author: Vah Bruht, P. J.

text:
    The People, Resp’ts, v. Pincus Block, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Burglary—Evidence of breaking—What sufficient.
    On an indictment for burglary, evidence that the door of the shop alleged to have been entered was provided with staples and a padlock which locked into them, that when left it was fastened, and that when complainant came to the shop after the alleged burglary, the staple was broken, was sufficient to show that the door was fastened.

      2. Larceny—Evidence—Possession of box in which stolen goods had been packed.
    The box in which some of the stolen property had been packed was found in defendant’s possession, and this is evidence connecting him with the larceny equal in probative force to having some portion of the stolen goods in his possession
    Appeal from judgment of the court of general sessions convicting the defendant of the crime of petit larceny.

      Levy, Friend & House (F. B. House, of counsel), for app’lt; De Lancey Nicoll (McK. Semple, of counsel), for resp’ts.
   Vah Bruht, P. J.

—The defendant was tried upon an indictment charging him jointly with one Isaac Cohen and one Michael Smith with burglary in the third degree, grand larceny in the second degree, and with receiving stolen goods.

It appeared upon the trial that one Jacob Schatzenberg was a, cloak maker, carrying on business in Sheriff street, in this city. Prior to the time of the alleged burglary, he had received from the Manhattan Suit Co. material for. twenty-three cloaks which he was to make up, and a quantity of trimming. The cloaks were charged to him at $316, and the trimmings at $15. On the 14th. of September he left his shop at half past five o’clock, leaving a man named Ericum Plusser therein. The door was fastened with a padlock, and there was a staple on each side into which the padlock locked. The 15th was a Jewish holiday, and the complainant did not go to his shop in the morning, and Plusser had the key to the padlock on that day. '

In the afternoon Schatzenberg went to the shop and found that the door had been broken open and the cloaks and trimmings gone. There was also missing a piece of cloth used as a skirt for drapeing a lay figure. Plusser remained with Schatzenberg from Monday until Friday following and has not been seen since. Complaint having been made to the police, Smith was arrested and taken by the officer to a suite of apartments at No. 117 West Fourth street. The rooms run right through from front to rear and are connected by open doors. At the time of the visit to the apartment there were three women and two men there, one of whom was Block. It would appear that three of the rooms were occupied by the other man and a woman who passed as his wife and the fourth was occupied by Block. Under the bed in this room was found a box, which Smith said in Block’s presence was the box which had contained some of the stolen goods, and behind a screen in the fire place of the adjoining room was found a skirt in respect to which Smith said: “We had the goods wrapped up in that when we brought them here,” to which Block made no reply. The room in which the skirt was found was stated not to have been occupied by Block. Smith, also said in Block’s presence: “ That is the man that took the pawn tickets for the goods that were pawned.” Block’s trunks were searched and some pawn tickets found, but none of them had any relation to the stolen goods. Block denied all knowledge of the burglary and larceny. The complaintant testified that the skirt found was the same skirt which had been used to drape the lay figures in his shop. He also stated that all lay figures had skirts exactly like that. He, also, testified that the box found was the box in which the trimmings had been contained and that he identified it by the figure 3 upon it; and that he had four or five boxes in his place like it, and that when he got through with the boxes he did not keep them, but destroyed them or threw them away.

One cloak was found in a pawnshop on information given by Smith and no other of the stolen property was recovered.

At the close of the People’s case defendant’s counsel moved the court to direct an acquittal and to the denial of that motion an exception was taken. The case was submitted to the jury upon the counts for burglary and grand larceny. A verdict of guilty of petit larceny was returned, a motion for new trial was denied and judgment rendered; and from such judgment this appeal is taken.

The appellant’s counsel claims that it was error to submit to the jury the count for burglary in that it was fatally defective in alleging the breaking and entering of the “ factory ” of one Jacob Schatzenberg. And it is urged that a “ factory ” is not a railway car, vessel, booth, tent, shop, or other erection or enclosure. No point was made in respect to this at the time of the trial, and we fail to see why under the ordinary definition of the word “ factory” it does not come within the term “ other erection ” at least

It (is further urged that the evidence fails to show that the door was fastened or even closed. But it appears that when the complainant arrived at the shop, he found the staple had been broken and the door evidently forced, which was some evidence that force had been used for the purpose of entering the factory.

The claim that the evidence was not sufficient to warrant any verdict whatever against the prisoner is unavailing.

It is true that no part of the stolen property was found in his possession, but the box in which some portion of the stolen property was packed was found in his possession, and not the slightest explanation given as to how it came there. It would seem that this evidence was of equal dignity as though some portion of the stolen property had been found. It certainly had equal probative force. He had the wrapper in which the stolen property had been enclosed, and that brought him into very close relations with the property itself The point in regard to exclusive control is only a relative one. He had this box hid under his bed, not open and exposed as probably would have been the case had he come honestly by it

We have read the charge of the learned court, and we do not see that be in any way infringed the rights of the defendant, or that there was any miscarriage of justice in the conviction except, perhaps, in the low degree of crime of which the defendant was found guilty.

The conviction should be affirmed.

Barrett and Patterson, JJ., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    The People ex rel., James A. Costello, App’lt, v. John McClave et al., com’rs, Resp’ts.

      (Supreme Court, General Term,, First Department,

      Filed June 26, 1891.)

    1. Municipal corporation—Police—Certiorari.
    When an officer has been dismissed by the police commissioners, the judgment will not be disturbed on certiorari, on the ground that the evidence was conflicting, it there was sufficient evidence to support the judgment.
    Certiorari to review the removal of the relator from the police force of the city of Hew York.

      L. J. Grant and William C. Reddy, for relator; E. H. Hawke, Jr., and Charles A. O'Neil, for resp’ts.
   Van Brunt, P. J.

—The charge against the relator was conduct unbecoming an officer, the specification being that the relator on Sunday morning September 22, 1889, assaulted one John Seaman who was standing in front of Ho. 51 Fifth avenue waiting for a friend, striking him violently with his club about the body and fracturing the arm of said Seaman with a blow of his club, without the slightest cause or provocation.

Evidence was introduced before the commissioners tending to establish this charge and evidence upon the part of the relator for the purpose of disproving it, but the relator was dismissed from the force.

The principal ground of the proceeding seems to be founded upon the claim now made by the relator’s counsel that the relator’s case before the commissioners was not very judiciously or properly presented; and it is proposed to reverse the action of the commissioners upon affidavits made long subsequent to the rendition of the judgment complained of.

The rule is perfectly well settled, and it is not necessary to be discussed here, that if the issue presented before the commissioners had been presented in an action and there was sufficient evidence to carry the case to the jury, this court cannot interfere.

It appears upon an examination of this record that there was evidence tending to establish the charge made against the relator. It is true that the maintenance of the charge depended largely upon the testimony of the complainant John Seaman, and that the relator told an entirely different story.

But his fellow officers who were called to testify in his behalf, particularly officer Gaffney, gave evidence which is slightly in conflict with that of the relator. Under these circumstances the question was one for the commissioners, and with their judgment this court cannot interfere.

It is claimed that there was no preponderance of proof against the relator, no corroborative proof to support the complainant’s testimony, and no corroborative proof of the injury sustained, etc. But we know of no rule in cases of this description which requires corroboration in order that a witness may be believed; nor can we reverse a judgment because we may be of opinion that the respondents have not given due weight to the testimony or that there was not that preponderance of evidence which ordinarily must be present to justify a judgment They were the judges of the credibility of the witnesses and of the preponderance of evidence. There was sufficient to support their judgment, and in such a case this court is powerless to interfere

The writ should be dismissed, with costs,

Barrett and Patterson, JJ., concur.


author: Barrett, J.

text:
    Isaac Romaine, Resp’t, v. Michael Chauncey, App,lt

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Alimony—Not liable for wife’s antecedent debts.
    Alimony allowed to a wife by the final decree granting her a divorce is not her property or separate estate, and cannot be reached by creditors whose claims and judgments antedate such decree.
    Appeal by the defendants from an interlocutory judgment overruling their demurrers to the plaintiff’s complaint.
    Cowen, Dickerson, Nicoll & Brown, for app’lt; George V. H. Baldwin, for resp’t
   Barrett, J.

—The precise question here presented is whether the alimony allowed to a married woman by the final decree granting her a divorce can be reached by creditors whose claims and judgments antedate such decree.

The facts are these: In July, 1888, this court rendered judgment in favor of Mrs. Chauncey and against her husband granting her a divorce a vinculo and awarding her alimony. In 1889 the plaintiff was appointed receiver of Mrs. Chauncey’s property by a JSTew Jersey court upon a judgment recovered against her in that state in the year 1884. This action is brought to' reach the alimony payable to Mrs. Chauncey under the decree of this court, and to require Mr. Chauncey to pay it over to the plaintiff monthly until the judgment under which he was appointed is fully satisfied. Mr. and Mrs. Chauncey demurred arid their demurrers were overruled at special term.

