author: Per Curiam :

text:
    GEORGE C. STIEBELING, Respondent, v. WILLIAM LOCKHAUS, Appellant.

      Bill of particulars — when one will be ordered in an action for slander — Code of Givil Procedure, § 531 — what allegations in the complaint are insufficient to authorise the admission of evidence of special damages. ‘

    This action was brought by the plaintiff to recover the. damages occasioned by an alleged slander. The complaint charged that the defendant “did, sometime during the month of September, 1879, at the city of New York, falsely, wrongfully and maliciously speak, utter and publish the following false, defamatory and actionable words of and concerning the plaintiff, in the German language, in the presence and hearing of divers persons all of whom understood the same; ” it then set forth the language in German and English, and alleged that by reason of the speaking of such words the plaintiff “ was greatly injured in his fame, reputation, and good name as a physician, and in his earnings, profits and income as such,” and that he had sustained great damages.
    Upon an application by the defendant for a bill of particulars, Held, that the plaintiff should be required to furnish a bill of particulars specifying at what place or places, and in the presence of what person or persons, the words were claimed to have been spoken.
    That as-the allegations as to the injury to the earnings, profits, and income of the plaintiff as a physician, were not sufficient to allow him to prove special damages in particular instances, upon the trial, it was unnecessary to order a bill of particulars in those respects.
    Appeal from an order made at a Special Term, denying a motion for a bill of particulars.

      Ed/ma/rd 8. Glvnch, for the appellant.

      Peter Ooofc, for the respondent.
   Per Curiam :

Section 531 of the Code of Civil Procedure, amongst other things, provides that: “ The court may in any case direct a bill of particulars of the claim of either party to be delivered to the adverse party.” This broad language has been held to cover all classes of actions in which. affirmative claims to recover damages are set up, whether they be upon contract or for tort. (Orvis v. Dana, 1 Abb. New Gas., 268 ; Tilton v. Beecher, 59 N. Y., 176.) Since the decision of Tilton v. Beecher by the Court of Appeals, the question of power cannot any longer be said to be in doubt; and that case holds that a bill of particulars is proper in ail description of actions where the circumstances are such that justice demands that a party should be apprised of the matters for which he is to be put on trial with greater particularity than .is required by the rules of pleading. Numerous cases are cited by the court to sustain this proposition, to which it is not necessary to make further reference. In this case the plaintiff sues for alleged slander. The allegations in his complaint are of the most general character. He alleges that the defendant “ did, sometime during the month of September, 1879, at the city of New York, falsely, wrongfully and maliciously speak, utter and publish the following false, defamatory and actionable words of and concerning the plaintiff, in the German language, in the presence and hearing of divers persons, all of whom understood the same.” He tiien sets forth the language both in German and English, and alleges that by reason of the speaking of such words the plaintiff was greatly injured in his fame, reputation and good name as a physician, and in his earnings, profits and income as such, and that this plaintiff has sustained great damage.”

A motion had previously been made to make these allegations more specific, which was denied by the Special Term. Thereupon this motion was made for a bill of particulars, which was also denied. We think it very clear that justice demands that the defendant should be apprised with greater particularity of the matters for which he is to be put on trial, because under the complaint it seems almost impossible for him to prepare to meet the charge of speaking the alleged words. No specific place at which they were spoken, is given, and no persons in whose presence they were spoken are named, and there is no apparent mode by which the defendant can projierly prepare to meet the charge. The time of speaking is, of course, not very material, but the place and persons in whose presence and hearing the words were spoken seem to us to be of grave importance, as otherwise the defendant upon the trial may be taken wholly by surprise by the production of testimony which he is wholly unprepared to explain or contradict. We think therefore it would have been a proper exercise of the discretion of the court to have directed a bill of particulars, specifying at what place or places the words are claimed to have been spoken, and in the presence of what person or persons. So far as relates to the claim of injury to the earnings, profits and income of the plaintiff, as a physician, the allegation is not sufficient to admit evidence on the trial of special damage in particular instances, and therefore, it is not necessary that a bill of particulars in these respects should be ordered.

We think that the order of the court below should be reversed, with $10 costs, and disbursements, and an order entered directing that the plaintiff deliver to the defendant the particulars of the place or places where the words are alleged to have been spoken, and in the presence of what persons.

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

Order reversed, with $10 costs, and disbursements.

Order entered as directed in opinion.


source: Caselaw Access Project

author: Pee Cukiam :

license: Public Domain

text:
    CRADLES A. EASTON and WILLIAM V. KING, Appellants, v. ASA R. CASSIDY, Respondent.

      Order of arrest — when not allowed— Gode of Oivil Procedure, § 549, sub. 4, as amended, in 1879 — what must be shown to authorize the issuing of an order thereunder.

    This action was brought to recover moneys alleged to have been fraudulently embezzled and misappropriated by the defendant while acting as a bookkeeper for the plaintiff. Upon a motion to vacate an order of arrest granted herein, the court below found that a portion of the sum sought to be recovered had probably been fraudulently appropriated by the defendant, and that the residue had been obtained and used by him, with the plaintiff’s knowledge and consent, and — held that, inasmuch as the demand, upon which an order of arrest could have been properly granted, liad been united with one upon which it could not be granted, that the order should be vacated.

      Held, that the order was properly vacated.
    To authorize the granting of an order of arrest, under subdivision 4 of section 549 of the Code of Civil Procedure, as amended in 1879, the complaint must allege the cause of action, therein set forth, to be fraudulent or to have been fraudulently contracted, and must limit the application’ for the order to such cause of action.
    Appeal from an order made at a Special Term, vacating an order of arrest granted herein. The action, which, was commenced December 6, 18Y9, was brought to recover from the defendant the sum of $4,210.04, alleged to have been fraudulently embezzled, misappropriated and taken by him, while acting as bookkeeper for the plaintiff.

      F. M. Scott, for the appellant.

      O. F. Coddmgton, for the respondent.
   Pee Cukiam :

The plaintiffs obtained their order of arrest upon affidavits alleging a single cause of action for the recovery of $4,210, alleged to have been fraudulently embezzled and misappropriated by the defendant. Upon the motion in the court below, the court found, in substance, that a portion of that sum had probably been fraudulently appropriated, and that the residue had been obtained and used by the defendant with the knowledge and consent of the plaintiffs. The court concluded that, inasmuch as the demand upon which an order of arrest could properly be granted had been united with one upon which such order could not properly be granted, the order based upon the whole sum must be vacated..

It is claimed on this appeal, that, assuming the facts to be as found by the court below, still the order should not be vacated, because, under the provisions of the Code of Civil Procedure, the plaintiffs eonld aver in their complaint the alleged fraud, and establish the same upon the trial to entitle them to a verdict. And that, in so far as they may be able to show that* the money was fraudulently appropriated, they will be entitled to a verdict, upon the trial, and to judgment upon which an execution against the body may issue, and that, therefore, in respect to that portion of the demand as to which such a recovery may be had, the order should be sustained. We think this position cannot be maintained. The intention of the Legislature, in changing the act in this respect, was to restrict rather than enlarge the cases in which orders of arrest can be granted, and to carry the question of fraud, in all cases of this kind, to the jury for final trial and decision. It was the settled law, under the former Code, that no order of arrest could be upheld where causes of action had been united, on any part of which an order of arrest was not allowable under the provisions of the Code. We think there was no intention to change that established rule, and the consequence of so construing the Code as to effect the change would be to open the door to experiments greatly prejudicial to defendants, and. to the fair and just administration of the law. We think it our duty to hold that, under the present provisions of the Code, parties securing orders in this class of eases (under subdivision 4 of section 549 of the Code of Civil Procedure) must distinctly define a cause of action which is alleged in the complaint to be fraudulent, or to have been fraudulently contracted, and limit the application for an order specifically to such cause of action, and thus present a distinct and definite issue upon the question of fraud for trial by the jury.

We are, therefore, of the opinion, that the order of the court below was correct, and should be affirmed, with $10 costs, besides disbursements.

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

Order affirmed, with $10 costs, and disbursements.


author: Davis, P. J.;

text:
    HENRY H. SCHUFELDT and others, Respondents, v. ALBERT SCHNITZLER and HERMAN MATHIAS, Appellants.

      Action, to rescind the sale of goods on the ground that the purchaser bought them, fraudulently, when insolvent- — -what^evidenee is admissible to rebut the presumption of fraudulent intent — when a purchase of goods by one who Tcnows himself to be insolvent is fraudulent.

    Where, in an action brought to set aside a sale of goods, on the ground that the defendant was at the time of the purchase insolvent, and that he bought them with an intent not to pay for them, it is shown that the defendant was in fact insolvent at the time of the purchase, and that, before the expiration of the credit upon which they were sold, he made a general assignment, it is competent for the defendant to show that a large portion of his debts were held by personal friends, that none of his creditors were pressing him, and that other friends had promised to loan him money, as these facts tend to. rebut the presumption of fraud, and to show that he had reasonable grounds for hoping that he might retrieve his condition and tide over his embarrassments.
    A trader who is hopelessly insolvent, and knows that he cannot pay his debts, and that he must fail in business, and thus disappoint his creditors, cannot honestly take advantage of a credit induced by his apparent prosperity, and purchase property which he has every reason to believe he can never pay for; and the intent to cheat may properly be inferred by the jury, from the fact of a purchase having been made under such circumstances.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon the verdict of a jury.

