author: Davis, P. J.: . Beady, J.: Daniels, J.

text:
    JAMES McCREERY and Others, Plaintiffs, v. ROBERT GORDON, DONALD GORDON and ABRAHAM E. WOLF, as Assignee of DONALD GORDON, Defendants.

      Practice — defeat of parties, when waived, unless the objection is taken by answer — evidence — what admissible to show the good faith of a vendee when the sale is attacked as fraudulent — what facts do not show a sale to be fraudulent.

    On October 2,1883, Robert Gordon, a merchant carrying on business in Oswego, sold and transferred, by a bill of sale, his stock of goods and other property to Donald Gordon, a merchant carrying on business at Rochester, in consideration of $1,000 in cash and of the notes of the vendee for $9,000, payable in three, six, nine and twelve months thereafter. On the next day Robert made a general assignment of all his property, exclusive of that embraced in the sale, to one Oliphant. After the execution of the bill of' sale, Donald Gordon carried on the business in the stores formerly occupied by Robert until. December 20,1883, on which day he made a general assignment for the benefit of his creditors to one Wolf.
    Upon the trial of this action, brought by a judgment creditor of Robert, to have the sale to Donald declared fraudulent, and to compel Wolf, his' assignee, to account for the property received, the defendants moved to dismiss • the complaint, upon the ground that Oliphant, the assignee of Robert, had not been made a party, or to suspend the proceedings until he should he brought into the action.

      Held, that the motion was properly denied for the reason:

      Mrst. That, as the defect appeared upon the face of the complaint, the objection should have been taken by demurrer or answer.

      Second. That the complaint alleged, and the answer admitted, that the property sold to Donald was not included in the assignment.
    After the execution of the bill of sale, Robert and all his employees were employed by Donald to carry on the business as before, and no sign was put up over the store indicating the business to he that of Donald. The vendor testified that the sale was made in good faith, and without any intent to hinder, delay, cheat or defraud his creditors. Upon the trial Donald offered to show that in the assignment which he made to Wolf, the notes given to Robert were-preferred, and their payment secured.

      Seld, that the court erred in rejecting the evidence.
    That the facts did not satisfy the court that a judgment should be rendered in, favor of the plaintiff, and that a new trial should be ordered. (Daniels, J., dissenting.)
    Motion by the defendants for a new trial, made at General Term under section 1001 of the Code of Civil Procedure.

      BhimensUel & Mirsch, for the plaintiffs.

      W. 2\r. Cogswell, for the defendants.
   Davis, P. J.: .

This action was brought by the plaintiffs to have a sale of personal property, made by the defendant Robert Gordon to the defendant Donald Gordon, adjudged fraudulent and void as against the creditors of Robert Gordon, and to require the defendant Wolf, as assignee of Donald Gordon, to account for the value of the property thus sold, which had come into his hands as such assignee, and to pay the amount of the plaintiffs’ judgment out of the proceeds of such property and the balance to a receiver to be appointed by the court. TJpon the trial, an interlocutory judgment in favor of the plaintiffs was ordered for an accounting on the part of the defendant Wolf, as suck assignee, and the payment by him of the proceeds of the property to the plaintiffs of their costs and judgment, and the residue, if any, to the receiver. The complaint alleges, in substance, that the defendant Robert Gordon was a merchant doing business in Oswego; that the defendant Donald Gordon was also a merchant doing business in the city of Rochester; that on the 2d of October, 1883, the defendant Robert Gordon sold and transferred by bill of sale, to Donald Gordon, his stock of goods and other property in consideration of the sum of $10,000 — $1,000 in cash and the balance in the purchaser’s notes, payable in three, six and nine and twelve months thereafter; that on the next day the defendant Robert Gordon made a general assignment of all his property to one Richard J. Oliphant, of the city of Oswego, exclusive of the property embraced in the bill of sale to Donald Gordon; that Donald Gordon, after the bill of sale to him, commenced to carry on the business in the stores formerly occupied by Robert Gordon, and continued to carry on the same until December 20, 1883, on which day Donald Gordon made a general assignment of all his property to the defendant Wolf for the benefit of his creditors. Richard J. Oliphant, the assignee of Robert Gordon, is not made a party to the action. A motion was made at the trial for a dismissal of the complaint on the ground that Oliphant had not been made a party, or that the proceedings in the action be suspended until said Oliphant should be brought in as a party. The motion was denied and an exception duly taken.

It is insisted by the appellants’ counsel .that the denial of this motion was a fatal error, upon the ground that Oliphant, the assignee of Robert Gordon, is a necessary party to the action, because by the assignment he took title to or some interest in the property which had been sold by Robert Gordon to Donald Gordon. There are several answers to this argument:

First. That the facts appear upon the face of the complaint that are now claimed to show that Oliphant is a necessary party to the action, and no demurrer was interposed to the complaint on that ground, or objection taken in the answer for defect of parties. The omission to demur or to allege the defect in the pleadings is a waiver under the provisions of the Code, and it was too late for the defendants to raise the point at the trial.

Second. The complaint alleges, and the answer admits, that the property sold by Robert Gordon to Donald, prior to the assignment to Oliphant, was not included in the assignment.

This admission on the part of the defendants precludes them from objecting that Oliphant was not made a party, inasmuch as they have, after that admission, no right to insist that the title to the property sought to be reached by the plaintiffs was transferred to or vested in Oliphant.

W e think the court did right in denying the motion to dismiss or to suspend the proceedings until the assignee Oliphant should be brought in as a party.

The plaintiffs were seeking to attack the validity of the sale by Robert Gordon to Donald Gordon and to reach the property sold or its proceeds in the hands of Wolf, the assignee of Donald Gordon. To do this they were bound to establish, by satisfactory evidence, that that sale was a fraudulent one as against the creditors of Robert Gordon. It was contended, on the part of the defendants, that the sale was made in good faith and for a full consideration and without any intent to defraud. As one fact tending to prove that that sale was fraudulent, it was shown by plaintiffs that $1,000 only was paid upon the purchase and the rest was paid in the unsecured notes of Donald Gordon at three, six, nine and twelve months, and that Donald Gordon, within a short time after the sale, had failed and made an assignment of' his property to Wolí. And on the part of the defendants, as tending to prove that the notes, though unsecured, were given in good faith by Donald Gordon, it was offered to show that in the assignment which he made to Wolf those notes were preferred, so that their payment was in fact secured. This offer was excluded, and an exception taken. We think this was error. The defendants had the right to disarm the fact that Robert took unsecured notes from Donald Gordon, who soon thereafter became insolvent, of whatever force it had as tending to show fraud, by showing that the notes were made good and were secured by the preference of the assignment of Donald Gordon.

The plaintiffs produced no other evidence on the question of fraud than that of Robert Gordon. We think a careful examination of his testimony fails to show that the fraud, as found by the court, was sufficiently established. He swore that the sale was made in good faith, without any intent to defraud; that the price paid was the fair and full value of the goods sold, although they were valued at their cost-price at a much higher sum. By producing him as them witness the plaintiffs gave him credit as a witness ; and when the whole of his testimony, on cross and direct-examination, in relation to the sale, is taken into consideration, we think it extremely doubtful whether the findings based upon that testimony were sufficient to establish the alleged frauds. The fact that the purchaser of the goods failed in business three months after his purchase, was not of itself sufficient to uphold the finding of fraud. But if it were, that fact would have been greatly qualified by proof that he preferred the indebtedness upon such purchase in his assignment. The mere fact that at the time of the sale Robert Gordon was insolvent would not of itself vitiate the sale, nor would his subsequent employment, as manager of the stores, where the business was carried on by the purchaser, as it stands explained in his testimony, justify the finding of fraud. There was shown to be a change of possession and a continuation of the business by Donald, for the period of several months after the sale, and until his failure. We are not satisfied that upon the evidence the plaintiffs should have had judgment.

The motion for a new trial should be granted, with costs to abide event.

Brady, J., concurred.

Beady, J.:

.It should be noted that the sale of which complaint is made was suggested by a gentleman connected with the firm of H. B. Clafiin & Co., to whom the vendor was advised to apply for advice, and that he expressly denies any intention to defraud.

Daniels, J.

(dissenting):

The essential ground of the motion depends upon the question whether the court was justified in holding the sale of a stock of goods, made on the 2d day of October, 1883, by Robert Gordon to Donald Gordon, to have been fraudulent and void as to creditors. The vendor was engaged in business as a merchant in Oswego and in the village of Mexico, in the county of Oswego, and the vendee was engaged in similar business in the city of Rochester. The vendor was at the time insolvent and unable to pay his debts, and the fact of his embarrassment was communicated to the agent of the vendee, and it resulted in the suggestion of the making of the sale of the goods which the plaintiffs, as judgment-creditors, assail as fraudulent. This sale included all the debts, fixtures, stock in trade and articles of property owned by the insolvent vendor. And it was made in consideration of the sum of $1,000 paid at the time and the remainder of the purchase-price of $10,000 was evidenced by four promissory notes of the vendee, the first for $1,500, the others for $2,500 each, payable in three, six, nine and twelve months thereafter.

At the time when this sale took place the vendor well understood his inability to proceed with his business. That seems to have been financially out of his power, and information of the fact was communicated to Mr. Orr, who represented the vendee in the transaction. This was an extraordinary disposition of the property of the vendor. He knew, as the agent of the vendee must also have known, that the notes taken could not be held by the vendor, or collected by him. His obligations to his creditors would not permit that to be done. And if the transaction could be allowed to stand it would have the effect, even if the notes were taken by them, of necessarily hindering and delaying them in the collection of their debts for the time the notes had to run. And that such a delay was contemplated by the vendor is to be further inferred from the fact that on the following day he made an assignment of all his property for the benefit of his creditors. What the assignee had to receive under the assignment was this sum of $1,000 in money and these notes, necessarily for a corresponding period delaying the creditors in the collection of their debts.