We.think this action cannot be maintained. The alimony .awarded to Mrs. Chauncey cannot be regarded as an ordinary debt due by one person to another, which may be reached by judgment creditors in the ordinary way. The nature of alimony must not be overlooked. It is not the wife’s property nor her separate estate. It is simply a provision compulsorily made for her support by the guilty husband. The law thus enforces the obligation assumed by the husband at marriage, and the alimony becomes a substitute for the maintenance which is the wife’s due, and which she would receive directly from the husband, and in his home, but for the dissolution of the marriage contract'by reason of his infidelity. This was the doctrine of the common law, and the rule was substantially codified both in the Revised Statute and the Codes of Procedure. At common law alimony properly signified nourishment' or maintenance, when strictly taken. (Grodol. Ab., 508.) It was not a portion of the husband’s estate, assigned to the wife, and subject to her control or to be sold at her pleasure, but a provision for her support, to be continued during their joint lives or so long as they live separate. Martin, J., in Wallingsford v. Wallingsford, 6 Har. & J., 485.

“Alimony,” says Mr. Bishop, “ is not a sum of money or a specific proportion of the husband’s estate given absolutely to the wife, but it is a continuous allotment of sums payable at regular periods for her support from year to year.” Bishop Marriage and Divorce, § 591. “If she is compelled,” he says again (§ 604), “to seek a divorce on account of nis misconduct, she loses none of her rights in this respect (that is, in respect to support), only she is to draw her maintenance in a different way. ” In Daniels v. Lindley, 44 Iowa, p. 567, it was said, that the claim of the wife for alimony was not in the nature of a debt, and that she was not a creditor of the husband. So in Guenther v. Jacobs, 44 Wis., 354, Byron, C. J. said that alimony is not an estate, and, therefore, not separate property of the wife. It is an allowance for the nourishment of the wife, variable and revocable. And see Burr v. Burr, 7 Hill, 207-213. The language of the Code is equally explicit. “ The court may, in. the final judgment dissolving the marriage, require the defendant to provide suitably for the education and maintenance of the children'of the marriage, and for the support of the plaintiff as justice requires, regard being had to the circumstances of the ■ respective parties.” Code of Civ. Pro., § 1759, subd. 2.

The maintenance of the children of the marriage and the support of the wife'are thus treated as obligations of a like character to be enforced, not as creditors enforce the contract obligations of their debtors, but by specially coercive proceedings looking not only to the sequestration of the husband’s property, but to compulsory payment from even his current earnings, and to imprisonment in case of disobedience to the judicial mandate. It is quite clear that the provision thus made for the wife’s support is non-assignable. The principle upon which policies of life insurance in favor of the wife were held to be non-assignable, Eadie v. Slimmon, 26 N. Y., 9; Barry v. Equitable Life Assurance Society, 59 id., 587; Barry v. Brune, 71 id., 261, applies with greater force to such a provision as that of alimony. And what,, it may be asked, could an assignee of alimony take? Could he take a provision made for the support of the wife, payable from time to time in futuro, and determinable by the death, meantime, of either of the parties ? And if he could take such a provision, will it be pretended that the assignment would carry with it the same right to enforcement, and the same remedies in that regard, which the law has afforded to the wife ? The question carries with it the negative answer. We would not have deemed this question worthy of extended consideration but for some observations contained in the opinion of the court in Stevenson v. Stevenson, 34 Hun, 157. That case is, however, materially distinguishable from the present in this, that the judgment there was recovered subsequently to the decree of divorce. If the learned court had placed its decision solely upon the ground that the creditor had furnished the wife with necessaries upon the faith of the alimony judgment, we would have no difficulty in following it unreservedly. For we think it reasonable that a provision made for the wife’s support should be charged with that very support furnished by a tradesman on the strength of the decree. But further than this we are not prepared to go. To charge the alimony provision with a judgment having no relation whatever to the wife’s support, would simply be to nullify the statute and to permit the wife to starve while the husband, instead of supporting her, is forced to pay her old debts.

Two cases are cited in Stevenson v. Stevenson to sustain the proposition that the separate maintenance of a married woman secured by her husband, they living apart, may be reached by a bill in equity by the creditors of the wife. Kenge v. Delavall, 1 Ver., 326; Lillia v. Airey, 1 Ves., Jr., 377. I have examined both of these cases, and I find that they simply hold that a wife’s separate estate is in equity chargeable with the debts contracted upon the credit of that estate. This is an old and familiar rule, and it undoubtedly affords countenance to the proposition that a tradesman may charge even alimony with debts for necessaries contracted upon the credit of the decree. The learned judge who spoke for the general term in Stevenson v. Stevenson, Follett, J., seemed to think that unless It could be shown that alimony was exempted by virtue of some statute, it could be reached by an ordinary creditor in the ordinary way. Accordingly he discussed §| 1879 and 2463 of the Code of Civil Procedure with regard to exemptions in cases of express trusts, and he held that the alimony judgment did not. come within such exemptions, as it did not create “ the semblance of an express trust” I agree entirely with the learned judge in this latter conclusion; but I do not think it necessary here to find any statute of exemptions. If we are right in our view of the nature and character of alimony, then it is not a debt, and statutes with regard to exemptions have no applicability. Mor need we liken alimony to a trust fund in order to preserve it strictly for the purposes of maintenance. If necessary, we might appeal to public policy rather than to statutes of exemptions or statutes regulating express trusts. There are many instances where public policy stands between the creditor and the debtor, and prevents the attachment of what is due the latter for his personal services. The rules which govern with regard to the salaries of public officers are familiar illustrations of this principle. If the law will not permit the salary of a public officer to be assigned, attached or diverted from the purpose of support, it is certainly not because of any statute of exemptions. It is because the public service demands that the officer shall be capable of adequately performing his public duty. Public policy equally demands that a woman whose husband is bound to support her shall not become a public charge, and that the provision ordained by law shall be scrupulously applied to the single purpose for which it was intended.

Without considering the other questions presented, we think the interlocutory judgments should be reversed and the demurrers sustained, with costs to each of the defendants, both at special term and upon this appeal.

Van Brunt, P. J., and Patterson, J., concur.


author: Bartlett, J.

text:
    The People of the State of New York, Resp’ts, v. Charles Seaton, App’lt

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Receiving stolen goods—Proof of felonious taking necessary.
    On the trial of defendant,for receiving two silver bars worth §1,000 each, knowing the same to be stolen, it was shown that a truckman took a load of 101 bars from the bank to the Canard dock at 5.35 p. m., and upon arriving at the wharf at 6.10 p. m. two bars were missing. The bars were lying in rows on the truck and could easily have slipped off. A junk dealer testified that at about 6.30 p. m. two men sold him two pieces of dirty metal, which he supposed was solder, for fourteen dollars, and subsequently, naving read an account of the loss in the papers, he sold them to defendant for $650. Held, that there was not sufficient evidence that the silver had been stolen to convict defendant of knowingly receiving stolen goods.
    3. Same—Appropriating lost property—Penal Code, § 639.
    The proof failed even to show such a misappropriation of the silver bars as lost and found property as to constitute the crime of larceny under § 539 of the Penal Code.

      Appeal from a judgment.of the court of general sessions rendered upon a verdict convicting the defendant of the crime of receiving stolen goods charged as a second offense.

      Frederick B. House, for app’lt; McKenzie Semple, for resp’ts
   Bartlett, J.

—The indictment charges the defendant with having feloniously received, knowing the same to be stolen, two-silver bars of the value of $1,000 each, which belonged to one John T. Barkley, from whom they had been “ feloniously stolen, taken and carrid away ” by Edward Bock, Thomas Dugan, John Keenan and certain other persons to the grand jury unknown. This act is charged as a second offense, it being alleged that the defendant was formerly convicted of grand larcency and sentenced to a term, of imprisonment which he served out. The former conviction for grand larceny was admitted upon the trial of the present case; no testimony whatever was introduced in behalf of the defendant; and the main question arising upon this appeal is whether the evidence offered on the part of the prosecution was sufficient to warrant a conviction.

On December 20, 1889, John F. Barkley, a truckman, took a truck load .of silver bars from the American Exchange Bank in the-city of New York, to the Cunard dock on the North river, at the foot of Clarkson street. The load consisted of 101 bars when the truck left the bank, at about twenty-ñve minutes before six o’clock in the1 afternoon. Upon arrival at the wharf, about ten minutes past six, two of the bars were missing. The bars had "been arranged in rows on the floor of the truck in one layer, and completely covered the floor, so as to leave only just room for the feet of the driver. Mr. Barkley and the driver were the only persons upon the truck, so far as appears, during the journey. The driver says it was foggy but not very dark when they started from the bank. Mr. Barkley says it was dark when they arrived at the Cunard dock. There he found that the bars had slid down and'that there was a broken space where the bars were missing from the rear of the truck. As I understand his testimony, the construction of the truck and its arrangement on this occasion were such as to render it quite easy, in the absence of very watchful care, for some of these silver bars to slide off into the street. “ In order to take this heavy load on that day,” he says, “we put' the tail rack back a certain distance, about six inches from the end of the floor of the truck, leaving seven and a half inches exposed on either side of our truck, behind the hind wheels and between the line where the tail rack goes across and the end of the. side rack.”

