text:
    In the Matter of the Probate of the Will of Robert J. Walker, Deceased.

      (Court of Appeals,

      Filed November 29, 1892.)

    1. Surrogate—Jurisdiction of—Code Civ. Pro., §§ 2624-6.
    A surrogate has no power upon a proceeding for the probate of a will, where its language is clear and unambiguous, to pass upon the claim of a person to moneys deposited by testator in savings banks, and direct the payment of the moneys to such person or upon the indebtedness of testator to certain persons, or to decree that legacies in the will to certain religious societies should be abated so as not to exceed one-half the estate after the payment of debts, etc.
    2. Same.
    There is no statutory provision which authorizes the surrogate in any proceeding to pass upon the question of title to property, as between a claimant and a representative of the testator’s estate.
    Appeal from judgment of the supreme court; general term, second department, affirming decree of surrogate of Kings county admitting will to probate and construing the same.

      Matthew Hale and Edmund L. Baylies, for app’lt; Benjamin F. Ripton and Francis E. Dana, for resp’ts.

       Reversing 45 St. Rep., 21.

   Maynard, J.

Upon a proceeding for the probate of the will of Rev. Robert J. Walker, deceased, before the surrogate of Kings county, three questions were submitted to the court for ■adjudication, and have been passed upon by it

First. Whether the testator was the owner, at the time of his death, of the moneys represented by deposits in various savings banks in New York city, Brooklyn and elsewhere, aggregating over $65,000, and which are specially referred to in different provisions of his will.

Second. Whether he was indebted, at the time of his death, to his daughter, Mrs. Catharine E. Bond, in the sum of $7,557, which represented the amount which he had at various periods of his life deposited in certain savings banks in his name, as trustee for his daughter, and which he had subsequently drawn out and converted to his own use.

Third. Whether the legacies in the will, to the amount of $24.800, given to two charitable and religious societies, viz.: The Home for Old Men and Aged Couples connected with the Protestant Episcopal Church in the city of New York, and the Protestant Episcopal Church Missionary Society for Seamen in the same city, must not abate to the extent to which they may be in excess of one-half of the estate left by him after the payment of all just debts and the necessary expenses of executing the provisions of his will.

Upon each of these questions issues of fact were raised and much extrinsic evidence given, and the surrogate finally decreed that the moneys so deposited did not belong to the testator when he died, and formed no part of his estate, but belonged absolutely to the several persons designated as ■ the beneficiaries of the deposit in each case, and that the bank, or pass books, belonged to such persons, and the executors, who might qualify, were directed to deliver such books to them; and with respect to one deposit of $2,104, which stood to the individual credit of the testator, it was decreed that the moneys belonged to a grandson, and was no part of his estate, and that the grandson was entitled to the possession of the bank, or pass book, representing such deposit, and to the principal and interest thereof. It was further decreed that the claim made by Mrs. Bond to the moneys deposited by the testator as trustee for her and subsequently withdrawn should be disallowed, and that the total amount of the estate left by the testator was $26,464; and that the charitable and religious societies named could take only one-half of this sum after making the proper deductions for debts and expenses.

This decree purports to have been made pursuant to the authority conferred upon the surrogate by the provisions of §§ 2624-5-6 of the Code of Civil Procedure, which provides, in substance, that if a party to a proceeding for the probate of a will expressly puts in issue before the surrogate the validity, construction or effect of any disposition of personal property contained therein, the surrogate must determine the question upon rendering a decree, unless probate of the will is refused, and enter a decree accordingly, and, if required by either party, he must enter in the minutes the grounds of his decision, and the decree is conclusive only upon the petitioner and each party who was duly cited or appeared and every person claiming from, through or under either of them.

In their application to surrogates’ courts generally, these provisions of the Gode are new. They are, in substance, found in § 11 of chapter 359 of the Laws of 1870, entitled “An act in relation to proceedings in the surrogate’s court of the county of New York and to the powers and jurisdiction of the surrogate thereof; ” but that act conferred much broader powers, for it declared that the surrogate should have the same power and jurisdiction as were then vested in and exercised by the supreme court to pass upon and determine the true construction, validity or legal effect of any disposition of real or personal property contained in any will offered for probate before him in the proceeding for such probate. When the second part of the Code was adopted the local act was repealed, and the authority extended in its abridged form to all the surrogates’ courts of the state.

Whatever may have been the true interpretation of the act of 1870, we do not think that under the provisions of the Code referred to the surrogate had jurisdiction to hear and determine any of the questions submitted to him in the manner in which they are presented by the record under review. With respect to the legacies to the charitable and religious societies, no construction of the will and no decision as to their validity or legal effect was necessary in order to determine the exact.rights of the legatees. The language of the bequest is clear and unambiguous, and no question could arise in regard to the quantum of the estate to which they are entitled under the will, were it not for the statute which limits the amount which such societies may take, where the testator has children surviving him, to one-half of his estate after ■the payment of his debts. Laws 1860, chap. 360.

The law prescribes the maximum limit of the aggregate of such legacies, and the will is to be read as if the statutory restriction was a part of it. If it had, in terms, provided that these institutions should have one-half of his estate after the payment of his debts, but not exceeding $24,800 in all, it would have merely stated in another form the effect of the bequests under consideration. When the surrogate decreed that these legatees were not entitled to more than one-half of the estate after the payment of the debts, and that, as to the other half, he died intestate, it was a simple statement of the legal effect of the will and the statute when read together. There was nothing uncertain or indefinite about these legacies, save the amount which the legatees would ■eventually take, and this could not be ascertained except in the ■orderly administration of the affairs of the estate. There is scarcely a will probated in which it might not be said that the same uncertainty exists with reference to some of its provisions. A legatee to-, whom the whole or a designated portion of an estate is given, after the payment of debts and specific or general legacies, would have the same grounds for appearing upon the probate of the will and asking the surrogate to ascertain and determine the extent of his legacy. The surrogate cannot then make ■an inventory of the estate, or adjudicate upon its liabilities. Such issues must be postponed until the executor or other official representative of the estate lhas been appointed, upon whom the law has cast the responsibility of action in regard to such matters and prescribed the method of his procedure.

That the surrogate could not pass upon the validity of the claim of Mrs. Bond is too plain for discussion. The entire scheme of the statute creating and defining the powers of that officer has carefully excluded from him the cognizance of disputed claims against the estates of deceased persons; unless it is a debt due to an executor or administrator, or one provable in proceedings for the sale of real estate.

Jurisdiction in this case is asserted, because it is deemed to be necessary to determine the net value of the estate for the purpose of ascertaining what portion of it will pass to the charitable and religious societies under the will. But as the principal question to which this inquiry relates cannot lawfully be determined in this proceeding, every subject incidentally involved in it is necessarily excluded.

The most important branch of this controversy relates to the title of the testator to the savings banks deposits. These were claimed by the respondents not by virtue of the will, or of any provision in it, but in hostility to it. The trial of such an adverse claim of title was not, we think, contemplated by the legislature when it clothed the surrogate with the powers enumerated in § 2624. The validity of a disposition of personal property by will, which can be determined in a proceeding for probate, necessarily assumes that the property belonged to the testator, but the form or manner in which he has undertaken to dispose of it is made the subject of contest. Questions of title to property have always been reserved for the common law courts, or statutory tribunals invested to some extent with their powers, where the right to a jury trial is guaranteed, except in cases of equitable cognizance. Nor can such questions be properly or finally adjudicated without the presence of the official representative of the estate, in the person of the executor or administrator with the will annexed, as a party to the proceeding, who has not yet been appointed, although this decree assumes to direct and control his conduct in advance of his appointment, and requires him, when he has qualified. to deliver to the claimants the evidences of title to the disputed property which may be in his possession. This difficulty in the way of a complete determination of the questions litigated is of itself sufficient to support the conclusion that it was the intent of, the law to confine the investigations in these cases to questions arising between the parties to the proceeding, as between different legatees, or between next of kin and the legatees, growing out of the terms of the will, and not involving the title of the estate to the property to which they refer. In such contests the executor, if appointed, would ordinarily be an indifferent spectator, and hence there would be no impropriety in determining them in his absence. The estate would not be augmented nor depleted whatever the event might be. We cannot recall any statutory provision which authorizes the surrogate in any proceeding to pass upon the question of title to property as between a claimant and a representative of the testator’s estate. Jurisdictian in all such cases seems to have been scrupulously and intentionally withheld. If the executor has reason to believe that any assets belonging to the estate are detained by any person in whose possession they may be, he may make application to the surrogate for an order requiring such person to show cause why be should not deliver the property to the executor; but if, upon the-return of the order, the title or the right of possession of the executor to the property is disputed, the surrogate must dismiss the proceeding, and the executor is remitted to his legal remedies in some other forum.

It is contended that the construction of the provisions of the will in this case is involved, because the testator has described the legacies given to the respondents as sums of money which he has deposited from time to time as trustee for them, respectively, in certain designated savings banks; but this language is merely descriptive-of the property attempted to be disposed of, and would not require-special consideration, were it not for the claim of title made by the respondents, independently of the will. It may be an important item of evidence, which would have great weight in shaping the conclusions of a trial court, but it affords no ground for judicial construction upon the probate of the will.

