author: Learned, P. J.: Westbrook, J.:

text:
    MARY DOE, Respondent, v. RICHARD ROE, Appellant.

      'Action- f07' a separation on aacomit of cruel treatment — cannot he maintained where the cruel treatment was occasioned hy the complainant's adultery — meaning of words ill conduct" in section 53 of % R. 8., 147 — Joinder of a cause of action for a divorce, with one for a separation.

    Upon the trial of this action, brought by the plaintiff to procure a limited di- , vorce from the defendant on account of his cruel treatment of lier, it appeared that for some time previous to December 10, 1877, she had been in the habit of having illicit intercourse with one Plata, having visited him at ■his market for that purpose, and having sent to him by the hands of her daughter, a girl about eleven years old, notes asking for interviews and expressing her love and her desire to be with him. On December 10, the daughter handed one of these notes to the defendant, and informed him that she had previously carried similar notes toPlatz. The cruel acts complained of took place on that and the following day, and on or about the 24th, 27th and 29th of that- month, and were caused by the discovery of the plaintiff’s adultery. On April 16-the plaintiff went away from the de-.. fendaut, and has since been living apart from him in another city.

      Held, that the plaintiff was not entitled to maintain the action nor to have any allowance made to her for her support.

      TerhuneY. Terhune, 40 How. Pr., 258, and Henry v. Henry, 17 Abb. Pr., 411, not followed.
    The adultery of the wife is “ ill conduct ” within the meaning of those terms as used in section 53 of 2 R. S., 147, authorizing the defendant, in an action for a separation, to prove ill conduct on the part of the complainant.

      Quaere, as to whether or not, under the present practice, a cause of action for a divorce, on the ground of adultery, can be united with one for a limited divorce, on the ground of cruel treatment. (Per Learned, P. J.)
    Appeal from a judgment granting to the plaintiff a limited divorce on account of the cruel and inhuman treatment of. the defendant, her husband, and an allowance of $150 .per annum for her maintenance and support, with the costs of tho action.
    This is an action ■ for separation, on the ground of cruel treatment. It was proved in defense, and it is found by the referee, that previous to the cruel treatment, the plaintiff had committed adultery, and that knowledge of that fact or reason to believe it had come to the defendant; that all the cruel treatment was occasioned by this adultery, and took place after the knowledge thereof, or reason to believe the same, had come to the defendant, and was committed only when the subject of. such adultery was under d'seussion; that previous to the time when the defendant learned of said adultery, or had reason to believe the same had taken place, the plaintiff and defendant lived on happy and amicable terms.
    That previous to such treatment, the plaintiff had sent by a daughter of tho parties, addressed to the paramour of the plaintiff, several notes, which had been delivered by said daughter to the defendant. These notes are set forth. They are improper, and plainly indicate adulterous relations.
    The referee held that these facts constituted no defense; that the adulterous conduct of the plaintiff, although it caused the defendant to commit the violence, was not “ ill-conduct ” within- the meaning of tho statute; and he reported that the plaintiff was entitled to a judgment for separation.
    The Special Term, confirming the report, adjudged separation, and further allowed the plaintiff alimony and costs.- .
    The defendant appeals, and insists, first, that as the.knowledge of the plaintiff’s adulterous conduct was the cause of. the cruel treatment, it was á defense ; and secondly, that -such • conduct was a bar to tbe allowance of any alimony.
    V. 0, Moak, for tbe appellant.

      ,8. W. Jackson, for tbe respondent.
   Learned, P. J.:

, We must bear in mind, at the outset, that the question is not whether a husband may maltreat an adulterous wife, without her having any remedy. The criminal law, with its preventive power of binding over to keep the peace, may be called to her aid against such maltreatment, whatever her own character may be.

The question here is whether an adulterous wife, the knowledge of whose adultery has caused her husband to maltreat her, has a right to a limited divorce.

The question must, in this State, depend principally on the meaning of the statute. It is provided that, in- an action of this .kind, the defendant may prove in justification the- ill conduct of the complainant, and that, on establishing such defense, the bill ■shall be dismissed. (2 R. S., m. p. 147, § [53].) Now', a moment’s consideration will show that this provision does not mean that the defendant may show that the alleged'cruel treatment took place in resisting the violence of the plaintiff. Because violence, used in repelling, violence and necessary therefor, would not be cruel treatment. But the statute is an adoption of the principle, familiar to • the law of .this subject, of compensation or re&rirnñnalion. It is the.principle that, in an action for divorce, the plaintiff .shall not have relief, if he has himself violated the marriage contract. (Ayliffe’s Paragon, 226 ; Pa/ria delicia mutud compensaiione ab'oleantnr; :Sanchez De Sancto Matrimonii Sacramento, Lib. X., • Disp. V., §" 2, and Disp. VI.) And it must be understood that ■"the ground of'this doctrine is not that the wrong-doing of the plaintiff justifies the defendant in his wrong-doing. - Very plainly adultery on the • part of the plaintiff does not justify adultery on the part of the defendant. And yet the plaintiff’s adultery is a bar to relief against that of the defendant. And therefore it can be seen that the reason of the principle, in these cases, is that the plaintiff, having himself violated, his matrimonial duty to an,extent which entitles the defendant’ to a divorce, shall have no-relief for the defendant’s wrong-doing. The plaintiff does not come with clean hands. (See remarks in Lempriere v. Lempriere, Law Rep., 1 Prob. & Div., 569.)

In Terhune v. Terhune (40 How. Pr., 258), the plaintiff, in an-action for limited divorce, demurred to a part of the answer which , set up adultery, and the General Term of the Common Pleas sustained the demurrer. The argument of the court is based on the, idea that to hold otherwise would be to concede that a husband had; a right to treat his wife cruelly, because she had been guilty of’ adultery. But the argument is not sound. It cannot be said that ■ a husband • has a right to treat his wife cruelly because she has; been guilty of any hind of ill-conduct. And yet the statute expressly says that ill-conduct is a defense to the action. Por the,courts have often held that if the alleged cruelty is the result of the plaintiff’s misconduct, she has no right to a divorce. (Moulton v. Moulton, 2 Barb. Ch., 309; 1 Bishop Mar. & Div., § 764, et seq.)

That case is based on a Special Term case in: the same court (Henry v. Henry, 17 Abb. Pr., 411), where the question came up on a motion for leave to set up adultery as a supplemental answef. The court said it was not a .counter-claim, because it did not arise on the transaction; that it was not a defense, because not connected with the acts of cruelty alleged. The court- must' have overlooked section 53, above cited, which does not limit the ill-conduct to. that which is connected with the acts alleged in the complaint.- The court further said that the kinds of relief were ■ different, so that they could not bo joined. But where adultery is set up as a der fense only, no affirmative relief is' asked. And- the court said that the causes could not be tried in one action. If causes at law and in equity can be united, there seems to be no difficulty of the kind suggested in that case. Equitable defenses may be - set up to legal actions.

In McIntosh v. McIntosh (12 How. Pr., 289), the court, following the old chancery decision of Smith v. Smith (4 Paige, 92), held that a cause of action for divorce, on the ground of adultery, could not be united with one for limited divorce on the ground of cruel treatment. This is not the law of the English courts. (Hughes v. Hughes, Law Rep., 1 Prob. & Div., 219.) 'Whether it should now be the law here we need not decide. The reasons given by the chancellor are not all applicable at this day. And the present case does not depend on that question. We do not think that the cases in this State are conclusive on this point.

The subject under consideration has been examined in other States. In Shackett v. Shackett (49 Vt., 195), it was held, on demurrer, that adultery by the wife was a defense to a suit against the-husband for a divorce on account of intolerable severity. The court said that if, by abuse of his wife, the husband broke the law he would be amenable to it. But, that whether the adulterous wife could invoke the courts to loose her from the bonds of her contract involved a different question. To the same effect is Johns v. Johns (29 Ga., 722), Conant v. Conant (10 Cal., 249). In Nagel v. Nagel (12 Mo., 54), a suit was brought by the husband against the wife. The wife was found guilty of adultery, the husband of cruelty; and the bill was dismissed. This was affirmed in Duncan v. Duncan (12 Mo., 157).

In the English courts, in the case of Watkyns v. Watkyns (2 Atkins, 96), the wife brought an action for maintenance out of her fortune by reason of cruel treatment. Chancellor IIaedwicke said the court would give no maintenance to a wife guilty of adultery. In Best v. Best (Addam’s Ecc., 44), the wife sued for divorce on the ground of cruelty. The husband set up her adultery and •prayed.'divorce.. On proofs it was held that her charges were not. proved; that she had been guilty of adultery which had been conditionally condoned. Both, parties were dismissed. In Dillon v. Dillon (3 Curteis, 86), the court said that, in an action by the wife for crueltyj it had never been laid, down, so far as the court was: ‘aware, that the husband could not plead her adultery in bar. (See, also 1 Bishop, on Marr. & Div., § 87, and Hope v. Hope, 1 Swab. & T., 94.)

