author: RUSSELL, J.

text:
    Geoffroy, Pl’ff, v. Gilbert et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed December, 1895.)

    Insurance—Who entitled to proceeds.
    ■ Where a father took out a policy on his life, payable to his daughter then four years old. or her “legal representatives,” and she subsequently marries and dies before her father, her husband is not entitled to the proceeds of the policy.
    Action by a husband, as administrator of his wife, against her father’s executor and others, to determine the right to the proceeds of a policy on the life of the father, payable to plaintiff’s wife or her “ legal representatives,” the wife having died first.
    Fettretch, Silkman & Seybel, for pl’ff ; Tyler & Durand, for def’ts Gilbert and Randolph ; Williams & Ashley, for Home for Children.
   RUSSELL, J.

— William R. Clarkson, deceased, in 1868 took out a $10,000 insurance policy in the New York Life Insurance Company upon his own life, payable -to his daughter Jennie Clarkson, then four years of age, or his legal representatives. The policy was paid up in ten years, but remained in his custody till his death. His daughter married the plaintiff, and died childless and intestate on the 27th day of June, 1891. The father, whose life was insured, survived his daughter nearly four years, dying on the 16th day of March, 1895. The husband now claims, as the survivor of the wife, the right to the amount of the insurance policy, which amount has been paid into court by the insurance company. The executors claim that the fund belongs to the estate. It needs some patient study to ascertain precisely what rules, as settled by our court of last resort, apply to the solution of a case like this. I am satisfied, however, that it is settled by decisions of the court of appeals — First, that the taking of a life insurance policy, payable to a wife or child, is not simply a gift, but confers sucha vested interest that the insured has no right, after the valid inception of the policy, to destroy their interest by surrender or diversion; second that such vested interest, however, is of a contingent nature, and ordinarily terminates, as to the person named as beneficiary, with the death of that person, if such death occurs before the decease of the insured. Whitehead v. Insurance Co., 102 N. Y. 144; 24 St. Rep. 1 ; U. S. Trust Co. v. Mutual Ben. Life Ins Co., 115 N. Y. 152; Walsh v. Mut. L. Insurance Co., 133 id. 408; 45 St. Rep. 123. Therefore, if the pob icy had been payable simply to Jennie Clarkson, her death prior to that of her father would have terminated her interest. But an, addition is made to her name, as beneficiary, of the words, “or legal representatives.” Primarily these words signify the executors or administrators of a deceased person. They however, have been construed to refer to blood relations standing as heirs or next of kin, and are held to mean that class of persons where the circumstances indicate such intention. Tillman v. Davis, 95 N. Y. 17; Greenwood v. Holbrook, 111 N. E. 465 ; 19 St. Rep. 367; Griswold v. Sawyer, 125 N. Y. 411; 35 St. Rep. 396. The last-' named case arose on the construction of the term as used in a life-insurance policy. At the time of the issuing of the policy there were three persons parties to the contract then made, namely, the life insurance company, the insured William E. Clarkson, and the beneficiary, Jennie Clarkson, a child four years of age. The contract was therefore mainly between.the company and the insured, he acting for himself and as agent for his child. At that time there was no prospect of her contracting a marriage for many years to come. She did however, have a father and mother, with the possibility of brothers and sisters in the near future. There could at that time be no distinction between the effect to be given to the term “legal representatives,” whether it referred to her next-of kin or to her executors administrators, for the latter would only take in a representative capacity for the benefit of the next of kin. In the natural course of human events, the father excepted the daughter to outlive .him, so that she would receive the benefit of the policy herself, while he did have the contingent clause making the policy payable to her legal representatives in case she should not survive him. That contingency would naturally look to her-death before reaching womanhood and marriage. He declares-in policy .itself that he pays the premium for her benefit: There was, therefore, in the minds of the contracting parties, an undoubted reference to the next of kin of Jennie Clarkson, as included by the term “legal representatives,”and no thought of a construction which would turn a wise and tender provision for a daughter into a large pecuniary benefit to a stranger in blood, allied to the daughter 22 years later by marriage for only a year and a half. While we do not give so large effect to the wishes and' intent of the originator of the insurance fund as in cases of testamentary dispositionryet courts are largely guided, where doubt, arises who is the proper beneficiary, by the evident purpose of the father or husband to care for those who are dependent upon him, and if, in so doing, he has paid for an insurance policy, to assume that he provided for the contingency, which might happen of the beneficiary’s not living to enjoy the benefit, by the substitution, of those next in interest to him from family ties. The husband, therefore, does not take jure máriti, for the wife’s interest-terminated; he does not take as legal representative, for they take by substitution, and the Substituted beneficiaries are the next of • kin. I am therefore constrained to hold that the husband is not entitled to the life insurance fund, and direct the dismissal of the complaint, with costs.

The executors ef the insured receive the fund.

lOomplaint dismissed, with costs.


source: Caselaw Access Project

author: LEWIS, J.

license: Public Domain

text:
    Charles A. Bird et al., Resp’ts, v. Erwin H. Lanphear, et al., App’lts.

      (Supreme Court, General Term,, Fifth Department,

      Filed December 28, 1895.)

    1. Receivers—Appointment.
    Wheve'parfcies to several agreements join in the different ventures with a view of speculating in real estate, and allege in their moving papers for a receiver that they were induced by false and fraudulent representations to enter into these contracts, and that they have been defrauded by the-misconduct of the defendants, the court will, if they succeed in establishing their cause of action, exercise its general equitable powers to compel the defendants to restore to those entitled thereto the moneys which have been improperly appropriated, and to that end, the court, as a part of its incidental power, can impound the fund in litigation during the pendency of the action.
    3. Same. ~
    The allegations, in this case, were held to entitle plaintiff to a receiver pendente lite, and to take charge of commissions alleged to have been paid to defendants.
    3. Same—Solvency oi> defendant.
    It is not an abuse of discretion to appoint a receiver pending suit to takecliarge of property in the hands of defendant, where defendant is financially responsible.
    Appeal from an order appointing a receiver pendente lite.
    DeMerville Page, for app’lt Erwin H. Lanphear; Edward L. Jellinek, for app’lt Earl M. Lanphear; Frederick Collin, for resp’t.
   LEWIS, J.

—The defendant Erwin H. Lanphear, in the early • part of the year 1891, through the agents of the owners, obtained options for the purchase of three blocks of land in a tract in the-town of Tonawanda, near Buffalo, known as the 11 Englewood Tract.” Said blocks were known and distinguished as blocks 7, 8, and 16 of said tract. Lanphear resided at the time in the city of Hornellsville. He secured these options with the intention of inducing others to join with him in purchasing these lots; and, to accomplish his purpose, he interviewed a large number of his-neighbors and acquaintances residing in and about Hornellsville, and informed them about the options which he had secured. With a view to induce them to join him in making the purchase, he represented to the plaintiff and others that the land in this Englewood tract, including the blocks mentioned, was rapidly increasing in value, and that there was no reasonable doubt that, at the prices for which they could be purchased, there was a fine opportunity to make money by investing in the property. He stated that he was required to pay $15,000 for block 7, the same amount for 8, and $14,000 for block 16; that he was willing to and would allow the plaintiff, and any others who wished to join him in making the purchase, to come into the deal on equal terms with himself. He stated, further, that no one was to receive any commission for the sale of the lots. Belying upon these representations, and believing them to be true, the plaintiff and a larges number oí others joined the defendant Erwin H. Lanphear in forming three diEerent syndicates to purchase the property. Fifteen persons, including the plaintiE and the defendants Tadder and Erwin H. Lanphear, entered into a written agreement with the ■owners to purchase block ¡No. 8 for the sum of $15,000. The plaintiE, with the two defendants mentioned, together with nine ■others, entered into a written contract with the owners to purchase block 16 for the sum of $14,000. Some of those who composed the syndicates for the purchase of blocks 8 and 16 joined with the ■defendants Erwin H. and Earl M. Lanphear, and entered into a contract with the owners to purchase block number 7 for $15,000. The plaintiE was not a member of the last-named syndicate. The members of the diSerent syndicates, with the exception of the defendants, advanced money to make the down payments upon said purchases, amounting to the sum of $3,000 for each block, and, by the terms of the various contracts, the purchasers agreed to pay, and did pay, $150 a month upon each block of land, until the sums required to be paid as a condition to the giving of the -deeds were paid, when deeds were given. By arrangement between the stockholders, the conveyances ran to the defendants Erwin E. Lanphear and Arthur 0. Tadder, in trust for the owners. After having made these various payments, it came to the knowledge of the plaintiE and others who had taken shares in the purchases that the statements and representations of the defendant Erwin E. Lanphear, made to induce them to join in the purchase, were false; that, instead of their having been permitted to join him upon equal terms in making the purchases, the owners of the property, through their agents, had agreed to pay him commissions for making the sale, amounting to some twenty per cent, of the ■contract price,'which amounted in all to from ten to twelve thou■sand dollars, and .that a part of these commissions had been paid to him in money; that, upon receiving the deed of block 16, the defendants Erwin H. Lanphear and Tadder had given to the grantor a purchase-money mortgage for $9,500; and that thereafter the mortgagee assigneed said mortgage to the defendant Earl M. Lanphear, in payment of the balance of the commissions agreed to be paid to Erwin H. Lanphear. The plaintiE and other shareholders continued to make payments after the conveyances were executed to Erwin H. Lanpnear with the expectation and ■understanding that he was to apply the money towards the payment of the unpaid purchase price of the land. He paid a ■considerable portion thereof to the defendant Earl M. Lanphear, in part payment of the mortgage thus assigned to him. It was charged in the moving papers that this transfer of the mortgage to Earl M. Lanphear was in pursuance of a collusive arrangement entered into between himself and the defendant Erwin H. Lanphear, who is the father of Earl M., and that the mortgage was in' fact held by Earl for the benefit of his father." It was further - charged that a small portion of the commissions received by the defendant Erwin H. Lanphear were paid by him to the defendant Tadder. It was made to appear by affidavits read in opposition to the motion that the defendant Earl M. Lanphear had, prior to the commencement of the action, sold said mortgage, and was not, at the commencement of the action, the owner thereof; but it did appear, as stated, that there had been paid to him thereon a considerable sum of money.

