text:
    The Trustees of the Freeholders, etc., of the town of Easthampton, Resp’ts, v. John A. Bowman et al, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Estoppel—Towns—Unauthorized deed—Ratification.
    A resolution of the board of trustees of respondent appointing a committee .was altered by one of its members so as to give them power to sell and convey lands belonging to the town. By means of said forged resolution said trustee, one D., induced defendant to accept a deed of lands from him and to pay him the purchase price thereof, and thereafter forged a resolution confirming the sale. Subsequent town officials, who found the record, sued D. for the proceeds, and did not discover the fraud until the execution was returned unsatisfied. Eel’d, that this was not such a ratification of D.’s act as to estop the town from avoiding the deed for want of authority.
    Appeal from judgment in favor of plaintiff, entered upon trial by the court without a jury.
    Action to set aside a deed purporting to convey to defendant certain common lands of the plaintiff on the ground that the same was made, executed and recorded without authority. A resolution of the board of trustees, passed in 1882, appointing a general prosecuting committee, was altered by Dominy, one of said committee, by interlining the words “ with power to sell or convey,” and by means thereof induced the defendant to accept the deed in question and pay to him the consideration therefor, and afterwards forged a resolution confirming the sale. The other facts appear in the opinion.
    The following opinion was delivered on the trial:
    Barnard, J. This case is not a plain one; there is no doubt but that the record was forged. The words interlined, giving the committee authority to sell, were not in the resolution as passed. The words were put there to 'defraud. After the record was altered the clerk’s copy seemed to evidence a good record. The question is not one of a transaction with an agent, but with a title acquired by forged authority to sell. The defendant got no title under such a power.
    Did the town lose its right because a subsequent board of trustees sued for the consideration stated in the deed ? This body was in ignorance of the forgery when the action was commenced. During the trial some of the defendants denied all knowledge of the resolutions. The trustees prosecuted to judgment upon the theory and with the full belief that the resolution was passed. It now appears that it was never passed, and I think there is nothing in the former action which ratifies a forged resolution. Ratification rests upon knowledge and this was wanting. The defendant has, therefore, no title; the deed rests upon nothing and the appearance should be removed so that the town title may be unclouded by it
    Judgment for plaintiff, without costs.

      H. C. Platt, for app’lts; Wilmot M. Smith, for resp’ts.
   Pratt, J.

We concur in the opinion of the learned trial judge. The town never authorized the conveyance of the lands in question. The minutes which on their face appear to attest such authority, were, in that respect, forged. The grantee, doubtless, dealt with the faithless representative of the town, and paid his consideration money in good faith. It could scarcely be decreed otherwise.

So far then the case is clear. A person standing in an official position towards a town, having no authority save that derived by resolution of the town officials, simply cheats a man into paying money over to him by exhibiting false tokens as to the extent of his authority and delivering a deed which is without a shadow of authority. Dominy simply lied to Mr. Platt, and backed up his lie by exhibiting a resolution which was genuine in part but false and forged in the vital matter of authority. No corporation could conduct business if any other rule prevailed than to hold that this faithless official had thus simply swindled an innocent man out of his money.

But now comes the tight place in the case. New town officials found this record. • They were themselves deceived thereby. Dominy thus misled them so that they too, relying on his fraud, called on the faithless official to pay oyer the money which they suppose that he has collected for and with authority of the town. They sue him and recover a judgment They issue an execution but get nothing. Hence, while the town thus appears to ratify the collection and thus to ratify the transaction out of which it arose, the essential and vital element of the doctrine of ratification is, nevertheless, wanting, knowledge of the facts of the case. The town officers were misled into that suit. The swindler succeeds in getting all parties into a false position. Now, if we were to hold that this judgment was a ratification, we should hold that Dominy might swindle the town into an election to ratify. And that plainly involves unsound reasoning. The question of estoppel does not arise until we determine the point of election and ratification. But the town did not discover the fraud until after the execution was returned unsatisfied. There is no evidence that it has taken a single step in pressing its judgment against Dominy after the discovery of the truth in the premises. If it has, it would be difficult to defend the town against the consequences of election and ratification under the rule in Bowker Co. v. Cox, 106 N. Y., 115 ; 10 N. Y. State Rep., 658.

But the town has taken no step. It has simply stopped. Ought it to have procured the modification of the judgment against Dominy by rejecting therefrom the money claimed or collected from Bowman? Perhaps that would have been a wise thing to do as a measure of prudence to evince and emphasize its election to repudiate Dominy’s wrongful act. But it was not, as it seems to us, necessary so to do. It was a question of fact whether or not the town did promptly repudiate Dominy’s wrong when it discovered its right so to do. The fact that it suffered the judgments to stand was merely a circumstance which, with others, might tend to show an election to ratify. But the findings and disposition of. defendant’s requests by the learned trial judge pretty clearly show that the town never did, in fact, elect to ratify 'Dominy’s wrongful act, or do any act amounting to such a ratification, after discovery of his fraud. The election to repudiate it would always be an answer in Dominy’s favor to any attempt on the part of the town to enforce the judgment. That is no affair of Bowman’s. He neither lost nor gained anything by the conduct of the town in this respect. He simply stands where he stood before the town sued Dominy at all. He is simply the victim of Dominy’s fraud.

Perhaps a different question would have arisen if the town .had collected any of the money under that part of the judgment which rested on Dominy’s collection, from Bowman. Indeed that might be true even if it had collected anything under the judgment, for it constituted an entire recovery. .But even then, I incline to think that if it had promptly turned the collection over to Bowman on discovering Dominy’s fraud, it might still have been entitled to avoid the deed for want of authority. The town would have been in worse position than if Dominy had voluntarily paid over the money received from Bowman.

Suppose, for example, that some stranger had made this forged alteration of the town minutes, and that Dominy had honestly supposed he' had the authority, and had made this deed under those circumstances, and then collected the money from Bowman and paid it .over to the town. Would not the whole business have been a mistake, which a court of equity would have had power to correct on prompt repudiation by the town and return or offer to return the money to Bowman ? But, of course, it is unnecessary to speculate on the point.

The views above indicated lead us to the conclusion that we must affirm this judgment, but, under the peculiar circumstances of the case and the novelty of the question, we shall deny costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    Bridget Myers, Resp’t, v. Daniel Hunt, Ex’r, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891).

    Evidence—Code Civ. Pito., § 829.
    Upon a reference of a disputed claim upon a note purporting to have been made by defendant’s testator, the claimant was allowed to testify that deceased had never paid the note, principal or interest. Meld, that this was a personal transaction with the deceased, and was inadmissible under § 829 of the Code.
    Appeal from judgment in favor of plaintiff.

      Arthur T. Hoffman, (John H. Clapp and Jarvis W. Mason of counsel), for app’lt; Chas. H. Noxon, for resp’t.
   Barnard, P. J.

Bridget Myers presented a claim against the estate of Harrison Hunt, deceased. The claim is based upon what purports to be a note given by deceased to the plaintiff April 1, 1884, for $750. The claim was referred under the statute, and the referee has reported in favor of the entire claim, with interest, from the date of the note. The proof of the transaction out of which the note arose, was not given. The maker of the note is dead, and the holder cannot testify under § 829 of the Code as to a personal transaction with the deceased. Proof was given of the handwriting of deceased to the note. It is quite uncertain. The witnesses spoke very hesitatingly. The executor produced several witnesses who testify that the signature to the note was not made by deceased. The testator died about the last of 1889, or the beginning of 1890, apparently, and the note shows that no interest was endorsed upon it. Under this evidence the finding of the referee would be one of fact and not properly reversible on appeal.

The claimant, however, was permitted to testify under the defendant’s objection and exception that the deceased had never paid the note, principal or interest. This was a personal transaction with the deceased, and was admitted erroneously. Lerche v. Brasher, 104 N. Y, 160 ; 4 N. Y. State Rep., 335 ; Clift v. Moses, 112 N. Y, 426 ; 21 N. Y. State Rep., 777.

The evidence may have affected the result. The case was very doubtful on the evidence of handwriting and on the circumstances surrounding the claim. This plaintiff was not rich, and was in debt, and no effort seems to have been made to collect the note during testator’s lifetime.

The judgment should be reversed, and a new trial had at the circuit, .with costs to abide event.