'The .foregoing eases may indicate the views .of the courts of 6'ther States and of England on this point. Of course, it was held ,in the English Ecclesiastical Courts that cruelty was not a defense in an action for divorce on tbe ground of adultery. (Chambers v. Chambers, 1 Hagg. Con., 439 ; Quia potius omnia mala perpeti uxor tenetur quam peccatimi in corpus. Sanchez, X., v., 10.) And thus, in our statute, adultery is the only fault of the complainant which is a defense to an action for divorce on the ground of adultery: (2 R, S., m. p. 14-5, § [42].) But, on the contrary, in an action for separation, the language is general that ill conduct may be set up as a defense. Nor is there anything in the statute which indicates that this ill conduct must be of the same kind with that which forms the ground of complaint. For instance, the complaint might be based on the abandonment of the. wife by the husband, and his neglect to provide for her. Could there be a better defense to such a charge than that the wife was an adulteress ? If a husband, knowing of his wife’s adultery, had left her on that account, and she had brought an action for a separation under subdivision 3, of section [51], would it not be absurd to say that the only defense which he might set up would be cruelty, or abandonment on her part, and that he could not show that worst of all ill conduct, adultery ? Now section [53] allows ill conduct to be set up as a defense in any suit brought under section [51]. And, therefore, whatever acts come within the term ill conduct, in an action under subdivision 3 of section [51], must be admissible in an action brought under the other subdivisions.

It seems almost unnecessary to argue that adultery in a wife is ill conduct. By the Mosaic law the adulteress was punished with death. (Deut., xxii. 22.) By Roman law, at one period, her father, and sometimes her husband, might put her to death. (Dig., 48, 5, 20 ; Dig., 48, 5, 24; Sanchez, X., viii., 32:) Adultery was a capital offense under Constantine (0., 9, 9, 3001); and among many of the nations which arose, on the fall of the empire. (Laws of Yisgoths, III., 4, 4; of Burgundians, 68; of Lombards, 1, 32, 1of Charlemagne, YL, 36.) It is still a crime In several of the. States of our country. And however lightly it may be looked upon in this State, it has not yet been called good conduct. We cannot see, therefore, any reason why, under the language of the statute, and on sound reason, it may not be made a defense in an action like this. . ' ' •

But the present case goes a step further. ' Not only has the plaintiff been guilty of adultery, but the referee finds, and the proof shows, that nothing but her adultery and the discussions to which it gave rise have caused the cruelty. Thus the adultery has been the immediate cause of whatever the plaintiff has suffered: Until she violated her marriage vow, the parties had lived together happily. Upon her, therefore, rests the blame of their dissensions. I-n the language of the court: “ The remedy is in her own power. She has only to change her conduct. Otherwise the wife would have nothing to do but to misconduct herself, provoke the ill treatment, and then complain.” (Waring v. Waring, 1 Phil., 132; Poor v. Poor, 8 N. H., 307.)

Of course, where a husband had condoned his wife’s adultery he could not make it a defense for subsequent cruelty. Perhaps, too, a case might be presented of such a gross character that the court would interfere for the wife, notwithstanding her ill conduct. (1 Bishop M. & D., § 768 ; Evans v. Evans, 1 Hagg. Con., 35.) And therefore we ought to examine the present case in that aspect. It appears that the plaintiff, for some time previous to December 10, 1877, had been in the habit of having illicit intercourse with one Platz; that she had visited him for that purpose at his market; that she had sent him, by the hands of one of her daughters, a girl of about eleven, notes asking for interviews and expressing her love and her desire to be with him. Finally, on that 10th of December, one of these notes was handed by the daughter to the defendant, with the information that she had previously carried similar notes to Platz. The cruel acts took place on that day and the next and on the 24th, 27th, and 29th of that month, or a few days after that' last day, and were caused by the discovery of the plaintiff’s adultery. The referee finds none subsequent to that time.

On April 16, 1878, the plaintiff went away from the defendant and she has been living separately from him ever since, and in another city from that of his residence. The daughter testifies that the plaintiff slapped her face and bumped her head, when she told her that she had lost the letter of December 10. The letter is produced ;■ and the plaintiff denies that she wrote it or that she had sent letters to Platz, except orders for goods, or that she slapped her daughter for losing it. But the referee believed the testimony of the daughter, and we see no reason to doubt it. Hence we have not only the fact of continued adultery, but we have also acts tending to corrupt the mind 0/ the daughter by making her cognizant of the secret intercourse of the plaintiff with Platz, and the “ go-between ” of these adulterers.

Undoubtedly the acts of the, defendant, on discovering these, wrongs, were abusive. "We do not say that he should have-used any. violence. , It would have been better if he had not, and had only sought redress by an action for a divorce. But it is to b,e noticed that from December 29, or a few days thereafter, to April 16, we hear nothing of any acts of violence. And we understand from the testimony of the plaintiff that none occurred. Those which she suffered were the immediate result of the discovery of her adultery while the defendant’s sense of the wrong done to him was still keen and fresh.

"We cannot doubt from the testimony of the daughter that the plaintiff did write and send the note given in evidence. That the plaintiff should have denied this on the stand throws suspicion upon the rest of the evidence. Falsus in uno falsus in omnibus. And it is by her evidence, principally, that the aggravated character of the defendant’s acts is shown. ,,

For these reasons we are of opinion — first, that the plaintiff ought' not to have had any allowance for support and maintenaúce; and secondly, that she ought not, upon the facts shown, to have had a judgment for limited divorce. '

Therefore the judgment must be reversed and a new trial granted. The costs of the appeal will remain in the discretion of the court on a final decree.

Westbrook, J.:

I fully concur in the foregoing opinion of Brother Learned, because, first, the Revised Statutes (vol. 3, p. 158, § 66, 6 ed.), make “the ill conduct of the complainant ” a defense to an action of this charactei’. A reference to the provision will show that such “ ill conduct of the complainant” is not'required to be the'cause of the cruelty, in order to be available to the defendant, but such “ ill conduct ” is, in and of itself, a bar to tbe action. Tbe statute so rofiJs, and any decisions wbicli hold that the defendant must, in order to establish a defense, prove something more than “ the ill conduct ” of the plaintiff, that it must be such “ill conduct ” as would justify-the violence of the defendant, have added words to the legal enactment, which cannot be found therein; and, second, the referee has found as a fact that the “ ill conduct ” of the wife — her adultery — was the cause of her ill treatment by the husband. To that part of the report there has been nb exception by the plaintiff, and it must be assumed to be true. Unless we are prepared to hold that “ ill conduct ” which provokes cruel treatment is no defense, the judgment should be reversed for this reason also.

Present — Learned, P. J., Westbrook, J.; Bookes, J., not sitting.

Judgment reversed, and new trial granted ; referee discharged; costs, to remain in discretion of court on final decree. ■


source: Caselaw Access Project

author: Westbrook, J.:

license: Public Domain

text:
    SILAS H. WITHERBEE and others, Respondents, v. WILLIAM H. STOWER and others, Appellants.

      Judgment foreclosing a mortgage upon a leasehold interest — when a party to the action is estopped from denying the validity of the lease.

    July 35, 1869, one Church executed to the defendant Stower a lease of certain' premises for the term of fifty years, upon which the said Stower executed a mortgage to the plaintiff, who thereafter foreclosed the same in an action to which Stower was a part}', and purchased the premises at a sale liad on December 18, 1879, under a decree entered on September 1, 1877. In Oc- . tober, 1879, the defendant Stower procured a' deed of the premises from Church, the lessor, for and in the name of his partner, the defendant Esmond. An application by the plaintiff for a writ of assistance was opposed by the defendant, on the ground that the original lease.was void as being . of'agricultural lands and for a term of fifty years.

      Held, that Stower and his partner Esmond, who acted in collusion with him, was estopped by the judgment of foreclosure from denying the validity of the lease. • ■ . ....

      Appeal from an order awarding a writ of assistance to place a purchaser at a mortgage foreclosure sale in possession of the premises purchased thereat.
    . HAmoreaux, Dolce da Whalen, for the appellants.

      Harry Hale, for the’ respondents.
   Westbrook, J.:

One Charles M. Church, on July 25, 1869, executed a lease to William II. Stower, covering the premises in question for the period of fifty years, at the annual rent of .$10 per year. September 23, 1875, Stower, the lessee, executed a mortgage thereon to the plaintiffs, to secure $9,285.49.

An action was subsequently brought to foreclose this mortgage, to which Stower was a party, and judgment of foreclosure entered therein September 1, 1877. The premises were regularly sold at public auction to one Daniel F. Payne, December 13, 1879; the sale has been confirmed, and the purchaser has received a conveyance.

In October, 1879, Stower and Esmond formed a partnership for manufacturing iron in Lewis, Essex county, Esmond residing in Saratoga, and Stower managing their business in Lewis. In the samé month (October, 1879) Esmond directed Stower to purchase for him and in his name the premises covered by the Church lease. On October 14, 1879, Church conveyed the four acres to Esmond.

Stower and Esmond were in possession, and on the petition of Payne, the purchaser, the Special Term ordered a writ of assistance to issue to put him in possession, from which order Stower and Esmond appealed, claiming that the original lease was void because it was of agricultural land, and was by its terms to endure fifty 'years. With the learned judge at Special Term, we think it is clear that the “land was not leased or intended to be used as agricultural land,” but that the land was to be used solely for “ manufacturing coal,” and “ that it was both worthless and unfit for any other purpose,” and that therefore this case is unlike Odell v. Durant (62 N. Y., 524).