      A. Bl/u/menst/iel and Morris EB/rseh, for the appellants.

      E. P. JoJmson, for the respondents.
   Davis, P. J.;

This action is brought by the plaintiffs against Herman Mathias, and Albert Schnitzler as his general assignee, to recover possession of ten barrels of liquors sold by the plaintiffs to the defendant Mathias upon a credit of sixty days. The sale was made December 3, 1811, and the goods were shipped at Chicago and arrived in New York December 15, 1811. Mathias had previously accepted a draft for their price, payable sixty days from date. On December 26 following, Mathias made an assignment for the benefit of his creditors, to the defendant Schnitzler, and delivered the liquors in question as a part of his- assigned property. On January IT following, the plaintiffs demanded the goods of Schnitzler, who refused to deliver them. No- representations, either fraudulent or otherwise, were mad¿ at the time of the sale and purchase. On the contrary, the sale seems, from the evidence in the case, to have been pressed upon Mathias, and not sought for by him. The only question in the case is whether the purchase by Mathias was made under such circumstances that it could be treated as fraudulent by reason of his insolvency and known inability to make payment therefor. Evidence was given on the part of the plaintiff which, it was claimed, tended to show that at the time of the purchase Mathias was largely indebted beyond his means to pay, and that he knew that he could not pay his debts, and that he must fail in business and disappoint his creditors, and with such knowledge took advantage of a credit, induced by his apparent prosperity, to obtain property which he had every reason to believe he could never pay for. This evidence consisted almost wholly of proof of the amount due and owing by Mathias, of the amount of his assets both in goods and credits, and of their value, and of the amount of moneys borrowed of different parties previous and subsequent to his purchase of plaintiffs and prior to his failure. There was enough, we think, of this evidence, to carry the case to the jury upon the question of fraud. No exceptions whatever were taken to the charge in the case, and therefore the correctness of its legal propositions is not open to our consideration.. There was no exception taken to the denial of the motion for a new trial. There is nothing, therefore, in the case for us to consider, beyond the exceptions taken to the rulings made during the trial upon the admission and rejection of evidence.

The defendant, Mathias, was called as a witness on behalf of himself and his co-defendañt. He testified, in substance, that at the time of the purchase he had no intention to defraud the plaintiffs by obtaining their goods without payment, and that he had at that time no expectation of failing to continue in his business and meet his debts, as he relied upon his ability to continue it by reason of loans promised by friends, which he had no donbt of being able to obtain. He also testified that he did not know, at the time of such purchase, that he was insolvent; that he had no intention of making the assignment or of going into bankruptcy; and at that time expected to be able to work through his difficulties and embarrassments. It was shown that 'he was at that time indebted for borrowed money in the sum of $37,000. He was asked this question: “How much of that was due your personal friends?” This question was objected to, the objection sustained, and the defendant excepted. He was then asked: “Were you at that time actually pressed by any of your creditors for the amount of money you owed them?” This was also objected to, the objection sustained, and the defendants excepted. After naming several persons who, he testified, had promised to make him loans, he was asked: “What other persons promised to loan you money?” This was objected to as immaterial, the objection sustained, and the defendants excepted. We are not able to see why each of these questions was not proper in itself, and why the answer ought not to have been received. The question for the jury was not whether Mathias was or was not actually insolvent at the time of the purchase, nor whether he was or was not embarrassed or in difficulty in meeting his existing indebtedness, although those were facts elementary and important in aiding the jury in arriving at the real question upon which they were to pass. It has been uniformly held that known insolvency, and the omission of the purchaser to disclose the fact of such insolvency, are not in themselves sufficient to avoid a sale on the ground of fraud. (Nichols v. Pinner, 18 N. Y., 295; Wright v. Brown, 67 Id., 4; Mitchell v. Worden, 20 Barb., 253; Brown v. Montgomery, 20 N. Y., 287.) In addition to those facts, there must be evidence sufficient to satisfy the jury, either of an actual intent on the part of the purchaser to get possession of the goods without design to pay for the same then, or at the maturity of the credit, or that being embarrassed and insolvent and having knowledge of those facts, he had no reasonable hopes and did not believe that by continuing his business he could retrieve his fortunes and make payment for the goods purchased. A trader who is hopelessly insolvent and knows that lie cannot pay liis debts and that be must fail in business and tbus disappoint bis creditors, cannot honestly -take advantage of a credit, induced by bis apparent prosperity, and tbus obtain property which be bas every reason to believe be can never pay for. Tbe necessary result of a purchase under such circumstances will be to cheat and defraud tbe vendor, and the intention to cheat may properly be found therefrom, by tbe jury, in an action of this character. This is tbe substance of what was said in a case reported anonymously in 67 N. Y., 598. Tbe fact that Mathias was indebted in tbe sum of $37,000 borrowed money was put in evidence on tbe part of tbe plaintiff, for tbe purpose of establishing not only bis insolvency but tbe intention not to pay for tbe plaintiff’s goods, and that be acted without reasonable hope of retrieving bis condition, and without belief that be could possibly tide over bis embarrassments. In answer and in explanation of tbe fact of this indebtedness for borrowed money, be proposed to show bow much of it was due to personal friends who were willing to aid him by loans with a view to saving him from bankruptcy. This certainly seems to be competent upon tbe question of bis belief in bis capacity to continue in business and meet bis purchases. For if be could show to,tbe satisfaction of tbe jury that tbe boi’rowed money mentioned was owing to persons who would not press their claims, but would extend credit and give lenity to enable him to get through bis embarrassments, that was a fact justly to be considered as bearing upon bis intention and expectations at tbe time of purchasing tbe plaintiff’s goods. So, tbe fact that none of bis creditors were pressing him for tbe debts owing to them, would be another proper subject for consideration as to bis belief and intent. Both of these matters bear with greater or less force upon tbe real question to be determined by tbe jury, and tbe refusal to permit him to testify in respect to them seems to us, very clearly, to have been an error fatal to tbe recovery. He testified that be bad at the time of this purchase promises of loans to enable him to continue bis business, and be was allowed to state some persons who bad made promises of that kind. We do not see why he ought not to have been permitted to state what other persons bad also promised to lend him money. A trader in business, who bas tbe assurances of bis frienda that lie can call upon them for loans in the time of pressure or embarrassment, certainly has a right, if those assurances are made in good faith, to believe that by such means he can avoid any serious or fatal difficulty in continuing his business. It is not at all uncommon, in time of sudden pressure or panic, that men in large business are compelled to depend upon promises or assurances of this kind, and the fact that they do so, if it be established to the satisfaction of the jury, is some evidence at least to meet the inference that their continuing to make purchases of goods is without any belief or expectation of passing safely through such periods of embarrassment. It is not for us to consider what weight the jury might or might not have given to the evidence. "We are satisfied that it was competent and being competent it should have been received and submitted to the jury, and the refusal to receive it was such error as requires us to reverse the judgment, and order a new trial with costs to abide the event. Ordered accordingly.

Barrett, J., concurred.

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

Judgment reversed; new trial ordered; costs to abide event.


author: Davis, P. J.:

text:
    JOSEPH KOHN, Appellant, v. JOSEPH M. KOEHLER, Respondent.

      What scheme amounts to a lottery — 1 S. 8., 665, § 22 — 1 i?. 8., 667, § 32— when double the amount paid for a lottery ticket map he recovered — international comity does not compel this State to allow lottery tickets issued hy a foreign government to he sold within its limits.

    The plaintiff purchased of the defendant, in this State, an instrument called an Austrian Government Bond, by which that government promised to pay to the holder thereof a fixed sura of money, therein named, with interest thereon at the rate of five per cent., together with an additional premium of twenty per cent., and also agreed, in case the number of the bond should be drawn as one of the prize numbers, in drawings to be held as prescribed in the said bond, that then the holder thereof should receive an additional sum of money as a prize or bonus.

      Meld, that tbe scheme proposed by the Austrian government was a lottery, within the meaning of the statute (1 R. S., 665, § 22) prohibiting all lotteries in this State.
    That the sale of the said bond was the sale of an interest or ticket in a lottery, within the meaning of section 32 of 1 R. 8., 607, and that the plaintiff was entitled to recover thereunder, double the amount he had paid to the defendant on the purchase thereof.
    That his right so to do was not affected by the fact that the bond was issued by a'foreign government.
    That the fact that the statute virtually deprived the Austrian Government of the privilege of disposing of its bonds in this market, did not violate the international comity existing between the United States and the Austrian Government, or render the statute inoperative and void.
    Appeal from a judgment in favor of the defendant, entered on the report of a referee.

      Herbert T. Keieham and Zee Qoldma/rk, for the appellant.

