author: Daniels, J.: Westbrook, J. : Brady, <3".:

text:
    In the Matter of the Application of WILLIAM M. TWEED, for a Writ of Peremptory Mandamus, v. NOAH DAVIS, one of the Justices of the Supreme Court.

      Bill of exceptions—settlement of—exceptions, how stated in — mandamus—juror— rejection of when competent—not ground for new trial — challenge.

    A bill of exceptions should contain only a concise statement of facts, presenting the points intended to be relied upon as ground of error, or simply so much of the evidence as may appear to be requisite for that purpose.
    The court cannot determine whether any particular thing occurred on the trial; that is necessarily within the province of the justice settling the case or bill.
    He cannot be compelled by mandamus to change his decision.
    A large number of written propositions were presented at the conclusion of the evidence, which the court was requested, by the defendant’s counsel, to instruct the jury to be the law. In many of these, the court differed from the defendant’s counsel in the charge which was given to the jury; and, as that was concluded, and the jury were about to retire, the defendant’s counsel stated that they excepted, for the defendant, to each refusal, modification or departure which had been made in the charge, from the proposition submitted. Held, that defendant’s counsel were not entitled to insert in the bill of exceptions, specific exceptions to the several portions of the charge which they considered constituted such refusals, modifications or departure.
    If an exception be taken on substantially the same state of facts, and on the same point, more than once, a single statement of it is all that is proper in a bill of exceptions.
    After a trial by an impartial jury, the fact that others, called as jurors, who were equally competent, but no more so, were excluded from the jury, is not ground for a new trial. (Westbrook, J.)
    The motion made in this case, is for a writ of peremptory mandamus, requiring Mr. Justice Davis to insert, in the bill of exceptions proposed by the applicant, certain evidence, rulings and exceptions, rejected by him, as not properly forming any portion of that document.

      John Graham, William Fullerton, W. O. Ba/rtlett, Elihu Root, and Willa/rd Ba/rtlett, for the motion.

      B. K. Phelps, district attorney, and W. U. PecTcham, opposed.
   Daniels, J.:

The applicant was tried and convicted in the Court of Oyer and Terminer, held in the city of Hew York, upon an indictment charging him with various misdemeanors, committed in an official capacity. Exceptions were taken during the trial, to decisions made in the course of it by the learned justice at the time presiding in the court. And these exceptions are intended to be relied upon in support of an application designed, to be made for a reversal of the conviction. Upon such an application, objections of a legal character can alone be considered. For that reason, the evidence at large is not required to be presented to the court, neither should it be, under the well-established rules of practice relating to this subject. All that is proper in such an instrument, is a concise statement of facts, presenting the points intended to be relied upon as ground of error, or simply so much of the evidence as may appear to be requisite for the same purpose. That is all that the rights of the defendant, or a proper administration of the laws, can possibly require. And what is added beyond that, only tends to embarrass and confuse the points to be presented, by withdrawing or diverting the attention of the court from their consideration. It is a mistake to suppose that the excess can do no harm, when its separation from what may be really important for the decision of the case, requires the consumption of time that ought to be bestowed upon the substantial points in controversy. Cases are frequently, as well as needlessly, made so exceedingly voluminous, as to render the duty of sifting out the important from the unimportant matters contained in them, one of a laborious and exhausting character. This is not only unnecessarily expensive to the parties, but, beyond that, injurious to their interests, as well as unjust and burdensome to the courts required to examine them. In order to avoid sanctioning such improprieties in practice, it becomes necessary, whenever an application of this nature is made, to examine the matters proposed to be added to the bill, for the purpose of determining whether they actually transpired, and, if they did, whether they are proper and appropriate for the support of any legal points arising upon the trial. It is not intended to be affirmed, that the court can enter upon the solution of the inquiry, whether a particular occurrence transpired. upon the trial, which the presiding justice may have rejected as forming no part of the proceeding, for that is necessarily within the province of the justice settling the case or bill. He must decide, from the evidence before him, whether disputed evidence was given, or contested exceptions were taken. And for that purpose, he may hear and consider the affidavits of the parties and their counsel, inspect their notes as well as his own, and consult his own recollection, as well as other accessible means of information, for the purpose of settling the controversy between the parties-concerning what may have actually taken place. Beyond that, it does not seem practicable to extend the investigation, otherwise there would be danger of protracting the litigation indefinitely, resulting from a single controversy; for if the fact could be tried by way of mandamus, when disputed, whether a particular exception was taken, or certain evidence was given,during the progress of a trial had in a court of record, it could only be done under the Constitution and statutes of the State, as other disputed facts are tried, and that is by jury. That would afford an opportunity for the extension of litigation, that has never yet been sanctioned. A persistent adversary, aided by ingenious and persevering counsel, might, in that way, prevent parties from ever reaching the final end of a legal controversy; for," if such a proceeding could be taken to ascertain what occurred upon the first trial, the same thing might be done as to the second, or any succeeding trial, until the proceeding might be rendered endless in its character. The peace of the community, as well as the interests of the parties, requires that no such device as that, for the prolongation of litigation, should be allowed or tolerated. A remedy like that, would prove more disastrous than any of the misapprehensions or mistakes, it could be used to correct; and it would be liable to involve the judges of courts of record in legal controversies, concerning their own judicial duties, on the application of disappointed or malignant suitors, to such an extent as seriously to impair, if not altogether destroy, their usefulness. It has no sanction from authority. But, beyond that, it is in direct conflict with the conclusion maintained by well-considered, as well as long-sustained expositions of the law exempting judges o£ courts of record from actions against them on account of their judicial action. In Garnett v. Ferramd, Lord Tenterden declared it to be “ a general rule, of very great antiquity, that no action will lie against a judge of record for any matter done by him in the exercise of his judicial functions.” And “ this freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public and for the advancement of justice, that, being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.” The same principle was just as broadly asserted by Chief Justice De Grey, in Miller v. Scare, and by Chief Justice Kent, in Yates v. Lansing.

What transpired upon the trial, must, therefore, be ascertained from what the justice presiding, finds to be the truth. His determination, after hearing the parties, is judicial, and must be conclusive upon the court, in the disposition of an application like the present one. It cannot be required to enter upon the investigation of a disputed question of fact, but simply to ascertain what are the undisputed or conceded facts, and, after determining them, to conclude whether the bill of exceptions should properly contain a statement of them, and, in doing so, this court can neither enlarge nor restrict them ; its simple office is to decide whether any point, presented by the party making the bill, requires them to be embodied in it, for its proper consideration and decision.

The most important respect, in which the bill of exceptions in the present case is claimed to be defective, relates to the charge of the learned justice to the jury. A very large number of written propositions were presented at the conclusion of the evidence, which the court was asked by the defendant’s counsel, to instruct the jury to be the law. In many of these, the court differed from the defendant’s counsel, in the charge which was given to the jury. And as that was concluded, and the jury was about to retire for the purpose of entering upon their deliberations, the defendant’s counsel stated that they excepted, for the defendant, to each refusal, modification or departure, which had been made in the charge from the propositions submitted. This was the substance of the action of the defendant’s counsel upon this subject, though not perhaps expressed in the terms employed by them. Ho attempt was made to except to particular propositions contained in the charge, and relied upon as erroneous, as is usually done upon such occasions. ¡Neither was it pointed out, in what respect, or to what- extent, the court had refused to charge the defendant’s propositions, or where they had been modified or departed from. To determine where that was the case, would, in many instances, undoubtedly, prove an exceedingly difficult matter, for what one person would consider to be a modification or departure, would be regarded by others as presenting no shade, even, of difference.

The defendant’s counsel, in making their proposed bill of exceptions, have added a specific exception to what they deem refusals, modifications or departures, regarding their propositions. But whether they are correct in these positions or not, this court has no means from which it can determine. It is certain, however, from, the papers presented in support of this application, that the specific exceptions, as they are now proposed to be added, were not taken by the defendant’s counsel upon the trial. And that would be reason enough for excluding them from the bill. Indeed, very great injustice to the public interests might be done by adopting any other course; for, if specific exceptions are now allowed to be stated, to whatever may be claimed to be refusals, modifications or departures in the charge, points may be presented upon the argument of the cause, which might have been explained, changed or altogether withdrawn, if they had been at the time brought to the attention of the court. One object of requiring the proposition excepted to, to be stated at the trial and in the presence of the jury, is to afford an opportunity for such corrections. If the correction is refused, then a distinct subject of exception is at once presented, concerning which, misunderstanding will be rarely found to exist. But no such opportunity is afforded by so general an' exception as was taken upon the trial of this defendant. It could hardly be otherwise, than that differences of opinion would exist concerning its subdivision.

