is as follows: £‘ Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized sba.ll be deemed a citizen.” (Kelly v. Owen, 7 Wall., 496; Burton v. Burton, 1 Keyes, 359; Kane v. McCarthy, 63 N. Car., 299.) This the learned attorney general admits.

The defendant contends, as he was under the age of twenty-one when his mother became a citizen, and being also at that time a resident of the United States, the privileges and rights of citizenship were conferred upon him “ ipso facto, et eo instanti,” by virtue of the provisions of section 2172, United States Revised Statutes, which declares that the children of persons who have been duly naturalized under any law of the United States * * * being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof.” This position is contested by the people and the attorney general argues, that as the defendant was alien born he could not become a citizen without action on his part in compliance with section 2167 which provides for the naturalization of minors who become residents of the country under the age of eighteen years.

The question is a novel one, never having been directly passed upon by any adjudication in the courts of this State. It has, however, been directly under consideration and adjudicated in some of the federal circuit courts, and in those cases the defendant’s position that he became a citizen by force of the statute (sec. 2172), at the time citizenship was conferred upon his mother, is fully sustained. Under the Constitution of the United States, congress has exclusive jurisdiction over the subject of naturalization, to the exclusion of the States. Under the power thus conferred congress has enacted a system of laws for the purpose of conferring citizenship upon aliens. Under such laws, a class of persons who are aliens are made citi • zens, by force and operation of the statute without any action on their part, as for instance, a woman who intermarried with a citizen, and the children of persons who have been naturalized upon their own application and they being under the age of eighteen at the time of the naturalization of their parents. Another class of persons may become citizens by instituting proceedings in a court of record and proving the facts which are required to be established by the statute as a condition to the right of citizenship.

It is the duty of the court to give these laws a fair and reasonable construction and to secure harmony in their operation whenever the same can be done without disregarding any positive provision or necessary intendment of the statute, and to reject any construction which would make one section inconsistent with the other relating-to the same subject. It is the citizenship of the parents which operates to confer citizenship on their children. In the original act of 1802, now brought forward and incorporated in title 30 of the Revised Statutes, the word “ naturalized,” as it occurs in the section now number 2172, is used as indicating that the parents have become citizens, and is not limited to cases where such parents have become citizens by a compliance with the provisions of the-act of 1802, but is susceptible of a construction which embraces all cases where the parents of the child became citizens by' operation of any existing law. The law of 1855, now section 1991, has not placed any limitations or qualifications on the effect of the intermarriage by the mother with a citizen, and declares in the most general terms, that any woman who is now, or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized shall be deemed a citizen. The words duly naturalized,” as used in section 2172, sbonld be construed as having the same meaning as if tbe words used were “ have duly become citizens ” and should be construed accordingly. The primary meaning of the word naturalization ” is the act of investing an alien with the rights or privileges of a native subject or citizen.” (Webster.)

In United States v. Keller, decided in 1882, in the Circuit Court for the Southern District of Illinois, it was held, that by the marriage of a resident alien woman with a naturalized citizen, she, as well as her infant son, dwelling in this country, became citizens of the United States as fully as if they had become such by the special mode prescribed by the naturalization laws. In that case Keller was indicted for illegal voting. Eis parents were aliens, being subjects of Prussia, and his father died without ever having been in this country. Subsequently his mother removed to the United States, bringing her infant son with her, and in 1868 she intermarried with a naturalized citizen. Keller claimed, as he was under the age of twenty-one years when his mother married a citizen of this country, he, by force of the act of 1855, was immediately invested with the privileges of citizenship, and as he was otherwise qualified by the laws of the State of Illinois to become an elector, he was not guilty of any offense. As this decision was rendered by Mr. Justice HaelaN, one of the highest judicial officers in the federal system of courts, and involves the construction of an act of congress, we readily adopt his views as they are in accord with our own interpretation of the same laws. As a general rule, when the question to be determined arises as to the proper construction to be placed upon an act of congress the State courts follow the interpretation given to the same by the federal courts.