These facts certainly render the transaction a suspicious one, and that suspicion was increased to a conviction by the further evidence given in the case, for by that evidence it was shown that the business continued to be carried on from the third of October until the twenty-first of December, under Donald Gordon, the vendee. And at the time when the bill of sale was made and delivered, the vendor expected to be employed in the store, although no actual agreement or arrangement for that purpose was made. And that expectation was afterwards carried into effect, for be stated in bis evidence: “ I was in fact employed .as floor manager after that; I don’t think there was anything particular said about that; the same employees were employed; I went right on; there was no change in any of the employees; the same people were continued.” The vendor had been examined in supplementary proceeding in which he repeated this expectation on his part, and he was asked what led him to expect it. His answer was “ friendship on the part of Donald Gordon; I had known him some time.” And after the sale of these goods no sign was put up over the store indicating the business to be that of Donald Gordon. These facts show that no actual or continued change of possession of the property took place, but the vendor, together with the persons previously employed in the store and others afterwards engaged, continued in the possession and sale of the property, carrying on the business substantially as that had previously been done to the time when Donald Gordon himself made a general assignment for the benefit of his creditors, which he did on the 20th of December, 1883. This continued possession and management of the property by the vendor has been declared by the statute to be conclusive evidence of fraud in favor •of the creditors of the vendor, unless it shall be made to appear on the part of the persons claiming under the sale that it was made in good faith and without any intent to defraud such creditors. (3 R. S. [6th ed.], 143, § 5.) "What the statute has required to avoid this presumption is an actual and continued change of possession of the property sold. No such change of possession was made, and the omission to make it, leaving the vendor in charge of the property and the business, created this statutory presumption of fraud. (Tilson v. Terwilliger, 56 N. Y., 273.)

And it was not overcome by the statement of the vendor himself, as a witness, that he did not intend to hinder, delay, cheat or defraud his creditors. For the facts, nevertheless, remained out of which such an unlawful intent could be very well inferred by the court. And as the vendee was a party to these facts, he was in like manner involved in the same inference that a fraudulent intent, or an intent at least to hinder and delay the creditors of the vendor, •existed upon his part. And in the conclusions drawn by the court from tbe evidence, tbe learned justice presiding at tbe trial was well warranted by these circumstances. Tbe sale itself was made on terms affording a suspicion, at least, that one of tbe objects was to prevent tbe creditors from interfering with tbe property sold» Its terms afforded ground for sucb a suspicion, and tbat was ripened into a complete presumption under tbe provision of tbe statute, by tbe continued possession and management of tbe property by tbe vendor.

Upon tbe other point urged in support of tbe appeal the opinion of tbe presiding justice is entitled to approval. But upon this it is considered tbat tbe authority of the law is against the conclusion stated in tbat opinion, and tbat tbe motion made for a new trial should therefore be denied, with costs.

Motion for new trial granted, with costs to abide event.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    MARY H. SHELBY, Respondent, v. THE SUN PRINTING AND PUBLISHING ASSOCIATION, Appellant.
    libel— an article charging a woman with being an illegitmate child, is libelous per se.
    This action was brought to recover damages for the publication of a libel in the defendant’s newspaper. The publication complained of pm-ported to be a report of the proceedings in the Court of Chancery, at Louisville, Kentucky, in the case of a negro who was seeking to obtain a divorce from his wife. The account stated that the defendant in the action for divorce and a sister had been adopted by a leading physician of Louisville, and' that “ it is said that both the daughters are illegitimate children of the adopted father’s intimate, friend, and were raised in a spirit of philanthropy.”

      Séld, that the article was libelous per se, without proof of special damage.
    Appeal from an interlocutory judgment overruling a demurrer to tbe complaint.

      FrcmkUn Bartlett, for tbe appellant.

      Samuel V. Speyer, for tbe respondent.
   Brady, J.:

This action was instituted to recover damages for tbe publication of an alleged libel in tbe Sunday edition of tbe defendant’s newspaper, called “The Sun,” on the 2d of December, 1882.

The publication complained of purported to be a report of the proceedings in the Court of Chancery, at Louisville, Kentucky, in-the case of a negro who was seeking to obtain a divorce from his-wife. In the account given by the defendant, it was said that a certain farmer, John Shelby, stated that the negro’s wife was white, and was the adopted daughter of a leading physician of Louisville, and that he (Shelby) had married the sister of the woman (meaning the plaintiff), and further, that subsequent investigation proved the truth of the statement. Then followed the statement: “ It is said that both the daughters are illegitimate children of the adopted-father’s intimate friend, and were raised in a spirit of philanthropy.”

The libelous part of the action seems to be that in which it is-said that both daughters are illegitimate, and which, of course-, includes the plaintiff. The form and substance of the complaint are quite sufficient to justify an action, if the facts stated are susceptible of proof.

The defendant, however, demurred, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and the theory presented on its behalf is, that, assuming the matter thus particularly referred to to be untrue, no action can be maintained for its utterance, even by publication, without the proof of special damage, which has not been averred.

The learned justice, in the court below, disposed of the demurrer-in a very brief opinion, in which he stated that the publication complained of was calculated to reflect disgrace on the plaintiff, in-the common estimation of mankind, and further, “ the charge-implies reproach.” And if these views are correct, there can be no doubt that the publication complained of was libelous fer se, and was sufficient to enable the plaintiff to maintain the action she has brought.

The respective counsel, in elaborate briefs, have called the attention of the court to numerous cases, many of which are familiar, presenting the various phases of libel and slander in legal contemplation. In the great majority, if not in all of them, the words-uttered, or the language employed in writing, charged the plaintiff' in the action with some disgraceful act, or one involving moral turpitude or moral obliquity, or with conduct or habits affecting his business capacity or his fitness for the office he held or the discharge-of its duties; in other words, with some personal delinquency, demerit or immorality, and thus presenting for consideration some charge relating to the conduct, habits, integrity or qualification of the person himself. In this case there was no charge against the integrity or morality, or behavior or reputation, of the plaintiff. The statement is that she is illegitimate, a circumstance over which, of course, she could have no control, and for which she was personally in no way whatever responsible.

In the estimation of mankind, however, as it is understood, the ■assertion that a person is illegitimate is a reproach, and one which might, in all probability, frequently subject the person of whom it is said to contumely, to indignity, and, perhaps, to insult. It is unfortunate to be obliged to take this view of human conduct, but we must take the world as we find it, and reason out the problems which are presented to us with reference to human frailties or human prejudices, whatever may be the designation given to a disposition often exhibited to make a person suffer for the deeds of his ancestors.

A libel consists in the composition or publication of a writing to the scandal or contumely of another, by which his fame or dignity j may be prejudiced. (Colby’s Grim. Law, vol. 2, p. 57.) See, also, Starkie on Slander and Libel (from the 2d Eng. ed. of 1830, p. 166), and see, also, page 168, at which that learned author says: “ In short, an action lies for any false, malicious and personal implication tending to alter a party’s station in society for the worse, by imputing to him either bad actions or vicious principles, or which diminish his respectability and abridge his comforts by exposing him to disgrace and ridicule; and this without proof of special ■damages.” And hence in the case of Cropp v. Tilney (3 Salk, 226) it was said that scandalous matter was not necessary to make a libel; it was enough if it induced an ill opinion to be had of the plaintiff •or made him contemptible and ridiculous. And in Villars v. Monsley (2 Wils., 403) the doctrine was declared that the publishing of anything concerning another, which renders him ridiculous or tended to hinder mankind from associating or having intercourse with him, is actionable. And, therefore, to publish in writing of another that he was a rogue or a rascal, swindler or villain, was actionable, although the terms would not have been actionable had they been merely spoken.

IHiistrations of tbe rule, which is to be applied to this case of a kindred character, might be multiplied, but it is not necessary to do it-As soon as the court has arrived at the conclusion that the publication complained of is one which is calculated to subject the party assailed to any one of the consequences named, it becomes its duty to declare the action properly brought and "to maintain it.

For these reasons we have arrived at the conclusion that the charge made was one calculated to subject the plaintiff to contumely or reproach, or to prevent her from enjoying the society of persons that might otherwise be disposed to seek it. The judgment of the Special Term is, therefore, affirmed, with liberty to the defendant to answer within twenty days after the service of the order to be entered hereon, and on payment of the usual costs.

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

Judgment affirmed, with leave to defendant to answer over in twenty days on payment of costs.


text:
    THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent, v. JULIEN T. DAVIES, as Assignee and Receiver of GRANT & WARD, Substituted as Defendant, etc., Appellant.

      Pledge of stock to secure a ban — the hypothecation of the sbck by the pledgee is a. conversion thereof— the plédgor cannot recover the stock without paying the debt.

    On April 26, 1884, the plaintiff borrowed from the firm of Grant & Ward the-sum of $455,000, payable in four months, with interest at the rate of five and-one-half per cent per annum, and as security for such payment deposited with the said firm certificates for 11,477 shares of the capital stock of a railroad company. It also gave to the said firm its promissory note, reciting the deposit of the shares as security and authorizing their sale in case of nonpayment of the note when due. Before the maturity of the note, and on May ■ eighth, the firm made a general assignment to the defendant Davies, and on the following day he was appointed the receiver of the assets of the firm. Prior to that time the firm had parted with all the certificates deposited with it by the 'plaintiff, some having been sold, and some hypothecated to secure loans made to it. One hundred shares had been hypothecated with other securities to an insurance company, to secure a loan which had been repaid by the sale of the other securities prior to May twenty-fourth.

