author: Brady, J.: Daniels, J.:

text:
    EDWARD COWLEY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
    1876, eh. 122, § 4 — me failing to supply a, child in his custody with proper food guilty of an offense under — photographs—when admitted in evidence.

    To constitute an offense under section 4 of chapter 122 of 1876, — providing that “whoever, having the care or custody of any child, shall willfully cause or permit the life of such child to be endangered, or the health of such child to be injured, or w'bo shall willfully cause or permit such child to be placed in such a situation that its life may. be endangered, or its health shall be likely to be injured, shall be guilty of a misdemeanor,” — it is not necessary that the accused should have committed any affirmative act, but it is sufficient if one, having the care and custody of a child, willfully omit to give it proper and wholesome food, and willfully neglect to provide for and give to it, when sick, proper medicine and medical attendance, and by reason of such omissions and neglect the life of the child,is endangered or its health injured.
    When in such a case the injury to the health of the child is occasioned by such omissions and neglect on the part' of the accused, continued and extended over along period of time, it is proper to charge in the indictment that the offense was committed upon a particular day subsequent to the time when the consequences of the neglect were developed.
    Upon the trial of one indicted for a violation of the said statute, in failing to provide a child in his custody with suitable food and medicine, photographs of the child taken soon after its removal from the custody of the accused to'a hospital, the accuracy of which are established by the testimony of witnesses, are admissible to give an accurate representation of its physique at or about the time of its removal.
    Writ of error to the Court of General Sessions for the city and county of New York.
    The plaintiff in error was indicted and convicted at the Court of General Sessions, for a violation of the fourth section of chapter 123 of the Laws of 1816, entitled “ An Act to prevent and punish wrongs to children.” The evidence on the part of the prosecution established, that the child was received into the Shepherd’s Fold, an institution for the care of children under the management of the defendant, in January, 1818, being then in good health and condition ; that on December 26, 1819, the child was taken by the wife of the" prisoner to St. Luke’s Hospital, in an emaciated condition, such condition being caused, according to the testimony of the physicians who examined it, by starvation. Further evidence was given tending to show that the child had been fed with improper and insufficient food, that it received no proper care of any kind, and no sufficient medical treatment when ill. The testimony on the part of the defense was directed to show that the child was properly cared for, and that its emaciated condition was the result of disease, for which the prisoner was not responsible.

      C. W. Brooke and Clark Bell, for the plaintiff in error.

      B. K. JPhekps, for the defendant in error.
   Brady, J.:

The plaintiff in error was indicted in the Court of General Sessions for a violation of section 4 of chapter 122 of the Laws of 1816, entitled “An Act to prevent and punish wrongs to children.” The language of the section is as follows:

“ Whoever, having the care or custody of any child, shall willfully cause or permit the life of such child to be endangered, or the health of such child to be injured, or who shall willfully cause or permit such child to be placed in such a situation that its life may be endangered, .or its health shall be likely to be injured, shall be guilty of a misdemeanor.”

The indictment contained five counts, but the first and second counts only were resorted to, and these contained the necessary charges to bring the accusation within the section referred to, and are as follows:

First count. That Edward Cowley, late of the Nineteenth "Ward of the city of New York, in the county of New York aforesaid, being an evilly-minded and cruelly-disposed person, and well knowing and intending the premises hereinafter set forth, unlawfully, willfully and wickedly, on the twenty-sixth day of December, in the year of our Lord one thousand eight hundred and seventy-nine, at the ward, city and county aforesaid, did neglect to provide a certain child, then and there known by .the name of Louis Kulkusky, otherwise called Louis Victor, and of which child he then and there had the care and custody, and which said child was then and there in his custody, and was an infant of tender age, to wit, of the age of five years, with, and to give and administer unto .the said child, proper, wholesome and sufficient food, meat; drink, warmth, clothing, bed-covering and means of cleanliness, and did therein and thereby willfully cause and permit the health of said child to be injured, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.

“ Second count. And the jurors aforesaid upon their oath aforesaid do further present: That afterwards, to wit, on the day and'in the year aforesaid, at the ward, city and county aforesaid, the said Edward Cowley- unlawfully, willfully and wickedly, a certain child then and there known by the name of Louis Kulkuski, otherwise called Louis Victor, and of which child he then and there had the care and custody, and which said child was then and there in his custody, and was an infant of tender age, to wit, of the age of five years, and which said child theretofore had been and then was diseased; sick and ailing in its body and limbs, and then and there required proper medicine and medical attendance, did willfully neglect to provide with, and to give and administer unto said child due, proper and sufficient medicine and medical attendance and- cai;é, -when so as aforesaid diseased, sick and ailing, and did therein and thereby willfully cause and permit the health of said child, to wit, the infant aforesaid, to be injured, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and'their dignity.”

Upon the trial numerous exceptions were taken, both to the admission and exclusion of evidence and to the rulings of the recorder who presided, upon motions made and requests to charge. The prominent objections to the indictment, as they are understood, are that under the statute it was necessary to charge the commission of an affirmative act by which the offense was demonstrated, and that it charged the commission of the offense on a particular day, when, in point of fact, if committed, it was the result of a series of acts continuing, and together resulting in the offense. The first of these objections is utterly untenable, upon any fair construction of the statute, or the object which it was designed to accomplish. Its language, as we have already seen, is that whoever having the care or custody of any child shall willfully cause or permit the life of such child to be endangered or the health of such child to be injured, or who shall willfully cause or permit such child to be placed in such a situation that its life may he endangered or its health be likely to be injured shall be guilty of a misdemeanor. The exposure may necessarily result from a continuing cause, day after day, the aggregate results of which create the danger contemplated, or the health to be injured or likely to be injured.

The allegations in the indictment were, as wo have seen, that the plaintiff in error neglected “ to provide a certain child, then and there known by the name of Louis Kulkusky, otherwise called Louis Yictor, and of which child he then and there had the care and custody, and which said child was then and there in his custody, and was an infant of tender age, to wit, of the age of five years, and to give and administer unto the said child proper, wholesome and sufficient food, meat, drink, warmth, clothing, bed covering and means of cleanliness, and did therein and thereby willfully cause and permit the health of said child to be injured.” And in the second count -with “ willful neglect to provide with, and to give and administer unto said child due, proper and sufficient medicine and medical attendance and care, when so, as aforesaid, diseased, sick and ailing, and did therein and thereby willfully cause and permit the health of said child, to wit, the-infant aforesaid, to be injured.” These allegations were distinct as to the elements of the offense, namely, a willful omission to give the boy proper and wholesome food, and a wailful neglect to provide and give to him, when sick, proper medicine and medical attendance. These willful omissions were of acts which the plaintiff in error was obliged, by his custody of the child, to perform, from the trust reposed in him, and which he undertook to discharge, and were within the meaning of the statute, and the discharge of wdiich it was designed to enforce, and therefore to secure. The charge rested upon affirmations of negative acts on the part of the plaintiff in error willfully omitted, for which he was called upon to answer. The plaintiff in error was not put upon trial for the omission to perform them for any one day; but for a series of omissions, extending over a period of time, wdiich resulted in endangering the health of the boy named. Under such circumstances it was proper to charge in the indictment that the offense was committed upon a particular day after the consequences of the neglect were developed. Where the offense charged is one wdiich is accomplished by several acts at separate times, they may be stated to have been done at the same time. (Bishop’s Crim. Pro., § 397, note I; Rex v. Moore, 2 Leach, 575.) The evidence given, upon the trial showed, as already suggested, that the injury to the health of the boy, Louis Yictor, was the result of several acts at separate times which the plaintiff in error was called upon to perform, but omitted to accomplish. If it were necessary to allege in the indictment the omission on each particular day, it would in effect present a recapitulation' of the evidence by which the offense was to be established upon the trial (which is not demanded by any precedent), and would lead to great prolixity and confusion. It is the result of these several acts which the statute is designed to punish, and it is the result, therefore, wdiich establishes the offense. For these reasons it is thought that the indictment is not assailable, and that the objections to it cannot be sustained.

The prosecution gave evidence showing the condition of the boy: the manner in which he was cared for whilst' in the charge of the ' plaintiff in error, and the consequences of it; and left it for the jury to determine, under proper instructions, whether the plaintiff in error had discharged the duty imposed upon him by the statute, and this necessarily involved a consideration of what he had omitted to do, and the result of his conduct, if willful. It became necessary, also, in order to establish the offense, to go into details with regard to the omissions set out in the indictment, and this properly required the examination of experts as to the physical condition of the boy, as well as the food supplied, its quantity and quality, and his general mode of life, as directed, supervised and controlled by the plaintiff in error, in whose custody, and under whose management he had been placed, with the consent, if not at the solicitation of the latter. The prosecution was met almost step by step with opposition from the counsel of the plaintiff in error, who displayed great zeal in the defense of their client, and great devotion to his cause. No opportunity seems to have been omitted to present an objection, which was generally followed by an exception. Some of the exceptions, however, have not been presented for consideration on the brief submitted, and upon examination they are deemed to possess no merit. In disposing of the exceptions which were fully presented, it is deemed the better plan to take them up in the order in which they were considered on the argument.