In Leonard v. Grant (5 Fed. Pep., 11), it was held, that by section 1994, where an alien woman marries a citizen such marriage has the same force and effect as if such woman had been naturalized by the judgment of a competent court in pursuance of the naturalization laws. (See, also, opinions of the Attorney General, voL 14, page 402.)

The judgment should be affirmed, with costs.

Smith, P. J., and Beadley, J., concurred.

Judgment affirmed, with costs.


author: BauKER, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. JOSEPHINE MILLER and NELLIE RUSSELL, Respondents.

      Common council of Buffalo — power of that body to define who arc disorderly persons— 1880, cha/p. 436 —jurisdiction of police justices of the city.

    The charter of the city of Buffalo empowered the common council to pass ordinances " to define and prevent disorderly conduct; to prevent all disorderly assemblages, all disturbing noise, all drunkenness in public places, and to punish vagrants, beggars and disorderly persons as defined by law.”

      Held, that under the power so conferred the common council could pass an ordinance defining what disorderly conduct was, and who should be deemed disorderly persons, and might include keepers of houses of ill-fame, and persons voluntarily residing therein, in the latter class, and provide for their punishment.
    The defendant Miller was arrested without process and tried before a police justice of the city of Buffalo upon a charge of keeping a house of ill-fame, and upon conviction thereof was fined twenty dollars. The charter of the city of Buffalo confers upon the police justices power to try summarily persons brought before them on a charge of violating the city ordinances.

      Held, that as it appeared that the defendant was tried upon a charge of keeping a house of ill-fame, which was a misdemeanor, and not as being a disorderly person as defined in the city ordinance, the justice had no jurisdiction over the case and that the conviction should be set aside.
    Appeal from a judgment and order of tbe Court of Sessions of Erie county, reversing a judgment of a justice of tbe peace designated to attend police station No. 1, in tbe city of Buffalo.
    The respondents were arrested without process by tbe police of the city of Buffalo and brought before Andeew J. Dayton, one of the police justices, and the woman Miller was charged with the offense of keeping a house of ill-fame, and Nellie Russell as being an inmate of the same. They were summarily tried, the former being fined twenty dollars and the latter five dollars. From the conviction and the sentence they both appealed to the Erie County Court of Sessions, where both convictions were reversed. From the latter judgment the people appeal.

      Tracy G. Becker, for the appellant.

      Andrews & Hill, for the respondents.
   BauKER, J.:

Tlie people seek to sustain the conviction and sentence, as to Josephine Miller, upon the ground that it was fairly established on the trial that she was guilty of keeping a house of ill-fame, in the city of Buffalo, in violation of an ordinance duly enacted. If it be conceded that the evidence established that fact, then, it is claimed by her counsel, that the common council did not possess the power to pass an ordinance on the subject and the same is void. By the charter the common council were authorized to enact an ordinance “ to define and prevent disorderly conduct; to prevent all disorderly assemblages, all disturbing noise, all drunkenness in public places, and to punish vagrants, beggars and disorderly persons as defined by law.” (See charter, chap. 519 of 1870, sub. 2, § 8, tit. 3.) Under the power conferred by these provisions the common council enacted the following ordinances:

“SeotioN 1. Disorderly conduct is defined to be the conductor commission of any of the acts prohibited in this chapter, and any person who shall do or commit any of said acts shall be guilty of disorderly conduct.”

“ Sec. 2. No person shall keep a house of ill-fame, house of prostitution, - or assignation house within the city, or shall in any manner contribute to the support of such houses, or shall voluntarily reside therein.” (Secs. 1 and 2, chap. 2.)

