text:
    Z. Douglass Lansing et al., App’lts, v. Eliphalet W. Bliss, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Release — Joint contractors.
    Where a person, who is liable to two or more parties on a joint contract, settles with one of them, for part of the claim, the others may sue for their share without joining their co-contractor.
    2. Brokers — Double employment.
    A broker, who has received commissions from pne, may recover commissions from the other party, where the latter employs and agrees to pay him for his services with knowledge that he was to be paid by the former party.
    Appeal from a judgment, entered on a verdict directed in favor of the defendant.

      Delos McCurdy, for app’lts; Benjamin F. Tracy and Edward M. Shepherd, for respondent.
   Parker, J.

The complaint alleges, in substance, that the defendant, being, desirous of selling his business, agreed with the plaintiffs and one Samuel S. Smoot that, if they would procure for him a purchaser at a satisfactory price, he would pay them $100,000 for their services; that the plaintiffs and Smoot did procure a purchaser, to whom defendant made a sale; that the defendant settled with Smoot, and paid to him $15,000 for his commissions, who released the defendant from any further indebtedness to him on account of the commissions agreed to be paid. These allegations are denied by the answer. On the trial the plaintiff presented testimony tending to establish the contract alleged in the complaint, although some portions of it would permit a finding that a different contract was made than that alleged in the complaint ; but with the different inferences of fact as to the contract, the evidence, we have no concern.

The testimony being closed, counsel for defendant moved for a direction of a verdict in favor of the defendant upon the whole case, specifying several grounds. The trial court refused to consider any of the grounds of the motion, save one, which was that Mr. Smoot, one of the parties in interest with the plaintiffs, had been paid $15,000 for commissions, and had released the defendant from all obligations to him under the contract, which had the legal effect to discharge the defendant from all liability thereunder to these plaintiffs, as well as Smoot; and on that ground he directed a verdict in favor of the defendant. In support of this ruling the respondent cites the following cases: Pierson v. Hooker, 3 Johns. 68 ; Austin v. Hall, 13 id. 286; Fitch v. Forman, 14 id. 172; Bulkley v. Dayton, 14 id. 386; Wheeler v. Curtis, 11 Wend. 652 ; Wells v. Evans, 20 id. 252. In a later decision, Gock v. Keneda, 29 Barb. 120, which was a case of two tenants in common of chattels, for the conversion thereof, it was held that a settlement of an account, and a release of the defendant by one of the parties, could not operate to defeat the rights of the other to recover his portion of the damages. In the opinion the court considered Austin v. Hall and Decker v. Livingston, 15 Johns. 479, and pointed out the distinction between those cases and the one then under consideration, reaching the conclusion that the rule prevailing in actions by tenants in common for trespass upon lands is not applicable to tenants in common of personal property, and citing with approval cases holding that when one is liable to two or more on a joint contract, and settles with one for part of the claim, the others may sue for their part without joining the one settled with, because a settlement by one tenant in common of personal property, without the consent of the others, only inures as a settlement with the party settling. This case unquestionably supports the plaintiffs’ position. So far as our examination discloses, its authority has not since been called in question. It is cited in Goodwin v. Griffis, 88 N. Y. 629-636, and Hathaway v. Insurance Co., 134 id. 409- 412 ; 48 St. Rep. 230, and in the latter case as furnishing an exception to the rule of Austin v. Hall and Decker v. Livingston, supra.

The respondent urges that, should it be held that the ground upon which the trial court directed a verdict in favor of the defendant was not tenable, still the judgment should be affirmed if, upon the whole case, it should appear that the defendant was entitled to a direction of a verdict. Without considering that proposition, we proceed to a brief consideration of the other grounds upon which, in part, the motion was based.

It is claimed that the evidence shows that the employment of the plaintiff’s and Smoot was to sell the property for $1,350,000, in which event the plaintiffs were to have $100,000 for their services ; that in any event, by the terms of the contract, the property was to net the defendant, over and above all payments for brokerage or otherwise, the .sum of $1,250,000; and that no such sale was effected. It is undisputed that, in all the conversations had between the defendant and the plaintiffs or Smoot, the defendant insisted that the price he should receive should be $1,250,-000, net. But some of the plaintiffs testified that the agreement with the defendant was that they should find him a purchaser, and that the price should be $1,350,000, $100,000, of which should be paid to the plaintiffs and Smoot, leaving to him the sum which he desired to obtain for his property. Their position was that, together with Smoot, they found him a purchaser, but that, in violation of his arrangement with them, the defendant only asked and received $1,250,000, by reason whereof they became entitled to the commissions agreed .upon. Against their position, which suffers embarrassment from contradictory statements’ on the part of one or more of the plaintiffs, is the significant fact that the negotiations with the brokers in London who acted for the real purchasers seem to have been conducted in behalf of the plaintiffs by their associate Smoot, who, with the defendant and the London brokers, arranged the terms of purchase and sale, and subsequently accepted from the purchasers’ brokers, for his services, a certain sum of money, together with a number of shares of the stock of the new corporation, in payment for his services. Again, the plaintiff Fisher, in an affidavit made December 24, 1891, said, “I have no claim whatsoever against said defendant for or on account of commission earned, or claimed by me to have been earned, by reason of the sale or transfer of the capital stock of the E. W. Bliss Company.’’ The affidavit was made some-eight months after this action was brought, and, unexplained, has a tendency to show what his understanding of the original contract was, and its bearing upon his right to recover commissions for the sale effectuated through the defendant and plaintiffs’ associate Smoot, to whom, he testified, “ I trusted my affairs on the other side, * * * and my interest. He represented me on the other side. * * * Whatever time he went to London, he represented this property that he was negotiating. He represented us four gentlemen who were associated. He was doing the entire business. In explanation of his affidavit, he said he'had been informed by the defendant that 'he managed the whole thing himself, and consequently the plaintiffs were not entitled to anything, and that, believing the statement, he made the affidavit, but subsequently reaching the conclusion that he had been deceived — that Bliss had not managed it himself, but, on the contrary, the sale had been brought about by his associate Smoot, who was representing him and the other plaintiffs in London, — he changed his mind as to Bliss’ liability to him for commissions. A further consideration of the evidence under this head will not be profitable, because the questions relating to the weight of testimony, the consideration to be given to the apparent contradictions, the explanations offered in relation to them, and the proper inferences to be drawn from the testimony as a whole, are for the jury, not the court to pass upon.

The further point is made that, Smoot having finally accepted a commission from the purchasers, the plaintiffs cannot recover a commission from the seller, even though the contract with the defendant was as claimed by them. That plaintiffs did have an understanding with their associate Smoot that they wez'e to receive some shares of stock fi-om the purchasez-s, in the event of the consummation of the sale, is made clear by Fisher’s testimony; and, were there no evidence that such expectations on the part of the plaintiffs were understood by the defendant Bliss at about the time of the making of the alleged contract between defendant and these plaintiffs with their associate Smoot, defendant’s point would be well taken. Employment of a broker by an owner of property is to effect a sale on •terms most advantageous to his employer. This the broker cannot do, and at the same time render similar services to the party to whom he attempts to sell the property. It is impossible for the broker to negotiate for the benefit of both, for, if he gets •a good price for the property sold, it is obtained from the man who buys, and, if the man who buys secures a good bargain, it is oecessardy at the expense of him who sells; and so the general rule has come to be well established, .that where an agent accepts a commission from the seller he cannot also receive one from the purchaser, although, in advance of the sale, the purchaser may have contracted to pay him a commission. The rule was established to prevent fraud, and it has an exception which grows out of a situation where the reason for the rule does not exist. If a party employs a broker, agreeing to pay him for his services, and has knowledge that he is also to be paid, or expects to be paid, by the other party, the agreement will be enforced. Rowe v. Stevens, 53 N. Y. 621. Fisher testifies that his conversations with Smoot in respect to the expected contributions to the brokers by the purchasers of certain of the shares of stock was communicated by him to the defendant, Bliss, in his private office, who, with such knowledge, assented to the further negotiations had by plaintiffs ■and Smoot under the arrangement which he had with them. If Fisher’s testimony in such respect be true, the defendant was within the exception to the general rule. Whether it was true, presented a question for the jury. The judgment should be reversed, and a new trial granted, with costs to the appellants, to abide the event.

All concur.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    William H. Hurst, Resp’t, v. Cresson and Clearfield Coal and Coke Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Pleading — Complaint—Contract.
    Where a contract asserts a previous request, or such a request is fairly inferable from the instrument, it is unnecessary that the request should be specially pleaded, if the contract is set up in full.
    3. Same — Answer.
    An answer, alleging special privileges for the shipment of all goods under the contract of sale and that a failure to obtain the same for a part of the goods resulted in damage to defendant, is insufficint, where it appears that the alleged promise to secure such privileges was made before the agreement and was merged therein.
    3. Evidence — Parol.
    Where a writing contains nothing which suggests that it does not embody the entire agreement, paroi evidence is inadmissible to aflect it.

      Appeal from a judgment, entered on a verdict in favor of plaintiff directed by the court, and from an order denying a motion for a new trial.

      Charles F. Estwick, for app’lt; Benjamin Yates, for resp’t.
   Parker, J.

The object of this action was to recover, the sum of $6,031.71, a balance claimed to be due to the plaintiff under a contract of which the following is a copy :

“ Boston, Mass., June 8th, 1891.
“ In consideration for special services rendered in securing contract with the New York and New England B. B. for 200,000 tons of coal, more or less, we hereby agree to pay John E. Ingersoll, of New York, as a commission for said special services, 15c. (fifteen cents) per ton on all coal sold and delivered to the said New York and New England B. B. under contract made this day with said New York and New England B. B from June 10,1891, to June 10,1892, said commission of 15c. (fifteen cents) per ton to be paid by us to the said Ingersoll as fast as said coal is delivered to and paid for by the said New York and New England B. B.
“ Cresson & ClBarfiell .Coal & Coke Co.,
“By J. C. Wittenberg.
“Witness: Sam’l C. Elliott.”