Dykman and Pratt, JJ., concur.


author: Earl, J.

text:
    William B. Tremain, App’lt, v. William Y. Mortimer et al., Resp’ts.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Chattel mortgage—Assignment for creditors.
    Where a debtor gives chattel mortgages which are not properly refiled and after the mortgagee has taken possession, makes an assignment for the benefit of creditors, creditors who thereafter recover judgment cannot attack the validity of such mortgage. The mortgagor has no interest in the property; it has either passed under the mortgage, if valid, to the mortgagee, with the right of redemption in the assignee, or if invalid the whole title passes to the assignee.
    2. Same.
    After default in a chattel mortgage the mortgagor has a beneficial interest in the property which ho can convey even though the mortgagee has taken possession thereof.
    Appeal from judgment of the New York superior court, general term, affirming order vacating and setting aside a verdict in favor of plaintiff and directing judgment dismissing complaint.
    This action was brought to recover damages for the conversion of certain personal property described in the complaint. The answer put in issue the plaintiff’s title, and alleged certain facts upon which it is claimed title to the property was vested in the defendant.
    Upon the trial of the action the following facts appeared: 1ST. P. Sewell, being the owner of the property, executed two chattel mortgages thereon on the 2d of November, 1885, one to the defendants and another to C. L. Chase, and both were filed in the register’s office of the city of New York on the same day. The mortgage to Chase was refiled on the 8th day of April, 1887. The other mortgage was never refiled. Chase took possession of the property under his mortgage on the 12th day of December, 1887, default having been made in the conditions thereof, and on the following day Sewell made a general assignment for the benefit of his creditors.
    Subsequently to the general assignment, five judgments were recovered against him, upon which executions were issued on the 20th and 27th and 30th days of December, 1887, and the 5th day of January, 1888. On the 28th day of December, 1887, in an action of replevin brought by these defendants against Chase, Sewell and Sewell’s assignee, after default made in the payment of the amount secured by the mortgage of Sewell to the defendants, the sheriff replevined the property, and on January 11th, 1888, delivered the same to' these defendants. Thereafter, Chase assigned his mortgage to the defendants, and the replevin action was discontinued as to him. The defendants retained possession of the property so delivered to them by the sheriff until February 17, 1888, on which day they sold the same at auction, after due notice, and applied the proceeds to the payment of the amount due them upon the two mortgages.
    The action of replevin resulted in a judgment for the possession of the property, on the 6 th day of April, 1888, in favor of the plaintiffs therein, and against the defendants therein excepting Chase. On the 9th day of January, 1888, under and by virtue of the executions above mentioned, the sheriff advertised and sold all the property covered by the two mortgages, to the plaintiff in this action. The plaintiff’s complaint was dismissed at the trial term, and the judgment there entered having been affirmed at the general term he has brought this appeal to this court.

      Herbert T. Ketcham, for app’lt; Emil & Arnold, for resp’ts.
   Earl, J.

The plaintiff’s title depends upon the validity of the levy and sale by virtue of the executions issued upon the judgment recovered against N. P. Sewell. His contention is that the levy and sale were invalid although the executions were issued after Chase, the mortgagee, had for default, taken actual possession of the mortgaged property and after the mortgagor had executed a valid general assignment for the benefit of his creditors. He claims that the mortgages were void as to the creditors of the mortgagor, because they were not refiled as required by the statute, and therefore that the mortgages were not an obstacle in the way of the execution. As to the effect of the assignment he claims that the mortgages were valid, as between the mortgagor and mortgagee, and that the legal title, as between the mortgagor and the mortgagee had passed out of the former to the latter, and hence that the assignment at most passed to the assignee for the benefit of creditors only the right' of redemption which remained in the assignor. It is difficult to state the precise ground upon which the plaintiff stands as to the assignment. It is stated thus in the points of his learned counsel:

“ It must not be said that because Sewell had no interest to-part with, no right could accrue to plaintiff by the purchase of Sewell’s interest. Plaintiff under settled authority does not depend upon any estate which Sewell had, but on the just though anomalous doctrine, that. by his purchase he acquired the right which Sewell’s creditors had to disregard the mortgages.”

The defendants claim that after default in the payment of the mortgages, and particularly after possession taken by Chase under his mortgage, the mortgagor retained no right or interest in the property which was subject to levy and sale upon execution; that after the assignment whatever interest he had in the property was vested in the assignee, "and thus that the assignment stood in the way of any levy upon or sale of the property by virtue of the executions ; and furthermore, that while the sheriff held in his hands the writ of replevin he could not levy upon the same property by virtue of the executions. These are the main contentions on both sides elaborately argued in the briefs submitted to us, and they present interesting questions, some of which are not easy of solution.

Without examining other questions, we think it is a sufficient answer to the plaintiff’s claim of title that before the issuing of the executions under which he claims to have derived his title, a general assignment was executed by the judgment debtor for the benefit of his creditors, the validity of which is in no way assailed, which entirely divested him of the property. But for the mortgages it is conceded that the general assignment would have this effect. The plaintiff claims, however, that because the mortgages were void as to creditors, for not having been re-filed according to the statute, there was something which did not pass from the judgment debtor to his assignee which the creditors, and they alone, could seize by virtue of their execution.

It is provided by the act chap. 279 of the Laws of 1833, as amended by the act chap. 418 of the Laws of 1879, that every mortgage of goods and chattels “ which shall not be accompanied by an immediate delivery, and be followed by an actual and con-' tinned change of possession of the things mortgaged shall be absolutely void as against the " creditors .of., the mortgagor; and as against subsequent purchasers and" mortgagees in good faith, unless the mortgage, or a true copy,thereof, shall be filed as directed in the succeeding section ” of the" act.

The next section provides for'the filing of the mortgages, and the third section provides that every mortgage filed in pursuance of the act “shall cease to be valid as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of each and every term of one year after the filing of such mortgage, a true copy of such mortgage, together with a statement exhibiting the interest of the mortgagee in the property thereby claimed by him by virtue thereof, shall be again filed in the office of the clerk.” While the mortgage in the cases mentioned in this act is valid as between the parties thereto, it is void as to the creditors of the mortgagor. But the act confers no title to the property upon the creditors, and by virtue of the act they take no interest in it. The mortgage is not to be treated as made for their benefit, and the mortgagee does not hold the property in trust for them. The effect of the statute is simply that in the cases mentioned, as between the creditors and the mortgagor, the mortgage has no force or operation whatever, and the case is to be treated as if the mortgage had never existed. While the mortgage is void as to creditors, they cannot touch the property until they come with an execution. As between the mortgagor and the creditors, if the latter can claim that the mortgage had no existence, so, also, can the former make the same claim. They cannot at the same time assert its invalidity and its validity. They cam not seize the property as belonging to the mortgagor, and at the same time deny that he has any title to the property. They must constantly stand upon the position that the 'mortgage is a nullity. As between them and the mortgagor both parties have the right to act as if the mortgage had never existed, and before the creditors obtain a lien on the property by virtue of their execution, the mortgagor may deal with the same in any honest way. He may sell it and convey an absolute title, subject to any rights the mortgagee has; or he can deliver the property to the mortgagee in payment of the debt secured by the mortgage, or the mortgagee can release the debt with or without payment, and thus invest him with an absolute title, and the creditors will have no legal ground of complaint. In this case, at any time before the execution of the assignment, Sewell could have executed new mortgages upon the property to secure the same debts, and, if they had been properly filed, they would have been valid and effectual as against his creditors.

It is stated that this view of the situation entirely defeats the creditors in such a case. If that be so it is due only to the fact that he is in the situation of every creditor who comes with his execution after the debtor has in some way parted with," or become divested of his property. It may be, as claimed on the part of the plaintiff, that the assignee could not impeach the title of the mortgagees because the mortgages were'not refiled/ for the reason that he, by virtue of chapter 314 of the" Law's j'of .1858, can'dis-affirm and treat as void mortgages only wheh’-'ma'de'iri'fraud 'of the rights of creditors, and as the only infirmity állégéd against the mortgages is that they were not'refiled, it maybe'that' he" has no greater right to assail them than the mortgagor had." ' If, therefore, the creditors cannot levy upon the property in a' case like this, and cannot through the assignee assail the mortgages, it is difficult to see what remedy they have. It is possible that they might maintain some equitable action, but it is not necessary now to determine whether they could or not maintain such an action, as this is simply an action based upon a claimed title to recover damages for the conversion of the property. The plaintiff’s misfortune is due to the fact that the executions were not issued until after the assignment was made, and the judgment debtor had ceased to have any interest whatever in the property. In the case of Porter v. Parmley, 52 N. Y., 185, much relied upon by the learned counsel for the appellant, the judgment debtor had executed a mortgage which the mortgagee filed, but which he had not refiled as required by the statute, and while the property remained in the possession of the mortgagor, and before any other title intervened between him and his creditors, it was seized and sold by virtue of executions against him, and it was held that the purchaser at the execution sale obtained a good title. The learned judge writing the opinion in that case carefully limited the doctrine therein announced to a case where the property remained in the possession of the mortgagor, and nothing had occurred to change the relations of the parties except the forfeiture. This case would be like that if the property had been seized by virtue of the executions before the making of the assignment. The intervention of the assignment between the creditors and the property makes the difference between that case and this.