A fine not less than five dollars nor more than $100 was imposed for each violation of these ordinances. Keeping a house of ill-fame is made a misdemeanor by statute as it was also by the common law. (Penal Code, § 322; 2 Wharton’s Crim. Law, § 1449.) As the act imputed to the accused is a crime by the general law of the State and ample provision is made for its detection and punishment, it is argued in behalf of the respondent that the provisions of the charter already quoted do not confer upon the common council the power of declaring that the keeping of a house of ill-fame is disorderly conduct. We do not concur in the limitations thus sought to be placed upon the authority of the common council, and are of the opinion that it possesses the power to enact ordinances on the subject and to punish the offender by the imposition of a fine. It will be observed that the common council has not attempted by any ordinance to punish an offender for keeping a house of ill-fame, nor to interfere with tbe administration of laws pertaining to that subject, nor did the legislature intend to vest any such power in that body. It has simply declared by the ordinance that a person who keeps a house of ill-fame is a disorderly person. By subdivision 2, section 8, title 3, the common council are authorized to-punish vagrants, beggars and disorderly persons as defined by law. The Code of Criminal Procedure has defined who are disorderly persons, and in terms includes all persons who keep a bawdy house or house for the resort of prostitutes. (Sec. 899.) This is but a re-enactment of the provisions of the Revised Statute on the same subject. (Yol. 2, page 903, 5th ed.) The keeper of a house of ill-fame is a disorderly person and his conduct tends to disturb the-peace of the community where the brothel is located and it did not need legislation to declare him such. He is, however, by the statute, in distinct terms declared to be a disorderly person and also a criminal.

If this respondent kept a bawdy house as charged, she was liable to arrest and to be dealt with as a disorderly person, or she could have been indicted and punished as a criminal for keeping a house of that chai’acter. The offenses are separate and distinct and are made so by the statute. Her trial and conviction for either one of the charges would be no bar to a prosecution for the other, although each charge should be based on the same act, to wit, keeping a house of ill-fame. . (People v. Sadler, 97 N. Y., 146.) These considerations as we think, fully meet and refute the attack made upon the validity of the city ordinances on that subject, as being without authority.

It is also argued in behalf of the accused, that the police justice at the time and place of the trial was without jurisdiction to hear and determine the charge made against her. The proceeding was summary and the justice before whom the conviction was had was acting as a justice of police, assigned to attend at the police station, as provided by section 23, chapter 436 of the Laws of 1880. By a provision of the charter police justices have and possess all the powers conferred by law upon justices of peace of towus, in proceedings in criminal cases and in the execution of the laws relative to the internal police of the state. The powers of the justice designated to attend at the police stations are clearly defined by the-act of 1880, as follows: To try cases of drunkenness, vagrancy and all other offenses against any of the laws of this State or the ordinances of the city of Buffalo which may be tried summarily and without a jury, by a justice of the peace or a Court of Special Sessions committed by any person he shall find confined in the station house, and to sentence every person found guilty of any such offense pursuant to the statute or ordinance creating such offense.” In all other cases said justice of the police shall have and possess the powers and jurisdiction conferred by the city charter, and shall proceed in all respects as therein mentioned. If the person found in the station-house and brought before the justice is charged with a criminal offense, it is his duty to enter the charge in a book kept for that purpose and send such person to the police justice for examination. If a person is charged with a violation of an ordinance of the city he is required to enter the charge in his book and to proceed in a summary manner to investigate the same, and if the accused is found guilty to impose the fine prescribed by the ordinance. It is thus clearly established that the justice to the police, as he is designated when attending at the station-house, possesses the power and jurisdiction to try in a summary manner and without a jury all persons charged with disorderly conduct as provided by the city ordinances. (People ex rel. Murray v. Justices, 74 N. Y., 406.)

"We have, however, reached the conclusion that the judgment of reversal should be affirmed and the accused discharged for the reason that the record does not show that she was charged with the violation of any city ordinance, and the charge made was that of a misdemeanor for keeping a house of ill-fame. In the' charge as made no reference is made to a city ordinance, nor is she charged with being a disorderly person. The justice states in his return that Josephine Miller was charged with keeping a house of ill-fame and the other defendant as being an inmate. It does not appear from the justice’s return that the by-laws were given in evidence, and the proof tended to show that the respondent Miller was a keeper of a house of ill-fame.