The complaint set up a copy of the contract; the delivery of 106,875 tons of coal by the defendant to the New York & New England Bail road Company"; payment therefor by it to the defendant ; payment by the defendant to Ingersoll plaintiff’s assignor, of the sum of $10,000, on account of the amount due him from the defendant for commissions under the contract; and the assignment of Ingersoll’s interest under the contract to this plaintiff prior to the commencement of this action.

When the cause came on for trial, the defendant moved to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. This motion was founded upon the authority of Lampleigh v. Braithwait, 1 Smith, Lead. Cas. 167; Parker v. Crane, 6 Wend. 647; Comstock v. Smith, 7 Johns. 87 ; Bartholomew v. Jackson, 20 Johns. 28; Herendeen v. De Witt, 49 Hun, 56; 17 St. Rep. 298. These cases assert the general rule to be that where a promise to pay, made subsequent to the completion of the services, is alleged -in the complaint, it must also be alleged that such services were rendered at defendant’s request. In Comstock's Case the court said :

“ It does not seem requisite, in every case of a past consideration, to lay an express request in the declaration, though the cases in which it is not required are rather exceptions to the general rule. They are such in which a beneficial consideration and a request are necessarily implied from the moral obligation under which a party was placed.”

And in Herendeen's Case the court said:

“ It was formerly a rule of pleading, and such it probably is now, that when the consideration was executed, and the validity of the promise depended upon the previous request, such request should be alleged.”

Assuming, as did the court in the last case, that the general rule-asserted by the cases we have cited now obtains, still this case is not within it; because the- contract not only expresses the consideration, but it imports that the services which constituted it were performed at the instance of the defendant. It asserts the making of the contract between defendant and the Hew York & Hew England Railroad Company, on the day when the agreement in suit was executed, by which the former was to furnish the latter coal for a period of one year; and that in consideration of the special services of Ingersoll in securing for the defendant such contract it would pay him a commission of fifteen cents a ton, as-fast as the coal should be delivered and paid for. In other words, defendant by its contract said, in effect: Ingersoll has, by special services in our behalf, induced the Hew York & Hew England. Railroad Company to enter into a contract with us this day, which is of such value that we agree to pay him a fixed commission in consideration for such services. It is certainly a reasonable inference, from the language employed, that the special services were rendered at the request of the defendant. And when the contract asserts a previous request, or such a request is fairly inferable from the instrument, it is unnecessary that the request should be specially pleaded, if the contract be set up in full. Our conclusion, therefore, is that the court did not err in denying the motion to-dismiss the complaint.

The plaintiff, to establish his cause of action, put in evidence-the contract between the defendant and the Hew York & Hew England Railroad Company, consisting of a letter of the former under date of May 20, 1891, offering coal and terms, an acceptance by the latter by letter signed and delivered to defendant in Boston, on June 8th, on which date, and at the same place, the contract between defendant and Ingersoll was executed and delivered by the defendant. It was admitted that under the contract, the defendant delivered to and was paid by the railroad company for 97,500 tons of coal; and it was conceded that at the contract rate the sum remaining due under the Ingersoll contract was $5,278.48. This evidence, together with the admissions cqntained in the answer, made out a cause of action.

The answer of the defendant alleged for a counterclaim to plaintiff’s cause of action and by way of a separate defense, “ that on or about the 8th day of June, 1891, and previous to the entering into the contract hereinbefore referred to, the said John E. Ingersoll represented, promised, and agreed to and with the defendant.that * * * he would obtain from the Hew York & Hew England Railroad Company special concessions and privileges for the defendant with reference to the shipment of all coal •.called for under the contract tobe entered into with the Hew York & Hew England Railroad Company.” It further alleges that such concessions and privileges were granted by the railroad company to the defendant in respect to the 60,000 tons of coal, and no more ; and that the failui'e of Ingersoll to carry out the contract, occasioned by the railroad company’s refusal to grant the concession and privileges as Ingersoll represented it would do,, caused, damage to the defendant in the sum of $15,000. The evidence offered by the defendant in support-of its alleged counterclaim was excluded by the court upon the grounds (1) that it appears by the answer that the alleged promise of Ingersoll was made prior to the contract sued upon, and therefore became merged in the written contract executed by the defendant; (2) that, were his promise to be treated as collateral to the main contract, such promise, whatever it was, was fulfilled when he secured a contract which was satisfactory to and accepted by the defendant. In thus ruling the court did not commit error.

The authorities cited by the counsel for the appellant in support of the proposition that ihe rule prohibiting the reception of paroi evidence to vary or modify a written agreement does not apply where the original contract was verbal and entire, and a part only was reduced to writing, nor to a collateral undertaking, are not applicable to this situation. There is nothing in this contract which suggests that it does not embody the entire agreement of the parties. On the contrary, it asserts that Ingersoll had performed the services which constituted the consideration for the •contract. According to its terms, Ingersoll was to be paid a commission on the coal sold and delivered to the railroad company, because of the services which he had already rendered in procuring the railroad company to enter into a contract with the defendant, .which it had accepted. The concession and privileges which the defendant asserts in its answer Ingersoll was to procure it alleges were to be procured by him-from the railroad company, and in the ordinary course of business would have been embodied in the contract between the railroad company and the defendant; and its acceptance of the contract, which Ingersoll procured the railroad company to make with it, evidenced its satisfaction with the work which he had performed in that direction. Its satisfaction was further confirmed and put at rest by the agreement thereafter executed by the defendant, by which, in terms, it agreed to pay the commission of fifteen cents a ton for the services rendered by him in procuring the execution of such contract. In the light of these facts, and by reason of the language of this contract, it must be held that the rule which requires the rejection of paroi evidence when offered to cut down' or take away obligations entered into between parties, and by them put in writing, was applicable.

The appellant also attempts to invoke in its support another exception to the general rule relating to the admission of paroi evidence to change or modify a written agreement, to wit, that paroi evidence may be admitted to prove that the paper, which is in form a complete contract, was delivered to take effect only oil performance of a condition. But it seems to us a sufficient answer to this contention to say that there is nothing in either defendant’s answer, or in the evidence offered by it, asserting or tending to ■¡establish that this contract was delivered upon condition that it should take effect only upon performance by the railroad company of conditions not specified in its contract with the defendant, or upon performance by Ingersoll of any future services, or to await a full realization by the defendant of the benefits expected to accrue as a result of services supposed to be fully performed. The contract, on the other hand, distinctly provided for payment to Ingersoll as fast as said coal is delivered to and paid for by the said New York & New England Railroad.”

The judgment should be affirmed, with costs.

All concur.


author: Follett, J. Van Brunt, P. J.

text:
    George Bliss et al., as Executor, etc., App’lts, v. Charles B. Fosdick et al., Impleaded, etc., Resp’ts, and Hiram H. Fogg, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Gift — Causa mobtis.
    A gift causa mortis can be revoked by the donor in his life time.
    2. Will — Tbusts.
    The evidence, read in the light of the circumstances surrounding the transaction, was held not to support the conclusion that testatrix intended to vest absolutely the title to the sharbs of stock in a trustee for the benefit of the corporations by the delivery of the list of names of the intended beneficiaries.
    Appeal from judgment rendered in favor of some of the defendants.
    This action was brought to determine the title to one thousand shares of the capital stock of the Gutta-Percha & Rubber Manufacturing Company. The appellants claim that the title is in the executors of Elizabeth Fogg, and the respondents assert that the title is in Charles B. Fosdick, as trustee. July 2,1888, Elizabeth Fogg executed her last will and testament, in which George Bliss, Henry Parish and Duncan Smith were nominated as executors. ■ After her making various bequests, she devised and bequeathed the remainder of her estate to Hi ram H. Fogg and John A. Phipps. On Novembers 12, 1890, the Gutta-Percha & Rubber Manufacturing Company issued a certificate (No. 31) to Elizabeth Fogg for 1,000 shares of the stock of that corporation. At some time prior to December 19, 1890, Mrs Fogg’s pastor, the Rev. Williams, handed to her a piece of paper, on which he had written the following:
    “I desire to bequeath the one hundred thousand dollars, which
    is now in the keeping of-, to the Young Women’s Christian
    Association of New York City. This property is my private fortune, and not a part of my late husband’s estate; and I make this disposal thereof because I desire, of my own act, to make a gift to God’s poor.”
    On the 19 th of December, 1890, Mrs. Fogg executed a transfer of said shares, printed on the back of certificate No. 31, of which transfer the following is a copy:
    “For value received, I have bargained, sold, assigned, and transferred, by these presents, and do hereby sell, assign, and transfer,

      to Charles B. Fosdick, the capital stock named in the within certificate; and I do hereby constitute and appoint Charles B. Fosdick my true and lawful attorney, irrevocably, for me, and in my name and stead, to use, to sell, assign, transfer, and set over all or any part of the said stock, and for that purpose to make and execute all necéssary acts of assignment and transfer to one or more persons, to substitute with like full power.
    “(Signed) Elizabeth Fogg.
    “Dated 19th December, 1890.
    “Signed and acknowledged in the presence of Annie Julia Norton.”
    This transfer was executed in the forenoon of the day of its date, at 359 Fifth avenue, and handed to Charles B. Fosdick. At this time Mrs. Fogg was confined to her bed by a sickness from which she did not recover. The witness to the transfer (Annie Julia Norton) was the attendant of Mrs. Fogg, her confidential friend,, and had the care of her from early in September, 1890, until her death, which occurred January 3, 1891. After receiving the transfer of the above-mentioned certificate, Mr. Fosdick went directly to the Fifth Avenue Safe-Deposit Company, where he hadi a conversation with George Montague, the president of that cor- ' poration, in which Mr. Fosdick told Mr. Montague of the purpose-of Mrs. Fogg to give the avails of this certificate to chartable corporations; and thereupon Mr. Montague wrote on a small-piece of paper, “The Training School for Nurses," “The Aged and Infirm Clergy Fund,” as two worthy charitable corporations, and handed the. memorandum to Mr. Fosdick, who, later in the day of December 19th, left it with Mrs. Fogg. The night of December 19th and 20th was wholly spent by Mrs. Fogg and Miss Norton in selecting charitable corporations among which the avails of the aforesaid shares of stock should be divided. After making several memorandum, Miss Norton wrote names of the corporations selected, aside from the names of the two corporations written by Mr. Montague, on a single piece of paper. Upon another piece of paper-she wrote the names, “ John Peterson, Carl his sister-in-law, Thomas Doran, Sallie Neilson, and a small breast-pin.” Miss Norton entered no sums opposite the names of these persons. December 20, 1890, at about 9 a. m., Mr. Fosdick called on Mrs. Fogg, having with him a writing which he devised, which had been copied by his. bookkeeper, and which Mrs. Fogg then signed, of which the following is a copy:
    “New York, 20th Dec'r, 1890.
    “Mr. Charles B. Fosdick — Dear Sir: I this day place in your individual possession, conveying to you, all my right, title, and interest in one thousand (1,000) shares stock óf the Gutta-Percha and Rubber Manufacturing Company. From the proceeds thereof, I desire that you do appropriate the sum of one hundred thous- and dollars, in the name of Elizabeth Fogg, in sums of five thousand dollars each, to the various charity organizations of which a list is hereto annexed.
    “Very truly yours,
    Elizabeth Fogg.”

