text:
    JOHN J. LANDERS, Plaintiff, v. THE FRANK STREET (Otherwise Called the Sixth) METHODIST EPISCOPAL CHURCH, OF THE CITY OF ROCHESTER, Defendant.

      iSalary of minister — § 8, chapt. 60 of 1813 — Implied promise — lohen action lies on.

    Section 8 of chapter 60 of the Laws of 1813, providing how the salary of a minister is to.he determined, does not prohibit another method of determining it than that therein prescribed.
    Where a minister has, at the request of the proper authorities of the church, entered upon the discharge of his duties, under an understanding that he is to be compensated, and has performed them, and is appointed by his bishop for a second year with the knowledge of the trustees and the congregation, and performs the duties of the office, a promise is implied against the corpora- ' tion to pay him therefor, upon which an action will lie in his favor.

      Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit directed at the Monroe Circuit.
    The plaintiff was a Methodist minister, and brought the action to recover for a balance claimed to be due him as salary, for his services for the years 1873 and 1874. He entéred into the performance of his services, pursuant to an appointment by the General Conference and upon the request of a committee of the church. He performed the services, and discharged the duties, pertaining to the position of minister in the edifice and congregation represented by the defendant, and claims to recover $2,000 for the first year, and $1,800 for the second year, less payments amounting to $2,988.84, leaving a balance of $811.16.
    ■ The complaint states: first, the incorporation of the defendant ■under the laws of the State; second, that plaintiff, as minister, “ was employed by the defendant as pastor of the church of the defendant, and of the congregation worshiping there; and third, the performance of services for the defendant at its request, and in its employment for two years;” fourth, that the defendant, in consideration of such services, promised and agreed to pay the plaintiff therefor for the first year $2,000, and the second year the sum of $1,800. The answer contains: first, a denial; second, a defense of payment; third, a counter-claim for use of the furniture and the furniture destroyed.
    The plaintiff was sworn and testified to the circumstances attending his employment, performance of the services, the partial payment, that he was waited upon by a committee of Frank Street Methodist Church, and that they invited him to take charge of the church; that he consented to; that he was appointed to take charge; that they told him they would make ample provision for him. He said “ that on the 15th of November a quarterly conference of the church was held, and a committee of that church was appointed after consulting with me to fix the amount of salary; the amount of salary was then estimated at $2,000, and that estimate was accepted and confirmed by the quarterly conference, and accepted by me.” This conference was composed of “ the elders who represented the society; the stewards, who represented the congregation; the trustees, who represented themselves.” He then testified that the practice in fixing the salary .of Methodist ministers, “is to make any contract they please, it is always varied according to circumstances, the ability of the church, and the requirement qf the person making the contract witfi them; there is no rule whatever in that respect that I am aware of.7 He was appointed by the Bishop fqr the secqnd year; a letter was sent requesting his appointment, .and he returned fo the charge from the conference, for, and staid the second year.
    Much evideucq w.^ given ill respect *9 a yqte by thp congregation as to tke discipline qf thq chprck, .especially as to fixing the salary, agd as to t]ie pqwers of the rpsppptive $yiklop¡9, and tfh® regulations of the church. At the close of the evidence, the plaintiff requested to gq to the jury upon the question of the contract, claiming that fhe evidence was sufficient and clear that there was a contract by the corporation defendant to pay the amount claimed in respect to each year.
    This was refused, and the plaintiff excepted. The .court then ■ granted a nonsuit, and the plaintiff excepted thereto.

      J. O. Cochrane, fqr the plaintiff.

      Edward Webster, for the defendant.
   Hardin, J.:

• The evidence indicated that the plaintiff was requested regu- ■ larly to take, care of the charge, ill accordance with the discipline of the Methodist Church, as a minister of the Gospel, and that he complied with the request aiid entered upon the discharge of the duties, under ail understanding that he. shpuld be compensated, and that at the close of the first year, he was reappointed in and continued ill the discharge of his duties;. Such performance of his duties was with the knowledge of the trustees of the defcnd■ant, and the congregation worshiping in the defendant’s edifice; and the plaintiff thus became entitled to the compensation which he earned in the performance of such services. (Dunn v. St. Andvew's, Church, 14 Johns., 118.) It. was held in that, case that assumpsit lies upon an implied promise against corporations. If the employment and the, performance are. with the knowledge and acquiescence of-those Avho are authorized by the corporation or who are authorized to act for it, it is bound to recompense the person performing the services. (Hooker v. Eagle Bank, 30 N. Y., 86.) Receiving the services, as in this case, after a request, gives rise to an implied assumpsit. (Fister v. La, Rue, 15 Barb., 323; Peterson v. Mayor, 17 N. Y., 449.) The complaint contained such a statement of facts as would justify, upon the evidence received, a recovery predicated upon an implied promise to pay for the services which had been performed by the plaintiff as minister. The Code only requires the facts which constituted a cause of action to be averred.

The learned counsel for the defendant cites us to the 8th section of the 60th chapter of the Laws of 1813, and claims that there was no contract made in the mode prescribed in that section. (3 R. S., 693, § 8 [Edm. ed.].) That section provides that the salary “shall be ascertained by a majority of the persons entitled to elect trustees, at a meeting to be called for that purpose, and guch salaries, Avhen fixed, shall be ratified by the said trastees, or a majority of them, by an instrument in Avriting, under their common seal, which salary shall thereupon be paid by the said trustees out of the reArenues of such church, congregation or society.”

That does not prohibit any other mode of contracting, and it must be borne in mind that Ave are not considering an executory contract. Here the services have been performed, it must be presumed, upon the evidence, in the presence of the congregation and of the trustees. They have had the benefit of the services, and, according to the cases cited (supra), the corporation has become liable upon an implied assumpsit. Even, if the original employment Avas by unauthorized agents, the corporation could ratify their acts, and such acqiescence, as avías presented by the evidence, would justify an inference of a ratification. (Hoyt v. Thompson’s, Ex’r., 19 N. Y,, 207.) Besides, the corporation had poAver to Avaive any formality in the execution of a contract made for its benefit. (Barnes v. Ontario Bank, 19 N. Y. 169; Trustees of F. B. Church v. B. F. Ins. Co., 19 id., 311.) The evidence Avas somewhat conflicting as to the requirements of the discipline, in respect to the salary of the minister, and that difference among the brethren as to its requirements, as Avell as all the other disputed questions, should have been submitted to the jury, and the nonsuit was therefore improperly granted, and should be set aside and a new trial ordered, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred. •

New trial granted, with costs to abide the event.


source: Caselaw Access Project

author: IIaudxn, J.:

license: Public Domain

text:
    GRIFFITH J. GRIFFITH, Respondent, v. SAMUEL ROBERTSON, Appellant, Impleaded with ARTHUR B. MEEKER and others.

      Guaranty against loss — liability thereon — Laehes. '

    The owner of a mortgage, upon assigning the same, executed the following guaranty: “ For a valuable consideration I hereby agree to, and do hereby guaranty, G. J. Griffith (the assignee) against loss from this mortgage.”

      Held, that the guaranty was limited to the amount paid on the assignment, and that the act of the plaintiff in delaying unreasonably the collection of the mortgage, during which time the property described in the mortgage depreciated in value, released the mortgagee from all liability on his guaranty.
    Appeal from a judgment, entered in Oneida county upon the trial of this action by the court without a jury.
    This action was brought on the equity side of the court to foreclose a mortgage (which the defendant, Robertson, had assigned and guaranteed) and to enforce any deficiency, that might remain after the sale of the land and exhausting remedies against the mortgagor, out of the defendant, Robertson, on his guaranty. The court found the amount due, and ordered a foreclosure and sale, and payment of the costs out of the proceeds, application of the balance to the mortgage debt, the enforcement of the mortgagor’s liability in this action; and after that, the judgment declares that the defendant, Robertson, is liable to pay, and that judgment may then be enforced against him for any such final deficiency.
    The only question brought up by the appeal is as to Robertson’s liability upon his guaranty.

      Q. J. Fowler, for the appellant.

      Seymour <& Weaver, for the respondent.
   IIaudxn, J.:

By section 152, 2 Revised Statutes, 199 (Edm. ed.), it was provided that all bills “for the satisfaction of a mortgage,” the court shall 11 have power to decree and direct the payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the premises, in the cases in which such balance is recoverable at law.” * # .*

Section 153 provided that, “ after such bill shall be filed, .and while the same is pending, and after a decree rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any part thereof, uidess authorized by the Court of Chancery.” These sections of the Revised Statutes seem to be in force. (Scofield v. Doscher, 17 N. Y. S. C., 582; Equitable Life Insurance Society v. Stevens et al., 63 N. Y., 341.)

The 154th section of Revised Statutes provides that, “if the mortgage debt be secured by the obligation or other evidence of debt hereafter executed, of any other person besides the mortgagor, the complainant may make such person a party to the bill, and the court may decree payment of the balance of such debt, remaining unsatisfied after a sale of the mortgaged premises, as well against such other person as the mortgagor, and may enforce such decree as in other cases.”

Under those sections it was common to make the persons who had become sureties for the mortgage debt parties, and to decree their liability. (Suydam v. Bartle, 9 Paige, 294; Comstock v. Drohan, [15 Sup. C. R.], 8 Hun, 375; Leonard v. Morris, 9 Paige, 91; Coutant v. Catlin, 2 Sand. Chy., 489.) A subsequent action for deficiency could not be brought, except upon the consent of the court, and that consent might, in its discretion, be refused. (Scofield v. Doscher, 17 S. C. Reports, 583; Equitable Life Insurance Society v. Stevens, 63 N. Y., 341.) This practice was expressly saved and continued by section 167 of the Code, which excepts mortgage foreclosure cases from the rule inquiring causes of actions united to affect all the parties. The further provision is found in the section that a judgment for delicien y may be adjudged against the mortgagor where ho is liable personally for the debt; and also the further provision that, “if the mortgage debt be secured by the covenant or obligation of any person other than the mortgagor, the plaintiff may make such a person a party to the action, and the court may adjudge payment of the residue of such debt, remaining unsatisfied after a sale of the jmortgaged promises, against such other person, and may enforce such judgment as in other cases.”