The first of these arises upon a question which was asked of Ann Massey, a witness for the people. , It appears by the evidence that the boy was taken to St. Luke’s Hospital on December 26, 1879. The witness mentioned testified that, having made inquiry at the .Shepherd’s Fold on the Sunday after Christmas Day about the boy, and having ascertained that he had been taken to the hospital, she went there to see him, and did see him. She had stated that she had seen him two years before that time, and was asked the following question: “ Did he look the same that he did when you saw him before?” This question was objected to, and a discussion ensued which resulted in the court’s determining to allow it to be put, the witness having seen the boy three days after he was taken to the hospital, and the court having expressed the opinion .that it was competent to show what the condition of the boy was at that time, namely, within three days after he was delivered at the hospital by the plaintiff in error or his agents. But the record shows that this question was not answered, and it was not repeated. The question which followed the discussion referred to was this: “ What was his condition when you saw him in the hospital ?” to which no objection was made, and which is an entirely different question from the one objected to. The exception considered, therefore, amounts to nothing.

The next exception relates to the evidence of a physician (Dr. Bidlon), who was present at St. Luke’s Hospital when the boy was brought there December 26, 1879, and who testified that he examined the child on the day of his arrival. He was asked to state what that examination disclosed, which was objected to, allowed, and an exception taken. He was also asked the following question, “ Will you state to what, in your opinion as a medical man, the condition of the child was owing?” This testimony was objected to for reasons similar to those advanced in support of the objection to the question put to the previous witness, Ann Massey ; and we find on looking into the brief on behalf of the plaintiff in error a statement that the answer of the witness responsive to the question clearly indicated the impossibility of such a condition being attributable to the act or acts of - any one day, as charged in the indictment. It thus appears that the objection was founded upon what is regarded as a fallacy in reference to the form of the indictment itself, resting in the supposition that the offense having been charged to have been committed upon one day, it could not be established by showing the result of several acts leading to its commission. There can be no doubt that the evidence was proper on the part of the prosecution, because it was the condition of the boy resulting from a series of acts for which the plaintiff in error was arraigned. The exception is, therefore, wholly untenable.

The next exception springs from the examination of a witness named Fanny McCurdy, called for the prosecution, who, after testifying as to her residence in the Shepherd’s Fold, was interrogated in regard to the duties imposed on her, in the following question: “ Now, what did you do at the Fold during the last year ?” This was objected to. But the question, though it might, abstractly considered, be objectionable, is stripped of all obnoxious features, because it was preliminary to other questions which led to the facts that she cooked the meals that were prepared for the children, and did some washing for them, and from her position was enabled to state very important facts which sprang out of the duties which she was assigned to discharge. Her testimony, thus inaugurated, demonstrated the general management of the children, their food, clothing, and the measures adopted for their cleanliness. As these elements were part of the prosecution, as already suggested, it is impossible to conceive how the evidence elicited could have been excluded.

The next exception arises from the testimony of Dr. Jacobi, who testified that on or about January 8, 1880, about two weeks after the boy had been removed from the Shepherd’s Fold, he saw and examined him. He was asked a hypothetical question, the object of which was to ascertain whether feeding a child on the diet which was named in the question would tend in any measure to account for the condition in which the boy Victor was found. The question was objected to upon the proposition seemingly that the hypothesis assumed in it was in nowise in accordance with the evidence as to the food provided for the boy, and because it referred to the child’s condition at a time at least twelve days subsequent to his removal from the custody of the plaintiff in error, and when he had been provided with food of an entirely different character. The objection does not rest upon any valid ground. The question contained a correct statement of facts which for a long time marked the treatment of the boy prior to his removal to the hospital, and which, it was claimed and apparently demonstrated on the part of the prose'cutioii, had led to the condition in which the boy was then found, because there is no pretense that he had recovered his health at that time or was in a much different condition from that in which he was when he was taken to the hospital. The prosecution had the undoubted right to show that the condition of the boy was the result of the unwholesome and improper diet which had been given him. Indeed, if they could not be permitted to prove this, and by experts, it would necessarily involve the abandonment of the further prosecution of the crime charged against the plaintiff in error. It was the very grmamen of the offense, inasmuch as no other acts of cruelty, except the omission to provide him with proper medical attendance and care, were set up against the prisoner.

The next exception relates to certain photographs of the boy which were taken about January 6, • and to which the attention of various witnesses was called, and which were admitted in evidence under exception. • The value of this objection, if it have any, cannot be discovered. The boy had been placed in a hospital for treatment, and it is apparent from the evidence in the case that at the time of the trial his condition was improved. The object of taking the photographs was to secure an accurate representation of ' liis plvysigue at or about the time of his removal to the hospital, in order to perpetuate it, so that if any change for the better occurred it would not be impossible to illustrate his condition at that time. The use of photographs has become a very important factor in the administration of justice, and they have been employed and their use justified in several cases. In connection with scientific exposition their value cannot be over-estimated, and on the question of identity, to which their use in this case closely assimilates, and is closely allied, their importance is manifest. (See Cozzens v. Higgins, 1 Abb. Ct. App. Dec., 451; Ruloff v. People, 45 N. Y., 213.) The accuracy of the photographs was established by the evidence of several witnesses. The exception considered is therefore worthless.

The next exception occurs in the evidence of Stephen Hubbard, a police officer, who, on January 17, visited the Shepherd’s Fold, and stated the result of his observations upon the premises when he went there on that day. This testimony was, perhaps abstractly considered, objectionable at the time of its introduction, but not seriously so, because what he stated as to the condition of the premises and the appearance of the children had been substantially stated by several witnesses, and this bore upon the treatment of the boy Yictor, and by the evidence introduced on the part of the defense, became important as rebutting testimony. It is quite clear, therefore, that under all the circumstances it could by no possibility have worked to the prejudice of the plaintiff in error.

The next exception in order arose from the motion of the counsel for the plaintiff in error that the court' direct an acquittal upon two grounds, stated as follows: “ First, because, under the requirement of the fourth section of the act, there has been no proof of any act charged, either in the first or second count of the indictment, which counts alone are on trial' — -that on any given day, as the statute seems to require, and as the pleading alone refers to, the act was done; and secondly, upon the ground that the evidence is legally insufficient, even if your honor shall deny the motion on the first ground, to warrant the jury under any circumstances in rendering any other verdict but one of acquittal, or to warrant the court in entering or rendering judgment upon any verdict. The second proposition embraces matter that is new to the court so far as any question raised by the defense is concerned. If your honor should sustain the position, that, under this indictment, and upon this statute, there can be any proper verdict relating to a resultant effect from the continued condition of a series of acts, the only evidence which the prosecution has presented is that of medical experts, and the medical experts create precisely the same alternative that the statute does. Their testimony is to the effect, solely and simply, that the condition referred to by the district attorney might produce a given result, which result, if relied upon, or that an entirely different condition might produce that result. Now we have a case, if the matter were to go to the jury now, it would be your honor’s duty, I submit, to direct the jury that the case of the prosecution was not proven beyond that reasonable doubt which the law requires. And, therefore, there could be no verdict properly against the defendant. That being the condition, I submit to your honor, under People v. Bennett, it would be the duty of the court to direct an acquittal where there is not sufficient legal evidence to warrant a conviction. It is the duty of the court to instruct the jury to acquit the defendant, and the failure of the corn’t to do so is fatal error.”

What the counsel regards as his first proposition on this motion seems to rest in part upon the fallacy heretofore considered, in reference to the indictment charging the offense to have been committed upon a particular day, and upon the further suggestion that the evidence was insufficient to justify a verdict. What is regarded as the -second .proposition, it is a little difficult to understand precisely ; but it seems to rest upon the ground that the ease of the prosecution was not established beyond a reasonable doubt, which the law requires; and it is therefore a repetition, in part, of the first. The evidence in the case would not justify its withdrawal from the jury. On the contrary, a perusal of it cannot fail to impress the legal mind with the necessity and the justice of calling upon the plaintiff in error to respond to the grave omissions charged against him, and established beyond reasonable doubt. It is deemed unnecessary to say anything more than this about these'propositions.

The next exception which follows arises from the cross-examination of a witness,-Mrs. Ferris, whoresided on the premises of which •the Shepherd’s Fold was a part, and who dwelt in it six months of the time when Louis Victor was there, and who knew him and all the other children. The witness was asked the following question: “ Q. Mrs. Ferris, during the time" you were in the house and Louis Victor was there, did you hear Louis Victor, or any of the other children in that house, at any time, complain of hunger or insufficiency of food ?” It appears by the record that before this question was asked of Mrs. Ferris, she had been asked : “ Did you ever hear any complaint of hunger ?” In reference to which a discussion took pfiace, during which the district attorney, who had arrested the answer, said, “We offered to prove that these children complained of hunger, and it was excluded. We simply want fair play.” To which Mr. Brooke responded, among other things: “ I offer to show by her that neither Louis Victor nor any of the children complained of hunger.” Whereupon the court- decided to allow the question, but confined it to Louis Victor. Thereupon the question already set out was asked, and an exception was taken to the limit placed upon it by the learned court. The fact which the question is designed to establish, was, it must be remarked, stated by several witnesses called on behalf of the plaintiff in error, and by himself also. It must be said, therefore, that the omission of this witness to testify to the fact, if such an omission really occurred, could not have prejudiced the plaintiff in error. But the fact appears by the record that the witness stated before the question was asked that she never heard any complaint of hunger. This was stated in the following response to the question given: “ Q. Were the girls or the children in the habit of going into your room repeatedly?” “A. Yes, sir; they came into my room and was just as social around me from the oldest to the youngest. They were there with me daily and coming in at night and bidding me good-night, often the oldest girls, Bessie and Fannie, and that was one thing that I always thought was mysterious, that if they were starved they never told me they were hungry.” There was no motion made to strike out this evidence, and therefore the witness had already testified to the fact that the children who were in the habit of going into her room repeatedly, never told her that they were hungry, and consequently never complained of hunger.