      This paper has remained in the possession of Mr. Fosdick' since its execution. While Mr. Fosdick was in Mrs. Fogg’s room he received from some one (from whom does not appear) the memorandum written by George Montague, the paper on which Miss Norton had written the names of certain corporations, and the paper on which she had written the names, “John Peterson, Carl, his sister-in-law, Thomas Doran, Sallie Neilson, and a small breast-5in.” Mrs. Fogg occupied a room on the second floor of the house. ust as Fosdick was leaving the residence, he met Miss Norton, in the reception room, on the first floor, and handed to her the three pieces of paper and charged her to keep them safe, and thereafter she gave them to Mrs. Fogg. After Miss Norton received the three papers from Mr. Fosdick, he left the house and went to the Fifth Avenue Safe-Deposit Company, where he placed • the stock certificate and the transfer indorsed thereon in Mrs. Fogg’s private box, where, after her death, it was found by her executors. No consideration was received by Mrs. Fogg for the transfer, and the shares have not been transferred on the books of the GuttaPerch & Rubber Manufacturing Company. Later in the day of December 20, 1890, Miss Norton copied the names of the corporations from the two pieces of paper (one written by her the night before, and one written by Mr. Montague) onto the paper on which the Rev. Mr. Williams had written the words above quoted. The following is a copy of the new or transcribed list of corporations, which is known in this litigation as “Exhibit No. 3:”
    “Exhibit No. 3.
    “ I desire to bequeath the one hundred thousand
    dollars which is now in the keeping of-to the
    Young Women’s Christian Association of New York city. This property is my private fortune, and not a part of my late husband’s estate ; and I make this disposal thereof because I desire, of my own act, to make a gift to God’s poor.
    “ Diet Kitchen, N. Y.
    “ Training School for Nurses, N. Y.
    “ Aged and Infirm Clerg. Fund, N. Y.
    “No.” “St. John’s Guild, of N. Y.
    (In pencil.) “Home for Working Girls, W. Eleventh street, N. Y.

      “ N. Y. Homoeopathic Medical College and Hospital, N. Y.
    “ Unitarian Employment Society, N. Y.
    “ Home for the Aged, N. Y.
    “ Old Ladies Home in Charlestown, Mass.
    “Original.”
    Miss Norton at the same time copied the names of persons onto another piece of paper, which is known in this litigation as “ Exhibit L,” and of which the following is a copy:
    This was on a small piece of paper. On one side was the writing to and including “ Training School for Nurses, N. Y.
    On other side of page was all that follows.

      “ Exhibit L.
    John Peterson.......... $4,000
    Carl Anderson (his sister-in-law)............ 3,000
    (The words ‘ ‘ his sister-in-law ” erased in pencil, and “ Anderson " written above in pencil.)
    Thomas Doran............. 500
    Sallie Neilson.............. 500
    and a small breastpin.
    Hassie Lamont (In pencil).................. 500 (In pencil.)
    Women’s Emplt. Socy. (In pencil) ..........
    “Original.”
    As copied by her, this list closed with the word “breastpin.”’ She then pinned the two pieces of pager, Exhibits No. 3 and L, together, and gave them to Mrs. Fogg, and burned the piece from which Exhibits No. 3 and L were copied.
    In the afternoon.of December 20, Mr. Fosdick called on Mrs, Fogg and, at her request, wrote a letter to Mr. William M. Prichard, a lawyer, asking him to call on Mrs. Fogg. On the next day (Sunday, December 21st), Mr. Prichard called, pursuant- to the letter. Exhibits No. 3 and L were handed him,, and he drafted a codicil, of which the following is a copy :
    “I, Elizabeth Fogg, residing at number 359 Fifth avenue, in the city of New York, having heretofore made and duly executed my last will and testament, do now make, publish and declare this codicil to the same.
    “ First. I give and bequeath to John Peterson, four thousand ■dollars; to Carl Anderson, three thousand dollars; to Thomas Doran, five hundred dollars; to Sallie Neilson, five hunnred dollars ; to Hassie Lamont, five hundred dollars.
    “ Second. Out of the proceeds of sale of one thousand shares of the Gutta-Percha and Rubber Manufacturing Company, which I regard as representing my own own private fortune, and’ not a part of my late husband’s estate, and to transfer which a power has lately been given to Mr. Charles B. Fosdick, I do hereby give- and bequeath the sum of one hundred thousand dollars, to be equally divided among the following charitable associations, to be applied to the benevolent uses administered by them, respectively, that is to say : 1. The Young Women’s Christian Association of New York city. 2. The New York Diet Kitchen. 3. The Training School for Nurses cennected with Bellevue Hospital. 4. The Fund for Aged and Infirm Clergymen, New York. 5. The Home for Working Girls, situate in West Eleventh street, New York. 6. The New York Homoeopathic Medical College and Hospital. 7. The Society for the Employment and Relief of Poor Women. 8. The Home for the Aged, New York. 9. Old Ladies’ Home, Charlestown, Massachusetts. I make these bequests because I desire, of my own act, to make a gift to God’s poor; and it is my will that the same stand good to the beneficiaries intended,, whether the above designations are or not their correct legal names, respectively.
    “ Third. I name and appoint my friend Mr. Charles B. Fosdick to be one of the executors of my will, in connection with the executors already named therein, or such of them as shall qualify and act as my executors.
    “ Fourth. In all other respects I do hereby ratify and re-publish my said will, and declare the same, as modified by this codicil, to be my last will and testament.
    “ In witness whereof, I have hereunto set my hand and seal at the city of New York, the twenty-first day of December, one thousand eight hundred and ninely (1890).
    “[Sd.] Elizabeth Fogg. [Seal.]
    “ Subscribed at the end thereof by the said Elizabeth Fogg, and by her published and declared to be a codicil to her last will and testament, in the presence of us, who, in her presence and in the presence of each other, and at her request, have hereunto subscribed our names, as witnesses, this 21st day of December, 1890.
    “[Sd.
    “[Sd/
    “[Sd.'
    Timothy F. Allen, 10 East 36th Street.
    Annie J. Norton, 228 Warren St., Brooklyn. Wm. M. Prichard, 128 E. 29th St., New York.”
    While preparing the codidil, Mr. Prichard wrote in pencil the word “No” on Exhibit No. 3, at the left of the words “ St. John’s Guild, of N. Y.” On Exhibit L he canceled in pencil the words “ his sister-in-law,” wrote above the word “ Anderson,” and also wrote between the heavy black line and the word “ original the two lines now a part of Exhibit L. By the codicil, bequests are made to all the persons mentioned in Exhibit L, and to all the corporations mentioned in Exhibit No. 3, except no bequest is made to “St. John’s Guild, of N. Y.” After the codicil was executed, Exhibits No. 3 and L. were handed by some one to Miss Norton, who retained them for more than a year, and then gave them to Mr. Duncan Smith, one of the executors, who asked her for all of the papers left by the testatrix. January 3, 1891, thirteen days after the execution of the codicil, the testatrix died ; and April 15, 1891, her will and codicil were duly admitted te probate, and letters testamentary thereon were issued to the four persons nominated in the will and codicil, as executors thereof. She left a large estate, more than sufficient to pay all of the legacies. May 15, 1891, the residuary legatees and devisees executed and delivered to the executors the following instrument :
    “Whereas, Elizabeth Fogg, late of the city of New York, on or about the 20th day of December, 1890, delivered to Charles B. Fosdick, Esquire, of the city of New York, now one of the executors of her will, one thousand shares of the stock of the Gutta-Percha and Rubber Manufacturing Company, properly indorsed for transfer upon the books of the said company, accompanied by a paper conveying to him all her right title and interest in said stock, and desiring him, from the proceeds thereof, to appropriate the sum of one hundred thousand dollars, in the name of Elizabeth Fogg, in sums of five thousand dollars each, to the various charity organizations of which a list was in said paper stated to be thereto annexed, while in fact no such list was annexed to said paper, or delivered to said Charles B. Fosdick; and whereas, thereafter, and on the 21st day of December, 1890, the said Elizabeth Fogg executed a codicil to her last will, which will and codicil were on the 15th day of April, 1891, proved and admitted to probate before the surrogate of the county of New York, as the last will ' and testament of the said Elizabeth Fogg, deceased, in and by which codicil the said testatrix, among other things, gave and bequeathed, out of the proceeds of the sale of the said one thousand shares of the Gutta Percha and Rubber Manufacturing Company, one hun-, dred thousand dollars, to be equally divided among certain charitable associations enumerated in said codicil; and whereas, the validity of said charitable bequests, or some of them, may be called in question by reason of the fact that the said codicil was made and executed less than two months before the death of the testatrix ; now, therefore, we, Hiram H. Fogg and John A. Phipps, residuary legatees under the last will and testament of the said Elizabeth Fogg, deceased, in consideration of the premises and of our mutual signature hereto, do hereby consent to the payment by the said executors of each and all of the said bequests to charitable corporations made in and by the said codicil, irrespective of the validity or invalidity of any of said bequests, and authorize the executors of the said last will and testament to pay each and all said bequests; and we hereby waive all o'ur and each of our claim to all and every part of the said one hundred thousand dollars so given and bequeathed by the said codicil of the said testatrix, but upon the understanding that the said Charles B. Fosdick shall relinquish all claim to the said stock so delivered by the said testatrix to him during her lifetime, and execute all such papers as shall be necessary to vest the title to the same fully and completely in the executors of the said last will and testament. In witness whereof, we have hereto set our hands and seals this 15th day of May; 1891.
    “ Hiram H. Fogg. [Seal.]
    “ John A. Phipps. [Seal.] ”
    Upon this evidence the learned special term held that by the transfer of certificate No. 31, executed December 19. 1890, by the writing dated December 20, 1890, and by the list of beneficiaries, Exhibit No. 3, and by the delivery by Elizabeth Fogg to Charles B. Fosdick of those three papers, 11 there was created an absolute and perfect gift of the said stock, or the proceeds thereof, to the extent of $100,000, and of the dividends thereon, from the said Elizabeth Fogg to the said Fosdick, in trust for the following charitable corporations, that is to say ” (the ten corporations mentioned in Exhibit No: 3, to be divided equally among them).

