author: Gray, J.

text:
    John L. Redmond et al., Resp’ts, v. The Mayor, etc., of New York, App’lt.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. Municipal corporations—Assessments—When payment voluntary.
    The court should deny a claim for the repayment of moneys received upon an invalid assessment, unless the parties making payment were ignorant of the facts constituting the illegality of the same, and paid them when demanded, and under circumstances exhibiting such good faith in the matter as to make it appear that they acted under a moral coercion, or else it should be evident that the payment was involuntary and compelled by some duress.

      2. Same.
    Where property owners for eleven years after becoming possessed of the same made no attempt to discharge, by payment or suit, the lien of an invalid assessment which was upon the property when taken by them, and no attempt was made by the city to demand or collect it, and in order to obtain a loan the owners paid the assessment to clear the title and made a claim for its repayment two days after, they cannot recover the money back as being paid under coercion.
    Appeal from judgment of the New York superior court, general term, affirming judgment against defendants entered after trial at special term.

      D. J. Dean, for app’lt; James A. Deering, for resp'ts.

       Reversing 33 N. Y. State Rep., 763.

   Gray, J.

This action was brought. to have declared void and vacated an assessment for repaving a part of Thirty-sixth street in the city of New York and to recover back the moneys paid in satisfaction thereof. The work was ordered done by an ordinance passed in 1869. The assessment was confirmed in 1871 and its payment was made in 1888. The illegality set up by the plaintiff consisted in the alleged omission to advertise the resolution and ordinance of the common council as required by the law in such cases.

For the better understanding of the conclusion we have arrived at, that this plaintiff was not entitled to any recovery in the action because of the circumstances disclosed by the case, a statement of some of the material facts as contained in the findings of the trial court becomes important. At the time of the confirmation of the assessment for the repavement of the street in 1871, the owner of the premises in question was James Redmond. He died in 1877, intestate, seized of the premises (which were built upon) and leaving a number of children him surviving. In 1888, eleven years later, his heirs determined to have a partition of their inheritance and agreed to effect it between themselves without the aid and expense of an action at law. Under their agreement the parcels of land were to be drawn for by lot. The liability of each heir for rents and personalty received, meanwhile, was agreed upon and also the valuation of each piece of real estate. The Thirty-sixth street parcel in question fell to Mrs. Hawlett, a sister. By the agreement she assumed a mortgage already upon it of $7,000, and became bound to repay the sum of upwards of $18,000 for purposes of equalization. In order to make that payment she applied for and obtained a loan of $21,00Q from the United States Trust Company. But the lender made it a condition of the loan that this assessment should be cancelled of record Thereupon it was paid in behalf of all the heirs, who were obliged by their agreement to convey each parcel free of incumbrance. Two days after making the payment, however, they presented a claim against the city for the moneys so paid and payment being refused this action was commenced.

During all of these seventeen years which elapsed between the confirmation of the assessment and its payment, under the circumstances mentioned, there does not appear to have been any action taken by the municipal authorities in the direction of collection or enforcement. All that was done, as it appears in this record, was the advertisement of the completion of the assessment list by the board of assessors, a transmission of the list to the board of revision, etc., for confirmation, the subsequent confirmation by that body and the entry in the books of the clerk of the bureau of arrears, in November, 1871. Thereby it undoubtedly appeared as a lien upon the premises affected, but there does not appear to have been any demand of payment, or any process or warrant issued for its collection. Nor do the proofs disclose any excuse for the delay by the plaintiffs in paying the assessment, or in investigating the character of the apparent charge upon their property. Is it conceivable, under the circumstances related, that a cause of action could have accrued in the plaintiff’s favor against the municipality ? I am not aware of any case which can be deemed to go so far as to warrant such an action, in the face of the facts and of the presumptions they support. The theory of such an action is that ex aequo et bono the defendant, having no right to require the payment of the assessment, therefore should not retain the moneys paid by the plaintiffs and should restore them upon their demand. To maintain the action it is essential that it should appear that the payment had been made in ignorance of the invalidity of the assessment and through some legal coercion, or involuntarily, upon some coercion in fact to prevent the seizure of goods or the arrest of the person. Dillon’s Municipal Corp., § 940; Peyser v. Mayor, 70 N. Y., 497; Phelps v. Mayor, 112 id., 222; 20 N. Y. State Rep., 238.

In Peyser v. Mayor, Judge Folger’s opinion contains a discussion of the principle upon which actions may be maintained to recover back moneys paid in cases of assessments illegally imposed. It was there said that where assessment proceedings “ are regular on their face and on presentation make out a right to have and demand the amount levied and to collect it in due course of law, etc. * * * unless void on their face, they have the force of a judgment; the party is legally bound to pay and has no lawful mode of resisting. The only remedy is a reversal of the adjudications. Until reversed they give the collector of the tax the right to take and sell goods, and the assessment remains a prima facie valid lien upon real estate.”

In that case the assessment was imposed in March, 1869, and in October of the same year it was, on motion, set aside and adjudged to be void. It also appeared that in July the plaintiff received official notice of the confirmation of the assessment and a demand of payment on or before July 27th, and that thereupon he paid under protest. The difference is very material between that case and this; both in the absence here of the element of a demand by the authorities and in the extraordinary inaction on both sides for seventeen years.

The long established and well recognized general rule on the subject of voluntary payments is that when made with knowledge of the facts, and not induced by the fraud of the other party, they are beyond recall in law. Brisbane v. Dacres, 5 Taunton, 143; Silliman v. Wing, 7 Hill, 159; Preston v. Boston, 12 Pick., at page 14.

So, where an assessment is paid which upon its face carries the notice of its illegality and consequent invalidity, and no duress is resorted to for its collection by the authorities, its payment by the property owner would be voluntary in the eye of the law and its restoration denied. Fleetwood v. City of New York, 2 Sandf., 475; Peyser v. The Mayor, 70 N. Y., 497; Phelps v. The Mayor, 112 N. Y, 216; 20 N. Y. State Rep., 238. But the principle upon whieh such payments are deemed voluntary extends to cases where, without the impress of illegality upon their face, assessments are paid with knowledge, actual or constructive, of the facts which make them invalid claims of the municipality. That should be quite obvious, for the principle underlying the right to compel a restoration of the moneys paid is that the debtor was ignorant of the existence of the facts which would have precluded his creditor from maintaining his demand at law or enforcing his lien against his defense. The court should deny a claim for the repayment of moneys in such cases, unless it appears in proof that the parties charged with their payment were ignorant of the facts constituting the illegality of the assessments, and paid them when demanded and under circumstances exhibiting such good faith in the matter as to make it appear that they acted under a moral coercion, or else it should be evident that the payment was involuntary and compelled by some duress.

In the present case, conceding the illegality of the assessment proceedings, I think ample reasons exist for denying the relief which the plaintiffs seek. For eleven years after becoming possessed of the property they made no attempt to discharge the lien by payment or suit, and no attempt was made by the city to collect payment. When, for their mutual convenience, and in order to raise moneys to equalize their respective shares in the division of their father’s estate, a loan is made, they then find 'themselves obliged to move in discharge of the lien of the assessment, not because of any demand or action by the municipal authorities, but because the lender has required a clear record of title. When the payment is then made, within two days, practically immediately, the plaintiffs file their claim and institute this action, on the ground that the assessment proceedings were invalidated by reason of the failure to observe a legal requirement. It is true that the trial judge found that at the time of payment the plaintiffs believed the assessment legal and were ignorant of the facts constituting its invalidity; but the finding was excepted to, and I do not think there is evidence sufficient to sustain it. The finding could only have been based on the testimony of one of the plaintiffs, who testified to having paid the assessment, and that she did so thinking it was legal. It is difficult to see how the evidence of this witness could conclusively establish ignorance of the facts as to the invalidity of the assessment on the part of the other plaintiffs, co-tenants with her of Undivided interests in the property. She did not manage the estate; it was her sister who had acquired the property and the mother of the plaintiffs had been the administratrix of the estate. The witness may well have been herself ignorant of the facts upon which the claim was based which was immediately made on behalf of the plaintiffs, and still the others, or some of them, may have been possessed of the requisite information. And the knowledge by any of them in such a matter, under the circumstances, should be chargeable to all. So I consider that the evidence, when considered, not by its weight, but in its nature, to be wholly insufficient to support so broad and material a finding.

The presumption is decidedly against the fact that these plaintiffs believed the assessment valid and incontestable, whether we view their action in claiming back the moneys immediately after their payment, or whether we view their conduct in neglecting to pay during all the years of their possession and until it became desirable to borrow some money on the property. The irresistible inference from the facts was that the invalidity of the assessment lien was recognized from the failure of the city to take any step to demand or to enforce collection of it in the usual statutory methods, and that the plaintiffs knew its infirmity and, in paying its amount to permit the loan to be then perfected, relied upon their ability to recover it back by a suit The payment was not under coercion in fact, inasmuch as there was no compulsion, as by warrant or threatened seizure. Phelps v. The Mayor, 112 N. Y., 216; 20 N. Y. State Rep., 238. There was no coercion in law, because that would exist only when, the assessment having been confirmed, payment thereof had been demanded by the authorities and seemed to be legally and rightfully due them. Peyser v. The Mayor, supra.

