text:
    BERNARD ROTHSCHILD and Others, Respondents, v. JACOB W. MACK, Assignee, etc., Appellant.

      Set-off — when allowed in equity as against an assignee, where the debt sought to be set-off was not due at the time of the making of a general assignment by the insolvent debtor.

    On September 10, 1884, tbe plaintiffs indorsed and discounted, at a bank in Rochester, a note for $5,000, made by the firm of Buchman Brothers & Co., to the order of, and indorsed by, the firm of Rindskopf Brothers & Co., of the city o.f New York, and remitted the proceeds thereof to the said firm of Rindskopf Brothers, being induced to so act by the representation made to them by the latter firm that the note was as good as the Bank of England, and that the plaintiffs would run no risk in indorsing it. Upon the maturity of the note, on December 22, 1884, the plaintiffs were compelled to pay the note.
    At the time the note was given, the firm of Buchman Brothers & Co. was, and ever since has been, insolvent, and on September 20, 1884, it made a general assignment. The firm of Rindskopf Brothel's & Co. was, at the time of the delivery of the note, and ever since has been, insolvent, and on December 19, 1884, made a general assignment to the defendant.
    In this action, brought by the plaintiffs to have the amount so paid by them set off, and applied in extinguishment of an indebtedness of the plaintiffs to the firm of Rindskopf Brothers & Co., which became due and payable about January 1, 1885, a judgment was rendered in their favor.

      Held, that it should be affirmed.

      Littlefield v. The Albany Gounty Bank (97 N. Y., 581) followed; Martin v. Kummullcr (37 id., 396) and Myers v. Bams (22 id., 489) distinguished; and Ghance v. Isaacs (5 Paige, 592-594) doubted and not followed.
    Appeal from a judgment in favor of the plaintiffs, entered upon a decision made at the Monroe Special Term.

      Devoid Rayes, for the respondents.

      Stern <& Myers, for the appellant.
   Haight, J.:

This action was brought to have a demand in favor of the plaintiffs set-off and applied in extinguishment of a claim against the plaintiffs held by the defendant.

The facts, as found by the trial court, were substantially as follows : The plaintiffs were indebted to the firm of Rindskopf Brothers & Co., of the city of New York, in the sum of $2,796.77, which became due-and payable about January 1, 18S5. On or about the 6th day of September, 1884, the firm of Rinkskopf Brothers & Go. indorsed and delivered to the plaintiffs a promissory note, executed by Buchman Brothers & Co., of Cincinnati, Ohio, for the sum of $5,000, and requested the plaintiffs to raise for them, at the Traders’ National Bank of Rochester, the amount of the note and give them the proceeds, at the same time representing to the plaintiffs that the note “was as good as the Bank of England; that the plaintiffs should indorse it, and that there was no risk in their doing so.” That the plaintiffs thereupon, and on the 10th day of September, 1884, indorsed the note and delivered the same to the Traders’ National Bank of Rochester, and obtained the amount of the note, less the usual discount, and thereupon forwarded the proceeds thereof to the firm of Rindskopf Brothers & Co., who received and used the same; that the note became due on the 22d of December, 1884, and was, on that day, presented for payment at the place where it was made payable, and payment thereof demanded, which was refused, and thereupon the same was duly protested and notice of non-payment was given to the plaintiffs and to Rindskopf Brothers & Co. Thereupon the note was paid by the plaintiffs, and no part thereof has ever been repaid to them; that the firm of Buchman Brothers & Co. were, at the time of making the note and ever since has been, insolvent, and, on the 20th day of September, 1884, made a general assignment; that the firm of Rindskopf Brothers & Co. were, at the time of the delivery of the note to the plaintiffs, and ever thereafter, insolvent, and, on the 19th day of December, 1884, made a general assignment to the defendant for the benefit of creditors; that the plaintiffs indorsed the note and procured and delivered to Rindskopf Brothers & Oo. the proceeds of the discount, relying upon the statement made to them, to the effect that “ the note was as good as the Bank of England, and that there was no risk in their indorsing it; ” and also on their liability or indebtedness to Rindskopf Brothers Oo. which was thereafter to mature and become due and payable.

It is contended, on the part of the appellant, that at the time of the assignment, the plaintiffs had no present claim due and payable by the assignors, and that, consequently, they had no right to set-off; that a court of equity can only decree a set-off in the ease of mutual credits due at the time of making the assignment.

The fact is undisputed that at the time of the making of the assignment the note was held by the Traders’ National Bank of Rochester, indorsed by the plaintiffs.

In the case of Martin v. Kunzmuller (37 N. Y., 396), it was held that an allowance to a party, by way of set-off, is always founded on existing demands, in presentí, and not on one that may be claimed in futuro; that in an action by an assignee, the defendant cannot offset a note made by the assignor which fell due after the assignment of the subject of action was made. And in the case of Myers v. Davis (22 N. Y., 489), it was held that until a demand becomes matured, a set-off may be defeated by the assignment of the claim, although the assignor be insolvent. But these cases were actions at law, and the set-off was attempted under the statute. In the ease of Chance v. Isaacs ( 5 Paige, 592-594), it was held that the set-off could not be decreed, for the reason that the plaintiff was not the owner of the note at the time of the assignment, although he was liable upon it as an indorser. The chancellor, in delivering the opinion, says: It is now well settled that a person who receives a negotiable promissory note from the payee, out of the usual course of business, or in security for an antecedent debt, and not for a present consideration, such as the payment of money, the delivery of goods, or the relinquishment of an existing security, takes it subject to all equities which exist- against it in the hands of the former holder; and this principle applies with peculiar force to the voluntary assignee of an insolvent debtor who receives negotiable paper from the assignor under a general assignment for tbe benefit of creditors. In tlie present case, therefore, if tbe complainant bad been tbe bolder and owner of tbe note of Isaacs, at tbe time tbis assignment was made, I sbonld bave no hesitation in declaring that Smyth took tbe assignment of tbe complainant’s notes subject to tbe equitable right of tbe latter to bave tbe note given to himself set off against them, although tbis note was not due at tbe time of tbe assignment. * * * And as tbis note did not belong to tbe complainant at the time of tbe assignment, although he was contingently liable for tbe payment thereof, 1 am satisfied tbe vice-chancellor was right in supposing that no equitable right of set-off then existed which attached to the complainant’s notes in tbe bands of the assignee.” It is upon tbis case that the appellant chiefly relies, and if it is to be followed it must defeat tbe plaintiff’s recovery. But we are inclined to doubt tbe soundness of tbe rule as applied to tbe facts of the case under consideration. Tbe court, as we have seen, has found that not only tbe makers, but the firm of Rindskopf Brothers & Co., were, at tbe time of tbe delivery of the note to tbe plaintiffs, and ever thereafter, insolvent; that the plaintiffs borrowed tbe money at tbe Traders’ National Bank upon the Dote so indorsed by them, so that tbe only contingency remaining to make their liability fixed was tbe presenting of the note at its maturity, demanding payment and tbe serving of notice of nonpayment. This contingency did not depend upon any act of the makers, tbe defendants, or the defendants’ assignors. A court of equity has tbe power to permit an equitable set-off, in cases not within tbe statute, if from tbe nature of tbe claim, or tbe situation of tbe parties, justice cannot be obtained by a cross action, and that, even though tbe debt of the complainant to tbe defendant is not due, if tbe defendant is insolvent. (Lindsay v. Jackson, 2 Paige, 581; Gay v. Gay, 10 id., 369 ; Smith v. Fox, 48 N.Y., 674; Davidson v. Alfaro, 80 id., 660-662; Shipman v. Lansing, 25 Hun, 290.)

In the case of Smith v. Felton (43 N. Y., 419), it was held that tbe amount of a partnership deposit with an insolvent banker was a proper subject of set-off, in an action brought by the assignee, in trust for creditors of such bank, on a note held by tbe banker, made by one of tbe partners and indorsed by tbe other for partnership purposes, although such note was not due at the time of the assignment.

In the case of Littlefield v. The Albany County Bank (97 N. Y., 581), the action was for a set-oif in equity. The plaintiff and defendant, Jagger, were partners in business, as manufacturers, and one Perry prosecuted them for infringing letters-paten and obtained a judgment against them for $50,000. The case was pending on appeal when the plaintiff bought of Jagger his interest in the firm, and gave promissory notes therefor. It was agreed that the purchase should not affect Jagger’s liability in the Perry suit, but that the plaintiff should attend to its defense, and that Jagger would pay one-half of the expenses and of the recovery, if the judgment was sustained. At the maturity of the notes, Jagger sued the plaintiff on the notes, and while the action was pending he assigned to the Albany County Bank all moneys which he might recover thereon. He recovered judgment, and subsequently the plaintiff settled the Perry suit, paying the sum of $50,000. He then brought action against the bank and Jagger, to have the amount so paid by him in settlement of the Perry suit, which belonged to Jagger to pay, to be offset upon the judgment which had been recovered against him upon the notes. It was held that he was entitled to the offset.

