text:
    WILLIAM ANDERSON, Respondent, v. JAMES THOMSON, Appellant.

      Deposit in a sa/sings bank in trust for another — the beneficimy may recover ic from the executor of the trustee, if the executor has drawn it out — such action lies against the executor individually.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury directed by the court.
    The plaintiff was the eldest son of William Anderson, who died August 3, 1873. On January 3, 1870, the said William Anderson opened an account with the Williamsburgh Savings Bank, entitled as follows: “ Williamsburgh Savings Bank, in account with William Anderson in trust for William Anderson, Jr.” He subsequently declared that his intention in so doing was to vest the title in his son. The deceased had also kept another account with the same bank in his own name, beginning in 1853. Up to January 6, 1871, the deposits and interest amounted to $13,290.59 and the drafts to $S,186.98. By the rules of the bank no deposit exceeding $5,000 would be received. On January 3, 1870, he drew $1,000 from the first account and deposited $1,865 in the new account. January 6, 1871, he drew $700 from the first account and on the same day deposited $1,000 in the new account. Both books continued in the possession of Anderson or his executor up to the time of the trial. On the 4th day of February, 1875, there was on deposit to the credit of the second account the sum of $3,437.80. On that day the defendant, who was the sole acting executor of the last will and testament of the decedent, drew from the savings bank the sum of $3,412.80 which he has since retained in his possession. The plaintiff became of age May 3, 1884. Subsequently to that date, and on September 29, 1884, a demand was made upon the defendant by the plaintiff for the payment to him of the said sum of $3,412.80 with the interest, and payment was refused. This action was thereupon brought.
    The court at General Term said: “ The case of Martin v. Funk (75 N. Y., 142) must control on this appeal. The deposit in the bank to the credit of plaintiff’s father, as trustee for plaintiff, must be held in the absence of qualifying circumstances to vest the title in the plaintiff. The grounds upon which defendant seeks to take the case out of the rule, are no stronger than those existing in Mabie v. Bailey (95 N. Y., 206), and there held insufficient.
    “ The declaration of William Anderson, that he put the money in the bank for the plaintiff, was against interest and properly admitted. Other declarations not contemporaneous with the deposits and not against interest were properly excluded.
    “ The fund now claimed being no part of the testator’s estate, defendant was properly sued in his individual capacity and costs, allowed against him as such. Whether these costs can be allowed in accounting before the surrogate is a question we are not called upon to decide.

      “ The judgment should be affirmed, with costs.”

      Benjamin T. Fissam, for the appellant.

      George I. Fox and Joseph A. Burr, for the respondent.
   Opinion by

Pratt, J.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    HENRY B. SHERIDAN, Appellant, v. THE SHERIDAN ELECTRIC LIGHT COMPANY OF NEW YORK, Appellant, and HENRY C. ELLIS and Others, Respondents.

      Right of a stockholder to bring an action against a corporation cmd its officers mis-' appropriating its funds — right of the corporation to appeal from a judgment against the plaintiff — contract by the agent of a corporationi— when he cannot appropriate benefits intended for the corporation.

    This action was brought by the plaintiff, as a stockholder of the Sheridan Electric Light Company, to recover, on behalf of the corporation, moneys which had been received by the defendants Kendrick and Shepard, as its agents, and had been misappropriated by them, with the aid, assistance and concurrence of the other individual defendants, who were officers of the corporation. The corporation was made a party defendant. It did not serve an answer, but upon the trial of the action, when it had passed into the hands of other officers, it appeared and presented objections and took exceptions similar to those presented and taken by the plaintiff, and joined with him in moving for a new trial.

      Meld, that the company had a right, under section 1294 of the Code of Civil Procedure, to appeal from a judgment against the plaintiff, as a party injured and aggrieved thereby.

      Innes v. Purcell (58 N. Y., 388); Valentine v. Myers, etc. (36 Hun, 201), distinguished.
    Kendrick and Shepard were authorized by a letter, addressed to them by the president of the company, to go to Ohio and there form an electric light corporation, to which was to be delegated the right to organize subordinate companies in that State which were to use the patents owned by the New York corporation. The letter provided that “ each company must also purchase, before the licenses are granted, from this company, treasury stock to the amount of five per cent of the capital of such company. That is to say, should the capital stock of a company be $100,000, then such company must purchase and pay cash at par value, $5,000 treasury stock of the Sheridan Electric Light Company of New York, and in the same proportion, be the capital more or less; provided, however, that no single company shall be obliged to purchase more than ten thousand dollars worth of the aforementioned stock.”
    Acting under this authority, a corporation was organized by these agents in Ohio, with a capital of $1,000,000, divided into 10,000 shares of $100 each. By the agreement made by the agents, 3,500 fully paid up shares of the new company’s stock was to be transferred to the New York corporation, and the sum of ten dollars upon each share of $100 of the residue of the stock was to be paid to such New York corporation in cash for the right to use and sell the' electric light lamps and dynamos under its patents. Pursuant to this agreement, the subscribers thereto paid to the agents, for the New York company, the sum of $65,000, of which the agents paid to the New York company the sum of $10,000, and retained the residue thereof under a claim that they were-entitled so to do under the letter sent to them by the president.

      Held, that the claim could not be sustained.
    Appeal from a judgment in favor of certain of the defendants, entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    -51 D. McCarthy, Daniel B. Childs and A. W. Van Wmhle, for the appellants. '

      Lewis Hv/rst, William 2. Safford and A. P. Bates, for the respondents.
   Daniels, J.:

The action was brought by the plaintiff as a stockholder and officer of the Sheridan Electric Light Company, to recover on behalf of the corporation, moneys which had been received by the defendants, Osear C. Kendrick and Earl S. Shepard, as agents of the company, and which it was alleged had been misappropriated by them, with the aid, assistance and concurrence of the other individual defendants. The other individual defendants were officers of the corporation, and had been applied to by the plaintiff to bring this action against the agents ’for the recovery of the money in dispute. . They refused to do so, and were alleged to have colluded with the agents in its misappropriation. Eor these reasons, the plaintiff, as a stockholder, and himself, also an officer of the corporation, brought the action, making the company, as well as the parties designed to be charged, defendants in the suit. And upon this state of facts he was authorized to maintain and prosecute the .action in this form. For where the officers of' a corporation charged with that duty refuse to prosecute an action in a proper case, or the ■corporation itself is under the control of the officers, whose misconduct is to be made the subject of the action, the stockholders, “have a standing in a court of equity to sue in their own names, making the corporation a party defendant.” (Brinckerhoff v. Bostwick, 88 N. Y., 52, 56; Young v. Drake, 8 Hun, 61; Hawes v. Oakland, 104 U. S., 450.)

This action upon the facts alleged was in form at least maintained by this principle. In it the plaintiff was permitted to allege as a ground of recovery the right of action, vested in the corporation. It was to enforce its right, which it was pz-evented frozn doing by the other officers of the corporation, that the plaintiff instituted his suit. And the entire ground of the action was whether the corporation was entitled to recover upon the facts alleged and proved in the case. If it was, then the plaintiff was entitled to maintain his action, and a judgment to that effect should have been recovered in it. The cause of action litigated upon the trial was whether such a right of action as was alleged was made to appear by the proof or not. The verdict in the case was in favor of the contesting defendants. The company, at the time of the trial, had passed into the control of other officers, and it accoz’dingly acquiesced, as far as that practically could be done, in the action brought by the plaintiff, and then concurred with him in the assertion of its right to recover against the defendants. As this right was defeated at the trial, the company, as well as the plaintiff, was entitled to appeal from the judgment and the order denying a new trial, for the allegations contained in the plaintiff’s complaint disclosing the right of action were in legal effect those of the company itself, but which it was not permitted to make, by reason of the misconduct of the other officers of the corporation. And when the verdict was recovered by the defendants, the company was injured and aggrieved by that judgment, if, in truth, a right of action was maintained by the evidence upon the trial. And being so aggrieved, it had, under section 1294 of the Code of Civil Procedure, with or without the plaintiff himself, the z’ight to appeal from the judgment. Such an appeal has been provided for in unqualified language, including any party who may be aggrieved by the judgment or order, provided it shall not have been entered by default. The judgment and order appealed from in this case were neither of them entered by default, but upon a contest made at the trial, to which the company was a party, under the allegations contained in the plaintiff’s complaint.

