author: Parker, J.

text:
    James E. Crisfield, Supervisor, Resp’t, v. James S. Murdock et al., App’lts.

      (Court of Appeals, Second Division,

      Filed June 9, 1891.)

    1. Taxes—Bond of collector—Liability of surety—Contribution— Lien of on real estate of surety.
    Faulkner, one of the sureties upon the bond of a collector, arranged with him to deposit the tax money with a bank of which he was a stockholder, president and cashier, and failed to obey the collector’s direction to cash a check which he drew upon the bank, and pay such moneys to the county treasurer, although he knew his bank to be insolvent. Held, that his co-surety having had to make the amount good was not limited in his recovery against Faulkner’s real estate to one -half the amount, but that such real estate must bear the full burden of the loss.
    2. Same—Priority of lien.
    After the check had been given to Faulkner, he conveyed lands to H. by deeds and mortgages as security for endorsements upon notes, etc. Held, that the filing of the surety bond in the county clerk’s office under Laws 1885, chap. 10, was notice to all subsequent purchasers of a lien upon his real estate as provided in the Revised Statutes, enforceable for the full amount of any default, and furthermore H. was not a tona fide purchaser, as there was no new consideration.
    3. Same.
    A mortgage given before the execution of the bond, but not recorded until after it has been filed, is not superseded by it.
    4. Same.
    Prior to 1887 it was not the duty of the county clerk to record such bonds, but merely to file them and enter the fact in a hook prepared for that purpose.
    5. Same—Redemption op land taken.
    The right of redemption does not exist where land is sold under such a lien, not being given by the statute.
    Appeal from judgment of the general term of the supreme court, fifth department, entered on an order affirming a judgment of the special term.
    W. A. Sutherland, for app’lt Hyland; Fred W. Noyes, for app’lt Whiteman; Edward B. Coyne, for resp’t Wadsworth; Charles J. Bissell, for resp’t Crisfield.

       Modifying and affirming 28 N. Y. State Rep., 460.

   Parker, J.

The plaintiff, as supervisor of the town of Morth Dansville, "brought this suit in equity to enforce the lien of the collector’s bond against the defendant J. S. Murdock, as principal, and the defendants James Faulkner and Reuben Whiteman, sureties ; the defendants Hyland, Wadsworth and John M. Faulkner being made parties as incumbrancers.

On the 7th day of February, 1887, the county treasurer of Livingston county having duly extended the time for the collection of the unpaid taxes in the town of Morth Dansville, the collector, with his sureties Faulkner and Whiteman, renewed their bond in the manner provided by chapter 10 of the Laws of 1885, and it was on that day duly approved and filed and entered in. the county clerk’s office.

Subsequently the collector made return on his warrant, when there was found to be in his hands §2,180.10 which was due to the county treasurer. That sum has never been paid, and it was to secure the collection thereof that this suit to enforce the lien of the bond was instituted. The money in the hands of the collected was by him deposited with the First National Bank of Dansville, of which James Faulkner, one of the sureties, was a shareholder, president, cashier and general manager.

The collector gave to James Faulkner a check for the amount due the county treasurer, he agreeing to pay the amount called for by it to the treasurer. This he did not do, and on the 24th day of August, 1887, the bank ceased to do business, and its assets passed into the hands of a receiver. Subsequently the county treasurer duly issued and delivered to the sheriff of the county his warrant, commanding him to levy said sum of $2,180.10 out of the property of the collector which was thereafter returned unsatisfied, because the collector had no goods, or chattels, or lands or tenements, out of which the moneys called for by the warrant could be obtained.

Faulkner in the meantime had become insolvent; an action at law on the bond therefore could have hut resulted in enforcing collection of the entire amount from the surety Whiteman,’ who-was solvent. Such a result would have been most inequitable, .and for that reason the plaintiff may have been induced to institute a suit for the foreclosure of the lien in the first inrtance, Faulkner having been the owner of considerable real estate, to which the lien of the bond attached the moment of its filing and entry in the county clerk’s office. On the trial the point was made that the plaintiff ought not to maintain this suit because he had an adequate remedy at law, and it is again urged on this appeal In the answers of the several defendants, no such objection was made. On the contrary, each defendant, after setting forth the facts deemed the most favorable to his position, demanded equitable relief.

The parties having thus submitted to the jurisdiction of the court it was too late to take the objection on the trial that the plaintiff had a remedy at law. Grandin v. LeRoy, 2 Paige, 509 ; LeRoy v. Platt, 4 id., 77; Mentz v. Cook, 108 N. Y., 504; 13 N. Y. State Rep., 845; Baron v. Korn, 127 N. Y., ; 38 N. Y. State Rep., 140. Whether the objection if seasonably taken could have been made available need not, therefore, be considered. The right of the plaintiff, then, to enforce the lien of this bond must be deemed established, and the questions requiring consideration grow out of that portion of the decree which determines the equities of the several defendants as against each other, and also whether the decree was right in so far as it adjudged that subsequent mortgagees and grantees should have the right of redemption.

In the determination of the questions thus presented we shall first consider whether, as against Faulkner, the co-surety White-man is entitled to have the entire amount due to the plaintiff collected out of the property of Faulkner, if, on a sale, enough shall be realized for that purpose.

While on the execution of the undertaking each of the sureties became liable to pay the amount of any default on the part of the collector, nevertheless, in the event of payment of the whole by one of them, he would ordinarily be entitled to contribution from the other, to the extent of one-half the amount so paid.

And in a suit to foreclose the lien, in the absence of circumstances equitably rendering the property of the one chargeable with the whole amount in the first instance, the court would decree that the lands of each should first be made available to secure the payment of one-half. But it is asserted in this case that by reason of the acts of Faulkner his co-surety is entitled to have the entire amount collected out of Faulkner’s property, if it shall prove sufficient for that purpose.

Faulkner was the president and cashier of the bank in which the collector deposited the avails of taxes collected. It appears that for many years Faulkner had been one of the sureties of Murdock, as collector of the town, on an understanding that the moneys received should be deposited in the bank of which he was president

On the 11th day of July, 1887, about forty-four days before the failure of the bank, the collector drew his check against his account as kept in the bank for the sum due the county treasurer and left it with Faulkner at the bank, who at the time promised to transmit the amount thereof, either in money or in draft, to the treasurer of Livingston county. This Faulkner did not do, notwithstanding he had accepted the check and retained it. down to the time of the bank’s failure. Now it will be observed that the moneys were deposited with the bank and not with Faulkner. When deposited, the title to the money passed to the bank, which impliedly promised to pay the debt thereby created by honoring the checks of the depositor as they were presented, so that the relation of the bank and the collector was thereafter that of debtor and creditor. O' Connor v. Mechanics' Bank, 124 N. Y., 324; 36 N. Y. State Rep., 277. It does not appear that the bank ever paid the check, so that at .the time of its failure the title to the funds was in it and not in Faulkner. As Faulkner never had the moneys the collector could not have maintained an action against him for their recovery, and in that respect, therefore, the collector had no right as against Faulkner to which the co-surety Whiteman could be subrogated.

The collector had a claim against the bank for the moneys deposited with it, but the bank was not a surety, and the rights of the collector against it cannot be made available to the sureties in this suit.

The question is therefore presented, whether in that which he did, or omitted to do, Faulkner failed to discharge a duty which ho owed to the collector and the co-surety. During the forty-four days which elapsed between the giving of the check, and the failure of the bank, the bank received deposits, and paid checks, as theretofore during its existence. It was a debtor to the collector in the amount of his check, which it could have paid as well as the checks of other depositors honored subsequent to the date of the collector’s check.

Faulkner as president, and cashier of the bank, knew of its financial condition; knew that the plaintiff had moneys there, applicable to the payment of the check and was in a position to obtain the moneys and pay the county treasurer, as he had agreed to do. Had he done so, the bond would have been satisfied, and the collector and his sureties relieved from liability.

The doctrine of contribution in the absence of a contract, express or implied, between sureties to indemnify each other, rests on principles of equity. Relief being afforded to the surety making payment, on the ground that the sureties have a common interest and a common burden, for as all are equally bound and equally relieved, equity does it but just that all should contribute in proportion, towards a benefit obtained by all. Burge on Suretyship, 384; 1 Story’s Eq. Jur., § 493.

A co-surety is entitled to any indemnity or the avails of it, which his co-surety suing for contribution had from the principal debtor, or if the co-surety has released, or discharged the indemnity, or has collected, and applied the avails to his own use, he cannot recover. Theabold on Pr., and Surety, chap. 11, § 283; Livingston v. Van Rensselaer, 6 Wend., 63.

In Ramsey v. Lewis, 30 Barb., 403, one of the several sureties took from the principal a chattel mortgage, to indemnify him for becoming such surety, and afterwards discharged the same without the consent of his co-sureties, and upon the principles already alluded tó, it was held in an action brought by him against his co-sureties that they had an equitably interest in the chattel mortgage, and that to the extent that they were injured by the plaintig’s relinquishment without their consent, they were entitled to relief as against him.