      J. Hampden Dougherty, for appellants executors of Elizabeth Fogg; Levi S. Tenney, for appellants residuary legatees and devisees ; James E. Chandler, for respondent St. John’s Guild ; Edward B. Hill, for respondent Charles B. Fosdick.
   Follett, J.

Under the release of May 15, 1891, the only parties having a- pecuniary interest in this litigation are St. Guild and the residuary deviseés and legatees, unless it should happen that a division, under the alleged trust, of the proceeds of the 1,000 shares among the ten corporations would give every one of the nine corporation mentioned in the codicil a greater sum than would the division of $100,000 among said nine corporations. The plaintiffs and Charles B. Fosdick are interested simply in carrying out the wishes of Elizabeth Fogg, and in relieving themselves from liability. There is no evidence — and, indeed, it is not .asserted — that Exhibit No. 3 was ever delivered to Charles B. Fosdick, or that he ever saw it until after the death of the testatrix, unless he saw it when the codicil was drafted; but at about nine A. M., December 20th, he did see and hold in his hands for a few moments the three pieces of paper, the contents of which were afterwards, and on the same day, copied onto Exhibit No 3 and L. In reaching the conclusion that the list of beneficiaries was delivered to Mr. Fosdick, the learned trial court must have held (1) that the three pieces of paper were handed by Mrs. Fogg to him; and (2) with the intent on her part to deliver them to him for the purpose of effecting a gift by means of the transfer of the shares of stock and those papers. The fact that three papers were subsequently copied and burned in the presence of Mrs. Fogg militates against the theory that she understood that they had been delivered to Mr. Fosdick, and formed part of a completed transaction. Mr. Fosdick testified on this trial, as he did ' on the first trial, that he did not consider that the list had been delivered to him, but supposed- that the codicil would do away with all that had been done between them. The first paper relied on to establish a trust is the transfer of the shares, which is absolute in form. The second paper is the letter of December 20th, signed by Mrs. Fogg, and addressed to Mr. Fosdick. The first paragraph of this letter refers to the transfer made the day before, which Mr. Fosdick had with him when the letter was signed and -delivered. The second paragraph reads as follows:

“From the proceeds thereof, I desire that you do appropriate the sum of $100,000, in the name of Elizabeth Fogg, in sums of $5,000 each, to various charity organizations, of which a list is hereunto annexed.”

No list was ever annexed to this letter, and no list naming twenty corporations was ever made by or for Mrs. Fogg. Mr. Fosdick testified that this letter was devised by himself, and copied by his bookkeeper; that he (Fosdick) stopped at Mrs. Fogg’s on his way down town on the morning of December 20th, when the letter was signed. Therefore, he must have been informed December 19th ■of her purpose to divide $100,000 among twenty charitable corporations. Mrs. Fogg and Miss Norton spent the night of December 19 th and 20th in a vain attempt to name twenty charitable corporations which should receive the sum, but abandoned the attempt, and Mrs. Fogg concluded to divide the sum among ten corporations. In order to uphold the trust declared by the judgment of the special term, the letter of December 20th must be eliminated from the case, as it is entirely inconsistent with the trust adj udged to exist. The only evidence left of an intent to establish a trust consists of the transfer of the shares of stock of Exhibit No. 3, and the testimony given by Miss Norton. From the time Mrs. Fogg’s pastor wrote for her that which subsequently became the caption of Exhibit No. 3, down to the time when her codicil was executed, the idea of Mrs. Fogg, plainly disclosed by the evidence, was to bequeath the shares or the avails of them to charitable corporations, which she finally did. That which was done by the testatrix during the night of December 19th and 20th, and during the day of the 20th, was preparatory to the execution of the completed codicil; and perhaps she was in hopes that, in case she died before the codicil was executed, her wishes would in some way be carried out. The codicil refers expressly to the shares as those transferred to Mr. Fosdick, and it names every person and corporation mentioned on Exhibits No. 3 and L, except St. John’s Guild, which, for some reason, she omitted from the list of her •beneficiaries. The interview between Mrs. Fogg and Mr. Fosdick on the morning of December 20th occupied about one half hour, which time, according to the theory of the respondents, she completed the execution of a trust in favor of the ten corporations mentioned on Exhibit No. 3, and during the same half hour executed a declaration of trust, dividing the avails of the shares, “in sums of five thousand dollars each, to the various charity organizations of which a list is hereto anne'xed.” Thus in the same half hour an attempt was made to establish two wholly inconsistent trusts. Trusts are not to be established by such evidence. The evidence, read in the light of the circumstances surrounding the transaction, does not support the conclusion that Mrs. Fogg intended absolutely to vest the title of the shares in Mr. Fosdick, as trustee, for the benefit of St. John’s Guild and the other corporations mentioned in Exhibit No. 3. But assuming that, at the close of the interview between Mrs. Fogg and Mr. Fosdick on the morning of the 20th, she intended to vest him with the title of the shares, for the purpose of giving the proceeds to the ten corporations after her death; the judgment cannot be sustained. It is not asserted, and cannot be successfully maintained, that Mrs. Fogg intended this gift to take effect in her lifetime. Miss Norton testified that, during the night of December 19th and 20th, Mrs. Fogg believed that she was about to die, and expressed the opinion that she would not live until morning. The witness testified:

“During that night she was apprehensive of dying before morning. That is what she said, and so expressed herself to me, although I personally did not think there was any immediate danger of her death. She did, however, express a danger of dying before morning. She was then in bed, and she remained continuously in bed until the time of her death, on the 3d of January, 189Í. She had been in bed several days previously. Q. And she died during this same illness ? A. Yes. Q. Without ever recovering? A. Yes. Q. Attended by both night and day nurses right along ? A. Yes. Q- And continuously failing, to the end ? A. Yes.”

“Sound policy requires that the laws regulating gifts causa mortis should not be extended, and the range of such gifts should not be enlarged. Ridden v. Thrall, 125 N. Y. 572, 581,. 35 St. Rep. 913. Such gifts are not favored by the courts. Delmotte v. Taylor, 1 Redf. Sur. 417; Rockwood v. Wiggin, 16 Gray, 402 ; Michener v. Dale, 23 Pa. St. 59 ; Hatch v. Atkinson, 56 Me. 326. The presumption is that a gift made during a last sickness is intended to take effect at the donor’s death, even though it be not so declared. Pom. Eq. Jur. § 1146. If there was a gift, it was made in apprehension of death, — a gift donatio causa mortis. Such a gift can be revoked by the donor in his lifetime. Merchant v. Merchant, 2 Bradf. Sur. 432, 444; Bloomer v. Bloomer, id. 339, 347 ; Parker v. Marston, 27 Me. 196; Barket v. Hassell, 107 U. S. 602 ; Pom. Eq. Jur. § 1146; 3 Redf. Wills (3d ed.) 343 ; 2 Kent Comm. 444. A revocation can be effected by a change of purpose, and undoing what has been done. Mrs. Fogg had burned the papers which were shown to Fosdick December 20th, and the copy (Exhibit No. 3) had been altered by writing the word “No’’ against the words “St. John’s Guild,” which, under the circumstances, was as potent evidence of her intent to revoke the gift previously intended, or made to that corporation, as though the word “Revoked” had been written in the place of “No,” or the exhibit burned. The stock certificate and the transfer indorsed thereon were then locked in her private box in the safe-deposit company, and were as effectually in her possession and under her control as they would have been had they lain under her pillow.

She declared in her codicil that the assignment of the shares to Mr. Fosdick was intended as a power to transfer them, and Fosdick testified that the codicil was read to him before it was executed, and he assented- to its terms. Under the evidence, we think, assuming that Mrs. Fogg intended on December 20th to make a gift to St. John’s Guild of $10,000, by means of a trust to take effect after her death, that it was effectually revoked on December 21, 1890. It does not seem necessary to discuss' the question whether a gift cama mortis may be made subject to a trust. Story, Eq. Jur. (13th ed.) § 607. The judgment should be reversed, and a new trial granted, with costs to the appellants, to abide the event.

Van Brunt, P. J.

I concur in the result. I do not think there is any sufficient execution of the trust declaration by the delivery of the list. I think that the evidence shows that the creation of the trust was never completed, and it was abandoned, and the codicil to the will took its place.