Plaintiff commenced this action in his own behalf, and in behalf of all others similarly situated who desired to come in and assist in its prosecution, to compel the repayment to the stockholders of the money received by the defendants, as and for commissions, according to the amount of each one’s share in said purchase, with interest, and that the mortgage mentioned and assigned to the defendant Earl L. Lanphear be ordered to be held in trust by him for the benefit of the plaintiff and the other parties, as their interests may appear, and for such further or other ¡relief as, under the facts, the plaintiffs may be entitled to. All of the parties to the various contracts, with the exception of the defendants and two others, gave notice to the plaintiff of their desire to take part in prosecuting the action, and retained the attorneys for the plaintiff to act in their behalf in prosecuting the action.

Upon these facts, the court, upon motion of the plaintiff appointed a receiver during the pendency of the action; and, by the terms of the order, the defendants were directed to pay over to the receiver all moneys received by them as commissions, and, from the order thus made, this appeal was taken.

It is claimed by the appellants that the plaintiff Bird, not being a party to the purchase of block 7, has no interest therein, and therefore the order, so far as it directed the repayment of any commissions received from the sale of that lot, was erroneous. While the plaintiff, Bird, has no direct interest in block 7, he and the shareholders in block 7 are jointly interested in the mortfage of $9,500. mentioned; and in any moneys which may have eon paid to Earl M. Lanphear while he was the owner of said mortgage; and, the shareholders in block 7 having signified their desire to become parties to the action, block 7 was properly included in the order, so that, in case the plaintiffs succeed in the action, a final distribution of the entire fund may be had. It may, and probably will, be difficult to trace the funds paid as commissions ; but they have been paid to and received by the defendants, and the plaintiff is entitled, through the receiver, to obtain possession of the money. American Sugar Refining Co. v. Fancher, 145 N. Y. 552; 65 St. Rep. 506. • The parties to these various agreements joined in these ventures with a view of speculating in this real estate. They allege in their moving papers that they were induced by false and fraudulent representations to enter into these contracts, and that they have been defrauded by the misconduct of the defendants. It is a case where the court, if they succeed in establishing their cause of action, will exercise it general equitable powers to compel the defendants to restore to those entitled thereto the moneys which have been improperly appropriated; and, to that end, the court, as part of its incidental power, can impound the fund in litigation during the pendency of the action. Decker v. Gardner, 124 N. Y. 334 ; 36 St. Rep. 267.

It is contended that a receiver should not have been appointed, for the reason that the defendants are financially responsible, and able to respond in any damages which the plaintiff can, in any event, recover. Erwin H. Lanphear was shown to have considerable property, but there was evidence that he had property interests in the state of Pennsylvania, and that he had been trying to dispose of his property in this state. We think the granting of the order was within the discretion of the special term, and fail, to find any reason for disturbing it.

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

All concur.


author: DAVY, J.

text:
    John Yoos, Resp’t, v. City of Rochester, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)
    1. Damages—Nuisance.
    Where a nuisance affects t.he enjoyment and occupancy of the realty, the measure of damages is usually the loss of rents or the depreciation in the rental value.
    2. Same.
    A tenant, after having obtained a reduction of the rent on account of a nuisance, is not entitled to all the damages that accrue to the premises during his term, though there is no express agreement that the landlord should have them.
    3. Nuisance—Landlord and tenant.
    A tenant cannot recover damages occasioned to the use of property by a nuisance which existed at the beginning of his term and has not been increased.
    Appeal from a judgment on the verdict of a jury1.
    'Adolph Eodenbeck, for app’lt: Arthur Warren, for resp’t
   DAVY, J.

—It appears from the evidence in this case that in April, 1890, the respondent leased thirty-live acres of land located on Thomas creek, in the town of Brighton, for three years, at an annual rent of $300; and he brings this action against the city of Eochester to recover damages for creating a nuisance caused by the discharge of sewage from two of its outlet sewers that empty into said creek, which is a natural watercourse flowing from the city of Eochester through the plaintiff’s premises, and emptying into Irondequoit Bay. The case was tried before a jury in the Monroe county court, and a verdict rendered in favor of the plaintiff for $312. This appeal is taken from the judgment entered upon the verdict of the jury, and also from the order denying the defendant’s motion fora new trial.

The learned judge who presided at the trial charged the jury that unless there was an express agreement between the landlord and the tenant that no landlord was to retain the right to sue and recover the damages to the premises, the tenant would be entitled to recover all the damages caused.by the pollution of the stream, and that the measure of damages was the difference in value of the plaintiff’s right to use, occupy, and enjoy the property with the nuisance and without it, which was excepted to by the defendant’s counsel. This exception, we think, was well taken. Where a nuisance affects the enjoyment and occupancy of the realty, the ■measure of damages is usually the loss of rents or the depreciation in the rental value. Gases may arise where loss of profits resulting from an interference with one’s lawful business or loss of crops may be regarded as elements of damage; and, where the injuries permanently affect the realty, the measure of damages is the difference between what the property would have sold for before and after the injury by the nuisance. In this" case, however, the nuisance complained of was the odor arising from the polluted stream, which the plaintiff contends was so offensive that it interfered with his enjoyment of the property. So that, if the plaintiff was entitled to.recover all the damages occasioned by the nuisance, the measure of damages must be based upon the depreciation of the rental value of the premises. But to hold, in the absence of an express agreement, that the plaintiff, under all circumstances, was entitled to all the damages arising from the nuisance during the period that he occupied the premises, might in many cases work great injustice to the landlord, especially if the plaintiff, was informed of the nature and extent of the nuisance and its probable duration, and he took that into consideration, and paid no more rent for the premises than they were actually worth with the stream polluted. The plaintiff, under such circumstances, could not, it seems to me, successfully contend that he had sustained any damages, unless the nuisance in some way was increased during his tenancy. If the landlord did not receive as much rent for the premises on account of the nuisance, the loss fell upon him, and not the plaintiff. We think that these were proper questions for the consideration of the jury in estimating the plaintiff’s damages.

In the case of Kernochan v. N. Y. E. R. Co., 128 N. Y. 566; 41 St. Rep. 110, Judge Andrews, in discussing this question, lays down the ‘rule very clearly as to the right "of the tenant to recover damages for the diminished rental value of his premises incumbered by a nuisance at the time the lease was made. He says:

“It is a fundamental proposition that only the party injured "by the wrongful act can maintain an action for damages.- There may be" difficulty in some cases in ascertaining the proper party. The same wrong may occasion injury to several persons or to separate and distinct interests in the same property ; but he only is entitled to maintain an action who can show that his right has been invaded, and to such a person or persons only is the wrongdoer bound to make compensation. In determining [he saysj whether the lessee acquired by the lease the right to recover damages inflicted npon the property by the road during the term, the situation, at the time the lease was executed, the terms of the instrument, and the intention of the parties thereto, are to be considered.” .... - • -

The agent ^of the landlord testified that, before the plaintiff-leased the premises, he had two or three interviews with him, in which the condition .of the creek was spoken of, and that he informed the plaintiff that the owner had filed a claim against the city for damages. He also testified that the premises were leased to the plaintiff for one-half of their rental value on account of the polluted stream. The natural inference to be drawn from this testimony is that the plaintiff knew of the existence of the nuisance at the time he leased the premises; and if he had made proper inquiry, as a prudent man should have done under the circumstances, he would have ascertained that, the stream had been polluted by the city’s sewage for many years, and that it had been declared a public nuisance by the courts, and that the city was powerless to abate it until the East side trunk sewer was completed, which was then in process of construction, and was not finished for more than three years after the lease was made. These facts would not justify us in reaching the conclusion that the owner of the premises demanded the same amount of rent that he would have exacted if the stream had not been polluted. Neither would it be fair to presume that the plaintiff did not take into consideration the effect the nuisance would have upon the use and enjoy- . ment of the property. It would be contrary to reason and common sense ■ to hold that he paid as " much rent for the premises with the nuis.ance as he would have paid without it. To hold that the plaintiff, after having obtained a reduction of the rent on acc'ount of the nuisance, is entitled to all the damages that accrued to the premises during his term, because there was no express agreement that the landlord should have them, would be contrary to equity and the presumed intent of the parties when they made the lease.

The judgment and order of the county court, therefore, should be reversed, and a new trial ordered, with costs to abide the event.

LEWIS and BRADLEY, JJ., concur; WARD, J., not voting.


text:
    In the Matter of the Estate of Aaman W. Langdon, Deceased. In the Matter of an Accounting of Stephen H. Hammond, as Executor and Testamentary Trustee, etc.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Executors—Payment op legacy.
    The surrogate is required to dismiss the petition, without prejudice to
    . an action for an accounting in behalf of the petitioner, upon an application for the payment of a legacy, where an executor or an administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity and legality absolutely, or on information and belief.
    8. Same.
    Section 2722 of the Code is intended to require the litigation of such issues before a court having general law or equity powers, and a dismissal of the proceeding without allowing a petitioner to reply is not error.

      Appeal from a decree dismissing the petition,
    Fred L. Manning, for app’lt; Charles A, Hawley, for resp’fc
   DAVY, J.