It appears to us that this case is decisive of the question under consideration. At the time of the assignment by Jagger to the Albany County Bank the plaintiff had not paid the Perry judgment. The case was still pending upon appeal, and his liability to pay depended upon the affirmance thereof. He was not, in fact, liable to pay Jagger’s portion of the judgment, only as such liability grew out of the fact that he was a member of the firm, and could, therefore, be compelled to pay the whole.

No other question is presented which requires discussion. The judgment should be affirmed, with costs.

Shith, P. J., BARKER and Bradley, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    HENRY WRIGHT, Appellant, v. CHARLES BOLLER AND NICHOLAS C. RECKTENWALT, Respondents.

      Evidence of a custom, as to ike manner in which, other persons conduct their business, is not admissible in faroor of a defendant sued for negligently conducting his business.

    In February, 1884, the plaintiff, who was walking on the west side of Louisiana street, in the city of Buffalo, turned, when opposite to the north side of Mackinaw street, to cross to the other side of Louisiana street. When he had nearly reached the curb-stone, on the easterly side of Louisiana street, he was hit by a board which had been blown from a lumber pile which was owned by the defendants, who were engaged in the lumber business, their yards being on the west side of Louisiana street.
    Upon the trial of this action, brought to recover damages for the personal injuries sustained by the plaintiff, evidence was given tending to show that the lumber piles in the defendants’ yard, when originally completed, were bound or tied down by boards crossing the top and hooked by means of clasps lower down upon the pile so that the boards upon the top of the pile could not blow away; that 'the pile from which the board in question came, had some days before been broken into and a portion thereof had been drawn away, and that the pile had been left without again being tied or fastened.
    The defendants called a number of lumbermen doing business in the city of Buffalo, and were allowed, against the objection and exception of the plaintiff, to prove by them that it was the common custom, in lumber yards in ' that city, where a pile was once opened and was being used, not to again fasten the lumber down. The court charged that the jury had the right to take into • consideration the evidence given by these witnesses, to help them to satisfy their minds and form their judgments as to what was, in that business, care and prudence.

      Held, that the court erred in admitting the evidence and in so charging.
    That the question of negligence was one for the jury, under the circumstances of the case, and did not depend upon the custom of persons engaged in a like business.
    A rule of law cannot be changed by any local custom.
    Appeal from a judgment, entered upon a verdict rendered at tbe Erie Circuit in favor of the defendants, and from an order of the Erie Special Term denying a motion for new trial made upon a case and exceptions.

      Duokwitz ds Lawler, for the appellant.

      George Wadsworth, for the respondents.
   Haight, J.:

This action was brought to recover damages for personal injuries. The defendants were engaged in the lumber business, having a yard on the north side of the Ohio basin and on the west side of Louisiana street, in the city of Buffalo, where their lumber was piled and stored. On the west side of Louisiana street, and within a few feet of the street, were three piles of lumber, two of which belonged to the defendants and the other to one Perry. On the 21st day of February, 18S4, the plaintiff, in company with one Baxter, was walking on the west side of Louisiana street towards Mackinaw street; that when they got to a point opposite the north side of Mackinaw street they crossed over towards the other side, and when the plaintiff nearly reached the curb-stone, on the easterly side of Louisiana street, he was hit by a board which had blown from one of the lumber piles and received the injuries for which this action was brought.

There was evidence tending to show that these lumber piles when originally completed, were bound or tied down by boards crossing the top and hooked by means of clasps lower down upon the pile so that the boards upon the top of the pile could not blow away; that one of the defendants’ piles from which the board in question came, had some days before, been broken into and a portion thereof drawn away, and that the pile had been left without again being retied or fastened. The leaving of the pile so that the boards were liable to be blown off upon travelers upon the street, is the negligence which the plaintiff charges against the defendants as the basis of his right to recover.

Upon the trial the defendants called a number of lumbermen doing business in the city of Buffalo and proved by them that it was the common custom, in lumber yards in this city, where a pile is once opened and is being used, not to again fasten the lumber down. This evidence was taken under the objection and exception of the plaintiff. The court, in its charge to the jury, instructed it that the defendants were required to do their business in the ordinary way in which men of common prudence conduct their business, and that the defendants had called a number of lumber dealers in the city who had testified that the way in which business was done in this city was that when they were drawing from a pile, from time to time, they do not put ‘on stays to protect the lumber; that the jury had the right to take into consideration the evidence given by these lumbermen, sworn to as to custom, to help them to satisfy their minds and form their judgments as to what is, in the business, care and prudence. The charge of the court in this particular was excepted to by the plaintiff. The question is thus presented whether the defendants can excuse their negligence by proving a custom.

The respondents contend that the case of Barnum v. The Merchants' Fire Insurance Company (97 N. Y., 188) is an authority sustaining the competency of the evidence and the correctness of the charge. In that case the action was upon an insurance policy upon the plaintiff’s stock of goods described in the policy as “ fancy goods and Yankee notions.” Upon the trial the plaintiff was allowed to prove that fireworks constituted an ordinary, usual and recognized portion of a stock of fancy goods and Yankee notions in stores, and upon the review this was held proper. It will be observed that the evidence was confined to what was embraced in and meant by a stock of “fancy goods and Yankee notions,” and went no further. In the case at bar the question is not what was meant by the term negligence, but is as to the custom of lumber dealers in reference to fastening the boards upon the top of their lumber piles. The custom may or may not be a proper one. There may be a custom to fire loaded guns and pistols on Independence Day, and yet an individual would hardly be excused from negligently shooting another because of such custom. A railroad company may cause.injury to others by running its trains at a high rate of speed through a crowded city, and yet it would hardly be permitted to establish its right to do so by showing a custom on the part of other railroads to so run or operate their trains. The lumbermen of Buffalo may have a custom not to bind the lumber on piles that have been once broken into; their lumber yards and piles may be situated remote from the public highway where no danger can result from any neglect to so bind or tie the lumber. The circumstances under which their custom has been established may be quite different from those surrounding the defendants. Their piles are located by the side of the public way frequented with travelers, and, in our judgment, the question of negligence was one for the jury under tlie circumstances of the case, and that it did not denend upon the custom of persons engaged in a like business.

The right of the plaintiff to recover depends upon a rule of law, that is, whether the defendants were guilty of negligence that contributed to or caused the inj'ury in question, and whether the plaintiff was free from negligence contributing thereto. The rule is that a rule of law cannot be changed by any local custom. (The Corn Exchange Bank v. The Nassau Bank, 91 N. Y., 74; Higgins v. Moore, 34 id., 417; Wheeler v. Newbould, 16 id., 392; Case v. Perew, 34 Hun, 130; West v. Kiersted, 15 W.D., 549; Babcock v. N. Y. C. and H. R. R. R. Co., 20 id., 477; Eastham v. Riedell, 125 Mass., 585.)

Ye are of the opinion that the j'udgment and order should be reversed and a new trial granted, with costs to abide the event.

SMITH, P. J., BaeKer and Bradley, JJ., concurred.

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALEXANDER DUMAR, Appellant.

      Criminal pleadings — what must he alleged in an indictment in order to justify a conviction of grand larceny, for obtaining goods under false pretenses, under section 528 of the Penal Code.

    The defendant was convicted of the crime of grand larceny upon an indictment which charged that the defendant on February 3,1885, at the city of Rochester, in the county of Monroe, a quantity of carpets, rugs and hassocks, particularly describing them, of the value of $071, of the goods, chattels and personal property of Ilus F. Carter, then and there being found, unlawfully and feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    Upon the trial the district attorney was allowed to introduce evidence tending to show that the defendant purchased the goods of Carter, giving therefor his promissory notes indorsed by one Hensler, Carter being induced to sell the goods by an affidavit made by Hensler showing that he then owned two farms worth $5,000, subject to a mortgage on one of $900, and that the total of his other liabilities, did not exceed $65; that this affidavit was false, and was known by the defendant to be so at the time that he presented the same to Carter in order to induce him to sell the goods upon credit.