If the accused was charged with disorderly conduct, as defined by the city ordinances, she had a right to take issue upon the existence of the ordinance, and to show, if she could, that it was not duly enacted and never became operative. The court cannot take judicial notice of the existence of city ordinances, and in all proceedings against individuals charged with a violation of tbe same they are to-be proved and read in evidence for the purpose of maintaining the charge of violating the same.

As to the respondent Miller, we are for the affirmance of the judgment of reversal, upon the ground that the record does not show that she was charged with being a disorderly person, or with violating the city ordinances on that subject, but, as it appears from the records, she was charged with the crime of keeping a house of ill-fame, a misdemeanor which the police justice had no jurisdiction to try and determine when acting as a justice to the police at the station-house.

As to the other respondent Nellie Russell, we are for an affirmance, upon the ground that it does not appear from the return of the justice that she was convicted of violating a city ordinance.

Judgment and order appealed from, affirmed.

Smith, P. J., and Bradley, J., concurred.

Judgment and order of the Court of Sessions of Erie county affirmed.


author: BARKER, J. :

text:
    MICHAEL CARR, Respondent, v. THE PROVIDENCE WASHINGTON INSURANCE COMPANY, Appellant.

      Policy of manime insurance — actual total loss — meaning of the expression — what constitutes such a loss.

    A policy insuring a vessel against tlie perils of the lakes contained the following provision: “ This policy covers against actual total loss only.”

      Held, that to render the insurer liable under the policy, it must be shown that the subject of the insurance had been wholly destroyed and had ceased to exist as-that thing, in specie, which was insured, or that no hopes of its recovery were left.
    That it was not enough to show that the costs of recovering and restoring the-vessel would exceed its value when restored.
    'While on a voyage on Lake Erie, the plaintiff's vessel was stranded on a beach some ninety miles east of Detroit; she was badly damaged and broken, and filled with water. After receiving notice of the loss, the insurer sent its agent to the wreck, who made a survey of the vessel’s condition, and reported to the insurer, which determined to make an effort to save the vessel and take her into the port of Detroit. On the insurer’s account, and in its own name, a contract was made with a company of wreckers, by which the insurer agreed to pay that company §2,500 on the vessel’s being delivered at Detroit. She was taken to Detroit, where she immediately sank in shallow water, leaving her decks and other parts exposed. The wreckers not having been paid, the vessel was sold in the following winter in admiralty proceedings, instituted by the wreckers, to one of them for $625. He repaired the vessel at an expense of $1,000 or $1,500, and thereafter used her as a barge upon the lakes.

      Held, that a finding of the referee upon this and other testimony, as to the condition of the vessel, that the vessel was wholly destroyed and was an actual total loss, as a vessel, within the meaning of the policy, would not be reversed.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.
    In 1877 tbe plaintiff was tbe owner of the schooner Almeda, engaged in navigating tbe lakes, between Buffalo and Chicago, and tbe defendant, in June of that year, placed a policy upon her in tbe sum of $3,500, tbe risks insured against being tbe perils of the lakes, tbe risk to expire on the thirtieth of November. Tbe value placed upon the vessel, tackle and other furniture, as stated in tbe policy, was $6,700. Tbe condition of liability on tbe part of tbe insurer was expressed in the body of tbe policy, in tbe following words: “ This policy covers against actual total loss only.” On tbe second of November, during a voyage from Buffalo upon Lake Erie, tbe said vessel was stranded upon tbe beach of said lake, by a storm, at a point on the north shore of tbe lake, and some ninety miles east of Detroit at a plane called Port Grlascow. At this place tbe vessel was taking in a cargo of ties, its destination was the city of Buffalo, where tbe vessel was registered. At tbe time tbe policy was issued there was a mortgage upon tbe said vessel for tbe sum of $5,500, less payments not exceeding $750, executed by tbe plaintiff to one A. Starkey, as mortgagee. In the policy it was stated that tbe insurance was on account of Michael Carr, tbe loss, it any, payable to A. Starkey, as bis interest may appear. Tbe plaintiff claimed that the vessel, by reason cf tbe injuries which it received, became an actual total loss, and claimed to recover tbe whole amount of the insurance, $3,500, which was awarded him by tbe decision of tbe referee. Tbe plaintiff at tbe same time took out another policy on tbe same vessel, issued by tbe Security Insurance Company, for tbe sum of $1,500, which contained in all respects the same conditions as those mentioned in tbe first aforesaid policy; tbe same agents .acting for both companies.

