author: Talcott, P. J.: Hardin, J.,

text:
    FRANK M. BAKER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error. SAME v. SAME. SAME v. SAME.
    No. 2,
    No. 3,

      iSemice of Simmons by publication — validity of judgment of divorce entered thereon — Effect of citizenship and domicil of defendant — Effect of general verdict on indictment, with one count not sustained.

    In a suit for divorce, a valid judgment, in personam, may be rendered against a defendant, not during the progress of the suit within the territorial jurisdiction of the court rendering it, provided that be the place of his citizenship and domicil, though process be served on him only in some method prescribed by the law of that jurisdiction, as a substitute for personal service, and though he has not voluntarily appeared; and such judgment is effectual to dissolve the marriage contract, and will be prevalent and effectual everywhere.

      Seirible, that such judgment would have the same effect, where the defendant was not a citizen of, or domiciled within the State giving jurisdiction to the court, and especially where the marriage sought to be annulled was celebrated therein.
    Reargument ordered as to the effect of-a general verdict upon an indictment containing several counts, one of which cannot be sustained, by reason of facts established by the defense upon the trial.
    Writs of error to the Court of General Sessions in and for the county of Cayuga, to review the conviction of the plaintiff in error of bigamy.

      A. P. Leming, for the plaintiff in error.
    By the first section of the fourth article of the Constitution of the United States, if the jurisdiction of the court of another State be established, the judgments rendered by it shall be conclusive as to their merits to the same extent as a domestic judgment, so that they cannot be contradicted or impeached anywhere after having been shown to have been rendered in good faith, without fraud, and in accord with the existing law in the State in which they were decided. (Livingstone v. Maryland Insurance Co., 6 Cranch, 274 ; Talbot v. Seeman, 1 id., 1, 38; Baynhcim v. Canton, 3 Pick., 293; Consequa, v. Willings, I Peter’s Cir.' R., 225, 229 ; Church v. Hubbard, 2 Cranch, 187, 238. See, especially, James v. Allen, 1 Dali., 188 ; Phelps v. Holker, id., 264; Hitchcock v. Arckeh, 1 Caines, 460, 479 ; Kibbe v. Kibbe, Kerby, 119 ; Vandervoorst v. Smith, 3 Caines, 155 ; Yeaton v. Try, 5 Cranch, 335, 343., See, also, McElrnoyne v. Cohen, 13 Pet., 312, and DArcey v.. Ketchum, 11 How. [U. S.j, 165; Insurance Co. v. French, 15 id., 406; Thompsons. Whitman, 18 Wall., 457.) The act of sixteenth of May, 1790, chapter 11, which declares that sxich proceedings, duly authenticated, shall have such faith and credit given them, within every court of the United States, as they have by law or usage in the courts of the State from whence the records are taken, is valid and obligatory in any court in the United States. (Mills v. Duryea, 7 Cranch, 481; Hampden v. McConnell, 3 Wheat., 234 ; 1 Kent’s Com. Lectures, 12, pp. 243, 244; United States v. Amedy, 11 Wheat., 392 ; Buckner v. Finlay, - 2 Pet., 592; Oioings v. Hall, 9 id., 627 ; McElrnoyne v. Cohen, 13 id., 312 ; '
      Stacey v. Thrasher, 6 How., 44; Bank of Alabama v. Dalton, 9 id., 522; D’Arcey v. Kelchum, 11 id., 165; Booth v. Clark, 17 id., 322; Craig v. Brown, Pot. C. C., 354; Gardner v. Lindo, 1 Cr. C. C., 78; Turner v. Waddington, 3 Wash. C. C.-, 126 ; Gatlin v. Underhill, 4 MeL,, 199.) The wife may acquire a separate domicil, whenever it is necessary or proper that she should do so ; and the proceeding for a divorce may be instituted where the wife has her domicil; the place of tjio marriage, of the offense, and of the domicil of the husband, are of no consequence. , (Cheever v. Wilson, 9 Wal., 108, 123 ; Strader v. Graham, 10 How. [U. S.], 82 ; Bennett v. Bennett, Deady, 299; 2 Bishop on Marriage and' Divorce, 475 ; Barben' v. Barber, 21 How. [U. S.], 582 ; Canned v. Buckle, 2 P. Wills., 243, 244 ; Ex parte Strangeways, 3 Ark., 478; Brooks v. Brooks, Pro Ch., 24; Wheeler v. Wheeler, 2 Dana, 310; Denton v. Denton, 1 J. C., 2, 364; Purcell v. Purcell, 4 Hcn.-Mansf., 507 ; Williams v. Dormer, 16 Jur., 366 ; 9 Eng. L. & Eq., 598; 2 Robertson, 505.) It is sufficient for the validity of a divorce that one of the parties only be domiciled in the country, and the citation need not be served personally on the defendant. (Ditson v. Ditson, 4 R. I., 87, 102, 103; Cooley’s Const. Lim. [2nd Ed.], 401, and note; Irby v, Wilson, 1 Deo. & But. Eq., 568; State v. Sclachter, Phillips [No. Car.], 520; Harding v. Adden, 9 Green!., 140; 2 Kent Com. [6th ed.], 110, note; Mansfield v. McIntyre, 10 Ohio, 27 ; Tolen v. Tolen, 2 Blackf., 407; Hidl v. Hull, 2 Strob. Eq., 174; Cooper v. Cooper, 7 Ohio, 238; Harrison v. Harrison, 16 Alb., 499; Gleason v. Gleason, 4 Wise., 64; Hubbell v. Hubbell, 3 id., 662 ; Thompson v. The Slate, 28 Ala., 12; Schafer v. Bushnell, 24 Wise., 327 ; Hood v. Hood, 11 Allen, 196; Beard v. Beard, 21 Ind., 321; Bhyms v. Rhyms, 7 Bush., 361; Wilcox v. Wilcox, 10 Ind., 436; Schreck v. Schreck, 32 Texas, 578 ; Pennoyer v. Neff, The Reporter, March 20, 1878, p. 352; Code, § 438, sub. 4.) Baker, after such divorce, was not a married man within this State. (Ponsford v. Johnson, 2 Blatch., 51; Dickson v. Dickson, 1 Ycrg., 110; Shelf on Mar. andDiv., 476, 478; 4 Kent Com., § 54; 2 Black. Com., 180; 2 Edw. Ch. R„ 596; 5 Barb. S. Q. R„ 117; Story’s Confi. of Laws, §§ 620, 621.)

      S. F. Payne (District Attorney,) and II. M. Selden, for the people.
    The Ohio divorce record offered in evidence was, in this State, whatever may have been its effect in Ohio, utterly void. (3 Am. Lair Reg. [N. S.], 200,'§'§ 10, 11,12, per Judge Redeield.) Such publication gives no jurisdiction over the party to whom the notice is addressed;, such- party being- a resident of another. State; (Borden v; Filch, 15 Johns., 121,. 141, el seq.; Kerry,. Kerr, 41 N. Y., 274, 275; Phelps y. Balcer, 60 Barb., 107;. Dumv v. Dunn, 4 Paige, 425,. 430; Vischer v. Vischer, 12 Barb.,.644,, 645; Holmes v. Holmes, 4 Lans., 388; Moe y. Moe, 2 N. Y. S.. C,, 647; McGifferty. McGiffert, 31 Barb., 69; Shumway v. SlilU man, 6 Wend., 447, 453; Bradshaiu y. Heath, 13 Wend., 418;; 2 Kent’s Com,, 109; Windsor y. McVeigh, 9.3 U. S.Rep. [3 Otto], 277.) There were some decisions in the English courts, under the1 English- statute of bigamy which does not differ materially from.' ours, as far as relates to the present question, which would- justify-the introduction of evidence tending to show good faith on the. part of the person charged with the offense, but those decisions have been overruled. {Beg. v. Turner, 9 Cox’s C. C,, 145; Beg. y. Horton, 11 id;, 670; Beg. v. Gibbons, 12 id., 237; S; C. 4 Eng. Rep. jby Moak], 527; Commonwealth v. Thompson, 7 Met.,. 472; Commonwealth y. Thompson, 6 Allen,, 592.
   Talcott, P. J.:

The three several writs, of error in these cases each, brings up; the record- of a.conviction of the- plaintiff'in error, before the-General Session of Cayuga county, for bigamy.

The case distinguished as No. 1. brings up, as a part of the record, an indictment against the plaintiff in error, by the grand-jury of- the county of Cayuga, which; charges that the plaintiff in error on the Sth day of February, in the year 1871, at the-town-of Fremont, in.the State of Ohio, married.one Sallie West,, and that afterwards, on the- 14th day of November, 1,874, and-while he was so married to the said Sallie West, he did feloniously and unlawfully marry and take to wife one Eunice- Nelson,. while the said Sallie West, his former wife,.was then living.-

To this indictment the defendant plead not guilty, and-the case calne on-to be tried, before the said General Sessions of' Cayuga-. ■county, oil the 23d day of February, in the year 1877.. The bill of exceptions taken on the said trial shows the marriage of the plaintiff in error to the said Sallie West, at Fremont, in the State of Ohio (where the said Sallie West at all times before the said marriage had resided), on the 8th day of February, 1871, and that the said Sallie West had continuouslyresided in the State of Ohio aforesaid, from 1872 until her death, 'which occurred in December, 1876, and that she married one C. H. Murray, about a year before her death, and had a child after her marriage to Murray. That on the 14th day of November, 1874, the plaintiff in error was married to Eunice Nelson, as charged in the indictment.