The next exception in order arises from the testimony of Walter A. Hawes, who was interrogated on cross-examination as to some of the children brought to his office on January 16, and was asked in what condition they were when they were brought. This was objected to on the ground that it was long after the time when Louis Yictor was taken away. But Mr. Hawes was examined on the part of the plaintiff in error, and the defense had gone into evidence to show the general condition of the children, and sought to establish that it was good, and consequently the facts elicited affecting that element of the defense, was perfectly proper, and the exception is valueless.

This view affects another exception, but not the next in order, reliti.'.y to questions as to the condition of certain of the children, up i i .lie examination of the plaintiff in error himself, which was prop-:' for the reasons assigned in reference to the examination of Dr. Halves. The subject of the general condition of the children was introduced into the defense, and it was the right of the people to show that that condition was not what it was represented to be, by cross-examination of the witnesses with that view.

The next exception in order is that springing from the evidence of the plaintiff in error, who was on cross-examination Interrogated as to his wife’s means and property and his owm private independent relations and connections, all of which was admitted under objection and exception. It is true that these particular subjects formed no immediate connection with the offense of which he stood accused, but were seemingly within the limits of a cross-examination. It must be remarked, however, that the answers given were not at all prejudicial to the plaintiff in error, although it is not necessary to rest the justification of the course pursued by the recorder in admitting the evidence upon that ground, for the reasons stated, namely, it was a cross-examination, and might elicit something affecting the credibility of the witness. It is impossible to say, upon an examination of the evidence referred to, that-it was not fairly within the limits of cross-examination, which, to a great extent, rests upon the discretion of the presiding judge, and which cannot be assailed unless it is clearly without the pale of a just and discriminating intelligence.

The next exception in order arises from the testimony of Annie Massey, who was recalled, and who gave proof showing that she was the sister of the stepmother of the boy Victor, and identified an envelope in the handwriting of the father of the boy described as'Louis Kulkusky, otherwise called Louis Victor, which the father had written for the witness as his proper name, in order that she might be able to write to her sister in England. The envelope, after identification by the witness, was offered and received in evidence. It contained the name and address:

Kuitakowski,

44 B. ECilldrop Crescent,

Camden Boad W.,

London, England.

After this testimony had been given, the counsel for the plaintiff in error moved the court for an acquittal, because of a fatal variance between the indictment and the proof in the description of the person alleged to have been the subject of the injury described in the indictment. This motion was denied, and an exception taken. The denial was proper. The proof of the envelope by no means established the fact that the child was not known as Louis Kulkusky. The evidence, on the contrary, established conclusively that he was known as Kulkusky, and that was sufficient to sustain the indictment. (Rex v. Norton, 1 Russ. & Ry., 510; Rex v. Williams, 1 Car. & P., 298.) It must be said further, that whether the first name was correct or not, the name Yictor was one by which the child was known in the Fold, and to the plaintiff in error; and if either of the names was one by which the child was commonly known, it was sufficient. On this subject there was no doubt. (Kennedy v. People, 39 N. Y., 245 ; State v. Gardner, Wright, 392.)

The remaining exceptions relate to the charge of the learned recorder and the requests to charge. The law of the case, as expressed by him, rested upon the propositions contained in the following extracts, the doctrines of which were elaborated with reference to the evidence and its consideration.

“ First. That if defendant received Louis Yictor into his care and custody, the law imposed upon him the duty of furnishing such reasonable, proper food, clothing, care and medical attendance as was reasonably necessary and proper to prevent his life being endangered or his health being injured, and that if he willfully, that is, intentionally, neglected to do so, and the life of the child was thereby endangered, or his health injured, he is guilty of the offense charged in the two first counts of the indictment. It is for you to say, gentlemen, upon all the facts and all the evidence in this case, whether this defendant has or has not complied with the requirement of the law, as I have laid it down for your guidance. I charge you further:

Second. That if the defendant, during the time he had the care and custody of Louis Yictor, did not have the means necessary to provide reasonably proper medical care and attention, food and nourishment to said child, so as to prevent his life being endangered or his health being injured, it was his duty to apply to the proper public authorities for such public assistance and relief in the premises as was necessary to prevent the life of said child being endangered or his health injured ; and if the prisoner willfully neglected so to do, and the child’s life was thereby endangered, or his health injured, he is guilty of the offense charged in this indictment.

“ Tlwrd. I charge you further, that it is a cardinal doctrine of the criminal law, founded on natural justice, that it is the intention with which an act is done or omitted to be done that constitutes its criminality; the intent and the act must concur to constitute a crime. Yet every sane person must be presumed to intend that which is the ordinary and natural consequence of his own act.

“ Fourth. If, therefore, you find, upon all the evidence in this case, that the defendant did knowingly, that is, intentionally, do what the statute prohibited him from doing, or that he knowingly, that is, intentionally, omitted to do that which the law required he should do, the act itself being unlawful, the law implies a criminal intention on his part to do that which the law says he shall not do, or to omit to do that which the law says he shall do.”

In the course of his remarks the learned recorder said, among other things, substantially, that if the plaintiff in error knowingly omitted to do what the law required him to do, he was guilty; or if he saw the child wasting away, day after day, and hour after hour, without calling in medical attendance to relieve him from his pains, sickness and distress, and this result was brought about by reason of his neglect to do so, then the simple fact that he thought he was doing the best that he could, under the circumstances, would be no excuse for his not complying with the requirements of the law ; and these propositions were excepted to. Sufficient has already been said to foreshadow the view that must be taken of these exceptions. It was the omission to do certain acts, the failure to act affirmatively, which formed the basis of the complaint against the plaintiff in error, and when the .law imposes a duty it cannot be dispensed with or pushed aside simply because the person thinks that in doing it in an unauthorized manner or after his own fashion he has done the best under the surrounding circumstances, in his judgment. The question, indeed, may be stated to be whether the accused has been guilty of willful neglect, irrespective of the motive or intent. The authorities sustain the views of the recorder. (People v. Brooks, 1 Denio, 457; Commonwealth v. Green, 1 Ashm., 299 ; King v. Hollond, 5 Durn. & E., 618; Queen v. Downs, 13 Cox C. C. 111; Gardner v. People, 62 N. Y., 299.) The plaintiff -in error, in discharging his trust in the manner he performed it, took the consequences, and of course subjected himself to such legal scrutiny as might follow. He has not been sustained in his judgment, and fails. If he had done what any prudent father would have done, he would have seen to it that the boy was cared for with all the appliances at hand, and which could be invoked in this city, distinguished for its benevolence, and the number of its charitable institutions, public and private.

The plaintiff in error also excepted to the statement in the charge: “ That if the defendant is proven to have done the act charged, the burden is then upon the prisoner to satisfy you that what he did was done honestly and without any intent to commit any crime.” But the exception is worthless. It is equivalent to the proposition, and no more, that if the people made out a case against the accused beyond a reasonable doubt, it was his duty to overcome it if he could. If this be not good law then no person charged with crime can be convicted. The jury had been advised of what they should find to fasten the commission of the offense charged upon the plaintiff in error, and they were instructed upon the question of doubt, and therefore the text objected to must be considered with reference to the whole, from which it is extracted.

These are all the exceptions to the charge itself, except one, which it is not deemed necessary to consider. The charge was clear, distinguishing, and eminently impartial.

The accusation against the plaintiff in error, and the proof given to sustain it, was well calculated to excite feeling against him, because, in taking upon himself the care and custody of children, he assumed a solemn trust which imposed upon him no light duties, and demanded of him great care and devotion in the observance and discharge of them; it placed him as to them m loco pa/rentis, and called upon him to keep this position in constant view. If the burden was too great, he could have cast it off and left his trusts to others; or if his means were inadequate to the trust, he could have pursued a similar course, if his appeals for aid were unanswered, and thus relieved himself from all responsibility. The recognition of this trust and its solemn obligations created the statute under which he was tried, and high public moral and benevolent considerations sustain it as an important element of our criminal law, which is to be enforced against those who willfully violate its provisions. If it be subject to any criticism, it is that it is too lenient in its characteristics, too gentle in its demands upon persons who assume the custody of children and control them, therefore, at the most important period of their lives, and mould either a good or evil future by precedent or profession, teaching or example.