O’Brien, J., concurs.


author: O’Brien, J.

text:
    John W. Clark, Resp’t, v. Ellen A. Farrell, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Injunction — Preliminary.
    A preliminary injunction, restraining the defendant from closing an alley will be continued pendente lite, where there has been an unusual and unexplained delay on the part of the defendant in bringing the case to trial.

      Appeal from an order continuing a preliminary injunction pendente lite.

      Charles I. Mc Burney, for app’lt; James E. Kelly, for resp’t.
   O’Brien, J.

The injunction order appealed from restrains the defendant from building a roof over a gangway, and from closing a gate, and from otherwise interfering with the gangway or alley, which is about four feet wide, extending the whole length of the rear of three houses and lots on Roosevelt street and one on Batavia street. The plaintiff owns the center one of the three houses on Roosevelt street, and the defendant owns the corner of Roosevelt street, and also the property on Batavia street. This latter property was conveyed to defendant in July, 1894, and the former, No. 84 Roosevelt street, in 1883. The plaintiff’s property, No. 86 Roosevelt street, was purchased in 1892. Prior to the latter date it would appear that the three houses on Roosevelt street had been residence properties, with buildings designed for residences fronting on Roosevelt street, and with large yards in the rear, abutting on the alley or gangway, with gates opening upon the alley ; and that the property No. 1 Batavia street was a tenement property, the entrance to which opened upon the alley. Soon after the plaintiff took possession, he added to his premises, No. 86 Roosevelt street, a brick extension from the rear of the former building to the side line of the alley. The wall of such extension abutting on the alley has no door or other entrance through or by which the extension may be entered from the alley, but has in the upper part a door opening above the alley for the hoisting or lowering of articles from or to the said alley; the plaintiff in this way adapting the building and premises to the business in which he is engaged, of a carpenter and builder. On the first floor of his building , as extended, plaintiff has a window opening into the gangway, and on the second floor, as stated, a double doorway or hoist-way, by which to allow lumber and building material to pass from the building into the gangway, and thence into Batavia street.

If, as claimed by plaintiff, and as would appear from the description in his deed, he has the right to half the alley way, and if he can sustain his further contention that he has a right to adapt it to a use consistent with his business as a carpenter, then there can be no question but that the acts complained of — which consisted of placing boards on the side and constructing a roof over the alley, and putting a permanent gate at the entrance — would be an interference with the plaintiff’s rights. The main question, as to just what rights or easements the parties respectively had in the gangway or alley, involving, as it does, a construction of the deeds and the examination of witnesses as to the character of the use to which it was put, it would have been entirely proper to reserve until, after a trial, a complete determination of the respective claims could be had. .

The order to show cause why the injunction should not be granted is dated September 10, 1894, and was served within a short time thereafter, and argument thereon was adjourned until November, the date oí the injunction order being November 9th. The appeal was taken November 13, 1894, and the defendant and appellant has neglected from that date to the April term of this court to move the appeal. If she had been dilligent, not only would there have been an opportunity of disposing of the appeal, but there should have been a trial of the action. We think that the circumstance of this unusual and unexplained delay should leave the question in the situation in which the defendant herself has left it for so many months, until such time as, upon a trial, the issues can be deliberately passed upon.

The order should be affirmed, with $10 costs and disbursements.

All concur.


author: Lewis, J.

text:
    In the Matter of the Application of Emmons J. Gardner to set aside Certain Judgments, etc.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Corporations — Stockholders—Collusive judgment.
    The director of a corporation is not, by reason of the fact that he is the husband of a stockholder,, interested in an action which he procures to be brought against the corporation for his wife’s benefit, so as to entitle a stockholder to set aside the judgment.
    2. Same — Preference.
    An application by a stockholder to set aside a judgment against the corporation, suffered for the purpose of preferring creditors, is not authorized by section 48, chapter 688 of 1892.
    Appeal from a judgment, granting application to set aside certain -judgments.

      B. F. Dake, for app’lts; Edward L. Jellinck, for resp’t.
   Lewis, J.

The Walker Tailoring Company was organized under the business corporation law of New York, as a domestic corporation, about the 1st day of May, 1894, for the purpose of doing a general tailoring business in the city of Buffalo. The capital stock was fixed at the sum of $15,000, divided into shares of the par value of $50 each. Mrs. Madge L. Walker had, prior to the time of the incorporating of the company, been engaged in the tailoring business in Buffalo, and had on hand a stock of goods. What its value was, does not appear. She was insolvent, and unable to pay" her debts. The respondent, Emmons J. Gardner, and James L. Walker, the husband of Mrs. Walker, conceived and carried out the plan of organizing the corporation. Gardner seems to have been the master spirit in the scheme. He was at the time about twenty-one years old, without means, and entirely unacquainted with the business. It is quite evident he was not acting in good faith in organizing the company. It was a scheme to make money for himself at the expense of any parties who might be induced to extend credit to the company. Ninety of the shai'es were issued to Gardner, for which he paid nothing at all. Seventy shares of paid-up stock were issued to Mrs. Walker, ostensibly as compensation for her stock of goods. Ten shares were issued to a Mr. Fred W uer- smith, for which he paid their par value of $50 a share. He seemed to have acted in good faith. The concern started on in business. Gardner, Wuersinith, and Mr. "Waiter were made directors. Gardner drew a weekly salary of $20 from the business. He appears to have devoted his time, during the brief existence of the corporation, not in doing anything for the business, but in efforts to trade off his stock, with a view of realizing something for it. Mrs. Walker, at the time she transferred her stock to the corporation, was indebted to a firm in Buffalo, by the name of Oohen & Sinai, for goods which they had sold her. About four months after the organization of the corporation, Oohen & Sinai, by an arrangement with Mr. Walker, who was at the time president, and also a director in the corporation, assigned to the-corporation its claim against Mrs. Walker, amounting to between $1,600 and $1,700; and Walker, as president, gave to them four notes of the corporation, three of them for the sum of $400 each, and the other for the sum of $431.38; and, at the same time, Walker, as president, gave three other notes of the company to other creditors of the corporation, — one for the sum of $187.25, another for $183.69, and a third for $245.36. The holders of these notes at once brought actions against the corporation in the municipal court of Buffalo, serving the papers upon Mr. Walker, and in six days thereafter they obtained judgments for their various claims, filed transcripts, and issued executions to the sheriff; and he, by virtue thereof, seized the property of the corporation, and advertised it for sale. The purpose of dividing the claim of Uohen & Sinai into four different notes was obviously so that they could be sued in the municipal court. The maximum sum for which that court could render judgment was $500, and judgments could be obtained in six days after service of summons. Mr. Gardner, as a stockholder of the corporation, after learning of the recovery of the judgments, moved the court for an order setting them aside, and the order appealed from was granted. The motion was founded on section 28 of chapter 687 of the Laws'of 1892, which is as follows:

“ Stay of Proceedings in Actions Oollusively Brought. If an action is brought against a corporation by the procurement or. default of its directors, or any of them, to enforce any claim or obligation declared void by law, or to which the corporation has a valid defense, and such action is in the interest or for the benefit of any director, and the corporation has by his connivance made default-in such action, or consented to the validity of such claim or obligation, any member of the corporation may apply to the supreme court, upon affidavit, setting forth the facts, for a stay of proceedings in such action, and on proof of the facts in such further manner and upon such notice as the court may direct, it may stay such proceedings or set aside and vacate the same, or grant such other relief as may seem proper, and which will not injuriously affect an innocent party, who, without notice of such wrong doing and for a valuable consideration, has acquired rights under such proceedings.”

It will be observed that the section provides for relief only in case “ the action is in the interest or for the. benefit of a director,” There was an entire absence of any evidence that any of these actions were in the interest or for the benefit of Mr. Walker. He had not the slightest interest in the corporation. He was, it is true, the husband of a person who held stock in the company; but it is a pecuniary interest or benefit that the section contemplates, and not an interest arising, as in this case, out of relationship. It is stated in Gardner’s affidavit that these actions were prosecuted for the benefit of Mr. Walker, but there is an absence of any statements of facts or evidence to sustain the allegation, and hence it proves nothing. It is alleged in Walker’s affidavit used in opposition to the motion that he had no interest of any kind in the actions. We do not see how the motion could be granted, under the section of the statute quoted.

Can it be sustained under section 48 of chapter 688 of the Laws of 1892 ? That section prohibits any insolvent corporation, among other things, from making a conveyance or assignment or transfer of any property, or suffering a judgment to be obtained, when the corporation is insolvent, or its insolvency is imminent, with the intent of giving a preference to any particular creditor oyer other creditors of the corporation. It may be doubted if the notes given to Cohen & Sinai had any validity, as against the corporation, for want of consideration. But the validity of the notes given to the other creditors is not questioned. It is claimed that the debts for which they were given were not, at the time, due. It did not appear from Gardner’s affidavit, upon which the motion was based, that the corporation had at the time any other creditors than those mentioned, to whom these several notes were given ; but it did appear from the affidavit of Mr. Walker read in opposition to the motion that there were other creditors having claims against the corporation, and it further appeared that the corporation was insolvent at the time the notes were given. Before the motion was made a receiver had been appointed for the corporation. Gardner was a director and a stockholder in the corporation at the time he made his motion; but considering the manner of obtaining his stock, — he not Laving paid anything for it, — and considering his purpose in organizing the company, he was not entitled to much consideration. It was made to appear pretty conclusively that the judgments were suffered to be recovered, and that the purpose of recovering them was to give the judgment creditors preference over other creditors •of the corporation, and they had seized the property of the corporation under their executions. It is provided by section 48 that every person receiving, by means of any such prohibited act or deed, any property of a corporation, shall be bound to account therefor to its ■creditors or stockholders, or other trustees. It may be ' doubted whether the levying upon the property of the corporation by virtue of these executions was receiving the property of the corporation by means of any act prohibited by this section. This motion was not in behalf of any creditor of the corporation. So far as was made to appear, they were content with the situation, and did not care to have the judgments vacated. This is not a proceeding to compel the judgment creditors to account for property which they had received. It was instituted and prosecuted under section 28 of chapter 687 of the laws of 1892, above quoted ; and, as suggested, the respondent having failed to show that the actions were in the interest or for the benefit of a director of the corporation, he was. not entitled to the order appealed from. It should be reversed, with $10 costs and disbursements.

