author: Beady, J.:

text:
    JOHN GREASON, Plaintiff, v. THE GOODWILLIE-WYMAN COMPANY, Defendant.

      Practice — motions affecting receivers of insolvent corporations — what pap&rs must be served upon the attorney genwal under chapter 378 of 1883.
    Section 8 of chapter 378 of 1883, relating to receivers of corporations, provides that “a copy of all motions and all motion papers, and a copy of any other application to the court, together with a copy of the order or judgment to he proposed thereon to the court, in every action or proceeding now pending for the dissolution of a corporation or a distribution of its assets, or which shall hereafter be commenced for such purpose, shall, in all cases, be served on the attorney general in the same manner as provided by law for the service of papers on attorneys who have appeared in actions, whether the applications but for this law would be ex pwrie or upon notice. ” * * *

      Held, that where a matter is to be brought before the court upon a regular notice of eight days, a notice of the motion, with a copy of the proposed order, must be served upon the attorney general That were it is to be brought before the court by an order to show cause, a copy of the order to show cause, and of the proposed order, should be served upon him.
    That it was not necessary to serve upon him a notice of the application for the order requiring cause to be shown.
    Appeal from an order requiring tbe de jure receiver Seaman, to produce tbe books and papers of tbe defendant.

      Tbe appellant was duly appointed receiver in this action on notice to the attorney general, and qualified as such by filing a bond in the amount of $10,000 as required by the court. March, 1885, the appellant receiver being informed that one Samuel A. Briggs claimed to be and was acting as receiver of the defendant, under an alleged appointment in an action entitled “Miles v. Goodwillie-Wymcm Co.” had a motion made in such action to declare said alleged receivership null and void, for non-compliance with the requirements of section 8, chapter 878, Laws of 1883. Thereupon on April 1, 1885, an order was duly made and entered declaring the judgment theretofore entered in the said action of “Miles v. Goodwillie-Wymam, Go.” the appointment of a receiver thereunder, and all proceedings taken therein null and void. Thereafter on motion made, in behalf of this appellant as de jure receiver, in the present action, for the said late or de facto receiver Samuel A. Briggs, to show cause why he should not be required to state and submit his accounts before a referee, and surrender up to the present receiver and appellant all the property of the defendant corporation that may have come into his hands, an order was granted by Mr. Justice Babeett of date April 18, 1885, appointing Clifford A. Hand, Esq., referee, to pass the accounts of said de facto receiver Briggs, who was therein ordered to make and state his accounts as such in this action before said referee accordingly.
    Upon the hearing before said referee, E. H. Levey & Co. and Sturges Whitlock, who claimed to be creditors of the company, appeared on the passing of the accounts of said de facto receiver, and during the course of the reference their counsel applied to the court at Special Term, and obtained an order to show cause why the books and papers of the defendant corporation should not be produced for use as evidence before said referee on said accounting. From the order there made this appeal was taken.

      J. Homer Hild/reth, for the receiver, appellant.

      Joseph B. Flanders, for the creditors, respondents.
   Beady, J.:

The appellant William H. Seaman, having succeeded Samuel A. Hriggs as receiver, proceeded to obtain a statement of the accounts of his predecessor and an order requiring him to surrender all the property of the defendant corporation that might have come into his hands; and the result was an order appointing Clifford A. Hand, Esq., referee to pass the accounts of the predecessor, .who was required to make and state his accounts before such referee, on five days’ notice of hearing to the judgment creditors and others named in the application. The accounting was proceeded with, and an .application made during the course of it for an order requiring the appellant as receiver, to produce the books and papers of the defendant which had come into his hands as receiver before the referee, who was to take the account stated. And from that order he has appealed.

The appeal itself may be regarded as extraordinary, but more particularly when the grounds upon which it rests are stated and •considered. The objection chiefly urged against the propriety of the order appealed from is that under the provisions of section 8 of •chapter 378 of the Laws of 1883 (see p. 559) notice of the intended application for such an order should have been given to the attorney j general, the appellant insisting that the service of the order so; obtained is not a compliance with the statute, it being obligatory upon the moving party to give notice of an intended application for the order, requiring the service not only of copies of the moving papers, but also of a copy of the order to be proposed to the court.

This is entirely unnecessary and has no sanction either by the language or the spirit, design or object of the act. The intent of the provision in the statute referred to is that in the class of actions embraced in it, the attorney general shall have notice of the motion, ■together with a copy of the proposed order relating to it which will enable him to comprehend its design and to determine whether ■he will attend and oppose the motion or permit it to pass. All that is necessary, therefore, is to serve a notice of motion with a copy of the proposed order, or if an order to show cause is obtained, to serve a copy of the order to show cause with the proposed order; and those are distinct methods of producing the same result. To adopt the process suggested by the appellant in this case would lead to unnecessary delays and doubtless often impede the successful administration of justice. It is unnecessary to say anything more in reference to this objection than has already been said; indeed perhaps it was unnecessary to do more than state it to show that, the appellant has misconstrued the provision of the statute mentioned.

The other objection interposed is to the right of the creditors to-be present at the accounting of the receiver. The order directing the accounting to take place required service of the notice upon-the creditors named in the application and those creditors appeared before the referee. This they had the right to do, not only under-the order but without reference to any order. The taking of an account by a former receiver of a defendant corporation is one in which the creditors have an interest, indeed a double interest, one in obtaining an actual statement of property received and money paid out or expenses incurred, and another in the delivery of the property unappropriated which the receiver possesses at the time of the accounting.

We do not see how there can be the slightest doubt about this right whether it is founded upon an order of the court directing notice to be given or notice of the proceeding obtained in any way in which notice might be given, accidentally or otherwise. When the proceedings relate to the acts of an officer of the court, as a receiver is by fiction if not in reality, all persons having any interest in the estate which he represents have a right to be present and be examined on any subject pertinent to the inquiry which springs out of the proceeding itself. A mere statement of this must carry conviction with it, and it is not necessary to treat it with any elaboration.

For these reasons the order appealed from should be affirmed, with ten dollars costs and the disbursements of the appeal.

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

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    GEORGE HUTSON and ROBERT HUTSON, Appellants, v. LEON C. WELD, Respondent.

      Order for the examination of ajudgment debtor— Oode of0ml Procedure, see. 2436— the regularity of the issue of the execution must be shown— also a demand upon the debioi' and a refusal by him to a/pply the property.

    An affidavit used to obtain an order, as provided in section 2436 of the Code of Civil Procedure, requiring a judgment debtor to appear and be examined as to property alleged to be held by him which he unjustly refuses to apply towards the satisfaction of the judgment is defective if it fails to show that the execution was issued within the five years allowed by section 1375 of the said Code, or, if after the expiration of five years, that an execution had been issued within that time or that the present execution was issued pursuant to the order of the court granted under section 1377 of the said Code.
    Such affidavit is also defective if it fails to state that a demand for the application of the property to the payment of the judgment has been made upon, and refused by the judgment debtor.

      First National Banh v. Wilson (13 Hun, 232) followed.
    Appeal from an order made at Special Term dismissing proceedings for the examination of a judgment debtor.

      James MeKeen, for tbe appellants.

      H. C. Place, for the respondent.
   Brady, J.:

Tbe proceedings for the examination of tbe defendant, a judgment debtor, are based upon tbe provisions of section 2436 of tbe Code, wbicb declare that at any time after tbe issue of an execution against property, as prescribed in section 2458 and before its return, tbe judgment creditor, upon proof by affidavit or other competent written evidence that tbe judgment debtbr has property wbicb be unjustly refuses to apply toward tbe satisfaction of tbe judgment, is entitled to an order requiring him to attend and be examined concerning bis property.

Tbe affidavit upon wbicb tbe order for tbe debtor’s examination was obtained alleged that tbe judgment was rendered on tbe 23d of December^ 1874; that an execution bad been issued and returned; that tbe judgment was rendered upon personal service of tbe summons upon tbe defendant; that tbe judgment-roll was filed in New York county, and that tbe debtor bad there a place for tbe regular transaction of business; and further that tbe deponent was informed and believed that the defendant had property which he unjustly refused to apply toward the satisfaction of the judgment. There is no allegation of any demand made upon him for that purpose.

There can be no doubt that the affidavit is defective. It is so because it does not appear that the execution outstanding was issued within the five years allowed by the statute for that purpose after judgment (sec. 1375), or, if after the expiration of the five years, under such circumstances as justified that ceremonv, namely, that an execution had been issued within five years after the entry of the judgment and had been returned wholly or partly unsatisfied or unexecuted, or an order of the court granting leave to issue the execution after the expiration of five years. (Sec. 1377.) And it cannot well be doubted either that the affidavit vas deficient in failing to show that a demand was made of the property which it was alleged was unjustly withheld by the debtor.