In Davis v. Toulmin, 77 N. Y., 280, the court states the rule in these words: “If the co-surety suing for contribution has received any money, or property, as payment or security from the principal, he will be obliged to account for the same”

Had Faulkner been solvent after the failure of the bank, and had been required to pay the county treasurer the amount due on the bond, within the principle of the cases cited, he would not have been entitled to recover in an action against his co-surety for contribution, because the collector had placed in his hands the means by which’ the indebtedness could and should have been paid, thus relieving the principal as well as the sureties from liability, and he owed to his co-surety as well as his principal the duty of making available that which he received for such purpose. So if the co-surety Whiteman, after default, had paid the amount of the bond, he would have been entitled in an action against Faulkner to recover his proportion of the benefit, which Faulkner should have derived from any moneys, securities or property given to him by the principal to be applied in the extinguishment of the indebtedness, for which he had become surety. His failure to do so was doubtless due to the fact that by omitting to withdraw the funds from the bank he hoped to postpone the hour of the bank’s insolvency, and his own financial ruin, but while this may tend to explain, it in no wise excuses his neglect to perform the duty of collecting the money from the bank and making payment.

Faulkner is no longer responsible, but the lien sought to be foreclosed is by the terms of the bond enforceable against his real estate, for the entire amount due thereon, and in view of the equities existing in favor of his co-surety, equities which would prevent Faulkner from either maintaining an action for contribution against Whiteman, or from successfully resisting an effort by his co-surety to obtain judgment for the full amount of the default after payment thereof by him, a court of equity, as against Faulkner, will not relieve his real estate on which the bond is a lien from bearing the full burden of it, but will decree that the entire proceeds thereof so far as required be applied in extinguishment of the amount due.

Having reached the conclusion that as against Faulkner the co-surety had such equities as to entitle him to a decree-that the lien of the bond be enforced out of Faulkner’s real estate, we are brought to the question whether such equity is superior to that of Hyland, a subsequent mortgagee and grantee of Faulkner’s.

Prior to the 11th day of July, 1887, the collector had made his collections, and he was in default as collector. On that day he drew his check for the amount of his default, and delivered it to Faulkner, who agreed to send the money, or a draft, to the treasurer.

Subsequently, and on the 24th of August, the day on which the bank ceased to do business, Faulkner conveyed, to John Hyland certain lands on which the collector’s bond was a lien.

On the same day he mortgaged certain other lands, likewise charged with the lien of such bond, to Hyland as security for the sum of $20,000 to cover certain promissory notes made and endorsed by Hyland for the benefit of Faulkner. A few days prior thereto, and on August 18th, Faulkner mortgaged to Hyland still other lands, which he owned at the time of the filing and entry of the bond as security for the sum of $15,000. If without actual notice of the then existing equity in favor of Whiteman, Hyland had advanced the amount of money called for by the deed and the mortgages, at the time of their execution and delivery, whether such equity was, nevertheless, superior to the rights acquired by Hyland under his deed and mortgages, would have presented an interesting question. The filing and entry of the bond in the county clerk’s office, as required by statute, was. notice to all subsequent purchasers of the existence of a lien on Faulkner’s real estate enforceable for the full amount of any default on the part of the principal, for by the terms of the bond as affected by statute each surety was separately bound, and the real estate of each- separately charged with the payment of any sum which the principal should omit to pay over, as required by the terms of the warrant delivered to him.

While it is true that one surety has a right of action against, his co-surety for contribution, he is liable to be defeated in whole, or in part, 2 by reason of his neglect or misconduct his co-surety will be injured by a judgment compelling contribution. So that, it can hardly be said that the entry of the bond is notice to a subsequent purchaser, that the real estate conveyed to him is chargeable only with a certain proportion of any liability that may accrue thereon, for it is, in the first instance, burdened with the entire liability, and whether it can be reduced by' enforced contribution from a co-surety may be dependent on the existence, or non-existence, of equities in favor of the one as against the other, which do not appear on the face of the instrument. It is, therefore, said that a purchaser, under such circumstances, is put on inquiry to ascertain whether there are any equities which prevent his grantor from compelling contribution from his co-surety, and to that extent relieve the charge upon the lands about to be-conveyed.

The evidence is silent touching any inquiry in that direction by Hyland; it does not even appear that he had personal knowledge of the existence of the bond. But this subject need not be pursued further, for Hyland was not a bona fide purchaser in such sense as to entitle him to take title paramount to the then existing equity in favor of Whiteman.

Hyland was a creditor of Faulkner, and the consideration for the deed and mortgages was an antecedent debt, which furnished a valuable consideration for their support, but, in the absence of some new .consideration, parted with upon the faith of the purchase, did not operate to protect his title against a prior outstanding equity. Matter of Howe, 1 Paige, 125; Jackson v. Campbell, 19 Johns., 282; Ray v. Birdseye, 5 Denio, 619; Wood v. Robinson., 22 N. Y., 567; Knower v. Central National Bank, 124 id., 552; 37 N. Y. State Rep., 89.

Before the execution of the bond, and on the 14th day of September, 1886, the defendant James Faulkner and his wife executed and delivered to the defendant James W. Wadsworth, a mortgage covering certain of the lands described in the complaint, and conditioned for the payment to Wadsworth of the sum of $10,000. Wadsworth did not record the mortgage until August 25, 1887, so that between the date of the execution and that of recording the mortgage the bond in controversy became a lien on all the real estate of Faulkner.

Whether the lien of the bond is superior to that of the mortgage presents one of the questions which we are invited to pass upon. The statute providing that the effect of the execution, delivery, filing and entry of the collector’s bond shall operate to create a lien on all the real estate in the county of the collector, and his sureties, is as follows: The supervisor shall, within six days thereafter, file such bond, with his approbation endorsed thereon, in the office of the county clerk, who shall make an entry thereof, in a book to be provided for the purpose, in the same manner in which judgments are entered of record; and every such bond shall be a lien on all the real estate held jointly •or severally by the collector or his sureties, within the county, at the time of the filing thereof; and shall continue to be such lien till its condition, together with all costs and charges which may accrue by the prosecution thereof, shall be fully satisfied.” R. S., part I, chap. XI, title 3, art. 2, § 20.

It was the view of the courts below that the lien which the statute declares shall be created by the filing and entry of a collector’s bond in the county clerk’s office, is a general lien, having no greater force and effect than the lien of a judgment. Such was also the conclusion of the court in Wilder v. Butterfield, 50 How. Pr., 385. And, following the well settled rule that an unrecorded mortgage is entitled to priority over the lien of a judgment, it was held that the lien of the Wadsworth mortgage was superior to the lien of the bond.

The conclusion thus reached accords with our view of the intent and effect of the statute. It does not, in terms, declare that a lien thus created shall be superior to and take precedence over all outstanding equities. Nor was the purpose of the act to secure the town in all cases by a lien on real estate, for the supervisor is authorized to determine the sufficiency of the sureties, and may accept a bond executed by persons who are not the owners of real estate.

So the responsibility of securing the town against loss occasioned by a defaulting collector, is primarily placed upon the supervisor, and by way of further security, merely, the bond is made a lien on the real estate of principal and sureties.

As the policy of the statute was not necessarily to secure the town by a lien on real estate, but to burden the supervisor with the obligation of determining the sufficiency of the sureties, it was. apparently not deemed necessary to provide that the lien should be superior to equities not of record.

Certainly there is nothing in the statute suggesting an intention to the contrary. One of the appellants contends that the supervisor of the town is a purchaser, the bond a conveyance, and the-filing and entry in the county clerk’s office a recording thereof, within the meaning of the recording act.

It may be observed, in this connection, that the bond was not acknowledged, as required by statute, in order to entitle conveyances or mortgages or securities in the nature of mortgages to be recorded; nor was it recorded in the books required by the recording act to be kept for such purpose, but instead it was filed and entered in a separate book, as required by statute, in the same-manner in which judgments are entered of record.

And in that which was done, the county clerk did all that the statute commanded him to do, and in the absence of an acknowledgment, all that he was authorized to have done, had the supervisor requested that it be recorded in the book in which mortgages, or securities in the nature of mortgages, are required to be recorded. But the statute does not seem to have contemplated that such a bond should be within the protection of the recording act. It does not refer to the act, require the bond to be acknowledged, nor make provision for recording it, but declares that a lien shall be created if the bond be “ filed in the office of the county clerk, who shall make an entry thereof, in a book to be provided for the purpose, in the same manner in which judgments are entered of record.” Since the execution of the bond, the legislature has provided that such bonds shall be recorded (chap. 372, Laws 1887), but such enactment, in so far as it may be said to indicate legislative construction of the statute before us, supports the view we have expressed.

The question remaining is whether the decree was right, in so far as it adjudged that the subsequent grantee and mortgagee should be permitted to redeem within the period of time provided by statute for the redemption of lands sold under execution. The right in law to redeem lands from sale exists only when given by statute. Our statutes provide for a redemption of lands sold under mortgages to the state, R S„ part 1, chap. 9, title 6, § 14, or for non-payment of taxes; B. S., part 1, chap. 13, title 2, § 74, and from a sale under an execution. Code Civ. Pro., § 1446. And courts of equity will decree that redemption may be made in certain cases. Taggart v. Rogers, 49 Hun, 265 ; 17 N. Y. State Rep., 646; Crane v. McDonald, 2 id., 150; Casserly v. Witherbee, 119 N. Y., 522 ; 30 N. Y. State Rep., 92. But in equity the general rule is that where all the parties are before the court and the rule is to be made pursuant to its decree, and by an officer appointed by it for the purpose, the right of redemption will not be allowed except by command of the statute. And this case comes within that rule.