      Reid, that an objection made by the defendant’s counsel, to the admission of the evidence tending to show false representations, was properly overruled by the court, and that a motion to discharge the defendant upon the ground of variance between the proof and the indictment was properly denied. .
    That the charge that the defendant, the said goods, “unlawfully and feloniously did steal, take and carry away contrary to the form of the statute in such case made and provided,” was a sufficient description of the act to satisfy the provision of section 628 of the Penal Code, which requires, to constitute the crime of larceny, an intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker or any other person.
    That as the indictment charged that the defendant did “ steal,” take and carry away the goods, and as the statute (§ 628) defined the act of obtaining goods by false pretenses as stealing them, the indictment was sufficient as it charged the act and was not required to describe the means by which the act was accomplished.
    The cases on this subject, collated and followed by Haight, J.
    Appeal from, a judgment of tbe Court of Sessions of Monroe county, convicting tbe defendant of tbe crime of grand larceny in the second degree and adjudging that lie be imprisoned in the State prison at Auburn for the term of three years.

      P. Gharriberlain, Jr., for the appellant.

      J. W. Taylor, district attorney, for the respondent.
   Haight, J.:

The indictment charges that the defendant, on the third day of February, in the year of our Lord one thousand eight hundred and eighty-five, at the city of Rochester, in the county of Monroe, a quantity of carpets, rugs and hassocks, particularly describing them, of the value of $671, of the goods, chattels and personal property of Ilus F. Carter, then and there being found, unlawfully and feloniously, did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.

Upon the trial the district attorney gave evidence tending to show that the defendant purchased of Carter the goods in question, giving therefor his promissory notes, indorsed by one Louis Hensler; that to induce Carter to sell him the goods he produced an affidavit ±rom llensler, showing that he was the owner of a farm consisting of thirty-three acres, situated in the town of Little Valley, in the county of Cattaraugus, free and clear from all incumbrances and liens, of the value of $3,000, and of another farm of twenty-eight acres, situated in the town of Barre, Orleans county, of the value of $2,500, upon which there was a purchase-money mortgage of $900, and, that the total of his liabilities did not exceed the sum of $65 over and above the $900 mortgage; that this affidavit was false, and was known by the defendant, to be false at the time that he presented the same to Carter to induce him to sell the goods upon credit. The defendant objected to the evidence tending to show false representations as to Hensler’s responsibility, and at the conclusion of the people’s evidence asked to have, the defendant discharged upon the ground of variance between the proof and the indictment. This was denied and exception taken. The question thus presented is not free from difficulty. The indictment, as we have seen, is in the form approved and usually adopted for the crime of larceny under the Revised Statutes.

Under the Penal Code the crime of larceny has been enlarged so as to embrace the crimes formerly known as false pretense and embezzlement, and is defined as follows : “ A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker or of any other person, either, I. Takes from the possession of the true owner or of any other person; or obtains from such possession by color or aid of fraudulent or false representation or pretense, or of any false token or writing; or secretes, withholds on appropriates to his own use, or that of any person other than the true owner, any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind; or, II Having in his possession, custody or control, as a bailee, servant, attorney, agent, clerk, trustee or officer of any person, association or corporation, or as a public officer, or as a person authorized by agreement or by competent authority, to hold or take such possession, custody or control, any money, property, evidence of debt or contract, or article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof; steals such property, and is guilty of' larceny.” (Penal Code, § 528.)

Section 275 of the Code of Criminal Procedure provides that the indictment must contain a plain and concise statement of the act constituting the crime, without unnecessary repetition.

It will be observed that under section 528 of the Penal Code there must be an intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the talcer or any other person. The indictment charges the taking to be unlawfully and feloniously, contrary to the form of the statute in such case made and provided, etc. The word “feloniously” means criminal intent, which, used in connection with the words “ unlawfully, contrary to the form of the statute in such case made and provided,” is a sufficient description of the act to satisfy this provision of the section. Subdivision 1 of the section embraces the taking of money, personal property, etc., from the possession of the true owner, or of any other person, or obtaining from such possession by color or aid of fraudulent or false representations or pretense; in other words, it covers larceny under the Revised Statutes, and the obtaining of money or property by false pretense. Where it is by frahdulent or false representations or pretense, the person charged must take or obtain the money, personal property, etc., from the possession of the true owner, or of any other person, by color or aid of fraudulent or false representations or pretense. He must either take or obtain the possession. and where it is so taken or obtained it is defined by the statute to be stealing. Whilst the indictment does not charge the fraudulent or false representations, it does charge that the defendant did steal, take and carry away, etc. In other words, it charges the act, but does not describe the means by which the act was accomplished.

A similar question has been considered by the courts in reference to indictments charging the crime of murder. Under the statute murder may be committed in three ways: First, by a deliberate or premeditated design to effect the death of the person killed; or, second, by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual ; or, third, when perpetrated by a person engaged in the commission of a feiony.

In the case of Fitzgerald v. The People (37 N. Y., 413-426), Woodruff, J., after referring to the cases, says: . “The result of these cases most clearly is, that the crime of murder is sufficiently charged when alleged, as in the present indictment, £ with malice aforethought.’ But in order to prove the crime, the proofs must establish a case within the requirement of the statute in one of its three subdivisions. And the party indicted is entitled to proper instructions to the jury as to what facts must be found to sustain the indictment.”

In the case of Cox v. The People (80 N. Y., 500), the indictment contained the common-law count, charging a felonious killing, with malice aforethought, with other averments necessary in a common-law indictment for murder. It was claimed that there could be no conviction of murder in the first degree under the act making a killing murder, when perpetrated by a person engaged in the coihmission of a felony. Andbbws, J., in delivering the opinion of the court, says: “It has been settled by a series of adjudications, commencing with the case of People v. Enoch (13 Wend., 159), that a specification in the statute of the cases which shall be deemed murder in the first degree, and the introduction of new definitions or divisions does not necessarily require a change in the form of indictment, and that a conviction under a common-law indictment of murder in the first degree may be had in any case where the offense proved is brought within either of the statutory definitions.”

In the case of The People, etc., v. Conroy (97 N. Y., 62), the second count of the indictment was in the common-law form, charging that the defendant committed the crime feloniously, willfully and with malice aforethought. Rugee, Ch. J., in delivering the opinion of the court, says: “ This count seems to contain all of the allegations necessary to describe the crime of murder in the first degree as defined in the Penal Code. * * * It has never been required, under the strictest and most technical rules of pleading, that the particular intent with which a homicide was committed should be set forth in the indictment; but it has been uniformly deemed sufficient to allege it to have been done feloniously, with malice aforethought,' contrary to the form of the statute. The question as to whether the crime was committed, under such circumstances with reference to intent, as makes it murder in the first degree within the statutory definition, has been held, under several changes of the statute defining that crime, to be one of evidence determinable by the jury under the instructions of the court.” (Citing, with approval, the remarks of Woodruff, J., in the case of Fitzgerald v. The People, supra.)

In the case of the People v. Phelps (72 N. Y., 350) it was held a sufficient averment of the crime of larceny in the precise words of ’the statute.

In the case of the People v. Willett (4 Eastern R., 897; 102 N. Y., 253), the Court of Appeals held that the ordinary common-law count in an indictment for murder is, notwithstanding the numerous statutory enactments, sufficient to sustain a conviction where the murder was perpetrated while the prisoner was engaged in the commission of a felony. Etncet, J., in delivering the opinion of the court, in speaking upon the subject of an indictment for larceny, says: “ That section (528 of the Penal Code) defines, with considerable detail, what acts shall constitute larceny and what intent shall characterize the crime, and in the end provides that he who with such intent does any of such acts, steals such property, and is guilty of larceny. The word “ steal ” is thus defined by the statute itself as covering all the prescribed details, and its use in the indictment which charges the taking to have been felonious or with a criminal intent, sufficiently includes the particular intent needed to constitute a larceny.”

In Yirginia the statute makes the obtaining of money or other property, by any false pretense, larceny. In that State the courts hold that an indictment for the offense may be either in the form of indictment for larceny at common law or by charging the specific facts which the act declares shall be deemed larceny. (Leftwich v. The Commonwealth, 20 Gratt., 716 ; Dowdy v. The Commonwealth, 9 id., 727-734.) These authorities appear to sustain the respondents’ position, and incline us to hold that the indictment is sufficient, and that there was no variance between the proof and the charge.

The case of The People v. Moore (37 Hun, 84), has no application, for no such question was involved in the appeal or considered by the court. We are aware that in California a different rule has been established. (The People v. Jersey, 18 Cal., 337; The People v. Poggi, 19 id., 600; The People v. Miller, 12 id., 291.) But under the authorities of our own State we think these cases cannot be followed.

Again, it is contended by the appellant that there was no written representations made as to the ability of the defendant Dumar to pay for the goods purchased by him, as required by section 544 of the Penal Code. The false representations and pretense complained of did’ not relate to Dumar’s ability to pay, but did relate to Hensler’s ability to pay. His representations were in writing,, and in the form of an affidavit, subscribed by himself. The false representations and pretense of the defendant Dumar consisted in the presenting of this affidavit to Carter, knowing it to be false, and in statements made to Carter in reference to Hensler’s ability to pay. His false representations did not relate to the ability of himself to pay, and consequently was not within the provisions of section 544 of the Code. Numerous exceptions were taken upon the trial to the admission and rejection of evidence, to the chaige and the refusal to charge, but none which we consider it necessary to here discuss.

