author: Barker, J.:

text:
    JACOB ANDERSON, Respondent, v. EUNICE J. DOTY, Appellant.

      Answen' — the verification thereof may he omitted in an action charging the defendant with keeping a hawdy-house.

    The complaint in this action alleged that the defendant kept a hawdy-house, which was a public nuisance, in the vicinity of houses belonging to the plaintiff, and prayed that the continuance thereof might he enjoined.

      Held, that the defendant was entitled, under section 523 of the Code of Oivil Procedure, to serve an unverified answer; and that as her right so to do appeared upon the face of the complaint, it was not necessary for her to serve with her answer an affidavit stating the reasons for omitting the verification.
    Appeal from an order made at tbe Monroe Special Term, denying tbe defendant’s motion to require tbe plaiñtiff to accept an unverified answer. ' ■
    Tbe complaint is duly verified and alleges tbat the defendant .owns and keeps a bawdy-house, which is used as a resort for lewd men and women for lewd purposes, and a disorderly bouse and a. nuisance, on Exchange street, in tbe city of Rochester, in tbe vicinity of three dwelling bouses owned by tbe plaintiff, and praystbat tbe defendant may be enjoined and restrained from permitting tbe bouse to be used .as a nuisance.
    Tbe defendant served an unverified answer, denying all allegations in tbe complaint, except tbe ownership of tbe bouse complained of.
    Tbe plaintiff served notice tbat be should treat tbe answer as a nullity, for want of verification; tbe defendant made a motion tbat the plaintiff should be required to accept the answer.
    Tbe motion was denied by tbe Special Term, and from such order tbe defendant appeals.

      G. M. Allen, for tbe appellant.

      D. Yarn, Yoorhees, for tbe respondent.
   Barker, J.:

Tbe complaint charges tbe defendant with doing an unlawful act, which in law constitutes a nuisance and is a crime for which tbe defendant may be indicted and punished. Tbe defendant was privileged t'o omit a verification of her answer, by virtue of section 523 of tbe Code of Civil Procedure, for tbe reason tbat sbe could, not be compelled to testify as a witness concerning tbe allegation contained in tbe complaint, tbat sbe maintained a bouse of ill-fame. As this appears on tbe face of tbe complaint, it was unnecessary for tbe defendant' to serve with ber answer an affidavit stating tbe reason why sbe claimed tbe right to serve an unverified answer. (Blaisdell v. Raymond, 5 Abb., 144; S. C., 6 id., 148; Wheeler v. Dixon, 14 How., 151; Lynch v. Todd, 13 id., 548.)

Tbe case of Roache v. Kivlin (25 Hun, 150) is not in point, fortbe reason tbat the complaint did not charge tbe .defendant with any act which constituted a crime. In tbat case tbe alleged cause-of action was for a criminal conversation with tbe plaintiff’s wife, and tbe defendant insisted tbat if be was required to testify concerning tbe same it would disgrace him. Tbe court held tbat it could not be assumed, without proof in some form, tbat tbe defendant could not testify as to some of the matters alleged in tbe complaint, without its having a tendency injurious to bis character. A witness is never excused from answering a question for tbe reason tbat bis answer would tend to disgrace him, unless it is made to-appear to tbe court tbat such would be its effect. Therefore, in such a case, if a party claims tbe right to serve an. unverified answer to a verified complaint, it should be aqcompanied by an-affidavit by which it will be made to appear tbat bis admission of any material fact in tbe complaint would tend to bring him into disgrace.

Tbe order appealed from is reversed, with ten dollars costs and disbursements, and tbe plaintiff required to accept tbe defendant’s unverified answer.

Smith, P. J., and Hardin, J., concurred.

Order denying defendant’s motion to require plaintiff to accept an unverified answer reversed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: BARKER, J.:

license: Public Domain

text:
    FREDERICK C. FADNER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
    . Forgery —false impression of a seal of the ¡Supreme Court to a copy of a judgment — to constitute forgery the instrument must be regular inform and apparently legal.

    iUpon the trial of the plaintiff in error upon an indictment for bigamy he offered in evidence what purported to be a copy of a judgment of the Supreme Court divorcing him from his first wife, whereupon the court directed the jury to acquit him. Upon the back of the last sheet of the judgment was impressed what purported to be the seal of the clerk of the county of New York, and on the right hand of this impression was written the following words: “Piled August 14,1879. A copy. Hubert O Thomson, clerk. ” Upon the trial of the defendant1 for forgery in having uttered a false and forged impression of the seal of the Supreme Court with intent to defraud, it was shown that no such judgment of divorce had ever been, granted and that the pretended copy was a forgery.

      .Meld, that even if an instrument, having upon it a forged and counterfeited impression of the seal of the county of New York, was a “forged, altered or counterfeited instrument ” within the meaning of section 39 of 2 Revised Statutes, 674, providing for the punishment of any person knowingly uttering and publishing such an instrument, yet to constitute the offense of forgery the instrument upon which the indictment was based must be in such a form as to be upon its face legal and valid.
    'That as the pretended certificate of the county clerk failed to comply with the provisions of sections 933, 957 and 958 of the Code of Civil Procedure, prescribing the form and contents of the certificate to be given by the county ■olerk upon furnishing a copy of a judgment, it was void; and being so the pretended copy was inadmissible in evidence and incapable of furnishing a basis for an indictment for forgery.
    Weit of eeeoe to the Court of Sessions of Oneida county, to review the trial and conviction of the plaintiff in error of forgery.
    Eadner was tried and convicted in the Oneida County Court of Sessions of the crime of forgery, and sentenced to State prison for the period of seven years and six months.
    The indictment contained four counts. Iii the first he is charged with forging the impression of the seal of New York county, which is the seal of the Supreme Court in and for the county of New York. In the second count he is charged with having uttered a false and forged impression of the same seal, with an intent to defraud, knowing the same to be forged. In the third count he is charged with having forged the seal of the county of New York, that is, the metallic instrument with which the impression is made. In the fourth count it is averred that he uttered the forged seal, that is, put in circulation the metallic instrument, purporting to be the genuine seal of said county.
    The court below held and ruled, that upon ail the evidence produced, there could be no conviction upon the first, third and fourth counts of the indictment, and so instructed the jury.
    In the second count the jury rendered a verdict of guilty as charged therein.
    The defendant, in the progress of the trial, took- timely and sufficient exceptions, so as to properly bring up the question whether from the evidence the offense of forgery was sufficiently proved.
    At the time judgment was moved, and before sentence was pronounced, the defendant in due form moved, in arrest of judgment, upon the same grounds, which was denied.
    In the second count of the indictment, it is charged that the defendant feloniously and falsely did utter and publish as true, with intent to injure and defraud (naming the persons and officers intended to be injured), a certain false, forged, falsified and counterfeit impression of a certain seal, purporting to be the impression of the county seal, and of the clerk, of the county of New York, .and of the courts of record in and for said county and of the .'Supreme Court in and for said county, which said last mentioned false, forged, falsified and counterfeited impression of said seal, purported to be the impression of the seal of said county, and of the clerk of said county and of said court, is as follows, that is to say (here follows a full and sufficient description of the seal); the same being fitted and impressed on and to a certain instrument in writing, purporting to be a certificate, order, judgment, decree, allowance and proceeding of the Supreme Court of the State of New York, and for the county of New York, the same being a competent court, and purporting to be for that court and entered in said court in the words and figures following, that is to say : The judgment and decree is set out in hceo verba, and purports to have been granted in an action wherein this defendant was plaintiff, and Alta Fadner, his wife, was named as defendant, at a special term of the Supreme Court, in and for tbe county of New York, on the 14th day of August, 1879, at which Mr. C. EL. YaN Bruot, justice, presided.
    In terms, it purports to grant a divorce to the plaintiff therein from the defendant therein, his wife, on the ground of adultery. The instrument purports also, to be signed by the said justice in his official capacity. The impression of the seal and the certificate of the clerk are on the back of this paper, and is more fully described in the opinion. There was no charge in the indictment, that, the paper purporting to be a decree was false and counterfeited in any particular. The circumstances under which the alleged false impression of the seal was uttered and published is also stated below.

      J. I. Sayles, for the plaintiff in error.

      WilUam A. Matteson, district attorney, for the people.
   BARKER, J.:

The first point made by the plaintiff in error is, that, the facts set forth in the second count of the indictment, and upon which he was convicted, do not constitute the criiñe of forgery, nor was that offense proved by the evidence produced on the trial.

, As the count in the indictment _ upon which the defendant was found guilty, only charges the publishing and uttering of a forged and counterfeited impression of the seal of the county clerk of the city and county of New York, that act must be declared a crime by some provision of the statute relative to forgery, or the same is not an indictable offense in this State.

By the common law it was not forgery, to make and publish, as true, a false and forged impression of a seal, but it was high treason in a subject of the realm of England to counterfeit the king’s great or privy seal. (4 Black. Com., 83, 247; 1 Colby’s Crim. Law, 567.)