The lien created by the filing and entry of the bond is a general lien with no greater force and effect as against prior unrecorded mortgages than that of a judgment. But it is not a judgment lien nor is it to be enforced by sale under execution as the statute provides a judgment lien shall be. The section of the Code above referred to is not therefore applicable to the situation presented, and as there exists none of the equities requisite to bring this case within the rule which has led courts of equity in certain cases to adjudge that a party be permitted to redeem, the right of redemption should not have been authorized by this decree. This view accords with the conclusion reached in Wilder v. Butterfield, supra.

The judgment should be modified accordingly, and as modified, affirmed, with costs to the plaintiff!

All concur.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    The People, Resp’ts, v. John Most, App’lt.

      (Court of Appeals,

      Filed June 16, 1891.)

    Unlawful assembly—Evidence necessaby to convict—Penal Code, § 451, sued. 3.
    Three witnesses for the People testified that defendant spoke at a public meeting of anarchists in the city of Hew York the day after Spies and others were hung in Chicago; that he was hailed as their leader and in his speech sympathized with his “ brother anarchists " denounced the judge, the supreme court, the governor of Illinois and the police, saying “ the day of revolution is not far off, and when it comes see that you are ready to resist and kill those hirelings of capitalists;" saying that they had weapons a hundred fold worse than the soldiers, etc. At times the audience by their cheers, etc., showed their approval. Defendant and ten other witnesses flatly contradicted the witnesses for the People. Held, that the evidence, if believed by the jury, was sufficient to convict of a violation of the Penal Code, § 451, sub. 3.
    Appeal by the defendant from an order of the general term of the supreme court of the first department, affirming a judgment of the court of general sessions of the peace, entered upon the verdict of a jury, convicting him of a violation of subdivision 3 of § 451 of the Penal Code, which reads as follows:
    “ Whenever any three or more persons being assembled, attempt or threaten any act tending towards a breach of the peace, or injury to person or property, or any unlawful act, such an assembly is unlawful, and every person participating therein by his presence, aid or instigation, is guilty of a misdemeanor.”
    The crime charged was predicated upon the proceedings of a meeting of anarchists held at a hall in rear of a saloon in East Seventh street in the city of blew York, on the evening of the 12th of bTovember, 1887, the day after Spies and others had been hanged in Chicago for the murder, by means of dynamite bombs and explosives, of a number of policemen. The meeting was addressed by the defendant. The evidence on the part of the prosecution of his utterances on that occasion, is found in the testimony of two policemen who were assigned by their superior officer to attend the meeting, and of a newspaper reporter who was also present. Their version of the speech was flatly contradicted by the defendant, and ten or more witnesses called by him.
    The witnesses for the people varied somewhat in their narration of the occurrences on the evening in question, but they substantially agreed in regard to the most material points. It appears from the testimony that a similar meeting appointed to be held on the same evening, had been suppressed by the police authorities.
    There were present at the meeting addressed by Most from eighty to one hundred people, who were, in the main, anarchists, and the defendant openly avowed himself to be one. When he came into the hall he was greeted by the assembly with the words: “ Here comes our leader, Father Most.”
    He soon commenced speaking and the following are among his utterances, as testified to by witnesses for the People: “ Brother anarchists, we were to have a meeting in Second avenue in Florence Hall, over our dead brethren who were, murdered in Chicago;” “Ihave just received word that Captain McCullagh and his bloodhounds of police have stopped our meeting.’' “Let them beware ; hereafter our meetings will be held in secret, and Hod help them if we catch them in our socials.” “It was a shame, and that "the police spies, the police hounds and the capitalistic press, their teeth were filed, were sharp, but that they would be blunted.” The speaker then went on to extol the bravery of their brethren who had died on the gallows at Chicago. He also said: “They were not properly hung; the weight was not heavy enough to break their necks, but their blood cries to heaven for revenge and we will revenge them.”

      “ Our brethren in Chicago had not a fair trial; there was prejudiced evidence there were capitalists on the jury; they held our brethren in prison until they could get perjured evidence to convict them.” “ If I had known the executioner who murdered, who strangled our brothers, I would never rest until he had shared their fate.”
    • “ The day of revolution will soon come. First of all will be Hrinnell; then comes Judge Hary; then the supreme court of Illinois; then the highest murderers of the land, the supreme court of the United States. The most cowardly of all, Oglesby, the governor of Illinois. He must not think because he pardoned two of our brethren to a lingering death of life imprisonment, he will be spared.”
    “.I again urge you to arm yourself, as the day of revolution is not far off; and when it comes, see that you are ready to resist and kill those hirelings of capitalists.”
    “ What do we care for a few soldiers ? We have a weapon a hundred fold worse than theirs. They think they kill five of our brethren, but we will have a hundred or five hundred for every one they have murdered. I am an anarchist and am willing to die for its cause.”
    And according to one of the witnesses he ended his harangue with the exclamation: “Eise, Anarchy; long shall it live.” Hrinnell referred to was the prosecuting officer who conducted the prosecution of the Chicago anarchists; Hary was the judge who presided at the trial and sentenced them. The supreme court judges of the state of Illinois were the judges who had affirmed their conviction and sentence. The judges of the supreme court of the United States had denied their application for writs of error and supersedeas. Oglesby was the governor of the state of Illinois, who had commuted the sentence of two of the convicted anarchists and had refused pardon and commutation to five others.
    At times during the course of the address the audience exhibited by their cheers and appearance great excitement and warm approval of the sentiments he expressed, and when the speaker said “ the day of revolution is not far distant," one of the audience rose and said, excitedly: “Why not to-night, for we are ready and prepared ? ”
    During the course of the trial the district attorney sought, by offers of evidence, repeatedly made and overruled, to get before the jury the fact that the defendant was the author of a book entitled “A Manual of. Revolution Warfare,” and the offers made embraced references to the contents. The conduct of the district attorney is criticised by the defendant’s counsel as unfair, and was made a point on the application made to the trial judge for a new trial, which he denied.
    It is claimed the evidence did not make out the offence charged in the indictment/

      Wm. F. Howe, for app’lt; McKenzie Semple, ass’t dist. att’y, for resp’ts.

       Affirming 29 N. Y. State Rep., 97.

   Andrews, J.

But three of the questions presented on the brief of the appellant’s counsel can be considered on this appeal. One of these questions is raised by the exception to the denial by the trial judge of the motion of the counsel for the defendant, made at the conclusion of the evidence on the part of the People, for an instruction to the jury to acquit the defendant on the ground that the evidence was legally insufficient to justify a conviction.

An exception was taken to a question put to a witness for the defendant on cross-examination by the prosecuting officer, and which was allowed by the court, as to his belief in a Supreme being.

A third exception was taken to evidence offered by the prosecution, and admitted, that the persons present at the meeting at Kraemer’s Hall on the evening of November 12, 1887, were anarchists.

By the decision of the general term, affirming the conviction and judgment of the trial court, questions as to the credibility of witnesses and the weight and preponderance of evidence are eliminated from the controversy, as well as every consideration bearing upon the propriety of granting a new trial in the exercise of judicial discretion, upon the ground that the jury were prejudiced by offers of evidence persistently made by the prosecuting officer and • repeatedly overruled, which offers, as is claimed, were persisted in in order to bring before the jury irrelevant facts having no legitimate bearing upon the issue to be decided.

If in the opinion of the general term, for any reason appearing in the record, justice required a new trial, it had the power, in its discretion, to grant it. But this court, as a general rule, deals with questions of law only, and it cannot review an exercise of the discretion of the general term in granting or refusing new trials in criminal cases.

The main question relates to the sufficiency of the evidence to support the charge in the indictment. In order to ascertain in what the offense of an unlawful assembly consists, reference must be had primarily to the statute which defines it. It was an offense well known at common law and common law definitions may be a material aid in many cases in the interpretation of statute definitions of common law offenses. But as it is competent for the law making power to create new offenses not before known, so it may extend common law definitions of particular offenses so as to include acts not punishable under the common law and not embraced within the common law definition of the offense.

In other words, identity in the name of offenses at common law and under a statute does not necessarily imply that the same precise constituents, and no others, enter into both.

The third subdivision of § 451 of the Penal Code, under which the defendant was indicted, requires that in order to constitute the offense of unlawful assembly, three or more persons being assembled should attempt or threaten any act “tending towards a breach of the peace or an injury to person or property, or any unlawful act.”

The offense can only be committed when there is a concert or combination of three or more persons who unite in the attempt or in the threat to do one or more of the things specified in the statute. A threat made by one or by two persons only, in which no others participated, would not be indictable under this statute, although made in an assembly of many persons. It was also the rule of the common law that three or more persons should be assembled and participate in the unlawful purpose, in order to constitute the offense of unlawful assembly, or the cognate offenses of rout and riot. 4 Bl. Com., 146; 1 Russ. on Cr., 388.

Unless, therefore, the jury were authorized to find that the threat charged in the indictment was made not only by the defendant Most, but also by at least two other persons, on the occasion in question, the offense was not made out. In determining whether others participated with Most in the threat alleged, it was not necessary that it should affirmatively appear that other persons present uttered or repeated the same words used by Most. Their participation could be shown by their adoption of his language, exhibited by their conduct. If the jury were authorized to find that the persons present were under the influence of similar sentiments, "and that they (to the number of two or more) adopted his language as their own, then the threats, although only uttered by him in words, were also those of the persons who by their conduct approved of and assented to them. “ If any person,” said Mansfield, C. J., in Clifford v. Brandon, 2 Camp., 370, “encourages, promotes, or takes part in riots, whether by words, signs or gestures, or by wearing the badge or ensign of the rioters, he is himself to be considered a rioter.” Within this principle the requisite concurrence of the statutory number in the threats uttered by Most was shown, or at least there was sufficient evidence of that fact to go to the jury. The assembly had met under the excitement of the hanging of the Chicago anarchists the day before. It was in sympathy with Most, and when he entered the room the persons present hailed him as their leader. They applauded his utterances and cheered him when he denounced the murderers of their “ friends and comrades,” and threatened revenge.