The judgment and conviction should be affinned.

Smith, P. J., Barker and Bradley, JJ., concurred.

Judgment and conviction affirmed, and proceedings remitted to the Court of Sessions of Monroe county to proceed thereon.


text:
    WILLIAM T. SLATTERY and JOHN E. OLMSTEAD, Respondents, v. SAMUEL E. HASKIN, Appellant.

      Practice — motion to dismiss an appeal to the County Court because of a failure of the sureties upon an undertaking to justify — the right to so more is not lost by the service of a notice of retainer or of trial — Code of Civil Procedure, sec. 3069.
    On .July 23, 1885, a notice of appeal from a judgment recovered by the plaintiff in a .Justice’s Court was duly served and the undertaking, required by section 3069 of the Code of Civil Procedure, was executed and filed with the justice, but no copy of the undertaking was served upon the respondents, nor was any notice oí tie filing thereof. On August eighteenth the attorneys for the respondents served a notice of retainer, and August thirty-first a notice excepting to the sureties upon the undertaking. On the twentieth of November they served a notice of trial, and on the twenty-fifth of November a notice of a motion to dismiss the appeal upon the ground that the appellant’s sureties had failed to justify and that no new undertaking had been executed and filed.

      Held, that a claim that the motion should be denied upon the ground that the respondents did not except to the sureties within the ten days provided by the Code, was properly overruled, as no copy of the undertaking, or notice of the filing thereof, was served upon the respondents, and they first learned that the undertaking had been filed on August 24, 1885.
    That neither the service of the notice of retainer nor of the notice of trial operated as a waiver of the right of the respondents to move to dismiss the appeal.
    Appeal from an order of the Steuben County Court, permitting the defendant to perfect his appeal by procuring the proper justification and allowance of the sureties named in the undertaking within twenty days, or, in default, that his appeal be dismissed.

      II. JBemus, for the appellant.

      O. E. Searl, for the respondents.
   Haight, J.:

This action was originally brought‘'in Justice’s Court and resulted in a judgment in favor of the plaintiffs for $174.63. On^the 23d day of July, 1885, a notice of appeal was duly served, and the undertaking, with sureties, executed and filed with the justice, but no notice of the filing of the undertaking, or a copy thereof, was served upon the plaintiffs. Thereafter, and on the 18th day of August, 1885, Messrs. Searl & Larkin served upon the appellant’s attorney a notice of retainer for the respondents, and on the thirty-first day of August a notice, excepting to the sureties upon the undertaking. On the 20th'day of November, 1885, they served upon the appellant’s attorney a notice of trial, and thereafter, and on the 25th day of November, 1885, a notice of motion to dismiss the appeal, upon the ground that the appellant’s sureties had failed to justify, and that no new undertaking had been executed and filed.

The defendant, in his notice of appeal to the County Court, demanded a new trial in that court, and under section 3069 of the Code, in order to render sueli an appeal effectual, the appellant must, at the time of the service of the notice of appeal upon the justice, give the undertaking required by the Code to stay the execution of the judgment. Such undertaking must be in writing, executed by one or more sureties, approved by the justice who rendered the judgment, or by a judge of the appella te court, and a copy of the undertaking, with a notice of the delivery thereof to the justice, must be served with the notice of appeal. (Code, § 3050.) The attorney for the respondent may, within ten days after the service of a copy of the undertaking, with notice of the filing thereof, serve upon the attorney for the appellant a written notice that he excepts to the sufficiency of the sureties. Within ten days thereafter the sureties, or other sureties in a new undertaking to the same effect, must justify before a judge of the court below or a county judge. If the judge finds the sureties sufficient he must indorse his allowance of them upon the undertaking, or a copy thereof, and the notice of the allowance must be served upon the attorney for the exceptant. The effect of a failure so to justify and procure the allowance is the same as if the undertaking had not been given. (Code, § 1335.)

It is now contended that the respondents did not except to the sureties upon the undertaking within the ten days provided by the Code. But, as we have seen, no copy of the undertaking, or notice of the filing thereof, was served upon the respondents or their attorneys, and they are given ten days after such service to except to the sureties. It appears from the moving papers that they first learned that the undertaking had been filed with the justice on the 24th day of August, 1885, and on the 31st of August thereafter they served their notice excepting to the sureties. It would consequently appear that the notice was in time, and that it thereby became the duty of the appellant to have his sureties justify and his undertaking allowed.

Again, it is contended that the respondents, by serving a notice of retainer and of trial, waived the justification of the sureties. It is well settled that parties, by appearing generally, waive irregularities theretofore existing, and may confer jurisdiction upon the court, even though the court, without such appearance, would not have had jurisdiction. (Bissell v. The N. Y. C. and R. R. R. R. Co., 67 Barb., 385; The Ogdensburg and Lake Champlain R. Co. v. The Vermont and Canada R. Co., 63 N. Y., 176; Hill v. Burke, 62 id., 111; The People ex rel. Jennys v. Brennan, 6 T. & C., 120-126.)

But in this case the appeal was regularly served, and the undertaking was filed with the magistrate. The most that the respondents could have waived by their appearance was the service upon them of the copy of the undertaking, with the notice of its filing. This did not admit the sufficiency of the sureties, or deprive them of the right to except thereto. By appearing, they could not assume that the sureties would fail to justify, or that the appellant would fail to furnish a new undertaking if required. The right to dismiss the appeal grows out of that which transpired subsequent to 'the notice of retainer, and consequently was not waived by the service of such notice. The waiver, if any, must, therefore, have been in the service of the notice of trial. But the appellant has failed to call our attention to a single case holding that the service of a notice of trial or argument is a waiver of the right to move to dismiss an appeal, and we are inclined to doubt the propriety of so holding.

In the ease of Beebe v. Marvin (17 Abb., 191-196), it*was held by the General Term of the Superior Court that the plaintiff was not barred from making a motion for judgment upon a sham answer, after having noticed the case for trial; that he was entitled to the earliest disposition of the case that he could get. In the case of Arnoux v. Homans (32 How., 382), it was held that the service of a notice of argument of an appeal did not preclude the enforcing payment of the judgment where no stay of proceedings had been granted.

It is true that the appellant was in default in not procuring the allowance of his undertaking at the time the notice of trial was served, but he still had the right to move the court for relief in this regard, and the respondents, not wishing the case to go over another term of the court, may have noticed it for trial without intending or desiring to waive their right to also move to dismiss the appeal.

The order appealed from should be affirmed, with ten dollars costs.and disbursements. And the appellant may have twenty days in which to perfect his undertaking under the order appealed from.

Barker and Bradley, JJ., concurred.

So ordered.


author: Barker, J.:

text:
    FIRST NATIONAL BANK OF UNION MILLS, Respondent, v. JUDSON H. CLARK, Appellant.

      Practice — a motion for a new trial on the minutes of the justice can only be made when a verdict has been rendered— Code of Civil Procedure, see. 999 —power of a ■Special Term to entertain a motion to vacate an order erroneously granted.

    Upon, tlie trial of this action, brought to recover moneys alleged to have been deposited by the plaintiff’s assignor with the defendant, a private banker, the plaintiff was nonsuited by the court, upon the ground that it had failed to show a title to the moneys deposited; a motion was thereupon made by the plaintiff for a new trial upon the minutes of the justice trying the case, which was entertained and denied. From this orde* an appeal was taken by the plaintiff, which is still pending. Subsequently the plaintiff moved, at a Special Term held by the trial judge, for an order vacating the previous orders of the court entertaining and denying the motion for a new trial. From an order granting this motion the defendant appealed.

      Held, that the trial judge had no authority to entertain the motion for a new trial made upon his minutes, as such a motion can only be made in those cases in v hich a verdict has been rendered.
    That as the "order denying the motion for the new trial was erroneous and invalid, it was proper for the Special Term to hear and grant the motion made by the plaintiff to have the said order vacated.
    That the plaintiff was not barred from making the motion, because it had taken an appeal from the order denying a new trial.
    No opinion was expressed by the court upon the question as to whether the plaintiff could move upon the case as settled for a new trial without first formally discontinuing his appeal, nor as to whether the defendant should be allowed any cost on such appeal.
    Appeal from an order made at tbe Erie Special Term and entered in Allegany county.
    The action, which was tried at the Allegany Circuit, where the plaintiff was nonsuited by the court, was brought to recover moneys alleged to have been deposited by Sliney and Whelan with the defendant, a private banker, the claim for which had been by them assigned to the plaintiff. When the plaintiff rested the defendant moved for a nonsuit, which was granted, on the ground, as the case states, that the plaintiff failed to show a title to the moneys deposited. Thereupon the plaintiff, moved for a new trial upon the minutes, which was entertained by the trial judge and denied. From that order the plaintiff appealed to the General Term, where it is still pending. Subsequently the plaintiff moved, at a Special Term held by the trial judge, for an order vacating the previous order of the court entertaining the plaintiff’s motion for a new trial, and also the order denying the same. The Special Term made an order vacating and setting aside both of the said orders, from which the defendant appealed.