Under our statute it constitutes forgery to make and forge an impression purporting to be the impress of a genuine seal of a public officer authorized by law to have and keep a seal. The entire provision is as follows: Section 24. “ Every person who shall forge or counterfeit the great or privy seal of this State ; the seal of any public officer authorized by law; the seal of any court of record, including Surrogate’s Court, or the seal of any body corporate, duly incorporated by or under the laws of this State, or who shall falsely make or forge, or counterfeit any impression purporting to be tlie impression of any such seal, with an intent to defraud, shall, upon conviction, be adjudged guilty of forgery in the second degree.” (2 R. S., m. p. 671.)

Prior to this enactment there was no provision by statute, creating and defining the offense which is mentioned therein. (See the reviser’s note to this section.) It will be observed that there is no provision in this section of the statute against uttering and publishing a false impression of a seal. The act declared to be a forgery is the making of a forged and counterfeit seal, or the false making of an impression purporting to be the impression of a genuine seal.

' If no other provision can be found in the statute than that contained in the twenty-fourth section, then, under the laws of this State, it is not forgery or a crime of any character, to utter and publish as true a false impression of the seal of a court of record, and it was so conceded by the learned district attorney. It is argued in behalf of the people, in support of the conviction, that the false and forged impression of a court of record is a counterfeit instrument,” within the meaning of the provisions contained in section 39, which declares that every person who shall be convicted of having uttered and published as true, and with intent to defraud, any forged, altered or counterfeited instrument, or any counterfeit gold or silver coin, the forging, altering or counterfeiting of which is hereinbefore declared to be an offense, knowing such .instrument or coin to be forged, altered or counterfeited, shall suffer the same punishment herein assigned for the forging, altering or counterfeiting the instrument or coin so uttered, except as in the next section specified.” Snell was the construction put upon this section of the statute by the court below, and the jury were instructed that a false impression of a genuine seal purporting to be the impression of such seal, was a written instrument, within the purview of the statute.

In disposing of the case as now presented, we shall not enter upon a discussion of this question, but leave the same unsolved and assume, for the purposes of this case, that the act of the defendant in uttering the false impression of the seal falls within the condemnation of section 39, and constitutes the crime of forgery, if the same is published in connection with and as a part of any certificate, which a coiinty clerk, as keeper of the seal, is authorized'to make in his official capacity.

To constitute the complete crime of forgery in falsely making .and forging an impression purporting to be the impression of the official seal of the clerk of the court, as mentioned in the twenty-fourth section, the same must be impressed upon a paper of some kind purporting to be a legal and valid document, and also purporting to be duly authenticated. The mere forging the impression of an official seal, disconnected from a. certificate made by the clerk could not deceive any person. So to constitute forgery, in uttering and publishing as true, a false and counterfeit impression of the seal, it is also necessary that the impression so published should be in like form and manner attached to and be a part of a certification, purporting to be made by the clerk of the court. 'No one but the clerk, or some one of his deputies, is authorized by law to use the seal of the court. Unless the impression of the seal is made to accompany the clerk’s certificate, attached to some record or document in his official custody, or placed .in his hands for his certification in his official capacity, it is a misuse of the same which the law presumes every citizen knows. The statute on the subject authorizes seals to be made, kept and used by the county clerk, for these purposes and none other, and he is made the sole and only lawful custodian of the same. On the back of the paper writing purporting to be a decree in a divoi’ce suit the impression was made. The inscription on the face of the true seal was “New York Seal.” On the face of the counterfeit impression, the same words apjiear in like juxtaposition. On the right hand of the impression are the following words: “Final, August 14th, 1879.” “A copy.” “ Hubert O. Thompson, clerk.” No other words or figures are written near the impression, or over it, of what purports to be the signature ■of the clerk. The paper or document, upon which the seal is impressed and the certificate written, purports to be a decree in a suit in which the defendant is plaintiff, and Alta Fadner defendant, granting at a Special Term of this court held in and for the city and county of New Tork, and the same was offered in evidence in the Oneida County Court of Sessions, and the same was received by the court as proper and competent evidence, on the trial of the defendant, on an indictment charging him with the crime of bigamy.

If these documents bad been genuine and in due form, they would have constituted competent and material evidence in bis bebalf. He was acquitted on tbe trial by tbe verdict of tbe jury.

The people on tbe trial of tbe case now here, gave evidence tending to prove that- tbe paper purporting to be a decree was wholly false and fabricated, and that there was no record of tbe same in tbe office of tbe clerk of this court in and for the- city and county of New York.

Tbe evidence also tended to show that the impression of the seal alleged to be forged and counterfeited, was in form and similitude like tbe genuine seal kept and used by tbe county clerk, but that in fact it was false, forged and counterfeited.

"We now come to what I regard as tbe important question we have before us, and it is whether tbe making tbe false impression of tbe seal and forging of tbe clerk’s certificate, constituted the crime of forgery under tbe law of this State.

Tbe rule, as now established, is this, if the instrument be invalid on its face, it cannot be tbe subject of a forgery. Forging any instrument or writing which,’as appears on its face, would have been void, if genuine, is not an indictable offense. (People v. Shall, 9 Cow., 778; People v. Fitch, 1 Wend., 198; Stearns v. People, 21 id., 409; People v. Harrison, 8 Barb., 560; Cunningham v. People, 4 Hun, 455; 2 Bishop’s Crim. Law, § 538; Wharton’s Am. Crim. Law, paragraph 1438.)

Tbe English cases are to the same effect, and tbe rule applies as well to tbe statutory offense of forgery as to common law cases. If the impression of the seal bad been taken from tbe true one and tbe clerk’s certificate had been ungenuine, tbe certificate would have been incomplete and imperfect, and did not authorize tbe court to receive in evidence tbe documents to which they were attached. That paper purported to be a judgment of this court, and was offered and received in evidence in another tribunal, and could not have been legally used as evidence, without a certification in form and to tbe effect as provided by law. By section 933 of the Code, provision is made that copies of papers duly filed, kept and recorded in the office of one of tbe clerks of this county, may be read in evidence in place of tbe originals when properly certified by the clerk. Tbe form and contents of such certificate, and the mode and maimer of attestation, are contained in sections 957 and 958. The officer making the certificate must state therein that tbe paper or document has been compared by bim with the original, and that it is a correct transcript therefrom and of the whole of the original, and the certifi-, cate must then be attested by the official seal of the officer.

This certificate, if genuine, is clearly defective in form and substance. The defect is fatal to the validity of the same, and it is apparent on the face of it. It ought not to have deceived any one. Because' it did deceive the court below, undoubtedly through inadvertence, cannot in law make it a forgery. It was decided in People v. Harrison (supra) that an indictment would not lie for forging a certificate of an acknowledgment of a deed, when the certificate did not state that the grantor acknowledged the execution of the conveyance, the statute requiring the certificate to state that •fact.

In People v. Cunningham (supra), it was said criminal forgery cannot be made out by imputing a possible or even actual ignorance of the law, to the person intended to be defrauded. If, therefore, a statute authorize^ an instrument not known to the common law, and so prescribes its form as to render any other form null, forgery cannot be committed by making a false statutory one, in a form not provided by statute, even though it is so like the form prescribed as to be liable to deceive most persons. (2 Bishop, § 538; People v. Harrison, supra.)

In People v. Shall (supra), the indictment charged the defendant with making and forging an instrument in the following form: Three months after date, I promise to pay Sebastian I. Shall, or bearer, the sum of three dollars in shoemaking, at cash price, the work to be done- at his dwelling house.” It was held that the forging and passing an instrument in that form did not constitute the crime of forgery, the instrument, on its face, being invalid and not enforceable against its maker, as it did not express any consideration. The court remarked that the instrument, to be the subject of forgery, must purport on the face of it to be good and valid for the purpose for which it was created.

For the reason that criminal forgery was not averred in the second count in the indictment, nor proved on the trial, the conviction should be reversed and a new tidal awarded. We have not inspected tbe evidence for the purpose of determining whether it was sufficient to warrant the conviction under the count charging the defendant with mating and forging the seal, as that question was withdrawn from the consideration of the jury.

We entertain very serious doubts as to the correctness of some of the rulings receiving evidence over the defendant’s objection, and if there should be a retrial upon some of the other counts of the indictment, it is not likely that the same class of evidence will be offered in the same form and for the same purpose as it was upon this, and we therefore pass over these exceptions.

At the time of the trial and sentence, the Code of Criminal Procedure was in full force and effect, and the prpper manner of bringing the case into ibis court for review, was by appeal and not by writ of error, but, as the district attorney has waived the point, that the ease is not properly here, we give the defendant the benefit of the errors which have been pointed out and reverse the judgment, and grant a new trial on the indictment in the Oneida County Court of Sessions.

Smith, P. J., and Hardin, J., concurred.