At the time the two silver bars thus disappeared, one William Grilmartin carried on the business of a junk dealer at No. 458 Washington street. He was called as a witness for the prosecution and testified that about the 20th of December, before half-past six, Thomas Dugan and a man named Bock came into his place, bringing two pieces of stuff which he thought was "solder and which he purchased from them for fourteen dollars. The lumps of stuff “ were dirty, the same as if. they were lying in the street.” The next day Gilmartin read some statement in a newspaper which apparently referred to the objects he had bought, whereupon he sent them to a liquor store in the neighborhood and there put them in a safe. Subsequently Gilmartin, together with Bock and Dugan, all apparently acting together, sold the bars to the defendant for $650.

I do not think there is any serious question in the case as to the identity of the bars. That the bars thus sold to the defendant were the silver bars from Barkley’s truck seems to me to be established beyo'nd a reasonable doubt. I think the evidence also indicates very clearly that the defendant knew that the bars were not the property of the men from whom he purchased them. The difficulty in the way of the prosecution is in the testimony relied upon to show that the property had bee'n stolen. The indictment alleges a felonious taking. Is it sustained by the proof in this respect?

I am unable to answer this question in the affirmative. It seems to me not only that there is an entire absence of any proof of theft from the truck while in transit but that the evidence all tends to show that the silver was lost off the vehicle in the course of the journey. There were two men on the truck, the driver and Mr. Barkley, and the driver swears that there was no one else on the truck with him at any time. In the presence of these two persons, presumably exercising some degree of watchfulness over the silver under there charge, it is extremely improbable that anyone should have ventured to jump on the wagon, or- so approach it as to be able to seize and carry off any 'portion of the load. On the other hand, there was a place where the bars might well slip off unobserved, an opening at the side, toward the rear of the truck, and the probability that they did thus slip off is strengthened by the testimony of Gilmartin as to their dirty condition when brought to him by Bock and Dugan. At that time, it is tolerably certain that neither-Bock nor Dugan had any idea that the bars were silver, since they agreed to ■ part with them for fourteen dollars, and this fact also militates strongly against the theory of a felonious taking from the truck.

The trial was conducted, however, on the assumption, by the court and the counsel for the prosecution, that it was not necessary to prove a felonious taking at all, although that was the only form of larceny alleged in the indictment. The jury were told in substance that it would be enough, so far as that branch of the case was concerned, if the proof established the statutory larceny defined in § 539 of the Penal Code, which reads as follows :

“ A person who finds lost property under circumstances which give him knowledge or means of inquiry as to the true owner, and who appropriates such property to his own use or to the use of another person who is not. entitled thereto, without first having made every reasonable effort to find the owner and restore the property to him, is guilty of larceny."

A careful examination of the minutes of the trial, as set out in the appeal book, satisfies me that the proof fails to show a misappropriation of the silver bar as lost and found property under this section, just as it fails to show any taking which would have been larceny at common law. Assuming, as seems altogether probable, that the bars were lost in the street by sliding off the floor of the truck, through one of the side openings, and that they were subsequently found on the pavement by Rock and Dugan, there is no evidence that the finding was under circumstances which would give them knowledge or means of enquiry as to the true owner. It may be said that when they resumed control of the 'property, after G-ilmaitin had seen notice in a newspaper, and when they participated with Gfilmartin in the sale to the defendant, Seaton, they brought themselves within the terms of § 539, because circumstances had then occurred which indicated the true ownership of the silver. There would be much force in this argument if the learned assistant district attorney who conducted the prosecution had laid before the court and jury the newspaper notice which Gilmartin testified that he had read, and which, according to his testimony, was read by Dugan, Rock and Seaton, “ between them,” prior to the sale for $650 to Seaton. This notice, however, was not put in evidence. It may very well be that it contained information which, if communicated 'to Dugan and Rock, rendered them liable for the felonious misappropriation of found property; but without knowing what were its contents, we cannot say that such was its legal effect Convictions in criminal cases must be founded upon competent proof, not upon guesswork or speculation as to the contents of papers which are shown to a witness on the stand but not introduced in evidence or exhibited to the jury.

Only two theories of the case were presented to the jury for their consideration; one that the property was feloniously taken; the other that it was lost and retained by the finders under such circumstances as to make them guilty of a statutory larceny. In neither view does it seem to me that the proof was sufficient to sustain a conviction, and I am, therefore, in favor of reversing the judgment and granting a new trial.

Van Brunt, P. J., and Barrett, J., concur.


author: Patterson, J.

text:
    Patrick Matthews, Res’pt, v. Jacob F. Herdtfelder et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. New trial—Granted after verdict—Code Civ. Pro., g 999—Recon-sideration.
    After verdict for defendant was rendered and recorded, plaintiff made a motion for a new trial which was denied, but no order of the court signed or filed on the motion. Judgment having been entered for defendant, the plaintiff subsequently, on motion, obtained a re-argument of his motion for a new trial. Held, that there was no such final or absolute disposition of the motion for a new trial, as would deprive the judge at circuit of jurisdiction to reconsider his ruling.
    3. Evidence—Admissions of liability by defendant.
    In an action against partners for injury to plaintiff through a collision with one of their trucks, the court refused to allow plaintiff to prove that one of the defendants, at the instance of the other, had admitted the driver’s fault, and offered plaintiff a small sum in settlement. Held; error; as by its exclusions plaintiff was prevented from showing anything in reference to the conversation, and the court was not in a position to determine, under the distinctions made (as to privileged statements), whether the testimony was or was not admissible.
    Appeal from an order made at circuit, granting a new trial to plaintiff after verdict against the defendants, who were partners, for damages for a personal injury alleged to have been sustained by plaintiff through a collision with one of plaintiffs’ trucks, driven by their employee. Upon the trial plaintiff offered to prove that one of the defendants had come to him at the procurement of his co-defendant, admitted the driver’s fault, and offered plaintiff a small sum in settlement. The court refused to allow the evidence to be given.

      Thompson & Koss, for app’lts; G. W. Wilson, for resp’t.
   Patterson, J.

—This is an appeal from an order made at circuit, and granting a new trial to the plaintiff after verdict in favor of the defendant, and under the following circumstances. When the verdict was rendered and recorded, the motion was made for a new trial under § 999 of the Code of Civil Procedure. The minutes made by the clerk state, among other things: “ Motion for a new trial denied.”

That was on the 18th of February, 1890. No order of the court was ever signed or filed on this motion. Judgment in favor of the defendant was entered by the clerk, as is usual in common law cases, on the 21st day of February, 1890. On the 25th day of that month the plaintiff asked for a re-argument of the motion, which was had, and on the 27th, being at the same term of the court, and the motion was granted, and an order duly and formally entered.

There was no such final or absolute disposition of the motion as deprived the judge at circuit of jurisdiction to reconsider his ruling. The term of the court had not expired, no final order had been entered, and he was at liberty, in furtherance of justice, to reconsider a mere formal ruling, and on being convinced of his error, to put the parties in a situation that justice might be done The fact that intermediate the trial and the motion for re-argument judgment had been entered, does not affect the question.

In the case of Voisin v. The Commercial Insurance Company, 31 N. Y. State Rep., 88, we held that an appeal to the general term from an order granting or refusing a new trial in an action tried before a jury might be taken, notwithstanding judgment had been entered against the appellant and the time to appeal, therefore, had expired; and our views in that case were sustained by the court of appeals, 123 N. Y., 120 ; 33 N. Y. State Rep., 160. Here, therefore, we have merely a decision announced without an order to make it obligatory or final; and while it was in that condition, the judge, convinced that he had committed an error, and while the matter was still before him, considered it his duty to recall his decision and make an order that would prevent a failure of justice.

Passing from the question of power to make the order granting the new trial, and if we are to consider the grounds upon which it was based we would find no difficulty in sustaining it. Certain evidence was excluded. It consisted of admissions made by one of the defendants in an action in tort against two alleged joint tort feasors. The defendants were co-partners. One of them visited the plaintiff shortly after the occurrence and made certain state-, ments claimed to be admissions. Assuming they could not, standing alone, bind his co-defendant, the evidence offered was to show that the interview was had at the procurement of that co-defendant and it was sought not to show facts that would be privileged, on the ground that an offer to compromise cannot be made evidence of liability under the well settled rule of law; but as the learned judge says, “the plaintiff was prevented by the exclusion of the evidence at the outset from showing anything in reference to the conversations, and the court was not in a position to determine under the distinctions made (as to privileged statements) whether the testimony was or was not admissible.”