Under a corresponding provision (sec. 292 of the former Code) it was held to be necessary to show that a demand for the application of the property to the payment of the judgment had been made of, and refused by the judgment debtor. (First Nat. Bank v. Wilson, 13 Hun, 232.) The order vacating the order appealed from, therefore, was properly entered.

The appellant contends that no costs should have been imposed, even if the order was improvidently granted, because, by the provisions of sections 2455 and 2456 costs cannot, in a proceeding of this kind, be awarded to the judgment debtor, unless he has been examined and property applicable to the payment of the judgment has not been discovered. These provisions relate to costs in the proceeding and have no application whatever to the costs of a motion to dismiss it. There is no provision in the Code which interferes with the right of the court, in a matter of this kind, to impose costs of a motion to dismiss it before any examination has taken place under its terms.

For these reasons we think the order appealed from should in all respects be affirmed, with ten dollars costs and the disbursements of the appeal.

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

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.:

text:
    HORACE B. CLAFLIN and Others, Respondents, v. EDWARD A. DRAKE, Appellant.

      Compulsory reference — cannot he ordered on the ground that, an account must he examined, if that is not the principal issue.

    The plaintiff having recovered a judgment against a limited corporation for goods sold and delivered to it, and issued an execution thereon which had been returned unsatisfied, brought this action against a stockholder to enforce the liability alleged to have been incurred by him by reason of the failure of the stockholders to pay in the amount of the capital stock subscribed for. The answer was a general denial.

      Seld, that as until the plaintiff should establish the defendant’s liability for the debts of the company, proof as to the sale of the goods to the company itself would be unnecessary, the action was not one in which a compulsory reference could be ordered upon the ground that it involved the examination of a long account.
    Appeal from an order directing the trial of the issues in this action to take place before a referee appointed to hear and determine the same.

      Benj. F. Dos Bassos, for the appellant.

      8. F. Kneelcmd, for the respondents.
   Daniels, J.:

The defendant has been sued as a stockholder in a corporation called the “ Co-operative Dress Association (Limited).”

The corportion was formed under chapter 611 of the Laws of 1875. By section 37 of the act, the capital stock was required to-be paid one-half in one year, and the other half within two- years-from the incorporation of the company, and the directors were-required within thirty days after the payment of the last installment,, to make a certificate stating the amount of the capital so paid', which upon being signed and sworn to by the president and a majority of' the directors, was to be filed in the office of the Secretary of State- and in the county in which the principal business office of the corporation was situated. For a failure to pay these amounts- and file-the certificate, this section of the act further declared that the stockholders should be severally individually liable to the creditors of the-company to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole of the capital stock fixed and limited should be paid in, and the certificate thereof should be so made and recorded. It has been alleged in the complaint that the plaintiff sola and delivered a large amount of goods to the company, and for the balance of the debt created in that manner a judgment has been recovered upon which an execution has been issued against the property of the company, and returned unsatisfied. It was further alleged that the capital of the company had not been paid and that no certificate had been made and recorded, as that was required by the terms of the act. It was also alleged that the defendant was the owner of stock of the company to the amount of $2,500, and judgment was demanded against him for that amount.

These allegations were all denied by the answer and additional defenses were also interposed. By this denial the plaintiffs have been subjected to the necessity of proving all the facts alleged in their complaint as the ground of the defendant’s liability, before any investigation or inquiry can be made into the account containing a statement of the goods alleged to have been sold and delivered to the company.

The action consequently has not been brought for the sole purpose of recovering the plaintiff’s account, but its first object is to charge the defendant with liability under this section of the statute, providing for the incorporation of business corporations, and that part of the action is not of such a nature as to be the subject of a reference against the objections of the defendant.

No liability against him for the goods, as they were not sold or delivered to him, but to the company, can be made out without first proving the failure of the company to comply with the statute, and that the defendant himself was the owner of a portion of its capital stock. That is a very substantial portion of the issue to be tried and disposed of in the case, and not until that shall be established against the defendant can the account become the subject of investigation or inquiry in the action. And if that investigation shall be reached by proving the defendant’s liability for the payment of any part of the account, then and not until then will evidénce of it be important to prove the extent of such liability. To justify a reference, tbe account itself must be the substantial subject of the issue, and where it is not, a reference cannot be ordered against the objection of either of the parties. (Camp v. Ingersoll, 86 N. Y., 433; Read v. Lozin, 31 Hun, 486.)

These authorities are entirely decisive of this appeal, and they require that the order should be reversed, together with the usual costs and disbursements and the motion for a reference should be denied.

Davis, P. J., and Beady, J., concurred.

Order reversed, with ten dollars costs and disbursements to abide event.


text:
    MARVIN SAFE COMPANY, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent. WILLIAM M. POWNALL, Appellant, v. THE SAME.

      Action to restrain the enforcement of a city ordinance — when the invalidity of the ordinance must hme been first established in an action at law.

    This action was brought to restrain the enforcement against the plaintiff, a manufacturer of and dealer in safes, of an ordinance of the city of New Y ork forbidding any person from suffering or permitting “ any cask, bale, bundle, box, crate, or any other goods, wares or merchandise, or any boards, planks joists or other timber, or anything whatsoever, to be raised from any street, on the outside of any building, into any loft, store or room * * * by means of any rope, pully, tackle or windlass, under the penalty of twenty-five dollars to be recovered by an action of debt from such person,” etc.
    In the course of the plaintiff’s business it was necessary to raise safes on the outside of buildings in a manner which, it was claimed, was prohibited by the ordinance. The plaintiff sought to restrain the enforcement of the ordinance upon the ground that the common council had no power to pass it.
    Held, that as it did not appear that the invalidity of the ordinance had been established in any action brought against the plaintiff, or that numerous actions to enforce the same against it were then pending, the action could not be maintained.

      Semble, that the ordinance did not apply to plaintiff’s business.
    Appeal from au order made at a Special Term denying a motion to continue an injunction.

      Edward C. Graves, for the appellant.

      Francis M. Scott, for the respondent.
   Daniels, J.:

The object of the action was to prevent the enforcement against the plaintiff of section 5 of article 4 of chapter 6 of the Revised Ordinances of 1880. This ordinance provided that no person or persons in the city of New York, whether agent, owner or employer, shall suffer or permit any cask, bale, bundle, box, crate, or any other goods, wares or merchandise, or any boards, planks, joists, or other timber, or anything whatsoever, to be raised from any street, on the outside of any building, into any loft, store or room, or to be lowered from the same, on the outside of any building, by means of any rope, pulley, tackle or windlass, under the penalty of twenty-five dollars, to be recovered by an action of debt from such person, agent, owner or employer.”

The plaintiff has been and still is engaged in the manufacture and delivery of safes. In the course of that business, it is shown to be necessary to raise safes, sold by it, on the outside of buildings when they are to be delivered by it in upper rooms or lofts, and this, it has been urged, was one purpose of the city to prevent, by the enforcement of this ordinance.

To prevent its enforcement and avoid all interference, in that manner, with the business of the plaintiff, this action was commenced, in which the relief demanded was that the defendant should be restrained from enforcing the ordinance, as an improper or unconstitutional exercise of the authority vested in the common council or board of aldermen of this city. No action for the recovery of the penalty provided for by the ordinance has been tried and determined in the plaintiff’s favor, on the ground alleged as the foundation of the action. And it is not very probable that any such suit can be maintained for the reason that the ordinance does not seem to include the delivery or hoisting of safes. For by its own language it has been restricted to any cask, bale, bundle, box, crate or other goods, wares or merchandise, boards, planks, joists or other timber, or anything whatsoever, neither of which includes the delivery of safes, unless it be the last phrase made use of. But that should probably be understood as referring to any other thing of the kind previously enumerated. But the ordinance not having been held by any court in any proceeding at law to have been an unauthorized exercise of municipal authority on the part of the city, until a trial shall take place in which that result may be secured, an-action to restrain the enforcement of the ordinance is, under the authorities, premature. If no authority existed to enact the ordinance in the broad and comprehensive terms contained in it, the-want of such authority would constitute a legal defense to any action brought for the recovery of the prescribed penalty. Complete relief to that extent would be secured by making a defense to an action of that description, and if the plaintiff should succeed in maintaining the defense, then further prosecutions under the-ordinance might be prevented by means of an action of this description. But until such a defense has been successfully made to an action brought for the recovery of the penalty, no such suit as-this is can be maintained. (Eldridge v. Hill, 2 Johns. Ch., 281; West v. Mayor, etc., 10 Paige, 539; Wallack v. Society, etc., 67 N. Y., 23.)

