author: Countryman, J.:

text:
    PETER HOVER, Respondent, v. S. PULVER HEATH, Appellant.

      Attorney—compensation —when entitled to—Interest.

    This action was brought to recover moneys collected by the defendant, as the attorney for the plaintiff. The referee charged the defendant with the amount received by him, with interest thereon from the time of its receipt, and, after deducting therefrom the amount allowed to him for costs and counsel fees, directed judgment to be entered for the balance. Held, that this was error. The defendant was entitled to receive the costs and counsel fees as soon as the moneys were collected, and it was error to charge him with interest thereon.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee. This action was brought to recover moneys, in the hands, of the defendant, collected by him as the attorney for the plaintiff. In 1864, the plaintiff retained the defendant, who is an attorney and counselor at law, to commence an action and collect a claim for damages against the commissioners of highways of the town of Florida. That action was tried October 1, 1864, when the plaintiff recovered a verdict for $200, and judgment was accordingly entered for $200 damages and $155.87 costs and disbursements. On appeal from that judgment, it was affirmed in the General Term, and July 31, 1865, judgment entered on the appeal for $95.88 costs and disbursements. On a further appeal, that judgment was also affirmed in the Court of Appeals, and a third judgment entered on such affirmance, February 1, 1871, for $215.50 costs and disbursements. March 4, 1871, the amount of these judgments, principal and interest, was collected and received by the defendant, as such attorney of the plaintiff, amounting to the sum of $861.91. April 1, 1873, the defendant paid, for counsel fees in the action, the sum of $130, and claimed to retain the balance in his hands for his own services and disbursements. The referee charged the defendant with the entire amount received, $861.91, with interest from March 4, 1871, and credited him with the following items : $130, and interest from April 1, 1873; $380.31, for services as attorney; and $300 for services as counsel, and ordered judgment in favor of the plaintiff for the balance, $231.43, besides costs. The defendant excepted to the several findings of the referee, of the amounts allowed, principal and interest, to the respective parties, and to the amount found due to the plaintiff.

      J. I Snell, for the appellant.

      Mitchell ds Glute, for the respondent.
   Countryman, J.:

It is found as a fact that the money was collected on the judgments in the former suit, by the defendant, as attorney, on the 4th day of March, 1871. His services were then completed, and his right to compensation perfect from that period. He had a lien for the value of his services upon the moneys which he collected on the judgments, And yet the referee has charged him with the interest on that portion of the money which. he was entitled to retain for the services he had performed, from, the time he collected it to the date of his report. This cannot be maintained. When the moneys were collected, his employment as attorney terminated, and his claim for services became due, and he was entitled to retain the value thereof out of the moneys in his hands. The defendant is, therefore, entitled to a deduction of the interest on $680.31, the value of his services and disbursements, from March 4, 1871, to , April 25, 1874, the date of the report, amounting to $149.48. He was properly charged with interest on the balance in his hands from the time of its receipt; and he was also properly disallowed interest on the taxable costs or disbursements until his employment was closed. The exceptions to the report were, probably, not sufficiently specific to have presented these questions for review in the Court of Appeals; but the right to review is not so limited in the General Term. The judgment must be modified by striking out the sum of $149.48, and, as thus modified, the judgment must be affirmed, without costs of the appeal to either party.

Present—Bookes, P. J., Countryman and Landon, JJ.

Judgment modified, and as modified affirmed, without costs to either party.

       Adams v. Fort Plain Bank, 36 N. Y., 255.

       Rooney v. Second Avenue Railroad Co., 18 N. Y., 368.

         Greenly v. Hopkins, 10 Wend., 97.

       Mygatt v. Wilcox, 1 Lansing, 56.

       McMahon v. N. Y. & Erie Railroad Co., 20 N. Y., 463, 470.


source: Caselaw Access Project

license: Public Domain

text:
    WILLIAM S. POWERS, Respondent, v. THE ROME, WATERTOWN and OGDENSBURGH RAILROAD COMPANY, Appellant.
    Answer— “ora information and belief" — what constitutes a denial— Oode, sec. 149.
    This action was brought by the plaintiff to recover damages for injuries sustained while traveling in defendant’s cars. The defendant in its answer, after making certain specific admissions, “ upon its information and belief, says that said plaintiff was not by reason of said collision at all bruised or injured in the back and thigh or elsewhere, and that he has not by reason of said alleged injury ever since or at any time been sick, sore and lame,” etc. Held, that the answer did not contain a denial of the allegation of the complaint as required by section 149 of the Oode, and that judgment was properly directed for the plaintiff on the ground that it was frivolous. A denial “ upon information and belief ” is not a good traverse.
    Appeal from an order made at chambers, directing a judgment for the plaintiff on the answer, as frivolous. The action was brought to recover damages for an injury to the plaintiff, received from a collision while riding on defendant’s railroad. The material portion of the answer is set forth in the opinion.

      Edmund W. Wynn, for the appellant.

      Edward G. James, for the respondent.
   Countryman, J.:

As no judgment has been entered, the appeal is properly brought from the order. The defendant, after making certain specific admissions in the answer, “ upon its information and belief, says that said plaintiff was not by reason of said collision or at all bruised or injured in the back and thigh or elsewhere, and that he has not by reason of said alleged injuries ever since or for any time been sick, sore and lame and unable to attend to his ordinary business, and that said plaintiff has not been at the expense of medical treatment and medicines in consequence thereof, and that said plaintiff has not by reason of the premises suffered damages,” etc. Is this a good denial under the Code ? Section 149 requires the answer to contain “ a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.” Section 168 provides, that “ every material allegation of the complaint, not controverted by the answer, as prescribed in section 149 * * shall, for the purposes of the action, be taken as true.” Every denial must therefore conform to the provisions of section 149, or it must be construed as an admission. Such is the imperative mandate of the statute. Now, section 149 prescribes only three modes of traversing a complaint: 1. A general direct denial of the whole, or a certain portion thereof; 2. A specific direct denial of particular allegations which are identified; and, 3. A direct denial of any knowledge or information sufficient to form a belief of the whole, or some specified portion of the complaint. Whichever mode is adopted, must be a direct, positive and explicit denial; a negation, not an allegation. The purpose of the provision was to obtain a categorical issue, and to prevent raising issues by implication or inference, or by a comparison of counter-allegations and contradictory statements in the pleadings. It has accordingly been held that a denial upon information and belief, is not a good traverse, and admits the allegations in the complaint. Merely making a counter-statement, or giving a different version of the matter from that contained in the complaint, without in terms denying the allegations, is insufficient. So an allegation in an answer, that' the defendant “ says that he denies,” etc., has been repeatedly condemned in the General Term. The last cases cited are directly in point against the validity of the denials in the answer now before us. This objection cannot be obviated by a “liberal construction ” of the allegations under section 159, as suggested in the case of Chapman v. Chapman. It is not a question of construction, but of conformity in regard to method or form. The statute has prescribed particular modes or forms of denial, and the courts have no right to hold that some other mode or form will answer the same purpose. The rule, requiring a liberal construction to be given to the allegations of a pleading, does not dispense with the necessity, on the part of the pleader, of conforming his pleading, in all essential particulars, to the provisions of the statute. There must be a limit even to liberality in practice and pleading. Where parties go to the circuit for trial upon informal and indefinite pleadings, thereby waiving objections of this character, very great liberality should be exercised in construing and amending the pleadings to conform to the proofs, but where the distinct objection is taken, in advance and in proper form, that the pleading does not conform to the rules of law, it must be entertained and the rules enforced. In this case the pleader has declined an opportunity afforded him below to amend, but insists that his pleading is strictly in accordance with the requirements of the statute. In this, he is manifestly in error. The order must be affirmed with ten dollars costs.

Present—Bocees, P. J., Countryman and Landon, JJ.

Order affirmed, with ten dollars costs.

      Lee v. Ainslee, 1 Hilt., 277; Witherhead v. Allen, 28 Barb., 661.

       Therasson v. McSpedon, 2 Hilt., 1.

       Wood v. Whiting, 21 Barb., 190, 198; West v. American Exchange Bank, 44 id., 176, 179.

         Arthur v. Brooks, 14 Barb., 538; Blake v. Eldred, 18 How., 240.

       34 How., 281.


author: CommtYMAir, J.:

text:
    CHARLES ROSEKRANS, Plaintiff in Error, v.THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      forgery — 2 S. 8,., 673, § 33—Counts in am, indictment—what should contain,— duplicity.