Judgment and conviction reversed, and new trial ordered in the Court of Sessions of Oneida county.


author: BARKER, J. :

text:
    HENRY NIXON and Others, Executors, etc., of HENRY W. MOORE, Deceased, Respondents, v. WILLIAM STANLEY, Appellant.

      Ühaitel mortgage — failure to refile it within the proper time— the lien is restored by a subsequent refiling.

    November 18, 1878, a chattel mortgage given by one Perry to tbe plaintiffs was filed in tbe,proper clerk’s office. November 19, 1879, tbe mortgage was refiled by tbe mortgagees witb a statement indorsed tbereon stating tbeir interest in tbe property therein described. On December 8, 1879, a portion of the property therein described was seized by tbe sheriff by virtue of an execution issued under a judgment recovered against tbe mortgagee prior to November 18, 1879, and sold to tbe defendant, who purchased it witb full notice of tbe plaintiffs’ mortgage.

      In an action by tbe plaintiffs to recover for tbe conversion of tbe said property: Held, that'they were entitled to recover; that as tbe mortgage was refiled prior to
    tbe issuing of tbe execution tbe lien thereof was at the time of tbe levy thereunder restored, and was prior to that of tbe execution^
    Appeal from a judgment of tbe Monroe County Court, affirming a judgment rendered in tbe plaintiffs’ favor in a Justice’s Court.
    The action was for tbe conversion of one steer, and the damages were assessed in tbe plaintiffs’ favor at forty-three dollars and seventy-five cents.

      DeCbert A. Adams, for tbe appellant.

      J. D. Decker, for tbe respondents.
   BARKER, J. :

The plaintiffs base their title to the .property in question on st, conveyance by mortgage, executed by Pbiletus B. Perry, as mortgagor, to themselves as mortgagees, dated the 17th day of November, 1878, and filed in the proper'clerk’s office on the following day. Both parties claim under the mortgagor, and it is admitted that he had title at the time of the execution of the mortgage. On the 19th day of November, 1879, the mortgage was refiled by the mortgagees, with a certificate thereon indorsed, stating their interest therein. On the 8th day of December, 1879, an execution in due form of law, issued on a judgment rendered against the mortgagor prior to the’18th day of November, 1879, was issued to the sheriff of Monroe county, and by virtue thereof he levied upon and sold ■ the property in question, at which sale the defendant became the purchaser, he being fully advised of the existence and refiling of the plaintiffs’ mortgage.

The plaintiffs claim that as the mortgage was refiled jnfior to the issuing and delivery of the execution to the sheriff, the same was a valid lien on the property, and in full force and effect as against the, levy under the execution and was prior and superior thereto.

It was held by this court in Swift v. Hart (12 Barb., 530) that by the'omission to refile the mortgage within thirty days preceding the expiration of the year from the time of the fir§t filing, it became dormant and invalid as against creditors and purchasers whose liens had not attached during the interval.

This ruling was made upon the same principle that an execution against personal property which has become dormant by reason of the plaintiff’s directing proceedings to be stayed, may afterwards be revived, and receive vitality by being set in motion by the plaintiff, so as to be effectual as against subsequent executions; that it did not violate the spirit or defeat the object of the statute to allow a mortgagee to revive and resuscitate the lien of his mortgage which had become dormant as respects purchasers and creditors; that the object of the statute was to prevent fraud, and with this view the holder of the mortgage is required to file his mortgage and thus give it publicity.

The interpretation given to the statute in this case has not been overruled or questioned, so far as I can find, after a very careful examination of all the cases. ' It should be followed as an authority in the case before us, as giving a proper exposition of the statute upon the question under consideration.

In the subsequent ease of Newell v. Warner (44 Barb., 263) a reference was made to Swift v. Hart by JohnsoN, J., who said he recognized the same as authority, on the precise question determined therein. He was a member of the court when the first of these cases was decided, and dissented from the conclusion reached by a majority of the court.

The evidence tended to prove that the mortgage was given for a good consideration and to secure an honest indebtedness, and without any intent to cheat or defraud the creditors of the mortgagor.. It being held as the law of the case that the refiling of the mortgage, with a proper certificate indorsed thereon, prior to the receipt of the execution by the sheriff, restored and revived the mortgage as against creditors and purchasers, it becomes unnecessary to consider the other questions presented, so far as they arise under their second mortgage.

If, as the appellant claims, the first execution was in full force and effect, and not stayed, and the sale of the property was by virtue thereof, the jury having determined that the plaintiffs’ mortgage was valid and was not given for the purpose of cheating and defrauding the creditors of the mortgagor, the plaintiffs made out a good cause of action.

The appellant claims that the plaintiffs, as executors, had' no* power to lease the lands of their testator, and for that reason there was no debt owing them for which they could take a security from the mortgagor, who was their lessee.

As the plaintiffs were in the management of the real estate and the mortgagor received possession of the same at their hands, ,and took a léase therefor, he was in no position to question their title. By the third clause of the will, in certain contingencies the executors were authorized to lease the real estate and to apply the income for any of the purposes of the will.

Judgment affirmed, with costs.

Smith, P. J., and Hardin, J., concurred.

Judgment of County Court affirmed, with costs.


text:
    THE TOWN OF ONTARIO, Plaintiff, v. HEZEKIAH HILL and Others, Defendants.

      Statute of limitations —'when the right of a town, to sue raih'oad, commissioners for am, unlawful issue of its negotiable bonds, accrues — liability of the commissioners for a wrongful issue of bonds.

    This action was brought by the town of Ontario against the defendants, who had .been appointed railroad commissioners of that town under chapter 811 of 1868, and chapter 241 of 1869, to recover damages alleged to have been occasioned by reason of their official misconduct. .It was claimed that they had wrongfully issued negotiable bonds of the town, knowing when they did so that the assent of the requisite number of tax-payers had not been procured as required by the said acts, and that the issue of the said bonds was unlawful and unauthorized; that some of the said bonds had passed into the hands of bona fide holders for value, and that in actions brought by some of these holders upon coupons due thereon judgments had been recovered against the town.
    The defendants interposed the statute of limitations as a defense. It appeared that all of the bonds had been issued by the defendants more than six years prior to the time of the commencement of this action, although the judgments in the actions brought by the holders were recovered within that time. Upon the. trial the defendants offered, but were not allowed, to prove that the bondholders who had recovered judgments against the town had all purchased their bonds more than six years prior to the bringing of this action.
    ' JSeld, that the court erred ih excluding the evidence.
    That the plaintiff’s right of action against the defendants accrued immediately upon the passing of the bonds, into the hands of bona fide holders who could enforce them against the town, and that the statute of limitations began to run in tlieir favor from that time without regard to the time when claims against the town might he made hy the bondholder.

      It seems— that as the act made the issue of the bonds conditional upon the procurement of the written consent of persons owning more than one-half of the taxable property assessed, and appearing upon the last assessment-roll of the town and a majority of the tax-payers as appeared by such assessment-roll .which fact, it was by such act provided, should be proved by the affidavit of the assessors, or a majoi'ity of them — that when an affidavit of the assessors to that effect, in due forth was presented to the railroad commissioners, their action in determining whether or not the bonds should be issued was judicial in its character, and that for an erroneous or unlawful exercise of this judicial discretion they were not liable to a civil action by the town, even though it were shown that they knew that the requisite consent had not been given when the bonds were issued. (Per Barker, J.)
    MotioN for a new trial, on exceptions ordered to be beard in tbe first instance at the General Term, after the direction of a verdict in favor of the plaintiff.
    In pursuance of the provisions of chapter 811 of the Laws of 1868, and chapter 241 of the Laws- of 1869, the defendants were appointed railroad commissioners for the town of Ontario, and in 187 i d; cided to issue bonds in the name of the town to aid in the construction of the Lake Ontario Shore Railroad. The town now claims that the issue of bonds by the defendants was unauthorized, and that in issuing the same they violated their duty and were guilty of misfeasance in office, and as a portion of such bonds have passed into the hands of persons who have a legal right as against the town to enforce their payment, according to the terms and conditions thereof, the town has suffered damages for which the defendants are liable.
    On the trial the court directed a verdict in favor of the plaintiff for the sum of $11,710.95.
    The legal questions involved were raised by exceptions taken on the trial, which were ordered to be heard at General Term in the first instance.

      W. F. Cogswell, for the plaintiff.

      Charles H. Boys, for the defendants.
   BARKER, J. :

The defendants were public officers, charged with the performance of certain special duties, as prescribed in the acts authorizing. them to borrow money on tlie faith and credit of the plaintiff, and to issue bonds as evidence of such indebtedness. The plaintiff charges that they are guilty of misfeasance in office, in consequence of which it has suffered injury and damage to such an extent as to give it a right of action against them personally, and that the-verdict in its favor is just and legal and should be upheld.