—In March, 1894, the appellant presented a petition to the surrogate of Ontario county praying that a citation issue to-the respondent requiring him to account as executor and testamentary trustee and pay over to the petitioner a legacy of $8,000, with interest thereon from October 4, 1873. Upon the return of the citation, the respondent filed an answer, alleging that the estate had been settled and distributed, and that the petitioner’s claim had been paid. The answer also states that the petitioner, in September, 1874, executed and delivered to the executor and trustee a writing, in which he acknowledged the receipt in full of all claims which he had against the estate of Aarnan W. Langdon, deceased, and' released and discharged the executor of said estate from all liability to the said petitioner, and that the petitioner had no interest in the estate, and he also denied the validity and legality of the petitioner’s claim. Upon the filing of the answer, the respondent’s attorney moved to dismiss the proceedings, which motion was granted by the surrogate.

The learned counsel for the appellant contends that the petition ought not to have been dismissed, as no opportunity was given him to reply to the answer. It is sufficient to say in regard to the appellant’s contention that the surrogate in his opinion - says that no formal reply was interposed by the petitioner to the answer. But, in response to an inquiry, the petitioner’s attorney said that the execution of the receipt would not probably be questioned. In that view of the case, it seems to me that the dismissal was clearly right. In re Pruyn, 141 N. Y. 544; 57 St. Rep. 824. Under section 2722 of the Code of Civil Procedure, the surrogate was required, upon the presentation of the petition, to issue a citation, and, on the return thereof, to make such a decision in the premises as justice requires. But he is required to dismiss the petition, without prejudice to an action or an accounting in behalf of the petitioner, where an executor or an administrator files .a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity or legality absolutely, or on information and belief. In the face of this explicit provision of the statute, I am unable to see how the surrogate had any authority to hear and determine the issues raised by the answer. The surrogate’s court is one of limited jurisdiction, and it had no power to try and determine the questions whether the release had been obsained by fraud or given by mistake. These disputed questions of fact could only be adjudicated in a court of equity or law, and not in the surrogate’s court. Bevan v. Cooper, 72 N. Y. 329.

Judge Gray had occasion, in Re Wagner’s Estate, 119 N.Y. 36; 28 St. Rep. 266, to discuss this question quite fully, and, in expressing the views of the court, he says.:

“ Where an application is made to the surrogate for an order compelling the executor or administrator to file and inventory or to render an account, and it appears, in answer to it, that the applicant can have no right to such an order, by reason of his interest having' been satisfied and extinguished by a settlement and distribution, whether in or out of court, or barred by a release or ■or otherwise, and the factum of a, settlement or of a release, or any act constituting the bar, is put in issue by .the reply of the applicant, the surrogate should dismiss the petition, and remit the applicant to his proceeding in a court having general equity „ powers to try out such an issue."

The learned counsel for the appellant also contends that the,, legacy was in the hands of the respondent as a trustee, and not as executor, and that section 2722 of the Code does not apply to a.. testamentary trustee. The will is not printed in the appeal book. We are therefore compelled to ascertain its contents as well as we ■can from what appears in the proceedings before the surrogate. The petition alleges that Hammond has never rendered an account of his procedure as executor and testamentary trustee, and it asks that he be cited to show cause why he should not render an ac-count and settle the same. If the duties of the respondent, as executor, were, first, to be discharged before he could assume the -duties of trustee, then the legacy, if any, still remains in his hands as executor, because the petition states that no judicial settlement has ever been had by the executor. We cannot,' from the language of the petition, assume that this is a case where the two functions -of executor and trustee coexist and are inseparably blended together. We could only determine that question from the context of the will, which is not before us.

The order appealed from should be affirmed, with costs to be paid out of the estate.

All concur.


author: ADAMS, J.

text:
    Mary A. Dinlay, as Administratrix, etc., Resp’t, v. Johnston McCullagh, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Action—Interpleader.
    An order, interpleading the defendant, transforms an action at law into a suit in equity, and neither party is entitled, as a matter of right, to a trial by jury.
    3. Gift—Inter vtvos—Proof.
    The mere possession of a bank book, or of such book and a check, is but one of several elements which are essential to' the establishment of a gift inter vivos. There must exist an intention upon the part of the alleged donee to part absolutely with her property, and such intention must have been consummated, by an actual delivery to the donee. So, bare possession ■ of á bank book book and a check payable to the holder drawn by a decedent a month before death was held not sufficient to establish a gift inter vivos.

    Appeal from a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial.
    This action was originally brought by the plaintiff against the Erie County Savings Bank to recover a deposit -made by the, plaintiff’s intestate in her lifetime. The defendant claiming title to the same deposit, and demanding thereof from the bank, the bank by interpleader proceedings, obtained an order of the court, at special term, substituting the defendant in its place as defendant in the action, and paid over to .the treasurer of Erie county the moneys in dispute. Thereupon this defendant, so interpleaded and substituted, served an answer, admitting the former allegations of the complaint, but asserting title to the moneys in question by virtue of a delivery to him by the intestate, in her lifetime, of her check for the amount thereof, together with her bank book, containing her account with the savings bank. Upon the issues thus joined, the case came on for trial at a circuit court in Erie county, held upon the third day of June, 1895. After hearing the evidence, the court directed a verdict in favor of the plaintiff, and thereafter the trial justice made and filed findings respecting such trial as though the cause had been tried before him without a jury, and the defendant duly filed exceptions thereto. Amotion fora new trial upon the minutes was subsequently made and denied. Judgment was thereupon entered, and from, that judgment,”as well as from the order denying the motion for a new- trial, this appeal is taken.
    William C. Fitch for app’lt; Charles F. Tabor, for resp't.
   ADAMS, J.

—In considering the questions raised by this ■appeal, it should be borne in mind that there was nothing irregular in the manner in which the learned trial justice disposed of this case circuit; for, although it was originally an action at law; the order interpleading the defendant transformed it into a suit in equity, and consequently neither party was entitled, as a matter of right, to atrial by jury. The court might have submitted to the jury, which was impaneled, any or all of the traversed questions of fact, but it was under no obligations to do so, nor to adopt the conclusions of the jury had it been thus submitted. Clark v. Mosher, 107 N. Y. 118; 11 St. Rep. 758. With this suggestion for a guide, it is difficult to discover wherein any error has been committed which requires a reversal of the judgment and order appealed from.

The action appears to have been tried upon the theory that the check and bank book, which were found in the defendant’s possession after the death of the intestate, were sufficient evidence of a gift inter vivos of the moneys deposited in the bank, although no such issue was tendered by the answer. But the mere possession of the book, or of the book and check, is but one of several elements which are essential to the establishment of the defendant’s contention, There must have existed an intention upoa the part of the intestate to part absolutely with her property, and such intention must have been consummated, by an actual delivery to the donee. Harris v. Clark, 3 N. Y. 93; Beaver v. Beaver, 137 N. Y. 59; 50 St. Rep. 69; Govin v. De Miranda, 79 Hun, 286, 61 St. Rep. 800. In Ridden v. Thrall, 125 N. Y. 572; 35 St. Rep. 913, which is cited and apparently relied upon by the defendant’s counsel, there was not only convincing proof of an intention upon the part of the donor to divest himself of all right and title to the subject or the gift, but such intention was accompanied by an actual and formal delivery. ¡Neither one of these elements appears to be present in this case, and therefore the learned trial justice was undoubtedly correct in the conclusion he reached, that the defendant failed to fulfill the obligation which the law imposes upon him of establishing his claim to these moneys by evidence which shall be entirely satisfactory in its character. Upon the argument of the appeal, the learned counsel sought to supply this very obvious defect in *his case by insisting that the possession by the defendant of the intestate’s check for the amount of her depositraises the presumption that it was given for a good consideration, and consequently'that it operated asa complete and valid transfer of the sum of money mentioned therein. But the rule thus invoked has its limitations, and very slight circumstances will serve tp repel any presumption thus created. That it was satisfactorily met in this case, and that the learned trial justice was fully supported in his finding of fact and conclusions of law, can be easily demonstrated. Perhaps it would be a sufficient answer to the defendant’s present contention to say that .it is now urged upon the attention of the court for the first time. As has already been suggested, the trial was conducted upon an entirely different theory; and, when the case was taken from the consideration of the jury, the only request made by the counsel was that the question of the delivery of the check and bank book might be submitted, but it was not even suggested that there was any other issue to be considered. But, had this not been the case, the fact that the check was signed more than a month prior to the death of the intestate, and was not presented at the bank until several months after her death, is sufficient to justify the trial court in concluding that it was not received in the usual course of business and for a valuable consideration. Stimson v. Vroman, 99 N. Y. 74.

The judgment and order should therefore be affirmed.

All concur.


author: WARD, J.

text:
    Philip Drago, Resp’t, v. James H. Smith, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Costs—Action fob wages.
    Chapter 805 of 1895 does not apply to an action settled by the parties out of court before the statute took effect, and such action cannot be continued to judgment for the benefit of the plaintiff’s attorney.
    2. Attoeney and client—Lien—Municipal coubt of buffalo.
    Section 66 of the Code does not apply to actions in the municipal count of Buffalo instituted prior to the amendment of the statute of 1895.
    Appeal from a judgment in favor of plaintiff.
    ' Frank Harding, for app’lt; Clinton A. Webster; for resp’t
   WARD, J.

—This action was brought in the municipal court of Buffalo by plaintiff against the defendant on the 11th day of May, 1895, to recover $7.87 for work performed as a common laborer, under section'458 of the charter of the city of Buffalo, which gives a common laborer who has á family dependent upon him for support, and recovers a judgment for less than $25 for his labor, in addition, $8, as statutory costs, and the costs and disbursements of the action, and the remedy of the body execution against his debtor upon the return of a property execution unsatisfied. Issue was joined May 21, 1895, by an answer denying the allegations of the complaint. The case was adjourned from time to time, until June 4th, when it was tried upon a stipulation of the parties’ attorneys. The stipulation embraced a receipt as follows':

“ Buffalo, N. Y., May 25, 1895,
“Received of James H. Smith full amount of all claims or demands against him for work and services done for him previous to this date, and for which suit is now pending in the municipal court, entitled ‘ Philip Drago vs. James H. Smith,’ and I agree to discontinue suit without costs to said James H. Smith.
PHILIP DRAGO."