      In this action, brought by the plaintiff to recover the said 100 shares, the defendant Davies was substituted as defendant in the place of the insurance company.

      Held, that although the unauthorized hypothecation of the 100 shares constituted a conversion thereof, and authorized the plaintiff to maintain an action therefor without a demand and tender, yet it did not destroy the contract of pledge so as to entitle the pledgor to demand a return of the collateral without a tender or payment of the debt.
    That as this action related only to a portion of the stock pledged, the court below should have applied the doctrine of recoupment with reference to the value of the shares, that is, it should have determined the relation of the 100 shares to the whole number deposited, the value of each share, and the amount which was to be allowed as a counter-claim in response to the demand for the damages occasioned by the conversion.
    Appeal from a judgment rendered at tbe New York Special Term.

      William B. Hornblower, for tbe appellant.

      Joseph Larocque, for tbe respondent.
   Brady, J.:

Tbe plaintiffs borrowed from tbe firm of Grant & Ward tbe sum of $455,000 on tbe 26tb of April, 1884, payable in four months, with interest at tbe rate of fire and one-balf per cent per annum, and as security for sucb payment, deposited with tbe firm named certificates for 11,477 shares of tbe capital stock of tbe Cleveland, Columbus, Cincinnati and Indianapolis Railroad Company. They gave to tbe firm a promissory note, which recited tbe deposit of tbe shares as security and authorized tbe sale of them, provided tbe promise made in tbe note was not performed, i. e., tbe payment of tbe loan made when due. This was tbe only authority given to sell tbe securities.

On tbe 6th of May, 1884, and, therefore, long before tbe maturity of tbe loan, tbe firm named failed, and on tbe eighth of that month made a general assignment to tbe defendant Davies, who, on tbe following day, was appointed tbe receiver of tbe assets of tbe firm, including those purporting to have passed under tbe assignment.

At tbe time of tbe appointment of tbe receiver, and, therefore, as already suggested, before tbe maturity of the note given by tbe plaintiffs, and, of course, before any pretense of any default in tbe payment of tbe note, the shares mentioned bad been hypothecated and, indeed, some sold by or on account of tbe firm. They had been separated by the firm into a great number of lots and deposited as security for twenty-two loans made by them, on their own account, with various corporations and firms, amounting in the aggregate to over a million and a-half of dollars, so that, as stated by the counsel for the respondents, at the time of the failure and assignment, not one share of the securities belonging to the plaintiffs remained in the possession or under the control of the firm. Indeed, it appears that about 5,000 shares of the securities, deposited as collateral security, had been sold up to the 24th of May, 1884.

This action involves only 100 shares which had been hypothecated by the firm of Grant & Ward to the Mutual Benefit Life Insurance Company of New Jersey, as part of the security for a loan of $100,000, but which loan, prior to the twenty-fourth of May, the insurance company had been repaid, by a sale of other securities in their hands sufficient to satisfy the loan, without resorting to the 100 shares in controversy, and which formed a part of the number of certificates deposited with the firm of Grant & Ward. The insurance company, therefore, had no lien upon them at the time of the commencement of this action.

The defendant Davies, by proper application and order relating to the subject, was substituted as defendant for the Mutual Benefit Life Insurance Company, and the certificate for the shares of stock in controversy was deposited with the Farmers’ Loan and Trust Company, subject to the further order of this court. The receiver, therefore, has never had possession of this stock certificate, and his intervention is for the purpose of securing it as a part of the assets of the estate he represents. The controversy involves the right to the possession of the certificate which the action was brought to determine, the plaintiff claiming it by virtue of the conversion which was made of the stock as an absolute right growing out of such conversion, and the defendant, as the receiver of Grant & Ward, contending that he has the right to recoup or off-set or counter-claim the note against any claim the plaintiff may have in consequence of such conversion. It must be answered, for the purpose of this appeal, that the hypothecation of the certificate of stock by Grant & Ward was a violation of the contract existing between them and the plaintiffs, and was a conversion; but it seems to be established by a series of cases that even where such a conversion characterizes the conduct of the pledgee, it does not amount to such a destruction of his special interest in such collateral as to destroy the contract of pledge, and entitle the pledgor to demand return of the collateral without a tender or payment of his debt. (Colebrook on Col., §§ 342 and 444; Donald v. Suckling, L. R., 1 Q. B., 585; Halliday v. Holgate, L. R., 3 Ex., 299; Talty v. Freedmans' Savings and Trust Co., 93 U. S., 321; Lewis v. Mott, 36 N. Y., 395.)

The only effect of the conversion is to render it unnecessary to make a demand and tender, the pledgee having, by the conversion, placed it beyond his power to comply with the demand. (Wilson. v. Little, 2 Comst., 443; Lawrence v. Maxwell, 53 N. Y., 19.)

In this case, as the firm of Grant & Ward had failed, and at the time of the failure were not in possession of the certificates of stock in controversy, nor, indeed, of any of the certificates of stock deposited with them, as collateral, for the loan made to the plaintiffs, neither a tender nor demand was necessary. The court, as said in some of the cases, does not require the performance of what must be an idle ceremony. It is not pretended, from anything which appears upon the record, that the firm of Grant & Ward, or its representatives, had the ability to redeem these certificates and thus place themselves in the position of being able to comply with the demand.

The learned counsel for the respondents assumes that if the pledgee voluntarily, by his own act, places the pledge beyond his own power to restore it, such act amounts to a waiver of his pledge. .But no case has been found which decides what is in substance-contended for, that when such an act is done as suggested, the pledgee not only waives his pledge, but also the right of recoupment or set-off created by the existence of the debt which the pledge was intended to secure.

The learned judge, in the court below, did not consider the contention thus suggested, namely, the right to recoup. He seems to have decided — and so far has expressed himself correctly upon the proposition — that the conduct of the firm of Grant & Ward had rendered it unnecessary to make any tender of the amount of the note and demand of the stock.

It must be noted that this is an action in effect between the original parties to the suit, and not between the plaintiffs and a subpledgee, because, although the hundred shares of stock were deposited with the insurance company, they were released from any lien, the debt for which they were given as collateral having been paid, and they became, therefore, the property of the pledgees, their special interest in them being by the act of payment restored.

The really embarrassing question presented by the record relates to the manner in which the application of the doctrine of set-off or recoupment or counter-claim is to be made. In the adjudications to which reference has been made, not only was the obligation to pay the debt, for which the collaterals were given, recognized, but the transactions in each case were an entirety, and the debt applied to the entire pledge.

This action relates only to a portion of the pledge; but inasmuch as the pawn deposited was a unity in its character, i. e., certificates of the stock of the same railroad company, it would seem to have been the duty of the learned judge, in the court below, to treat the doctrine of recoupment with reference to the value of the shares, and apply fro rata, according to their number, the amount of the debt and their value. There is no doubt that the obligation assumed by the loan was a proper subject of counter-claim or recoupment, or both. (Code Civ. Pro., § 501 ; Andrews v. Artisans’ Bank, 26 N. Y., 298; Carpenter v. Manhattan Life Ins. Co., 93 id., 552; Waterman on Set-off, etc. [2d ed.], 170, 445, 565.)

The effect of this mode of investigation would have determined the relation of the hundred shares to the whole amount deposited, the value of each share and the amount which was to be allowed as a counter-claim, in response to the demand for damages occasioned by the conversion.

The plaintiffs would be entitled to a judgment for the value of the stock less the burden of it, or to such judgment as the court might direct for the stock upon the debiting its burden as ascertained by the investigation suggested. This would be a disposition of the controversy according to the whole law of the land. It would have perhaps been the better mode of procedure for the plaintiffs to have brought an action to recover the whole of the stock deposited with the firm of Grant & Ward as collateral after a tender of the amount due. This not having been done, and the right of action existing, the question to be determined is what is the best rule to apply under the facts and circumstances distinguishing the case.

The rule suggested appears to be the just one, and, therefore, in order that it may be applied a new trial should be granted, with costs to abide the event.

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

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


author: Davis, P. J.: Daniels, J.:

text:
    JULIUS FORSTMAN and Others, Appellants, v. RUTH A. SCHULTING, Executrix, etc., Respondent.

      Practice — motion far a new trial on the ground of a change in the decisions of the Oowt of Appeals on the question involved — when the motion will he barred by laches — motion for a new trial on exceptions — within what time it must be made — costs allowed on its denial.

    Upon the trial of this action, at a Special Term, the complaint was dismissed, the court finding, as a matter of fact, that the release sought to be set aside because of alleged fraud was executed in good faith. Exceptions were filed and a proposed case was settled in February, 1879, but was never filed with the clerk. On February 18, 1879, a judgment for costs was paid and satisfied. December 8, 1883, the plaintiff moved for a new trial, claiming that the trial court was misled by a decision of the Court of Appeals (Darribmann v. Sahulting, 75 N. Y., 55), which decision was, as claimed, altered or reversed by a subsequent decision in another action arising upon the same state of facts. (Hwdt v. Bchultmg, 85 N. Y., 624.)

      Held, that the motion, in so far as it was founded on the second decision of tbe Court of Appeals, was properly denied, because, treating it as a question of newly-discovered law, that was not a ground upon which a new trial could be granted. Per Davis, P. J. (Daniels, J., contra).