A careful examination of the requests to charge, which were declined, has failed to disclose any error on the part of the recorder in his rulings. The plaintiff in error sought to obtain a too favorable interpretation of the law on his behalf, and of the effect of certain considerations of the evidence as well, and failed for that reason to secure the concurrence of the learned court in the views presented on his behalf. The conclusion that the plaintiff in error •was fairly and justly dealt with, impresses itself clearly upon the mind after a dispassionate examination of all the evidence. Every means to shield him from the consequences of his omissions of duty seem to have been resorted to on the trial by his advocates, but in vain, because the jury were unable to resist the overwhelming effect of the facts and circumstances disclosed against him.

The judgment must be affirmed.

Barrett, J., concurred.

Daniels, J.:

After a thorough examination of the points presented on behalf of the prisoner, I am satisfied that there is nothing in the case which will justify a reversal of his conviction. The objections taken have been so fully considered by Mr. Justice Beady that nothing is required to be added to what he has said. His examination has been able, minute and complete. And I fully concur in his opinion.

Judgment affirmed. Motion for bail denied.


source: Caselaw Access Project

author: Barrett, J.:

license: Public Domain

text:
    AGNES ROBERTSON BOUCICAULT, Respondent, v. DION BOUCICAULT, Appellant.

      First Judicial District — a judge in, may make an order, which elsewhere must he made hy the court — Code of Givil Procedure, § 770 — Oode of Givil Procedure, § 550, suhd. 4 — a defendant, in an action for a divorce on the ground of adultery, may he wrested under it.

      It is no objection to an order of arrest granted under subdivision 4 of section. 550 of the Code of Civil Procedure, that it prescribes the form of the undertaking to be taken by the sheriff, if such form corresponds with that required by subdivision 1 of section 575 of the said Code.
    So much of section 551 of the Code of Civil Procedure -as provides that, in a case specified in subdivision 4 of section 550, an order of arrest can only be granted by the court, is not applicable to the First Judicial District, and in the said District such an order may be made, by a judge out of court, at any time.
    Under section 770 of the Code of Civil Procedure, any application, except for a new trial upon the merits, which, elsewhere, must be made in court, may, in the First Judicial District, be made at any time to a judge-out of court. In an action brought by a wife against her husband, to procure an absolute divorce on the ground of adultery, an order for his arrest may be granted under subdivision 4 of section 550 of the Code of Civil Procedure.
    Appeal from an order denying the defendant’s motion to vacate an order of arrest granted by the court under subdivision á of section 550 of the Code of Civil Procedure.
    The action was brought by the plaintiff to procure an absolute divorce from her husband, the defendant, on account of his adultery. The affidavit of the plaintiff stated, among'other things, that she was wholly without income or means of support; that she had five children, three of whom were minors.
    “ That this action is brought to obtain a divorce from the defendant by reason of such adultery; that the defendant is about to depart from this State, and that he has, as deponent is informed and believes, no present intention of returning to this State, except, possibly, to pass through it; that it is announced that his engagement as an actor at Wallack’s Theater in this city will close this evening, and that he is announced to appear at one of the theaters in Baltimore on Monday evening next, and that he is to sail for Eiu-ope on April 10, 1880, to be gone indefinitely. * * *
    “ Deponent further says that the judgment to be sought in this action is a judgment of divorce in favor of this deponent, with an order or decree adjudging the payment to her of an adequate sum annually for her maintenance and support, such sum to be such as is suitable to her station in life, and to the defendant’s means and income ; and further adjudging to her the custody and control of her said children, and forbidding defendant to interfere with, such custody and control, but requiring him to pay a proper and adequate ■ sum for tlieir education and support; and that there is danger that by reason of the departure from the State of defendant, and his continued absence, the judgment of the court will be rendered ineffectual.”
    The order was entitled as follows-:

      “ At a Special Term of the Supreme Court of the State of New York, held at the Court House, in the city of New York, in and for the city and county of New York, on the 27th day of March, 1880.
    “ Present — Honorable Charles Donohue, Jxístíee.”

    After certain recitals it provided : “ You are required forthwith to arrest said defendant, Dion Boucicault, in this action, and bold him to bail in the sum of nine thousand dollars, by a written undertaking, executed by two or more sufficient bail,-stating their place of residence and occupation, to the effect that the defendant will obey the direction of the court, or of an appellate court, con-, tained in an order or a judgment, requiring him to perform the acts above specified, or, in default of his so doing, that he will at all times render himself amenable to proceedings to punish him for the omission, and return this order with your proceedings thereunder, as prescribed by law.”

      A. J. Dittenhoeffer, for the appellant.

      George Bliss, for the respondent.
   Barrett, J.:

The order of arrest was not irregular in prescribing the form of undertaking. That direction might have been stricken out, or disregarded as surplusage. But as the order in that respect strictly followed subdivision 1 of section 575 of the Code of Civil Procedure, the defendant was not prejudiced. If the direction had been entirely omitted, the sheriff would have been required by law to take an undertaking in precisely the same form. It was quite proper to furnish the officer with this specific guidance, rather than require him to gather the proper form from the papers. The defendant’s right to the jail liberties, under section 149, was not in. the least affected by the direction in question. Under the bail bond required by section 575,” as was said in Levy v. Kaim (55 How. Pa. 137), “the 'defendants are discharged from the a/rrest (see § ¡173), while under the limit bond the defendants remain under arrest, and are merely admitted to the liberties of the jail.” If the defendant did not desire to give the bail, required by the order, to effect his discharge, he had a perfect right to offer the limit. bond under section 149, and the sheriff would have been bound to accejit it.

Nor is the point well taken that the order of arrest was granted by Mr. Justice Donohue after the adjournment (for the day) of the Special Term at Chambers. The objection is not specified in the order to show cause, nor is there any proof that the order of arrest, which purports to have been made by the court, was not in fact so made. For aught that appears, Mr. Justice Donohue was holding the Special Term for the trial of equity causes. Certainly, the verity of the order cannot be impugned by loose statements made upon information and belief. But further, it is provided by section 770 of the Code of Civil Procedure (following subdivision 2 of section 401 of the Old Code), that in the First Judicial District a motion which elsewhere must be made in court, may be made to a judge out of court, except for a new trial upon the merits. Under section 768, an application for an order is a motion. The present application was therefore lawfully made to, and properly granted by, a justice out of court. (See Disbrow v. Folger, 5 Abb. Pr., 53; Lowber v. Mayor, Id., 325.) There is nothing in the suggestion that the effect of section 770 was merely to authorize judges to grant court orders (kvri/ng the actual session of the court, as auxiliaries or aids thereto. The object undoubtedly was to provide for the great pressure of ex ya/rte business in the city, and the emergencies which are constantly arising. To limit the application of the section to the horns when the Chambers Special Term is actually in session would be very largely to neutralize the useful purpose sought to be attained. When the court is in session the justice there presiding can generally pass upon all the exya/rte applications without assistance. It is during the hours of recess or adjournment that the exigencies contemplated and provided for most frequently arise. There is no such limitation as that contended for to be found in the letter of the section. Clearly none in the spirit or purpose. Under the broad language used, we think that any application which elsewhere must *be made m coivrt, may here be made at cmy time to a judge out of court.

Next it is contended that the case at bar is not one in which an order of arrest could lawfully issue, for the reason that the judgment will not require the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt, and that, consequently, the case is not brought within subdivision 4 of section 550 of the Code of Civil Procedure. This subdivision, Mr. Throop says in his notes, was intended as a substitute for the writ of ne exeat. That .writ, It was well settled, would issue in such a case as the present. (Denton v. Denton, 1 Johns. Ch., 441; Forrest v. Forrest, 10 Barb., 46 ; Bushnell v. Bushnell, 15 Id., 399.) The question, therefore, is whether the codifier has frustrated his own intention. We think not. The court may ultimately in this action render a judgment requiring the defendant to perform an act, the neglect or refusal to perform which would be punishable as a contempt. At all events, it cannot with certainty be asserted that the judgment will not (and that lawfully) require the performance of such an act. The defendant may be enjoined from interfering with the plaintiff’s custody and control of the children, or, under other circumstances, he may be required to transfer and deliver them into her custody and control. He may also be required to give reasonable security for the maintenance of his children, and for any allowance awarded to his wife. (3 B. S., Banks’ 6 ed., p. 159, § Y4.) It is true that, in default, his personal property and the rents and profits of his real estate may be sequestered. But that provision of the statute is plainly additional to, and does not exclude, the ordinary remedy by attachment. If, then, the defendant, having the ability, is required by the final judgment to furnish reasonable security, and neglects or refuses to perform the act of giving it, he may be punished by the court as for contempt. The requirement would be a. lawful mandate,” and the neglect or refusal to comply would be “ disobedience thereto.” The case would thus be brought within section 14 of subdivision 3 of the Code of Civil Procedure. The case of Park v. Park, decided by the Court of Appeals on February 24, 1880 (see Weekly Digest, March- 19, 1880, p. 391), seems to be directly in point, and fully supports the views above expressed. It even goes further, and shakes the authority of Lansing v. Lansing (4 Lans., 377). “ The position,” said Mr. Justice Miller, “ that payment of the costs and alimony cannot be enforced by proceedings for contempt, is sufficiently answered in the opinion of the General Term, with which we concur, and does not require discussion.” The opinion of the General Term was delivered by Learned, P. J., and Lansing v. Lansing was there distinctly referred to and criticised.