Order affirmed, with costs.

Van Brunt, P. J., and Barrett, J'., concur.


author: Daniels, J.

text:
    The Prince Manufacturing Co., App’lt, v. Prince’s Metallic Paint Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Trade mark—Injunction against use of name.
    Robert Prince, in 1858, used the name "Prince’s Metallic Paint” as a trade mark upon a paint manufactured from a metallic iron ore discovered by him on his wife’s land in Pennsylvania. After her death the business was continued by him, and eventually the defendant corporation succeeded tó all his interests, including the trade mark and land. Subsequently plaintiff’s corporation was organized and by competition so injured defendant’s business that the original plant, including “buildings and improvements,” was abandoned and a part leased and a part bought in at foreclosure by plaintiffs. Afterwards defendant’s president gave plaintiff an order to the printer to deliver “all trade marks and wood cuts and electrotypes,” etc., which were delivered to plaintiff. Held, that the defendants clearly intended that the exclusive right to the trade mark should pass as incident to the property itself, and the plaintiff acquired the exclusive right to use the trade mark to designate the packages containing its product.
    3. Same—Pleading—Sale of trade mark under Pennsylvania statute.
    Plaintiff’s complaint contained an allegation that plaintiff had, by purchase, obtained all the right and title to the trade and custom of the paint works, and to the trade mark exclusively and to the name of Prince. Held, that this was sufficiently broad and direct to permit evidence to be admitted showing that the trade mark had been sold under execution, as authorized by Pennsylvania statutes, and had been acquired through subsequent assignments by plaintiff.
    8. Same.
    By another statute of Pennsylvania it was requisite that a preceding writ shall be returned wholly or partially unsatisfied, and that the sale of interests of this description "shall be by alias writ. Held, that this was substantially complied with by the writ under which the trade mark was sold. The omission literally to follow the language of the statute was, at most, no more than an irregularity.

      Appeal from a judgment recovered at the special term, dismissing the plaintiff’s complaint

      F. R. Coudert and John J. Davenport, for app’lt; Jos. H. Choate and John Frankenheimer, for resp’t.
   Daniels, J.

—The object of this action was the procurement of an injunction restraining the defendant from using the designation, name, or trade mark, of “ Prince’s Metallic Paint. It was first employed in, or about, the year 1858, as the name of a paint manufactured from a metallic iron ore, discovered by Robert Price in land owned by his wife, Antoinette Prince, and situated in Carbon county in the state of Pennsylvania. She died in 1859, leaving a will by which she nominated her husband and her son David Prince, the executors of her estate, and empowered them to sell her real estate. After her decease the business was continued with ore extracted from the same property, at the mill which had been erected for that object near to, but not upon, the same land, until the decease of Robert Prince in 1870.

In the meantime Albert R. Bass, a son-in-law of Robert and Antoinette Prince, had acquired an equal undivided half interest in the land, and also in the business. And on the 21st of January, 1871, David Prince,dor himself, and also as surviving executor, entered into a copartnership with Albert R. Bass and Mary M, his wife, to manufacture Prince’s Metallic Paint, from ore produced from the property owned by them in Carbon county, for the period of five years.

This partnership was formed by an agreement in writing, and it contained the recital, “said paint and trade-mark being owned and controlled by the parties of the first and second part.” The business was continued under this agreement, until the fall of 1871, when David Prince individually and as executor, sold out his interest in it to his partner Albert R. Bass. The latter with his associates soon afterwards took .measures for the formation of a corporation under the name of Prince’s Metallic Paint Company, but then not in fact consummated. And in 1875 other proceedings taken for the same purpose, were completed and the corporation brought into existence. This corporation succeeded to all the rights and interests of Albert R. Bass in the business, and the undivided one-half of the land previously obtained by him. And Abraham C. Prince, another son of Antoinette Prince, entered into the employment of the corporation, but soon afterwards left it, and with his brother, David Prince, formed the firm of Prince Bros., who carried on the business of manufacturing and selling metallic paint from similar ore obtained in the same county from land at or near Bowmansville. Their paint was sold as Prince Brothers’ Iron Ore Paint. And the effect of their competition in the business was to bring the Prince Metallic Paint Company into a practical condition of insolvency and deprive it of the ability to continue business or pay its debts.

In the course of the business under the name of Prince Metallic Paint Company the original mill used and maintained by Robert Prince had been abandoned and devoted to a different business, and other metallic paint property had been obtained, where a larger mill had been erected, at which the business of the company was principally if not wholly carried on. But in the purchase of this additional property, as well as in the purchase of the undivided one-half of the original land from which the ore had been first obtained, mortgages had been given. And their nonpayment led to their foreclosure and sales of the property mortgaged. The mortgage on the undivided half of the land from which the ore was first obtained was given by Albert R. Bass to David Prince, as executor, on the 6th of January, 1872. And by the deed on the foreclosure sale of that mortgage the same undivided interest was conveyed to Henry Lovejoy on the 27th of August, 1878. The mortgage upon the premises purchased by the Prince Metallic Paint Company, and upon which its mill had been erected, was given on the 11th day of January, 1878, and that was conveyed by the deed on the foreclosure sale to John Balliett and Charles Meendson. By these foreclosures and sales the Prince Metallic Paint Company appears to have been deprived of the property from which its business had been carried on.

During the parnership of Albert R. Bass and David Prince, and afterwards when the business was that of Bass alone, and also while it was under the name of the Prince Metallic Paint Company, the same label was used and attached to the packages containing the paint manufactured by each, as had been used by Robert Prince, the first manufacturer, designating it “ Prince’s Metallic Paint.” The right to make this use of the label was not questioned by any member of the Prince family. But the evidence of David Prince was that it was used after he left the co-partnership business by his permission, and not by any transfer of that right to Albert R Bass. Without determining whether this evidence should be followed as entirely correct, it will be sufficient to say that until the Prince Metallic Paint Company ceased to do business this use of the label received the sanction of the Prince family.

While the business and property was in the situation already described, and on the 27th of April, 1879, the plaintiff was created a corporation for the purpose of mining and manufacturing metallic paint. Five out of the eight incorporators were members of the Prince family, including Abraham C. and David, who were the firm of Prince Brothers. The corporation was formed under the laws of the state of Pennsylvania.

The premises conveyed by the sheriff on the foreclosure sale made of the property on which the new mill was erected and maintained, were conveyed by the purchasers Balliett and Meendson to Sadie and Lizzie Prince on the 20th of December, 1878, and by them to Henry Lovejoy on the 20th of March, 1879, and by him, together with the undivided one-half of the land on which the metalic paint ore was first found by Robert Prince, to the plaintiff on the 19th of May in the same year.

These deeds, as well as the mortgages, described the lands alone which were incumbered or conveyed, respectively, by them, except that the deed executed by David Prince, executor, to Albert K. Bass did also contain the clause, “ together with the buildings and improvements,” and the mortgage made by the Prince Metallic Paint Company to Eeidlinger added the word “ improvements." And under them the plaintiff asserted the right to use and attach to its manufacture the label or trade-mark describing that as Prince’s Metallic Paint.

It does not become necessary to decide whether under these conveyances alone that right was obtained by the plaintiff, for such also appears to have been the understanding which, as a matter of fact, at the time prevailed. Por A. R Bass & Co., on the 10th of January, 1879, gave an order on Mr. Phair, whom it is to be presumed had some charge of a department of this business, as he was the printer, to deliver to the plaintiff “ all trade-marks, and woodcuts and electrotypes of the trade-marks, Prince’s Metallic Paint, Prince’s Iron Paint, and Eagle Metallic Paint.” Mr. Bass is stated at that time to have been the president of the Prince Metallic Paint Company, whose property was obtained by the plaintiff. Abraham 0. Prince testified that he called upon him for the order, and after obtaining it, added, “ and after that we got the cuts, the cuts were delivered to me; I supposed that was all of them.” And while this witness was contradicted by affidavits he had made in other suits, on other subjects, this evidence appears to be entirely reliable, fortified as it is by the order and in its freedom from contradiction.

In the same manner the fact was brought into the case that a sign had been placed by Mr. Bass on the new mill erected about fourteen years before the trial, giving it the name, “ Prince’s Metallic Paint Works.” And that has been maintained on the top of the building since that time. In a word the land itself was useful and valuable by reason of the fact that it contained this mineral deposit, in profitable as well as accessible quantities. And the improvements made upon and in its vicinity were adapted alone to obtaining, grinding, and manufacturing these deposits into metallic paint. They were at all times in that manner used and employed, and the business done consisted in that use and the sale of the paint. And with that business through all its changes in proprietorship, this label, or trade mark, had been used to designate and accompany the manufacture. There was no divided use of it, neither was the right denied, but it was in fact conceded by the Prince Bros, that it should accompany the product as it did, which was .manufactured.