But it is insisted that no threats were proved to have been made by Most; that what he said were prophesies of what would be likely to happen, and not threats that he or others in sympathy with him would commit violence or murder to vindicate their “murdered brethren.” It is unnecessary to recall the specific evidence upon this point. The language of Most would, under ordinary circumstances, be regarded as the ravings of a madman, rather than the deliberate utterances of one who had formed the purpose of avenging supposed wrongs by murder and revolution.

It was for the jury, however, to interpret the language used. The denunciations of the government and the officers of the law, with which Most’s speech abounded; his advice to arm and to be prepared for the revolution “ not far distant; ” his declaration that they would avenge the blood of their comrades; his references to the judges and the officials who were concerned in their trial, conviction and execution, and the declaration that Governor Oglesby, although he had commuted the sentences of two of the condemned, would not be “ spared ” in the general destruction; his reference to the “police bloodhounds,” and his exclamation “God help them if they are found in our socials,” presented evidence from which the jury had a right to say whether or not words, some of which were unmistakably in the form of threats, were in fact used and understood as such, and their finding upon this point adversely to the defendant is conclusive here.

Nor is it we conceive an answer to the indictment that the threats related to acts not presently to be done, but to be performed at some future time, when affairs were ripe for the revolution predicted.

The main purpose of the common law and of the statute relating to unlawful assemblies is the protection of the public peace. Incendiary speeches under the circumstances disclosed in this case, before a crowd of ignorant, misguided men, are not less dangerous because the advice to arm for the redress of grievances and the threats of murder are accompanied with the suggestion that the time is not quite come for action. This is illustrated in this case by the circumstance appearing in evidence that when Most said, “ the day of revolution is not far distant,” one of the audience rose and said excitedly: “Why not to-night? We are ready and prepared.” No one can forsee the consequences which may result from language such as was used on this occasion when addressed to a sympathizing and highly excited audience.

The point that threats of personal violence made in this state against persons in another state, although made at an assembly here, are not within the statute is untenable.. The offense of unlawful assembly of which the defendant was convicted was committed, here. We are administering our own laws and not the laws of a foreign jurisdiction, and our state may properly pass laws to punish plotters here against the public peace of a sister state.

We are of opinion, on the main question, that a case within the statute was made out for the jury. The common law offense of unlawful assembly is defined to be “ a disturbance of the peace by persons assembling together with an intention to do a thing which, if executed, would make them rioters, but neither executing it nor making a motion towards its execution.” 1 Russ. on Cr., 372.

It is unnecessary to decide whether the circumstances of the present case constitute the offense within this definition. They bring the case within the statute definition, and that is sufficient.

The exception to the question put to the witness on cross-examination as to his belief in a Supreme Being is frivolous.

The exception to the proof that the persons assembled at the meeting of November 12 were anarchists, is also without force. That they were in the main anarchists appears by other testimony. They were addressed by Most as “brother anarchists,” and they saluted him as their leader. Moreover, proof that they were anarchists was competent to aid the jury in determining, in connection with other circumstances, this point, whether the meeting joined in the threats made by the defendant.

We discover no error in the record, and the judgment should, therefore, be affirmed.

All concur, except Finch, J., absent.


author: Earl, J.

text:
    The Citizens’ Bank of Perry, N. Y., Resp’t, v. Helen A. Williams and L. Sophia Williams, App’lts.

      (Court of Appeals,

      Filed June 16, 1891.)

    Attachment—Assignment for creditors—Fraud.
    Helen A. Williams, at the time of forming a partnership with L. Sophia Williams, owed E. M. Clark $800, and gave him their joint and several promissory notes, Sophia signing simply as surety. The firm becoming insolvent, made a general assignment, by which they directed that such notes be paid out of the proceeds of the firm property. Feld, that these facts were insufficient to uphold an attachment against defendants, on the ground that they had assigned with intent to defraud.
    Appeal from judgment of the supreme court, general term, fifth department, affirming order of Erie special term denying defendant's motion to vacate attachment.

      B. Frank Drake and Owen Harris, for app’lts; Eugene M. Bartlett, George F. Danforth and Morris A. Lovejoy, for resp’t.

       Reversing 35 N. Y. State Rep., 543.

   Earl, J.

The defendants were co-partners in the mercantile business at Perry, Wyoming county, under the firm name of Williams & Co., and in their firm name they executed a note to the plaintiff for. borrowed money. It commenced this action and obtained an attachment against them on the ground that they had assigned their property with intent to defraud their creditors. They made a motion to set aside the attachment based upon the same papers upon which it' was granted, and the motion was denied at the special term, and the decision there was affirmed at the general term, and then the defendants appealed to this court.

The allegation of fraud against the defendants is based upon the following facts: At the time the defendants became partners Helen A. Williams owed E. M. Clark about $800, and for that indebtedness they gave him their two joint and several promissory notes signed by them. L. Sophia Williams, however, signed the notes simply as surety for Helen A. Williams, who was and remained the principal debtor. Thereafter, in February, 1890, the defendants, having become insolvent both as a firm and as individuals, executed a general assignment of all their firm and individual property for the benefit of their creditors in which they directed the two notes held by Clark to be paid out of the proceeds of the firm property; and the fraud alleged by the plaintiff consists in this direction, the claim being that the notes were not firm debts, but the individual debts of Helen A. Williams for which L. Sophia Williams was only surety, and that, therefore, it was necessarily a fraud in law upon the firm creditors to appropriate the proceeds of firm property for their payment.

We think the learned courts below fell into error in granting and upholding the attachment upon the grounds specified. These notes were joint debts of the defendants, for which they were jointly liable to Clark, and it was therefore not a fraud to appropriate their joint property for their payment. Clark could have recovered a judgment upon the notes against the defendants, and could by execution have seized the firm property to satisfy the judgment, and a purchaser at the execution sale would have obtained a full and absolute title to the firm property purchased.

Although the defendants were insolvent, they could have paid these debts either in money or in property belonging to the firm, and that in so doing they would have perpetrated no fraud upon their creditors. As they could thus pay the debts, either with firm money or firm property, we cannot perceive why they could not, through an assignee, direct the same debts to be paid out of the proceeds of the firm property. It certainly cannot be a fraud upon firm creditors to apply firm property to the payment of debts for the satisfaction of which such property could be taken.

It is a mistake to suppose that the firm property is now in the hands of a court of equity for distribution and application upon equitable principles. Ho suit whatever is pending in equity, and no application has been made to a court of equity in reference to the firm property. The defendants have made an assignment of their firm property authorized by law, and the assignee is to dispose of it, not in accordance with the directions of any court, but in precise accordance with the terms and conditions of the assignment. It may be that if these firm assets were-to be administered in a court of equity, according to equitable principles, the court would direct the firm debts to be paid before these debts to Clark, although it is not certain that it would do so ; and it is not now necessary to determine whether it would or not Hoare v. Oriental Bank, 2 Appeal Cases, 589. These defendants being jointly liable to Clark have themselves provided that his claims shall be paid out of the firm assets, and there is no room for the interference of any court As between him and them his claim upon the form property is just as meritorious and equitable as the claim of firm creditors. After the execution of the assignment, and the provision made therein for the payment of these debts L. Sophia Williams had no equitable claim that the firm property ¡should not be applied precisely as she had directed that it should be applied. Hence on the principles of subrogation the firm creditors can take no equity from her which they can enforce against the firm property, upon principles laid down in the case of Saunders v. Riley, 105 N. Y., 12; 6 N. Y. State Rep., 452, and cases therein cited.

If these notes had been the individual debts of Helen A. Williams, for which L. Sophia Williams was in no way liable, then the provision in the assignment for their payment out of firm assets would have been a fraud upon the firm creditors, within the case of Wilson v. Robinson, 21 N. Y., 587. The ground of that decision was that the joint property was appropriated for the payment of an individual debt of one of the members of the firm, for which the other member was in no way liable. But no case can be found holding that it is a fraud upon the firm creditors for the members of a firm to appropriate the firm property to the payment of debts for which they are all liable. It is never a fraud upon the creditors of any person to appropriate his property for the payment of a debt for which he is liable ; and so one who is jointly liable with others as a member of a firm or otherwise, may appropriate his individual property for the payment of a joint debt, for the reason that he is liable to pay the joint debt, and his property could be seized by virtue of an execution issued upon a judgment for the joint debt to satisfy the same. Crook v. Rindskopf, 105 N. Y., 476 ; 8 N. Y. State Rep., 66.

Ho benefit or ultimate advantage is secured to L. Sophia Williams by the appropriation of the firm property for the payment of the debts which, as between her and Helen A. Williams, are the debts of the latter. Upon payment of these debts there will be in the hands of the assignee a claim for the reimbursement of the firm against the individual estate of Helen A. Williams. That claim will be in the hands of the assignee to be administered and disposed of under the assignment, and no benefit therefrom can come to either member of the firm until after the payment of all the firm and individual debts.

We, therefore, see no reason to doubt that the assignment was. valid and free from the imputation of fraud.