Manifestly, this section was intended to preserve the practice in mortgage foreclosure eases, which was established by the sections of the Revised Statutes quoted. The defendant Robertson, when he sold the mortgage, executed an assignment thereof, and received, as the trial judge has found, the full face thereof; and at .the same time executed a guaranty, in the following words, viz.: “ For a valuable consideration, I hereby agree to, and do hereby guaranty G. J. Griffith against loss from this mortgage.”

Under such a guaranty, the liability of the guarantor must be limited to the amount paid and received as the consideration for its execution. (Goldsmith v. Brown, 35 Barb., 495; Jones v. Stuckbury, 1 Barb. Chy., 250.)

We think the instrument executed by the defendant Robertson must be construed, and held to be a guaranty of collection. In such a guaranty, it is a condition precedent that the creditor shall diligently endeavor to collect the amount of the principal debtor, by exhausting the ordinary legal remedies for that purpose, and a failure to do so works a discharge of the guarantor.

This doctrine was laid down by Talcott, J., in Northern Ins. Co. of N. Y. v. Wright (20 N. Y. S. C. Rep., 168), and cases sustaining the doctrine .are there cited. (See Keys v. Tifft, 1 Cowen, 98; Craig v. Parkis, 40 N. Y., 181; Moakley v. Riggs, 19 Johns., 69; Loveland v. Shepard, 2 Hill, 139.) And in such cases np request on the part of the creditor is necessary. There seeins to have been unreasonable delay upon the part of the creditor. During that delay, the property covered by the mortgage largely depreciated in value, thus lessening the security of the mortgage.

We think the learned trial judge fell into an error in allowing the plaintiff to recover a juclgmput against the guarantor, the def'end-.ant Robertson; and so far jas the judgment affects him, it is grroneous, and should be reversed.

Talcott, P. J., and Smith, J., concurred.

Judgnient as to Robertson reversed, and new trial ordered, With costs to abide the event.


author: Mullin, P. J.:

text:
    CHARLES W. BABCOCK, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Indictment for false representation — prosecution must §hpv> falsity of — Upon total failure of proof, conviction reversed — Right of defendants to separate tmals— 'When physician excused from testifying — When party inay deny fraudulent intent.

    The dpfendant was ipdicted and committed for conspiring to obtain, by false and fraudulent pretences, a promissory note for ¡£50 from one Haskpll, the representations being that one Jennie McKee was with child by him, and that if he flid not give the note, she would charge him as its father.

      Held, that it rested upon the prosecution to proye that each of the representations were false, and that it was not incumbent upon the defendant to prove their truth.
    When the public prosecutor fails to prove some fact, on the trial, that is necessary to, be proved in order to justify a convictiop, his omission so to do must b,e then pointed out, and if it is not, it cannot be subsequently taken advantage of pn appeal; but where there is in fact no legal proof o.f the offense charged in the indictment, it is the duty of the court to direct averdict in favor of the accused, and if it fail to direct such vprilict, it is the duty of the appellate court tp rpverse the judgment, even though thp point was not raised upon the trial.
    Where two or more defendants are jointly indicted for a felony, either one is absolutely entitled to a separate trial if he demands it.
    Where, after a jury has been impanneled and a witness sworn, one of the defendants is ordered to be tried separately, thp juyy and witness must be re-sworn.
    To excuse a physician from testifying, under 2 Revised Statutes, 406, section 73, it must appear that the information was acquired while He was being consulted professionally to obtain medical assistance.
    Where a fraudulent intent is imputed jq a person, or forins an element of a crime with which he is charged, he may deny the fraudulent intent, whether the effect is to defeat the action or to diminish the damage or punishment.

      Certiorari to the Court of Sessions of the county of Allegany to review the. proceedings on the trial of the relator, upon an indictment for a conspiracy to obtain, by false and fraudulent representations, from one Dwight W. Haskell a promissory note, dated the 25th day of March, 1875, for the sum of $50, payable at four months. The representations .alleged were, that one Jennie McKee was with child by said Haskell, and that unless the note was given she would charge the paternity of the child on him.
    The relator was indicted jointly with Hiram P. Mervillc, but after the jury was impanncled, Mervillc’s counsel moved that he be tried separately; the motion was granted and relator’s counsel excepted. The trial of the relator proceeded, and the people gave evidence tending to prove that a young girl, by the name of J ennie McKee, resided in the family of the defendant Babcock, in Centrcville, in the county of Allegany, about the 22d of March, 1875. On that day Babcock went to Haskell’s house and requested him to call at Babcock’s house. The next day Haskell called and was taken by Babcock through the house to the barn, and was then told that Jennie said she was in the family-way, and that ho was the cause of it. Haskell told Babcock ho did not believe she would say so to him, and proposed to talk with the girl in the presence of Babcock and his wife.
    Some effort was made to induce the girl to have an interview with Haskell on that occasion, but without success, Babcock saying she would not see him. Haskell then went out of doors, and Babcock said to him I guess it is you; have you promised J ennie you would fill her teeth if she would go to bed with you? Afterward Babcook went to Haskell’s, and handed him two dollars to pay for the teeth. Babcock advised Haskell to go and see Dr. Mervillc as soon as he could. In the evening of the 24th of March, Merville and Haskell went to Babcock’s. Haskell proposed to see J ennie, and she came where they were and accused Haskell of being at Babcock’s the 20th of February, and having connection with her. Haskell then said to Babcock, if she agreed to go to bed with him, why did she send him the dollar and a-half ? She said she did not; that Babcock had paid the twelve shillings. Babcock said he paid it. of lfis own accord; that he got the money out of her pocket, and she did not know it. In the barn Babcock told Haskell that if he did not attend to it, she was going to swear the child on him, and she would bo believecl before he would. The same night Babcock went to HaskelL’s house, after he had gone to bed, and got him up.
    Babcock said the doctor (Merville) was going home, and wanted to know if Haskell wanted to see him. He told him he guessed not. Babcock said: “You send up $50,and you shall not have any further trouble.” Haskell said he had no $50 to send up. Next day he went to Babcock’s, where Merville was, and was by him invited to go out with him, and they went to the barn and had a conversation. He testified that while in the barn, Merville said to him, 1 ‘ I suppose you know what Babcock was down for the night before, and wanted to know if I would not give him a due-bill for the money.” He said he did not want to do any such thing, and would not. Then Merville drew a note, and Haskell signed it, and was not to have any trouble about the Jennie McKee matter.- The doctor said so. The note was payable to Merville ; Merville wanted the $50 to clear Haskell.
    Dr. O. P. Crane was examined on the part of the people, and testified that he practiced medicine, and that Babcock came to him for medicine. Babcock’s counsel objected, on the ground that the conversation was a confidential one, and hicom-' petent and immaterial. The objections were overruled, and Babcock’s counsel excepted.
    The witness then testified that about last of January or first of February, Babcock came to -his- office and asked him if he had' something good for a lady that had taken cold. Understood him to say Jennie had taken cold by mopping and getting her feet wet. He said it was suppressed menses, and he wanted something to bring her around. Ho let him have the medicine. Babcock brought the medicine back, and said it was for his wife, and was not given because she was in the family-way. It was brought back inside of a month, and before he heard the charge against Haskell.
    Dr. Boddy testified that he was a practicing physician, and knew Babcock ; that ho concealed himself at Babcock’s barn, and overheard the conversation at Babcock’s barn between Merville and Babcock. It was in the evening, between ten and twelve o’clock of the sixth or seventh of April, and after the scandal was out. Merville- said to Babcock: 11 Do you suppose there is any chance for them to get a hook on me in this matter ?” Merville said if there was, he was afraid he should get into trouble. He told Babcock to take Jennie to Smith’s Hotel, and he would facet him there, and it would be all right, and wlien Babcock got back they would have Haskell arrested for rape: Babcock said, we will get this note in the hands of a- banker for' collection; Babcock then told Merville that hé had hád cónnection with the girl,- but had not got her in the family-way.
    When the people rested, the district attorney, with the consent of the court, reserved the right to examine two witnesses named by him when they should come into court. This was objected to by Babcock’s counsel, alud the objection- was overruled.
    On the examination- of Babcock in his own behalf, he testified that Merville told him that Haskell had loft- word to be sent for if he (Merville) concluded to go home- that night. Babcock’s counsel then offered to show all that was said by Merville to Babcock on the subject of going to Haskell’s. The district áttorney objected to the evidence,, and it' was excluded, and Babcock’s- comise! excepted.
    Babcock’s counsel asked Babcock the following, question: “ Did you state' anything to Haskell that you knew or believed to be false up to the 24th March ?” The' district attorney objected,the objection was sustained, and Babcock’s counsel excepted.' Babcock further testified that lie had a couversatioh with Merville on the 8th April, in the night. Merville wanted to know what was to be done about the Association matter; he said that the money he had got- to pay for the music must be paid, and that Babcock told him he had a note payable to his father ; that he could indorse and put in bank, and get the money. Babcock produced the note ho had spoken of to Merville, and was asked to read it. Babcock’s counsel said it was offered to identify the conversation in the barn, and as corroborative of his side of the case. The district attorney objected, the objection was sustained, and Babcock’s counsel excepted. Babcock’s counsel called Merville as a witness, and he was objected to on the ground that, being jointly indicted with Babcock, he was not a competent witness. The objection was sustained, and Babcock’s counsel excepted. Babcock’s counsel asked the court to charge the jury that if Babcock believed in good faith that this girl was pregnant by the fault of Haskell, whether he was in error or not, he is entitled to an acquital. If he believed it was so, whether the fact was so or not, he cannot be convicted unless he acted on-a known falsehood. The court said, in reply, that is so unless-— and there is this other fact that the machinery of nature- had been put in motion prior to the time this note- was given. Babcock’s counsel then asked the court to charge that there was no' evidence of any attempt to commit an abortion on the girl. The court replied: “I do not understand that it is a crime to dislodge.a foetus four weeks old. Babcock’s counsel excepted to the-remark made by the- court, and the court then said : “I will take it back then.” Babcock’s counsel then said: We except to your honor saying that, and also to your taking it- back. The jury then retired, and after deliberation brought in a verdict of guilty.
    Sentence was suspended, and a certiorari allowed and served.