. These facts, with the sign upon the mill, and the order for wood cuts, trade-marks, and electrotypes, are consistent with no other theory than that it was the design and understanding of the parties, that the right to the label or trademark not only should, but in fact did, go with the property. The facts supporting the conclusion that the label, or trademark, was intended to and did pass as an incident to the property itself, are certainly as cogent as they were in Congress, etc., Spring Co. v. High Rock, etc., Co., 45 N. Y., 291. And there it was held that by purchasing the property supplying the water, with the right to proceed with the business, the plaintiff acquired the right to the trade-mark “to designate the article upon which this business was carried on.” Id., 302. And it is further sustained by Booth v. Jarrett, 52 How., 169; Kidd v. Johnson, 100 U. S., 617; Pepper v. Labrot, 8 Fed. Rep., 29, and Atlantic Milling Co. v. Robinson, 20 id., 217. And the principle has not been rendered inapplicable by the fact that Seton Heather in June, 1879, obtained the title to the other undivided half of the land from which the mineral was first obtained by a deed on another foreclosure sale, made under a mortgage given to him by Albert R. Bass. For Heather at no time appears to have made any claim whatever in conflict with the plaintiff’s right to use this label or trade-mark, and conferred no right on the defendant, which first came into existence as a corporation under the laws of Pennsylvania, on or about the 17th of April, 1888, to make that claim. And Heather, in fact, surrendered his right to all interference of that description by leasing his undivided half to the plaintiff for the period of twenty-one years, on the 20th of July, 1888, which was shortly after. the commencement of this action. From all that appears by the case, not very clearly, or artistically set forth, it may be added, the conclusion is well supported that the plaintiff did, soon after its incorporation, acquire the right to use and employ the label or trade-mark in controversy, to designate and accompany the packages containing its product.

It was also, further proved that under a statute of the state of Pennsylvania, in lieu of proceedings to sequestrate the property of corporations, the “ personal, mixed or real property, franchises and rights of such corporation ” may be levied upon and sold under a fieri facias commanding the sheriff, or other officer, to make the levy to satisfy the judgment upon which the writ is issued. And in October, 1879, a writ of fieri facias was issued against the Prince Metallic Paint Company upon a judgment recovered against it by Charles Meendsen, by virtue of which the sheriff levied upon, advertised and sold this label or trade-mark to the plaintiff in the execution. He, immediately after the sale, assigned and transferred his right, title and interest in the trademark to A. C. and Robert Prince, agents. How the plaintiff obtained the title of these assignees, if they really had any, has not been clearly shown; but in an assignment from Lizzie and Sadie Prince to Henry Lovejoy of the same trade-mark, it is recited that it was assigned to them by Meendson on the 23d of November, 1878, which is the same date as the assignment from Meendson to A. C. & Robert Prince. And Lovejoy, on the day on which he received his assignment, made another of this label or trade-mark to the plaintiff. In this manner, or by the co-operation of A. C. and Robert Prince, in the organization of the plaintiff, or both, the label or t^de-mark was, in form, certainly transferred to the plaintiff.

. It is not very important to critically consider through which process the transfer was made, nor what right may have been obtained by Lizzie and Sadie Prince under a like assignment made to them by David Prince, executor. For the objections which have been raised to the title of the plaintiff do not depend upon any defect in the forms resorted to for its transmission, but they are made to the levy and sale under the writ of fieri facias and the condition of the complaint. That is objected to as not permitting evidence of these proceedings. But that objection was not made upon the trial, where it might have been removed by an amendment if it had been well founded. Besides that the complaint contains the allegation that the plaintiff had, by purchase, obtained all the right and title to the trade and custom of the paint works and to the use of the trade mark exclusively, and to the name of Prince, which was sufficiently broad .and ■direct to permit any evidence to be received tending to prove the fact alleged.

It is very probably true, as it was stated by the witness Selser, who was counsel for, and a director of the Prince Metallic Paint Company, that under the general law of Pennsylvania a label or trade mark could not be sold under an execution. But when he gave testimony indicating that such a sale could not be made under the statute of Pennsylvania, or disconnected with other corporate property, he was very clearly in error. For the statute has, by its own language, authorized a levy and sale of any of the property, franchises and rights of the corporation. And when this levy and sale took place this label, or trade mark, was all that was left of the property of the Prince Metallic Paint Company. That was property, and as the execution had been substituted for the ordinary proceedings of sequestration, and was designed to devote all the corporate property to the satisfaction of the creditor's judgment, it must have been intended that this could be sold under its authority. And as a sale was authorized and could only be made to some person as purchaser, and that person was neither defined nor in any manner subjected to any qualification or restriction, it is. equally evident that any person was authorized to buy, although the label or trade mark was still to be restricted to the manufacture of Prince’s metallic paint. It was a species of property which the statute made vendible and purchasable under the execution, and afterwards transferable by the purchaser, as this was indirectly to the plaintiff. The fallacy of this objection is also conspicuously exhibited by the fact that the defendant’s title to the label, or trade mark, depends wholly upon another sale made of it under other judgments, .in February, 1888.

By another statute of the state of Pennsylvania, it was requisite that a preceding writ should have- been returned wholly, or partially unsatisfied, and that the sale of interests of this description should be by an alias writ But that was substantially complied with by the writ issued on the 19th of December, 1877. It was upon the same judgment, and may not be presumed to have been returned in part at least unsatsified. For without that return the second writ would have been irregular, and that is not to be assumed without some evidence warranting the presumption, arid the case has supplied no such evidence. Beyond that the writ under which the levy and sale took place, was an alias writ. That is shown by its command to the sheriff, reciting that it is made “ again.” It may have been defective in point of brevity, but still its intent was evident, and it was obeyed by the officer. In one respect the writ was defective, that is not directing the sheriff to satisfy the judgment by a levy upon and sale of the franchises and rights of the corporation. But it still did as a matter of fact include this label, or trade mark. It was property, and in the enlarged significance of the term, a chattel, and within the direction of the execution. The omission literally to follow the language of the statute, was therefore, at most, no more than an irregularity. The power to sell was provided, and it was to be executed by a writ of fieri facias. And that was done in this instance. There was no such departure in the recital made, or the command given, as rendered the proceeding void, though it was voidable on motion, and might have been vacated, as that was done for want of a preceding execution, in Fox v. Hempfield R. R., 8 Phila. Rep., 639.

An irregularity in practice is stated to consist in the want of adherence to some prescribed rule, or mode of proceeding, either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time, or an improper manner. 1 Burrill Prac., 2d ed., 470, following 1 Tidd’s Prac., 512, 516. But as already stated, that does not render the proceeding it affects void, but only voidable. And unless it be avoided by motion diligently made, the objection will be waived. 1 Burrill Prac., 472-4. And this practice is supported by Lusk’s Appeal, 108 Penn., 152, although that case differs from the present in the fact that the irregular sale had been confirmed. But that circumstances can be of no paramount importance after the long lapse of time intervening in this case, and no application having been- made, within the time allotted for that purpose, for an order vacating this sale. For nearly nine years the plaintiff used this label or trade-mark, without any question, protest, or denial of its right, on the part of the Prince Metallic Paint Company which continued its organization until the defendant as its successor came into existence.

Its officers were undoubtedly aware of the fact that the plaintiff claimed, and used as its own this label, or trade-mark. Mr. Bass, its president, understood where he gave the order for the trademarks, wood cuts and electrotypes, that such was the object in obtaining it. And when the sale of the trade-mark and franchises of the Prince Metallic Company was made the second time under execution early in 1888, it was altogether too late to gainsay the title of the plaintiff, even if that were irregularly obtained under the execution sale which took place in November, 1879. For the irregularity has been rectified by time.

The attempted transfer by assignment from the Prince Metallic Paint Company to Albert R. Bass, and by himself and wife, and that company to the plaintiff, do not require special examination. They are certainly at least of doubtful import. The transfer by the company was not authorized by the board of directors, and it was in violation of its by-laws. Both objections to these instruments, and still another later document in their confirmation, seem well founded, as they were held to be at the trial. People's Bk. v. St. Anthony's Church, 39 Hun, 498; affirmed, 109 N. Y., 512 ; 16 N. Y. State Rep., 856 ; Munson v. Syracuse etc., R. R. Co., 103 N. Y., 58, 73, 74; 3 N. Y. State Rep., 31.

And the case of Edgerly v. Emerson, 3 Foster N. H., 555, is entirely consistent with these authorities.