The defendants were duly appointed commissioners and subscribed to the capital stock of the Lake Ontario Shore Railroad Company, and after that they issued in payment thereof bonds in the aggregate sum of $85,000, and received a certificate of stock issued by the officers of the company in the usual form, naming the town of Ontario as the owner of the shares of which, at the time of the trial, it remained the owner The plaintiff now claims that at the time the loan was made and the bonds issued, a majority of the tax-payers of the town had not given their consent to the bonding of the town as required by the statute, and that the defendants were aware of the fact when they issued the bonds, and the misconduct alleged is based on these facts and circninstances.

It is conceded that a large number of tax-payers did give written consents in due form, and that they were thereafter presented to the defendants, as commissioners, with the affidavits of the assessors thereto attached, in. due form, as required by the statute, stating that persons owning more than one-half of the taxable property and constituting a majority of the taxpayers, as appears by the proper assessment-roll, had given their consents. All mere formal defects, if any existed in the consents and affidavits, were, cured by a confirmatory act, being chapter 127, Laws of 1871.

The statute under which the defendants acted (chap. 241, sec. 2, Laws of 1869) declares that it shall be lawful for the commissioners to borrow money on the faith and credit of their town, in a sum not exceeding twenty per cent of the valuation of the town, to be ascertained by the last assessment-roll for a term not exceeding twenty-five years, and to execute bonds therefor under their hands and seals. The aggregate amount of such bonds was not to exceed the amount set forth in the consent of the tax-payers, and payable at such times and places not exceeding twenty-five years, and in such form as the commissioners may deem expedient; it also provided, no such debt shall be contracted or bonds issued by said commissioners until consent in writing, proved by a subscribing witness, or acknowledged as provided for conveyances of real estate, shall first have been obtained of persons owning more than one-half of the taxable property assessed, and appearing upon the last assessment-roll of their town, and a majority of the tax-payers as appears by such assessinent-roll, which fact shall be proved by the affidavit of the assessors or a majority oí them.

The commissioners were not commanded and required to borrow money on the faith and credit of the town, although a majority of the tax-payers owning more than one-half of the taxable property did give written consents as provided by the statute. The subject of bonding the town was confided to their discretion, and if in their judgment it was not for the best interests of the town to create a debt, and aid in the construction of ,the railroad, they might refuse to do so. They constituted a board for the purpose of determining whether under the circumstances, it was a wise and prudent measure for the town to create a debt for the purposes mentioned. The ■commissioners were without jurisdiction to act, and could not exercise the discretion confided to them unless it was made to appear by proper proof, that a majority of the tax-payers owning more than one-half of the property assessed had previously given consents in proper form. The plaintiff gave evidence tending to show that a majority of the tax-payers did not give their consent.

To sustain the recovery the plaintiff invokes the application of the rule-of law, that when an individual or corporation sustains .an injury, by the misfeasance or non-feasance of a public officer, who acts or omits to act contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case.

The commissioners in the discharge of the dxities imposed upon them by the act, acted in a quasi judicial capacity. They were to determine on their own judgments acting as a board whether the interests and welfare of the town in its corporate capacity would be promoted by aiding and assisting by the use of its credit in the construction and operation of the proposed railroad.

In determining that question very many matters and things, both present and prospective, would require examination and consideration in forming-a judgment upon the subject. The commissioners as a board acquired jurisdiction over the subject-matter confided to their adjudication, and were authorized to receive and act uj>on the assessors’ affidavit as competent and sufficient proof, as to the existence of ■ the conditional fact, to wit, that a sufficient number of consents had been obtained in writing. The affidavit of the assessors was the only evidence upon which they were authorized to act and determine that question. The statute in express terms declares, that the fact to be ascertained was to be proved by the affidavit of the assessors.

It is manifest to my mind that the legislature intended, that so far as the commissioners were concerned, they should receive and act upon the affidavit of the assessors as conclusive proof of the fact that a majority of the consents had been duly obtained. If such proof was not to be received and relied upon by the commissioners as final, so far as they were concerned, it is impossible to discover the object and purpose of requiring an affidavit by the assessors. If the commissioners were permitted to ignore the affidavit as proof of the facts therein recited, and go behind the same and inquire for themselves whether a majority of the taxpayer^ had given consents, and determine for themselves as to the truth of the affidavits, it would be to exercise the power of review which is not given them by the statute. The assessors, in performing, the duties imposed upon them, acted in a quasi judicial capacity, and such being the character of their functions strengthens the argument that it was the scheme of the statute that the commissioners in determining whether they had jurisdiction to act on the'subject-matter of bonding the town was to be by them determined by the contents of the affidavits.

In Cagwin v. Town of Hancock (84 N. Y., 541) the court, in speaking of the powers arid- duties of the assessors, said that the assessors, in determining whether the requisite consents had been given, in making the affidavit exercised quasi judicial functions, and that their determination embraced in their affidavit is in the nature of a judgment.

In the Town of Springport v. The Teutonia, Savings Bank (84 N. Y., 409), in speaking of the affidavits of the assessors, made in pursuance of a similar statute, the court said: The proof of the consents is declared to consist of the affidavit of the assessors, and such is the proof required to justify the railroad commissioners in' the first instance to issue the bonds, and that a different effect should be ■ given to the affidavits as evidence in a court of record where they would be received only as presumptive evidence of the facts therein stated. 1

In Howland v. Eldredge (43 N. Y., 460), the court remarked: It is the assessors to whom the power is given to examine the evidence upon the question of consents, and it is upon their conclusion therefrom, and the exercise of their consciences thereon, that thé power to bond the town depends, and not that of any other board or tribunal. Had the latter been intended, an appeal from the determination of the assessors would have been given to some designated board or tribunal, and the judgment of the latter substituted in the place of the affidavit of the assessors, in case it differed from their determination.

The statute to which the remarks of the court were applied is in all essential particulars similar to the statute under which the defendants acted. (Laws of 1869, chap. 314, p. 677.)

In a subsequent case (People ex rel. Yawyer v. Allen, 52 N. Y., 540), the court commenting upon the statute remarked: The affidavit of the assessors to the effect that a requisite number of tax-payerfe have consented to the bonding of the town, is, by the statute, made proof of the existence of such fact, upon which the issue of the bonds of the town by the commissioners is authorized ; that such affidavit made by the majority of the assessors is in the nature of a judgment or decision determining the existence of such fact, and that their proceedings are reviewable by the Supreme Court the same as those of any other subordinate board or tribunal.

It has never been held, so far as I can discover in any of the reported cases that the commissioners did not acquire jurisdiction over the subject matter, as to the propriety of bonding the town, by (he affidavits of the assessors, if they were in substance in compliance with the statute authorizing the making of the same. On the contrary, it is held in the decisions cited, as well as in. others not referred to, that such affidavits are the evidenceand the only evidence upon which the commissioners can act in determining the question whether a majority of the tax-payers had given their consent as required by the statute.

It is a general rule of law adopted as the guide for officers exercising special and limited powers, that where a statute prescribes the particular evidence that shall be furnished to an officer or tribunal’ in order to authorize the issue of process or the performance of any ■other duty, jurisdiction is acquired when such evidence is furnished, and no other evidence can be required. This proposition is in harmony with legal principles and the authorities.

In Roderigas v. The East River Savings Institution, (63 N. Y., 464) the rule is stated as follows : Where the statute prescribes that .some fact must exist before jurisdiction can attach in any court, such fact must exist before there can be jurisdiction, and the court cannot acquire jurisdiction by erroneously deciding that the fact exists, and tiiat it has jurisdiction. But where general jurisdiction is given to a court over any subject, and such jurisdiction depends in the particular case, upon facts which must be brought before the court for its determination upon evidence, and where it is required to act upon such evidence, its decision upon the question of its jurisdiction is conclusive until t-eversed, revoked or vacated, so far as to protect its officers and all other innocent persons who act upon the faith of it. (See, also, Miller v. Brinkerhoff 4 Denio, 119; Staples v. Fairchild, 3 N. Y., 41.)

Ip the latter case it was remarked, where certain facts are to1' be proved before the court or officer of special or limited jurisdiction, ,-as a ground for issuing process, and there is a total defect of evidence the process will be void. But where the proof has a legal tendency to make out a proper case in all its parts for the jurisdiction of the -court or officer, although such proof may be slight and inconclusive, the process will be valid until set aside on a direct proceeding for that purpose. In one case the court acts without authority, and in the other it only errs in judgment Upon a question properly before it for adjudication. In 'one case there-is defective jurisdiction, and in the other there is only error in judgment.