But it is not necessary to put tlie decision sustaining the order on that ground alone. Stower had taken the lease, and given the mortgage under which Payne purchased. He was a party to the foreclosure, and to the judgment of the court, which directed that the purchaser at the sale should be let into possession. By no act of bis could be evade tbe judgment of tlie court, and Esmond, who acted in collusion with him to enable him to evade the force of the judgment, as the Special Term very properly held, is in no better position.'

The order appealed from should be affirmed, with costs.

Learned, P. J., and Bocees, J., concurred.

Order affirmed, with-$10 costs, and printing, disbursements.


author: Westbrook, J.: Bookes, J.:

text:
    REBECCA Y. DANA, Respondent, v. JANE H. WRIGHT, Appellant.

      Oral agreement for the purchase of land — the vendee may show that, upon the faith thereof, he has made substantial improvements thereon — when deelardtwn.s of a party, hostile to but made before his acquiring Ms interests in the property, are admissible.

    This action was brought by the plaintiff, as the devisee of Charles Hathaway, deceased, to recover the possession of a lot formerly belonging to said
    ■ Hathaway. The defense was, lbat the defendant had, prior to the death of the said Hathaway, entered into the possession of the lot under an oral agreement with him, which provided that the lot should belong to her, if-she should thenceforth support and maintain one Mary Hathaway, asister of the defendant and of the said Charles Hathaway, and that on the faith of tbe said agreement, she did provide for and maintain the said Mary Hathaway, and made permanent and valuable improvements upon the property.
    "Upon the trial, the defendant offered to prove that, after entering into possession of the premises, relying upon the said agreement, she made substantial and permanent improvements thereon.
    ' Held, that the evidence was admissible, and that the court erred in excluding it.
    The defendant offered to prove by a witness, that the latter had heard the plaintiff say, at least three different limes, previous to the death of Charles Hathaway, and within a year thereof, that she was sorry for “herUncle

      Charles, and she did not know what he would do, for he had to give Mrs
    Wright (the defendant) the house she lived in for taking care of Mary.” . Held, that the court erred in excluding the evidence. (Per Westbrook, J.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made at Special Term.

      Wm. Youmans, for the appellant.

      Davie & Arlmelde, for the respondent.
   Westbrook, J.:

This cause was tried at the Delaware Circuit in June, 1879. It was ;an action of ejectment to recover the possession of a house and lot situated in the village of Delhi, in the county of Delaware.

It was admitted upon the trial of the cause, that Charles Hathaway, deceased, had the legal title to the premises in question in 1870. By the last will and testament of Hathaway, dated November 1, 1875, and a .codicil thereto, dated November 1.1, 1875, and another dated December 16, 1875, and probated before an acting surrogate of Delaware county, on April 24, 1876, the premises in question were bequeathed to the jalaintiff.

. The defense was, that in the spring of 1871, the defendant had entered into the possession of the premises under a verbal contract with said Charles Hathaway, deceased, which provided that the same should belong to her if she thenceforth supported and maintained one Mary Hathaway, an infirm sister of Charles Hathaway, and of the defendant. That on the faith of such agreement the defendant did provide and maintain said Mary Hathaway, and-did, also, make permanent and valuable improvements upon the proj>erty.

It is not disputed by the respondent, that if the defense was satisfactorily proven it was a bar to the action, oven though the transaction was intended as a gift, and was not, as in this case, founded upon a consideration of care and support to be furnished an infirm relative. (Lobdell v. Lobdell, 36 N. Y., 327; Freeman v. Freeman, 43 Id., 34.)

The defendant certainly gave some evidence tending to show such an agreement as set up in the answer, and so the learned judge before whom the cause was tried thought, for lie submitted the question of the existence thereof to the jury. It will not, however, be necessary to examine that evidence, for there must be a new trial for the exclusion of proper testimony offered by the defendant.

Jirst. The defendant offered to prove by a witness, who was being examined, that “he heard the plaintiff say, at least three different times, previous to the death of Charles Hathaway, and within a year previous, that she was sorry for her uncle Charles, and she did not know what he would do, for he had to give Mrs. Wright the house she lived in for taking care of Mary.” This was objected to as immaterial by the plaintiff’s counsel, was excluded' by the court, and the defendant’s counsel excepted.

If declarations, such as those which the defendant offered to prove, had been made after the plaintiff acquired title, they would-clearly have been admissible. (Card v. Card, 39 N. Y., 317, 320.) Though the admissions, if proved, did not necessarily establish the existence of a contract between -the deceased Mr. Hathaway and the defendant, yet their tendency was in that direction. The effect and construction were for the jury. Does the fact that the plaint-' iff had not yet acquired title' make the offered evidence improper ? I am at a loss to see why it should. The party who now claims title has made declarations from which the jury had a right to infer the existence of an agreement between the defendant and the person from whom she derived title. The competency of the evidence does not depend upon the fact that the person making them then occupied such a position toward the subject of the controversy as to have an interest therein, but upon the fact that she made them at all. Very many cases can be put to illustrate the propriety of the evidence. A, professing to have a claim for services against B, makes an assignment thereof to C, who brings sxrit thereon, and B defends upon the ground of payment. Upon such an issue, would not the declarations of C, though made before the assignment to him, to the effect that he knew B had paid A in full, be evidence ? Manifestly so, because he is a party to the action, and what he has admitted to exist as a fact can. be shown. The supposed ease is very similar to the one before us. The plaintiff-claims the possession of certain real estate under the will of Charles Hathaway, deceased; the defendant, conceding the legal title to have been in him, sets up an agreement with him as a defense. Why are not declarations made by such plaintiff,' evincing a knowledge of the existence of such a contract, evidence ? She is now a' party, and what she has declared to be true must be competent.

Second. The defendant also offered to prove by the defendant that- after she went into possession of the property she made reT pairs thereto, and made “improvements"thereon each year-down to' the time Mary died.” The evidence was objected to as immaterial, excluded by the court, and the defendant excepted.. \

The reporter’s syllabus tc the cáse of Freeman v. Freeman (43 N. Y., 34), is : “ The real ground upon which equitable jurisdiction is exercised in such cases, either of sale or of gift, is to present a fraud being practiced upon the parol purchaser, or donee, by inducing him to expend his money in improvements upon the faith of the promise, and "then depriving him of the benefit of ■ such expenditures, and securing them to the seller or donor. Grover, J.” This rule, perfectly well settled, required the admission of the rejected evidence, unless the defendant was an incompetent witness to give the testimony. This point is also expressly adjudged against the plaintiff in Card v. Card (39 N. Y., 317). On page 320, Judge Woodruff holds) that a party, who. occupied thé' precise position of this defendant, was competent to. prove, in an action with the heirs at law, the improvements he had made upon the premises, and the manner of his occupation.

For these reasons the judgment in this action must be reversed, and a new trial granted, with costs to abide the event..

Bookes, J.:

Evidence having been given tending to prove the contract set up as a defense, it then became competent for the defendant to show that after her entry," and relying upon the contract, she made substantial and permanent improvements upon the premises. I. therefore doncur with brother Westbrook, in his conclusion that there must be a new trial because of the exclusion of this evideiice, and I put my concurrence on this ground only.

Learned, P. J., concurred with Bookes, J.

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


text:
    FRIEND HOAR, Respondent, v. MARY E. K. HOAR, as Administratrix, &c., Appellant.

      Objection to testimony under section 829 of the Oodc of Civil Procedure — must be specific.
    Upon the trial of an action brought against the representatives of a deceased person, the plaintiff having been called as a witness in his own behalf, the counsel for the defendants, before the plaintiff had been sworn or, given any testimony, objected to him “on the ground that he is (was) an interested party, and incompetent under section 829 of the Code of Civil Procedure.” The objection was overruled, and the plaintiff having been-sworn gave testimony as to personal transactions had with the deceased, without any specific objection thereto being made by the defendants.
    Reid, that the objection was invalid, as being too general, and that it was properly overruled by the court.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      A. S. AFewcomle, for the appellant.

      J. N. Mero, for the respondent.
   Westbrook, J.:

The claims of the plaintiff were for the purchase price of a gray mare, alleged to have been sold to the deceased, her keeping at the request of tbe deceased by plaintiff, and an assigned bill of Isaac Tammany for moneys collected by the deceased for him.

On presentation by the plaintiff to the defendant of his account, by consent’ of parties it was, under the statute, referred to E. S. Wood to hear and decide. The referee reported in favor of the: plaintiff, and from’ the judgment entered upon, such report the defendant appeals.

The appeal presents 'one question arising upon two objections and two exceptions, as follows. Both the plaintiff and Isaac Tammany were sworn, and examined as witnesses on behalf of the plaintiff, and, prior to the. administration of the oath to either, or the giving of any testimony by the proposed witness, the defendant’s counsel objected in-these words in each instance : “ Defendant objected to this, witness on the ground that ho is an interested party, and incompetent under section 829 of the Code of Civil Procedure.” This' objection was overruled, and exception taken, and each witness then gave testimony of personal transactions or communications with the deceased, but no specific objection was made to such evidence, nor ivas any motion made to suppress it. Are the objections made, available ?