The objections to this decree are jurisdictional. The consent of the parties is not sufficient to avoid their fatal effect. Wherever there is a want of authority to hear and determine the subject matter of the controversy, an adjudication upon the merits is a nullity and does not estop even an assenting party. The Chemung Canal Bank v. Judson, 8 N. Y., 254.

The present case illustrates the futility of the attempt to obtain jurisdiction of the subject matter by the voluntary submission of the parties. The defeated party is not likely to acquiesce in the-judgment, and he may raise the question for the first time on appeal, as one of the parties to this record has done. She had the-legal right to adopt such a course, and it would have been the-duty of the court to have directed a reversal of the decree for want of jurisdiction, even if the point had not been distinctly-raised.

The order of the general term and the decree of the surrogate, except that part which admits the will to probate, must be reversed, without costs to either party.

All concur, except Andrews, J., absent


source: Caselaw Access Project

author: Maynard, J.

license: Public Domain

text:
    In the Matter of the Probate of the Will of William W. Merriam, Deceased.

      (Court of Appeals,

      Filed November 29, 1892.)

    1. Subrogate—Jurisdiction op.
    A surrogate may examine a will upon its being presented for probate, to ascertain whether it purports, or is sufficiently comprehensive to dispose-of real property, and if it does, he is then to decide that it shall be admitted to probate as a will valid for such a purpose, providing he finds it to have-been duly executed. He does not decide that the instrument in fact passes title to any real estate, and he is not charged with any inquiry of that character.
    '2. Same.
    That a will containing a devise of real estate to the United States was admitted to probate, notwithstanding that the federal government is incapable of taking lands within this state, does not cast any cloud upon the title of the heirs at law. In any action or proceeding brought by them to recover possession of the real property, they can safely rest upon their rights of heirship.
    Appeal from a judgment of the supreme court, general term, ¡affirming decree of surrogate’s court of Suffolk county, admitting & will to probate.
    ■ Timothy M. Griffing, for app’lts; Jesse Johnson and George F. JStachpole, for exrs. and U. S. Government

       Affirming 43 St. Rep., 619.

   Maynard, J.

The will, which is the subject of this controversy, contains but a single paragraph in these words: “ After all my lawful debts are paid and discharged, I give and bequeath all my property and estate, real and personal, to the government <of the United States of America”

The testator was seized of real property of the value of two thousand dollars and possessed of personal property of the estimated value of one hundred thousand dollars.

The validity of the will was contested before the surrogate and in the supreme court, on the ground of an alleged want of testamentary capacity ; but the decision of the courts below have been adverse to the appellants- upon this issue, and, as there was sufficient evidence to support the findings of the trial court, the question is not reviewable here.

Hor is our attention called to any exception in the record upon the trial and determination of the issues of fact raised which requires consideration. But the contestants insist that the surrogate’s decree should be reversed so far as it admitted the will to probate as a valid will of real property, for the reason that the Federal government is incapable of taking lands within this state by devise, and therefore a testamentary instrument which undertakes to dispose of all the real property of the testator in this manner is invalid as a will of real estate and cannot be admitted to probate as such. This question was explicitly raised before the •surrogate, but we do not think it is available to the contestants in this proceeding. By § 2624 of the Code the authority of the surrogate to inquire, upon probate, into the validity of a testamentary gift is limited to bequests of personal property, and we know of no provision of law which confers any such jurisdiction with respect to devises of real estate. If the validity of a bequest of personalty is not questioned, his judicial action in a proceeding for probate must be confined to a determination of the question of the due execution of the will and whether the testator had •sufficient testamentary capacity and was not under any restraint.

It is true that the petition and citation for probate must state whether the will relates, or purports to relate, exclusively ;to real or personal property or to both, and if the surrogate finds that it was duly executed and the maker had sufficient capacity and was free from restraint, the Code, §• 2623, declares that it must be admitted to probate, as a will valid to pass real or personal property, or both, as the surrogate determines and the petition and citation require, and must be recorded accordingly. It may be argued that as the surrogate must determine whether it shall be probated as a will valid to pass real property, he must, necessarily, be invested with the power to determine whether the instrument upon its face is sufficient in terms and in legal effect to convey the title to any of the testator’s real estate. As the formalities • to be observed in the-execution of all wills, except nuncupative ones, is now the same, it may be said that this language in the statute has no significance, if the authority of the surrogate is to be restricted to a decision, of the question whether the will is duly executed in the form and manner required to pass real property. If the instrument is so-executed as to pass the title to any property, it is sufficiently executed to convey real property, and it was, therefore, superfluous for the legislature to require the surrogate to determine-whether it is a will valid to pass real property.

We do not think that this is a correct construction of the statute. The surrogate must examine the will to ascertain whether it purports, or is sufficiently comprehensive, to dispose of real property, and if it does, he is then to decide that it shall be admitted to probate as a will valid for such a purpose, providing he finds it to have been duly executed, and the petition and citation so require. This is the extent of the surrogate’s jurisdiction, and the effect of his decision goes no farther. He does not decide that the instrument in fact passes title to any real estate, and he is not charged with any inquiry of that character. The testator may not have been the owner of any lands when he died, and yet, if the will assumes to make a devise of realty, or is broad enough, to include a transfer of such property, the surrogate must probate it as a will of real property, if the petitioner so requests; What is meant by the words of the statute, “ a will valid to pass-real property,” is an instrument duly executed which undertakes,, in terms, to convey that species of property.

There is also a class of wills, specified in § 2611 of the Code,, which can be admitted to probate only as wills of personal property, notwithstanding they may relate to real property. They are wills executed without the state in the manner prescribed by the laws of the state or country where executed ; or the will of a nonresident executed according to the laws of the testator’s residence, but not as prescribed by the laws of this state.

It is thus apparent that there were sufficient grounds for the legislative direction to the surrogate to determine whether a will shall be admitted to probate as a will valid to pass real property without giving to his decision the effect of an adjudication as to> the validity of the devises in the will. The appellants are not prejudiced by the decree as it stands. It casts no cloud upon their title as heirs at law. In any action or proceeding brought by them to recover possession of the real property, they can safely rest upon their rights of heirship. The record of the will is presumptive evidence only of its due execution and of the mental ■competency and freedom from restraint of the testator, and not of the validity of the devises contained in it, in any tribunal where the title to the real property of the testator may be in issue. .§ 2627.

' The judgment of the supreme court must be affirmed, with costs to all parties to be paid out of the estate.

All concur.


text:
    The People, Resp’ts, v. Henry G. McGonegal, App’lt.

      (Court of Appeals,

      Filed November 29, 1892.)

    2. Criminal law—Jury—Peremptory challenge by prosecution.
    The prosecution may reserve its right of peremptory challenge to the jurors in each case until after the challenges on both sides for actual bias have been disposed of, provided it exercises such right, if it desires to do so, before it is known whether the juror is satisfactory to defendant and before he is sworn in the cause.

      % Same.
    Sections 385 and 386 of the Code are to be read together, and they have the same meaning as if the legislature had declared that challenges must first be made by the People and then by the defendant in the order enumerated in § 386.
    S. Same.
    Two of the jurors had read the newspaper reports of the proceedings before the coroner’s jury and which the district attorney announced was the same as would be offered at the trial and had formed and expressed an opinion based upon the information thus obtained, as to the guilt or innocence of the defendant. Held, that they were competent to serve, as they made the declaration under oath required by subd. 3, § 376 of the Criminal Code.
    4. Same.
    The statute makes no discrimination between opinions formed from the reading of the testimony upon a former trial and those based upon information gathered from other authentic sources.
    ,5. Same.
    A juror stated that he had a strong prejudice against a person charged with abortion, a prejudice so strong that it would take overwhelming evidence to remove it. Held, that he was competent, as he knew nothing about the case and had no personal feeling against the prisoner, and swore that if accepted he could give the defendant the benefit of the legal presumption of innocence, etc.
    '8. Abortion—Proof.
    Evidence sufficient to prove the commission of the crime of abortion.
    Appeal from a judgment of the Hew York general sessions, -■convicting defendant of the crime of manslaughter in the first ■degree.

      W. T. Birdsall, for app’lt; Henry B. B. Stapler, asst, dist-atty., for resp’ts.
   Maynard, J.

The defendant, a physican, was convicted at the Hew York general sessions of the crime of manslaughter in the first degree, for causing the death of a young unmarried woman by the felonious use of instruments in order to produce án abortion.

The first exceptions, deserving attention, relate to the disposition of the challenges of the parties to individual jura ns.

The prosecution was permitted to reserve its right of peremptory •challenge in each case until after the challenges on both sides for actual bias had been disposed of; but was required to exercise such right, if it desired to do so, before it was known whether the juror was satisfactory to the defendant, and before he was sworn in the cause. We think this mode of procedure was authorized by the provisions of the Criminal Code. Section 385 requires challenges to an individual juror to be taken first by the People and then by the defendant. The next section prescribes the order in which challenges by either party shall be made, and divides them into four classes; three for cause of different kinds, and the last peremptory. The two sections are to be read together, and they have the same meaning as if the legislature had declared that challenges must first be made by the People and then by the defendant in the order enumerated in § 386.