      Sigismund Komfma/rm, for the respondent.
   Davis, P. J.:

This action is brought upon section 32 of article 4 of title 8 of part 1 of chapter 20 of the Revised Statutes (2 R. S., 6 ed., 923), which is in these words: “Any person who shall purchase any share, interest, ticket, certificate of any share or interest or part of a ticket, or any paper or instrument purporting to be a ticket or share or interest' in any ticket, or purporting to be a certificate of any share or interest in any ticket or in any portion of any illegal lottery, may sue for and recover double the sum of money, and double the value of any goods or things in action which he may have paid or delivered in consideration of such purchase, with double costs of suit.” *

The plaintiff paid to the defendant the sum of $72 for an instrument called an Austrian Government Bond. The bond provides that the Austrian government will pay to its bearer the principal sum of 100 gulden (Austrian value), in accordance with conditions set forth on the back of the instrument, together with one-fifth part of any such sum as may be allotted to the prize number of the bond, and which sum must amount to at least 120 gulden, Austrian value, with interest semi-annually on the bond until the same is drawn, at the rate of five per cent, per fl.nnnm, to the bearer of the coupons thereunto attached. By the rules and regulations concerning the drawing and redemption of these bonds, indorsed on the instrument in question, it is in substance provided that the bonds issued on the loan of March 15,1860, are divided into 20,000 equal series, and each series to the amount of 10,000 gulden is subdivided into twenty numbers, marked from one to twenty. Each of the bonds contains in its left heading the number of the series, and on its right its prize number. The drawing of the series numbers it is provided shall take place on the first days of February and August in each year. That of the prize numbers on the first day of May and the second day of November in each year. For the purpose of the drawing of the series 20,000 numbers are deposited in a wheel, from which the fixed number of series to be redeemed for the half year is drawn. The series numbers so drawn are then deposited in a second wheel, to await the next drawing of the prize numbers. On the day when the drawing of the prize numbers takes place twenty numbers, from one to twenty, are deposited in a separate wheel, whereupon the wheel wherein the series numbers are deposited is unlocked and one number drawn therefrom. This number designates the series of the bond which is entitled to the highest prize. Thereupon a number from the wheel containing the twenty prize numbers is to be drawn, and this number designates the bond which is entitled to the highest prize. In this manner the drawings are to be continued until all the prizes above 600 gulden are exhausted. All other bonds, not redeemed with one of the larger prizes, receive the principal sum, and interest, and twenty per cent, in addition. At every drawing the following prizes are drawn; first, one of 300,000 gulden, one of 50,000 gulden, one of 25,000 gulden, two of 10,000 gulden, fifteen of 5,000 gulden, and thirty of 1,000 gulden. Drawn bonds are to be paid three months after the drawing. Under this scheme the holder of a bond receives in any event the face value thereof, with interest at five per cent, up to the date of the drawing, and a premium or prize of twenty per cent. He has also a chance to draw one of the higher prizes above named. The bond pm-chased by the plaintiff gave him the absolute right to receive under the scheme of the loan the sum of 120 gulden and interest on 100 gulden at five per cent, per annum until the drawing of the bond, and a chance to draw a prize in money; which chance varied in possible value from 60,000 gulden down to 200 gulden. The question in the case is whether this constitutes a prohibited lottery within the Revised Statutes of this State. The learned referee was of opinion that it did not, because the holder of the bond is in any event to receive its par value and interest and a premium of twenty per cent., without regard to the question whether or not he drew one of the larger prizes.

The language of our statute is “no person shall set up or propose any money, goods, chattels or things in action to be raffled for, or to be distributed by lot or chance to any person who shall have paid or contracted to pay any valuable consideration for the chance of obtaining such money, goods or things in action.” (1 R. S., 665, § 22; 2 R. S., 6 ed., 922, § 47.) What is forbidden by this section, so far as it is applicable to the case before us, is that no person shall set up or propose any money to be distributed by lot or chance to any person who shall have paid or contracted to pay any valuable consideration for the chance of obtaining such money. It cannot be doubted that this bond of the Austrian government does propose money to be so distributed to any holder of the bond. Nor can it be questioned that the purchaser does pay a valuable consideration for the chance of obtaining a. share of the money thus to be distributed. He gets such chance in addition to what may be the full value of the money which he pays. But it is very clear that lie purchases and pays for the chance of obtaining a large sum of money, as well as for the much smaller amount which the bond absolutely secures to him. The chance is offered as an inducement to the purchase of the bond, and there seems to be no reason whatever to doubt that if in any exigency the State of New York should adopt such a scheme for the purpose of inducing the sale of its bonds, the plan would be a palpable violation of the provisions of the Constitution forbidding lotteries.

Under this scheme the Austrian government offers not only to refund the loan with interest, but to pay an absolute fixed premium on every bond, in excess of principal and interest. So far the scheme contains no elements of a lottery, and if it could be severed from the other provisions of the bond it would be perfectly lawful and valid. But in order to induce the prompt purchase of bonds which promise principal, interest and premium, it gives to every purchaser a chance in a lottery which forms a part of the plan of the loan, and is obviously intended to bring into operation, in order to facilitate the placing of the loan, every vicious principle which our statute and Constitution were intended to restrain and prohibit. Such a lottery acquires no validity under our laws, because it is connected with a loan either foreign or domestic. All the evils that attend ordinary lotteries are present in this scheme; and, indeed, are enhanced by the fact that the speculative spirit which leads men to invest in lotteries is largely encouraged by the absolute security against any actual loss. It is a great incentive to gamble for a prize, to know that nothing can be lost. To get the chance of a fortune in this form, many purchasers would be induced by the absolute character of the obligation so far as respects the face value, interest, and twenty per cent, premium promised by the bond, to purchase the bonds, who would otherwise not invest in them at all. This serious vice would be plainly seen if any person in this State in desperate straits, should set on foot a precisely analogous scheme and put his bonds or paper into the market, promising precisely the same absolute payment, and offering precisely the same chances for drawing large sums of money to the lucky few who should happen to hold the prize numbers to be drawn. And if such a scheme would be a lottery prohibited by our statute, when set on foot by any such person or persons, it must be so when set on foot by any corporation or government. Our statute has no extra-territorial effect to prevent other States or foreign governments from establishing lotteries as a part of their system of effecting loans. But it has full territorial effect to prevent the sale in our State of the evidences of loans which embody such lotteries. Otherwise it would operate only to prevent domestic lotteries; and thus would deprive ourselves of whatever benefits might possibly attend schemes of this character, and expose the citizens of this State to all the evils of foreign lotteries, while suffering other States or countries to enjoy such possible benefits. Hence the prohibition contained in the statute above quoted extends to every act or effort to set on foot a distribution of money by lot or chance within this State, by the sale of any ticket, certificate, paper or instrument, share or interest in any foreign lottery which would be illegal if sought to be established in this State. These principles, we think, are substantially settled by the decisions of the Court of Appeals and other courts, cited by the respective counsel on the argument. (Governors of the Almshouse v. Art Union, 7 N. Y., 228 ; Negley v. Devlin, 12 Abb. Pr., N. S., 210; Hull v. Ruggles, 56 N. Y., 424.) Negley v. Devlin was a case of a concert gift lottery set on foot in Washington, in the District of Columbia. It was, therefore, a foreign lottery in the same sense, so far as the power of our laws is concerned, as the lottery involved in the Austrian loan.

There is nothing in the suggestion of the learned counsel for the respondent that the statute of this State, because it virtually deprives the Austrian government of the privilege of disposing of its bonds in this market, is in conflict with the international comity existing between the United States and the Austrian government, and is therefore inoperative and void. Neither that government nor any other can enter into the markets of our State with any scheme for raising money by loan, which is in violation of our statutes. No international comity permits or tolerates financial transactions for the benefit of foreign powers which are forbidden by express statutes to our own citizens; and whenever they so seek to effect loans in our markets and of our citizens, their modes must not be in conflict with our Constitution, or statutes for the prevention of offenses against public morals.

The judgment must be reversed and a new trial ordered, with costs to abide event.

Barrett, J., concurred.

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

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


text:
    HORACE K. THURBER and others, Respondents, v. SAMUEL C. THOMPSON and others, Appellants.

      Action to charge a holder of stoclc issued for property purchased by the company, on the ground of a fraudulent over-valuation then'eof — when evidence of an offer for part of it, made to and refused by the company, is admissible.

    This action was brought to charge the holders of stock, in a corporation created under chapter 117 of 1853 and chapter 773 of 1870, with certain of the debts thereof. The defendants claimed that the stock was fully paid up, having been issued for the purchase of property necessary for the business of the company. The plaintiffs sought to recover on the ground that the stock had been fraudulently issued for property, the value of which had been greatly overestimated by the trustees. The company was formed for the purpose of laying out and subdividing land, into building or villa plots, and improving and selling the same.
    Upon the trial, the plaintiff called witnesses who gave evidence as to the value of the lands purchased by the company; their opinions being based upon the value of the land for agricultural purposes. The defendant called, as a witness, one of the stockholders of the company, who testified that he had made propositions to the company for the purchase of several of the lots, soon after the purchase of the land by the company, and that he offered as much as $4,000 for a single lot. Upon the plaintiff’s motion, so much of the answer as stated the price offered by him and refused by the company, was stricken out.