The right to appeal in this action is distinguishable, by this material circumstance, from the cases of Innes v. Purcell (58 N. Y., 388), Valentine v. Myers, etc. (36 Hun, 201), and others cited by the respondents’ counsel to sustain the objection that the company had no right to appeal from this order and judgment. Those cases relate to mere defaults where the right of the successful party was in no manner contested, and plainly do not include an action of this description. In this case the company as well as the plaintiff himself appeared upon the trial, presenting like points in favor of maintaining the action and taking exceptions to the rulings of the court construing the letter relied upon as a contract, by which both were in effect deprived of the right to maintain the suit. After the judgment was recovered, both the plaintiff and the company joined in a motion for a new trial, and that was denied. So far from there being a mere default in the case, therefore, by the company, it appeared to be on the alert at all points to take advantage of and enforce its rights. It was not necessary that an answer in the action should have been presented by it. That could not at the time for answering be done, because its management and control were subject to the disposition of officers who were hostile to its asserted right. And it was permitted to be brought into court by the individual plaintiff substantially for this reason, as a party in whose favor he asserted the right to have this action maintained. Its rights were the meritorious cause of the action, and when they were defeated by the verdict, it was the party aggrieved by that result, and it was in a situation to question its legality by its exceptions and the motion which was made and also by the appeals which have been taken.

It has been urged in the points of the respondents’ counsel that the plaintiff himself has been stayed by an order made since the trial requiring him to file security for costs, but no statement of that fact has been found in the papers outside of the points which have been presented, and it accordingly cannot be considered as entitled to any effect upon the disposition of the appeals.

The question therefore arises whether, under the evidence as it was given upon the trial, the plaintiff and the company were deprived of the right to maintain the action by any improper rulings made in or by the final disposition of the case. The proof tended to establish the facts that the two defendants, Kendrick and E. L. Shepard, had been empowered by the company to form an electric light corporation in the State of Ohio. Their right to act depended upon a letter addressed to them by Ellis, the president of the company, and dated on the 8th of February, 1882. This letter authorized these two defendants upon certain terms to organize an electric light company for the State of Ohio, to which was to be delegated the right to organize subordinate companies in that State. When the company to be organized by these defendants was incorporated, then the rights secured by the defendant company under patents issued to the plaintiff, were to be vested in such company. And as a partial consideration for the rights and privileges to be conferred upon the company incorporated under the employment of these two defendants, it was provided in this letter that each company must also purchase,, before the licenses are granted, from this company, treasury stock to the amount of five per cent of the capital of such company. That is to say, should the capital stock of a company be $100,000, then such company must purchase, and pay cash at par value, $5,000 treasury stock of the Sheridan Electric Light Company of New York, and in the same proportion, be the capital more or less; provided, however, that no single company shall be obliged to purchase more than $10,000 worth of the aforementioned stock.”

These two defendants under their authority proceeded to organize a corporation at Cleveland under the laws of the State of Ohio-. By the proposals under which that organization was finally effected, the company so to be organized was to pay thirty-five per cent of its shares of $100 each, as fully paid non-assessable stock, to the order of the Sheridan Electric Light Company. And upon the residue of its stock ten dollars a share, of $100 each, was to be paid “ as purchase-money for the right to use and to sell in and through the State of Ohio the electric light and lamps and dynamo machines for electric light under the patents and assignments now held by the said Sheridan- Electric Light Company of New York, as well as all future improvements in the same.” This proposition was accepted by persons residing at Cleveland, in the State of Ohio, ■who agreed “ to pay to the order of the said Sheridan Electric Light Company of New York, on or before the several dates specified in section 4 of this article of agreement, the respective sums subscribed hereto by us and set opposite our names.” These sums included $5,000 for each of the subscribers, making in all the sum of $65,000. Of this sum $10,000 was paid by these agents to the New York Electric Light Company, and the residue was appropriated to their own use. Persons who paid portions of the money were examined as witnesses in the action and testified that their payments were made to these two defendants (one of whom, however, was not served with the summons in the action), for the New York Eleetric Light Company. The payments were made in checks or drafts payable to the order of the company. And under the authority and indorsement of its officers, the money was drawn upon the checks or drafts, and the excess over the $10,000 paid to the company was retained and appropriated to their own use by the two agents. They, as well as the other defendants, through whose acts they were enabled to make this appropriation of the money, insisted upon their right to do so under the letter of February 8, 1882, and before that was done negotiations were made between the agents and two of the officers of the company, under which the right to use this money in this manner was supposed to have been derived. But these negotiations did not extend the right of the agents to the moneys beyond that derived under the letter of the eighth of February. "What the agents asked for was a paper or acknowledgment “guaranteeing to us the excess in cash and stock over and above the contract stipulated.” This letter was accompanied with the form of an agreement, which it was desired should be signed, by which the officers of the company should “ promise and agree that for all excess on all checks, drafts for money and certificates of stock, drawn to our order, or issued in our name, over and above the amounts in kind stipulated in the contract of February 8, 1882, mentioned above, we will at once, upon receipt of the same, remit such excess to the order of the said O. C. Kendrick and E. L. Shepard, as properly and of right belonging exclusively to them.” And this resulted in securing an answer from the newly elected president of the company, in which it was stated that the contract made with you on the eighth of February specifies the amount to be paid this company, any excess, whether in stock of this company or in cash or stock of branch companies, belongs to you, and should the same be received by us it will be immediately transferred to you.”

The right of the agents to the moneys obtained upon the acceptance of their proposal, and the organization of the company at Cleveland, must accordingly depend upon the letter of the 8th of February, 1882, and the portion of the letter defining that right has already been given. By this part of the letter, the Sheridan Electric Light Company was declared to be entitled for the purchase-price of its treasury stock, to be purchased by the new company, to the sum of $5,000, on $100,000 capital of the company so to be newly organized, and in the same proportion, whether the capital should be more or less than this sum, but the company to be organized was not obliged to purchase more than $10,000 worth of such treasury stock. The company, which was organized through the action of these agents, was incorporated on the basis of a capital of $1,000,000, divided into 10,000 shares of $100 each. And the moneys which were paid by the subscribers, amounting to this sum of $65,000; were paid for the purpose of making the organization, and deriving the rights and privileges proposed to be secured through the offers made by the agents. They did accordingly pay to these agents more than the sum of money which the Cleveland company, on the basis of its capital, were obliged to pay under the terms of the letter of the eighth of February, and all that payment under; the evidence was made for the benefit of the Sheridan Electric Light Company. It was obtained from the subscribers under the authority which this company had permitted these agents to exercise, and having obtained it in that manner, they could not defeat the right of the company to the money by objecting that they had secured more from the Cleveland company than it was, as a matter of fact, obliged to pay. But whatever they obtained under the authority with which they had been invested, over and above what they were permitted to retain for their own services, belonged to the Sheridan Electric Light Company. The agents ■could not take advantage of their employment and authority to obtain the money of the subscribers organizing the Cleveland company in this manner and then withhold it from the Sheridan Electric Light Company. They acquired it by virtue of their position and in their relation of agents to this company. And whatever they secured in that manner, even if it exceeded what by the language of the letter they were obliged to insist upon, belonged to the principal, for an agent will not be permitted to make a profit out of the authority conferred upon him by his principal, and withhold the advantage from the principal. The amount which was to be paid to the principal in this case was the five per cent received, whether on more or less than the sum of $100,000, for that is what is specified to be payable to the company by the letter of the eighth of February. And the agents were not relieved from making the payment because the Cleveland company, or the associates organizing it, were not obliged to have paid more than the sum of $10,000. It was the excess beyond the amount so made payable to the Sheridan Electric Light Company, whether in cash or stock, that the agents were permitted to retain. They did retain that, and also the sum of $55,000 obtained from the associates of the Cleveland company.