Finally, the plaintiff makes out a sufficient case for the order. She shows that the defendant, is about to depart from the State with no present intention of returning, except possibly to pass through it, and that he is to sail for Europe within a month, to be gone indefinitely. Although the defendant moved to vacate upon an affidavit of his own, he made no denial of these charges. They would have been sufficient to justify a ne exeat. (Cases before cited ; and Collinson v.-, 18 Ves., 353.) Coupled with the plaintiff’s undenied averment, they certainly make out a pri/ma facie case of danger that, by reason of such departure, the judgment requiring the performance of some of the acts suggested will be rendered ineffectual.

The order appealed from should therefore be affirmed, with $10 costs, ahd the disbursements of the appeal.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with $10 costs and disbursements.

       Tlie case is reported in 18 Hun, at p. 466. — Rep.


author: Barrett, J. :

text:
    HUGH BROTHERTON, Respondent, v. JOHN DOWNEY, Appellant.

      When a defendant may deny allegations of the complaint upon information and "belief — Code of Civil Procedure, §§ 524, 526.
    Under the Code of Civil Procedure, a party has no right to interpose an unqualified denial in a verified answer, unless it be founded upon personal knowledge ; and where he has no positive knowledge, but has knowledge or information sufficient to form a belief, he is not only permitted, but bound, at his peril, to deny upon information and belief.
    Appeal from that part of an order made at a Special Term, which strikes out paragraph 1 of the defendant’s answer as “ irrelevant and redundant.”
    The action was brought to recover damages for slanderous words uttered by the defendant respecting the plaintiff, a carpenter, and his business.

      “ Paragraph 1 ” of the defendant’s answer reads as follows: “ He denies, upon inform'ation and belief, each and every allegation contained in the complaint of the plaintiff, Hugh Brotherton, excepting so far as any or either of the allegations therein contained may be hereinafter admitted, denied, or otherwise answered.” In the second paragraph of the answer certain allegations of the complaint were admitted, and in the third certain others were specifically denied.
    The answer was verified in conformity with section 626 of the Code of Civil Procedure.

      B. T. JTismm, for the plaintiff.

      H. H. Morcmge, for the defendant.
   Barrett, J. :

The defendant, of his own knowlege, denied the uttering of the words alleged to be slanderous. Certain other averments of the complaint, which were not necessarily within his knowledge, he denied upon information and belief. Such latter denial was stricken out as irrelevant and redundant. This, we think, was erroneous. The form of denial was proper. If the defendant had no personal knowledge upon -the subject, he could not unqualifiedly deny. If he had knowledge or information sufficient to form a belief, lie could not deny such knowledge or information. What, then, was he to do? Clearly, to deny upon information and the belief formed therefrom. Bnder the Code of Procedure, the denial, whether founded upon personal knowledge, or upon information and belief, was in form tbe same — that is, absolute. By the verification, the defendant was permitted, in a great measure, to impress upon the pleading the operation of his mind. Where the denial was of matter not necessarily within his personal knowledge, he could verify it under the exception of matter stated upon information and belief. Whether such denial was really made upon knowledge or upon information and belief, remained undisclosed upon the record. It was known only to the defendant, and was a matter between himself and his conscience. This was deemed unsatisfactory, and consequently the Code of Civil Procedure provided for a distinct disclosure, upon the face of the pleading, of the character of the denial. Section 526 introduces what is in substance the old chancery verification. (See Rule 18 of the Court of Chancery.) The exception is no longer matter stated on information and belief, but matter stated to be alleged on information and belief. Of course, that permits a party to so allege. Nor is this limited to affirmative allegations. Por, in section 524, we find that denials as well, as allegations are referred to. It is therein provided, that unless the allegations or denials in a verified pleading are “ therein stated to be made upon the information and belief of the party, they must be regarded for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verifying the pleading.” It is quite clear, from these provisions, that a party has no right to interpose an unqualified denial in a verified answer unless it be founded upon personal knowledge; and that, where he has no positive knowledge, but has knowledge or information sufficient to form a belief, he is not only permitted, but bound, at his peril, to deny upon information and belief.

The order appealed from must therefore be reversed, with the costs of the disbursements of the appeal.

Davis, P. J., and Ingalls, J.; concurred.

Order reversed, with $10 costs and disbursements.


text:
    JOHANNA JANINSKI, Respondent, v. IDA HEIDELBERG, Appellant, Impleaded, etc.

      When a married, woman, may appear lyy her own attorney — ■ Oode of Civil Procedure, § 450.
    In an action to foreclose a mortgage upon real property, the wife of the owner of the equity of redemption may, under section 450 of the Oode of Civil Procedure, appear and defend, by her own attorney, as though she were single.
    Appeal from an order made at Special Term, setting aside the notice of appearance given by Rnfns L. Scott, Esq., 'as attorney for the defendant, Ida Heidelberg.
    The action was brought to foreclose a mortgage, and the appellant was joined as a defendant with her husband, Carl Heidelberg; the latter being the owner of the equity of redemption. The appellant did not join in the mortgage, which was given by her husband to secure a portion of the purchase-money.
    ’Within the proper time Carl Heidelberg appeared by E. K. Sackett, Esq., as his attorney, and the appellant by Mr. Scott. The plaintiff moved to set aside the appearance of the wife as irregular; giving as a reason that the husband and wife could not appear in the action separately, but must do so by the same attorney.

      Wm. G. Oooke, for the appellant.

      Smith <& Woockocvrd, for the respondent.
   Barrett, J.:

There is no doubt that, under the practice prevailing before the Code of Civil Procedure, a separate appearance for the wife in an action affecting only her inchoate-right of dower would have been improper. Both under the chancery practice and the Code of Procedure, where the action did not concern her separate estate, the husband was bound to enter a joint appearance, and put in a joint answer, for himself and wife. (Leavitt v. Cruger, 1 Paige, 421; Foote v, Lathrop, 53 Barb., 183; Eckerson v. Vollmer, 11 How. Pr., 42; Ferguson v. Smith, 2 Johns. Ch., 139; Lathrop v. Heacock, 4 Lans., 1.) It was the husband’s right and duty to employ an attorney for her, and she was bound by it. (Same cases.)

But this rule seems to have been changed by section 450 of the Code of Civil Procedure. That section,” says Mr. Throop in his notes, “ was intended to sweep away all distinctions between a feme sole and a feme covert, in respect to suing and being sued.” Certainly, the language of the section could not very well have been broader. “ In an action or special proceeding, a married woman appears, prosecutes or defends alone or joined with other parties, as if she were si/rigleS Under this comprehensive provision, we think that Mrs. Heidelberg has a right to appear and defend .by her own attorney, in form as though she were single.

This order should therefore be reversed, with $10 costs and disbursements of the appeal, and the motion to vacate the notice of appearance be denied.

Davis, P. J., concurred.

Present — Davis, P. J., and Babbett, J.

Order reversed, with $10 costs and disbursements, and motion denied.


text:
    THOMAS P. REMINGTON, Appellant, v. BERNARD WESTERMANN, Respondent. SAME v. FREDERICK W. CHRISTERN, Respondent.

      Surety to an undertaldng for costs — when released from liability, by the refusal of the opposite party to accept it.

    The plaintiff in an action, being a non-resident, was required by an order, made on the application of the defendant, to file a bond as security for the costs of the action, and pay $10 costs of the motion, within ten days. Within that time the plaintiff filed the bond, but neglected to pay the costs. Thereafter, on the defendant’s application, the complaint was dismissed, and a judgment for the costs entered in his favor.
    In an action brought by him against the sureties to the said bond, to recover the costs of the action, Held, that by procuring a dismissal of the complaint, tbe defendant, in legal effect, refused to accept the bond, and that tbe same never went into effect or became operative.
    That the sureties were not liable thereon, and that the action could not be maintained.
    Appeals from judgments entered in favor of the defendants against the plaintiff, upon the trial of the above entitled actions by the court without a jury.
    These two actions were brought against the sureties to an undertaking given in an action brought by one Westermann against the present plaintiff.
    The court found, that before the- commencement of this present action a certain other action was commenced and pending in the Superior Court of the city of New York, in which one Charles Westermann was plaintiff, and Thomas P. Remington, the present plaintiff, was defendant, and that, after various proceedings were had in the last-mentioned suit, an. order was made by -the Superior Court, at a Special Term, dated December 24,1877, requiring the said Charles Westermann, the plaintiff in the said suit, as a non-resident, to file a bond for costs in $500, and pay the costs of the motion, $10, within ten days (to prevent that suit being dismissed); that subsequently, on January 14, 1878, a further order was made by the said Superior Court, at a Special Term, whereby it was ordered that the complaint in the said action be dismissed unless the plaintiff therein file such security for costs, and pay $10 motion costs within five days from the said date, and also pay $10 costs of the said last-mentioned motion to the defendant, the present .plaintiff ; that afterwards the time to file the bond for costs was extended to February 6, 1878 ; that on February 5 the defendant, F. W. Christern, together with Bernard Westermann, became sureties on the bond for costs required by the said order of the court, for the puipose of preventing the dismissal of the complaint in the said action, and in consideration that the said action should not be dismissed, which bond was filed in the clerk’s office of the Superior Court; but that the costs of- the motions, $20, were not paid as required by such order; that on February 14, 1878, on motion of Thomas P. Remington, the present plaintiff, the Superior Court made an order dismissing the complaint on the ground that the requirements of the order of January 14,1878, had not been complied with, and judgment was thereupon entered, dismissing the complaint, with costs; that, the defendant, E. W. Christern, and his co-surety, Bernard Westermann, on March 7,1878, had a written notice served on the attorney of the nresent plaintiff, to wit, Wm. P. Richardson, Esq., stating that inasmuch as the said complaint had been dismissed, they withdrew from the bond and they disclaimed all liability thereunder; that, on. March 7, 1878, the judgment roll was filed in the said action in the Superior Court, and judgment entered dismissing the complaint and for an extra allowance, costs and disbursements, amounting to $688.86; that the consideration for which the bond for costs was given wholly failed, and that the order of the court of January 14, 1878, failed to become perfect. The court further found, as conclusions of law': That the consideration for which the bond was given wdiolly failed, and the bond became wholly void, and the obligors were not liable; that the order of January 14, 1878, w'as an entirety, and failed to become perfect; that the complaint must be dismissed with costs to the defendant, and the defendant have judgment to that effect; that the defendant was entitled to the affirmative relief, that an injunction order issue enjoining the plaintiff, Thomas P. Remington, and his assigns and all his agents and attorneys, from commencing and prosecuting any other action or any legal proceedings in any court on the said bond.