      Held, that this was error. That if the jury should hold that the offer was made in good faith, it would bear with force upon the question as to whether or not there had been a fraudulent over-valuation of the land by the trustees.
    Appeal from a judgment iu favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    This action was brought against Samuel O. Thompson, Frederick F. Thompson, Demás Barnes, Jacob Silberman, Lazarus Rosenfeld and John W. Ellis, as stockholders of the Lake Mahopac Improvement Company, a corporation organized under chapter 117 of 1853, ■ entitled “An act to authorize the formation of corporations for the erection of buildings,” and the amendatory act of 1870, chapter 773, by which the purpose for which the corporation might be formed was extended to “the laying out and subdivision of lands into building lots or villa plots, and' the improvement and sale thereof. ’ The defendants are sought to be charged, under section 10 of .the act of 1853, with the debts of the corporation, because of the- omission of the trustees to file a certificate that the capital stock had been paid in.
    The action is based on two notes, signed by the president and treasurer of the corporation in its name, which notes were given for an antecedent indebtedness for groceries, wines and provisions furnished by the plaintiffs to the Gregory House — a hotel owned and managed by the corporation. Judgment by default had been entered against the. company on these notes previous to the commencement of this action. The answers, besides a general denial, set up the special defense that the transactions in which the notes were given were beyond and outside of the scope of the business and power of the corporation, and that the stock owned by the several defendants was paid-up stock, issued, under section 2 of the amendatory act of 1870, for property necessary for the business of- the company, and that, as holders of such stock, the defendants were not liable for the failure of the trustees to file the certificate required by section 10 of the act of 1853. The plaintiffs sought to prove that this stock had been fraudulently issued by the trustees for property which had been grossly overestimated.

      Jolm I. Hill, William H. Scott, John Frcmkenheimer, and Fisher A. Baker, for the appellants.

      E. More, for the respondents.
   Davis, P. J.:

Having reached the conclusion that there must be a new trial in this case for an error of the court in excluding evidence, it is not deemed necessary to consider the numerous other propositions presented on the argument of the appeal, most of which can be raised on a new trial in clearer and more incisive form than they appear in the papers before us. Tbo case, was submitted to the jury by the court below, upon the single question of fraudulent valuation of the lands purchased by the company for its business pui’poses, and in payment for which a large proportion of the capital stock of the company was issued.

Upon this question of fraudulent valuation several witnesses were called on the part of the plaintiffs, who had long resided at Lake Mahopac, in the immediate vicinity of the lands purchased by the company, who gave their respective valuations, based, it must be conceded, largely upon the value of the lands for agricultural purposes. The company had purchased the lands not for uses of that kind, but for the purpose of bringing them into the market as village lots and villa sites, to be made valuable by reason of the extensive improvements devised and contemplated tobe carried out in connection with certain public improvements, which were expected to bring the property into convenient access to and from the city of New York. The real question for the j my in such a case is briefly stated by Mr. Justice Miller in the opinion in Boynton v. Andrews (63 N. Y., 93), read by the court to the jury on the trial of this case. He says: The real question in a case of this character is whether the property was placed and taken at a high valuation with a fraudulent intent of evading the provisions of the statute.” It cannot be doubted that, as was said also by Mr. Justice Miller in the same opinion, an error of judgment or mistake in placing the value of the property purchased as the capital of a manufacturing company, if made in good faith, and not to evade the provisions of the act in question, would not of itself subject the stockholders of the company to a personal liability. A discretion is placed in the trustees which calls for the honest exercise of their judgment.

In determining the question, as it was presented in this case, it was extremely important that the jury should have before them not merely the kind of evidence of valuation given by the witnesses produced by the plaintiff, but also evidence of the probable enhanced value growing out of the contemplated improvements made and to be made by the company, and of the public improvements which were expected to add largely to the value of the land for the now objects and purposes to which it was to be devoted. It would be extremely unjust to such a company as this to hold that farming lands upon which the site'of a city or town is about to be established, and which are bought for that purpose, and mapped, plotted and subdivided into city or village lots, are to be viewed upon a question of over-valuation, merely as agricultural lands; and especially when the question to be tried is one of fraud, depending upon the good faith of the action of the trustees of a corporation which has purchased the property as the site of a city or town. In such a case as this it is and must be entirely competent to show at what prices portions of the lands have been sold for the latter purpose, and what offers have been made for parcels of land with a view to their use as residences, or for the business purposes of a town or city. In this case a witness was called who was a stockholder in the company to the extent of $10,000 actually paid in, and who was also a trustee of the company, and was familiar with the locality and value of the lands purchased. He testified that he had made propositions to the company to purchase several of the lots at different points, and pay a considerable price; that his propositions were not accepted, and that they were made soon after the purchase of the lots by the company; that the lots he proposed to purchase were laid out in different parcels, and that he offered as much as $4,000 for a single lot. So far as related to the price offered by him, plaintiff’s counsel moved to strike out the answer. The court ruled that an offer made by the witness and not accepted by the company was not evidence of the value of the land, and granted the motion striking out the testimony. To this ruling the defendants excepted. ¥e think the ruling was clearly erroneous. It should be for the jury to say whether or not the offer of the witness was made in good faith, and how far it was satisfactory evidence to them of the value. It certainly bore with no inconsiderable force upon the question of fraudulent valuation, because at a fair proportionate rate for the whole of the lands, the price offered by the witness as he says in good faith, would show it to be of such value that the jury might not hold that the prices at which they were taken were not fraudulently excessive. "We see no way in which the error thus committed can be obviated. It follows that there must be a new trial.

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

Barrett, J., concurred.

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

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. THE CENTRAL CROSS-TOWN RAILROAD COMPANY OF NEW YORK, Defendant.

      Order discontinuing an appeal, entered by consent, should not be vacated on an ex parte application — when the attorney-general may properly discontinue an action brought by him in the name of the people for the benefit of private ■ persons.

    This action was brought by the people to restrain the defendant, a street railroad company, from laying its tracks in a portion of one of the streets in the city of New York. It was brought with the consent of the attorney-general. and was prosecuted by the attorneys for a rival railroad company, which had already brought a similar action against the defendants herein, in which it had been defeated, and a judgment rendered in favor of the defendant, which had been affirmed on appeal to the General Term.
    The complaint herein, having been dismissed upon the trial, the acting attorneys, without any express authority, appealed to the General Term. Thereafter, the attorney-general, upon the application of the attorneys for the defendant, signed a stipulation that either party might enter an order discontinuing the appeal without costs; the attorney-general holding that the action involved no question of public interest, but was a mere contest between rival companies, which liad, in effect, been already decided in the former action between them. Upon this stipulation an order discon-' tinuing the appeal was entered. Subsequently, the successor to the attorney-general who signed the stipulation for the discontinuance of the appeal, consented that the said order should be vacated and tile appeal prosecuted, if the court thought it could be done. Upon this consent, the attorneys who had brought the action procured an order, on an ex parte application, vacating the order discontinuing the appeal. Upon an appeal from that order, and from one denying a motion made by the defendant to vacate it; Held, that the order of discontinuance should not have been vacated without notice to the defendants.
    That, upon the merits, the order discontinuing the appeal was properly made, and should not have been vacated.
    Appeal from an order of tbe Special Term, vacating an order of discontinuance of the appeal from the judgment herein, and directing that the appeal proceed as if such order had not been made, and also an order denying a motion to vacate the said order.
    This action was brought in 1876 to restrain the defendant from laying its tracks in portions of West street in the city of New York, on the ground that, under its charter, it had no right to place them there.
    The Christopher and Tenth Street Railroad Company had already brought an action for the same purpose against the same defendant, and had been defeated therein, and also upon an appeal taken by it to the General Term. (A memorandum of the decision is published in 4 Hun., at p. 630.) This action was brought in pursuance of an application made by it to the attorney-general, and was conducted by its attorneys.

      Simon Sterne, for the appellant.

      O. E. Bright, for the respondent.
   Davis, P. J.:

This action was brought with the consent of the attorney-general, and prosecuted by Messrs. Flanagan and Bright attorneys. An application was made to the attorney-general before the trial of the issues to discontinue the same, but he concluded that the action might be tried upon its merits. Upon the trial at Special Term the complaint was dismissed upon the merits. Afterwards, and without any express authority from the attorney-general, an appeal was taken from the judgment by the acting attorneys in the case. An application was subsequently made to the attorney-general to discontinue the appeal and arrest the further progress of the case. That application was granted for the reasons assigned in an opinion given by the attorney-general, which is as follows:

This action, nominally by the people, is in fact a private controversy between two rival railroad corporations. It involved no question of public interest, and ought not to have been commenced. The main interest of the public in such corporations is to have, as an equivalent for the franchise, safe, cheap and convenient facilities for travel, and the prevention of abuses of power. In a private action between these coiporations, the defendant company was adjudged, by the General Term of the Supreme Court, to have kept, in the construction of its road, within its chartered powers. A. judgment to the same effect has been rendered in this action after a trial upon the merits. The courts, therefore, have twice declared that there is no cause for forfeiting the defendant’s charter. I am of opinion that the decision of the courts is clearly right, and that the litigation in the name of the people should terminate. The practice is quite too common, where private corporate interests appear to conflict, for one interest to invoke the interposition of the State, to destroy its competitor, upon some technical or trivial grounds, and use the attorney-general as a sort of public executioner for that purpose. I have endeavored to keep my official action uniform against such use of the authority of this office.