      Geo. W. Daggett, for the plaintiff in' error.

      C. FT. Flenagin (District Attorney), for the defendant in error.
   Mullin, P. J.:

The indictment charges that the defendants named in it did unlawfully conspire, etc., by divers false pretenses, etc., to obtain from Haskell his promissory note for $50; and in pursuance of such unlawful combination, Babcock, one of said defendants, did falsely, etc., pretend to Haskell that one Jennie McKee was in the family-way, and that she was about to disclose and make public the fact, and to charge the paternity of the child upon him,- and if he would pay to Babcock or Merville the sum of $50, or give him or them his note for that amount, Merville would immediately procure the miscarriage of Jennie, and that, would end the whole trouble, and keep the story as to the paternity of the child from the public; and, by means of these false pretenses, they procured the note of said Haskell, and the indictment proceeds to aver that in truth and in fact Jcnnie was not in the family-way, nor was she about to disclose and make public the paternity of said child, and charge it on said Haskell.

It was incumbent on the public prosecutor to prove some one, or all of these representations and their falsity, in order to convict the defendants or either of them.

The indictment alleges the falsity of but two of the representations, to wit: That Jennie was not in the family-way; and was not about to charge Haskell with the paternity of the child; and the prosecutor is bound to prove the representations alleged to be false, and he is confined to the representations so alleged to be false. (The People v. Stone, 9 Wend., 182, 191.)

It is not proved that she was not with child. She alleged that she was, and because it does not appear that a child was born, it does not follow that she was not with child when the representation was made.

Again, it is not proved that she was not about to charge upon Haskell the paternity of the child. It was not for the defendant to prove the truth of the representations. It was incumbent on the public prosecutor to disprove them, and unless he did the defendant was entitled to an acquittal.

No objection was made on the trial that the prosecution had failed to prove the offense as charged in the indictment; but when there is total failure to prove the offense, the omission of the counsel of the accused to call the attention of the court and the public prosecutor to it, does not deprive the accused of the right to raise the objection in any stage of the case, and demand an acquittal. It would be a gross outrage upon the rights of a person accused of crime to convict and punish him for an offense that it had not been proved he had committed, because his counsel had negligently omitted to insist upon the trial that the offense charged was not proved.

When the public prosecutor fails to prove some fact on the trial that is necessary to be proved, in order to justify a conviction, the prisoner’s counsel must call the attention of the court and counsel to the omission ; and if he does not, and conviction follows, the prisoner cannot afterward insist upon the defect of proof as a ground for reversing the judgment. But when there is in fact no legal proof of the offense charged in the indictment, it is the duty of the court to direct a verdict in favor of the accused, or upon appeal to reverse the judgment.

In this case, if my view of it is correct, there is an entire defect of proof, and a new trial should be granted; but as this point has not been discussed by the counsel, a reargument must be ordered, unless error is found in some of the rulings of the court, and a new trial shall be ordered for such error.

After the jury was impauneled to try both defendants, and a witness was sworn, the counsel for the defendant Merville moved that defendant Merville be tried separately; the counsel of defendant Babcock objected; the objection was overruled, and a separate trial ordered. The counsel for defendant Babcock excepted.

The offense for which the defendants were indicted is a felony. 3 Revised Statutes (5th od.), 956, section 55, and by section 22 of same volume, 1028, it is provided that when two or more defendants shall be jointly indicted for any felony, any one defendant requiring it shall be tried separately. Merville had the absolute right to a separate trial, and it could not be refused him. It would have been a ground for refusal, if the court had any discretion in the premises, that the demand came too late. (Wharton’s Criminal Law, § 433.) Bxit the court yielded to the requirements of the statute, and we must presume that the proceedings subsequent to the granting The separate trial wore in conformity to law. If it appeared that ¡the jury or the witness was not again sworn, the one to try and the other to give evidence, in the case of The People v. Bahcock, a new trial should be granted. To swear the jury and witnesses in a case against two defendants, when only one was on trial, is a mis-trial, and a new trial should follow.

The exception to the questiou by the prosecution to Ilaskcll, ■whether his conversation with Merville was on the same subject that the one with Babcock was, was a valid one; but the question does not seem to have been answered, and therefore the defendants sustained no injury. The witness related a conversation between himself and Merville, after the objection just considered was overruled, and he may have done so in answer to the. question objected to; but it was not responsive to the question that called for the answer yes or no, and not for the detail of the conversation. The evidence given was not objected to. An exception was taken by defendant’s counsel to the admission of a conversation between Haskell and Dr. Boddy in relation to a note. The witness in his answer does not allude to a note; and if it was incompetent to give evidence in regard to a note, no wrong was done to the defendant, as a note was not spoken of by him in answer to the question objected to.

Dr. Crane was examined in behalf of the people, and was asked by the district attorney whether he had an interview with defendant, at a time named, when ho came for medicine. The defendant’s counsel objected to the evidence, on the ground that it was a confidential communication to a professional man. The objection was overruled, and the witness answered that he did. • The question was competent, as it did not call for any communication made by defendant to the doctor. It ivas asked to ascertain whether the witness had an interview with defendant when he wanted medicine.

The defendant then objected to all the interview and to all the conversation then had. The witness proceeded to state the conversation, and in it he said defendant told the doctor he wanted medicine for Jennie, who had taken cold and was suffering from suppressed menses, and that subsequently, in about a month, the medicine was returned, and defendant told the doctor that the medicine was for his wife, and was not given because she ivas pregnant. Section 104, of 3 Ecvised Statutes, (5th ed.) 690, only prohibits physicians and surgeons from disclosing' information, acquired in attending any patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician or do any act for him as a surgeon. The physician was not excused from testifying. The defendant was not consulting him for himself, nor does it appear that he was representing any one else who needed or desired medical assistance. (Hewit v. Prime, 21 Wend., 79.) Haskell was at defendant’s with Merville, and left and went to his house, and defendant followed him at request of Merville. Merville told defendant that Haskell left word to be sent for, if he (Merville) concluded to go home that night. The defendant then offered tc. fehow all that was 'said by Merville on the subject of going to Haskell’s. The district attorney objected to the evidence, and it was excluded, and defendant’s counsel excepted. The evidence was clearly incompetent, and was therefore properly excluded.

The question to defendant, whether he stated anything to Haskell that “ you believed or knew to be false,” was improperly excluded. When a fraudulent intent is imputed to a person, or forms an element of a crime with which he is charged, he may deny the fraudulent intent, whether the effect is to defeat a cause of action or lessen the damages or punishment which may be inflicted. In this case a fraudulent intent was imputed to the defendant, and he had the right to repel it by his testimony. (Seymour v. Wilson, 4 Kern., 567; McKown v. Hunter, 30 N. Y., 628, and cases cited. The defendant’s counsel offered Merville, his co-defendant, as a witness in behalf of Babcock. The district attorney objected to his competency, being a co-defendant. The objection was sustained, and the witness excluded.

When the cause was tried (January 14, 1876), a person jointly indicted with another was not a competent witness for such other. (Patterson v. The People, 46 Barb., 625; Taylor v. The People, 12 Hun, 212.) The passage, on the 27th April, 1876, of a statute making a co-defenda?it a competent witness for the other, does not relate back and' render the decision erroneous. The court-has no power to order a new trial merely to enable the co-defendant to be examined.

I have thus considered all the points discussed by the relator’s counsel, and am of the opinion that the court below erred in regard to but one of them ; and by reason of that error the conviction must be reversed, and a new trial granted in the Allegany Sessions, to which the proceedings are remitted, with directions to proceed and retry said cause.

Present — Mtjllin, P. J., Talcott and Smith, JJ.

Conviction reversed, and new trial granted in the Allegany County Sessions, to which the proceedings are remitted, with directions to retry prisoner.


text:
    JONATHAN M. DAKE and MOSES W. DAKE, Respondents, v. WILLIAM S. MILLER, Appellant.

      Objection to jurisdiction of County Court— when it must be raised.

    The objection that a County Court has m.fc jurisdiction over the person of the defendant must be raised at the first opportunity, and is waived by his appearing in the action and pleading to the merits.
    Appeal from a judgment in favor of the plaintiffs, entered •Upon the report of a referee, and from an order of the County Court of Livingston county denying a motion for a new trial, made upon a case and exceptions.
    This action was brought in the County Court of Livingston county to recover the balance due on an account for goods, etc., sold and delivered.
    There was no averment in the complaint that the defendant was a resident of the county. The defendant appeared and answered, ’admitting the copartnership of the plaintiff, setting up a countcr'claim, and denying all allegations in the complaint not admitted. The issues were referred and brought to trial before the referee. After a witness was sworn, the defendant’s counsel moved to dismiss the action, because it did not appear by the complaint that 'defendant was a resident of the county of Livingston at the time 'the action was commenced. The motion was denied, and defendant’s counsel excepted. The plaintiffs then gave evidence in support of this cause of action. When they rested, defendant’s counsel renewed his motion to dismiss the action, on the ground that the court had not jurisdiction, the complaint not showing that defendant was resident of the county where the action was brought at the time it was commenced. The motion was again denied, and defendant’s counsel excepted. The referee ordered judgment in favor of the plaintiffs for $66.62 damages, besides costs.