, The counsel for the plaintiff in error gave evidence tending to-prove that, before the marriage to Eunice Nelson, the plaintiff in error had been informed and.believed that the said Sallie West, to whom he was first married, had obtained a divorce from him, and that the marriage contract between him and the said Sallie (otherwise known as Sarah N.) had been annulled;, and the said plaintiff in error then offered in evidence an exemplified copy of the. proceedings and the judgment of the Court of Common Pleas of the county of Seneca, in. the State of Ohio, the same being a court of record of that State, showing that .the said Sallie. (or Sarah), on the 30th day of March, 1874, had filed, in the clerk’s office of the said court, her petition, in which she represented that she had been a resident of tlie State of Ohio for a year then last past, and was then a bona fide resident of said county of Seneca, and setting forth her said marriage to the plaintiff in error, then stated in the said petition to be “of parts unknown;” that she cohabited with him at Brooklyn and at Rochester, New York, until 1872, when, in view of. approaching child-birth,, she, at the request of her husband, left Rochester, N. Y.rfor the purpose of remaining with her relatiyes until after her child should be born, and that the plaintiff in error promised ,to follow soon after, so as to be with her in her said confinement; that, in fact, he .has never followed her, nor asked her to return to him, nor has he.advise4 her of his whereabouts, or contributed one cent to her support. The said, petition then charges that her said husband had been guilty-of gross neglect of duty, and has. greatly wronged, the, peü-, turner, and prays that the said marriage contract be annulled and set aside, and that she may be divorced from her said husband;; that the care and custody of her child be decreed to her, and that she- may have alimony awarded to. her.

Afterwards, on the 8th day of January, 1874, proof of publication of notice was filed in the clerk's office of said court, which notice is fully set out in the said record, together with the proof of the publication thereof, which shows that it was published, for six weeks successively, immediately prior to the 1st day of June,-1874, in the “ Seneca Advertiser,” a weekly newspaper printed and-of general circulation in the said county of Seneca; and afterwards,: at the June term of said court, in the year 1874, as appears by the said record, the cause came on and was heard ‘upon the petition and testimony, “ upon consideration whereof the court fincl that due notice of the filing and pendency of said petition was given to the said defendant, Francis M. Baker, according to law,” and that the said defendant, Baker, has been guilty of gross neglect of duty to the said plaintiff, as in said petition alleged; and it was, “therefore, adjudged and decreed that the marriage contract heretofore (theretofore) existing between the said parties be, and the same is, hereby set aside and wholly annulled, and the said parties wholly released from the obligations of the same,” etc.

The counsel for the plaintiff in error also offered in evidence the Revised Statutes of Ohio, showing that the proceedings mem tioiied in the said record were regular, and in all respects sufficient to annul the marriage contract between the plaintiff in error and the said Sallie, and that the court had jurisdiction to pronounce such judgment, and that the same was valid and binding between the parties under the laws of Ohio. Parts of the statute are set forth in the record. It appears from an examination of its provisions that the several courts of Common Pleas of said State have the cognizance of granting divorces for various causes, among others, for “ gross neglect of duty,” and authorizing the court to proceed upon publication of the summons, in the manner and for the time shown by the said record of judgment, and providing that all applications for divorce shall be made in the county where the complainant bona fide resides1 at the time of the application, and that he or she must have been a resident of the State of Ohio .at least one year next before the filing of his .or her petition.

On this judgment record, accompanied by the statute of said State being offered in evidence, the district attorney objected to their reception, upon the ground that the court in which the judgment was pronounced had no jurisdiction over the defendant in that suit, the plaintiff in error .and the .subject-matter of the action; and the said court thereupon decided that -the evidence was incompetent for any purpose, except .as showing the intent of the defendant, .and received the evidence for that purpose only, to which ruling the counsel for the defendant excepted. At the close of .the .evidence, the .court charged the jury, among other things, “that the divorce obtained by Sallie West, his first wife, fogainst the defendant in the .State of Ohio, will not protect him in this State, although it would protect him in the State of Ohio, and that said Sallie, notwithstanding .such divorce, was still his lawful wife, and the defendant was her husband.” To which charge the defendant, by his counsel, excepted.

There seem to be no question but that, under the laws of Ohio, the court of Common Pleas of Seneca county had jurisdiction of the subject-matter. As to jurisdiction of the person of the plaintiff in error, in an- action of this character, obtained without the Services of process, we are relieved from a minute examination of the numerous cases that have been decided in this State, and elsewhere, by the recent decision of the Court of Appeals, in Hunt v. Hunt (MSS. Court of Appeals; Albany Law Journal, June '22, 1878, p. 421), in which case this whole subject has been Very elaborately considered, and in which that court holds a divorce obtained in Louisana, without service of the process on or voluntary appearance of the defendant, but by the appointment of a curator ad hoc, valid and binding in this State upon the party so brought into court.

In that case, the court, by the opinion of Folgee, J., says: “ It is our conclusion, whatever grounds may be stated, that, in a suit fox4 divoi’ce, a valid judgment, in personam, so as to effect a dissolution of the marriage contract, which shall be prevalent Everywhei'e, may be rendered against a defendant not within territorial jurisdiction during the pi’ogress of the suit, if that be the place df his citizenship and domicil, though process be served on him only in some method prescribed by the law of that jurisdiction, as a substitute for personal service, and though he has not voluntarily appeáred. We need, hi this case, to take-no position more extreme than this.”

It will be seen, therefore, that the ruling in the case of Hunt v. Hunt is ndt extended beyónd cases in which the citizenship and domicil of the party proceeded against is within the jurisdiction in which the proceeding for a divorce is taken.

In the case of Hunt v. Hunt, it was'not necessary to go farther than this; but, having held that a validhnd binding decree may be made in an action for divorce, “ Which shallbe prevlileiit everywhere,” without service of process upon the absentee, or voluntary appearance, it is probably doubtful whether the limitation of the 'decision in Hunt v. Hunt, to those cases in which the party proceeded against is a citizen of the State in which the judgment is rendered, or has his domicil there, will be maintained. The same reason for rendering the. proceedings for a divorce in such case valid and binding everywhere, provided the pixrty applying is, in good faith, a resident Avithin the jurisdiction Avithin Avhich the judgment is pronounced, seem to' apply, Whether the party proceeded against is a citizen of that jurisdiction, or has his domicil there or olseAvherfe, especially Avhere the marriage 'sought to be annulled Avas performed Avithin the jurisdiction b'f the State in which the judgment Avas rendered, and derives its binding force and its incidents from the krws of that jurisdiction.

The laiv df this State, under Avhich a judgment 'May bfe 'obtained in an action for 'divorce against an absentee, by siibstitiited service, does not make it necessary to the validity of the judgment that the party proceeded against should be a citizen of this State, or have his or her domicil here. As it ivas siiid by the court, in Harding v Alden (9 Greenl., 140), Avhere the Supreme Court of Maine upheld a Rhode Island divorce, Avhere prócess av:is not served Avithin the State: “If We• refuse to give full faith and credit to the decree of the Supreme Judicial Court of Rhode Island, because the party libeled had his domicil in another State, and Avas not Avithin their jurisdiction, Ave refuse to accord to the decrees of that court the efficiency Ave claim for our oavii, when. liable to the same objection.” (And see Bishop on Mar. and Div., § 736; Hood v. Hood, 11 Allen, 199; Ditson v. Ditson, 4 R. I., 109; Mansfield v. McIntire, 10 Ohio, 29; Harrison v. Harrison, 19 Ala., 499; Thompson v. The State, 28 Ala., 13; Hull v. Hull, 2 Strobbart’s Eq. R. [S. C.], 174; Tolen v. Tolen, 2 Blackf. [Ind.], 407.)

In the present case, however, the presumption arising from the evidence is, that the plaintiff in error was a citizen and domiciled within the State of Ohio at the tune when the proceedings, which terminated in a judgment annulling the marriage between him and Sallie West, were commenced.

' The first we hear of him is the solemnization of the marriage between himself and Sallie West, at Fremont, in the State of Ohio, and presumptively he was then domiciled there. Some time after this it appears that he was for a time with his wife in Brooklyn, and afterwards in Rochester, in this State; that she returned to Ohio, and he' represented that he was about to follow her to that State, since which time his movements seem to have been precarious and uncertain, so that his wife did not know where he was when she filed her petition in the Court of Common Pleas of Seneca county for a divorce. These facts are sufficient to raise the presumption that he was a citizen of the State of Ohio, where the evidence first shows him to be, and there had his domicil, in the absence of any testimony that he had elected to change it to this State. And, at all events, it was a question of fact whether he had elected to remove his domicil from the State of Ohio, and should have been left to the jury for decision. But the ruling of the court excluded from the jury all questions as to the citizenship or domicil of the plaintiff in error, by the ruling that the Ohio divorce was wholly void, and could have no effect in the case, except as evidence on the question of the prisoner’s intent. For these reasons the judgment of the General Sessions, whereby the plaintiff in error was sentenced to imprisonment for the term of five years, upon his conviction for having married Eunice Nelson while he was married to the said Sallie West, was erroneous.

Therefore, the conviction and judgment of the General Sessions, in the first of the three indictments against the plaintiff in error, is reversed, and the proceedings are remitted to the General Sessions of Cayuga county, with directions for a new trial.