    The plaintiff in error was indicted for forgery in the third degree ; the indictment alleging that a document, set forth "therein—purporting to be a formal statement of an account for services rendered by a constable to the county of Sara-toga, in which the items were set forth in detail, with an affidavit of the claimant as required bylaw—was falsely made, "forged and counterfeited by him, with intent to defraud the said county. Held, that a demurrer to the indictment was properly overruled; that the instrument set forth in the indictment was the subject of forgery within 2 Revised Statutes, 673, section 33.
    The plaintiff in error also demurred to each of the counts for duplicity, insisting that the bill or account, the signature to the affidavit, and the signature to the jurat or certificate, were different instruments within the meaning of the statute, and that the forgery of each of them was a distinct offense. Held, that the demurrer was properly overruled; that the account and signatures were not separate instruments, as they were all essential to the completion of the account before it could be properly presented to the board of supervisors.
    In order to render a count void for duplicity, the two offenses must be described in adequate terms; otherwise the additional allegations will be regarded as surplusage.
    An indictment which alleges that the defendant falsely made, forged and counterfeited an instrument, within the statute, with intent to defraud, setting forth the instrument in Turno vw'ba, is sufficient.
    Writ of error to the Saratoga Comity Sessions, to review a judgment rendered upon a demurrer to an indictment for forgery.
    The indictment, containing five counts, was for forgery in the third degree, for forging and counterfeiting an instrument in writing, purporting to be an account of one Samuel Johnson for alleged services as constable against the county of Saratoga, together with the affidavit and jurat thereto attached, including the certificate of the justice.
    The following are the material portions of the first four counts of the indictment:
    County of Saratoga, ss. :

    The jurors for the people of the State of New York, in and for the body of the county of Saratoga, being then and there sworn and charged, upon their oath present:
    That Charles Rosekrans, late of the town of Clifton Park, in said county of Saratoga, on the first day of November, in the year of our Lord one thousand eight hundred and seventy-three, feloniously, with force and arms, at the town and county aforesaid, with intent to defraud the said county of Saratoga, did falsely make, forge and counterfeit, and cause and procure to be falsely made, forged and counterfeited, and willingly act and assist in the false making, forging and counterfeiting, a certain instrument purporting to be the act of another, to wit: of one Samuel Johnson, and by which instrument a pecuniary demand for therein alleged constable services purported to be created against said county of Saratoga, and by which said false making, forging and counterfeiting, and causing, procuring to be falsely made, forged and counterfeited, of said instrument, the said county of Saratoga might be bound and affected in property: and which said instrument, so as aforesaid feloniously and falsely made, forged and counterfeited, and caused and procured to be falsely made, forged and counterfeited, by the said Charles Rosekrans, is in writing, and is in substance and to the effect following, that is to say: (Here follows the account.)
    That said instrument being so made in manner and form as aforesaid, he, the said Charles Rosekrans, feloniously and in furtherance of his said intention to defraud the said county of Saratoga, did thereupon falsely make, forge and-counterfeit, and cause and procure to be falsely made, forged and counterfeited, and willingly act and assist in the false making, forging and counterfeiting a certain other instrument purporting to be the affidavit of him, the said Samuel Johnson, verifying said foregoing named instrument, and did connect and subjoin thereto, to wit: said affidavit, a further instrument or writing, purporting to be a certificate of a justice of the peace, to wit: one Charles E. Gorsline, who is and then was a justice of the peace of the said county of Saratoga, residing at the town of Halfmoon therein, and being a competent officer to administer oaths and to take affidavits within said county of Saratoga, and and which said affidavit, with the said falsely made certificate so subjoined as aforesaid, purporting to be the official act of said justice of the peace, are in writing and in substance and to the effect following, that is to say:
    STATE OF HEW YORK,
    Saratoga County.
    Samuel Johnson of said county, being duly sworn, says that the items of the annexed account, by him presented and claimed, are correct; that such disbursements and services have in fact been made or rendered ; and that no part thereof has been paid or satisfied.
    SAMUEL JOHHSOH.
    Sworn to this 1st day of)
    Hov., 1873, before me. j
    C. E. Gobsline,

      Justice' of the Peace.

    And which said falsely made, forged and counterfeited instruments purporting to be such affidavit and said falsely made, forged and counterfeited certificate thereto subjoined, were by said Charles Rosekrans annexed to said falsely made, forged and counterfeited instrument for said alleged constable services, and which said falsely made, forged and counterfeited instruments so annexed as aforesaid were so made and annexed by the said Charles Rosekrans with intent to defraud the said county of Saratoga, and by means whereof the said county of Saratoga might be bound, and might thereby be affected in property; and said several falsely made, forged and counterfeited instruments, and each and every of them, so feloniously and falsely made, fimged and counterfeited as aforesaid, were thereupon, to wit, on the 10th day of November, in the year of our Lord 1873, fraudulently and feloniously presented, and caused and procured to be presented for audit against said county of Saratoga to the board of supervisors of said county of Saratoga by him the said Charles Rosekrans, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present [same as in first.count], a certain instrument purporting to be the act of one Samuel -Johnson and of one Charles E. Gorsline [same as in first count].
    And which .said falsely made, forged and counterfeited instruments so purporting to be the act of the said Samuel Johnson and the said Charles E. Gorsline, and by means whereof the said county of Saratoga might bound and might thereby be affected in property, so feloniously and falsely made, forged and counterfeited as aforesaid, with intent to defraud the said county of Saratoga, was thereupon afterward to wit [same as in the first count].
    And the jurors aforesaid, upon their oath aforesaid, do further present [same as in second count], and caused to be presented for audit against said county of Saratoga, to one David Maxwell, who was then and there clerk of the hoard of supervisors of said county of Saratoga, and as such clerk duly authorized to receive said instrument and bill of account for audit by said board of supervisors, by him the said Charles Rosekrans, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.
    ■ And the jurors aforesaid, upon their oath aforesaid, do. further: present, that Charles Rosekrans, late of the town and county aforesaid, on the 1st day of November, in the year of our Lord 1873, at the town and county aforesaid, with force and arms, and with intent to defraud the said county of Saratoga, feloniously, falsely and fraudulently did make, forge and counterfeit, and did cause and procure to be so made, forged and counterfeited, a certain instrument purporting to be the act of one Samuel Johnson and of one Charles E. Gorsline, and which said instrument is in writing, and is in substance and to the effect following, that is to say [here follow account and affidavit], against the peace of the people of the State of New York and their dignity.
    The demurrer was to the whole indictment, and to each of the counts therein. Judgment was given for the people upon the demurrer to the whole indictment, and upon the first four counts, and for the defendant on the fifth count.
    . L. Tremain, for the plaintiff in error.

      H. Smith, for the defendants in error.
   CommtYMAir, J.:

The first objection raised by the demurrer presents the question whether the indictment contains a criminal offense. It is insisted that the crime of forgery cannot be predicated upon the instrument, a copy of which is set forth in each count of the indictment. The statute provides, that “ every person who, with intent to injure or defraud; shall falsely make, alter, forge, or counterfeit * * any instrument or writing, being’, or purporting to be, the act of another, by which any pecuniary demand or obligation shall be, or shall purport to be, created, increased, discharged or diminished * * by which false making, forging, altering, or counterfeiting, any person may be affected, bound, or in any way injured in his person or property, upon conviction thereof, shall be adjudged guilty of forgery in the third degree.” By another provision it is declared that it “shall be sufficient, if such intent appear to defraud * * any county, city, town or village * * or any person whatever.” We think these provisions are sufficiently comprehensive to include the instrument in question. It is a writing purporting to be the act of another, -by which a pecuniary demand purported to be created, and by which another might have been affected, and it is alleged that it was falsely made, forged and counterfeited by the defendant with intent to defraud the county of Saratoga. The revisers, in their note to the first section above cited, state that it was intended, “ to reach every case of forgery that ever has been committed, or that ever can be committed, ” not otherwise specially provided for, and their complete success in giving expression to their intention, has since been repeatedly affirmed by the courts.

Section 45 does not limit the meaning of the provisions in the previous sections, nor was it intended as a general definition of the document described as an “ instrument or writing,” but was merely enacted to remove all doubts in regard to the special cases therein mentioned, so that “every instrument partly printed and partly written, .or wholly prihted with a written signature thereto,” should be included. Nor was it essential that a legal liability or obligation should have been created by the instrument upon which an action could be maintained. It was sufficient that it purported to create a pecuniary demand, by which another might be affected or injured. If the instrument was complete in itself, and sufficient on its face to have induced an acceptance and allowance of the account by the board of supervisors, so that it might have produced injustice if the fraud had not been detected, it was the subject of forgery under the statute, Now this document purports to be a formal bill or statement of an account, on the part of a public officer, for services against the county of Saratoga, setting forth the items in detail, with an affidavit of the claimant, as required by law, constituting, apparently, a legal claim, in proper form to be audited and paid. It is clearly within the letter and spirit of the statute, and would have been sufficient as the foundation of an indictment at common law.

The next objection is of a more special character, and relates to each of the counts separately, as bad for duplicity. It is insisted, for the defense, that the bill or account, signature to the affidavit, and signature to the j urat or certificate, are different instruments or writings within the meaning of the statute, and hence, that the forgery of each of them is a distinct offense; so that they cannot properly be united in the same count. The general rule is familiar, that two or more separate criminal offenses cannot be joined in one count. The public prosecutor may, however, allege in the indictment several felonious acts, which, in themselves separately considered, are distinct offenses, so far as they are essential portions of one continuous transaction or connected charge, and collectively constitute but one offense, and may set forth in different counts various versions of the same charge or transaction, alleging different grades or degrees of the principal offense, provided, as thus alleged, they may all be merged in one, and do not necessarily constitute different and distinct offenses. But each count should contain only one version of- one offense, or one degree of the principal offense, and should be complete in itself, and unconnected with the others for any purpose, except, perhaps, special reference to particular allegations, to avoid unnecessary repetition. And it is never permissible to allege in one and the same count facts which constitute separate and distinct offenses, created by different statutes and requiring different degrees of punishment. It is, however, a misapprehension of the legal effect of the document, set out in the indictment, to call the account and the signatures to the affidavit and jurat three separate instruments, as they were all essential to the completion of the account before it could be properly presented to the board of supervisors; and all of them, therefore, constituted but one instrument. Unless the affidavit had been attached, the account itself would not have been a legal instrument on its face, and the crime of forgery, in reference to it, could not have been committed, And, as the forgery of the account and the signatures to the affidavit and certificate must be sustained under the same section of the statute, this disposes of the objection of duplicity as to them, if they were all made at one time and as one act or transaction. But the first count alleges each of these parts of the paper separately, as different instruments, and each act of forgery as distinct and independent; and, although it fails to make a proper allegation of the forgery of the signature to the certificate against the defendant, it must be regarded as double within the ’ rule. The second and third counts, on the contrary, allege the forgery of the whole paper, as one instrument and as one act or transaction, and are not therefore obnoxious to this objection. There is no- force in the suggestion that the alleged forgery is the joint act of Johnson and Glorsline, whereas their signatures purport to be attached separately to the affidavit and jurat annexed to the account, as the allegation is that the entire instrument was forged, and each of the signatures are attached to and form a part of the instrument. It is proper to allege, in the same count, an offense upon two or more persons, when it was the result of a single act, or was all one transaction.