The fact that the label, or trade-mark, has been devoted by the plaintiff to metallic paint manufactured at the new mill from ore obtained from the land where it is located, and from leased lands in the same vicinity, and to paint manufactured at another mill from leased lands' near it, and without the addition of ore obtained from the forty acres owned by Antoinette Prince in her lifetime, was not considered a ground for dismissing the complaint; neither could it be, for the witnesses agreed in the main that the paint produced from these ores was as good in quality and color as that made wholly or partly from the ore obtained from the tract where it was first found. Itis true that this evidence did conflict with statements contained in affidavits made m other litigations by Abraham C. Prince. And if the fact stood alone on his testimony these contradictions would lead to its overthrow. But it does not. Adolph Reich, who was sworn for the defendant, testified: “ I think there is no difference at all between the ore from the Prince tract and the others.” Klein, also for the defendant, expressed himself very much in the same way, adding: “ I say some is darker. It all makes the same paint; I mean that the ore taken from all the mines along that vein, ten or twelve miles, makes the same paint, if it is kept clean, just as good as mine.” The plaintiff’s witness, Stroup, pronounced the same judgment. And so, in effect, was the final conclusion of Abraham 0. Prince.

In this state of the facts, it is quite evident that there was no deception or misrepresentation in labeling the paint manufactured by the plaintiff, Prince’s Metallic Paint. The designation was consistent and truthful. It was applied to the same article, manufactured from the same material, and by the same process, as that also had been done by Mr. Bass himself and the first Prince Metallic Paint Company. The action, therefore, is not affected by anything said or decided in N. Y. Consolidated Card Co. v. Union, etc., Co., 39 Hun, 611; or Koehler v. Sanders, 122 N. Y., 65; 33 N.Y. State Rep., 267; or either of the other authorities cited by the defendant’s counsel.

There seems to be no authority for the position that the plaintiff should in its use have stated itself to have been an assignee of the label or trade-mark, as it was both appropriately and truthfully employed in the business which it carried on.

The same use had been made of it ever since the decease of Robert Prince. And no sufficient reason now appears for denying it to the plaintiff.

The plaintiff has maintained an office at 71 Maiden lane, for the transaction of its Hew York business, in which city metallic paint has been mostly sold, and ■ the defendant has now located itself, under the name of Prince’s Metallic Paint Company, at 77, on the same street. The object is entirely apparent. It is to divert to itself the plaintiff’s trade. And that is a fraud which the law does not countenance, as long as it violates the plaintiff's right. There is such a violation, for the defendant applies to its manufacture of metallic paint the same label or trademark that the plaintiff not only uses, but acquired the right to use it as it does many years before the defendant commenced to exist. The complaint should not have been dismissed, but judgment should have been directed in favor of the plaintiff restraining the use of this label or trade-mark by the defendant.

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

Yan Brunt, P. J., and Lawrence, J., concur.


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    Herbert Sanguinnetti, Resp’t, v. Frances Roche, App’lt.
    (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Judgment—Foreign—Action on—Married woman—Limitation in judgment.
    In an action upon a judgment recovered in England against a married woman, which judgment contained a provision limiting its execution to defendant’s separate estate, it was error to enter an absolute personal judgment, without the limitation of the English judgment.
    Appeal from a judgment in favor of the plaintiff, rendered upon the decision of a justice at circuit, a jury trial having been waived.

      J. Henry Work, for resp’t; Arthur Furber and A. L. Pincoffs, for app’lt
   Barrett, J.

—This action is upon a judgment recovered by the plaintiff in the high court of justice in England against the defendant for the sum of £508, 4s and Id, damages and costs. It is conceded that at the time of the rendition of this judgment the defendant was a married woman, domiciled in England, and subject to its laws. The judgment contained a provision limiting its execution to the separate estate which the defendant “might have, free from restraint of alienation or anticipation.” This limitation was in accordance with § 1, subd. 2 of the English Married Womne’s act of 1882, which provides that “a married woman shall be capable of entering into and rendering herself liable in respect of, and to the extent of, her separate property on any contract, * * * and any damages or costs recovered against her in any action .or proceeding, shall b& payable out of her separate property, and not otherwise.”

We might content ourselves with a single criticism upon the ruling of the learned judge at circuit. He has granted the plaintiff a general judgment in personam without adding thereto the limitation imposed by the English judgment. Thus he has given the plaintiff a broader judgment than that sued upon. This was clearly unauthorized. A party may ask to have a foreign judgment enforced, but the enforcement must be in accordance with its precise terms. He may be entitled to have it enforced as written, but he can be entitled to nothing more. If it be replied that there is no such judgment in personam, known to our laws as the judgment here sought to be enforced, that surely is no reason why the plaintiff should be granted another and a different judgment merely because the latter is known to our laws. He must stand or fall upon the exact terms of his foreign judgment.

We have, however, examined the English cases which were proved upon the trial, Palliser v. Gurney, L. R., 19 Q. B. D., 519; Myles v. Burton, L. R., 4 Ir., 258; Deakin v. Lakin, L. R., 30, Ch. D., 169; Beckett v. Tasker, L. R., 19, Q. B. D., 7, in connection with the Married Women’s act of 1882, and we are clearly of the opinion that the English judgment, though in form in personam, was substantially in rem. The form was in accordance with the English method of procedure to reach and bind the separate estate of a married woman. Instead of an equity judgment, in form specifying the separate estate and directing its application to the payment of the claim, the practice seems to be to grant a money judgment, with a proviso limiting its execution in the manner already pointed out. In Palliser v. Gurney, supra, it was held that to entitle the plaintiff to judgment against a married woman under this act of 1882, it was necessary to prove the existence of some separate property at the time of entering into the contract. In Myles v. Burton, 14 L. R., Ir., 258, it was said that the only effect of the statute was to give at law the remedies which previously existed in equity, and that while this statute rendered any separate estate of a married woman acquired during coverture liable to her engagements, it did not place her in the position of a femme sole purely and simply.

In the case of In re Shakespear (Deakin v. Lakin), 30 Ch. D., 169, Pearson, J., said: “ If she has such property (that is a separate estate), her contract will bind it." These cases all proceed upon the sole theory of binding her separate estate. It is true, that under subd. 4 of § 1 of the act under consideration, the contract of a married woman binds not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate property which she may thereafter acquire. Upon this it is argued that the judgment must also run against property acquired subsequently to its rendition, and that, consequently, the limitation in question is but in name. For, as the plaintiff reasons, if the separate estate past, present and future is recoverable under the judgment, what is that but a general judgment? But this reasoning is based upon the false premise that the judgment does run against property acquired subsequently to its rendition. The contrary of this proposition is distinctly implied in the case last cited. There Pearson, J., said: “If she, the married woman, afterwards commits a breach of the contract, and proceedings are taken against her for the breach of the contract, any separate property which she has acquired since the date of the contract and which she has al the time when judgment is recovered against her will be liable for the breach of the contract.” This latter case was expressly approved by all the judges in Palliser v. Gurney, supra. And, further, the judgment under consideration proceeds upon the same view of the law, for the limitation is as to the separate estate which the defendant “ might have ” plainly meaning “might then have.” We may add that the limitation is not as to the defendant’s separate estate generally, even at the time of the judgment, but as to the separate estate which “ she might have free from restraint of alienation or anticipation.”

Under the judgment appealed from the plaintiff is not limited to enforcement from the separate estate (free from restraint of alienation or anticipation) which the defendant had in England at the time of the recovery there of the judgment against her. He is given an absolute judgment for so much money to be collected here from her property generally, quite the same as though she were a feme sole. This, as already pointed out, was unauthorized. Whether the plaintiff could sustain an equitable action upon the judgment to reach the separate estate which the defendant had (free from restraint of alienation or anticipation) at the time such judgment was rendered, and which separate estate, in whole or in part, she may have brought within our jurisdiction, is a question with which we now have nothing to do.

It is. sufficient for the proper disposition of the present action to say that the judgment here demanded was not authorized by the English judgment, and that, consequently, the complaint should have been dismissed.

The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, J., concurs; Van Brunt, P. J., concurs in results.


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    Benigno S. Suarez, Resp’t, v. The Manhattan Railway Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Eminent domain—Injunction—Owner’s right to not affected by outstanding lease.
    Where an elevated railroad has been erected in a street without compensation to the abutting owners for their easements of light, air and acess, the right of such owners to an injunction restraining the operation of the road is not affected by the fact that their premises are subject to outstanding leases.
    Appeal from a judgment of the special term, granting the plaintiff an injunction nisi, and an award for past damages.

      Julien T. Davies and Samuel Blythe Rogers, for app’lts; John A. Weekes Jr., and Henry A. Foster, for resp’t.
   Barrett, J.