The other two convictions, brought up on the several writs of error, are as follows : The indictment in the case designated as No. 2 charges the marriage with Sallie West, and a subsequent marriage, on the thirteenth day of July, 1875, with one Christiana Everson, the said Sallie West then being living. And a second count in the same indictment charges the marriage with Eunice Nelson, on the fourteenth day of November, 1874, and a subsequent marriage with said Christiana Everson,:- during the lifetime of the said Eunice Nelson.

The indictment in the case designated as No. 3 charges the marriage with Sallie West, and the subsequent marriage to M. Fredricka Delano, at Rochester, on the seventh of October, 1876, the said Sallie West being yet living. A second count in the same indictment charges the marriage to Eunice Nelson, and the subsequent marriage to M. Fredricka Delano, while the said Eunice Nelson was yet living. And a third count in the same indictment charges the marriage to Christiana Everson, and the subsequent marriage to M. Fredricka Delano, while the said Christiana Everson was living.

The evidence concerning the divorce granted by the Court of Common Pleas of the State of Ohio, and of the laws of Ohio applicable to the case, was substantially the same as in the case of the first indictment. The plaintiff in error was convicted on the said indictments, numbered, respectively, two and three; and the court, on each of such convictions, sentenced the plaintiff in error to be imprisoned in the State prison at Auburn for the term of five years, to commence, in each case, at the termination of his former sentence.

The verdict in each of the cases numbered two and three was general, to the effect “that the said Frank M. Baker is guilty, in manner and form, as, by the indictment aforesaid, is alleged and charged against him.” . The judgments in all the cases were signed on the same day, but the trial iu case No. 1 appears to have taken place on the 23d of February, 1877; in case No. 2, on the 26th of February, 1877, and in case No. 3, on the 27th of February, 1877, and the sentence in each case to have been pronounced on the day of the trial of that case.

The first question which arises in the cases numbered two and three is, since the conviction upon indictment number one is reversed, what is the validity and effect of the judgment in case No. 2, that the plaintiff in error be imprisoned for five years, “ to commence at the expiration of his former sentence,” and'when does that sentence take effect? And, also, when does the sentence in case No. 3 take effect ? And, secondly, ivhat is the validity and effect of the verdict in the cases numbered two and three, since it appears, by the reversal of the conviction in case No. 1, that one of the counts in the indictment in each of the other cases cannot be sustained by reason of the Ohio divorce.

The learned counsel on both sides devoted their entire and very able arguments and attention to the question of the validity of the Ohio divorce in this State; and, while we have certain impressions as to the effect of a general verdict upon an indictment containing several counts, one of which it is held, cannot be sustained by reason of facts established by the defense -; yet the counsel have not been heard on the subject, and we do not desire to pass judgment upon a question of so much importance to the plaintiff in error, and to the people, without being advised by the counsel for both parties.

We, therefore, order a reargument in the cases respectively numbered two and three, to the end that the points suggested may be carefully considered accordingly.

A reargüment is ordered in the cases respectively numbered two and three.

Hardin, J.,

concurs; Smith, J., dissents, in case No. 1, on the ground that, on the evidence in the case, it appears that Baker was not a citizen of, or domiciled within, the State of Ohio at the ’time of the proceedings for a divorce, but was domiciled in the ' State of New York.

Case No. 1. The conviction and judgment of the General Sessions of Cayuga county reversed, and the proceedings remitted to the General Sessions of Cayuga county, with directions for a new trial.

Cases Nos. 2 and 3. Reargument ordered.


source: Caselaw Access Project

author: Talcott, P. J.:

license: Public Domain

text:
    HARVEY ROBINSON and MELVILLE M. McDONALD, Respondents, v. WILLIAM GILFILLAN, Appellant.

      One'partner •'cannotmaintain trover against his copartner — How title toprop'erty passes from cme partner to the.'jirm,

    Plaintiffs and defendant were engaged in carrying on business as partners, the articles of Copartnership providing that tlie capital contributed by the plaintiffs should belong to them respectively and exclusively. The plaintiffs purchased a lathe and other machinery, which were put in the shop in the custody of defendant, who was to carry on the business, and one-half the cost of which machinery was, by One of the plaintiffs, credited to each of them upon the books of the firm.

      Held, that, by the credit of the cost of the machinery to the plaintiffs, the machinery became the property of the firm, and that the same having been removed by'the defendant, the paintiffs could not maintain trover therefor.
    Appeal from a judgment in favor of the plaintiffs, entered in Onondaga county upon the report of a referee.

      D. Bookstaver, for the appellant.
    • Fuller & Vann, for the respondents.
    It is well settled that a partner can maintain an action at law against his copartner, before ■a dissolution or an accounting, if the obligation, contract or thing, though relating to the partnership business, is separate and distinct from all other matters in question between the partners, and can be determined without going into the partnership accounts. (Paine Y. Thatcher, 25 Wend., 450;- Venning v. Leckie, 13 East, 7.; 'Grater v. Bininger, 45 N. Y., '545; Gridley v. Bale, 4 id., 486; Dennis Y. Kennedy, 19 Barb., 517; Smith v. Barrow, '2 T. R., ■476; Townsend v. Gólway, 19 Wend., 424; Duncan Y. Lyon, 3 John. Ch., 362; Sharp v. Warren, '6 Price, 131.) If one tenant in common .destroys the thing in common, the other may bring trover, for this amounts to a wrongful conversion. (Collier on Partnership, §§ 264-289, 382; Gow. on Partnership, 91, 92; Lindley on Partnership, 909-911; - Seldon v. Hickok, 2 Caines, 167.)
   Talcott, P. J.:

This is an appeal from a judgment for the plaintiffs, entered on the report of a referee.

The action is brought for the conversion of certain personal property, consisting of a lathe, and appurtenances, and tools, used in carrying on the business in which the parties, plaintiffs and defendant, were engaged in carrying on in copartnership. The business was the manufacture and sale of spring hinges, and was carried on by the parties under the name of “ The Gil filian Spring Hinge Company,” at Syracuse, under articles of copartnership. The plaintiff's were the parties who, it was expected, were to contribute what capital was used in the business, and the defendant, Gilfillan, was to have charge of the manufacture of the hinges. The plaintiff McDonald ivas, by the articles of the copartnership, made the secretary and treasurer of the said firm, “ with all the powers, duties aiid obligations usually imposed on such officers.” The articles of copartnership provided that “ the capital contributed by said Robinson and by said McDonald, for the use of the said firm, is to belong to them respectively and exclusively.”

At or about the time of the formation of the said copartnership, the plaintiffs purchased and put into the shop used by the firm for carrying on the business, and in the custody of the defendant, one lathe, chucks for the same, and some tools and belting, in all of the value of $317.85, which they paid for in equal proportions, and the one-half of the money so paid by them was, by McDonald, credited to each of them on the books of the firm. About the middle of September, 1875, the defendant, without the knowledge of the plaintiff, removed the said lathes, chucks, tools and belting from the shop of the firm and refused to disclose what had become of them. The general rule is, that one joint-tenant, or tenant in common, cannot bring trover against his co-tenant for the chattel thus held in common, so long as it continues in the possession of the other tenant in common. A partner cannot sue his copartner for a fraudulent removal of the firm property. Each is entitled to the possession of the firm property. (Collier on Part., §§ 17, 18 ; Champion v. Bostwick, 18 Wend., 183 ; Cary v. Williams, 1 Duer, 667; Tell v. Beyer, 38 N. Y., 161.) The lathe, etc., having been charged to the firm by McDonald, presumptively with the assent of Robinson, became the property of the firm; nor, as Ave think, does the provision in the articles of copartnership, that the capital contributed by the plaintiffs is to belong to them exclusively, make any difference. When the articles were charged to the firm, and the amount which they had cost credited to the plaintiffs respectively, the chattels became the property of the firm, and the amount which they had cost became a contribution to the capital of the firm, and would belong to the plaintiffs, subject to an accounting between the partners. If the chattels had only been loaned to the firm for use, the plaintiffs retaining the title, then, probably, the unauthorized removal of them from the shop of the firm would have been a conversion ; but such does not seem to have been the fact,

The judgment is reversed, and a new trial ordered before another referee, costs to abide the event.

Present — Talcott, P. J., Smith and Hardin, JJ.

Judgment reversed, and new trial ordered before another referee, costs to abide the event.


text:
    FRANCIS CRAPO, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Prisoner testifying in Ms own behalf — impeachment of character of — what evidence inadmiissible — Evidence as to theft.

    Where a person, charged with crime, offers himself as a witness in his own behalf, he stands on the same footing as any other witness, and his character can only be impeached by evidence similar to that which would be required to impeach the character of any other witness.
    On the cross-examination of a person charged with burglary, he was asked, and, against his counsel’s objection and exception, compelled to answer the question, “were you also in 1869, along in February or March, arrested on a charge of bigamy 1” Held, that this was error.
    What evidence admissible on behalf of a person accused of theft to explain the fact of his having upon his person property, apparently a portion of that stolen.
    Writ of Error to the Court of Sessions in and for the county ot Jefferson, to review the conviction and sentence of the plaintiff in error for burglary and larceny, after a previous conviction for the same felony.

      Bradley Winslow, for the plaintiff in error.