It is not a reasonable construction of these provisions to rehuiré the People to go through the entire list of individual challenges and determine whether they will avail themselves of all of them, before the defendant can be required to make a challenge upon any ground. It is sufficient if the different classes are taken up seriatim, and in the order specified, and each party called upon to determine whether, as to that class, it is desired to interpose a challenge; the People first, and then the defendant. It satisfies the language of the statute, as well as its evident intention, and secures no unfair advantage to the prosecution. In ordinary practice the challeges for cause may be grouped; as one examination will be sufficient to determine whether any tenable grounds exist for any of them, or the statements made upon an examination to •determine one ground of challenge may be considered by the court in determining a subsequent challenge upon a different ground, as was held in Greenfield v. People, 74 N. Y., 277.

Several jurors were challenged by the defendant for actual bias, and, after examination, the challenges were overruled by the court and the jurors declared competent to try the cause. So far as practicable, the defendant secured the exclusion of these jurors by the use of his peremptory challenges; but three, who were thus challenged without avail for actual bias, participated in the trial, because the defendant could not protect himself against their presence upon the jury by the interposition of a peremptory challenge. But where the challenge for bias is improperly overruled the exclusion of the juror, upqp a peremptory challenge, does not affect the tenability of the exception. The defendant cannot be compelled to use his peremptory challenges for such a purpose, but should be permitted to reserve them for the rejection of unsatisfactory jurors against whom challenges for cause can not be successfully maintained. People v. McQuade, 110 N. Y., 301; 18 St. Rep., 288; People v. Podine, 1 Denio, 308; Freeman v. People, 4 id., 31.

These jurors had read the newspaper reports of the proceedings before the coroner’s jury, and had formed and expressed an opinion, based upon the information thus obtained, as to the guilt or innocence of the defendant. Two may be selected as fair types of this class, Messrs. Sayre and Miller; the former of whom was excluded by a peremptory challenge, and the latter participated in the trial. The references here made will be to their statements upon the trial of challenges to them for actual bias. While there may be some question as to the accuracy of the reports which they had read, we think it may fairly be assumed, for the purposes of this appeal, that they had.read a verbatim account of all the testimony taken at the coroner’s inquest, and it was announced by the district attorney at the beginning of the trial, and before any of'the jurors were called, that the testimony on the par.t of the prosecution would be the same as that taken before the coroner, and it is to be inferred from his statements that it was not expected that any witnesses would be called by the People who had not then been sworn and examined. It is insisted that these jurors were incompetent to serve, under the decisions of this court in the People v. Greenfield, supra, and the People v. McQuade, supra, but we think these cases, when properly applied, do not sustain the position of the defendant. On the contrary, it was impliedly held in both cases that, upon the facts presented by this record, no reviewable error was committed by the trial court in overruling his challenges. In the Greenfield case, which was a trial for murder, the obnoxious jurors had read the report of a former trial of the accused, when the jury disagreed, and had formed and expressed an opinion upon the question of his guilt which it would require'! evidence to remove. This court held, as a question of fact, that it was not satisfied that this opinion did not influence their verdict. The case arose before the adoption of the Code of Criminal Procedure; but after the enactment of chapter 475 of the Laws of 1872, which changed the rule of the common law and provided that a juror who had formed or expressed an opinion was, nevertheless, competent if he declared on oath that he verily believed that he could render an impartial verdict according to the evidence, and that such previously formed or expressed opinion would not bias or influence his verdict; and if the court was satisfied that such person did not have such a present opinion as would influence his verdict. It was considered here when chapter 427 of the Laws of 1873 was in force, which required all challenges to be tried and determined by the court only, and provided that either party might except to the determination, and upon writ of error or certiorari it might be reviewed the same as other questions on the trial.

jThe court very plainly intimate that where the juror makes declaration required by the act of 1872, the decision of the court would be final and conclusive, were it not for the later statute, which authorizes the appellate court to review upon the facts as well as the law, and say, at page 287: “ There does not appear to be any question of law involved in the present inquiry. There was no exception pressed upon us which was taken to the admission or rejection of evidence. The effect of the statute of 1872, in such a state of facts as this case shows, is that the fact of forming or expressing an opinion or impression, or of having ■either at the time of the challenge, is not, as matter of law, conclusive proof of bias or unindifference. So that there is here only the question of fact, whether the two persons proposed, or either of them, had such a bias against the prisoner as not to stand indifferent.”

The act of 1872 has been literally incorporated into sub. 2 of § 376 of the Criminal Code, and the act of 1873, authorizing a review of the findings of fact of the trial court upon such a challenge, was repealed when that Code took effect, and the right to review in such cases is now controlled by § 455, and is limited to a decision of the trial court upon a matter of law by which the substantial rights of the defendant are prejudiced and not otherwise in allowing or disallowing a challenge to a juror for actual bias. It is thus apparent that if the question reviewed and decided in the Greenfield case had arisen after the adoption of the 'Criminal Code, this court would have been powerless to have ■overruled the decision of the trial judge; but would have been compelled to have accepted it as final and conclusive.

In the McQuade case the change in the practice was recognized, ■and it was held that the decision at the trial as to the indifferency ■of a juror was not re viewable here, except in the absence of sufficient evidence to support it, and cannot be reviewed, if the challenge is overruled, unless the evidence discloses a condition of mind on the part of the juror, which, as matter of law, renders him incompetent for actual bias, after applying the test allowed by sub. 2 of § 376. It was also held that where it appeared that the juror had formed or expressed an opinion from a careful perusal of the testimony given on a former trial, the declaration required by the juror to avoid the objection of disqualification must be certain and unequivocal, and it is not enough that there are detached statements, which, if alone considered, would seem to meet the statutory requirement, if, on construing the whole statement, it is apparent the juror is notable to express an absolute belief that this opinion will not influence his verdict, and that, as matter of law, the overruling of the challenge under such circumstances was error. The juror there stated that if the evidence was the same as that given on the former trial, his opinion would be the same; but he thought his present opinion would not affect the weight or influence that he might give to the evidence as delivered from the witness stand; he might be unconsciously influenced; he did not know; he thought it would not influence; if the evidence as given on the trial left his mind in doubt his present opinion might influence or guide his action; he really could not say what effect it would have; he was in doubt as to what effect it would have. These were the statements of the juror upon his examination, and while he gave favorable answers to the categorical questions required by the statute, it was evident he did not have a conviction, which amounted to a belief, that his present opinion would not influence his verdict, and that he could render an impartial verdict according to the evidence. There was, therefore, no sufficient basis for the finding, that he had such a belief or that his .opinion would not affect his verdict.

The present record does not disclose any such uncertainty as to the mental state of the jurors objected to. We fail to find anywhere in their examination an expression of doubt or equivocation on their part as to their ability to render an impartial verdict according to the evidence, notwithstanding their present opinion, or as to their belief that such opinion would not influence their verdict. Whenever their attention is called to the point they declare themselves freely and without hesitation to be firmly convinced that they can enter the jury box and accord to the accused the benefit of every reasonable doubt, and of the legal presumption of innocence until guilt is clearly established, and that their existing opinions or impressions will not be an element entering into the formation of the verdict they shall render.

Within the .rule laid down both in the Greenfield and in the McQuade case, their competency became a question of fact, and the decision of it at the trial cannot be disturbed upon this appeal.

The statute makes no discrimination as to their legal effect between opinions formed from the reading of the testimony upon a former trial and those based upon information gathered from other authentic sources. Upon this point nothing wms decided in Greenfield v. People, except that where in a capital case, which had been once tried and had resulted in a disa-. greement .of the jury, it appeared that the juror had read! the testimony wholly or in part given upon the former trial, and had a present opinion derived therefrom as to the guilt of the prisoner, this court was not satisfied that his opinion would not influence his verdict, although he made the statutory declaration without qualification. That case merely embodied the deliberate judgment of this court in regard to the proper conclusion, of fact to be drawn from the testimony in a given case at a time' when it had power to review the facts. As such it will undoubtedly receive the consideration and respect to which it is entitled at the hands of trial courts, where precisely the same state of facts is presented for their decision. It is not authority for the claim that, as matter of law, the juror is disqualified under such circumstances, but expressly declares that it is purely a question of fact. In determining the fact of indifferency there is, however, a wide distinction to be noted between an opinion based upon the testimony given on a former trial and one formed after reading the proceedings upon the inquisition of a 'coroner. In the latter case the accused is not on trial. 1’t is an ex parte inquiry as to the immediate cause of death, and the agency which produced it. The suspected criminal is not represented by counsel; the witnesses are not subjected ta the test of a cross-examination; and no. defense is permissible. An opinion or impression formed from a perusal of the report of such a proceeding does not present the same stacle to an impartial judgment upon the evidence to be given upon the trial ol the defendant as one resulting from an examinatian of the minutes of a trial where the defense has been fully beard. The fair presumption is that the oral deliverance of the testimony given upon a former trial will have the same effect as its perusal upon the mind of the juror, and it will ordinarily be difficult for him to freely make the statutory declaration, and if he qualifies it with a doubt or an expression of distrust in his ability to act without bias, the statute is not satisfied, and he is disqualified. But an opinion based upon a newspaper account of a coroner’s examination will properly have much less weight in determining the question of indifference. While its existence, or the existence of any opinion founded upon reliable information, will undoubtedly lead to the exercise of great care by the trial ■court in determining the competency of the juror, it is no longer .as matter of law an absolute disqualification.