The cases of Crevier v. Mayor, etc. (12 Abb. [N. S.], 340); Schuster v. Metropolitan Board of Health (49 Barb., 450), and Third Avenue Railroad Co. v. Mayor (54 N. Y., 159) have been relied upon by the counsel for the plaintiff in support of the right to maintain this action. But when properly considered they afford no countenance to that theory. The first o.f these cases was of an entirely different character from the controversy now presented, while in that of Schuster v. The Board of Health, the injunction was maintained upon the sole ground that by the enforcement of the unauthorized ordinance or regulation of the board of health, the entire business of the plaintiff would be broken up and subverted. But such would not be the effect of the enforcement of this ordinance upon the right of the plaintiff to manufacture safes and deliver them to all its purchasers, except those included within the scope of the ordinance, if in fact it includes that business at all.

The regular course to be followed in a case of this nature, where an ordinance of the city is to be resisted on account of the want of power to enact it, was indicated and defined in the Third Avenue Railroad Co. v. The Mayor (supra), and that is where a multiplicity of suits' may be prosecuted, or threatened, and the right to maintain them is plausibly denied, to restrain tbe prosecution by in june tion of every suit but one, and to allow that one to proceed to trial and final determination for tbe purpose of testing the authority upon which the actions are legally dependent. The decision in that case supplies no authority for extending an injunction beyond these limits, and accordingly in no manner warrants the prosecution of an action of this description. The actions which have been tried have been finally determined in the plaintiff's favor without impeaching the validity of the ordinance itself, and if others should be commenced to enforce the ordinance, then under the authority of this last case an action of this description might very well be maintained to restrain the prosecution of all but one, and leaving that one to proceed to a final and ultimate determination, for the purpose of settling the controverted authority of the city to enact the ordinance.

The appeal now before the court cannot be sustained, but the order from which it has been taken, as well as a like order in the ease of William, M. Pownal v. The Mayor, should be affirmed, with the costs of one appeal and the disbursements in both.

Brady, J\, concurred; Davis, P. J., not sitting.

Orders affirmed, with ten dollars costs of one appeal and the disbursements of both:


text:
    JAMES O’SHEA, Respondent, v. HENRY KOHN, Appellant.

      Execution against the person of a defendant — what recitals it mist contain — Code of Civil Procedure, secs. 1365, 1372, 1489.
    An execution against the person of the defendant recited that it was issued upon a judgment recovered in the Supreme court, in the city and county of New York, for fraud and the conversion and fraudulent disposition of property. It stated that the judgment had been docketed in the office of the clerk of the county of ' New York, and that an execution had been issued thereon to the sheriff of the county of Kings, where the defendant resided, which had been returned unsatisfied.

      Held, that these recitals were sufficient to sustain a direction for the sheriff to arrest the defendant.
    That it was not necessary that it should be stated in the execution that the judgment had been docketed in the office of the clerk of the county of Kings.

      Nor was it necessary that an execution against the property of the defendant should have been previously issued to the sheriff of the county of New York Me v. Ohristie (15 Abb. [N. S.], 346); People exrel. Brack v. Beilly (58How., 318),. distinguished.
    Appeal from an order denying a motion to set aside an execution against the person of the defendant.

      Ira Leo Bamberger, for the appellant.

      Louis Oohen, for the respondent.
   Daniels, J.:

The execution which the application was made to set aside, states the recovery of a judgment by the plaintiff against the defendant in this court, in the city and county of New York, for the sum of $1,677.83, for fraud in incurring the liability, conversion, and the fraudulent disposition of property. This judgment is stated to have been docketed in the office of the clerk of this county on the 12th of January in the year 1885, and an execution against the property of the defendant, to have been issued to the sheriff of the county of Kings, where the defendant resided, which had been returned unsatisfied, leaving the amount of the recovery actually due thereon. These recitals are then followed with the direction to the sheriff to arrest the defendant, which he has objected to as not authorizing that direction, for the reason that no execution is shown to have been issued in that county against the property of the defendant, and no statement was made of the fact that the judgment had been docketed in the office of the clerk of the county of Kings, or of the time when it was so docketed.

It may be, however, presumed from the fact that an execution was issued against the property of the defendant to the sheriff of the county of Kings, which was afterwards returned unsatisfied, and no' application whatever was at any time made to set aside that execution, that the judgment had been docketed previous to the time when it was issued as the law required that to be done. But even if that presumption should not be entertained still the execution against the person was not defective because of its omission to state that the judgment had been docketed in the county of Kings. For by section 1372 of the Code no recital of that fact has been required to be contained in an execution against the person. The latter form of execution cannot be issued under the facts appearing in this ease without the previous issuing of an execution against property, and when issued it must recite the issuing and return of such an execution, specifying the county to which it was issued.” That is all the recital upon this subject required to be contained in the execution against the person, to comply with this section of the Code.

That an execution against property had previously been issued to the sheriff of the county of New York was not necessary to entitle the plaintiff to issue an execution against the person of the defendant. "What the present Code has required in this respect is that the execution against the property must have been issued to the county where the judgment debtor resides (Code, § 1489), and that the execution against his property was issued to the county where the defendant resided, is recited as a fact in the execution against his person. When these sections have been complied with as their directions appear to have been observed by the execution against the defendant’s person, then by virtue of section 1365 of the Code an execution against the person may be issued to any county, and that under the circumstances disclosed was a complete authority for the execution which was issued upon the judgment against the person of this defendant. The case of Noe v. Christie (15 Abb. [N. S.], 346) is inapplicable to these provisions of the Code, for they prescribe a different rule to be observed by which the practice followed in this case was authorized. The case of People ex rel. Brack v. Reilly (58 How., 218) also differs materially in its facts from the present appeal. For the execution against the person which was there issued, did not recite the issuing and return of an execution against property as that was required to be done by the Code of Civil Procedure. The sections to which reference has been made fully sustain the execution issued on this judgment, and the order from which the appeal has been taken should be affirmed, with the usual costs and disbursements.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with tén dollars costs and disbursements.


text:
    CALEB B. LORING, Executor, etc., of MARY G. P. BINNEY, Deceased, Respondent, v. AMOS BINNEY and Others, Defendants. JAMES M. JACKSON, Purchaser Appellant.

      Service of summons Try publication — defects m the notice attached, to the summons— when they do not prevent the court from acquiring jurisdiction — Code of Civil Procedure, secs. 443, 443 — Purchaser at a judicial sale, required to accept a title.

    In an action to obtain a judicial construction of a will the summons was served upon certain non-resident defendants, some of whom were infants, by publication, pursuant to an order made upon a sufficient affidavit in the usual form, directing the summons to be served by publication, and by mailing a copy of the summons and complaint- and the order of publication to each of the said defendants. In compliance therewith the proper papers were mailed to each non-resident defendant at his or her place of residence, and the summons, with a notice attached thereto, was published in the newspapers designated in the order.
    This notice was defective in two respects, it was not directed to those defendants only who were to be served, and it stated that the summons was served without the State, pursuant to an order of a judge as provided by section 443, instead of stating that it was served by publication as required by section 443.

      Held, that these irregularities did not prevent the court from acquiring jurisdic. tion over the absent defendants, and that a purchaser of real estate at a sale under a judgment entered in such action acquired a good title thereto which he would be compelled to accept.
    Appeal by James M. Jackson from an order denying a motion made in his behalf, to discharge him from his obligations as purr chaser of real estate sold under the judgment in this action.

      William Mam,, for James M. Jackson, purchaser, appellant.

      WilUam Watson and George W. Van Slyck, for the plaintiff respondent.
   Daniels, J.:

The sale was made under a judgment obtained for the construction of the will of the testatrix, and directing the sale of the premises known as 17 Madison avenue.

The purchaser refused to receive and accept the title because of ■•a failure to comply with the requirements of the Code prescribing the proceedings to be taken for the service of the summons upon certain infant and adult defendants residing out of this State. The infants were each of them over the age of fourteen years and wore liable to be served with the summons as non-resident defendants, by complying with the directions contained in the Code on this subject. Upon an affidavit reasonably sufficient for that purpose, an order of publication was made in the usual form directing the service of the summons to be made upon the defendants residing in other States by publication and by mailing a copy of the summons and complaint, and the order of publication, to each of said defendants. In compliance with this order a copy of the summons and complaint, and of the order of publication, was mailed to each non-resident defendant, at his or her place of residence, as that was directed by the order, and the summons itself with a notice attached thereto, was published in the newspapers designated in the order. But instead of the notice which was published with the summons, stating that the summons was served by publication, pursuant to an order of the judge who made it, as that was required by section 442 of the Code, the notice directed by section 443 was published, stating that the summons was served, without the State of New York, pursuant to an order of the judge.

The notice which was published also failed to be directed to the defendants, alone, who were to be served with the summons by publication, and the point now to be determined is whether the failure to comply with the requirements of the Code in these respects, so far invalidated the service as to deprive the court of jurisdiction over these, absent defendants.