      Dufus Scott, for the appellant.

      Aimslie <& Davie, for the respondent.
   Barker, J.:

The practice adopted at the circuit is without precedent, and was wholly unauthorized. By section 999 of the Code of Civil Procedure, the trial' judge may, in his discretion, entertain a motion upon his minutes, at the same term at which tbe trial was had, to set aside the verdict and grant a new trial upon exceptions ; or because the verdict is for excessive or insufficient damages; or otherwise contrary to the evidence, or contrary to law. Here there was a trial,but no verdict; and the trial judge at the circuit had no jurisdiction, and the order denying a new trial was erroneous and invalid. (Emmerich v. Hefferan, 33 Hun, 54; Hill v. Hotchkin, 23 id., 414.)

The only question now presented for our consideration is whether the Special Term had jurisdiction to vacate the order made at the circuit, denying the plaintiff’s application for a new trial. Upon this question we entertain no doubt. The practice at the circuit was adopted through the inadvertence and mistake of the trial judge. By a proper motion,, with notice to 'the adverse party, the court possesses the power, as it was its duty, to correct the mistake resulting from a misapprehension as to the correct practice in moving for a new trial upon an exception taken to the ruling at the circuit granting a nonsuit.

The court may, in any stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, correct any mistake occurring in the mode of procedure. (Sec. 723 of the Code of Oivil Pro) The plaintiff, in procuring the order appealed from, sought to correct its own mistake, and if relief had not been granted, by vacating the previous orders, it might have been greatly embarrassed in procuring a hearing upon its exceptions taken to the order granting a nonsuit. Upon the appeal taken from the order denying a new trial, no hearing upon the merits could have been had in this court, for the reason that the order appealed from was invalid, and the judge making the same had no power at the circuit to correct the error in granting a nonsuit it one was made. The defendant has not been prejudiced by the order from which he appeals, for the reason that a motion for a nonsuit yet stands unreversed. The plaintiff was not barred from making the motion because it had taken an appeal from the order denying a, new trial. Parties may be relieved from their own errors and mistakes if injustice would be done by refusing relief. The fact that an appeal was pending is notoa bar to an application to renew a motion. (Belmont v. The Erie Railway Co., 52 Barb., 637; see note 88 to standing rule No. 37.)

The decision of a motion is not regarded, in the light of res adjudieata, with the same strictness as in judgments, and therefore an interlocutory order may be vacated and set aside upon the motion of an aggrieved party, if made in pursuance of the rules and practice of the court. (Smith v. Spalding, 3 Rob., 615 ; White v. Munroe, 33 Barb., 654; Belmont v. Erie Railway Co., 52 id., 637; Simson v. Hart, 14 Johns., 63.)

A motion at the circuit for a new trial, when it may be entertained after a verdict rendered, is summary in its character, and the decision of the court thereon is not to be regarded with the same consideration as a decision made upon a formal motion and after a deliberate argument. The order of the Special Term, correcting the errors in practice adopted at the circuit, was wisely granted, and the order should be affirmed. The question presented is unlike those which are often presented and considered where a defeated party seeks to renew a motion upon the same or a new state of facts, in which cases the court, to prevent vexatious and repeated applications on the same point, have adopted rules of procedure which are intended to preclude the discussion of the same question, on the same state of facts, without first procuring the permission of the court to reargue the motion. The rules of practice in that class of cases are stated in the following cases, which are cited without comment: Belmont v. Erie Railway Company (52 Barb., 637); White v. Munroe (33 id., 654) ; Smith v. Spalding (3 Rob., 115); Snyder v. White (6 How. Pr., 321); Erie Railway Company v. Ramsey (57 Barb., 449).

The order appealed from was granted, without costs to either party, and no disposition was made of the * appeal taken by the plaintiff from the order made at the circuit, denying a new trial. The only ground of complaint which the defendant can make is, that the appeal is not disposed of on vacating the order, and on such terms as to costs as would be just and fair to him. If he desired that the appeal should have been disposed of at that time he should have brought the question before the court for its decision.

We express no opinion upon the question whether the plaintiff can move upon the case as settled for a new trial without first formally discontinuing his appeal, nor whether the defendant should be allowed any costs on such appeal.

In view of the somewhat peculiar features of the case, as presented on this appeal, we affirm the order, without costs to either party.

Haight and Bradley,.JJ., concurred; Smith, P. J., not sitting.

Order affirmed, without costs.


text:
    YETTE THALHEIMER, Appellant, v. FERDINAND HAYS and JACOB THALHEIMER, Defendants. SUSELIA HAYS, Judgment Creditor, Respondent. SALIE FRANKEL, Appellant, v. THE SAME. SUSELIA HAYS, Judgment Creditor, Respondent.

      Practice — motion to vacate an attachment — when it may he made after the denial of a previous motion therefor — Code of Civil Procedure, sec. 6S8.
    Under the provisions of section 688 of the Code of Civil Procedure an interested party may, as a matter of right, move to dismiss an attachment granted upon the ground that the defendants had disposed of their property with an intent to defraud their creditors, upon affidavits disproving or explaining the case made by the plaintiffs, although a motion to vacate the attaphment, founded upon the papers used by the plaintiff in procuring it, has already been made and denied.

      Appeals from orders made at the Monroe Special Term vacating, upon the merits, the warrants of attachment granted in the above-entitled actions.
    In each of these actions the plaintiffs, on the 7th day' of July, 1884, procured an attachment against the property of the defendants, on the ground that they had disposed of and secreted, and were about to dispose of and secrete their property, with an intent to defraud their creditors. On the 8th of July, 1884, Suselia Hays, wife of the defendant Hays, procured and docketed a judgment against the defendants for the sum of $13,000, and issued execution thereon and placed the same in the hands of the sheriff. On the day following she procured an order requiring each of the plaintiffs to show cause, at a Special Term, on the eleventh of July, why the said attachments should not be vacated, for the reason that the affidavits upon which the attachments were granted were insufficient. The motions were finally heard in December, and in January, 1885, and were denied, with costs.
    On the 11th day of December, 1884, Suselia Hays made another motion in each case, to set aside and vacate the said attachments based upon affidavits disproving the facts upon which the granting of the attachments were based, which motions came on to be heard on the 19th of December, 1884, at the Special Term. The hearing of these motions was postponed, from time to time, and they were finally heard and disposed of on the 26th of February, 1886, orders being then made vacating both of said attachments. From the last named orders the plaintiffs have appealed.

      J. c& Q. Van Voorhis, for the plaintiffs, appellants.

      J. B. Perkins, for Suselia Hays, judgment creditor, respondent.
   Barker, J.:

The appellants contend that by making the first motion, and the final determination thereof after the making of the second motion, superseded the motion last made and was, in effect, a rehearing of the same question, and for those reasons was irregular and erroneous, and should have been denied upon that ground. The intervening creditor, Suselia IIa3rs, contends that each motion was made upon separate and distinct grounds, and could be separately made and prosecuted at the same time, with strict regularity. Her position is, that the first motion was founded upon the affidavits upon which the attachments were granted, and she sought to vacate the same for the reason that the affidavits were insufficient in matter of substance and the officer acquired no jurisdiction over the subject-matter ; that the second motion was based upon affidavits disproving the ground upon which the attachment was issued, and that the same were properly vacated upon the proofs refuting the case made by the plaintiffs.

If these positions are supported by the history of the case, as the same appears in the record, then the denial of the first motion did not supersede the second motion and the same remained in court to be disposed of upon the merits. The lien of the intervening creditor attached to the property after the attachments were issued, and upon sufficient grounds she could apply to vacate the attachments. (Code Civil Pro., § 682 )

Under section 683 the motion to vacate may be founded upon the application and proofs upon which the warrant was granted, and can be made to the court or to the judge who granted the same, without notice ; or the motion can be made upon the proof by affidavit on the part of the lienor, in which case it must be upon notice, and could have been made to the court or to the judge who granted the warrant, and, in that case, the motion may be opposed by rrew proof by affidavit on the part of the plaintiff, tending to sustain any of the grounds upon which the attachment was granted, as recited in the warrant. One motion is summary in its character and is based upon the insufficiency of proofs, and no notice is required to be given of the application on the supposition that the same was granted improvidently by the officer. The other is in the nature of a trial, where the parties produce proofs on each side of the question in dispute, and the opposing party is entitled to be heard upon notice, and the questions involved maybe entirely distinct from those which can be investigated in the ex parte application.