      Watson M. Rogers, for the defendants in error.
    There was' no error in the ruling of the court permitting the question to the prisoner whether he had been arrested on a. charge, of bigamy. (•Turnpike Co. v. Loomis, 32 N. Y., 127; La. Beau v, T.he-People., 34 N.- Y., 223;. Brandon v. The People,,42-N- Y., 23.5; 58 N, Y., 659; Main,v. The-People, 9 Hun, 113,).
   Talcott, P. J.:

The writ of error, in this case brings before us .the record, of the conviction of the plaintiff of the crime of burglary and larceny, after a previous-conviction for felony. The conviction was before the General Sessions of Jefferson county, The burglary was the breaking and entering the grain house of one Mary Petit, and there stealing seven bushels of wheat. The prosecution relied for the conviction of Crapo upon circumstantial evidence, with the exception of an implied confession, which was denied by Crapo when on the stand as a witness.

The most.important, of these circumstances was th’e finding of some wheat in the pantaloons pocket of- Crapo about the time when the wheat in question was probably stolen. The wheat was found by a police-officer, who arrested and' searched Crapo on suspicion that he was concerned in the commission of another offense; and in the course of. the search, found in his pocket the small quantity of wheat, answering the general descriptions of the wheat which- was stolen from-Mrs. Petit's granary. The plaintiff in error, on being inquired of by the police officer what he was doing with the wheat, Crapo sa.id it was a sample.“ fetched up to sell by;” and .he. stated at the same-time that he had sold some wheat to Shead and Graves, millers, at' Watertown, something over five-bushels, and had got, between five and. six dollars for it. The prosecution also proved by Shead, one of the firm of Shead and Graves, that sometime (about the. time when the wheat was so found in Crapo’s pocket),,, he had. purchased; of some..man,not, identifying Crapo as the person, a small quantity of. wheat at one dollar a bushel, between five and- six, bushels.

On the examination of the mother, of the plaintiff in error, who was calle,d. as a witness in Ms behalf,.she was,asked by, the prisoner’s counsel the following question : “ Did you; know of your son going to Dexter, about that time, and selling some wheat there ?” which question was objected to,by the district,- attorney, the objection sustained by the court, and the,prisoner's- counsel excepted.

The prisoner, offered himself'as a witness in. his-, own behalf anti referring ■ to. the time when.-he was searched by the police officer, he said-: “I did. pot handle, any, wheat, op.that day at all ;, a few days before then-I went to Dexter wjth, six bushels.” The district attorney then moved: that the evidence about going to Dexter with thq six bushels be ■ stricken, out. The motion .was granted, by the epurt, and the prisoner’s counsel-excepted. The prisoner’s counsel also, made a formal offer to prove, by-the prisoner, that about that time he took, some wheat to Dexter, and had it ground and brought home; which offer of evidence was objected to by. the district attorney, The court sustained the objection, and the counsel for. the prisoner excepted. •

The prisoner, on,his examination, denied-that- he .-told, the -police officer that he had been to Shoad and . Graves ,to sell wheat, or that he told the police officer anything-about the-grain at all..

We think the court erred in rejecting the evidence offered, on tills subject, and in-striking but the evidence given-by t}ie defendant. The finding of wheat oh. the person of the. defendant, at a¡bout the time of. the burglary, was relied upon as an important circumstance tending to show the prisoner’s .guilt..

It was important for him to show, if he could,-,how a; small quantity of, wheat might have been upon his person when searched by the police officer, consistently with his innocence of the offense with which ¡he was charged. Though- the ■ court- may have disbelieved his story, and believed that of the policeman, yet it was a question to be decided by the jury, and not by the court. The testimony should’have been admitted, and1 the jury left'to determine its value. The. district attorney also asked , the prisoner,- on Ms cross-examination : “Were you, also, in 1869, along in Febmazy or March, arrested ozz a chai-ge of bigamy ?” To this question the prisoner’s counsel objected. The objection ivas overruled, and the prisoner’s counsel excepted. We cannot conceive how anybody could suppose this question could be admissible. The questioiz was asked, doubltess, Avith a vícav to create in the minds of the jury a prejudice against the prisoner. It could not have had the effect of impeaching the prisoner’s character, either gezierally or for truth and veracity. If the fact that a znan has been chaz’ged Avith an offense involving moral turpitude, is to be admitted as evidezzee to impeach his character iiz aizy respect, it will not only open the door to a multitude of collateral issues, but. no person would be safe from the effect of the prejudice cz’oate'd by the mere fact of the charge. (Jackson v. Osborn, 2 Wend., 555 ; People v. Gay, 7 N. Y., 378.)

■ In Jackson v. Osborn (supra), it Avas held that even indictments found for forgery and pezjury were inadmissible to impeach a witness Avithout proof of a conviction. In the case of Brandon v. The People, (42 N. Y., 265), where the admission of a similar qzzestion was sustained, as avo understand the opinion, it was placed wholly upon the ground that the only objection made to it was upon the ground that the prisoner had not placed her character in-issue, wholly ignoring the rule that the prisoner, having offered herself- as a Avitness, Avas szibject to the same rules in regaz’d to impeachment of her character applicable to other witnesses. The idea that a person charged Avith a crime, Avhezz he offers himself as a witness in his oaviz behalf, is to be pz’epaz'ed to show himself guiltless, not only of the offense in question, but of all others AAdiich may have at any time been chai'ged against him, lioAvevcr prevalent, is erroneous. He stands, izz such a case, on the same footizzg as other witnesses, azzd his character cazz only be impeached by similar evidence to that which is required to impeach the character of any other Avitness. For the ez’rors above specilied, we think the judgment must be reversed. Cozzviction and judgment reversed.

Present — Talcott, P. J., Smith and Hakdin, JJ.

Judgment and convictiozz reverséd, and proceedings remitted to General .Sessions of Jefferson county, with directions for a iioav trial.


author: Talcótt-, P. J.:

text:
    JOSEPH SMITH, Respondent, v. BURR GRISWOLD, Appellant.

      Marled vaVtie of a dog — -evidehe& ds'to'.

    In this action, brought- tri- recover the value of a1 dog killed by the'-defendatít, jt appeared that the dog was a farm dog, trained to bring up cows and as a watch' dog; briirig- part’ shepherd and part’ bull. Opon the trial plaintiff was asked, and, against' defehdant’s’ objection' arid' deception; allowed' to státb What the market value'Of- the dog whs.

      Held, that, as the dog was not shown to have any market- value! the admifesion-of the answer was error.
    Appeal from1 a-judgment of the County Court of Chautauqua county, affirming’a judgment of a’Justices’ Court in favor’of the plaintiff.

      John G. Record, for the appellant.

      F. £. Edwards-,■ for’ the’ respondent.
   Talcótt-, P. J.:

This is an appeal by' the' plaintiff from the jndgffieñt of the County Court of Chautauqua’ county, affirming" a- judgment Of a j ustice of the peace.

The action' was- brought to" recover" damages-' fob" thé’ killing' of the plaintiff’s- dog. by the defendant. The' evidence ivas,- that while the defendant was peaceably passing along'the highway, On foot, ill the evening, the dog’ came towards hiui: in-a menacing manner,, and the defendant- shot- him. The dog; was: a large dog, about two feet high, and weighing’ about 160' pounds. He had before then molested- the defendant’ás'lie'was'riding" by the plaintiff’s- premises ill the highway. And- the justice' fouiidj as a question of fact, that “the dog"was:known1 t'o!worry-’people peaceably traveling along'the highway-’.” And’ the' justice - seems to have ruled that the defendant,- being aware'- of his vicious habits in- that respect, and having' failed t'o’make'- coñipláibf- to a, justice of the-peace'under the’Statute1 (2 R. S. [6tH ed'.], 1001:, § 17), was not justified' iff killing, thb’ dbg, iff cáfee Hé;0limó' out upon the highway and followed the defendant in a menacing manner. Though this view of the justice may well be doubted, it is not necessary to decide that question in this case, as we think improper evidence was admitted on the part of the plaintiff, which was objected to, and the admission of which was alleged as a ground of error on the appeal to the County Court. It appeared that the dog was a farm dog, and, as the plaintiff claimed, trained to bring up the cows, and trained as a watch dog, supposed by the plaintiff, or called, “part shepherd and part bull.”

The plaintiff, when on the stand as a witness, ivas asked what was the market value of the dog. The defendant objected to this question, and the justice overruled the objection, and the plaintiff stated that the value of the dog was twenty-five dollars. The same question was asked of the other witnesses for the plaintiff, and similar answers made, under objection by the defendant; and the justice seeirs to have proceeded, on such evidence,, to render his judgment in the case. The dog ivas not shown to have any “ market value.”

It appears to be well settled that such testimony is inadmissible. (Dunlap v. Snyder, 17 Barb., 561; Brown v. Hoburger, 52 id., 15.) In the last cited case, which seems to have been an action for killing a dog of a similar character, Mr. Justice Johnson, in delivering the opinion of the General Term of the seventh district, says: “Opinions in regard to the value of dogs, which have no standard or marketable value, are necessarily fanciful, depending on the fancy or predilection of the .witness, and arc not competent. In order to render opinions as to the value of a dog competent, it should first be shown that the dog in question is a marketable animal, either belonging to some peculiar breed, or possessing some peculiar qualities which make him an animal usually vendable at' some proximately regular price. “ Nothing of the kind was shown here. It was shown that he was a trained farm dog,' and it wais offered to be shown that the witness, who was the plaintiff himself, was acquainted with the value of such dogs, and had seen them bought and sold. This fell far short of offering to prove that the dog was a marketable animal, or had any market value. * * * ' I am of opinion, therefore, that the evidence was properly excluded.” . (Op. of Johnson, p. 25.)