A reference to the section of the Code on which these objections were based will show that neither the plaintiff' nor Tammany was an incompetent witness, but the prohibition is to either giving evidence “concerning a personal transaction or communication between the witness and the deceased person.” The objections made were not valid, and if they had been sustained, the rulings would have been erroneous. (Card v. Card, 39 N. Y., 317.) It necessarily follows that the judgment cannot be reversed for a ruling by the referee, which was sound in law, and which would have been wrong h.ad it been otherwise. It is true that illegal evidence has been in fact received, but the referee did not decide that it was proper, and there is no erroneous admission of evidence against a proper objection.

The judgment appealed from should be affirmed, with costs.

Learned, P. J., and Bocees, J., concurred.

.Judgment affirmed, with costs.


text:
    JAMES KISSOCK, Respondent, v. WILLIAM D. HOUSE, Appellant.

      Contract — when it cannot he set aside on the ground that it was procured hy threats, or made to compromise a felony.

    The plaintiff being indebted to the defendant in the sum of $71, for two notes, which had been forged by the plaintiff and transferred to the defendant, it was agreed that a wagon belonging to thó.plaintiff and then in possession of the defendant, should be exposed for sale at public auction, and that the plaintiff should not forbid the sale, and the defendant agreed, in consideration thereof, to surrender the notes. The wagon was accordingly sold, and purchased by the defendant, who surrendered the notes to ' the plaintiff, by whom they were destroyed. At the time of the making of the agreement the plaintiff was not in custody nor was he threatened with an .illegal arrest.

      Held, that an action by the plaintiff to recover the value of the wagon, on the ground that the agreement was procured by threats, and was made to compromise a felony, could not be maintained.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee.

      B. B. Bouton, for the appellant.

      G. H. Bell, for the respondent.
   Westbrook, J.:

This is an appeal from a judgment entered upon the report of a referee, by which report the following facts were found.

The plaintiff was the owner of a wagon, which the defendant caused to be taken and sold. The plaintiff was then indebted to the defendant in about the sum of $71, for which the defendant held two notes, purporting to have been executed by other parties, and transferred to him by the plaintiff, but which the plaintiff had forged. After the defendant had obtained the wagon, it was agreed between them that the wagon should be exposed for sale at public auction, that the plaintiff should not forbid the sale, and the defendant would surrender the notes. The wagon was sold, the defendant becoming the purchaser, and after such sale the notes were-surrendered to the plaintiff, who destroyed the same. Upon these facts the referee held the plaintiff was entitled to recover the value of the wagon, upon the ground that the agreement,was procured by threats, and was to compromise a felony.

Very clearly the plaintiff had a right to settle an actual indebtedness to the defendant. When he made, the agreement he was not in custody, nor was he threatened with an illegal imprisonment. There is no rule of law which prevents a party who owes a debt, which the law will enforce, from turning out property to pay'it, even though, in the contraction of the debt, he was guilty of a crime. There was no. actual imprisonment, nor threat of an unlawful one, which would vitiate this transaction between the parties. (Knapp v. Hyde, 60 Barb., 80.) In Foshay v. Ferguson (5 Hill, 154), it was also held that it was enough to constitute duress goer mmas, if the party acted “ from 'fears excited by throats of illegal'imprismment/” but neither that case, nor any other to which our attention has been directed, holds that a party defrauded has no right, fairly and without fraud, to state to his debtor what he had done, to induce him to pay what he ought to pay and is able to pay, and that, if the debtor yields and pays, that the agreement is void.

There was no compromise of a felony, nor an agreement to compromise one. The plaintiff lias simply settled a debt, for which no immunity was promised. It is true, notes were surrendered, but we know of no legal obligation resting upon the holder of forged paper, for which he has paid value, to refuse to receive payment thereof, and. to hold the paper for the benefit of the public prosecutor. -

The wagon having been taken by .defendant'-to be sold in satisfaction of his claim, and the plaintiff having consented to such salé, he (the plaintiff) is not at liberty to treat the acts of the defendant as trespasses and recover the value of the property.

The judgment should be reversed, a new trial granted, and the referee discharged.

Learned, P. J., and Bockes, J., concurred.

Judgment reversed; new trial granted; referee discharged; costs to abide event. '


text:
    ERON C. VAN KIRK, as Sheriff, &c., Plaintiff, v. CHARLES H. SEDGWICK and others, Defendants.

      Attorney — liability of, for the fee» of a sheriff to whom an, execution, has been, issued,.

    The defendants, acting as the attorneys for one Halsey and others, recovered a judgment for $27,976.13, in an action brought against the Pennsylvania & Sodus Bay Railroad, and issued an execution thereon to the plaintiff, the sheriff of Tompkins county, under which he levied upon certain persoual property of the railroad, sufficient in amount, with the real estate owned by it, to satisfy the execution. Thereafter, and before the property liad been sold, the sheriff received a letter from the plaintiffs in the execution, stating that the difficulty between the railroad and their firm had been satisfactorily settled, and that “the judgment and all of our claims against them have been paid and satisfied in fall; so, of course, you will proceed no further in the sale of the R. R. Co. as advertised.” In fact the judgment had riot been paid, but had beeu assigned to one Cook, who agreed to pay the sheriff’s fees.
    . Cook having failed to pay the fees, the sheriff brought this action against the defendants, to recover them.

      Held, that he was-entitled to recover.
    Motion by tbe defendants for a new trial, made on a case with exceptions, ordered to be heard in the first instance at the General Term after á verdict ordered for the plaintiff.

      Merritt King, for the plaintiff.
    Where an, execution is levied upon property sufficient to satisfy it, and a sale is prevented by the act of the party in whose favor the same is issued, the attorney issuing the writ is liable to the sheriff for his fees thereon.- (Carn/pbell v. Cothran, 56 N. Y., 279, 281; Craft v. •Merrill, 11 Id., 456 ; Parsons v. Bowdoin, 17 Wend., 13 ; Adams v. Hopkins, 5 Johns,, 252; Bolton v. Lawrence, 9 Wend., 435; Ouslerhoivt v. Bay, 9 Johns., 114; Hildreth v. Ellice, 1 Caines, 192; Jackson v. Anderson, 4 Wend., 474; Benedict v. Wright, 9 N. Y. Weekly Dig., 108.) The only remedy that the plaintiff had was to sue either the dofendauts or their clients. He had no right to sell the property levied upon to collect liis fees. (Craft v, Merrill, 14 N. Y., 456; Jackson v. Anderson, 4 Wend., "474; Bolton v. Lawrence, 9 Id., 435.)

      Kennedy ds Traey, for the defendants.
    The defendants' cannot be held liable in this action unless it appears that • the plaintiff was.. prevented by them from collecting the judgment, or that the judgr ■ inent was paid and satisfied upon April 6, 1874. (PixleyY. Butts, 2 Cow., 421; Boswell v. Dinghy, 4 Mass., 413; Parsons v. . Bowdom,, 17 Wend., 14; Cmwpbell v. Dorsey, 7 Weekly Dig.,: ■ 100 ; Ccvmrpbell v. Cothran, 56 N. Y., 279.)
   Westbrook, J.:

At the Tompkins Circuit, in October, 1876, a verdict was, ordered for the plaintiff for the sum of $585, upon the following facts.

•.The plaintiff, who had been sheriff of Tompkins county,.brought a suit against the defendants, who were a firm of attorneys and counselors at law, practicing at Syracuse, New York, for fees.alleged to be due to him upon an execution issued and delivered to him, as such sheriff, for collection by the defendants as attorneys, for the plaintiffs therein.

The execution was issued upon a judgment, recovered in the-Supreme Court of this State on December 20, 1873, by Warren Ilalsey, Clinton II. Sage and Nelson L. Williams, as plaintiffs, against the Pennsylvania and Sodus Bay Railroad, as defendant, for the sum of $27,976.13 damages and costs, which; sum the plaintiff, as sheriff, by indorsement upon the execution,-, was directed to make with interest from said December 20, 1873, besides his fees and poundage. Under this execution the sheriff-made a levy upon considerable personal property of the defendant, and from such personal property, and the real estate owned by. it, the judgment and execution were collectible.

The execution was received by the plaintiff on February 11, 1874. A levy thereunder was made. February 21,. 1874. There were vai-ious postponements of sales to April ■ 10, 1874, but before such adjourned day,' and on April-6,. 1874, the plaintiff received a letter from the plaintiffs.in the execution, addressed to him as sheriff, and informing him ’ that “the difficulties between the Penn. & S. B. R. R: Co. and our firm was satisfactorily settled on the 4th inst., and the judgment and all of onr claims against them have been paid, and satisfied in full; so of course you will proceed no further in the sale of the R. R. Co. as advertised.”

The judgment was not really settled but had been assigned by the plaintiffs to one Albert Cook of Seneca Falls, who had assumed to, pay the sheriff’s fees thereon.

The plaintiff applied for instructions to the defendants, and also to the attorneys of the assignee, but failed to get any. No sale was made under the execution, and finally this action was brought, with the result which has been mentioned.

. It is scarcely worth while to attempt any elaborate discussion of the questions made in this cause. The liability of the defendants, as' attorneys, for sheriff’s fees, is thus declared in Campbell v. Cothran (56 N. Y., 279) : “ An attorney issuing an execution upon a-judgment is liable to the sheriff for his fees thereon. A sheriff’s poundage is in the nature of commissions, and upon a money execution he is not entitled thereto until:the money is collected, and his commissions are to be measured by the sum then realized, save where, after a levy, he is prevented from fully executing the writ by the act and interference of the party in whose favor it is issued.”