      F. O. Peck, for the appellant.
    The County Court, being a court of limited or inferior jurisdiction, nothing can be intended to be within its jurisdiction but what is expressly alleged to be: so,, and those who claim any right under such a court are bound to show affirmatively that it had jurisdiction, and every part of what, is the gist and substance of the action should appear to be within its jurisdiction, (Note 3 to case of Peacock‘ v. Bell, 1 Saunders, 95 ; Mills v. Martin, 19 Johns., 33; JDemingY. Oorvoin, 11 Wend.,. 647 ; lloose v. Sherill, 16 id., 38 ; Sheldon v. Wright, 1 Sold., 511, and cases cited; Frees v. Ford, 6 N. Y. 176 ; Burns v, O’Fiel, 10 Hun, 495 ; Turner Adm’rs v. Bank of Forth America, 4 Dallas 8, in Cond. U. S. It., 205 ; Turner v. Fnrille, 4 Dallas, 7 ; Bingham v. Gabot, 3 Dallas, 10, in Cond. U. S. R., 13, 210; McCormick v. Sullivan, 10 Wheaton, 192, in Cond. U. S. R., 70.). The objection to jurisdiction can be taken at any stage of the case, and a motion before a referee for that purpose is proper. Goffin v. Reynolds, 37 N. Y., 640 ; Valarino v. Thompson, 7 id., 576; Davis v. Packard et al, 7 Peters, 276.) The appearance of defendant and pleading to the merits, without raising any objection to the jurisdiction by demurrer or answer, does not present a question of jurisdiction over the person. ('Harriott v. Fevj Jersey R. R. Go., 8 Abb., 286 ; Dudley v. Mayhew 3 Comst., 12 ; Burckle v. Eckhart, 3 id., 137.)

      George W Daggett, for the respondents.
   Mullin, P. J.:

By section 15 of the judiciary article of the Constitution, adopted in 1869, the county courts have jurisdiction in all cases whore the defendants reside in the county, and in which the damages claimed do not exceed $1,000, and such other jurisdiction as the Legislature may from time to time confer.

In 1870 the Legislature enacted as follows: The county courts, in addition to the powers they now possess, shall have jurisdiction in civil cases when the relief demanded is the recovery of a sum not exceeding $1,000, and in which all the defendants are residents of the county in which the action is brought at the time of its commencement. Neither the constitutional provision nor the legislative enactment requires the fact of residence to be alleged in the complaint. But the Court of Appeals in Frees v. Ford (6 N. Y., 176), held that the comity courts were courts of inferior jurisdiction, and to give validity to a judgment of one of them all the facts necessary to confer jurisdiction, as well over the subject-matter of the suit as of the parties, must appear in the record. Unless there is something in this case to take it out of the operation of the case cited, the judgment must be reversed. Jurisdiction over the subject-matter of an action cannot be conferred by consent. (Heyer v. Burger, 1 Hoff., 1; Dudley v. Mayhew, 3 N. Y., 9.) But jurisdiction over the person may be acquired by express consent or by not objecting to its exercise. (Bucklin v. Chapin, 53 Barb., 488; Burckle v. Eckhart, 3 Comst. 137.) The objection that the court has not jurisdiction of the person of the defendant must be made promptly. It would be oppresive to permit him to lie by until costs had largely accumulated, before objecting that jurisdiction of his person had not been obtained.

The objection, if well taken, terminates the suit and subjects the plaintiff to the costs of the action. A plaintiff can, in a majority of cases, ascertain before suit brought the situs of property, but he cannot, m very many cases, ascertain the residence of a person whom he desires to sue. Residence depends not unfrequently on intention. This it is very difficult, if not impossible, for any third person to ascertain. Hence it is that, defendants have been required to raise the objection to the jurisdiction of the courts over their persons at the first opportunity, and that appearing in the cause and pleading to the merits have been held to be waivers of the objection to’ the jurisdiction.

It is unnecessary to enter into an examination of the question presented by the appeal in this case. ■ It has been frequently before this court, and m every instance it has refused to give effect to the objection. (Burling v. Freeman, 2 Hun, 661; Clyde & Rose Plank Road Co. v. Parker, 22 Barb., 323; Burton v. Wheeler & Wilson Mfg. Co., Weekley Dig., Vol. 5, 384; Olcott v. McLean, N. Y. Weekly Dig., Vol. 6, p. 292.)

The judgment and order of the County Court must be affirmed.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment and order affirmed.


text:
    MERCHANTS' BANK, Respondent, v. ROMEYN FREEMAN and NORRIS WINSLOW, Appellants.

      Chapter 163 of 1870 — when whole intes'est forfeited by usury — partial payments — how applied.

    Under section 1 of chapter 163 of the Laws of 1870, the forfeiture of the whole interest, when more than lawful interest has been reserved, is enforceable only in actions brought to enforce the usurious contract.
    Where a general payment is made upon a note, it is applied first to the extinguishment of the interest, and the balance to the reduction of the principal.
    Appeal from a judgment in favor of the plaintiff, entered in Jefferson county upon the report of a referee.

      O'Brien <& Emerson, for the appellants.

      McCcirtin & 'Williams, for the respondent.
   Mullin, P. J.:

• The plaintiff brings this action to recover the amount due on two promissory notes for $1,000 each, one dated 6th August, 1875, at five months, and the other dated 8th October, 1875, at ■two months, to the order of the defendant Winslow, at the Security Bank, in Watertown, Winslow indorsed the same, and they were delivered to and discounted by the plaintiff. They were not paid at maturity, and the indorser was duly notified of demand and protest of the same.

The defendants, in their answer, allege that in February, 1873, the plaintiff discounted, for defendant Freeman, notes amounting to $12,000 These notes wore not paid and were protested. In July of that year, an agreement was entered into that the protested notes should be retained by the bank, and Freeman should be charged with interest every three, months, at the rate of ten per cent per annum. Payments were thereafter made from time to time by Freeman, and the unpaid usurious interest added to the principal until August, 1875, when Freeman paid to plaintiff $600 of usurious interest. On the 6th August $4,000 were found due to plaintiff, including usurious interest, and to secure that sum he gave his four promissory notes for $1,000 each, which Winslow indorsed for the accommodation of Freeman. Two of the said notes are those described in the complaint. When these four notes were given, the notes for $12,000 above mentioned were surrendered.

The answer demanded that the complaint be dismissed with costs, and that an account be taken of the interest paid on said notes and that it be deemed forfeited, and that defendants recover double the amount of usurious interest paid, and that the whole amount thus forfeited be applied in satisfaction of said notes. The referee finds the facts as alleged in the complaint and as alleged in the answer, except that in October, 1874, Freeman paid to the plaintiff on the notes, then past due, $1,000, and on the 9th July, 1875, $500; that on the 6th August, 1875, the amount still due on the notes was ascertained, the interest being computed at ten per cent, and Freeman paid to plaintiff $963.34, together with the four notes mentioned in the answer. The referee also finds that the excess of interest, over and above seven per cent per annum, paid by Freeman to the plaintiff, after the 16th March, 1874, was $390.27.

As conclusions of law, he finds that the notes described in the complaint are valid securities, and plaintiff is entitled to recover thereon. That Freeman is entitled to recover twice the excess over seven per cent that plaintiff received during two years prior to the commencement of the action, amounting to $828.58, and plaintiff is entitled to receive the amount of the two notes, less said last-mentioned sum, and judgment was entered accordingly, and from it defendant appeals. The deduction of twice the amount of the usurious interest, taken by the plaintiff during the two years preceding the commencement of the action, is concedédly right; but the defendant claims that, under section 1 of chapter 163 of the Laws of 1870, the whole amount of usurious interest taken by the plaintiff should have been allowed to defendant in reduction of the recovery.

The Court of Appeals holds, in Hintermister v. First Nat Bank (64 N. Y., 212), that the forfeiture of the whole interest, when more than lawful interest has been reserved, is enforceable only in actions brought to enforce the usurious contract. The referee does not find that any usurious interest was reserved or agreed to be paid on the notes in question; but,, on the contrary, he is of the opinion that the usurious interest must be presumed to be paid out of the payments made by Freeman, from time to time, on his debt to the plaintiff. When a debtor makes a payment generally, on a note, it applies first to the extinguishment of interest, and the balance may be sued for as principal. (People v. New York, 5 Cow., 331; Story v. Livingston, 13 Peters, 360 ; Lean v. Williams, 17 Mass., 417.)

The rule for the computation of interest, when partial payments are made, requires that the interest should be first paid when the payment exceeds the interest; and there is no exception, that I am aware of, to this rule of computation.

The referee holds that no part of the usury agreed to be paid entered into the notes on which the action is brought, because the payments made exceeded the usury, and the law applied the payment in satisfaction of the interest.

The judgment should be affirmed.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment affirmed.


author: Noxon, J.:

text:
    In the Matter of the Accounting of HORACE GROUT, Executor, etc., of ELLEN H. CARVER, Deceased, Appellant, v. JEROME J. CARVER and others, Respondents.

      JSxecwtor — when allowed costs of imsuecessfnl action.

    Where an action is brought against an executor individually to recover the price of a tombstone, ordered by him in pursuance of a direction in the will, and a judgment is recovered against him therein, which is paid by him, he is entitled upon his final accounting to be allowed the costs and disbursement included in the judgment in such action, and a reasonable counsel fee paid to his attorney, provided he acted in good faith in defending the action.

      Appeal by Horace Grout, executor, from so much of the ' decree of the surrogate of Erie eounty made on a final accounting, as rejected and refused to allow the executor $113,46, paid • out by him for legal expense.

      Thomas Oorbett, for the appellant.