All concur.


author: Lewis J.

text:
    Mary A. Van Vranken, Resp’t, v. Village of Clifton Springs, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Negligence — Municipal corporation.
    It is negligence on the part of a village to permit a pile of refuse matter, which has been placed in the roadway of the street by an adjoining owner some month or two prior to the .accident, to remain there at night without a lamp or other light upon it to give notice to travelers.
    2. Same — (Contributory.
    The negligence of a person driving a carriage will not be imputed to his companion who was riding therein at the invitation of the former and had no control over the horse.
    Appeal from an order denying a motion for a new trial, made on the judge’s minutes, after a verdict for the plaintiff.

      Edwin Hicks, for app’lt; Frank Rice, for resp’t.
   Lewis J.

The plaintiff recovered a verdict of $1,200 against the' defendant, a municipal corporation, for personal injuries re-, ceived by being thrown from a carriage in the nigh time, caused by the vehicle coming in contact with a pile of refuse in one of the streets of the village. The proprietor of the Clifton Springs Sanitarium had been engaged in the construction of a building fronting upon the street, and had placed a large quantity of material, consisting of brick, stone, etc., alongside of the gutter, in the traveled part of the main street of the village. It had remained there for a month or two prior to and at the time of the accident. The plaintiff, at the invitation of a Mr. Newton, was riding with him at the time of the accident, about one o’clock in the morning; of the 20th of September, 1893. The horse and buggy were owned by Mr. Newton, and he was driving the horse at the time. The plaintiff was seated in the buggy with him. The right wheels of the carriage ran upon this pile of rubbish. The wagon was overturned, and the plaintiff received quite serious injuries. The night was dark. The only light was that which came from the stars. The pile of rubbish was in the shadow of trees and buildings. There was no lamp or other light upon it to give notice to travelers, and had not been during the night. The negligence of the defendant was established beyond any question. As to the contributory negligence of the plaintiff, the horse was gentle, and was going at the time at a moderate gait. It was a top buggy, with side curtains, and the top was up.

The circumstances of the accident, as testified to by the plaintiff, tended to show that she was free from negligence contributing to her injuries. The plaintiff being in the buggy at the invitation. of Mr. Newton, and having no control over the horse, the negligence of Mr. Newton, if any, contributing to the accident, would, not be imputable to the plaintiff. McCaffrey v. Canal Co., 41 St. Rep. 221. Whether Newton was guilty of negligence contributing to the accident was a question of fact for the jury, and their verdict was conclusive upon that question.

We find nothing in the exceptions of the defendant calling for a reversal of the order. The verdict, we think, was fully sustained by the evidence, and the order appealed from should be affirmed,, and judgment directed for the plaintiff upon the verdict.

All concur.


text:
    John Ryan, Resp’t, v. Edward J. Conroy et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      filed April 12, 1895.)

    Appeal — First instance.
    The point that the court charged as a fact matter as to which the evidence was conflicting, cannot be raised for the first time on appeal.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial., made on the minutes.

      Charles F. Tabor, for app’lts ; Wallace Thayer, for resp’t.
   Lewis, J.

The plaintiff brought this action to recover a balance claimed to be due upon the sale and delivery of a quantity of hay to the defendants on the 23d day of August, 1893. After the sale, and before the hay was removed from the plaintiff’s bam,, it was destroyed by fire; and the main question litigated was whether the title to the hay was in the defendants at the time of the fire. The hay at the time of the sale was in two bays in the plaintiff’s barn. He and the defendant Conroy were present in the barn, and there agreed that the plaintiff was to sell, and the defendant Conroy was to purchase, the hay, at $9 per ton, to be paid for upon demand. Conroy paid $10 down, and agreed to come the next week and press and bale the hay. The plaintiff agreed that when the hay was pressed and baled, and he was requested so to do, he would draw it to a railroad station near by, and would board the defendant’s men and teams while the hay was being pressed. After the sale, and before the hay was pressed, the defendant Hyman paid plaintiff $50 to apply on the purchase price. The evidence was conflicting as to whether the entire quantity was sold. Plaintiff’s evidence tended to show that it was all sold. The defendants’ evidence tended to show that there was at the time a quantity of clover hay in one of the mows, and about 200 pounds of old mow burned hay, which was not purchased. The defendants further contended that hay was to be paid for when delivered by the plaintiff at the railroad. The jury, upon evidence which we think was sufficient to sustain their verdict, found that the defendants purchased the entire quantity of hay, and agreed to pay therefor upon demand.

Defendants contend that as the quantity of hay was not known, and the plaintiff concededly was to deliver it at the railroad station, and board the hands and teams while they were engaged in pressing it, it follows that the title to the hay was in the plaintiff at the time of the ñre. The verdict being against the defendants, we do not think their contention can be sustained. The law upon these questions seems to be so well settled that it is not deemed necessary or profitable to refer to the cases. The authorities to which our attention is called by the appellants’ counsel, we think, are clearly distinguishable from this case.

The court, in charging the jury, stated the amount, for which they should render a verdict if they found for the plaintiff. He inadvertently overlooked the fact that there was a conflict in the ■evidence as to the amount of the hay. One witness for the defendants testified that, in his opinion, the quantity of hay was not as large as that stated by the plaintiff’s witnesses. The defendants’ counsel failed to call the court’s attention to this conflict in the evidence, and failed to take an exception to the charge; The difference in amount as estimated by the witnesses was not large. It is too late, upon appeal, for the defendants to avail themselves of this point.

Another question litigated on the trial was whether the defendants were copartners, and as such purchased the hay. The evidence upon this question was quite conflicting. The jury found against the defendants. Upon this question there was sufficient ■evidence to sustain their verdict in that respect

The court charged the jury that the plaintiff could not recover, unless the jury should find that the defendants were partners at the time of the purchase of the hay, or purchased it upon joint account ; holding that, unless the defendants were jointly liable, there could be no recovery in the case. The defendants’ counsel seems to have acquiesced in this view of the law, and failed to •call attention to the error. He now asks for a new trial, so that the case can be presented to another jury with proper instructions upon this question. This court has the power to grant a new trial notwithstanding the failure of the defendants’ counsel to take an exception to the charge, but we do not think that it is so manifest that any injustice was done to the defendants that the case should Re sent back for a new trial because of this error in the charge.

The judgment and order appealed from should be affirmed.

All concur.


text:
    Edward W. Hatch, App’lt, v. George E. Matthews et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Libel — Provocation.
    The publication of a libel by a third person upon a'party is no provocation in law for the commission of a libel upon another, unless it can be shown that the latter was responsible for the former publication.
    3. Pleading — Libel.
    In an action for libel in charging a judge with prejudice and bias in an action tried before him, a bill of particulars, specifying in what manner and respect the prejudice and bias alleged in the answer in mitigation of damages were manifested, will not. be directed.
    3. Same — Separate defenses.
    The provisions of section 507 of the Code,, requiring different defenses in the same answer to be stated separately and numbe'ed, applies only where the court can see that more than one defense is alleged.
    4. Same — Irrelevancy.
    A motion to strike out an answer or a portion thereof as irrelevant should be granted only where no doubt of the irrelevancy charged exists, and where there is evidence that its retention will embarrass the opposite party in the prosecution of his defense.
    Appeal from an order denying in part a motion that defendants be required To serve an amended answer, stating separately and numbering separate defenses, and to make more definite and certain the answer, and also from an order denying a motion to strike certain allegations from the amended answer.

      Simeon Fleischmann, for app’lt; Charles B. Wheeler, for resp’ts.
   Lewis, J.

This action was brought against the defendants, as the proprietors and publishers of the Buffalo Morning Express, to recover damages for a libelous article published therein concerning the plaintiff. Plaintiff moved the court for an order requiring the defendants to serve an amended answer, and separate, state, and number separately the matter set up as a second defense, and make the answer more definite in certain particulars. The motion was in part granted and in part denied, and from so much of the order as denied, plaintiff’s motion on appeal was taken. After service -of the amended answer, plaintiff moved the court to strike therefrom certain allegations as irrelevant. The motion was denied. Separate appeal books were made, but the motions were argued "together, and may be so considered in disposing of the appeals.

The defendant Matthews was interviewed by a reporter of the Buffalo Enquirer, in which paper the interview was first published. It was thereafter reprinted in the Express. The particular matter complained of consists in this statement:

“The reason for the malice that Judge Hatch has shown in his personal and judicial functions towards the Express is generally attributed to the fact that the Express prevented him from turning over the superior court to the democratic party in order to gratify his personal ambition to become a judge of the supreme court.”

It is evident from the balance of the article that this had reference to a libel action which had theretofore been tried in the superior court of Buffalo, in which one Juliette C. Smith was plaintiff against these defendants. The plaintiff presided at the trial. The article contained an imputation that the plaintiff was actuated by malice towards the defendants upon the said trial. The way or manner in which such malice was manifested was not stated. If actual malice was manifested, the inference would be that it was intentional or willful. Malice is defined: “A propensity to inflict injury or suffering; active ill will.” If the word “ malice,” therefore, be taken in its ordinary, popular sense, the inference would be that the plaintiff was charged with having acted in a malicious manner, with willful disregard of his duty, and that the defendants used the word in that sense in the article. It was charged in the complaint that the defendant» caused these publications to be made through malice conceived, harbored and manifested by them against the plaintiff, and that-they, wickedly and maliciously, with intent to injure the plaintiff,, caused the publications to be made. Malice in law would be'implied, and the want of actual, express malice, or malice in fact, would be no justification or excuse, though the absence of it might be used in mitigation of damages.