      Jno. A. Foster and W. P. Biehcordson, for the appellant.

      B. Boelher, for the respondents.
   Barrett, J.:

The order was, that the action pending in the Superior Court be dismissed, unless the plaintiff therein file a bond for costs, and pay $10 within five days. He did not file the bond and pay the $10, he only filed the bond. In consequence of this non-compliance, his complaint, on motion of the defendant in that action, was absolutely dismissed. The legal effect of this was the non-acceptance by such defendant of the bond in question. The bond, consequently, never went into effect, or became operative. The defendant could have waived the $10 and gone on with the case. But he did not. As was his right, he treated the order as an entirety, and on that basis demanded the penalty, namely, the dismissal with costs. Clearly he cannot have both bond and penalty. Nor can he be permitted to enforce the bond for the very costs which followed the failure to file the instrument and pay the $10. As well might he, if the order had specified three sureties, obtain a dismissal with costs, because, on the bond filed, there were but two, and then proceed to collect such costs from the two.

The judgment must be affirméd, with costs.

Davis, P. J., concurred.

Present — Davis, P. J., and Barrett, J.

Judgment affirmed, with costs.


author: Daniels, J.:

text:
    DORA MILLER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Indictment for larceny — what a sufficient description of the property taken.

    An indictment for stealing a saeliel containing trade dollars, describing them as “sixty silver coins (of the kind usually known as dollars) of the value of one dollar each ’’ is sufficient.
    Writ of error to the Court of General Sessions of the County of New York.
    The plaintiff in error was jointly indicted with one Louisa Jeke for the larceny of a quantity of money from one Isabella Hollis, on January 28, 1880. She was tried in the Court of General Sessions on February 18, and convicted of grand larceny.
    The testimony on the part of the prosecution tended to show that the complainant (Mrs. Hollis) was in a store in the afternoon of January 28; that she had with her a small leather sachel containing $62 in silver money (trade dollars); that the prisoner Miller came in after the complainant was seated at the glove counter, and first pressed against the complainant on the left side, so that she moved her sachel to her right side to give the prisoner room. The prisoner then went to the right side of the complainant and reached over her shoulder. The complainant removed her hand from her sachel to take a pair of gloves, and at that moment the sachel was exchanged for one resembling it in appearance.

      Stewwt t& Vickery, for the plaintiff in error.

      Benj. K. Phelps, district attorney, for the people.
   Daniels, J.:

The prisoner was convicted of the crime of grand larceny, for stealing $62, known as trade dollars, under an indictment which among other things charged her with stealing “ sixty silver coins, (of the kind usually known as dollars) of the value of one dollar each.” In support of the writ it is objected, as it also was at the close of the evidence upon the trial, that this was an insufficient description of the property stolen. But it is evident from the proceedings which were had in the case, and the facts as they are notoriously and generally known, that coin of the description of those taken are silver coin of the kind known as dollars, and of the value of $1 each. The description given in the indictment, as far as it extended, was, therefore, accurate in its nature, so that the substantial ground on which the objection rests is the point whether the coins should also have been designated as trade dollars. They were designated by that phrase in the laws of the United States, and were declared, in effect, to be silver coins of the United States. (U. S. R. S., § 3513.) And they afterwards retained that peculiar designation, although deprived of their quality as legal tender for the payment of debts. (Laws U. S., 1875-6, 215, § 2.) For they are still issued under the authority of the laws of Congress, and for that reason remain a portion of the silver coins of the United States. They were a lawful issue of silver coinage, but for no amount a legal tender in paymént of debts, and having that quality they are properly known as silver coins, as dollars, and of the value of $1 each. To that extent their legal status was also properly given in the indictment. If it had been further alleged that they were silver coins of the United States, the description given of them would have been sufficient within the tenor of the most critical of the authorities. The general rule prevailing on this subject is not quite so exacting. It is enough that there shall be such a description of the money as to call to mind the particular coins, thus identifying the articles stolen; but the words, arid particular images and devices found on the coins, need not be mentioned. (2 Bishop Grim. Proc., 3 ed., § 104.) That seems to be the principle generally deducible from the authorities. An- indictment, it has been said, must contain a certain description *of the crime of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation, inform the defendant of the charge which he is called upon to defend, and enable him to plead the conviction or acquittal in 'any other prosecution for the same offense, and if the sense be clear, nice objections ought not to be regarded. (McKane v. State, 11 Ind., 195.) An indictment was there held sufficient which charged the stealing of $60 of the current gold coin of the United States, of the value of $60; and in Terry v. State (13 Ind., 10), the allegation that the accused had stolen “ one bank note of the value of $5,” was held to be sufficiently descriptive. A similar ruling -was made hi Barker v. State (48 Ind., 163), which sustained the sufficiency of an indictment of the same general nature. In United States v. Rigsby (2 Cranch C. Ct., 364), the statement that the property stolen consisted of “ one silver coin of the value of fifty cents, of the goods, &c.,” was held good. In McEntee v. State (24 Wis., 43), a portion of the statement of the charge consisted of the allegation that “two bills, purporting to be issued by some national bank, so called, of the value of $0 each,” had been taken, and the conviction was sustained; and in Commonwealth v. Gallagher (16 Gray, 240), a complaint which charged the stealing of “ copper coin of the value of two dollars and seventy-five cents,” was considered sufficiently descriptive and good. People v. Green (15 Gal., 512), also substantially sanctions the indictment on which the prisoner in the case now before the court was convicted. In State v. Evens (15 Rich., 31), the property was held to be properly described where it was stated to be “ a ten-dollar bill of the currency of the country, commonly called paper money, of the value of ten dollars.” These authorities appear to be a sufficient warrant for tbe indictment in this case, and to require that the objection now raised on behalf of the prisoner should be overruled.

The evidence given during the trial directly implicated her as the guilty person. Her proximity to the property, her change of position as that was changed, and her efforts, apparently made to obtain it, at the time it must have been taken, justified the conclusion arrived at by the jury. The value of the coins taken was disclosed in terms warranting' the inference that it had been properly charged. They were stated by the witness to be $62 in money, in silver money; also, that they were trade dollars, which had just been collected from a firm which the complaining witness and her husband dealt with. And her cross-examination was carried on by means of questions assuming the coins taken to have been dollars and money. No evidence of a different nature was produced. The case was made out with all reasonable certainty, and as the indictment was sufficiently particular as to this charge, the conviction should be affirmed.

Brady and Barrett, JJ., concurred.

Judgment affirmed.


text:
    DAVID C. WILSON, Appellant, v. WILLIAM B. GOULD and others, Respondents.

      When the right to sue for goods sold is merged in a subsequent agreement — agreement to prove a fact to the satisfaction of apeo'son named — what proof is . required to justify a recovery upon it.

    The plaintiff having- applied for a discharge in bankruptcy, entered into a composition with his creditors by which he paid fifty-five per cent, of his debts, and procured a discharge. In negotiating with the defendants, to whom he was then indebted, he asserted a claim for certain zinc of the value of $132.07, which he claimed to have sold to them, which claim they disputed. It was finally agreed that this claim should be withdrawn from the compromise, the defendants stipulating that in case theplaintiff pi-oved to the satisfaction of Mr. Gould’s sons' that the zinc was received by them, they would pay to him fifty-five per cent, of the $132.07.
    This action was brought to recover for goods, wares, &c., consisting of the said zinc, claimed to have been sold by the plaintiff to the defendants.
      Held, that the notion should in any event have been brought upon the agreement, ¡ nd not lor the goods sold.
    That to recover upon the ‘agreement the plaintiff should have shown that they had proved the delivery of the zinc to the satisfaction of Mr. Gould’s sons, or at least that they liad produced evidence which should have been satisfactory to them, and that, not having done so, they could not recover.
    Appeal from a judgment dismissing the complaint, entered upon an order made at a Circuit, and also from an order denying a motion for a new trial, made upon tlie minutes of the justice before whom the action was tried.