      JJ. Lent, attorney for the respondents.
   Noxon, J.:

5 Horace Grout under the will of Ellen H. Carver, deceased, was •' appointed her executor. The will of the deceased made provision for tombstones for herself and brother Salmon. The executor contracted with one Hamilton for two sets of tombstones, one for 'the testratrix, and one for her brother, for the price of $130. ’Instructions were given by the executor to Hamilton in relation to the inscriptions which should be made on the tombstones. After the tombstones were completed, a disagreement arose between the executor and Hamilton as to whether the inscriptions made on the tombstones had been complied with in fulfillment of the contract. The result of the disagreement was that Hamilton brought an action in the Supreme Court against the executor individually to recover the contract-price of the tombstones. Grout, the defendant, interposed a defense to the action upon the ground that the work done did not comply with the contract.

A trial of the issue was had, and the plaintiff recovered a judgment for the price agreed to be paid, with $86.36 costs. This amount was paid by Grout, the defendant, and he also paid twenty-five dollars to his counsel, and $2.10 witness’ fees in the action, amounting in all to $113.46. A final accounting was had by the executor after the termination of said action, and on such accounting the executor claimed as part of- his account to be allowed such payments. The items were objected to on the ground that the action was not brought against the executor as executor, but against him personally. The surrogate, after hearing the matter, held and decided that the estate should not be charged with the costs and expenses incurred by the executor in resisting said claims, and disallowed said items, and a decree was entered to that effect by the surrogate. From said decree the executor appealed, from that portion of the decree disallowing said items of $113.46. On making his decision, the surrogáte 'stated that he was satisfied from the proofs that the executor did not exercise a sound discretion in resisting the claim of Hamilton, and that the verdict obtained shows that Grout, the defendant, had no valid defense.

It appears from the evidence taken on the accounting, that that the amount paid by the executor for costs of defense were the taxable items allowed by law, and that the amount paid to his attorney and counsel were reasonable, and that the item of $2.10 was paid for the fees of a witness. It also appears that the action was litigated, and that evidence was given on“ each side tending to show that, on defendant’s part, the contract was not performed, and on the plaintiff’s side that it was performed. Both parties testified that the inscription on the tombstone was not the one ordered by the defendant, but another one, ordered by Carver. Evidence was also given by plaintiff tending to show that the defendant accepted the tombstones after they were put up, and promised to pay for them the first of the following month ; and the evidence on the part of the defense tended to dispute the statements as to such acceptance and promise. It was also proved that, before putting in the defense, the defendant stated his defense to his attorney and counsel fully, and that upon such statement ‘ his counsel advised him to defend the action, and the defendant testified that the defense was interposed in good faith on his part.

The rule by which claims of this nature should be allowed seems to be fixed by section 3 of chapter 314 of the Laws of 1858, wherein it is provided that all necessary and reasonable costs and expenses paid or incurred by a trustee in good faith in any action by and against him, he shall be entitled to, and be allowed to recover from his principal or cestui que trust.

In Redfield’s Surrogate Pr., 394, after citing the act of 1858, he says such costs and expenses are allowable upon an accounting, and that it is a general principle that costs incurred by a trustee in jjrotecting the estate confided to his care should be reimbursed out of the estate, citing Young, Administrator, v. Brush, Executor (28 N. Y., 667), and other authorities. It is also laid down that the rule is not confined to cases where the action was in the name of the executor as such; but if acting in good faith for the benefit of the estate and under advice of counsel, they sue in a manner apparently beneficial to the estate and are subjected to costs, they may bo allowed’them as against the estate, citing Collins v. Hoxie (9 Paige, 81), to which should be added Moses v. Murgatroyd (1 John. Chy., 473). The trustee or executor is presumed to have acted in good faith, and in the absence of evidence of bad faith on his part is entitled to be reimbursed. The only question in this case is, did the executor act in good faith — ■ not whether he exercised a sound discretion in resisting the claims. The result of the case in no manner affected the question as to the motives which induced him to defend. The executor stated to counsel fully the facts, and under his statement his counsel advised him to defend.

There is no evidence upon the accounting showing bad faith. There was testimony, given by three witnesses for plaintiff, that the executor accepted the tomb-stones, and promised to pay, and the evidence given by the defendant disputed these statements. The grounds upon which the surrogate disallowed the claims were untenable, and so much of the decree entered upon the accounting disallowing the items specified in the petition of appeal should be reversed, and the proceedings in this court remitted to the surrogate of Erie county, with instructions to proceed and settle the accounts of the executor, by allowing him to be credited with the items disallowed amounting to $113.46, and that the appellant have costs of appeal.

Present — Talcott, P. J., Smith and Noxon, JJ.

That portion of the order appealed from reversed, proceedings remitted to the surrogate with directions to allow the items of executor’s account which were disallowed, with costs to appellant to be taxed and to be paid out of assets.


author: Noxon, J. :

text:
    In the Matter of the Petition of THE BUFFALO AND LOCKPORT RAILWAY COMPANY, Respondent, for the Appointment of Commissioners to Settle the Points and Manner of Crossing the Tracks of THE NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY, Appellant, and the BUFFALO & NIAGARA FALLS RAILROAD COMPANY.

      Commissioners to ascertain points of intersection of railroads — form of petition for appointment of— subd. 6 0/ § 28 of chapt■ 140 of 1850.
    Subdivision 6 of section 28 of chapter 140 of 1850, provides that where two companies cannot agree as to the points of intersection of their roads, and the compensation tobe made therefor, the same shall be ascertained and determined by commissioners ‘‘to be appointed by the court, as is provided in this act in respect to acquiring title to real estate.”

      Held, that the latter clause simply referred to the manner of appointment, and the practice of the court in such cases, and that it was not necessary to state in the petition the matters required to be stated for the purpose of acquiring title to real estate.
    Appeal by the New York Central and Hudson River Railroad Company from an order appointing commissioners made at the Erie Special Term.

      Albert P. Leming, for the appellant.

      S. P. (& G. W Bowen and B. Cj. Sprague, for the respondent.
   Noxon, J. :

The Lockport and Buffalo Railway Company presented a petition at a Special Term of the Supreme Court, held at Buffalo in the county of Erie, on March 28, 1878, for the appointment of three disinterested persons residing in the county of Niagara, or in some adjoining county, as commissioners to appraise and ascertain the compensation to be made to the New York Central & Hudson River Railroad Company for the damage occasioned to said corporation by the crossing and intersecting of the lands and tracks of said company, by the trades and railway of the petitioner for that purpose, said lands to be used in common by said railroad companies for their respective purposes, and to ascertain and determine the points and manner of crossing and 'intersection, and to fix the time and place of the first meeting of the commissioners in pursuance of the statutes.

The above petition was presented in pursuance of the provisions of section 15 and subdivision 6 of section 28 of the act authorizing the formation of railroad companies, and to regulate the same, consisting of chapter 14.0 of the Laws of 1850, with the amendments thereto. The petition stated all that ivas requisite to obtain the appointment of commissioners for the purpose named; the rights of the parties had already been fixed and determined by the statute in relation to the crossing and intersection, and the duty of the railroad to be intersected to unite with the railroad desiring to cross in forming the intersection and connection, and to grant the facilities of crossing. It appeared, from the petition, that the two corporations could not agree upon the amount of compensation to be made therefor, or upon the points and manner of such crossings and connections, and in such case commissioners are to be appointed by the court for that purpose, to ascertain and deteimine the same, as provided in the act iu respect to the acquiring title to real estate, and this provision simply refers to the manner of appointment and the practice of the court in such cases. It was not necessary to state in the petition the matters required to be stated for the purpose of acquiring title to real estate; all questions of jurisdiction and regularity are settled before the proceeding in question is had under the other provisions of the statute.

The answer interposed, and set up in opposition to the motion; in no way constituted a denial of the facts set up in the petition, and such answer constituted no defense to the motion. The petitioners were bound to show in the petition that they were a corporation formed under said act; that they desired to cross or intersect the railroad and grounds of the appellant, and that the corporations could not agree upon the compensation to be made therefor or the points and manner of crossing. The facts of such a petition, undenied as it was upon the motion, entitled the petitioners to an order for the appointment of commissioners. The order appointing commissioners should be affirmed, with $10 costs and disbursements.

Present— Smith and Noxon, JJ., Talcott, P. J., not sitting.

Order of Special Term affirmed, with $10 costs and disbursements.


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    ORRIN W. GRAVES, Administrator, etc., of REUBEN GRAVES, Deceased, Respondent, v. OBADIAH KING and PAMELIA KING, Appellants.

      Declarations of deceased, inadmissible in favor of administrator.

    In an action by an administrator, with the will annexed, to recover property of the deceased from persons claiming to own it by virtue of a gift from the testator, declarations of the deceased, inconsistent with such claim, are not admissible in favor of the administrator.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, rendered at the Chautauqua Circuit, and from an order denying a motion for a new trial, made upon a case and exceptions.

      Cook <& Lockwood, for the appellants.