Applications were made on behalf of the infants for the appointment of a guardian ad litem, and such a guardian was appointed for them, who appeared in their behalf in the action. But it is not important that any particular stress should be placed upon this fact, for the reason that the adult defendants residing out of the State, and also served in this manner, did not appear in the action. The disposition of the case must, therefore, depend upon the question whether jurisdiction was acquired over these defendants residing in other States by the pi’oceedings as they appear to have been taken.

As the summons was served by publication, and not by the delivery of a copy of it to the respective defendants out of the State, they each received by the papers which were mailed to them all that was required should be sent to them. The practice to this extent is controlled and regulated by section MO of the Code, which by its effect directs that copies of the summons, complaint and order should be mailed to the defendants to be served at the place or places where they would probably receive matter transmitted through the post-office. This section was fully complied with, and as the places to which the copy summons, complaint and order were mailed, appear to be the places of residence of the respective defendants to whom they were sent by mail, it is to be presumed that they received these copies, and in that manner acquired all the information concerning the action and the authority to serve the summons by publication which the law provided they should have. They were in this manner informed of the object and design of the action, and summoned to appear and present their defense by way of answer or that in default thereof judgment would be taken against them for the relief demanded in the complaint. And the authority for making this service was disclosed by the copy of the ordei accompanying the other papers. The same result was also attained by the publication which ■ was in fact made of the summons itself, and neither of the defendants, if reliance was placed upon the form of the publication, could have been misled to his or her prejudice by the statement in the notice that the summons was served without the State of New York, instead of its being stated that it was served by publication. For the residue of the notice wras required to be and was identical in both classes of cases, and that contained the information that the summons was served pursuant to an order of a judge of the court, as that notice was required to be given by each of these sections of the Code. Whether, therefore, the notice stated that the summons was served without the State of New York, or by publication, was not important, for the purpose designed to be accomplished by the notice required in the one case to be i ublished, or in the other to be served upon the defendant. For by either form of notice the essential information would be given that service of the summons was made under the authority of an order of a judge of this court. And the information was further given when that order was made and where it could be found. The substantial objects intended to be accomplished by'the-notice were accordingly secured, even if the defendant relied upon the publication itself, for it clearly appeared from it that the publication was made under and by virtue of the authority vested in the judges of the court over this subject. And as that information was clearly supplied it could not be important as a matter of jurisdiction whether the notice stated that the summons was served by publication or without the State of New York pursuant to the order of the-judge.

The summons itself was the important document. When that was served in the manner directed by the Code, whether it was by publication or by service personally upon the defendant without the-State, the court acquired jurisdiction over the person of the defendant served. This has been provided for by section 416 of the Code, declaring that a civil action is commenced by the service of a summons, and as the suit was commenced by that service the failure literally to comply with the directions concerning the form of the notice which was to be published, but not in fact served, or required to be served, upon either of the defendants, was no more than an irregularity which would not deprive the court of the jurisdiction obtained by the service of the summons in compliance with the directions of the order for its publication. This mode of service included not only the formal publication of the summons but also the mailing of a copy of the summons and complaint, and of the order of publication, to each one of these defendants. When that was done, and the period of publication had elapsed, the summons was completely served in the action and the court could after-wards rightfully proceed to adjudicate upon the rights of the parties notwithstanding this defect in the form of the notice which was published.

The omission of the names of the defendants to be served by publication in the notice was a defect still more formal and could by no possibility have misled either of the defendants, for the order of publication itself contained these names and fully supplied all the information which the addition of the names to the notice would have secured.

Upon this general subject the Code nas further provided by section 723 that “in every stage of the action the court must disregard an error, or defect in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party.” These were clearly errors or defects of this description, for the omission of the names of the defendants who were to be served by publication from the notice, and the statement in it that the defendants were served with the summons without the State of New York in place of the statement that they were served by publication, •could by no possibility affect any substantial right of either of these defendants, for, aside from these defects in the notice, they were .supplied with complete information either by the summons and notice as they were published or by the copies of the papers which were mailed to them, or by both, that an action was being commenced in which judgment would be obtained against them by ■default if they failed to appear and answer, and that the proceedings for commencing it in this manner were authorized and sanctioned by an order of a judge of the court, as that had been provided for by the law of the State; and that was all that it was substantially imported for their protection that either of the defendants should know concerning the proceedings that were carried on. They had provided them with the opportunity of appearing and litigating the case, and informed'them of the consequences of their failure to do that, and of the time within which their appearance for the purpose of contesting the action was required to be made.

Cases involving similar points of practice have already been presented to the courts, where at least as liberal a construction of the act ■as that which has been indicated has been sanctioned. (McCully v. Heller, 66 How., 468; Thistle v. Thistle, Id., 472; Orvis v. Goldschmidt, 2 N. Y. Civil Pro. Rep., 314; McCoun v. N. Y. Central, etc., 50 N. Y., 176, 178, 179; Gribbon v. Freel, 93 id., 93.)

Both by the construction plainly required to be given to these •sections of the Code and by force of these authorities, the proceedings taken in this action to acquire jurisdiction over the absent ■defendants require to be sustained. The purchaser, therefore, will obtain a valid title to the property bold to him under the proceedings in the action, and he should be required, as he was by the order from which the appeal has been taken, to complete his purchase. But while that order should be affirmed it should be without costs, for the reason that greater care should have been observed in the proceedings to comply literally with what the Code has pro» scribed as to the manner in which they should be taken.

Davis, P. J., and Beady, J., concurred.

Order affirmed, without costs.


text:
    WILLIAM BURROWS, Respondent, v. AUGUSTUS BUTLER and JOHN Q. A. BUTLER, Administrators, etc., for WILLIAM R. BUTLER, Deceased, Appellants.

      Evidence — when apwrty may testify as to the mlm of services rendered by Mm to a deceased person — Code of Civil Procedure, sec. 829 — whether or not the plaintiff has offered to refer a claim should not be submitted to the jury — right of a parly to address the jury on all questions submitted to it.

    Upon the trial of this action, brought to recover the value of services rendered by the plaintiff to the defendants’ intestate, the employment of the plaintiff and the rendition of the services by him were proved by witnesses other than himself.

      Held, that it was proper to allow him to testify as to the value of the services so rendered; that such testimony did not relate to a personal transaction or com munication with a deceased person within the meaning of section 829 of the Code of Civil Procedure.
    After the jury had brought in a verdict for the plaintiff, his counsel requested that the jury should be directed to retire and find whether the plaintiff had offered to refer the claim before bringing the action. To this the defendants counsel objected, and upon the court overruling his objection requested to be heard before the jury on that subject. This request was denied. The jury found that the plaintiff had offered to refer the claim, whereupon the court ordered costs to be allowed in favor of the plaintiff.

      Held, that the question as to whether or not an offer was made should not have been submitted to the jury; that it should have been decided upon a special motion upon affidavits.
    That in any event it was error not to allow the counsel of the defendants to be heard by the jury upon that subject.
    Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury, and from an order denying a mótion for a tiew trial.

      I. B. Treadwell, for the appellants.

      Sahatz & De Witt, for the respondent.
   Daniels, J.:

There was evidence given upon the trial, by the witness John Burroughs, which directly tended to prove that the plaintiff had been employed by the intestate to perform the work and labor, for the value of which a recovery was asked in the action. Bor he stated that the intestate was present at the place where the work was being done, and gave orders and directions as to how and what was to be done, and that the work itself was performed upon patterns belonging to the intestate. This was sufficient to warrant the judge presiding at the trial in submitting this part of the case to the jury, although the correctness of this statement was drawn in question by the evidence of the defendants. It still left the case upon this part of the controversy a question of fact to be determined by-the jury.

The same witness thought that from six to seven weeks were consumed in the performance of the work, and that it was worth five dollars a day. The plaintiff himself as a witness in his own behalf gave similar evidence. His statement was that thirty-eight and one-half days’ labor was performed upón the job and the service was worth five dollars a day. Both this evidence and that of the preceding witness was controverted by the testimony given on behalf of the defendants. But still that testimony was not so controlling as to authorize this subject to be withdrawn from the consideration of the jury. The inquiry was still for them, “ What was the extent and value of the services so performed ? ”

The testimony of the plaintiff concerning the time consumed in the labor performed, was objected to by the defendants, and they excepted to the ruling which allowed it to be given. But as no ground was stated in the objection, but it was presented in the most general form, it cannot be held that the court errred in allowing the plaintiff to testify to the time consumed in the labor. But as to the value of the service performed, the objection was more specific and it included the objections that the proof offered involved a personal transaction with the deceased. This objection presents the point of the plaintiff’s competency to give evidence concerning the value of the' services performed under the employment of tñe deceased intestate, and section 829 of the Code will not allow such testimony to be obtained from the party where it concerns a personal transaction or negotiation between himself and the deceased person. The employment itself was a personal transaction between these parties. But neither the service which was performed afterwards solely and wholly by the plaintiff and the persons in his employment, nor the judgment of the plaintiff himself concerning the value of such service, related to a personal transaction between the plaintiff and the intestate. The extent of the personal transaction between these persons was the employment, of the plaintiff to render ¡ these services. The rendition of the service itself was a transaction of the plaintiff in which the intestate in no way or manner/ participated. He had employed the plaintiff to perform certain, services and their performance was then left exclusive^ to theij plaintiff and the persons employed by him, and it was as to the value , of the services performed in that manner that the plaintiff was1', allowed to be asked his judgment as a witness in the case. His expression of that judgment resulted only in a valuation of the services, and consequently related wholly to what the plaintiff himself had done and had caused to be done. It was the performance of what he had been employed to do in a contract or transaction with the deceased intestate, and in no manner included the making of that contract or transaction. He with his men, performed a certain amount of service on range patterns belonging to the intestate, and he was permitted only to give, under the specific objection taken, his judgment of the value of the services so performed, and this evidence was not within the prohibition of this section of the Code, even as it has been, and without doubt should be liberally construed by the courts in carrying it into effect. (Holcomb v. Holcomb, 95 N. Y., 316, 324—6.)