In the settlement of the bill of exceptions, the court has disallowed the distribution proposed to be made of the exceptions; and this court has no reason for holding that there is anything improper in that conclusion. The exception has been allowed, just as it was presented at the close of the trial. This court cannot render it any more specific, without requiring the learned justice to insert in the bill, what it is not even claimed really transpired. If it did so, it would require it to contain what was not true, so far as this general exception would, by such a ruling, be changed into a multitude of specific exceptions, presenting as many distinct and separate propositions, many of which would probably have been explained or > changed, if attention had been directed to them before the jury retired. The exception taken to what was said concerning the McBride Davidson bill, which was stricken out of the charge, appeal’s to have been allowed to remain in the case, in another place. That is entirely sufficient for the purposes of the case. One statement of it is just as effectual as though it were repeated on every page. The justice was entirely right in limiting the exception to a single statement of it. He could do no less than that under the rule adopted by the court. That provides that “ Exceptions shall only contain so much of the evidence as may be necessary to present the questions of law upon which the same were taken on the trial, and it shall be the duty of the justice, upon settlement, to strike out all the evidence and other matters which shall not have been necessarily inserted.”

The principle established by the decisions of the courts, is equally explicit. They hold that it is not only unnecessary but inconvenient to load a bill of exceptions with extraneous matters. Everything is so, beyond what may be essential to present the naked point of law which is the true office of a bill of exceptions.”

Reasons assigned by the justice presiding at the trial, for some of the decisions made, were excluded from the bill at the time of the settlement. And that is relied upon as improper, by way of supporting the present application. But, as they formed no part of the proposition decided, there was no impropriety in rejecting them. Legal points, arising during the trial of either a civil or criminal case, are reviewed upon the facts, or the evidence presenting them, and the exceptions by which they are reserved. And the reasons leading to them, are altogether unimportant for that purpose. If the decision be right, it will not be disturbed because Unsound reasons may have produced it; neither will it be sustained when wrong, even though the best of reasons may have been given for making it. Ho harm was done the defendant, by rejecting these, reasons, as long as judgments are not reversed for error, only shown in the opinion of the court.

Two jurors, Owen 0. Owens and James W. Hay, were called, and, after béing examined, rejected as not impartial; and certain exceptions taken to decisions concerning them, it is claimed, should have been retained in the bill. The first juror was challenged for principal cause by the defendant’s counsel. After an extended examination, it was found to be unsustained, and for that reason overruled. To the decision overruling it, the defendant’s counsel . excepted. He was then ■ challenged to the favor by the same counsel, and after a further examination, had for the purpose of sustaining it, that challenge was withdrawn. The prosecution then renewed the challenge for principal cause, which, after a further examination of the juror, was overruled. Then the same juror was challenged to the favor by the prosecution. And, in support of the challenge, it was made to appear that he was on friendly and familiar relations with Miller, who appeared to be a friend of the defendant. The court found this challenge sustained, and then rejected the juror because he was supposed to be biased in favor of the defendant; and the defendant’s counsel excepted to the decision. This decision, upon which the juror was rejected, rendered those previously made concerning him, entirely unimportant. It became immaterial whether the decisions, made upon the other challenges, were correct or erroneous. If the rights of the defendant were in any respect prejudiced by the disposition made of this juror, the wrong was exclusively done by the last decision, which was dependent upon nothing but the evidence given in the support of the last challenge made by the prosecution That evidence, decision and exception, were allowed to remain in the bill, while the evidence, decisions and exception on the preceding challenges, were excluded from it. This was certainly right; because all that was done concerning the juror, prior to the last challenge to the favor, became inoperative and without the least effect, by his final rejection on that challenge. If the preceding proceedings, concerning the juror,- had remained in the bill, no advantage whatever could have been derived from them by the defendant. For that reason, it was the duty of the justice to reject them, as he did, under the rule and authorities already mentioned.

The other juror, Hay, was first challenged for principal cause, on the part of the defendant, and the challenge withdrawn after an examination of the juror. It was then renewed by the prosecution, and, after a further examination of the juror, overruled by the court. So far, nothing transpired concerning this juror which the defendant could reasonably claim, should become a portion of his bill. For his challenge had been voluntarily withdrawn, and as the decision made by the court was in favor of the juror’s competency, and against the prosecution, the defendant’s counsel did not, and properly could not, except to it. But after that decision was made, the same juror was challenged to the favor by the prosecution. And after an examination made of the juror, in support of that challenge, it appeared that he probably enter-1 tained an opinion on the subject of the defendant’s guilt oi'\ innocence, and for that reason he was held incompetent, as not j being impartial, by the court. The challenge to the favor was, in other words, found to be sustained, and the defendant’s counsel excepted to that decision. The proceedings and decisions upon this challenge, were excluded from the case, and properly so, too, because the point which could be made upon them, if the decision was erroneous, is more clearly presented by the decision rejecting the preceding juror. The evidence concerning the partiality of this juror, was much more decided and cogent than that given, from which it was held that Owens was incompetent. For that reason, if the defendant’s exception can be maintained, as to the decision rejecting either one of these two jurors, that is more likely to be the case as to Owens, than as to Hay. If the exception taken to the decision rejecting Owens, cannot be sustained, then it is very clear that the exception taken as to Hay’s rejection, must fail, for much the strongest case was made against his impartiality. Ho injustice can possibly result, therefore, from the exclusion of the proceedings and evidence on which Hay was rejected; no good reason existed for retaining them in the bill, as long as the point involved in them, was retained and presented in a much more favorable shape for the defendant, by what transpired under the challenge on which the other juror was set aside. An exception is never strengthened by its repetition upon the same substantial state of facts. A single statement of it, is as effectual as any number of repetitions, by any possibility, can be. As the last exception could not possibly aid the defendant’s case, it was the duty of the justice to strike it out of the bill, with all the evidence relating to the ■ decision to which it was taken. It was so much useless material, having no other effect than to incumber the bill, as long as the same point, designed to be presented by it, had been preserved by the preceding exception. This substantially disposes of .the positions, taken in support of the defendant’s application against the learned justice before whom he was tried, and as none of them are found capable of being lawfully maintained, it follows that the motion for a mandamus must be denied.

Westbrook, J. :

Fully concurring in the opinions expressed, and conclusions reached by my associates, I desire to add a word upon one or two questions presented by this application.

It is conceded that the counsel for Mr. Tweed did not, upon the trial, call the attention.of the court to the portions of the charge to which they desired to except, but contented themselves with taking one general exception to each and every point of the charge which was inconsistent with, or contrary to, all, or any of the requests to charge. Under the exception thus taken, they claim the right to pick out such portion of the charge as they deem to be covered by the general exception, and present a specific exception to each. Should this application be granted, the bill of exceptions would not be true. It would then show separate and specific exceptions to various portions of the charge, when none were in fact taken in that form, and when it is conceded that only a single exception was taken, in fact, though intended by its language to cover several parts thereof.

As the office of the bill of exceptions, is to present the exceptions taken, and no other or different, I do not see how the present motion can be granted, without a departure from a fundamental rule. If, as is claimed by the counsel for Mr. Tweed, the exception, in the form it was taken, is unreasonable, I do not see how it is in the power of this court to relieve them, without a substitu" tion of exceptions, never taken upon the trial, for the ones actually presented. This would be so clear a departure from precedent and from truth, as to be unwarrantable. Again, if the exception, in the form it was taken, be available, it ought not to be within the power of the court, before which the cause was tried, nor of this court, to limit the effect of the exception, by selecting the portions of the charge to which it is applicable. The court of review should be allowed to determine the scope and effect of the exception presented, without being limited and controlled in its judgment, by the decision of any subordinate tribunal.

In regard to the proceedings had upon the rejection of the jurors, Owens and Hay, it may not be improper to say, that, in my judgment, there would have been no error, if everything in regard to those challenges, had been omitted. Both of these jurors were found to be incompetent, and so long as the defendant was tried by twelve others, who were competent, we do not see that the rejection of these two, conceding their competency, could have in any way prejudiced him. A different question would be presented if an incompetent juror had been pronounced competent. In that event, it could readily be seen that the rights of the defendant to a trial by an impartial jury, had been infringed, but when twelve unbiased men have rendered a verdict, it is impossible to say that the exclusion of others, equally competent, but no more so, has produced any injury. This point was expressly adjudged in the third department, in the case of Burk and others, plaintiffs in error, against The People, defendants in error; and in the opinion of Potter, J., delivered in that case upon this point, I fully concur.

Brady, <3".:

The rule established by the cases upon applications, kindred to this, is, that a mandamus will be ordered commanding a judge to sign a bill of exceptions, but not to settle it in a particular manner, when there is a dispute as to the incidents of the trial. The justice who presided, must' say whether or not an exception was taken, and his return is controlling, at least until further proceedings. If the return is alleged to be false, the suggested remedy is by action; but whether such a remedy in fact exists, quere.