“A. SCHOONMAKER, JR.,

“ Attorney-General.”

The attorney-general, and the attorney for the defendant in the action signed a stipulation consenting that the appeal from the judgment be discontinued without costs to either party against the other, and that an order to that effect be entered without motion by either party, which order was entered accordingly. On January 29, 1880, the present attorney-general signed a consent on the part of the plaintiff that the order discontinuing the appeal “ be vacated and set aside if in the judgment of the court the same can now be done, and that the said appeal proceed to a hearing in due course, and that such order be made in the premises as may- be proper,” and on January 31, following, an order was entered ex parte by the Special Term, directing that the order discontinuing the appeal be vacated and set aside and that the appeal proceed as if such order had not been made, and that the plaintiff have twenty days from date to serve a proposed case on appeal. Application was then made and an order obtained on behalf of the defendants, requiring the plaintiffs to show cause why the order vacating the order of discontinuance should not itself be vacated. Upon the hearing of that motion both parties appeared and the court denied the motion. Appeals were taken by the defendant from both of these orders.

It was probably in the power of the court, at Special Term, to vacate the order of discontinuance and reinstate the appeal in its discretion. But it certainly seetas 'to have been improvident to have done so, upon an ex parte application, and upon the consent of one of the parties to the action, who had stipulated that the same should be discontinued without costs to either party. The defendant certainly had sufficient interest in the question to have been entitled to notice of the application so seriously affecting his rights. The fact, however, that the order was improvidently granted may be deemed cured by the subsequent proceedings which led to a hearing of the motion upon the merits as presented by both parties, and resulted in the refusal to vacate the ex pa/rte order.

The question, therefore, comes before us as a matter of discretion upon the merits. We have carefully examined all the papers presented on these appeals, and are of opinion that the views expressed in the opinion of the attorney-general were eminently sensible and just. The papers show that the exact question involved in this action had been fully litigated and passed upon, both by the Special and General Terms, on their merits, in an action brought by the party interested in the prosecution of this action, and the mere change of the parties, and of the form of the action, alone prevented that judgment from being an estoppel in this case. The controversy was really one between two railroad corporations, to determine whether one of them could lawfully exclude the other from the occupation of portions of a public, street for the exercise of its franchise and the convenience of the public. In that controversy, when prosecuted between the parties interested, the °ourts upheld the right of the present defendants to the use of the loeus in quo, and it was after such a decision that the antagonist railroad company resorted to the attorney-general, and sought to enlist the people of the State of New York in a controversy in which, it is manifest, the people had no substantial interest. The public street did not belong to the State in its corporate capacity, but probably to the city of New York, and the State had no greater interest to determine the question of the right of the defendants to use it for railroad purposes, than to determine all controversies as to intrusions or encroachments on public highways throughout the whole State. It was, as the attorney-general suggests, an improvident litigation for the State to enter upon, and the suit ought not to have been allowed. Having been allowed, however, it remained altogether under the control of the attorney-general, to be prosecuted, or abandoned, as his judgment dictated. As was said in People ex rel. Peabody v. Attorney-General (22 Barb., 114): “Although private rights are always more or less involved in the action (in the name of the people), yet it is, in substance as well as in form, an action on behalf of the people. It must be prosecuted in their name and by the officer whose duty it is to protect their rights.” And again, the court say, It is a legal presumption that he (the attorney-general) will do his duty; that he will act with strict impartiality. In this confidence he has been endowed with a large discretion. The exercise of such discretion is, in its nature, a judicial act from which there is no appeal, and over which courts have no control.” Substantially the same views were expressed by Allen, J., in People ex rel. Demarest v. Fairchild (67 N. Y., 384).

In this case, private interests undertake to conduct and control the public duty of the attorney-general; and they ask the court, because his successor consents, virtually to direct that an appeal shall be prosecuted in a case where the attorney-general has deliberately decided that it ought to be discontinued. This certainly should not be done except in a case presenting strong merits.

In this case we are unable to see any such merits as call for the intervention of the people. We think the discontinuance should not have been disturbed; and that the orders appealed from should both be reversed, with $10 costs, and the disbursements of the appeal.

Bárrett, J., concurred.

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

Orders reversed, with $10 costs, and disbursements.


text:
    FRANK M. HURLBUT, Appellant, v. CHARLES W. DURANT, Respondent.

      JEkceeutor — when he is not personally liable to a legatee for a failure to pay oner the legacy.

    The mere failure of an executor to pay go a legatee the full amount of his legacy will not, in the absence of proof that he has become personally liable for the residue thereof by reason of some illegal or improper conduct, or that he himself claims (o be entitled thereto, authorize an action to be brought against him individually to recover the same.
    ■ Appeal from a judgment in favor of the defendant, entered on the dismissal of the complaint at the Circuit.

      John, 8. Hill, for the appellant.

      Qa/rTAsle Horwood, Jr., for the respondent.
   Davis, P. J.:

The legacies to recover the balance of which this action was brought, were given to the defendant as executor of the testator, in trust to pay interest thereon for five years, and afler the expiration of five years to pay over the principal to the respective beneficiaries. The five years having expired the executor and trustee paid the several legacies to the parties entitled thereto excepting a sum equal to one per cent, on each of the same. To recover that sum this action was brought by the appellant as assignee of the several beneficiaries. On the trial it was shown by the proof and pleadings that the defendant was the only executor under the will of the testator, who qualified, and that as such he received the amount of the several legacies and paid the annual interest for the periled of five years, and then paid to the several beneficiaries respectively the whole amount of such legacies except the several sums demanded by the complaint. It nowhere appears in the pleadings or evidence why the residue was not paid, except so far as that is shown by a recital in the assignment, which was, of course, not evidence of the fact recited. The defendant was sued in his 'individual capacity. In that capacity he was not liable without proof that he had become individually responsible by reason of some illegal or improper conduct, for retaining the moneys and refusing, to pay the same over. Nothing of that kind was shown. The complaint alleges in respect of each of the sums mentioned, that the payment thereof had been demanded from the said defendant and that he refused to pay over the same, and still retained, and had wrongfully converted the same to his own use. This allegation was denied by the answer. The court held it material that it should be proved, probably not upon the ground that the action is for a tortious conversion, which would be a mistaken view, but because the defendant could ■not be charged personally for a mere neglect or omission to pay, which was all that was shown in this case. There was no proof that he had asserted or claimed any title to the balance of the legacies.

The counsel for the appellant asserts that the balance was retained by the defendant under a claim that he was entitled to it for his commissions as executor and trustee. If that fact had been proved another question would be presented, but no proof of the kind was given in the ease. It is at most a mere naked case of a failure by an executor to pay the whole of the legacies which the plaintiff’s assignors were respectively entitled to receive. Such a failure we think did not in itself amount to a wrongful conversion of the fund to his own use, and therefore did not subject him to an action against him in his individual capacity.

As the plaintiff left the case upon the trial we think the decision made by the court'was correct, and that the judgment should be affirmed.

Barrett, J., concurred.

Judgment affirmed, with costs.


author: Beady, J.:

text:
    THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellants, v. THEODORE S. KENT, Respondent.

      Action to compel an officer of the city of New Yorlc to account for the fees received hy him — fact that no salary has hem attached to the office is no defense — section 96 of chapter 335 of 1873.
    Under section 96 oí chapter 335 of 1873, — providing that no officer of the city of New York should have or receive to his own use any fees, perquisites or commissions, or any percentages, but that every such officer should be paid a fixed salary, and that all the fees, percentages and commissions received by him should be the property of the city, — it is no defense to an action brought to compel one of the city officers to account for the fees received by him, that no salary has ever been fixed or attached to his office.
    Appeal from a judgment entered upon an order sustaining a demurrer to the complaint.

      T. B. Glcurlcson, for the appellant.

      John, ToJhnmter, for the respondent.
   Beady, J.:

This action was brought to secure from the defendant an accounting for the fees received by him as inspector of weights and measures, and for payment of the same.

The complaint contained the necessary averments to entitle the plaintiff to the relief demanded upon a proper interpretation of section 96 of chapter 335 of the Laws of 1873, which declares that no officer of the city government, except the city marshal, should have or receive to his own use any fees, perquisites or commissions or any percentages, but every such officer should be paid a fixed salary, and all the fees, .percentages and commissions received by him should be the property of the city. A demurrer was interposed upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and the learned justice, at Special Term, sustained the demurrer, and in a very brief opinion expressed his views. His conclusion was that, as a fixed salary had not been attached to the office, as contemplated by the chapter mentioned, its pro visions had no application.

This view is regarded as erroneous. It is not deemed necessary to consider the previously existing laws in reference to the office of inspector of weights and measures, nor the statutes in reference to their fees, the right of the plaintiff resting wholly upon the effect of the statute already mentioned. By its provisions, the defendant, as an officer, was prohibited from receiving to his own use any fees, perquisites, commissions or percentages which were declared to be the property of the city. It is not necessary to the success of the plaintiff that the salary should be fixed, because that is an entirely different and independent feature of the statute, to .enforce which the defendant himself/ as one of the officers included within its terms, had his remedy. He could have compelled the proper authorities, as provided by the language of the statute, to fix his salary (see Act, § 97, supra), and it would necessarily relate back to the time when the act .mentioned took effect, or to the time when the first fees were received after it took effect, and when, necessarily, his duties as an officer were exercised. To adopt any other construction of the statute would be to allow the officer to receive to his own use the fees and percentages, in direct opposition to the statute. Whether he could retain them in his possession by virtue of any lien upon them, is a question that might arise if the city of New York were bankrupt, which is not supposed to be the fact.