The evidence allowed to be received from the plaintiff under this objection was entirely different from that which was received from the surviving party in Ross v. Ross (6 Hun, 182), Conway v. Moulton (Id., 650), Somerville v. Crook (9 id., 664) and Freemam v. Lawrence (11 Jones & Spencer, 288), for the proof in controversy in those causes related directly to what was claimed to have transpired between the survivor and the deceased person.

After the case was submitted to the jury, and as already stated that was done upon sufficient evidence, and they had agreed upon their verdict, they returned into court with a statement of the amount they had found in favor of the plaintiff. The plaintiff’s counsel thereupon requested that the jury should be directed to retire and find whether there was an offer on the part of the plaintiff to refer the claim to a referee. To this the defendant’s counsel objected, but the court determined to send the jury out again to decide this question, as the fact had been alleged in the complaint and denied in the answer. But before they were sent out the defendant’s counsel requested that he should be heard before the jury on that subject. This request was denied and an exception was taken to the denial. The jury then retired and afterwards returned into court- with the additional verdict that the plaintiff had offered to refer his claim to a referee, and that the defendant had refused to refer, and upon that part of their verdict the court ordered costs to be allowed in favor of the plaintiff. It was no part of the issue to be tried by the jury whether an offer to refer had been made and refused or not. But that-according to the settled rule of practice is a subject to be settled by way of special motion upon affidavits after the rendition of the verdict for the amount due to the plaintiff.

But if the inquiry in any case should be submitted to the jury, certainly the counsel requesting that privilege have the right to be heard upon it before the jury retire to deliberate upon the evidence. As the rule of practice was settled, it could not have been anticipated before the jury retired to deliberate upon their verdict, that any such inquiry as this would have been submitted to them, and for that reason the counsel could very well avoid all reference to it in the course of his argument. This inquiry does not seem to have been included in the submission first made of the case to the jury. But the propriety of submitting it was suggested for the first time, apparently after the jury had agreed upon their verdict in favor of the plaintiff. The inquiry affected an important right as it included that of the liability of this estate to the recovery of costs in the action, and before it could justly be determined against the defendants they had the right through their counsel to be heard before the jury. It was error, therefore, for the court to refuse the request of the defendants’ counsel. He should have been permitted to argue this point as he desired to do, if the jury were to be allowed, as they were by the court, to consider the evidence relating to it and determine it as a part of their disposition of the action.

The exception taken to the refusal of the court to allow this point to be discussed by the counsel was well taken, and the judgment so far as it includes the recovery of costs should be reversed, but so far as it proceeds upon the verdict of the jury finding the amount stated by them to be due to the plaintiff, it was reasonably well supported by the evidence and it, with the order denying a new trial, should be affirmed. And this modification should be made without costs of the appeal to either party.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed except as to costs, and as to costs reversed without prejudice to a motion for an order allowing costs, and without costs on appeal.


author: Brady, J.;

text:
    WILLIAM D. HUBBARD, Appellant, v. AUSTIN G. GORHAM, Respondent.

      When an entire defense cannot he stricken out as irrelevant— a pleading will not be stricken out because it does not state a good, cause of action.

    Appeal from an order denying a motion on the part of the plaintiff to strike from the answer the defense to the whole cause of action, on the ground that the matter which is presented by it is irrelevant.
    The cause of action resulted from an agreement between the parties to this action by which they purchased on joint account, through O. F. Timson & Co., certain shares of stock, as to which they were to share the profits and losses. The result of this venture was a loss, which the plaintiff paid to the firm of C. F. Timson & Co., and for one-half of such payment the plaintiff sought to make the defendant respond in this action. The latter set up as a separate defense that the firm already mentioned, of which the plaintiff is a member, entered into an agreement with him whereby it was agreed, for the consideration stated, that the firm should carry five hundred or six hundred full shares of stock for him without margin, and that he should not be liable for any loss accruing on account of such stock bought and sold by the firm.
    The court at General Term said: “ It seems to be supposed by the defendant that all responsibility by him to the firm was controlled by the agreement mentioned, and therefore he was not liable for the payment of one-half of the sum lost by the joint venture of which the action is predicate. And perhaps it may be said that the presentation of the defense is in some respects indefinite, but that does not subject it to such a motion as made by the plaintiff. When the pleading contains a semblance of a cause of action or defense, its sufficiency cannot be determined upon a motion to strike out as irrelevant or redundant.

      The Code authorizes the party aggrieved thereby to move to strike out irrelevant, redundant or scandalous matter contained in a pleading ; but it is a new application of the privileges conferred by this provision to strike out a pleading because it does not state a good cause of action against the moving party.
    The rule pronounced, therefore, in the cases of Walter v. Fowler (85 N. Y., 621) and Hagerty et al. v. Andrews et al. (94 id., 195) control this appeal. The motion affecting an entire defense, it was properly denied. The plaintiff’s remedy was to demur. This was the view of the learned justice, presiding in the court below, expressed in a brief opinion.”

      William Bracken, for the appellant.

      M. S. Hudgms, for the respondent.
   Opinion by

Brady, J.;

Daniels, J.,

concurred.

Order affirmed, with ten dollars costs and disbursement».


text:
    MARY FINK and JOHN W. FINK, Respondents, v. THOMAS JETTER and HENRY STILLGEBAUER, Appellants.

      A bül'of pwrticula/rs wül not be allowed where the information sought for lies peculiarly within the knowledge of the defendant.

    Appeal from an order, made at a Special Term, denying a motion to compel the plaintiffs to furnish a bill of particulars.
    This action was commenced to obtain a decree forfeiting a lease made by the plaintiffs to the defendants, and for a violation of the covenant of the lease, by which the defendants agreed to purchase, all pork which should be sold in the premises demised, from the lessors at regular market prices, and which provided that in the event of their refusal to do so then, and in such case, the lease should cease and terminate at the option of the lessors. The defendants deny that the covenant was violated and ask for a bill of particulars giving the dates and character thereof and the names and addresses of all persons connected with the violations.
    The court at General Term said: “ This action appears to have been commenced on the 14th of March, 1885, and the allegation of the complaint in reference to the violation of the covenant is that the plaintiffs are informed that on the 14th of February, 1885, and at various other times, the defendants bought pork of other persons, and which pork was subsequently sold in the premises in violation of the covenant; and thus by this allegation, and.by the affidavit which appears in the papers, the breaches are embraced within the period between February fourteenth and March fourteenth following; and the plaintiff John Fink swears that he could not give the particulars of the breach believing that the facts could be proved on the trial by the defendants or their employees.

      “ It is not deemed necessary to examine the numerous allegations on the subject embraced in this appeal, as to whether the bill should be ordered, for the reason that it must depend upon the circumstances of the case. The gravamen of this action is the violation of the covenant already mentioned, and within a period of twenty-eight days; and this covenant, as it involves the acts of the defendants, is certainly within their own knowledge, because it is founded on their own acts and experience, and it is evident the plaintiffs rely for success upon statements which it is supposed were made by the defendants, or persons in their employment, as to the breach complained of.
    It appearing that knowledge of the acts complained of, if they have in fact been committed, is peculiarly and thoroughly with the defendants, it seems to be just that the plaintiffs under the circumstances should not be required to furnish a bill of particulars.”

      Oha/rles A. Flammer, for the appellants.

      Thomas AlUson, for the respondents.
   Opinion by

Brady, J.;

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

concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Follett, J.:

text:
    EUNICE CURTISS, Appellant, v. JOHN J. BARRUS, Respondent.