At one of the adjournment after the settlement, the defendant set up the receipt, by supplemental answer. Notwithstanding the settlement, the plaintiff’s attorney insisted upon proceeding with the action, for the purpose of protecting the lien which he claims he bad for the $8 costs given by statute, and that he was entitled to enforce such lien under section 66 of the Code of Civil Procedure, which gives an attorney a lien upon his client’s cause of action, or upon any judgment, verdict,- report, or decision that may be obtained upon such cause of action, for the attorney’s services. The municipal court rendered a judgment in favor of the plaintiff and -against the defendant for damages, $7.87.court costs, $2.85; statute costs, $8,—and directed that the sum of $7.87 paid to the plaintiff should be credited upon the execution, and that the defendant was liable to execution against the person.

The plaintiff’s attorney and the municipal court seem to have assumed that the statute which the plaintiff’s attorney invoked, and which gives the laborer the protection claimed, was in force at the time of the settlement, and therefore the settlement could be disregarded, and the attorney’s lien enforced by a proceeding in that action, notwithstanding the settlement. Section 458 of the Buffalo charter, being chapter 105 of the Laws of 1891, provided that, in an action brought in a municipal court by a domestic servant to recover for services performed by her, if the plaintiff recovers a judgment for a sum not exceeding $25, exclusive of costs, no property of the debtor should be exempt from execution, and, if an execution against the property was returned unsatisfied in whole oi^in part, plaintiff was entitled to an execution against the person, to collect the same. This section was amended in 1895 (chapter 805), and took effect May 27, 1895 That amendment gave to a laborer having a "family dependent upon him for support, for wages due him, the same right as a domestic servant under the act of 1891, supra,—if he recovered a judgment for a sum not exceeding $25, exclusive of costs, no property of the defendant should be exempt from execution, and authorizing a body execution in case an execution against the property was returned unsatisfied in whole or in part,—and provided that he should be entitled to recover the sum of $5 as costs, in addition to the costs allowed by section 462 of chapter 105 of the Laws of 1891, which provided that in an action for wages, if the recovery did not exceed $25, the plaintiff was entitled to recover $3 as costs. It will be seen from the above statement that the statute which gave the unskilled laborer the rights upon which this judgment was predicated and the right to an execution against the person of his debtor, was not in existence at the time of the commencement of tile action in the municipal court, or at the time of the settlement. At the time of such settlement, the plaintiff had the right of any other plaintiff in a justice’s court, or in a court that takes its place, like the municipal court of the city of Buffalo, to obtain his judgment, and collect it, if he could, out of the property of his, debtor. He was not entitled to the special costs of five and three dollars; only the ordinary costs of the action, if h,e recovered. There was nothing, therefore, in the way of his settling the action with the defendant upon any terms he chose. If he had an attorney in the proceedings, that attorney must look to his client for his compensation. Section 66 of the Code of Civil Procedure certainly had no application to the case as it existed when the settlement was made, and prior to the amendment of the statute in 1895. Indeed, it has been held by the court of appeals, in cases where section 66 applies, that the client still remains the owner of the cause of action, and is not bound to continue, or permit the continuance of, the litigation, for the benefit of the attorney, when he deems it prudent to stop, provided he is willing and able to satisfy the just claims of the attorney, and the settlement is not made in fraud of tire rights of the attorney, and it does not appear that the client is irresponsible. Lee v. Vacuum Oil Co., 126 N. Y. 579 ; 38 St. Rep. 662 ; Poole v. Belcha, 131 N. Y. 200 ; 42 St. Rep. 856. It cannot be claimed that this settlement was in fraud of plaintiff’s attorney, in order to deprive him of his costs, because no authority existed for the imposition of such costs at the time of the settlement, nor does it appear that the client is irresponsible. We are also of opinion that section 66 of the Code has no application to the municipal court of Buffalo.

The judgment should be reversed.

All concur.


author: HERRICK, J.

text:
    Bussey and McLeod Stove Company, App’lt, v. David Wilkins, Jr., Resp’t.

      (Supreme Court, Appellate Division, Third Department,

      Filed January 20, 1896.)

    Pleading—Complaint—Irrelevancy.
    , Where an allegation in a complaint is expressly authorized by the Code, and the plaintiff's ultimate remedy to enforce his claim is dependent upon his proof, such allegation is not irrelevant. So held, in respect to an allegation in a complaint in an action on contract, that defendant, since making the contract, has disposed of his property with intent to defraud his creditors.
    Appeal from an order striking allegations from the complaint
    Nash Rockwood, for app’lt; D. A. Hinman, for resp’t.
   HERRICK, J.

—The complaint herein sets forth two causes of action against the defendant,—one on a-promissory note, and another for goods sold and delivered. The plaintiff further alleges that, after the making of the promissory note and the sale and delivery to him of the goods, wares, and merchandise theretofore mentioned, the defendant fraudulently conveyed away his property, with intent to cheat and defraud his creditors, and that such conveyances were fictitious and fraudulent, and without a valuable consideration, and by reason of such conveyance the defendant has been rendered insolvent, and is possessed of no •other real or personal property out of which the plaintiff’s demand can be satisfied. The court at special term, on the motion of the defendant, struck out (hat portion of the plaintiff’s complaint wherein the fraudulent disposition of his property was alleged as’ irrelevant I think such order was erroneous. Section 1240 of the Code of Civil Procedure provides that a final judgment may be enforced by execution, where it is a sum of money in favor of either party, or directs the payment of a sum of money. Section 1487 provides that, where the judgment can be enforced by execution, an execution against the person of the judgment debtor» may- be issued thereupon—First, “ where the plaintiff’s right to arrest the defendant .depends upon the nature of the action” ; and, second; “in any other case where an order of arrest has been granted and executed in the action, and if it was executed against the judgment debtor, where it has not been vacated.” Section '540' of the Code of Civil Procedure provides that the defendant may be arrested where the actibn is brought for either of the following causes (subdivision 4):

“In an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, or that he has since the making of the contract, or in con-templation of making the same, removed or disposed of his property with intent to defraud his creditors, or is about to remove or dispose of the same with like intent; but where such allegation is made, the plaintiff cannot recover unless he proves the fraud on the trial of the action ; and a judgment for the defendant is not a bar to a new action to recover upon the contract only.”

It will be seen from this that the plaintiff is entitled to enforce his judgment by execution against the person where his action is one upon contract, express or implied, and where it is alleged in the complaint that the defendant has, since his making the contract or incurring the liability, removed or disposed of his property with intent to defraud his creditors; and that, where his complaint contains such an allegation, he cannot recover unless he proves the fraud on trial. The Code thus expressly authorizes such an allegation as is set forth in the complaint herein, and makes it, when coupled with a cause or causes of action upon contract, a cause of action upon which the person of the defendant can be seized on execution. It makes the nature of the action one in which the-defendant can be arrested, and, consequently, one where an execution can be issued against the person without any previous order of arrest. Where an allegation is expressly authorized by the Code, and the plaintiff’s ultimate remedy to enforce his claim is dependent upon its proof, I do not think that it can be said to be irrelevant. If the allegation in questions is stricken out, the complaint will be simply one upon a promissory note, and for goods sold and delivered ; and if judgment is obtained upon it, the judgment cannot be enforced by execution against the person. If it is .permitted to remain in the complaint, and it is proved/upon the trial, the defendant’s person can be seized upon execution to enforce the judgment, without any previous order of arrest. Segelken v. Meyer, 94 N. Y. 473. Indeed, it was conceded by the respondent, upon the argument, that an execution against the person could issue for the causes as set forth in section 549 of the Code, where they were alleged in the complaint, without any previous order of arrest. The plaintiff's final remedy to enforce his rights being dependent upon the allegation in question, it cannot be said to be irrelevant.

The order should therefore be reversed, with $10 costs and disbursements of this appeal, and the motion denied, with $10 costs, with leave to the defendant to answer the complaint with twenty days after the service of a certified copy of the order herein upon him, upon payment of such costs and disbursements.

All concur.


author: PER CURIAM.

text:
    J. Wesley Rosenquest et al., Resp’ts, v. Thomas Canary et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 27, 1895.)

    Leases—Deposit as security.
    Where, under a lease, which provides that a deposit as security for observance by the tenants of the conditions, should be applied to the rent for the last two months of the term, in case the tenants had up to that time fully performed their obligations, but to be forfeited as liquidated damages in case of breach of a condition, by failure to pay rent for a preceding month, the tenants canwit have the deposit applied on the rent defaulted, but may be dispossessed for the default.

      Appeal from a j udgment in favor of plaintiffs.
    Howe & Hummel, for app’lt; Yanderpoel, Cuming & Goodwin, for resp’ts.
   PER CURIAM.

—The covenant in the lease, providing for the disposal of the sum paid as security for the observance by the tenants of the conditions, is very clear in its terms, and is open to but one construction. This is that the deposit was applicable to the rent for the' last two months of the term only, and then upon condition that the tenants, up to that time, had fully performed their obligations. By failing to pay rent for a preceding month, one condition was broken, and according to the express .agreement, the deposit was forfeited as liquidated damages. The claim that this deposit should have been applied upon the rent defaulted cannot be upheld under the terms of the contract, and for such default the appellants were rightfully dispossessed.

Final ordgr jffirmed, with costs.


text:
    Morris Moses, App’lt, v. City of Key West, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 18, 1895.)