      Williams és Potter, for the appellant. ■

      L. W. Tha/yer, for the respondent.
   BARKER, J. :

The referee, in his conclusions of fact, found that by reason of the perils insured against the vessel was so much damaged and broken that its value as a vessel was wholly destroyed, and it became and was an actual total loss as a vessel. In his conclusions of law he finds also that by reason of the stranding and wrecking of said vessel as stated in the finding of facts, it became and was, at the place of said stranding, an actual total loss according to the tenor of said policy. To these findings of fact and law the defendant took exceptions.

At the request of the defendant, the referee also found as a fact, “ that the vessel was brought into a port of safety by the defendant’s agents, and was saved in specie, and was afterwards repaired and used as a vessel in navigating the lakes.”

The appellant now claims that the finding of fact that the vessel was an actual total loss is against the weight of evidence.

The insurer’s liability, under the policy, was limited by the clause inserted therein, as follows: This policy covers against actual total loss only.” The construction to be placed upon a clause thus worded, when used in policies of marine insurance, is well settled and is stated very clearly by writers on the law of insurance, and has been by them formulated into a legal proposition. The clause formerly used by underwriters in this country, with a view of exempting themselves from a liability in case of a partial loss only to the subject of insurance, was generally expressed as being a risk against total loss only.” TJnder a policy containing a limitation of the insurer’s liability expressed by the use of this phrase, the courts placed upon the same a construction that the assured was entitled to recover the whole of the insurance if there was a technical or constructive loss within the meaning of this term, by an abandonment to the insurers. In England the rule is adopted, that the ship is a total loss when she has sustained such extensive damage that it would not be reasonably practicable to repair her. The courts of that country have adopted the following test, as constituting a total loss: “ If the ship when repaired will not be worth the sum which it would be necessary to expend upon her, the repairs are, practically speaking, impossible, and it is a case of total loss.” The American rule recognizes the same principle, and a different and less amount of expense is fixed as giving the right ■to abandonment and to claim as for a total loss. If the expense of -repair will exceed half the value of the ship when repaired, she is considered a total loss, according to the American authorities, and may be abandoned. (2 Parsons on Marine Insurance [ed. of 1868], 125, 126; also, Wallerstein v. Columbia Insurance Company 44 N. Y., 204, from which we have taken the rule as stated.) Chancellor KeNt states the rule concerning constructive total loss as follows (vol. 3, p. 329): “ It is understood to be a fixed rule that if the ship be so injured by perils as to require repairs to the extent of more than half her value at the time of the loss, the assured may abandon; for if ship or cargo be damaged so as to diminish their value one-half they are said to be constructively lost.” Arnold says : “ Constructive total loss takes place where the subject insured is not wholly destroyed, but its destruction is rendered highly probable, and its recovery, though not utterly hopeless, yet exceedingly doubtful.”

Underwriters, with a view of escaping liability in case of a technical or constructive total loss, as the rule had been interpreted by the courts, and to limit their liability to a ease of absolute total loss, as that term was understood in the law of marine insurance, inserted in the conditions the additional word “actual,” so that the limitation clause would read, “ against actual total loss only.” The words actual ” and “ absolute ” are synonymous in their meaning when used in contracts of insurance. (Burt v. Brewers and Maltsters’ Ins. Co., 9 Hun, 383; S. C., 78 N. Y., 400.)