The orders of the general and special terms should be reversed and the motion granted, with costs in all the courts, and ten dollars costs of the motion.

All concur, except Finch, J., absent.


text:
    The Oregon Pacific Railroad Co., App’lt, v. George Forrest et al., Executors, etc., Resp’ts.

      (Court of Appeals,

      Filed June 16, 1891.)

    1. Contract—Consideration.
    Plaintiff contracted with one Garrison to purchase in England and deliver at San Francisco 5,000 tons of steel rails, and deposited with him 3,000 bonds, 100 of which he was to retain and the remaining 3,900 to hold until the rails were paid for, etc. Garrison delayed on his part so that plaintiff purchased the rails itself and demanded back the bonds, which Garris >n refused to surrender until finally plaintiff gave him 100 bonds to cancel the first contract, which was done. Held, that the contract by which such surrender was made and Garrison allowed to retain the bonds was founded on a good consideration.
    2. Same—Duress.
    The facts constituting duress on the part of Garrison, if any there was, being known to plaintiff, it was its duty to act promptly in repudiating it, and by paying the interest for more than six years, both to Garrison and his heirs after his death, it ratified the contract by which the bonds were turned over to him.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment dismissing complaint after trial at circuit.

      Joseph H. Choate, for app’lt; Horace Russell, for resp’ts.

       Affirming 33 N. Y. State Rep., 178.

   Earl, J.

This action was brought against the executors of Cornelius K. Garrison, to recover the possession of one hundred first mortgage bonds issued by the plaintiff, of which it claims to be the owner and entitled to the immediate possession.

It is alleged in the complaint that the plaintiff, on or about the 1st day of October, 1887, duly demanded of the defendants the delivery to it of the bonds, and that the defendants had failed and refused to deliver the same, or any of them, to it; and relief is prayed that the defendants may be adjudged to deliver to the plaintiff the bonds, or that it may have judgment for $102,500 in ease a delivery cannot be had, together with its damages and costs.

The answer put in issue the plaintiff’s right and title to the bonds," and claimed that the defendants were entitled to hold and possess the same under an agreement between the plaintiff and their testator, made on or about the 13th day of August, 1881.

The material facts are as follows: On the 13th day of June, 1881, the plaintiff and Cornelius K. Garrison entered into a contract, under seal, by which Garrison agreed to purchase five thousand tons of English steel rails, deliverable in San Francisco at as early a day as reasonably practicable, and agreed to sell and deliver to the defendant the rails so bought upon arrival there of each shipment, upon receiving in cash the actual cost to him of the rails, and the further sum of $100,000 in the first mortgage bonds of the plaintiff; and he agreed to purchase the necessary fish plates, bolts, nuts, spikes and fittings for the rails, deliverable in San Francisco at the same time with the rails, and sell and deliver the same to the plaintiff upon the arrival of each shipment at that place at the net cost to him. And the plaintiff agreed to purchase from him the rails, fish plates, bolts, .nuts, spikes and fittings, upon arrival of each shipment at San Francisco, and pay for the same in cash and bonds as provided.

The plaintiff also agreed to deposit with Garrison, as a guarantee for the performance of the agreement on its part, three thousand of its first mortgage bonds for one thousand dollars each, one hundred of which bonds he was to retain, and he was to hold the remaining twenty-nine hundred bonds until the plaintiff had taken and paid for the rails, fish plates, etc., in full, including interest and all proper charges, provided that the plaintiff might withdraw any part of the bonds upon paying to Garrison sixty per cent of their par value. The plaintiff further agreed to give to Garrison the same bonus in the full paid stock of the company upon the one hundred bonds that he wás to retain that he would be entitled to pro rata with the most favored purchaser of any of the plaintiff’s bonds.

Garrison was also to loan to the plaintiff an amount equal to the difference between the cost to him of the rails, fish plates, etc., , and $200,000, the bonds deposited with him being held as security for such loan; and the plaintiff agreed to purchase from Garrison the one hundred bonds mentioned, together with their pro rata of stock, and pay him therefor $100,000 at any time he might elect to sell the same to it. In pursuance of that contract the three thousand bonds were delivered to Garrison, and he thus became obligated to furnish the steel rails, fish plates, etc., as provided.

It appeared in evidence that these rails were expected to be purchased, and that they could only, at that time, be purchased in England, and that they were to be shipped from that country by vessels to San Francisco. The negotiations in reference to the agreement and its performance were conducted mainly between Mr. Hogg, the president of the plaintiff, and Cornelius K. Garrison and W. E. Garrison, his son and general agent. English steel rails were easily purchasable in England in the summer of 1881, but it was difficult to get steamers to transport them to San Francisco.

Cornelius K. Garrison died on the first day of May, 1885, and W. E. Garrison died on the first day of'July, 1882; and this action was commenced on the first day of October, 1887, and the only person then living who had personal acquaintance with the main facts out of which the plaintiff’s alleged cause of action arose was Hogg, who was the plaintiff’s main witness upon the trial.

It appears that on the 21st day of July, 1881, the plaintiff received back from Garrison 400 of the bonds referred to in the agreement, but for what cause or upon what consideration they were surrendered by Garrison to the plaintiff does not appear. The evidence tends strongly to show that during the two months after the execution of the contract Garrison did very little, if anything, towards its performance. It does not appear that he had purchased any rails, or that he had made any effort to purchase any or to procure vessels to transport the rails when purchased. It does appear that Hogg, on behalf of the plaintiff, from time to time, urged performance of the contract, and, finally, about the first day of August, Hogg, on behalf of the plaintiff and upon credit furnished by him, purchased the rails. On the 13th day of August he notified Garrison that he had purchased them, and he then claimed that Garrison had broken the contract with the plaintiff and that he should hold him responsible, and he then demanded the surrender of the balance of the bonds remaining in the hands of Garrison. He refused to surrender any of the bonds unless the plaintiff consented that he should have the 100 bonds which he was entitled to under the contract, and threatened to retain all the bonds unless the plaintiff would consent to surrender the 100. Thereupon thére was a proposition from one of the parties to the other that the contract of June 13th should be can-celled and surrendered, and that Garrison should have and retain 100 of the bonds upon surrendering the remainder thereof.

The by-laws of the plaintiff provided for an executive committee, who should possess and exercise, by a majority of its members, all the powers and duties of the board of directors when the board was not in session, and at a meeting of the executive committee, held on the 13th day of August, the president was authorized to negotiate with Garrison for the cancellation and abrogation of the contract existing between him and the plaintiff and to close the transaction on the terms proposed, in his discretion. It will be observed that in the negotiations between Hogg and Garrison both parties acted upon the supposition that the contract of June 13th was in force, and the resolution of the executive committee recognized that contract as existing. In pursuance of the authority thus conferred upon him Hogg entered into the following agreement with Garrison.

“For and in consideration of one hundred thousand dollars in bonds of the Oregon Pacific Eailroad Go. and six hundred shares full paid stock (the receipt whereof is hereby acknowledged) paid by the Oregon Pacific E. E. to G. H. Garrison, the within agree-. ment is hereby cancelled and satisfied, and the Oregon Pacific E. E Go. hereby acknowledges the receipt of twenty-five hundred bonds of one thousand dollars each, being the remainder of the three thousand bonds mentioned in the agreement hereto annexed.”

Thereupon the agreement of June 13th was cancelled, and Garrison surrendered to the plaintiff the remainder of the bonds after retaining the one hundred to which he was entitled under the agreement. The plaintiff paid to Garrison and his assignee and Ms executors after his death the semi-annual interest coupons, the last being paid two days after the commencement of this action.

The plaintiff bases its right to recover these bonds upon the following grounds: (1) that the agreement of August 13, 1881, surrendering the bonds to Garrison was without consideration and therefore void; and (2) that the contract was invalid for having been obtained by Garrison through duress.

As to the first ground, this was an executed agreement, and there is authority for saying that it was valid without any consideration. In Bishop on Contracts, § 81, it is said: “ Though a contract is without consideration, yet, if it is voluntarily and with full knowledge of the facts executed, the property in the thing, whether money or á chattel, is transferred, and it cannot be reclaimed. So that a consideration is not an essential part of an executed contract.” And so it was substantially held in Maxwell v. Graves, 59 Iowa, 613. But it is not needful to go so far in this case. It is quite clear that upon the facts as they now appear (and assuming that they all appear), Garrison could not have maintained an action against the plaintiff based upon the contract of June 13th, for the reason that he had failed to perform the same on his part. There was room, however, for a claim on Ms part that the contract was still in force, and that on the 18th of August he was still able to perform the same and to discharge the obligations thereof.

It does not appear that down to that time the plaintiff had made any formal demand for the performance of the contract, or had notified-him that in case he did not perform, it would regard the contract as at an end. Without giving him such a notification its president had some two weeks before that time made other arrangements for obtaining the rails, and on the 13th of August notified him that the plaintiff would hold him respnsible for not performing his contract. He refused to assent to the nullification or cancellation of the contract of June 13th unless the plaintiff would surrender to him one hundred of the bonds in his possession, and for the purpose of procuring a cancellation of the agreement and the surrender by Garrison to it of the remainder of the bonds it entered into the agreement of August 13th; and the cancellation of the first agreement and the mutual release of the parties therefrom furnished ample consideration for the contract of August. 13th. Bishop on Contracts, § 68 ; Cutter v. Cochrane, 116 Mass., 408; Rollins v. Marsh, 128 id., 116; Perry v. Ruckman, 33 Vt., 7; Delacroix v. Bulkley, 13 Wend., 75 ; White v. Hoyt, 73 N. Y., 505 ; Tice v. Zinsser, 76id., 549; McCreery v. Day, 119 id., 1; 28 N. Y. State Rep., 597; Manufacturing Co. v. Bradley, 105 U. S., 175.