Such an action,, though at law, is, nevertheless, equitable in its nature, and relief is granted, in adjudging a repayment of moneys paid under illegal assessments, on the ground that to permit their retention would be against equity and good conscience. Dillon’s Municipal Corp., § 939. Where the payment has been made under some actual compulsion, in fact or in law, as where it is made upon demand in ignorance of the facts and because to all appearances the assessment is on its face regular and valid, the party is entitled to relief. But if the proof is insufficient to furnish ground for a finding of ignorance, and the circumstances disclosed by the case repel the inference of any coercion, in law or in fact, the relief should be denied. The question which is presented to the court,, in such an action, is whether on the facts the city ought to keep the moneys, and though the action may be in form ex contractu it is not based upon any contract obligation, but rather upon the moral aspect of the matter. Though in assumpsit, the action depends upon general principles of equity for the maintenance of the plaintiffs’ claim to the moneys. Kingston Bank v. Eltinge, 66 N. Y., 625; Chapman v. Forbes, decided by us December, 1890, 34 N. Y. State Rep., 351.

It is not a matter of strict legal right in the plaintiffs and the answer to the question turns upon the facts and the inference they justify and support. The rules which would govern if the action were between individuals should not be stretched because the defendant is a municipal corporation. It is equally entitled to the equitable considerations which would prevail in favor of the natural person. It should not be lost sight of that in this species of actions the real merits are not always with the parties who bring them and in this particular case they probably are with the city. The basis of the claim is usually the failure to create a charge upon the property owner assessed from the disregard or omission of some more or less essential legal requirement as, for instance, in this case, the omission to advertise in newspapers validly designated the resolution and ordinance of the common council providing for the doing of the work. The work may have been properly done, but the party charged for its benefits endeavors to escape his assessment through some technical mistake committed by the authorities and to spread his burden upon the city at large.

The cases in the reports where the facts are recited upon which the opinion is predicated show either coercion in fact or in law by the authorities. In the case of Peyser v. The Mayor, supra, relied upon by the respondent, it appeared that the plaintiff received official notice and a demand of payment on or before a certain date named and it was complied with. Judge Folger in his opinion in that case, in his reference to The N. Y. & H. R. R. Co. v. Marsh, 12 N. Y., 308, uses this significant language: “ There is no clashing here with the case * * *. Besides, in that case, the collector did not assert a right to seize property then and there. There was no taking nor imminent danger thereof.”

The conclusion to which we are brought by the consideration of this case is that the great lapse of time during which the assessment remained without demand or steps taken to collect it, the want of diligence in the parties to pay it, or to move in its vacation, the fact that when payment is finally made it is made without any coercion and only for purposes of convenience and accommodation, and that immediately thereupon a claim is filed, and as soon as possible placed in suit for a restoration of the moneys on the ground of the illegality of the proceedings leading to assessment, that all these are circumstances which should have precluded the court from granting the relief demanded. Added to these equitable considerations is the utter failure of the proofs to establish ignorance of the fact of invalidity on the part of the plaintiffs, or to furnish that explanation of their conduct which every such case should contain as the basis for granting relief.

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

All concur.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    Annie A. Devlin, Resp’t, v. The Greenwich Savings Bank et al. App’lts.

      (Court of Appeals,

      Filed February 24, 1891.)

    Gift—Causa mortis—Weight of evidence.
    Plaintiff claimed a deposit in bank on the ground that her uncle had given it to her while lying ill and in expectation of his d°ath, which occurred shortly after. Upon the trial before the referee plaintiff’s husband made a statement as to how and when the gift was made, and on a subsequent hearing stated that it was made on an entirely different occasion and in a different manner. The husband and wife swore that they had not spoken on the subject to’ each other for fourteen years, though living together, nor tried to ascertain the amount in bank, etc., etc. Held, that the referee was entirely justified in his refusal to find that any gift had been made to the plaintiff of the property in question.
    Appeal from a judgment of the New York common pleas, reversing judgment in favor of defendants, entered on the report of a referee.

      Abram Kling, for app’lts; Wm. Henry Arnoux, for resp’t.
   Peckham, J.

The term of the New York common pleas reversed the judgment herein entered in favor of the defendant upon the report of the referee, upon the facts as well as upon the law and granted a new trial. The defendant appealed to this court from such order. In such case we must review the determination of the general term upon the questions of fact as well as the questions of law. Beebe v. Mead, 33 N. Y., 587; Code of Civil Pro., § 1338. The principles upon which such review of the facts is entered upon here have been lately stated in the case of Baird v. Mayor, etc., of New York, 96 N. Y., 567. We gather from that case and from those cited by the learned chief .judge in the course of his opinion, that to justify the reversal of the finding of a referee or a single judge, it must appear that such findings are against the weight of proof or that the proofs so clearly preponderate in favor of a contrary result to that reached by the referee that it can with a reasonable degree of certainty be :said that the trial court erred in its conclusions. As said by Folger, J., in Crane v. Baudouine, 55 N. Y., 256, the question is whether we are so certain that the referee was in error upon the facts as that we will assume to review his judgment? The fact that the trial court has the immense advantage of seeing the witnesses as they testify, and can thus observe their general intelligence, their demeanor while under examination, and the presence •or absence of fairness and candor; all this always weighed very ■•strongly with appellate courts when asked to review and reverse the findings of fact by a court or referee.

The plaintiff herein claimed to recover the amount of the deÍosit in the bank on the ground that her uncle, its former owner, ad given it to her while he was lying ill at his house in Pennsylvania and in expectation of his death, which occurred within •a short time after the alleged gift was made. In the technical language of the law she claimed the money by reason of an alleged gift mortis causa from the former owner.

In many of such cases there is great danger of fraud and all the books concede that the evidence which proves the gift should ■be clear and convincing, strong and satisfactory. Although it may not be true that the law presumes against a gift, it certainly •does not presume in its favor, but requires proof of it Grey v. Grey, 47 N. Y., 552; Grymes v. Hone, 49 id., 17; Lewis v. Merritt, 113 id., 386; 22 N. Y. State Rep., 714. Coming to a review of the findings of fact by the referee with • these rules in our mind, we are compelled to say that in our opinion the general term erred in reversing such findings. The case has been read carefully over and all the evidence on both sides has been thoroughly reviewed, and we have come to the conclusion that the referee was entirely justified in his refusal to find that any gift had been made to the plaintiff of the property in question. It cannot be said that his findings were against the weight of evidence or that the proof clearly preponderated in favor of a contrary result

It would serve ho beneficial purpose to go over the evidence and point out in detail how in our judgment the plaintiff fails to make out a clear case. It is enough to say that the story as told by the husband, taken as a whole, with all the accessories of place, time, circumstance and probability, is such as to warrant the referee or any other tribunal in refusing to give credence to it.

The occasion when the gift was made he describes with confidence as to the entire details. He does so in his first direct examination and in his cross-examination, and is particular in his statement that the gift was delivered on the very same day and occasion as the bonds were given for the purpose of being sold by the witness and the proceeds returned to the owner.

Subsequently, after the case before the referee had been adjourned, the witness comes on the stand and wholly repudiates that part of his evidence, desires to correct it, and then proceeds to say that the gift was made on an entirely different occasion from that on which the bonds were produced for him to take to Hew York and sell, and that it was subsequent to that time, when the donor was in another bedroom in another part of the house, that the bank books were given to the wife of the witness, the present plaintiff.

The story of both husband and wife as to the almost complete silence they had maintained towards each other on this subject from the time of the gift for a period of almost fourteen years is in itself most unnatural. They lived together, and, as the evidence shows ,were on the usual terms of husband and wife. And yet neither counted up the amounts of the deposits in these different banks, nor had they procured any one else to do so, and, so far as appears, neither knew what such amounts were. A careful reading of the husband’s evidence does not impress me with its candor or credibility. The reason given why the action was not brought sooner is one eminently for the consideration of the trial court. It bore greatly upon the question of the integrity of the claim. The statement of Mrs. Devlin that she gave her attorney the books in 1874, and had several times since directed him to take action in regard to the matter, but could not tell within five years of the time she first spoke to him about it, and the fact that no suit was commenced, or anything done by the attorney for so many years, although the books were in his or her possession, taken with all the other facts in the case, make up a case eminently fit for careful scrutiny by the trial court. The books wefe in the possession of the plaintiff soon after the death of the decedent. There is no doubt of that. But under what circumstances, and for what purpose they came into her possession, there is very grave doubt. There is corroboration of the claim of the plaintiff, slight perhaps, but still existing, in the evidence of the housekeeper. But her evidence is contradicted in some particulars by the defendant, Mrs. Farmer, and on the whole the story was one peculiarly for a trial court to pass upon, having the benefit, already alluded to, of seeing the witnesses who were testifying to this strange story.

Unless the referee committed some error in the admission or rejection of evidence, the judgment entered upon his report should be affirmed.

The plaintiff complains that the referee excluded her offer to prove by the plaintiff that she once had a conversation with one Father Oarew, who was at that time the administrator of the estate of her uncle, the donor, and that Father Oarew in such conversation told her that Father Fitzsimmons (the uncle and donor) told him before his death that he had given the bank books or property to the plaintiff (the witness). If Father Oarew had been the witness ana it had been offered to prove by him that the donor had made this admission to him, the question would have been different and the evidence perhaps admissible. As it was, the evidence was nothing but hearsay, a statement of what the witness said some one told her that some one else had told him.