The case of Wheeler v. Lawson, 103 N. Y., 40; 2 N. Y. State Rep., 791, is an authority for the views we have expressed. There Shoemaker executed a chattel mortgage to plaintiff’s assignor. He subsequently made a general assignment for the benefit of his creditors. The assignee, with the consent of Shoemaker, surrendered the property to the plaintiff as assignee of the mortgage from whose possession it was forcibly taken by the defendant who, as sheriff, had in his hands an execution against Shoemaker, issued upon a judgment rendered after the property came into the plaintiff’s possession, and it was held that the invalidity of the chattel mortgage did not justify the taking, as in such case the title to the property was in the assignee of Shoemaker, and proof of the plaintiff’s possession was sufficient to sustain the action. In that case the mortgage was not filed, and there as here it was good as between the parties thereto, and the mortgagor remained in possession until he executed the general assignment. The precise point decided in that case was that after the execution of the assignment the sheriff could not levy upon and seize the property by virtue of an execution in his hands. The case of Kitchen v. Lowery, recently decided in the second division of this court, 37 N. Y. State Rep., 327, is to the same effect

There the action was. brought by the plaintiff as a judgment " ¡creditor of Samuel B. Lowery and George M. Lowery to set aside a*general assignment for the benefit of creditors and two chattel mortgages made by them. One of the mortgages, held by Titus Sheard, was executed on the 24th day of December, 1883; the other was executed to Bora K. Lowery on the first day of September, 1884. Both mortgages were filed on the 24th day of August, 1885, on which day, after the filing of the mortgages, the Lowerys made a general assignment of all their property for the benefit of their creditors. The debt of Bora K. Lowery was preferred in the assignment, it being stated there that she held as collateral security a chattel mortgage, subject, however, to the prior mortgage of Sheard. The assignors delivered to the assignee all of their property, including that covered by the chattel mortgages. On Bovember 18, 1885, Sheard took the property under his mortgage, and advertised and sold it at public auction. The trial court found that the mortgages and assignment were made in good faith and were not intended to defraud creditors.

The learned judge, writing the opinion of the court, said: " Whilst the mortgagee of chattels is deemed the owner and has the right to reduce them to possession, the mortgagor has the right to redeem before sale or to receive the surplus, if any, that shall arise upon a sale. He has an interest in the property which is assignable, and such interest under a general assignment for the benefit of creditors passes to the assignee.” He further said: “ They (the mortgages) may be void as to creditors for the reason that they were not filed at the time their credits were given; but if creditors neglect to avail themselves of the means provided by statute to secure the payment of their claims until the mortgagor has transferred his interest to an assignee, they thereby lose the advantage which they otherwise might have gained. In such a case the assignee acquires a superior right to the individual creditor, and takes the same in trust for all the creditors. Before such transfer the creditor, upon obtaining judgment, might have secured a lien upon the personal property of the judgment debtor by the levy of an execution thereon. He might also have obtained a lien by a like levy upon the property covered by the mortgage. The mortgage being void as to him, the property would be regarded as that of the judgment debtor, and the levy would have the same force as if no mortgage existed. But waiting until after the assignment he loses his right to acquire a lien by levy. * * * The mortgagors, by their assignment, have transferred all of their interests therein to the assignee. The mortgagee, Sheard, has taken the property under his mortgage and sold it. The property mortgaged has now passed into the hands of the purchasers under such sale, and whatever rights the plaintiff may have had none remain that are available to afford him relief.” It is true that in each of the two cases last cited the mortgagor was in possession of the mortgaged property at the time he executed his general assignment; but that circumstance does not materially distinguish those cases from this. There was default in the mortgages involved in those cases as in this; and upon default of the mortgagor of chattels the absolute legal title vests at once without possession in the mortgagee, and all the mortgagor has left is a right of redemption in equity, and there is no interest in the property left in him which can be seized by execution. Hamill v. Gillespie, 48 N. Y., 556; Porter v. Parmley, supra ; Judson v. Easton, 58 N. Y., 664; Casserly v. Witherbee, 119 id., 523 ; 30 N. Y. State Rep., 92; Leadbetter v. Leadbetter, recently decided in this court, 125 N. Y., 290; 34 N. Y. State Rep., 929.

Therefore, under the general assignment of Sewell, the rights of the assignee in and to the mortgaged property were just as great as they would have been if the assignment had been executed before either of the mortgagees had taken possession of the property. After default in a chattel mortgage the mortgagor has a beneficial interest in the property, and even after the mortgagee has taken possession of the property, practically he holds it only as security for his debt which the mortgagor can pay, and thus he can redéem his property; and he has a real interest which he can convey, although the mortgagee has taken possession of the-property.

The position of the plaintiff, therefore, is this: If he asserts the validity of the mortgages for any purpose as between the creditors and the mortgagor, then the title to the property was in the mortgagees, and was not subject to levy upon the executions. If he asserts that the mortgages were, as between him and the mortgagor, invalid and non-existent, then the property passed under the assignment and was out of reach of the executions.

We, therefore, see no reason to doubt that the judgment below is right, and it should be affirmed, with costs.

All concur.

       Affirming 28 R. Y. State Rep., 584.


author: Per Curiam.

text:
    The People, Resp’ts, v. Schihick Jugigo alias Schiburga Jugigo, App’lt.

      (Court of Appeals,

      Filed June 9, 1891.)

    Appeal—Frivolous motions por reargument.
    The forms of law should not be used to subvert the criminal law of the state, and attorneys and counsellors cannot, consistently with their duty to aid in the administration of justice, engage in vexatious proceedings merely for the purpose of undermining the final judgments of the courts and defeating the behests of the law*
    Motion for reargument

      John P. Heinzelman, for app’lt; McKenzie Semple, for resp’ts.

       See 33 N. Y State Rep., 580.

   Per Curiam.

In December, 1889, the defendant was convicted of murder in the first degree. He appealed to this court and his case was argued in June, 1890, a few days before the summer recess. The judgment was here affirmed October 7, 1890, and the following opinion was then written: “ The record does not contain a single exception, and we are unable to perceive any reason for bringing the appeal except to delay the execution of the judgment. The evidence established beyond any doubt the commission of the crime, and the charge of the judge was fair and properly instructed the jury upon the law needful for their guidance. There can be no pretense for saying that the ends of justice require a,new trial, and the judgment should be affirmed.”

The subsequent proceedings in the case on behalf of the defendant have been discreditable to the. administration of justice. His case has been twice to the supreme court of the United States, and is now here for the third time, and thus the courts have been needlessly vexed for no possible purpose except delay.

Upon this occasion a motion is made for a reargument of the case after a lapse of nearly a year from the original argument, upon pretext manifestly frivolous, and for which there can be no possible excuse or justification, and which will not now be dignified by any further notice.

When all the forms of law have been observed and the. defendant has had every opportunity to make his defense and his conviction has been affirmed by the highest court of the state, the contest in the courts should end, and the final judgment should be executed, unless the governor of the state, in the exercise of his clemency, should grant a reprieve or a pardon. The forms of law should- not be used to subvert the criminal law of the state.

Attorneys and counsellors admitted to practice in the courts of this state are under a duty, to aid in the administration of justice, and they cannot, consistently with this duty, engage in vexatious proceedings merely for the purpose of undermining the final judgments of the courts and defeating the behests of. the law. It ought to be a subject of enquiry, therefore, whether they can thus become the allies of criminal classes gnd the foes of organized society without exposing themselves to the disciplinary power’s of the court.

The motion is denied.

All concur.


author: Ruger, Ch. J.

text:
    The People, Resp’ts, v. Samuel E. Wayman, App’lt.

      (Court of Appeals,

      Filed June 9, 1891.)