• The same doctrine is also held in Parsons v. Bowdoin (17 Wend., 14), in Adams v. Hopkins (5 Johns., 252), in Hildreth v. Ellice (1 Caines, 192), and in many others. -

. In this case, the sheriff was prevented from selling by the express direction of the plaintiffs in the execution, and he had no right to sell for the purpose of collecting his fees (Jackson v. Anderson, 4 Wend., 474; Craft v. Merrill, 14 N. Y., 456), and therefore, within the. well established rule, the attorneys issuing the'execution became liable for the fees. It is true that they did not personally prevent the sale, but their clients did. The services were rendered upon the faith of their process, and of the conduct of their clients, the "plaintiff had no control. It was in their power, if their clients were irresponsible, to prevent a settlement between the parties by a proper notice to the defendants in the execution, and if they failed to do so, they, and not the party who-performed the services upon their employment, must suffer.

There is some doubt, from the evidence in the cause, whether the judgment was not really-paid by the defendants therein. However that may be, the plaintiffs therein, having formally notified the sheriff that it had been paid and satisfied in full,” and that- he should proceed no further with the sale under the execution, the execution of the process was stayed. Under such circumstances, the sheriff would not-have been justified in any further action upon the execution.

As the sheriff was prevented from making his fees by the plaintiffs in the execution, it follows that he could recover the amount thereof, that the direction of a verdict. was right, and that the motion for a new trial must be denied, with costs; and the plaintiff is entitled to judgment on the verdict, with costs.

Learned, P. J., and Bockes, J., concurred.

Motion for new trial denied, judgment ordered for plaintiff on verdict, with costs.


author: Lbarned, P. J.: "Westbrook, J.:

text:
    ROBERT BODELL, Appellant, v. ALEXANDER GIBSON, Respondent.

      Statute of limitation — what agreement does not operate to talce a case out of it.

    May 1, 1806, the plaintiff leased a house of the defendant, at the yearly rent of $08, and lived therein until May 1, 1870. When the first quarter’s rent came due the plaintiff told the defendant he wanted to pay the rent, but the latter said : “ No; let that apply on what was laying there, ” referring to , loans previously made by the plaintiff to him. No rent was ever paid by the plaintiff. On April 28, 1876, he brought this action to recover the • amount due upon the loans, claiming that the effect of the agreement was that the rent, as it fell due, was to be applied as a payment upon the loans, and that as the last rent fell due May 1, 1870, the case was thereby taken out of the statute of limitations.

      Held, that the referee properly hold that the agreement only related to the payment of the first quarter’s rent, -and that the action was barfed by the statute.

      Held, further, that the case was not one of running or mutual accounts.

      Quaere, as to whether the bar of the statute would have been removed even if such an agreement as the plaintiff claimed existed, had been proved.

      Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The'action was brought to recover money loaned by .the plaintiff to the defendant. The defense was the statute of limitations.

      John E. Van Etton, for the appellant.

      John J. Linsón, for the respondent.-
   Lbarned, P. J.:

The evidence by which the .plaintiff claims to take this action ■ out of the statutory -limitations is. as follows; The plaintiff rented a .-house of. the .defendant, May 1,-1868, at $68 a year rent, by verbal lease; and lived-therein four years. When the first quarter was up, he told defendant that ho wanted to- pay him the rent. The defendant said : “ No, let' that- apply on what was laying there," referring to the.loans. Nothing more was ever said on the subject, and no rent was ever paid. The plaintiff now insists that the effect-of the conversation was that the rent was to be a payment on the-loans; that the last rent payable was May 1, 1870; and that, as this action was commenced April 28, 1876, it is not barred by the-statute..

We think that the referee correctly found that there was no> binding agreement proved, to the effect that the whole rent was to-apply on the. loans. The .conversation related to the rent them supposed to be payable; that is, the first quarter. When the: rent of the second quarter, or of any following quarter, had become: due, if the defendant had sued the plaintiff thereon, it is plain that the conversation given in evidence would not have been sufficient' to defeat a recovery. It would have been said, and said correctly,, that that conversation was not an. agreement as to all or any oá" th© future rent. The plaintiff wanted to pay “ the rent,” that is;, the: quarter’s rent then due; and the defendant referring to the maney which the plaintiff then wanted to pay, said, let that apply, &&.

And from the mere fact'that rent was not paid during th© whole; four years we should not be justified in extending the meaning of .the conversation, beyond the subject which the parties them had in mind, and of which .they were then speaking.

'It may be that there was a tacit thought, by each of the parties, as rent came due from time to time, that the defendant was indebted upon the loans. But we find no evidence of an agreement of their minds to apply the subsequent rent to the loans.

Perhaps, in this view of the matter,' it is hardly necessary to discuss the legal question whether, if the parties had agreed at the time of this conversation, in 1866, that all rent thereafter to become due should be applied on the note, this agreement, without any further act on the part of either, would have made the rent which became payable May 1, 1870, a payment on the loans; so as to take them-out of'the statutory limitation.

A somewhat similar question was decided adversely to the views of this plaintiff, ■ by the General Term of this department, in November, 1877, in the case of McDonnell v. Blanchard (not reported), citing Harper v. Fairly (53 N. Y., 444).

Nor is the present'case one of running or mutual accounts. (Perrine v. Hotchkiss, 2 Thomp. & C., 370 ; 59 N. Y., 649; Cuck v. Quackenbush, 20 Sup’m. Ct., 107.)

The judgment should be affirmed, with costs.

"Westbrook, J.:

I concur with some reluctance in the result of the foregoing opinion. It was for the referee to decide as a fact, whether or not, by the agreement of the parties, the-rent due and to become due to the defendant was to be applied on the loan of money which plaintiff had previously made to him. If there was such an agreement, ‘then each quarter’s rent as it became due was a payment on, the loan, and six years had not elapsed between such last payment" and this action. I concede, that the" language used by the defendant when the first quarter’s rent matured, would not of itself have been sufficient to justify such a finding as the plaintiff claimed. But it does, however, seem to me, that such language, with the' conduct of" "the parties, the non-claiming of" rent by the defendant, with the continued occupation by the plaintiff of the premises, would have justified the referee in finding an agreement to apply all future acoruing rent upon the borrowed money. The referee has not, however, so found, and I concur in the affirmance of the judgment, upon tlie ground that the inference to be drawn from the words and acts of tlie parties is not so clear as to justify the reversal upon the question of fact.

Present — Learned, P. J., Bookes and Westbrook, JJ.

Judgment affirmed, with costs.


author: Landon, J. :

text:
    THE POUGHKEEPSIE, HARTFORD & BOSTON RAILROAD COMPANY, Appellant, v. AMBROSE N. SIMPSON, SIDNEY VOSBURGH and PALAN PULVER, Respondents.

      Section 88 of chapter 540 c/'ISOO — exemption from, taxation ce'eatedby it — Juno long it continued.

    Section 33 of chapter 546 of 1860 — creating the Poughkeepsie and Eastern Railroad Company — provided “ that the real and personal property of said corporation, and the capital stock of the same, shall be exempt from taxation for State, county, town or municipal purposes, until a single track of said road shall he completed, for a term, however, not exceeding teu. years.”

      Held, that it was the intention of the legislature to exempt the road from taxation until a single track should bo completed, provided, however, that-in no case should the exemption continue for more than teu years from the time of the passage of the act.
    Appeal from a judgment of nonsuit ordered by the court at the Columbia county Circuit in October, 1879.
    The defendants were assessors of tlie town of Ancram, Columbia county, for the year 1876, and the plaintiff sought to recover damages for their assessing and causing to be taxed tbe railroad of the plaintiff in that town ; the plaintiff claiming that the property was exempt from taxation by virtue of tbe statnte quoted in tbe opinion.

      Homer A. Nelson, for the appellant.

      H. E. Andrews, for respondents.
   Landon, J. :

The Poughkeepsie and Eastern Railroad Company was organized by and under chapter 516 of the Laws 1866, passed April 13, 1866. The plaintiff is its successor, and by virtue of chapter 130, Laws 1871, and proceedings had, is entitled to the benefit of the exemption from taxation granted by section 33 of the first mentioned act. That section reads as follows: “ And it is hereby further provided that the real and personal property of said corporation, and the capital stock of the same, shall be exempt from taxation for State, county, town or municipal purposes, until á single track of said road shall be completed, for a term, however, not exceeding ten years.”

Neither railroad company acquired any property prior to September, 1869, and none in the county of Columbia prior to 1871. In 1876, eight miles of the plaintiff’s railroad had been constructed in the town of Ancram, but the single track of the entire railroad was not completed, and has not yet been.

' ‘ In 1876, and after the lapse of ten years from the passage of the act of incorporation, the defendants, as assessors for the town of Ancram, assuming that the time for which the plaintiff could claim exemption had expired, assessed the property of the plaintiff in that town, and refused upon hearing the plaintiff, to .erase the .assessment from the roll. Afterwards the board of supervisors levied a tax upon the plaintiff upon this assessment, and the plaintiff refusing to pay it, its property was'sold and the tax satisfied. The ■plaintiff seeks to recover from the defendants the money thus compulsoi’ily exacted.

The learned judge in the court below held that the intent of the statute was to exempt the plaintiff from taxation until a single track should bo completed, but to limit the exemption to ten years from the passage of the act.