There was another offer to prove that father Oarew, while he was alive and was the administrator of the donor, knew that the plaintiff had possession of these bank books. I do not think this evidence was admissible. The knowledge of Father Oarew was not material. The material part of the story was the money remaining so long in the bank and no step taken to have it placed in the name of the plaintiff as owner; no claim made upon the bank for payment of any portion of the money; no step of any kind taken in regard to the deposit. These facts bore strongly upon the honesty of the claim. The fact that Father Oarew may have known of the possession of these bank books would have no tendency to explain the delay and omission above spoken of. But even if it were admissible and the referee erred in his rejection of the evidence, we are entirely clear that its rejection could by no possibility harm the plaintiff, and that there was evidence enough to fully support the finding of the referee even with all this alleged explanation in.

The counsel for plaintiff asked her, when on the stand, whether she was present at a conversation between her uncle and Father Carew. It was objected to and excluded, and an exception taken. The counsel for plaintiff did not pursue the subject. He made no offer to show any fact that was material and which occurred during such conversation. The mere fact that she was present at some conversation was wholly immaterial We can not see that injury resulted to the plaintiff from such ruling. It is for her to show error. To exclude evidence of her presence at a conversation between her uncle and Father Oarew upon a subject not in the least connected with the issue would not be error. ‘Whether the conversation was of that nature does not appear. Nothing appears except the bald fact stated, and so there was no error.

It is doubtful if the witness could be permitted to testify as to a conversation in her presence between her uncle and Father Carew relative to the gift she claimed. The cases of Eysaman's Will, 113 N. Y.; 62; 22 N. Y. State Rep., 136, and Dunham's Will, 121 N. Y., 575; 31 N. Y. State Rep., 858, have very greatly limited the old rule in regard to such conversations.

There is no question of the statute of limitations in the case; and the knowledge or ignorance of Father Carew of the alleged gift to the plaintiff, or that the books were in her possession and she claimed them as a gift, could have no bearing on the case. The rejection of the offer to prove by the attorney that he had a conversation with Father Carew, and the substance of such conversation was, therefore, properly rejected. A portion of it was also clearly hearsay as to what Father Carew said the uncle had told him.

We have carefully examined each of the other objections made by the plaintiff’s counsel to the rulings of the referee upon the question of admitting or rejecting evidence, and we are of the opinion there was no error committed to the injury of the plaintiff.

The exceptions to the findings of the referee are not valid, and for the reasons given in regard to the whole evidence in the case, the order of the general term reversing the judgment and granting a new trial should be reversed, and the judgment entered upon the report of the referee should be affirmed, with costs against the plaintiff.

All concur.

       Reversing 30 N. Y. State Rep., 541.


author: Daniels, J. Brady, J. (dissenting)

text:
    Rebecca Babbitt, App’lt, v. David S. Brown et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Trade-mark—Infringement—Injunction.
    In an action to restrain the use of a printed wrapper used in packing and selling soap so far as it resembled that used by plaintiff, it appeared that there was a direct resemblance between the words used on the wrappers, both in size of type and style of letters, and that the color was the same; hut it was not shown that the wrappers were so used by defendants as to bring the words to the immediate view of purchasers. Held, insufficient to sustain an injunction pendente lite.

    (Brady, J., dissents.)
    Appeal from an order denying a motion to continue an injunction.

      Daniel G. Rollins, for appl’t; Rowland Cox, for resp’ts.
   Daniels, J.

The action is brought to restrain the use of a printed wrapper so far as it resembles that used by the plaintiff in packing and selling soap manufactured by her as the successor of Benjamin T. Babbitt, deceased, and from impressing the cakes of soap with the prominent words printed upon the wrappers. The deceased testator, and husband of the plaintiff, had for many years been engaged in the business of manufacturing and selling soap. The business under his management had become very extensive and profitable, and has so continued under the control of the plaintiff.

In or about the year 1881 the defendants, David S. and Delaplaine Brown, commenced the manufacture of soap for the defendants George and George K C. Punchard, which was stamped in a similar manner to the soap manufactured by the testator and by the plaintiff. Each cake of soap manufactured by the defendants Brown was enveloped in a wrapper similar in color to the wrapper which had been all along used in the Babbitt business, except that it was of a lighter shade. Prominent upon the wrapper used in the Babbitt business were the words in large type and three lines of

B. T. Babbitt’s

-Trade mark-

BEST SOAP.

And equally as prominent upon the wrapper used by the defendant were the words in three lines and about the same sized type

B. J. Butler’s

-Trade mark-

BEST SOAP.

The residue of the wrappers contain printed statements and directions for the use of the soap. Those on the plaintiff’s wrappers are much more extended than those printed on the wrapper used by the defendants. These differences are so great that, aside from the color of the wrappers, there is no reason for believing that purchasers of the defendants’ soap would be thereby induced to suppose that they were purchasing the soap manufactured by the plaintiff. The more immediately striking parts of the wrappers consist in their color and the three lines already mentioned. The words are placed upon each wrapper in the same general form, and in the size of the type and the style of the letters there is a direct resemblance between those used by the defendants and those on the plaintiff’s wrapper.

But while each cake of the soaps is contained in one of these wrappers, it has not been stated, or shown by the complaint, or the affidavits, that the wrapper is so used as to display these words, or to present them to the immediate observation of purchasers. The same words stamped into the cakes of soap cannot be a source of deception, for they are concealed from the immediate view of the purchaser by the wrapper completely enveloping the soap. If the purchasers were deceived at all, and the plaintiff was thereby injured in her business, it could only be by the words upon, and the coloring of the wrappers. And to obtain an injunction restraining the defendants from using the wrapper during the pendency of the action, it was for the plaintiff to maintain that such deception would naturally result from these appearances. And that could be done only by showing, if that were the fact, that the wrapper was so used by the defendants in wrapping and selling the soap as to bring these words to the immediate view and observation of the buyers of the defendants’ soap. It may be conjectured that this was the fact, but conjectural evidence will not maintain a preliminary injunction. But the facts upon which it is made to rest must be proved to a reasonable degree of certainty, and that has not been done in this instance.

A person prominently engaged in the plaintiff’s business when it was carried on by the testator, was informed of the sale of this soap in the year 1886. And he himself was informed in 1888, that Henry Punchard & Son were dealing in it. But they agreed to discontinue that business, after receiving a remonstrance from a person acting under the authority of the testator. Whether he in fact at any time had other information of the manufacture and sale of the defendants’ soap, or acquiesced in that sale or manufacture, it is unnecessary now to consider. For the' plaintiff has failed to prove that the defendants’ soap was so wrapped and presented for sale as to probably deceive persons intending to purchase the plaintiff’s soap into the belief that they were obtaining it when they bought that manufactured and sold by the defendants. Because of this defect the injunction was not sustained. And the order from which the appeal has been bought should be affirmed, with ten dollars costs and the disbursements on the appeal.

Van Brunt, P. J., concurs.

Brady, J. (dissenting)

I think the intention to derive benefit from the plaintiff’s manufacture and to deceive sufficiently appears both from the color of the wrapper and general mode of preparation shown. I dissent, therefore.


author: Barrett, J. Van Brunt, P. J.

text:
    Henry W. Bates, as Rec’r of the United States Stamping Co., App’lt, v. John S. Dickerson et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Stay—Costs.
    A former action brought by plaintiff as receiver was dismissed with costs, as claimed, on the ground of the irregularity of plaintiff’s appointment. After his re-appointment he again sues upon the same claim. Held, that his proceedings were properly stayed until payment of the costs of the former action. ;
    Appeal from an order staying plaintiff’s proceedings until the costs of a former action are paid.

      Edgar J. Nathan, for app’lt; George Putnam Smith, for resp’ts.
   Barrett, J.

The plaintiff states in his affidavit that the first action which he brought against these defendants was dismissed on the sole ground of the irregularity of his appointment as receiver. However that may be, the judgment of the court, to which alone we can look, ran against him as such'receiver. Under § 3246 of the Code, the costs were exclusively chargeable upon the estate. We have thus a judgment in substance against the estate for the costs of the action; and now the same estate without paying these costs is again proceeding upon precisely the same facts to secure the same judgment. The principle upon which a second action for the same cause is. stayed until the costs of the first action are paid is here applicable.

The defendants have a valid claim against the estate represented by the plaintiff for the amount of their judgment, and we have nothing to do with the reasons which actuated the court in awarding that judgment. The question is not affected by the subsequent appointment, nor would it have been affected by the appointment of a different person. The substance of the matter is the failure of the estate in the first action, and its attempt to proceed in a second action for the same cause without paying the costs of the failure. It was upon this that the discretion of the court below was invoked, and we think it was properly exercised.

The order appealed from should be affirmed, with costs.

Van Brunt, P. J.

Although I do not think that the court was justified in imposing upon the estate claimed to be represented by a receiver the costs of an action which failed for the sole reason that such alleged receiver had no authority to represent such estate, yet, such judgment having been rendered, its propriety cannot be inquired into, and I therefore concur in the result.