In the case of McCormick v. Kissam (MS., Gen. Term Oom. Pleas), to which the learned justice at Special Term referred, and which he regarded as conclusive of the rights of the plaintiff herein, no allusion seems to have been made to the statute of 1873, supra, and its effect was not therefore considered.

The defendant was the custodian of the moneys received by him after the act of 1873 took effect, and, as such, was bound to account for them. Whether lie would have any right to affirmative relief in this case, by answer, is a question we are not called upon now to consider. It is sufficient for the judgment of this court that the plaintiffs are rectus in curia, as they seem to be for the reason ‘assigned.

The judgment should be reversed, and the defendant permitted to answer over, on payment of costs.

Davis, P. J., and Barrett, J., concurred.

Judgment reversed.


author: Brady, J.:

text:
    PATRICK FARRELL, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Evidence — when the acts and declarations of confederates are admissible against the principal.

    The acts and declarations of accomplices or confederates, though occurring in the absence of the principal, arc admissible against him if there be sufficient evidence to establish, prima facie, a combination among them to commit the offense with which the principal is charged.
    Writ of Error to the court of General Sessions to review the trial and conviction of the plaintiff in error of the crime of petit larceny.
    The plaintiff in error, Martin McNally, Bernard Fallon, Lawrence Bowe, and Henry Muller, were indicted for larceny and receiving stolen goods, to tvit: a quantity of cotton, the property of one George C. Hartick. The testimony showed that Farrell was a cot- • ton sampler, that Fallon was employed with him, as also McNally-; that while they were engaged in sampling the cotton, Farrell filled two or three bags with cotton, which were removed, some by him and some by others, to the saloon of one Meehan, whence they were taken by the defendant Bowe to his place of business, and that the defendant Farrell received from Meehan money in payment for the cotton thus taken.

      ~Wm. F: Howe, for the plaintiff in error.

      JBenj. K. Phelps, for the defendant in error.
   Brady, J.:

The plaintiff in error was indicted for petit larceny in feloniously taking cotton. The offense consisted in his taking larger samples of cotton from bales than was necessary, and selling, tbe excess or surplus to one Lawrence Bowe. Tbe testimony by which the people sought to demonstrate the guilt of the plaintiff in error was regarded by the jury as sufficient for that purpose, a conclusion which seems to be entirely justified by a perusal of it. The plaintiff in error had the benefit of a personal examination, and such denials and explanations as he was able to make. But they had not sufficient force to overcome the paramount circumstances arrayed against him.

The chief objection to the conviction was in allowing proof of the acts of persons joined in the indictment, of a character similar to that for which the plaintiff in error was on trial. These persons were assistants of the plaintiff in error in the sampling of cotton, which lie was employed to perform, and were, according to the evidence, undoubtedly connected with him in the illegal purpose which he was attempting to carry out. In other words the evidence clearly showed that the whole party were engaged in this plan of stealing cotton, by which it was removed to a place named, and thence taken by the receiver to his own place of business, where payment was made for it by means of checks or memoranda given to them. There was sufficient evidence submitted to the jury to warrant the conclusion that these persons were thus, acting in combination when the offense was committed. The offense was stealing cotton, in which they were all engaged. Under such circumstances the evidence of acts and declarations of accomplices, even in the absence of the principal, could be properly received, if followed by evidence sufficient to submit the case to the jury. The acts and declarations of confederates are admissible if there be any evidence prima facie sufficient to show a combination to commit the offense. (People v. Monnais, 17 Abb. Pr., 345 ; Ormsby v. People, 53 N. Y., 472; Kelley v. People, 55 Id., 566.)

We think that there is no apparent reason for disturbing the judgment, and it should be affirmed.

Davis, P. J., and Barrett, J'., concurred.

Judgment affirmed.


text:
    MARY E. LEICHTWEISS, by ANNIE LEICHTWEISS, her Guardian, Respondent, v. HANS TRESKOW, Appellant.

      An infant is not liable to an action for a breach of a promise to marry.

    An action for a breach of a promise to marry will not lie against an infant, even though the plaintiff may, by reason of such promise, have been induced to allow him to have connection with her.
    Appeal from a judgment, in favor of the plaintiff, entered on tbe verdict of a jury at a Circuit, and from an order denying a motion for a new trial, made on the minutes of the justice before whom tbe action was tried.

      Henry Bisohoff, Jr., cmd Wm. O. Clifford, for tbe appellant.

      AdoT/ph Cohen, for tbe respondent.
   Brady, J.:

' This action was bi’ought to recover damages for breach of promise of marriage. Tbe case, on tbe evidence, is an aggravated one, because, according to tbe plaintiff’s statement, .she yielded to -the solicitations of tbe defendant under tbe promise of marriage, and permitted him to have connection with her. He set up, however, as a defense, that at tbe time of tbe promise of marriage made, if any, Ije was an infant under tbe age of twenty-one years. •

- Hpon tbe trial tbe plaintiff testified that be named tbe 16th of March as tbe day of their marriage, which was bis birthday; and, on cross-examination, said that be gave as a reason for selecting that as a day for tbe marriage that he was not of age, and would not be until that time. Tbe defendant testified as to bis age, and called bis uncle, Charles Jouin, who gave testimony to tbe same effect; all tbe evidence tending to establish, beyond doubt, tbe fact that tbe defendant at tbe time tbe promise was made was, as be claimed to be, an infant. Tbe learned justice presiding thought tbe defendant bad been guilty of perjury; taking bis testimony, upon the trial, and bis answer, into consideration, and felt it bis duty to commit him for the offense. Just before the testimony was closed, a discussion in reference to that took place, in which the counsel for the defendant asked the learned justice whether his client was committed for perjury on the stand or in his answer, to which the court responded, In the answer.” The counsel for the defendant then asked the court to charge the jury, that if they believed the defendant was under twenty-one years of age at this time, they must find a verdict for the defendant; which the court denied, and the defendant’s counsel excepted. The charge contains no allusion to the defense of infancy. It is impossible, therefore, that the verdict can stand. The defense of infancy is a good one, and though the request mentioned, abstractly considered, may be regarded as indefinite from the use of the words “ at this timenevertheless, taken in connection with the observation of the defendant’s counsel immediately preceding it, viz.: Our defense is that, he being under age, the promise is not binding,” makes it sufficiently definite, particularly when we take into consideration the fact that infancy was set up as a distinct defense.

In Holt v. Ward (2 Strange, 937), it was decided that a contract to marry by an infant is not void but voidable, although a person of full age, contracting with an infant, is bound by it; and hence an infant might maintain an action against an adult, but an infant defendant, was not liable. This case is approved, and the decision based upon it, in Hunt v. Peake (5 Cow., 475). In Hamilton v. Lomax (26 Barb., 615), both these cases were considered, and it was, declared that a promise of marriage by an infant was not binding, and further, that a person seduced could not maintain an action,for the seduction. The same result was declared in the case of Fiebel v. Obersky (13 Abb. Pr. N. S., 403). Even, however, if the request, made on behalf of the defendant, was so indefinite as to be objectionable and unworthy of consideration, nevertheless, as the infancy of the defendant was one of the issues presented by the pleadings and tried, any suggestion in relation to it was sufficient, because, it is the duty of the justice presiding to submit the issues created by the pleadings, and sustained by the evidence, to the jury for their consideration. There must be a mistrial where the issues are. not thus treated.

ITnfler all the circumstances, we cannot but regret that we are obliged to pronounce this j uclgment, because tbe defendant, on tbe evidence, unless excused by nonage, was justly punished.

Tbe judgment must be- reversed, and a new trial ordered, with costs to abide event.

Davis, P. J., and Barrett, J., concurred.

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


author: Barrett, J.:

text:
    JOHANNES RUGER, Appellant, v. THERESA HECKEL, otherwise known as THERESA RUGER, and CHRISTIAN HECKEL, Respondents.

      Judgment for divorce — who cannot attach it for fraud and collusion on the part of the pan'ties procuring it.