In the case at bar, the plaintiff said that he did not know of dogs of this breed being bought and sold; that he had “heard of dogs being sold that were trained,-such as carrying baskets — some one particular thing — not trained as this dog was.” It is evident, from the statement of the plaintiff, that he did not claim that this dog had any particular market value, and that his estimate of his value was merely fanciful.

The judgment of the County Court, and .of the justice, is reversed.

Present. — Talcott, P. J., Smith and Hardin, JJ.

The judgment of the County Court of Chautauqua, and that of the justice, reversed.


author: Talgott, P. J.:

text:
    SAMUEL F. V. WHITED, Respondent, v. WILLIAM HAMILTON, Appellant.

      Lease — provision giving landlord lien on fixtures — validity of.

    A written lease executed by the plaintiff to the defendant and his partner, provided, among other things, that, in case the party of the second part should fail to pay the rent, when it became due, said party of the first part might sue for the same, or re-enter said premises, or resort to any leg-al remedy, or take possession of all fixtures or stuff put- in by the lessees, who were to remove nothing until the rent was paid.

      Held, that, as between the parties to 'the lease, the plaintiff upon default in payment of the rent, was entitled to the possession of the personal property as security therefor, and could maintain replevin to recover it from defendant who had wrongfully removed it.
    Appeal from a judgment in favor of the plaintiff, entered upon tlie trial of this action in the County Court .of Oswego county, and from an order denying a motion for a new trial made upon a case and exceptions.

      W. II. Gar denier, for the appellant.

      Webb & .Goon, for the respondent.
   Talgott, P. J.:

This was an action of replevin commenced in a Justices’' Court; commenced to recover the possession of certain personal, property, the- contents of' a ball' alley and bar, which had been in a building, leased by the plaintiff to the defendant and his- partner, one Watson, now deceased, and which had been wrongfully removed from said building by the defendant to avoid the payment of rent. The plaintiff,' in the suit before the justice,, recovered, and the value of the property was found to be sixty dollars. The case was then appealed for a new trial to the County Court of Oswego county, and on such new trial being had before that court, the plaintiff again recovered.

On the- trial in- the County Court, the defendant took several exceptions to the decision of the county judge, and appeals to this court from the judgment rendered in the County Court.

The only question presented on this appeal, which is presented by the defendant, is, whether the plaintiff had a right to the possession of the property when the action was commenced. The written lease of the premises, by the plaintiff to the defendant and his partner, among other things, contains the following provision: “. And provided the-.said party of the second part,shall fail to pay said rent or any part thereof when it becomes due, it is ' agreed that said party of the first part may sue for the same, or re-enter said premises,, or resort,, to any legal, remedy, or take ¡possession of all fixtures and stuff put in by them — such as alleys and belongings, bar and contents, etc., etc. They are to remove nothing until the rent is paid.”

In addition to this, the defendant took the plaintiff around the premises and exhibited to him the fixtures and personal property which the lessee had placed in the premises, and stated to the plaintiff the value of the various articles,, and said that there might be .some months when he would not bo able to pay the rent, but the plaintiff had abundant security, meaning upon the property of the lessees, which was upon the premises and so exhibited. And, on another occasion, when the plaintiif’s agent went to the defendant to endeavor to make some- arrangement.about the rent which had become due and remained unpaid, the defendant said to the agent that the plaintiff'had' a claim on the, fixtures, and personal property of the lessees, placed in the premises by them, for his rent.

Rent was due for the premises and remained unpaid, and the defendant removed from the premises the articles replevied, constituting a portion of the property described in the lease, privately and under sircumstances that tended to show that he had removed such property to avoid the payment of rent, and to diminish the security of the plaintiff for the collection of the same.

There can be no doubt bnt that the defendant intended to give the plaintiff a lien upon the property as security for the rent, and that it was so understood between both the parties. The provision in the lease is to that effect. The plaintiff was thereby authorized to take possession of the property, and the defendant agreed, to remove none of it until the rent was paid.. The effect of the provision in the lease was to give the plaintiff a lien on the property as security for the rent. However the case might be, if there were any creditors or subsequent purchasers, there can be no doubt that, as between the parties to the lease, the plaintiff was entitled to the possession of the property as security; (McCaffrey v. Woodin, 65 N. Y., 459.)

The judgment should be affirmed.

Present — Talcott, P. J., Smith and Hardin, JJ.

Judgment and order affirmed.


text:
    JOSEPH K. WAVER and JAMES Mc. WAVER, Administrators, etc., of NANCY WAVER, Deceased, Appellants, v. WALTER J. WAVER and WALTER K. WAVER, Respondents.

      When testimony inadmissible against representatives of deceased— Code of Civil Procedure, §§ 829, 8S0.
    In this action, to recover certain personal property belonging to plaintiffs’ intestate, the defense was that certain notes, described in the complaint, were given by the intestate to defendant'W. K. Waver, the proceeds of which were by him to be equally divided between himself and the defendant W. J. Waver» that the residue of the property described in the complaint was given to defendant W. J. Waver and his wife, Mary. Upon the trial Mary was allowed to testify, as a witness for defendants, as to what occurred when the intestate was alleged to have given the notes to W. K. Waver.

      Held, that, as her husband was interested in the event of the action, as he was ■ to share in the proceeds of the notes, that his wife’s testimony was incompetent, under section 830 of the Code of Civil Procedure.
    W. J. Waver was also called by defendants, and asked : “ Were you present when the notes were handed over to Waller K. 1 ” Held, that this called for testimony as to a personal transaction with deceased, and was inadmissible under section 829 of the Code of Civil Procedure.
    Appeal from a judgment in favor of the defendants, entered in Allegany county upon the report of a referee.

      Frank S. Smith, for the appellants.

      George S. Jones, for the respondents.

      [Repealed by chapter 166 of 1878. — Rep.]

   Talcott, P. J.:

■ This is an appeal from a judgment, entered on the report of a referee.

The plaintiffs sue, as the administrators of Nancy Waver, for the conversion of certain personal property of which they claim she died the owner and in possession.

The referee finds that the property mentioned in the complaint was duly demanded of the defendants, and they refused to sm> render the same.

The claim of the defendants is, that the said Nancy Waver, in her life-time, made a donation of certain promissory notes, described in the complaint to Walter K. Waver, one of her sons, to be equally divided between both defendants, and of the residue of the property, described in the complaint, to the other defendant, Walter J. Waver, her grandson, and-to his wife, Mary Ett Waver.

On the trial the said Mary Ett Waver was sworn as a witness for the defendants; and, m the course of her examination, she was asked by the defendants’ counsel the following question: “ State what was said and what occurred at that time between Nancy Waver and the defendant Walter K. Waver?” The time referred to was an occasion when, it was claimed by the defendants, that the notes in question were delivered to the defendant Walter K. Waver. The question was objected to, as repugnant to section 830 of the Code of Civil Procedure. The objection was overruled and the plaintiffs’ counsel excepted.

Walter J. Waver, the husband of the witness, was clearly interested in maintaining the defense of Walter K. Waver, and his title to the promissory notes in question, or the proceeds, if the defense could be sustained. Section 830 of the Code of Civil Procedure, under which the objection was made, provides that the husband or wife of a party interested, who cannot be examined concerning a transaction or communication, as prescribed in section 829, cannot be examined as a witness concerning the same transaction or communication, or a like transaction or communication between the witness and the deceased person. Walter J. Waver, the husband of the witness, could not have been examined concerning the communication specified, under section 829, on account of his interest. The testimony of the wife was, therefore, inadmissible.

Walter J. Waver was likewise examined as a witness for the defendants, and, on his examination, he was asked by the counsel for the defendants: “Were you present when the notes were handed over to Walter K.?” This was objected to by the counsel for the plaintiffs as repugnant to section 829 of the Code of Civil Procedure. The objection was overruled, and the plaintiff’s counsel excepted. As has already been stated, Walter J. Waver was directly interested in maintaining the title of Walter K.‘ Waver to the notes in question, not only as affecting the amount of damages to be recovered in the action, but as one of the beneficiaries or eestui que trust to share in the notes, which the defendants claimed had been donated to Walter K. Waver to be equally divided between himself and Walter J. Waver. Section 829 of the Code of Civil Procedure prohibits the examination of a witness in his own behalf or interest against the administrator of a deceased person, as to a personal transaction or communication between the witness and the deceased person. We think the transaction alleged was sufficiently personal with Walter J. Waver to render his testimony on the subject obnoxious to section 829, and therefore he was an incompetent witness by whose testimony to establish it.

We think the referee erred in admitting the testimony of Walter J. ^ayer and Mary Ett, his wife, to establish the fact of the parol trust alleged to have been created for their benefit.

The judgment is reversed, and a new trial ordered before another referee, costs to abide the event.

Present — Talcqtt, P. J., Smith and Hardin, JJ.

Judgment reversed, and new trial ordered before another referee, costs to abide the event.


author: Talcqtt, P. J.:

text:
    ABRAM M. FARWELL, Respondent, v. MICHAEL HIBNER, Appellant, Impleaded with WILLIAM P. GUILD.

      4-etion ly ijidoi’see upon promissory note — what not .a úfense to.