In this construction we concur. It is a question of the meaning of legislative expression. Taxation is the rule, exemption the exception. The legislature was manifestly willing to aid this enterprise. In effect it said to the railroad company: Your property shall be exempt from taxation until a single track of your railroad shall be completed. But we do not know-when you will begin; we do not know when you will finish; unless we impose some limit upon this exemption; you may never complete a single track, and thereupon claim exemption forever. You may long delay beginning, and then claim exemption for ten full years after you acquire each parcel of land and article of property, if, in the meantime, you fail or refuse to complete your single track. We do not invite or reward delay. Happen-what may, this exemption is limited “to a term not exceeding ten years.” The legislative expression manifestly means ten years from the date of the act.

The judgment must be affirmed, with costs.

Learned, P. J., and Bockes, J., concurred.

judgment affirmed, with costs.


author: Landon, J.:

text:
    MARY J. ADSIT, Respondent, v. CYNTHIA W. SANFORD, Appellant.

      Action by a judgment creditor, to set aside a conveyance of real estate as fraudulent —the complaint must allege the issue and, return of an execution — allegations of defendant's insolvency, not sufficient.

      In an action brought by a judgmentcreditor, against one to whom the debtor had conveyed a portion of his real estate, to procure a judgment setting aside the conveyance as fraudulent and void, declaring the judgment a lien ••upon the premises conveyed, and appointing a receiver to sell the same, the complaint must allege that an execution has been issued upon the judgment and returned unsatisfied in whole or in part. It is not sufficient to allege the death of the judgment'debtor, and that from the time of the entry of the judgment until his death he was wholly insolvent, and had neither real nor personal property from which any part of the judgment could be collected.
    ' Appeal from an interlocutory judgment, entered upon an order overruling a demurrer to the complaint.
    • The complaint alleged that upon the foreclosure of a mortgage, ’■given by one Enoch H. Rosekrans to the plaintiff in 1872, the latter recovered a personal judgment against said Rosekrans for a deficiency arising upon a sale; that a similar judgment recovered by one Arunah M. Adsit was thereafter assigned to the plaintiff, and that no part of either judgment has been paid ; that during all the time mentioned Rosekrans resided in Glen’s Falls, Warren county, where ho died in May, 1877; that at the time of his death Rosekrans was insolvent, to the knowledge of the defendant, who is his daughter, and that no proceedings for the appointment of personal representatives have ever been had, and that no such representatives have ever been appointed ; that on the day of the execution of the bonds and mortgages referred to, Enoch II. Rosekrans was the owner in fee of other valuable real estate, situated in the county of Essex, N. Y., particularly described in the complaint; that on September 25, 1873, he conveyed the said lands to .one William Blackmore; that such conveyance to Blackmore was made without consideration, and with intent to hinder,. delay and defraud the creditors of Rosekrans, and especially this plaintiff and the said Arunah M. Adsit; that Blackmore was an alien and never took any steps to become a citizen ; that the conveyance to him “ was one of the steps in execution of a plan or scheme to keep the said-real estate out of the roach of the creditors of said Rosekrans, and to hinder and delay the said creditors, and finally to transfer the same to this defendant; that this defendant was a party to such scheme, and well knew all and singular the facts and circumstances above referred to, and aided in such, scheme ;” that Black-more paid nothing for the conveyance to him, and that the defendant never paid anything for the conveyance afterwards made to her by Blackmore; that Blackmore is not a resident within the United States; that plaintiff has no knowledge or information that he is living ; that she has made inquiry, and can only learn that he is understood to have returned to the city of London; that in January, 1875, Rosekrans, in pursuance of the alleged scheme, procured Blackmore to convey to the defendant the lands in Essex county, conveyed by him to Blackmore,e and that such conveyance was made to hinder, delay and defraud creditors, and especially this plaintiff; that at the time of the conveyance to Blackmore, said Rosekrans was embarrassed financially, and unable to meet his obligations, and was insolvent; that at the time of the recovery of the judgments by plaintiff and A. M. Adsit and the filing of transcripts, “Rosekrans had no personal property whatever out of which the said judgments, or any part of them, could be made or collected; that all his real estate, the title to which remained in him, was inemnbered to its full value, or more, so that no part of said judgments could be made out of such real estate, and that said Rosekrans was then insolvent.”
    To this complaint the defendant demurred on two grounds.

      First — That there was a defect of parties defendant in this; that the personal representations of Enoch IT. Rosekrans, deceased, and William Blackmore are not made parties defendant in said action; and

      Second — That the said complaint did not state facts sufficient to constitute a cause of action.

      Starr <& Puggles, for the appellant.
    , TJ. G. Paris, for the respondent.
   Landon, J.:

The sole point urged, by the defendant upon our consideration is, that the complaint does not state facts sufficient to constitute a cause of action, for the reason that it fails to allege that an execution upon the judgment was ever issued and returned wholly or in part unsatisfied. The plaintiff concedes that if this were a creditor’s bill seeking the discovery and application of personal property or things in action, held by some third person for the benefit of the judgment debtor, it would be necessary to allege the issue and return of an execution; for the statute required it. (2 R. S., 174, § 38.) But by this action the plaintiff seeks to invoke the equitable interposition of the court to relieve the plaintiff from the hindrance and injury which the fraudulent conveyance of the judgment debtor occasions, thus presenting a subject of equitable jurisdiction, untouched by the statute in question. (Chautauque Co. Bank v. White, 6 N. Y., 236.) And the plaintiff further urges, that since the complaint alleges, and the demurrer concedes that the judgment debtor, since, the entry of the judgment, and until his death, was wholly insolvent, having neither real nor personal property from which any part of the judgment could be collected, the law, which does not require performance of vain and useless acts, does not require the performance of this particular vain and useless formality. Cogent as this reasoning appears, the law, nevertheless, is that the execution must have been issued, and the complaint is defective in not alleging it. In Ocean Bank v. Olcott (46 N. Y., 12), the plaintiff sought to establish a lien upon land paid for by the debtor, but the conveyance for which was taken in the name of his wife. Clearly this was not a creditor’s bill under the statute in question. The court held that the plaintiff, in order to recover, must have both judgment and execution. Church, Ch. J., in delivering the opinion of the court, says : All available legal remedies (must) be resorted to as a preliminary requisite to an action for the application of the trust propertyand then adds, “ It is difficult to perceive any distinction or any reason for it, between the rights of creditors as to property fraudulently transferred by the debtor himself, and property paid for by him and transferred to a third person,” and he concludes that the creditors of the latter must resort to all the preliminaries required of the former. In Allyn v. Thurston (53 N. Y., 622), the plaintiff was a judgment creditor of Willetts and Thurston, both of whom were insolvent. Thurston had paid for real estate, and the conveyance was taken in the name of his wife. No execution was issued. The plaintiff sought to have a trust declared in his favor, and his judgment satisfied by a sale of the land. The court, on the authority of Ocean Bank v. Olcott, held that the complaint did not state a cause of action. We have been shown a copy of the appeal boob, containing the opinion of the General Term. That court hold that it was only necessary for the plaintiff to establish his debt by a judgment. In Estes v. Wilcox (61 N. Y., 264), the plaintiff was the creditor,of one Whipple, who died intestate, leaving assets enough to pay only 40¿ cents on the dollar of his indebtedness. In his life-time he paid the purchase price of certain real estate, the deed for which was taken in the name of the defendant. Upon demurrer to the complaint the Special Term, as appears from the appeal book, sought to distinguish the case from Ocean Bank v. Olcott, and remarked: “ It is admitted by the demurrer that there is no legal remedy available to the plaintiff in respect to 59$0 of Ills debt uncollected out of the assets of the deceased debtor.” But the Court of Appeals held the complaint' defective. (See also Geery v. Geery, 63 N. Y., 252.) The plaintiff is mistaken in supposing that the sole reason for requiring judgment and execution issued and returned in the statutory-creditors’ bills is because the statute requires it. Long before the statute, creditors’ bills were a familiar subject of chancery jurisdiction, and the rule was inflexible that before resort could be had to equity, the creditor must obtain judgment and issue execution, and if he desired to apply to the satisfaction of his judgment any property, other than that upon which liis- judgment or cxec;Utio,n was a specific lien, he must have had his execution returned. The statute was enacted principally to remove a doubt which had been started by the case of Donovan v. Finn (1 Hopk., 59), (at variance with previous cases), whether the creditor could reach assets held by a third person for the debtor, when the transaction was entirely free from fraud. (See revisers’ notes, 5 Edm. Stat., 405 ; Dunlevy v. Tallmadge, 32 N. Y., 457.) Whether, therefore, the case is strictly a creditor’s bill, or “ in the nature of one,” as the phrase of the books is when speaking either of fraudulent conveyances or resulting trusts, it is equally imperative that the creditor should have actually resorted to and exhausted the ordinary legal remedies before equity will entertain. jurisdiction. It will not answer to substitute for execution an excuse for not issuing it, unless that excuse asserts the impossibility, not the impracticability, not the inconvenience, not the uselessness of issuing it. It must be legally shown that the debt cannot be collected at law, and the best evidence of that is the effort, and its failure. If execution cannot be issued in this State, it will suffice if issued in the State of. the debtor’s residence. (McCartney v. Bostwick, 32 N. Y., 53.) If the debtor’s property is in the hands of a receiver appointed by the court, so that levy cannot be made, levy is excused. (Stewart v. Beale, 7 Hun, 405.) The case of Loomis v. Tifft (16 Barb., 541), cited by the plaintiff, is regarded by this court as overruled. (Evans v. Hill, 18 Hun, 465.) The judgment of the Special Term, overruling the demurrer, must be reversed, and the defendant must. have judgment allowing the demurrer, with costs of this court, and of the court below.