In Cutter v. Cochrane, it is said: “An agreement to rescind a previous contract imports that, until it is rescinded it is recognized by both parties as subsisting and binding. The rescinding of a previous contract containing mutual stipulations is a release by each party to the other. The release of one is the consideration for the release of the other, and the mutual releases form the consideration for the new promise, and are sufficient to give it full effect.” Therefore taking into view all the evidence, we sec no reason to doubt that the contract of August 13th, surrendering the one hundred bonds to Garrison was based upon a sufficient consideration.

As to the second ground upon which the plaintiff bases its action, to wit: That the contract of August 13th was invalid because it was procured from it by duress, and that the bonds were coerced from it by a threat on the part of Garrison that he would not deliver to it any of the bonds held by him unless the one hundred bonds were surrendered to him, we have to say: A contract obtained by duress is not ordinarily void but merely voidable, and it may be subsequently ratified and confirmed. Doolittle v. McCollough, 7 Ohio State, 299; Lyon v. Waldo, 36 Mich., 345.

In 1 Parsons on Contracts (7th ed.), 446, it is said: “A contract made under duress is not, strictly speaking, void, but only voidable, because it may be ratified and affirmed by the party upon whom the duress was practiced.” In 1 Addison on Contracts (Morgan’s ed.), 454, it is said: “ Any agreement made' under improper pressure is voidable. If a person having been constrained by duress to make a contract, afterwards voluntarily acts upon it, he thereby affirms it validity and loses the right to avoid it.” In Chitty on Contracts (11 Am. ed.), 273, it is said: “ Clearly a contract made under duress would be available in favor of the party suffering the duress and against the party inflicting the same. * * * And so by our law a man who has entered into a contract under duress may either affirm or avoid such contract after the duress has ceased.” See, also, Bishop on Contracts, § 728.

The facts constituting the duress were immediately known to the plaintiff, and it was its duty to act promptly in repudiating the agreement which it had been induced to enter into by duress. Instead of so doing, it never repudiated the agreement until it commenced this action, more than six years after the agreement of August 13th had been entered into and the bonds had been surrendered to Garrison, and during all that time down to the commencement of this action it paid the semi-annual interest coupons upon the bonds. Even if it was induced to pay the interest during the lifetime of Garrison by promises on his part to extend financial aid in other ways to the plaintiff, the conduct of the plaintiff was, nevertheless, a complete and express ratification of the agreement of August 13th. If it surrendered its right to repudiate that agreement on account of duress, it should have taken its remedy by holding Garrison to the agreement he made with it for financial aid; but it continued to pay the interest upon these bonds for several years after Garrison had failed to keep the alleged promise he had made for financial aid to the plaintiff, and after all efforts and negotiations in that direction had ceased. During several years prior to the commencement of this action the payment of interest upon these bonds was entirely voluntary,

It thus emphatically and repeatedly acknowledged the defendants’ title to the bonds, and when this action was commenced it was too late to claim that they had been obtained by duress. One entitled to repudiate a contract on the ground of duress should, like one who attempts to repudiate a contract on the ground of fraud, act promptly. Schiffer v. Dietz, 83 N. Y., 300; Gould v. Cayuga County Bank, 86 id., 82; Baird v. The Mayor, 96 id., 567; Bruce v. Davenport, 3 Keyes, 472.

There was, therefore, no error at the trial term in directing a verdict for the defendants. ■ The essential facts upon which the defense existed were not in dispute. Our conclusion, therefore, is that it appears upon the undisputed evidence that the contract of August 13, 1881, was based upon a sufficient consideration, and that if it was obtained by duress it was subsequently ratified and confirmed.

The judgment should, therefore, be affirmed, with costs.

All concur, except Finch, J., absent


text:
    Solomon Reiss et al., Resp’ts, The New York Steam Co., App’lts.

      (Court of Appeals,

      Filed June 16, 1891.)

    Negligence—Steam Fitters—Liability op.
    Defendants having fitted plaintiffs’ store with steam for elevator and heating purposes, tested the same by letting on the steam, and it working satisfactorily, left the steam on and closed the store from July 3d to 5th, during which time the bonnet of the service pipe blew off, the steam escaped and injured plaintiffs’ goods. Plaintiffs claimed that this was caused by the screw of the bonnet being too small and not holding; defendant, that a water ram was formed. Held, that defendant was not liable; that having furnished the best material and employed competent and skilled mechanics, it was not bound to anticipate or guard against such an unusual accident, which had never before happened in its business.
    Appeal from judgment of the New York superior court, general term, affirming judgment in favor of plaintiffs, entered on verdict of jury.

      James W. Hawes, for app’lts; Stern & Kingsbury, for resp’ts.

       Reversing 35 N. Y. State Rep., 86.

   Earl, J.

This action was brought to recover damages to goods "in the basement of a store occupied by the plaintiffs, in the city of New York, caused by steam.

The defendant was a corporation whose business it was to furnish steam in the city of New York for the purposes of heat and motive power, and the plaintiffs, desiring steam for the running of the elevator in their store and for heating purposes, made a contract with the defendant for a supply of steam by means of a connection in their basement with defendant’s mains or pipes under the street, and a system of pipes, valves and metres set up by it in the basement. Its mechanics put in and adjusted the apparatus in the latter part of June, 1887, and had finished it on Saturday, July 2nd. At the same time the landlord of the store occupied by the plaintiffs as lessees employed one Maslin to put pipes in the building connected with defendant’s apparatus in the basement, to furnish power for an engine on the top floor, and to put heat registers in the building. On the 2nd of July the pipes of Maslin were connected with the defendant’s apparatus in the basement, and at the request of the plaintiffs its mechanics turned on the steam and caused it to pass into the plaintiffs' store through the defendant’s pipes and apparatus. It was turned on then solely to test the connections and try the engine on the top floor. The defendant’s mechanics carefully inspected the valves, connections and pipes and- found that the work appeared to be well done and to be safe and adequate. After the work had been sufficiently tested the mechanics of the defendant left the store and it remained closed on Sunday and Monday and was not opened until about eight o’clock on Tuesday morning. Soon thereafter the bonnet on the service valve in one of the defendant’s pipes nearest the street, in the basement, was blown off, and steam escaped into the basement, doing the damage to the plaintiffs’ goods of which they complain in this action.

The claim of the plaintiffs is that the accident was due to carelessness on the part of the defendant.

We have carefully examined the record and have been wholly unable to find therein any evidence whatever sufficient to show that the accident was the result of any culpable carelessness chargeable to the defendant. It is not needful now to go. over all the evidence and call attention to each part of it and show its bearing. It was proved that the defendant used the best material, purchased of manufacturers of high repute, and it was not therefore that its agents had any reason to doubt that it was adequate and perfect or that they had any reason to suppose that any degree of care on their part required them to subject it to any further tests. And it does not appear that any further tests were customary or usual. The workmen employed by the defendant to put the apparatus in the plaintiffs’ store and make the steam connections were competent and skilled mechanics and there is ' no claim that it is chargeable with any negligence on account of the character of the mechanics whom it employed. There is no evidence showing that the work was not well done, as thoroughly and carefully as any skilled mechanics would have done it. The bonnet blew out from the valve, either from the pressure of steam or the pressure and force of water made by the condensation of steam. The plaintiffs claim that it would not have blown out if it had been properly constructed, and that it blew out because the screw by which it was fastened into the valve was too small, and therefore that the threads of the screw did not hold it If this was the defect there is no proof that any ordinary care ought to have discovered it. The bonnet and the valve were made by competent manufacturers and had been properly tested by them, and the defendant had no reason to expect such an imperfection. When the steam was let on the second day of July the bonnet and valve proved adequate, and there was no indication from the examination then made of any imperfection or weakness therein, and they were able to stand the pressure to which they were subjected until the time of the explosion on the 5th day of July. One or two witnesses gave opinions- that if the screw had been large enough, it would not probably have blown out; but there is considerable other evidence from witnesses shown to be competent to speak upon the subject that by the formation of what is called a water ram the bonnet would have been pressed out even if the screw had been large enough to fit closely and compactly into the valve, and that the pressure would cause an expansion of the nut or valve into which the screw passed so that it could be blown out without injuring the thread. The accident was a very unusual one, which had never before happened in the business of the defendant, and it was not bound to anticipate or guard against it.

All that is left, therefore, of the plaintiffs’ case is, that the bonnet was blown out, and from that circumstance the claim that the jury were authorized to draw the inference of negligence. But' there is no proof justifying such an inference, and whether or not the accident was the result of negligence must have been a;mere guess. It is equally probable that it occurred in the manner claimed on the part of the defendant. Judging from the evidence given it is more probable that this bonnet was forced out by what is called a water ram than in any other way, and that the waterj ram was the result of accident or was occasioned because the apparatus had been tampered with by some one not in the defendant’s employ and after the test had been made on the 2d day of July. The mere fact that there was this blowing out of the bonnet and the escape of steam, does not furnish sufficient evidence of negligence on the part of the defendant to cast liability upon it, and so we have several times held. Losee v. Buchanan, 51 N. Y., 476; Dobbins v. Brown, 119 id., 188; 28 N. Y. State Rep., 957; Cosulich v. Standard Oil Co., 122 N. Y, 118; 33 N. Y. State Rep., 287.