Bartlett, J., concurs.


author: Brady, J.

text:
    Henry K. S. Williams, Pl’ff, v. The Mayor, etc., of New York, Def't.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Taxes—Deed—Appbopeiation oe land by city.
    Plaintiff's bulkhead and wharfage rights were cut off by a city improvement in 1881. Subsequently, in 1890, he recovered judgment for its market value as of the day it was cut off, which provided that on receiving the amount thereof he should convey his bulkhead and rights to the city. Held, that the effect of the judgment was that the property had been taken by the city on that day; that after that time taxes were not assessable against the plaintiff, and that he was not obliged to pay the taxes levied between 1881 and 1890 in order to comply with the requirement of the judgment.
    Submission of case on facts agreed upon under § 1279 of the Code of Civil Procedure.

      William W. MacFarland, for pl’ff; Charles Blandy, for def’t
   Brady, J.

Annexed .hereto is the defendant’s statement of facts and of the question which this court is called upon to decide.

On May 1, 1881, the plaintiff owned a certain bulk-head and wharfage rights on the Horth river between Twenty-fifth and Twenty-sixth streets, which the defendants through the department of docks, acting under chap. 574 of the Laws of 1871, and for the purpose of carrying out a plan for the improvement of the water front of the city, wrongfully invaded and cut off.

Thereafter an agreed statement of the facts was submitted to this court on September 19, 1885, for the purpose of ascertaining what, if any, damages the plaintiff was entitled to in the premises ; and on or about the first Monday of October, 1885, an interlocutory judgment was entered, decreeing that the cutting off of the plaintiff’s rights was unlawful; that be was entitled to damages therefor, and it was referred to the late Hamilton Cole, Esq., to take proof .as to such damages.

Thereafter and on the 8th day of July, 1889, a final judgment was entered in the action after the report of Mr. Cole had been made and confirmed, by which final judgment the court decreed :

1. That the market value of the plaintiff's property on May 1, 1881, and of his riparian rights, etc., was $65,000.

2. That he was entitled to compensation and that the measure-of such compensation was the market value on May 1, 1881, with interest from that date at six per cent

After the costs had been taxed and the interest calculated a final judgment was entered as follows:

“Now on motion of MacFarland, Boardman & Platt, attorneys, for the plaintiff, it is ordered, adjudged and decreed that the plaintiff recover of the defendants the sum of $96,828.04 with $4,003.34 costs and disbursements, amounting together to the sum. of $100,83138.
“And. it is further ordered, adjudged and decreed that upon payment of said judgment, the mayor, aldermen and commonalty of the city of New York be entitled to all the plaintiff’s rights, title and interest in the property above described; and that upon receiving such payment the plaintiff is hereby required and directed to execute and deliver to said municipal corporation a good and sufficient bargain and sale deed, sufficient to convey and assure the same to it and to its successors and assigns forever.’’

On the 8th of July, 1890, the defendants paid the judgment in full; they paid $106,545.14, which was made up of the principal sum of $65,000, with interest and costs, and interest on the judgment from the date of the judgment on June 18, 1889, the latter-date being the day first appointed for payment of the judgment, and the plaintiff executed and delivered to the defendants the deed called for in the final judgment.

At the time of the delivery of the deed a question arose whether, under the terms of the judgment of the 8th of July,, 1889, the defendants were entitled to any other than a simple bargain and sale deed. It was claimed by the plaintiff that the-defendants were not, and by the latter insisted that they were, entitled to a full warranty deed.

A full warranty deed was, in fact, executed, but it was understood and agreed as a part of the submission that the mere fact of giving such warranty shall not determine the rights of the parties-upon this submission, but that the same shall be determined by the language of the final judgment of July 8, 1889.

At the time of the payment of the judgment a question of difference arose whether the plaintiff should bear and pay the sum of $674.45, that being the amount of taxes assessed against the property between May 1, 1881, the date of the trespass, and June 18, 1890, the date agreed upon for passing the title. No question arises as to the period from June 18, 1890, to July 8, 1890, when the judgment was actually paid.

Defendants claim that the plaintiff could not deliver to them the deed called for by the judgment, which means a title free and clear of all incumbrances, without paying these taxes. The plan-tiff claims that as said action had proceeded and been decided upon the theory that the defendants had destroyed plaintiff’s bulkhead, or appropriated the same to their own use, prior to the time that any of said taxes were assessed thereon, that the taxes were unlawful, and that the plaintiff could not justly be required to pay the same in order to carry out the provisions of said final judgment.

The simple question for decision by the court, therefore, upon this appeal is whether, under the circumstancs, the plaintiff, in order to comply with the provisions of the final judgment, was bound to bear and pay this $674.45, or whether the defendants should bear and pay the same.

It will have been observed that on the first of May, 1881, the property of the plaintiff was invaded and appropriated by the defendant, and in certain legal proceedings relative to such appropriation it was declared that he was entitled to the market value of his rights thus usurped as they existed on that day, with interest therefrom. The effect of such declaration was that the property had been taken by the city on that day. And having been taken and appropriated it seems to be clear beyond all possible dispute that no taxes could be assessable .against the plaintiff, from whom it was forcibly taken at that time, who never subsequently had possession of it in consequence, and who was not regarded by the defendant as the owner of the premises at the time they were ■taken. A mere statement of the proposition seems to bear its answer palpably written upon it.

For these reasons the plaintiff is entitled to such judgment as is provided for in the statement of facts agreed upon. Ordered accordingly.

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


author: Daniels, J.

text:
    The People, Resp’ts, v. John B. Dean, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Larceny— Trickery and deceit.
    The indictment charges defendant with having feloniously stolen, taken and carried away $900 in bank notes, etc., the property of one O. The proof showed that 0. answered an advertisement; "that defendant informed him that he had a large claim against one T., but could only get it by the employment of other money, asked 0. to furnish $1,000 and he would do the same, and when the claim was collected with the assistance of one E. agreed to divide it among the three. C., who was a country clergyman, assented, and the three met T. The money was staked on a game of faro, and the money passed to T.; that O. subsequently had several interviews with defendant with relation to a return of the money, which failed. It also appeared that defendant, E. and T. were confederated together, and that the entire scheme was one to obtain this money. Held, that there was no variance between the indictment and proof; that the case was not one of larceny by false pretenses, but by artifice and trickery.
    2. Same—Charge.
    The court prefaced the charge with the remark that swindlers abound everywhere, and their prey is generally the innocent countrymen, men who have lived far away from the city and who are unused to the ways of the city of New York. He then called attention to the evidence and the rules governing it, and admonished the jury not to convict unless guilt was proven within such rules. Held, that defendant was not prejudiced by such preliminary statement. >

    3. Same—Evidence.
    Evidence as to the subsequent interviews had by the complainant with defendant in relation to a return of the money was competent to prove that he had not intentionally parted with his money.
    Appeal from a judgment of the court of general sessions of the. county of New York, convicting the defendant of the crime of grand larceny in the first degree.

      John J. Green, for app’lt; McKenzie Semple, for resp’ts.
   Daniels, J.

The indictment charged the defendant with having feloniously stolen, taken and carried away the sum of $900 in bills, consisting of United States treasurynotes and bank notes, the property of George H. Chappell. By the proof given to sustain the charge it was made to appear that the complaining witness-answered an advertisement published in the NewY orle World, which read “ Wanted, gentleman with $1,000 cash, can insure big returns in a few days. Important 255. Uptowm World.” And that, brought about several conferences between himself and the defendant, which resulted in their meeting two other persons in a house on Thirty-third street in the city of New York, and there staking his money on a game called faro, and losing the $900 mentioned in the indictment

He testified that the defendant previously informed him that he had a large claim against a person he named as Morgan, but whose real name was Thompson, and that it could be only obtained by the employment of other money, and desired the witness to furnish about $1,000, and he himself would furnish as much or more, and by the use of it, and with the assistance of another person called Brooks, but whose name was Baton, the money could be obtained from Morgan, and when the money was secured from Morgan, it. should be divided among these three persons. The witness assented to the arrangement, and the four persons met at the place referred to, where the money was passed over to Baton, for which chips were dealt out by him and the cards drawn out, and the money passed over to Thompson, who retained it. The witness states that he had several interviews with the defendant to obtain a return of his money, but which wholly failed in their object, and this prosecution was then instituted.

The evidence tended to prove these three persons to be confederated together, and that the entire scheme from the beginning was no more than a device to obtain this money. The witness was a clergyman, guileless and unsophisticated, and testified that, he believed all that had been said to him until he had lost his money and left the building, when it occurred to him that he had been deceived.

At the close of the evidence the defendant’s counsel moved for his discharge, on the ground that the crime of larceny had not been proved, and that there was a variance between the proof and the indictment, which did not set forth the false representation, made. The court denied the motion, and the defendant’s counsel excepted; and this exception is depended upon to support the appeal.