The personal appearance and demeanor of the juror, and the intelligence exhibited by him upon his examination, are important factors in reaching a just conclusion in all such cases. They evidently had their due ■ weight in the present case, for the court, in overruling the challenge to the juror Sayre, said: “I have examined this juror, and have taken into consideration his mental condition. He is a man of intelligence and, apparently, of a disposition to do his duty. I think he is a qualified juror and in regard to the juror Miller, the record states: “ The court, after seeing the juror and hearing his examination, and, in the light of all the statements of the juror as regards his condition of mind, holds him to be a competent juror, and overrules the challenge.”

These aids to a correct judgment are not available upon appeal. The trial court has the best means of testing the qualifications of the juror, and unless there is a failure to meet the ¡statutory requirements; its decision must be held to be conclusive here. Great stress is placed by counsel upon the statement of jurors that they had an opinion which they would take with them into the jury box, and which it would probably require evidence to remove. That would necessarily be the condition of their minds if they had any opinion at all. It is not conceivable that when sworn as jurors they could lay it aside as they would a garment which it was no longer convenient or appropriate for them to wear. The statute pre-supposes such a mental condition. It proceeds upon the reasonable theory that the existence of an opinion as to the subject of the investigation is not inconsistent with the attitude of an impartial seeker after truth. It recognizes, what intelligent observation confirms, that it is safer to trust the man who keeps himself fully informed as to the current events of the community in which he lives, and has views and opinions of his own with respect to their import, than it is to rely upon the judgment of one who takes no interest in such matters, or does not have sufficient intellectual activity' or vigor to form an opinion in regard to them when they are brought to his attention.

The challenge to the juror Hess rested upon different grounds. He, in terms, stated that he had a strong prejudice against a person charged with such a crime: a so that it would take overwhelming evidence to remove it If the prejudice was a personal one, having for its object the defendant in this case, it must be conceded that he was, as matter of law, incompetent. A finding that he was indifferent would have no-sufficient evidence to support it. His case was not within the purview of the act of 1872, and the statutory declaration would not be available to remove the disqualification. But we think his evidence, fairly construed, does not indicate such a state of mind towards the defendant. His prejudice was an impersonal one directed against the crime itself and everyone guilty of committing it. It was such a feeling as every right minded citizen would naturally entertain without disqualifying him for jury service in a case where it was charged that the crime had been committed. He stated that he did not know anything about the case; had no-prejudice or opinion in the case which would require evidence to remove; what prejudice he had was against the accusation; he did not think that he had any such prejudice as would influence him in the performance of his duty in the case; was certain that he had not; outside of any prejudice he had in relation to matters of this kind in general, if he was accepted as a juror, he could discharge his duty under oath and decide the case upon the evidence, and that alone, entirely uninfluenced by any prejudice or in relation to any matter; he had no prejudice or opinion in this case whatever that would take evidence to remove, of any kind or character; if accepted as a juror, he could give the defendant the full benefit of the legal presumption of innocence, until he was satisfied to the contrary beyond a reasonable doubt. It will thus be seen that he positively avows that he has no prejudice-against the defendant or his case. Yiewed in the most favorable light for the defendant, his examination presented only a question of fact as to his competency; the decision of which we cannot review.

Upon a prosecution for a violation of the lottery laws, it was held that a juror was not disqualified because he had a prejudice against the business and those who were engaged in it, and was-in-favor of active measures for its suppression; inasmuch as he also testified that he had heard, read and talked nothing about the particular prosecution, and felt that he could decide the case without prejudice from the evidence. U. S. v. Noelke, 17 Blatchf., 554; State v. Burns, 85 Mo., 47; Young v. Bridges, 84 La., 383.

It was also held by this court in People v. Carpenter, 102 N. Y., 238 ;. 1 St. Rep., 648, that a prejudice against the defense of insanity did not disqualify a juror in a case where the defense was interposed. .

It is urged that the evidence was insufficient to sustain a finding that death was caused by unlawful means, or if so caused, that they were applied by the defendant, and that a verdict of acquittal should have been directed. A careful analysis of the testimony given upon the trial has led us to a contrary conclusion. The results of the autopsy, if the medical testimony is worthy of belief, very clearly established that death was due to peritonitis following a lesion of the wounded parts, and that the certificate of death, signed by the defendant, falsely ascribed it to inflammatory rheumatism of the heart. As the deceased was the only person, other than the criminal, who was present when the unlawful act was committed, the evidence tending to connect the defendant with the perpetration of the offense was necessarily circumstantial. The jury have found that it was entitled to full credence; and we must be confined to a consideration of its legal effect, assuming it to be strictly true. We do not deem it profitable, for the purposes of this review, to recount the details of a most revolting crime. It is sufficient to state that from the time it is shown that the deceased had her first interview with the defendant until the removal of her dead body by him in the night time, ten days later, from a tenement house to the undertaker’s for burial, every fact proven pointed with more or less directness to him as the primary agency in causing her death. • If innocent, it was his misfortune to voluntarily environ himself in a net-work of circumstances, which, to -the minds of intelligent men, required to reach results by rational processes, would admit of no other conclusion than that of guilt. Even applying the rigorous rule insisted upon 'by defendant’s counsel, that the facts must be of such a character that they cannot be accounted for upon any other hypothesis than that of the criminality of the accused, and must demonstrate to a moral certainty that a crime has been committed, and that he was its author, we think the verdict in this case is impregnable.

The defendant’s conduct must be here construed and judged by the standards ordinarily applied in determining the significance of human actions. If we correctly apprehend the earnest and impassioned, argument of counsel, it was claimed that the defendant’s simplicity of character was such that the same inferences could not be justly drawn from his acts and conversation as might properly be deduced from those of other people acting under similar circumstances. It was for the jury to determine how far this might be true, and what weight it should have in making up their verdict. It is not a consideration which can affect the decision of this appeal.

It is also insisted that there was a lack of opportunity to commit the crime and that the People’s case was fatally defective in this respect. It appears that on July 2, 1890, the day when it is charged the crime was committed, the defendant and the deceased were alone together in his office for a length of time not exceeding five minutes in duration, which, it is claimed, was not long enough to obtain the necessary information from a stranger and successfully perform the required operation. It was shown by the expert testimony that this period of time might have been sufficient for such purpose; but whatever force this criticism would otherwise be entitled to, it is deprived of its principal effect by the evidence of the defendant himself. He testified that he had met the deceased previously to July 2d, and the jury were at liberty to infer that the meeting on that day was prearranged, or they may have found that the criminal act was committed at a former meeting, as he also testified that on July 2d she was then complaining of the pains which are usually regarded as the premonitions of a miscarriage. The most important witness for the prosecution was a young woman, who had been an intimate companion and the confidant of the deceased, who knew of her pregnancy and of her desire to obtain relief by prohibited means, and who accompanied her to the defendant’s house upon July 2d, and remained in the front or reception ‘room while the deceased and the defendant were in a back or office room; and who aided the deceased in engaging apartments for use during her expected sickness.

It is sought to fasten upon this witness the character of an accomplice of the parties engaged in the commission of the crime charged in the indictment, and thus detract from the weight of her evidence. It is not claimed that she aided or even advised the defendant in his criminal undertaking, or was present when it was consummated. Even the deceased was not an accomplice-of the defendant in the commission of the crime of abortion, and,, if she had lived could not have been indicted for that offense. It was so held by this court in the People v. Vedder, 98 N. Y., 630. Her crime was of a different nature and is defined in § 295 of the Penal Code. The witness may have been an accomplice of. the deceased in the commission of that offense, and her association with the deceased and moral implication in her criminal conduct, were matters which could not have escaped the attention of the-jury, for it is not probable that the learned and vigilant counsel failed to make them the subject of proper comment in their plea, for the defense. There was no request for a specific instruction, upon this point, and there is no exception which presents any question with respect to it for our consideration.

There were many exceptions taken upon the trial to the admission and rejection of evidence. We have examined them all and do not find any error which affected the substantial rights of the-accused. Many of them are clearly untenable, while others relate to the order of proof or to the exclusion of testimony subsequently admitted, and which could not have prejudiced the defendant The defendant’s counsel seem to have been allowed great latitude-in the examination and cross-examination of witnesses, and our attention has not been called to any incompetent evidence received, against their objection or to any competent evidence offered by them which was finally excluded.

The charge of the judge fairly presented the rules of law applicable in such cases, and all of the defendant’s requests were substantially charged, except such as were equivalent to a direction to acquit, or related to matters which had already been fully charged. The review of the evidence was impartial and apparently accurate, with the exception of the misquotation of a remark made by Mrs. Collins to the defendant, when he first called on the deceased at her house, and which, as recited by the trial judge,, conveyed a different ineaning from the statement' given in evidence.

It was, unquestionably, an unintentional misstatement which would have been corrected if the attention of the court had been called to it in season, and there is no exception which renders it available here. We cannot review the discretion of the trial court as to the measure'of punishment inflicted, so long as it did not transgress the limits prescribed by the Penal Code. It may be equivalent to a life sentence, but we cannot say that it is more, than sufficient to atone for the flagrant crime of which the defendant has been adjudged guilty.

The judgment of conviction must be affirmed.

All concur.


text:
    Mary B. De Frece, Adm’rx, Resp’t, v. The National Life Insurance Co., App’lt.

      (Court of Appeals,

      Filed November 29, 1892.)