    1. Criminal law—Murder—Evidence of accomplice—Corroboration.
    Defendant was charged with having murdered one Thayer by shooting him twice with a revolver, while defendant was engaged in committing a burglary. His accomplice swore that he accompanied Wayman to the house, having arranged by letter previously to commit the burglary; that they drove there in his father’s wagon; that the people awaking, Wayman shot Thayer twice: that the witness dropped his pistol in the house and escaped. The pistol was found with but one barrel discharged, and that not recently. The horse was found next morning to have been driven very hard. Wayman admitted that he had been engaged in other burglaries with the witness. The former was tall, the latter short, and they were thus described by the Thayer family. There was testimony by a fellow prisoner of Wayman’s, a burglar, who swore that Wayman detailed the burglary as charged by the People to him. Mrs. Thayer swore that the and short one, with faces covered. The balls in the body fitted Wayman s pistol. The defendant denied that he was at the place at all that night, etc. Held, that the jury were justified in finding that the evidence of the accomplice was sufficiently corroborated.
    2. Same.
    It is not error for a court to refuse to embody the language of an elementary writer in a charge to a jury.
    3. Same.
    The accomplice was allowed to state the contents of the letter received by him from Waym m, which had been destroyed. He could not read writing and it had been read to him. Held, that as the authorship and contents were confirmed by many circumstances aside from his evidence, it was material only as affording support to his testimony that he did meet Wayman on the day in question, and the erroneous admission of the evidence had no important effect upon the result of the trial.
    Appeal from judgment of the court of oyer and terminer of Livingston county convicting defendant of the crime of murder.

      George P. Coyne, for app’lt; George W. Daggett, for resp’ts.
   Ruger, Ch. J.

The defendant was indicted at the Livingston county oyer and terminer in May 1890, jointly with Nelson Swartz for the crime of murder in the first degree, in killing one Emory Thayer, at Avon, Livingston county, by shooting him with a pistol, on October, 27,1885, while the defendants were engaged in the perpetration of the crime of burglary in the house of said Thayer. Before the trial, upon the request of Swartz, the court ordered the defendants to be separately tried, and thereupon the district attorney moved the trial of the defendant Wayman. The jury found the defendant guilty of the crime charged, and he appeals from the judgment of conviction to this court

The principal ground urged by him for a reversal of the judgment is that the verdict is against the weight of evidence, and that, under the provisions of the Code of Criminal Procedure, as amended by chap. 493 of the Laws of 1887, authorizing this court to grant a new trial if it is satisfied that the verdict was against the weight of evidence, or against law, or that justice requires a new trial, whether exceptions shall have been taken or not in the court below, he should have a new trial.

This act has been the subject of consideration in this court in several cases, and especially in the Cignarale case, 110 N. Y., 23 ; 16 N. Y. State Rep., 155, where the rule was laid down that in “ determining whether a new trial should be granted under the statute, it is not the province of this court to review and determine controverted questions of fact arising upon conflicting evidence. The jury is the ultimate tribunal in such a case and with its decision the court may not interfere, unless it reaches the-conclusion that injustice has probably been done.”

The decision of the case therefore requires that we should examine the evidence given on the trial. There was no dispute as to the fact that Emory Thayer was murdered at about twelve-o’clock on the night of October 27, 1885, in his house in the town of Avon, Livingston county, by a ball from a pistol discharged by one of two men who were then engaged in the perpetration of a burglary in such house. The pistol was discharged by the tallest man of the two, and he fired twice, hitting Thayer both times, first in the arm, and the second time in the abdomen; the latter-being the fatal shot Neither can there be any question on the evidence, but that the shorter of the two men engaged in the burglary was Nelson Swartz; and the principal question in the case is, whether Wayman was sufficiently identified as being the man in company with Swartz on that occasion. There was direct and positive evidence that the defendant was that person by two eye witnesses of the transaction and by others to whom he had made express admissions that he fired the pistol by which the murder was effected, or declarations tending to prove the same fact The question, therefore, which was left to the jury did not depend upon circumstantial evidence, or altogether upon the defendant’s confessions ; but to a large degree upon the credit which the jury might give to the positive evidence adduced on the trial of the case against the defendant The credibility of the witnesses was peculiarly for the consideration of the jury. There were, undobtedly, circumstances proved which tended, in some degree, to impair the credit of two of the principal witnesses for the prosecution, but-there was considerable evidence from other sources of such a character as afforded corroboration of the truth of the testimony given by them. Swartz, the co-defendant, and accomplice of the accused, became a witness for the people on the trial, and gave positive evidence of the fact that Wayman accompanied him to the house of Thayer at the time the crime was committed, and fired both shots with the pistol by which the death of Thayer was accomplished. He testified, substantially, that Wayman told him in July, 1885, that he was going out north to work and should make a pull somewhere that fall, and when he got ready he would let him know; that in the forepart of October, he received a letter from Wayman advising him that he was working at Potter’s for two dollars a day, and wanted Swartz and Kuhn to meet him at Lakeville, near Kimbark’s hotel, on the night of the 27th of October. Swartz also testified that he made an arrangement with Kuhn to meet him at a designated place on that night, but that Kuhn failed to keep the appointment, and did not join him; that he started alone from his own house on the 27th and walked from there to his father’s, about six miles distant, where he arrived about sundown ; that he then borrowed his father’s horse and wagon and drove about twenty miles to Lakeville, where he met Wayman in the highway near Kimbark’s Hotel. That then, Wayman having got into the wagon, they drove to Thayer’s house, where, after disguising their faces with handkerchiefs, they forced up a window in the sitting room and entered the house; that soon after entering, the family were aroused by Mrs. Thayer’s screams and Thayer got out of bed and came forward and became engaged in a scuffle with Wayman, which resulted in Wayman’s shooting him with a pistol twice.' Immediately after this they escaped, Swartz entering the wagon alone and returning to his father’s with the horse and wagon and Wayman pursuing his own course. "While in the house and in the act of escaping Swartz accidentally dropped his pistol and was unable to recover it.

This evidence having been given by an accomplice in the crime, required corroboration before a jury were authorized to give it credit, for the law does not permit a person to be convicted of á capital offence upon the evidence of an accomplice alone. This corroborative evidence must be such as tends to connect the accused with the commission of the crime.

It is claimed that the evidence of Swartz was corroborated in some of its features by the undisputed proof that a pistol, identified as belonging to Swartz, was found immediately after the murder in the room adjoining that in which the crime was committed, with all of its bárrels loaded, except one, which had not recently been discharged. This evidence tended to establish the fact that Swartz was present at the time of the crime, and, presumptively, that he did not fire the shots which effected the death of Thayer. It was also shown that Swartz left his father’s house, a place about twenty miles distant from Thayer’s farm, on an evening in the latter part of October, with á horse and wagon borrowed from his father, and did not return until daylight of the succeeding morning, when the horse appeared to have been driven very hard.

It appeared from Wayman’s evidence and admissions, that he was a brother-in-law of Swartz and that they bad, during the years 1884 and 1885, been associated together, and had been accomplices in the commission of several burglaries and other crimes in the vicinity where this crime was committed. Wayman was a tall man and Swartz comparatively short, and the difference in their sizes and figures was quite apparent. Wayman and Swartz were both young men residing in Springwater, Livingston county, engaged in agricultural pursuits and accustomed to work by the day and at odd jobs, as they needed money or could get employment Wayman shortly previous to the murder was shown to be in possession of a pistol, brass knuckles and a sling shot, which he exhibited to his associates at Holley in (Means county. After Wayman was indicted for murdering Thayer and arrested, he was imprisoned in the county jail of Livingston county for several months where he became acquainted and intimate with one Salisbury, with whom he had frequent conversations and to whom, as Salisbury testifies, he made confessions directly implicating himself in the commission of the crime. Salisbury was a young man, a resident of a distant county and a stranger to the people in that part of the country, and was in jail under a commitment for the crimes of burglary and larceny. It appears, from his evidence, that Wayman made a confidant of him and disclosed the circumstances by which he was surrounded and the difficulties which apparently stood in the way of making a successful defense to the charge made against him. He told him that he was indicted with another man named Swartz for murder, and that Swartz was the only man he was afraid of swearing against him; that he, Way-man, was working for a man by the name of Sheldon in Orleans county when the murder was committed and left Sheldon’s house on the morning of the 27th of October and went to Eochester and from there to Livonia and Lakeville, where he met Swartz with a wagon; that they rode together to Thayer’s and got into the house; that the woman of the house discovered them and hallooed to her husband, who then appeared on the scene and had a clinch with Wayman; that after a struggle Wayman shot Thayer, in the arm and that not inducing him to let go, he shot him again, and they then escaped from the house ; that he, Wayman, jumped a freight train and got back to Eochester, from whence he returned to Sheldon’s on the morning following the murder and the same day was paid a small sum of money by his employer Sheldon.

He further stated that the way he came to meet Swartz was that he wrote to Swartz requesting a meeting with him at Lakeville. He asked Salisbury what he should do about that letter, saying that it didn’t contain anything about the murder and only requested Swartz to meet him at Lakeville. He thought he could explain the letter by saying that he wanted to meet Swartz to go fishing or hunting. It was shown that while imprisoned in the jail, Wayman made several persistent but unsuccessful efforts to secure a private intei’view with Swartz, and endeavored to open clandentine communications with him. He attempted ineffectually to send a message to Swartz, asking “ if he had squealed on the Thayer murder and was a going to plead guilty to itbut succeeded in privately sending him a book, in which he had written the sentence : “We are not guilty, so stand firm.” While in jail Wayman made several unsuccessful attempts to escape.