It is urged that the exception is sustained by the case of McCord v. People, 46 N. Y., 470, and People v. Dumar, 106 id., 502; 11 N. Y. State Rep., 19. But that is not their effect. For there was no intent on the part of the witness to combine with the other two persons to commit any offense, as there was in the first of these cases. The object, on the contrary, was to obtain from Thompson what, the defendant represented he was justly entitled to receive from him, which would be in no possible view a violation of the law. The other of these cases was one of false pretenses, which were not referred to or set forth in the indictment. These pretenses had proved successful, and the title, as well as the possession of' the property, had been parted with; while in this case the title to the money' supplied by .the witness was not intended to be surrendered, but it was to be used to insure the success of the expedient which the witness testified was explained to him by the defendant, but which he still failed to fully comprehend or understand.

This case, as the evidence tended to prove it, was not one of larceny by false pretenses, but by artifice and trickery. That was larceny, as the crime was defined by law before the enactment of the present Penal Code. It consists in feloniously obtaining the possession of another’s property while the title continues in the latter, intending thereby to appropriate it to the use of the person receiving it.

Devices of this description have been frequently before the court, and where possession has been obtained by means of them larceny was held to have been committed. Wharton on Criminal Law, 4th ed., §§ 1849-1852. And this principle has been sustained and applied in cases brought before the court of last resort in this state. Smith v. People, 53 N. Y., 111; Loomis v. People, 67 id., 322, 328; People v. Henderson, 90 id., 12. Both the indictment and the proof were sufficient to maintain the prosecution, and the court was right in denying the defendant’s motion to be discharged.

In the submission of the case to the jury the judge presiding remarked that swindlers abound everywhere, and their prey is generally the innocent countrymen, men who have lived far away from the city, and who are unused to the ways of the city of Rew York. And to that the defendant’s counsel excepted. The remark is unfortunately a well known and notorious truism. But it was not applied to the disposition of this case. It was made by way of introduction, and afterwards the attention of the jury was drawn to this case, and the evidence produced in it, and in what was then said, the legal parles governing it were clearly repeated, and the jury were admonished not to convict unless guilt was proven within these rules. The remark made could therefore have resulted in no harm to the defendant. An exception was also presented to the remark that the jury were not to apply the same rules to all men, that men in different circumstances must be judged by those circumstances, and that imbecile persons are not to be held to the same rule as those of sound judgment and sound minds. This was no more than an abstraction, having no relation to the case, for there was no reason for supposing that the complaining witness was an imbecile, or a person of even weak mind. He was inexperienced in these devices and artifices, but in no other respect infirm in mind, and the remark was in no respect pertinent to the case. For that reason the exception taken to it is unavailing.

The complaining witness testified that he several times met the defendant by appointment and conferred with him when he proposed ways in which a return of the money would be secured. But they all failed, as it was probably intended they should. They did, however, tend to prove that the witness had not intentionally parted with his money, or the title to it. The defendant’s conduct and statements were evidence of that fact. And the exception taken to the reference made to what had been said and done in that view and to attain the return of the money can be of no benefit to the defendant.

The case was throughout one for the jury, and their verdict is sustained by the evidence. And as the exceptions can neither of them be supported, the judgment should be affirmed.

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


text:
    In the Matter of the Judicial Settlement of the Accounts of Louis V. Durand, Adm’r.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Executors and administrators—Expenses.
    The estate in question amounted to $1,670. On the accounting it appeared that there were no debts, and that the administration of it was simple, but the executor presented charges to an amount greater than the estate, including services in hunting for assets, traveling expenses not shown to be necessary, and services of counsel under an agreement to pay him twenty-five per cent of the estate. Held, that these charges were properly disallowed.
    Appeal by Louis Y. Durand, as administrator, from a decree of the surrogate of the county of New York, made on the settlement of his accounts.

      Fred. F. Nugent, for app’lt; Frederick B. Bailey and A. W. Gleason, for resp’h
   Daniels, J.

The estate which was settled the decree was left by Thomas Barber, who died intestate on the fourth of July, 1838. He left a widow who died on the 17th of August, 1866. The intestate deposited $125 in the Bank for Savings in the city of New York. This deposit did not become known to his widow, neither did it to either of his next of kin, until the time when letters of administration were issued to the appellant in December, 1885. He had previously endeavored to discover property belonging to the intestate and had expended money for that object which was not allowed to him in his final settlement. The amount of money received by him consisted mostly of interest on this deposit. The interest and principal together which passed into his hands as administrator was the sum of $1,670.96. And its management and administration were affairs of the greatest possible simplicity. There were no debts and no complications whatever in the proceedings. But when he presented his petition for the settlement of his accounts he stated a balance to be owing to himself amounting to $826.55. The estate itself was wholly consumed by charges made, leaving this deficiency after paying the commissions of the administrator. This statement was of itself sufficient to awaken the suspicion, if not to produce the positive belief, that the administrator had flagrantly violated all the obligations of his trust and to subject his own unsupported oath to discredit. For it can well be seen that the administration of the estate was so entirely plain as to render all unusual expenses entirely unnecessary.

. In making up the account, charges were made for the expenses of journeys to Glens Falls, Rochester and frequently to New York, from the residence of the administrator in the state of Connecticut, and also to Milton, on the Hudson river. But there was nothing to be or which could be accomplished by these journeys which correspondence would fail to secure. There was, therefore, no necessity for creating these charges against the estate. And as to those for the journeys to Glens Falls and Rochester, they were divested of all colorable foundation by the other evidence given on the hearing.

The administrator also claimed ten dollars a day for fifty-four days’ searching for evidence and witnesses concerning the claim against the Bank of Savings, where the money had been on deposit This was grossly overcharged. For finding whether the intestate had money in either of the few savings banks existing in New York city at the time of his decease was a very plain and easy act to perform. And it in fact proved to be so, as soon as the administrator set about it in anything like a practical or intelligent way,for his inquiries readily discovered the fact. There was no well grounded excuse for these charges, and they were rightly rejected on the settlement For persons to whom the administration of the estates of deceased persons are committed are required to" observe a reasonable degree of prudence in their management, and to avaid loading the estate with charges and expenditures not necessarily required to be made. That is an obligation which this administrator, as well as his counsel, seem to have wholly overlooked.

With the counsel a contract was made by the administrator to pay him for his services twenty-five per cent, of the estate. It was not in need of that service. The nature of its administration supplies very clear evidence of that fact. There was no proof offered to the contrary, but the counsel stood upon the agreement alone as a justification for the $417.74 which had been paid to him. And that act of itself betrayed a conscious belief that he was not entitled to the money.

The law does not sanction such dealings between the attorney and the person by whom he is employed, more especially where the estate to "be charged is the property of others. But before the bargain can be permitted to stand, it must be proved to have been fairly and justly entered into. Nesbit v. Lockman, 34 N. Y., 167, 169-70; Matter of Hynes, 51 Hun, 340, 343; 21 N. Y. State Rep., 343. And no inclination existed to make any proof that would protect this charge by this principle. It was, therefore, justly rejected, as it should be. .And so was the charge for the other counsel, by reducing the amount from one hundred to fifty dollars. It was an abuse- of his position for the administrator to incur and make these charges. And his conduct is not entitled to be excused by the statement that he was endeavoring to discover whether the intestate did not have other property arising out of a seizure and detention of his vessel at one time by the French government The decree allowed the administrator all that under any sense of justice he had the right to charge. And it should be affirmed, with costs to each of the respondents.

Van Brunt, P. J., concurs; Brady, J., concurs in the result


author: Bartlett, J.

text:
    In the Matter of the Application of James C. Holden for leave to resign as trustee under the will of Albert Weber, Deceased. In the Matter of the Application of James C. Holden, Trustee, for leave to mortgage the Trust Estate.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Trust—Power of court to make allowance for services.
    The court has power, in a proper case, to make an allowance to parties as compensation for services rendered by them for the benefit and protection of the trust estate, although not rendered at the instance of the trustee.
    Appeals from order modifying referee’s report as to allowances to be paid out of trust estate and confirming report as modified.

      Sutherland Tenney, for Wm. Foster, app’lt; William Man, for Bobina Brotheroe et al, resp’ts and app’lts ; John M. Bowers, for Martha Weber, resp’t; James Byrne, for Jas. C. Holden, resp’t; Theodore F. Hascall, guardian ad litem, app’lt.
   Bartlett, J.

The amounts awarded to the various parties to these proceedings were given by the referee and the learned judge at chamber's not as additional allowances by way of costs under the. Code of Civil Procedure, but as compensation for services rendered to the trust estate. In his report the learned referee says that the services were necessary and proper for the benefit and protection of the estate and that proper compensation therefor ought to be paid out of the trust funds; and this opinion, coming from one who was for many years the presiding justice of this court, was also entertained by Mr. Justice Barrett, who agreed that the court had power to authorize the trustee to pay for services which were beneficial to the estate. It was in this view, therefore, that the various payments were directed to be made; and hence it is not necessary to consider whether they could be justified as allowances under § 3253 of the Code.

The case of Wetmore v. Parker, 52 N. Y., 450, 466, upholds the power of the special term, of the supreme court, independently of statutory provisions relating to costs, “to make allowances to trustees and others acting in a fiduciary capacity for all expenses necessarily incurred in the faithful performance of their duties, including counsel fees.” The power exercised in the present proceedings is somewhat broader, being extended so as to embrace for services resulting in advantage to the estate, although not all of them rendered at the instance of the trustee. Under the circumstances disclosed by the appeal papers, we are not prepared to say that the court below exceeded its authority in making these allowances, but we are quite clear that it exercised its discretion wisely in reducing the amounts awarded by the referee to two of the parties.