    That the motion was properly denied upon the ground of the plaintiff’s laches. Per Daniels, J.
    That as the time for taking an appeal had expired before notice of the motion was given, the court had no power under section 1002 of the Code of Civil Procedure to entertain the motion as made for a new trial on the exceptions, and that it erred in granting costs to be taxed by the clerk, instead of limiting them to ten dollars, the cost of an ordinary motion.
    Appeal from an order of the Special Term, denying a motion for a new trial.

      William Watson, for the appellants.

      C. B. Smith, for the respondent.
   Davis, P. J.:

This ease comes again before us upon an order for a reargument. The action was tried at Special Term and the complaint dismissed by that court, the court finding, as matter of fact, that the release sought to be set aside for fraud was executed in good faith, without any mistake on the part of the plaintiffs, and without any misrepresentation or concealment of material facts on the part of the defendant. Exceptions were filed to the findings of the court and a proposed case was made and served, and subsequently settled in the month of February, 1879; but it appears that the case was never filed with the clerk, and on the 18th of February, 1879, judgment for costs in the action was paid and a satisfaction executed, and no further steps were taken in the action until the 8th -of December, 1883, at which time application was made to revive the action by bringing in the present defendant as executrix of the original defendant who had died. Several cases, growing substantially out of the same transaction, and dependent upon similar facts, have been before this court and the Court of Appeals. The first was the case of Dambmann v. Schulting, which was an action to set aside the same release, the release having been executed by several creditors of Schulting. In that case the court at Special Term, in substance, found the several facts that transpired prior to and at the time of the execution of the release, and without finding in so many words that those facts established the alleged fraud upon which it was sought to set aside the release, it adjudged that the release was fraudulent and void. The case came on appeal to this court, where the judgment of the Special Term was affirmed. But -on appeal to the Court of Appeals (75 N. Y., 55), it was held, in substance, by that court, that the findings of fact made by the Special Term did not warrant its conclusions of law, and did not establish that the release was obtained by any fraudulent misrepresentation or concealment, and the judgment was reversed. Subsequently, on the trial of the case of Hardt v. Schulting, the court at Special Term, upon substantially the same evidence, found, as matter of fact, that the release was obtained by fraud. This court affirmed that judgment, and the Court of Appeals also affirmed the judgment (85 N. Y., 624) upon the finding of fraud by the Special Term. The case of Dambmann v. Schulting was reconsidered by the court, as appears by the report in 85 New York, 622, and the judgment in that case was again affirmed. It seems to be apparent that if the judge, who tried Dambmann v. Schulting, at Special Term, had found, as matter of fact, that the release was obtained by fraudulent representation or concealment, the judgment would not have been disturbed by the court of last resort, and the difference between the results of these cases seems to have arisen from the finding in the one of fraud, as a matter of fact, and in the other as a conclusion of law.

This case was tried after the decision in Dambmann v. Schulting, in the Court of Appeals, but before Hardt v. Schulting was decided in that court; and it would seem that .the learned judge at Special Term regarded the Court of Appeals as having held that upon substantially the same evidence as that given in Dambmann v. Schulting, it would be his duty to find as matter of fact that there was no fraud in obtaining the release. In this, we think, he was in error, because Hardt v. Schulting clearly establishes that if he had found upon the evidence in this case that the release was obtained by fraud, the finding would have been upheld both in this court and in the Court of Appeals. Not only were the case and exceptions made in this case not filed in the court, but no appeal was taken in the case, and the time for appeal has long since expired. The motion for new trial at Special Term, from which the present appeal is taken, was based in part upon a historical narrative of the proceedings in the case of Dambmann v. Schulting and Hardt v. Schulting, and the supposed discrepant results of those cases, which seem to have been regarded by the counsel for the appellant as newly discovered evidence justifying a new trial; and, also, upon the case as originally made and settled, but never filed. Assuming the cases last mentioned to be in conflict, there is no principle of law upon which such results can be regarded as newly discovered evidence to establish important facts in a case, which would entitle a party to a new trial under any established rule of the courts. They more-properly present a question of newly discovered law, which has not, yet been considered to be a sufficient basis for the granting of new trials in preceding cases, for that course might render all judgments altogether too unstable for the adjustment of human affairs. So far as this ground goes the Special Term was right, we think, in denying the motion.

The only remaining question is whether the court, at Special Term, could properly entertain the motion for new trial upon the case and exceptions. It is apparent from the form of the order that the Special Term considered that the motion was not properly before it as one for a new trial upon the case and exceptions. On the former argument, this court held that that ruling was correct, and we are still of that opinion. (See MS. op., Brady, J.) Section 1002 of the Code of Civil Procedure provides, we think, for the hearing of such a motion in a ease like this at a Special Term held by the same judge who presided at the trial, unless he specially directs the motion to be heard before another judge. But that section is amended by chapter 403 of the Laws of 1884 (Laws of 1884, p. 484), which provides that such a motion cannot be made unless notice thereof be given before the expiration of the time within which an appeal can be taken from the judgment. The time for an appeal had long expired before this motion was made and before notice thereof was given, and hence there was no authority in the Special Term to entertain the motion as an allegation of error in findings of fact or rulings of law made by the judge upon the trial.

As the court had no power to entertain the motion on the ground last considered, it should not, as it seems to us, have awarded costs to be taxed by the clerk, but only the costs of an ordinary motion. Such costs were taxed at seventy-four dollars and forty-seven cents, as appears by the notice of appeal. That part of the order, directing the taxation of costs, should be reversed and the costs upon the denial limited to the ten dollars allowed by the Code.

"With that modification, the order should be affirmed, without costs of this appeal to either party.

Brady, J., concurred.

Daniels, J.:

"While I have no serious doubts as to the power of the court on the motion made to set aside this judgment, for the court has power in all cases to do that, when justice may require such a direction (Hatch v. Central National Bank, 78 N. Y., 487; Underwood v. Sutcliffe, 21 Hun, 358; Brown v. Brown, 58 N. Y., 609), and that it might be done because of the change in the decision of the Court of Appeals, in the case of Hardt v. Schulting (85 N. Y., 624), from that of Dambmann v. Schulting (75 id., 55), between which decisions this action was tried. [The case of Smith v. Frankfield (13 Hun, 489) sustaining such an application, affirmed. (77 N. Y., 414.)] I am still convinced that the order denying the motion for a new trial was right. For the decision of Hardt v. Schulting (supra) was made, and became known to the plaintiff’s counsel in May, 1881, and the defendant Schulting did not die until the month of April, 1882. During this period of upwards of ten months, nothing whatever was done towards a motion to set aside the judgment and obtain a new trial. And no satisfactory excuse for the delay has been given. The practice allowed the motion to be made at any Special Term, without delaying it until a court should be held by the justice presiding at the trial. And there was then no uncertainty as to the existence of that rule, where the motion was to be made, as this was substantially, as a motion for a new trial, on the ground of surprise or newly discovered evidence. There was, therefore, no excuse either legally or as a matter of fact for this long delay. The facts were all well known, and but a few hours at most' was required to put them in legal form for use on such a motion. The opportunity was in all respects fully matured. And yet nothing was done for over ten months to make it available. This neglect was so far prolonged as to deprive the plaintiffs of their right after that, and after Schulting himself had died, successfully to make the motion. And I accordingly, on this ground, agree to-an affirmance of the order denying the motion for a new trial, and to * the modification of the direction concerning the costs, for the reasons given by the presiding justice.

Order modified as directed in opinion, and affirmed, as modified, without costs of appeal to either party.


author: Ready, J.:

text:
       JULIA NUGENT, as Administratrix, etc., of WILLIAM NUGENT, Deceased, Respondent, v. LUCY VANDERVEER, Appellant.

      Duty cf the proprietors of a bathing establishment to protect and rescue patrons — 1879, chap. 328 — not applicable to actions to recover damages for the death of a bather.

    This action was brought to recover the damages sustained by the plaintiff, by reason of the death of her husband, who was alleged to have been drowned while bathing at the defendant’s bathing establishment, at Coney Island, through the defendant’s negligence. Upon the trial the presiding justice incorporated into his charge the act of the legislature, for the protection of human life at public watering and bathing places (chap. 328 of 1879), which requires the proprietors of bathing establishments to provide the means to rescue from drowning persons who pay for the privilege of bathing, and who may expose their lives by carelessness or inexperience, and declared the rule in this action to be, that, if the performance of the statutory duty, imposed upon the defendant, would have prevented the accident, the negligence of the deceased, if any, was not available as a defense here.

      Held, that the act referred to was not applicable to actions of this character.
    Appeal from a judgment, entered upon a verdict for the plaintiff, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      T. O. Uronvn, for the appellant.

      J. A. CP Oormcm, for the respondent.

      I)eeided October, 1885.

   Ready, J.:

This action was brought tp recover damages consequent upon the loss of the plaintiff’s husband, whilst bathing at Coney Island, in the season of 1884.

The learned justice presiding incorporated in his charge the act of the legislature, for the protection of human life at public watering and bathing places, passed May 19,1879 (Laws 1879, chap. 328), which required the proprietors of bathing establishments to provide the means to rescue from drowning persons who pay for the privilege of bathing, and who may expose their lives by carelessness or inexperience, and declared the rule in this action to be, that, if the performance of the statutory duty, imposed upon the defendant, would have prevented the accident, the negligence of the deceased, if any, was not available as a defen e here.

