text:
    The People ex rel. Sarah J. Bird, App’lt, v. Edward P. Barker et al. as Commissioners, etc., Resp’ts.

      (Court of Appeals,

      Filed March 12, 1895.)

    Taxes—Assessment.
    A non-resident special partner is not entitled to a deduction of any portion of the indebtedness of the firm, in assessing his interest therein.
    Appeal from order of the general term of the supreme court in the first judicial department, which affirmed.an order of special term quashing a writ of certiorari to review an assessment of $50,-000 against the relator for the year 1893.

      Sandford R. Ten Eyck, for app’lt; David J. Dean, for resp’ts.
   Peckham, J.

This is an appeal by the relator from an order of the general term of the first department affirming an order of the special term quashing a writ of certiorari issued to review an assessment made against relator for the year 1893. It appears that the relator is a non-resident of this state, and has no property within its jurisdiction except the sum of $30,000, which she contributed -to the firm of Boyd, Sutton & Co. as a special partner under the special partnership act of this state. On the 9th day of January, 1893, the day fixed by law for making assessments in Hew York city, the condition of the firm of Boyd, Sutton & Co. was as follows:

Imported gpods in original packages............ $130,782 00

Imported goods in broken packages............. 11,493 00

Domestic goods.............°................. 11,901 00

Debts due..................................". 115,173 00

Cash on hand................................ 13,276 00

Making its total assets................... $282,624 00

At the same time the said firm was indebted as follows:

For imported goods................. $133,633

For domestic goods................. 11,103

For borrowed money................ 31,215

-- 176,951 00

$105,673 00

Leaving its net assets.

The relator urges that after deducting the amount of imported goods in original packages there was but $151,842 of taxable property belonging to the firm, while its debts amounted to $176,-951, and she claims that these facts show there was nothing upon which to base an assessment against any member of the firm.

By section 1 of chapter 37 of the Law's of 1855 it is enacted as follows :

“ All persons and associations doing business in the sate of New York, as merchants, bankers or otherwise, either as principals or partners, whether special or otherwise, and not residents of this state, shall be assessed and taxed on all sums invested in any manner in said bsiness the same as if they were residents of the state, and said taxes shall be collected from the property of the firms, persons or associations to which they severally belong.”

By subdivision 4 of section 9 of the Revised Statutes (1 Rev. St. 390. 391), as amended by § 1 of chapter 202 of the Laws of 1892, provision is made for deducting just debts owing by the party assessed from the taxable personal property owned by him, “but no deduction shall be made or allowed for or on account of any debt or liability contracted or incurred in the purchase of non-taxable property or securities owned by him or held for his benefit,” etc. The relator says that the defendants refused her application to deduct from her assessment any portion of the amount owed by the firm for imported goods ($133,633) under the authority of the above-quoted amendment to the Revised Statutes.* She admits that such act is authority for the defendant’s refusal, if constitutional, but she denies its validity as to that portion which declares that no debt contracted in the purchase of non-taxable property shall be deducted in making assessments, and she alleges that under subdivision 3 of section 8 of article 1 of the Federal Constitution, which gives power to Congress to “ regulate commerce .with foreign nations and among the several states, and with the Indian tribes,” and also under subdivision 2 of section 10 of the same article, which provides that “ no state shall without the consent of the Congress lay any imposts or duties on any imports or exports save what may be absolutely necessary for executing its inspection laws,” such act of the legislature of this state is void either as a regulation of commerce or as laying imposts or duties on imports. The defendants, while asserting the statute to be valid, at the same time claim that relator cannot deduct indebtedness at any place other than her residence in New Jersey, and cite People ex rel. Thurber- Whyland Co. v. Barker, 141 N. Y. 118; 56 St. Rep. 586, as authority for their contention.

We do not think that the validity of the act in the matters alluded to is necessarily involved in the decision of this case, and we decide it without reference to that question. Under the act of 1855 provision is made for the assessment of all persons doing business in this state who are non-residents thereof, either as principals or partners, whether special or otherwise, and the assessment and taxation of such non-residents are to be on all sums invested in any manner in business as stated in the act, the same as if they were residents of the state. The reason for the enactment

of this statute and its proper construction have been alluded to in cases decided by this court. See People ex rel. Hoyt v. Commrs. of Taxes, 23 N. Y. 224; People ex rel. Thurber- Wyland Co. v. Barker, 141 N. Y. 118; 56 St. Rep. 586; People ex rel. Bay State Shoe, etc., Co. v. MacLean, 80 N. Y. 254. As a' non-resident is to be assessed under the act the same as if he were a resident of the state, we find upon looking at the manner in which assessments against a resident are to be made (1 Rev. St. above referred to), that the assessors are to prepare an assessment roll, in which they shall set down in four separate columns, and according to the best information in their power: In the first, second and third columns, various matters not herein, material.

“ 4. In the fourth column, the full value of all the taxable personal property owned by such person after deducting the just •debts owing by him,” etc.

The relator in this case is a special partner of the firm above mentioned. She deposited with the general partners in that business the sum of $30,000 in cash, and, under the provisions of the Special Partnership Act, she is not personally liable for any of the debts of such partnership. So far as she is concerned she risked $30,000 of her property by investing it as special partner in that firm, but so long as she complies with the provisions of the statute, and remains a special partner, she is personally liable for no debts of the firm. No debts of the partnership could be collected from her individually, because she is not liable for and does not owe any such debts, and as she is not liable for and does not owe any portion of them, the statute does not provide that she may deduct from the amount of money which she has invested in the partnership any portion of the debts of such partnership. The debts to be deducted are the just debts of the individual who is to be assessed, and how can it be said that she owes any debts when by the very terms of the Special Partnership Act she is not liable for them in any event so long as she complies with the provisions of that act and does not become a general partner ? If the facts showed that the firm was insolvent and so the fund contributed by the relator had béen lost in the business ventures of the firm, such a condition would show that the relator no longer had the fund which she originally invested with the firm, and so she would not be a fit subject for assessment. Here, however, the firm has assets largely above its indebtedness and more than the $30,000 originally invested by the relator, and it, therefore, appears that her contribution is intact. The fact that the firm owes debts for the purchase of non-taxable property is, in such case, immaterial. She owes nothing.

Without deciding the constitutional question which has been presented to us, we hold that the relator was not entitled to deduct any portion of the indebtedness of the firm because she did not. owe any portion thereof. We decide nothing else.

For these reasons the order of the court below should be affirmed, with costs.

All concur. Order affirmed


source: Caselaw Access Project

author: Bartlett, J.

license: Public Domain

text:
    The People ex rel. David L. Follett et al., Resp’ts, v. Ashbel P. Fitch, as Comptroller, etc., App’lt.

      (Court of Appeals,

      Filed March 12, 1895.)

    1. Judges—Compensation.
    Section 12, Art. 6 of the New Constitution is not retroactive in its effect, and does not affiect § 1109 of the Consolidation Act, as amended by chap. 104 of 1893.
    2. Same.
    Such amendment does not tend in any way to disturb the policy that seeks to maintain uniformity of salary among judicial officers of the same; ' grade.
    3. Same.
    The mode, prescribed by such amendment, for ascertaining from time-to time the amount of expenses and disbursements of supreme court justices, designated to come from other judicial districts and sit in the-general term of the first judicial department, is judicious and proper.
    Appeal from order of the general term of the superior court of the city of New York, which affirmed an order of special term granting an application by the relator for a writ of peremptory-mandamus.

      David J. Dean, for app’lt; Elihu Root, for resp’ts.
   Bartlett, J.

— This is an appeal from an order of the general term of the superior court affirming an order of the special term which directed the issue of a writ of peremptory mandamus to the comptroller of the city of New York, commanding him to deliver to the relators certain warrants which were for the amounts certified by the presiding justice of the supreme court in the first, judicial department as a reasonable sum to be paid by the city of New York as compensation for the expenses and disbursements-of each of the respondents in the performance of his duties under the designation of the governor to sit as justices of the general term for the first department

The relátoís are justices of the supreme court from judicial districts other than the first, and during the. month of January, 1895,. they sat as justices of the general term in the first department.

The presiding justice of the first judióial department certified as to each of the relators that the sum of $416.66 was a reasonable sum to be paid by the city of New York as compensation for his-expenses and disbursements in the performance of his duties under-such designation.

This certificate was made pursuant to § 1109 of the New York City Consolidation Act of 1882, as amended by chapter 104 of the Laws of 1898. -

■ .The warrants are withheld upon the ground that the provisions of chapter 104 of the Laws of 1893 are invalid under the Constitution which went into effect on the first of January, 1895.

The statute reads as follows: .

“ Whenever any justice of the supreme court from any judicial district, other than the first judicial district, shall be designated as one of the justices of the general term in the first judicial department, he shall be paid by the" city of New York such sum as-shall be certified to be reasonable by the presiding justice of the first judicial department, not exceeding the sum of five thousand dollars in any one year, as compensation for his expenses and disbursements in the performance of his duties under such designation ; and whenever one or more of the said justices shall be duly assigned to hold any other court than the general term, or perform judicial duties in and for the first judicial district, he shall be paid the sum of ten dollars a day for every day such justice shall sit and perform such judicial duties, including the time necessarily devoted to the examination and decision of cases heard by such court while he may be a member thereof.”