The order appealed from should be affirmed, with costs in favor of the respondent Martha Weber.

Van Brunt, P. J., concurs.


author: Van Brunt, P. J.

text:
    Matthew McQuade, App’lt, v. James Cooper, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Reference.
    While the court may have power to refer an action brought on a building contract and for extra work, where such extra work is denied and breach of contract set up in defense, the question whether such power should be exercised depends on the peculiar features of the case, and where it appears th it there will be no difficulty in the jury being able to carry in mind the evidence relating to the items involved the application for a reference should be denied.
    Appeal from order denying motion for reference.

      G. F. Langbein, for app’lt; J. M. Tierney, for resp’t.
   Van Brunt, P. J.

This action was brought to recover a balance alleged to be due upon a contract to do certain carpenter work upon the house of the defendant, and also the usual claim under such circumstances for extra work and materials in or about the buildings, and an additional claim for extra plans furnished for the buildings.

The answer of the defendant alleges a specific contract as to the plans, and denies the extra work, except as to two items, claiming that it was embraced within the contract, and alleges certain respects in which the contract had not been complied with.

Upon this state of the pleadings the plaintiff moved for a reference, which was denied, and from the order thereupon entered this appeal is taken.

We see no reason for interfering with the order made by the court below. It may be true that the court may have the power to refer an action of the nature presented by the pleadings herein. But whether it should exercise that power is another question; and the propriety of such exercise must always depend upon the peculiar features of each action in which the application for a reference is made. The policy of the court is not to refer cases unless it is apparent that they cannot with propriety and with justice to the parties be tried before a jury because of complication of accounts or figures which the jury cannot conveniently carry in their minds. But in the case at bar it does not seem that there would be any difficulty in the jury being able to carry in mind" the evidence relating to the few items involved and come to an intelligent determination upon the evidence.

The question in regard to some of the items of extra work must .be determined upon an inspection of the contract. This applies to almost all claims for extra work. And the claim of the defendant in respect to the parts of the contract which have not been complied with are not so intricate or numerous that it would be impossible for the jury to bear in mind the evidence relating to each.

We think, therefore, that there was no adequate reason for a reference in this case, and that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Bartlett, J., concurs.


text:
    The People, Resp’ts, v. Charles McKenna, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Criminal law—Receiving stolen goods.
    Proof that defendant was trying to get possession of certain goods which had been stolen; that he stated that he had put them where they were, and that he knew that a man had been arrested for stealing them, and that he went there to get them as he was informed that if he got them nothing could be done to the person who stole them, is sufficient to warrant a conviction of the crime of receiving stolen goods.
    2. Same—Exceptions.
    A general exception to the judge's charge raises no question, as the attention of the court is not thereby called to any specific error.
    Appeal from judgment of the court of general sessions, convicting the defendant of the crime of receiving stolen goods.

      Purdy & McLaughlin, for app’lt; McKenzie Semple, for resp’ts.
   Van Brunt, P. J.

The appeal in this case seems to be principally based upon two grounds: First, that there is no evidence in this case that the defendant ever had in his possession or under his control the alleged stolen goods. But it is conceded that he he was trying to get possession of them,and that he stated the reason why he desired to get possession of them, which showed that he knew that the goods had been stolen. • The defendant’s own statement, testified to by one of the witnesses, showed that he had been in possession of the goods, because he stated that he had put them in there. It is claimed upon the part of the defendant that this evidence tended to show that the defendant had been guilty of burglary or larceny, of which this property was the subject, and not that he had received the goods knowing them to be stolen. The difficulty with this position is that the jury had a right to take into consideration the statement of the defendant that he knew that a man had been arrestéd for stealing the goods in question, and that he went there for the purpose of getting them, he having been informed that if he got the goods there could not be anything done to the person who had stolen them.

Second : It is urged that the court committed an error in refusing to charge as requested by the district attorney, that the evidence might show an attempt to commit the crime of receiving stolen goods, which the court declined, and that an exception was taken by the defendant.

An examination of the record fails to disclose any such exception. The only exception found in connection with this request is a general exception to the judge’s charge, and to each portion thereof, and particularly where he said it was a very simple case and one that ought not to take an intelligent jury long to determine.

It is perfectly well settled that such a general exception raises no question, as the attention of the court was not called to any specific error. And even if the refusal was error, which we do not by any means intend to decide, no proper exception has been taken to review the ruling.

The conviction should be affirmed.

Daniels and Brady, JJ., concur.


text:
    Robert Kell, App’lt, v. Solomon Isaacs et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Fbatjdulent conveyance.
    Proof that deposits in some respects coincident with the amounts paid for a conveyance were afterwards made by the grantor in the accounts of the firm of which the grantee was a member is not sufiicient to establish a repayment of the purchase price by the grantor, as against positive testimony of the grantor and grantee to the contrary.
    Appeal from a judgment dismissing the complaint on trial at the special term.

      Blumenstiel & Hirsch, for app’lt; Benno Loewy, for resp’ts.
   Daniels, J.

The plaintiff is a judgment creditor of the defendant Solomon Isaacs, who on the 8th day of October, 1888, conveyed premises situated on Delancey street in the city of Hew York to the defendant Leopold S. Weiner, for the consideration of $22,000, subject to two mortgages amounting to $14,000. This conveyance was alleged to have been fraudulent as to the creditors of Isaacs on the ground that it was no more than a device to place the title in Weiner, and that the latter pursuant to that understanding had indirectly received back from Isaacs the amount of cash paid to him to complete the purchase. Proof was given of deposits afterwards made in the accounts of the firm of which Weiner was a member and of another member of the firm in some respects coincident with the amounts paid by the defendant Weiner to Isaacs on the purchase price. But. they were certainly not so identical in either amounts or dates as to support the conclusion that they were portions of the moneys in this manner paid to Isaacs. And that there was no identity between the amounts received and the amounts deposited was the positive testimony of Isaacs, who was a witness for the plaintiff on the trial. For he testified that no part of the money received was returned to or for Weiner, but it was all used by himself, chiefly, if not wholly, in. the payment of debts. And the defendant Weiner by his evidence, given' also as a witness for the plaintiff, was that the purchase was a bona fide transaction on his part and not affected by any intent to defraud creditors. And that given by the bookkeeper of the firm also tended to avoid the charge that the purchase was fictitious or fraudulent.

The plaintiff’s case was unsupported by proof and for that reason it failed. . There is no evidence whatever which would justify any different view to be now taken of it than that which prevailed at the trial. And the judgment should be affirmed, with costs.

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


text:
    The People, Resp’ts, v. William O’Connell, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Bape—Attempt.
    On the trial of an indictment for attempt to commit rape the complainant testified to the circumstances, and her battered appearance thereafter was shown. The prosecution then rested and a motion was made to acquit on the ground of want of corroboration, which was denied. The district attorney was afterwards allowed to introduce testimony which fully corroborated complainant. Held, that the conviction was proper.
    Appeal from judgment of the court of general sessions, convicting the defendant of the crime of attempt to commit rape.
    On the trial the complainant testified to the circumstances attending the assault upon her, and her battered appearance after such assault was shown by the testimony of witnesses and by photographs: The prosecution having rested, defendant’s counsel moved for a direction to the jury to acquit on the ground that the complainant’s testimony was not corroborated, which request was denied. The prosecution was afterwards allowed to introduce the testimony of the barkeeper, Sparks, who testified that he beard complainant scream and running into the room found her upon the floor with defendant partly kneeling upon her, and otherwise corroborated her testimony.

      Howe & Hummel, for app’lt; McKenzie Semple, for resp’ts.
   Van Brunt, P. J.

There are two grounds because of which the appellant claims the right to a new trial. One is that at the time the district attorney rested his case there was no evidence supporting the testimony of the female defiled or" attempted to be defiled ; and secondly that the verdict was against the weight of evidence.

Neither of these objections can prevail. Instead of the verdict being against the weight of evidence, it is seldom in a case of this description that so satisfactory proof of an assault is offered.

It may be true that when the district attorney rested his case there was but little evidence supporting the testimony of the complainant ; but her battered appearance resulting from the brutality with which she had been treated offered some rather convincing •evidence of the truth of the statement to which she testified.

But when the case was finally submitted to the jury there was ample corroboration in'the evidence of the barkeeper Sparks, who testified to seeing much of that of which the complainant had given •evidence. The defendant’s story as to the nature of the assault and the circumstances which led to it was certainly not such as was apt to carry weight with the jury. In fact it was entirely improbable.

It may be true that the complainant was under the influence of liquor, and that her associations were not such as tended to indicate that she was a virtuous woman; but, nevertheless, the circumstances to which she testified, corroborated as they were by her appearance and by the evidence of the barkeeper, were such as would properly carry conviction to the minds of the jury.

We see no reason for interfering with the judgment, audit should be affirmed.