The evidence of Swartz was further corroborated by the testimony of Mrs. Thayer, who testified that she was awakened in the night of October 27, 1885, at nearly 12 o’clock, by hearing some one in the sitting room of their house, and called out, “ What do you want ?” 'Aman then sprang through the bed room door, and pointing a revolver at her head threatened, if she moved or stirred, to blow her head off. She screamed “ murder,” and upon that Mr. Thayer got out of bed, and said: “You devil, what are you doing here ?” He immediately clinched tire man, and after a struggle, backed him against the clothes press door, when the burglar discharged a pistol at him. Mr. Thayer then forced him through the sitting room door, and called out again: “You devil, what are you doing here ?” and the burglar then shot again. There was a light in the sitting room, and Mrs. Thayer plainly saw the burglars and describes the man engaged in the struggle as a tall, active man, with dark clothes, with his face partially disguised by a veil or similar contrivance. She also saw the other man as he was escaping from the dining room, and describes him as the shorter man of the two, but with his face also disguised. She swears that they respectively compared well, as to size, with Way-man and Swartz.

The evidence of this witness, while not as explicit or clear on the question of identity as it might have been, except for the disguise worn by the men, yet, so far as it goes, tends to show that the parties committing the crime resembled, as to size,, form and dress, those who were implicated by the testimony of Swartz.

One Kuhn also gave evidence of declaration and actions on the part of Wayman, tending to implicate him in the commission of the murder. It was also proved that the' balls found in the arm and body of Thayer after his death were discharged from a central fire pistol of 32-100 calibre, and that the pistol owned by Wayman at the time of the murder was of that character.

We have not referred to all of the circumstances produced in evidence against the defendant; but have aimed to describe the more important features, with a view of showing the character of the proof by which the People claim to have corroborated Swartz, the accomplice. If the witnesses for the people are to be believed, there was, undoubtedly, sufficient proof, aside from the evidence of Swartz, to support a verdict of guilty against the defendant. We can regard the message, admittedly sent to Swartz by the defendant, that “we are not guilty, so stand firm," as an implied admission of the defendant’s complicity in the events of October 27th, whatever they may have been. He voluntarily associated himself with Swartz in the transactions of that night and affirms not only his own innocence, but also that of Swartz. How could he be supposed to have any knowledge of Swartz’s innocence, except from the fact that it depended, as well as his own, upon events known to both of the parties. This is also confirmed by his message to Swartz asking him if he was “ agoing to squeal on the Thayer murder and plead guilty.” The implication from this message that Swartz was connected with the murder, to Way-man’s knowledge, is irresistible. How could he plead guilty to an offense of which he was innocent, or confess a crime that he did not commit?

It was within the province of the jury to give full credit to the testimony of Salisbury which afforded ample corroboration to the evidence of Swartz, if believéd. While there were circumstances affecting his moral character, which somewhat impaired the force of his testimony, yet there was intrinsic evidence of its truthfulness, which must have added considerable weight to its probability in the minds of the jury. His knowledge of the fact that Wayman received a payment of money from his employer Sheldon at Holley on the day after the murder, could hardly have come to his knowledge except through information derived from Wayman.

And so too, the knowledge of the method by which Wayman reached Lakeville from Holley, and there met Swartz, and was carried by Swartz from Lakeville to Thayer’s house ; and the detail of the circumstances attending the commission of the murder could not, naturally, have come to his knowledge, except from the lips of a participator in the transaction. Salisbury was a stranger to all the parties concerned in this crime, apparently, until after he was imprisoned in the Livingston county jail, and while there he had no apparent intercourse with, or knowledge of Swartz or any of his associates except Wayman. He was in close confinement from that time until he was sworn on the trial as a witness and had no apparent opportunity of communicating with those who might have known the circumstances related by him. Some of these facts were never made public until the trial of Wayman took place, and, presumptively, could not have been communicated to him previously, except by an actor in the crime. It is difficult to overestimate the force which these circumstances lend to the evidence of Salisbury, and we are not surprised that the jury gave it credit, notwithstanding the discredit which the lack of moral character-in its relator cast upon it

The defendant was sworn in his own behalf as a witness, and denied, substantially, all of the statements made by Swartz or Salisbury implicating him in the commission of the crime. He testified that on the night of the murder he stayed at the house of one Sheldon in Holley, Orleans county, a distance of some fifty miles from Avon, Livingston county. He denied that he was with Swartz on that night; that he was present on the occasion of the murder of Thayer; that he was ever at Livonia, or Lake-ville, or that he knew Thayer. While admitting that he corresponded with Swartz, he denied that he wrote Swartz to meet Mm at Lakeville on the 27th of October, 1885, or that he did meet him there on that date. Wayman testified that Sheldon paid him money on the 28th of October, 1885.

There can be no question, on the evidence, but that the defendant did work in Orleans county for Sheldon in the month of October, both before and after the 27th of that month, and was at Sheldon’s house some time on the 28th day of October and received a small payment of money from him on that day. The witnesses from Orleans county who were called to corroborate Way man’s evidence, of whom there were several, failed to identify the particular days on which they saw him in that county and added nothing to the force of his own evidence. The case, therefore, presented, substantially, a conflict between the unsupported evidence of Wayman, on one side, and that adduced by the People on the other. We are not prepared to say that the jury erred in disposing of the question presented, or that any such injustice has been done the defendant in the result of the case on the facts as requires us to grant a new trial.

The exceptions taken to the admission and exclusion of evidence and to the judge’s charge are, generally, quite unimportant and require but little consideration.

The defendant’s counsel read a section from Greenleaf on Evidence in respect to the weight to be given to proof by parol admissions, and requested the court to charge the jury in the language there employed. While the work referred to is, undoubtedly, one of high reputation and entitled to great weight in the consideration of questions of evidence, it is not error for a court to refuse to embody the language of an elementary writer in a charge to the jury. The language used by the author might not have been improper, but the judge must be left to select the words in which he chooses to express his views of the law to the jury, and unless he lays down incorrect propositions or refuses to instruct them as to pertinent, material and necessary points, called for by the circumstances of the case, he does not commit any error calling for the intervention of an appellate court. We think the judge said all on the subject of evidence by admissions which the nature of the case required.

It is also claimed that error was committed by the trial judge in permitting the witness Swartz to state the contents of the letter received by him from Wayman, which had been destroyed. Swartz had testified that he was unable to read writing and was informed of the contents of the letter by another who read it to Mm. His knowledge on the subject was therefore apparently hearsay and presumptively inadmissible. The case, however, is peculiar and the authorship and contents of the letter are confirmed by many circumstances aside from the evidence of Swartz.

It was testified by Wayman that when he started for Holley he promised to communicate with Swartz if he found work for him to do and that he did write to him from that place about the time this letter was received by Swartz. There was also proof that Wayman admitted that he wrote a letter to Swartz requesting a meeting with him at Lakeville, but claimed that there was nothing in the letter referring to the murder.

Whatever question, therefore, there may be about the admissibility of this evidence it may be obviated by considering the effect which it probably had upon the result of the case. The evidence was undoubted relevant and proper to be taken into consideration with the other proof in the case.

There was nothing in the contents of the letter, as testified to by Swartz, bearing upon the circumstances of the crime and it was material only as affording support to Swartz’s testimony that he did meet Wayman on the day in question. This was a collateral circumstance and the case would not have been materially impaired if the evidence objected to had been stricken from the case.

In view of these circumstances and the strength of the case against the defendant we think the erroneous admission of Swartz’s evidence as to the contents of the letter had no important effect upon the result of the trial and authorizes us to decline to grant a new trial under the provision of § 542 of the Code of Criminal Procedure for this reason.

There seems to be no other exception of sufficient importance to merit discussion.

The judgment should, therefore, be affirmed.

All concur, except Andrews, J., not voting, and Gray, J.r absent


author: Brown, J. Vann, J. (dissenting).

text:
    Cornelia P. Hotchkin, App’lt, v. The Third National Bank of Malone, Resp’t.

      (Court of Appeals, Second Division,

      Filed June 9, 1891.)