We are of the opinion that, under the provisions of section 683, an interested party may, as a matter of right, move to dismiss the attachment upon the merits, founded upon affidavits disproving or explaining the case, made by the plaintiffs, although a motion to vacate has been denied, founded upon the plaintiffs’ affidavits used in procuring the attachment; they are essentially different proceedings. To give the section a contrary construction would greatly embarrass defendants and lienors m attachment proceedings, for they might hesitate to make a summary application unless the plaintiff’s case was defective beyond all doubt, as they would, if defeated, bar themselves of all right to proceed upon their own proofs and in a more deliberate manner. These views are supported by the suggestions made in Steuben County Bank v. Alberger (75 N. Y., 179, and, also, 83 N. Y., 274), in a case between the same parties. The doctrine of res adjudícala does not apply with the same strictness to decisions in interlocutory motions as it does to judgments. Courts, to prevent vexatious and repeated applications on the same point, have rules which preclude the agitation of the same question on the same state of facts. (Belmont v. The Erie Railway Co., 52 Barb., 637; Ramsey v. The Erie Railway Co., 57 id., 450 ; Smith v. Spalding, 3 Rob., 615.)

From the papers contained in the appeal-book we are unable to say that the first motion made was founded upon proofs made by the moving party, and there are some 'reasons for holding that it was based only, so far as the facts are concerned, upon the plaintiffs’ affidavits. The order appealed from does not recite that the point was made on the final hearing that the previous motion had been denied, although it does state some other objections were made by the appellants, which were overruled. Upon the final hearing the appellant also presented many objections, in writing, to the granting of the motion, but the one we are now considering was not made, although the fact that the former motion had been denied by another Special Term was brought to the attention of the court. The question is, after all, nothing more than one of irregularity in procedure, and the court is governed entirely by its own rules whether the same matter shall be reheard or not.

Upon the merits, we concur with' the Special Term in setting aside the attachments, as the proofs upon the question of the fraud of the defendants, in disposing'of their property, is substantially the same as they were in the case of Ignatz Thalheimer against these defendants, where we sustained an order of the Special Term, made by the same learned judge who granted the orders now before us, setting aside an attachment granted in that action.

On the hearing of this appeal the original record was handed up with the printed papers, and by it it appears that the point is not well made, that the motion was not founded upon original papers, except as to the objection to the affidavit of Abe Strauss, which the respondent admits is only a copy of an original affidavit which had been previously used on a similar motion in a case where the said Ignatz Thalheimer was the plaintiff. This affidavit was incompetent, and should have been excluded on the plaintiff’s objection. But it appears, upon reading the other affidavits, that the facts stated in this paper were substantially stated by the other witnesses, and we are of the opinion that the moving party fairly made out a case for vacating the attachments, independently of Strauss’s affidavit, and that -the order should not be reversed for the error in permitting the copied affidavit to be read.

Several affidavits, taken in the State of Indiana, were read by the moving parties, over the appellant’s objection that they were not' properly certified as required by section 844 of the Code. To the original papers there is attached a certificate by the proper officer, in full compliance with section 844. The same purports to be made upon the 27th day of February, 1886, one day after the orders were entered granting the motion. The original certificates were taken from the files, and on the argument of this appeal were exhibited to the court for its inspection, for the purpose of meeting the objection, and at that time the appellant made no claim that the certificates had been improperly made part of the record. We may, therefore, properly assume that they were so attached with the consent of the parties, or by an order of the court. We have examined each of the other points made upon the argument, or as found in the appellant’s printed brief, and we fail to discover any such error or irregularity as should lead to the reversal of the judgments.

The orders appealed from are affirmed, with costs and disbursements in one of the cases.

Haight and Bradley, JJ., concurred; Smith, P. J., not sitting.

Order in each case affirmed, with ten dollars costs and disbursements in one case.


author: JBaeker, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES B. PECK, Respondent, v. FRANCIS M. CONLEY and Others, Trustees of the First Society of the Methodist Episcopal Church of the Town of Cohocton, Appellants.

      Jurisdiction of the court to restrain the trustees of a religious corporation from, diverting its property from the church or denomination to which the corporation is attached —1875, chap. 79, and 1876, chap. 176 — when the trustees will he compelled hy a mandamus to open the meeting-house to a minister regularly appointed to that place.

    The appellants are the trustees of the First Society of the Methodist Episcopal Church of the town of Cohocton, organized in 1829 under the general law of 1818. In the year 1831 the local society received a conveyance of a parcel of land, upon which a meeting-house has since been erected, in which the grantees were mentioned and described as “ Paul C. Cook (and four others), trustees of the First Methodist Episcopal Society of the town of Cohocton, and their successors in office,” but which contained no conditions or other reference to any religious organization. By the custom, regulations and discipline of the Methodist Episcopal Church, the bishop presiding at an annual conference possesses full authority, and is charged with the duty, to make the appointment of preachers for the several local districts within his conference.
    The relator, a minister of the gospel in good standing in the Methodist Episcopal Church, having been appointed by the bishop presiding at the annual conference held for the year 1885, as the preacher to be located in the Cohocton district, and to occupy for religious purposes the meeting-house owned by the corporation of which the appellants are the trustees, applied to them to be received as the minister of the society and to be allowed to open and use the meeting-house for the purpose of conducting religious exercises. The trustees having refused to receive the relator or to open the meeting-house, he applied for and obtained a mandamus compelling them so to do.

      Held, that since the passage of chapter 79 of 1875, and chapter 176 of 1876, the courts have, by force of the provisions contained in the said acts, jurisdiction to supervise the action of the trustees of religious corporations and to require them to use and manage the property of the corporation according to the rules and usages of the church or denomination to which the corporation belongs, and to restrain them by appropriate orders and decrees in actions or proceedings properly instituted for that purpose by interested parties from diverting the property held hy them as trustees, or from using the revenues which come into their hands except for the support and maintenance of the church or denomination to which they are attached.

      Ishamv. Fullager (14 Abb. N. 0., 363); First Deformed Presbyterian Chur eh v. Bowden (Id., 356); Isham v. The Trustees of the First Presbyterian Ghurch of Dunkirk (63 How., 495), followed.

      That it was the duty of the trustees to receive the relator as minister, and to open the meeting-house to him for the purpose of conducting divine worship therein, in conformity to the tenets and discipline of the religious denomination to which he and the corporation was attached.
    That in refusing to open the meeting-house the trustees violated a plain duty, and that the writ of mandamus was a proper remedy to put the relator in possession of the pulpit to which he was entitled.
    Appeal from an order of the Monroe Special Term, granting a peremptory writ of ma/ndamus requiring the appellants to receive she relator as the minister of the society of which they are the trustees, and to open the meeting-house, of which they have charge, to the said relator, for t-he purposes of conducting religious exercises therein, in conformity to the faith, tenets and discipline of the Methodist Episcopal Church, and to do certain other things, specifically mentioned, of less importance, and referred to in the opinion.

      T. M. Cormelly, for the appellants.

      MoMaster <& Parkhurst, for the respondent.
   JBaeker, J.:

The relator is a minister of the gospel, in good standing, of the religious denomination and organization known as the Methodist Episcopal Church. The appellants are the trustees of the First Society of the Methodist Episcopal Church of the town of Cohocton, organized in the year 1829, under the general law of 1813 (chap. 60), permitting the creation of religious corporations. This corporation is located within the territorial limits of the Genesee Conference of the said denomination, over which Bishop Hurst presided at the annual conference held in the year 1885. In the year 1831 the localsociety received a conveyance of a parcel of land, upon which a meeting-house has since been erected,- and the grantees therein are mentioned and described as “Paul C. Cook and four others, trustees of the First Methodist Episcopal Society of the town of Cohocton, and their successors in office, of the second part.” No conditions are inserted in this conveyance upon which the title vested in the trustees is made to depend; nor is any reference made therein as to the religious organization to which the said corporation belongs, other than is found in the clause describing the official character of the trustees. By the custom, regulations and discipline of the Methodist Episcopal Church, the bishop presiding at an annual conference possesses full authority, and is charged with the duty to make the appointments of preachers for the several local districts within his conference. At the conference held in 1885, Bishop Iiurst, in due form, appointed the relator as the preacher to be located in the Cohocton district, and to occupy for religious purposes the meeting-house owned by the corporation of which the appellants are the trustees. They refuse to receive the relator in his capacity as preacher, and refuse to open the meeting-house, that he may conduct religious services therein, in accordance with the rights, ceremonies and discipline of the Methodist Episcopal Church, to which the local society and corporators were attached. The trustees were sirpportcd in their action in this respect by a majority of the congregation and communicants belonging to the local society. The trustees justify 'their action, morally and as members of the religious society, upon the ground that they were dissatisfied, as a body, witli the action of .the conference and the bishop in appointing the relator as the preacher of their society, and specify as the chief reason of their opposition that the relator is entirely incompetent to perform the duties of pastor, and without talent to edify or instruct the people.