It is alleged in the defendants’ answer, in mitigation of damages, in substance, that prior to these publications Charles S. Hatch, a brother of the plaintiff, and who was at the time clerk of the court of which the plaintiff was one of the judges, had publicly stated and declared to a reporter upon, and one of the writers for, the Buffalo Enquirer, a daily newspaper published and having a large circulation in the city of Buffalo, in substance, that:

“ Everybody in the city understands why Mr. George E. Matthews and the Express are so bitter against my brother,, myself, the superior court and the office of clerk of the superior court. Every chance which the Express has, it assails this court and this office. In this it is traitorous to the republican party, for the devotion of myself and my brother to the party can be questioned by no one. There is not a true republican newspaper in this city, and when the project was first mooted to start a new republican paper in this city, I said that I would subscribe to it. The reason why Mr. George E. Matthews and the Express are dead set against my brother and myself is because, there is a heavy judgment in this court against the Express in the case of Smith v. Matthews. Mr. Matthews thought that the case of Smith v. Matthews should be arranged in such a manner as not to cause any particular trouble, and only a small or nominal amount of expenses to the Express. Justice did not move that way, however, and a substantial verdict w.as obtained by the plaintiff against the Express for libel. My brother tried the-case, and the Express apparently wanted him to disgrace the-dignity of the bench by favoring the Elxpress on the trial. The court did not show favor to th.e Express; consequently the Express and Mr. Matthews are sore, and cannot say things too> harsh against this office.”

It is stated in the answer that the said Charles S. Hatch intended bv said statements to charge the defendants, and especially Matthews, with the corrupt and unlawful attempt to improperly influence the plaintiff in the discharge of his official duties as one of the judges of the court in the conduct and trial of the case of Smith against the defendants; and that said statements and charges were absolutely false and untrue in every particular, and without any foundation in fact, and were designed to greatly injure and prejudice these defendants in their good name and reputation, and to greatly prejudice the interests and rights of the defendants in the disposition of the"case of Smith .against them on appeal; and that the statements so made by -Charles S. Hatch were made for the purpose and with the intention of having them published in the Buffalo Enquirer; and that the defendant Matthews was requested to answer said statements and charges, and, for the purpose of defending his own honor from what he believed to be an unwarranted and malicious attack upon his integrity, good name and reputation, he made to the reporter of the Buffalo Enquirer the statement, in substance, which was published in that paper and afterwards in the Buffalo Morning Express.

The foregoing is a part of the allegations of the answer which the plaintiff asked to have stricken out, and if these were all of the allegations in the answer, they were probably not relevant to any issue in the case, and could not be proved on the trial for any purpose; for there is nothing thus far that tends to .show that the plaintiff in any way authorized or directed the publication, or was in any way responsible for it. The publication of a libel by a third party upon a defendant is no provocation in law for the commission of a libel upon another, unless it can be shown that the latter was responsible for the publication ; but the- answer proceeds to state, upon information and belief:

“ That the defendants had good and sufficient reason for believing, and did believe, that the said statements made by Charles S. Hatch were the result and outcome of stateménts made by the plaintiff to his said brother, and were the result of unfriendly and hostile feelings on the part of the plaintiff and his brother toward these defendants and their newspapers; that the reason the defendants had for believing that the said statements so made by the said Charles S. Hatch, were the result and outcome of statements, made to him by the plaintiff, and of unfriendly and hostile-feelings on the part of the plaintiff towards the defendants and their newspaper, are that these defendants were credibly informed and believed that they were in fact so made; that said Charles S. Hatch, owing to his official relations to the plaintiff as clerk of the superior court of Buffalo, and by reason of his kinship to the plaintiff as his brother, sustained intimate relations of friendship with the plaintiff, and had peculiar means and opportunities of knowing the views, sentiments, and feelings of his brother towards the defendants ; that they had aided each other in times past in procuring each for the other personal and political advancement in position, all of which were generally known; and that the defendants believed, and had sufficient reason to believe, that plaintiff’s brother would not have made such statements unless some such statements had been made to him by the plaintiff, and that defendants know of no source from which the brother could have derived any information touching the subject-matter of such statements, saving and excepting from the plaintiff in this action.”

It is further alleged that the Buffalo Express had theretofore urged the abolishment of the superior court, and had opposed the candidacy of the plaintiff for a certain office, and that the plaintiff and his brother were endeavoring to establish a rival newspaper to the Express, and that from all the circumstances of the case-they had reason to believe, and did believe, that the libel published by Charles S. Hatch was not only the result and outcome of statements made by the plaintiff to him, but also the result of unfriendly feelings as aforesaid.

It is true, as argued by the appellant’s counsel, that, after all, these allegations are largely matters of inference; but, in determining the question whether the defendants had good reason to believe that the statements made by the brother were the outcome of information he had derived from the plaintiff, the peculiar character of the facts can with propriety be considered. The defendant’s were charged in the interview with having improperly attempted to influence the plaintiff in the discharge of his judicial duties. Such an attempt, the jury would have the right to assume, would have been made secretly. When no one was present but the plaintiff and the defendants, and when Charles S. Hatch assumed to state that such an attempt had been made, the natural inference would be that his information came from the plaintiff. The question, then, is whether the facts thus pleaded can be used upon the trial for the purpose of mitigating the damages on the ground of provocation induced by belief that the plaintiff had previously uttered these slanderous words, and to that extent rebutting the inference of actual malice, or reducing the degree of malice, with the view of preventing punitive damages. The general rule is to admit proof of any fact that might possibly bear on the question of malice; and, if there is the slightest doubt in the mind of the court whether the facts proposed to be proved tend to disprove malice, the evidence should de admitted and submitted to the jury under proper instructions. Dolevin v. Wilder, 34 How. Pr. 488 ; Gorton v. Keeler, 51 Barb. 475 ; Townsend, Sland. & L. § 361. Where there is a semblance of a cause of action or a defense set up'in a pleading, its sufficiency cannot be determined on motion to strike out asuedundant or irrelevant. Walter v. Fowler, 85 N. Y. 621; Hagerty v. Andrews, 94 id. 195. Such a motion-should be granted only where no doubt exists of the irrelevancy charged, and where there is evidence that its retention would embarrass the opposite party in the prosecution of his defense. Williams v. Folsom, 32 St. Rep. 455. The court will let the matter objected to stand where argument is necessary to show the irrelevancy of the pleading. Baer v. Seymour, 12 St. Rep. 166; Littlejohn v. Greenley, 22 How. Pr. 345 ; Finger v. City of Kingston, 29 St. Rep. 702; Duprat v. Havemeyer, 18 Wkly. Dig. 439; Bradner v. Faulkner, 93 N. Y. 515. The question whether facts-set up are or are not such as should be permitted to be given in evidence in mitigation is especially proper to be decided by the judge on the trial. He, being present, a witness to the exigencies-of the trial as it progresses, is better situated to dispose of such a question than the court at special term. Town's!., Sland. & L. § 361, and cases there cited. Motions to strike out irrelevant or redundant matter in a pleading are not regarded with favor by the courts. Whether they should be granted or not is to a large extent a matter of discretion, and not of absolute right. Town of Essex v. New York & C. R. Co., 8 Hun, 361; Smith v. Hilton, 50 id. 242 ; 19 St. Rep. 340. We incline to the opinion that the matter complained of can be properly proven on the trial in mitigation of damages. It follows that the court at special term did not err in refusing to strike it out.

The plaintiff also asked that the defendants be required to furnish to the plaintiff a bill of particulars which should state by what speech or conduct, or in what manner and respect, the prejudice and bias alleged to have been shown by the plaintiff were shown or-manifested in the discharge of his judicial functions, and in his actions, in the trial of the case of Smith v. Matthews, and the proceedings connected therewith, as alleged in said answer. The nature of the allegation is such that it would be exceedingly difficult, if not impossible, to specify the particular acts of the plaintiff upon which it was based. Such prejudice and bias may have been manifested by a look, by the tone of the voice in making the charge to the jury, by an expression or appearance which it would be difficult to specify in a bill of particulars. A doubt is suggested in Newell v. Butler, 38 Hun, 106, whether a bill of particulars should be directed of matter pleaded in mitigation of damages, Holmes v. Jones, 13 St. Rep. 57, especially in a case where the plaintiff was himself familiar with the facts.

The court, we think, properly disposed of that part of the plaintiff’s motion requiring the defendants to separately state and number the facts and matters set forth in their second defense. That part of their answer consisted of facts and circumstances which naturally and properly belonged together, and which were pleaded in mitigation of damages. The part of the second answer which denied that the defendants intended to charge the plaintiff with intentional or willful misconduct legitimately and properly belongs with the clause following, which alleges that the plaintiff in fact was personally prejudiced and biased against the defendants and their newspaper, and that said prejudice and bias influenced his mind and judgment in the discharge of his judicial duties upon the trial of said action in Smith v. Matthews. The plaintiff’s contention involves the separation of these parts of the answer.

We fail to find any reason for reversing either of the orders appealed from.

They should be affirmed, with ten dollars costs and disbursements. All concur.


author: Lewis, J. Ward, J.

text:
    The People ex rel. John Ryan, Resp’t, v. Charles A. Webster, as Superintendent, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Criminal law — Certificate of conviction.
    A certificate of conviction in a court of special sessions is sufficient, under section 721 of the Code of Criminal Procedure, where it states that the charge against the defendant was ‘ ‘indecent exposure of the person and intoxication.” It is not subject to the objection that it does not state that the exposure was willful and lewd, and was in a public place, or a place where others were present.

      Appeal from an order, discharging the relator on habeas corpus.

      Howard H. Widener, for app’lt.
   Lewis, J.