      Gift — when it is a gift causa mortis and not inter vivos.
    The plaintiff, a widow about eighty years of age, without relatives nearer than nephews and nieces, in March, 1880, entered into a written agreement with the defendant, a nephew, by which she agreed to sell to him a farm owned by her for $2,230, he agreeing to pay interest on that sum on April first of each year as long as the plaintiff lived, and on the first of April succeeding her death, and thereafter $200 and interest annually until the whole sum should be paid. On May 8, 1883, the plaintiff being very sick and expecting to die executed a warranty deed of the premises and delivered it to a third person with directions to deliver it to the defendant after her death. On May 22, 1883, the plaintiff, being annoyed by the remonstrances and objections of other nephews and nieces, directed the third person to deliver the deed to the defendant, and the deed was, on May twenty-fourth, delivered to him and by him recorded.

      Meld, that the gift was causa mortis and not inter vivos, and was revoked by the plaintiff’s recovery from her sickness.
    Appeal from a judgment, entered upon a decision at Special Term, dismissing the complaint in an action brought to compel the defendant to restore to the plaintiff her interest in certain land,
    March 20, 1880, the plaintiff being the owner of fifty-one acres of land, contracted in writing to sell it to defendant for $2,230, payable as follows : Interest on each first day of April during plaintiff’s life, and on the first day of April succeeding her death; and after that, $200 and interest annually until the whole sum should be paid. The contract further provided that no part of the principal should become due under six years, even though the plaintiff died before. The defendant had the right of immediate possession.
    The plaintiff is a widow, upwards of eighty years of age, without relatives nearer than nephews and nieces. Defendant is one of several nephews.
    Besides this farm, the plaintiff had between $3,000 and $6,000 of property. The defendant has paid less than $100 on the contract. May 8, 1883, the plaintiff being very sick and expecting to die, executed a warranty deed of the premises to defendant, and delivered it to a third person with directions to deliver it to defendant at her death. Other nephews and nieces of the plaintiff were greatly dissatisfied with this disposition of the farm, and annoyed the plaintiff in respect to it. At last, May 22, 1883, the plaintiff directed the third person to deliver the deed to the defendant, which was done on the twenty-fourth of the same month, and recorded on the same day.
    The plaintiff recovered from her sickness, and asked the defendant to secure the payment of the purchase-price, specified in the contract and recited as the consideration of the deed, by a mortgage upon the farm, which he refused to do, and claimed to own the farm free and clear from all claims of the plaintiff.
    The Special Term found that the transaction was a gift inter vimos, and that defendant acquired the absolute title, free from all claims of the plaintiff.

      Avery <& Merry, for the appellant.

      T. K. da L. F. Fuller, for the respondent.
   Follett, J.:

The finding of the Special Term that the transaction was a gift imter vivos, of the farm, which was not revoked by the donor’s restoration to health, is not sustained by the evidence. The donee and all of the witnesses agree that the deed was executed by the donor when very sick and under apprehension of death, and was delivered to a third person with directions to deliver it to the donee upon the donor’s death. This was a gift causa mortis. (Champney v. Blanchard, 39 N. Y., 111; Grymes v. Hone, 49 id., 17; Hathaway v. Payne, 34 id., 92.) The subsequent delivery of the deed to the donee by the donor’s direction did not, of itself, convert the gift ccmsa mortis into a gift inter vivos. To constitute a valid gift of either kind, the parting with the property by the donor must be absolute in form and accompanied by a delivery of the thing given. Had the donor, in the first instance, delivered this deed to the donee instead of to the third person, the donor’s recovery from that sickness would have revoked the deed. The chief distinction between a gift inter vivos and a gift causa mortis is that the former is irrevocable, while the latter is revocable, and ihe donor’s recovery from peril operates fer se as a revocation of the gift. (3 Pom. Eq. Jur., § 1150; Story’s Eq. Jur., §§ 606-608; Basket v. Hassell, 107 U. S., 602.) There is no evidence of anything said or done by the donor between the delivery of the deed to the third person and its delivery to the donee, indicating that she had changed her purpose so clearly declared to have the deed take effect only in the event of her death. All of the donor’s subsequent acts in respect to this and her other property indicate that she made these dispositions of this farm and of her other property in apprehension of death from the sickness with which she was then suffering.

The attempt to raise a consideration for this grant by proving the delivery of two chickens by the grantee to the grantor in her sickness, and so create an irrevocable grant, does not strengthen the defendant’s case in law or equity.

The judgment is reversed and a new trial ordered, with costs to abide the event.

Hardin, P. J., and Boabdman, J., concurred.

Judgment reversed.and new trial ordered, costs to abide event.


author:
Hardin, P, J.:
     Follett, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLARD VAN HOUTER, Appellant.

      Criminal trial — evidence — what inadmissible on cross-examination — evidence cannot be given to sustain the character of a witness, until it has been attacked — it is error to refuse to charge that a defendant is presumed to be innocent until the contrary is proved.

    Upon the cross-examination oí the defendant upon his trial, upon the charge of keeping a bawdy-house, he was asked and compelled, against his objection and exception, to answer questions as to what property he had besides a house and lot, and how he had obtained and invested it.

      Held, that it was error to compel the defendant to answer the questions, as there was nothing in the direct-examination which justified their .being put.
    A witness called by the people was allowed at the very outset to testify that prior to her coming to Ithaca, she had been “ a decent and respectable girl.” Held, that the court erred in admitting the testimony, as the people had no right to introduce evidence to sustain the character of the witness, before it had been attacked.
    The court was requested to charge [the rule prescribed by section 889 of the Code of Criminal Procedure, providing that “ a defendant is presumed to be innocent until the contrary be proved.” The court refused so to do, but charged the substance of the second proposition contained in that section, viz., that “in case of a reasonable doubt whether his guilt is satisfactorily shown he is entitled to an acquittal.”

      Held, that it was error to refuse to charge as requested.
    Appeal from a judgment, entered in Tompkins county upon the verdict of guilty, rendered by a jury upon a trial in the Court of Sessions in that county upon a charge against the defendant of having kept a bawdy-house in the village of Ithaca on Clinton street. Evidence was given at the trial tending to establish the charge made in the indictment. Defendant gave evidence to the contrary, as a witness in his own behalf.

      James L. Baker, for the appellant.

      Gr. I. Smith, district attorney, for the respondent.
   Hardin, P, J.:

During the cross-examination of the defendant he stated that he owned a house and lot and paid taxes upon it. He was asked, viz.: Q. Have you any money outside of the house and lot there ? ’ The question was objected to as irrelevant, immaterial and improper, -and the objection was overruled and the defendant took an exception. He then answered “ yes, sir.” He was then asked “ how much ? ” This was objected to upon the pame grounds as the previous question. The objections*were overruled again and defendant again excepted. The witness then said, “ I have got from ten thousand dollars to fifteen thousand dollars,” and he was then asked where it was and if it was invested and where he got it. He answered that he got it in the army, and that he was a gambler, and that it was never invested since he won it, and that most of it was in gold. We think the objections were-improperly overruled. -No evidence had been given in chief by the defendant which justified the course of the cross-examination in the partculars we have quoted. The evidence therefore as to his money, how much he had, how he got it, and whether it was or ever had been invested was immaterial. The court erred in requiring the defendant to give the evidence in cross-examination.

Second. The people called as a witness Anna Longcoy, and in the very outset she was allowed to testify that prior to her coming in 1882 to Ithaca that she had “been a decent and respectable girl.” This was objected to by defendant as immaterial, and an exception was taken when it was admitted. The people had no right to give evidence to sustain the character of the witness at the stage of the case when it was offered and received. Jewett, J., says, in People v. Gay (7 N. Y., 381), “ that in general a party will not be permitted to give evidence of his witness’ good character v/ntil it has teen attacked on the other side.” We think the case before us forms no exception to the general rule. Whether the witness had had anything to do with men before she came to Ithaca to reside, was wholly immaterial, if it was intended to show that her character or her personal habits had been chaste and good it was inadmissible. It was error to receive the evidence. A party is not allowed to sustain the character or chastity of his witness in advance of any attack. (People v. Hulse, 3 Hill, 309; People v. Gay, supra; Russell v. Coffin, 8 Pick., 143.)

We think the court might properly have yielded to the request to charge that “ the defendant is presumed to be innocent until the contrary be proved.” Section 3S9 of the Code of Criminal Procedure says : “A defendant in a criminal action is presumed to be innocent until tbe contrary be proved; and in case of a reasonable doubt whether his guilt is satisfactorily shown he is entitled to an acquittal.” (Stokes v. People, 53 N. Y., 183; People v. Williams, 29 Hun, 520; People v. Thompson, 21 Weekly Dig., 345.)

Judgment and conviction reversed and a new trial ordered in the- ■ Court of Sessions of Tompkins county.