    1. Insurance (Life)—Payment of premiums—Notice.
    Plaintiff’s intestate was insured in the defendant company on the yearly instalment plan, but it made a new agreement with him by which he was to pay quarterly and he was allowed to pay nearly all the premiums after they became due. At the time of his death he was indebted for part of a premium for which he had given a note and also a premium which had just become due. Seld, that there could be no forfeiture unless defendant alleged and proved nonpayment after due service of the notice required by law, and this it failed to do, because its proofs showed an agreement to accept payment within a reasonable time after the quarterly payment became due which had not elapsed when the death of the insured occurred..
    2. Same—Waiver.
    Acceptance of the October instalment three days after the January instalment became due waived any forfeiture which might be claimed on account of the omission to promptly make the October payment, and was also strong corroborative evidence of an intent not to rely upon a failure to comply with the requirements of the notice given to make the January payment when due.
    Appeal from the judgment of the supreme court, general term, first department, affirming judgment entered upon a verdict, directed by the court at circuit.

      I. N. Williams, for app’lt; B. F. Einstein, for resp’t.

       Affirming 46 St. Rep., 479.

   Maynard, J.

The defendant, a life insurance company incorporated under the laws of Vermont, insured the plaintiff’s intestate upon what is known as the instalment bond plan-. The contract on its part consisted of a promise to pay the insured $1,000 at the expiration of twenty years from the date of the instrument, or,, if he died before that time, to pay a like sum to his assigns within ninety days after satisfactory proof of death, deducting all indebtedness of the parties in interest to the company incurred on account of the bond, with the residue, if any, of the year’s instalment The policy then states that it is issued by the company and accepted by the insured and beneficiary upon certain conditions, one of which is: “That the National Life Insurance Co. issue this bond in consideration of an instalment of sixty-three dollars and seventy-four cents to it this day paid by the insured, and the agreement that a like sum shall be punctually paid to it on or before the 27th day of October in every year, until twenty annual instalments shall have been paid or until his decease.” Another condition stated is: “ In case any instalment upon the. bond, or any part thereof, or any note given therefor, shall not be -paid when payable, the bond shall thereupon become forfeited ¿and void; except after two full annual instalments shall have been paid on it; in which case the company hereby binds itself to pay, for a full surrender of same, the sum, stated in the margin, which shall correspond with the number of instalments paid, as its ■cash value with the surplus, if any, which may then have accrued.”

A statement of the guaranteed cash value of the bond for each year after the expiration of two years is then given.

There were three such bonds cotemporaneously issued. The complaint alleged the making of the promise in consideration of the payment by the insured, of sixty-three dollárs and seventvfoui cents and an agreement that a like sum should be paid to it annually during the twenty years or until the death of the insured, and that the insured had complied with the terms of the agreement so far as the same were to be complied with by him. Tim answer admitted the execution of the bond, but denied that -the insured had complied with its terms. It also set up a subsequent agreement with him by which the instalments were to be paid quarterly instead of annually 'and that the last quarterly instalment, which fell due twenty-three days before his death, had not been paid and that the company more than thirty and less than sixty days before it became due served the notice required by chap. 341 of the Laws of 1876, as amended in 1877, chap. 321, ■and the bond had thereby become forfeited and void. It also set up a counterclaim for the amount of an unpaid promissory note given by the insured to the company. The plaintiff first replied to the counterclaim. Subsequently she replied to the other new matter in the answer, simply denying any knowledge or information sufficient to form a belief in regard thereto. The cause was tried before a jury and the plaintiff rested upon the pleadings and gave no evidence. The defendant then, without moving for a dismissal of the complaint, or a direction of a verdict, .assumed the affirmative and gave evidence tending to show that two years after the execution of the bond it was agreed between the insured and the company that the instalments of premium ■should be paid quarterly instead of annually, and proof of the ■service of a notice, claimed to be in conformity to the act of 1876, and of the nonpayment of the last quarterly instalment.

It is evident that if the defendant relied upon the literal terms of the bond it had no defense to the action. The agreement of the insured was to pay $63.74 annually on the 27th day of October, and under the law of this state a failure to make such payment would not work a forfeiture of the policy, unless the defendant, more.than thirty and less than sixty days prior thereto, served upon the insured a notice that if that sum was not paid on or before that day the policy would become lapsed and forfeited.

The notice which was served did not state the amount specified In the policy, but a smaller sum which was subsequently paid to and accepted by the company, and the defendant does not rely upon any default occurring on October 27th, but upon one which is alleged to have occurred on the 27th day of January, following,, and previous to which it is claimed the statutory notice was duly served. There is nothing in the agreement requiring any payment to be made on the latter date, and the defendant sought to establish the making of a new and supplemental agreement in regard to the payment of premiums, by which it was stipulated that they should be made quarterly instead of annually as prescribed in the policy. There was no proof upon this point, except the fact that from October 27, 1883, to October 27, 1888, inclusive, the insured had paid the premiums quarterly, and they had been, received and accepted by the defendants, and receipts given which recited that they were for premiums falling due quarterly and not annually. Without question, this evidence was sufficient to establish a modification of the original agreement of the parties with, respect to the time of payment, and, had it not been qualified or restricted, would have authorized the service of a notice requiring payment to be made on January 27, 1889, which if not complied, with would have resulted in a forfeiture of the policy.

But the same evidence established another fact of great importance to the rights of the insured, and that was that the company had also agreed with him that they would receive payment of theinstalments after they became due if payment was made in a reasonable time thereafter, and would waive the right given them by the policy to declare it forfeited if punctual payment was not made. We do not think the evidence given by the defendant’s-witnesses is susceptible of any other reasonable inference. Of the ..twenty-one payments to which it related, all were made after they became due and at intervals of time varying from twenty days to five months, excepting three which were presumably paid by note.

It also appeared from the defendant’s evidence that the single-payment of an annual premium which fell due October 27, 1882, before the modification of the agreement was made, was not paid until December 30th following. The plaintiff called no witnesses,, and all these facts appeared from the proofs upon which the defendant relied to assert- its right to declare a forfeiture of the policy. What was shown by the plaintiff upon the cross-examination of the defendant’s witnesses was by way of amplification of the facts brought out upon their direct examination and was properly received for the purpose of presenting them in their true, light for the consideration of the trial court. It was entirely competent for the parties to modify the terms of the original contract with respect to the time of payment and the effect of a failure to-make punctual payment, and the evidence is sufficient to support a finding that the defendant agreed subsequently to the execution of the contract to accept payment of the premiums quarterly or within a reasonable time thereafter, and that the policy should continue in force until such payments were made, providing they were not unreasonably deferred. It has been repeatedly held both in the state and federal courts that such an agreement may be inferred from the course of dealing between the parties. Leslie v. Knickerbocker Life Ins. Co., 63 N. Y., 34; Meyer v. Knicker-

bocker Life Ins. Co., 73 id., 516; Wyman v. Phoenix Ins. Co., 119 id., 274 ; 29 St. Rep., 567; Kenyon v. K. T. & M. M. Ass'n, 122 N. Y., 247 ; 33 St. Rep., 467 ; Ally. Gen. v. Continental Life Ins. Co., 33 Hun, 141; Ins. Co. v. Wolff, 95 U. S., 326; Ins. Co. v. Eggleston, 96 id., 577; Ins. Co. v. Doster, 106 id., 37; Helme v. Philadelphia Life Ins. Co., 61 Penn., 107.

It is immaterial how the transaction may be legally designated. If it has the element of advantage to the promisor or of loss to. the promisee, or if there are mutual promises, it may be upheld .■as a valid agreement supported by a sufficient consideration, or if the insurer by any declaration or course of action leads the insured to believe that by conforming thereto his policy will not be forfeited, if followed by due conformity on his part, it will •operate as an equitable estoppel, and in either case the result will be the same. The forfeiture is not incurred, and the policy con"tinues in force. There is no question of pleading involved. The plaintiff was not bound to allege or prove the payment of the annual premiums when due. The contract is to be read as if *he act of 1876 had been literally incorporated into it. There ■could be no forfeiture for this cause unless the defendant alleged- and proved non-payment after the due service of the notice re-quired by law. This it undertook to do, but failed, because its proofs showed an agreement to accept payment within a reason.able time after the quarterly payment became due, which had not •elapsed when the death of the insured occurred. Acceptance of the October instalment three days after the January instalment became due, waived any forfeiture which might be claimed on account of the omission to promptly make the October payment, -and is also strong corroborative evidence of an intent not to rely upon a failure to comply with the requirements of the notice given to make the January payment when due. As the defendant was never in a position where it could insist upon a forfeiture, it becomes unnecessary to consider the question of the sufficiency •of the notice served.

The judgment must be affirmed, with costs.

All concur.


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

text:
    Ellis H. Crow, Resp’t, v. Patrick J. Gleason, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    1. Evidence - Stipulation— Construction.
    Plaintiff, a liveryman, brought an action to recover for horse hire, extending through a period of ten years, against a corporation of which defendant was an officer. Most of plaintiff’s books of original entry had been lost. It appearing that defendant had hired the horses individually, a stipulation was made for a discontinuance of that action; that the evidence taken thereon should be part of the proof in an action against defeadant individually; that the accuracy of plaintiff’s account should be tested by proof of the particular items charged for one week during the period of the lost books, and of one or more items during the time for which books were produced, and that all other items in plaintiff’s ledger and bill of particulars to stand as if they "were sufficiently proven in same way. Held, that plaintiff having given the proof required by the stipulation before it was entered into could not be made to give such proof de nemo, and that the lo.daers wei e properly received in evidence..
    (Van Brunt, P. J., dissents.)