As a legal justification, and for the purpose of defeating the relator’s application, they claim that the corporation of which they are the trustees is a civil one, independent of all ecclesiastical judicatories, and that the civil courts are without jurisdiction to guide or control their action in the management of the temporalities of the church, over which they have the same control that the trustees or directors of business corporations have and possess, by the general laws of the State. In this contention they would have been supported by the construction which the courts have placed upon the general act of 1813, prior to its amendment by chapter 79 of the-Laws of 1875 and chapter 176 of the Laws of 1876. (Robertson v. Bullions, 11 N. Y., 243; Petty v. Tooker, 21 id., 267.)

In those cases it was held that the members of the society or corporation form the corporate body, such members being the corporation, and the trustees the mere officers of the corporation ; that the body or entity thus brought into existence is a civil corporation, with such functions and powers as the statute confers upon it and its officers, and that in no sense was it an ecclesiastical corporation; that it was wholly independent, in its existence and in the control and management of its affairs, of all religious judicatories; that it is a creature of the State, and subject to such control as its own laws may impose; that none of the provisions of the act of 1813 were intended to disturb, interfere with or regulate the actions and powers of the numerous voluntary religious organizations existing in this State, and that such bodies were recognized and considered as entirely spiritual associations, distinct and separate from the body politic.

Since those decisions were made, giving a construction to the original act, supplemental provisions have been enacted which provide that the rectors, wardens and vestrymen, or the trustees, consistory or sessions of any church, congregation or religious society, incorporated under any of the laws of this State, shall administer the temporalities thereof, and hold and apply the estate and property belonging thereto, and the revenues of the same, for the benefit of such corporation, according to the rules and usages of the church or denomination to which said' corporation shall belong; and it shall not be lawful to divert the estate, property or revenue to any purpose except the support and maintenance of any church or religious or benevolent institution or object connected with the church or denomination to which such corporation shall belong. (Laws of 1876, chap. 176, § 1.)

The legislature had previously enacted (Laws of 1875, chap. 79) that the jurisdiction of courts of equity was extended over religious corporations, so far as it may be necessary to enforce the provisions of that act, which provided that the trustees of any church, congregation or religious society, incorporated under section 3 of the act of 1813, shall administer the temporalities thereof, and hold and apply the estate and property belonging thereto, and the revenues of the same, for the benefit of such corporation, according to the discipline, rules and usages of the denomination to which the church members of the corporation belong; nor shall it be lawful for the trustees to divert such estate, property or revenues to any other purpose, except towards the support and maintenance of any religious, benevolent or other institution connected, with such church, congregation or religious society.

This court has, by its previous decisions, placed a construction upon these amendments or supplementary provisions to the original act, and held that the courts, by force of their provisions, have jurisdiction to supervise the action of the trustees of religious corporations and to require them to use and manage the property of the corporation according to the rules and usages of the church or denomination to which the corporation belonged; and when they attempt to divert the property, of which they have the title as trustees, or to use the revenues which may come to their hands, except for the support and maintenance of the church or denomination to which it is attached, to restrain their action by appropriate orders and decrees in actions or proceedings properly instituted for that purpose by interested parties.

In Isham v. Fullager (14 Abb. N. C., 363), it was held at Special Term' that the trustees could be properly restrained, under the amendatory clauses, from opening the church building to the ministration of a minister who had been deposed from his office by the action of an ecclesiastical judicatory to which he and the society belonged. This case was affirmed at General Term, on the opinion of the justice who presided at the Special Term. The same views were again expressed by this court in the case of The First Reformed Presbyterian Church v. Bowden (14 Abb. N. C., 356).

The same questions were up for consideration and the same conclusions reached in Isham v. The Trustees of the First Presbyterian Church of Dunkirk (63 How., 495).

In the examination of the case at bar we have re-examined the questions involved in the discussion and are confirmed in our views as previously expressed, and, upon the authority of the cases cited, we hold that it was the duty of the trustees to receive the relator as the minister assigned to the district of the First Methodist Episcopal Church of Cohocton, and to open the meeting-house to him for the purpose of conducting divine worship therein in conformity to the tenets and discipline of the religious denomination to which he belongs and to which the corporation is attached. In refusing to open the meeting-house the trustees violated a plain duty, and the writ of mandamus is a proper remedy to put the relator in possession of the pulpit to which he is entitled. (People v. Steele, 2 Barb., 397.)

As to the personal property described in the writ, the trustees deny, that the corporation has title to the same, and state, in their affidavits,' that they have no control over the same, naming the persons in whose possession the same is. The relator failed to establish, in the face of these dénials, that the trustees held the property for the use of the resident minister and, so far as they are required to deliver the same to the custody of the relator, and for his use, the writ. should be amended by striking out that requirement.

As no point was made by the appellants that the record book mentioned in the writ was not intended to be used by the minister, for the purpose of keeping the records of the church, we allow the writ to stand in that particular, although we find no canon, in the book of discipline handed up to us, giving him charge of the records of the society or corporation.

The order and the writ, as amended, are affirmed, without costs of this appeal to either party.

Smith, P. J., and Bradley, J"., concurred; Haight, J., not sitting.

Order and writ modified as indicated in the opinion, and as modified affirmed, without costs of this appeal to either party.


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    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. HENRY PENHOLLOW, Appellant.

      Amendment to the United States Constitution requiring the accused to he confronted with the witnesses against him — not applicable to trials in State courts for State offenses — construction of this provision in the bill of rights of the State of New York — right of the accused to testify as to a conversation with a witness who has testified, as to a confession made by him — right of the accused, to cross-examine a witness in order to show bias against him.

    Upon the second trial o£ the defendant for the crime of extortion the people were allowed, against the defendant’s objection and exception, to read in evidence the testimony of a witness who had been produced and examined on the former trial, but who was dead at the time of the second trial.

      Held, that ail objection to the admission of the evidence, as being a violation of the sixth article of the amendment of the Constitution of the United Slates,, providing that in all criminal prosecutions the accused should be confronted with the witnesses against him, was not well taken, as the right secured by this clause of the Constitution is limited in its application to citizens of the United States on trial in the Federal courts charged with a violation of the Constitution of the United Stales or the laws of congress.
    That the similar provision contained in the bill of rights of the State of New York did not require that the accused should in all cases be confronted with the witnesses against him upon a pending trial of the indictment, but is satisfied, in cases of necessity, if the accused has been once confronted by the witness against him, in any stage of the proceedings upon the same accusation, and has had an opportunity of a cross-examination by himself or by counsel in his behalf.
    The offense consisted in extorting from one Reubly the sum of five dollars to prevent his arrest for stealing one dollar from one Sliker. The people called as a witness one Eapple, who testified to the confessions of the prisoner made to him at a time and place mentioned by the witness. He testified, in substance, that the prisoner admitted to him some of the facts and circumstances upon which the people relied to secure a conviction; and he further stated that the prisoner said that his purpose in exacting the five dollars from the prosecutor was to secure revenge, and as the opportunity occurred he took advantage of it and redressed a wrong which the prosecutor had done him on a former occasion. The prisoner, having been called as a witness in his own behalf, was asked by his counsel to state the conversation whieh he had with Eapple. An objection by the people’s counsel, interposed without any reason being stated therefor, was sustained by the court, which stated to the prisoner that any conversation which he had with Eapple in reference to the payment of the money, or in regard to the motive in going to the house of the prosecutor, was proper, but anything further was not.

      Held, that the limitation thus placed on the right of the prisoner to state as a witness all the conversation which he had with the witness Eapple was erroneous, as he had a right to give his version of the interview and all the conversation which passed between the parties as he claimed it to be.
    On the cross-examination of Eapple he stated that he was not fond of the defendant, and that he did not speak kindly to him. He was asked: “Did you tell Penhollow last week that he was guilty and you knew it ? ” Upon a general objection interposed by the district attorney the court refused to allow the witness to answer.

      Held, error; that the defendant had the right to put the question as bearing upon the question as to whether the witness had any bias, prejudice or hostility against him.
    That his right so to do was not affected by the fact that the witness had already admitted that he did not feel kindly to the defendant, as the latter had the right to show when, where and the peculiar circumstances under which the witness had displayed his prejudice and bias, so that the jury might the better determine in what degree, if any, the witness’ credibility had been impeached.