In Porter v. Purdy (29 N. Y., 106), the defendants were trustees of a municipal corporation, and they were sued personally for ■damages, resulting from their action as a board of trustees. They were authorized to appoint five persons, freeholders, to assess the expense of building a sewer. The plaintiff’s property was sold under and in pursuance of the assessors’ valuation and levy, and he brought an action against the defendants to recover the damages which he sustained by reason of the sale of his property, claiming .that the trustees violated their duty and acted without jurisdiction in the appointment of one of the assessors, for the reason that he was not a freeholder. It appeared upon the trial that the assessor named was not a freeholder when he was appointed, but at that .time he was in the possession of a piece of land within the corporate limits, and the only interest he had therein was by an executory contract for the purchase of the same. It was held, as the assessor was in the possession of a piece of land and lived thereon, it was some ■evidence that he was a freeholder, and such evidence gave the board ■of trustees jurisdiction to determine whether the assessor appointed possessed the requisite qualifications or not, and that their determination of that question, so long as the same remained unreversed, protected them, and the court remarked: “ When, in special proceedings in courts or before officers of limited jurisdiction, they are required to ascertain a particular fact, or to appoint persons to act in such proceedings having particular qualifications or occupying iome peculiar relations to the parties or subject-matter; such acts when done are in the nature of adjudications, which, if erroneous, must be corrected by a direct proceeding for that purpose, and if not so corrected, the subsequent proceedings which rest upon them are not affected, however erroneous such adjudication may be.” There is a necessity for this doctrine, as without it it would be -almost impossible ever to carry into effect special proceedings .affecting property or persons.

So if the defendants in this case were authorized to receive and read the affidavits, as some evidence on the question of their jurisdiction, then they are not liable in this action for their subsequent ■determination to borrow money on the faith and credit of the town and issue bonds for the re-payment of the same.

If the affidavits were not a final and conclusive determination of the question so far as the commissioners were concerned, and they had a right to go behind the same and investigate for themselves and reach a conclusion from all the evidence accessible and pertinent to the question, then the same result must be reached, for the reason, .that in the discharge of that duty they were acting in a quasi judicial capacity. The affidavits of the assessors were before them and properly so, and they were authorized to receive and act upon them, as some evidence on the question they were required to determine. It cannot be said, therefore, that they acted without evidence in support of the fact which it was necessary for them to ascertain.

A public officer who may violate a duty which is purely judicial or quasi judicial in its character, is not subject to a civil action at the suit of third persons who have been injured by liis action so long as he keeps within the limits of his jurisdiction. Although the officer may not in strictness be a judge, still, if his powers are discretionary, to be exercised or withheld according to his own views of what is necessary and proper, they are in their nature judicial, and he is likewise exempt from civil prosecutions. If guilty of misconduct he may be impeached or indicted, but the law does not tolerate an individual right of action. (Lange v. Benedict, 73 N. Y., 12; Wilson v. Mayor of N. Y., 1 Denio, 595; Broome’s Legal Maxims, 40, 48.)

But it is claimed by the plaintiff that the case made by it is taken out of the general rule for the reason as it alleges, and as it may be admitted the evidence tended to show, the defendants knew when they issued the bonds that a majority of the tax-payers had not given their consents. Although they may have received information satisfactory to their own minds that the statute had not been complied with, nevertheless they had jurisdiction over the subject-matter by force of the assessors’ affidavit, and did not lose it on being informed that it was a false affidavit. If they acted, knowing proper consents had not been given, it would tend to prove that they acted corruptly, and they are liable to indictment and punishment for malfeasance ; yet it does not change the rule of law that,, as judicial officers, they are not exposed to a civil action, although they acted maliciously and corruptly.

If the views which we have expressed and .the conclusions we have reached are correct, then upon the merits the plaintiff failed to make out a cause of action, although it was established beyond all controversy that a majority of the tax-payers did not consent, and that the defendants were so informed when they issued the bonds which the plaintiff has been held liable to pay.

We have, however, examined the question presented on the plea of the Statute of Limitations, and are of the opinion that upon the/ facts as now presented, that defense constitutes a bar to a recovery. The last act of the defendants connected with the issuing and delivery of the bonds into the hands of third persons, as purchasers, was more than six years prior to the commencement of this action. Upon the coupons attached to some of the bonds, recoveries have been had against-the plaintiff, within six years before the commencement of this suit.

As we understand the record, the bonds were in fact, delivered by the commissioners to parties, other than those who have maintained actions and received judgments against the plaintiff, and that it does not appear from the evidence, when the parties so prosecuting the actions acquired, their title to the bonds. The defendants offered to prove that such parties did in fact acquire their title, more than six years prior to the commencement of such actions against the plaintiff. This offer was refused and the defendants excepted. In disposing of the question presented by this defense, in view of the ruling, we must assume that those parties became owners more than six years prior to the commencement of this action.

The learned counsel for the plaintiff argues that the statute did not commence to run until the judgments against the town were recovered, because until such recoveries were had the plaintiff had no complete cause of action against the defendants.

In a legal sense the plaintiff had sustained damages by the action of the defendants when the bonds passed into the hands of persons who could enforce their payment against the town. The plaintiff’s alleged right of action springs out of the defendants’ breach of duty as public officers, and is in the nature of an action on the case for consequential damages. While the right to sue was not perfect until some legal damages had accrued to the -plaintiff, when injuries did happen to it, for which damages could be recovered by the principles of the common law, then the statute commenced to run. (Bank of Utica v. Childs, 6 Cow., 238; Argall v. Bryant, 1 Sandf., 98; Town of Venice v. Breed, 65 Barb., 597; Northrop v. Hill, 57 N. Y., 352.)

The bonds issued by the defendants in the name of and in behalf of the town were negotiable instruments made payable to bearer and passed by delivery, the principal debt secured thereby not having matured the maker’s liability thereon was complete when they passed into the hands of a bona fide holder who could legally enforce their collection against the town. As soon as that occurred the defendants became liable to the plaintiff, if ever liable. If the defendant’s action in issuing the bonds was such as under the circumstances would give the plaintiff a right of action against them personally, it was then complete and the plaintiff would have been entitled to recover as damages the full face of -the bonds with the interest that had accrued thereon, consequently the statute of limitations commenced to run in the defendants’ favor from that time.

In principle the case falls within the rule laid down in Decker v. Mathews (12 N. Y., 313). In that case ■ Decker made his promissory note to be used for a particular purpose, and before it was negotiated .Mathews wrongfully converted and disposed of the note to a bona fide holder. The plaintiff without making proof that he had paid the note sued Mathews for a conversion and recovered as damages the face of the note and interest thereon, and it was held that the plaintiff’s damages were the face of the note, which he became liable to pay by the wrongful act of the defendant; that the law would presume, as he was liable to pay it, that he had paid it, or would pay it, voluntarily, or that he would be compelled to pay it in a.suit thereon by the holder; that the cause of action accrued in favor of the plaintiff immediately on his becoming liable to pay the note by its transfer to a bona fide holder. (See, also, Murray v. Burling, 10 Johns., 172; Evans v. Kymer, 1 Barn. & Adol., 528; Thayer v. Manley, 73 N. Y., 305.)

Within the rule laid down in the case last cited, the plaintiff could have maintained a cause of action against the defendants and recovered as damages the full face of the bonds on the transfer of them by the defendants in payment of the subscription for the stock, although the parties who received them for that purpose knew the fact that the town had a perfect defense to the bonds in their hands, for the reason that those parties had it in their power to transfer the bonds to a bona fide holder who could enforce their payment against the town.

In the case referred to (Thayer v. Manley), Thayer by means of false and fraudulent representations made by the defendant was induced to execute and deliver to him three promissory notes of five hundred dollars each, payable to the defendant or bearer two, three and four years from date respectively. Before either of the notes became due the plaintiff demanded them of the defendant, who refused to deliver them up. The plaintiff thereupon commenced an action in the nature of an action of trover, for the conversion of all of the notes. At the time of the trial, all of the notes were then held by Manley, never having been negotiated, and one of them was past due. On the trial the jury were instructed by the court that if the plaintiff had established the alleged fraud, then' he was entitled to recover an amount equal to the face of the three notes, with interest, and a recovery was had accordingly. It was held by the Court of Appeals that there was no error in the charge,” as it stated the correct rule of damages applicable to the case; that the plaintiff recovered a just indemnity for the wrong which had been done, and no more ; that the true test by which i£ is to be determined is the amount of injury which the plaintiff has sustained, the court remarking: “ While he was the holder (of the notes) perhaps a perfect defense to their validity existed. * * * But the defendant had it in his power to dispose of them; and when the notes were demanded, he refused to deliver up the same; and then, or even after the action was brought, the defendant could have transferred them to a lionajvde holder before they became due, and they would have been valid in his hands. The plaintiff thus being liable to the risk of being obliged to pay the notes when the action was brought, he was entitled to recover the actual damage which might accrue to him by reason of -any transfer of the same, and that right is not impaired by the fact that one or more of the notes might become due at the time of a future trial. The cause of action existed when the suit was brought, and cannot thus be impaired or frittered away. It being a legal presumption that the plaintiff would either pay willingly or be compelled to pay the notes, he was entitled to recover the amount of the notes, which alone would indemnify him against the same. Mere nominal damages would not cover the full amount of loss which might be incurred.”