This steam apparatus was put into the plaintiffs’ store for their benefit. The defendant did not insure or guarantee them against danger therefrom. It was bound only to use that degree of care which ordinary prudence and foresight would, under the circumstances, suggest and prompt Whether or not it failed in such care could not be left to mere speculation. The burden was upon them to establish such failure by proof, and this burden they were bound to sustain, however necessary and difficult it proved to be.

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

All concur, except Finch, J., absent.


author: Peckham, J.

text:
      In re Application of The Southern Boulevard Railroad Co.

      (Court of Appeals,

      Filed June 16, 1891.)

    1. Appeal—Eminent domain.
    An order of the general term of the supreme court reversing an order of the special term, confirming a merely nominal award made by commissioners appointed to appraise the value of land taken for railroad purposes, and ordering a new appraisal before the same commissioners, on the ground that the legislature could not take away the rights of property owners left in them by chap. 290, Laws 1867, without compensation, is not appealable.
    2. Same.
    The order is not rendered appealable, because, as claimed by the counsel for the railroad company, the general term reversed the report and appraisement upon a ground which they were without power to consider.

      Appeal from judgment of the supreme court, general term, first department, reversing order of special term confirming report of commissioners oppointed under general railroad act

      John N. Lewis, for app’lt; Wm. Pierrepont Williams, for resp’t.

       Affirming 35 N. Y. State Rep., 550.

   Peckham, J.

The railroad company desire to acquire the right to build a street surface railroad in and upon the Southern Boulevard in the city of blew York. This boulevard was laid out and opened through the land of private owners under and by virtue of an act of the legislature, passed in 1867, chap. 290.

Section 24 of that act prohibited the laying of any rails in the boulevard except for the purpose of crossing it, and provided that if the legislature should thereafter authorize the building of a railroad along the boulevard, nothing in the act of 1867 should be construed to affect or cut off the rights of the owners of the lands taken for the boulevard from claiming and receiving the full value of all the land taken from the owners for the road thus to be authorized, to the same extent as if no boulevard had ever been laid out there.

In 1884 the legislature passed the general street surface railroad act, and under it the Southern Boulevard Railroad Company has been organized. In 1887 the legislature amended the twenty-fourth section of the act of 1867, under which amendment the above named railroad company claims the right to build its road in the Southern Boulevard. It applied by petition to the supreme court for the appointment of commissioners to appraise the value of the lands taken by the company. Among the owners of lands in the boulevard which had been taken under the act of 1867, for the purposes of that boulevard only, were the executors of Mr. Spofford, officially and individually. The commissioners were appointed to take evidence as to the value of the land of the executors, etc., and gave a merely nominal award, apparently, as is said by the learned judge who delivered the opinion at the general term, basing their award upon the provisions of § 24, as amended in 1887, and thus enabling the railroad company to acquire its interest in such lands for nothing. The award was confirmed at special term, but upon appeal to the general term that court reversed the order confirming the award and ordered a new appraisal before the same commissioners, basing its order upon the ground that the legislature could not take away the rights of the property owners left in them under the act of 1867, without compensation. Instead of going back before the commissioners and taking the new hearing, as provided for by the order of the general term, the counsel for the railroad company has appealed here and claims the right to be now heard upon the merits of his appeal. The order is clearly not appealable.

. This is a special proceeding, and the only authority for an appeal to this court is to be found in subd. 3 of § 190 of the Code. By that subdivision the order must be a final one before an appeal can be taken from it to this court. There can be no question that the order appealed from herein is not of that description. It simply reverses the former and orders a new appraisal.

The orders mentioned in subd. 2 of § 190 are orders made in an action and affecting a substantial right, and not resting in discretion. Under clause 6 of that subdivision, if the order adjudges a statutory provision of the state unconstitutional, an appeal may in certain-contingencies be taken from the order to this court. This order is not included in that subdivision. Section 1361 of the Code of Civil Procedure cited by counsel, applies to appeals of the general term of the supreme court or of a superior city court, and has no application to. appeals to this court.

By § 11 of the old Code, subd. 3, whenever a decision of any motion at special term was placed upon the ground of the unconstitutionality of any law of this state, an appeal could be taken from the order to the general term and to the court of appeals. If it be assumed that under such subdivision in the old Code an appeal would lie to this court if the order were not final, provided, it held a state law unconstitutional, the adoption of the new Code has altered that provision, and the order in a special proceeding, to be now appealable to this court, must be a final one.

, This question has already been decided in Matter of Petition, etc., 98 N. Y., 12.

The order is not rendered appealable because, as claimed by the counsel for the railroad company, the general term reversed the report and appraisement of the commissioners upon a ground which they were without power to consider. We see no reason for saying that the general term had no power to consider the question whether the commissioners had not proceeded upon a wholly erroneous theory as to the law governing their appraisal in the case, and if the commissioners thought the act of 1887 permitted them to award nothing for the lands taken, and they decided accordingly, we are not aware of any estoppel upon the land owners or the court which, upon appeal from the order confirming the report, would prevent the one from raising and the other from deciding the question as to the validity of an act which provided for such an appraisal. And again, the court had power to hear and decide an appeal from the order confirming the report, and having such power, the order which it makes is within its jurisdiction, even though an erroneous reason be given for its exercise. When the order which it in fact makes is not a final one, we cannot review such order where the court exercises the jurisdiction granted to it by the Code

The appeal must be dismissed, with costs;

All concur, except Finch, J., absent


text:
    Hannah Cohen et al., Adm’rs, Resp’ts, v. The Mayor, etc., of New York, App’lts.

      (Court of Appeals,

      Filed June 16, 1891.)

    Appeal—PramrvE costs—Code Civ. Pro., § 3351.
    This action has been tried three times. The first trial resulted in a verdict for plaintiffs of $5,000, which being reversed, the second trial resulted in a verdict for defendant, affirmed at general term, but reversed on appeal to this court. The third trial gave a verdict for plaintiffs of $4,583.33, and was appealed from, although there was no just ground for contention. Held, that this was a proper case for allowance of ten per cent upon the recovery as damages for delay.
    Appeal from, judgment of the supreme court, general term, first department, affirming judgment for plaintiff, entered on verdict of jury.

      D. J. Dean, for app’lts; Francis B. Chedsey, for resp’ts.

       Affirming 35 N. Y. State Rep., 555.

   Earl, J.

This action was brought to recover damages for the death of plaintiff’s intestate, caused by negligence attributable to the defendant The intestate was the husband of the plaintiff, Hannah Cohen, and the father of her five small children, all of whom were dependent upon him for their support

The action has been tried three times. The first trial resulted in a verdict in favor of the plaintiffs for $5,000. The judgment entered upon that verdict was, upon appeal to the general term, reversed, and a new trial was ordered. 33 Hun, 404. The second trial resulted in a judgment entered upon a verdict directed by the court in favor of the defendant, which was affirmed at general term, 43 Hun, 345; 6 N. Y. State Rep., 532, but was upon appeal to this court reversed, and a new trial was ordered. 113 N. Y., 532; 23 N. Y. State Rep., 509. The third trial resulted in a verdict in favor of the plaintiffs for $4,583.33, and from the judgment entered upon that verdict the defendant appealed to the general term, and from affirmance there to this court

The record discloses no ground whatever for this appeal. It contains but one exception, and that is to the ruling of the court allowing the plaintiffs to prove the age of the oldest child of the intestate, and that exception is not noticed or relied upon in the brief submitted on 'behalf of the appellant The judge, in his charge to the jury, stated: “It is conceded by the defendant in this case that there is no question at all involved here of fact for you to determina It is very plain upon the testimony that the plaintiff is entitled to recover; that is not controverted by the city. The only question, therefore, for you to determine is how much you will award to her.” These remarks were not controverted or objected to on the part of the defendant The trial judge submitted the question of damages to the jury in a manner entirely satisfactory to the defendant, and of which its counsel made no complaint at the time.

The law of this case was settled upon the prior appeal to this court, and after the last trial there was no just ground for further contention on the part of the defendant This is, therefore, a proper case for giving effect to the last clause of § 3251 of the Code, which provides, “ Where a judgment is affirmed by the court of appeals, the court may, in its discretion, also award damages by way of costs for the delay, not exceeding ten percentum upon the amount of the judgment; or where it was rendered upon an appeal upon the amount of the original judgment”

Therefore, the judgment should be affirmed, with costs, and ten per cent upon the amount of the judgment at the trial term as damages for delay.

All concur, except Finch, J., absent.


text:
    Albertus Larrowe, App’lt, v. Herman J. Lewis et al., Resp’ts.

      (Court of Appeals,

      Filed June 16, 1891.)

    Contract—Sale—Construction of.
    Plaintiff paid defendant for a large number of railroad ties, delivered under a contract which stated one price to be paid for all ties delivered, and now claims that the money was paid in advance and that he should not pay for “ seconds ” and is entitled to recover their price as an overpayment. Held, that while the finding that the word “counted” meant "inspected” it would not justify the conclusion that the plaintiff might accept both classes and pay for the second class their actual value, in the absence of any provision in the contract to that effect.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered upon report of referee, dismissing complaint

      E. A. Nash, for app’lt; J. F. Parkhurst, for resp’ts.

       Affirming 33 N. Y. State Rep., 769.