      Appeal from a judgment of the Court of Sessions of Chautauqua county, entered upon a verdict convicting the appellant of the crime of extortion, and sentencing him to the Auburn State prison for the period of one year at hard labor.
    The offense consisted in extorting from one .Beubty the sum of five dollars,- to prevent his arrest for stealing one dollar from one Sliker.

      Record & Hooker, for the appellant.

      A. B. Ottoway, district attorney, for the People.
   Barker, J.:

The evidence upon which the appellant’s conviction stands is conflicting, but it fairly tends to establish his guilt. As the judgment should be reversed and a new trial granted for error of law appearing in the record, we have not examined the evidence with the same attention we would have done if the question of the insufficiency of the proof to establish the offense charged was the only question presented for our consideration. A previous trial had taken place on this indictment, in the same court, which resulted in a disagreement of the jury. On that trial the People produced and examined as a witness Cliloe Beubly, who gave material evidence tending to prove the guilt of the accused. At the time of this trial the witness was dead, and the People offered to read in evidence her testimony, as given on the former trial. To the reception of this proof the defendant objected, on the ground that it was incompetent and unconstitutional, being in violation of tire sixth article of the amendments to the Constitution of the United States, which provides that in all criminal prosecutions the accused shall be confronted with the witnesses against him. This provision has no application to criminal trials in the State courts for a violation of State laws. This right, secured to the accused, is limited in its application to citizens of the United States on trial in the Federal courts, charged with a violation of the Constitution of the United States or of the laws of Congress. This clause of the Constitution, relied upon by the accused as a ground of his objection, has been frequently and deliberately interpreted by the Federal courts, and the decisions are so full, emphatic and eonelusive that it is only necessary to cite the cases where the rule as stated may be found. (Barron v. Mayor, etc., of the City of Baltimore, 7 Peters, 247; Withers v. Buckley, 20 How. [U. S.], 84; U. S. v. Cruikshank, 92 U. S., 542; Walther v. Sauvinet, 92 id., 90; People v. Williams, 35 Hun, 516.)

Our own State Constitution does not contain any provision securing to the accused the right and privilege of being confronted by the witnesses against him. In the bill of rights adopted by the legislature there is a provision similar to the one embraced in the Constitution of the United States, and expressed in the identical words, to wit: “ In all criminal prosecutions the accused * * * has a right to be confronted by the witnesses against him.” The accused was confronted by the witness on the former trial and he had an opportunity of making a cross-examination, and that satisfies the requirements of the statutes. The rights secured to the accused, it is to be observed, is “ to be confronted with the witnesses against him.” This language does not require that the accused shall, in all cases, be confronted with the witnesses against him upon a pending trial of the indictment. The courts have held that the statute is satisfied, in cases of necessity, if the accused has been once confronted by the witness against him in any stage of the proceedings upon the same accusation and has had an opportunity of a cross-examination, by himself or by counsel, in his behalf. (People v. Newman, 5 Hill, 295; Crary v. Sprague, 12 Wend., 41; People v. Williams, 35 Hun, 516; Brown v. The Commonwealth, 73 Pa., 321.)

Mr. Colby, in his work on Constitutional Limitations ([3d ed.,] 318), in commenting on constitutional provisions of this character, remarks: “ If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there were a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane or sick and unable to testify.” By the rule thus well established it was clearly competent to read the evidence of the deceased witness, as given on the former trial, notwithstanding the protest of the prisoner.

The people called as a witness one Kapple, who testified as to the confessions of the prisoner made to him at a time and place mentioned by the witness. He testified, in substance, that the prisoner admitted to him some of the facts and circumstances upon which the people relied to secure a conviction, and he further stated that the prisoner said that his purpose in exacting the five dollars from the prosecutor was to secure revenge, and as the opportunity occurred he took advantage of it and redressed a wrong which the prosecutor had done him on a former occasion. The prisoner was called as a witness in his own behalf, and gave a detailed statement of the facts and circumstances connected with the accusation as charged in the indictment. He admitted that he had met Kapple and had a conversation with him at the time and place mentioned by that witness. The counsel for the prisoner then requested him to state the conversation he had with Kapple. The people’s counsel interposed an objection, without stating the reason upon which it was made, and the same was sustained by the court and the defendant took an exception. It may be understood from the case that the court, at the time of making this ruling, stated to the prisoner that any conversation which he had with Kapple in reference to the payment of the money or in regard to the motive in going to the house of the prosecutor was proper, but anything further was not. It does not appear from the record that the prisoner related any part of the conversation he had with the witness Kapple. We think it very clear that the limitations thus placed on the right of the prisoner to state, as a witness, all the conversation which he had with the witness Kapple was erroneous,, as he had a right to give his version of the interview and all the convei-sation which passed between the parties as he claimed it to be.

Kapple testified that the prisoner stated that “ Mr. Reubly had swindled him on some oats some time, and he declared that if he ever had the opportunity he would have revenge, and this opportunity came up and he took advantage of it after hearing Mrs. Edwards state that he picked up a dollar. That is the substance of the conversation.” Under the ruling of the court the prisoner was deprived of giving the language used at the interview, as he claimed it to be, and from denying that he had declared that he would have revenge against the prosecutor. The people,, by Kapple’s evidence, sought to prove that the prisoner had the motive of revenge in extorting from the prosecutor the sum of five dollars.

The same witness, on his cross-examination, was interrogated as to the state of his feelings against the prisoner, and he stated that he was not fond ” of the defendant; that he “ did not speak kindly to him.” He was then asked this question: Did you tell Pen-hollow last week that he was guilty, and you knew it?” The district-attorney interposed a general objection to the inquiry, and it was sustained by the court.

We think the exclusion of the inquiry was error. It is always a material question on the trial of causes, either civil or criminal, to ascertain the state of feeling on the part of the witness toward one or both of the parties, and, upon cross-examination, to inquire whether the witness has any bias, prejudice or hostility toward the party against whom he is called to testify, as bearing on his credibility, so the witness may be asked as to anything that may in the least affect his credit. If the matter rejected would tend to depreciate the credibility of the witness, it is the right of the party against whom he is called to produce it, and does not rest in the discretion of the court whether to receive or exclude it. This proposition is elementary, and is so stated by text writers, and the authorities are all one way upon the subject. (1 Greenl., § 450; People v. Cunningham, 1 Denio, 536; Starks v. The People, 5 id., 108 ; Breen v. The People, 4 Park. Cr., 380 ; Martin v. Farnham, 5 Foster [25 N. H.], 199; Atwood v. Welton, 7 Conn., 71; Pierce v. Gibson, 9 Vt., 222.)

There is no rule of evidence about which there can be less doubt. There is sometimes a difficulty in determining whether the fact sought to be proved is of such a nature and character that the jury might act upon it in discrediting the witness. But whenever it has that tendency, though in the least degree, its reception cannot be rejected without error. We must assume that the witness, if he had been permitted to answer the question, would have answered it in the affirmative. If the remark, which the question implies the witness made, had been addressed to a third person, a friend or neighbor of the defendant, no one would doubt, I think, but that the making of the statement would indicate a bias or prejudice on the part of the witness toward the accused. It would be indicative of an unfriendly as well as of an unkind spirit. It is insulting in its character, and if friendship before existed, such a statement well might and would, naturally, terminate friendly feelings. To say of an accused person, who asserts his innocence before trial, that he is guilty of the accusation charged upon him, if followed up by a remark on the part of the speaker that he knows it to be true, has the natural tendency to injure the accused and to prejudice his case in the minds of his friends and neighbors and with the public generally, and to deprive him of such proper assistance and sympathy as most accused persons may expect from friends and acquaintances.

In support of the ruling the learned district attorney makes the point that, as the witness had already admitted that his feelings toward the defendant were not kind, it was not for that reason error to exclude the evidence which was only showing how such unkind feelings had been manifested. The defendant had the right to show when, where and the peculiar circumstances under which the witness had displayed his prejudice and bias, that the jury could the better determine in what degree, if any, the witness’ credibility had been impeached. As the witness gave evidence as to the defendant’s confessions, a class of evidence always received’ with distrust, and in this case capable of contradiction only by the defendant himself, we think that he may have been injured by excluding the evidence.

The defendant took other exceptions during the trial which would require a close examination, except for the fact that a new trial must be granted for the reasons stated.

Judgment ' reversed, new trial granted, and the proceedings remitted to the Chautauqua County Court of Sessions, with directions to proceed.

Smith, P. J., Haight and Bradley, J J., concurred.

Judgment and order reversed and new trial ordered, and for that purpose the proceedings are remitted to the Court of Sessions of Chautauqua county.