In a sense, as it has been frequently held by the courts, the commissioners were agents of the town. The case is similar then, in its ■ legal aspect, to a case where an agent disobeying the instructions of his principal and disregarding the limits placed upon his authority, delivers the note of his principal into the hands of a third person under circumstances which entitle the latter to enforce it against the principal. In such a case the principal can maintain an action against his agent for a breach of duty, and recover, as consequential damages, the face of the note before he pays the same. If any of the coupons attached to the several bonds had matured before the bonds were transferred to a bona fide holder, that circumstance did not render the bonds and the subsequent maturing coupons dishonored paper, so as to subject them in the hands of a purchaser for value to defenses good as against the original holder. (Cromwell v. County of Sac., 96 U. S., 51; National Bank of N. A. v. Kirby, 108 Mass., 497.)

We have examined the several cases cited by the learned counsel for the plaintiff, and we fail to discover that they are the least in conflict with' the authorities cited, or with the views we entertain concerning the case at bar.

•In Roberts v. Read (16 East, 215), the defendants committed an act of trespass upon the lands of the plaintiff by digging and undermining; a wall; afterwards the wall fell in consequence of the act of the defendants in digging away the earth which supported it. In an action for consequential damages, growing out of the breaking down of the wall, the court held that the statute .commenced to run at the time the wall fell, as the action was for damages resulting therefrom, and not for the original trespass. That damages subsequent to the trespass developed a new cause of action distinct fr'om the original trespass.

Neither is the case of the Bank of Hartford County v. Waterman (26 Conn., 324), hostile to the principle laid down in the cases we have' mentioned. There an attachment had been delivered by the bank to the defendant, as sheriff, to execute. He attached property sufficient to pay the bank’s debt. In his return the sheriff made a mistake in describing the property, which by the laws of that state made the levy irregular and valueless as a security for the payment of the plaintiff’s debt. At a subsequent time the bank recovered a judgment against its debtor, who in the meantime had become insolvent. On issuing execution on the judgment, the error of the sheriff was discovered. In an action against him by the bank to recover the damages which it had sustained in consequence of the error, it was held, that the cause of action in favor of the bank against th'e sheriff, accrued at the time the plaintiff recovered judgment and discovered the error and not before. A majority of the court holding that the plaintiff had not been injured in a legal sense until after judgment was recovered in the suit in which the attachment issued. One member of the court dissented. The disagreement arose on the application of admitted principles to the exceptional facts and circumstances of the case.

The case at bar is distinguishable from that case and others where the cause of action arises out of a trespass to property, real or personal, because of the rule of law applicable to the rights of a bona fide holder of commercial paper when his title is acquired before maturity.

Judgment reversed, new trial granted, with costs to abide event.

Smith, P. J., and Hardin, J., concurred in, result, placing their concurrence on the last ground stated in the opinion.

New trial ordered, costs to abide event.


text:
    GEORGE G. BOWN, as Temporary Administrator, etc., of EDMUND FITZPATRICK, Deceased, Respondent, v. THE SUPREME COUNCIL OF THE CATHOLIC MUTUAL BENEFIT ASSOCIATION and Others, Appellants.

      Benevolent association — right thereof to designate the persons to whom, the .interest of a deceased memb&r shall go.

    The plaintiffs testator was a member of the defendant association, and as such was at the time of his death entitled to a beneficiary fund therein to the amount of $2,000. The charter of the defendant provided that the beneficiary fund should “be paid over to the families, heirs or representatives of deceased members, or to such person or persons as such deceased members may while living have directed.” Authority was also given to regulate such payments by by-law. One of the by-laws directed the fund to be paid to the person or persons last named by the deceased and entered by his order on the “will book.” The deceased had an entry made in the will book directing the fund to be paid to his brother Patrick. Thereafter he made a will by which he gave and devised his interest in the said fund, after the payment of his just debts and funeral expenses, to the same brother Patrick. The plaintiff, to whom letters of administration with the will annexed had been issued,, sought to recover the fund in this action.

      Meld, that the action could not be maintained; that the brother Patrick was entitled to receive the fund, and that as he took it directly from the defendant it was not subject to the payment of the decedent’s debts.
    Appeal from a judgment in the plaintiff’s favor, entered upon the report of a referee.
    At the time of his death, the decedent was a member in good standing of the defendant corporation, a beneficiary association organized under and in pursuance of chapter 496 of the Laws of 1879. By the terms of the charter and by-laws of the association, upon the death of a member his family, or heirs or representatives, or such persons as he should designate, was to be paid the sum of $2,000 After his death this fund was created and held by the officers of the corporation, ready to be paid over to the persons entitled thereto. The deceased, at the time of his death, was a resident of the State of Michigan and owed considerable sums of money, and left a last will and testament, which was duly admitted to probate under the laws of that State. Thereafter this plaintiff was appointed administrator by the surrogate of Niagara county, and letters ancillary were issued to him. The plaintiff claims to recover this fund in his representative capacity. The defendant admits that the fund has been created and is in the hands of its officers, but denies that the plaintiff, in his representative capacity, has any claim thereto-
    By one of the provisions of the charter the corporation is authorized to create, hold, manage and disburse a beneficiary fund which may be set apart td be paid over to the family, heirs or representatives ' of deceased members, or to such person or persons as such deceased members may.while living have directed, and it is provided that the collecting, management and disbursement of the same, as well as the person or persons to whom, and the manner and time in which, the same shall be paid on the death of a member, shall be regulated and controlled by the constitution, by-laws, rules and regulations of the corporation; and such beneficiary fund so created shall be exempt from execution and shall not be liable to be seized, taken or appropriated by any legal oy equitable process to paying debts of said deceased member.
    There was no controversy over the essential and controlling facts in the case. None of the defendants named in the summons, except, the corporation, were sued or have appeared ih the action. The judgment was for a recovery of the $2,000, the amount of the beneficiary fund, with interest thereon and costs of action.

      JO. O. Feeley, for the appellants.

      Rowley <& Johnston, for the respondent.
   Barker, J.:

The defendant corporation owed no debt to the testator at the-time of his death, nor did it promise at any time to pay the beneficiary fund on his death to his personal representatives so that it would become part of his estate. The charter and by-laws of the defendant constitute the terms of an executory contract to which the testator assented when he became a member of the society. If the plaintiff has a right of action it must be found in some promise or covenant on the part of the defendant contained in its charter or by-laws. (Hellenberg v. Independent Order of B’nai Berith, decided in the Court of Appeals, an abstract of which is given in the N. Y. Weekly Dig. [vol. 18], 421; The Maryland Mutual Benevolent Society, etc., v. Clendinen, 44 Md., 429; Arthur v. The Odd Fellows’ Beneficial Association, 29 Ohio, 557.)

The charter and by-laws determine the rights of the members of the corporation, and the same may be enforced by the parties or beneficiaries according to their respective rights.

The beneficiary fund which the corporation was authorized to create and distribute was mainly derived by an assessment upon the living members. By the seventh section of the act of incorporation it is expressly provided, that this sum shall be paid over to the' family, heirs or representatives of deceased members, or to such person or persons, as they may while living have designated. It in no event is to become a part of the personal estate of the deceased. The contract so far as this event is concerned was not made in his own behalf or for his benefit, but for the benefit and support of his family or such individuals as he might name. It could not be claimed by his administrator or executor as an asset belonging to his estate; nor made liable for the payment of his debts. It was-no part of the purpose or scheme of the corporation to benefit the estate of the member while living or to increase it after death. The beneficiary might take the fund, and if the member omitted to exercise the privilege of naming one, then it would go to the class of persons mentioned in the ninth clause of the charter, in equal proportions. The corporation contracted with no one else. This was expressly decided in the case of this defendant against Mary Priest (46 Mich., 429). The court remarked: “ This being a beneficiary, fund does not become a part of the property or estate of the deceased subject to his debts, but is exempt therefrom in accordance with the provisions of the act of incorporation. It does not therefore go to the administratrix of the estate, but should be paid direct to the beneficiaries named.” ' ,

By one of the by-laws it js provided, “ the beneficiary fund on the death of a member in good standing shall be paid to the person ■or persons last named by the deceased and entered by his order on the “will book,” by the secretary, which book shall always be in the custody of the recording secretary. At least one witness besides the secretary shall be .witness to the entry.”

The deceased in writing and in due form, and in full compliance with the by-laws, did make an order, that, upon his death, the whole of the beneficiary money should be paid to his brother Patrick Fitzpatrick, and the same was in a proper manner entered in the will book and properly attested. Afterwards the testator made and published his last will and testament, the only devising clause therein being as follows: “After payment of my just debts and funeral expenses I give, devise and bequeath to my brother Patrick Fitzpatrick, all my interest in the Catholic Benefit Association, amounting to two thousand dollars, to have for his own use and benefit forever.” This is the instrument annexed to the letters of administration .granted to the plaintiff as the last will and testament of the testator.

It is conceded that Patrick Fitzpatrick, named in each of these instruments, is the same person.