    Municipal corporations—Special fund—Officers.
    Where plaintiff contracts to purchase certain bonds of a city, to be issued from time to time, and the proceeds to be used to “ inaugurate a perfect system of serface drainage and underground sewerage ” for the city, he is ■not justified in refusing to accept a second issue of such bonds on the ground that the proceeds of the first had been used for curbing, grading and paving streets, where such use is within the general scope of the legislative act, and the manner of carrying out the provisions of the act is within the, discretion of the city authorities.
    Appeal from a judgment dismissing the complaint.
    The complaint alleges that defendant is a municipal corporation incorporated by and existing under chapter 8966 of the Laws • of Florida; that on the 20th day of March, 1890, one B. G. Oppenheim, plaintiff’s assignor, entered into á contract in writing with defendant, whereby defendant agreed to issue bonds to the extent of. $400,000, and to use the proceeds “ for the purpose of inaugurating a perfect system .of surface drainage and underground sewerage throughout the city of Key West;” that Oppenheim agreed to receive the bonds “from time to time as the board of commissioners of defendant should require;” that on the 12th day of June, 1890, the board drew on Oppenheim for $97,500; the sum he had agreed to pay for each $100,000 of the bonds; the draft was paid, and the money deposited to defendant’s credit, ‘ that defendant “ has already paid, laid out, and expended large amounts of the money already paid to it by said Oppenheim for curbing, grading, and paving the streets of said city,” and “has contracted for and made arrangements to use the entire sum of $400,000 aforesaid;” that by reason of the use made by defendant of the moneys it has received, and because of an alleged violation by defendant of its agreement with Oppenheim, it has become impossible for him to receive the other $800,000 of the bonds, and the bonds purchased and taken by him have become less marketable, and have been rendered an unprofitable investment and an insecure security for the money so paid for them; that by the terms of the agreement it was provided that, if defendant should not prepare the bonds, or should decide not to negotiate them, or should neglect to perform its part without any fault on the part of Oppenheim, then and in that case defendant should pay to him a sum equal to the commission of 2.4 per cent., “which, if not for the default of said defendant, said Oppenheim would otherwise-have earned under said agreement;” that defendant has failed and neglected to perform the conditions of the agreement on its part,. - which • neglect “ has not been caused, superinduced, or brought in any way by the fault of said Oppenheim;" that, by reason of the premises, defendant became indebted to Oppenheim in the sum of $7,200 ; that before the commencement of this action Oppenheim, in writing, assigned to plaintiff all his rights, title, and interest in and to that sum, for which, with interest from June 13, 1891, judgment is demanded. The amended answer admits that defendant is a municipal corporation under chapter 3966 of the , Laws of Florida, and alleges that whatever defendant did in the matters referred to in the complaint was lawfully done ; admits a contract in writing with Oppenheim, March 20, 1890, but denies all the allegations of the complaint as to the terms of that contract; alleges that whatever Oppenheim did in the matter of the block of bonds he purchased and paid for was in part performance-of his said agreement; denies that defendant has used any of the-moneys, proceeds of bonds, unlawfully or in violation of agreement with Oppenheim or witli any one else, and denies that defendant has made any arrangement o,r entered into any agreement for the use of the entire sum, or any part of the sum, of $400,000, “contrary to the stipulations, or any of them, of defendant in said contract in writing of March 20, 1890, between said Oppenheim- and defendant, or in disregard of the terms or provisions of the-law or laws of the state of Florida in said contract mentioned or referred to,” and denies each and every other allegation of the complaint. The amended answer further alleges a counterclaim in the amount of defendant’s damages because of Oppenheim’s failure to accept and pay for the second block of $100,000 of bonds, tendered March 2, 1891, in the city of New York, under the terms of his contract. The reply denies the allegations of the counterclaim.

      W. F. Randel, for pl’ff; B. N. Harrison, for def’t.
   PER CURIAM.

—This action was brought to recover the sum of $7,200, the-rmount of commissions alleged to be-due to plaintiff’s assignor under a certain agreement for purchase of bonds that said assignor, one B. H. Oppenheim, had entered into with defendant. The appeal before ns is by the plaintiff from a judgment entered at the trial term dismissing the complaint. At the' close of plaintiff’s case, in granting the motion of the defendant that the complaint be dismissed, the learned trial judge delivered the following opinion:

“To recover in this action, the burden of proof, is upon the ‘ plaintiff to establish such a breach of the contract on the part of defendant as would entitle Mr.’Oppenheim to recover his whole commission on the whole issue of the bonds to the amount of $400,000. ■ The defendant did not decide not to negotiate the balance of the bonds, and it did not fail to cause them to be prepared; but, on the contrary, the second series of $100,000 of bonds were prepared and tendered to Mr. Oppenheim for negotiation, and were refused by him. Unless Mr. Oppenheim was justified, under tliecon tract, in refusing them, and refusing to go any further, this constituted a breach of the contract on his part, and released the defendant from any further obligation under the contract. The whole case, therefore, turns upon the question whether Oppenheim was justified in his refusal. It is claimed that he was justified by reason of the alleged fact that the proceeds of the first series of bonds had not been expended strictly for the purposes for which the defendant was bound to expend them; but the evidence, in. mv judgment, does not establish the claim. Mr. Oppenheim, under his contract, had no right to control the manner or the order in which the work was to be prosecuted. As long as the expenditures were incurred farwotk within the general scope of the act. n of 1889, or for work preliminary to the inauguration of the system or any part thereof, comtemplated by the act of 1889, it was sufficient. If the application of the proceeds of the bonds can be-questioned at all,—as "to which there may be a strong doubt,—the authorities of the city of Key West necessarily ought to have a discretion in directing all preliminary measures, and in the manner and the order of the prosecution of the general plan authorized by the act of 1889, and Mr. Oppenheim could not control the exercise of that discretion. The resolution referred to by the plaintiff’s counsel is not of itself a breach of the contract. Under all the facts as they appear, the motion to dismiss must be granted. There- béing no dispute as to the facts, there can be nothing tbsubmit to the jury.

A careful examination of the evidence does not disclose any dispute as to the facts. Assuming all the testimony offered by plaintiff to be true, and adopting the inferences most favorable to him, we are of the opinion that he had failed to establish a cause of action." We concur in the conclusion of fact reached by the learned trial judge and with the principles of law applied to the case. The record is free from error.

The judgment is right, and should be affirmed, with costs to the-respondent.


author: WHITE, J.

text:
    Queen City Bank, Resp’t, v. William Hood et al., App’lts.

      (Buffalo Superior Court, General Term,,

      Filed December 23, 1895.)

    Evidence—Deed—Mortgage.
    On an issue as to whether a deed, executed by defendants-to the plaintiff was an absolute deed or mortgage, plaintiff's agent in the transaction
    . should be permitted to state whether he had a conversation in relation to the premises with one of the defendants at the time the deed was given, whether such deed was not taken as intended to be a mortgage, and whether when the deed was given, the defendants were not indebted to the plaintiff and whether there was not an agreement that the defendants should pay a certain sum monthly on the indebtedness, and not as rent.
    Appeal from a judgment in favor of plaintiffs.
    W. J. Shields, for app’lts; Mr. McNaughton, for resp’t.
   WHITE, J.

—The petition which was issued in this proceeding alleges, in substance, that the respondent is the owner iri fee and «entitled to the possession of the premises in question; that about November 14, 1894, it let and rented said premises to the defendants for'the term of five months from December 1, 1894, to May 1,1895, at the monthly rent of $25 in advance, default of the payment of the rent, and that the appellants hold oyer, etc., withoute permission. The answer denies that the respondent owned that premises as alleged in the petition, or that it ever let or rented the premises to the appellants. The meritorious question on this appeal is whether or not evidence offered by the appellants to prove, that a certain deed given by them to the respondent was in fact a. mortgage, and that certain moneys paid by them to the respondent after the giving of the deed were in fact payments on the indebtedness secured by such mortgage, and that relation of landlord and tenant did not exist'between the parties. The appellants ■offered evidence tending to prove, among other things, that the appellants, being indebted to the respondent, transferred to it the.. titled to the premises in question by a deed which was in fact a mortgage; that the appellants undertook to pay $25 a month on that indebtedness; and that no agreement had ever been made by them to take from the respondent a lease of the premises, — in-fine, that the relation of landlord and tenant did not exist between the parties. While it is true, as the respondent contends, that if the deed 'were in fact a mortgage, the relation of landlord and tenant might well be created and exist by virtue of an agreement between the parties to that effect, and chat there was evidence in the case tending to establish that as the fact, yet the exclusion of other competent evidence offered on the part- of the appellants upon the same subject in my judgment constitutes reversible error in the case at bar. The vital question tried was whether or not the relation of landlord and tenant existed, and all competent evidence" tending to establish or controvert that fact should ■ have been" admitted..

A few of a large number of what seem to me to have been er-. aroneous rulings on the admission and rejection of evidence upon this question appear in the return, as follows: The witness Inglehart, for the respondent, had testified to leasing the premises to the appellants, and that he transacted the business of .the respondent with the appellants out of whieh resulted the proceedings to remove them. On his cross-examination he was asked if he had a conversation in relation to the premises with one of the appellants at the time the deed which they claimed was in fact a mortgage was given; he was also required to give the conversation; he was also asked if in fact the deed was not taken as and intended to be a mortgage; also if, when the deed was given, the appellants were not indebted to the hank; also if there was not an agreement that the appellants should pay the $25 on the indebtedness secured by the deed, and not as rent. This evidence was excluded by the court. I think the rulings upon these points were clearly erroneous, and that the order appealed from should be reversed, with costs.