    1. Replevin—Fraud.
    The fact that a purchaser of goods knew that he was insolvent when buying the goods is not sufficient to establish fraud; the intent not to pay must exist.
    2. Same.
    In April, 1886, F., in making a purchase of carriages from plaintiff, represented that he was solvent and worth $15,000. In, October and November following, the bill having been paid, plaintiff repeatedly solicited him to buy more goods, which he did with some reluctance, at low prices and on long credit, and thereafter gave a bill of sale thereof to defendant as security for the indebtedness. Upon F.’s death, in 1887, defendant took possession under the bill of sale. Plaintiff thereupon brought action to. replevin the goods, alleging fraud in the sale. It was not shown that F. could not have continued in business or that he acquired the property with a preconceived design not to pay for it. Held, that the fact that the chattel mortgage and bills of sales were not filed until after F.’s death, did not indicate a fraudulent intent in procuring the property, and the proof of the solicitations to purchase, and F.'s reluctance, negatived the presumption that F. obtained the goods with intent not to pay for them.
    (Vann, J., dissents.)

      Appeal from an order of the general term of the third judicial department which reserved a judgment in favor of the plaintiff entered upon a report of a referee and granted a new trial.

      P. B. McLennan, for app’lt; William P. Cantwell and John I Gilbert, for resp’t.

       Affirming 33 N. Y. State Rep., 195.

   Brown, J.

This action was brought to recover the possession -of a lot of top buggies alleged to have been fraudulently obtained from the plaintiff by one Lyman J. Folsom in the months of October and November, 1886, and by said Folsom transferred to the defendant as security for the payment of a precedent debt.

The plaintiff had judgment upon the referee’s report for the possession of thirty-nine of the buggies.

The order of the geperal term which reversed the judgment and from which this appeal is taken was upon questions of fact and law. Hence both are open to our consideration.

The complaint alleged that Folsom obtained the property in question in the months of October, November and December, 1886, and with intend to defraud the plaintiff and induce her to •deliver said property to him on credit, falsely and fraudulently represented himself to be financially good and solvent and worth the sum of $15,000 and that the plaintiff believing and relying upon such representations and believing said Folsom to be solvent was induced to deliver said property to him upon credit and that said Folsom obtained the same with a preconceived design and intent not to pay therefor.

It further alleged that Folsom was insolvent at the time aforesaid and knew himself to be so. That he had transferred and delivered the property to the defendant as security for the payment of precedent debt and that defendant was not a bona fide purchaser thereof.

It further alleged a demand for the possession of the property and an unlawful refusal and detention thereof by defendant

The answer denied' any fraud upon the part of Folsom and alleged that defendant was a purchaser in good faith of the property in question.

To substantiate the allegations of her complaint the plaintiff proved by Alfred J. Hotchkin, her husband, who was her agent and general business manager, that on April 18, 1886, Folsom came to his office in Syracuse and said he had come to buy some carriages if they could agree on price. There had been sales to Folsom prior to this date, but generally for cash. The witness asked him if he wished to buy for cash, and he said no, he wished to buy on time. The witness then continued as follows: “ I said we have sold you before for cash, and not on time; how is your financial condition? ” He said: “I am good for what I wish to buy. I am solvent, and am worth $15,000.” I then asked him if he would wish to buy more than the number he had named, and he said: “ Not to-day, but will want more later on; that it was early for him to buy buggies at that time.” I then asked him “ if three or four months’ draft or note would be satisfactory, and he replied that it would, and I filled out an order, and he signed it.”

This is the only evidence contained in the case of a representation made by Folsom as to his financial condition which plaintiff claims influenced her in making the sale in question. There was evidence that in February, 1886, Folsom made some statements as to his condition to one Wilder, a traveling salesman for the plaintiff, but it does not appear that these statements were communicated to the plaintiff or her husband, and the referee specifically found that they were not relied upon in selling the property which is the subject of this action. The wagons that were purchased in April were paid for, and between that date and the month of October other sales were made by plaintiff to Folsom, some for cash, and one on a credit of three months, which was also paid.

The buggies which were transferred to the defendant were sold, to Folsom in the months of October and November, and it is conceded that no representations were made by Folsom at that time; and if those sales were induced by any statements as to his financial condition, they were those of April 13th, which I have quoted. But the referee did not find that the sales of October and November were induced by the representations made in April. Nor did he find that plaintiff relied upon that representation in making those sales.

The finding is “that upon the 13th day of April, 1886, said Folsom, for the purpose of obtaining carriages from the plaintiff at that time upon credit and for the purpose of obtaining further credit, falsely represented himself as solvent and worth $15,000.”' As has already been stated, carriages bought on April 13th were paid for as were most of those purchased during the summer of 1886.

The title of the defendant could not be impeached on the ground that the property was obtained from the plaintiff by the false representations of Folsom, without showing that in parting with the property the plaintiff was influenced by those representations, and to show that it must appear that she relied upon them in giving the credit upon the sale.

Fraud without damage, or damage without fraud, will not sustain an action for deceit, and a false and fraudulent representation made by one party to induce a contract entered into by another, is not actionable unless the party to whom it was made believed the representation to be true and acted upon the faith of it to his damage. Allen v. Addington, 7 Wend., 9 ; Oberlander v. Spiess, 45 N. Y., 175; Lefler v. Field, 52 id., 621; Taylor v. Guest, 58 id., 266.

The essential elements of an action for false pretenses are representations, falsity, scienter, deception and injury. Arthur v. Griswold, 55 N. Y., 400.

In a legal sense a person is not damaged by a false representation by which he is not influenced. Taylor v. Guest, supra.

And in Brackett v. Griswold, 112 N. Y., 454 ; 21 N. Y. State Rep., 791, it is said “ there must have been false representátions known to be such calculated and intended to influence the plaintiff and in reliance upon which he in good faith parted with property.”

All these circumstances must be found to exist, and the absence of any one of them is fatal to a recovery.

The judgment of the trial court cannot be upheld, therefore, upon the findings in reference to the false representations of April 13th. There is not alone an absence of any finding that such representations were relied upon by plaintiff or influenced her in making the October and November sales, but there is a total absence of any fact found by the referee connecting those sales in any way with the representations made in April, and there is nothing in the opinion of the referee from which it can be inferred that he intended to decide that the October and November sales were induced by the representations made in April.

It becomes unnecessary, therefore, for us to examine the evidence to determine whether the facts that those representations were made and were false, were supported by the weight of testimony, for we need not consider further a branch of the case which was rejected by the referee. The referee found, however, “ that at the time Folsom purchased and received said carriages, he was insolvent, knew himself to be insolvent, fraudulently concealed his insolvency from the plaintiff and must necessarily have known that he could not continue in business and pay for said property. That the said goods were purchased and received of the plaintiff by said Folsom fraudulently with the preconceived design and intent not to pay for the same.”

If a purchaser who is insolvent conceals that fact from the vendor for the purpose of defrauding him and thus obtains goods without intending to pay for them, the title of the property is not changed and it may be reclaimed by the vendor. Durell v. Haley, 1 Paige, 492 ; Ash v. Putnam, 1 Hill, 302; Ferguson v. Carrington, 9 B. & C., 59; Devoe v. Brandt, 53 N. Y., 462; Wright v. Brown, 67 id., 1. Therefore if the findings I have quoted are sustained by the weight of testimony they will uphold judgment of trial court

I shall assume that Folsom was insolvent in October, 1886, and must have known that fact, but I think the evidence does not support the conclusion that he knew he could not continue in business and pay for the carriages and that he acquired the property with a preconceived design not to pay for the same. The reasons given for the conclusion of the learned referee are, first, Folsom’s insolvency and large indebtedness; second, that he had mortgaged all his property to his numerous creditors, which mortgages were not filed until after his death and that he had been sued and a small judgment recovered against him; and third, that all the carriages obtained from the plaintiff were almost immediately transferred to the defendant.

I am unable to perceive how -the fact that the chattel mortgages and bills of sale were not filed indicated a fraudulent intent on Folsom’s part in procuring the property in question.

The chattel mortgage to Adams for $6,000 was executed in January, 1886, and the bill of sale to Shields & Shane conveying personal property, notes and accounts to an amount in excess of . $26,000 was executed in February of the same year. Neither were filed until after his death. If the securities and the fact that they were not filed are indications of a fraudulent intent in the purchase of property by Folsom, that inference would be as-strong as to purchases prior to October as after, and yet we find that purchases made of the plaintiff in April and throughout the summer were paid for, and during the same period Folsom was actively engaged in business buying from other manufacturers, and not a single fraudulent act on his part prior to the sales of plaintiff in October is proven or suggested.