As the appointment first made and registered in the will book was in all respects regular, it is admitted by the plaintiff, that if the same was in full force and effect at the time of the death of the decedent, then by force of the terms of the charter and the by-laws, the beneficiary fund passed on his death to the appointee, Patrick Fitzpatrick.

It is argued by tbe learned counsel for the respondent that the first appointment entered in the will book was revoked, and the one contained in the will is in force, and the fund is subject to the provision providing for the payment of the debts of the testator. In terms it is not a revocation, nor can it be fairly inferred that such was the intention of the testator, but on the contrary, he names the same individual as the beneficiary of the fund, over which he had the power of appointment. He did attempt to make the endow ment, subject to the payment of his debts, but that he had no'power to do, as has been already stated.

As the plaintiffs complaint should have been dismissed upon the merits, we express no opinion upon the question of the validity and regularity of his appointment.

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

Smith, P. J., and Hardin, J., concurred.

Judgment reversed, and new trial ordered, before another referee, costs to abide event.


author: Barker, J.;

text:
    JONAH D. DECKER, Respondent, v. JAMES KITCHEN, Appellant, Impleaded, etc.

      A defense of a discharge in bankruptcy may be waived, by a new promise made at any time before verdict— Oowrts do not regard fractions of a day.

    Appeal from a judgment in the plaintiff’s favor, entered upon a verdict rendered at the Monroe Circuit, and also from an order of the Special Term denying the defendant’s motion for a new trial.
    The action was brought to recover the balance of an account amounting to $3,921.95, with interest, alleged to be due .the plaintiff from the firm of James Kitchen & Co., of which the defendant was a member. The only defense interposed is the defendant’s discharge in bankruptcy, granted on tiie 8th day of November, 1876. The regularity and sufficiency of the discharge was 'not questioned by the plaintiff. To sustain a recovery the plaintiff relied wholly upon the promise of the defendant to pay the debt subsequent to the discharge.
    Upon the trial evidence was given of a promise by the defendant to pay the debt, which was made immediately after the service of the papers upon him and in the presence of the officers serving them.
    “The learned counsel for the appellant contends, that as the promise to pay was subsequent to the commencement of the action, the same was prematurely commenced, citing a familiar rule, that the plaintiff must stand upon his rights as they existed at the time the action was commenced; that there must exist at that time a substantive cause of action in the plaintiff’s favor, and that the right of action cannot rest upon facts subsequently arising.
    “There are many authorities holding that in an action upon a debt .discharged under the provisions of insolvent laws, the discharge' may be waived -at any time before verdict, even on the trial, and a recovery bad upon the original obligation.
    “In Lloyd v. Maund (2 T. R., 760), after the action had been commenced, the defendant wrote a letter to the plaintiff’s attorney, making admissions which were held to be sufficient to take the case ■out of the operation of the statute of limitations, which the defendant had pleaded in bar of a recovery. It was held that the promise made after suit commenced was sufficient, and a recovery sustained.
    “So in Rucker v. Hannay (4 East, 604) the defendant after the commencement of suit, in an affidavit read on an application to the ■court, for leave to plead the statute, made an admission which was left to the jury as evidence from which they could find a promise to pay the original indebtedness.
    “ To the same effect are the cases of Yea v. Fouraker (2 Burrows, 1099); Thornton v. Illingworth (2 Barn. & Cress., 826); Wright v. Steele (2 N. H., 53). As a general rule the courts do not inquire into the fractions of a day, except for the purpose of guarding against injustice. The service of the papers and the holding of the conversation in which the alleged promise was made, may be regarded as contemporaneous and simultaneous acts. It is impossible to state the length of time which passed between the act of •delivering the papers to the defendant, and his making the promise •to pay.” (Blydenburgh v. Cotheal, 4 Comst., 418; Clute v. Clute, 3 Denio, 263; Small v. McChesney, 3 Cow., 19.)

      Theodore Bacon, for the appellant.

      Jonah D. Decker, respondent in person.
   Opinion by

Barker, J.;

Smith, P. J., and Hardin, J.,

concurred.

Judgment and order affirmed.


author: Hardin, J.;

text:
    In the Matter of the Application of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY, Respondent, to Acquire a Crossing of the BUFFALO, NEW YORK AND ERIE RAILROAD COMPANY, and the NEW YORK, LAKE ERIE AND WESTERN RAILWAY COMPANY, Appellants, over their Railroad in the Town of Erwin.

      Railroads — proceedings by one company to acquire a right to cross the tracks of another— the proceedings are not stayed by an appeal talcen from an order refusing to change the route.

    Appeal from an order of the Monroe Special Term appointing three commissioners to fix and adjust the crossing of the railroad of the New York, Lake Erie and Western Railway Company, and the Buffalo, New York and Erie Railroad Company, by the railroad of the New York, Lackawanna and Western Railroad Company, and to declare the points and manner of the line or lines, the grade or grades of such crossing and the compensation to be paid therefor; also an appeal from an order of reference made in the proceedings to take proof and report to the Special Term.
    The coiirt at General Term, after considering other objections, said: “ Appellants took proceedings to have the respondent’s route changed. The proceedings resulted in an order refusing to change the route. That order ivas affirmed by this court, and an appeal from our order is pending in the Court of Appeals. We think the pendency of that appeal is not a bar to the proceedings to acquire a crossing under section 28, and that the objection made in that regard was properly overruled at Special Term. The order refusing to change the location, and the affirmance thereof, is binding upon the constructing road and the occupant of the road over which a crossing is sought. The route, therefore, of the constructing road has been located, and until the order refusing to change the location is reversed the route is effectually established and sufficiently located to answer the requirements of the statute.

      “ In re the Application of the New York, Lackawanna and Western Ra/H/road Company, and Avon Q. and Western Railroad Company, we held that a railway company must locate its route before it can maintain proceedings, under section 28 of the general railroad act, to acquire a crossing of the railroad of another company. We are not willing to hold that an appeal from an order establishing a location, or refusing to change it, is a barrier to proceedings under section 28 to acquire a crossing.
    “ We find nothing in New York and Boston Railroad Company v. Godwin (12 Abb. [N. S.], 21) justifying such a holding. The proceedings to change the route had terminated adversely to the appellants before the order now under review was made by the Special Term.

      “ The court in Special Term had jurisdiction to make the order now under review, and did not err in so making it, notwithstanding the appeal to the Court of Appeals from our order affirming the order refusing a change of location.” (Mather v. N. Y., L. and W. R. R. Co., 88 N. Y., 280.)

      D. G. Robinson and G. B. Bradley, for the appellants.

      J. MoGvire, for the respondent.
   Opinion by

Hardin, J.;

Barker, J., concurred; Smith, P. J.,

not sitting.

Each order appealed from affirmed, with ten dollars costs in one case, and in' each case disbursements.


author: Smith, P. J.;

text:
    In the Matter of the Probate of the Last Will of JOHN RUSSELL, Deceased.

      Lost wiU — application for its probate — what proof of its due execution by the testator must be given by the proponent.

    Appeal from a decree of the Surrogate’s Court of Cattaraugus county, refusing to admit to probate the alleged last will and testament of John Russell, deceased.
    The proponent attempted to establish the instrument as a last will; consequently the original was not produced-, nor was a copy of it put in evidence. The only evidence on the subject of the execution of a will, aside from proof of declarations of the deceased that he had made a will, was the testimony of the witness Rabb, •who stated ip substance that near the last of February^ 1880, which was about a year before the death of the deceased, witness was at the office of H. M. Herrick, an attorney-at-law, then doing business .at Cattaraugus, but since deceased; that Mr. Russéll was there at the-same time, and witness saw a paper of four pages, partly written ,and partly printed, lying on Herrick’s table, which Russell said was his will; that witness saw Russell’s name and seal at the end of the paper, and under Russell’s name there was a space filled with written ■ or printed matter, and under that, at the loft hand of the paper, •were two or three names, one of which the witness thought was Mr. Herrick’s ; the other names he did not testify to. He also testified that the paper was in Herrick’s handwriting; and that Herrick was .present when witness saw the paper, but made no remark .-about it, and that Russell said Herrick was to be the executor of the will. The record book also states that a blank form of a will was shown to the witness at the trial, but it does not appear what the form was, nor that the -witness stated what was the form or •contents of the paper which he saw in Herrick’s office, or that it or-.any part of it was in the same form as the blank shown to him at the trial.
    The court at General Term said: “ If the witness had been able to state that the two or three names which he noticed at the foot of the paper were subscribed to a full attestation clause, showing that' the paper had been executed with the formalities required by the statute of wills, that testimony, in connection with the other testimony adduced by the proponent, might have made out a prima facie case. But the record as it stands contains no evidence whatever that the paper which Rabb testifies he saw was duly executed as a will. This we regard as a fatal defect in the proponent’s case.
    “ In all the cases cited by the appellant’s counsel upon this branch -of the case, there, was a full attestation clause. They authorize the proposition that ‘if the attestation’clause is full, and the signatures genuine, and the circumstances corroborative of due execution, and there is no evidence disproving a compliance in any particular, the ■presumption may be lawfully indulged that all the provisions of the ¡-statute were complied with, although the witnesses are unable to recollect the execution or what took place at the time.’ That ■proposition is not questioned, but it does not aid the proponent. The foundation upon which the presumption rests is the attestation clause, and that is lacking in this case.
    “ The bare declaration of the deceased that the paper which the witness saw was his will, does not tend to prove that it was executed .as the statute requires. To hold otherwise ■ would be to dispense with all the safeguards against fraud and imposition which- the formalities required by the statute were intended to provide.
    “ Without considering the other questions argued by counsel, we think that for the reasons above stated the decree should be affirmed, with costs of the respondent to be paid out of the estate.”