Follett, J.:

The court was requested to charge the rule prescribed by section 389, Code of Criminal Procedure, which provides: “ A defendant is presumed to be innocent until the contrary be proved.” This the court refused to do, but charged the substance of the second proposition contained in the section, that “in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal.” To the refusal to charge as requested, and to the answer given by the court, the defendant excepted. By refusing to charge the first proposition the jury may have well understood that such was not the legal presumption. The two propositions contained in the section are nearly related, but they are not identical; and such was the understanding of the legislature, otherwise both would not have been enacted. It has long been a rule of the common law that a defendant in a criminal action is entitled to have the jury instructed that the law presumes him to be innocent of the crime charged, and an instruction that the jury must be satisfied beyond a reasonable doubt of the defendant’s guilt is not equivalent to an instruction that he is presumed to be innocent, especially in the face of a pointed prayer for such an instruction. For this error I think the judgment should be reversed and a new trial ordered.

Present — Hardin, P. J., and Follett, J.; Boardman, J., not voting.

Judgment and conviction reversed, and a new trial ordered in the Court of Sessions of Tompkins county.


author: Hardin, P. J.: Follett, J.

text:
    THE CITY OF OSWEGO, Appellant, v. MARTIN B. COLLINS, Respondent.

      City ordinance — when a hotel omnibus is not a “public comeycmce.”
    An ordinance of the city of Oswego provided that “all hacks, baggage wagons- and public conveyances are hereby prohibited from standing on West Utica street at any point between the Oswego river and West Third street; and, further, all hacks, baggage wagons and public conveyances are hereby prohibited from standing on West First street and West Second street at any point on said West First street and West Second street between Albany and Mohawk streets; and the driver or drivers, and the owner or owners, of said, vehicles violating this section shall be subject to a penalty of five dollars for each said violation.”

      Held, that an omnibus owned by the proprietor of a hotel in the city, and used to convey free of charge guests of the hotel to and from the different railroad stations and steamboat landings in the city, was not a “ public conveyance ” within the meaning of the ordinance. (Follett, J., dissenting.)
    Appeal from a judgment in favor of tbe defendant, entered in the-County Court of Oswego county, upon tbe report of a referee.
    Tbe action was brought to recover sundry penalties for alleged violations of section 15 of chapter 11 of tbe ordinances of tbe said city of Oswego, which were passed on August 7, 1877. Tbe language of tbe ordinance was, viz.; “All backs, baggage wagons and public conveyances are hereby prohibited from standing on WestUtica street at any point between tbe Oswego river and "West Third street; and further, all backs, baggage wagons and public conveyances are hereby prohibited from standing on West First street and West Second street at any point on said West First street and West Second street between Albany and Mohawk streets, and tbe driver or drivers and tbe owner or owners of said vehicles violating this section shall be subject to a penalty of five dollars for each said violation.” Tbe referee found that tbe defendant was in tbe employ of proprietors of tbe Doolittle bouse, a public bouse in tbe said city, as tbe driver of an omnibus, belonging to said public bouse; that at various times in tbe month of August, 1877, tbe omnibus-stood on tbe streets at tbe prohibited points; also, “ that said omnibus on said occasions and at all times during said month was used solely for tbe purpose of carrying the guests of said public house to- ■and from the different railroad stations and steamboat landings in •said city, and that no compensation was charged or received for such carrying.”
    The referee found as matter of law “ that said omnibus was not a hack or baggage wagon, and was not a public conveyance within the meaning or sense of section 15 of chapter 11 of said •ordinances,” etc.

      J. B. O’ Gorma/n, for the appellant.

      C. & G. F. WMtney, for the respondent.
   Hardin, P. J.:

According to the finding of fact made by the referee, persone •who had been guests, or who intended to be guests of, the Doolittle house, were accustomed to ride in the omnibus driven by defendant. Such persons only were entitled to use the omnibus. Had it been a public conveyance, as for instance a stage ooach run for the general public, or a street car, the whole public would have been entitled to( use it, and could not have been excluded from it. If the omnibus] had been in use at a seminary to carry students to and from the ■seminary to railroad stations and steamboat landings, it would have been known as a private conveyance with which the general public would have had no concern or right to use. If the ordinance had •omitted the word “ public ” as a word qualifying “ conveyance,”, the omnibus in question would have been within the words of the •ordinance. We are asked to give the same effect to the ordinance .as though the word public ” was omitted therefrom. On the contrary, we must give effect to the word “ public ” when we construe the ordinance.

Inasmuch as the public were not entitled to use the conveyance in question, as the public at large is entitled to use a public conveyance,” we should not give the proper construction to the facts •disclosed if we were to declare the omnibus which the defendant drove a “ public conveyance.”

If the defendant had taken the same omnibus and driven to and from a fair ground, soliciting passengers from the public, and receiving patronage from the public, and compensation for riding in it, then it would have fallen under the class known and denominated “ public conveyances.” (City of Brooklyn v. Breslin, 57 N. Y., 591.) Upon tbe facts stated in. tbe referee’s report, we are of tbe opinion that his conclusion of law, that the omnibus in question was not a “public conveyance” is correct. We, therefore, should affirm the conclusion reached by the referee.

Judgment of the County Court of Qswego County affirmed* with costs.

Boardman, J., concurred.

Follett, J.

(dissenting):

August 7, 1877, the common council of the city of Oswego enacted the following ordinance, for the violation of which this action was brought: “ All hacks, baggage wagons and public conveyances are hereby prohibited from standing on West Utica street at any point between the Oswego river and West Third street; and further, all hacks, baggage wagons and public conveyances are hereby prohibited from standing on West First street and West Second street at any point on said West First street and West Second street between Albany and Mohawk streets, and the driver or drivers and the owner or owners of said vehicles violating this section shall be subject to a penalty of five dollars for each violation.”

The first question is: had the common council power to pass this ordinance ? Section 6, title 3, chapter 463, Laws of 1860, authorizes-the common council to enact ordinances. Subdivision 13. “To prevent the incumbering of the streets, sidewalks, lanes, alleys,, wharves and docks with carriages, carts, sleighs, sleds, wheelbarrows, boxes, lumber, timber, firewood or any other substance or materials whatsoever.” Subdivision 17. “ To license and regulate cartmen, truckmen, porters, and the drivers of hackney carriages of every description, and baggage and other wagons used for hire, and to limit their charges and compensation.”

Section 7 of the same title authorizes the common council to prescribe a penalty not exceeding fifty dollars for violating any ordinance; and section 8 of the same title authorizes actions to be brought in the name of the city for the recovery of any penalty incurred. Under these sections it is cléar that the common council had .power to enact the ordinance, and that this action was well brought in the name of the city.

The second and only remaining question is: was the omnibus a 44public conveyance,” within the meaning of the ordinance? It was used constantly for conveying, free of charge, the guests of a hotel between it and the stations of public carriers, and was open to such of the public as wished to ride between .the hotel of an •entertainer of the public and the stations of carriers of the public. Had a person not connected with the hotel carried travelers for hire between the hotel and stations, and nowhere else, his conveyance could not be called a private one, and the fact that the proprietor of the omnibus was also the proprietor of the hotel, and was compensated by the increased patronage of his hotel, instead of by a fixed sum paid by those carried upon entering or leaving the conveyance, does not change the nature of the business or the character of the conveyance, which was, essentially, a conveyance for the traveling public. The proprietor of the hotel was engaged in .a private business in the sense that it and its profits were his own, but it was a public business within the common law and •statutes of this State, and the omnibus was but an adjunct of hig public house — a means of carrying on his public business — for the •convenience of travelers, and it was a public conveyance ” within the meaning of the ordinance. The proprietor could not exclude a traveler from his hotel without a sufficient reason, nor could he exclude a guest of his hotel from the omnibus without a like reason.

Ordinances, like statutes, should be construed so as to prevent the mischief' at which they are aimed, and so as to advance the remedy. This ordinance was adopted to prevent the drivers of hacks, baggage wagons and public conveyances from incumbering the streets and sidewalks of the city with their conveyances when soliciting patronage from the public. The omnibus and its driver were as clearly within the mischief sought to be suppressed as the ■other conveyances specifically enumerated.

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

Judgment of the County Court of Oswego county affirmed, with costs.


author: Hardin, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID A. DISHLER, Appellant.