    The complaint alleged that the defendant Hitmen made his note to the order ¡of the defendant Guild; that it was by the latter indorsed and delivered, for yalue and before maturity, to the plaintiff, who was the owner and holder thereof, Tfre answer, yntb.out ¡denying ¡any allegation ,of ¡the complaint, .alleged that the note was seized as ¡the property of one Burlingame, in proceedings instituted against him for absconding and leavipg a wife and children liable to become chargeable to the town, and that by virtue thereof the property in the said note becaine, and continued to be vested in, the overseer of the poor .of saicj town.

      Held, tjiat these facts constituted no defense, the allegation of the complaint being admitted, and that proof thereof was properly rejected.
    Appeal from a judgment in favor of the plaintiff, entered at the Cattauraugus Circuit upon a verdict directed by the court.
    .4- &• Mice, for the appellant.

      Gary <fi Jewell, for the respondent.
   Talcqtt, P. J.:

This is an appeal from a judgment rendered at the Cattaraugus Circuit.

The action‘is upon a promissory note which the plaintiff claims as indorsee.

The complaint states the making of the note by the defendant, Michael Hibner, to the order of the defendant Guild, and the indorsement and delivery of the note by Guild, for value, and before- maturity, to the plaintiff, and that ,the plaintiff is now the owner and holder of the note. The defendant Hibner, in his answer, without denying any of the allegations of the complaint, sets up certain proceedings, under sections 8, 9 and 10, part 1, title 1, chapter 20, of the Eevisod Statutes,, which title relates to the relief and support of indigent persons, whereby .it is averred that the note on which this action was brought was seized as the property of one Burlingame,, a person apparently charged with absconding from the town of Ischna, leaving his wife and children liable to become chargeable to .the town for their support; The answer then avers that the said seizure was thereafter duly confirmed by the Court of Sessions of the county of Cattaraugus, ‘ ‘ whereby the property in said note became vested in the overseer of the poor of said town of Ischna, and is still so vested.”

On the trial, after the plaintiff' had proved the making of the note, he rested, judgment having been taken against Guild by default.

The defendant’s counsel then proceeded to open his defense, “ which was that the plaintiff did not own or have any title ” to the note in suit, but .that the title thereto, was vested ni B. H Osgood, overseer of the poor of the town of Ischna, by virtue of proceedings under the statute aforesaid, and offered to prove all the proceedings necessary to vest the title in said overseer as required by the statute aforesaid. And thereupon the justice holding the s.aid Circuit held and decided-that such facts if proved would constitute no defense, and directed a-verdict, for the plaintiff for the ampunt of the npte, and the defendant excepted to the ruling,

The offer of proof did not contain any offer to impeach-the title of the plaintiff as indorsee of the note, in suit, otherwise than by proof of such proceedings taken under the statute, nor to show that the note ever belonged to Burlingame in the answer named, or to controvert in any manner the allegation that the note was indorsed to tho plaintiff for value before maturity, or to impeach the good faith of the plaintiff as the holder of the note. We think the ruling of the justice at the Circuit was correct; that the answer did not set up any defense to the action, and that the facts therein alleged were, by themselves, and so far as tho statement of the defendant’s counsel on his opening went, wholly immaterial. That the plaintiff was the indorsee and legal holder of the note was admitted by tho pleadings. Tho defendant owes the debt. It does not appear that tho said Osgood as overseer claims the note, and it will be time enough to determine whether any other person than he, whom the pleadings admit to hold the legal title, has any claim to tho note or its proceeds when such person shall present such claim. (See Hays v. Southgate, 10 Hun, 511; City Bank of New Haven v. Perkins, 29 N. Y., 554 ; Eaton v. Alger, 47 N. Y., 343.

The judgment should be affirmed.

Present — Talcott, P. J.. Smith and Hardin, JJ.

Judgment affirmed.


author: Talcott, P. J...:

text:
    THOMAS W. HERSEY and LEVI P. HERSEY, Respondents, v. GEORGE BENEDICT, Sheriff, etc., Appellant.

      Action to recover goods procured through fraud — admissibility, of judgments against debtor — of general assignment made by him — of similar frauds and attempts at frauds — Not necessary that vendor relied solely on representations — vendor may re-talte a part and sue for the rest of the goods.

    This was an action of replevin to recover goods in the hands of the sheriff, seized by him under executions issued against one Cummings, plaintiffs allegingthat Cummings had purchased the goods from them by means of false and fraudulent representations, and ‘with intent not to pay for them. Upon the trial a number of j udgments reco vei'ed against Cummings — under two of which the executions were issued — were, against defendant’s objection and exception, received in evidence. Held, that they were admissible as they tended to establish the falsity of the representations and the preconceived intention not to pay for the goods.

      As between creditors, judgments against the debtor, unimpeached for fraud, are conclusive evidence of indebtedness upon all questions affecting the title to the judgment-debtor’s property.
    In such an action, evidence that the debtor has made a general assignment, is admissible, to show the intent with which he made the purchase, against creditors who have recovered judgments after the purchase and before the assignment.
    Proof of similar and cotemporaneous frauds are admissible in evidence, as bearing upon the question of intent.

      Semble, that evidence of an attempt to commit a similar fraud, at about the same time, by similar means, is admissible, whether it was successful or unsuccessful.
    It is not necessary, to authorize the rescinding of a contract of sale, that the sale should have been made solely in reliance upon the false representations.
    “When a vendor has disaffirmed a sale on account of fraud, he may reclaim by an action in replevin such of the goods 'old as are within his reach, and at the same time maintain an action against the vendee to recover damages for those that have been disposed of.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Oneida Circuit, and from an order denying a motion for a new trial, made upon tbe minutes of the justice before whom the action was tried.

      Risley, Stoddard <& Matteson, for tne appellant.
    The bringing of another action by plaintiffs for the entire cause of action was a har or ratification, so that they could not succeed in this action. (Bliss v. Gottle, 32 Barb., 322; see, also, Stevens v. Hyde, id., 171; 2 Lans., 492; 2 Hill, 288; 14 Barb., 598; 35 id., 76; 4 Denio, 51; 45 Barb., 499; 6 N. Y., 648; Bruce v. Davenport, 3 Keyes, 474; 24 Wend., 74; 48 N. Y. [1 Sickles], 533.)

      William B. Sutton, for the respondents.
    Proof of cotemporaneous frauds is admissible. (Benham v. Gary, 11 Wend., 83; Allison v. Matthew, 3 Johns., 235; Jachson v. Timmerman, 12 Wend., 299; Hall v. Naylor, 18 N. Y., 588; Hathorne v. Hodges, 28 id., 486; Miller v. Barber, 66 id., 558; Gary v. Hotailing, 1 Hill, 311.) Evidence of this nature is received to-show quo animo the purchaser buys. (Gary v. Hotailing, 1 Hill, 311; People v. Hopson, 1 Denio, 574; Hally. Naylor, 18 N. Y., 588; Miller v. Barber, 66 id., 568.) The court did not err in refusing to charge that the bringing of an action by plaintiffs for the entire cause of action is a bar or ratification, .so that they cannot recover in this action. Fraud .and deceit is an -action ex delicto, and not in affirmance of the contract. {Miller v. Barber, 66 N. Y., 558,; Hubbell v. Meigs, 50 id., 487.) .The pendency of the action was not pleaded in bar. (Kerr v. Hayes, -35 N. Y., 336; Miller v. Maurice, 6 Hill, 126.) Sole reliance upon the representations is not necessary. {People v. Haynes, 11 Wend., 566; People v. Herrick, 13 id., 91.; Morgan v. .Bldddy., 62 N. Y., 328,; Hubbard v. Briggs, 31 id., 532.)
   Talcott, P. J...:

This is an appeal from a judgment rendered on a verdict at thé Oneida Circuit, and from an order denying a new trial upon the minutes.

The action is replevin, brought against the defendant as sheriff of Oneida -county, by the plaintiffs, who are wholesale shoe dealers in Boston, to take -out -of the defendant’s hands certain boots and shoes which he had in his possession, under a levy upon certain executions against Josiah E. Cummings, a retail boot and shoe dealer, at Utica, in this State, upon the ground that the said goods had been purchased of the plaintiffs by Cummings by means of false and fraudulent representations, and also upon the ground that said Cummings purchased the said goods of the plaintiff with the fraudulent and preconceived design not to pay for them.

The case -of the defendant on this appeal is stuffed with numerous exceptions to the rulings of the court in regard to -the admission of evidence, upon which only those hereafter considered are thought to call for any observations.

The defendant, in pleading, as a justification for the taking of the said goods as the property of Cummings, alleged the recovery of three judgments, by certain parties named, and executions issued thereon, under which he had seized the goods as the property of Cummings. In the course of the investigation on the trial, the plaintiffs offered in evidence two of them, and certain other judgments recovered'against Cummings, and the defendant objected to the proof of the said judgments, on the gi’ound that they were immaterial and incompetent. The objections were overruled, and the defendant excepted.

Tlie defendant now objects that these judgment-rolls and their contents were admitted generally, and with no restriction as to what they should prove.

' As between creditors, judgments against the debtor, unimpeached for fraud, are conclusive evidence of indebtedness upon all questions affecting the title to the judgment-debtor’s'property. (Candee v. Lord, 2 N. Y., 269 ; Burgess v. Simonson, 45 id., 225.) The sheriff, as regards the property in question, not being a bona fide purchaser for value, stood in no better position than Cummings would have stood, had he been the defendant, and in no better position than the plaintiffs in the several executions. The judgments also ' tended to establish the falsity of' the representations made to the plaintiffs at the time of the purchase' of the goods, and were also pregnant evidence on the question of whether the goods were purchased by Cummings with a fraudulent and preconceived design not to pay for them, and as showing the fact of the insolvency of Cummings when the purchases were made. It is enough that they were admissible for any purpose. The objection of the defendant, was only to the competency and materiality off the judgment-rolls. The court was not asked to define the purposes for which the judgments were admissible' in evidence, or to restrict the' effect of them as evidence in any manner.