The court at the trial held that the Sheridan Electric Light Company was entitled to no more than the sum of $10,000 in any event under the letter of the eighth of February. To that both the plaintiff and the company excepted, and the exceptions so ■taken were urged upon the consideration of the court as grounds for a new trial in the action. These exceptions seem to have been well founded, and both the judgment and the order denying a new trial should be reversed, and a new trial ordered, with costs to abide the event.

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

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


text:
    FRANCIS DELAFIELD and Others, Plaintiffs, v. JAMES BRADY and Others, Defendants.

      Conveyance of land by a wife, living apart from Tier Tmsband under a decree of a court of chancery — section 38 of 3 1levised Statutes {6th ed), 1145, relative to acknowledgments by married women, is not applicable — by whom an olyeetion to the sufficiency of the acknowledgment must be taken.

    February 17, 1834, a decree was entered in an action for a separation, brought in. the court of chancery by Rosanna S. Pool against her husband, which directed that “ all authority and control of the defendant over the person and estate, present or future, of the said complainant, should cease and be forever divested and null. That all the estate! right and title, interest, claim and demand whatsoever of the said defendant, his heirs, executors, administrators or assigns, of, in, and to the property, estate, real and personal, choses in action or earnings belonging to, or which shall or may come, descend to, or accrue or be vested to or in the said complainant, shall also cease, he divested and become and continue forever null aud void, in the same manner as if the said parties had never been married. ” The plaintiffs in this action claimed title to certain real estate, conveyed to the said Rosanna on March 38, 1843, making such claim under a deed executed^ by her on March 16,1846, while her husband was alive, the certificate of acknowledgment to which did not state that she had acknowledged it on a private examination, apart from her husband, and executed it freely, without any fear or compulsion by him, as required by section 38 of 3 Revised Statutes (6th ed.), 1145.

      Held, that the fact that the wife was living apart from her husband, under the said decree, rendered the said statute inapplicable to her case, and that no such separate acknowledgment was required.
    That, as the statutory provision was made for the exclusive benefit of the wife, objections to the sufficiency of the acknowledgment could only be taken by the wife or persons claiming under her, and not by strangers to her title.
    Motion by tbe defendants for a new trial upon exceptions ordered to be beard in tbe first instance at tbe General Term.

      John Townshend, for tbe defendants.

      Herbert B. Turner, for tbe plaintiffs.
   Daniels, J.:

Tbe action was ejectment to recover tbe possession of two lots of ground, situate at tbe corner of Eiftb avenue and One Hundred and Nineteenth street, in tbe city of New York. Tbe plaintiffs derived tbeir title through a deed executed by Rosanna Seaman Pool to Edwin A. Johnson, on or about the sixteenth of March, in the year one thousand eight hundred and forty-six. She was at the time of the execution and delivery of this deed the wife of Charles Pool,, but the certificate of its acknowledgment did not state that she had acknowledged it on a private examination apart from her husband, and executed it freely without any fear or compulsion of him, as that was provided for by the statute of the State, at that time in force (2 R. S. [6th ed.], 1145, § 28), and which continued to be the law until it was repealed by chapter 300 of the Laws of 1880. But before this deed was either executed or acknowledged, an action had been prosecuted by her against her husband, in the Court of Chancery, for a separation, and that action resulted in a decree in her favor on the 17th of February, 1834. By that decree it was directed that “ all authority and control of the said defendant over the person and estate, present or future, of the said complainant, do cease and be forever divested and null. That all the estate, right and title, interest, claim and demand, whatsoever, of the said defendant, his heirs, executors, administrators or assigns, of, in and to the property, estate, real and personal, choses in action'or earnings belonging to or which shall or may come, descend to, or accrue or be vested to, or in the said complainant, Rosanna S. Pool, shall also cease, be divested and become and continue forever null and void in the same manner as if the said parties had never been married.”

As the law at that time stood, this direction was within the power and authority of the Court of Chancery, for the statute had provided that in decreeing a separation between a husband and his wife the court might make “ such further decree as the nature and the circumstances of the case may require.” (3 R. S. [6th ed.], 158, § 67.) And that has been held to authorize such a direction as was made by the vice-chancellor in this decree (Van Duzer v. Van Duzer, 6 Paige, 366, 368), where it was held that “ the court may, upon a dissolution or permanent suspension of the marriage contract, restore to the injured wife the whole of her property which has not already passed into the hands of bona fide purchasers.” {Id., 368.) And this rule was followed in Meehan v. Meehan (2 Barb., 377), and Holmes v. Holmes (4 id., 297).

The property conveyed by this deed was within the terms, as well as the protection of this provision of the decree, for her title was acquired to it by a conveyance to her on or about the 28th of March, 1842, and from it, and from all interest in it, or control over it, the husband of this grantor was consequently excluded. It had become her property in the language of the decree, in the same manner as if these parties never had been married, and that entitled her to dispose of the property the same as though she had been in fact a feme sole.

The object of the statute requiring the acknowledgment of a deed executed by a married woman to be made on a private examination, apart from her husband, was to ascertain the fact that the deed was executed without any control or compulsion on his part. It was enacted for the protection solely of the wife, and in place of the more cumbrous and complicated proceeding, by fine or recovery sanctioned and sustained by the common law. In those cases care was taken to obtain precisely such an acknowledgment from the wife before they could be rendered effective in the disposition of her property. And where that acknowledgment was in that manner obtained, the common law permitted the conveyance of her property. This was changed in this State as early as the year 1771, and since that time this proof and separate examination before the officer taking the acknowledgment was substituted and continued until it was finally dispensed with by the act of 1880. (Albany Fire Ins. Co. v. Bay, 4 Comst., 9, 13, 15.)

The reason of the statute, therefore, was applicable only to cases-where the wife, at the time of the execution of the deed, was subject, or might be subject, to the control or compulsion of her husband. It did not reach or include a case where the wife had been permanently separated from him by the interposition of the courts under the authority of the statute, for there she could not be subject to his power or control, or stand in fear of him, and she would not be within the mischief intended to be provided against by this enactment of the statute. And not being within the mischief or reason of the act, she would not be within the act itself, although the language was broad enough to include this specific case. This statute, and that relating to the power of the court over the property and earnings of the wife through a decree of separation, may well be considered together, for by the authority which the Legislature conferred upon the Court of Chancery, the wife was capable of being wholly relieved from the control, fear or influence of her husband, and in the disposition of her property invested with the powers of an unmarried female. The effect of the exercise of this authority was so far to remove the restraints of her marriage and to relieve her from its consequences and effects, and from that time to create her, for the purposes of the acquisition, enjoyment and disposition of property, an unmarried woman, and thereby to take her out of the requirements of the statute, providing for this private examination apart from her husband.