In England, according to Tidd (supra), if alternative writ contains the surmise of an exception taken and overruled, the command is to sign the bill quod si ita est (if it be so), but if the judge returns quod non ita est (it is not so), an action lies at the instance of the aggrieved party. If he establish the falsity of the return, he recovers damages, and the - peremptory mandamus goes forth, because the jury have declared that the exception was taken.

In this State, in one case, it was said that a' referee would be compelled by mandamus to settle a case, and settle it correctly; but the writ was not issued, owing to some informality in the proceedings. The decision was made at a Special Term, and is predicated of the cases in 1 Caines, 6 John, and 5 Wend, (supra), but an examination of these cases shows that the proposition asserted is not warranted by them, and the case stands alone. I have not found any case, in which it has been declared that a mandamus would be issued against a judge, commanding him to settle a bill of exceptions in a particular manner, when, as to the manner, there was a dispute. There were no authorities to that effect cited on the argument. In this matter, there is a dispute as to the correctness of the bill as passed upon by the presiding justice, in reference to exceptions, and he certifies that it is correct, although, having directed it to be engrossed, it has not yet been presented for his signature.

There seems to be a concession that an exception was taken to the exclusion of the juror, Hays, upon a challenge to the favor, but the presiding justice, certifies that he was excluded for mental incompetency, and it. was so understood. Upon a careful examination, not only of the authorities but of the application, I have arrived at the conclusion, for the reasons assigned, and those presented by Justices Daniels and Westbrook, that the mandamus asked for, should not be granted.

Mandamus denied.

       2 Revised Statutes (Edmond’s ed.), 608, §§ 55, 56.

       6 Barn. & Cress., 611.

       6 Barn. & Cress., 625.

       2 Black., 1145.

         5 John., 282; Weaver v. Devendorf, 3 Denio, 117; Vose v. Willard, 47 Barb., 320.

       Rule 43 of Supreme Court.

       Ex parte Jones, 8 Cowen, 123; Denison v. Seymour, 5 Wend., 103; Price v. Powell, 3 Com., 322.

       Laning v. N. Y. Central R. R. Co., 49 N. Y., 522.

       Freeman v. People, 4 Denio, 10.

       People v. Judges of Washington, 1 Caines, 511; People v. Judgel of Westchester, 2 John. Cases, 118; Fish v. Weatherwax, 2 John. Cases, 215; Sikes v. Ransom, 6 John. Rep., 379; People v. Sessions Wayne Co., 15 How., 393; Tidd’s Pr., 703; Delavan v. Boardman, 5 Wend., 133.

       See Weaver v. Devendorf, 3 Denio, 120.

       The People v. Baker, 35 Barb. 105.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    GRANDISON F. READ, Respondent, v. DUBOIS SMITH, Appellant.

      Memoranda—evidence—p’esumption.

    Plaintiff testified from an account-book, as to money advanced to, and paid for, the use of defendant. The defendant offered in evidence the remaining portion of the book, from which plaintiff had testified. On objection by plaintiff, the referee ruled to allow the book in evidence, so far as related to any transactions between plaintiff and defendant. The defendant excepted and moved to strike out the testimony of the items, mentioned in the book referred to, unless the book should be put in evidence by the plaintiff. The motion was denied, on the ground that the book was in evidence as to the entries of transactions between plaintiff and defendant. The defendant again excepted. Held, that when defendant offered one portion in evidence, it was error to admit another portion, which he did not offer.
    Where plaintiff testified from an account-book as to moneys advanced to defendant, and such portions of the account-book as contained entries showing such advances, were in evidence, held,, that the referee erred in refusing to allow defendant to test the accuracy of the entries proved, by showing, by other entries in the book, that they were not made at the dates claimed, and for this purpose, showing that they were not chronological in order with other entries, or had been interpolated amongst other entries.
    On the trial of an issue involving the question whether money loaned had been repaid, held, that it was error to exclude evidence, showing that subsequent to the loans in question, other money had been loaned and repaid between the same parties; as such evidence might raise a presumption that the older claims had also been paid.
    Appeal from a judgment entered on the report of a referee.

      John H Strahan, for the respondent.

      M. Huntley, for the appellant.
   Davis, P. J.:

This action was brought to recover various sums of money, alleged to have been loaned by plaintiff to defendant, and paid to his use, at different times between the 11th of October, 1865, and the 22d day of December, 1866. The plaintiff testified to the various loans and payments set out in his bill of particulars, and that he made a memorandum at the time he made each loan; that he. had the memorandum still, and from it, had given his testimony. The plaintiff did not put the memorandum in evidence.

On cross-examination, it appeared that the memoranda, referred to by plaintiff, were contained in a book called, “ private petty cash.” He was examined quite closely as to the entries in the book, of the several loans, and, amongst other things, testified that the entries were, in the main, made by him on the several days of the alleged loans; that he recollected, on one or two occasions, he put the loans on slips of paper, and a few days after, put them in the book. The defendant offered “ the remaining portion of the book, from which plaintiff has testified, in evidence.” This was objected to by plaintiff, and the referee ruled to allow the book in evidence, so far as relates to any transactions between the plaintiff and defendant. The defendant excepted, and moved to strike out. the testimony of the items mentioned in the book referred to, unless the book be put in evidence on the part of plaintiff. The motion was denied, on the ground that the book was in evidence as to the entries of transactions between the plaintiff and defendant, and the defendant again excepted. It was certainly a pretty sharp ruling, when the defendant offered one portion in evidence, to admit another portion, which he did not offer, and which was not then in evidence. If the portion so admitted, is to be regarded as put in by defendant as evidence on his part, the ruling of the referee was erroneous, for it was clearly improper, when the defendant offered other matter contained in the book, to treat him as offering something else, and thereby affect his further right to investigate fully the correctness of the entries received. But the form of the offer seems to have assumed that the memoranda, referred to by plaintiff, were already in evidence, and the ruling of the referee will, perhaps, bear the construction that he intended simply to define how far he would receive the book as evidence on plaintiff’s part, and to reject the residue. The book being thus far in evidence, the defendant proceeded to examine plaintiff in relation to entries in the same book, just preceding and following the memoranda of loans. The first entry of cash loaned was, Oct. 11th, 1865.” The plaintiff was asked to look at the book and the three entiles next succeeding that entry, and state the same fully. This was objected to by plaintiff, and the objection sustained, on the ground that the entries referred to, do not apply to transactions between the parties.

The defendant’s counsel then offered in evidence portions of the book, commencing with the entry of October lltli, 1865. The objection was sustained. He then put to plaintiff the following question: What are the two entries in your book immediately preceding and following the entry of October lltli, 1865 ?” This question was objected to, the plaintiff saying, in answer to a question of the referee, that those entries did not have any application, or refer to the transactions between him and defendant. The referee sustained the objection, and. defendant excepted. The defendant’s counsel then asked the witness to describe the portion in the book of the entry of October 11, 1865, and state what entry immediately follows it. This also was excluded on the same ground; and divers similar questions, touching other entries of charges against defendant, and the character and" dates of the entries preceding and following them, were likewise overruled.

The referee was altogether too rigid in his rulings. After admitting the entries of loans, as contained in plaintiff’s books, as evidence, either against defendant or to corroborate plaintiff’s statements, he should have allowed the defendant to test the accuracy of the entries, by showing, if he could, that they were not, in fact, made at the date claimed. One mode of doing this, was to show that they were not chronological in order with other entries in the book, or had been interpolated amongst such entries, or bore, on their face, when compared with other immediately connected entries, some suspicions of unfairness or bad faith. The defendant claimed that some of the loans had never been made, and that others had been paid, and he was entitled, in any legitimate mode, to impugn the statements of plaintiff, and the contents of his book. I think the referee erred in excluding a very proper line of investigation and scrutiny.

There were several other exceptions to the exclusions of questions, which are open to criticism, but one of which will be commented upon. The claim of plaintiff, it will be remembered, was for moneys loaned and moneys paid in 1865 and 1866, and which the defendant testified had been fully paid. He also testified that in 1867 and 1868, the plaintiff loaned him moneys, and made advances on his account, to about the amount mentioned in the complaint. He was then asked: Were such amounts so loaned or advanced repaid by you to the plaintiff?” This was objected to, and the objection sustained, and defendant excepted.

He was then asked: “ Did the plaintiff give you receipts for the same ? ” This also was objected to and excluded, and defendant excepted.

It is to be borne in mind that defendant had testified that all the loans and advances, of 1865 and 1866, had been paid, and, on this question, was in direct conflict with plaintiff. To show that similar loans and advances had been made in 1867 and 1868, and that they had been paid, and that plaintiff held receipts for them, would raise a presumption, of greater or less force, that the older claims had also been paid. The defendant was entitled to the benefit of that presumption, so far as it would go to strengthen his testimony and the facts which he sought to show; and the receipts, if proved, were proper subjects of consideration by the referee, in balancing the probabilities as to the truth or falsity of their respective statements. It was error to exclude such evidence.

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

Daniels and Lawrence, JJ., concurred.