      Morris & Russel, for the respondent.
   Noxon, J.:

The plaintiff, Orrin W. Graves, as administrator, etc., of Reuben Graves, deceased, commenced this action in or about the year 1875, against the defendants, for the conversion of $5,050, in greenbacks and national currency and gold coin, alleged to be owned and possessed by Reuben Graves, deceased, at the time of h's death, and claimed to have been converted after his death, in or about the month of July, 1873, in the county of Chautauqua. The defendants, by their answers, denied the complaint, and alleged that the property referred to in the complaint was, before and at the death of said deceased, the property of said Pamelia King, and had ever since been owned and possessed by her. The issue thus joined was tried at the Circuit in Chautauqua county, in September, 1875, before the court and a jury of said county. It appeared on the trial that Eeuben Graves died in March, 1873, at defendants’ residence in said county, at the age of .eighty-eight years; that he left a will executed in the State of Indiana, where ho resided, bearing date August 30, 1869, admitted to probate in said State in May, 1873, and that in July, 1873, letters of administration with the will annexed were granted to the plaintiff by the surrogate of Chautauqua county. The deceased came to the residence of the defendants about October 23d, 1872, and resided there until his death, about March 1st, 1873, the defendant Pamelia, was the daughter of the deceased and wife of the defendant, Obadiah King. The proofs of the defendants tended to show that the property in question was delivered and ■given to the ■ defendant Pamelia King, as a gift for her use and benefit, and that he gave it to her for what she had done, and what she had yet to do for him. The proofs of the plaintiff tended to show that the transaction at the time the gift was claimed to have been made did not take place, and also to show the mental weakness and incapacity of the deceased at the time of the alleged gift, and the proofs by the defendants tended to show the contrary. Upon the close of the evidence the case was submitted to the jury, and, after retiring and deliberation,.the jury rendered a verdict for the plaintiff of $4,730.04, upon which judgment was entered and a case and exceptions made by defendants. An appeal from the judgment and an order entered denying a motion for a now trial, was taken to the General Term of this court. The principal questions, raised upon the appeal, relate to objections and exceptions taken to the ruling of the court by the defendants, upon the offer and introduction of evidence allowed on behalf of the .plaintiff, and disallowed as to the defendants.

There are two important questions of evidence raised by • defendants; the first one relates to the testimony of Obadiah King, .called by the defendants. The defendants’ counsel asked the wit-mess : Do you know anything about this $5,050 ? Plaintiff objects, ;that witness -is-a. party defendant, and .that the liability of the husband for the torts of the wife still exists, notwithstanding the statute. The court. held-that the witness was incompetent to testify as to personal transactions between deceased and himself, but might testily as to any transactions between the deceased personally and his wife. The plaintiff and defendants both except. The defendants then proposed to examine the witness as to personal transactions which took place between himself and the' deceased on behalf of his wife; plaintiff objects as before, objection sustained by the court, and evidence excluded and defendants except.

The objection by the plaintiff as to whether the defendants knew anything about the $5,050 was clearly not good. The objection was, the witness was a party defendant, and that the liability of the husband for the torts of the wife still exist, notwithstanding the statutes. There is no reference made in the objection tó the provision of section 399 of the old Code,, and that objection, not being taken in the court below, cannot generally be raised on the appeal. But the witness was allowed to answer. The'court properly held that the witness was incompetent to testify as to personal transactions between the deceased and himself, but might testify as to any transactions between the docased, personally, and his wife. Up to this point there was no.error committed by the court of which defendants could complain. The defendants then proposed to examine the witness as to personal transactions which took place between the witness and the deceased, personally, on behalf of his wife'. The plaintiff objects, the same as before. The court, at this point in the case, under-standing that the objection raised related to the competency of the witness, under section 399 of the Code, excluded the evidence. It is true there are cases holding that an objection not taken at-the trial must, be regarded as waived under certain circumstances. Such was the case of Clark v. Bruce (12 Hun, 272). But in this case the decision of the court. was right, under the law, as it then existed,.and from the manner in which the question arose and was decided, the court must have understood the objection to be that the party was not competent to testify under the provisions of the Code.

The next objection and exception arises upon a question put to Orrin W. Graves, the administrator of Reuben Graves, by plaintiff’s counsel, as follows: What reason did he (Reuben Graves) give why he gave his property to his grand-children, instead of his children ? The witness had already stated that he had a talk frequently with him (Reuben), after he made his will, up to about one year and a half before he came to Chautauqua, why he made his will as he did. The defendants objected, on the ground, first, that the declaration of the deceased against these defendants, made at that time was inadmissible ; second, improper evidence to affect the rights of the defendants ; third, the declarations of the deceased are not admissible in favor of the plaintiff. The court overruled the objections and the defendants excepted, and the witness then stated the reason given by the deceased. The statements allowed to be given were the statements and declarations of the deceased in favor of the administrator in this action, against the party claiming title and ownership of the property in question.

The rule is well settled, by abundant authority, that the defendants in this action could have given the declarations of the deceased against the plaintiff in the action; and, on the other hand, the general principle applicable to the character of the testimony offered is just as clearly settled against the admission of the testimony in favor of the administrator.

The case of Chase, Ex’r, v. Ewing, decided at General Term of this court, in 1868, holds, in the opinion of Johnson, J., all concurring, “that the conversations and declarations of a testator, in favor of the executor in actions between him and third persons, are never allowable, unless under some peculiar circumstances forming an exception to the general rule.” In Brown, Surv., v. Mailler (12 N. Y., 118), it is held that the declarations of the intestate, touching the title to • personal property, are evidence against his administrator, but not competent evidence against-other parties who claim title under the deceased. The same rule is laid down in Cowenand Hill’s notes to Phillips’ Evidence, and in^ Greenleaf on Evidence. The testimony thus given was not admissible as an exceptional case. No limit was fixed- that the evidence should not apply generally in the case. The evidence thus given might, and probably did, have an important bearing upon the minds of the jury.

Tlie statement of the deceased, as a reason why he had made a will providing for his grand-children instead of his children, was a statement which might induce the jury to conclude that no change' had taken place in liis mind, although eighteen months had expired, when the gift was claimed to have been made. And thus this evidence, which was inadmissible on the question relating to the gift of the property, may have had a controlling influence on the minds of the jury. This evidence was incompetent, and the order and judgment appealed from should be reversed, and a new trial granted, with costs to abide the event.

Present — Talcott, P. J., and Noxon, J.; Smith, J., not sitting.

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


text:
    THE UNION HOTEL COMPANY, Plaintiff, v. THOMPSON HERSEE, Defendant.

      Subscription io stock — failure of company to commence work'within time specified, in its charter, releases subsei'iberr — such release not affected by an amendatory act.

    Defendant subscribed for stock in a corporation wkich was, by its charter, required to commence the construction of a hotel within two years from the. date of its passage, and to complete the same within five years from commencing it, otherwise its franchise to be null and void. The company did not commence or complete the construction of the hotel within the time limited.

      Held, in an action brought to recover defendant’s subscription, that the defendant' was thereby relieved from all liability on his subscription.
    In 1873, before the expiration of the two years from the passage of the charter, an act was passed amending the charter so as to require the work to be commenced within five years, and to be completed within four years from its commencement.

      Held, that this amendment in no way affected the defendant’s subscription, as the same was in the nature of a contract which could not be altered without his assent, of which there was no evidence.
    Motion for a new trial, on exceptions ordered to be heard m the ■ first instance at the General Term, after a verdict directed for the plaintiff at the Erie Circuit.'
    The defendant was sued upon a subscription to the capital stock of the plaintiff. The plaintiff was incorporated by special act, passed April 12, 1871 (chap. 432), with an authorized capital off $200,000, for the purpose of building a hotel in Buffalo.
    The company was organized at a meeting of stockholders in 1871. The defendant subscribed for $5,000 to its capital stock, under a subscription having the following heading: “ The undersigned subscribers hereto do hereby severally subscribe the amount set opposite our respective names, to the capital stock of ■ the 1 Union Hotel Company,’ a corporation created under and by virtue of an act of the Legislature of the State of New York, passed, in the year 1871, entitled ‘An act to incorporate the Union Hotel Company of Buffalo,’ and provided the sunt of $200,000 be subscribed by the citizens of Buffalo.” Other subscriptions were made, bringing the amount subscribed up to $205,000. The company went on and contracted to buy promises on which to erect a' hotel, and paid out a large sum of money for this and other expenses, but subsequently sold back the property to the vendors at a largo ‘loss. Mr. Jewett, the president, testified that the project of building the hotel had been substantially abandoned, though no formal action to that effect had boon taken. The act. of April 12, 1871, was amended March 24, 1873 (chap. 123), by extending the time for commencing the construction of the hotel five years from that date, and the time of its completion ta four years from tire time of commencing its construction.
    In an action brought by the company to recover defendant’s subscription, the defenses relied upon were : First. That $200,000 were not subscribed by citizens of Buffalo. Second. That the work of construction was not entered upon within the time limited by the act of incorporation, and that by reason thereof' the defendant' had been discharged from his obligation.
    This action was tried at the Erie Circuit in March, 1877. After hearing the evidence and exceptions in the case, the court directed ■ a verdict for plaintiff, and ordered that the entry of judgment be suspended, and that the exceptions be heard in the first instance at General Term.
    Bowens, Rogers & Loche, for the plaintiff.

      Charles Bechwüh and Qrover Cleveland, for the defendant.
   Noxon, J.:

The plaintiff was incorporated under an act of the Legislature, passed April 12, 1871 (ch. 432), as a body corporate under the name of the “ Union Hotel Company,” with power to purchase real and personal property for the construction of a hotel in the city of Buffalo. The capital stock was $200,000, with power to the directors to increase the same to $500,000. The business of the company 'was to be managed by thirteen, directors. Power also was given to borrow' such sums of money as should be necessary for the purchase of lands and the construction of a suitable building. Section 7 of the act provided that the corporation shall commence the work of constructing such hotel within two years from the 'passage of the act, and complete the same within four years from the time of commencing the construction thereof; it further provided in said section, “if this section be not complied with the franchise hereby granted shall become null and void.”

Section 8 provided the act should take effect immediately. The said section 7 was amended by an act passed March 24, 1873 (ch. 123), as follows: ‘ ‘ Section 7. Such corporation shall commenqe the work of constructing such hotel within five years from the passage of this act, and complete the same within four years from the time of commencing the construction thereof. If this section be not complied with, the franchise hereby granted shall become null and void,” and it Avas provided in said amended act that the same shall take effect immediately. By the provisions of the original act the time to commence the work of constructing such hotel expired April 12, 1873, and by the amended act such time expired March 28, 1878. The proofs in the case show that the lands were bought by contract, upon which lands a hotel Avas to be built, and that subsequently such lands by authority and resolution of the board of directors, passed February 2, 1876, Avas sold back to the parties of whom the land was bought. The president of the said Hotel Company testified, on the trial had March 2d, 1877: “ The project of building a hotel has been, I suppose, substantially abandoned.”