(Laws of 1893, vol. 1, p. 205.)

The provision of the new Constitution referred to reads as follows:

“The judges and justices hereinbefore mentioned shall receive for their services a compensation established by law, which shall not be increased or diminished during their official terms, except as provided by section 5 of this article.” (Constitution of 1894, article 6, § 12.)

Section 5, above' referred to, has no bearing upon this matter. The provision of the old Constitution which the above-quoted paragraph supersedes was as follows:

“ The judges and justices hereinbefore mentioned shall receive for their services a compensation to be established by law, which shall not be diminished during their official terms.” (Constitution of 1846, article 6, § 14, as amended in 1867.)

The suggestion of counsel that this appeal presents the question of the constitutionality of the act of 1893 under the Constitution which went into effect on the first day of January, 1895, is erroneous.

This act is not in any way affected by the new Constitution, as that instrument has no retroactive effect in this case, and only condemns subsequent legislation that may offend any of its provisions.

We shall, therefore, consider the act of 1893 in the light of the legal conditions existing at the time of its enactment.

It may be observed at the outset that this act is in harmony with the legislative policy of the state existing for many years, to ■ pay to justices of the supreme court their expenses and disbursements incurred in the performance of their judicial duty when absent from their homes.

The earliest act is chapter 374 of the Laws of 1852, authorizing the chief judge of the court of appeals to assign any justices of the supreme court to sit in the city of New York and requiring the justice so assigned to render the service.

This was followed by chapter 575 of the Laws of 1855, authorizing the supervisors of New York “ to pay such justices so assigned a sum not exceeding ten dollars a day for every day such justice shall sit and perform such judicial duties.”

Chapter 414 of the Laws of 1875 extended this provision so as to include the time necessarily devoted to the examination and decision of cases by justices assigned to the general term.

Chapter 410, Laws of 1882 (the New York city, consolidation •act), reproduced the provision thus amended in section 1109, and this was again amended by chapter 104 of Laws of 1893, now under consideration.

The distinction between compensation for services and compensation for expenses was pointed out by this court in People ex rel. Bockes v. Wemple, 115 N. Y. 302; 26 St. Rep. 330.

Prior to 1872 justices of the supreme court received as compensation for services a certain salary, and in addition a per diem allowance of five dollars a day for their reasonable expenses when absent from home and engaged in the performance of judicial duty. (Chap. 408, Laws 1870, § 9.)

The legislature (Chap. 541, Laws 1872, § 1) changed this per diem allowance and provided as follows:

“The said justices of the supreme court, except in the first judicial district, shall each receive the sum of twelve hundred dollars annually from the first day of January, 1872, in lieu of and in full of all expenses now allowed by law.’’

The question was, therefore, presented to this court whether Justice Bockes, who had retired from office before the expiration of his term by reason of having attained the age of seventy years, was entitled to receive from the state, in addition to the original salary of $6,000, the further sum of $1,200.

The answer to this question depended upon the fact whether the $1,200 was to be regarded as a reimbursement of expenses or an increase of salary. This court held to the latter view.

Judge Gray, delivering the prevailing opinion, says (115 N. Y. 309, 310): “This language (of the act of 1872) is substitutional in its effect. It substitutes an annual grant of money to the incumbent in the place of an allowance for expenses. This, I think, was a clear grant of pay or compensation having no connection with the expenses incurred by a justice. As granted by this act, it became actually and plainly as much a part of the compensation to the justice as though the salary eo nomine had been increased to compensate him further for what his office entailed upon him in the way of duties and work. Expenses orna expenses, he became entitled to the whole of the $1,200.”

The $1,200 was treated as salary because that amount could no longer be regarded as" an allowance for expenses, but rather a fixed statutory sum to which the relator was entitled absolutely, without regard to his incurring expenses.

No such situation is presented by chapter 104, Laws of 1893, but, on the contrary, in clear and unmistakable language, a scheme is created for reimbursing the expenses and disbursements of the justices of the supreme court designated to come from other judicial districts and sit in the general term of the first judicial department.

The mode prescribed for ascertaining from time to time the amount of these expenses and disbursements is judicious and proper.

Only such sums can be paid, within a named limit, as shall be certified to be reasonable by the presiding justice of the first judicial department.

It is true that this provision is subject to the criticism that the presiding justice is not made, in the technical sense, an auditing officer to pass upon actual items of disbursement, but the obvious answer is that it is competent for the legislature to allow its designated representative to certify such reasonable sum as shall be sufficient to reimburse the expenses and disbursements of the justices required to serve in the general term of the first judicial department.

The act of 1893 is not affected by article 6, section 14 of the Constitution of 1846, as amended in 1867, for the reason that it does not assume to deal with compensation for services, nor does it tend in any way to disturb the policy that seeks to maintain uniformity of salary among judicial officers of the same grade.

The fact that a reasonable gross sum, instead of items, is certified to cover expenses and disbursements does not make it any the less compensation for that purpose, as it is only when these expenses and disbursements have been incurred that the presiding justice will be called upon to act.

We are of the opinion that the act in question is a proper and Constitutional exercise of legislative power, and in line with the settled policy of the state and the practical construction given to similar legislation for more than a generation.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.


author: Dwight, P. J.

text:
    William Skipworth et al., Resp’ts, v. John Deyell, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Evidence—Documentary—Books of account.
    A book, not of original entries, but a copy of a prior copy, not made wholly by the witness but partly by another person, of which the original entries were not shown to have been made in the ordinary course of business, nor in accordance with the duty of the persons making them, nor that they were made contemporaneously with the transactions to which they relate, is not admissible in evidence, either as a book of accounts or as memoranda.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial on the minutes of the court.

      J. F Kinney, for app’lt; P. Chamberlain, Jr., for resp’ts.
   Dwight, P. J.

There was an error in the admission of evidence in this case which must be fatal to the judgment. The action was on an alleged oral agreement of the defendant to pay the plaintiffs, for their saloon, fixtures, and stock in trade, all that such saloon, etc., had cost them. The conflict of evidence on the several q uestions whether any such agreement was ever made, whether the defendant took title to the property from the plaintiffs, and whether the plaintiffs liad any title in the property to transfer, was very sharp, and left those questions very much in doubt. But, when it came to the question of what the property had cost the plaintiffs, they relied upon what was called “ A Book of Account Kept by Thomas Skipworth of Expenditures in the Place No. 174 State St.” This book seems to have contained 8 or 10 pages of items, footing up something more than $1,200. It was presented for identification to the plaintiff Thomas Skipworth when on the witness stand, and after he had undertaken to give the items of the expenses in question from recollection. He testified about the book as follows: “ That book contains a statement of everything we put into the place, except the last rents paid Mr. Deyell, of $25." The book was then offered in evidence. Counsel for the defendant •objected to it as incompetent. The witness testified further; “I kept the book. Some of it is in my handwriting, and some' in my bartender’s. Half of it is my bartender’s handwriting. I was there at the time. It was copied onto another book first, and copied from the other book onto this." The witness was then asked by the court, “Are the items correct, of your own personal knowledge?” to which he answered, “ Yes, sir; everything on the book.” The book was thereupon received in evidence, and counsel for the defendant duly excepted to the ruling.

The ruling was clearly erroneous. The book was shown not to have been a book of original entries. It was, at least, the copy of a copy. The copy was not even made by the witness, but half of it by another person, who was not called to verify it. But, what was worse still, the original entries were not shown to have been made in the ordinary course of business, nor in accordance with the duty of the persons making them, nor that they were made contemporaneously with the transactions to which they related. All these elements were essential to the admissibility of the book, even if it had been shown to be a correct transcript of the original entries so made. Mayor, etc., v. Second Ave. R. Co., 102 N. Y. 572; 2 St. Rep. 526; West V. Van Tuyl, 17 St. Rep. 273. In both these cases, as in that of Manheimer v. Stern, 45 St. Rep. 64$, also cited by counsel for the respondents, the book was received as original memoranda, and not as a book of accounts. None of the preliminary evidence necessary to entitle the book in this case to admission as a book of accounts was given, and, as we have seen, it was equally without evidence to sustain it as original memoranda. The statement of the plaintiff that he knew the book to be correct, of his personal knowledge, did not make it admissible as evidence. The witness might, perhaps, have made a case in which he would be entitled to refer to the list of items as a memorandum, and testify seriatim, from his own knowledge, to the correctness of each item ; but by no possible means could the book have been made evidence, of itself, of the items and amount of the plaintiffs’ claim. The judgment and order appealed from must be reversed, and a new trial granted, with costs to abide the event

All concur.