   Andrews, J.

It is conceded that the defendants were not paid any money in excess of that to which they were entitled for ties delivered and accepted by the plaintiff, reckoning them at the price fixed by the contract. The claim of the plaintiff is that the payments were made in advance, and that as part of the ties delivered were, upon inspection by the plaintiff’s inspector, classified as seconds, and were, in fact, seconds, that the plaintiff was not bound to pay therefor the price of first-class ties, and consequently that he is entitled to recover the deficiency as an over payment

The difficulty is, that by the contract one price was to be paid for all the ties the defendants should deliver. The finding that the word “counted” means “inspected,” might authorize the rejection of all but first-class ties, but it does not justify the conclusion that the plaintiff might accept both classes, and pay only for the second class their actual value, in the absence of any provision in the contract to that effect

The plaintiff requested a finding that this was the custom in contracts of this kind The evidence is contradictory upon the point, and the referee refused the request of the plaintiff to find the custom alleged, and to this refusal no exception was taken.

Upon the case as presented there appears to be no error in the record, and the judgment should, therefore, be affirmed.

All concur, except Finch, J., absent.


text:
    John H. Springer, Resp’t, v. Julius Bien et al., App'lts.

      (Court of Appeals,

      Filed June 16, 1891,)

    Res ad.tudicata.
    Neither the verdict of a jury nor the findings of a court in a prior action upon the precise point involved in a subsequent action between the same parties, constitutes a bar, unless followed by a judgment based thereon, or into which the verdict or finding entered.
    Appeal from order of the New York common pleas, general term, denying motion for a new trial.

      George F. Danforth, for app’lts; John W. Boothby, for resp’t.

       Affirming 33 N. Y. State Rep., 1037.

   Andrews, J.

The sole point relates to the effect of the judgment in the former action of the present defendants against the present plaintiff and others, as res adjudicata upon the question involved in this action.

This action is based upon an alleged employment of the plaintiff by the defendants under a contract that he was to act as their agent in procuring orders for their work, and was to receive as compensation ten per cent on all money realized by their firm from orders so procured. The relief demanded was an accounting by the defendants of moneys received by them subsequent to March 4, 1889, on orders obtained by the plaintiff before he left their employment, but upon which the moneys were not realized, until after that time.

The defendants in their answer do not deny specifically the contract alleged in the complaint, but set up among other defenses the judgment in the prior action as a bar to the claim in the? present one.

The former action was brought to restrain the use by the defendants therein of the name of “ The Central Lithographing and Engraving Company ” in the business of a corporation organized under that name by Springer and others after Springer had left the employment of the defendants. The plaintiffs in that action claimed the name as their trade mark and that they were exclusively entitled to its use. After issue joined, the case was heard before a judge at special term, who, after the evidence was closed, made findings of fact and law, upon which judgment was entered for the plaintiffs therein, among other things enjoining the defendants from using the name of “ The Central Engraving and Lithographing Company; ” and the judgment contained a further provision requiring the defendants and each of them to account to the plaintiffs for all contracts, letters or other property which may have been obtained by the defendant, John H. Springer, as the agent of the plaintiffs in the name of “ The Central Lithographing and Engraving Company,’’ and for such purpose William J. Fanning was appointed referree to take and state the account The claim is that this judgment is res adjudicata upon the claim for compensation upon which this action is brought. It is said that on the trial of the former action evidence was given as to the terms of the contract for compensation, from which it appeared that the ten per cent commission was only to be paid upon moneys received by the defendants on orders placed by Springer during his employment by Bien & Co., and that moneys received thereafter on orders procured by Springer, but which were unexecuted when his employment ceased, were not subject to the commission.

We are also referred to certain findings made by the trial judge in the former action, which, as claimed, sustain this construction of the contract. It is a sufficient answer to the claim of estoppel by the former judgment, that conceding that the evidence in that action warranted a finding that the present plaintiff was only to have commissions on moneys actually received during his employment, and that the findings bear the construction contended for, nevertheless, they were wholly irrelevant to the issues and did not enter into and were not involved in the final judgment

Neither the verdict of a jury nor the findings of a court in a prior action upon the precise point involved in a subsequent action between the same parties, constitute a bar unless followed by a judgment based thereon, or into which the verdict or finding entered. It is the judgment which constitutes the bar and not the preliminary determination of the court or jury. So also, and for obvious reasons, although judgment has been entered, the judgment does not prevent the relitigation of any irrelevant fact, although it may have been litigated and found in the prior action. Webb v. Buckelew, 82 N. Y., 555; Stannard v. Hubbell, 123 id., 528; 34 N. Y. State Rep., 413.

The question whether the contract for compensation included commissions on all orders procured by the plaintiff during his employment, upon which moneys should be realized by the defendants at any time, or only on orders procured, upon which money was realized during the employment, was immaterial to the judgment and relief granted.

The accounting provided by the judgment did not embrace the matter of compensation and that question was still open, notwithstanding the judgment, to subsequent controversy. The claim now made is not inconsistent with any matter adjudged in the former action, although it may have been covered by the evidence and embraced in the findings.

We think the judgment of res adjudicate was properly disposed of below, and the order should therefore be affirmed.

All concur, except Finch, J., absent.


author: Barrett, J.

text:
    The People, Resp’ts, v. Abraham Suydam, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 16, 1891.)

    Larceny—False pretenses.
    Upon an indictment for moneys obtained by false pretenses it appeared that until nearly the end of the transactions the defendant had represented himself as owner of the premises in question; that he finally stated that his aunt owned the properly, but that he had full power to sell. This was false, but upon this assumption of power to sell the bargain was concluded. Meld, that the purchasers must have relied upon the truth of this latter statement and not upon the vendor’s ownership or upon his integrity and that it was proper to submit to the jury the question upon what the purchasers did rely.
    Appeal from judgment of court of general sessions convicting defendant of the crime of larceny.

      F. B. House, for app’lt; McKenzie Semple, for resp’ts.
   Barrett, J.

We think it entirely clear that Fay and Stacom were cheated out of their money by the defendant’s false pretense that he had full power and authority from his aunt (who was the Susan D. Brown named in the indictment) to sell the property in question. It may be true that Suydam could have accomplished his purpose without resorting to this false pretense. Fay and Sta-com believed, down to the time when the contract was being prepared, that Suydam was himself the owner of the property, and if he had suffered that to remain in that error, he might have obtained their money without any active misrepresentation. But he preferred to client them in another way, and so, at the last moment, "he disabused their minds of the idea that he was the owner of the property and informed them that the real owner was his aunt, in Philadelphia. Had the matter rested there, it is inconceivable that the transaction should have gone through. Fay and Stacom may have been willing to part with their money upon the delusion that Suydam owned the property and could lawfully contract for its sale. But, as sane business man, they would not have been willing, upon being awakened to the truth, to part with their money to one who confessedly was not the owner of the property, and consequently had no right to sell. Suydam’s disclosure of the true ownership at once changed the entire situation and necessarily closed their purse. To reopen it, the misrepresentation which followed became absolutely essential.

Having said, “ My aunt owns the property,” Suydam was compelled, unless his scheme were to miscarry, to add, “but that need not prevent the consummation of our bargain, for I have .fullpower la sell.” And upon this latter assurance, Fay and Sta-com again were ready to close the transaction. They must have relied upon such assurance unless they were willing to throw their money away, and to do so advisedly. It is no answer to say that up to that very moment they relied upon Suydam’s ownership or upon his integrity. Integrity did not confer title, and reliance upon ownership disappeared with the disappearance of the fact. Belief in Suydam’s integrity, indeed, remained as a factor, but only so far as to induce reliance upon the false pretense which followed. It will hardly be claimed that after Fay and Stacom learned that Suydam was not the owner, they would still have contracted with Mm and paid him the money had he told them the whole truth, namely, that he had no authority from his aunt to sell. Nor would they have closed the transaction even if he had remained silent upon the latter head. Silence would have necessitated further inquiry. The statement as to the true ownership, therefore, called for some further assurance as to the defendant’s right to proceed, and that assurance was forthcoming. It was that assurance, and that only, which, at the time and under the circumstances it was given, induced Fay and Stacom to sign the contract and to part with their money.

But it certainly was competent for the jury to take that view of the testimony, and I am unable to perceive any logical basis for the proposition that non-reliance upon the false pretenses so conclusively appears that it was error even to submit the question of reliance to the jury. The fact that the contract was not altered to meet the defendant’s disclosure of the real ownership and his declared agency in the matter, is immaterial, except upon the question of fact as to whether in the end Fay and Stacom dealt with the defendant in his own right or as the agent of Mrs. Brown; and upon that question it was fully submitted to, and doubtless considered by, the jury. The defendant’s crime does not depend upon the technical sufficiency of the contract to bind the person falsely represented to be his principal. The intent was not, as the jury have found, to contract with Suydam personally, but as the agent of Mrs. Brown. Such intent naturally followed the disclosure of the agency, and the verdict is fully supported by the probabilities of the case.

Relying, then, upon the false pretense of authority, Fay and Stacom had a right also to rely upon Mrs. Brown’s performance of the contract, however imperfect its form. It was the false pretense, made with the intent to cheat, and relied upon, which moved Fay and Stacom to sign the contract m the form in which it was, and thereupon to part with their money to the defendant.

There is nothing in any of the other points presented by the defendant. I think his conviction was just, and should be affirmed.

Yan Brunt, P. J., and Bartlett, J., concur.