A point similar to this was considered in Taylor v. Meads (34 Law Jour. [N. S. Chy.], 203), and it was held that where property is separately secured to the wife, free from the control of her husband, she may dispose of it by deed or will as though in fact she was sole and unmarried. And Pride v. Bubb (L. R., 7 Chy. App., 64) sustains the same view. It was one of the purposes of the decree to place the grantor in this deed in this precise relation to the property which might be acquired by her after the entry of the decree. That was conclusive between herself and her husband, and persons claiming under her, for it completely annulled and obliterated his authority over her and the property so acquired by her. She was no longer within the spirit or design of the statute, requiring a private examination apart from her husband, but under the other provision of the statute she was given the same rights of acquisition, enjoyment and disposition of her property, as though in fact she was unmarried, and that empowered her to execute and deliver the deed without complying with the formality; that she executed it freely and without any fear or compulsion of her husband. The fact appeared, from the circumstance that she did so execute the deed, for she was living separately and apart from her husband with this dominion secured to her over her property, and it would have been the merest form imaginable to require from her the statement that she, in fact, did execute the conveyance freely and without any fear or compulsion of her husband. The facts themselves conclusively exhibited that to be the case, and her conveyance should not be permitted to be defeated because a formal and useless certificate of the fact was not also appended to the deed.

This provision of the statute was made for the exclusive benefit of the wife to prevent her from being controlled in the disposition of her property, by her husband, and secured to her the right of acting with complete and perfect freedom in the disposition of her property rights. And if she did not, but on the contrary acted under the compulsion of her husband, it' was for her benefit that the provision was made that her estate should not pass without this acknowledgment. She, and those claiming under her, might, where this certificate was required to be made, and not in fact made, reclaim or recover the property, attempted to be conveyed without it. But neither of the two defendants, against whom the verdict was directed, stand in this relation to this property. The defendant Brady, who was in its possession, was there under a lease executed to him by John Townshend on the 15th of July, 1874., The only title which the lessor appears to have acquired was by virtue of a deed executed to him by Bushnell Stevens on the 30th day of October, 1868. The grantor in this deed is not shown to have acquired any right or interest to the property under Mrs. Pool, or any party claiming to derive title through her deed or otherwise. The other defendant, Lockwood, was made a party as a claimant in reversion, or by way of remainder under the authority of section 1503 of the Oode, and had no greater interest. He derived his title in part under a deed executed to him by William A. Cunningham on the. 21st of November, 1882, and in part under Robert L. Roe, the grantee of J ohn Townshend. These parties were all strangers to the title, apparently claiming the property adversely to it, and they were, therefore, not in a position to object that Mrs. Pool had not parted with her title to the property by the deed executed and delivered by her, and for a valuable consideration to Johnson. They stood in no privity with her or with either of the persons through whom the plaintiffs derived their title to this property, and were not in a condition to defeat that title by means of this informality, if in fact it was such, in the execution and delivery of this deed. The law certainly will not tolerate a mere stranger, without right, in seizing and taking possession of the property of others where his power to do so is exclusively dependent upon a mere informality in the legal title to which no person through whom it has been derived, or through whom it may hare passed, has presented the slightest objection. As long as no actual claimant of the title, representing the person executing the deed, without strict conformity to tbe law, denies the right of the grantee, mere strangers should be precluded from presenting the objection.

It is not important to inquire for the complete disposition of this motion, whether the will, which was executed in January, 1859, by Mrs. Pool, became a legal instrument for - the disposition of the title to any of her real estate, for it is sufficient for the disposition of this case that the deed executed by her was operative and effectual as a conveyance of the title to the land in controversy. The motion made for a new trial should be denied and judgment directed in favor of the plaintiffs upon the verdict.

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

Motion denied and judgment ordered for plaintiffs on verdict.


text:
    JENNIE E. RICHARDSON, Appellant, v. MARY ANN TRIMBLE and Others, Respondents.

      Judgment creditor’s action — when the debtor may attach the judgment as obtained through fraud.

    This action was brought by the plaintiff, as a judgment creditor of the defendant, Mary Ann Trimble, to set aside as fraudulent the conveyance of certain real estate made by her to the other defendants in the action. The judgments were recovered by the plaintiff, upon coupons attached to bonds issued by the defendant, Mary Ann Trimble, in 1869, payment of which was secured by a mortgage upon the Trimble Opera House, in the city of Albany. Both of the judgments were recovered by default; one December 16, 1880, for coupons falling due in November, 1870, and November, 1871, and the other on January 22, 1881, for coupons' falling due on November 1, 1874. In November, 1869, the defendant Trimble leased the opera house to one Barnes 'for eleven years, and agreed to sell and convey the property to him. In 1872 Barnes assigned the lease and contract to the husband of the plaintiff. Both Barnes and the plaintiff’s husband agreed to pay all the bonds and coupons. In 1872 the defendant Trimble conveyed the opera house to one Leland.
    The defendant Trimble claimed that she was induced by the persuasions and fraud of Kichardson, the plaintiff’s husband, to permit the judgments above mentioned and other similar judgments to be recovered against her so as to enable the plaintiff to proceed against the opera house property by the foreclosure of the mortgage; that the defendant, who was in feeble health, and of advanced age, did not then know and remember that the said coupons had been, prior to that time fully paid, and that she had been fully released and discharged from all claims and demands by Richardson. It appeared that, in an action brought, to foreclose the mortgage, it had been found as a fact that the said coupons had been in fact fully paid and discharged, and they •were conceded to have been so paid by the plaintiff’s attorney upon the trial of this action.

      Meld, that it was proper for the court to admit the evidence of these facts, and upon the establishment of the truth of the defense set up in the answer, to vacate the judgments and direct a judgment to be entered in favor of the defendants herein.
    Appeal from a judgment recovered on a trial at Special Term.

      W. W. Gooh, for the appellant.

      Aug. B. McMahon, for the respondents.
   Daniels, J.:

The action was brought by the plaintiff as a judgment creditor of the defendant Mary Ann Trimble, to set aside as fraudulent the conveyance of certain real estate, made by her to the other defendants in the action, to be paid for by her future support and maintenance. To resist the action, on their part, it was alleged that the judgments were fraudulently recovered, and they were so found to be by the learned judge presiding at the Special Term, and judgment was accordingly directed for the defendants, denying the relief and vacating such judgment. At the commencement of the trial the objection was taken to the admissibility of any evidence tending to establish the truth of the allegations contained in the parts of the answers in which these judgments were in this manner assailed. But it has become an established rule, settled in the administration of justice, that where a judgment has been fraudulently obtained, it may either be set aside by an action brought for that object, or the judgment itself may be defeated by a defense to any legal proceeding taken upon its authority. If any doubt could have formerly existed upon that subject, it has been removed by the provisions of the present, as well as of the preceding, Code. (Mandeville v. Reynolds, 68 N. Y., 529.)

The two judgments were recovered by the plaintiff upon coupons, attached to instruments in the form of bonds, issued by the defendant Mary Ann Trimble in the fall of 1869. There were 240 of these instruments, in part for the sum of $100 each, and in part for the sum of $500 each, with yearly warrants or coupons, including interest attached to them. The coupons upon which the first judgment was recovered, being for the payment of interest and a proportion of the principal of the debt, became due in November, 1870, and November, 1871, and the coupons upon which the other judgment was recovered became due on the 1st of November, 1871. One of these judgments was recovered on the 16th of December, 1880, and the other on the 22d of January,. 1881, and they were each recovered by default for want of answers. The instruments to which the coupons were attached, together with all the others issued by the defendant Trimble, were secured by a. mortgage upon what was known as the Trimble Opera House, in the city of Albany. This mortgage was executed and delivered, for the benefit of the persons holding the bonds, by the defendant. Trimble, to William H. Taylor, Charles E. Leland and Paul Cushman, as trustees, and the property seems to have been of sufficient value to pay the indebtedness, together with the interest accruing upon it.