So ordered.


text:
    The People ex rel. John C. Ryan, App’lt, v. George W. Aldridge, as Mayor, etc., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    1. Municipal corporation—Contract.
    A municipal corporation cannot be compelled, by any process of law, to prosecute any enterprise, undertaken for purposes of its own, beyond the point at which it sees fit to discontinue the undertaking.
    .2. Same—Mandamus.
    Mandamus to compel the execution of a further contract by the mayor, which the city, by its common council, has decided not to enter into, will not be granted.
    Appeal from an order, denying a motion for a peremptory writ of mandamus.

      M. T. Bly, for app’lt; A. J. Rodenbeck, for resp’ts.
   Dwight, P. J.

The common council of the city of Rochester, by resolution, directed its map and survey committee to advertise for proposals for a survey of a portion of the territory of the city, and to let the work to the lowest competent surveyor bidding therefor, etc., and directing the mayor to • execute a contract for the work when requested thereto by the committee. The committee advertised. The relator sent in a proposal, which was accepted, and the work was awarded to him by resolution of the committee. Shortly afterwards the common council voted to reconsider its previous action, and indefinitely postponed further action thereon. Thereafter demand was made, in behalf of the relator, upon the committee to request the mayor, and upon the mayor to execute the contract, both of which were refused, and the relator brought this action, joining the mayor and the members of the committee as defendants therein.

It is very clear, we think, that the action cannot be maintained. The writ of mandamus to a public officer to compel the performance of a duty which rests in contract merely is in the nature of an action in equity for a specific performance of such contract, and specific performance cannot be compelled of a contract of the nature of that here in question. Uo person can be compelled, by any process of law, to prosecute any enterprise undertaken for purposes of his own beyond the point at which he sees fit to discontinue the undertaking; and if he has contracted with another person to do the work for him, and afterwards refuses to have it done, the oontractee does not relieve himself from the obligation of the contract, but the remedy of the contractor is confined to his action of damages for its breach. The contract is not abrogated, but, in the nature of things, neither party can compel its specific performance by the other. The rule applies as well to bodies corporate and politic as to individuals, and even to the state, although against it no action for damages can be directly maintained. Such was the decision in the case of Lord v. Thomas, 64 1ST. Y. 107, in which the principle, was fully recognized which must control this action. In that case the court, by Andrews, J., says:

"The state cannot be compelled to proceed with the erection of a public building or the prosecution of a public work at the instance of a contractor with whom the state has entered into a contract for the erection of the building or the performance of the work. The state stands in this respect in the same position as an individual, and may at any time abandon an enterprise which it has undertaken, and refuse to allow the contractor to proceed. * * * That a person who has employed another to perform labor may refuse to allow the other party to proceed, and that the latter cannot thereafter insist upon specifically performing the contract, was decided in Clark v. Marsiglia, 1 Denio, 317.”

We think that the principles thus stated are applicable to the case in hand, notwithstanding that the duty here sought to be enforced by mandamus is the execution, and not the performance, of the contract for the survey. Nevertheless that duty itself exists, if at all, only by virtue of the contract made by the committee with the relator when the former advertised for and accepted the proposals made by the latter, since the authority of the committee to proceed further under the original resolution of the common council has been, in effect, revoked by the subsequent action of that body. We have, then, the action of the committee in awarding the contract to the relator, binding upon the city because taken under the direction of its common council; ‘but no further action on the part of the committee, enforceable by mandamus, because that direction has been revoked. The remedy of the relator, therefore, if any exists, is, as in the cases cited, by action for damages for breach of the contract actually made, and not to compel the execution of a further contract which the city, ,by its common council, has decided not to enter into. We think the discretion of the court was properly exercised at specirl term in the denial of the motion for a mandamus, and that the order should be affirmed.

All concur.

So ordered, without costs of this appeal to either party.


text:
    Mechanics’ Savings Bank, Pl’ff, v. De Villo W. Selye et al., Def’ts. Josephine L. Parker, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)
    Judgment—Conclusiveness.
    A judgment, in an action against the record owner, that the plaintiff therein is the owner of an undivided half interest in the premises, is entirely unavailing as against a mortgagee, who was not a party to the action and whose mortgage was delivered and recorded prior to the commencement of such action.
    Appeal from an order, confirming the report of a referee in a proceeding to obtain surplus money under a foreclosure sale.

      Q. Van Voorhis, for app’lt; H. McGuire, for resp’t.
   Dwight, P. J.

The Central Bank claimed the whole of the surplus moneys by virtue of a mortgage next subsequent to that which was foreclosed in the action. Mrs. Parker’s claim was based upon an alleged equitable title to an undivided half of the mortgaged premises. The title was evidenced by a judgment against Selye in an action by Mrs. Parker, to which the Central Bank was not made a party,—although its mortgage had been duly recorded nearly two years before the action was commenced,—by which, notwithstanding the apparent legal title in Selye to the whole of the mortgaged premises, it was adjudged that Mrs. Parker was the owner of an undivided one-half of those premises as tenant in common with him. This proof was no doubt properly made as against Selye, who, as apparent owner of the equity of redemption, would himself have been entitled to the surplus, money if no other claim had been established thereto; but of course it was entirely unavailing as against the Central Bank. As to the bank, which was not a party the action in which it was recovered, the judgment was inter alios, and of no effect whatever. The principle is elementary, and as such is stated by Mr. Green-leaf in these words: “ It is a most obvious principle of justice that no man ought to be bound by proceedings to which he was a stranger.” 1 Green! Ev. § 522. This case is an apt illustration of the facility with which, if such was not the rule, parties mutually interested to defeat the rights ot a third person might accomplish that object by means of a collusive action to which the third person was not made a party. No other evidence was made of any title or interest in Mrs. Parker upon which to base her claim for the surplus moneys, and, the bank having established its claim as against the mortgagor, the report of the referee was properly in its favor. Other questions were litigated on the hearing, including the" question of the effect of the recording act on the relative equities of the two claimants to the surplus money, but we do not think it necessary to consider that or any other question in view of the failure of proof to establish any title in Mrs. Parker as against the other party to that litigation.

The order appealed from should be affirmed

All concur.

So ordered, with $10 costs and disbursements.


text:
    In the Matter of the Application of Margaret Dean.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Mechanic’s Lien—Deposit.
    Chap. 300 of 1893 does not change the rule that money, deposited for the purpose of discharging a mechanic’s lien, is only a substitute for the property, and that the claimant is not entitled to receive it until he establishes his claim in an action brought for that purpose.
    Appeal from an order vacating an ex parte order, directing the payment of money deposited to discharge a mechanic’s lien.

      W. H. Whiting, for app’lt; J. S. Havens, for resp’t.
   Dwight, P. J.

The respondent, John D. Rutledge, was the owner of premises in the of Rochester, which the pellant, on the 21st day of February, 1894, had filed a notice of lien, under the mechanic’s lien law, for the sum of $122. On the 9th of March following, the respondent deposited with the clerk of Monroe county the sum of $122, with 28 cents as interest thereon, and the lien was marked, on the docket of liens, as discharged by payment to the clerk. On the 10th day of March the appellant commenced an action in the municipal court of Rochester to foreclosure the lien, the summons being made returnable on the 16th day of March, but on the 14th day of the same month the appellant, having learned of the deposit of the amount of her lien and claim, applied to the county court, and obtained an ex parte order for the payment to her of such amount, and on presentation of that order, received the money the same day from the clerk. The respondent duly appeared in the municipal court on the return day of the summons against him, to make defense to the action to foreclosure the lien, but that action was not prosecuted, and on the 19th day of March he procured an order of the county court requiring the appellant to show cause why the ex parte order procured by her should not be vacated, and she be required to restore the money to the custody of the court. On the return of the order to show cause, the facts being made to appear as above stated, the court made the order from which this appeal is taken, vacating the ex parte order above mentioned, and directing the appellant to restore the money in question to the custody of the court. The question here presented, like many other questions arising under the mechanic’s lien law, is embarrassed by the appellant carelessness which has marked much of the legislation on this subject. In the particular now under consideration the statute of 1885 (Laws 1885, c. 342, § 24) provided for the discharge of the lien in several modes ; among others, by depositing with the county clerk the amount claimed, with interest (subdivisions 2 and 3), or by the execution, justification of sureties, and approval by the court of a bond conditioned for payment of any judgment which might be rendered against the property (subdivision 6). Under this statute it was uniformly held, as the terms of the statute import, that the deposit of money was not payment, nor the bond an absolute undertaking to pay, but that either was a substitute, merely, for the property from which the lien was discharged ; that the bond could be enforced or the money realized by the claimant only on establishing his claim in an action brought for that purpose ; that while there could be no judgment in such action for the foreclosure of the lien because the lien was discharged, it must be adjudged that a claim existed which, but for the bond or the deposit, would have entitled the claimant to a judgment of foreclosure. See People v. Butler, 61 How. Pr. 274; Copley v. Hay, 34 St. Rep. 771; Cunningham v. Hatch, 45 St. Rep. 685; Brandt v. Verdon, 44 St. Rep. 885 ; Kruger v. Braender, 3 Misc. Rep. 275; 51 St. Rep. 906. But by chapter 300 of the Laws of 1893 a further 'subdivision (No. 7) is added to section 24, above cited, of the act of 1885, in the following language:

“All moneys paid to the clerk as hereinbefore provided shall be considered as paid into court, and shall be subject to the provisions of section 745 of the Code of Civil Procedure, and upon such payment the county cleik shall forthwith enter upon the lien docket, and against the lien for the discharge of which said moneys were paid, the words ‘discharged by payment.’ And thereafter the provisions of section 751 of the Code shall apply as to the payment or surrender of said moneys. * * * ”

It is upon this provision that the appellant bases her contention to the effect that the deposit of money under the former subdivisión is no longer to be regarded as a deposit," merely, to abide the establishment of the claim against the property from which the lien has been discharged, but as payment of the claim, and to be treated as money paid into court to keep a tender good, and as belonging to the claimant from the time of its deposit, and to be surrendered to him, on his application, at any time thereafter. There is, no doubt, some language employed in the new subdivision which suggests such an effect as that contended for, but we think it very plain that it falls short of accomplishing that result. The apparently careless substitution of the word “payment” in the new provision for “deposit” in the old cannot have the effect to transform the one into the other, and the sections of the Code of Civil Procedure referred to in subdivision 7 have no reference to the distinction suggested. Section 745 relates merely to the custody of the money paid into court, and section 751 only to the mode of authentication of the order for its payment out of court; and this seems to be the only effect of the new subdivision, namely, to bring the case of moneys deposited in court for the discharge of mechanics’ liens within the rules of the Code in respect to the custody of the funds, and the authentication of the order for its payment to the person entitled thereto. We find, therefore, that the amendment of 1893 works no change in the nature or effect of the deposit provided for by subdivision 2 of the original section, and consequently does not take the ease in hand out of the rule established by the decisions before cited. The order appealed from should be affirmed.

All concur.

So ordered, with $10 costs and disbursements.


author: Haight, J.

text:
    Bridget Tehan, Resp’t, v. William H. Tehan, as Executor, etc., et al., Def’ts. James Deering et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Wills—Reimbubsement.
    Where a testator makes provision for his widow in lieu of dower, specifically devises land to plaintiff and gives the residue to his sons, subject to the payment of legacies, and the widow refuses to take under the will, in consequence of which the plaintiff is obliged to pay her the value of her dower interest in such specific devise, she is entitled to be reimbursed out of the residue of the estate.
    Appeal from a judgment in favor of plaintiff.

      J. Rosecrans, for app’lts ; Hurlbut & Kerr, for resp’t.
   Haight, J.

This action was brought to recover the amount the plaintiff was compelled to pay in order to discharge the real estate specifically devised to her under the will of her father from the dower of his widow. There is no material conflict as to the fácts, and they are substantially as follows : James Beering died at the city of Auburn, February 2, 1892, possessed of certain real and personal estate, and leaving a last will and testament and codicil thereto, which have been duly admitted to probate. By the-provisions of the will, the testator made several bequests of money to the defendants, together with provisions for his wife, which he declared to be in lieu of dower, and specifically devised to the plaintiff a parcel of real estate in the city of Auburn, and then devised the residue and remainder of his estate tó his sons, the defendants Richard, James, and Patrick Beering. By the eighth clause of his will, his executor was authorized and directed, at any time within two years after his death, to sell all .the real property of which he died seized, except that specifically devised to the-plaintiff, and, out of the proceeds of such sales, the rents and profits of said real property, and the proceeds of his personal property, to pay the bequests- and legacies provided for. After the death of the testator, his widow refused to accept the provisions made for her in the will in lieu of dower, and commenced an action in the supreme court to have her dower admeasured, and obtained an interlocutory decree to that effect, under which the plaintiff was compelled to paya gross sum, amounting to $884,66, together with one-third of the rents which had accrued since the death of the testator, amounting to $237.48, and costs in the action amounting to $154.27, amounting in the aggregate to $1,276.41. It further appears that, when the widow elected to take her dower or statutory interest in the estate, she relinquished the legacies and bequests to which she was entitled under the terms of the will, amounting to $1,600 and upwards, which inured to the benefit of his estate, the executor has in his hands after paying all. the debts of the estate, the sum of $1,450. By the judgment,, the executor was required to render an account, deduct his legal commissions and expenses, and, out of the balance remaining, pay the plaintiff’s claim.

It appears that the personal property left by the testator was not sufficient to pay his debts, and that some portion of his real property had to be devoted to that purpose. It is now contended that the plaintiff should pay her proportionate share of such indebtedness, but such does not appear to have been the intent of" the testator. The premises in Auburn were specifically devised, to the plaintiff, and the residuary estate was devised and bequeathed to the testator’s three sons. The widow, having refused to accept the provisions made for her in the will, released to the-estate, and for the .benefit of the residuary devisees and legatees, the provisions made for her in the will. It was the duty of the-executor to devote the personal property to thepaymentof thedebts, and, if insufficient, procure an order for a sale of so much of thereat estate as would be necessary to pay the balance. In ordering a sale of the real estate for the payment of the debts, it would be-the duty of the court to first order that sold which had not been specifically devised, and if sufficient, save that specifically devised, to carry out the intentions of the testator. We do not understand that the. refusal of the widow to accept the provisions made for her in the will changes the rights of the parties in reference to the debts. The testator evidently contemplated the payment of his debts, and cast that burden upon his residuary estate.

We are thus brought to a consideration of the question as to whether the plaintiff is entitled to be reimbursed out of the residue of the estate. As we have shown, the amount surrendered by the widow more than equals that which the plaintiff was compelled to pay, and we think, upon principles of equity, she is entitled to be reimbursed. The authorities in this state are somewhat meager, but the question appears to have been carefully considered by Lawrence, J., in Sarles v. Sarles, 19 Abb. N. C. 322, and by the author in his note thereunder. In Pennsylvania the question has received more attention. In Gallagher's Appeal, 87 Pa. St. 200, the testator devised certain lands to his sister, and after making provisions for his widow, left the remainder of his estate to nephews and nieces. The widow refused to take under the will, and it was held that the sister was entitled to have the assets marshaled,. and a sufficient amount set apart to relieve the land devised to her from the burden of the widow’s do.wer. In Sandoe's Appeal, 65 Pa. St. 3Í4, the widow refused to take under the will. It was held that a court of equity will sequester the devises and bequests intended for her to secure compensation to those whom her election disappoints. See, also, McCallister v. Brand, 11 B. Mon. 370 ; Firth v. Denny, 2 Allen, 468 ; McReynolds v. Counts, 9 Grat. 242; Dean v. Hart, 62 Ala. 308 ; Worth v. McNeill, 4 Jones, Eq. 272 ; Story, Eq. Jur. (13th ed.) 415, 465 ; Pom. Eq. Jur. § 1083 ; and 2 Jarm. Wills, 683.

The judgment appealed from should be affirmed, with costs.

Lewis and Bradley, J. J., concur; Dwight, P. J., takes no part.


text:
    Henry H. Craig et al., Resp’ts, v. Frank J. Butler, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    1. Landlord and tenant—Act of 1860.
    The destruction of the leased building, on the day on which the rent falls due, does not relieve the lessee from liability for such rent.
    3. Same—Sunday.
    Where the day on which the rent falls due is Sunday, it becomes due on that day, but its enforcement is merely postponed to the next secular day.
    Appeal from a judgment entered on the findings and decision of the court in favor of plaintiff.

      Thomas Raines, for app’lt; A. H. Harris, for resp’ts.
   Dwight, P. J.

The action was to recover rent reserved by a lease executed by plaintiff’s assignor to the defendant, of a summer hotel at Ontario Beach, for the term of three years from May 1,1889. The rent reserved was $1,850 a year, payable, $200 on the delivery of the lease, $150 on the 1st days of May, June, July and August in each year, and the balance of said yearly rent on the 1st day of September in each year. The defendant paid $200 on receipt of his lease, toolc possession thereunder, and paid the several installments of $150 each on the 1st days of May, June, July and August, 1889. The 1st day of September, 1889, was Sunday, and at 6 o’clock in the morning of that day the property was wholly destroyed by fire. The next day (Monday, the 2d) was Labor Day, a legal holiday. On the next day (Tuesday, the 3d) the defendant gave his lessor notice that he surrendered possession of the premises, pursuant to the statute. The plaintiffs, as assignees of the lessor, bring this action to recover the balance of $1,500, which, by the terms of the lease, was .to have been paid on the 1st day of September, 1889. The sole question in the case is whether the statute referred to in the defendant’s notice, above mentioned, applies to relieve him from that payment. The enactment is found in chapter 345 of the Laws of 1860 (Birdseye’s Ed., p. 828, § 32), and is as follows :

‘‘The lessees or occupants of any building which shall without any fault or neglect on their part be destroyed, orbe so injured by the elements or any other cause as to be untenantable and unfit for occupancy shall not be liable to pay rent to the lessors or owners thereof, after such destruction or injury unless otherwise expressly provided by written agreement or covenant and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises and of the land so leased or occupied.”