The relator was committed to the Monroe county penitentiary by a justice of the peace of Monroe county. Upon his petition, a writ of habeas corpus was issued by the county judge of Monroe county, directed to the appellant, as superintendent, requiring him to produce the relator, with the cause of his imprisonment and detention. He was produced, in obedience to the writ, and the keeper made his return, to the effect that he held him under a certificate of conviction, which he produced, from which it appeared that the relator was brought before the committing magistrate, and was there charged with “indecent exposure of the person and intoxication; ” that he thereupon requested to be tried by a court of special sessions, and then pleaded guilty ; that he was duly convicted, and adjudged to be imprisoned in the Monroe county penitentiary for a term of ninety days. The order-appealed from was made, discharging the relator from further imprisonment. The ground assigned for the order was that the -commitment was fatally defective. In what respect it was defective was not stated, but we assume it to have been that the offense was not designated with sufficient particularity.

A form for- a certificate of conviction to be made by a court of special sessions is provided by section 721 of the Code of Criminal Procedure. Among other things, it provides that the offense of which' the defendant is convicted shall be “briefly designated.” It was the judgment of the court which authorized the commitment and detention of the relator. The certificate was evidence to the ‘superintendent of his right to receive and retain him in the penitentiary.

It is the contention of the district attorney that the relator was -convicted of violating section 316 of the Penal Code, which reads as follows:

“ Exposure of the Person. A person who wilfully or lewdly exposes his person or the private parts thereof in any public place, oy in any place where others are present, * * * is guilty of a misdemeanor.”

The county judge ’evidently concluded that the certificate was void for the reason that it failed to state that the exposure was willful and lewd, and was in a public place or in a place where others were present. While the proceedings of courts of special •session should be construed with sufficient strictness to protect the rights of persons charged with crime before those tribunals, too technical rules of construction should not be applied. " Such courts are presided over as a rule by men who are not familiar with legal proceedings. Trials therein are conducted generally quite informally. If the offense of which the person tried is required to be stated in the mittimus with the particulai-ity that is required in ■an indictment, a very large percentage of the certificates of conviction will prove to be defective. Such a construction would have the effect to liberate probably most of the persons convicted in these courts. All that the statute requires is a brief designation of the offense; that is, that it shall be pointed out, indicated, or named, so that the defendant or others shall know of what crime he was convicted and imprisoned. If every constituent which goes to constitute the crime is required to be stated in the certificate, it would not be a brief designation of the offense. All understand, when a person is charged with indecent exposure of his person, what offense is meant. The relator, we must assume, knew that he was charged with the lewd exposure of his person in a public place or in a place where others were present. He was well aware that he was not charged with exposing his person in the privacy of his bedroom. There would be nothing indecent or immodest in such an exposure. The charge of indecent exposure of one’s person implies that it was willfully and lewdly done, in the presence of others, or where he was likely to be seen by others. Had the certificate recited that the relator was convicted of “ assault and battery,” all would have pez'fectly well understood what the crime charged was ; and yet such a designation of the offense would have come far short of stating all the elements of the offense of assault and battezy.

The case of People v. Baker, 89 N. Y. 460, sustains our constructiozz of this statute. Trainor was imprisoned in the Brie county penitentiary, under a mittimus issued out of the court of sessions of Gferzesee county. It recited that he was indicted and convicted “for an assault and resisting an officer1." It appeaz-ed upon the return of the keeper to a writ of habeas corpus that the relator was convicted of the crime of resisting a sheriff in the execution of a process, under section 17, chap. 69, of the Laws of 1845, which provided as follows : “Every persorz who shall resist, or enter into a combination to resist the execution of process, shall be guilty,” etc. It was held, after hearing the relator and the keepei', that the relator was not entitled to his dischaz-ge because of any imperfection in the mittimus. The relator appealed to the court of appeals, where the decisions below were affirmed. Judge Earl, writing the opinion of the court, stated “that, if need be, the mittimus could have been amended, and that, if the court was required to hold that the relator was convicted of a simple assault and battery, he would not have been entitled to his discharge because of any informality in the mittimus." The mittimus in that case was quite as informal as was the certificate here.

We are not called upon here to review the judgment of the court of special sessions, to ascertain whethez-, when the relator was arraigned, a complete statement of the offense was stated to him; but if we were reviewing the judgment, and it was made to appear that the z-elator was simply chaz-ged, when arraigned, with having indecently exposed his person, he having pleaded guilty, and not requested a moi’e paz-ticular statement of that which constituted the offense, the judgment convicting him of a violation of the section mentioned would, we think, have been good. All that is required is that the judgment shall sufficiently specify the offense so as to protect the defezzdant from agaizr being tried for the same offense; but, whether our construction of the form of the judgment be correct or not, we think the intention of the legislature was, that the certificate of conviction should simply mention or designate the offense by the name by which it is popularly and commonly known.

Dwight, P. J., concurs; Bradley, J., not voting.

Ward, J.

(dissenting). — On the 4th of September, 1894, John Ryan was convicted, as appears by the following certificate of conviction : ■

“Court of Special Sessions, County of Monroe, Town of Perrington — ss.: The People of the State of New York against John Ryan.
“The above-named John Ryan, having been brought before me, Isaac' S. Hobbie, justice of the peace of the town of Perrington, charged with indecent exposure of the person and intoxication, having requested to be tried by a court of special sessions,'and the above-named John Ryan having thereupon pleaded guilty, and having been thereupon duly convicted, we have adjudged that he be imprisoned in the Monroe county penitentiary for the term of ninety days.
“Dated at the town of Perrington, in said county, the fourth day of September, 1894. I. S. Hobbie, Justice of the Peace.”

Upon a certified copy of this judgment, the relator was confined in the penitentiary. Upon application to the county judge, a writ of habeas corpus was issued by him, directed to the superintendent. The superintendent returned to the writ that the relator was held by him, by virtue of the judgment above set forth. Upon such return the learned judge made an order that the relhtor be discharged on the ground that “the commitment' was fatally defective,” and the question here is whether this discharge can be sustained. The appellant claims that the discharge was erroneous; that the judgment, being valid, is conclusive; and the relator could not be discharged upon habeas corpus. There is no appearance here for the respondent or brief submitted. His attorney filed a stipulation that the case might be submitted on the part of the appellant. It is, nevertheless, the duty of the court to examine the case, and dispose of it upon legal principles.

The only inquiry which the county judge could make upon the return of the writ was whether it appeared from the judgment itself that the court of special sessions had jurisdiction. People ex rel. Danziger v. Protestant Episcopal House of Mercy of City of New York, 128 N. Y. 185, 186; 40 St. Rep. 157; People v. Neilson, 16 Hun, 214. By section 2081 of the Code of Civil Procedure the imprisoned party must be discharged “if no lawful cause for the imprisonment or restraint, or for the continuance thereof is shown.” We assume that the county judge discharged the prisoner because it did not appear from the judgment that he was held for any crime that the court had jusisdiction to try. While it is no longer necessary for the judgment of the court of special sessions to recite the facts giving jurisdiction, and it is only necessary to state that he is charged with some crime that the court has jurisdiction to try, “briefly designating the offense” (Code Or. Proc. § 721), still it must affirmatively appear that some offense has been committed by the party charged that is prescribed by the Penal Code or some statute not repealed by it (section 2), and which “defines the nature of the various crimes” (section 7). The record of conviction states the relator was brought before the court, “charged with indecent exposure of the person and intoxication and the relator thereupon pleaded guilty, and having been duly convicted, was imprisoned, etc”. A court of special sessions is a court of limited jurisdiction, and has no jurisdiction but what is given it by statute, and no presumption will be indulged in support of such jurisdiction. People v. Mallon, 39 How. 451; In re Travis, 55 How. 347; Cases of Lynch and Burns, 9 Abb. N. C. 69. And the jurisdiction must appear by. the judgment. Powers v. People, 4 Johns. 292; In re Travis, supra; Thomas v. People, 19 Wend. 480. In People v. Maschke, 2 N. Y. Cr. R 168, the record of conviction stated that the defendant was convicted of “the misdemeanor of assault and battery.” The court held that a sufficient statement of an offense triable by a court of special .sessions in the record. This is undoubtedly so, as the court has power to try assault in the third degree, and that, by the Code, is made a “misdemeanor.” The other degrees of assaults are felonies.

Assuming that the above statement is a statement that the relator was convicted of the offense charged, the question is, of what offense, if any ? It was an offense at common law for a person in a public place to willfully expose his person ; and, in the shameful reign of Charles II., Sir Charles Sedley was punished by imprisonment and a heavy fine for standing naked in a balcony in a public park in the city of London. We do not find that any offense of this nature was recognized in any of the statutes of this state until the'adoption of the Penal Code, section 316 of which provides that “a person who wilfully and lewdly exposes his person or the private parts thereof in any public place or any place where others are present, or procures another to expose himself, is guilty of a misdeamor.” In 1893 courts of special sessions were given jurisdiction to try the crime of “exposure of the person contrary to law.” This was undoubtedly the offense of which it was sought to convict the relator. In the books, to some extent, and in common parlance, the offense has been designated “ indecent exposure of person.” But, in order to convict of the statutory offense, three things must concur: The exposure must be in a public place, or where others are present; it must be a willful exposure and a lewd one. If any one of these important elements is lacking, the crime is not committed, fl'he exposure must be intentional. Miller v. People, 5 Barb. 203. It is elementary that, in proceedings to punish all crimes where the intent is material, that intent must be alleged and proved. It may be an exposure of the person that is indecent, but does not indicate a lewd purpose. It may be an exposure that is indecent, but not “ public,” in the sense in which that term is understood in this connection. Judged by this standard, what becomes of the charge upon which this man is convicted? No importance is attached by the appellant to the statement in the record as to the relator’s intoxication, and none can be, as it is not a crime to be intoxicated except in a public place. Laws 1892, chap. 401, § 35. Eliminate this element from the case, and we have simply the statement that the relator had been guilty and was convicted of “ indecent exposure of the person.” That bare statement does not allege any crime known to the law of this state.

The order of the county judge discharging the relator should be affirmed.