The question as to what constitutes an absolute total loss, has generally arisen in England, on the use of the phrase by underwriters in the memorandum clause, in which the articles therein mentioned are “warranted free from average imless general.” (Arnold on Ins., vol.’ 2, p. 1020.) In this country insurers to express the same degree of limitation, on their liability, use the same words, or those of equivalent meaning, as in the policy before us, viz: “Against actual total loss only.” These words have the ■same legal operation and alike qualify the insurer’s undertaking Arnold says: “ Total losses are either absolute or constructive. An absolute total loss is one which entitles the insurer to claim from the underwriter the whole of his subscription, without giving notice of abandonment. A constructive total loss is one which entitles him to make such claim on condition of giving such notice.” (Vol. 2, 990.)

The loss, therefore, in this case, does not fall within the limitations of the insurer’s liability, unless it was established by the evidence that the vessel became an absolute total loss, within the legal signification of that term.

The learned counsel for the plaintiff argues, that the rule in this country is settled to be this; when the costs of recovery and restoring the vessel will exceed its value when restored, it is an actual total loss and the insurer is liable. Such, in our opinion, is not the true rule of interpretation, and where the liability of the underwriter is expressly restricted to an absolute or actual total loss, there must exist such a state of things as that the subject of insurance is wholly destroyed, as that thing in specie which was insured, or at all events there must be left no hopes of its recovery. We must adopt this as the true rule by which the defendant’s liability is to be determined. (Burt v. Brewers and Maltsters' Ins. Co., supra.)

In De Peyster v. The Sun Mutual Insurance Company (19 N. Y., 272), the court said: “ The law in this State is settled, that there can be no recovery in case of loss of memorandum articles, when any portion thereof arrives in specie at the port of destination although possessing no value there.” And, again, in the same case, “while any portion of such articles remain in specie, capable of being transported to the terminus of the voyage and within the control of the assured, he cannot recover for the destruction of a portion of the property, or for the loss of value however seiious such loss may be.”

In Wallerstein v. Columbia Insurance Company (supra), upon which the plaintiff relies in support of his argument, the question was not considered as to the true construction which should be put upon the words “actual total loss only,” when used for the purpose of limiting the insurer’s liability. In Burt v. Brewers and Maltster’s Insurance Company, the exact question was presented and we follow the rule as we understand it to be laid down in that case by this court and affirmed by the Court of Appeals.

The defendant insists that from the evidence it was fairly established that the condition of the vessel after it was stranded, was-such that it was within the power of the insured, by use of the means- and appliances which he could secure by reasonable exertion, to repair and float the same and procure its arrival at the port of' destination. If the ship was reduced to a complete state of dismemberment, so as to have lost its characteristic form as a vessel, and no longer subsisting under the same denomination as that which it was insured as being, then it was an absolute total loss within the meaning of the policy, though its constituent parts were existing at the place where she was stranded. A ship may be stranded in a storm without receiving great injuries, and yet upon a coast so difficult of acess, that she may be regarded as an absolute total loss. Again, she may be wrecked and stranded and receive considerable injuries, yet at a place so accessible that salvors could readily rescue-her and she be taken to the port of destination or some other port for repairs, and retain the characteristics of a ship though greatly injured and damaged beyond the value of repair.