Cummings, a witness for the defendant, being’ under' cross-examination, said : “I swore on my direct examination that I never made any representations as to how much property I was worth, and that my credit' was perfectly good before the ■ time I bought of these parties — that was true.” Thereupon the counsel for the plaintiff immediately produced a letter written by the witness to Childs, Smith & Co., under date off July 12th', 1875, and having exhibited the same to the witness, -who acknowledged that it was in liis" handwriting, offered to read' tlie-same in evidence. The letter contained a statement that he (Cummings) was “ worth from six to seven thousand dollars.” The'counsel'for tlie defendant objected to the reading of tlie said letter in evidence, oil the ground that'it was “ihadmissableand improper' evidence,”' The letter contradicted tlie statement'that had5just been-made by the witness. The counsel' for the' defendant now claims that the attention .of the witness should have been called to the contents of the letter, etc., under the rule that evidence of inconsistent declarations is not admissible, unless while the witness is on the stand his attention is called to the time and place, Avhen and where, and the person to whom such inconsistent declarations were made.

The case states that the letter was exhibited to the witness previous to the offer of the same in evidence, so that prima facie it appears that the attention of the witness was called to the time and place, when and where, and the persons to whom the alleged inconsistent declarations had been made, and he could then have made any statement in explanation of such inconsistent declarations winch he desired to do ; besides which, the form of the objection did not suggest or call the attention of the court to any such objection as is now made iirregard to the preliminary forms, which it is claimed were necessary to be observed before the letter could be read in evidence.

The same form of objection was taken to the introduction of the several letters of Cummings to the plaintiffs, introduced from time to time in his further cross-examination, contradicting the statements by him, at the time, made as a witness, and the same answer to the exceptions applies.

The plaintiffs commenced this action on the 3d of August, 1876, and on the 5th day of August, 1876,- Cummings made a general assignment for the benefit' of creditors to one Wiley Allen, whom the evidence tended to show was in complicity with Cummings in the attempt to defraud creditors, and this assignment was offered in evidence by the plaintiffs, and the defendant’s counsel objected to the admission thereof as “immaterial and irrelevant,” and the counsel for the defendant now objects to'the proof of the assignment on the ground that it was the act of Cummings after the rights of the parties had become fixed, and that no act of Cummings after the commencement of the action could affect the rights of the defendant.

We think the testimony was most material and relevant. It tended to show the insolvency of Cummings, and was evidence on the question of the quo animo with which he made the purchase of the goods from the plaintiffs, and is evidence almost invariably given upon the question of the intent with which a party purchased goods, when that intent is challenged as fraudulent.

The sheriff represented other creditors of Cummings. The fraud, if any, was committed in the purchase of the goods, and all the circumstances of the conduct of the defendant, both before and after the purchase, which may aid in throwing any light upon the design with which he made the representations, or his intentions at the 'time of purchasing the goods, are admissible in evidence, in behalf of one seeking to avoid the purchase as fraudulent, without reference to who is the defendant on the record.

"We think the court was justified in refusing to take from the consideration of the jury the evidence of Bridge, who was a traveling agent for Powers, Gaston & Co., and to whom Cummings had, about the same time when it was claimed he had made the fraudulent representations to the agents of the plaintiffs, made similar representations in order .to effect a purchase of similar goods from Powers, Gaston & Co.

Bridge, it was shown, relied upon the false statements made to" him, and Powers, Gaston & Co. sent the goods on the recommendation of Bridge. It was not necessary to prove by one of the firm of Powers, Gaston & Co. that they sold the goods, relying upon the representations made by Cummings to Bridge.

Cotemporaneous frauds are admissible in evidence on the question of the intent. (Cary v. Hotailing, 1 Hill, 311; Miller v. Barber, 66 N. Y., 568.)

. In the case of Poivers, Gaston & Co., the fraud was consummated by the representations to the agent, relied on by him, and the goods ordered by him from his principal; but, to us, it seems of no consequence whether, in the case of cotemporaneous frauds, the attempted fraud iras successful or not. The same principle upon which the evidence of cotemporaneous frauds is admitted, as bearing on the intent of the party in committing the fraud principally in question, would lead to the admission of evidence of an attempt to commit a similar fraud, at about the same time, by similar means, whether successful or not. •

Nor is it necessary, in order to constitute such a fraud by false repi’esentations as will avoid the contract of sale, that the sale' should have been made solely in reliance upon the representations proved to? lfave- Been false. (People v. Haynes, 11 Wend., 557; People v. Herrick, 13 id., 87; Morgan v. Skiddy, 62 N. Y., 319; Hubbard v. Briggs; 31 id., 518.)

True, the judgment of tlie' Supreme Court, in The People v. Haynes (supra), was reversed in the' Court for the Correction of Errors,, but the reversal was solely upon the ground that the title had passed before the representations' were made, the Court for the Correction of Errors expressly declining'to pass-upon the other questions presented by the bill of exceptions; There was no objection made, on the trial, that such'notes as'Cummings had given to tlie plaintiifs had not been'tendered back'to him; they were produced and read in evidence on the trial; and, in the absence of any objection on that ground, it is to be" presumed that the contract of salo was sufficiently rescinded.

The- defendant proved that tlie- plaintiff liacl, after' this suit was commenced, commenced a suit against Cummings in what would formerly have been known as air action on the case for deceit, in which the purchase of the goods was alleged to have been' made by means of false and fraudulent pretenses, and damages were claiined.-

The commencement of the suit; which had not proceeded to judgment, could not be available as a defense to this suit. It was commenced after this suit and after the cause* of action in this suit had accrued.

JBut that action did not proceed on the ground of affirming the contract of sale, but was in disaffirmance thereof. (Miller v. Barber, 66 N. Y., 558; Hubbell v. Meigs, 50 id., 487; Lexow v. Julien, 1st Dept., 6 Weekly Dig., No. 22, p. 508.) We see no reason why a vendor,' having disaffirmed the sale, may not reclaim such of the goods- sold as are within- his reach; aiid, when some have been placed beyond his reach, sue the vendee in an action to recover * damages for' the' fraud.

The judgment should be affirmed;

Present — Talcott, P. J-., and Smith, J.; Hardin, J., hot sitting;

■ Judgment' and' order' affirmed’.


author: Talcott, P. J.: Cowen, J.,

text:
    ADDISON BRILL and ALBERT N. RUSSELL, Respondents, v. JEROME TUTTLE, Appellant.

      When an order to pay money does not operate as an equitable assignment.

    Ackerman & Son, who were at the time engaged in repairing a house for the defendant, who was then indebted to them to the amount of about $300, gave to plaintiffs the following instrument:
    “Mohawk, August 31,.1876.
    “Jerome Tuttle: Pay Brill and Russell three hundred dollars, and charge the same to our account, for labor and materials performed and furnished in the repairs and alterations of the house in which you reside in the village of Mohawk. J. P. Ackerman & Son.”

      Held, that this did not constitute an equitable assignment of any money which might be due from the defendant to Ackerman, as there was no specification of any particular fund out of which it was to be paid.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Herkimer Circuit.

      Amos II. Prescott, for the appellant.
    The instrument in suit is a bill of exchange, and does not operate as an equitable assignment of the fund. (Chitty on Bills, 55 ; Cook v. Sattérlee, 6 Cow., 108 ; Marine Bank v. Jauncy, 3 Sandf., 260; Edwards on Bills, 144 ; McLeod v. Luce, 2 Strange, 762 ; Iloyt v. Lynch, 3 Sandf., 328 ; Pope v. Luff, 5 Hill, 413 ; H. Y. é V. Bank v. Gibson, 5 Duer 574 ; Qowjperthwaite v. 'Sheffield, 3 N. Y., 243 ; Winter v. Drury, 3 Sandf, 230 ; Shuttlewonh v. Bruce, 7 Robt-., 161 ; Loonie v. Hogan, 9 N. Y., 435 ; Lard & Cook v. Bank of North America, 49 Barb., 221.)

      Thomas Richardson, for the respondents.
   Talcott, P. J.:

This is an appeal from a judgment rendered on a verdict, at the Circuit in Herkimer county.

The action was brought on an instrument in the -words and figures following, viz :

“Mohawk, August 31st, 1876.
“ Jerome Tuttle : Pay Brill and Russell three hundred dollars and- charge same to our account, for labor’ and materials performed and furnished in the repairs and alterations of the house in which you reside in-the village of Mohawk.
“J. P. ACKERMAN ■& SON.”

J. P. Ackerman & Soil were, at the time of the making of the order, engaged as builders in repairing a house for the defendant; •’and the proof tended to show that the defendant was indebted to the Ackermans in about the sum specified'in the' order. The order was presented by the plaintiffs 'and payment thereof refused,-and ■it appeared on the trial'that'mdst-ofThe money due from defendant to the Ackermans had thereafter, as' the defendant claimed, been appropriated to the payment' of others who had been engaged as laborers in the repairs'of-the house-under his contract with the Ackermans.