    Where, in an action brought by a husband to procure a judgment declaring void the marriage contract, on the ground that a former husband of the wife is still living, and that the former marriage is still in force, it appears that the wife had, before her second marriage, procured, in an action brought by her in a court of this State, having jurisdiction of the person and of the subject matter, a divorce from her former husband on the ground of his adultery, tbe plaintiff cannot go behind tbe said judgment and show that it was obtained by the fraud and collusion of the parties thereto, and by false testimony.
    Appeal from au order denying tbe plaintiffs motion for a judgment tbat a marriage between bim and tbe defendant, Theresa Heckel, otherwise known as Theresa Ruger, may be dissolved and declared null and void on tbe ground tbat she had a former husband still living, and tbat tbe former marriage was still in force.
    Tbe referee to whom it was referred to report as to tbe facts in tbe action found, among other things, tbat on March 3, 1878, tbe plaintiff Johannes Ruger was married to tbe defendant Theresa Heckel, in the city of New York, and that thereafter they lived together as man and wife, from tbe said March 3, 1878, to December 18, 1878, and tbat on December 18,1878, the said Theresa, without tbe consent or permission of tbe said plaintiff Johannes Ruger, left bis home, and tbat thereafter the said plaintiff Johannes Ruger and the said defendant Theresa Huger have not lived together as man and wife; that, prior to the marriage of the said plaintiff Johannes Huger and Theresa Heckel, she declared and represented to him that she was divorced from her husband, that she had a right to marry again, and that he, her former husband, had no such right; that she then passed under the name of Theresa Fink, the said name of Fink being the name of her father, and that the plaintiff Johannes Huger was not then informed, nor did he know, until after she had left him, the name of her former husband, Christian Heckel; that, subsequently to the separation of the said parties, and in or about the month of February, 1879, the said plaintiff Johannes Huger for the first time learned of the grounds upon which the divorce of Theresa Heckel against her husband, Christian Heckel, was obtained, viz.: the alleged adultery of the said Christian Heckel, and that it was untrue'that he, the said Christian Heckel, had committed adultery; and further, that the said divorce was obtained by collusion between the said Theresa Fleckel and the said Christian Fleckel; that the said Christian Heckel and Theresa Heckel, on August Y, 18Y0, were married in the city of New York, and thereafter lived together in the city of New York, as man and wife, until in or about the month of August, 18Y3; and that while so living together as man and wife, at the suggestion of Fink, the father of the said Theresa, they met at the house of Fleiman Steinert, an attorney and counselor of the Supreme Court, and then and there, under the advice of the said Steinert, it was agreed between the said Christian Heckel and Theresa Heckel that a divorce should be obtained by the said Steinert for the said Theresa against the said Christian Heckel; that subsequently a suit was commenced by the service of a summons upon the said Christian Fleckel, and that no other papers were served upon him; nor did he know, until after the separation of Johannes Huger from the said Theresa, of the ground upon which the divorce was. obtained; that the action to , obtain the decree of divorce was conducted by the said Heiman Steinert, as attorney and counsel for the plaintiff in the Court of Common Pleas for the city and county of New York; that, upon a reference in that action to inquire into the facts set forth in the complaint, the act of adultery by tbe defendant was sworn to by a person calling himself David Lewinski, residing at No. 69 Bayard street, in the city óf New York, and that his testimony was the only evidence produced or given to prove the adultery of the defendant, Christian ITeckel; that the testimony of tbe person calling himself David' Lewinski, upon which the decree of divorce was granted, was in all respects false and unfounded; that David Lewinski, who at that time resided at No. 69 Bayard street, in the city of New York, never appeared before the said referee, nor gave any testimony on the subject, and that he was wholly unacquainted with any of the parties to the suit, and with the person with whom the alleged adultery was committed; that the proof of adultery in the said action was fabricated for the purpose of obtaining a .decree of divorce on the ground of adultery, and for the purpose of deceiving and misleading the court in which the said action was pending; that there was no evidence to support the charge- of adultery in the said action against the said Christian Heckel; and that the decree of divorce was fraudulently obtained.

      Eckocvrd Fitch, for the appellant.
    The defendants were unrepresented.
   Barrett, J.:

This case is within the principle of Kinnier v. Kennier (45 N. Y., 535). It was there held that, although a decree of divorce had been obtained by collusion and fraud, a person subsequently marrying one of the divorced parties could not avail himself of such fraud to obtain a judgment of nullity. “ This decree,” said Church, Ch. J., “was binding upon the parties to it within this rule (laid down by Story in his Equity Jurisprudence, section 887). No fraud is alleged by either against the other, and neither could assert that it was hot a valid judgment, as they 'were both equally guilty of the fraud. .(Bish. on Marriage, § 706.). It effectually divorced the parties to it, and their marriage was no longer in force in any legal sense. The plaintiff in this action has not been defrauded, nor is he injured by it. The plaintiff was entitled to marry a marriageable person, and though she may not have been in other respects all he anticipated, or all that was desirable, yet she was competent to marry, because her former marriage was not then in force, and, being competent, it is of no legal consequence to the flai/ni/iff how she Hecame so. Conceding fraud, as alleged, he cannot avail himself of it.”

The present defendants were divorced by a judgment of the Courf of Common Pleas. The court had complete jurisdiction. Of that, there is no question. The proceedings and decree are-all perfectly regular and valid upon their face. But the present plaintiff goes behind all this. "What he asserts, upon evidence dehors the record, is, that the judgment was obtained by collusion, fraud and false testimony. lie was not, however, defrauded thereby. Nor, in fact, was any one in pai-ticular. The fraud was not upon individuals, but upon the law and the court. No one has a strict right to the vacation of such a judgment. Certainly not the parties thereto, who are inpcuri deUcto ; nor strangers to the record, who are not affected thereby. The court, upon which the imposition has been practiced, may deal- with its own judgment as it sees ft. It may institute an independent inquiry, and, upon being satisfied as to the fraud, may vacate the judgment of its own motion. So, upon its attention being called to the fraud by any proper person or in any proper manner. The court will, however, since the matter is entirely under its control, carefully consider the effect of its action, and will not hesitate to retain the decree if the rights of innocent parties would be injuriously affected by the vacat/wr. Whatever relief may ultimately be afforded to the plaintiff, resulting from any possible action of the Court of Common Pleas with respect to its judgment, as to which we need not speculate, it is entirely clear that- the present action cannot now be sustained.

The order denying the plaintiff’s motion for judgment must, therefore, be affirmed.

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

Order affirmed.


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    DAVID McPHERSON, Respondent, v. CHARLES COX and others, Owners of the Bark “CHARLES COX,” Appellants.

      Master of vessel — power of-to agree that a dispute as to the construction of a cha/rterparty shall abide the decision of a pending suit — what acts do not amount to a , duress.

    The defendants chartered to the plaintiff a bark owned by them, for a voyage from Charleston, S. C., to Liverpool, for a sum named in the charter-party, agreeing that if there should be any excess in the freight ou the cargo procured by the plaintiff over the amount so specified, it should be settled at Charleston, before the vessel sailed, by the master giving his draft for such excess, payable ten days after the vessel’s arrival at Liverpool. A dispute having arisen as to the amount of such excess, and the manner of computing the freight on the cargo, the plaintiff, who was also the agent of the owners at Charleston, refused to allow the vessel to clear from the port unless the master would give a draft for the excess, as computed by him, and sign an agreement that the question involved should abide the decision of the United States Court in Charleston, in a case then pending, and which was claimed to involve the same question. The master having given the draft and signed the agreement as required, and the United States court having decided the case referred to in accordance with the plaintiff’s claim, the latter brought this action to recover the amount due upon the draft.
    Held, that the master had, under the circumstances, power to make the said agreement.
    That he did not sign the same under duress.
    That the plaintiff was entitled to recover.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. *
    The action was brought upon a bill of exchange made by the master of the defendants’ vessel, and an alleged contemporaneous agreement between the master and the plaintiff, as the charterer of the vessel, providing that the differences between them in reference to the construction of certain clauses in the charter-party should abide "the event of the decision of the “ United States Court at Charleston,” in the case of the barkentine Kiota.

    The charter was for a voyage from Charleston, South Carolina, to a direct port, either Liverpool or Havre, with a cargo of cotton, or other lawful merchandise; the plaintiff agreeing to pay to the defendants for the use of the vessel the round sum of LI,350 sterling. Bills of lading were to be signed without prejudice to the charter, and the difference between the bills of lading and the charter-party was to be settled at Charleston before the sailing of the vessel, in accordance with the rates of freight, and weight, gauge or measurement, expressed in the bills of lading. If the difference should be in vessel’s favor it was to be paid in cash. If in the charterer’s favor — that is, if the freight on the cargo secured by him exceeded the charter money, it was to be paid by the captain’s bill of exchange, payable ten days after the arrival at the port of discharge.
    After the cargo was on board, and the vessel ready to sail, the plaintiff, who was also the agent of the vessel, calculated the freight upon the alleged gross weight of the cotton shipped at Charleston, and from the total amount so arrived at he deducted the charter money of LI,350, and requested the master’s signature to a bill of exchange for the difference between those two sums, viz.: L62/T, 2s. Id. The master objected to that method of calculation, and refused to sign the bill of exchange, for the reason that the cargo was to be transported to Liverpool and the freight collected there, where, according to the universal custom in that port, freight was collectible only on the net weight of cotton delivered. Therefore, the master would be unable to collect the amount of freight which the j>laintiff charged to the vessel in his calculation, and consequently the owners would not realize the whole charter money stipulated for in the charter-party, but on the contrary a sum considerably less; that is to say, they would lose the difference between the amount of freight estimated upon the gross weight shipped, and the amount collectible on the net weight delivered. That difference amounted in this case to the sum in controversy in this action.
    The plaintiff insisted that the settlement should be made without reference to the amount of freight collectible at Liverpool, and he tendered to the captain for signature a bill of exchange for the amount claimed by him, together with an agreement to have the question involved abide the event of the decision of the United States court in Charleston, in the case of the barkentiue Kioto,;
      and the plaintiff refused to allow the vessel to clear, the port unless the bill of exchange and agreement were signed. The master finally signed the bill of exchange and the agreement. The whole amount of freight which could be collected at Liveiq>ool was £1,893 13s. 5d. That amount exceeded the charter money by £543 Is. Id. only, which sum was paid to plaintiff on account of the bill of exchange.
    The recovery in this action is the difference between the amount of freight actually collectible under the bills of lading at the port of discharge, and the freight on gross weight shipped as computed by plaintiff at Charleston.