Learned, P. J., concurred ; Bockes, J., taking no part.

Judgment interlocutory reversed, and judgment for defendant on demurrer, with costs of this court and of court below.


text:
    JOSEPH F. BENNETT, Respondent, v. WALTER G. SMITH, Appellant, Impleaded, &c.

      Action for libel — what evidence is admissible in, to mitigate the damage.

    Upon the trial of an action for writing and publishing a libel concerning the plaintiff, the defendant, having testified as to certain statements made to him by the plaintiff, and as to his previous knowledge of his life and character was asked, with a view of showing that he wrote the article with good motives and in the belief that it was true, “ Why did you write it?”

      Held, that-the court erred in refusing to allow him to answer the question, as evidence that he acted in good faith was admissible, not in mitigation of the compensatory, but of the vindictive damages which a jury might award in such a case.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought to recover damages for the publication, by tlie defendant Manning, in tbc Chenango Union, of an article referring to the plaintiff, which had been written by the defendant Smith, a correspondent of the paper, who resided at Sherburne. The article was as follows, viz.:
    “ Joseph F. Bennett, a somewhat notorious character, whose presence in this village was a blessing too much disguised to he at all apparent, is holding revival meetings, and preaching Rev.. Mr. Earle’s sermons, in various rural districts of this State. We know for a certainty that his object is a mercenary one. If this item .«an he copied by the Union exchanges, it may he the moans of «'becking the operations of an unscrupulous adventurer. As .Bennett is apt to assume an alias, we give a short description of
      him. He is about five feet eight inches in height, light hair, light mustache, gray eyes, and is slightly lame. His age is about twenty. He has a rather pleasing address, and a remarkable flow of language. Look out for him.”

      Delos L. Ail&yns, for the appellant.

      Albert F. Gladding, for the respondent.
   Landon, J.:

The defendant wrote and caused -to be published the article of which the plaintiff complains. Upon the trial .there was evidence given tending to establish the truth of some of the libelous charges made in the article, but none was offered as to the charge that “ Bennett is apt to assume an alias.” The justification pleaded and proved must be as broad as the charge. (Townshend on Libel, 3 ed., 362.) Less than this it will be a partial, not a complete, defense. (Code Civ. Pro., §§ 508, 536.) The learned judge before whom the case was tried, therefore properly instructed the jury that the action was undefended, and the only question for •their consideration was the amount of damages the plaintiff was en titled to recover. The defendant was a witness in his own behalf. With the view of showing that lie wrote the article with good motives and in the belief that.it was true, his counsel asked the question, “Why did you write it?” The plaintiff objected, and the objection was sustained, and the defendant excepted. The exception was well taken.

Let us assume that the defendant could not believe the charges made by him respecting the plaintiff unless he had previously seen or heard something tending to satisfy him of their truth (Hatfield v. Lasher, 17 Hun, 23 ; affirmed in Court of Appeals ; Bush v. Prosser, 11 N. Y., 347); and that it therefore follows that, as a condition precedent to his right to testify to his belief in the truth of the charges, he should adduce the facts inducing his belief. (Willover v. Hill, 72 N. Y., 36.) The charges were- that the plaintiff was “a somewhat notorious character . . . holding revival meetings, and preaching Ilev. Mr. Earl’s sermons . . . his object a mercenary one ... an unscrupulous adventurer, . . . apt to assume an alias.” Now at the time the question was asked calling for the motives and belief of the defendant, it had already appeared that the plaintiff had been a student at law, prosecuting his studies in five different offices; that after that he attended the revival meetings of the Rev. Mr. Earl at Sherburne, and made a profession of Christian faith. That he then went to East Pliarsalia and attended the meeting there, and “ talked most every night,” sometimes in the Congregational, and sometimes in the Baptist church. After that he had an interview with the defendant, who was a member of the Congregational church in Sherburne, and who had known the plaintiff since he w-as a small boy. The defendant testified that the plaintiff seemed to him to be slightly under the influence of liquor; that the plaintiff told him that he had been assisting in carrying on a meeting at Pharsalia; that he had taken some of the collection money; that preaching was d — d paying business; that he had got many of his points from Earl?s sermons or from his book on sermons. It may be conceded, assuming all that the defendant testified to, to be true, that it would not convince a court and jury that the plaintiff was either “ a notorious character ” oran “unscrupulous adventurer.” But it is not difficult to find that the defendant; in his zeal, and perhaps over-readiness to arrive at conclusions, believed him to be' both. Much less difficult is it to find that he believed that the plaintiff’s motive was “ a mercenary one,” especially if, when supposed to be in his cups, he confessed that he had taken the collection money, and regarded preaching as a business whose paying features extorted from him profane commendation.

From the testimony referred to it can be inferred that the defendant had formed an unfavorable opinion of the plaintiff. With that opinion, it is conceivable that if the plaintiff confessed getting many points from Mr. Earle’s sermons, the defendant would advance to the belief that he preached the sermons themselves; and that if an alias would favor his schemes, he would “ be apt to assume it.” Unjustifiable as these conclusions might be, the point simply was, did the defendant, from the causes we have intimated, become' possessed of and believe them ?• If he did, the law does not deny him the privilege of avowing his belief in his defense. What has been said has not been said for the purpose of reflecting upon the plaintiff, but simply to show how the defendant came to reflect upon him, and to show that the defendant had the right, upon the trial, after stating the grounds of his belief, to state what that belief was, unjust and cruel though it may have been.

In libel and slander the damages may embrace two items, namely, compensatory and punitive. (Bush v. Prosser, supra.) The law implies damage from the injury done. (Sanderson v. Caldwell, 45 N. Y., 398.) If the defendant lacks a legal excuse for his libel of the plaintiff, the law presumes malice, and the defendant ought to resppnd to the full extent of the actual injury done the plaintiff; that is, compensatory damages should be given. But if, in addition to this malice which the law presumes, and which may be merely constructive and passive in fact, the jury should find that the defendant was actuated by active and vindictive malice, then they may give, in addition to the actual damages, punitive damages. These are -not given as the actual due of the plaintiff, but awarded him, that the defendant may be punished and a wholesome example afforded. It is true that in practice the jury do not distinguish between the damages that are compensatory and .those that are punitive. No standard exists whereby to measure in money the equivalent for injured character, and hence the unjustified defendant is always in danger of being mulcted in punitive damages. To avoid this, he is permitted to plead and prove matters in mitigation of damages. The strictly compensatory damages ought not to be mitigated, else the defendant might cast the consequences of his wrong upon the plaintiff. But the strictly punitory damages may be mitigated. These depend upon the malice of the defendant, .and malice depends upon the motive with which the libel was published. If the motive was good, the malice for which the defendant must respond may be existent by operation of law merely, and not by force of evil passions moving the defendant to wish and to do the plaintiff a wrong. The law, it must be borne in mind, presumes the existence, not the character, of the defendant’s malice. That character, therefore, becomes a material fact in the case, and hence the defendant’s motive or intent equally materiál.

The question “ Why did you write it ?” called for the defendant’s intent or motive. The act itself was indecisive. "Within the role established, in Seymour v. Wilson (14 N. Y., 567), and numerous cases following it, the defendant had the right to answer the question. Wc cite a few. (Dutchess County Ins. Co. v. Hachfield, 73 N. Y., 226; Kerrains v. People, 60 Id., 221; Cortland County v. Herkimer County, 44 Id., 22; Fiedler v. Darrin, 50 Id., 437 ; McKown v. Hunter, 80 Id., 625.)

' George Shaw, a witness called by the defendant, testified to declarations of the plaintiff, tending to show that the plaintiff had been guilty of mercenary and gross improprieties of conduct in hit» church relations, and tending to show that he was confessedly a religious impostor.

This testimony might properly have been submitted to the jury as tending to establish the truth of the charges that the plaintiff was an “unscrupulous adventurer,” a “notorious character,” and his “ motive a mercenary one.” The answer instanced the facts, supported by this witness, as specifications to sustain the general charges. If the jury had, upon this and the other evidence, found these charges true, as to them the defendant should not have been "made to respond in damages. But the court instructed the jury that this testimony was only to be taken into account in making up the character of the plaintiff, and could not avail the defendant in mitigation.

The exception was well taken by the defendant. Under sections 508 and 536 of the Code of Civil Procedure, the defendant may in his answer allege a partial defense to the plaintiff’s complaint, and, of course, what he may allege he may prove. Independently of’ the Code, the defendant should only respond for the wrong which he cannot legally excuse or justify, and as these charges do not form a part of the charges unjustified, nor in any way belong to them, the defendant had the right to have the jury consider and pass upon the evidence tending to establish their truth.

We'have said that the learned judge was strictly right when he instructed the jury that the action was undefended. In the charge 'itself, he did not say that the action was wholly undefended, but in substance, that it was not wholly defended. We think, however, that in his refusals to charge as requested by the defendant’s counsel, lie gave the jury to understand that the action was wholly undefended. "Whether it was not partially defended, in that some of the libelous charges were justified, we think, should have been submitted to the jury upon the evidence.