All concur.


author: HATCH, J.

text:
    German-American Bank, App’lt, v. Emma Slade et al., Resp’ts.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    1,. Witness—Section 829 of the Cod®.
    In an action on a note, the testimony of defendant as to statements made to him by a deceased person, through whom plaintiff claims title, tending to establish payment of the note, is inadmissible under section 839 of the Code.
    3. Same—Waives.
    A party does not waive his objection to the admission of such evidence, by subsequently producing evidence on the same subject-matter.
    S. Evidence—Declarations..
    Mere declarations of a prior holder of a chose in action cannot be given in evidence to affect the title or the rights of a subsequent holder and owner.
    Appeal from a judgment in favor of defendants entered on a verdict, and from an order denying a motion for a new trial
    Norton Bros., for pl’ff ; O. O. Cottle, for def’ts.
   HATCH, J.

—The action is one brought upon a promissory note. Defendants answered jointly, pleading nondelivery of the -note to plaintiff for value, denying its ownership or interest therein, and alleging payment prior to the commencement of the action. By the terms of the note, Emma Slade, for value received, promised to pay William H. Slade $2,100; reciting that she was a married woman, and executed the note with a design, and upon the express understanding, that the consideration for which it was given was for the benefit of her separate estate, and making the same a charge upon her real and personal property. It appeared upon the trial that the note was delivered to William H. Slade, who indorsed the same, and delivered it to one Hale, who transferred xit to Isaac H. Badford for value. The latter, for value, indorsed and delivered it to Norton Bros., who indorsed and delivered it to plaintiff, and it credited Norton Bros, with its amount, less the discount, in their account. The note and the amount due thereon having heen proved, plaintiff rested.

The defendants, to establish their defense, called as a witness William H. Slade, who testified, under objection, that the note-was made, executed, indorsed, and delivered to Hale without consideration, and that the same was in fact made for his accommodation; that, some time after, Hale informed Slade that' Radford held the note, and would take in payment for the same a certain house and lot, to which Slade agreed, and executed the deed to Frederick W. Radford, as grantee, and delivered the same to Hale. So far as the testimony relating to the consideration of the note is concerned, the objection was general, and no exception was taken to the ruling of the court, in consequence of which no question is presented. The other question arose in this wise:

“ Q. What transpired in respect to that note after that, — he-paid you nothing, nor anybody else ? A. No, sir. A few days after the delivery of this note to Col. Hale, Hale came to me, and stated that Radford would take a deed of a certain house and lot on Milton street. By Mr. Cothran : We object to this. This man Hale is dead, and this witness cannot testify what he stated to him. By the Court: He can show the arrangement under which this note was made. I will take it, and give you an exception. (Mr. Cothran duly excepted.) A. In payment of the note,—of this note in question; and I accepted the proposition. By Mr. Cothran : We object to this. Mr. Radford was not present at all. By the Court: This is simply describing how this note got into circulation. He has a right to tell what the purpose of the issuing of this note was. (Mr. Cothran duly excepted.)”

This was followed by testimony to the effect that Hale informed Slade that he would give him the name of the grantee, and within a day or two thereafter, requested that it be made to Frederick W. Radford, which was done. Defendants also showed that Frederick W. Radford had, prior to this time, executed a power of attorney to Isaac H. Radford, the holder of the note, empowering him to transact for Frederick his general business, including-the conveyance of real estate, and that the premises were thereafter conveyed by Isaác, acting under the power of attorney, to x>ne Lucas, who thereafter executed a mortgage upon the premises to Ernest W. Clement for $1,700. Of this sum, Isaac Rad-ford received $1,200.

This was all the testimony tendered by defendants to show payment, and upon it the court submitted to the jury the question whether this transaction was had, and whether Radford took the deed as payment of the note, and if so, as to him, it was paid, and the subsequent transfer was a wrongful negotiation of the note by Radford, and that the burden- of proof was shifted to the plaintiff to show that it was a bona fide holder of the note for value and without notice of this infirmity. Exception was taken to this part of the charge, and the court was requested to charge that there was no evidence that Isaac H. Radford was privy to the agreement between Hale and Slade that the conveyance was in payment of the note; also, to charge that it was immaterial what the agreement was between Hale and Slade, unless they found that Radford was privy to the agreement that the conveyance of the property was to be regarded as payment of the note. Both requests were refused, and exception was taken. Hale was dead before the trial was had.

I am unable to see how these rulings can be sustained. According to the record, the court admitted evidence of the agreement between Hale and Slade for the purpose of showing how the note got into circulation. But it had no such effect, was not offered for sych purpose, and, as we have seen, was ■ thereafter treated by the court as tending to establish payment of the note in Radford’s hands. As to how the note got into circulation there was no dispute. It was delivered by Slade to Hale, to "be used by him without restriction; and, at the time when it is testified that this agreement was made, the note was held by Radford for moneys advanced to Hale, and Slade knew that fact. The evidence was inadmissible, under section 829 of the Code of Civil Procedure.

The object of this rule is stated in one well-considered case, viz.:

“ Where death has closed the lips of one party to a personal transaction or communication between him- and another, which the deceased could obviously contract or explain were he living, the othér shall not be a witness to prove such transaction in an action against the representatives of the deceased.” Price v. Price, 33 Hun, 69.

Van Vechten v. Van Vechten, 47 St. Rep. 511 ; Heyne v. Doerfler, 124 N. Y. 505 ; 36 St. Rep. 497 ; McMillan v. Stern, 8 Misc. Rep. 82 ; 58 St. Rep. 829.

It is quite clear that, if Hale were alve, he might contradict or explain the transaction, and it is quite possible that he might agree with Radford, who testifies that the conveyance was for and entirely different purpose than the payment of this note. Hale was the person through whom plaintiff and intervening parties made title to the note, and consequently fajls within the express provisions of the section: The fact that Radford testified upon the subject-matter to which Slade referred does not change 'the rule. Church v. Howard, 79 N. Y. 415 ; Lyon v. Ricker, 141 id. 322 ; 56 St. Rep. 804 ; nor waive the objection, Worrall v. Parmelee, 1 N. Y. 510.

■It is sought to sustain this ruling by invoking the familiar rule "that communications made by an agent are admissible, even though the agent is dead. The difficulty with this position is that the proof fails to establish agency. There was not a syllable of proof that Hale was agent for Radford when the evidence was received. Hale’s declaration could not be used to establish agency, and no inference can arise that he was such agent from the fact that the deed was to Frederick Radford, and that Isaac held a power of attorney from in, in the face of a denial from Isaac shat Hale did not represent him, and that the transaction was oJE an entirely different character from the representations which Hale made to Slade, assuming they were made. Aside from this; the court expressly refused to charge that it was essential or necessary that there should have been any privity between Eadford and Hale in order to uphold the agreement, thus excluding the idea that the transaction was made to depend upon the agency of •Hale. It may be true that, so far as the execution of the deed was concerned, it related to a transaction with Frederick W. Eadford. The deed upon its face established that. But the execution of the deed was not the question which the objection was pointed . at. That related to the consideration for the deed, and therein the statements of Hale affected the right, title, and interest of the holder of the note, who was a different person from the grantee in the deed, but was a person who made title to the note through Hale, and, in consequence, was protected by the statute. If, however, we could reconcile this testimony with the statute, the evidence was inadmissible for another reason.

In Benjamin v. Rogers, 126 N. Y. 71 ; 36 St. Rep. 393, it is said:

“ The rule is unquestioned that the mere declarations of a prior holder of a chose in action cannot be given in evidence to affect the title or the rights of a subsequent holder and owner.”

And this is the uniform rule. Brisbane v. Pratt, 4 Denio, 64 ; Stark v. Boswell, 6 Hill, 405 ; Bank v. McChesney, 20 N. Y. 240 ; Washburn v. Ramsdell. 17 Vt. 299 ; Dodge v. Trust Co., 93 U. S. 379.

Hale’s statement as to what Eadford would take, and surrender up the note, was a mere declaration and hearsay; and uniil it was shown, by competent testimony, that Hale was authorized to speak for Eadford, it could not be received to establish payment of the note or affect its validity in any form. With this evidence rejected, there remained no defense to the note as against the plaintiff. driving full force to Slade’s statement, and holding the evidence competent, that the note was delivered to Hall as accommodation paper, no defense was established. The note was in fact delivered to Hale without restrictions as to use. Eadford parted with value, and became a bona fide holder. The same is true of Norton Bros. The latter teftifies that he transferred the note to-the bank, and thereafter drew from his account $1,000 upon the strength of the discount, and in payment of a part consideration, by virtue of which he received it. The bank took possession, entered it upon its books, gave plaintiff credit in his account for its amount, less the discount, and produces the same upon the trial. In view of these facts, I do not think the evidence of Slade that the plaintiff’s president and cashier said they held the note for collection can avail to defeat the action. The statement is denied by both persons, and Norton Bros, are estopped from denying that plaintiff is not the owner of the note. They had the right to transfer the note to the bank, and vest it with legal title, for value or not, as they chose and defendants could not complain. The parting with value by the bank was only essential to constitute it a bona fide holder, and thus shut out a consideration of the equities existing in defendants’ favor. But when, as we have seen, no such equities existed, and no defense to the note was established, it left the plaintiff with right to enforce it. Sallade v. Gerlach, 26 St. Rep. 594 ; affirmed, 132 N. Y. 548 ; 43 St. Rep. 567 ; Benedict v. Driggs, 34 Hun, 94.

The judgment should be reversed) and new trial ordered; costs-to abide the event


text:
    Frank J. Helmick, Resp’t, v. Lester Churchill, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    Justices op the peace—Jhet.
    Where defendant, after' demanding a jury trial in a justice’s court,, fails to appear, the justice may dismiss the jury and try the case himself.
    Appeal from a judgment in favor of plaintiff.
    James L. Weeks, for app’lt; Dewitt C. Rielly, for resp’t.
   WARD, J.