Of course, the purpose of the statute is to relieve the tenant from payment of rent which accrues after the destruction of the building, not from the payment of rent which was due but unpaid at that time. So that the question here is narrowed to the inquiry whether, under the terms of this lease, the .rent sought to be recovered had accrued when the fire occurred ; not whether it was collectible, nor even whether it was payable on the 1st day of September, that day being Sunday, but whether it had accrued and was due when that day commenced, and, consequently, before the destruction of the building. We believe that question is to be answered in the affirmative. The lease provides that all the balance of the yearly rent shall be paid on the 1st day of Steptember. It may, then, be paid at any time on that day, and a tender of the amount would be good at any hour after the day begins. It must therefore have been due at all times during the day. Ho doubt, the tenant has. the whole day on'which his rent falls due in which to pay it, without liability to action or distress for rent. But the law takes no account of fractions of days, and rent which is due on a day certain is due at any and every hour of that day. The question is not, when must it be paid in order to prevent default ? but when may it be paid within the terms of the contract ? The authorities cited by counsel for the defendant fail to meet the case in hand, because they relate to the time when the right of action for rent accrues, rather than to the time when the rent itself accrues, and the difference in time between the two is the whole length of the day ; for, though the tenant has until the last hour of the day on which the rent is due in which to pay it, it is, nevertheless, due all day, and may be paid or effectually tendered at any hour.

So much has been said as if the 1st day of September in this case had been a legal day. We suppose that the fact that it fell on a Sunday had no effect upon the question here presented, for the reason that the occurrence of Sunday at the juncture mentioned only extended the time of the payment of the rent then due; it did not prevent its falling due at the time named in the contract. As was said by the court in Porter v. Pierce, 120 N. Y. 221; 30 St. Rep. 644: “That day [Sunday] occupies time as well as any other.” Contracts mature and rent falls due on Sunday as well as on any other day of the week. The only effect of the rule of dies non is to postpone the enforcement of the contract to a day which is open to transactions of a secular nature.

We suppose it is not at all material to inquire why the whole balance of the year’s rent, reserved by the lease, was made to fall due on the 1st of September; but the fact is sufficiently accounted for by evidence which is in the case, and which shows, in brief, that the year of use and occupation practically ended at about that time. The building was a summer hotel at the lake side. Its use as such was substantially confined to the summer months. During those months the profit, if any, was made; and, if the tenant was ever able to pay his season’s rent, it was at the close of that season. These facts are not referred to as suggesting equities arising outside the terms of the contract. The plaintiffs, we think, may stand upon the terms of lease, and insist that the rent sued for had accrued before the destruction of the property by fire, and consequently, that the statute does not relieve the defendant from its payment.

The judgment appealed from should be affirmed with costa

All concur.

So ordered.


author: Dwight. P. J.

text:
    Goodyear’s India Rubber Glove Manufacturing Company, Resp’t, v. Frank B. Gorham et al., Impleaded, etc., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Deposition—Discovert—Petition.
    A petition in which the statement of some of the material facts is made on information and belief only and is unsupported by the affidavit of the informant, is insufficient to authorize an order for discovery.
    Appeal from an order, granting the discovery of a letter book in the possession of the defendants.

      J. M. E. O' Grady, for appl’ts; Scott Cummings, for resp’t.
   Dwight. P. J.

The was to recover of the firm of Gorham, Wilcox & Co. the price of goods sold and delivered by the plaintiff to the firm of Pitt & Esser, on the ground that the defendants were the undisclosed principals, for whom the last-named firm purchased the goods as agents; and the question of the existence of that relation between the two firms constituted the chief, if not the only, issue in the action. It is for the purpose of obtaining information relating to that issue, in advance of trial, that this proceeding was instituted by the petition of the plaintiff, unsup-' ported by any other proofs. The petition is defective as proof of some of the material facts alleged for the reason that its statements in these particulars are on information and belief only, and are unsupported by the affidavit of the plaintiff’s informant Husson v. Fox, 15 Abb. Pr. 464; In re Bronson, 78 Hun, 351; 60 St. Rep. 725. The petition in a proceeding like this, is in the nature of a pleading, and although, when duly verified, its allegations made on the personal knowledge of the petitioner are to be accepted as proofs, yet its statements made on information and belief are mere allegations, and do not partake of the nature of proofs. So far, then, as this petition, which stands alone, on the part of the plaintiff, is upon information and belief only, the matters so stated are without any proof whatever, and furnish no ground for any actions by the court affecting the rights of others.

Among the things most essential to be shown to the court, in a proceeding of this character, are the facts from which the court may adjudge that the book or paper of which discovery is sought contains some matter material to the issue in the action, and which would be to the advantage of the party seeking discovery. Rule 15, Gen. Rules Prac.; Brownell v. Bank, 20 Hun, 517. But in this petition all the allegations even tending to establish those facts are upon information and belief, and, as we have said, are therefore mere allegations, which require proof before they can furnish ground for the order of the court. The petition attributes the information upon which these allegations are made to one John R. Pitt, who it seems, as one of the firm of Pitt & Esser, is to be relieved from liability for the cause of action herein, if the same can be enforced against the defendants, and who, it is said “ wrote the originals of said letters.” He might, no doubt, have made proof of facts indispensable to this proceeding, but his affidavit is wanting, and no reason is given why it could not have been procured. In the particular considered, the moving papers were clearly insufficient to warrant the granting of the order for discovery, and the application should have been denied. All concur.

Order appealed. from reversed, and motion denied, with $10 costs and disbursements, but without prejudice to renewal of motion on further papers.


author: Dwight, J.

text:
    In the Matter of the Application of James C. Wing et al.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    1. Lunatic—Judgment—Priority.
    A creditor, who recovers a judgment before, but fails to issue execution thereon until after, the personal property comes into the hands of the committee, acquires no lien thereon and is entitled to no preference in the distribution of the lunatic’s estate.
    3. Same—Jurisdiction. .
    Where the original proceeding to appoint a committee was in the county court, the supreme court cannot make an order for the payment of the lunatic’s debts.

      Appeal from an order, directing the committee of the lunatic to pay a judgment.

      D. E. Brong, for app’lt; E. C. Hart, for resp’ts.
   Dwight, J.

The petitioners, having failed to issue execution

on their judgment until after the personal property had come into the hands of the Committee, acquired no lien thereon, and so far as we understand, are entitled to no preference in the distribution of that estate. The statutory prescription in this respect is that the court must provide for the payment of the debts of the lunatic out of the proceeds of his property. Code Civ. Proc. § 2321. This, of course, means all of his debts, so far as his property will go, and necessitate a pro rata distribution in case the property is not sufficient to pay the debts in full; the case of a general or specific lien being, as we conceive, the only exception to this rule. In re Otis, 101 N. Y. 583. The statute which gives preference to judgments in the order of their docketing, in the distribution of the estates of deceased persons (Code Civ. Proc. § 2719), affords no rule for any other case than that specified therein. It cannot be applied by analogy to the case of the estates of lunatics. But there is another objection to the order appealed from which we suppose is insuperable, viz. that of want of jurisdiction in the court which made it. The petition shows that the original proceeding for the appointment of a committee in this case was taken in the county court of Niagara county, and inquisition was had therein, and the committee was appointed by the court last named. That court had jurisdiction concurrent with the supreme court to entertain the proceeding. Code Civ. Proc. § 340, subd. 4. But by the provision of section 2320 of the same statute, the two courts having jurisdiction of those matters concurrent with each other, the jurisdiction of the court first exercising it became exclusive of that of the other, “with respect to any matter within its jurisdiction for which provision is made” in the title in which that section occurs; and it is in the next section of the same title that provision is made for the payment of the debts of the lunatic. Id. •§ 2321. The effect of the provision of section 2320, supra, the county court having first exercised the jurisdiction therein mentioned, must, therefore, have been to exclude the supreme court from jurisdiction of any matter relating to the payment of the debts of the lunatic in this case, and that objection is one which may be taken for the first time on appeal. On either of the grounds mentioned the order appealed from seems to have been erroneous, and it must be reversed. All concur.

So ordered, with $10 costs and disbursements,


author: Dwight,P. J.

text:
    The People ex rel. J. Tuttle Kenfield, Resp’t, v. Frank E. Lyon, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    1. Deposition—Commission. .
    An objection to the reading of a deposition de bene esse in evidence that there was no evidence to form a basis for its introduction, will be held to mean that no proof was given that the witness could not be procured at the term.
    2. Appeal—Harmless error.
    The answer to a question, though it calls for a conclusion, is not prejudicial, where it is the unavoidable conclusion from the testimony in detail, subsequently given by the same witness. «
    3. Same—Error.
    The admission of evidence, though incompetent, is not error, when given in answer to testimony on the same subject which was introduced by the adverse party.
    4. Same—Jurisdiction—Presumption.
    In the absence of any objection before the magistrates, it will be pre sumed, for the purposes of an appeal to the court of sessions, that the preliminary proceedings, necessary to give them jurisdiction of the person of the defendant, had been taken.
    5. Same—Corroboration.
    In a bastardy proceeding, corroboration of the prosecutrix is not nee essary.
    Appeal from a judgment, affirming the order of filiation.