But it is also insisted, that the second and third counts are bad for duplicity, as well as the first, because the distinct offense of uttering the instrument is joined with the offense of forging the same. It is a sufficient answer to this objection, that if the pleader intended to charge such an offense, which is not apparent, he utterly failed. It is alleged in each of these counts, after averring the forgery of the instrument, that the defendant feloniously presented and caused it to be presented for audit against the county of Saratoga.” There is no allegation that he “ uttered and published it as true,” which is essential, both at common law and under the statute. ' In order to render the counts objectionable, they must describe two offenses in adequate terms. Otherwise the additional allegations will be regarded as surplusage, The fourth count is clearly good within all'the authorities. An indictment which alleges that the defendant falsely made, forged, and counterfeited an instrument within the ‘ statute, with intent to defraud, setting forth the instrument m haec verba, is a sufficient description of the circumstances to constitute the offense, Judgment-must therefore be ordered for the defendant on the first count, and for the people on the second, third and fourth counts; and the judgment below on the indictment must be affirmed, with leave to the defendant to plead if he shall be so advised.

Present—Bookes, P. J., Countryman and Landon, JJ.

Judgment accordingly.

       2 R. S., 673, § 33.

       2 R. S., 675, § 46.

       Noakes v. The People, 25 N. Y., 380, 384; People v. Stearns, 23 Wend., 634, 637.

       2 R. S.,675.

         People v. Stearns, 21 Wend., 409, 414; People v. Krummer, 4 Park C. R., 217.

       1 Bishop on Crim. Proc., §§ 433-439, 449 and note; Reed v. The People, 1 Park. Cr. R., 481; People v. Wright, 9 Wend., 193; People v. Rynders, 12 id., 426; Nelson v. The People, 23 N. Y., 293, 397.

       Laws of 1847, ch. 490, § 24.

       Vincent v. The People, 11 Abb., 234; People v. Harrison, 8 Barb., 560; People v. Gallomey, 17 Wend., 540.

       1 Bishop’s Crim. Proc., § 437, and cases cited.

       1 Bishop Crim. Proc. § 440; Dawson v. The People, 25 N. Y., 399, 402.

       Holmes v. The People, 15 Abb., 154; People v. Rynders, 13 Wend., 435; People v. Clements, 26 N. Y.,193.


author: Landon, J.:

text:
    BRADLEY SMITH, as Executor, etc., Appellant, v. CLARA I. ROCKEFELLER and others, Respondents.

      Probationary period fixed by will—bequest contingent upon— how rested—Death of beneficiary—effect of—When executor changed personally with costs.

    When, a testator leaves to his son the income of $1,000, to be paid to him by his ' executors during a certain time, and directs that, at the expiration of that time, if the son has reformed, he be paid the $1,000, and otherwise, that it be paid over to other parties; held, that, the son dying before the expiration of the time without having reformed, it was the intention of the testator that the probationary period should end with the life of the son, and that the $1,000 never vested in the son.
    When, in an action brought for the construction of a will by the executor, the court finds that it was not a proper case to apply to the court therefor; that the plaintiff has used the funds of the estate in his individual business; and refuses to find that plaintiff acted in good faith, or was ready and willing to pay oyer the funds to the persons who might be entitled thereto; held, that plaintiff was properly charged personally with costs, and five per cent additional costs.
    Appeal from a judgment entered upon the decision of a justice at Special Term, giving a construction to the will of Granville Rockefeller, deceased, and giving judgment against the plaintiff personally, for $1,071.33, with costs. The action was brought to obtain a judicial construction of the following clause of the will of the plaintiff’s testator, who died April 2, 1870 :
    “ To Philip Eugene Rockefeller I give and hereby direct my executor to pay the interest of $1,000 to said Philip Eugene yearly, for the term of five years; commencing at my decease, that, at the expiration of the said five years, if the said Philip Eugene .shall have then reformed, become temperate in his habits, honest, industrious and a respectable man, then, and in that case, I order and direct that my executor pay to him the said $1,000 in three equal annual payments; hut if, at that time, he be not reformed, and is still intemperate or dishonest, then I direct and it is my will that my executor pay him the interest on the said $1,000 annually for three years thereafter; I further order and duly constitute my executor the sole and proper judge of the reformation and conduct of the said Philip Eugene; and at the expiration of said five years pay him as above stated the $1,000 in the manner there stated, if he be satisfied that the reformation answers the above requirements, but if, in his judgment, it should fail, in that case pay the three years’ additional interest as above stated, and divide the said $1,000 equally among my other three children or their heirs.”
    The justice at Special Term found, among other things, that the plaintiff had appropriated and used in his personal business the said $1,000, paying the interest of $1,000 from year to year to Philip Eugene.
    That the defendants were entitled, to recover of the plaintiff $1,000, less $75.26, paid for funeral expenses of the said Eugene, who died August 23, 1872, i. e., $924.80 with compound interest thereon to be computed with periodical rests biennially, amounting in the whole to the sum of $1,071.33, together with costs and disbursements and five per cent upon the recovery as additional costs. From the judgment entered in such proceedings, the plaintiff appealed to this court.

      Ma/yJiam <& Krum, for the appellant.

      N. P. PLinmam,, for the respondents.
   Landon, J.:

The testator only gave the interest of $1,000 to Philip E, Rocke feller; this was to continue for five years; if Philip should then have reformed the principal was to he paid him; if he had not reformed, the interest was to be paid him for three years longer, and then the principal was to be given to these-defendants.

As Philip died within the five years without having reformed, the condition precedent upon which the gift of the principal to Philip depended, did not, and could not happen, and the gift of the principal never vested in Philip E. That is to say, no gift of it was made to him. The bequest of the same over to these defendants took effect, and they became entitled to the money. The five years during which the executor was to pay Philip E. the interest, was a probationary period given him in which to reform. It is reasonable to suppose that the testator intended this probationary period should end with the life of the party whose reform was desired, and the payment of interest should also end. Mo testator can, by implication, be held so stupid as to have intended that his executors should hold funds in suspense, contingent upon the reformation of a person after his decease. The court was right in giving judgment in favor of the defendants. The learned judge, however, refused to find that this was a proper case for the plaintiff to apply to this court for a construction of this will. He found that the plaintiff had used the principal sum in his business. He refused to find that he was entirely responsible and ready and willing to pay the $1,000 over to the persons who might be adjudged entitled to the same, and refused to find that the plaintiff acted in good faith in bringing this action. He charged him personally with the costs, granted five per cent additional allowance of costs, and charged him interest compounded, with biennial rests. We have carefully examined the case, and think the learned judge was warranted in the view he took of the plaintiff’s conduct, and was therefore warranted in the j udgment he awarded. The effect of the finding is, that the plaintiff did not bring this action for the purpose of ascertaining who were entitled to the fund, but for the purpose of preventing those lawfully entitled to it from promptly obtaining their own; that he might himself continue to use a fund he had no right to use at all; that he preferred to waste the fund in costs rather than pay it to its rightful owner; that any day of payment was inconvenient, and therefore unjustly sought to be postponed.

The judgment should be affirmed, with costs against the plaintiff personally.

Present — Bookes, P. J., Countryman and Landon, JJ.

Countryman, J. dissented.

Judgment affirmed, with costs..

       Caw v. Robertson, 1 Seld., 125.

       2 Wms. Exrs. (5th ed.), 1132.


author: Land on, J.:

text:
    BENAJAH TODD, Plaintiff, v. DYER TODD, Defendant.

      Motion for nonsuit—effect of when followed ly verdict directed for plaintiff—Commissioners of highways—delegation of a/wlhority to sign order laying out highwa/y — Estoppel. .
    When the defendant at the close of the. whole evidence makes an unavailing ■motion for a nonsuit, which is followed by a direction from the court to find a verdict for the plaintiff, and no request is made by the defendant to submit any question of fact to the jury, the defendant is held to have admitted that only questions of law are involved. If the defendant does not move for a nonsuit or verdict, and judgment is directed for the plaintiff, the rule is otherwise.
    One commissioner of highways cannot, while the survey is incomplete, give authority to his associate commissioner to sign his name to the order laying out the road in his absence, and when the survey shall be completed. Whether, had he remained, his name could have been signed by another in his presence and by his direction, qumre.

    A recital in an instrument of release of damages arising from laying out a highway, that such highway had been laid-out by three commissioners, does not estop one who signed it mistakingly, supposing that such commissioners would act lawfully, in an action brought by him for trespass upon the locus in quo, in which action the opposite party, by his own proof, shows that such recital is false.
    Motion for a new trial, on exceptions ordered to he heard in the first instance at the General Term. The action was brought for alleged trespass upon lands of the plaintiff. The defendant set up as a defense, that the locus in quo was a public highway, laid out and opened by the commissioners of highways, and released to the public or town, and that it had been dedicated to the public by the plaintiff.