—Upon -the return day of the summons issued by the justice, the plaintiff complained in an action on contract, and sought to recover for work and labor done for the defendant, and for damages by reason of a breach of contract to remove for defendant certain buildings and tools, and demanded judgment for thirty dollars and costs. The defendant answered, denying each and every allegation contained in the complaint, and demanded a jury for a trial of the issue. A jury was drawn, sworn, and the trial was had before them; but they were unable to agree, and were discharged. The parties agreed that another jury should be-drawn for an adjourned day that was fixed. A venire was issued by the justice for the adjourned day, and upon that day a jury appeared, but were not sworn. The plaintiff appeared, but. the defendant did not; and the justice, after waiting one hour and twenty minutes, dismissed to jury, and proceeded to try the cause, and heard the proofs and allegations of the plaintiff, and rendered a judgment for him for twenty-nine dollars damages and costs. The appellant alleges, as errors, that the justice had no jurisdiction to try the cause, but should have impaneled and swosn the jury, and had the evidence submitted to them, and taken their verdict; also, % that the evidence was insufficient to justify the judgment, and-the justice adopted a wrong measure of damages.

Although the defendant had demanded a jury, he could waive such jury by consent in open court, Hosford v. Carter, 10 Abb. Prac. 452 ; and he could also waive the jury by his neglect to appear on adjourn day, and the justice could proceed to hear the .cause without jury. Kilpatrick v. Carr, 3 Abb. Prac. 117. Code Civ. Proc. § 2995, provides for the drawing of the jury, and if a person whose name is drawn is challenge and set aside, or is excused, another ballott must be drawn, and so oh sueeessivély until the required number of jurors is obtained, and that the parties might e'eei to try the cause by a less number than six jurors, etc. The Code contemplates the presence of both parties when the jury is to be selected. If the plaintiff abandons the case, it is dis; missed, and the jury is discharged. If the defendant fails to appear, the plaintiff is not turned out of court, but may proceed without a jury. The appellant cites section 2861 of the Code of Civil Procedure which proviales that a justice of the peace has such jurisdiction in civil action as is specially conferred upon him by statute, and no other, and then cites section 2989 of the Code, which provides that, where an issue of fact has been joined, if * neither party demands a trial by jury, the justice must try the issue, and hear the allegations and proofs of the parties. These1 sections must be construed in connection with the other provisions of the Code upon the subject, and considered in the light of the purpose of the statute providing for trials in justice court. That-purpose, manifestly, is to confer upon a party the right to a jury trial where he continued in the contest to the end, but not where he is in default, and abandons the action and the court in which it is pending. We are of the opinion there was no error in the proceeding of the justice in this regard.

As to the other question raised by this appeal, we have examined the evidence, and while it is not very full or conclusive, it is sufficient, uncontradicted, if credited by the justice, to sustain his1 judgment. The appellate court'will not be astute to discover errors in proceedings of a justice of the peace in cases of default, where a defendant, refusing to attend upon a trial, awaits hischance of finding some errors by which the judgment can be reversed ; and the rule is well stated in Schoonmaker v. Spencer, 54 N. Y. 366, that it is the uniform practice of the courts, in reviewing proceedings had before a justice of the peace, if possible,, to sustain them by every reasonable and warrantable intendment.

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

All concur.


text:
    Susan Magennis, as Administratrix, etc., Resp’t, v. Nicholas A. Scheid, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Reference -—Compulsory—Partnership.

      ¡ A reference cannot "be ordered to take and state the interest of partners r in firm assets.
    2. Same.
    After the court has ascertained the exact interest of the partners in the • firm property, and determined that interest, a reference to state the partnership account is proper and is authorized by the Code.
    Appeal from an order establishing a partnership, and referring the question of the partners’ interests in the firm assets.
    Frederick Haller, for app’lt; Edward L. Jellineck, for resp’t.
   WARD, J.

—Plaintiff, in her complaint, alleges that her intestate, Edward Magennis, and the defendant had been carrying on the business of rendering grease, tallow, bones, and fertilizers at Oheelctowaga, in Brie county; that alter the death of the intestate the defendant had carried on the business, and had possession of the plant and property connected therewith, claiming to be the surviving partner of the intestate, and had refused to let the plaintiff have access to the business and property in question, — and demands that an accounting be taken of all the dealings and trans■actions between the defendant and the intestate, and to determine whether a partnership existed, and for other relief. The defendant, answering, alleged the existence of a copartnership between, the deceased and the defendant in the said business, and that they were jointly interested therein, and as such copartners were the -owners of the plant and appliances and assets connected therewith, ■and as survivor was entitled to close up the business of the firm, and distribute its assets. The trial court found the facts, showing that a copartnership existed between the deceased and the defendant, and that they had carried on, as such, the rendering business, and in the third finding of fact appears this statement :

“That the precise interest of each of said partners in said business, and as to what property it related, was left uncertain.”

The court found as conclusions of law—First, that the deceased and defendant were copartners in the business, and carried on such business as copartners; and, second, as follows:

“I direct that a referee be appointed to take and state the condition of the copartnership accounts, the interests of each of said copartners in the firm assets, and the property to which such co-partnership related, and the liabilities against said company. Said judgment will direct said referee to take proof of all of said facts, and report the same with all convenient speed to this court, with his opinion thereon.”

The defendant filed exceptions to the conclusions of law, and -appealed from the interlocutory judgment rendered upon the findings of the court, and he insists here—First, that the facts found do not sustain the conclusion of the court that a partnership existed between the plaintiff’s intestate and the defendant; and, second, that the court had no power to direct a reference to take and state the interest of the plaintiff and of the defendant in the firm assets or in the property (that being one of the questions raised by the pleadings in the case), nor did the court have the power to direct a reference to take proof of said facts, and require the referee to report such proofs to the court with his opinion thereon.

The evidence taken before the court as to. the existence of the copartnership does not appear in the appeal books, and is not be'fore us. We have simply the facts found by the court, and its legal conclusions. As to the first point,we ean, therefore, only inquire whether the.facts found were sufficient to justify the legal conclusions reached. Taking the findings of fact all together, there is enough to justify the conclusion as to the copartnership between the intestate and the defendants, but not to determine the exact position of each party in that copartnership, or' his interest in the property. Indeed, the court finds that that question is left uncertain. It is manifest, therefore, that before the accounts can be taken and stated, as between the former partners, the interest of each or the share of each in the business and property must be ascertained. The trial court, instead of ascertaining that as one of the questions at issue in the case, makes a reference for that purpose, and that is the other point of error alleged by the appellant. The only authority that can be claimed for this reference is section 1015 of'the Code of Civil Procedure, which is as follows:

“The court may likewise, of its own motion, or upon the application of either party, without the consent of the other, direct a reference to take an account and report to the court thereon, either with or without the testimony, after interlocutory or-final judgment, or where it is necessary to do so for the information of the court, and also to determine and report upon a question of fact arising at any stage of the action; upon a motion or otherwise, except upon the pleadings.”

That part of the order of reference referring to the referee to take and state the interests of the partners in the firm assets and the property to which such copartnership related cannot be sustained. That question arose upon the pleadings, and was at issue in the action, and it was the duty of the court to decide that question upon testimony taken before it; where the court could have -the benefit of seeing the witnesses, observing their appearance and manner of testifying. This was a right that the parties could insist' upon, and the duty of taking this testimony could not be relegated to a referee. Had the court ascertained the exact interests of the' partners in the firm property, and determined that interest, then a reference to state the partnership account would have been proper, and is authorized by the Code. In Doyle v. Met. E. Railway Co., 136 N. Y. 505 ; 49 St. Rep. 746, the court, against the defendant’s objection, appointed a referee to take testimony as to the value of any easement or property taken or interfered with by the defendant, and as to the amount of the rental loss that the plaintiff had sustained, and to report the same, with his opinion thereon". It was held that the court had no power to direct such a reference. That case is controlling here.

The interlocutory judgment should be reversed, and a new trial-ordered, with costs to abide the final award of costs.

All concur.


author: ADAMS, J,

text:
    Ralph T. Norton, App’lt, v. Albert T. Fancher, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Contract—Entirety—Performance.
    A contract to furnish material and make certain improvements for a specified sum on the land of another is an entirety, and such work and materials are at the contractor’s risk until completion.
    3. Costs—Of course.
    On the recovery of $50 or more in an action for money only whether at law or in equity, the plaintiff’s right to cost is absolute and the court has no discretion.

      3. Same—Appeal.
    A court's refusal, in an action at law, to allow the plaintiff costs to which he is entitled by statute is reviewable on appeal.
    Appeal from a judgment in favor of plaintiff for a smaller sum than demanded and denying him costs. °
    The action was brought to recover the balance alleged to be due upon a contract entered into between the parties, by the terms of which the plaintiff,' for a consideration, duly expressed, undertook to lay a quantity of tile, and to do certain filling and grading ■upon the defendant’s premises. There is no question but that the ■work was satisfactorily performed and the contract in all respects fulfilled upon the part of the plaintiff, but it appears that, while engaged in its performance, 897 cubic yards of earth filling was washed out of the ravine into which it had been placed, by reason ■of the occurrence of an extraordinary freshet, and without any fault upon the part of the plaintiff. The earth thus washed out was replaced by the plaintiff, and he claimed the right to recover therefor at the same rate fixed by the contract for doing the work originally. By the stipulation of the attorneys for the respective parties, a jury trial was waived, and the action was tried by and before the court, which'awarded .the plaintiff the balance due upon the contract, not including the claim for replacing the earth washed out by the freshet. No costs were allowed to either party.
    Stone & Norton, for app’lt ; Walter S. Jenkins, for resp’t.
   ADAMS, J,

—It is cenceded by both parties that the contract which constitutes the subject-matter in. this action was entire in its character. By its terms, the plaintiff was to perform certain work-and accomplish certain'results at a stipulated price. While the work was progressing, an unavoidable accident occurred, and a considerable portion of the earth filling was washed away, without the fault of any one, in consequence of which it had to be replaced by the plaintiff. This, undoubtedly," proved a serious matter for the plaintiff, and put him to trouble and expense not contemplated by either himself or the defendant at the time of entering into the contract; but, for this very reason, which probably accounts for the contract being silent upon the subject, the law requires that he shall be the sole sufferer. Harmony v. Bingham, 12 N. Y. 99; Tompkins v. Dudley, 25 Id. 272; Williams v. Vanderbilt, 28 Id. 217; Dexter v. Norton, 47 Id. 62; Booth v. Mill Co., 60 Id. 487.