The inference of fraud from the giving and failing to file the various chattel mortgages is greatly weakened, if not totally destroyed, when we find that Folsom to the day of his death was conducting his business in the usual way, dealing with many persons, with no charge of fraud against him, except the single one involved in this action. Moreover, I do not see how the failure to file the chattel mortgages and bills of sale or to take possession of the property is to be regarded as Folsom’s act. It is true, in some instances, he requested it, but the various mortgagees could at any time have filed, their securities, and their failure to do so indicates a leniency on their part towards their debtor, born of their confidence in him and of his honesty in dealing.

It is true that Folsom’s indebtedness was large and especially so to the three banks at Malone, but none of his creditors were pressing him, and no suits were pending against him and no judgment was recovered against him until after the sales in question, and then only for the small sum of $190. That he had the confidence of his creditors is indicated by their leniency towards him and their apparent confidence in his business ability. But it appears that his indebtedness was decreasing, not growing.

Mr. French, the cashier of the People’s Bank, testified that from October 1, 1886, to January 1, 1887, Folsom’s indebtedness to that bank was reduced $2,500, and Mr. Pease, cashier of the defendant bank, testified that shortly before his death Folsom reducedliis indebtedness in that bank. Notwithstanding some losses, his financial condition in January, 1887, was better and stronger than in October, when the first lot of wagons in question were sold to him by the plaintiff.

It is also true that the buggies soon after their receipt by Folsom were by bill of sale transferred to the defendant bank, but this transfer was not made with any intent to cheat the plaintiff or to dispose of the property for any fraudulent purpose, but in aid and assistance of his business.

As has already appeared, the bills of sale were not filed and the wagons remained in Folsom’s possession to be sold in the usual course of business in the spring when there was a market or them.

The same may be said of the chattel mortgage to Adams & Martin, who were endorsers on an overdue promissory note of *$2,000 held by the People’s Bank.

There is nothing in the general appearance of Folsom’s business in the fall of 1886, as disclosed by the record, that indicates impending failure. No creditors were pressing him, but all were lenient and apparently satisfied with the situation.

There was no market for his stock of wagons until spring, and apparently there was a reasonable hope and expectation of a profitable business at that time and with the sale of his stock a reduction of indebtedness and an improved financial condition. He possessed the confidence of the community in which he lived, conducted a large business, kept a livery stable and operated a stage line and was in possession of a large amount of property. He was the sheriff of the county, holding that office for a second term, and in the enjoyment of an annual income of at least thirty-five hundred dollars.

It is important in looking at his business prospects and endeavoring to determine the probability of his paying for property bought in the fall of 1886 to bear in mind that he died suddenly on the 1st of March, 1887.

It is not just, therefore, to look at the situation as it existed after his death. The abrupt termination of his personal conduct of the business caused results not only unexpected but which probably would not have occurred if he had lived.

The indebtedness to plaintiff did not mature until June and July following. Before that time elapsed the buggies would in all probability have been sold and the proceeds of the sale been available in his business. With his death there was nothing to do but settle his estate with the usual result of forced sales and liquidation and rapid depreciation of the value of his property.

Many a business man if compelled to go into liquidation on a given day would find himself insolvent, whereas if allowed to close up his business in his own way would realize more than sufficient to pay his debts, and many men have bridged over a worse situation than confronted Folsom in the fall of 1886. Every failure has its accumulation of embarrassments, but it cannot be said in this case that had Folsom lived he might not have extricated himself from his difficulties.

Thus far I have attempted to examine the general appearance of Folsom’s business as disclosed by the record. To my mind it does not show him to be a dishonest man, and in this connection it is a fact of great weight that notwithstanding his business life was open to the scrutiny of the plaintiff, no witness testified to a single act indicating fraud in another transaction.

Let us now look briefly at the immediate transaction involved in this suit.

The usual concomitant of fraud is a desire and effort on the part of the fraudulent purchaser to get possession of the property. Terms and conditions and length of credit are of no importance. So long as the possession of property is obtained, the fraudulent purpose is accomplished, and all conditions of sale are but unimportant incidents of the transaction.

The negotiations leading to the delivery of the wagons are all in writing, and speak for themselves. The first was instituted by the plaintiff in a letter to Folsom written by her husband from Syracuse under date of September 28, 1886, in which he said, “ if you want to make some money I will give you a chance now.” Then followed an offer to sell fifty buggies on eight months’ credit, and a description of the wagons, following which he says, “ this is a splendid chance for you.’

Two days after, not having a reply to his letter, Hotchkin wrote again, saying: “ I wrote you several days ago making you special low offer on fifty buggies and on favorable terms. Please let me hear from you by next mail.” But Folsom did not reply until October 6th, when he telegraphed, send me one sample carriage. Will buy more if suits.” The sample carriage was sent, and on the 9th of October Hotchkin writes again saying Folsom had better send his order by next mail “ as they are selling very fast.”

On October 11th the order was sent and the wagons were shipped and the first sale was completed.

On November 6,1886, Hotchkin began negotiations for another sale, by letter of that date in which he said: “If you want another bargain and will keep prices to yourself I will sell you fifty Brewster buggies at $65 each, same terms as before if order is sent by return mail. The lowest price will be, after December 1st, $75. * * * If you want this chance you had better gobble it at once. You can advise by telegram at my expense or they may be sold.”

Folsom, notwithstanding the chance that the buggies would all be sold did not advise by telegram or order by return mail, but waited until November 15th when he wrote that he would take thirty-five side spring buggies of the same kind as the October order and at the same price, and fifteen Brewsters on eight month’s credit from December 1st.

On the following day Hotchkin replied that he had only twenty-five side spring and that he would have no more of either kind at the price named and then says this is the last chance; I have made this offer to a party in Elmira for net cash and expect his order to-morrow, so if you want them you had better telegraph me to-morrow morning. First come first served.”

But notwithstanding this seductive offer and the probability that Hotchkin would sell to his Elmira customer for net cash instead of on eight month’s time, Folsom did not reply, and two days later Hotchkin telegraphed, “do you want the buggies?” Evidently the “ Elmira party ” did not want them and apparently neither did Folsom, for he replied, “ will take twenty-five side springs. Don’t want any Brewsters.”

But the next day the price for Brewsters fell and Hotchkin telegraphed, “ will make price sixty dollars on twenty-five Brewsters ; answer.” And Folsom answered, “ will take side springs. Don’t want any Brewsters.”

But Hotchkin’s auction had not yet closed and he immediately telegraphed, “ will sell twenty-five Brewsters at fifty-five dollars. Last chance. Answer.” And Folsom took them at the last offer on a credit of four month’s note and an agreement by Hotchkin to renew for an additional four months and the second sale was concluded.

Now it is impossible for any one to read this correspondence and say that it indicates fraud on Folsom’s part. Indeed one is amused at the persistency of Hotchkin in his efforts to sell his property and his statements that the wagons are “ selling fast and that “another party will take them for cash to-morrow,” “ that the price will go up after December 1st," and unless Folsom “ telegraphs his order the opportunity will be gone.” His rapid reduction in the price when Folsom hesitates and his advice to “gobble them at once.”

What the transaction does indicate is, on one hand a manufacturer with a large stock of wagons in the fall of the year who desires to sells them at low figures and who is willing to take commercial paper on long time upon which he can realize the money. On the other hand a cautious dealer induced to become a purchaser by the exceptionally low price and long credit offered and who expects to realize on sales on the wagons before his paper matures. In this connection the evidence of Charles Fury is very significant. He was in the employ of Folsom until December, 1886, and he testifies that he saw the letters from Hotchkin and that Folsom consulted with him as to whether it would be safe to rely on the promise to renew his piper at the end of four months in the event of Hotchkin failing in the meantime. Also as to the probability of his being able within the further period of four months to make sales and meet the renewed paper and that the result of that consultation was the order for the carriages.

This evidence shows Folsom’s mind on the subject and absolutely destroys all inference of fraud. He had reason to be apprehensive as to the plaintiff’s responsibility on account of the husband’s former failure in the same business and it shows that he was calculating the chances of his business enabling him to sell the wagons during the time of credit and meet his obligations when they matured.

Our conclusion is that the weight of evidence is against the finding that Folsom when he bought the wagons knew that he could not pay for them and that he purchased them with a preconceived intent not to pay for them.

There is nothing therefore left to uphold the referee’s judgment except that Folsom knew that he was insolvent when he made the purchases and did not disclose that fact to the plaintiff. But this is not sufficient. The law is well settled in this state that the mere omission of a purchaser of goods on credit to disclose his insolvency to the vendor, in the absence of any attempt to defraud is not such a concealment as will avoid the sale, although the fact if known to the seller would affect his credit. Nichols v. Pinner, 18 N. Y., 295 ; Peoples Bank v. Bogart, 81 id., 101-108 ; Morris v. Talcott, 96 id., 107 ; Macullar v. McKinley, 99 id., 353; Coffin v. Hollister, 27 N. Y. State Rep., 637.