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


text:
    JAMES S. WATSON, Respondent, v. ELIZABETH W. WATSON, Appellant.

      Divorce—judgment—motion to set aside after death of plaintiff.

    Where a judgment for divorce has been obtained by the plaintiff against the defendant, and the plaintiff has subsequently died; held, that a motion, made upon papers served upon his administrator, to set aside the judgment for fraud and irregularity, was properly denied.
    Appeal from an order at Special Term, denying a motion made by defendant to set aside a judgment of divorce. On the 3d of September, 1863, the plaintiff obtained a judgment of divorce against the defendant. The plaintiff died in June, 1872, intestate, and on the 31st of January, 1873, letters of administration were granted to Frederick A. Watson. In Hay, 1873, the defendant made a motion against the said administrator, to set aside the judgment on the ground of fraud, irregularity, etc. The motion was denied, and the defendant appealed.

      Ira Shafer, for the appellant.

      J. M. Smith, for the respondent.
   Davis, P. J.:

This is an appeal from an order of the court at Special Term, denying the motion of defendant to set aside a judgment of divorce, entered September 3d, 1863. The plaintiff, who obtained the divorce, died in the fall of 1872, intestate, and the motion is now made, upon service of papers upon his administrator. The grounds are fraud and irregularity. If the facts stated in the moving papers are true, there certainly ought to be some relief for the defendant; but the question before us is whether that relief can be obtained on motion, and on notice simply to the administrator of the estate. We think it cannot. No authority is cited for such practice. The administrator has no power to consent to setting aside the judgment. He has no control or authority over it. There is no pecuniary recovery to be enforced by him. The decree simply dissolves the marriage relation and disposes of the custody of the children, both which are questions in which the administrator, as such, has no legal interest whatever. It is said that he is interested in the question whether the defendant is entitled, as widow, to a distributory share of the estate, or is cut off therefrom by the judgment of divorce; but in that question, as administrator, he has no legal interest.. The distribution, alter payment of debts, is made by decree of the surrogate, and the representatives cannot properly be said to have any legal interest, whether the decree shall award the whole to the children of the intestate, or distribute a portion to defendant. We cannot avoid the conclusion that the motion was properly denied. An action, in the nature of a bill of revivor, bringing before the court all the heirs-at-law, and other persons interested in the real estate left by the decedent, and such persons as may have taken conveyance thereof subsequent to the decree, as well as his representatives, seems to us the only mode in which the relief sought can properly be obtained.

The order must be affirmed.

Daniels and Westbrook, JJ., concurred.

Order affirmed.


author: Daniels, J.:

text:
    SHEPPARD KNAPP and another, Executors, etc, Respondents, v. THE TOWN OF NEWTOWN, Appellant.

      Statutes — constitutionality of— cha/pter 483 of 1869 — town bonds — Constitution, Art. 1, § 7.
    The legislature has power to require a town to pay bonds issued for a local improvement, though the statute under which they were issued is unconstitutional.
    Appeal from a judgment for plaintiff, entered on a verdict ordered by the court.

      luden Birclseye, for the appellant.

      Robert Sewell, for the respondent.
   Daniels, J.:

By an act of the Legislature of this State, enacted in 1868, three persons were named commissioners, to locate, lay out and construct a highway from Long Island City to Blissville, in the town of Newtown. And it was provided that they should assess the compensation of the owners and occupants of land, over which the highway should be laid out and constructed, for the land used in its construction. It also provided that they should assess one-half the expense of the improvement, upon the real and personal property of the adjoining owners benefited by it, and the other half, upon the taxable real and personal property of the town.

The town now claims the act to have been unconstitutionally enacted, chiefly for the reason that it provided that the compensation to the landowners, should be determined by the commissioners named in it, instead of being done by a jury, or by commissioners appointed by a court of record, as the Constitution has provided that it shall be done, and the town is probably correct in the position it has taken on this subject.

But notwithstanding that objection to the validity of the law, the commissioners provided for by it, did proceed under it and procure the land required for the highway mentioned in it, and laid out and constructed it. And they do not appear to have encountered the least resistance or objection to their doing so, either from the owners and occupants of the lands appropriated, or the taxpayers, who, by the terms of that act, were to pay for the land and the expenses of the improvement.

By the act and the proceedings under it, the highway was laid out and constructed just the same as it would have been, if no objection could be' taken to the constitutionality of the law. The public derived all the benefit from its provisions that could have been secured from them, if they had provided that the landowners’ compensation should be assessed by a jury, or by commissioners appointed by a court of record. And the moral obligation to pay for it, was just as complete as it would be, if the requirements of the Constitution upon this subject, had been carefully and scrupulously observed.

For that reason, it was within the power, and it was clearly the duty of the legislature, to provide for the payment of the debts incurred in making the improvement, as it was made in conformity to an invalid act previously enacted by its authority. And that was done by the act of 1869. That was enacted in conformity with all the requirements of the Constitution,- and none of its provisions are in conflict with that instrument in any respect. By the act, the bonds in suit were provided for, as a means of raising the necessary funds, to pay the expenses of making the improvement. And they were issued by the persons, and in the form prescribed by its terms. This act was clearly within the powers of the legislature.

And as long as the town has accepted and acted under the authority it conferred, by issuing the bonds allowed by it, and receiving their proceeds, it cannot now gainsay its liability to fulfill its own part of the obligation created by them.

It was an act passed to relieve the town from what was, at least, a moral duty; that of providing for the payment of the expenses of the improvement, made within its bounds, by immediate taxation. That was allowed to be deferred, and the money in the meantime raised by a loan on the bonds of the town; and, as the privilege was accepted, the burthen, which was its price, must now be borne as its consequence. This act proceeded farther, and confirmed the assessment made by the commissioners, by providing that the bonds should be redeemed with the moneys collected from the assessment then laid by them.

The obligation of the defendant to pay the debt, was further recognized and confirmed by chapter 187, of the Laws of 1871. For, by section 6 of that act, it was provided that all debts, obligations and liabilities of the town, then existing, or which had been authorized or directed by any existing act, should be charged in certain proportions upon the town and Long Island City. And by section 2, of chapter 793, of the Laws of 1872, the supervisor of the town was authorized to issue bonds to raise money for the payment of all such debts, obligations and liabilities. The bonds in suit were clearly within these provisions, for they had been, within their terms, authorized by an existing act of the legislature.

There can be no room to doubt that the bonds were authorized by an act of the legislature, entirely valid and effectual in its provisions, and the debt created by them has been since sanctioned, on two different occasions, by other acts equally within the authority of that body. It was insisted, upon the argument, that these bonds should have contained the provision, or condition that they were to be redeemed with the moneys collected under the assessment laid by the commissioners; but that objection cannot be maintained, because the statute prescribed just what their form should be; and, by that provision, they were to be made payable in not more than five years from the date of their issue, with interest at the rate of seven per cent, payable semi-annually.

The bonds were made in that form, and are strictly within the terms of the act, in the obligation they created. The provision made for their redemption by the terms of the act, out of the assessment then laid by the commissioners, was to afford the town the means and source of payment merely, and not to impose a condition on the obligations themselves; and even that was afterward enlarged by the acts of 1871 and 1872, rendering them chargeable, in certain designated proportions, on the town and Long Island City, and conferring upon the town, authority to raise money for their partial payment, in common with its other debts, obligations and liabilities. The defendant offered to prove that the expenses of constructing the road, had been fraudulently increased by the misconduct of those who were engaged in making the improvement ; but, as it was not proposed to show that the persons who advanced their money upon the bonds, were, in any way, parties to the fraud, the proof was properly rejected.

It was the wrong of other parties, with whom they were in no sense connected, and over whose acts they had no control whatsoever ; and by no just principle, could they be made responsible for the consequences of the fraud. The parties who committed it, should be, themselves, made the subject of prosecution and punish ment. Its results cannot be imposed upon innocent persons, who purchased the bonds of the town, without- notice of the fraud by which the debt had been improperly enhanced, and advanced their money for them under the belief, warranted by the statute and the act of the town authorities, that they were, in all respects, valid obligations, as upon their face they appeared to be.

It is also claimed that, as the testator purchased the bonds for the price of ninety cents on the dollar, the judgment for their full amount was erroneously directed, because the act -of 1869 provided that they should not be sold for less than their par value; but that objection cannot be maintained, because it appears that they were issued to other persons, who sold them to the testator at a discount of ten per cent. What they paid for them was not made to appear. . And, without evidence on that subject, it cannot be assumed that they bought them at a less price than the statute permitted them to be sold for.

The judgment recovered, seems to have been entirely warranted by the facts, and it should, therefore, be affirmed, with costs.

Davis, P. J., concurred.

Judgment affirmed.

       Laws of 1868, vol. 2, chap. 531, §§ 1-3.