Early in November, 1869, the defendant Trimble rented the-opera house to Lucien Barnes for the term of eleven years, and also agreed, in writing, to sell and convey the property to him.. As a part of the consideration for the agreement, he covenanted with her to pay all of these obligations, with the accompanying-coupons. In May, 1872, Aaron Richardson, the husband of the plaintiff, acquired this lease and contract of sale, and in like manner agreed to pay the same indebtedness, and in December, 1872, the defendant Trimble conveyed the -opera house to Warren E. Leland. By her answer, it was alleged that the coupons, upon which judgments had been recovered, together with the other obligations entered into by her and secured in this manner, had been fully paid. And the evidence which was given upon the-trial so conclusively established the fact of their payment, that after it was concluded, it was conceded by the plaintiff “ that the effect and result of the testimony produced is to prove the facts alleged in the third and fourth separate defenses in the answers herein.” But the plaintiff did not concede the validity in law or equity of' such defenses. It was also made to appear that on the 5th of March, 1875, and after the coupons upon which the judgments-were recovered had become due, that a release was mutually executed by the husband of the plaintiff, and the defendant Trimble, ■and others, releasing each other from all demands, except the claims of the defendant Trimble against Barnes. The coupons which had matured previous to that time were paid either by Barnes or Richardson, under the obligations respectively assumed by them in the lease and agreement for the sale of the property and its acquisition from Barnes by Richardson. And they were therefore not only paid in fact, but released as well by this instrument. At the time when the actions were brought against the defendant Trimble for the recovery of the amounts for which the coupons had -been issued, with interest upon them, they had accordingly been fully paid and satisfied, and no right of action whatever existed in favor of the plaintiff, who probably acquired them from her husband, against the defendant Trimble, upon these coupons. Both by the fact of payment and through the effect of the release, she ■had an undoubted defense against the claim of the plaintiff in each of the actions in which the judgments were obtained.

But her allegations are, in the third and fourth subdivisions of her answer, that she was induced by the persuasion and fraud of Richardson, the plaintiff’s husband, to permit these and other similar judgments to be recovered against her, to enable the plaintiff ■to proceed against the opera house property, which had then passed ■into the hands of Charles E. Leland, and appropriate it to the payment of these alleged debts. The object seems to have been to recover judgments upon these obligations against the defendant 'Trimble, and upon their foundation to enforce the mortgage given for their security against the opera house property then held by Leland. In this unlawful enterprise the evidence showed that Richardson acted on behalf and under the authority of the plaintiff in this action. The defendant then was, as the fact has been alleged in the third subdivision of her answer, and admitted by the concession made at the close of the trial, “in feeble health, and of .advanced age, and because of her age and infirmities, and that she had transacted nearly all the matters relating to said securities by •attorneys, instead of personally; she had wholly forgotten that said Richardson had released and discharged her from all claims and •demands against her as hereinbefore alleged; that years before she had parted with all her title to said property, and the only concern she had therewith was a desire that the said obligations incurred by her upon the credit thereof should be paid thereout, if any of such obligations were still unpaid.” It was also alleged in the third and fourth subdivisions of the answer that Richardson, who was the real plaintiff in and directed and controlled all the actions in which the judgments were recovered, fraudulently represented to the defendant Trimble, and to her agent and attorney for her, that he was the owner of a large number of the obligations, with their coupons, secured by the mortgage; that they never had been paid either by Barnes or Warren F. Leland, to whom the property had been conveyed, or any other person, who had become bound to pay them.” “ And that said persons designed and intended to defraud him, the said Richardson, of the amount of said obligations held by him, and to procure to be .made, and to make, a satisfaction and discharge of the said mortgage given by this defendant to said trustees, to secure the payment of said obligations, and thereby prevent a resort by said Richardson under said mortgage to said opera house.” It was also averred that he stated and represented “ that he did not make, and would not make, any claim against her personally upon said obligations, or any thereof; that all claim against her, upon many thereof, was barred by the statute of limitations, but that she should and in conscience ought to assist him as far as possible in enforcing his claims on said obligations against said property.” And “ that she need not, and ought not, to defend said actions, as he would never charge her personally with the judgments recovered in said actions, if any, or enforce, or allow to be enforced against her personally, any such judgments.” It was further averred that the defendant Trimble “ was wholly ignorant of the falsity of said Richardson’s statements and representations to her hereinbefore set forth at the time they were made, and implicitly believed the same to be true; that at said time she had wholly forgotten and was ignorant of the fact that said Richardson had released and discharged her from all claims and demands.” It was also stated in the answer that on or about the 12th of July, 1880, Charles E. Leland, for a valuable consideration paid to him by her, “promised and agreed to indemnify and save her harmless from any and all liability in •every respect, and to the same extent as the said Warren E. Leland, 'was then bound to indemnify and protect her, and did further •covenant and agree to and with this defendant, that he would save and indemnify and protect her from any and all claims, demands and liabilities, upon any and all of said obligations and coupons made by her, and that he would pay and discharge such thereof as might be legally due and payable, and defend at his own cost and •expense any and all suits and proceedings against her thereon or upon any thereof.” This agreement it was alleged was procured for the benefit of the plaintiff’s husband, and was soon after-wards delivered to him, and that it was after that that the suits •were brought against her in which these and other judgments were ■recovered by her. The evidence upon the trial tended very directly to prove the truth of all these statements, and upon its effect the -concession already mentioned was made on behalf of the plaintiff and that concession placed these facts beyond controversy as established in the case. (Greentree v. Rosenstock, 61 N. Y., 583, 591.)

After these representations had been made and the defendant Trimble had been induced to rely upon them and some of the judgments had been recovered, an action was brought in the name of Paul Cushman, one of the trustees, to foreclose the mortgage upon the opera house, in which it was alleged in the complaint that a portion at least of the instruments and coupons made by the defendant Trimble remained unpaid, and demanding judgment that the prem ises or so much thereof as may be sufficient to raise the amount due upon the obligations and coupons secured by said mortgage for principal and interest, and the costs of this suit, and which may be •sold separately without material injury to the parties interested, may ■be decreed to be sold according to law.” To this action the present plaintiff, her husband, the defendant Trimble and others, were made •defendants, and in it the proof appears to have shown that this defendant, at the instance of Richardson, served an answer alleging, after making a statement of eight different judgments recovered against her, and probably including the two upon which this action has been brought, that all said judgments are due and unpaid and this defendant claims that the amount thereof should be paid from the proceeds of the sale of the premises in said complaint described.” And in making that demand she was entirely right if her obligations upon which the judgments had been recovered still remained unpaid or undischarged. But upon the trial of that action, it seems from the judgment in it to have been proved that these obligations had all been paid, and the referee to whom the trial of the issues in it was referred, held that said coupons were not, nor were any of them, at the commeneement of this suit, a valid or legal indebtedness against the defendants Mary A. Trimble and Charles E. Leland, or either of them.” And all other suits for them were directed to be restrained and enjoined in the final conclusion of the referee.

This judgment was objected to as evidence, upon the trial, of this action, and an exception was taken to the ruling of the court, allowing it to be used as such. But this exception has no legal foundation to stand upon, for the judgment was admissible certainly to prove the fact that Richardson had been defeated in the object which he represented to the defendant Trimble it was bis sole purpose to secure. And in that manner a motive had been supplied for diverting these judgments from the object which he represented it was his sole purpose to accomplish by means of them, to their enforcement as legal obligations against the defendant Trimble and her property. It was also admissible, as these persons were all parties to that action, to show the ground upon which it had failed, and that this ground was the payment and satisfaction of the demands alleged to still exist as its foundation. But even if it should not have been admitted, as the.final concession made included this fact of payment, and established it beyond controversy, the roll itself was entirely harmless, and added nothing to the force of the case made in behalf of the defendants.