The troublesome question presented by this appeal arises upon the omission of the trial court to award costs to the prevailing party. The action was one at law. A money judgment was demanded, and the amount recovered by the plaintiff largely exceeded the sum of $50, and yet ye was denied costs. This determination is undoubtedly accounted for by the fact that the parties waived their right to a jury trial, and agreed to submit their differences to the court, which tribunal thereupon treated the case as of an equitable nature, and one in which the rule as to the awarding or withholding of costs might be applied upon equitable principles. Had the learned justice been at liberty to adopt such • a rule, there is much in the case which would seem to justify the conclusion reached; but I think the action is one in which the court was deprived of the right to exercise its discretionary power in respect of the matter of costs. As has just been suggested,, the plaintiff’s complaint demands judgment for a sum of money; and therefore, whether the action was one cognizable by a court ■ of law or equity, in the event of a recovery of an amount exceeding $50 he was entitled, as a matter of right, to his costs. Code Civ. Proc. § 3228, subd. 4; Murtha v. Curley, 92 N. Y. 359.

But it is contended the error is one which should be corrected by motion, and not made the subject of appeal. This would be so, undoubtedly, if it were the result of mistake or inadvertence, and not an error of judgment. Genet v. D. & H. C. Co., 113 N. Y. 472-475; 23 St. Rep. 111; Stannard v. Hubbell, 123 N. Y. 520; 34 St. Rep. 413. The learned trial justice has assumed, however, to adjudicate the matter of costs; and, if the action were really equitable" in its nature, it'is very clear that his judgment could be reviewed only by appeal. Stevens v. Veriane, 2 Lans. 90. In the case cited, the court (see opinion, Mullin, J.) appeared to think a different rule would obtain in an action at law; out I am unable to conceive of any reason why this should be so, for, in assuming that he had the right to refuse costs, the learned justice committed a judicial error, just as much as he would have done had he reached an improper conclusion upon the merits; and it is well settled that any change or modification of a judgment which involves the merits of a controversy can only be accomplished by an appeal or a motion for a new trial. McLean v. Stewart, 14 Hun, 472; Rockwell v. Carpenter, 25 Id. 529.

The judgment appealed from should therefore be amended so as to award costs of the action to the plaintiff, and, as thus' amended, should be affirmed, but without costs of this appeal.

All concur, except WARD, J., not voting.


author: FOLLETT, J.

text:
    The People, Resp’t, v. Caroline Kraft, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Evidence—DyiNO declabations.
    Declarations made in apprehension of death hy a sick or wounded person, in respect to the cause of his condition, are admissible in trials for murder and manslaughter when the cause of the declarant’s death is a fact in issue.
    2. Same—Question oe law.
    Whether .the-declarations are made in apprehension of death, and after the declarant has lost all hope of recovery, is to be determined by the jury. s

      3. Same—Weight.
    Such declarations are not entitled to the same weight as evidence, as though the declarant had stated the same facts on the trial, and an opportunity given to cross examine and observe the demeanor of the witness.
    ■ Appeal from a judgment convicting the defendant of manslaughter in the first degree.
    The declaration referred to in the opinion was made under the following circumstances : On the night deceased went to the hospital, three or four days before her death, she was visited by the coroner, who, after eliciting her name and residence, inquired of her whether she thought she could recover, to which deceased answered, “No.” The coroner then asked deceased whether she believed she was going to die, to which she answered, “Yes,” and then proceeded to tell how she came by her -injury. It did not appear that deceased suffered pain at this time, or that she had been informed of her dangerous condition, or had made any preparations for death; and, excepting her answers to the coroner’s questions, there was nothing to show that she realized that she was then about to die.
    William F. Howe, for app’lt; John L. Lindsay, for people.
   FOLLETT, J.

The indictment charges that the defendant on January 14,1893, by the use of an instrument called a “catheter,” attempted to procure the miscarriage of Bertha Kern, who was then pregnant, and that by means thereof she died. The evidence upon which the defendant was convicted Consisted of the dying declaration of Bertha Kern, which was made January 28, 1893, to Michael J. B. Messemer, a coroner, and was reduced to writing, and signed by the decedent. Hearsay evidence is a statement made by a person not called as a witness,"which is received in •evidence on the trial, to which class dying declarations belong. Declarations made in apprehension of death, by a sick or wounded person, in respect to the cause of his condition, are admissible in trials for murder and manslaughter when the cause of the declarant’s death is a fact in issue. It i¿ unnecessary to state the reasons for this rule which has so long prevailed. Its history is given by Mr. Justice Stephen, at page 446, in the first volume of his History of the Criminal Law of England. Whether the declarations were made in apprehension of death, and after the declarant had lost all hope of recovery, is to be determined by judge; and the learned recorder rightly determined this question, and properly received the declaration in evidence. In instructing the jury as to the . weight which should be given to it, he said:

“ So that I charge you, gentlemen, that this testimony which has been introduced relative to the dying declaration of this girl is competent testimony, and proper for you to consider; and it is your duty to take it into consideration, -because it is evidence for you, and it is given all the sanction of evidence which the law can give to evidence.”

To this instruction the defendant’s counsel took an exception, and it is now urged that it was error for the court to instruct the jury that “it [the dying declaration] if given all the sanction of evidence which the law can give to evidence.”

The highest species of testimony is that given by an intelligent and wholly disinterested witness, who observed under favorable circumstances the facts testified to. The recorder, by his instruction, declared that a dying declaration is given all the sanction or weight which the law can give to evidence. This was more than saying to the jury that the declaration was entitled to the same weight as if the same facts had been testified to by the declarant under an examination and cross-examination before the jury. One of the principal means of testing the credibility of testimony is the right to cross-examine a witness, and develop every fact legitimately bearing upon the statement. When a dying declaration is read in evidence, there is no-opportunity to cross examine the declarant, and no opportunity for the jury to see the witness, and determine in respect to his intelligence and fairness. So far as we know, the question as to the weight to be given to such evidence has been considered in but one reported case in this state. In People v. Knapp, 1 Edm. Sel. Cas. 177, Mr. Justice Edmonds instructed the jury as follows :

“And though that statement [the dying declaration] had been made with all the solemnity of a consciousness of approaching deatli, and therefore entitled to the same weight as her testimony would have been if given personally before them, yet it was not entitled to any more, and was to be weighed and tested, as to its credibility, by all the other circumstances of the cáse."

In that case the defendant was acquitted, and the instruction was not reviewed.

The question as to the weight of such declarations has been discussed by many text writers, and all agree that it is not entitled to the same weight as though the declarant had stated the same facts on the trial, and an opportunity given to cross-examine, and observe the demeanor of, the witness. 3 Russ. Crimes (5th Ed.) 361, 362 ; 1 Tayl. Ev. (6th Ed.) p. 646, § 652 ; Rose. Cr. Ev. [9th. Ed.) 37; Field Ev. (4th Ed.) 157 et seq.; Best, Ev. (5th Ed.) 637; Whaat. Hom. (2d Ed.) § 472; Whart. Cr. Ev. (8th Ed.) § 276; 1 Greenl. Ev. [13th Ed.) § 162; 1 Phil. Ev. (Edward’s Ed.) 298; 2 Poth. Obl. (3d Am. Ed.) 250. The dangers of implicity relying on dying declarations are clearly pointed out by Mr. Justice Appleton, in his learned work on Evidence, at page 202 et seq. But we are not left wholly to the authority of text writers. The question has been considered in three of the states of this Union, where it was held that the same weight should not be given to a dying declaration-as would be given to the same statements testified to in the presence of the jury. State v. Green, 13 Mo. 382; State v. McCannon, 51 id. 160; State v. Vansant, 80 id. 67; State v. Mathes, 90 id. 571; Lambeth v. State, 23 Miss. 358 ; Walker v. State, 37 Tex. 366. Upon principle, such declarations are not entitled to as much weight as should be given to the highest species of testimony, nor to as great weight as should.be given to the same statements testified to by the declarant when in health, and subjected to a cross-examination before the trial court. The person receiving the declaration seldom has sufficient knowledge of the circumstances of the alleged offense to conduct a proper cross-examination, and the situation of the dying person usually prevents a searching inquiry. ' Again, it is not the experience of mankind that the apprehension of immediate death, from which there is no hope of escape, is always sufficient to induce persons so situated to speak the truth. Criminals convicted on the most convincing evidence often assert their innocence whi]e standing face to face with their executioners, and those who have committed offenses frequently impute their downfall to others, on the theory that their conduct will seem less culpable in the eyes of ‘’their friends and of the world; and in such cases the conduct of each wrongdoer is seldom as fully and accurately disclosed in the dying declaration as it would be by an examination in court. Without further giving the reasons why such declarations are not entitled to the highest degree of credit, which are fully stated in the authorities cited, we are of the opinion that the court erred in instructing the jury in respect to the weight which should be given to the declaration, and, for this reason, that the judgment should be reversedj and a new trial granted.

VAN BRUNT, P. J., and PARKER, J.—We concur in f-e opinion of Mr. Justice FOLLBiTT, except in so far as it holds that the dying declaration was admissible under the proofs in this case. We think it was not.