      Joseph A. Shoudy, for the appellant.

      William W. Goodrich, for the respondent.
   Barrett, J.:

In our judgment, the interpretation placed upon the contract in question by the learned counsel for the defendants is a correct one. It was never the intention to charge the owners of the vessel with the diminution of freight, resulting from the custom of the port of Liverpool. The owners were to receive for their vessel the full, round sum of £1,350. The bills of lading were to be signed without prejudice to the charter. Under the construction contended for by the plaintiff, these words “without prejudice to the charter” are in effect eliminated, and the owners are to receive less than the £1,350. It is true that the charter-party provided for the settlement of any difference between it and the bills of lading at Charleston, before the vessel sailed, in accordance with the rates of freight and weight, gauge or measurement expressed in the bills of lading. But this simply furnished a basis for calculation: It did not throw upon the ■ vessel the burden of the Liverpool custom. The contract must be considered in its entirety and full effect given to all its provisions. No construction does this, which directly or indirectly deprives the owners of any part of the £1,350 specifically agreed to be paid for the use of their vessel. Further, the gross weight was not, as a matter of fact, expressed in the bills of lading. If its insertion had bee-n insisted upon by the charterer for the purpose of depriving the owners of their just rights under a strained and narrow construction of the clause in question, the captain would have been justified in “expressing” as well the Liverpool net weight.

The difficulty in the case, however, lies in the giving of the bill of exchange and the signing of the arbitration agreement. ¥e have no doubt of the captain’s power to do this under the circumstances. There was no duress. That possibly might have been predicated of an independent demand for the bill of exchange, under penalty of the stoppage of the vessel. But that was not what the charterer did. Iiis good faith in making the claim is not questioned. It was not put forward fraudulently or oppressively, but because he honestly believed that he was right in his construction of the charter-party. He certainly was entitled then and there to an adjudication upon the question. Such an adjudication would naturally have been obtained in the federal court at Charleston. It would probably have involved the libeling of the vessel and entailed delay and expense, highly prejudicial to both parties. A similar question was then pending in a case in the United States Court, the same court to which the charterer here would have had a right to resort. Hnder these circumstances, he proposed that the disputed question should abide the decision in such case. The proposition was accepted, though reluctantly, and an agreement to that effect was signed. The decision in the pending case was favorable to the charterer’s view, and we see no escape from the conclusion that the defendants must submit thereto. Various objections are urged to defeat the effect of this decision, but they are as strained and narrow (e. g., that the submission was as to a barkentine, while the decision was- as to a bark) as the plaintiff’s contention with respect to the charter-party. There can be no doubt that the facts in the test case were substantially the same as in this. Of that, too, the captain could have assured himself before he signed the agreement. 'What, then, the charterer said was, not that he would detain the vessel until the captain signed the bill of exchange, but in effect that he would maintain his position and claim his legal rights, unless the captain consented to a speedy, practical and inexpensive, though not direct, method of obtaining tbe opinion of the proper court upon the disputed point. That cannot be said to amount to duress in any just sense of the term. It follows that the defendants are bound by the decision. The result is undoubtedly the same as though' they had been subjected to a protracted litigation in the same court..

We are, therefore, constrained to affirm the judgment appealed from.

I)avis, P. J., concurred.

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

Judgment affirmed, with costs.


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    In the Matter of the Petition of ELIAKIM FULLER, to Vacate an Assessment, etc.

      Contracts made Try public officers — their validity depends upon the tmthority of the officer, and is not affected by his intentions or belief.

    On December 12, 1871, the Commissioners of Central Park passed a resolution authorizing their treasurer to carry into execution, by contract or otherwise, the regulating, grading, surveying, paving and improving of a certain portion of One-Hundred-and-Fifty-fifth street. Thereafter, and prior to June 17, 1872, the proposal of one Cummings for the regulating and grading of the said street was accepted, and a formal contract was directed to be prepared. On that day, the Department of Public Works assumed, under chapter 872 of 1872, exclusive control over the said work, and thereafter, and on July 12, the Commissioner of Public Works awarded the contract to Cummings, deeming it his duty to do so, because his bid had already been accepted by the Commissioners of the Central Park.
    On an application to vacate an assessment laid to cover the cost of the improvement, on the ground that the Commissioners of Central Park had no
    ■ authority to delegate to their treasurer the discretion confided to them by the legislature:

      Held, that whether or not their action in so delegating their power to their treasurer was unauthorized, need not be considered, as the contract was in fact made, not by him, but by the Commissioner of Public Works.
    That the'fact that the latter entered into the contract because he believed that Cummings was entitled to it by virtue of the previous action of the Commissioners, was immaterial, as the validity of his act was in no way dependent upon his intentions or belief.

      Appeal by the Mayor, &e., of the City of New York, from an order of the Special Term, vacating an assessment for regulating, grading, &c., One-Hundred-and-Eifty-fifth. street, from Ninth Avenue to the Hudson River.
    Evidence was given by the petitioner tending to show that on December 12,1871, the Commissioners of the Central Park adopted a resolution as follows:
    “ Hesolved, That the treasurer be authorized, on behalf of this department, to carry into execution, by contract or otherwise, as authorized by chapter 565 of the Laws of 1865, the regulating, grading, surveying, paving and improving of One-Huudred-and-Eifty-fiftli street, from the Boulevard (road or public drived”
    That in pursuance of this and subsequent resolutions, the treasurer, on December 16,1871, directed the chief engineer to prepare plans and specifications for the regulating and grading of the street. The engineer did so, and submitted the same to the treasurer. The treasurer thereupon invited proposals for the work of regulating and grading of the street, which were received about May 1, 1872. Within a short time thereafter, the proposal of John P. Cummings was accepted, and the chief engineer was directed to prepare the formal contract for the work; this formal contract was prepared and ready for execution previous to June 17, 1872, and its terms, &c., approved by the treasurer. On June 17,1872, the Department of Public Works, assuming the authority under chapter 872 of the Laws of 1872, took possession of the improvement of streets and avenues north of Eifty-nintk street, and thereafter, the Commissioner of Public Works, deeming it his duty, for the reason that the contract had been awarded to Cummings by the Central Park Commissioners, and without any further examination on his part, or invitation to bidders, &c., or alteration of the plan or s]3eeiiications of the work, executed on July 12, 1872, the formal contract with John P. Cummings, for the work of regulating and grading the street.
    The assessment was vacated at the Special Term, the justice holding that, “ The Commissioners of the Central Park could not delegate the powers intrusted to them by the law to their treasurer or any other office!*.”

      Francis Dgnde Stetson, for the appellant.

      James A. Deeri/ng, for the respondent.
   Barrett, J.:

We agree with the court below, that the Central Park Commissioners were originally authorized to make the improvements in question. By the act of 1865 (ch. 565) these commissioners were vested with exclusive jurisdiction “ to lay out streets, roads, public squares and places within that part of the city of New York to the northward of the southerly line of One-Hundred-and-Fifty-fifth street.” The intention, undoubtedly, was to cover this street. We also agree that the commissioners retained this power until its transfer to another department, under an act to which we are about to refer.

But we do not concur in the opinion that the assessment should be vacated, because the commissioners directed the execution of the work by their treasurer. It is not necessary to consider the question whether this was an unauthorized delegation of power, for the reason that the work was not done by their treasurer, but by the Commissioner of Public Works. This fact seems to have been overlooked. It appears that before any work was done, and, indeed, before the contract was made, exclusive jurisdiction over the subject was transferred to the Department of Public Works. (Laws 1872, ch. 872.) The contract was thereupon made by the commissioner of that department and the work done under his sole authority. It is true that the commissioner entered into this contract because of his belief that one Cummings was entitled to it under the previous action of the Park Department. But that is immaterial. The important fact is that he duly exercised his authority, under the existing law. As was said by Johnson, J., in Sander v. Plass (28 N. Y., 476), “jurisdiction does not depend upon the intention of the officer or tribunal, undertaking to act in a given ease. The question is, does the law authorize the act?” (See, too, State v. Jersey City, 3 Dutch., 493; Davis v. Bruce, 82 Ill., 542.)

In our judgment, the work for which this assessment was laid was done by the Commissioner of Public Works, in conformity to law.

The various other objections made by the petitioner were properly overruled.

The order should therefore be reversed, -with $10 costs, and disbursements of the appeal, and the application denied.

Davis, P. <L, and Ingalls, J., concurred.

Order reversed, with $10 costs, and disbursements, and applicar tion denied.