      Nash ds lincoln, for the petitioners, appellants.

      Allen de Thrasher, for the contestants, respondents..
   Opinion by

Smith, P. J.;

Hardin and Barker, JX,

concurred.

Decree .affirmed, with costs to the respondents, to be paid out of ühe estate.


author: Smith, P. J. :

text:
    In the Matter of the Application of the NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY to Appraise Lands of CAROLINE PIERCE and Others.

      Maflroad company — proceedings to acquire the title to additional land, undei' section 21 of chapter, 140 of 1850, as amended by chapter 237 of 1869 — contents of the petition — how the determination of the company to acqui/i'e land may be shown.

    Where proceedings to acquire title to land are instituted by a railroad company under section 21 of chapter 140 of 1850, as amended by chapter 237 of 1869, the petition is sufficient if it alleges that the company owns, operates or leases any railroad operated by steam. It need not set forth all the facts which must be alleged in proceedings to acquire land for an original route.

      Quaere, as to whether in such a case the landowner can put in issue by his answer the fact of the due organization of the company, or the location of its route, and give evidence in regard thereto. (Per Smith, P. J.)
    The determination of the company to take the land need not be shown by a formal resolution of its board of directors. Such determination is sufficiently evinced by instituting the proceedings upon a petition duly verified by its assistant president, which particularly describes the land to be taken and the, uses for which it is required.
    Appeal by tbe landowners from an order of tbe Erie Special Term, confirming tbe report of the referee herein and appointing commissioners to appraise the property.

      John G. Jíilburn, for owners, appellants.

      George C. Greene, for the railroad company, respondent.
   Smith, P. J. :

This is a proceeding under chapter 237 of the Laws of 1869, which amends section 21 of the general railroad act of 1850. The proceeding is instituted by the New York Central and Hudson River Railroad Company, upon its petition verified by one of its officers, for, the purpose of acquiring title to certain lands described in the petition, owned by the appellants, or in which they have an interest, which the. petition alleges adjoin the land of the petitioner, and are required by it for certain purposes of its incorporation specified in the petition. The appellants contend that the order of the Special Term is unauthorized because the petitioner gave no proof that it was a legally organized and existing company, all of whose capital stock had ■ been subscribed, having a railroad built upon a legally authorized route. The contention rests mainly upon the language of the amendment, which provides that a railroad company requiring additional real estate may proceed to acquire the same, etc., “ in the manner and by the proceedings ” thereinbefore in said act prescribed. That language, it is contended, makes it incumbent on a company owning or operating a railroad and seeking to acquire additional real estate under the provisions of the act of 1869, to allege in its petition and prove ail the essential facts required in. a proceeding under the act of 1850, to acquire land for an original route. We think otherwise. The proceeding provided for by the act of 1869, may be instituted by any company owning, operating or leasing any railroad operated by steam, and it is enough, in the first instance, that the petitioner, by its allegations and proofs, brings itself within that description. It may be that if the landowner should put in issue by its answer the fact of the due organization of the company or the location of its route, and give evidence tending to disprove the same, the company would be required to establish such fact by affirmative evidence, but unless such issue is made, its right to institute the proceeding, so far. as its own status is concerned, is established, jprima, faoie, by showing that it is a company actually owning or operating a steam railroad.

It will be presumed that it is duly organized and its route legally located,' nothing appearing to the contrary. It was held In the Matter of the Application of New York Central mid Hudson River Railroad Company to acquire land of Sweeney (4 Hun, 381) that where a railroad company, after having located and completed its road, institutes proceedings, under chapter 237, Laws of 1869, to acquire title to other lands necessary for the convenient transaction of its business, the petition need not state all the facts which are required in the original petition; nor is it necessary to make and file the maps which are required when the company first applies to acquire lands for its road.

The appellants contend that the necessity for the acquisition of the land sought is not adequately shown in this casé, since there is no proof of an authoritative determination on the part of the petitioner to appropriate the property. In other words, it must appear not only that the land sought is in fact necessary for the purposes of the company, but that the governing body of the company has formally decided that it is necessary. We think the determination of the company to that effect is sufficiently 'shown by its action in instituting this proceeding, by its petition duly .verified by its assistant president, particularly describing the land, and alleging the purposes for which it needs to acquire it.

It is also contended that the proofs fail to show a duly authorized negotiation for the purchase of the property. The negotiation was conducted on the part of the company by Grimes, who was its negotiating and purchasing, agent, and had acted in that capacity several years. According to his testimony the owners declined to sell at any price, and the lessees asked a price for their interest which he considered exorbitant, much more than the whole property was worth. Grimes received instructions to negotiate for the purchase of the property in question from Mr. Tilliughast, the assistant to the president of the company, and the latter testified that he was instructed by the president and the executive committee. The point is made by the appellant that the negotiations by Grimes preceded .the instructions. Reading all the evidence on the subject, it hardly justifies that conclusion or the conclusion that Grimes in negotiating for the purchase of the property acted without authority. Mr. Tillinghast testified that he was of the impression he gave the instructions to Grimes the year before the negotiations were had, and that in that same year he received instructions from the president. The president had power tt> negotiate for the company. (Matter of P. P. and C. I. R. R. Co., 67 N. Y., 377.) That the function was one which he could depute to an .agent is not questioned by the appellant’s counsel.

"We think the order should be affirmed, with ten dollars costs and disbursements.

Barker, Haight and Bradley, JJ\, concurred.

So ordered.


author: Smith, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. HENRY H. NORTON, Appellant.
    - Appeal — none lies to a Court of Sessions from a judgment of (he Special Sessions cha/rging a prosecutor with costs — Code of Criminal Procedure, secs. 719, 720, 749 — Code of Ciml Procedure, secs. 3044, 3045.
    A judgment of a Court of Special Sessions charging the costs of a criminal prosecution upon the prosecutor, as provided in sections 719 and 720 of the Code of Criminal Procedure, is not a “judgment upon conviction,” within the meaning of those words as used in section 749 of the said Code, and cannot be reviewed by an appeal to the Court of Sessions.

      tyuasre, as to whether such a judgment could be taken to the County Court for ,review under sections 3044 and 3045 of the Code of Civil Procedure.
    Appeal from an order of the Court of Sessions of Livingston county, dismissing an appeal from a judgment of a Court of Special Sessions held in said county, charging the appellant with the costs of a criminal prosecution in the last mentioned court, in which said appellant was the prosecutor.

      PL. P>. Tucker, for the appellant.

      John, R. Strang, district attorney, for the respondents.
   Smith, P. J.:

The judgment of the Court of Special Sessions was rendered under sections 719 and '72,0 of the Code of Criminal Procedure, and the only question is whether an appeal will lie from1 such judgment to the Court of Sessions. If the right of appeal exists in this ease, it must be found in section 749 of said Code, which provides that “a, judgment upon conviction, rendered by a Court of Special Sessions, may be reviewed by 'the Court of Sessions of the county, upon an appeal, as prescribed by this title, and not otherwise.” Is the judgment of the Special Sessions in this case a, judgment “ upon conviction,” within the meaning of section 749? We think not.

A judgment upon a conviction, ” as the words are used in the Code of Cfiminial Procedure, can only be rendered against a person charged with the commission of a criminal offense, or the defendant in a criminal prosecution. In that sense they are used repeatedly in the Code. It is absurd to say that the prosecutor in a criminal proceeding when charged with the costs of the prosecution, by reason of having instituted it without probable cause, or even maliciously, is convicted of a crime. We think it clear that an appeal from a judgment of that nature does not lie to the Court of Sessions.

Whether it can be taken to the County Court, under sections 8044 and 3045 of the Code of Civil Procedure, as suggested by the respondent’s counsel, is a question not before us and upon which we express no opinion. It may well be that the legislature intended to provide no*1 appeal from judgments of this nature, as they do not involve the merits of the prosecution, and the amount of costs chargeable upon a prosecutor in a Court of Special Sessions can never be large.

The order appealed from should be affirmed, but as the question is new, without costs.

Barker, Haight and Bradley, JJ., concurred.

So ordered.