This did not leave the case to be disposed of by the jury upon the element which controls actions of this character, namely, negligence. The learned justice substantially repudiated the rule that the plaintiff could not recover, if the intestate contributed to his death by his own negligence; because he said that if he were careless, and brought his life into peril and danger, and consequently lost it, the defendant was liable, if she was negligent and failed to comply with the provisions of the statute, when such compliance would have resulted in saving the decedent’s life.

It is the opinion of myself and my associates that the act mentioned is not applicable to actions of this character. A failure to comply with its requirements is determined by the second section, which makes non-compliance a misdemeanor, and provides that upon conviction thereof, the penalty shall be fine or imprisonment, or both.

It is for these reasons thought, without considering any other question presented in the case, that the judgment must be reversed and a new trial ordered, with costs to abide the event.

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

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


author: Davis, P. J.:

text:
    THE HANOVER VULCANITE COMPANY, Respondent, v. NATHAN NATHANSON, Appellant, Impleaded with SELLY JACOBSON.

      Order of arrest — what facts show a fra/adulent disposition of firm property with intent to defraud creditors.

    In an actionjcommenced against one Nathanson, by his copartner, to dissolve the firm, a summons had been issued and served, but an injunction restraining Nathanson from interfering with the property, pending the action, had not been served, although granted, for the reason that Nathanson kept out of the way in order to avoid service. Nathanson at the time had in his possession bills of lading of goods then in bond, upon which the duties had not been paid. Without the knowledge of his copartner he withdrew these goods and converted them to his own use. In this action, brought by a firm creditor against Nathanson and his partner, an order for the arrest of Nathanson was granted upon the ground that he had fraudulently disposed of firm property with intent to defraud its creditors.

      Held, that the order was properly granted
    Appeal from an order of the Special Term, denying a motion to vacate an order of arrest.

      G. Putml, for the appellant.

      Ten Eyek db Remington, for the respondent.
   Davis, P. J.:

The warrant in this case is granted against one of the defendants for the fraudulent disposition of property belonging to the firm with intent to defraud its creditors.

It appears, in substance, that for certain misconduct of the defendant Nathanson, his copartner had commenced an action to dissolve the firm, and had applied for an injunction restraining Nathanson from interfering with the firm property pending the action. A summons in the action had been served, but the injunction was not served for the reason that Nathanson was keeping out of the way so that he could not be found to make service. Nathanson must be assumed to know that the effect of the action commenced by his partner was to put the property of the firm in a position where it would properly be applied to the payment of the debts of the firm. Some portion of the property consisted of goods in bond on which the duties had not then been paid. Nathanson had possession of the bills of lading of these goods, and after the service of the summons on him, which commenced the action to dissolve the partnership, he, without the knowledge of his copartner, made entry of the goods for withdrawal from the bonded ware-house and got possession of the same, and without bringing them into the partnership assets, or entering them upon the books of the firm, disposed of them, as the allegation is, for his own benefit and with intent to defraud the creditors. The value of the goods was about $1,450.

The facts shown establish to our satisfaction the three things held to be necessary to constitute a fraudulent disposition by the debtor of his property: First. That the thing disposed of must be of value. Second. It must be transferred or disposed of by the debtor. Third. It must be done with intent to defraud creditors. (Hoyt v. Godfrey, 88 N. Y., 669.)

The first two of these facts are very clearly established in this case; and the last, which is the intent to defraud, is satisfactorily shown, as we think, because such a state of facts is shown as would establish that but for the conduct of the defendant the creditors-of the firm )would have been entitled to have the property disposed of to apply upon the firm debts, and that they have been deprived of such property by the action of the defendant. It is claimed that the affidavits only show an intent on the part of Nathanson to defraud his copartner. It is true they show that, but. they also show a condition of things in respect of the firm property which establishes that in defrauding his copartner, he of necessity defrauded his creditors, because his taking the firm property and disposing of it under the circumstances for his own benefit, after the suit for the dissolution of the firm had been commenced, was directly depriving the creditors of that property as an asset of the-firm which in the suit would have been applied upon its indebtedness. He does not see fit to answer the plaintiffs’ affidavits but moves upon them alone and must be bound by every fair inference that may be deduced from them. His concealment to avoid service of process is a circumstance tending to characterize with fraud all his other proceedings.

We think the order should be affirmed, with ten dollars costs and disbursements.

Bbady and Daniels, JJ., concurred.

. Order affirmed, with ten dollars costs and disbursements.


author: Beady, J.: Davis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN CARPENTER, Appellant.

      Challenge to a juror for bias — to what subject the bias must relate — Code of Criminal Procedure, sec. 376 —peremptory challenge — right of comment by the court.

    Upon the impanneling of a jury to try the defendant for the crime of murder in the first degree, two of the jurors were interrogated as to the defense of insanity, and asked whether if that defense were interposed on hehalf of the appellant on the trial they would have any prejudice against it. The result of the examination established that they had a prejudice against that defense which would remain with them, but that they felt that they would be guided and controlled by the evidence, notwithstanding this impression.

      Held, that the court did not err in overruling challenges made to the jurors by the defendant’s counsel, because (1) the testimony did not show any existing bias sufficient to disqualify the juror from sitting ; (2) that even if the existence of a prejudice or bias against the defense of insanity were established, it would not disqualify the juror, as such a bias or prejudice was not a proper legal basis of a challenge.
    The bias or prejudice which disqualifies a juror must relate to some existing fact, and not to a mere hypothesis ; it must relate to the offense of which the party stands charged, and not to any of the various defenses or collateral issues which may be interposed and created and by which the accused may be relieved from responsibility.
    A juror cannot be inquired of in respect to his prejudice against any particular defense, whether that defense is of a character that can be summarized in one-word or phrase, such as “insanity,” “alibi,” or “mistaken identity,” for example, or is of a more complex character, so that it can only be explained by a statement of the very facts and circumstances that are to be offered in evidence. The bias or prejudice must be one actually existing for or against the prisoner, and be either personal in its character or springing from convictions- or opinions as to the charge made against the prisoner ; so controlling in its influence as to destroy a belief that in the consideration of the case impartial justice can be done by the juror.
    A peremptory challenge cannot be made after the jury has been sworn. Subsequently swearing the jury as a body does not restore that right.
    Right of the judge to comment upon the testimony, considered.
    Appeal from* a judgment of tbe Court of Oyer and Terminer in tbe county of New York, upon a conviction of murder in tbe first degree.

      Adolphus D. Pope, for tbe appellant.

      De Lanoey Nicoll, assistant district-attorney, for tbe respondent.
   Beady, J.:

The defendant was charged with the murder of bis wife and was found by tbe jury to bare killed her under circumstances warranting a conviction of murder in tbe first degree. It appeared on tbe trial that some years before tbe killing be bad intended or attempted a similar act, and struck down a woman in a church in this city whom be believed to be bis wife, for which offense be was sent totbe State prison; and further, that while in tbe prison be bad expressed his determination, upon his liberation, to kill his wife, which he did soon after his discharge. The facts and circumstances establish beyond all peradventure, therefore, deliberation, premeditation and a brutal murder.

The appellant complains of errors committed during the impanneling of the jury, which originated, as is claimed, in this way : Two jurors were interrogated as to the defense of insanity, namely, Francis A.. White and James M. lehmaier, and asked if that defense were interposed on behalf of the appellant on the trial whether they would have any prejudice against it, and the result of the examination of each on that subject was substantially that they had a prejudice against that defense which would remain with them, but it may be said that notwithstanding this supposed bias, it is patent upon the whole examination that they felt that they would be guided and controlled by the evidence, notwithstanding the impression mentioned. Assuming, however, that this was doubtful, the complaint made cannot avail the accused as we shall see. The Code of Criminal Proceedure provided, by section 376, for particular causes of challenge, which are of two kinds :

First. For a bias which when its existence is ascertained, in judgment of law, disqualifies the juror, and which is known in the Code as “ implied bias.”

Secondly. For the existence of a state of mind on the part of the juror with reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try it impartially and without prejudice to the substantial rights of the party challenging, and which is known as actual bias.” But it is declared that the previous expression or formation of an opinion as to the guilt or innocence of the defendant, or a present opinion or impression in reference to it, is not a sufficient ground of challenge for “ actual bias ” to any person otherwise legally qualified, if he declare on oath his belief that such opinion or impression will not influence his verdict, and that he can render an impartial one according to the evidence, and the court is satisfied that he does not entertain such a present opinion or impression as would influence his verdict. By section 377 the grounds of challenge for implied bias are stated in eight subdivisions, which it is declared may be taken and for no other. It is not necessary to state the grounds contained in these several subdivisions of the section men* tioned. It is sufficient to say that they do not include any bias against any defense that might be interposed in answer to the crime charged. There is nothing in the provisions of section 376 which includes such a bias.. They relate to an existing state of facts and not to an hypothesis, namely, the defense of insanity, if interposed. The bias or prejudice which disqualifies the juror must, as already intimated, be of some existing fact. His qualifications relate to the condition of his mind at the time of his selection, and not to a condition of mind which may be produced by subsequent events. If his bias or prejudice against the defense of insanity is a good reason why he should be excused, then his bias or prejudice against the defense of alibi is an equally good reason. The doctrine seems to be this, therefore, that the bias or prejudice relates to the offense of which the party stands charged, and not to any of the various defenses or collateral issues which may he interposed and created and by which the accused may be relieved from responsibility. If the juror stands indifferent between the people and the accused in reference to the crime charged, that is sufficient, particularly as we have seen by the provisions of the Code, that even if he have an opinion as to the guilt or innocence of the accused, he is qualified under the statute if he can say under oath that he believes he could render an impartial verdict. (People v. Casey, 96 N. Y., 115.)