       House v. City of Rochester, 15 Barb., 517 ; Clark v. City of Utica, 18 id., 451; People v. Haines, 49 N. Y., 587.

       Vol. 1, Laws of 1869,1134, §1.

       Town of Guilford v. Chenango County, 3 Kernan, 143; People v. Flagg, 46 N. Y., 401.

       Chapter 483, Laws of 1869, § 1.


author: Brady, J.:

text:
    In the Matter of the Certiorari sued out by GEORGE COYLE v. THOMAS D. SHERWOOD and others.

      Title to office-—cannot be inquired into upon certvn'añ—chanter 538 of 1873.
    Upon the application of the relator, a writ of certiorari was issued to review his conviction for assault and battery in the Court of Special Sessions, in the city of Mew York, on the ground that the -respondents, who, acting as police justices, constituted the said court, had no lawful authority to hold the same, the act under which they were appointed being unconstitutional. Held, that the police justices, if not such de jure, were such defacto with color of title, and that their acts must be obeyed and respected, until judgment of .ouster be pronounced, against them. Having apparent authority to act, and having rendered judgment between the prisoner and the people, neither can, in this collateral way, call in question the title of the judges.
    Chapter 538 of the Laws of 1873, entitled “ An act to secure better administration in the Police Courts of the city of Mew York,” is constitutional.

      Certiorari to review the conviction of the relator, in the court ol Special Sessions, for assault and battery.
    The respondents were, on the 25th of October, 1873, appointed, on nomination by the mayor and confirmation by the board of aldermen, police justices of the city of New York, in pursuance of chapter 538 of the Laws of 1873, and duly qualified as such. On the 14th of February, 1874, the relator was convicted, before them, of assault and battery. The counsel for the prisoner claimed that the court had no jurisdiction, as the act under which the justices were appointed was unconstitutional.

      Albert Cardoso and William F. Howe, for the relator.

      Benj. K. Phelps, district attorney, for the respondents.
   Brady, J.:

The answer which may properly be made to the points presented on behalf of the relator, is, that the police justices, if not such de jure, are such de facto, with color of title, and their acts must be obeyed and respected until judgment of ouster is pronounced against them. Having apparent authority to act, and having rendered judgment between the prisoner and the people, neither can, in this collateral way, call in question the title of the judges.

No principle is better settled, than that the acts of such persons are valid when they concern the public. Justice Bronson said further: “ It would be impossible to maintain the supremacy of the laws, if individuals were at liberty, in this collateral manner, to question the authority of those who, in fact, hold public offices.” If the objection were, that, assuming the validity of the tribunal whose acts are questioned, the subject-matter was not within its jurisdiction, the question would be one doubtless for consideration. Such is not the case herein. If, however, the relator were right in presenting his objections in the manner adopted, he is nevertheless not entitled to the relief he demands. The points which are urged by him for our consideration, affecting the title of the justices who presided at the Special Sessions, and to the organization of the court in which they sat and pronounced judgment, have recently been under consideration, in the Court of Common Pleas of this county, in'an action in the nature of quo warranto, and have been decided adversely to him, by.an exhaustive and elaborate opinion delivered by Chief Justice Daly.

In the conclusion arrived at in that court, we concur. We think the writ should therefore be dismissed.

Daniels and Westbrook, JJ., concurred.

Writ dismissed.

       The People v. White, 24 Wend., 525; Nelson v. The People, 23 N. Y. Rep., 293.

       The People ex rel. Edward Hogan v. B. F. Morgan.

       See 5th Daly.


text:
    FRANCIS BASSETT, Jr., Appellant, v. SAMUEL M. LEDERER, Respondent.

      Sale of goods by one ha/dng no title — when title of true owner divested by—liability of purchaser of—custom — requisites of—new matter constituting defense— must be set up in the answer.

    A broker applied to the plaintiff to purchase certain goods, claiming to act for the defendant. Plaintiff agreed to sell them, gave an invoice of them to the broker, and delivered the goods, by his own carman, at the defendant’s store, the clerk receiving them giving a receipt, which stated that the goods were received from the plaintiff. The broker, having fraudulently induced the defendant to believe that the goods were his, received from him their full value; held, that the plaintiff had not invested the broker with any evidence of title, nor put it in his power to deceive the defendant and induce him to purchase the goods under the belief that they were the broker’s property, and that plaintiff could recover of the defendant the purchase-price of the goods.
    The person who received the goods and signed the receipt, testified that he did not notice that it stated that the goods were received from the plaintiff. Held, that it was negligence, on his part, not to have discovered that fact, and that the consequences of his negligence must be borne by the defendant.
    To render a custom or usage of trade valid and binding, it must be known, certain, uniform, reasonable, and not contrary to law.
    The defendant was permitted to introduce evidence, to show that the broker’s character was good, for honesty and fair dealing. Held, that this was error.

      The action was brought to recover the price of the goods sold. The answer consisted of a general denial. Held, that the defendant could not introduce evidence to prove that he had paid the broker for the goods.
    Appeal from a judgment recovered on a verdict, and from an order denying a motion for a new trial, made on the minutes of the judge presiding at the circuit.
    This action was brought to recover for the value of goods, sold and delivered to the defendant.
    A broker, named Westbrook, called upon plaintiff, at his place of business, and inquired for Cabot A muslin, saying he had a customer for some. At a subsequent interview, the broker gave defendant’s name as the name of his customer, and asked if Bassett would sell to him, at thirty days’ credit. Bassett agreed to do it, and the goods were delivered at defendant’s store, and a receipt for them was given to Bassett’s carman. An invoice of the goods was also made out and handed to Westbrook, to be delivered to Lederer.
    On the same day, Westbrook, who had in fact no authority to act for Lederer, made out an invoice of the goods in his own name, and collected the amount of the goods at a price he agreed upon with Lederer, and gave a receipt therefor, as for a sale made by himself, Lederer believing him to be the owner of the goods. Other facts are stated in the opinion.

      W. I. Butler, for the appellant.

      Boardmcm & Boardmcm, for the respondent.
   Daniels, J.:

As the plaintiff has appealed from both the judgment and the order denying his motion for a new trial, all the questions presented by the case, as well as the exceptions taken, are properly before the court. If upon any ground the plaintiff was improperly defeated in the action, a new trial must therefore be directed in his favor.

The action was brought to recover the price of goods, sold and delivered by the plaintiff to the defendant. The sale was made through the intervention of an agent, acting as a broker. The uncontroverted evidence given upon the trial, tends to show that the broker applied to the plaintiff for the purchase of the goods, representing that he had a customer who wanted them, and, finally, named the defendant as the person; that the plaintiff agreed to sell the goods to him, and he afterwards sent them to his store by a carman in the plaintiff’s employment, who delivered them there and took a receipt for them from the person there receiving them for the defendant. The person who signed the receipt, was in the habit of doing almost everything done in .the store, and receiving and receipting for goods. Under this description of his duties, which was given by himself, no difficulty can exist in the way of presuming that he was so far empowered to act for the defendant, as to be authorized to bind him by signing receipts for goods delivered at the store, in his behalf.. This was apparently his authority, from the nature and character of his employment; and persons transacting business at the store, had the right to presume that the fact, in that respect, corresponded with the existing indications of it.

This receipt contained the statement on its face that the goods received were from the plaintiff, and they were marked for the defendant. The person receiving the goods, and who signed the receipt for them, was the defendant’s brother. In his testimony, he stated that he did not notice that portion of the receipt which contained the statement that the goods were from the plaintiff. But even though he failed to do that, as the statement accompanied the goods, and was sent with them by the plaintiff for the purpose of showing the defendant, or the person in his employment receiving them in his behalf, that they were from the plaintiff, it was notice of the existence of the fact. And the circumstance " that the defendant’s clerk neglected to so far notice the contents of the receipt, as to discover the statement made on that subject, cannot be permitted to prejudice the plaintiff’s demand. He discharged his duty, so far as it concerned that act, by sending the notice with the goods, and causing it to be presented to the person receiving them for the defendant, at the time of their delivery. That was the natural, as well as ordinary, form which would be expected to be given to such an instrument, attending a transaction like that, which occurred when the goods were delivered. A receipt, merely stating that the- goods themselves were received, without any mention of the person sending them, would he of so incomplete and indefinite a nature, as to be of but little use in the transaction of mercantile, or even any other description of business. Such instruments might as well be omitted as preserved, so far as any real, permanent, practical benefit could be expected to be secured from them. The habits and course of business sanction the use of the form adopted, as evidence that the plaintiff delivered these goods to the defendant; and a moment’s reflection would have satisfied the person actually receiving them for him, that information of that fact would probably be found in it. He was negligent in not examining the receipt and discovering the fact. The consequences of that negligence, so far as they may prove important in this case, as he was the _ defendant’s servant, must be borne by him, and not by the plaintiff. By the acts which were performed, the notice was brought immediately under his observation, and he failed to discover it by, simply, inattention; and that, too, when the nature of the business and the purposes of the receipt, led directly to the conclusion that the name of the person, from whom the goods came, would be found in it, as a portion of its ordinary and appropriate contents. Other persons, in the transaction of their own business, may have often been equally careless, but, if the fact were so, it would form no protection for the defendant against the direct consequences of such an omission.