On a motion for- a nonsuit, thc.justiee before whom the cause was tried, held that the defendant was liable, although it was not shown that he had ever accepted the order or promised to pay it. This was held upon the theory that the order itself constituted an equitable assignment of so -much of the -money duo from the 'defendant To -the Ackermans, as would be sufficient to pay the s’um specified in the'order. In this ruling, which was'duly excepted to by The defendant, we think the learned justice fell into error.

It will be seen that the-order does -not'Specify any fund out-of •which the order 'is-'to be paid, mor does it indicateThu source from which it is to be derived. It is simply an order for the payment of’ money generally, with directions to the -drawer as to the particular account to which the payment is to be charged by the drawee, and is in all its essential's an inland bill of exchange, payable at all events, and out of no particular fund.

True, the inference naturally arises that the drawers intended to have the order paid out of the money which was or -might become due to them from the defendant, “for labor and materials^ performed and furnished in the repairs and alterations” of his house in.Mohawk, but they did not say so.

In Kelley v. The Mayor of Brooklyn (4 Hill, 264), where the same question,wasTuiScil, the'C'r'der'waS'as follows :

'“To the Treasurer of'the city "of Brooklyn, at the Long Island Bank : Pay Alexander Lyon or order, fifteen hundred dollars for award No. 7, and charge to Bedford road assessment,” etc.

Cowen, J.,

delivering the opinion of the court in that case, says of the Order. “ It is payable generally to A. Lyon or order, in cash, and not on the face of the bill either conditional or restricted to any particular fund. The clause “ charge to Bedford road,” etc., is a mere direction as to the mode of reimbursement. # * '* The bill was not on its face restricted to the particular fund arising from the Bedford road transaction, yet for reimbursement the treasurer was directed to charge that fund.”

This case of Kelley v. The Mayor, etc., is quoted as authority by the majority of the Commission of Appeals in Shaver v. The Western Union Telegraph Co. (57 N. Y., 463), which is, in principle, like the case at bar, and in which it was also held1 that an order for money did not operate as an equitable assignment of a fund due, or to become due, from the drawee to the drawer, by reason that it contained the direction, “ charge to my salary account.” Ordinary drafts and even checks on banks usually contain the direction, “charge to my account,” or'its equivalent., and it is not material that the particular account to which the charge is to be made be specified.

In the case of Lett v. Meries (4 Lewinz, 607), cited in Hall v. The City of Buffalo (1 Keyes, 193), where a builder, who was erecting a house under a contract, gave an order for certain sums to be paid “ out of moneys payable to him in the contract,” it was held that this constituted an equitable assignment, for the reason that it specified the particular fund out of which the payment was to be made, and therefore was not a bill of exchange.

In the case of Hutter v. Ellwanger (4 Lans., 8), decided in this department, the order was held not to be a bill of exchange, because payable on a contingency, but Johnson, J., in delivering the opinion of the court, says : “In order to constitute an assignment, the order must specify the fund from which it is to be paid,” citing, among other cases, the case of Watson v. The Duke of Wellington (1 Russ & Mylne, 602). In that case the Master of the Rolls said : “I am not at liberty to conjecture what might have been the intention of the parties, except as it is to be collected from the expressions of the letter ; and giving the words of the letter their natural signification, I cannot there find any agreement, on the part of the Marquis of Hastings, to pay the debt out of this money.”

The case of Ballou v. Boland, Impl’d, etc. (14 Hun, 355), the. drawer of the order was a contractor to build a school-house, and he gave to one Boland, a sub-contractor, who did the mason-work, an order on the trustees of the school district to pay $249, “ being the -balance due on contract for building the said school-house, the above amount to be paid on the acceptance of the said schoolhouse.” The court thought that order was an express assignment of the “balance” due, and that the order operated as an equitable assignment.

The case of Risley v. Indianapolis B. & W. R. R. Co. (62 N. Y., 240), the order directed the delivery of certain railroad bonds, which order, drawn for value and accepted by the drawee, was held to constitute an equitable assignment of the bonds.

We think that in this case there was no specification of the particular fund out of which the amount specified in the order was to be paid, and no transfer to the payee of any amount due from the drawee, and therefore that the learned justice at the Circuit erred in holding that the order in this case constituted an equitable assignment of any moneys which might be due from the defendant to Ackerman & Son. (See, also, Hollister v. Hopkins, 13 Hun, 210.)

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

Present — Talcott, P. J., and Smith, J.; Hakdin. J., not sitting.

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


author: Talcott, P. J. :

text:
    SAMUEL S. JOHNSON, Appellant, v. AARON McCONNEL, Respondent.

      Assault and battery — to be actionable need not have been committed in anger.

    To constitute an actionable assault and battery, the assault must have been unwarranted, but it need not have been committed in anger.
    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury at the Steuben Circuit.
    ■ McMasters & PcirJchurst, for the appellant.
    If defendant justifies assault and battery, on the ground of lawful authority, the burden of proof is upon him to show that he did not use more force than Avas necessary. (Hilliard on Torts, Arol. 1, p. 198, id., p. 82 ; Loving v. Aborn, 4 Cush., 608 ; Imason v. Cope, 5 C. & P., 193 ; Simpson v. Mm'ris, 4 Taunt., 821; Hannen v. JEdes, 15 Mass., 347 ; 1 Wharton Ev., § 358 ; Brackett v. Hayden, 15 Maine, 347 ; Gaul v..Fleming, 10 Ind., 253; Treadwell v. Joseph, 1 Sumn., 390.) An assault and battery need not be unwarranted or committed in anger. A battery is “the actual infliction of violence upon the person of another.” (Hilliard on Torts, p. 191; 2 Grecnleaf, § 84.) It may result from carelessness or be done in the best of humor, and yet be assault. As to shave a man’s head against his will. (Ford v. Skinner, 4 C. & P., p. 239 ,; 1 Hilliard on Torts, 189 and 193, note ; Bullock v. Babcock, 3 Wend., 391.) Or taking indecent liberties Avith a female pupil or patient, though unresisted. (Bex v. Bosinski, Ey. and M., 19 ; 2d Greenleaf Ev., § 82 ; IlaysY. People, 1 Hill, 351.) And consent to the act of assault is no bar to the recovery. (Adams v. Waggoner, 5 Am. E., 230.)

      Buggies <& Little, for the respondent.
   Talcott, P. J. :

Tins is an appeal from a judgment rendered on the verdict of a jury, for the defendant, at the Circuit in Steuben county.

The action is for assault and battery in the course of which the plaintiff’s leg was broken, and he was otherwise seriously injured.

At the time of the assault, the plaintiff was tending bar at Jones' Hotel, in the town of Howard., in Steuben county, during the absence of Jones, the proprietor. The plaintiff was addicted to occasional intemperance. Before Jones left home on this occasion he requested one Lane, a neighbor, in case the plaintiff, Johnson, got intoxicated, that he should come to the hotel and assist in carrying on the business.

Johnson did become intoxicated during the absence of Jones, and continued to be more or less so during several days, and used violent language toward Lane, and told him when he was at the tavern to go home and mind his own business. Lane then went and saw the defendant, McConnel, another neighbor, and requested him to. go down to the tavern, and, as the defendant testifies, talk with the plaintiff. The defendant did go to the tavern, and while there an altercation arose between Lane and the plaintiff, and they were engaged in a scuffle, in which the defendant interfered. The plaintiff undertook to resist such interference, and a scuffle took place between the plaintiff and the defendant, in the course of which the plaintiff received the injuries in question. The defendant claimed that ho merely interfered to keep the plaintiff quiet, and with no design to injure him, and that the breaking of tho plaintiff’s leg, and the other injuries received by him, were entirely accidental.

Among other things,- the defendant testified that he was not iritated at all, and had full control of himself during the scuffle between himself and the plaintiff.

There was the usual conflict of evidence as to what occurred, and what was said between the parties at the time of the occurrence; and, among other things, the justice before whom the cause was tried, at the Circuit, instructed the jury that “ an assault and battery must be an angry and unwarranted attack upon another individual. You are to judge of all the circumstances of the case, whether that was unwarrantable in view of the condition in which the plaintiff was. If it was unwarrantable, the plaintiff is entitled to damages; if it was merely for the purpose of keeping him quiet, and no harm -was intended and none was done, he is not entitled to recover for it.” The counsel for the plaintiff excepted to the charge that to constitute an assault and battery, it must be in anger and unwarranted, and asked the court to charge that neither of those elements were necessary to constitute an assault and battery. The court refused so to charge, and the plaintiff excepted..

Of course, in order to constitute an assault and battery, for which a party is liable in damages, the assault must be unwarranted; but it need not, in order to render the defendant liable, have been committed in anger. (Hilliard on Torts, 189, 193, note] Bullock v. Babcock, 3 Wend., 391.)

Though there might bo a technical answer to the plaintiff's exception, growing out of the form in which.it was taken, and also one founded on a critical examination of the language of the. justice, in his charge; yet, we think there is a strong probability that the jury was misled by the charge, and may have been induced thereby to suppose that, in order to constitute an assault and battery, for which the defendant was liable in damages, the assault must have been made in anger; and, if done in entire goodnature, and from good motives, though against the will of the person assaulted, the defendant could not be held liable; and we think, on the whole, there should be a new trial in the case, by reason of the apparent possibility that the jury may have been misled, as to the rule of law applicable to the case, by the charge of the judge, in connection with the refusal to charge as specified.

Judgment should be reversed and a new trial ordered, costs to abide the event.

Present — Talcott, P. J., Smith and Hakdin, JJ.

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