The learned counsel for the appellant, who has displayed great zeal in behalf of his client, has cited no case furnishing a precedent for this line of examination, and it is supposed none can be found. In the case of the Commonwealth v. Porter (4 Gray, 423), it was decided that the accused was not entitled to ask a juror whether he had formed or expressed an opinion as to the credibility of a witness upon whose testimony it was expected the prosecution might rely to support the indictment. In .the case of the Commonwealth v. Buzzell (16 Pick, 153), which was an indictment charging the accused with burning the Ursuline Convent, in Charlestown, the attorney general — as the prosecution was to be supported in part by the testimony of Roman Catholics, and, as he apprehended that in consequence of there being much excitement in the public mind on the subject of the trial, the persons returned as jurors might Hot be impartial — suggested that, as the jurors were sworn, they be asked whether they entertained the opinion that a Roman Catholic was not to be believed on his oath. The court ruled that the question should not be put.

This subject was ably discussed by the present surrogate of this ■county, then acting as the district attorney in the case of Templeton v. The People, and his brief is to be found in the cases of the General Term, 1875, volume 2, in the library of the Association of the Bar. He contended that the practical effect of recognizing the claim to examination as to the defense of insanity would be an indefinite increase of the number of peremptory challenges permitted by law, and said, amongst other things, that there was manifestly no power in a court to prevent counsel, who had caused jurors to be discarded on account of their bias or prejudice against particular defenses, from abandoning those defenses as soon as he had secured twelve men to his liking. And he suggested that the inquiry in reference to the qualifications of a juror must be: Does the juror now stand indifferent as he stands unsworn ? Not, will he stand indifferent in the event of a contingency which may never occur ?

It is intended, therefore, to state, as a proposition of law applicable to this and kindred cases, that a juror cannot be inquired of in respect to his prejudice against any particular defense, whether that defense is of a character that can be summarized in one word or phrase, such as “insanity,” “aMbi” or “mistaken identity,” for example, or is of a more complex character, so that it can only be explained by a statement of the very facts and circumstances that are to be offered in evidence. The bias or prejudice must be one actually existing for or against the prisoner, and either personal in its character or springing from convictions or opinions as to the charge made against the prisoner, so controlling in its influence as to destroy a belief that, in the consideration of the case, impartial justice can be done by the juror. This seems to be doctrine which appeals at once to all the proprieties in the administration of criminal justice.

It must be farther observed that no juror has any right, and should not be regarded as having any right, to entertain any prejudice against any defense, whether of insanity or otherwise. It is his duty to consider, and impartially, all the evidence submitted to the court of which he forms a constituent parí, and if, in the discharge of his duty as a juror, he permitted a bias or prejudice against a particular defense to control him, he violates his oath, disobeying the law of the land, and perpetrating an outrage in the administration of justice. He would subject himself by such a course to indictment and to punishment, which he would richly deserve. Indeed, it may be with propriety said that no juror should be excused, if the statute did not exist authorizing it, from serving in a case involving capital punishment, simply because he had a prejudice against that penalty. He has nothing to do with the punishment. His province is to say whether the accused is guilty of the crime charged as a matter of fact upon the evidence. The punishment is declared by the legislature and pronounced by the court. He shall not be permitted to entertain any prejudice as a citizen of the State in which he is called upon to serve as a juror* he is bound by the laws which there prevail, and when he takes his seat in the jury box he has no right whatever to interpose his private views against the law which he is bound to observe by every obligation which can bind men together.

The laws are not to succumb to the prejudice of men. They are required to acquiesce in and to be governed by them. There is no doubt that they must be, for a violation of them is punishable sometimes lightly, sometimes with severity, and perhaps in the gradation of punishment frequently too lightly. If a man becomes a citizen of the State, it devolves upon him at once to yield his private conclusions about its laws whenever placed in a position where he is called upon to perform a public duty; and if he does not, he assumes at once the attribute of an outlaw who stands arrayed against the rules prescribed by due authority for his government and control. It is unnecessary, however, to pursue this subject further. The conclusion arrived at is that whether there was or was not a bias against the defense of insanity was wholly immaterial.

The appellant also complains that he was not permitted to exercise the right of peremptory challenge after the jury were sworn. In regard to this, however, it appears that each juror, after his examination and the failure of the accused to challenge peremptorily, was sworn to try the issue between him and the people. On that subject, section 371 of the Criminal Code provides that the court, may, in its discretion for good cause, set aside a juror at any time before evidence is given in the action. The right of peremptory challenge continues, it is true, until the juror has actually been sworn. We so decided in this case when it was before us on a former appeal, and there seems to be no doubt that the rule declared by the section just referred to prevailed before its passage. (People v. Damon, 13 Wend., 351.)

There is nothing in this case to show that, in refusing to permit a peremptory challenge to be taken after the juror was sworn, the discretion with which the court was invested was in anyway abused, and the accused can take nothing by the objection stated.

Before the oath was administered to the last juror, the counsel for the accused asked that the jury be sworn as a body to try the accused,, to which the court responded: “ The clerk will swear the jury.” The defendant’s counsel then said: “We desire to challenge peremptorily Mr. William Q. Barclay, the first juror, before the jury is sworn.’.’ The court said: That is overruled,” and the defendant’s counsel excepted, whereupon the last juror was sworn. The defendant’s counsel then asked that the jurors be sworn as a body, to which the learned judge responded that the jury was already sworn according to law, but if the prisoner desired the body to be sworn collectively he saw no objection to it, although it was in his judgment a work of supererogation. The clerk thereupon swore the twelve persons sitting in the jury box according to the request of the counsel for the accused.

Upon these incidents the counsel for the accused insists that by ordering the jury to be sworn collectively as a body at one and the same time, the oath administered or taken by each of the jury, individually, was vacated, and the' right of peremptory challenge attached as if none of the jurors had been sworn. This is very ingenious but extremely metaphysical.

It seems to be destitute of merit, however, and particularly when the act' of which the accused seeks to avail himself was one performed by his particular request through his counsel. If the swearing of the jury, however, created such an extraordinary result as that claimed by the counsel for the accused, and he should be permitted thus to take advantage of his own wrong, nevertheless it would not avail him, for the reason that after .the jury were sworn he neither interposed a peremptory challenge nor claimed to exercise any right to do so. It is also contended, on behalf of the accused, that the verdict is against the weight of evidence. The defense was insanity. There was no pretense of any other, and the case presented facts and circumstances which left no other conclusion to be drawn than that a deliberate and brutal murder had been committed.

Some facts and circumstances were arrayed on behalf of the accused, which it was supposed furnished evidence of a diseased mind, and several medical gentlemen were examined on his behalf, whose testimony tended to establish the existence of insanity at the time of the commission of the offense of which he stood charged. But these facts and circumstances were responded to by the evidence of witnesses who had known him; who had seen him in and out of prison; by proof of his demeanor, whilst confined in the State prison, extending over several years, and also by the testimony of medical gentlemen who had seen and watched him, and thus an issue was fairly and fully presented upon the defense thus interposed, which was decided against him.

It is urged, and perhaps with some reason, that the learned justice, in presenting his views upon the defense of insanity, so expressed himself as to convey to the jury an impression of his personal prejudice against that defense, or at least such a view of it as rendered it necessary for them to examine, with extreme caution and scrutiny, every element of it presented on behalf of the accused; and thus suggesting a difference between that and any other defense. In the case of Sindram v. The People (88 N. Y., 169), Justice Rapallo said: Comments upon the testimony, so long as the judge leaves all the questions of fact to the jury, and instructs them that they are the sole judges of matters of fact, are not the subject of legal exception. It is desirable that the court should refrain,- as far as possible, from saying anything to the jury which may influence them either way in passing upon controverted questions of fact, and perhaps comments on the evidence might be carried so far as to afford ground for assigning error. But in the present case, whenever its attention was called by the prisoner’s counsel to any part of the charge which he considered as an infringement upon the province of the jury, the court promptly and clearly withdrew the remarks objected to and emphatically reminded the jury that they alone had the right to determine the facts.”

But the court held in that case, inasmuch as the observations complained of were promptly withdrawn, and the jury instructed emphatically that they alone had the right to determine the fact, the judgment should not be interfered with. The same features mark this case. Although the learned justice presiding would seem to have had very decided views not only in regard to the defense of insanity, the ease with which it might be simulated, the comparatively small reliance to be placed upon individual testimony, and the fact that expert testimony had repeatedly been criticised and gravely, because, generally speaking, experts are employed just as advocates are, to support a theory, he left the whole question to the jury, expressing his admiration for the medical gentlemen examined on the part of the accused, who had rendered their services in the case without compensation.

It is impossible for us to say, however, that the verdict was against the weight of evidence, nor can we say that the charge of the learned judge was in antagonism to the established rules. For these reasons the accused can derive no benefit from the contention already considered. We have examined this case with great care and attention and find that no other exception was taken or presented for our consideration, which would justify us in disturbing the verdict appealed from. We have not discovered in any of the propositions urged on the part of the accused, therefore, any reason why a new trial should be granted. The defense of insanity was rejected by the jury upon a conflict of evidence on the subject, and it was the only defense interposed and, indeed, as developed by the record, the only defense that could be interposed by which the accused eould hope to be relieved from the consequences of the crime he committed, which was long meditated and most mercilessly executed.

The judgment must be affirmed.

Davis, P. J.:

I concur in the opinion of my brother Brady, in so far as its results depend uuon the following propositions discusssed so ably by him:

First. That there was no error in overruling the several challenges because, on the testimony of the challenged jurors, the court properly held that no existing bias was shown that disqualified either of them to sit in the case.