If a reasonable degree of attention had been given to the contents of the receipt, by the person who received the goods and signed it, the fact would have been at once discovered that they came from the plaintiff, and that would have suggested the probability that he, and not the broker, was the vendor in the sale made of them. That would have been enough to stimulate such an inquiry into the truth of the business, as, in the end, would have operated as a full protection against the broker’s fraudulent devices. Having such means at hand for the discovery of the truth, and neglecting to make use of them, is attended with the same legal results, as the knowledge which a proper investigation would have secured ; and that would have deprived the defendant of all pretense that he was a bona, fide purchaser of the goods from the broker as their vendor. The rule laid down by the chancellor, is, that whenever the purchaser has sufficient to put him on inquiry, he is in equity considered as having notice; and in such a case will not be deemed a bona fide purchaser.” And that principle, as one of general application, was maintained afterwards in Williamson v. Brown. And for that purpose, placing knowledge of the fact under the immediate observation of the defendant’s clerk, as it was, when the receipt was presented to him for his signature, as a portion of the transaction in which he was acting for his principal, was in legal effect the same, so far as the latter is concerned, as though he, himself, and not his agent, had acted in the business. There is no difference between personal and constructive notice, when the latter results from the transaction in which the agent is acting for his principal. That this receipt might reasonably have been supposed to contain a statement of the name of the person selling the goods, is shown by the evidence which the defendant himself gave as a witness in his own behalf; for he testified that receipts given on the delivery of goods, generally state from whom they come.

After the terms of the sale had been agreed upon between the plaintiff, and the broker, acting, as0 it was supposed by the former, for the defendant, he delivered an invoice to the broker, stating their sale by the plaintiff to the defendant, and the goods, themselves, with the receipt to be taken, to his own carman, to be delivered to the defendant. Nothing whatever was delivered to the broker by the plaintiff, showing him to have any interest in, or right of disposition over, the goods. He did not put it in the broker’s power to deceive the defendant, and induce him to purchase the goods under the belief that they were the broker’s property. On the contrary, he took every reasonable precaution to avoid the possibility of deception in that respect; for he withheld the possession from the broker, sent them to the purchaser by his own agent, with a receipt to be taken showing the source from which they came. He could have, reasonably, been expected to have done nothing more, unless it might be, to have sent the invoice by the same hand that carried the receipt. And the omission to do that cannot change his rights, because it did not supply the broker with any indication of title to the property in himself. Under these circumstances, the broker was invested with nothing by the plaintiff' indicating him to be the owner of the goods. And, consequently, he had no evidences of title, on which the defendant could rely to the plaintiff’s prejudice. He was in no condition to sell the property as his own, and transfer the title to it as such. Such a sale could divest none of the plaintiff’s rights in the property, or its price. These cases maintain the rule, so often asserted in the books, that the lawful owner cannot be deprived of his property, by the act of a person wrongfully making sale of it, where he has done nothing that can properly lead the purchaser into the belief that the person he may deal with, has the right to transfer its title.

The only authority which the plaintiff gave to the broker, over the goods, was the right to sell them as a broker. And it appears, from the defendant’s own statement as a witness, that he knew Westbrook as a broker and merchant generally. He should have inferred, from the circumstance that he came to make the sale without having possession of the property he proposed to sell, that he was then acting as a broker and not as a merchant. That was the mode in which brokers ordinarily made sales, and it was sufficient to charge the defendant with knowledge that he was then apparently proposing a sale in that capacity. The fact that he represented himself to be the actual owner, cannot protect the defendant, as long as the plaintiff had conferred upon him no color-able authority, to make such a representation. And the case in favor of the plaintiff, can be in no way changed by the circumstance that the broker artfully contrived to be present when the cartman unloaded the goods, and then professed to have made the delivery of them himself. As long as the plaintiff did not empower him to deceive the defendant by his professions and artifices, he cannot be rendered responsible for their consequences. He simply authorized the broker to sell in that capacity, and as he was known to the defendant to be a broker, and had, in reality, no possession of the property he offered for sale, the purchase must be held to have been made in that and no other way. So far, the plaintiff was bound by his acts, and no farther. And as the defendant secured a title to the goods through his interposition in that capacity, the transfer was attended with the ordinary results , of purchases made in that way. Though professing to act for himself, he really acted for the plaintiff, under such circumstances as rendered the sale which was made, the sale of the plaintiff, through ' Westbrook, as his broker. And that, as long as no rescission of the sale was ever attempted, created such a privity between the parties to the action, as entitled the plaintiff to the price of the goods sold.

During the progress of the trial, evidence was given, from which it was claimed by the defendant, that a custom existed at the time when the sale was made, which authorized him to make payment of the purchase-price of the goods, to the broker; and that, having made such payment, the plaintiff could not recover. Ordinarily, the broker, whose only authority is to sell, has no such power, and to supply that defect, the evidence of usage was given.

It is not necessary to decide whether a custom, established by such a usage, would be valid or not, because the proof given upon tbe trial, falls very far short of maintaining its existence. To render a custom, or usage of trade, valid and binding, it must be known, ■ certain, uniform, reasonable, and not contrary to law. The evidence given, failed to show that the usage relied upon, was either known, certain or uniform; indeed, it showed the precise converse to be the truth.

The evidence of the defendant himself, is about as significant as any, in the exhibition of these defects; and, as he was extensively engaged in the business, and testifying in his own behalf, it may well be presumed that, his statement, upon this subject would be as favorable as the facts, would warrant him in making it. He said that he • knew a great many transactions that have been made through brokers, where they sent the bills in their own name to the amount of hundreds of thousands of dollars; goods delivered. by another party, bill sent by the broker, and the party receiving the goods not knowing anything about where they came from except from the bill, and did not care; at least I am one that did not.” On his cross-examination, he added, he did not know whether the broker was authorized by the seller to receive the pay or not. IVleCune said that brokers sold and received pay in their own names, at times, and that was the custom of the establishment, he was treasurer and secretary of. On his cross-examinantion, he stated that he said it was only done in some instances, and did not say it was a general custom. Scott said that he had bought goods that way, but did not know' whether the seller specially authorized the broker to receive payment or not. He knew that brokers did it, and it was common for them to sell in their own name; but he stated that he did not say it was the practice of brokers to collect the money. Wright testified that there was no general custom to that effect; that he never collected the payment, only when he was specially authorized. Cushman, at first, stated that it was always customary for brokers to sell in their own names and receive payment of the price, but afterwards added that he did not know what •the custom was, but it was often done at the time of the sale in controversy. Huichman said there was such a custom, but qualified this answer, by saying that he knew he did it and thought brokers did. When he did it, he said it was the arrangement between him and his employer. Douglas said about the same. He spoke only from his own observation, and acted in that way by the special authority of his employer. This is the substance of all the evidence, given for the purpose of establishing the custom relied upon, and it is clear that it is too vague, uncertain and casual, to be attended with such a result as was given to it on the trial.

The court also permitted the defendant to show that Westbrook’s character was good for honesty and fair dealing. To the admission of this evidence, the plaintiff excepted. And several witnesses stated it to be good. This ruling cannot be sustained. It is opposed to the rule, as settled in this State, defining the cases in which evidence of this description can- be received. This is not a case in which such evidence can be taken.

The complaint stated that the defendant had not paid the plaintiff the price of the goods sold, nor any part of it, and that the defendant was indebted to the plaintiff in the amount claimed. The answer consisted of a general denial. Under this issue, the defendant was allowed to prove that he had paid Westbrook, the broker, for the goods. And the plaintiff excepted to the ruling, permitting that evidence to be given. The exception was well taken, as the rule upon this subject has been heretofore maintained. The judgment and order should be reversed and a new trial ordered, with costs to abide the event.

Brady, P. J., and Westbrook, J., concurred.

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

       Pendleton v. Fay, 3 Paige, 205.

       l5 N. Y., 354.

       Bank of U. S. v. Davis, 2 Hill, 452, 461.

       Saltus v. Everett, 20 Wend., 267; Ballard v. Sampson, 47 Barb., 646; Id., 40 N. Y., 314; Spraights v. Hawley, 39 N. Y., 441.

       Taintor v. Prendergast, 3 Hill, 72; Dunn v. Wright, 51 Barb., 244; Higgins v. Moore, 34 N. Y., 417.

       2 Greenleaf’s Ev., §§ 251, 252; Parsons on Con., 2d ed., 53; Sipperly v. Stewart, 50 Barb., 62; Barnard v. Kellogg, 10 Wallace, 383; Chenery v. Goodrich, 106 Mass., 566; Southwestern Freight Co. v. Stanard, 44 Missouri, 71; Walls v. Bailey, 49 N. Y., 464.)