      John, Gillett, for app’lt; I. A. Seamans, for resp't.
   Dwight,P. J.

The defendant, a horseshoer by trade, took up the business of administering “massage,” and, under the title of Prof. Lyon, traveled from place to place in the region of Elmira and Canandaigua, holding himself out as a practitioner of the art which goes by that name. The mother of the bastard child, an unmarried woman of 33 years of age, who had been an invalid since she was 20, submitted herself to his treatment,'—-at first at her home in Naples, and afterwards at a hotel in Canandaigua. At the latter place, as she testifies, the defendant on three or four occasions in the fall of 1892 and spring of 1893, having her alone with him in his bedroom, in which he received his patients, with the door locked, in each case, after administering the treatment of massage, solicited and was permitted to have connection with her. She testifies that the child, to which she gave birth in the latter part of November, 1893, was the result of this connection. The order of filiation charged the defendant with the paternity of the child, and, after an appeal to and trial de nova by the court of sessions, that order was unanimously affirmed. The finding of that court on the question of fact cannot be disturbed. The evidence, though contradictory, depended largely for its probative force upon the apparent character and truthfulness of the witnesses, and, so far as those elements of credibility can be judged of from the printed testimony, the court below was justified in bestowing its credence as it did.

Several exceptions were taken to rulings of the court in the admission of evidence, but none, we think, for which the judgment should be reversed. The testimony of the mother of the child was taken, as we infer, de bene esse, although it appears to have been offered in evidence as a deposition “ taken by commission.” No order for the taking of the testimony was proved, nor is there in the record here any authentication of the deposition ; but the only objection which was made to its being read was that there was no evidence to form a basis for its introduction. This, we must suppose, related to the proof necessary to be made preliminary to the reading of evidence taken conditionally, namely, that the attendance of the witness could not be procured at the term.' But this proof was fully made by the testimony of Dr. Conley, who was the last witness to testify before the deposition was offered in evidence. That part of his evidence which related to the present condition of health of the mother of the child was objected to on behalf of the defendant as inadmissible and-incompetent, but it was admitted, and it showed that the mother of the child was then confined to her room by severe illness, and that it would not have been possible for bér to come to court. It would seem that this evidence, or the effect of it, must have escaped the attention of counsel for the defendant; but, however that may have been, no other objection was made to the deposition, and the counsel himself read in evidence that portion of it which seems to have been taken on his cross-examination. After testifying to the birth of the child, the deponent was asked who was its father, and the answer was received under objection. The questions was perhaps liable to the objection that it called for a conclusion, but the answer was without prejudice to the defendant, because it was the unavoidable conclusion from the testimony in detail, subsequently given by the same witness. The objection that the testimony of this witness to the principle fact was not directly corroborated by other evidence goes only to the question of the credit to be given to her testimony. There is no statute requiring corroboration in order to conviction in this case, as in that of rape or seduction (Pen. Code, §§ 283,286), and on the question of credit we have already intimated that we stand by the finding of the court of sessions. The case of Burke v. Burpo, 75 Hun, 568; 59 St. Rep. 144, furnishes no authority for discrediting the testimony of the principal witness in this case. In that case the circumstances were such as, in the opinion of the court to forbid credit to the testimony of the mother of the child. We can only say that, in our opinion, such are not the circumstances of this case. Every such case must stand on its own bottom.

Some evidence, in rebuttal, was given by Dr. Conley and one other witness for the prosecution as to the color of the hair and eyes of the child and its mother. The evidence was objected to, and its reception would probably have been error but for the fact that the evidence was given in answer to testimony on the same subject which was first given by the defendant and one of his witnessess. The same must be said in respect to some evidence given by the prosecution, in rebuttal, as to the manner and bearing of the mother of the child in her casual intercourse with men. The admission of this evidence could not have been justified but for the fact that the defendant had previously introduced the testimony of several witnesses to the effect that in such intercourse she was improperly forward and familar. The evidence was not material, except as it tended to discredit her testimony, and as such it was contradicted by that objected to by the defendant.

The motion in the court of sessions to dismiss the proceeding on the ground that the magistrates were without jurisdiction to hear' and determine the case was properly denied. There was no specification in the motion of the respect in which jurisdiction was wanting, whereas it is apparent that the magistrates had jurisdiction of the subject matter, and it appears from the record that the defendant was before them in person and by counsel without objecting to their jurisdiction of his person. In his brief for argument of this appeal, counsel specifies as the ground of his objection to the jurisdiction that it does not appear by the record that the defendant, when arrested in another county1 than that in which the warrant was issued, was taken before a magistrate in the county in which he was arrested. Code Cr. Proc. § 844. There seems not to be force in this objection. The record before us does not purport to contain the proceedings leading up to the trial before the magistrates, but only the proceedings on that trial. The record reads, after stating that the appeal to the court of sessions is from an order made by the two magistrates, named : “ The following are the proceedings had before the magistrates from which such appeal was taken.” It is true that the record do6s, in fact, contain what, on their face, purport to be some of the preliminary proceedings, but this was entirely supererogatory, since the statute only required that the magistrates from whose order the is taken shall transmit to the court of sessions the undertaking of the defendant for his appearance in that court, with a certified copy of the order appealed from. Code Civ. Proc. § 863. We are of the opinion that, in the absence of any objection before, the magistrates, it will be presumed, for the purposes of the appeal to the court of sessions, that the preliminary proceedings necessary to give -the magistrates jurisdiction of the person of the defendant had been taken. We find no exception taken on the trial which must not be disregarded under the provisions of the statute relating to appeals in criminal cases. Code Cr. Proc. § 542.

The judgment should be affirmed, with costs.

All concur.

So ordered.


author: Lewis, J.

text:
    Union Bank of Rochester, Resp’t, v. William Wallace Gilbert, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December, 27, 1894.)

    Bills and notes—Usury.
    A note, void as between the original parties on the ground of usury, does not become valid in the hands of a third person.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      John F. Dorthy, for appl’t; D. W. Ross for resp’t.
   Lewis, J.

The action was brought against George A. Curran, as -the maker, and the appellant, as the indorser, of a promissory note dated July 24, 1893, for the sum of $300, payable three months from date. It was alleged in the complaint that the defendant Curran made the note in suit payable to the order of W, W. Gilbert, and then and there delivered the same to Gilbert, and the said Gilbert, for value received, afterwards indorsed the said note, and then and there delivered the same to William Johnson ; and that the said William Johnson, for value received, afterwards indorsed the said note, and the same was thereupon, and before it became due, for value received, duly transferred to the plaintiff, who then became, and still is, the owner and holder thereof; and judgment was demanded against the maker and Gilbert, the first indorser. Gilbert alone defended, and interposed the plea of usury.

The plaintiff called, as its only witness, Gilman if. Perkins, who testified that he was the plaintiff’s cashier; that the note in suit was given in renewal of another note of the same amount; that he supposed it was discounted the same day it was dated ; that it so appeared upon the books of the bank; he did not know who brought the note to the bank; that it was not placed to any one’s credit; that he simply surrendered the previous note upon the presentation of the one in suit, but to whom he could not say. When the note was taken by the bank, it was indorsed by Mr. Johnson. Johnson was what is called a “loan broker.” The plaintiff thereupon rested, and the defendant Gilbert was called as a witness in his own behalf, and testified that the note was made by Curran, and indorsed by the witness ; that he received no consideration for his indorsement; he knew that the maker could not take care of the prior note when it should fall due; and that he went to see Mr. Johnson, who he knew had the former note, with the view of having it renewed Mr. Johnson required him, as a condition for the renewal of the note, to pay the sum of $22.65,— $18 bonus in addition to the lawful interest. . He paid Johnson the $22.65. He did not know from any personal knowledge what became of the note for which the note in question was given in renewal. It was not delivered to him at the time of the giving of the note in suit. He paid Johnson what he asked him to pay for its extension or renewal. He took it to Mr. Johnson because he had taken notes there before. He knew Mr. Johnson indorsed the notes and furnished the money, and therefore took them to him. He understood that Mr. Johnson advanced to Mr. Curran, the maker, the proceeds of a prior note for which this note was given in renewal. He remonstrated with Mr. Johnson on one or two occasions, and asked him to renew the note for less, but Johnson declined. The evidence being closed, the plaintiff’s counsel asked the court to direct a verdict for the plaintiff for the amount of the note and interest. Defendants’ counsel asked to go to the jury on the whole case, and particularly on the question of the delivery of the note to Mr. Johnson, and upon the question of the inception of the note, His request was denied, and he duly excepted. He thereupon requested the court to direct a verdict for the defendants. The motion was denied and he excepted, and the court thereupon directed a verdict for the plaintiff, for the amount of the note with interest.