—What we have said in the case of Peter S. Suarez against the present defendants, covers all that we deem worthy of consideration in this case, with a single exception. The defendants here contend that the plaintiff is not entitled to an injunction until the expiration of the term of an outstanding lease of the premises in question. The reverse of this contention was held in Macy v. Metropolitan Elevated Railway Company, 36 N. Y. State Rep. 245. It is true that in that case there was an additional support for the ruling in a release and assignment of the easements from the tenant to the landlord. But the main proposition, apart from such release, was distinctly decided.- And we think that this decision was correct upon principle. The general doctrine of the Mortimer case (29 N.Y. State Rep.,263), thatan owner of lands may maintain trespass for an injury to the inheritance, notwithstanding the premises are in possession of a tenant under a lease, has been followed and re-affirmed in many subsequent cases. If such owner may maintain a single action for such trespass, there is no reason why he may not maintain successive actions for continuous trespasses, Conkling v. Manhattan Elevated Railway Company, 12 N. Y. Sup., 848; 36 N. Y. State Rep., 124. And as these continuous trespasses, and the multiplicity of suits resulting therefrom, are one of the grounds upon which, equity intervenes, there is, under the present circumstances, a substantial basis for the injunction.

The judgment appealed from should, therefore, be affirmed, . with costs.

Van Brunt, P. J., and Patterson, J., concur.


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    In the Matter of the Application of the Metropolitan Elevated Railway Company, App’lt, v. Henry Siefke, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Eminent domain—Condemnation proceedings—Stay pending appeal.
    In condemnation proceedings brought by an elevated railway company to acquire easements of which it is already in possession, a stay of proceedings by the commissioners to appraise the value of the" easements, will not be granted, as no wrong or injury can happen to the owner by reason of the commission proceeding in the discharge of its duty up to the point of fixing the value and reporting thereon.
    Appeal from order granting a stay in proceedings to condemn for the purposes of the plaintiffs certain real property belonging to the defendant

      Julien T. Davies and Brainard Tolles, for app’lt; William Allen, for resp’t
   Patterson, J.

—In the disposition which we think should be made of this appeal it is not necessary to pass upon the question as to the proper stage at which to appeal from orders made in applications of this character. All that has been done thus far is the making of an order appointing commissioners after a trial had before a referee to whom it was referred to ascertain the facts and report as required by law. Whether the order appointing the commissioners may be appealed from, or whether there is jurisdiction in the court to entertain an appeal until the award has been made by the commissioners thus appointed, is a matter which it is not necessary to pass upon now; and for the reason that we think unless some controlling circumstance is presented or some emergency exists which actually requires the interposition of the court to prevent the commissioners from proceeding to ascertain the value of the easements sought to be taken, there should be no stay granted.

It appears from the record in this case that the railroad company is in possession of certain easements appurtenant to the defendant’s land and that it has instituted the proper proceeding to acquire these easements by due course of law; and all that has been done thus far is to set the machinery of the courts in motion to enable the plaintiff in such due course of law to acquire that property, as to which, now, it stands in the position of a trespasser. No wrong or injury whatever can happen to the defendant by reason of the appointment of this commission, or its proceeding in the discharge of its duty up to the point of ascertaining and fixing the value and reporting thereon. If it becomes advisable after the commissioners shall have reported, for the defendant to appeal, there will be ample time to entertain a motion for a stay of proceedings. But as the parties are situated now, the stay of proceedings merely acts to prevent the plaintiff doing that which the law authorizes it to do, and thus by the compulsion of the •court it maintains the position of a trespasser as to those easements.

We think the order should be reversed, with costs

Van Brunt, P. J., and Barrett, J., concur.


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    Margaret A. Oliver, Resp’t, v. William L. Moore, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Appeal—Review—-Verdict supported bt evidence.
    When the verdict of a jury is fairly supported by the testimony, it will not be disturbed on appeal.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered after a trial at circuit, and also from an order denying a motion for a new trial.

      J. Noble Hayes, for resp’t; H. Kettell, for app’lt.
   Barrett, J.

—This is the third time that this case has come before the general term. Upon the original appeal the questions of law were fully examined and decided in the plaintiff’s favor (53 Hun, 473 ; 25 N. Y. State Rep., 37). The defendant’s exceptions were then overruled, but a new trial was ordered upon the plaintiff’s exceptions, for the reason that her claim had been erroneously reduced by the rulings of the justice who presided at the first trial. Upon the second trial the plaintiff again recovered, but the judgment rendered upon the verdict was set aside and a new trial ordered, 35 N. Y. State Rep., 131, for the reason that the general term found it impossible to reconcile the verdict with any theory which had any support in the evidence. Upon the third trial now before us for review, the jury were more careful with their figures, and we find no difficulty in reconciling their verdict with the facts as they appear in the record.

The real question was, what deduction should be made from the price stipulated in the contract by reason of the saving to the plaintiff which resulted frpm Miss Gross’s death. The appellant attacks the plaintiff’s testimony and insists that the jury cut down arbitrarily the amount for which the defendant was entitled to credit. We have examined the testimony and see no substantial justification for this contention. The jury accepted the plaintiff’s testimony, as they had a right to do, and we cannot follow the appellant in his strained criticism upon that lady’s position.

We think this controversy has gone quite far enough, and that the contest upon the defendant’s part has now degenerated into a petty speculation as to the cost of the food which a sick woman might have consumed daily. The reduction allowed by the jury was fair and reasonable and it was fully supported by the testimony. We have, in fact, no doubt that such reduction equalled any actual saving to the plaintff caused by Miss Gross’s death.

The judgment and order appealed from should, therefore, be affirmed, with costs.

Van Brunt, Oh. J., and Patterson, J., concur.


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    The People ex rel. Joseph A. Gardner, App’lt, v. John McClave et al., Commissioners, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Municipal corporations—Police—Certiorari.
    Where there was a conflict of evidence before the commissioners, the dismissal of a police officer will not be disturbed on certiora/ri.

    Certiorari to review the proceedings of the police commissioners dismissing the relator from the police force.

      L. J. Grant, for app’lt; J. J. Delany, for resp’ts.
   Van Brunt, P. J.

—When the preceding writ was before the 1 court upon a previous occasion, the petition upon which the writ was issued, containing an allegation that upon the trial the commissioners refused to allow certain witnesses to testify on behalf of the petitioner, which were offered by him, who would have given evidence that would have entirely cleared the petitioner of the charge, and there being no notice of this allegation contained in the return, the court ordered that the respondents make a further return within ten days as to such allegations respecting the production of witnesses upon the trial, and the refusal of the respondents to take such evidence.

In pursuance of this order a further return has been made, from which it appears that the counsel for the relator, upon the trial, offered to produce evidence that the complainants were disorderly and quarrelsome people ; and this is all the evidence that the commissioners refused to receive.

This supplemental return disposes entirely of the point raised in the petition, as upon the truth or falsity of the charge preferred against the relator, the question as to whether the witnesses who were examined were quarrelsome people or not, does not seem to have much pertinency. The relator was charged with conduct unbecoming an officer, in that he did, on the 25th of July, 1889, accost the wife of one Charles A. Quinn, shook his finger in her face, threatened to have her arrested, and said to her that she was a kept woman and living with a divorced man;

1 and that on the same clay he went to the place where Quinn was at work, and called him a son of a bitch, and attempted to strike him with his umbrella. The evidence of Quinn and his wife and the witness Emma Johnson, fully substantiated the charge against the relator.

It is true that at this time the relator was not on duty, but even if not on duty, the proper discipline of the police force would not permit him to act as a common ruffian.

The relator and his wife gave testimony which was contradictory of that offered by the complainants, and the evidence of the witness Susannah Gibson, who was sworn on behalf of the relator, tended to show that the wife of the relator and the wife of the complainant were not upon the most amiable of terms. But even this condition of affairs did not justify an officer in being guilty of the conduct which was sworn to as against him, and which the commissioners evidently believed to be true.

It further appears from the record of the relator that his conduct has frequently been such as to require the administration of discipline by the commissioners.

There was a conflict in the evidence, upon which it was the sole province of the commissioners to decide, and with which we cannot interfere, and we have no desire to do so upon this record if we had the power.

The objection that is now taken, that the defendant was sworn and examined as a witness, and that thereby some constitutional privilege of his was infringed, if under any circumstances there is any foundation for the same, does not arise in this case, because it does not appear that any such objection was made.

Upon the whole case as presented, it seems to us that no error was committed by the commissioners, and the writ should be dismissed, with costs.

Barrett and Patterson, JJ., concur.


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    In the Matter of the Probate of the Alleged Last Will and Testament of William T. Blair, Dec’d.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Administrator—Temporary—Power of surrogate to appoint— Transfer to common pleas.
    When the surrogate of New- York county transferred the proceeding for the probate of a will to court of common pleas, under § 2547 of the Code Civil Procedure, he was not deprived of the power to appoint a temporary administrator while the proceeding was pending in the common pleas in order to preserve the estate, as the power of the common pleas in such case is restricted to the trial of the issues of fact and to appellate proceedings.
    Appeal from an order of the surrogate denying an application of the infant contestant, Sarah Catherine Blake, by her special guardian, Mr. Edward T. Wood, for the appointment of a temporary administrator of the estate of William T. Blair, deceased.