       Gough v. Herring, 16 Wend., 646 ; vol. 1, Phillips’ Evidence, 3d ed., 466, 467.

       Van Giesen v. Van Giesen, 6 Seld., 316; McKyring v. Bull, 16 N. Y., 297.


text:
    ALBERT S. GALLUP and others v. SAMUEL M. LEDERER.

      Fraudulent sale—agent—private instructions to—custom—evidence of.

    A broker applied to the plaintiff to purchase certain goods, claiming to act for the defendant. The plaintiff agreed to sell them, gave an invoice of them to the broker, made out in defendant’s name, and delivered the goods, by his own car-man, at the defendant’s store, the clerk receiving them giving a receipt, which stated that the goods were received from the plaintiff. The broker, having fraudulently induced the defendant to believe that the goods were his, received from him their full value: Held, that the plaintiffs had not invested the broker with any evidence of title, nor put it in his power to deceive the defendant and induce him to purchase the goods under the belief that they were the broker’s property, and that plaintiffs could recover of the defendant, the purchase-price of the goods.
    Defendant, after testifying that any boy or salesman at the door would receipt for the number of packages received, was asked, whether he ever authorized any clerk to sign a receipt, stating who the owner of the goods was; iield, that the evidence was properly excluded; that from defendant’s own statement, the person receiving the goods, appeared to be authorized to sign the receipt; and that no private instruction, not communicated to the other party, was admissible for the purpose of qualifying this authority.
    Defendant proposed to prove that it was a custom among merchants, to sign the receipts presented by carmen with goods, without any inquiry, on the part of the receiving cleric or porter, as to the ownership of the goods, or the place from which they were received. Held, that the evidence was properly excluded; that the custom, proposed to be proved, was .entirely unreasonable, as it placed the consequence of one person’s negligence and inattention upon another in no way connected with him, having no control-over his conduct, and for whose acts he could be in no proper sense responsible.
    Defendant was asked whether, at the time of the sale, there was a custom among brokers to sell goods in their own name and receive pay therefor. Held, that the evidence was properly excluded. It was not proposed to prove a general custom upon that subject, but simply a custom of brokers, which might very well be unknown to all other persons.
    To render a custom valid and binding upon a party to a transaction included within it, the proof should show it of such long continuance, or general application, as reasonably tó warrant the conclusion that it was known to the party designed to be affected by it, or that he had actual knowledge or notice of its existence.
    Where a custom is to be proved, the inquiry is not after the opinions of traders and merchants in respect to the law upon a mercantile transaction, but for the evidence of a fact, to wit, the usage or practice, in the course of mercantile business, in the particular case.
    Defendant purchased and received the goods at thirty cents per yard. The court charged the jury that the plaintiff was entitled to recover the market value of the goods at the time they were demanded of the defendant. Held, that this was error; that the broker was authorized to sell, and the action was to recover upon the sale made, and, in theory, it affirmed the sale and bound the plaintiff by its terms.
    Motion by defendant for a new trial, on exceptions ordered to be heard, in the first instance, at the General Term.
    Plaintiffs were manufacturers of bleached sheetings, and William E. Churchill was one of their agents in New York.
    In August, 1866, one Westbrook, a broker, called upon Churchill and stated that he wanted fifteen cases of Arkwright sheetings, for a first-rate party, and asked the price. The price was agreed upon, and seven cases of the goods were delivered to the defendant on the ninth of August, and a receipt, signed by one of his clerks, was taken by Churchill’s carman. Westbrook assumed to act as the agent of the supposed purchaser. An invoice was made out to Lederer, calling for payment in thirty days, and delivered to Westbrook. On the same day, Westbrook, who had, in fact, no authority to act for Lederer, made out an invoice of the goods in his own name, and collected the amount of the goods at a price he agreed upon with Lederer, and gave a receipt therefor as for a sale made by himself, Lederer believing him to be the owner of the goods.
    At the trial, the court directed a verdict for the plaintiff, and ordered the exceptions to be heard, in the first instance, at the General Term.

      Boardman & Boardman, for the defendant.

      W. I. Butler, for the plaintiff.
   Daniels, J.:

This action arose out of a similar transaction, to that involved in the case already considered between Bassett and the present defendant. So far as the legal rights of the parties are concerned, no necessity exists for a re-examination of them: They must be determined according to the disposition of the other case. But in this case, evidence was excluded, which, the court, in the other, allowed to be given, and a verdict was directed for the plaintiffs for the value of the goods sold, instead of the price at which the defendant purchased them. The defendant testified that West-brook acted as the broker in purchasing the goods, and that any boy or salesman at the door, would receipt for the number of packages received. It appeared also that the receipts given for the goods, sent to the defendant’s store by the plaintiff’s agent, stated them to have been received from him. The defendant, after that, was asked whether he ever authorized any clerk to sign a receipt, stating who the owner of the goods was. This was excluded on the plaintiff’s objection, and the defendant excepted. As the receipt, stating from whom the goods came, was in the form commonly used in business transactions, the admission of this evidence would have been of no service to the defendant, for the persons receiving the goods, appeared, by the defendant’s own statement, to be authorized to sign the receipt of the carman who brought them, and no private restriction, not communicated to the other party to the transaction, was admissible for the purpose of qualifying the authority, which appeared to be ample for the purpose the business required.

The offer to prove the preceding dealings between the broker, Westbrook, and the defendant, was very properly overruled. Those dealings had no possible connection with the transaction in controversy, and the plaintiff was in no way concerned in them. They could not be considered as affecting his rights, and were entirely irrelevant to the case. Even though they may have been just and fair in all respects, they could afford no protection to the defendant against the plaintiff’s demand, when that proved to be well founded by the facts and circumstances constituting the transaction out of which it arose.

The custom offered to be shown, that merchants sent invoices with goods sold at the time of their delivery, stating the names of the vendor and vendee, the quantity, numbers, packages and prices of the goods, could have no effect upon the rights and obligations of the parties, even if it had been received. For, as the plaintiff did nothing which could be construed or received as an indication that the goods were owned by the broker, he could not be deprived of his property in them, or his right to the price for which they were purchased by the defendant, although the invoice delivered to the broker, was fraudulently suppressed by him, and for that reason, never exhibited to the defendant. The sale was made by a person known to the defendant to be a merchandise broker and speculator; and, as the goods were never placed in his possession by the plaintiff, the defendant should have ascertained that circumstance and inferred from it, that he acted simply as a broker in the transaction, and not as a merchant selling his .own property. The fact that the broker deceived him, and, on account of such deception, he failed to discover the true relation he sustained to the business, was no fault of the plaintiff, since it was practiced without his authority or knowledge, and he did nothing to render the deceit successful.

The custom proposed to be proven, that merchants signed the receipts, presented by cartmen with goods, without any inquiry on the part of the receiving clerk or porter, as to the ownership of the goods, or the place from which they were received, was entirely unreasonable, because it placed the consequences of one person’s negligence and inattention, upon another in no-way connected with him, having no control over his conduct, and for whose acts, he could be in no proper sense responsible. A custom, tolerating carelessness and inattention in the ordinary affairs of business, would be inconsistent with the legal, as well as social duties, which one person in those affairs, owes to another. It would be not only unreasonable, but opposed to well-settled legal obligations, to maintain the validity of a custom like that the defendant proposed to prove upon this subject. In the same line of defense, the defendant was asked, whether, at the time of the sale, there was a custom of brokers to sell goods in their own name and to receive pay therefor. This inquiry was excluded by the court, and the defendant’s counsel excepted. If a custom, • sanctioning such a course of conduct on the part of brokers, would be valid, the inquiry was not broad enough, to render the proof admissible; for it might very well have been so restricted, as to time and persons, as to afford no grounds for supposing the plaintiff to have had any notice or knowledge of its existence. The defendant did not propose to prove a general custom upon that subject, but simply a custom of brokers, which might very well be unknown to all other persons. To render a custom valid and binding upon a party to a transaction included within it, the proof should show, or propose to.show, it of such long continuance, or general application, as reasonably to warrant the conclusion that it was known to the party designed to be affected by it, or that he had actual knowledge or notice of its existence. This, as well as the other offers of proof of custom, were plainly defective in this respect, and for that reason properly excluded.

The effect of such a custom, so far as it extended, would be to abrogate an existing, well-establishéd principle of law, designed for the protection of persons selling their property through the agency of brokers; and nothing less than actual or presumed assent to its application, should be allowed to render it obligatory, To prove the existence of a custom, something more than the judgment or .conclusion of the witness, called to support it, is required. A custom is the result of usage, and can only be properly shown, by proof .of the usage from which it may be claimed to be derived. The inquiry in such cases is not after the opinions of traders and merchants, in respect to the law upon a mercantile question, but for the evidence of a fact, to wit, the usage or practice in the course of mercantile business in the particular case. The inquiry made of the witness, was properly excluded, for the additional reason that it required him to give his conclusion, instead of detailing the facts which might sustain that conclusion.