      2. Payment—Running account—Evidence.
    The defense of payment is not established by proof that plaintiff rendered bills weekly ; and the production of receipts showing that a large number of such bills had been paid shortly after presentation, and proof that similar receipts had been lost, when the evidence of plaintiff shows that the items of such bills and receipts formed part of and entered into a running account.
    Appeal from a judgment in favor of plaintiff, entered upon the report of a referee.

      Jesse Johnson, for app’lt; Edwin R. Leavitt, for resp’t.
   Patterson, J.

This appeal is from a judgment entered on the report of a referee, who found in favor of the plaintiff on one of the two causes of action set forth in the complaint That cause of action was in substance and effect for the balance of an account for horse hire, sucli account beginning with a debit under date of April 26, 1875, and ending with a credit on the 13th day of No-" vember, 1885. Annexed to the complaint is a long itemized account, which, on the trial, was treated by both parties as a bill of particulars. The answer admits that, during the period embraced within the dates mentioned, the defendant did hire horses from the plaintiff ; but it denies that such hiring was of the number of horses or that the defendant is indebted in the amount stated in the bill of items ; and it also averred that payment was made of all that was due and owing the plaintiff; the defendant having settled and paid weekly bills rendered for all horses hired by him. The defense of the statute of limitations is also pleaded to the demand. The account was kept and the items originally charged against the Long Island City Railroad Company, with which the defendant was officially connected, and a suit against that company for the identical balance of indebtedness now claimed was brought by the plaintiff, defended, and the issues therein were referred. On the hearing of that action it appeared by the testimony of the present defendant that he personally hired all the horses on his own account; that the transactions were between himself and the plaintiff, and that he used the horses in his own business. Thereupon a stipulation was made which is all important in this case ; the action against the railway company was discontinued, a new one against this defendant was begun; was referred to the same referee to hear and determine, and the testimony taken in the prior action was made part of the proofs in this.

To sustain his claim, the plaintiff undertook the task of proving or establishing each item of the bill of particulars. It was not an account stated. It had never been rendered as a whole, and no promise was made, and no circumstances were shown from which one could be implied, to pay the balance. The plaintiff put in evidence certain ledgers containing postings from books of original entry of all the items charged and credited. He also showed that he kept what are called horse books,” in which were recorded from day to day the number of horses hired by the defendant and the charges therefor. Testimony was given by the servants of the plaintiff to the effect. that those books were correctly kept, the entries being from information coming from the employees who delivered the horses to the defendant; but it also appeared that the horse books were lost, except those covering a part of the years 1883, 1884 and 1885. The defendant objected and excepted to the admission in evidence of one of the ledgers, and now urges that there was no proper or competent proof of the items of the account resulting in the amount with which the-referee has charged him. We do not deem it necessary to pass-upon the question of evidence discussed by counsel, for the reason that the defendant is precluded from raising it by the stipulation above referred to. By it, the plaintiff was permitted “ to give such proof as he may be advised as to any item of horse hire contained in his ledger and complaint, for which the horse book and book of original entry is lost,” and upon proof of loss of those books “„after he has given evidence as to as many items as he may elect, riot less than for one week,” it was to be admitted that the plaintiff, if he so stated, “ can give the same evidence as to all the items-in his bill of particulars which are there stated as having arisen within the period of time for which his horse books or books of' original entry cannot be found * * * and to prove by such evidence as he has one ór more items arising within the time when he has the horse book or book of original entry,” etc., and the defendant also stipulated “ not to insist upon any further proof of such items, but the evidence will stand the same as if those items-had been proved item by item, with the same force and effect that it stands as to items as to which he (the plaintiff) has exhausted proof.” The meaning of this stipulation is that the accuracy of the account should be tested by proof being made of the particular items charged for one week during the period covered by the lost, books, and of one or more items during the time for which the horse books were produced, and all other items in the ledger and bill of particulars were to stand as if they were sufficiently proven in the same way. The terms of this stipulation were substantially complied with, the plaintiff giving the required proof, and .its effect cannot be avoided by the argument now made that such proof was to be given de nova and at a date subsequent to that of the stipulation. Some of the evidence is contained in the testimony of witnesses given on the hearing of the action against the-railroad company, but it was made part of the record before the-referee in this cause and is within the spirit of the agreement between the parties. Without regard, therefore, to the abstract rule of evidence, which otherwise might require consideration, we think, for the purposes of this action, the plaintiff furnished all the-proof necessary to make out his prima facie case.

The referee found that the defense of payment was not established, and, on the whole evidence, we cannot disturb that finding. There is no proof of payment of any ascertained or fixed! balance of account; but the defendant insists that all the transactions between the plaintiff and himself were settled from time to time, and at short intervals; that bills were rendered weekly, all which were fully paid, and some seventy two receipt for various amounts were put in evidence by the defendant. One of them is dated in 1872, seventeen in 1878, two in 1881, eleven., in 1883, thirty-eight in 1884, and two in 1885. Some are for specific items, some generally on account The defendant states he had had receipts during other years, but they were lost. The-question of fact for the referee to determine in connection with, these receipts related not only to the mere payment of the sums; represented thereby, but he was called upon to infer therefrom the nature of the dealings between the parties. There was enough, in the testimony of Crow and of Frazee to authorize the conclusion that each of the items contained in these bills receipted, or reóeipts, formed part of and entered into the running account, and. that each was not a distinct matter settled and paid for at or about the date of such receipt •

The defendant claimed that all items prior in date to April 23, 1884, were barred by the statute of limitations, the action having been begun April 28, 1890. The referee held the statute did not apply. He found that the defendant made payments on account of the general bill within six years, and that such payments took the demand out of the operation of the statute. Lawrence v. Harrington, 122 N. Y., 415; 33 St. Rep., 717.

As the transactions subsequent to April, 1884, were held not. to be independent ones, settled at weekly or other short intervals, the payments must "have been on general account, and among the receipts produced by the defendant are some in which it is stated that they are on account.” The defendant, virtually admitted on August 6, 1884, he owed the plaintiff moneys for horses, and he promised to send some of it to the plaintiff (Ex. No. 1), and there is no pretence that what, was then owing was merely for one week or some short period. What was paid after April, 1884, was all credited in the running account. On the whole testimony, we are not inclined to differ with the referee as to his finding respecting payments made in such manner and under circumstances sufficient to take the claim out of the statute.

The judgment must be affirmed with costs.

O’Brien, J., concurs.

Van Brunt, P. J.

(dissenting,.—I cannot concur. There was no legal evidence as to any of the transactions in respect to which the books of original entry were lost, and, therefore, there was no proof of even one week .in that account. The rule laid down in the case of The Mayor, etc., v. Second Ave. R. R. Co., 102 N. Y., 572; 2 St. Rep., 526, shows what must appear in the character of proof to entitle books of account to be read. The evidence in this case falls entirely short in its compliance therewith even as to one week, and therefore such evidence should not hare been admitted.


author: O’Brien, J.

text:
    Julianna Lustig, Administratrix, Resp’t, v. The New York, Lake Erie & Western Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    Railroad—Negligence—Evidence.
    In an action against a railroad company to recover damages for the death of plaintiff’s intestate through defendant’s negligence, it appeared that the intestate was struck and fatally injured by one of defendant’s trains at a flag station, plaintiff’s evidence tending to show that when the train stopped the passengers were invited by the conductor to get off, not on the side where a platform was, but on the side contiguous to ' the other track, in order to best reach their destination, a race track, and that in so doing intestate was struck by an express train. Defend-, ant’s evidence tended to'show that intestate again boarded the train and^‘ crossed over the platform of the car, and thus got on the other opposite track, where, in attempting to cross, he was killed. After both sides had rested, the defendant moved for a dismissal of the complaint on the ground that it appeared that the death took place in New Jersey, and there was neither allegation nor proof of any statute in that state authorizing a recovery. The court allowed plaintiff to amend his complaint and (o give proof of such a statute, and the jury found for plaintiff. Held, that the judgment for plaintiff would not be distuibed.
    (Van Brunt, P. J., dissents.)
    Appeal from a judgment in favor of plaintiff, and from order denying a motion for a new trial.
    Action to recover damages for the death of plaintiff’s intestate, through defendant’s alleged negligence.

      Buchanan & Steele (Charles Steele, of counsel), for app’lt; Adoph Cohen, for resp’t.
   O’Brien, J.