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

Learned, P. J., and Bockes, J., concurred.

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


text:
    JOSEPH G. COOKE, Respondent, v. THE VILLAGE OF SARATOGA SPRINGS, Appellant.

      Meaning of the term “ floating debt" in chapter 517 o/11875 — Gha/rter of Saratoga Springs — for what claims the village is not liable — when it is liable where the money raised to pay a claim has been wrongfully diverted.

    Chapter 517 of 1875, providing for the settlement of the floating debt of the village of Saratoga Springs, after creating a board of auditors, declares “ that their first duty shall bo to thoroughly examine and investigate all claims ■ and accounts against said village embraced in the floating debt thereof, and to audit and allow so much of the same as is just and equitable.”

      Held, that by the term “ floating debt ” was meant only the unpaid legally-authorized obligations of the village, and that it did not include a claim, for services rendered or supplies furnished in violation of section Cl of its . charter (chapter 220 of I860, as amended by chapter 7G0 of 1871) which provides that no debt shall be incurred or created, nor any expenditure made until the money or tax for that specific object shall have been voted or raised.

      Meld, further, that when the bills incurred for any specific object did not exceed the money voted and raised therefor, the rights of the owners . of such bills were not affected by the wrongful diversion of the money to • other purposes.
    The act of 1875 provided that no suit should be brought against the village except upon audited bills.

      Meld, that interest on the claims could only be allowed from the time of their ' ■ audit.
    ■ Appeal from a judgment in favor of the plaintiff, entered upon, .a. trial before the court without a jury

      This action was brought to recover for work, labor and services performed, money laid out and expended, and materials furnished, at the request of the board of trustees of the defendant, for. the purpose of sustaining the several departments of the said village and defraying the expenses of the corporation, to the amount and value of $2,176.45. It is alleged in the complaint that the bills for such labor and materials were duly made and presented to the board of trustees of the said village, verified by the oath of the plaintiff or his agents, and were duly examined, approved, audited, allowed and certified to by the said board, as provided by law; that the said bills and accounts were afterwards duly presented to the village auditors of the said village, and were examined and investigated by them, and on November 18, 1876, duly approved, audited and allowed, with interest from August 1, 1875. The complaint further alleges that after such audits and certification, such bills and certificates were duly presented to the receiver of taxes and assessments for the town and village of Saratoga Springs, and payment demanded, which was refused, except $51.17, paid on November 18, 1876.
    The defense set up in the answer is a general denial, except to the allegation that the defendant is a municipal corporation. Also that, at the time of contracting the alleged indebtedness, the defendant was prohibited by its charter from contracting the debt, for the reason that no money or tax for that specific object had been voted or levied as required by such charter, and that there was no fund afterwards in the treasury or in the hands of the receiver of taxes upon which any warrant or draft could be given to pay said claim or any portion of it. That on June 7, 1875, the legislature passed an act entitled “ An act to provide for the settlement of the floating debt of the village of Saratoga Springs, and authorizing the election of a permanent board of auditors for the said village.” That $20,000 was raised, as authorized by the said act, and the board of auditors thereby authorized, audited and paid on account of the said floating debt the whole amount appropriated for that purpose, and no payment was made on account of the plaintiff’s demand; that the plaintiff’s claim was never presented-to the said board, certified and verified as required by the act of 1875, and that the said board never acquired jurisdiction to audit and allow the said claim.
    Upon the trial no claim was made by the defendant’s counsel that the several items making up the amount of the plaintiff’s claim had not been ordered by the proper officers of the corporation, nor that the articles had not been delivered and the services performed as charged in the bill, nor that the price charged in such bills was greater than the actual values of the same, nor that the corporation had failed to receive the property and the benefit of. the-services charged for. No evidence was given to impeach the regularity of the proceedings of the board of trustees, nor the board of auditors, in auditing the plaintiff’s bills, nor is any point made upon the regularity of these audits.
    The principal question litigated was as to the effect of the act of 1875 upon the provisions of the charter, and the audit and allowance of the plaintiff’s claim. The plaintiff’s whole claim accrued before the passage of the act of 1875, except the bill furnished to the street department for November, 1875, $3.25.

      L. B. Pilco, for the appellant.

      G. S. Lester, for the respondent.
   Landon, J.:

Chapter 517, Laws of 1875, entitled “ An act to provide for the settlement of the floating debt of the village of Saratoga Springs, and authorizing the election of a permanent board of auditors for said village,” after providing for the creation of the board of auditors, declares that “ their first duty shall be to thoroughly examine and investigate all claims- and accounts against said village, embraced in the floating debt thereof, and to audit and allow so much of the same as is just and equitable.” The act also provides for the creation of a fund of $20,000, to pay the floating debt, and to be paid upon the warrant of the auditing board. Further provision is made for “future claims” against the village. All of the plaintiff’s claim against the defendant, except $3.25 thereof, arose before the passage of this act. One question to be determined is whether the claim was at the date of the passage of the act ■ a “ floating debt ” against the village. The village of Saratoga Springs has by its charter certain limited powers within which it can incur debts and make expenditures. (Laws 1866, ih. 220, as amended by Laws .1871, ch. 760.) By section 54 it is authorized, by its board of trustees, to levy and collect an annual tax, not to exceed the following sums for the following departments; Street Department, $7,500; Lamp Department, as much as may be necessary; Fire Department, $2,500; Cemetery, $100; Miscellaneous, $250. The claim of the plaintiff is for services and materials rendered the village on account of these several departments. Section 61 of the charter provides that “ no debt shall be incurred or created by said village . . . nor shall any expenditure be made or incurred until the money or tax for that specific object shall have been voted or levied.” By the terms of this section no debt, floating or otherwise, could have been created or incurred, unless the money or tax for that object had been voted or levied previously to incurring the same. We are unable to subscribe to the opinion of the learned judge before whom the case was tried, to the effect that the floating debt contemplated by the act includes claims not sanctioned by the charter, but just and equitable in themselves. Such construction apparently imputes to the legislature an- intent to sanction claims unauthorized by law, and created in violation of law. The words “ just and equitable ” may as well apply to authorized, as unauthorized expenditures. ■ Take the- plaintiff’s claim for services and materials rendered the lamp department, for illustration. We shall show hereafter that this portion of his demand was properly authorized. But it is easy to see that the services and materials might be so overcharged, both as to the amount rendered as well as the price for the same, as to make the aggregate of the demand unjust and inequitable. In such case the act permits the audit of so much thereof as is just and equitable. Besides it is not difficult to see that a floating debt might arise from the non-payment of. strictly authorized debts. Unexpected liabilities, as judgments for negligence, or deficits from taxes unpaid, or from funds diverted, might and probably did leave the village with a floating debt, lawfully incurred, aud- just and equitable. The Court of Appeals in an earlier stage of this litigation (People ex rel. Cooke v. Wood, 71 N. Y., 371) defined tlie term. “ floating debt” as used in this act to mean “ lawful and valid claims against the corporation.” We do not understand that court to hold that claims destitute of all legal warrant were made by that act a part of the floating debt of the village. Nor did the audit by the board of auditors confer upon them that character. They could audit only the “floating debts,” namely, the unpaid, legally authorized obligations of the village. The act confers no power upon the board to validate invalid demands. It did not enlarge the obligations of the village ; it merely provided for ascertaining and paying those already existing.

The evidence and the facts found by the court below enable us to see what part of the plaintiff’s claim was authorized, and therefore entitled, upon its audit, to be paid. .

There was audited and allowed him $1,220.49 for services rendered and materials furnished the lamp department. The court below found, that within the authority of the charter, more money had been voted and levied for this department than was necessary to pay this and all its other bills, but that $2,000 thereof had been diverted to purposes outside of the department. The plaintiff was not a party to that diversion, and cannot be injured by it.

The village cannot escape its obligations because it has misapplied the money provided to meet them. (Smith v. Mayor, 5 Hun, 237; Van Wart v. Mayor, 52 How. Pr., 78; People ex rel. Dannat v. Comptroller, 77 N. Y., 45 ; People ex rel. Childs v. Cartwright, 9 Hun, 159.)

It is conceded in the brief of the defendant’s counsel, that there were $18.37 applicable to the payment of that part of ¡flaintiff’s bill consisting of services and materials furnished the street department; also $122.75 to the credit of the cemetery department, $48.48 to the credit of the fire department, and $4.33 to the credit of the miscellaneous department, applicable to the payment of the plaintiff’s bills at the time they were incurred. For these sums, amounting in the aggregate to $1,414.42, the plaintiff was entitled td recover. The act of 1875 provides that no suit shall be brought against the village, except upon an audited bill. Interest cannot accrue upon an unliquidated claim until the obligation to pay arises. (Van, Wart v. Mayor, 52 How. Pr., 78.) Interest must, therefore, be limited to the date of the audit, namely, November 18,1876. The judgment should be modified accordingly, and as so modified, affirmed, without costs in this court.

Learned, P. J., concurred; Bocices, J., taking no part.

Judgment modified by reducing plaintiff’s recovery to $1,414.82, with interest from October 18, 1876, with costs in the court below, and, as modified, affirmed, with costs in this court.