Second. That the existence of a prejudice or bias iu the mind or opinion of a juror against any supposed or proposed defense is not such a one as is a proper legal basis of a challenge to the favor. Inquiries on such subjects may properly be allowed or made of a juror, under control of the court, for the purpose of determining whether a peremptory challenge shall be interposed, but beyond that they, as shown by my brother Brady, are quite immaterial. The Criminal Code now regulates the subject of challenges for opinions held or expressed as to the guilt or innocence of the accused, and relieves the court from the absurdity of shutting out intelligent jurors who declare on oath that they believe themselves capable of trying and deciding the case, upon the evidence given before them, notwithstanding such opinions. It would be as proper, I think, to incapacitate a juror because he declared he had a prejudice against the crime charged in the indictment, as it would because he avowed he had a prejudice against a defense that may be interposed to it.

Third. That the administering of the oath to each juror, as he was found competent, was a lawful mode of swearing the jury, and the oath thus taken by each precluded a subsequent peremptory challenge of him.

Fourth. That the reswearing of the jury as a body, at the request of the defendant, did not alter his rights in respect of peremptory challenge.

These conclusions of my brother Brady dispose of all the material questions of the case and justify his conclusion that the judgment should be affirmed, and upon them I concur in that conclusion.

Present — Davis, P. J., and Brady, J.

Judgment affirmed.


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    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. KORTRIGHT CRUGER, Appellant.

      Indictmenc — variance between its allegations and the proof — an objection must first be taken at the trial — how lao'ceny is to be chm'ged under section 528 of the Penal Code — charge as to reasonable doubt.

    The indictment under which the defendant was tried and convicted, charged that he, at a timé and place therein named, “ did steal, take and carry away one lace pin of the value of eight hundred dollars, and fifty-two diamonds of the value of twenty dollars each, of the property of James Proteus.” Upon the trial the evidence showed that the defendant, being lawfully in possession of the pin (of which the diamonds were constituent parts), as agent of the owner, feloniously appropriated the same to his own use. Upon an appeal from the judgment of conviction, the defendant claimed that as the indictment charged only a felonious taking under the first subdivision of section 528 of the Penal Code, while the proof showed no such taking, but an unlawful conversion under subdivision 2 of the same section, there was a fatal variance.

      Held, that the question could not be raised on appeal, as the objection had not been taken at the trial.

      Qucere, as to whether, under the provision of the Penal Code, the people must set out the facts in an indictment, as formerly required, or may allege merely a felonious taking which would constitute larceny at¡ common law, or under the Revised Statutes, and then prove on the trial the other facts now declared to constitute larceny by the Penal Code.
    The true rule, in respect to "reasonable doubt,” relates to the effect which the whole evidence of a case, as presented on both sides, with all its surrounding circumstances, produces upon the minds of a jury, and it entitles the defendant to the benefit of a reasonable doubt which still exists upon the question of guilt, after the jury have fully and fairly considered such evidence and circumstances' and find that they fail to produce satisfactory conclusions of the guiltiness of the’ accused.
    Appeal from a judgment and an ordér denying a motion for new trial, on the conviction of the defendant of grand larceny in the second degree at the New York Oyer and Terminer.

      Morris A. Tyng^ for the appellant.

      Randolph B. Marirme, district attorney; De La/ncey Nicoll,. assistant district attorney, for the respondent.
   Davis, P. J.:

The indictment in this case charges that the appellant, at the time and place therein named, feloniously “ did steal, take and carry away •one lace pin of the value of eight hundred dollars, and fifty-two diamonds of the value of twenty dollars each, of the property of James Proteus,” without stating the particular facts proved on the trial, which were claimed to constitute larceny within the definition of that crime as given by subdivision 2 of section 528 of the Penal Code. Evidence was given on the part of the people on the trial tending to show that the appellant, being lawfully in possession of the pin (of which the diamonds were constituent parts) as agent of the owner, feloniously appropriated the same to his own use; and the question is now made that, inasmuch as the indictment charges only a felonious taking under subdivision 1 of section 528, and the evidence showed no such taking, but, at most, an unlawful conversion under subdivision 2 of the same section, there is a fatal variance •between the charge and the proof.

But no such question was raised or made at any stage during the trial; nor does it in anywise appear that the appellant was misled or otherwise injured in his defense by the failure to set forth the facts in the indictment showing that the larceny charged arose upon such a criminal transaction as is declared larceny by subdivision 2 of the section. It is too late, therefore, we think, to raise the question now sought to be urged.

The appellant is in no danger of a further indictment and conviction for the same offense to which the present trial and conviction would not be a bar, because he will always be at liberty, under the plea of mitre fois convict, to show that he was convicted under this indictment for the same offense that may be specifically charged in another.

¥e are not called upon, therefore, to determine whether, under the provision of the Code which changes certain other crimes as they were specified and denominated by former statutes into the ■Crime of larceny, the people must set out the facts in an indictment as formerly required or may allege merely a felonious taking which would constitute larceny at common law, or under the Revised Statutes, and then prove on the trial the other facts now declared to constitute larceny by the Penal Code.

A careful study of the evidence in this case shows that there was quite sufficient proof, if the jury accepted as true the people’s version of the same, to justify the conviction of the defendant; and we are able to see nothing in the charge of the court as given and set forth in the ease of which complaint can justly be made. It was clear and impartial, and presented fully to the jury the real questions upon which the guilt or innocence of the accused depends. But some exceptions were taken to refusals to charge which require consideration. The court was requested to charge as follows: “ The indictment being for the larceny of a certain pin, if the jury believe that the complainant, being the owner of the pin, authorized the defendant to obtain a loan upon it, and the defendant did actually obtain that loan from Mr. Hawkins the witness who has testified as authorized by the complainant, they cannot convict the defendant under this indictment of the larceny of the pin.”

The court refused so to charge, and the defendant excepted. At first blush it would seem that this request ought to have been charged; but a critical examination of the case will show that it might have been misleading to the jury if charged in the language of the request. There were two distinct transactions between the complainant and the defendant, and two between the defendant and Mr. Hawkins, in which loans were made by the latter to the former. The first of these was closed up by the repayment of t'he loan to Mr. Hawkins and the return of the pin to the complainant by the defendant. Afterwards, and in March following, the pin was put into the hands of the defendant again by the complainant as he says for the purpose of a sale at a minimum price of $300, and, as defendant says, for the purpose of a sale or loan; and it was upon what occurred after this return of the pin that the charge of larceny was predicated. Both of these transactions were spread out in evidence before the jury, each of the parties giving his version of the same. A charge in the precise language requested might have misled the jury, without careful explanation to suppose that if either loan by Hawkins was sanctioned by the complainant it would entitle defendant to an acquittal, while it is clear that a finding by the jury in that way, in respect of the first loan, would not necessarily have entitled him to such a verdict. The appellant was not, therefore, entitled to the charge in the form and language requested.

Besides, the request eliminated the element of intention on the part of the defendant for, if the complainant did authorize in general terms a loan to be made upon the pin for his own benefit that fact would not have authorized a loan for the benefit of the defendant himself to some unknown party whose name was concealed, as well as the fact that any loan had been made, by false representations, as to the whereabouts of the pin and by representing it to be in the possession of a fictitious person for the purposes of a sale, while, in fact, the defendant had fraudulently converted to his own use the proceeds of a loan upon it. We are not able to see that the declension to charge the proposition requested was at all injurious to the defendant, nor that he had a strict right to demand it, and we are of opinion that it was not error to refuse it.

It was no error to refuse to charge in the precise language of the request touching “ reasonable doubt.” The court charged quite fully on that subject and gave to the defendant the full benefit of the rule, and the judge was under no obligation to subdivide that portion of his charge into “reasonable doubts” upon this or that branch of the case, or upon questions of veracity between witnesses. The true rule in respect of “reasonable doubt ” relates to the effect which the whole evidence of a case as presented on both sides with all its surrounding circumstances produces upon the minds of a jury, and it entitles the defendant to the benefit of a reasonable doubt which still exists upon the question of guilt after the jury have fully and fairly considered such evi dence and circumstances and find that they fail to produce satisfactory conclusions of the guiltiness of the accused.

The motion for new trial was properly disposed of by the court below, and we think the conviction and judgment must be affirmed.

Daniels and Brady, JJ., concurred.

Judgment affirmed.


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    FRANK G. L. THOMPSON, as Executor of ADELAIDE THOMPSON, Deceased, Plaintiff, v. CHARLES L. SCHMIEDER and Others, Defendants.

      Purchase ata foreclosure sale— the court cannot enforce it as to part, with a deduction, from, the price for the residue as to which the title is defective.

    The purchaser at a foreclosure sale held under a decree of this court, who hid off the premises described in the notice as containing four and 555-1000 acres of land for $80,000, claimed that the title to a portion thereof containing 898-1000, of an acre, was defective, moved to he allowed to take title under his purchase to the four and 157-1000 of an acre, and he given a deduction from the purchase-price for the value of the portion as to which the title was defective.

      Held, that the court had no power to grant the application, and that its action in denying it without prejudice to the right of the purchaser to refuse to complete his purchase, or to move for relief and for the return of the percentage paid, with interest and expenses, should he affirmed.
    Appeal from an order of the Special Term, denying a motion of a purchaser at a foreclosure sale to have a deduction made from his bid because of a defect in the title to a portion of the premises, and to be allowed to take title to the residue of the premises sold.

      Myer S. Isaacs, for Isidor Straus, purchaser, appellant.