The action is brought to recover damages for the death of plaintiff’s intestate through the defendant’s negligence. The defense was that the defendant was not negligent, and that there was contributory negligence on the part of plaintiff’s intestate. It appears that on September 16,1887, Bernard Lustig was struck or run over by one of the defendant’s trains at a flag station at the Clifton race track, in the state of New Jersey, and from the effect of such injuries he died, leaving the plaintiff, his widow, and nine children. On the day mentioned the deceased left Jersey City, with other passengers, to go to the race track at Clifton; and, though no dispute arises but that after the train had stopped at this flag station the deceased received the injuries which caused his death, as to the particular manner in which he was injured there is a conflict between the testimony offered by the plaintiff and that presented by the defendant. Clifton was not a regular station with suitable platforms, but was a place where the trains stopped upon a flag signal. It is conceded that, in order to have the passengers going from Jersey City to Clifton reach the race course, it was necessary for them to cross over both the railroad tracks, assuming that they alighted on the proper side of the train. Upon the part of plaintiff testimony was offered to show that when the train stopped the passengers were invited by the conductor to get off, not on the side where a platform was, but on the side contiguous to the other track, and that the passengers thus crossed the intervening opposite track in the direction of the race course; that, after certain of the passengers had alighted, the intestate, who was among the last of those to leave the tram, while engaged in crossing the track, was struck by an express train, and killed. Other witnesses testified that the deceased, after getting off on the platform side of the train, proceeded around to the rear, and it was while then crossing the track that he was struck by the express train. Again, we have the version, which is the one the defendant insists was established by a preponderance of evidence, that the accident was due to the fact that, after the intestate had alighted' from "the train, and while it was in the act of proceeding toward Paterson, the intestate again boarded the train, and crossed over the platform of the car, and thus got on the other opposite track, where, in attempting to cross, he was struck. We 'are not able to reconcile the testimony, nor is it our province. That was left to the jury; and, undoubtedly, they were inclined, after hearing the testimony of the witnesses, to adopt the plaintiff’s version that the accident was caused by the conductor’s invitation to the passengers to alight on the side contiguous to the opposite track of the railroad, and that for that purpose he furnished a stool upon which the passengers could step in alighting from the car. There can be no doubt that, if this version is true, it presented fairly a question for the jury as to whether or not the death was due solely to the defendant’s negligence. We do not think, however, after an examination of the record, that we are called upon, any more than was the trial judge, to dispose of the question thus presented upon conflicting testimony by adopting the view contended for by appellant here, and hold that the verdict was against the weight of evidence.

In addition, however, to this, certain other questions are pressed upon our attention which it is necessary to examine. After the testimony was all .in, and both sides had rested, the defendant, among other grounds, urged as a reason for dismissing the complaint, “ that it now appears that the death took place in the state of New Jersey, and there is neither allegation nor proof of any statute in that state authorizing a recovery. There being no right to recover damages for death at common law, the plaintiff, therefore, has failed to make out a cause of action.” Plaintiff’s counsel thereupon asked leave to re-open the case for the purpose of amending the complaint, and alleging and introducing in evidence the statute of New Jersey authorizing a recovery for death in that state. The motion was granted, the complaint accordingly amended, and evidence was offered of the New Jersey statute. This was all done over the defendant’s objection and exception, and the point raised upon this appeal is that it was error thus to allow the amendment of the complaint. Section 723 of the Code,, so far as applicable to the question here, provides “ that the court may upon the trial, * * * in furtherance of justice, * .* * amend any pleading * * * by inserting an allegation material to the case. And in every stage of the action the court must disregard an error or defect in the pleadings or other proceedings-which does not affect the substantial rights of the adverse party.” We do not see that any substantial right of the defendant was affected by this amendment There was no claim of surprise made upon the trial; and from the manner in which the grounds of dismissal were formulated it is quite evident that the defendant was aware of the omission long before making the motion, and waited for the most favorable moment to give force and effect to this objection. Under the circumstances, therefore, it was a proper exercise of the power vested in the court, assuming that the court had the power. It is insisted, however, that the court had no power to allow the amendment as made, because, as claimed, it virtually permitted the plaintiff to set up a new cause of action. In that connection we are referred by appellant to a number of authorities. The latest authority, Bockes v. Lansing, 74 N. Y., 437, clearly points out what kind of amendments the court has no power to allow. In that case it was held, upon a trial before a referee, that the latter had no power to amend a-complaint on the trial so as to change the cause of action from one for equitable relief to one in ejectment.' In this case the appellant insists that the amendment in effect allowed a change from a common law action to an action upon a statute. We think, however, the appellant is mistaken in this view, because, as there could be no action at common law for negligence resulting in death, and as the only cause of action is one created by statute, it is evident that the plaintiff’s cause of action was an action upon a statute. Had it been brought in respect to a cause of action arising in this state, it would have ■.been unnecessary to plead the statute.

\ The omission of plaintiff consisted merely in overlooking the fact that, where an action is predicated upon a foreign statute, such statute must be pleaded, and, upon the trial, must be proven. This, therefore, was an action upon a statute; but the plaintiff omitted a material allegation, namely, the statute itself; and the amendment allowed resulted, not in changing the cause of action, but, in the language of the Code, in inserting “ an allegation material to the case.” It must be conceded that the power to amend pleadings upon the trial is limited, and that no new cause of action can be introduced. In determining, however, whether a new ■cause of action is introduced or not, the test as given in Daw, respondent, against this very defendant, 110 N. Y., 646; 17 St. Rep., 172, is in point: “A fair test to determine as to whether a proposed amendment of a complaint is allowable under the provision of the Code of Civil Procedure, § 723, in reference to such •amendments, or whether it sets up a new cause of action, is, would a recovery on the original complaint be a bar to a recovery under "the amended complaint? ’’ Applying that test here, we think it will be seen that the court did not exceed its power in allowing the amendment to which exception was taken.

The next exception relates to the alleged error in allowing testimony with reference to the step which it was said the conductor placed for the passengers to alight on, upon the ground that such testimony was incompetent, unless it was shown that plaintiff’s intestate saw the step, and was misled by it into getting off on the wrong side of the train. We do not think there is any force in this objection. Taking the testimony of the witness being thus examined as true, it would show that the deceased got off on the very side of the car that the step was said to have been placed, in ¡such a way as necessarily to have seen it, and it was perfectly competent to show as part of the history of the case what provision was made for the witness, the intestate, and others, to get off •the train.

Appellant’s fourth point is that the damages awarded by the jury are excessive, because there was no evidence presented of pecuniary loss upon which a verdict could be based; and that, if the complaint was not dismissed upon this ground, the request that only nominal damages should be allowed should have been charged by the court We think that this contention is disposed of by the case of Lockwood against this same defendant, 98 N.Y., 523. As therein said : “ The courts have found it impossible to lay down any definite guide for the jury is estimating damages under the act in question,' and we will not attempt it now. * * * In but few cases arising under this act "is the plaintiff able to , show direct, specific, pecuniary loss suffered by the next of kin from the death, and generally the basis for the allowance of damages has to be found in proof of the character, quality, capacity, and condition of the deceased, and in the age, sex, circumstances, and condition of the next of kin The proof may be unsatisfactory, and the damages may be quite uncertain and contingent, yet 'the jurors in each case must take the elements thus furnished, and make the best estimate of damages they can.”

The fifth point relates to the refusal of the court to charge, as requested by the defendant, that, if the jury believed that the witness Weiss had any interest in the recovery in the action, they were entitled to consider that fact as affecting his credibility. The court was entirely justified in refusing any such request, because there was no evidence in the case upon which such a request could ‘have been based. It is true that the defendant attempted to have certain evidence introduced upon cross-examination of the witness Weiss for the purpose of showing bias or interest, which testimony was excluded. Whatever is to be said regarding the exclusion of such evidence, it is clear that, after it was excluded, and there was no evidence in the case to support a request such as was made to the court, it was perfectly proper to refuse the request.

This leaves us, however, to consider whether it was error to refuse to permit further cross-examination of Weiss for the purpose of showing his bias and motive. It may be stated as a general rule that the interest or bias of a witness may always be shown. But the extent to which, for the purpose of showing such bias or interest, the court will permit examinations as to collateral matters, is entirely within .the discretion of the court; and, unless such discretion is abused, it will not be interfered with upon appeal. Here the counsel was permitted to ask the witness as to.whether -he had a personal interest in the action, to which he answered he had not; that he had none whatever ;• and in response to the question as to whether he had not advanced the money to pay the man’s funeral expenses he testified that he was obliged to, because the -man worked for him. The questions objected to, and objections sustained, to which defendant took exception, were:

“ Q. Don't you expect to get paid that back if you get a recovery in this action ?

“Q. Have you been paid that money, Mr. Weiss?”

With respect to the first question, his expectations were a matter of perfect indifference to everybody ; and the same may also be said as to whether he was paid back the money or not Had the questions been directed to eliciting, from the witness the fact as to whether or not there was any agreement that out of the recovery he was to receive what he had paid for funeral expenses, or in some other way to show that he was interested in the event of the action, another question would arise. We think, however, that the court, after allowing the principal questions as to whether he had an interest or not to be answered, properly limited the further examination in regard to the expectations of the witness in the event of a recovery by the plaintiff, and that such limitation was not error for which a judgment should be'reversed.

The appellant finally insists that-it was error to allow the question, asked on cross-examination of the defendant’s engineer, whether on that day his train was late. It will he seen; upon reading the testimony, that it was asked of him for the purpose of showing whether upon the trial he would adhere to what it is claimed by plaintiff’s counsel be had testified to at the coroner’s inquest as to his train being late on the day of the accident Upon the question of credibility and the interest of the witness considerable latitude is always permitted on cross-examination, and in this case, as the question was directed to a fact having some bearing indirectly upon the necessity for greater or less speed, it is doubful, if it had been asked even for that purpose upon cross-examination, whether it would have been error. However, it is unnecessary to decide that question, it being sufficient for this appeal to say that in the connection in which the question was. asked it was not error. We think, therefore, that the judgment and order appealed from should be affirmed, wfith costs.