Daniels and Beady, JJ., concur.


text:
    Fritz Hoeninghaus et al., App’lts, v. Herman Cantor, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. New trial—Error iis charge.
    While the appellate court may, where the trial judge read to the jury from an adjudication what was required to establish the charge of fraud such as that involved in the action, grant a new trial although no exception was taken, it will only be done upon the conviction that the rule laid down was wrong and injustice followed.
    3. Sale—Fraud.
    The evidence to establish fraud in procuring the sale of goods need not be positive, and may consist of facts and circumstances leading to such a conclusion or to no other conclusion; but both must be of such a character as to establish the charge, and not present mere inferences.
    Appeal from a judgment in favor of thé defendant directing the return of certain goods taken under a requisition in an action to recover chattels ; or in default of such return for the value of the goods with costs.

      James L. Bishop, for app’lts; Alexander Blumenstiel, for resp’t
   Brady, J.

This action was brought to recover from the defendant, who was the assignor of one Isaac Sickel, certain property claimed by the plaintiffs. The action was at first commenced against the sheriff and the assignee, but as to the former it was in effect discontinued The answer put in issue the title of the plaintiffs.

Upon the trial it appeared that the goods had been sold to the ■defendant’s assignor by the plaintiffs, who sought to maintain their right to recover them upon the ground that they had been obtained by fraudulent representations, and that no title therefore passed to the vendee. The case presents no exceptions, and "we are asked to set aside the verdict and grant a new trial "upon such an issue as that stated, with evidence pro and con, •evidence perhaps which, unanswered, would justify the plaintiff’s claim; but which, answered in the manner it was, would seem to-dissipate the testimony given to demonstrate the fraudulent conduct complained of.

The whole issue was left to the jury' for their consideration, without any attempt to interfere with their deliberations in any way, and the rule of law by which they should be governed was-clearly stated, the learned judge presiding reading from an adjudication in the court of last resort, declaring what was required to establish the charge of fraud such as that upon which the plaintiffs relied for their recovery. It is true that this is objected to-upon the briefs, but was not upon the trial; and although this court might, notwithstanding the absence of the exception, grant a new trial, it would only be done upon the conviction that the-rule laid down was wrong and injustice followed.

In actions embracing charges of fraud the jury is peculiarly adapted for the necessary investigation, and we are met at once with the rule dedueible from the authorities, too familiar to need citation, that on such an issue the facts tending to prove the charge should be clearly established and not left to mere inference or suspicion. The evidence need not be positive to establish the charge; it may consist of facts and circumstances leading to no other conclusion or to such a conclusion; but both must be of such a. character as to establish the charge, and not present mere inferences which do not rise to the dignity of positive and convincing evidence.

In this case, as already suggested, there was a conflict of evidence, and the circumstances were extraordinary attending the business career of Sickel, the assignor; but nevertheless they were neither impossible nor improbable, considering the vicissitudes of business life and the fluctuations in the value of property which are frequently controlled by the general business condition of the country. We do not feel justified, therefore, in interfering with this verdict and overriding the conclusion of the jury, who had the great advantage of seeing the witnesses and hearing their testimony.

For these reasons the judgment must be affirmed, with costs.

Daniels and Brady, JJ., concur.


text:
    The People, Resp’ts, v. George W. Morris, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Rape—Cokroborating testimony.
    Proof that the defendant when charged with the crime in the presence of his wife made no denial, hut seemingly admitted it, is sufficient to corroborate the complainant’s testimony.
    2. Same—Evidence.
    Complainant’s mother testified to her age, and the district attorney refrained from giving further proof thereof, on the assurance of defendant's counsel that no question as to her age was made. Held, that the exclusion of evidence to discredit the mother as a witness was not error.
    Appeal from judgment of the court of general sessions, convicting the defendant of rape upon a female under the age of sixteen years.

      On the trial the complainant testified to the commission of the crime, and her evidence and that of her stepfather showed that defendant was charged with the crime in the presence of his wife, and did not deny it, but in reply to a question if it was true nodded his head.

      Purdy & McLaughlin, for app’lt; McKenzie Semple, for resp’ts.
   Van Brunt, P. J.

The principal point raised upon this appeal is that there was no corroboration of the complainant’s story as required by § 283 of the Penal Code.

The answer made by the district attorney is that the corroboratory evidence was amply sufficient to satisfy this requirement; but he has nowhere taken the trouble to call the attention of the court to where such evidence is to be found in the case, or what it was; and it has been necessary for us to examine the record and the points of the appellant for the purpose of ascertaining of what this alleged corroborative evidence consists.

It seems to us upon an examination of the record that the fact that the defendant was charged with the crime and made no denial under the circumstances disclosed in the case was sufficient corroboration to satisfy the requirements of the statute.

It may be true that the evidence in this regard came from sources entitling it to but little credit; but of .this the jury were the judges and it does not appear that they have come to an improper conclusion. The extent and nature of the corroborating evidence is not fixed by the statute. And by the statute it was only intended to prevent unjust convictions resting upon the unsupported testimpny of a single individnal. In the case at bar, as already stated, the defendant was charged with the commission of the crime and not only made no denial, but seemingly admitted the accusation. This was certainly a satisfaction of the requirements of the statute, as under the circumstances silence might well be deemed admission.

It is also urged that the court erred in sustaining the objection to a question put by the defense to one of the witnesses for •the prosecution; namely, the mother of the girl upon whom the offense charged is alleged to have been committed. She testified to the age of the child and upon cross-examination was asked: Is it not true that you are a prostitute? ”

It is claimed that this question was of vital importance, as she was the only witness to prove the age of the girl; and as proof of this question of age in a case of this description is an essential element, it was of great importance to the defense to discredit this witness by showing her character and mode of life.

An examination of the record, however, shows that after the witness in question had testified to the age of the complainant the district attorney exhibited a certificate of the board of health, and stated that she was bom in the year which had been testified to by the witness. The district attorney refrained, however, from offering this certificate in evidence upon the assurance of the counsel for the appellant that he did not make any point in respect to that. The court then said: “ There is no question made as to the age of the girl. She is under sixteen years of age.” And the counsel for the appellant responded : “ There is no-question of the girl’s age; she is under sixteen.” This seems conclusively to dispose of the necessity of discrediting the witness-because she had testified to the age of the girl.

There seems to be no error calling for a reversal of the judgment, and it should be affirmed.

Daniels and Brady, JJ., concur.


text:
    In the Matter of The New York Elevated R. R. Co. In re Westervelt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Eminent domain—Inspection oe premises.
    Commissioners of intelligence can gain more information in respect to-the value of the property taken by the erection of a railroad from an inspection than from the evidence of any quantity of theorists, and their finding will not be disturbed unless it is clearly apparent that injustice has been done.
    Appeal from award of commissioners in condemnation proceedings and from order confirming the report.

      Davies & Rapallo, for app’lt; M. S. & I. S. Isaacs, for resp’t.
   Van Brunt, P. J.

This appeal seems to be founded upon the-assumption that the commissioners' could gain no information as to the value of the property to be taken in this proceeding by viewing the premises.

It is conceded that in appraising the value of lands a view maybe of the utmost ‘importance; but it is claimed that in estimating the consequential damages resulting from the taking of an intangible light which the defendants claim to be of no intrinsic value-in itself a view can be of but slight assistance, and the main reliance must be upon an investigation of the past effects of the taking as shown by experience.

In' this position we cannot concur. We think that commissioners of intelligence can gain more information in respect to the value of the property taken by the erection of the railroad from an inspection than from the evidence of any quantity of theorists.

It is a common experience of judicial officers that expert testimony cannot be relied upon and that it is entitled to but little weight unless it is supported by facts established which the court can see tend to support the theory of the expert, or unless the reasons given for the conclusion are such as necessarily carry conviction.

It is for this reason that an examination of the situation by the: commissioners appointed to assess the damage is so valuable in enabling them to weigh the testimony of the experts who may be examined.

Therefore it has been the practice in cases of this character not to disturb the findings of the commissioners unless it was apparent that injustice had been done, or that they had overlooked some material feature of the case, or proceeded upon an erroneous. principle, or been influenced by prejudice or passion. In the case at bar the award does not seem to be so excessive as to justify the court in interfering.

The counsel for the appellant has presented a tabulated statement of the evidence, claiming that it shows that the premises instead of being damaged to the extent of $2,000, have only deteriorated in value $750 or $1,000. There was evidence, however, to support the conclusion of the commissioners, and it is impossible for uS to say how much information was conveyed to them in regard to this subject by the inspection which they made.

An examination of the evidence seems to show a foundation for the award, and although the progress of the value of property in that vicinity was downward for a period of time antedating the building of the railway, yet it does not appear but that the value of the premises at the initiation of these proceedings was largely affected by the fact that the petitioners had taken a valuable portion of the appurtenances of the premises in question.

Upon the whole case we see no reason for interfering with the award of the commissioners, and the same should be affirmed, with costs.