The agreement already stated under which the judgments were recovered by the plaintiff against the defendant Trimble, so far controlled their effect as to prevent the use which the plaintiff now endeavors to make of them as legal obligations. The agreement was, so far, entirely lawful, as it was made between Richardson, acting on behalf of his wife, and the defendant Trimble and her attorneys. (Briggs v. Law, 4 Johns. Ch., 22; Springsteen v. Power, 3 Robt., 483; Moses v. McDivitt, 88 N. Y., 62.) And that this use of the judgments to be recovered was intended to be restrained and prevented, not only appears by the proof and the concession of the plaintiff, which have already been mentioned, but further and beyond that, by a letter proved to have been in the handwriting of Richardson, although not signed by his name, written to her daughter* Mrs. Cole, who is one of the defendants, and in which he said:

Dear Madam. — I write this to inform you that your mother need not feel uneasy about the suits that have been commenced against her, as the parties have no wish to injure her or you either, but will do anything to satisfy you or her of their good intentions. You or her, with any true friend, can call on Mess. Lindleys or Mr. F. L. Hall, and you can get undoubted guarantees that they will not harm her, but will try to help her get what belongs to her. You know well that your mother was cheated out of the Trimble Opera House by the Lelands, and there is nothing to be gained by acting with them against her own interest. You can rest assured that the parties do not intend any harm to your mother.

FROM A FRIEND.

After placing the defendant Trimble, as well as the other defendants, in this position, by the representations and agreement which were made, and under which the judgments were permitted to be recovered, the law will not allow the plaintiff to enforce them against the defendants, in violation of such representations and agreement.

To allow that to be done would be to permit a fraudulent use to be made of these judgments. For fraud, “ in the sense of a court of equity, properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.” (1 Story’s Eq. Jur. [5th ed.], § 187.) And this rule has, in effect, been applied to a judgment recovered by one party against another. For it has been held in chancery that relief will not only be given against a judgment at law, on the ground of its being contrary to equity, when the defendant has been prevented from availing himself of his defense by fraud or accident, but also where that has been prevented by the act of the opposite party unmixed with negligence or fraud on his own part.” (Foster v. Wood, 6 Johns. Ch., 87; 2 Story’s Eq. Jur., § 887.) And this rule was expressly sanctioned in Dobson v. Pearce (2 Kern., 156, 165), and to the same effect is Reigal v. Wood (1 Johns. Ch., 402); Warner v. Blakeman (4 Keyes, 487); Mather v. Parsons (32 Hun, 338); Shedden v. Patrick (28 Eng. Law and Eq., 56); United States v. Throckmorton (98 U. S., 61). In Huggins v. King (3 Barb., 616) the plaintiff, in an action for a good consideration, agreed to discontinue it, but in violation of his agreement toot judgment against the defendant, and that was held, under the circumstances, sufficient to justify the conclusion that the judgment was fraudulent in its character. The case of Engel v. Scheuerman (40 Ga., 206) is also a decisive authority in favor of the defense made to this action. There a judgment had been recovered in the State of Georgia for $5,000, which had been paid. While that action was pending a suit in this State was brought for the same demands. The plaintiff in both actions led the defendant to believe that the suit here would be abandoned as the result of the payment, but he afterwards proceeded in it to judgment, without an opportunity for the defendant to obtain his proof. This judgment was held, in the action afterwards brought to restrain its collection, to be inequitable, and against conscience, and its collection was accordingly restrained by the court. And in Farrington v. Bullard (40 Barb., 512, 518), a similar view was taken of the law, although it was held to be inapplicable, in the disposition of that case as it was then before the court.

As the facts have been proved and established in this case, it was one which not only justified, but pre-eminently required, the application of this equitable principle. The defendant Trimble had been imposed upon by the plaintiff’s husband, acting in her behalf, and under her authority, in the recovery of these judgments against her. And no case of greater injustice could well be imagined than would exist if this court should now permit these judgments to be used in the manner in which the plaintiff has endeavored to use them against the defendant Trimble and her grantees. It would be harsh, unjust and oppressive to allow the plaintiff, in violation of the agreement made and of the representations- acted upon, to maintain her action for the collection of these judgments out of the property of the defendant against whom they were recovered. The authorities, to which reference has been made, will not permit that to be done, even if the court without them could so far forget its own sense of justice and right as to allow that result to be accomplished. No other objection taken to this judgment deserves consideration. It was entirely correct, and it should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALEXANDER H. REAVEY, Appellant.

      Larceny — what constitutes the crime under sections 538 and 581 of the Penal Code— sufficiency of the allegations of the crime in the indictment — what allegations are required as to the jury finding the indictment— duty of the district attorney to elect upon which count he will proceed — what discrediting questions map be put to defendant on cross-examination — charge of the judge — as to the effect of the evidence of good character — as to a case of conflicting testimony — as to duty of the jury in a case of reasonable doubt — motion for a new trial.

    The defendant was convicted of larceny in the second degree in obtaining money by means of false pretenses. The defendant, an attorney, had been employed by the complaining witness to obtain a divorce from her husband. By representations made from time to time, as to the progress of the action, he procured from the witness various sums of money, each less in amount than twenty-five dollars, and finally the sum of $165, upon the representation that a decree had been obtained, which the judge had still to examine. In fact nothing had been done in the action beyond issuing a summons which had never been served, of which facts the defendant was well aware.

      Held, that these facts justified a conviction of larceny in the second degree under sections 538 and 531 of the Penal Code.
    The indictment alleged that the defendant obtained from the witness “ the sum of $375 in money, lawful money of the United States, and of the value of $375 of the proper moneys ” of the witness, and that he “ did feloniously obtain the said sum of money of the proper moneys, goods, chattels and personal property ” of this witness.

      Held, that the money was sufficiently described in the indictment to satisfy the requirements of the Code of Criminal Procedure.
    The Code of Criminal Procedure does not require the indictment to show that the grand jury was drawn or sworn. It is sufficient if it state that the grand jury of the county in which the indictment was found accuse the defendant of the crime alleged in it.
    Whether or not the district attorney shall be compelled to elect upon which of two charges, for different grades of the same offense, he will proceed, rests in the discretion of the trial court, and an error in its exercise will not justify a reversal of the conviction.

      Upon the cross-examination of the defendant, who had been examined in his own behalf, it was shown that he had been suspended by the action of the Supreme Court from his office as an attorney andlcounselor.

      Meld, that this was proper, as it tended to affect his credit as a witness, inasmuch as the order would not have been made without satisfactory proof of professional misconduct on his part.
    The charge and refusal of the court to charge, as to the effect of evidence bearing upon the good character of the defendant, considered and approved.
    There was a direct conflict between the evidence of the defendant and that of the complaining witness, and of at least one other witness who testified. The court was requested to charge that, if any witness had willfully perverted the truth, they could disregard the whole of the testimony of such witness. The judge charged: “Yes, I do not charge it as a matter of law, but the jury have a right to consider the whole testimony; you have a right to do so, gentlemen, but I cannot instruct you, as a matter of law, upon that point, that you must do so.”

      Meld, no error.
    After the judge had repeatedly directed the jury that if they entertained a reasonable doubt as to the defendant’s guilt, he was entitled to a verdict of acquittal. He was asked to charge that, to justify a conviction, “ the evidence must exclude, to a moral certainty, every hypothesis but of guilt, and be consistent with all the facts.”

      Meld, that it was not error to refuse to so charge.
    Upon a motion for a new trial an affidavit was read, stating that one of the jurors in attendance, but who was not drawn for this trial, was engaged in conversation with the complaining witness, and that the defendant supposed and believed that the conversation related to him; that, after the conversation was terminated, this juror crossed the court-room and engaged in conversation with another juror, who acted as such upon the trial.

      Meld, that the motion was properly denied.
    Appeal from a judgment of tbe Court of General Sessions of the county of New York, convicting the defendant of the crime of larceny in the second degree, and from an order denying a motion made for a new trial.