Patterson, J., concurs in result ; Van Brunt, P. J., dissents.


text:
    Herman J. Von Kamen, App’lt, v. Diederich Roes, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    1. Bills and notes—Evidence.
    In an action on a note, the defense being that it was not given for value, but merely as evidence of a payment under an agreement to purchase defendant’s store at a stipulated price, and also for services rendered as clerk, in such store, the defense being that it was for plaintiff’s own benefit under the agreement, it is proper to allow defendant to testify as to the reasonable value of the store, when the only purpose of the evidence is to show the circumstances connected with fhe transaction.
    3. Same.
    In such case the evidence showed that plaintiff and B., his co-contractor, having made default in the terms of the contract for the purchase of the store, it was sold to a third person, and defendant, on cross-examination, was asked what he had said at the time of sale in regard to the unpaid balance. Held, that, though objectionable, as calling for the acts- and declarations of It., in the absence of evidence showing that he was the agent or partner, or had some relation by which his acts or declarations, were binding upon the plaintiff, it was not prejudicial, because no acts or declara ions of R. were testified to by the witness.
    3. Statute of frauds—Executory contract.
    Evidence of an agreement to buy property, part cash and the balance to-be paid within two years, and, in case of default, the seller to repossess himself of the property, and the buyer to forfeit all claim thereto, as well as to any money paid on account of such purchase, negatives the contention that the provision in regard to default was an executory contract, distinct from the contract of sale, and not to be performed within one-year.
    4. Evidence—Objections.
    An objection to evidence as irrelevant so far as it concerns a co-contractor with one of the parties, who is not a party to the action, is bad in, form.
    Appeal from a judgment entered upon a verdict of a jury in favor of the respondent, and from an order denying a motion for a new trial.

      Bernard, J. Isecke and George H. Kracht, for app’lt; A. H. Berrido, for resp’t.
   O’Brien, J.

The plaintiff brought this action to recover the sum of $200, alleged to be due on a promissory note made by the defendant, and also to recover the further sum of $366, for servicés rendered as clerk in defendant’s grocery store. The answer admitted the making of the note, but denied that the same was made for value, and alleged a want of consideration, and that the same was given to plaintiff for his accommodation. There was in addition a general detdal of all allegations constituting plaintiff’s cause of action; and by the twelfth paragraph of the answer, except as specifically admitted, the defendant denied each and every allegation in the complaint.

In addition to these denials, there are a number of separate defenses set up in the answer, giving a version of the relation of the parties to each other, differing from that in the complaint,, and also setting up a counterclaim. This latter, however, waa stricken out by the court below; and no harm would have resulted had he stricken out every other allegation of the answer except the first, second, third and twelfth paragraphs, already referred to. From these it would appear that the note in question and the services performed were the result of an arrangement or agreement under which a grocery store, formerly owned by the defendant, was to be transferred to the plaintiff and one Henry Roes, in consideration of the sum of $4,000, payable in two years: $200 of which was paid at the time the note sued upon was made and delivered to the plaintiff for his accommodation, and as evidence of a payment under the agreement. Upon the issues thus raised by the pleadings, as to whether or not the-note was given by the defendant to the plaintiff for value, and a© to whether or not the defendant employed the" plaintiff as his clerk, or whether the latter performed the services for which a recovery was sought under an arrangement by which he purchased ■the grocery store, and was running it for the benefit of himself .ami Henry Roes, the testimony was conflicting, and not so preponderating in favor of plaintiff that it could be said he was entitled either to a direction in his favor or, after the verdict, to have it set aside upon the ground that it was against the weight •of evidence.

This leaves us to consider questions raised upon exceptions taken to the admission. and exclusion of evidence. Upon the •defendant’s examination, he was-asked whether or not $4,000 was a reasonable price for the store; to which objection was made that it was immaterial and irrelevant; and the defendant having been allowed to answer, it is now insisted by the appellant that it was error. The reason urged ior this view is that, as the defendant claimed there was an •express contract of sale for a stipulated sum, it was immaterial, in the absence of fraud, what the value of the store was. Were this an action to recover the stipulated sum, we should agree entirely with the appellant It must be remembered, however, that any claim by reason-of this contract, which was set up by way of counterclaim, had been stricken out prior to such testimony by the court; and the purpose of the evidence, as shown by the offer and the ruling of the court, was not to establish a counter•claim, or introduce evidence of damage, but to show the circumstances connected with the transaction, .one of which, and by no means an immaterial one, was as to the value of the -store at the time the alleged agreement of sale was made.

The next assignment of error relates to the admission of evidence of acts or declarations of Henry Roes, an alleged co-contractor. The defendant was asked whether the plaintiff or Roes over paid him any money on account of the store, outside of the 1&200. This was objected to by plaintiff’s counsel, so far as Roes Is concerned, as irrelevant. The ground of the objection is emphasized by the court asking whether the only objection was so far as Roes was concerned. The form of this objection was bad. Henry Roes was not a party to the action, was not represented upon the trial, and no one was in a position to take an objection so far as he was concerned, not even the plaintiff. There might have been some force in the objection if it had been put upon ■the ground thát no act of Henry Roes in making payment was relevant or binding upon the plaintiff.

The record also shows that the witness was allowed to testify .•as to whether or not he ever had a conversation with Yon Kamen ■or Roes, and what was said about paying for goods by either of them. As no objection or exception was taken to the question, it is not before us for review. The evidence shows that the plaintiff and Henry Roes having made default in the terms of the contract for the purchase of the store, it was subsequently sold to a third party. During the course of the defendant's examination he was asked:

“At the time you sold the store, what did you say to -Mr. Yon Kamen or Roes, your nephew, about the unpaid balance ? ” This was objected to as irrelevant and immaterial. The criticism made of a former objection applies also here. The form of the objection was bad, and no harm resulted, because no testimony was given of anything that was said by Roes to the defendant Therefore, even though the question was objectionable, as calling for the acts and declarations of Henry Roes, in the absence of evidence showing that Roes was the agent or partner, or had some relation by which his acts or declarations were binding upon the plaintiff, -no harm was done, because no acts or declarations- of Henry Roes were testified to by the witness.

The next point presented is the claim of error in allowing oral evidence of what was said at the time of making the note. Whatever may have been the old rule in respect to varying the terms of a promissory note, it is clear that the law of this state supports the view expressed in Daniel on Negotiable Instruments, 90, § 81a, that “ it has been- held that it is competent to show by paroi that at the time a note was made it was agreed that it should be held for nothing on the happening of a certain event.” A more felicitous statement of what we regard the rule to be is stated in Story on Promissory Notes, § 190, that “ the total or partial want ■or failure of consideration, or illegality of consideration, may be insisted upon as a defense or bar between any of the immediate or ■original parties to the contract For example, it is a good defense ■or bar to an action between these parties that the note is a mere accommodation bill, that the maker is a mere accommodation maker, and the payee an accommodation indorser.”

The next error claimed was the admission of evidence of an agreement whereby, in case of failure on the part of the plaintiff and Henry Roes to pay $3,600 to defendant at the expiration of two years, they were to forfeit the store and all moneys paid thereon. .It is insisted that as this was an executory agreement, separate and distinct from the agreement of sale, and was not to be performed within one year, it could not be proven, because not constituting a legal contract; that no consideration was shown to support it; and that, inasmuch as the agreement of forfeiture provides for a penalty, the latter could not be insisted upon. Jf, however, we take the defendant’s version of the transaction, there was a contract whereby he was to sell, and the plaintiff with, another was to purchase, a grocery store, stock and fixtures, for :$4,000, of which $400 was paid in cash, and the balance was to be paid within two years, and, in case of default in the payment of ■this balance, defendant was to repossess himself of the store, and plaintiff and his partner were to forfeit all claim thereto, as well as to any moneys paid on account of such purchase. This negatives the contention of appellant that it was an executory contract, separate and distinct from the contract of sale, or one without consideration. In regard to forfeiture, it is always competent for the parties to settle between themselves by agreement the damages to be paid on breach of a contract. Clement v. Cash, 21 N. Y., 256. The general rule requires that what the parties themselves prescribí as a forfeiture shall be so treated. Colwell v. Lawrence, 38 N. Y., 71; Noyes v. Phillips, 60 id., 408; Kemp v. Ice Co. id., 45 ; Little v. Banks, 85 id., 258. In the absence of any agreement by which provision was made for defendant retaining the money in the event of plaintiff, and the one interested with him, not having completed their contract by paying the balance, the cases are uniform in holding that the monejr so paid could be retained by the defendant, and could not, under the circumstances, be recovered back in an action by the plaintiff. The reason for this rule of law is well stated in Lawrence v. Miller, 86 N. Y., 131, wherein it-is said: “The defendant came by it, that is, the money,, rightfully, in pursuance of a contract lawfully made between competent parties. He has made no breach of that contract. ( He has failed in no duty to the vendee. Wherefore, then, should he give up that which was rightfully his own? When and whereby did it cease to be his and to be due to the vendee ? If the contract had been kept by both parties, the money paid would still be his of right. The contract would have been kept, but for the breach of it by the veiidee. To allow a recovery of this money would be to sustain an action by a party on his own breach of his own contract, which the law does not allow.” Havens v. Patterson, 43 N. Y., 218; Chande v. Shepard, 122 id., 402 ; 33 St. Rep., 725; Brewer v. Ford, 35 St. Rep., 967. Our examination of the objections relied upon by the appellant has not convinced us that any error was committed upon the trial, and we think that the judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., and Patterson, J., concur.