      A. Schoonmalcer, Jr., for the plaintiff.

      Wm. Lounsbery, for the defendant.
   Land on, J.:

The defendant attempted to show that the locus in quo was a public highway. If so, his acts constituting the alleged trespass, were lawfully done; otherwise, not. He claimed that the commissioners of highways had, the previous year, duly laid out, pursuant to statute, a public highway through the lands of the plaintiff, embracing the locus in quo. At the close of the testimony the defendant moved for a nonsuit, which was denied. The court then directed a verdict for the plaintiff. Exceptions to the ruling of the court were taken by the defendant, but no request was made to submit any question of fact to the jury. The authorities are to the effect, that when the defendant, at the close of the whole evidence, makes an unavailing motion for a nonsuit, which is followed by a direction from the court to find a verdict for the plaintiff, and no request is made by the defendant to submit any question of fact to the jury, the defendant shall be held to have admitted that questions of law, only, were involved, If the defendant does not move for a nonsuit or verdict,- and judgment is directed for the plaintiff!, the rule is otherwise, It follows, therefore, that if the facts proved will admit of a finding sustaining the direction made by the court, the defendant is concluded by it. This view would be fatal to the defendant’s case, for the evidence would undoubtedly support a finding that no order in the form prescribed by the statute was made. But stating the case in the strongest possible aspect for the defendant, and we have these facts: Upon a written application of the plaintiff to lay out a public highway through his own and lands of others, the three commissioners of highways of the town of Hardenbergh, duly met to consider the application ; they determined to lay out the highway, and orally expressed that determination; they employed a surveyor who proceeded to make a survey of the proposed road; and two of the commissioners were present during the first day of the survey. The survey occupied two days. At the close of the first day, Todd, one of the commissioners, told Commissioner Scudder to sign his name to the order laying out the road, and to any other necessary papers. Commissioner Todd then left, and did not return. The survey was completed the following day. An order was drawn, referring to the survey, and purporting to lay out the highway therein described. Commissioner Scudder signed his own name to the order, and in pursuance of the direction given by Commissioner Todd, signed his name" also. The third commissioner never signed the order, and was not present when it was signed by Commissioner Scudder. The order was never recorded, and was probably lost by the commissioner who signed it. The application and survey were recorded with the town clerk.

The learned judge, at circuit, held the order void, and that the absent commissioner could not delegate his official duty and power to his associate. We think he was right. The absent commis- • sioner could not act by proxy. The statute says, if the commissioners “shall determine to lay out such highway, they shall .make out and subscribe a certificate of such determination.” Two could perform this duty, the whole having been notified to attend, It was a personal trust, involving judgment and discretion. Had the absent commissioner remained until the order was drawn, his name, perhaps, might have been signed to it by another, in his presence and by his direction ; but when he gave the direction to his associate to sign for him, the survey was incomplete, and the order not drawn. He performed part of a joint duty, and then abandoned it to be finished by his associate. The law contemplates that the commissioner who was present and did sign the order, should give to the trust reposed in him his best judgment and discretion. He could give these for himself only, and certainly none, for his associate. To sustain this order is to countenance a lax performance of official duty, unsafe in its tendencies, and, we think, not only unsupported by authority, but in conflict with it.

But it is urged that the plaintiff is estopped from denying that the highway was legally laid out, because, upon the same date that the commissioner signed the order, the plaintiff, with others, signed a paper reciting that a highway had been laid out by three commissioners, and releasing damages on account of laying out the same. This paper, standing alone, is wholly insufficient to establish, as against the plaintiff, that the particular highway was laid out, and recourse is made by the defendant to the order above referred to. That order, as shown above, is void. Sow, as by the defendant’s own proof, the fact appears that the recital is false, the plaintiff is not estopped by the recital from availing himself of the truth, as the defendant shows it to be. Besides, the paper was manifestly signed in the expectation that the commissioners would lawfully lay out the road. As they laid out none, it is difficult to see how the plaintiff is estopped by mistakenly supposing they would, The plaintiff should have judgment upon the verdict.

Present — Bocees, P. J., Countryman and Landon, JJ.

Hew trial denied, and judgment ordered for the plaintiff, with costs.

       1 R. S., 514; § 63.

       Barnes v. Perine, 2 Kern., 18; Winchell v. Hicks. 18 N. Y., 558; O’Heill v. James, 43 id., 85.

       Stone v. Flower, 47 N. Y., 566; Frecking v. Rolland, 53 id., 422, 424.

      1 R. S., 514, § 63.

         1 R. S., 485, § 125.

         Reno v. Pinder, 20 N. Y., 298.

       Powell v. Tuttle, 3 Comst,, 396; Olmsted v. Elder, 1 Seld., 144; The People v. Smith, 45 N. Y., 772; The People v. Williams, 36 id., 441.

       Sinclair v. Jackson, 8 Cow., 543, 587; Warren v. Leland, 3 Barb., 613.

       Matter of Sharp, 1 N. Y. S. C. Rep., 427; aff’d, Court of Appeals.


author: Laudos, J.:.

text:
    SAMUEL J. TAYLOR, Appellant, v. AMOS S. SCOVILLE, Respondent.

      Cont/ract—fra/udulent representations — right of party decerned to rescind cont/ract.

    The plaintiff, relying upon representations made to him by the defendant, that • he was the owner of a farm worth $7,000, and of other property, entered into an agreement to work for him for eight months, at twenty dollars a month. After working for two months, plaintiff discovered that defendant’s wife was the owner of the farm, although the defendant owned personal property upon it worth more than $1,000 and was out of debt. Retd, that the plaintiff was entitled to rescind the contract and recover for what he had done under it.
    Appeal from a judgment of the County Court, in favor of the defendant, entered upon the verdict of a jury.

      E. D. Harris, for the appellant.
    ■ L. Varney, for the respondent.
   Laudos, J.:.

When this ease was before this court ,on a former appeal, it had been tried as an action to recover damages on account of the defendant’s fraud. The judgment obtained by the plaintiff was properly reversed, because the court below had, in substance, charged the jury that the plaintiff could recover upon the fraud of the defendant, without showing himself injured thereby. That is to say, not because the plaintiff had sustained damage, but because the defendant had done wrong. The action has been retried, resulting in a judgment in favor of the defendant, from which the plaintiff appeals. The County Court, upon the retrial, treated the action as founded upon contract. Such it manifestly is. The complaint states no cause of action, unless it is for services rendered upon contract. The case may be examined .upon its merits. The plaintiff agreed with the defendant to work for him, as a farm laborer, for twenty dollars per month. The plaintiff testified that, at the time of the hiring, the parties were strangers to each other, and the defendant represented to the plaintiff that he had a farm worth $7,000, and other property. Plaintiff also testified that he would not have entered into the defendant’s employment but for this representation that he owned the farm. He worked for the defendant for two months, then discovered that the defendant’s wife owned the farm, quit work, and sued for his wages.

The defendant denied making any such representation; testified that the plaintiff agreed to work eight months; that though he did not own the farm, he owned the personal property upon it, of the value of more than $1,000, and was out of debt.

How, if the plaintiff swore to the truth, the defendant made to him a material misrepresentation, largely affecting his credit. If defendant’s representations were true, the plaintiff would be reasonably sure of receiving payment for his eight months’ labor. When they proved to be false, he had no reasonable or sufficient surety. For the man who is in the position to interpose his wife’s title as a shield against the payment of his honest debts, is in a position to defraud his workmen, at least to excite their distrust. Fraud vitiates the contract which it taints, and the plaintiff, upon discovery, had the right to rescind it, and recover for what he had done. The defendant could not insist upon his full performance as a condition precedent to recovery, for that would enable him to take advantage of his own wrong. The fraud of defendant does not constitute the ground of recovery, but does excuse the plaintiff’s further performance. If the contract had been fully executed by the plaintiff" before discovery of the fraud, the fraud would have been immaterial, unless he could show damages resulting from it. But while a contract remains executory, in whole or in part, the discovery of the fraud gives the innocent party the right to rescind it. One may not récover for the fraud which has not harmed him, but when he detects it he may avoid further risk from it. That he has not been hurt in the past, imposes no obligation for the future. It is obvious that every man has the right to judge for himself, upon what risk or credit he will part with his time, his labor, or his property; and if he is induced to agree to part with them upon a material misrepresentation as to the character of that risk or credit, no court of equity will decree specific performance, and no court of law should punish for non-performance. But such punishment was administered to this plaintiff. The court charged the jury, “if the defendant tells the truth in regard to his property, then it affirmatively appears that at that time he was solvent, and that no injury arose to the plaintiff, although the defendant did not own the farm as he stated, but had personal property enough to pay the debt.” The plaintiff duly excepted to this and other portions of the charge, and to refusals to charge, in which the principle we have discussed is involved.-

The judgment should be reversed and a new trial ordered, costs to abide the event.

Present — Bookes, P. J., Couhtetmaií and Laotdon, J'J.

■ Bookes, P. J., dissented.

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

       54 Barb., 34.


author: Landoh, J.:

text:
    THE PEOPLE ex rel. POLLY MURPHY, v. S. C. LOCKWOOD, Justice of the Peace.

      Summary proceedings—e&i'tiora/ri to review—what brought up by—Evidence.

    A certiorari, to review summary proceedings, had before a justice of the peace to remove a tenant, brings up any question of law arising either in the proceeding or upon the trial, and enough of the evidence to enable the court to determine whether the relation of landlord and tenant existed between the parties. Upon the trial before the justice, evidence was given in behalf of the plaintiff, tending to show that the relator entered into possession of the premises by the permission of the plaintiff, and upon the agreement that she would go out when requested. This was denied by the relator, who claimed to have entered in the right of her children, as the heirs of her deceased husband; upon the trial she offered to prove that the plaintiff gave her the premises in consideration of services rendered by her to him, which evidence was excluded. Eeld, that its exclusion was error.
    Cebtiobabi to review summary proceedings had before the. respondent to recover possession of certain real estate, alleged to be occupied by the relator as the tenant of one Timothy Murphy.

      Geo. Adee, for the relator.