      A. Suydam, for the appellant.

      Delaney Nieholl, assistant district attorney, for the respondent.
   Daniels, J.:

The defendant was convicted of the crime of larceny in the second degree for obtaining money by means of false representations or pretenses, as that offense has been defined by sections 528 and 531 of the Penal Code. He had been employed by the complaining witness to obtain a divorce for her, dissolving her marriage with her husband, and from time to time represented to her that the action was in different stages of progress, and finally thaj; he had obtained a decree, which the judge still had to examine, and upon that required from her a further payment, which he received, of the sum of $165. The other payments which were made were in small sums, neither of them exceeding the sum of twenty-five dollars, and, as the jury found him guilty by their verdict of the crime of grand larceny, it must have been for obtaining this sum of $165 upon this representation. The representation itself, as well as the others made by him concerning the progress of the action, were false, and must necessarily have been known to him to be so. For while a summons had been issued in the action for service, it never had been served, no suit had in fact been commenced, and the complaint, which was at some time drawn, was never verified. There was, accordingly, sufficient proof upon which the defendant could be convicted under these sections of the Code, as well as the general principles of law applicable to this class of cases. (People v. Baker, 96 N. Y., 340.)

It has, however, been urged upon the argument of the appeal that the indictment did not sufficiently describe the money, which it was averred had been obtained by means of the pretenses made use of,-from the complaining witness. The averment is that the defendant obtained from her “the sum of two hundred and seventy-five dollars in money, lawful money of the United States, and of the value of two hundred and seventy-five dollars, of the proper moneys,” etc., of the complaining witness, and that he did “ feloniously obtain the said sum of money of the proper moneys, goods, chattels and personal property ” of this witness. Oases have been assiduously selected and presented in support of the objection that this was not a sufficient description of the money obtained by the defendant of the prosecuting witness. But as the authorities were examined and followed in Miller v. People (21 Hun, 443), the indictment does not seem to have been defective in this respect. But the sufficiency of the indictment is not now to be determined by these authorities considering and applying the technical principles of the common law. For they have been in a great measure superseded by the enactment of the Code of Criminal Procedure. And the- question, accordingly, to be considered is not whether this indictment might in this respect be held to be defective under the preceding practice, but whether it is sufficient under the provisions of the Code of Criminal Procedure. By subdivision 2, section 275 of these provisions, no more in this respect has been required in the indictment than “ a plain and concise statement of the act constituting the crime.” By the succeeding section the general form of an indictment has been provided, and that requires for this purpose no more than the name of the crime, and a brief description of it, as it is given by the statute.” And this indictment certainly did contain as much of a description as was required to describe and designate the crime within the language of section 528 of the Penal Code. It has further been declared, by section 284 of the Code of Criminal Procedure, that the indictment is sufficient in the description of the crime if it can be understood from it that the alleged crime was committed at some place within the jurisdiction of the court, prior to the finding of the indictment, and that the act or omission charged as the crime, is plainly and concisely set forth,” and that “ it is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the right of the case.” And it was further declared by section 285, that “ no indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of an imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” This indictment was very clearly sufficient within these sections of the Code of Criminal Procedure, for it distinctly charged the defendant with unlawfully, by means of false pretenses and representation, known to him to be false, obtaining this sum of money from the complaining witness. It was framed in such a manner as clearly and distinctly to charge this offense and to be incapable of being misunderstood by the defendant when he was arraigned and tried upon it. And that it was not misunderstood appears by his own testimony, in which he acknowledged the receipt of this sum of $165, as well as the other smallér amounts mentioned by the witness in the course of her evidence.

By the same provisions of the Code of Criminal Procedure, the objection that it does not appear by the indictment that the grand jury was drawn or sworn is fully met, for that is not now required to be stated. All that has been directed to be inserted in it concerning the action of the grand jury is by section 276, requiring the statement that the grand jury of the county in which the indictment is found, accuse the defendant of the crime alleged in it. And by subdivision 2 of section 284, it has been declared to be sufficient, “that it was found by a grand jury of the county, or, if in a city court, of the city in which the court was held.” It was also averred in the indictment, both specially and generally, that the pretenses or representations made use of by the defendant were not only false, but were also known to him to be false, at the •time when they were made, and were both false and fraudulent. The indictment, accordingly, under the law now applicable to it, and directing what it shall contain, was a sufficient indictment, against the defendant. »

There was no objection, whatever, taken during the trial to the sufficiency of the proof as to the particular character of the money received by the defendant of the complaining witness. If there had been, it might probably have been supplied by her further examination. It was rather assumed, in the conduct of the trial, that the money paid to him was within the description contained in the indictment. And for that reason it was generally described as so much money paid or delivered by the complaining witness to the defendant. Her statement is that on one occasion she gave him fifteen dollars; on another, twenty-five dollars; and on another, ten dollars; and finally this sum of $165. And the payments were-in like manner mentioned and referred to by the defendant, in the course of his own evidence, and no greater particularity of proof in this respect was either suggested or required by any objection made in the case. This did comply substantially with the averment in the indictment. The important and material accusation was that, he had obtained so much money from the witness, and that this, evidence had clearly a tendency to establish.

There was no objection made at any time to proof being given of the payment of the smaller sums of money, or to the particular-representations by which they were obtained. But if there had been, the objection must necessarily have been unavailing, for this was competent proof upon the question of the defendant’s intention. The money was all applicable to one general subject-matter, and his conduct and statements concerning it were pertinent evidence, exhibiting the intention by which he was governed in obtaining the money.

After these several sums were proved to have been paid to him, the defendant’s counsel requested the court to compel the district attorney to elect upon which charge he intended to prosecute. That was not done, but it was stated by the judge, presiding at the trial, that he thought he would confine the people to the charge of larceny of the $165. But he did not do so at that time, but stated that he would see what he should do as the trial progressed. To this no objection was taken on the part of the defendant, but the trial apparently proceeded upon that understanding, and the proof was afterwards mainly directed to this sum of money. At the close of the People’s case the same request was renewed and the judge stated he would decide that question before the case went to the jury, and to that course no objection whatever was taken. Neither does it appear that any other action was taken upon this subject before the case was submitted to the jury. After acquiescing, as the defendant did by his counsel, in this disposition of these repeated requests, he cannot now assign as error, in the course of the trial, the omission of the court to require the district attorney to make this election.

It is probable, however, even though no disposition may have been formally made of this subject, that the case was so submitted to the jury, and that such was their understanding of the inquiry to be followed by them. For, by their verdict, they found the defendant guilty of grand larceny, which could only have been done for the unlawful obtaining of this sum of $165. But if the court had omitted to require the district attorney to elect, or substantially to submit the case to the jury, upon the theory that the defendant could only be convicted for obtaining this sum of money, a reversal of the judgment could not be secured upon that circumstance. For whether the district attorney should be required to make such an election or not, upon evidence of this description, is to be determined by the sound discretion of the court before which the trial takes place. (People v. Baker, 3 Hill, 159; Cook v. People, 2 N. Y. Sup. Ct. [T. & C.], 404; People v. Satterlee, 5 Hun, 167; Armstrong v. People, 70 N. Y., 38; Hawker v. People, 75 id., 487.) Neither was there any failure shown on the part of the court to admonish the jury, at each of its adjournments, that it was their duty not to converse among themselves on any subject connected with the trial, or to form or express any opinion thereon, until the case was finally submitted to them, as that was required by section 415 of the Code of Criminal Procedure. The case in no manner, either directly or indirectly, discloses any failure to comply with this direction of the Code. And an omission to discharge this duty cannot be presumed.

Nor was it improper to allow the fact to be shown by the defendant, on his cross-examination, that he had been, suspended by the action of this court from his office as an attorney and counselor. It was a specific fact, having a tendency to affect his credit as a witness, inasmuch as the order would not have been made without satisfactory proof of professional misconduct on his part. And that such evidence may be obtained from the defendant, who offers himself as a witness in his own behalf, is sustained by People v. Irving (95 N. Y., 541, 544, 545).