      Simpson, Thatcher dk Bamum and W. W. Stewart, for the plaintiff, respondent.
   Davis, P. J.:

The purchaser at the foreclosure sale under a decree of this court, who bid off the premises described in the referee’s notice of sale at $30,000, claims that the title to a portion of the premises described (which contained four and acres), being a strip off one side of the same said to contain xVinr an acre is defective, and for that reason he moves that he be allowed to take title under his purchase to the four tWV of an acre with a deduction from the purchase-price, of the value of the strip to which the title is defective. The court denied his motion without prejudice to his right to refuse to complete his purchase or to move for relief from the same, and for the return of the percentage paid, with interest and expenses of searching the title, etc-

We think the Special Term was right in denying the motion. It is well settled that under contracts between parties for the sale and purchase of land by described quantities where material deficiencies are discovered to exist, the purchaser may have, at his election, specific performance as to so much as there be of the land, with compensation by way of damages for the deficiency; and in ■some cases may be compelled to take the title with such compensation. (King v. Knapp, 59 N. Y., 466; Paine v. Upton, 87 id., 327, and cases there cited.) But these cases rest altogether upon the rights and obligations of contract between vendor and vendee of the lands, and the liability that grows out of the breach of contract on the part of the seller to make the purchaser good in damages for any injury sustained by reason of such deficiencies. In judicial sales upon the foreclosure of mortgages there is no such contract between vendor and purchaser to which a court may apply or enforce the equitable principles growing out of the breach of contract and the consequent claims for damages to be adjusted between the parties.

The court that has rendered the judgment and directed the sale of the mortgaged lands entera into no contract with the purchaser at the sale, for a breach of which damages may arise to be enforced against the court. And the officer of the court who makes a sale pursuant to its judgment or decree, makes no contract which imposes any liability or subjects him to any such damages. He is the mere arm of the court by which it puts its decree into execution, subject at all times to its approval or condemnation. A bidder at the sale, to whom the property is struck down by the act of purchase, thereby subjects iimself to the jurisdiction of the court,, and in respect of subject-matter is under its protection and control. The court by its established practice and rules of equity is bound to see that he gets a marketable title to the property fie purchases in accordance with the terms of purchase, and it has power to compel him to complete liis purchase whenever the equity of the case requires it. If it turns out on the reasonable investigation which he is entitled to have made that there is any material defect of title, or material deficiency in quantity or any misrepresentation affecting in material respects the condition or quality of the thing sold, the court has ample power to relieve the purchaser and refund his advances with interest and the reasonable costs and expenses of his examination and motion. But the court will not adjudicate in such case as between parties upon their voluntary contracts, and undertake the adjustment of damages as it may upon the enforcement of such contracts. It has nothing farther to do in the matter than to enforce its judgment by making a judicial sale of the mortgaged property in which it assumes only the exercise toward the purchaser at the sale, of such equitable duties as will enable him to acquire according to and under the terms of his purchase, a marketable title to the property sold, and when it appears that it cannot do that it discharges him from the obligations of his purchase.

To go farther than this would in many cases be likely to lead to great embarrassments and sometimes to gross injustice. The case in hand may illustrate this. Here the purchaser has bought at the referee’s sale between four and five acres of ground at the gross price of $30,000. He finds on searching title that as to about a third of an acre there is a defect of title because some possessor or claimant has not been made a party to the action and so his right or claim is not cut off or barred by the judgment of foreclosure. This probably entitles him to relief from his purchase; but he insists that the court shall allow him to complete his purchase by ascertaining how much is the proportionate value of the strip or parcel to which the title will be defective, and deducting that from the purchase-price of the whole. On its face this has the appearance of justice and equity but that appearance is deceptive; for to-do this is not to execute the judgment pronounced by the court but as to a portion of the mortgaged premises to leave it unexecuted, and to subject the parcel or strip not sold to the unpaid residue of the judgment or mortgage without the consent of the claimant or possessor who is not a party to the proceeding, and also to require the plaintiff to reopen his judgment as to that party and the unpaid portion of his mortgage, and bring him into a new or further proceeding-for the foreclosure of the mortgage as to the parcel not sold. This might be extremely embarrassing as the party so brought in could contest the correctness of the value ascertained on this' motion and contend that his parcel ought not to be subjected to any such proportion of the original mortgage. Equity would, require that he be beard and that bis rights be ascertained and protected, and bence in its desire to do equity to tbe present purchaser the court might produce a state of things that would result in injustice to the plaintiff or to others whose claim to protection may be equally good. We think it will not do therefore to treat the purchasers at foreclosure sales under judgments of the courts as contractors with the court or with the referee or with the plaintiff in the action, and undertake to administer the equities as between them that may be applied in actions for the specific performance of personal contracts.

The motion below was properly denied and the order should be affirmed, with ten dollars costs, besides disbursements.

Brady and Daniels, <LL, concurred.

Order affirmed, with ten dollars costs and disbursements.


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    JAMES R. BOWLES, as Administrator of the Estate of AMELIA BOOSE, Deceased, Respondent, v. THE ROME, WATERTOWN AND OGDENSBURG RAILROAD COMPANY, Appellant.

      Change of place of trial— when an action wül be removed from the Superior Court of the city of New TorJc, in order to change the place of trial for the convenience of witnesses.

    The plaintiff, a resident of the State of Pennsylvania, who had heen appointed administrator of one Boose, by the surrogate of' Orleans county, in which county the said Boose had died from injuries caused by a collision occurring therein upon the road of the defendant corporation, brought this action to recover the damages thereby occasioned, against the said corporation in the Superior Court of the city of New York. The defendant moved to have the action removed from the Superior Court to the Supreme Couit and to have the place of trial changed to the county of Oswego for the covenience of witnesses. All the witnesses on the part of the plaintiff resided in the State of Pennsylvania, except one, who resided in the State of New Jersey. The affidavit of the defendant showed that eight of its witnesses reside-in the county of Oswego, five in Orleans county, one in Onondaga county and two in Monroe county.

      Held, that the motion should be granted.
    That the fact that the plaintiff’s non-resident witnesses could more conveniently come to the city of New York than to the county of Oswego was no answer to the motion.

      Appeal from an order denying a motion to remove this case from the Superior Court to the Supreme Court, and to change the place of trial to the county of Oswego, on the ground of the •convenience of witnesses.

      D. H. Chamberlin, for the appellant.

      A. W. Otis, for the respondent.
   Davis, P. J.:

This action is brought by the plaintiff to recover damages as administrator of the estate of Amelia Boose, deceased, for an injury caused by a collision on the defendant’s road which resulted in her •death. The plaintiff was a resident of the State of Pennsylvania. The defendant is a corporation of this State operating a railroad running through several counties of the western part of the State. The cause of action arose in the county of Orleans, where the injury which caused the death of the plaintiff’s intestate and her death ■occurred, and the plaintiff was appointed administrator by the .surrogate of that county. All the witnesses on the part of the ^ plaintiff reside in the State of Pennsylvania except one who resides in the State of New Jersey. The affidavits on the part of the defendant show that eight of its witnesses reside in Oswego county, five in Orleans county, one in Onondaga county and two in Monroe •county.

The action should not have been brought in the Superior Court ■of the city of New York, nor, if brought in the Supreme Court, .•should the place of trial have been laid in this city. (Code, § 984.) It would seem that the action was brought in the Superior Court for the purpose of depriving the defendant of its right to demand that the trial be had in the proper county as provided by the Code ■(§§ 985, 986). Perhaps the only remedy it had was by this motion to remove the cause to the Supreme Court for the purpose •of changing the place of trial under section 269 of the Code ; and as this motion is made to change the place of trial solely on the ground of convenience of witnesses, it is not necessary to consider whether the defendant could be deprived of the right of demanding a trial in the proper county by the act of the plaintiff in bringing the action in the Superior Court. Under 'the well settled rules of practice the fact that the plaintiff has material witnesses residing in other States, who can more conveniently come to the city of New York than to the county of Oswego, is no answer to the motion. (New Jersey Zinc Company v. Blood, 8 Abb., 147; Canfield v. Lindley, 4 Cowen, 532; Bank of St. Albans v. Knickerbacker, 6 Wend., 541; Peet v. Billings, 2 id., 282.)

These cases were followed in Hill v. Chambers (N. Y. Daily Reg., Dec. 26, 1883), by Mr. Justice Lawrence, in which he said: <£ The convenience of witnesses for the defendant, who reside in the State of New Jersey, cannot be considered in determining this motion.” (N. J. Zinx Co. v. Blood, supra; Center v. Furman, Daily Reg., March 22, 1878.)

The reason of the rule seems to have been that the attendance of the witnesses could not be compelled by the process of the court, and a commission might be necessary to examine them. The plaintiff, therefore, made no answer to this motion because all his witnesses were non-residents of the State, and were not, under the rule just referred to, to be considered at all upon the motion, and because after all allowance for the offer to admit what the witnesses on the part of the defendant would testify to, there still remained quite a number of witnesses who resided at and near the county of Oswego, to which it was desired to change the place of trial. But on looking at the proposed offers of admission, they are not broad enough to meet the facts sought to be proved by the testimony of the several witnesses, and therefore they should not have operated to prevent the granting of the motion.

We think the order should be reversed, and an order made granting the motion to remove the cause to the Supreme Court, and to change the place of trial to^the county of Oswego, and that the costs of the motion below, and of this appeal, should abide the event of the action and be paid to the successful party.

Brady and Daniels, JJ., concurred.

Order reversed and motion granted; costs of the motion below, and of this appeal, to abide the event of the action.