The exceptions taken to the other evidence excluded, are so clearly untenable, as to require no consideration. It was evidently improper to allow the defendant to construe the receipt or determine its effect, by answering whether it afforded any indication of the ownership of the goods; neither could it have been proper to show that purchasers allowed their goods to remain in warehouses, undelivered, until the title to them had passed through various other persons. Such a practice had no relevancy, whatever, to the transaction upon trial.

The court charged the jury, that the plaintiff was entitled to recover the market value of the goods, at the time when they were demanded from the defendant. To this direction, the defendant excepted. That value was shown to be from thirty-two to thirty-five cents per yard; while they were purchased and received by the defendant, for the price of thirty cents per yard. The broker was authorized to sell, and the action was to recover upon the sale made. In theory it affirmed the sale and bound the plaintiff by its terms. This direction was therefore improper, so far as it permitted the plaintiff to recover a greater price than that for which the goods were purchased by the defendant. For that reason, the verdict must be set 'aside and a new trial ordered, with costs to abide the event,-unless the plaintiff shall, within twenty days after notice of this decision, stipulate to reduce the verdict to the amount due the plaintiff, at the price of thirty cents per yard, as of the date when it was rendered. In which event, the motion will be denied, and the plaintiff have judgment upon the verdict, without costs of the present motion.

Brady, P. J., and Westbrook, J., concurred.

Ordered accordingly.

       See ante, p. 262.

       1 Parsons on Con., 2d ed., 40-42 ; Story on Agency, 4th ed., §§ 73, 126, 127.

       Vol. 2, Cowen & Hill’s Notes to Phillips’ Evidence, 3d ed., 508, 509; Southwestern Freight Co. v. Stanard, 44 Missouri, 71, 82 ; Sipperly v. Stewart, 50 Barb., 62; Walls v. Bailey, 49 N. Y., 464.

       Rogers v. Mechanics’ Ins. Co., 1 Story’s Rep., 603; 2 Cowen & Hill’s Notes, 3d ed., 508,509; Higgins v. Moore, 34 N. Y., 417; Barnard v. Kellogg, 10 Wallace, 383, and cases above cited.

      Allen v. Merchants’ Bank, 32 Wench, 215, 223; Rogers v. Mechanics’ Ins. Co., 1 Story’s Rep., 603, 607, 608; Lewis v. Marshall, 7 Man. & Grang., 729.


author: Donohue, J.:

text:
    JOHN H. LESTER, Respondent, v. THE UNION MANUFACTURING CO., Appellant.

      Contract—disaffirmance of decrees—payment— Confederate money—tender.

    A dispute having arisen as to the price at which plaintiff had sold certain property to defendant, an agreement was entered into at Richmond, Va., in 1808, by which the defendant was to pay, and the plaintiff to receive, $50,000 in full settlement of all claims and demands, in fulfillment of which, a check was drawn upon a bank in Richmond, Va., and the same was, upon presentation by' the plaintiff, paid to him in Confederate bills. It appeared from the evidence that the settlement and the mode of payment were all parts of one transaction. This action was brought by the plaintiff, without having tendered repayment of the money, to recover upon the settlement, he claiming that the payment was void on account of duress. Held, that the complaint should have been dismissed: that the court could not affirm one part of the transaction and disaffirm another part.
    It appearing from the evidence that the only kind of money used in the banks at Richmond, at that time, was Confederate bills, and that all checks made payable at those banks were payable in,those bills, held, that the debt created by the contract was payable in Confederate money, and that payment in such money was valid.'
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes of the judge presiding at the trial, and also from an order denying a motion for a new trial on the ground of surprise and newly-discovered evidence.
    The complaint alleged that the defendant purchased from plaintiff, machinery and personal property, of the value of $82,888.37, December 1, 1863, and agreed to pay that sum therefor, in the stock of the company; and that afterward, and on December 18, 1863, the plaintiff and defendant had an accounting and settlement, by which the defendant agreed to pay him $50,000 in cash, instead of said stock, which was reduced to writing, and is exhibit “ A,” referred to in the opinion. That plaintiff was afterward compelled, in the same month, by duress, to take Confederate notes for the said $50,000, which were of no value whatever. The answer admitted the settlement, but denied that any force or duress was used to compel the plaintiff to take the Confederate notes.
    The duress, which was attempted to be proved upon the trial, was, that the plaintiff would, if he remained in Richmond, be forced into the Confederate ranks, and that he would not be allowed to leave the city, unless he made the settlement and received payment of the check in Confederate notes.
    The complaint in the action was twice amended.

      Wm, A. Goursen, for the appellant.

      E. Pierrepont, for the respondent.
   Donohue, J.:

This suit, as the last amendment of the complaint stated, is brought to recover on an agreement, entered into as a compromise of the value claimed for certain articles sold the defendants.

That complaint alleges that the plaintiff had sold the property for $82,000, payable as stated; that thereafter, on a settlément and accounting, defendant agreed to pay plaintiff $50,000 in cash; that after that accounting, the agreement “A” was, by force and fraud, obtained from plaintiff, and that by force and fraud, he was compelled to take Confederate money for the amount, and has never been paid his $50,000. While there is conflict on some points, as there will be in all cases, these are the main points in the case, on which there is no dispute. It is clear that there was a suit pending in Richmond, where all these transactions took place, in favor of plaintiff against defendants, for the purchase-money of this - property, the plaintiff and defendant widely differing in their statements. ■ That about the time of the sale, sued on, the plain till', if he is to be believed, was afraid he would be drafted into the Confederate service. That on that state of the facts, the arrangements, all made at the same time and under the same state of facts, whatever they were, of the sale and mode of payment, were entered into. The plaintiff himself distinctly testifies: “He said I could take my choice, either execute that contract or I would be compelled to remain there.” Again, “ He said if I attempted to leave without executing the contract, receiving this check, and drawing Confederate notes, I would not be permitted to leave the Confederacy” His whole evidence is clear, that the whole transaction, from the agreement of settlement to how it was to be paid, was one. The plaintiff now seeks to offer the contract, on which he sues, and which he puts in evidence as his case, and disaffirm the payment. In this, I think the plaintiff is in error, and the learned judge, when he rested, should have dismissed his complaint. He cannot affirm in part and avoid in part, the one transaction. But supposing he could affirm the sale and disaffirm the payment, in case the payment is not good, how does he then stand? In considering this question, it is necessary to take into account the place and time in which the parties were acting, and the situation is too well known to need repetition. What was then there currency, and in what did he expect to be paid, and what was a payment?

First, if nothing had been said, what did he expect? He is asked: “ Q. What were checks payable in, at that time, in Richmond? A. I think they were all payable in Confederate bills.”

“Q. Do you not know that was the case? A. Yes, sir, unless they were drawn otherwise.”

The check was handed to him, and he further testifies, he has no doubt that it was so payable, and, he expressly testifies he got what he expected—Confederate money. It is hardly worth while to follow the evidence in the case, to show that the debt, created by the contract, was payable in Confederate money, and that such would be a good payment. 16 Wallace, 414; 50 FT. Y., page 638; and 52 id., page 31, seem to be conclusive on this point. This being the state of affairs at the time and place of the payment, how can the plaintiff disaffirm such a payment on the ground that it was forced on him ? A very careful examination has not shown me any case or principle, in which it is announced that the coercing or compelling a man to take payment of his debt, when due, is open to disaffirmance, and that the debtor can be compelled to pay again. It would be useless to cite authorities to show that, on such a tender, if the plaintiff had not accepted it, and the defendant had kept it good, and had the money which he then tendered, to hand over, the plaintiff could not recover.

As the plaintiff has the identical money, the tender, if viewed in the light only of a tender, is sufficient to defeat this claim.

But was there such a duress here as the plaintiff may disaffirm either the contract or the payment ? Suppose it to be established by the plaintiff’s proof, that he wanted to get out of the Confederacy, and was afraid that if he did not settle this he could not, it does not seem to me there is any evidence that the defendants or their servants told him any falsehood or made any misrepresentation to him about the facts; and there results only this, that as matters existed at that time, in Richmond, he had not by any coercion these parties could use, but by the disturbed state of affairs, to settle, to avoid, not the trouble the defendants might give him, but what others might do if he was found there.

Another equally fatal ground seems to be against the plaintiff; he has kept and retained what he received for these goods, and, for aught that appears, he or his family have used it, and yet expect to be able to obtain the money here.

The court, on the trial, when asked, should have dismissed the complaint. The judgment should be reversed and new trial ordered, costs to abide the event.

Davis, P. J., and Daniels, J., concurred.

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

       U. S. v. Huckabee, 16 Wallace, 414.