      W. Gleason, for the defendant.
   Landoh, J.:

This is a statutory writ of certiorari, to review summary proceedings had before a justice of the peace, to remove the relator, an alleged tenant of one - Timothy Murphy, the plaintiff below. This statutory writ brings up for review any question of law arising either in the proceedings or upon the trial, and enough of the evidence to enable this court to determine whether the relation of landlord and tenant existed between the parties. These summary proceedings can only be had where the conventional relation of landlord and tenant, by agreement, exists between the parties, In this case the relator, by her answer before the justice, denied that she was the tenant of the plaintiff, and alleged that she was the owner of the premises. The main question litigated before the justice, was, whether such a relation existed. Timothy Murphy resides in California, and has since 1854. His agent, David Taylor, testified that, in 1859, the relator moved into the house; “she came to my house and asked me to let her come back into the house she now occupies. I told her I did not know as I had any right to let her in, as I had had trouble with her to get her out before. * * * I told her if she would leave at any time I wanted her to, without any trouble, I would let her in until I heard from Timothy Murphy. She said she would. She went in, and I wrote to Timothy Murphy and got an answer which I communicated to her.” The answer was, “You can let Polly stay on the place till I come back if you are a mind to.” Timothy has not yet come back. The relator denied that she went into possession of the premises under the circumstances, above detailed, but in the right of her children as the heirs of Charles Murphy her deceased husband. The plaintiff below, for the purpose of showing title in himself, gave in evidence a deed from Abram Becker to himself of the premises in question, of a date prior to the alleged hiring. This deed recited that Charles Murphy was in possession under a contract of purchase, and that the premises were' conveyed to the defendant subject to that contract. How if the contract testified to by David Taylor should be accepted as the absolute truth, the relator could not avail herself of the recitals in the deed. Having entered into possession under the plaintiff, she must first surrender that possession before she can dispute his title. But in support of her denial that she had entered into possession in the manner claimed, she had the right to invoke the aid of the recitals in the deed, and to fortify her denial by any other material evidence. She offered to prove that the plaintiff gave her the premises in consideration of services rendered by her for him in bringing up his children. This evidence tended to show that her possession was not of the character alleged by the plaintiff’s agent. She had the right to acquire any outstanding title in support of her own. And even if she had made the agreement sworn to by the agent, she had the right subsequently to make and substitute another agreement with the plaintiff for it. We think the justice erred in excluding the evidence. The justice also erred in receiving in evidence, against the relator’s objection, a letter written by the plaintiff to his agent shortly before this proceeding was commenced. This letter was simply the plaintiff’s declaration in his favor. The fact that the agent of the plaintiff read it to the relator to whom it was not addressed, made it none the less so. The relator made no remark when the letter was read to her, nor was she called upon to make any. The judgment of the justice should be reversed, but as it is not clear to us that the relator is entitled to the' possession of the premises, restitution is not awarded nor costs given, but the relator is left to her action under the statute, or such other remedy as she may be advised to pursue.

Present ■— Bocees, P. J., Countryman and Landon, JJ.

Proceedings and judgment reversed, without costs.

       People v. Hamilton, 89 N. Y., 107.

       Benjamin v. Benjamin, 1 Seld., 383; People v. Simpson, 28 N. Y., 55

       Jackson v. Spear, 7 Wend., 401; Kenada v. Gardner, 3 Barb., 589; Hill v. Hill, 4 id., 419.


author: Hardin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES E. BELLER, v. JAMES H. WRIGHT and others, THE BOARD OF COMMISSIONERS OF EXCISE OF THE VILLAGE OF DELHI.

      Board of excise—power to revolee licenses—sec. 4 of chap. 549 of 1873—power to administer oaths.

    Under section 4 of chapter 549, Laws of 1873, authorizing the board of excise to revoke the license granted to any person if they should become satisfied that he has violated any of the provision of the act, the licensee is not entitled to a trial by jury.
    Upon the hearing before the board, the witnesses on the part of the complainants were examined under oath, against the objection of the relator, who did not, however, ask that any person.be examined in his behalf, either with or without oath. Held, that, even if the board had no power to administer oaths, still, as the information was before them, and satisfied them that the relator had violated the law, it was their duty to revoke his license.

      Semble that the board had power to administer oaths under the provision authorizing them to examine witnesses under oath.
    Certiorari to the hoard of commissioners of excise of the village of Delhi, Delaware county, to bring up the proceedings had in May, 1874, to cancel, vacate and annul the license of the relator taken by him 28th October, 1873, authorizing him to sell ale or beer, in pursuance of section 4, of chapter 850, of Laws of 1869. The relator received a license authorizing him to sell ale or. beer after the passage of chapter 549, of the Laws of 1873, amending the Laws of 1857. It appears by the return, that on the 4th of May, 1874, a complaint signed by four residents of the said village, was presente.d to the board of commissioners of excise and filed. The board immediately issued a summons, requiring Beller to show cause why his license should not be revoked, canceled and annulled, in accordance with section 8, of chapter 549 of Laws of 1873. The summons being personally served on Beller, he, on the same day, appeared before the board and objected to the complaint, on the ground that it was indefinite and uncertain; that it did not point out or specify, with sufficient accuracy and certainty, the date and manner of violation of the license, to enable the party complained of, to properly and safely answer the complaint. These objections, after hearing counsel, were by the board then and there overruled. The defendant excepted, and then denied the complaint, and set up his license, issued by the board, authorizing him to sell ale or beer, and that he was protected by the license. The license was then presented to the board by the relator, and was examined and read. By consent of parties, the further hearing was adjourned to May 18, 1874, at nine o’clock a. m., and subpoenas issued to each party. The board met, pursuant to adjournment, on the 18th of May, 1874. After several objections to the right of the board to proceed were heard and overruled, Alexander Shaw was examined for complainants, and Beller “ objected to the board administering oaths to complainants’ witnesses.” The objection was overruled, and the chairman administered oaths to all witnesses. Several witnesses were examined, and they stated that the relator had sold strong and spirituous liquors at his place of business, on divers days between the date of the license and the day of the complaint. The relator did not, upon such inquiry, give any evidence, nor deny the evidence and statements made by the witnesses inquired of by the complainants before said board. The board, after the close of the arguments of the respective counsel of the board and the relator, determined to revoke cancel -and annul the said license. The board adjourned to the nineteenth of May, at which time it re-assembled and made an order canceling and revoking the license, and served the same personally upon the relator, and demanded the surrender of his said license, with which demand he refused to comply.

      Youmams dc Niles, for the relator.

      Samuel Yeomans, for the defendant.
   Hardin, J.:

The relator was not entitled to a trial by juiy. The statute under which he received his license, expressly authorizes and empowers the board of excise, when they shall become satisfied that any such person or persons has or have violated any of the provisions of the act, to revoke, cancel and annul the license of such persons.” The license was merely a permit given to the relator, under which he was authorized to sell ale or beer. It did not give him any property or vested right to enjoy the privileges thereof beyond the time when the board should become satisfied that he had violated any of the provisions of the acts of 1857,1869, 1870 or 1873. The board had no power to inflict a penalty upon him for violation of the law. They were simply authorized to revoke the permit theretofore given him in respect to ale or beer. In The Metropolitan Board of Excise v. Barrie, Judge Weight says: These licenses to sell liquors are not contracts between the State and the persons licensed, giving the latter vested rights, protected on general principles and by the Constitution of the United States against subsequent legislation; nor are they property in any legal or constitutional sense. * * * * They form a portion of the internal police system of the State,” etc.

The board, in issuing licenses and in revoking them, are clothed with power to be exercised in their discretion. In Ex parte Persons, it was held that their discretion was full and ample, and one the court will in no case attempt to control.”

In People v. Norton, Willard, J., says: Justices, in granting, or refusing licenses, under the excise law, do not act solely as judicial officers. They have indeed a discretion to exercise which this court will not control by mandamus.”

In People v. Jones, Allen, J., says: The commissioners cannot be coerced in the exercise of their discretion by mandamus or otherwise, and for a mere mistake are not liable either civilly or criminally.”

The relator objected to the power of the board to administer oaths to the witnesses produced, and the objection was overruled and the relator excepted. But he did not himself ask to have any witness examined, either with or without oaths, in his behalf. The statements made by the complainant and by the witnesses produced, were before the board, and were to the effect that the relator had violated the provisions of the law under which the license was issued, and the board upon this became satisfied that the relator had violated the provisions of the act, and therefore revoked their license to him. If it be conceded that the board had no power to administer oaths, still this information was before them, and satisfied them that the relator had violated the law, and it therefore became their duty to revoke his license. The counsel for the relator referred us to Berrien v. Westervelt, where proceedings in replevin were set aside because the commissioners had no power to take an affidavit. There the statute forbade the issuing of a writ without an affidavit, and Justice Sutherland very properly remarked: the compliance with the statute is in the nature of a condition precedent.” The statute now under consideration simply permits, upon demand of the board or the party complained of, the board to call in witnesses, and have them examined under oath. Confessedly, it was competent for the relator to waive, as he did, his right to have witnesses examined, as it is well settled that a party may waive a statutory provision made for his benefit. The board being satisfied, to exercise their discretion in respect to revoking licenses, that a violation of the law had taken place, were not required to take the formal proceedings and full evidence which might be proper and necessary to reach a judicial conclusion, which should work a deprivation of property or produce and interference with life or liberty. They were simply to become satisfied in their judgment, and then this right, as well as duty, to revoke the permit which had been given the relator, was clear. They were simply recalling the permit which the relator had obtained and held from the board, and which he accepted upon the condition that the board might, in their discretion, revoke. As before seen by the authorities cited, the giving of such a license depended upon the discretion of the board; so, too, the revocation was authorized the moment they became satisfied that the relator had been a violater of the law under which he took the permit. We also think the power to administer oaths may be fairly implied from the section authorizing them to examine witnesses under oath. The. proceedings must be affirmed, with costs.