The time designated for the commencement of the construction of said hotel having expired under the act of 1871, is an important question bearing on the liability of the defendant in this action. The action in this case was commenced on the 9th February, ,1876. At that time the period in which the plaintiff was bound to commence the work of construction of the hotel had not expired under the amended act, and at that time no provision of the acts operated to make the franchise null and void. There is mo evidence before the court from which it appears that the commencement of the construction of a hotel by such corporation had not been commenced prior to March 24, 1878. If such proof was before the court, under the authority of a number of •leading cases in the Court of Appeals, judgment could not bo ordered by this court in favor of the plaintiff and upon the exceptions sent to this court to be argued. If the corporation is null and void, and in the eyes of the law dead, any order for judgment in favor of the plaintiff would be absolutely void. The point, therefore, taken by the defendant, that the plaintiff has no standing in this court is not available hero.

Another question raised is upon the liability of defendant upon ,his .subscription, upon which the action is brought. The defendant signed a conditional subscription to take $5,000 of stock in the company. The condition was that $200,000 should be subscribed by the citizens of Buffalo. The act under which the subscription was made provided that the company should commence the work of constructing the hotel within two years from the passage of the act and complete the same in five years from the time of commencement of construction thereof. The fact ivas admitted on the trial, that plaintiff did not commence the work of constructing the hotel within two years, and did not complete the .same in four years from the passage of the act of incorporation. The defendant’s subscription was upon the terms and conditions provided by the act and the subscription.

The amendment passed in 1873 in no manner affected the defendant’s subscription, which was in the nature of a contract which could not bo altex'ed without his assent, and there is no evidence of his assent. The motion for a nonsuit should have been granted oxi the ground alone that the construction of the hotel had not •been commenced within two years after the passage of the act.

Again, the defendant asked to go to the jury on the question, whether $200,000 had been subscribed by the citizens of Buffalo; also as to the residence of the subscribers of the stock. These requests were refused by the court, and the defendant excepted to each of the refusals. These questions were litigated on the trial and evidence given on both sides, and questions of fact were involved which entitled the defendants to take the verdict of the jury upon them. It was an error on the part of the court to deny these requests. The verdict of the jury should be set aside, and a new trial granted to the plaintiff, costs to abide the event.

Present — Talcott, P. J., Smith and Noxon, JJ.

New trial ordered, costs to abide event.


text:
    JOHN HICKOX and JANE HICKOX, Appellants, v. FREDERICK G. WEAVER, Sheriff of Oneida County, Respondent.

      Notice to appoint another attorney in place of one deceased — proceedings stayed for thirty days— Code of Civil Procedure, §§ 65,1302.
    Where, under section 65 of the Code of Civil Procedure, notice to appoint another attorney is served upon a party, whose attorney has died, all proceedings are stayed for thirty days, and a motion to dismiss an appeal for a failure to appoint an attorney, made within that time, is premature.
    Where there is more than one party, both must be notified.

      Semble, that, under section 1302 of the Code of Civil Procedure, the respondent may proceed in the same manner as it is therein provided that the appellant may.
    Motion to dismiss an appeal.

      M. M. JBurlison, for the respondent, for the motion.
    -for the appellants, opposed.
   Noxon, J.:

Judgment was perfected for the defendant against the plaintiffs on the 27th of July, 1877, on the report of a referee, for costs. The plaintiffs, by K. Carroll, attorney, appealed from the judgment on September 19, 1877. A proposed case and exceptions was made and served September 6, 1877. Proposed amendments were made and served by M. M. Burlison, attorney for respondent, September 15, 1877. The case, exceptions and amendments were noticed for settlement before the referee on the 20th of September, 1877, and the same was settled.

The appeal was noticed for argument by respondent for the General Term at Syracuse, in January, 1878, and put upon the calendar. No notice of argument was served for. said term by appellants. The case was not and had not been printed nor served upon respondent. The attorney, Carroll, died January 5, 1878. On March 14, 1878, the attorney for respondent served a notice on Jane Hickox, one of the plaintiffs, directed to the plaintiffs, requiring them to appoint another attorney in this case in place of Carroll, deceased, within thirty clays from the service of the notice; and, in case of omission to appoint attorney, the appeal would be dismissed, on application to the court and service of notice upon the plaintiffs. On May 17, 1878, a like notice was served on the plaintiff", John Hickox. On May 17, 1878, the respondent served notice of argument in the case upon John Hickox for the General Term, hold at Buffalo, on June 11, 1878, and also notice that the same was served upon him because the attorney of record (Carroll) was dead, and the plaintiffs had neglected to appoint any attorney upon whom notice could be served, and the notice would be filed with the clerk of the court. The notice of argument also contained a notice that an application would be then made to dismiss the appeal.

Accompanying the papers, the affidavit of the attorney for respondent, sworn to June 8, 1878, states no appearance has been made by appellants since service of notice to appoint an attorney in place of Carroll was made upon Jane Hickox, and that no case has been printed and served. That notice of argument was filed with the clerk of Oneida, May 7, 1878, pursuant to notice served on John Hickox, and more than thirty days has elapsed since the service upon Jane Hickox of notice to appoint an attorney, and no appearance in any manner has been made.

After service of notice to appoint an attorney was made on John Hickox, he had thirty days to appoint an attorney in place of Carroll, deceased. The time would not expire until after the first day of the General Term, and the notice of argument of the appeal and for dismissal could not be given until the thirty days expired. Section 65, new Code, provides for notice to be served on the party for whom the deceased attorney appeared, and all proceedings are stayed for thirty days after notice has been given to that party. By a fair construction of the section, if there is more than one party, both parties must be served.

Section 1302, new Code, provides if the attorney of the adverse party is dead, notice of appeal may bo served upon respondent in the manner prescribed by law for serving it upon the attorney, and if personal service cannot be made upon respondent with due diligence, within the State, notice of appeal and subsequent proceedings may be given to him as directed by a judge of the court in or to which the appeal is taken. This provision is intended to cover cases of appeal; and although the section does not in language cover this case, it is a reasonable construction to hold that the respondent in such cases must make personal service of all proceedings to' be had on the appeal upon the appellant personally, if they can be made in the State; and if not, in the manner directed by a judge of the court to which the appeal is taken. The motion in this case is premature, and must be denied with leave to renew; no costs to either party.

Present — Talcott, P. J., Smith and Noxon, JJ.

Motion to dismiss appeal denied; leave to renew; no costs to either party.


author: Talcott, P. J.

text:
    HORACE STILWELL, an Infant, by Guardian, Appellant, v. EBENEZER MELROSE, Administrator, etc., Respondent.

      What is an interest in real estate — Payment by administrator of interest on mortgage on land aftei'wards sold for intestate’s debts, allowed to hwi on his Recounting — Allowance, for payment of interest bea/ring debts by administrator out of his ovm funds.

    Appeal from the decree of the surrogate of the county of Cattaraugus, entered on the final acountmg of the defendant as the administrator of John Mitchell.
    The court, at General Term, said: “The first objection to the decree of the surrogate is, ‘ because it does not charge the said administrator with the avails of a certain cheese factory, of which decedent was possessed at the time of his death, and the question presented oir this objection is, whether the cheese factory was personal estate which went to the administrator, or was real estate which descended to the heir.’
    “ The provisions of the statute as to what shall be deemed assets and shall go to the administrators, to be. applied and distributed as part of the personal estate of their testator or intestate, is to be found in 2 Revised Statutes (2d ed.), 24, section 6, and the question is made upon the first subdivision of that section, which is as follows: ‘1. Leases for years. Lands held by the deceased from year to year, and estates held by him for the life of another person.’ Or upon the fourth subdivision, which is as follows: ‘Things annexed to the freehold or to any building for the purpose of trade or manufacture, and not fixed into the wall of a house so as to be essential to its support.’ The eighth section further provides that ‘ the right of an heir to any property not enumerated in the preceding sixth section, which, by the common law, would descend to him, shall not be impaired by the general words of that section.’
    “ John Mitchell, the intestate, died unmarried and without issue, leaving, as his next of kin, his mother and a sister and the children of a deceased sister, of whom the appellant is one. At the time of his death the intestate was possessed of one undivided fifth in a certain cheese factory, situate in the town of Lyndon, in Cattaraugus county. The cheese factory was held under an instrument bearing date on the 11th of December, 1866, executed by Thomas Case, who appears to have been the owner of the fee, by which said Case for and in consideration of the rents, covenants and agreements therein contained, on the part of the parties of the second part, their executors, administrators and assigns, * granted, demised and leased ’ to the parties of the second part, ‘ and to them heirs, executors and assigns,’ all of a certain parcel of land therein described, and containing the further provision, that ‘ whereas the said party of the second part intends to erect a cheese factory on the above-described premises, and in consideration thereof the said party of the first part hereby grants to the party of the second part the use of the above-described premises, provided the second party erect a cheese or butter factory within two years from the date hereof upon said premises, so long as said premises shall be used for a cheese or butter factory. * * * The right of the second party, under this lease, shall not be lost or destroyed by a failure of said second party to occupy the same for any time not exceeding twelve years ; and if the said second party should elect not to use said premises for the above-mentioned purpose at any time, the said second party shall have the full term of two years to remove the buildings and fixtures from said premises after said election ; and such election to discontinue the use of said premises, may be at the end of twelve years aforesaid, and the said second party shall have the full term of two years thereafter to remove said buildings and fixtures.’ The above-mentioned instrument was duly executed by the grantor, under his hand, and seal, and duly acknowledged. The cheese factory was built upon the described premises prior to May, 1867, and has been used as such from that time ever since.
    “We think the interest granted by the said instrument, executed by Thomas Case, was real estate. It was what is termed in law ‘ a qualified base or determinable fee.’ (4 Kent’s Com., 9.) It was an interest which may continue forever, but is liable to be determined by the election of the parties of the second part, or if they shall have ceased to occupy the same for the space of twelve years. Under the statute of descents, it descended to the mother of the intestate, who was living at his death, and it was not assets in the hands of the administrator. It appears that the rents, issues and profits of the cheese factory had been in form paid over to the defendant in checks, but he passed the same to the mother, to whom he claims they belonged. (See 1 JR. S. [2d ed.], : §§ 1 and 27, p. 742.)
    This grant was not in violation of section 14 of article 1 of the Constitution, because no rent or service of any kind was reserved therein.
    “ The next objection to the decree of the surrogate is that two payments, one of $300 and one of $103.70, which appeared among the administrator’s credits, were improper charges, and should bo disallowed, as such payments were upon a debt secured by a mortgage upon the decedent’s real estate. It is conceded that the debt was'due and was paid by the administrator, and that the land which was embraced in the mortgage was sold by order of the surrogate, the personal estate being insufficient to pay the debts. The payment by the administrator of these mortgage debts, was probably an irregularity. By 1 Revised Statutes (2d ed.), § 4, p. 740, the heir is required to satisfy such a mortgage out of his own property, without resorting to the executor or administrator. The record of the proceedings for the sale of the land is by stipulation omitted from the case, but we infer that it had become apparent that the land covered by the mortgage must be sold under the order of the surrogate for the payment of debts.
    “ The intestate died in January, 1870. The administrator made the payments on the mortgage in the spring-and summer of 1871, and the sale of the land mortgaged was completed in the spring of 1872. Probably the payments made by the administrator on tbe mortgage were made to prevent an anticipated foreclosure and the expenses thereof, when it became apparent that the equity of redemption would have to be sold by order of the surrogate. The effect of the decree of the surrogate is to allow the administrator to retain, out of the proceeds of the sale of the land, the sums he had paid on the mortgage of the land sold, and we do not see how any injustice could be done to the appellant by such allowance. Presumptively the land brought as much more at the sale, as the amount paid by the administrator in discharge of the mortgage, and we think the amount was properly allowed out of the proceeds on the principle of subrogation.
    The next objection is to the allowance to the administrator of an item of interest for moneys advanced by him to pay the interest-bearing debts of the intestate out of his own funds; we see no objection to this allowance. True, the administrator was not obliged to make any advances out of his own funds to pay the debts of the intestate, but as the debts were interest-bearing debts, we do not see how any injustice could be done by this allowance which might be made to the administrator also on the principle of subrogation.”