Whether the vessel was an actual total loss at the time the underwriters took possession of her, as a question of fact, is one of doubt and not easy of solution. In view of the action of the underwriters in taking possession of the vessel with the tacit consent of the owner, after his notice to them that she was a total wreck, we are of the-opinion that the referee was justified in reaching the conclusion that the vessel was an actual total loss and that we should not interfere, with his finding on this question. The vessel was stranded on a sand beach, and when there was no surf she was mostly out of water. Theplaintifi’s description of the vessel, as contained in his evidence, is as follows: When the vessel struck the beach we went on broadside; her plankshear and her keelson were crushed, and she was humped up in the middle about three feet; her center-board box was all started; the head ledges of the center-board box were started; her sternpost was started; the rudder was unshipped and washed away; she was all started in the transom, all started loose; she filled witli water up to the level with the water of the lake; I remained with her forty-eight hours to do what I could to save her,, and every man I had aboard worked to the last minute; I then left ner and came to Buffalo; I left mate in charge of the vessel; served. a notice on the insurance agent of the loss.” After receiving notice the underwriters sent their agent to the wreck, who made a survey of her condition and it was determined by the defendant to make an effort to save the vessel and take her into the port of Detroit, which they did. On their own account and in their own name they bargained with a company of wreckers and agreed to pay them $2,500 on condition that she was delivered at Buffalo or Detroit. By use of a steam tug the vessel was hauled off and pumped out and towed into Detroit, and there left in a place of safety, where she immediately sank in shallow water leaving her decks and other parts exposed. Before the defendant took possession of the vessel ■the plaintiff removed the rigging and the outfit which never came into the possession of the defendant and their value does not appear. The wreckers were not paid, and during the winter following under a decree in admiralty the vessel was sold on their lien for the sum of $625 to one of the wreckers, who in the spring following placed upon the vessel repairs at the expense of $1,000 or $1,500, and it was put in use upon the lakes to be used and towed as a barge. ^ The nature and particulars of the injury which happened to the; vessel by stranding, as found by the referee, is not set forth in his •report in detail, nor was he requested to do so by either party.

We are induced to concur in the referee’s finding by the action •of the underwriters, which must be regarded, in view of the nature and character of their liability, as a tacit admission on their part ■that the vessel was so much injured as to destroy it as a vessel and ■to make a case of an actual total loss. If there was not an actual total •loss within the sense and meaning of that term as used in this policy, then the plaintiff had no right of action whatever, and none would arise in his favor by giving notice of abandonment. An omission to give such notice would not defeat a recovery if in fact there was •an actual total loss. And if there is not a loss of that character, then notice of abandonment would be of no avail whatever as the assured could not maintain an action on the policy for any damage sustained, therefore it is unimportant whether or not notice of abandonment was given by the assured as the rights of neither party depend upon that question. (Burt v. Brewers and Maltster' Ins. Co., supra; Arnold on Marine Ins., 1009.)

It was for the insurers to determine, when they received notice of loss, either to reject the claim or submit to plaintiff’s demand and pay the loss. If there was no loss, within the limitations of their liability, then it was not necessary for the defendant, with a view of protecting its own interests or of performing any covenant on-its part, to make any effort to rescue the vessel. When a loss occurs on risks of this character, then the underwriters may take-charge of the vessel for the purpose of securing a partial indemnity out of the wreck. Mr. Arnold says: “No doubt has ever existed, that in a case of this kind (absolute total loss), the assured may recover the whole amount of the insurance without any notice of abandonment, it being understood that the wreck which comes to his hands is a salvage for the benefit of the underwriters.” Abandonment is only necessary where the underwriter is liable for a partial loss, where there is something of value to abandon, but where the loss is absolute there is no value to the snbject of insurance and an abandonment is wholly without effect. The action of the underwriters in this case is, therefore, cogent evidence, if not in its nature controlling, on the issue whether there was an actual’ total loss or not. The insured had the right, at any time prior to-the time the wreck was seized by the salvors, to abandon his claim that the vessel was destroyed and assert his ownership and take charge of the property. The owner did not engage the salvors and they did not secure a lien on the vessel by any action of his. The salvors were the servants and agents of the underwriters, and the-latter, by their action, created a lien by means of which the title to the vessel became vested in others and lost to the owners. The vessel, by the perils insured against, followed by the action of the underwriters, became an absolute total loss to the owner. This voluntary conduct on the part of the insurers was evidence upon the issue and strongly against their present contention. If they, in fact, did not take possession of the vessel as salvors for their own benefit, then they were trespassers. We are not to suppose that they acted as tort feasors, but rather that they acted in good faith towards the policyholder and had accepted his claim as set forth in his notice that his vessel was in fact destroyed by the perils insured' against.