The intent not to pay must exist when the property is purchased, and without proof of such an intent a judgment for the plaintiff cannot be sustained. Brackett v. Griswold, supra.

Mere insolvency undisclosed is not enough. We are of the opinion that the general term was right in reversing the judgment.

The order appealed from should, be affirmed, and judgment absolute rendered against the appellant, with costs.

Vann, J. (dissenting).

The judgment about to be rendered by the court impresses me as opposed to the weight of evidence given upon the trial. I do not intend to engage in an extended discussion of the facts, but will allude to enough of the evidence to define my position and, me juclice, justify my vote to reverse the judgment of the general term and affirm that of the referee. The question presented for decision is whether Lyman J. Folsom practiced deception in order to induce the plaintiff to part with her property. A careful consideration of all the evidence has convinced me that he deceived her both by the statement of what was false and by the concealment of what was true.

On the 13th January, 1886, Folsom, offering to buy goods of the plaintiff and stating that .he should want more in the future, represented to her that he was solvent and worth $15,000. Three months before he had given a chattel mortgage to Adams for $6,000, and within less than two months before another to Shields and others for $10,000, subject to a third for $1,000, covering most of the personal property that he had and all that he was using in his business. Two other mortgages on his livery stock, one three years old and the other two, amounting to $1,500, remained unpaid at this time. None of these mortgages were filed. His real estate was already mortgaged to its full value, except one parcel, and when the representations were .made he had very little property free from incumbrance or available to pay his unsecured debts, amounting to some thousands of dollars. According to the most charitable definition of insolvency, he was insolvent because he had not property to pay his debts, and as every man in the absence of proof to the contrary is presumed to know the situation of his own affairs, it must be assumed that he knew he was insolvent, especially as he was a good bookkeeper and a good business man. Having established his credit with the plaintiff he bought goods of her to a small amount, which he subsequently paid. He was then ready to load up and fail, and the eagerness of the plaintiff to sell goods to a man worth $15,000, as she supposed, made her an easy victim. During the month of September, 1886, in order to secure previous endorsements, he gave two bills of sale, one covering his interest in a crop of hops and the other embracing his horses, wagons, sleighs and all the property used in his livery business, and neither of these were filed. Even notes, accounts aud all his evidences of debt were included in one of these instruments, as well as cash on hand and estimate profits.

October 11, 1886, he bought of the plaintiff fifty carriages, for which he agreed, to pay her $2,250 in eight months, and one month later he gave a bill of sale to the defendant for thirty of. said carriages to secure overdrafts and past-due paper.

November 20, 1886, he boughtjoNthe plaintiff fifty more carriages, for which he^agreedító^pay hen$2,500 eight months there-' after. He waited mntil the last of4these carriages was delivered, when, about December 13, 1886, he gave: a bilLofsale to the de-j fendant covering this lot also, to secure a past indebtedness of $3,500. Neither of these instruments was filed.

December 26, 1886, he gave a chattel mortgage for $1,000, apparently a renewal, that was filed, and January 19, 1887, he mortgaged the rest of his real estate for $6,000 to secure an endorser, and this mortgage was not recorded. On the 24tli of the same month he gave a bill of sale covering forty of the carriages, that he had purchased of the plaintiff, to secure his endorsers upon a note past due, and under protest for more than four months, but it was not filed. The omission to file and record might be regarded as a remarkable coincidence, if he had not in several instances made a request upon the subject to the holder of the security. The property embraced in all of these bills of sale and chattel mortgages remained in his possession, the same as if they had not been given.

Before he purchased said carriages of the plaintiff he had given bills of sale or chattel mortgages covering substantially all his personal property, so that nothing was realized therefrom above the encumbrances. At the same time his real estate was all mortgaged to its full value, except one parcel, and that was likewise fully encumbered within a brief period thereafter. His subsequent transfers were, therefore, necessarily confined to property subsequently acquired and that was mainly obtained from the plaintiff.

From May, 1886, until March, 1887, when he died, he had notes protested repeatedly, and the protests were especially numerous during the period when he bought the carriages in the months of October and November, 1886. He had thousands of dollars in commercial paper under protest, some of it several months past due, each time that he ordered goods of the plaintiff in the fall of 1886. At the date of his death his assets available to pay unsecured debts amounted to only $1,400 even before the expenses of administration had been deducted, or not enough to pay more than five or ten per cent of his unsecured debts.

The interest on one of the mortgages on the house in which he lived had not been paid for nearly six years. He had even assigned as collateral security the accounts due him as sheriff and the insurance upon his life.

I do not mention other dispositions of his property and other circumstances having an incidental bearing upon the question of fraudulent intent, as I rely upon the main facts of known insolvency, deliberate misrepresentation and active concealment to demonstrate a furtive intent in obtaining the property.

The referee found that Folsom made the false representations for the purpose of obtaining credit at the time and further credit in the future ; that he had then executed secret transfers of substantially all his personal property and fraudulently concealed them from the plaintiff and. his other creditors; that when he bought the goods in question of her, and for some time prior, his checks and commercial paper had been protested and remained dishonored in the three banks of Malone, including that of the -defendant; that at the same time, whilo remaining in the posses-

sion of a large amount of personal property, including a stock of goods that he was selling in the usual course of business, he had made secret transfers of the same by mortgages that were not filed, but which were fraudulently concealed; that subsequently he made other secret transfers and fraudulently concealed them from the plaintiff; that he was insolvent, and knew it when he purchased the property in question and fraudulently concealed the fact from her ; that he purchased and received the goods with the preconceived design not to pay for them; that as fast as the carriages were received he transferred the most of them to secure precedent debts, requesting that the transfers be kept secret, and that he knew he could not continue in business or pay for the property. He refused to find, upon defendant’s request, that the plaintiff did not rely'upon the representations in selling the property in' question, and he is presumed, in support of his other findings, to have found the converse of that proposition, and that the sales in the fall were induced by the representations in the spring. Gardiner v. Schawb, 110 N. Y., 650; 17 N. Y. State Rep., 174.

It seems to me that the weight of evidence supports tlie findings of the referee and demonstrates that Folsom was guilty of fraud by false representation, as well as by fraudulent concealment. Even if the false representations did not induce the credit, they have a material bearing upon the intent of tlie purchaser. Where a man purchases goods on credit when he is insolvent and knows it, very little further evidence is needed to establish fraud and the intentional misrepresentation is ample for that purpose. Mortgaging the property so promptly after its purchase and stripping himself of all means of making any payment or continuing in business, except by the forbearance of his mortgage creditors, is also sufficient. The simple request not to file the mortgages is of great significance, under the circumstances, for this man, apparently doing a prosperous business and in the possession of a large amount of property, knew that he would be compelled to fail if those liens were filed. The fact that all of the mortgages for year after year were kept from the files, a part of them at least through his agency, threw the burden upon the defendant of proving that the nonfiling of the remainder was not owing to him. While concealment by mere silence is not enough, add to it the effort to divert suspicion and prevent inquiry by a system of concealment and it is enough. Simple silence ordinarily has the protection of the law, but an active effort to suppress the truth should receive the condemnation of the law. This is not a case of accidental or careless omission to make disclosures required by the plain rules of common honesty, but a course of deceptive conduct, preceded by deliberate misrepresentation.

Folsom knew when he bought the goods that he was on the verge of financial disaster and that his failure could be caused at any time by the lawful, and even probable, action of persons over whom he had no control. The discrepancy between his assets and liabilities was so great that he had no reason to believe that he could retrieve his affairs and he had no right to make his creditors take the risk of a hopeless effort in that direction. While, owing to his popularity and official position, he may have thought that he might be able to pay for these goods, he had no reasonable expectation that he could do so, unless it was by shifting the debt upon the shoulders of others by “ borrowing of Peter to pay Paul,” which would not do away with the furtive intent.

It is well established that either suggesiio falsi or sujppressio veri is sufficient to establish fraud. Here we have both. Folsom took advantage of the plaintiff’s confidence in his financial ability, induced by willful concealment and false statements on his part, and was thus guilty of actionable fraud that vitiated his title to the goods in question. As the defendant was not a bona fide purchaser, it took no better title than he had, and hence the right to rescind the contract and reclaim her own.

For these reasons I am compelled to dissent from the judgment of my associates, which I regard as establishing an unfortunate precedent that will long be relied upon by the dishonest and fraudulent to justify acts opposed to commercial integrity.

Order affirmed and judgment absolute rendered against" the appellant, with costs.

All Concur, except Yann, J., dissenting.