      Spring & Van A&mam, for the appellant. J. II Waring, for the respondent.
   Opinion by

Talcott, P. J.

Present — Talcott, P. J., Smith and Hardin, JJ.

Decree of the surrogate affirmed, without costs to either party.


author: Mullin,' P. J.

text:
    THE TRUSTEES OF THE FORESTVILLE BAPTIST SOCIETY, Respondent, v. HORATIO N. FARNHAM CHARLES McNEAL AND ASA DOTY, Appellants.

      Transfer of note — failure of the consideration therefor — Maher of note cannot set up such failure as a defense to an action thereon'hy the transferee.

    Appeal from a judgment in favor of the plaintiff, entered in Chautauqua county upon the report of a referee.

      The action was brought to recover of the defendants the amount due on a promissory note made by the defendants for $1,000, and interest, payable to the order of Jonathan tí. Pattison, one year from date, and dated 28th September, 1871, and which was transferred by the payee to the plaintiff. The complaint alleges the incorporation of the plaintiff under the act for the incorporation of religious societies. The answer denied, first, the incorporation of the plaintiff; second, the transfer of the note to it by Pattison.
    The court at General Term, after considering other objections, said: “The consideration for the transfer of the note to Pattison, the payee, was the transfer of land owned by the plaintiff, and which it conveyed to Pattison. The defendants’ counsel insists that plaintiff had no power to sell its land without the consent of the court, and that, consent not having been obtained, the sale is void and the plaintiff acquired no title to the note. The sale of the land may be void, but it does not follow that the transfer of the note to plaintiff did not vest in it a valid title to the note It was entirely competent for Pattison to make a gift of the note to the plaintiff, and the defendant would have no right to object to it. It may be that Pattison can obtain possession of the note from the plaintiff or compel it to pay him the amount due upon it, but the defendants will be protected, in making payments to plaintiff until its title is divested.”

      J. G. Record, for the appellants. Julius A. Parsons, for the respondent.
   Opinion by

Mullin,' P. J.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment affirmed.


author: Mullin, P. J.

text:
    WILLIS S. NELSON, Respondent, v. DANIEL NEIL, Appellant.

      Chattel mortgage executed by joint-stock association — whwe to be filed.

    Appeal from a judgment in favor of the plaintiff, entered on a verdict recovered at the Wayne County Circuit.
    The action' was brought to recover the value of a horse, of which the plamtiff claims to bo the owner, unlawfully appropriated by the defendant to his own use. The defendant justified the talcing by virtue of an execution on a judgment against Roswell B. Smith; president of the Rochester Towing Company. The plaintiff claims under a chattel mortgage issued by the company.
    The court at General Term said : .“It would be a most unreasonable construction of the act relating' to filing chattel mortgages, to hold that they must be filed in each town within the State in which one of the stockholders of a joint-stock company resides. The statute is complied with if filed in the office of the town clerk of the town where the principal office of the company is located or its business principally conducted. That place, in this case, was the city of Utica.”

      Stephen K. Williams, for the appellant. Pardee & Piper, for the respondent.
   Opinion by

Mullin, P. J.

Present — Mullin, P. J., Talcott and Smith, JJ.

J udgment reversed and new trial granted, costs to abide event.


text:
    JOHN B. HIGHAM, Respondent, v. ELIAS H. GAULT, Appellant.

      Bxñdence to show that witness entertains unfriendly feelings towards a party — inadmissible, unless it tend to show such feeling at the time of the trial.

    Appeal from judgment of the County Court of Monroe county in favor of the plaintiff, entered on the verdict of a jury. The"’ action was brought to recover damages for an assault and battery committed on the plaintiff by defendant and his .wife. The defendant, in his answer, alleged that the injuries done to the plaintiff were inflicted while defendant and his wife were excited by hearing that plaintiff had accused defendant’s wife and daughter of a want of. chastity. On the trial the offense was proved, and defendant gave evidence in support of his defense.
    The court at General Term, after'considering other objections, said: “ The defendant was examined as a witness in his own behalf and testified that he discharged the plaintiff from his employment, and the defendant’s counsel asked the witness if, at that time, there.-was any difficulty between them. The plaintiff’s counsel objected to the question, on the ground that it was immaterial. The court sustained the objection, and defendant’s counsel excepted. The question was not answered. This witness said he liad a conversation with plaintiff at the time he discharged him. The defendant’s counsel asked witness what he said. Plaintiff’s counsel objected that it was not competent. Defendant’s counsel offered to show that when defendant came home from the west hé found that plaintiff had been drunk while he was gone, and he discharged him on that ground, and plaintiff was angry on account of it. Plaintiff’s counsel objected to the evidence as being immaterial. The court sustained the objection, and defendant’s counsel excepted. It is competent for a party, against whom a witness is called to testify, to show that the witness entertains unfriendly feelings toward him in order to enable the jury to make such allowance, in the weight to be given to the evidence, as the state of feeling under which it is given shall require; but the unkind feeling must be shown to exist when the evidence is given. The witness may have been angry at the defendant years before the trial, and the anger have entirely disappeared. Unless it is, made to appear that the unkind feeling exists at the trial, or has arisen so recently that it can be assumed to continue, it is incompetent. There is nothing in this case to make the evidence admissible.
    The evidence was given in September, 1876, and the plaintiff was discharged in November, 1875.”

      Townsend & Sullivan, for the appellant. D. Q. Feeley, for the respondent. ■ • ..... ■ ■ ■
   Opinion by

Mullin, P. J.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment affirmed.


text:
    ASA D. CHURCHILL, as Administrator, etc., of MARY CHURCHILL, Deceased, Respondent, v. LOYAL W. CARTER, Appellant.

      Commission to tcúce testimony — issued by stipulation — no seal necessary where the attorneys waive it.

    Appeal from a judgment in favor of the plaintiff, entered in Genesee county upon the report of a referee.
    The action involved the examination of an account between the parties, arising from money loaned by the intestate to the defendant, and services rendered by the latter to the former.
    After examining other questions, the court at General Term said: “ The appellant objected to testimony of Chester R. Churchill and Almond S. Churchill, taken on commission, upon the ground that the commission was not sealed, or allowed by the judge, or signed by the clerk. In general, it is necessary that a commission to take.testimony should bear the seal of the court from which it issues. By the judiciary act of 1847 (chapt. 280, § 57), it is declared that no process, except such as shall be issued by the special order of the court, shall bo deemed either void or voidable for want of a seal when it shall be signed by the attorney of the party issuing it. If the commission in this case had issued by the special order of the court, the absence of the seal would have rendered the commission void, or at least voidable. (Ford v. Williams, 24 N. Y., 366.) This commission, however, was issued without any special order of the court, but by virtue of a stipulation between the attorneys of the parties, which stipulation is annexed to the commission and signed bv the attorneys of the parties, the appellant states that the stipulation was merely ‘ that a commission issue.’ The stipulation goes farther; it is ‘ that the annexed commission do issue/ etc. There is ho' doubt- but: the attorneys of the parties may waive the fixing of the- seal, and we think the stipulation that ‘ the annexed commision do issue/ annexed to an unsealed commission, was such a waiver.”

      H. B. Cone, for the appellant. William Tynell, for the respondent.
   Opinion by

Talcott, P. J.

Préseiit — Talcott, P. J., Smith and Hardin/JJ.

' Judgment' affirmed.