It was incumbent upon the plaintiff, before it was entitled to recover, to establish that the note had its first inception m the hands of the plaintiff. To establish that, the plaintiff relied solely upon the testimony of its cashier. If the note had an inception in the hands of Johnson, and he exacted, as the testimony of Gil: bert tended to show, a greater rate of interest than 6 per cent., and he thereafter transferred it to the plaintiff, it was void for usury.

The plaintiff claims that the note had its first inception when it was transferred to,the plaintiff, and that Johnson acted simply as a note broker, and that the amount of money in addition to the legal rate of interest paid to him" by Gilbert was for his indorsement. The witness upon whom the plaintiff relied to make its case was its cashier, Mr. Perkins; and he testified that he was himself the owner of the note at the time of the trial. Tlie truthfulness, therefore, of his testimony, was for the consideration and determination of the jury, and not for the court. Canajoharie Nat. Bank v. Diefendorf 123 N. Y. 191; 33 St. Rep. 389. The testimony of the appellant tended to show that the note had an inception in the hands of Johnson. His dealings were entirely with Johnson. It was a question for the jury whether the transaction was simply a cover for a usurious loan. If it was the exaction of usurious interest upon the renewal of a note, the renewal note was tainted with usury. Swartwout v. Paine, 19 Johns, 294. Gilbert, being liable to pay the note as indorser, was in a situation to make a usurious contract, and was entitled to interpose the defense of usury. National Bank of Auburn v. Lewis, 75 N. Y. 521. If the note was invalid in the hands of Johnson, it could not be rendered- valid by sale thereof to the plaintiff. Sweet v. Chapman, 7 Hun, 579. These were questions of fact which, we think, should have been submitted to the jury for their determination.

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

All concur.


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    Edward R. Foreman, Resp’t, v. Union and Advertiser Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Municipal Corporation—Civil service law.
    The mayor may require an application for leave to take a civil service , examination to be verified, and such oath is not extrajudicial.
    Appeal from a judgment entered- on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      Nathaniel Foote, for app’lt; Eugene Van Voorhis, for resp’t.
   Lewis, J.

The defendant is a corporation, and is the publisher-of a newspaper in the city of Rochester, known as the Union and Advertiser. This action was brought to recover damages for an alleged libelous article published by the defendant of and con-. cerning the plaintiff. The mayor o£ the city of Rochester, after the passage of chapter 354, Laws 1883, entitled “ An act to regulate and improve the civil service of the state of New. York,” as amended by chapter 410, Laws 1884, appointed a board of examiners of applicants for admission into the civil service of the city, and he promulgated rules and regulations for the government of such examinations, with a View of ascertaining the fitness and qualifications of applicants for admission into such service. The plaintiff was an applicant for the position of investigating clerk in the city attorney’s department of said city. The position was one coming within the civil service rules, and, with the view of being permitted to take such examination, the plaintiff made a written application to the said board in the form and manner prescribed in such cases, which he duly verified before a commissioner of deeds of said city. He, among other things, stated in the application that he resided in the city of Rochester, and had resided in that city continuously for over four years, and that he had not been arrested upon a criminal charge. He was examined by the board, "and was duly certified to be qualified to enter the service, and he was thereafter appointed to the position of investigating clerk. A reporter upon the defendant’s paper, after making a careful examination as to the truthfulness of the statements in plaintiff’s application, and having become satisfied that they were untrue, prepared the article in question, and it was published by the defendant. The article was headed : “ Foreman in Lima—An Unenviable Record in his Native Town—Affidavits by the Town Officials—The Perjury before the Civil-Service Examiners—Still Retained in the City’s Law Department although not Eligible.” The article goes on to give a copy of the plaintiff’s verified application, and also what purported to be copies of a number of affidavits made by residents of the village of Lima, tending to show that the plaintiff had been a resident of that village during the most of the year prior to his making the application, and then charges that statements in the applicition were false, and that “ the grand jury can'scarcely avoid giving the matter its consideration ; ” and adds: “Affidavits establishing a second falsehood, in the sworn application to the civil-service examiners, may be produced, if necessary, as readily as those given above.” This action was thereupon commenced. It was alleged in the complaint that the defendant intended by the article to charge the plaintiff with the crime of perjury, fraud, and other crimes and offenses in his application. The defendant interposed an answer setting up the truth of the article in justification of the publication, and alleging that it was not true that the plaintiff had resided in the city of Rochester continually for over four years, and that it was not true that he had not been arrested upon a criminal charge, and charged that he had theretofore been arrested upon a criminal charge, tried, and convicted, and that the allegations in the application to the contrary were false, and known to the plaintiff to be false at the time they were made; and for a further defense, and in mitigation of any damages, it was alleged that the publication was made in-good faith, and without malice, and in the public interest, and in the belief on the part of the defendant and publishers that the same was true, and that they had reasonable and probable cause for believing the same to be true. There was evidence tending to show that the-application of the plaintiff in the respects mentioned was untrue, and known to him to be false at the time it was made. The trial court held that there was no provision in the civil-service-law authorizing the mayor to make rules requiring that such application should be verified; that the plaintiff’s oath was therefore extrajudicial; and that hence the charge of perjury could not be predicated upon it; and that the only question for the consideration of the jury was one of damages. The correctness of this ruling was duly challenged by a proper exception, and presents the important question in the case. The article, in effect, charged the plaintiff with having committed the crime of perjury in verifying the application. If neither the mayor nor the board of examiners had the power to require that the application should be verified, then the oath was extrajudicial, and a charge of perjury could not be predicated upon it. By § 8, chap. 410, Laws 1884, it is provided that the mayor of each city in the state is authorized and directed to prescribe such regulatious for the admission of persons into the civil, service of such city as may best promote the efficiency thereof, and ascertain the fitness of candidates in respect to character, knowledge, and ability for the branch of the service into which they seek to enter; and for this purpose he shall, from time to time, employ suitable persons to conduct such inquiries and examinations, and shall prescribe their duties and establish regulations for the conduct of such persons as shall receive appointment in the said service. After the passage of the acts referred to, the mayor of the city of Eochester prescribed certain rules and regulations for the admission of persons in the public service of the city. Among other things, the regulations required that the application for a position like the one sought for by the plaintiff should be in writing, and should be duly verified by the oath of the applicant, addressed to the examining board. As stated, the act does not, in terms, provide that the civil service board or the mayor may examine the applicants upon oath ; neither does it, in terms empower the mayor to make it a condition of the examination that the written application papers shall be sworn to. It does however, require the mayor of each city to prescribe proper rules and regulations for the government of such examination, with a view of promoting the efficiency of the civil service, and ascertaining the fitness of such candidates with respect to character, knowledge, and ability for the service which they seek to enter. It is the contention of the appellant that the power so conferred upon the mayor was sufficient to authorize him to require that such applications be made under oath. It is important that the examining board should be informed as to the moral character, as well as the intellectual qualifications, of candidates for positions in the civil service of their cities. .It would probably aid them, in arriving at the facts as to the character of the applicants, if they could be subjected to the ordeal of a verification of their written applications by their oaths. Section 95 of the Penal Code provide that:

“ A person, who swears * * * that any * * * declaration, * * * certificate, affidavit, or other writing by him subscribed is true * * * upon any hearing or inquiry, or on any occasion where an oath is required by law, or is necessary * * * for the ends of public justice * * * and who "x" * * on such hearing, inquiry or other occasion willfully and knowingly testifies, declares, deposes or certifies falsely in any material matter, or states in his testimony; declaration, deposition, affidavit or certificate ,any material matter to be true which he knows to be false, is guilty of perjury.”

If this section does not reach the case, does section 843 of the Code of Civil Procedure, which is as follows:

“ Where an officer, person, board or committee has been heretofore or is hereafter authorized by law to take or hear testimony, or to hear or receive an affidavit or to take a deposition in relation to a matter concerning which he or it has a duty to perform, the officer or person, or a member of the board or committee may administer an oath for that purpose. Where an officer, person, board, or committee to whom or- to which application is made to do an act in an official capacity requires information or proof to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose. ”

The examiners were a board to whom the plaintiff made application to do an official act. It was necessary that they should have information as to plaintiff’s character to enable them to decide upon the propriety of certifying him to be eligible to enter the civil service of the city. The rules and regulations promulgated by the mayor required the application tobe made under oath. We assume that, if the plaintiff had presented an unverified application, he would not have been permitted by the board to be examined. He presented a sworn application, which the board received and acted upon. We incline to the opinion that the board of examiners were empowered by the latter clause of the section last quoted to require, as a condition of the plaintiff’s taking the examination, that he should verify his application under oath, and, if so, the oath was not extrajudicial. The evidence tending to prove the truth of the allegations of the answer should have been submitted to the jury.