Present—-Bocees, P. J., Hardin and Countryman, JJ.

Proceedings affirmed, with costs.

       Section 4, Laws of 1873; 3 Kernan, 378; The M. Board v. Barrie, 34 N. Y., 657.

       34 N. Y., 657-667.

       1 Hill, 655.

       7 Barb., 477.

       54 Barb., 315.

         12 Wend., 194.


text:
    MELVIN D. WOODFORD, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Indictment fot' mmi—when turning of several buildings may he alleged in sarnie count — duplicity—Evidence.

    Where a house was set on fire by the plaintiff in error, and by the fire thus started by him, thirty-five houses were destroyed, held, that he was properly indicted for one offense, and that, if the destruction of every house amounted to the same degree of arson, the indictment need contain but one count, charging the burning of the thirty-five houses.
    The counsel for the plaintiff in error insisted that the indictment was void for duplicity, upon the ground that it did not state that there was a human being in each house, but in one only, and therefore joined in one count the offenses of arson in the first, and in the third degree. Upon the trial the people abandoned all claim to convict, except as to one specific house, and the judge charged the jury, that they must find the prisoner guilty of setting-fire to that house or acquit him. Held, that the error in the indictment, if any, was cured by the waiver on the part of the people and the charge of the judge.
    The indictment charged the prisoner with setting fire to the dwelling-houses of certain persons, naming them, and of divers other persons to the jurors unknown, “ there being then and there within the said dwelling-houses some human being.” Held, that the indictment sufficiently alleged the presence of a human being in each house.

      A few hours before the commencement of the fire in question, a hay barn, situated in the same village, was burned. Upon the trial evidence was received, against the objection and exception of the prisoner, showing that he was seen in the vicinity of the barn shortly before and after it was burned. Held, that the evidence was properly admitted.
    The occupant of the house, for the burning of which the plaintiff in error was convicted, was aroused by the alarm before the fire had reached her house; instead of leaving at once she remained a few moments to collect her things, when the fire caught her house. Held, that the prisoner was properly convicted of arson in the first degree.
    Weit of error to the Court of Oyer and Terminer of Madison county, to review the conviction of the plaintiff in error of arson in the first degree. The plaintiff in error was tried and convicted of arson in the first degree, in setting fire to certain dwelling-houses in the village of Canastota. The first count of the indictment charged that the plaintiff in error and one Stone, “ on the twenty-seventh day of October, in the year of our Lord one thousand eight hundred and seventy-three," at the town of Lenox in the county of Madison, aforesaid, with force and arms, in the night time of the said day, certain dwelling-houses, the property of the'several persons hereinafter named and set forth, to wit: One belonging to Eliza A. Perry, two belonging to Elizabeth Young, one belonging to Mary H. Parker, one belonging to John H. Johnson, one belonging to Matthew Worth, one belonging to Alvin Wells, one belonging to a Mrs. Fay, one belonging to Friend A. Andrews, one belonging to Mrs. John Montross, one belonging to Mrs. Delano, one belonging to David H. Rasbach, and others belonging to divers persons to the jurors unknown, in all about thirty-five dwelling-houses then and there situate (there being then and there within the said dwelling-houses some human being), feloniously, willfully and maliciously did set fire to, against the form of the statute in such case made and provided, and against the peace of the people of the State of Mew York and their dignity.
    The second count charged, “ That William A. Stone and Melvin D. Woodford, afterwards, to wit: on the day and in the year aforesaid, at the town of Lenox, in the county of Madison aforesaid, with force and arms, .in the night time of the said day, certain dwelling-houses of divers persons and individuals and people to the jury unknown, and particularly a certain dwelling-house of Eliza A. Perry, one dwelling-house belong to Mary H. Parker, one dwelling-house of David H. Rasbach, and one dwelling-house of Carrie Bond, one dwelling-house known as the Beecher block in Canastota, H. Y., then and there situate, there being then and there within the said dwelling-houses some human being, feloniously, willfully and maliciously did burn, against the form of the statute in such case made and provided, and against the peace of the people of the State of Hew York and their dignity.”

      Wm. James, for the plaintiff in error.

      G. A. Forbes, district attorney, for the defendants in error.
   Landon, J.:

The prisoner committed but one act, and its consequences were the destruction of thirty-five dwelling-houses. We think it was proper to indict him as for one offense, and, provided the destruction of every house amounted to, the same degree of arson, the indictment need contain but one count. He should be held to have intended the natural and probable consequences of his wicked act. The wrong done, was done by him, and it was done with a malicious intent. That intent may not have originally embraced all the mischief he produced, and it may have embraced more. The malicious intent being granted, its extent must be gathered from the result, and, in the absence of evidehce to the contrary, be held commensurate with it. Ho man can shelter himself from punishment upon the ground that the mischief he did was wider than he intended, If the description of his crime embraced thirty-five houses, it was because he destroyed so many. If the multitude confused him, he caused the multitude. The people were not obliged to rest with one, since the prisoner had not. The objection to the indictment for duplicity, in charging the burning of thirty-five houses, was therefore not well taken. For the same reason, the people had the right to give evidence as to the burning of all of them. Regarding the entire fire as one transaction, the burning, condition, situation and occupancy of the several houses, were simply matters of detail. When, at the close of the evidence, the people elected to proceed as to the burning of one house only, waiving all right to convict as to any of the others, they threw away thirty-four chances of conviction, which, assuming the indictment to be correctly framed as to every house, they had the right to hold and urge against the prisoner. It is difficult to see how the prisoner was harmed by it. His counsel did not except. What he assented to then, he cannot urge as error now.

The prisoner’s counsel further urged upon motion to quash the indictment, and in arrest of judgment after conviction, that the indictment was void for duplicity, upon the alleged ground that it did not state that there was some human being in each one of the dwelling-houses, but in one only, and therefore charged in each count the separate offenses of arson in the first, and in the third degree. If the indictment does allege that there was a human being in some of the houses, and does not allege it as to all, then the indictment is obnoxious to the objection. The first degree of arson requires the presence of some human being in the dwelling-house at the time the prisoner sets fire to or burns it; the third degree does not. These two degrees of arson, being two distinct statutory crimes of different grades of punishment, cannot be united in one count. The reason of the rule is, that if the jury are permitted to find a general verdict of guilty upon such a count, the verdict condemns the prisoner for the higher offense charged in it, when the fact might be that the jury only thought him guilty of the lesser crime ; and also because some might find him guilty of one, and some of the other offense, and all agree upon neither, in which case he should not be convicted at all. We state the reason of the rule, to show that the rule itself, is without application in the present case. The people withdrew all claim to convict except with regard to the single house of Mary H. Parker. The judge distinctly told the jury that they must find the prisoner guilty of setting fire to that house, or acquit him; with this waiver by the people, and this charge by the court, it was of no moment to the prisoner whether the indictment improperly joined other offenses with the one upon which only he was to be judged. If the allegations as to the others were erroneous, the errors were removed by the withdrawal of the charges.

The question was distinctly raised by the prisoner’s counsel in his requests to charge and exceptions to refusals to charge, whether the indictment charges the prisoner with arson in the first degree in setting fire to the house of Mary H. Parker. If it does not, then the prisoner has been convicted of a crime with which he was not charged, and the conviction cannot be sustained. The point of this objection is, that the indictment does not specifically charge that at the time the prisoner set fire to her house, there was some human being in it. Arson in the first degree, as described by the statute, consists of “ willfully setting fire to, or burning, in the night time, a dwelling-house in which there shall be, at the time, some human being.” The indictment in the first count charges the pris-oner with setting fire to the dwelling-house of Mary H. Parker, and the dwelling-house of several others, naming some, and describing others as “ divers persons to the jurors unknown,” and then uses these words : there being then and there within the said dwelling-houses some human being.” The second count used the same words to charge the presence of a human being at the time the houses were burned. Is it a fair construction of these words to say, that they do not charge the presence of a human being in' each of the dwelling-houses, but only charge the presence of one human being in some one of the multitude ? The prisoner had the right to know, at and before the trial, whether the indictment charged the fact to be, that there was a human being in the dwelling-house of Mary H. Parker. If it did, he had to meet a charge placing his liberty for 'life in peril; if it did not, then only for a short term of years. The indictment uses the precise words of the statute, and while it may be justly charged that the language employed is not explicit, we are sure that no one can read the indictment, without being convinced that it was the intent of the pleader to charge the presence of a human being in each of the dwelling-houses specified therein. We think it a fair construction of the words employed, to hold that they do so charge. This objection therefore fails.

Evidence was given by the people, under objection, showing the conduct and whereabouts of the prisoner for several hours preceding the fire. A hay barn was burned in the same village about three hours previous to the fire in question, and the prisoner was shown to have been seen in its vicinity shortly before and after the fire broke out. Had there been no burning of the hay barn, it would not be doubted that evidence might properly be given, showing the whereabouts and conduct of the prisoner shortly before the fire in question, especially if it bore upon his opportunity or guilty intent to do the act. This evidence seems to have been given with this view, and the judge in his charge cautioned the jury to give to it no other effect. We think the criticism of the prisoner’s counsel that proof of one offense was given in support of another is not warranted.