      Sail Blcmdy, for the appellant.

      Theodore F. Milfor, for the respondents.
   Daniels, J.:

By tbe complaint in this action the plaintiff stated his cause of action to be for goods, wares, &c., consisting of two and a half cases of zinc, sold to tlie defendants for tbe price and value of $132.0“7, and that no part of tlie price has been paid. The defendants by their answer relied as a defense upon the fact that a composition or compromise had taken place between themselves and tbe plaintiff, under section 5103 of the United States Devised Statutes ; and that in such composition the demand in suit had been settled and adjusted. It appeared by tlie evidence iu tbe case tbat the plaintiff was an apjilicant for tbe benefit of the bankrupt law of tbe United States, and tliat pending his proceedings this compromise or composition was made between himself and his creditors. The defendants in this case were creditors of the plaintiff at that time, growing out of mutual dealings had between them and Mm. In the negotiations made for the purpose of effecting the compromise, the plaintiff asserted a claim against- the defendants for the price and value of this zinc. The defendants disputed the claim, alleging that they had received no such zinc. It was then arranged substantially between them that the composition should be made and should take effect upon all the demands existing between tbe parties with the exception of tlie claim made on account of this zinc; and it was stipulated by the defendants that in case the plaintiff “proves to the satisfaction of Mr. Gould’s sons that the zinc, as per bill, was received by them from him, they agree to pay him $72, being fifty-five per cent, on $132.07, as received from him.” This instrument was signed by the defendants, and it was claimed on behalf of the plaintiff that it was such a promise of payment by them as would support an action for the recovery of the amount mentioned. It appears by the transaction, as it was shown in evidence upon the trial, that a complete settlement toot place between the plaintiff and the defendants, and that the plaintiff paid them fifty-five per cent, upon the balance found due to them on the basis of that settlement. The agreement, therefore, was not to pay a debt which might have been created by the sale of the zinc, but to pay back to the plaintiff the excess of the moneys received by them, in case it should turn out to the satisfaction of the defendants that they were indebted for the price of this zinc. In this respect the case materially differed from that of Dusenbury v. Hoyt. (53 N. Y., 521.) There the action was to recover upon the original indebtedness by reason of the fact that the discharge in bankruptcy had been jiractically superseded by a new promise to pay the debt, while here it is not in fact to recover upon the account for goods sold, although that is the form given to the’ case by the complaint. The transaction, as it was consummated between the parties, justified no such claim. It resulted substantially in an agreement, on the part of the defendants, if they were liable to pay anything, to pay back the money which they had received from the plaintiff upon the supposition that this claim did not exist, and which they would not have been entitled to if its existence had been conceded or established at that time. The action was very much like one for money paid by mistake, as it was claimed to have been received by the defendants without any consideration entitling them to demand it from the plaintiff. For that reason the action should not have been in form upon the bill. It should have been, as was held by the learned judge at the circuit, upon the agreement entered into by the defendants.

But, irrespective of the form of the action, the plaintiff established no case entitling him to recover under the terms of this instrument. It was not an agreement to pay in case the plaintiff should establish, as a matter of fact, that the zinc had been received as charged in the bill; but the agreement was specific and conditional in its character, that they should pay only when the plaintiff proved to their satisfaction that the zinc had been received by them. This he did not do. That was conceded in the course of his evidence upon the trial, for he testified that they had not, so far, been satisfied; and it did not appear that any effort had been made on his part to satisfy them of the justice or accuracy of this claim, neither was there any proposal in the proof offered by the plaintiff in the case to establish the fact that he had endeavored to satisfy the defendants of the correctness of his account for the sale of this zinc. 'He did propose to give further evidence of the delivery of the zinc, but none for the purpose of showing that he had either satisfied or endeavored to satisfy the defendants that his bill was correct. In that respect the evidence and offers in the case were radically defective, and not of such a nature as would entitle him to recover, even if the complaint had been in form upon the contract. As the agreement entered into by the defendants was conditional in its character, before a recovery could be had by the plaintiff, it was incumbent upon him to establish the fact that this condition had been performed, or, at least, that he had gone so far in the way of its performance as to produce evidence which should have been satisfactory to the defendants that the zinc had been delivered. . That was not shown to have been done, and no effort was made in the case to prove the fact to be otherwise. In order to justify a recovery upon an instrument of this character, the party claiming under it must show specifically the performance of the condition upon which it has been made to depend. (Bush v. Barnard, 8 Johns., 407; Wakeman v. Sherman, 5 Seld., 85; Draper v. Jones, 11 Barb., 263; Butler v. Tucker, 24 Wend., 447.) The last case is very much in point. There the plaintiff had undertaken to perform his part of a building contract to the satisfaction of a building committee, and in his action upon the contract, it was held that the declaration was insufficient on account of his .omission to aver that the work and material proved to be satisfactory to the defendant. Upon that subject it was said that the plaintiff not only agreed to furnish and deliver granite of a particular quality and description, and to execute the work in a satisfactory manner, but also stipulated that the work should be done to the entire satisfaction of the building, committee. He is bound by this contract; it is not enough for him to show that he has performed the contract in other respects, without also alleging that he has done it to the satisfaction of the arbiters agreed upon between the parties. (Id., 449.)

In both respects the plaintiff failed to maintain his action. He failed to bring suit upon the agreement, and to establish the fact that the condition upon which it depended had been performed.

For these reasons the case was properly dismissed at the circuit, and the judgment should be affirmed.

Brady and Barrett, JJ., concurred.

Judgment affirmed.


text:
    EMMA S. FALKLAND, as Administratrix, etc., of GEORGE F. FALKLAND, Deceased, Appellant, v. THE ST. NICHOLAS NATIONAL BANK OF NEW YORK, Respondent.

      Deposit made by an agent with a bank — right of the bank to set off against it a claim held against the beneficial owner thei’eof — the liability of a factor for money collected foi' his priticipal is discharged by his discharge in bankruptcy.

    For several years prior to July 13, 1866, the firm of Ruger Brothers had been carrying ou business in New York, as ship brokers, chartering vessels ■ and collecting the freight moneys on vessels consigned to them. About that time the firm, being embarrassed in business and desiring to protect the moneys so received from seizure by their general creditors, caused their bookkeeper, the plaintiff’s intestate, to open an account, in his own name, with the defendant, in which all moneys received by the firm in the course of its business were deposited up to August 20, 1866 ; the bookkeeper managing the said account in accordance with the instructions and directions of the said firm. Prior to July 23, 1866, the defendant received, and discounted, in the regular course of business, a note made by Ruger Brothers, which became due on that day. Thereafter, and on August 16, the defendant charged the amount due on the said note to the account so kept by the intestate, and offered to pay over the balance of the account to him.
    In this action, brought by him to recover the full amount of the deposit, Held,
      that the bank was entitled to set off the amount due on the said note against the said account.
    On April 80, 1869, the firm of Huger Brothers obtained a discharge in bankruptcy. Reid, that the firm was thereby relieved from all liability to the persons for whom the said moneys had been collected, and that it could not therefore be claimed, that the moneys so deposited with the defendant belonged to such persons, and not to the said firm.
    Appeal from a judgment in favor of the plaintiff entered upon the trial of this action by the court without a jury.
    The original plaintiff died after the trial of this action, and the present plaintiff was substituted in his place.
    The judge found that the firm of Huger Brothers were for several years prior to July 13, 1866, shipping merchants or brokers, doing bush less in the city of New Tork, and that the plaintiff was their bookkeeper ; that, as such shipbrokers or agents, the business of the firm consisted in chartering vessels, collecting freight moneys on vessels consigned to them, and acting as agents for a line of steamships; that in the course of their said business they received various sums of money on account of captains of vessels, and on account of various freights of vessels consigned to them, and deposited such moneys in their bank account; that, about the time named, that firm became embarrassed in business, and in consequence thereof, and in order to keep the funds received and to be received by them in the course of their said business from being attached by their creditors, they, on said July 13, 1866, caused an account to be opened by the plaintiff in the defendant’s bank, and thereupon, and until August 20, following, the moneys and checks received in the course of the business of Huger Brothers were deposited in the said bank in the said account to the credit of the plaintiff; that, at this time, and until July 26, Huger Brothers continued to deposit their own money in their own account with the Corn Exchange Bank; that in receiving, depositing, and paying out the said moneys, the plaintiff acted solely under the direction and instructions of the said Huger Brothers, for whom he continued to be bookkeeper, and their said business continued to be transacted in all respects in the same manner as before such account was opened, except that the said moneys were so deposited in the name of the plaintiff; that prior to July 23, 1866, the defendant received, in the regular course of their business, and discounted a note made by the said Huger Brothers for the sum of $1,793, which said note matured and became payable on the said July 23; that thereafter, and on August 16, the defendant charged the said note to the account of plaintiff; that the note was not indorsed by plaintiff, that he had no connection therewith, nor was the note payable at the defendant’s bank ; that on August 16, 1866, there was on deposit with the defendant, to the plaintiff’s credit, the sum of $2,000. That on August 15,' 1866, the plaintiff drew all but the sum of $2,000 of such deposits from the defendant’s bank, and, on the said August 16, presented to the defendant a check for $2,000, to draw out the remainder of the said deposits; that the defendant declined to honor the said check, but offered to pay to the plaintiff the difference between the said balance of $2,000, so to the credit of the account, and the amount of the said note for $1,793, which the plaintiff declined to receive.
    The court held that the defendant had a right to set off the claim embraced in the said note, against the said deposits, and that the plaintiff was entitled to recover judgment in this action for the sum of $198.75, with interest from August 16, 1866.