      Peoguny — when a witness testifying und&r an Tamest mistake is not guilty of that offense — Penal Code, see. 96.
    To justify a conviction of perjury under section 96 of the Penal Code, providing that any person who “willfully and knowingly testifies, declares, deposes.or certifies falsely,” in the cases therein specified, shall be guilty of perjury, it must he shown that the falsity of the testimony was known to the witness at the time it was given. A conviction cannot he had where it appears that the testimony was given under an honest mistake or misapprehension, and that the witness honestly believed that the testimony given was true.
    Appeal from a judgment of conviction in Onondaga county, on a verdict taken in the Onondaga Court of Sessions, finding the defendant guilty of perjury, and also from an order denying a motion to set aside the proceedings and trial, and in arrest of judgment, and also from an order denying a motion for a new trial made upon the minutes.
    Joseph Parish was indicted in the Court of Oyer and Terminer of Onondaga county charged with grand larceny in the first degree, alleged to have been committed in the city of Syracuse on the 29th of December, 1882. The indictment of Parish was remitted to the Court of Sessions of that county, and after plea of not guilty, a trial was had in that court on the 26th and 27th days of December, 1883, and Parish was convicted.
    During that trial the appellant was called and duly sworn in due form of law as a witness in behalf of the accused and among other things testified, as the indictment herein alleges, viz.: “ I (meaning the said David A. Dishler) recollect in the latter part of December last (meaning in the year 1882) of seeing Mr. Pai’ish (meaning him the said Joseph Parish) on Friday, the day of the month was the twenty ninth day of December (meaning the twenty-ninth day of December, eighteen hundred and eighty-two), I (meaning him the said David A. Dishler) should judge the time of day I (meaning him the said David A. Dishler) first saw him (meaning the said Joseph Parish) to be about ten o’clock in the morning (meaning ten o’clock in the morning of the twenty-ninth day of December, in the year eighteen hundred and eighty-two), I (meaning him the said David A. Dishler) saw him (meaning the said Joseph Parish) at Baggs’ hotel, about the hour of twelve o’clock in the morning of the twenty-ninth day of December, in the year 1882, Mr. Parish (meaning the said Joseph Parish) took dinner with me on that day (* * *) took dinner with him (the said David A. Dishler) at Miss Colemans’, a private restaurant close by Baggs’ hotel on Main street. * * * I (meaning him the said David A. Dishler) left this restaurant between the hours of one and two with Mr. Parish.” Other circumstances are stated in the indictment respecting the testimony of Dishler, and the details given by him as a witness in respect to the presence of Parish in the city of Utica on the 29th of December, 1882. The indictment then says: “ Whereas, in truth and in fact, he, the said David Dishler did not recollect in the latter part of December last (meaning the year 1882) of seeing Mr. Parish (meaning him the said Joseph Parish) on Friday, the twenty-ninth day of December (meaning the twenty-ninth day of December, eighteen hundred and eighty-two) aforesaid.”
    Then follow other words in the indictment negativing the alleged evidence of said Dishler, so given upon the trial of said Parish as aforesaid and thereupon the indictment concludes that the said Dishler “ did unlawfully, corruptly, willfully, falsely and feloniously then and there commit willful and corrupt perjury against the form of the statute in such case made and provided •* *

      E. D. Mathews, for the appellant.

      Ceylon H. Lewis, district attorney, for the respondent. y

       Decided, September, 1885.

   Hardin, P. J.:

Section 96 of the Penal Code relates to the crime of perjury. It says “ a person who swears or affirms that he will truly testify * *. * in an action or a special proceeding * * * and who in such action or proceeding or on such hearing, inquiry or other occasion, willfully and knowingly testifies, declares, deposes or certifies, falsely in any material matter or states in his testimony, declaration, deposition, affidavit or certificate any material matter to be true which he knows to be false, is guilty of perjury.”

Section 101 of the Penal Code is as follows: “An unqualified statement of that which one does not know to be true, is equivalent to a statement of that which he knows to be false.” This latter provision is new; however,_it was held in People v. McKinney (3 Park., 510), that a person might commit perjury by testifying to something true in fact though he did not know whether or not it was true. (See, also, Commonwealth v. Cornish, 6 Binney [Pa.], 249.)

In the body of the charge the court stated the general principles of law applicable in the trial of a case of perjury. The case states, namely: “ At the close of the charge the counsel for the prisoner took the following exceptions to the said charge, and to the following portions thereof, and said prisoner’s counsel also thereupon requested said court to charge the said jury as follows, and made the following requests to charge, and took and entered the following exceptions to the following refusals of said court to charge as requested.” Then follows several requests, and among them the cases states as follows, viz.: I ask your honor to say that willfully and knowingly swearing falsely, consists in stating a thing to be true, without probable cause to believe it to be true.”

The Court — “I refuse because the statute is a little different from that. Exception taken by defendant’s counsel. I ask your honor to charge that if after investigating this matter, as the evidence shows he did —.” The Court — “I decline to hear any more requests to charge, because the jury were called back simply to hear your exceptions to the charge.” Prisoner’s counsel then said: “ If after investigating the matter, as the evidence shows he did, by inquiry of the young lady who made the memorandum in the dining room, and the coroner, he honestly believed that that was the day, that then in testifying to it, he cannot be convicted of perjury for doing it.”

The Court — “That is not pertinent to what I have added. I decline to charge it. It is not pertinent to the case, and not the proper time to ask it. Exception taken by defendant’s counsel. The said cause was thereupon submitted to the jury, who upon the same day returned into court and rendered their verdict:”

First. The ease fails to state that the jury had retired from the bar prior to the proceedings, requests, refusals and exceptions quoted. Second. So far as the case discloses the requests were timely and orderly. There is not shown in the case any foundation for the refusal “ to hear any more requests to charge.” The remark was calculated to dissuade the prisoner’s counsel from making further requests, though it does not seem to have put a full quietus upon the defendant’s counsel.

It appears by the evidence of Edwina Long that she kept a book in the restaurant, spoken of in the evidence of appellant, and that there appeared, as of the date of 29th December, 1882, an entry indicating that “ Dishler and a stranger ” were at the restaurant. She further testified that “ Dishler came to see me to inquire of me whether I recollected of Mr. Parish and he being there before the trial about three weeks.” She also testified: “I saw Parish on the trial here; I think that was the man that I entered as the stranger.” Dr. Hunt, who was a coroner in 1882, was sworn as a witness and testified that he held an inquest on the body of Samuel Bartlett the twenty-ninth of December and made an entry in his book, and he added, “I remember Mr. Dishler coming in to see me some time before the trial here last April in reference to the date of the inquest. On that occasion I took the book out and opened it and read from the book.” The request pointed to the inquiry made by the appellant of Long and Dr. Hunt, and pointedly asked the court to instruct the jury that if the appellant after such investigation “honestly believed that that was the day, that then in testifying to it he cannot be convicted of perjury for doing it.” To that request, as we have already shown by the quotation from the case, the learned trial judge replied: “ That is not pertinent to what I have added, I decline to charge it. It is not pertinent to the case and not the proper time to request it.” The evidence quoted was sufficient to call for the consideration of the question by the jury as to whether or not the appellant, after the investigation made, did not honestly and in good faith believe that the 29th of December, 1882, was the day' that he and Parish were at the restaurant together.

We think the learned trial judge fell into an error when he said, in response to the request, “it is not pertinent to the case,” and that remark may have led the jury to conclude that it was not important for them to consider whether or not the appellant, when he gave his evidence as to seeing Parish in Utica on the twenty-ninth of December, “ honestly believed that was the day.” Archbald says, in 3 Waterman’s Notes (at page 595), viz.: “The false statement must have been willfully made, for if a man swear falsely from inadvertence or mistake it is no offense.” Hawkins says: “ It is said no oatk shall amount to perjury unless it be sworn absolutely and directly, and that therefore he who swears a thing according as he thinks, remembers or believes, cannot, in respect of such an oath, be found guilty of perjury.” (3 Archbald, 595.) Lord O. J. He Grey said that a person may be convicted of swearing that he “ thinks or believes a fact to be true,” but that it renders the proof more difficult. (See note, 3 Archbald, 596.) The Revised Statutes (2 R. S., 681) provides that “ every person who shall willfully and corruptly swear, testify or affirm falsely to any material matter * * * shall upon conviction be adjudged guilty of perjury.” The language of section 96 of the Penal Code differs some in phraseology, and uses the words “willfully and knowingly” instead of the words “willfully and corruptly.” Under either statute it is essential that the testimony given should be false, known to be such, or not known to be true though so alleged, and that in the former case the falsity be known and the falsity intentionally asserted. An honest mistake, an honest misapprehension, may lead a 'party to mistakenly testify untruly as to a fact when there is the utmost good faith and integrity of purpose. In this class of cases, as in others arising under the criminal law, it is important that the jury be left to inquire what was the intention of the party accused of crime.

The question of intention is one for the jury under proper instructions as to the law. The jury are by law the sole judges of the facts. (Code of Crim. Pro., §§ 419, 420.) The request refused was pertinent and proper, and it was not proper to deny it. The verdict ought to be set aside. If the court had refused the request, and declined a charge otherwise than as it previously charged on the question, the charge would have been sound. "Where a jury has been correctly instructed in the body of the charge a refusal to repeat presents no error.

The judgment and order should be reversed and a new trial ordered in the Onondaga County Sessions.

Pollett and Yann, JJ"., concurred.

Judgment and order reversed and a new trial ordered in the Onondaga Court of Sessions.