The prisoner’s counsel requested the court to charge that if the fire did not reach the house of Mary H. Parker until after she was aroused, and she had time to escape before the fire reached her house, and she neglected to do it, it is not arson in the first degree. Mrs. Parker testified that she was aroused from her sleep by the alarm; that the fire had not then reached her house; that she threw on her wrapper, and, instead of instantly leaving, remained about five minutes to pick up some of her things, when the fire caught her house. In view of these facts the judge properly refused the request. It would be requiring too much, to ask the inmates of an exposed house, to abandon -their shelter and property at the earliest moment, out of any sentimental regard for the fate of the incendiary. Arson is an offense against property. It is aggravated when, in addition to the destruction of property, human life is thereby in danger of destruction. Because a party may or does escape with his life, does not prove that it was not in peril. The statute has made the fact, that some human being is in the house at the time it is set fire to, the test of the peril, and draws no distinctions as to its imminency. Several other objections were taken which we think were properly disposed of by the learned justice upon the trial, and it is not necessary to discuss them. The conviction should be affirmed.

Present — Bookes, P. J., Landon and Countryman, JJ.

Conviction and judgment affirmed.

       Wharton Cr. Law, § 891.

         Roscoe Cr. Evidence, 271, 272.

      The People v. Wright, 9 Wend., 193; The People v. Reed, 1 Park., 481; Dawson v. The People, 25 N. Y., 399.

       People v. Butler, 16 John., 204; People v. Orcutt, 1 Park., 252.


author: Landon, J.: Countryman, J. (dissenting):

text:
    JOHN B. SIMPSON, Administrator, etc., of GEORGE B. SIMPSON, Deceased, Respondent, v. ALEXANDER McKAY and others, Appellants. ALEXANDER McKAY and ROBERT McKAY, Appellants, v. JOHN B. SIMPSON as Administrator, etc., and GEORGE McKAY, as Administrator, etc., of ANDREW McKAY, Deceased, Respondents.

      Decision—after twenty-one years—not reversed on technical grounds—party seeking review must establish error—Declarations of former owner of personal property— incompetent as to assignee.

    After the expiration of twenty-ono years from the making of a decision, the court will hesitate to reverse it for technical errors.
    In such case, where the party seeking a review of such decision, has first alleged its making in his complaint, and then, on affidavits stating that he could prove the contrary of the facts therein found, obtains leave of the court to strike such allegations out of his complaint, the burden rests upon him to show it to be erroneous. (Countryman, J., dissenting.)
    The declarations of a former owner of personal property áre incompetent evidence for any purpose as against all others except himself and his immediate representatives. (Countryman, J.)
    The first action was brought in the late Court of Chancery for the foreclosure of a mortgage, and the principal defense was that the plaintiff’s intestate was not the owner of it. Judgment directing an accounting and of foreclosure was directed, but no judgment or order was ever entered.
    The second action was a cross suit brought to obtain the allowance of certain set-offs and payments upon the mortgage, the com- . plaint therein alleging the decision made in the first action ; and issue was joined" therein. Thereafter a stipulation was made by the attorneys in both suits, and an order entered, that judgment should be entered in the first suit for the sum apparently due, “ to stand as security,” without prejudice to the continuing of that suit, so far as the accounting was concerned, and that both suits be heard and decided together.
    The trial took place before a referee who rejected evidence offered by the McKays, to show that the plaintiff’s intestate was not the owner of the mortgage, The McKays applied to Special Term for a modification of the order entered on the stipulation, so as to refer to the referee the issue as to the assignment of the mortgage. The Special Term struck out the allegations of the complaint in the cross suit, averring that the General Term had decreed the forech> sure, and that the mortgage had been assigned to the plaintiff’s intestate therein. The referee and parties thereafter acted upon the theory that the whole issues in each case were referred to the referee “ to hear and determine.” The referee affirmed the decision of the General Term on the main question, and rejected all the set-offs and payments which were attempted to be applied upon the judgment. From the judgment entered upon this report the McKays appealed. A very full statement of facts in this case appears in Judge Countryman’s dissenting opinion.

      E. W. Paige, for the appellants.

      Henry Smith, for the respondents.
   Landon, J.:

I am of opinion that the errors of the referee in the reception of evidence discussed by my brother Countryman, were immaterial for these reasons: It sufficiently appears from the opinion

of Justice Allen, that, in 1853, the General Term decided upon the evidence taken in the original action, that Andrew McKay did transfer and deliver the bond and mortgage to George B. Simpson. That although no formal judgment can be proved to have been entered to that effect, the McKays, plaintiffs in the cross action, by their complaint, whicli they verified in 1855, only two years after the decision was made, and when they and their counsel must have remembered the fact, not only admitted, but alleged the fact to be, that such decision had been made, and manifestly brought their cross action partly because it had been made. And, although, in 1861, forty-two years after George B. Simpson’s death, and upon discovering that such judgment could not be found, they obtained an order from the Special Term permitting them to strike such allegation from then- complaint, they procured such order upon affidavit that they could prove that such transfer had not been made; yet, under the circumstances, it seems to me just that such order should not be construed as opening the question of transfer further than to permit the McKays to make good their affirmation, to wit: that they could disprove the transfer; thus putting the burden upon them to impeach the decision of the General Term, which, upon the evidence, they must be held not to have done.

After the lapse of so many years from the decision of that General Term, it seems but just that Simpson should be permitted to invoke the repose of time upon its conclusiveness and freedom from technical errors. The learned counsel for the McKays insists that in some way they should be permitted to review that decision, and that they have never had the opportunity afforded them, until this appeal, to do so. Be that as it may, it seems to me that when the McKays, in 1855, commenced their cross action and swore to their complaint, they were willing to accept that decision as a finality. If they have since changed their minds, the change is too late. To review a finding twenty-one years after it is made, and reverse it for technical errors, is of very doubtful propriety.

I advise an affirmance of the judgment.

v

Countryman, J. (dissenting):

One-half of this action was originally commenced in the year 1843, to foreclose a mortgage of which the plaintiff’s intestate claimed to be the owner as pledgee or assignee. The principal defense interposed was that the mortgage had never been transferred, and was still the property of the mortgagee therein named. It was finally brought to a hearing upon the pleadings and proofs, at a General Term, held in January, 1852; and the court, after full consideration, delivering an elaborate opinion, and holding that the plaintiff was the owner of the mortgage, directed the usual judgment of foreclosure, with a reference under special instructions to compute the amount due. Both parties seem to have been equally amazed and paralyzed by the decision, and no order or judgment has ever been entered in pursuance thereof. However, in April, 1855, the defendants, apparently unaware that the Code of Procedure had then been in operation several years, under which the pleadings in the old suit should have been amended, if necessary, to present any new issue, commenced the other half of this action, to obtain the allowance of certain additional set-offs and payments upon the mortgage. Strange as it may seem, this proceeding was acquiesced in by the plaintiff in the old suit, and issues were joined therein, without objection, upon the merits. The new action was founded on the assumption that the decision in the old suit had finally'disposed of the question of the ownership of the mortgage and established the right of the plaintiff’s intestate therein to recover the amount due, and merely sought to reduce or extinguish the claim by payments or set-offs. Accordingly, in May, 1855, the attorneys made a stipulation in both suits, consenting that judgment might be entered in the foreclosure suit in favor of the plaintiff therein for the sum apparently due on the mortgage, with costs, “ to stand as security,” without prejudice to the continuation of that suit “ so far as the accounting was concerned,” and agreeing to have both suits heard and decided together ” by a referee, and whatever sum should be allowed on account of the claims for payments or set-offs, applied on the mortgage, with the right to the McKays to appeal from any judgment rendered in the suits. An order in both suits was subsequently entered in the General Term, in pursuance, and in all essential points following the language, of the stipulation; but no referee was named or appointed in the order, nor is there any other order of reference in the printed case. It is stated, however, preliminarily, that the “action came on for trial before D. M. Chadsey, Esq., the referee appointed to hear and determine the same,” on the 16th day of April, 1860; and the action (both suits) has been tried and determined by the referee, with the consent of the parties. The referee, during the early part of the trial, very properly rejected evidence, offered by the McKays to show that the plaintiff’s intestate was not the owner of the mortgage, holding that the question was not in issue before him under the pleadings and the foregoing stipulation and order of the General Term. In May, 1861, while the trial was progressing, the McKays, upon an application stating that they wére embarrassed by such rulings and the reasons given for them, in their efforts to prove the real ownership of the mortgage, a matter not in issue on the reference, moved, at a Special Term, to amend the order of the General Term, made in May, 1855, and entered upon the stipulation of the parties, “ so as to refer to the referee for hearing and decision, the issue in relation to the alleged assignment and hypothecation of the said mortgage; ” and also to strike out certain portions of their adversary’s plead-