      Cecil Campbell Higgins, for the appellant.

      George W. Parsons, for the respondent.
   Daniels, J.:

This action was prosecuted for the recovery of a balance, consisting of the sum of $2,000, of moneys deposited by the intestate with the defendant.. The deposit account was opened on July 13, 1866, and continued until the 15th of the following month, and it was in the usual form of debtor and creditor, containing no indication whatever that the funds deposited were received by the plaintiff, or to be held by him,, or any other person, or by the defendant, as trust moneys. It appeared upon the trial, and was found as a fact by the judge, that the testator himself had no interest whatever in the moneys so deposited, or the amount credited for the deposits. They were the result of collections made by a firm known as Huger Brothers, doing business as agents and brokers on account of ships and vessels arriving in and departing from the city of New York. T.ie moneys deposited in the account were collected by Huger Brothers in the course of this business, on account of freights earned by the vessels for which they acted as agents, and they were then liable to pay them over, as they might be required to do so, to the masters, or the owners, of the vessels on account of which the collections were made. They became embarrassed in their business, and were apprehensive that they might be interfered with by efforts on the part of the other creditors to collect debts which they were unable to pay. For that reason, and to protect these moneys against their possible seizure by ordinary creditors, they were delivered to the intestate, who was the bookkeeper of the firm, to be deposited by him in his name, and so held as not to be liable to seizure in suits which might be brought by such creditors of the firm. This was the relation existing between the firm and the intestate as to these moneys; and while they were in his hands, he was accordingly obliged to appropriate and dispose of them as he might be directed by the firm, for the purpose of discharging the obligations created by the collections so far as, at the time, they remained unpaid. But no notice was given to the defendant that it was intended it should hold the moneys, or any jrortion of them, subject to the same obligation, or for the benefit of the persons on whose account the firm collected them. They were, on the contrary, deposited in the ordinary manner, by which, under the law, they became its moneys, and the defendant became a debtor liable for the payment only of an equivalent sum to the person making the deposit, or the firm on whose behalf he acted, whenever a proper demand, in the usual course of business, should be made for that purpose. The defendant sustained the relation to the intestate, and, through him, to the firm in whose employment he was engaged and acted, of a mere debtor; and the debt, in substance, was a debt to this firm of Huger Brothers, for they were the parties in the transaction who were beneficially interested, and had the right, through the intervention of the intestate, to require the payment of the money to them. And if that had been made, and the moneys had been received by the firm, they would, as a matter of legal light, afterwards have been entitled to use it as they might deem proper. For such moneys would have been only the proceeds of a simple debt due to themselves. It is true that if they used the money for purposes other than the extinguishment of debts incurred by the collection of those whose proceeds had been deposited, they would be still liable to the persons on whose account the collections were originally made. But that circumstance would not change the title to the indebtedness, or the funds which might be received from the defendant for the purpose of extinguishing it. The ultimate liability of its members to account for the moneys collected by them, would not change their title to the indebtedness existing in their favor against the bank. Notwithstanding the name in which the account was kept, it was still an indebtedness due to this firm ; and the money drawn out, on account of it, would be the money of the firm. In this respect, money differs from property of an ordinary description, for the title to it passes by delivery, and.the course of trade is said to create a property in the holder. (Saltus v. Everett, 20 Wend., 268; Commercial Bank of Albany v. Hughes, 17 Id., 94, 100.)

The debt created by the deposits with the defendant, in fact belonging, as it did, to the firm, was subject to all the ordinary equities and claims of deposit accounts, of this nature. It appeared by the evidence that while the account was running, and before July 23, a note made by Huger Brothers was presented to and discounted by the bank, and afterwards, and on or about August 16, it was charged to this account as the account of Huger Brothers. The court in its decision found this to be a proper charge in favor of the bank, on account of the fact, that although the dejaosits were made in the name of the intestate, they were strictly for the benefit of Huger Brothers, and created an indebtedness on the part of the bank to them. It seems to have been understood by the bank that the account, while in form in the name of the intestate, was that of the makers of this note, and for that reason it was deemed proper to charge it as a counter indebtedness which should be deducted from the amount otherwise due on the account. It is not contended but that this would have been an entirely proper charge had it not been for the circumstance that the firm collected the moneys which had been deposited in the course of their business as factors, or agents, of other persons ; but it is claimed, that inasmuch as that wi 3 the fact, that the title of these persons to the moneys Aras paramount to the right, of the bank' to charge the note against the indebtedness. If this account had been opened and continued Avith the bank as a trust account, or in any other manner, indicating that these moneys Avere deposited as the moneys of the persons Avhose claims were extinguished in their collection, the result claimed AArould folloAv from that circumstance; but in the dealings had with the bank no notice was given to it that the moneys were not in truth the absolute and unqualified property of the firm on whose account the deposits in fact were made. For that reason the bank had the right to deal with the indebtedness in the form it did. It had the right to assume, from the account opened, and its evident knowledge of the facts, that the moneys deposited were, at the time when the deposits wore made, the property of the firm in whose employment the intestate Avas engaged, and on Avhose behalf he acted in opening and continuing the account; and that the indebtedness Avas, through the intestate, an indebtedness to the firm of Huger Brothers; and acting upon those facts to discount their paper presented to it, and in case of non-payment to charge up the amount due upon it to the account. This seems to follow from the lien secured to bankers upon the accounts of their customers, for the payment of any indebtedness which may be owing from the latter. (Brandas v. Burnett, 12 Clark & F., 787; Currie v. Misa, 10 L. R., Exch., 153 ; Misa v. Currie, L. R., 1 App. Cas., 554.) An equally effectual principle has also been embodied in the statutes of this State, providing, in a case of this description, that a debt owing by the real creditors may be set off in an action brought to recover a sum due to them in the name of a plaintiff having no real interest in the contract upon Avhich the action is brought. (3 R. S., 5 ed., 635, § 12, subd. 10.)

It is claimed that this result avíII produce injustice to those persons AAdiose moneys Avere collected by the firm of Ruger Brothers, and deposited in the name of the intestate with the defendant, but there is nothing in the case shoAving that any claims of this description remained in existence against Ruger Brothers. It did not appear by anything proven upon the trial that they were still indebted to any persons for moneys, on whose account these collections had in fact been made. No claimants of that nature appeared to contest the right of the bank to have its own demand deducted from the accounts standing upon its books ; and it was not shown that creditors of this nature in any form made any claim whatever for payment of any debts, out of this account. Without some proof of that nature it could not properly be presumed that demands of the character of those relied upon by way of answer to the claim made by the bank continued to have any existence, and surely, if they did not, there was no legal obstacle on account of the equities of the firm’s creditors, standing in the way of the application made by the bank of the discounted note to the account on its books. The case, however, did not depend upon this mere absence of proof; for it was shown as a matter of fact that this firm of Huger Brothers became bankrupt in the summer of 1866, and obtained a discharge in bankruptcy about April 30, 1869. This discharge under the bankrupt law relieved the firm from their liability to the persons whose debts had been collected in obtaining the money deposited, even if any of them did remain unpaid. For while it may have been received in a fiduciary character, there was no such defalcation on the part of the firm as would prevent the discharge granted from so far operating in its favor. (IT. S. H. S., 991,993, §§ 5111-5119.) The bankrupt law of -184:1 received substantially this construction in the case of Chapman v. Forsyth (2 How. U. S., 202), and the similarity of the provisions contained upon this subject in the present law would appear to require that the same construction should also be given to them.

But it is evident, from the facts appearing upon the trial, that this deposit account was in fact, as well as in law, the property of the firm of Huger Brothers. If it had been collected by the intestate without deduction on account of this note, he would-have been legally bound to have paid the full amount of it over to that firm, and they, under the circumstances, would not have been obligated to have distributed the particular money so collected among the persons from whose debts the moneys were obtained which went into the creation of the deposit account. It was proper under the circumstances, therefore, for the bank to charge up the debts due to it, as it did; and all that the intestate in whose name the account stood, was entitled to claim, was the balance remaining after deducting the amount due upon the note. For this balance judgment was directed and entered in the case, and as that was all that could be rightfully claimed the judgment appealed from should be affirmed.

Brady and Barrett, JJ., concurred.

Judgment affirmed.