Bartlett, J., concurs.


author: Van Brunt, P. J. Daniels, J. (dissenting).

text:
    James Ferris, App’lt, v. Elizabeth W. Aldrich, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Negligence—Liability op owner op building por injuries received on uncompleted elevator.
    Plaintiff, who was an employe of a contractor who was working on defendant’s building, was injured while ascending in an elevator which was not provided with slats. The son of deferdant testified that he had forbidden the use of the elevator by the workmen, but it did not appear that they knew of such prohibition, and the superintendent testified that the elevator in question was used when the other was out of order. Defendant claimed th»t the accident occurred by plaintiff deliberately placing his elbow outside of the window, while plaintiff claimed that he unconsciously allowed it to do so while adjusting his suspender, which was out of order. Held, that the questions of negligence and contributory negligence should have been submitted to the jury, and that a dismissal was improper.
    (Daniels, J., dissents.)
    Appeal from judgment entered upon dismissal of complaint.

      T. E. Rochfort, for app’lt ; O. E. Bright, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The defendant was the owner of certain premises in Broadway, upon which, in April, 1882, a building was in course of construction and unfinished. There were four elevators which were completed as to their running gear and machinery and the cars finished in their general structure, but certain iron gratings were not yet placed in the panels. About, the middle of April the defendant caused one of these elevators, called Ho. 4, to be finished for the purpose of a freight elevator. It was used down to the morning of April 23d, when it was stopped for an hour or more for repairs.

No. 3 elevator, which was like the freight elevator, except that it had no slats, was used during these repairs. In the neighborhood of ten o’clock in the morning the plaintiff, who was working for a contractor in the building, placed a barrel in the car on the ninth floor and descended with it to the basement. He took out the barrel, and shortly after entered the car with another barrel. He placed himself in the right-hand corner, close to the corner, and in some manner his elbow projected through one of these panels when the car started, and it was caught between the elevator and the iron floor and the bones of his arm crushed.

It was claimed, upon the part of the defendants, that the son of • the defendant gave instructions that these elevators should not be used by the workmen in the building, and it was also claimed that the son had no knowledge at all of the use of this elevator.

It appeared from the testimony of one Hamilton, who was the superintendent of the building, that No. 3, the elevator in which the accident happened, was used when No. 4, the freight elevator, was out of order. At first he stated that he did not remember that No. 3 had been used but once before. He then corrected his testimony, and said that it had not been used pretty frequently. He would not say it had been used but once, but that it had been used very little; and by very little he meant it might have been used. two or three times when the other was being fixed.

Upon this state of facts the court dismissed the complaint, upon the ground that the elevator in which the plaintiff was hurt was not shown to have been used with the knowledge and consent of the defendant, and that the plaintiff had not shown that he was not guilty of negligence.

In respect to the first proposition it seems to us that the learned justice overlooked the evidence, both of the son of the defendant, and, also, of the superintendent of the building. It is expressly stated by the superintendent that No. 3 was used when No 4 was being repaired, and it is evident, from the fact that No. 3 had been prepared for use by the placing in of the temporary floor to prevent injury to its polished floor, that it was the intention that it should be so used. This superintendent was in charge of the building and gave directions in respect thereto, and he certainly knew of the use of the elevator in question. It is true that the son of defendant testified to giving directions that the elevator should not be used by the workmen, but it is not stated, and there is no evidence that he ever notified any of the workmen of that fact. The elevators were arranged for the purpose of carrying freight to the top of the building, and the jury had a right to infer that their use for such purpose was known to the agents and representatives of the defendant.

The question of the contributory negligence of the plaintiff is one'of 'greater difficulty. It is claimed upon the part of the defendant that the way in which the accident happened was that the plaintiff placed his elbow outside of the window deliberately and thereby became injured. If this was the fact the ruling of the learned justice might very well be sustained. But it is claimed upon the part of the plaintiff that such was not the fact, but that the accident arose from, his accidentally and unconscionsly allowing his elbow to go through the opening, in the adjustment of a, suspender which had become out of order.

It is claimed upon the part of the defendant that this story cannot be true, and that from the nature of the wound it could not possibly have happened in this way. In the face of the positive affirmation of the plaintiff this probably was a question for the jury to determine, and the argument now advanced might well be addressed to them for the purpose of discrediting the story of the plaintiff, but would not justify the court in taking the consideration of the question from the jury.

The claim of the defendant that no duty was due to the plaintiff, and that he was simply a trespasser, does not seem to be borne out by the evidence. He was the employe of a contractor who was working upon the building, and may be said therefore to have come to the building on the invitation of the defendant; and there is no proof except what may be inferred, which inference can only be drawn by the jury, from the plaintiff’s knowledge of the building that he knew of the incomplete condition of this elevator in respect to its panels. There is no evidence that he knew anything of the alleged prohibition of the employes from riding in the elevator, and it was but natural that he should use the same for the purpose of conveying up and down the heavy material, a duty with which he was charged by his employers.

Upon the whole case, therefore, we think that the questions both of the negligence of the. defendant and of the plaintiff were questions for the jury to determine, as there was a dispute in regard to some material points of the testimony and different inferences may be drawn as one version or another of the testimony is taken as true.

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

Brady, J., concurs.

Daniels, J. (dissenting).

I think the injury was produced in part by the carelessness of the plaintiff in placing his elbow outside of the elevator. That was his own act, even if it was for the adjustment of his suspender. In making the adjustment reasonable care, which he was bound to observe, required that he should keep his arm inside the elevator. His failure to do that was the fault of himself without which the accident could not have occurred, and for that the defendant should not be held responsible.. The judgment should on that account be affirmed.


text:
    In the Matter of The New York Elevated R. R. Co. In re Clarkson.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Eminent domain—Award.
    The fact that the court on an examination of the evidence as it appears in the printed record might be oí opinion that the award is larger than it should have been does not authorize it to interfere with the award, as the commissioners are entitled to act on an inspection of the premises, which often affords stronger proof than any oral testimony which can be adduced.
    2. Same—Evidence.
    A general objection that the testimony offered is incompetent, irrelevant and immaterial, is not sufficient to raise the question of error in admitting such testimony on the ground that the witness was not an expert. The specific ground, in such case, should, 'be stated.
    3. Same—Bights oe abutting owner in vault under street.
    In the absence of proof as to the origin or opening of the street, the presumption is that the abutting owner owns the fee to the center and has the right to use it for his private purposes so far as such use does not interfere with the public easement, and therefore has the right to maintain a vault under it and recover damages for any interference by the railroad therewith.
    Appeal by the bí. Y. Elevated. Railway Company from an award made by commissioners appointed by this court to ascertain and appraise the compensation to be made to the owners of 286 Greenwich street and from the order affirming such award.

      Brainard Tolles, for app’lt; J. M. Hunt, for resp’t.
   Van Brunt, P. J.

This appeal seems to be largely founded upon the fact, which does not appear upon the record as far as we have been able to discover, that a jury has determined that the elevated railroad inflicted no rental damage upon the premises in question. But this fact, even if it exists, does not entitle the appellant to a reversal of the order appealed from. •

An examination of the evidence in this case seems to show that a very large quantity of irrelevant testimony was taken and that but little was offered before the commissioners tending to elucidate the problem which they were appointed to solve.

It may be true that the court upon an examination of the evidence as it appears upon the printed record might be of the opinion that the award of the commissioners is larger than should have been made under the circumstances. But this fact does not authorize the court to interfere with the award, because the commissioners are entitled to act upon evidence which does not appear upon the record; namely, an inspection of the premises themselves, which often affords stronger proof than any oral testimony which can be adduced.

It is no doubt the fact that in consequence of the removal of the farmers from this locality property in this vicinity was temporarily injured in its rental value. But it is by no means certain that this was a permanent injury. On the contrary, it would appear to have been but temporary, during the period that the property in this neighborhood'was in process of suiting itself to the changes of business which the removal of the farmers necessitated, and the question which was before the commission to be determined was not simply whether or not property had increased or diminished in value since the construction of the railroad, butwhat was the value of the easements taken by the elevated railroad, and to determine the value of which they had initiated this proceeding, which value must necessarily be as of the time when they took the legal steps to acquire the title.

It is also claimed that the commissioners erred in admitting the opinion of a witness not an expert as to what the effect of the elevated railroad was upon values.

It is a familiar principle that in these proceedings the strict rules of law in regard to evidence are not to be applied; and that unless manifest injury has been done by reason of the admission and consideration by the commissioners of improper proof such admission forms no ground for interference with their award.

But when an appellant seeks to invoke a strict rule in reference to the admission of evidence, it is important that in the making of his objection he should observe the rules which are applicable under the circumstances.

The objection now presented is exceedingly technical, and one which, to be effectual, required the grounds of the objection to be specifically stated. Upon the trial of a cause, if a party desired to rely upon an objection to the admission of evidence upon the ground here stated it would be necessary for him to base his objection-upon that ground. In this case no such objection was taken.

It was. simply that the testimony was incompetent, irrelevant and immaterial.

It is also urged that the commissioners erred in awarding damages for injuries to the owner’s vault, and this objection seems to be based upon the claim that there was not a particle of evidence given as to the origin or opening of Greenwich street, by either side. If that was the case then the presumption would be that the abutting owner owned the fee to the middle of the street, subject to the public easement, and that he had a right to use the street for his private purposes in so far as such use did not interfere with the public easement.

Applying this presumption to the case at bar, it is clear that the owner of the premises in question would be presumed to have the right to maintain his vault so long as it did not interfere with the public easement, and to recover damages for the interference therewith by the railroad in case it did so interfere.

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

Daniels and Brady, JJ., concur.