It is manifest, by one of the referee’s legal conclusions, that this-action on the part of the defendant was a circumstance considered by bim as tending to prove that there was an actual total loss, for he found, as a question of law, that the sale of the vessel at auction, as alleged in the complaint and as found in the statement of facts, created and was an actual loss of said vessel to the plaintiff and entitled him to recover the full value of $3,500. While we do not fully concur in the accuracy of the legal proposition, as thus stated, we refer to it as indicating that the referee, in disposing of the issues of fact, gave consideration to the action of the underwriters, ■as we think he properly might and should have done.

All the conditions and requirements of the policy relating to abandonment, making repairs by the insured or by the assured, and •creating liens on the vessel therefor, or creating a personal liability on the part of the owner to pay the same in certain contingencies and upon a stipulated basis, are wholly inoperative and are inconsistent with the provisions that the insured should have a claim on fhe underwriters only in a case of an actual total loss, and have no application to this case, and were manifestly intended as means of protecting the insurers in a case where, by the contract, a claim could be made for a partial loss or for a technical or constructive total loss. It does not appear whether the memorandum clause, which was the basis of the defendant’s liability, was written or printed in the policy. It is usual to fill up the memorandum clause ■at the time the policy is issued if any restriction is placed upon the insurer’s liability controlling the printed conditions inserted therein. Whether it was written or printed it can make no difference, for the other conditions contained in the printed clauses were totally inconsistent with the limitations which the memorandum clause imposes on the underwriter’s liability. The finding of fact that the vessel became and Vas'an “ actual total loss ” is inconsistent with the other finding that the vessel was “ saved in specie,” if, in the latter finding, the phrase “ saved in specie ” was used by the referee in its strict and technical sense. For if the vessel was “ saved in specie,” that is to say, it was not so much broken up and dismembered so as to no longer exist as the thing insured, the plaintiff failed to establish a cause of action. The finding that the vessel was an actual total loss is in the very language of the condition upon which the plaintiff’s right of action was made to depend. The other finding may be fairly construed as a finding that the defendant, by its agents, did succeed in floating the vessel and taking her into a port of safety.

In view of the actual condition of the vessel, and of the defendant’s action, in assuming control of the wreck and placing it in the hands of salvors, we think the referee was justified in finding that the vessel was an actual total loss, and that such finding is consistent with the further finding which we have mentioned.

The finding of the referee, that the salvors had a lien on the vessel for their services, is not based upon any condition of the policy, but upon the fact that the underwriters, by their action, gave those parties a lien upon which the vessel was sold under the decree in admiralty.

The objection made by the appellant, that the plaintiff failed to establish a right of action, and that the cause of action, if any existed, was in the mortgagee to whom the loss, if any occurred, was to be paid, is not, as we think, tenable. The loss which occurred was sustained by the plaintiff, who was the owner of the property. The contract was in terms between the owner and the insurer, and the action is founded upon the promise contained in the latter’s written agreement. When the property was destroyed, the plaintiff remained the owner, and his was the loss sustained, although he had made the insurance money payable to A. Starkey, his creditor. This was not an assignment of the cause of action in any sense whatever. Starkey would have been a proper party, and if a timely objection had been taken by the defendant the court could have ordered him to have been brought in as a party. But as the plaintiff was a proper party, we are clearly of the opinion that the recovery bars an action in the mortgagee’s favor, and the defendant should be treated as having waived the objection of non-joinder. (Grosvenor v. Atlantic Ins. Co., 17 N. Y., 397; Lasher v. Northwestern Ins. Co., 18 Hun, 102.) As the defendant did not raise the objection by his answer, he must be deemed to have waived the same. (Osterhoudt v. Board of Supervisors, 98 N. Y., 239; Bear v. American Rapid Telegraph Co., 22 Week. Dig., 21.) If any objection, however technical it may be, is sufficient to avert this point, it should prevail to prevent a reversal of the judgment for the loss occurred in 1877, and by the terms of the policy, if a suit was not commenced within one year thereafter, the statute of limitation should apply, and at the time of the trial, which occurred four years later, it does not appear that the mortgagee had ever presented any claim to the defendant for the moneys in controversy.

The judgment should be affirmed, with costs.

Smith, P. J., and Bradley, J., concurred in result.

Judgment affirmed.