The plaintiff’s verdict was for $1,750. The defendant’s counsel contends that it was, in any event, excessive, and should be set aside for that reason. It was, in view of all the facts, a large verdict, but not so excessive as to justify us in setting it aside for that reason. We put our decision upon the ground of the error in excluding from the consideration of the jury the defense of justification.

The judgment and order appealed from should be reversed^ and a new trial granted, with costs to abide the event.

All concur.


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    George R. Losey et al., Resp’ts, v. Arthur G. Stanley et al., by Guardian, etc., Impleaded, etc., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    1. Trust—Appointment.
    The appointment of the beneficiary as trustee in the place of the deceased trustee is not void, but merely erroneous.
    3. Same—Mortgage oe trust property.
    The fact that the trustee himself, in a proceeding to mortgage the trust property, served the notice on the infants interested in the estate, does not avoid such proceeding, but is a mere irregularity.
    Appeal from a judgment in favor of plaintiffs.

      Joseph W. Taylor, for app’lts; William F. Cogswell, for resp’ts.
   Lewis, J.

On the 28th day of March, 1875, Elizabeth Jane Stanley died, leaving a last will, which was admitted to probate on the 24th day of March, 1881, by which she devised all her estate to Martin Briggs, as executor and trustee, in trust to convert her personal estate into money, and invest the same, and take charge of, rent and to receive the income and profits of the real estate, and, if by him deemed advisable, to sell and convey the real estate, and convert the same into money, to be invested' in good securities, and to pay the net income quarterly to her son, James W. Stanley, during his life. And after his death she gave such estate to the children of James, if he should leave any, in equal shares ; and, in case he should leave no descendants, then it was to go to certain legatees named. Briggs accepted the trust, and acted as trustees up to the time of his death, on the 24th day of December, 1883. In October, 1884, J. W. Stanley instituted proceedings in the supreme court for the appointment of a trustee in the place of Briggs, deceased; and on the 10th day of November, 1884, the court appointed James W. Stanley as such trustee. He qualified, filed his bond, and continued to act as such trustee until the time of his death, in July, 1890. In the month of October, 1888, Stanley presented a petition to the supreme court for leave to sell or mortgage the real estate, stating in the petition, as a reason therefor, that it was necessary for the purpose of preserving and improving the estate; that the dwelling houses were out of repair, and could not be rented without being repaired, and that there were about $500 unpaid taxes on the property; and that, in its then condition, the property would rapidly decrease in value. An order was made at special term of the court on the 15th day of October, 1888, directing that notice of such application should be given to Arthur G. and Leonora J. Stanley, the infant children of the petitioner, by serving a notice, together with a copy of the petition, upon them personally, and upon their mother. After-wards, and on the 22d day of October, 1888, an order was granted ■ authorizing and permitting Stanley to mortgage the premises for the sum of $3,500. Stanley executed and delivered to the plaintiffs the mortgage which this action is brought to foreclose. It ■is stated in the mortgage that it was given as collateral security for the payment of a promissory note made by said Stanley for $1,000, which was indorsed by the plaintiffs, Losey, Marcy, and Luetchford, and as a continuing security for any renewal or renewals thereof, or for future advances or responsibilities which the said mortgagees might make or incur for said Stanley, either personally or as trustee, and as a general security for any and all bal • anees which might be due and unpaid from time to time, and at any time or times, from said Stanley, personally or as trustee, to said mortgagees, or any of them, for any cause or causes, not exceeding a balance of $3,500 at any one time. Stanley thereafter, upon his promissory notes secured by said mortgage, borrowed money from time to time, and at the time of his death there were outstanding notes held by the plaintiffs aggregating the sum of $3,500. Stanley appropriated the money thus borrowed to his own use, and failed and neglected to repair the buildings, or páy the taxes upon the property. At the time of granting the order to mortgage the property, the affidavit of Stanley was presented, showing that he had duly served a copy of the affidavit, and a notice of the application for the order, and a copy of the petition, upon the mother and such children, personally. From the judgment entered on the findings and decision of the court at special term, directing a judgment for a foreclosure of the mortgage, this appeal was taken.

It is claimed that, James W. Stanley being the sole beneficiary of the trust created by his mother’s will, his appointment as trustee was void, and that all his acts thereunder were void. It is undoubtedly true, if Stanley had been appointed trustee by the will, the appointment would have been invalid, for it is a general rule that a person cannot be at the same time trustee and beneficiary of the same identical interest. But when Briggs, the testamentary trustee, died, the trustee vested in the supreme court, with all the powers and duties of the original trustee. 1 Rev. St. p. 730, § 68. The supreme court, as the successor of the court of chancery, has general jurisdiction to appoint a trustee in the place of one dead or removed. People v. Norton, 9 N. Y. 176. The testamentary trustee having died, a petition was' duly presented to the court by James W. Stanley, praying the court to appoint a suitable person in his place and stead. That gave the court jurisdiction of the proceeding, and it appointed Stanley trustee ; and he qualified, filed his bond as trustee, and continued to act as such down to the time of his death. Had the attention -of the court been called to the fact that he was a life tenant, he would undoubtedly not have been appointed, or, had an appeal been taken from the order, it would probably have been reversed. The court had power to make an appointment. The fact that the appointment was an improper one was error, simply. Bangs v. Duchinfield, 18 N. Y. 592-595. The trust originally created by the will was concededly legal, and being such, and the trust devolving upon the court by the death of the trustee, its selection of an improper person to carry out the direction of the court did not make the order void. Rogers v. Rogers, 111 N. Y. 228; 19 St. Rep. 94.

The only proof upon the trial of the service of copies of the' notice of the application for the appointment of Stanley as trustee/ and of petition upon the infants, was the affidavit of the petitioner, Stanley. Mrs. Stanley and her two children testified upon the trial that the notice and petition were never served upon them. The trial court found as a fact that the papers were properly served as stated in the affidavit of Stanley. It is, we think, much more probable that Mrs. Stanley and her children had forgotten the fact of the service than that Mr. Stanley—without, so far as appears, the slightest motive—deliberately committed perjury in making the affidavit. He was at the time living with his family, on terms .of friendship and affection, his wife and children having the utmost confidence in his integrity and in his judgment. The written consent to the granting of the order was given by all the adult residuary legatees. The propriety and necessity for the order the petitioner had no reason to suppose would be questioned by any one,—certainly not by his wife or his children, one of the children at the time being 10 and the other 14 years old. Children of such ages would be quite unlikely to remember such an occurrence. It would be quite alarming if securities like this,, years after they are taken and money advanced upon them, and after the party executing them is dead, could be attacked and destroyed by the testimony of witnesses to the effect that they had no recollection of the service of a notice requisite to the validity of the instrument.

This notice was served by Stanley personally, and it is the contention of the appellant that the service was void for the reason that Stanley was a party to the proceeding ; and our attention is called to §§ 425 and 433 of the Code of Civil Procedure, which provide that service of a summons for the commencement of an action or a process or other paper, whereby a special proceeding, is commenced in court, may be made by any person other than a party to the action. This was not an action. Was it a special proceeding? An “ action,” when applied to a judicial proceeding, signifies an ordinary prosecution in a court of justice, by a party against another party, for the enforcement or protection of a right, or redress or prevention of a wrong, or the punishment of a public offense. Section 3333 of the Code. Every other prosecution by a party, for either of the purposes specified in the last section, is a special proceeding. Section 3334 of the Code. It may well be doubted if this was a “ special proceeding,” within the meaning of this section. . But, if it should be held to be a special proceed.ng, the service of the papers by Stanley was a mere irregularity, and did not make the proceeding void. A special guardian for the infants, upon the hearing of the application, was appointed, for the purpose of protecting their interests; and he reported that he had been served with the petition and orders, and that after a careful examination of the petition, and of the matters therein contained, in his opinion, it was for the best interests of the infants that the prayer of the petition be granted, and that the petitioner, James W. Stanley, be permitted to sell or mortgage the property.

The mortgage was given to secure any balance which might be due from Stanley personally, and also to secure any balance which might be due from him as a trustee. The fact that it provided for his personal liability is not material, for the judgment provided only for the liability he had incurred as trustee of the estate. The promissory notes for which the mortgage was adjudged to be security were all made by Stanley as such trustee, and were either payable to the mortgagees personally, or they were liable thereon as indorsers or guarantors, and their liability upon the paper had been fixed by due notice of protest.

The trustee failed to appropriate the money for the benefit of the property, but for this failure the plaintiffs, who advanced the money, were not responsible. They were not required to see to the application of the moneys raised upon the mortgage. “ No person who shall actually and in good faith pay a sum of money to a trustee which the trustee as such is authorized to receive shall be responsible for the proper application of such money according to the trust, nor shall any right or title derived by him from such trustee in consideration of such payment be impeached or called in question in consequence of any misapplication by the trustee of the moneys paid.” 1 R S. p. 730, § 66.

The history of this case shows many errors and irregularities,— many of them of quite serious import; and, while the case is not free from serious doubts, we are of the opinion that the judgment was correct, and that is should be affirmed, with costs to be paid out of the proceeds of the mortgaged property.

All concur.