      Edward T. Wood (Robert Sewell and J. Aspinwall Hodge, Jr., of counsel), for app’lt; Benjamin Wright and John A. Taylor, for resp’ts.
   Barrett, J.

—The facts upon which the question of law presented for our consideration depends are correctly and tersely stated by the respondent as follows: '

“ The probate of the paper propounded in this proceeding as the last will of William T. Blair, deceased, was opposed by the infant contestant herein, and in December, 1890, upon his own motion, the surrogate transferred the proceeding to the court of common pleas. Upon the trial of the issues in that court a verdict was rendered adverse to the validity of the will. Pending appeal, an application to the surrogate’s court was made by the contestant for the appointment of a temporary administrator. The surrogate decided that a proper case was made out for such appointment, but concurred in the respondent’s contention that in the present situation the surrogate’s court had no power to take any step in the proceeding whatever, and accordingly denied contestant’s motion. From this order the contestant appeals ; the only question now in dispute is whether the surrogate’s court has power to take any steps in the litigation until the proceedings in the common pleas have been finally certified back to the surrogate’s court.”

We think the surrogate was not by the transfer in question divested of any of the powers conferred upon him by statute except such powers as by force of the transfer were expressly conferred upon the court of common pleas. He could doubtless no longer try the issues of fact arising in the special proceeeding for the probate of the will. That power by force of his order of transfer at once became vested in the court of common pleas. But that power alone was transferred, and that power alone became so vested. The transfer of such other powers as are vested by law in the surrogate’s court, and are not necessary to the due execution of the power transferred, cannot be implied. Thus the authority of the court of common pleas, by force of the order of transfer, is limited to the trial of the issues of fact and to certain appellate proceedings which may follow. The only implied' power to that which is necessary to secure a proper and adequate trial of the issues of fact and a proper and adequate hearing thereafter of the appellate proceedings provided for. The authority of the court of common pleas under the order of transfer ends when it finally certifies to the surrogate’s court the verdict upon the issues of fact. If the verdict sustains the will, the latter court may then admit it to probate. The court of common pleas is nowhere authorized by § 2547 to perform that function There are provisions of the Code, § 2486, authorizing the court of common pleas in certain cases to exercise all the powers and jurisdiction of the surrogate’s court; as where the surrogate is precluded or disqualified from acting, or where the office is vacant, or the surrogate is disabled by sickness, absence or lunacy. But this jurisdiction must not be confounded with the special and limited jurisdiction conferred upon the court of common pleas by the transfer in question.

Under this transfer, standing alone, the court of common pleas acquires none of the general statutory jurisdiction of a surrogate’s court any more than would the superior court if § 2547 of the Code had specified that tribunal as the transferee. The application for the appointment of a temporary administrator is no part of the proceeding for the probate of the will. It is an independent proceeding for the preservation of the estate (pending litigation) authorized by § 2668 of the Code of Civil Procedure and resting in the discretion of the surrogate. That discretion may be exercised where delay necessarily occurs in the granting of letters testamentary or letters of administration, not only in consequence of a contest with regard to the probate of a will, but for any cause whatever. This would seem to be decisive of the present question.

The respondent, however, claims that because notice of the application for temporary administration must be given “to each party to the special proceeding who has appeared” (§ 2669) it follows that such application is a mere incident to the main proceeding. This is not satisfactory reasoning. The question of notice cannot stamp the proceeding. We might as well say that a proceeding to revoke probate is a mere incident to the original proceeding for probate if all the original parties are required to be notified of the motion for revocation.

They are interested in the matter and that is all that can be said about it. Nor is the question at all concluded by the expression in § 2547, upon which the respondent relies that “ thereafter,” that is, after the verdict has been finally certified by the court of common pleas to the surrogate’s court, “all proceedings relating to the will and to the estate of the decedent shall be had in the surrogate’s court.” The expression emphasized was plainly inserted for abundant caution. It simply affirms the natural status effected by the return of the verdict to the surrogate’s court. And it places that court in precisely the same position as though the surrogate himself had decided the contest for probate. This and nothing more. All subsequent proceedings to effectuate the verdict are thus to be had in the court specially constituted by law for that purpose and for all other probate purposes ; and that court simply continues to exercise its general statutory jurisdiction in the premises. It is quite clear that the form of the expression quoted has no bearing on the question of power, pending the trial of the issues of fact, to preserve the estate by applying the provisions of law with regard to temporary administration. We think, therefore, that the learned surrogate had full power to exercise the discretion conferred upon him by § 2668, with regard to temporary administration, and that upon the facts presented he should, as is conceded, have exercised that discretion in favor of the application.

It follows that the order appealed from should be reversed, with costs, and the application remitted to the surrogate for the due exercise of his discretion as to the appointment of one or more competent persons to whom letters of temporary administration should be granted.

Van Brunt, P. J., and Patterson, J., concur.


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    Bernard Ginsburg, App’lt, v. Lena Kuntz et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Bond—Appeal—Exception to sureties—Justification—Death of appellant.
    When exceptions are made to the sureties in an undertaking on appeal, and notice of justification is given, but, before the day fixed for the justification, the appellant dies, and the sureties fail to justify, they are released under § 1335 of the Code of Civil Procedure, and subsequent notice that the exceptions to their sufficiency are withdrawn is without effect.
    Appeal from a judgment dismissing the complaint, with costs. The cause was tried before a judge at circuit without a jury.

      L. A. Gould, for app’lt; Ullo & Ruebsamen (James W. McEhinney, of counsel), for resp’ts.
   Barrett, J.

—This action is upon an undertaking on appeal to the general term of the city court. The plaintiff excepted to the sureties. Notice of justification was then given, and such justification was adjourned from time to time until finally it was set down for the 12th of May, 1890. Upon the 10th of May, 1890, the defendant in the action died, and, consequently, the sureties failed to justify on the 12th. Nothing further was done until the 23rd of June, 1890, when the executrix of the deceased defendant was substituted as appellant, and this was followed in October of the same year by the dismissal of the appeal for non-service of papers.

We have said that nothing further was done after the defendant’s death until the substitution of the executrix as appellant. An attempt, however, was made on the 6th of June to withdraw the exception to the sureties by the service of a notice of such withdrawal. This notice was signed by the plaintiff’s attorney in the suit which was as yet unrevived, addressed to the attorneys who had acted for the defendant in that suit in his lifetime. These attorneys at once replied to the notice, stating that the sureties had refused and failed to justify. This notice of June 6th was a complete nullity. The waiver of justification or the withdrawal of the exception was a step in the action, and it is clear that no step could be taken in the action, after the death of the defendant, until the appeal had been regularly continued, and the legal represetative of the defendant brought in. But even if the notice had been served over again after the substitution of the executrix, it would not have availed the plaintiff, for the reason that the failure to justify on the 12th of May, released the sureties upon the undertaking. Manning v. Gould, 90 N. Y., 476.

This ' case is entirely in point. There one of the sureties appeared upon the day appointed for the justification, and then learning of the defendant’s death refused to sign his examination, while the other surety, for the same reason, refused to appear. Here the sureties did not appear upon the 12th of May, and did not then express their refusal to proceed. But this distinction is immaterial. The material fact is, that they did not, and could not, justify. The defendant was dead, and the justification being a step in the action, could not proceed until the revival of the appeal in due course. There is no provision of the Code to meet such a case, and the sureties could not have justified under any new or authorized notice after the substitution of the executrix as appellant. The stay of proceedings fell with the death of the defendant, and the failure of the sureties to justify. And, further, the subsequent refusal of the sureties to justify was as effective, if such an expression of refusal were needed, as the refusal of the sureties in Manning v. Gould. For whether such refusal was expressed on the day appointed for the justification, or on a subsequent day, is certainly unimportant, as the defendant was dead on the earlier day. The plaintiff was at liberty to proceed upon his judgment immediately after the refusal to justify on the 12th of May. Nothing stopped him thereafter except the provisions of the law forbidding the issuance of an execution against a decedent’s estate without leave of the court. If a stay had been sought after the substitution of the executrix as appellant, such executrix would have been compelled to make a special application to the court, when a stay could have been granted to her upon proper terms. A new undertaking might then have been required, but certainly the old undertaking could not have been revived and made to serve as such security. We have no doubt, therefore, that by the force of § 1335 of the Code of Civil Procedure, as interpreted in the case cited, the sureties, having been excepted to and having failed to justify, were discharged of all liability under the undertaking.

The judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., and Patterson, J., concur.