ings, setting up the statute of limitations as a bar to their alleged payments and set-offs! The Special Term denied the relief desired, but did strike out an allegation of the complaint in the cross suit which had not been denied in the answer, avérring that the General Term had decreed, in the foreclosure suit, that the mortgage had been assigned to the plaintiff’s intestate ther.ein; and the learned judge, in disposing of the motion, wrote an advisory opinion suggesting that the order of the General Term did not conform to the stipulation, in which he was clearly in error, and intimating that all the issues in both suits were really before the referee. The parties and the referee, with one accord, seem to have accepted and acted upon this advice; and during the remainder of the trial, which lasted several years, the referee sat in review of the- General Term on the main issue involved in the foreclosure suit, as well as in hearing the other issues in the actions which had been ordered to be referred under the stipulation. The original decision of the General Term seems to have been practically abandoned, and the whole case, including the question of the ownership of the mortgage, has been considered and treated as referred to the referee “ to hear and determine,” and he has accordingly heard it and made his report, upon which judgment has finally been perfected, deciding the whole case de novo in, favor of the original plaintiff, thus affirming the decision of the General Term on the main question, and rejecting all the alleged payments and set-offs which were sought to be applied on the mortgage. It should be stated in this connection, that the judgment was originally entered on the referee’s report only in the cross suit, from which an appeal was taken to the General Term, which, in January, 1872, affirmed the judgment, holding that no errors had been committed relating to the issues in that suit, and declining to pass upon the other branch of the case as not before them. This judgment-, however, was subsequently set aside and the case re-opened to allow a new judgment to be properly entered on the report in both suits as one action, which was finally done with the approval of the court. The McKays have again appealed from this judgment, and now seek a reversal thereof for alleged errors committed on the trial, in the admission of evidence relating to the main issue of the ownership of the mortgage. The question is thus presented, whether that issue was really before the referee, and is therefore now the subject of review. The case has been fully tried, on both sides, on the theory that all the issues, including the question of ownership, had been duly referred to the referee “ to hear and determine,” and the judgment from which this appeal is taken is wholly founded upon the referee’s report, which contains his findings upon all these issues. No entry of record has ever been made of the original decision of the .General Term in 1852, nor is there any evidence of that decision in the case, except the opinion written by Mr. Justice Allen, and the incidental statements and admissions contained in the pleadings and testimony. Even the judgment of 1855, which was entered to stand as security,” entirely ignored the decision of the court, and was founded on the stipulation of the parties. But that judgment, as has already been held in this case, is of no importance in determining their legal rights. It is true that the written stipulation and order of 1855, contained in the printed case, properly construed, did not confer this power on the referee, nor did these papers even name the person who was to act as the referee. •In view of the facts, however, that the case has been fully tried before a referee recognized as such by the parties, who has assumed the right without objection to hear and determine all the issues, and that the judgment itself purports to be wholly founded on his report, it must be presumed on this appeal, in the absence of countervailing evidence, that an order of reference to hear and determine all the issues has been made in both suits, and the judgment must stand or fall with the report on which alone it is founded. It can receive no sanction or support from a decision or direction of the General Term which has never been entered of record, and with which it does not purport to have any connection. If the referee has been acting without authority in the case, a motion should have been made upon that ground to set aside his report and the judgment founded thereon..

This appeal therefore brings up for review all the exceptions to rulings of the referee upon all the issues in the case. I shall decline, however, to reconsider any of the questions which have once been passed upon in the General Term. This disposes of all the exceptions relating to the issues in the cross suit, as these were overruled at the January Term 1872, as appears from the opinion of Mr. Justice Parker delivered on that occasion. It also disposes of nearly all the exceptions relating to the issues in the foreclosure suit, as those were fully considered and overruled at the January Term 1852, as appears from the opinion of Mr. Justice Allen. There is, indeed, but one class of exceptions which do not seem to have been heretofore considered, and these relate to the admissibility of the declarations of Andrew McKay, the mortgagee, in favor of his assignee as against Alexander and Robert McKay, the present owners of the mortgaged premises, as devisees under the will of the mortgagor. The question arising upon these exceptions does not seem to have been raised or considered on any former occasion, and must, therefore, now be determined. Were such declarations competent evidence to prove the transfer of the mortgage to George B. Simpson, as against the owner of the mortgaged premises? Several witnesses were called on the trial; who were allowed under objections to testify to these declarations. Although Andrew McKay was himself examined as a witness at length, in reference to the alleged transfer and all the circumstances connected with the. original transaction, no foundation was laid- or attempted on his cross-examination for the introduction of these counter declarations, but they were invariably introduced as original evidehce as against all the parties. This was clearly erroneous and indefensible. The rule has been too often asserted in this State to require discussion, that the declarations of a former owner of personal property are incompetent evidence for any purpose as against all others, except himself and his immediate representatives; and among other special applications of the rule, such declarations have been held inadmissible to prove the title of the assignee to the property. The fact that Andrew was a party to the foreclosure suit, did not render his declarations admissible as against his co-defendants, It will of course be understood that this rule does not apply to such testimony as that of the witness Helen Steele, who testified to an original interview between Andrew and the assignee, in reference to the transfer of the mortgage. As the objectionable evidence had a direct bearing on the leading issue in the case, it cannot be said that it did not have a controlling influence on the decision of ihe referee, and the judgment should therefore be reversed and a new trial granted. The order of reference should be discharged, and if a new reference be agreed upon, it should be an absolute one to hear and determine all the issues.

Present—Bookes, P. J., Landon and Countryman, JJ.

Judgment affirmed, with costs.

       Simpson v. McKay, 3 Thomp. & Cook, 65.

       Simpson v. McKay, 3 Thomp. & Cook, 65, 70.

       Brown v. Mailler, 13 N. Y., 118; Worrall v. Parmelee, 1 id., 519; Hurd v. West, 7 Cow., 753; Smith v. Webb, 1 Barb., Sup. C. R., 231; Booth v. Swezey, 8 N. Y., 276; Paige v. Cagwin, 7 Hill, 361; Foster v. Beals, 21 N. Y., 247; Tousley v. Barry, 16 id., 497.

       Simmons v. Sisson, 26 N. Y., 264; Lewis v. Woodworth, 3 ,id., 512; Ogden v. Peters, 15 Barb., 560; Hammon v. Huntley, 4 Cow., 493.


author: Lahdost, J.:

text:
    ERASTUS MACK, Appellant, v. SARAH S. MACK, Executrix, etc., Respondent.

      (Gift from husband to wife—when redid—Assignments of judgments and mortgages need not be in writing.

    Under the laws of this State, a husband may make a valid gift to his wife when the rights of creditors are not affected thereby.
    An assignment of a judgment or of a mortgage need not be in writing.
    Appeal from a decree of the surrogate of Sullivan county, dismissing a petition to compel the defendant to file a supplemental inventory.
    The respondent is the widow of Jesse Mack, and the executrix of his last will and testament. As such .executrix she filed an inventory with the surrogate of Sullivan county, in which the assets of the estate were set down at the sum of §153.37.
    The appellant is an heir at law of the testator, and a legatee under his will. Upon proceedings instituted by the appellant before the surrogate to compel the executrix to file a supplemental inventory, he gave proof tending to show that, in addition to the assets inventoried, the testator, at the time of his death, was the owner of a judgment, and of notes, bonds and mortgages, of the value of about $4,000; and he asked that these be added to the inventory. The respondent admitted her possession of these securities, but claimed that the testator gave them to her and her daughter in his life time. The surrogate, upon the evidence, held the gift established, and dismissed the proceedings. Other facts are stated in the opinion.

      A. 0. Niven, for the appellant.

      A. C. Butts, for the respondent.
   Lahdost, J.:

Upon the argument, we were inclined to think that this was another scheme to hold a portion of a dead man’s estate, based upon the fact that the dead cannot deny what the living assert. But a careful examination of the evidence leads to the conviction that the alleged gift is clearly proved, and ought to be sustained. In 1845, the testator then of the age of fifty-seven, a widower, and the father of seven children, married the respondent, then of the age of twenty-three. He was at that time the owner of considerable real estate, and he divided nearly all of it, share and share alike, between his seven children, and began anew with his new wife. By dint of the industry and economy of both, a modest competency, after the lapse of twenty years, was again acquired. A daughter, Elizabeth, was born of the second marriage. The evidence clearly shows that, before making the alleged gift, the testator had frequently declared that he intended his wife and daughter Elizabeth should have what he had acquired since his second marriage. In 1865, seven years before his death, he took the notes and mortgages in question, handed them to his wife and said : “ There, take them, and take care of them, they are for you and Libby.” His wife then took them and put them away. After that she retained control of them, although the interest upon the securities was sometimes paid to her and sometimes to the testator. Finally, by her direction, they were placed by her daughter in the hands of a neighbor, for safe keeping, and they remained in his custody until the testator’s death. After the alleged gift, the testator frequently said to his friends and neighbors, that he had given, all his property to his wife and daughter; that his children by his first wife were well enough off; that his wife and daughter had helped him make what he had, and he had given it to them.

His will was made twenty-two years before his death. "We think the delivery of the property in question was clearly proved; and the intention to make a gift of it, by that delivery, also proved. These facts, within the authorities, constitute a valid gift inter vivos.

It is objected that, the husband cannot make a gift, valid in law, to his wife. Equity has always sustained such gifts when the claims of creditors were not affected, and when the gifts were clearly proved, The reason why such gifts have been held invalid in law, seems to have been derived from the common law idea that the husband and wife are one, and that her personal property becomes his by virtue of the marriage relation. So far as property is concerned, this rule no longer prevails in this State. The wife now holds her separate estate, and the unity of the husband and wife does not, in law, create a union of her property with his. The maxim, ratione ocssante lex cessat, doubtless, applies. A man usually bestows his bounty where he places his affections, and public policy does not require that the right to do so should be abridged. There is no good reason why the law should permit a gift to a stranger, and deny it to a wife. It is now, undoubtedly, the law of our State, that a husband may make a valid gift to his wife, the claims of creditors not intervening. The objection that the judgment and mortgages were not assigned in writing, we think not well taken,

The order of the surrogate should be affirmed, with costs.

Present — Countryman and Landon, JJ.

Bookes, P. J., took no part.

Order affirmed, with costs.

       Westerlo v. De Witt, 36 N. Y., 346; Doty v. Willson, 47 id., 583; Van Deusen v. Rowley, 8 id., 358; Bedell v. Carll, 33 id., 581; Allen v. Cowan, 23 id., 502.

       Neufville v. Thomson, 3 Edw. Ch., 92; Story’s Eq., §1375; Shuttleworth v. Winter, 55 N. Y., 624; Hunt v. Johnson, 44id., 27; Babcock v. Eckler, 24 id., 623; Phillips v. Wooster, 36 id. 412; Reed v. Reed, 52 id., 651; Curtis v. Fox, 47 id., 299.

         Alberton v. Lang, 10 Bosw., 362; Bedell v. Carll, 33 N. Y., 581; Westerlo v. De Witt, 36 id., 340.