The objection that the proof could only be made by the production of the order itself was not taken at the trial; if it had been, it might then and there have been obviated by the production of the order. The objection which was taken was to a different question, and then in a form too general to be of any service to the defendant, even if that question itself had been objectionable.

There was no suggestion made at the trial that the court should explain to the jury the extent of the punishment which the law provided for the offense in case of the conviction of the defendant, and for that reason the case of People v. Cassiano (30 Hun, 388) has no application to the present appeal. In the same connection it has been urged that the court did not go as far as it should have gone in the charge in explaining to the jury the effect of the evidence as to character. But while a large number of requests were presented to the court after the charge had been delivered, which were, in the main, favorably disposed of to the defendant, nothing was suggested and no exception taken upon this particular subject. The attention of the jury was directed to the fact that the evidence of good character should be taken into consideration by them — that offered on the part of the defendant, as well as that offered on the part of the people. The evidence offered on behalf of the people consisted of this fact, that the defendant had been suspended from the practice of his profession by the action of this court. And the attention of the jury was then directed to what was claimed, on the part of the people, as to the evidence of character, and that the claim was, that he does not show affirmatively that he has that high character for probity and honesty which should greatly weigh in his favor, and they draw your attention to the fact that the Supreme Court of this State has, in one instance, passed unfavorably upon his character. I am not going to comment upon the evidence as to whether it preponderates against him or in his favor. Take all the evidence into consideration, and give it such weight as you think it is entitled to.” That covered the whole ground, in a concise and direct manner, over which the evidence as to character had extended. The court undertook no responsibility concerning it, but left it entirely to the jury to give it such weight as they deemed proper. In the course of his evidence concerning his suspension, the. defendant stated that the referee’s report was favorable to him, but that he failed to appear before the court at the time when its action was taken upon his case, although he had notice served upon him for that purpose. This statement that the referee’s report was favorable to him did not exonerate him from the effect of the fact of his suspension, for the court could not, and would not, have ordered it unless it had become satisfied, from the evidence, that he had been guilty of professional misconduct. And the action which was taken necessarily established the fact that such a conviction had been reached in the mind of the court. And all that the judge presiding at the trial did, was to direct the attention of the jury, in substance, to this fact. The court had passed unfavorably upon the defendant’s professional character, and the allusion made to what was claimed on the part of the people, as to the evidence of character, was, therefore, supported by the fact. What was said upon this subject did not then meet the disapprobation of the counsel for the defendant, for he not only failed to request a further direction or observation concerning it to the jury, but failed to except to what was said by the judge. It is true that such failure to except would not preelude tlie defendant from relying upon this point, if it had been unfavorably disposed of as to him upon the trial, for, by section 527 of the Code of Criminal Procedure, as amended by chapter 360 of 1882, a new trial may be ordered when justice may require that to be done, although no exception has been taken. But nothing was said or suggested by the judge concerning this part of the case, rendering the exercise of this authority proper on the part of the court, under the circumstances appearing.

There was a direct conflict between the evidence of the defendant and that of the complaining witness, and of at least one other witness, who testified upon the trial. And upon that, the court was requested to direct the jury that if any witness had willfully perverted the truth, they could disregard the whole of the testimony of such witness. To that the judge responded: “Yes, I do not charge it as a matter of law, but the jury have a right to consider the whole testimony.” The same request was then, in substance, repeated, when the response was: “ You have a right to do so, gentlemen, but I cannot instruct you, as a matter of law, upon that point, that you must do so.” And that, under the authorities applicable to the condition in which this case was presented to the jury, was all that could consistently be said to them. The case presented a square conflict of evidence whether the complaining witness or the defendant himself testified untruthfully. And that appears to be the fact, also, as to one or more of the other witnesses in the case, and whether the evidence of either should be wholly rejected and disregarded by the jury, if they found that the witness giving such evidence had testified willfully false, was a fact for them to consider and determine. If the false statement was one which contaminated the entire testimony of the witness, or indicated him or her, to be entirely unreliable, then it would be right and proper that all the evidence of that witness should be rejected and excluded from consideration. While, if it necessarily included only an isolated statement, and the residue of the evidence appeared probable, and was consistent with the other evidence in the case, and was reasonably sustained as to its probability, the jury would still be at liberty to act so far upon it. The case was left to them, in this respect, in that manner and that is all, and the most that could be required to be done for tbe benefit of the defendant. (Deering v. Metcalf 74 N. Y., 501, 504-507; People v. Moett, 23 Hun, 60, and Moett v. People, 85 N. Y., 373.) The court was also requested to charge that, “if the jury believe that any witness was mistaken in respect to any fact, they may disregard all of such witnesses’ testimony.” The judge responded: The jury may disregard any or all of the testimony; it is purely a question for the jury; simply a question for the jury to determine.” To this answer no complaint can be made on the part of the defendant. It was within their province, under the rules suggested by the court for their guidance and consideration, either to believe or reject the evidence. But if they should act beyond that rule and disregard the testimony in the case, then it was clear that no conviction of the defendant could have been secured, and he was by no possibility injured by what was said. Over this subject the court accordingly gave the jury a greater degree of liberty in his favor than he was. entitled to ask should be accorded to them.

The court was also requested to say to the jury, that if the prosecution had been instituted with malice, or with the intent to effect a return of the money, they should take that into consideration and reprobate or condemn it. And they were directed that if the prosecution was instituted with malice, the jury should take that into consideration. The defendant excepted to that direction, but, of course, it is plain that there is nothing in the exception. The request was made that the court should charge that “ the evidence must exclude to a moral certainty every hypothesis but of guilt, and be consistent with all the facts to convict.” The court declined to add any thing further upon this subject than had already been stated. And in that the judge was supported by the fact that he had already not only at one time, but had repeatedly directed the jury that if they entertained a reasonable doubt as to the defendant’s guilt he was entitled to a verdict of acquittal. That was all that the law upon this part of the case required. And this particular request was not appropriate to the positive evidence upon which this indictment was tried. The rule referred to in it is applicable-only to a case depending upon circumstantial evidence (People v. Bennett, 49 N. Y., 137-144), and not to a case like this, where the testimony was direct and positive and obtained from a living witness. Neither was the court bound to subdivide the point of reasonable doubt by limiting it to any particular branch of the case. What the law lias provided is, that when there may be a reasonable doubt upon the case the jury shall be required to acquit, and no more than that can be required on the part of the defendant. (People v. O’Connell, 62 How., 436.)

It has been further insisted that the judge was in an error in stating to the jury that the uncontradicted evidence went to show that not a single step had been taken in the action to obtain a •divorce. But on attention being called to the state of the proceeding, this was corrected by the charge that if a summons was prepared and placed in the hands of a person for service, that in law is the commencement of an action, and that was the only step which, according to the testimony of the defendant himself, was taken ■at any time for the commencement of a suit to obtain a divorce.

The case was carefully, as well as minutely, presented by the judge to the jury, and no prejudice could have resulted by any possibility to the defendant from any oversight or erroneous statement, which has now been alleged in his behalf in support of the present .appeal. In all respects his rights were carefully, as well as minutely, I .guarded, and the verdict returned by the jury was well warranted and supported by the evidence.

After the verdict was returned, and upon the hearing of the motion for a new trial, an affidavit was made by the defendant, and read in ■support of the motion, stating the fact that one of the jurors in attendance, but who was not drawn as such for his trial, was engaged in conversation with the complaining .witness, and that the defendant supposed and believed that the conversation related to himself; that after that conversation was terminated, this juror crossed the ■court-room and engaged in conversation with another juror, who acted as such upon the trial. But what the conversation between these two jurors was in no manner appears. From the affidavit it •cannot be inferred that it related to this particular case. There Í3 nothing in the case on which the court can interfere in behalf of this ■defendant. He seems to have been properly and legally convicted, •and the judgment, together with the order, should be affirmed.

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

Judgment and order affirmed.