author: Dykman, J. :

text:
    In the Matter of the Appraisal for Taxation of the Estate of William W. Merriam, Deceased.

      An inheritance tax is on the right of succession — a legacy to the United States is: subject thereto ■— a devise to the United States is void.

    A legacy to the United States of America is subject to the collateral inheritance-tax; such a tax is not upon the property bequeathed but upon the right of succession.

      Semble, that a devise of real estate to the United States government is void. •
    Appeal by the United States of America and by Clifford B. Acker ly, as executor, etc., from an order of the Surrogate’s Court of the county of Suffolk, made on the 5th day of September, 1893, and entered in the office of the clerk of the Suffolk County Surrogate’s Court, affirming an order or decree fixing the amount of the collateral inheritance tax upon the estate of William W. Merriam, deceased; also an appeal by the United States of America from an order of said Suffolk County Surrogate’s Court, made on the 5th day of September, 1893, and entered in said clerk’s office, denying the motion that the order or decree fixing the collateral inheritance tax on such estate be vacated and set aside, and also-from the appraisement and the- assessment of a collateral inheritance tax upon such estate, and from so much thereof as decided that the United States of America was liable to pay the sum of $3,964.23 as such tax.

      Jesse Johnson, United States Attorney and Attorney for the United States, appellant.

      James II. Tuthill and George F. Staolepole, for the executor, appellant.

      Timothy F. Griffing, for the County Treasurer of Suffolk county, respondent.
   Dykman, J. :

This is an appeal from an order of the Surrogate’s Court of Suffolk county, which affirmed an order dated May 22, 1893, assessing the cash value of the property of the testator at the time of his decease at $79,284.60, and fixing tlie tax upon tlie transfer thereof to the United States government at the sum of $3,964.23. The United States appeals from an order dated September 5, 1893, denying the motion made by the United States of America to set ■aside and vacate the order of May 22, 1893.

William W. Merriam, a resident of the town of Brookliaven, in Suffolk county, died on the 30th day of January, 1889, leaving a last will and testament, which was admitted to probate by the surrogate of Suffolk county, and letters testamentary thereon were issued to Clifford B. Ackerly as sole executor.

• The testator devised and bequeathed all his estate, both real and personal, to the United States government. Upon the petition of the executor, the surrogate of the county appointed an appraiser to assess and fix the cash value of the property of the testator at the time of his death. The appraiser reported the net cash value of the property at tlie figures mentioned above, and on May 22, 1893, the 'Surrogate, on motion, made an order confirming said report and assessed the value of the testator’s property at the same amount as reported by the appraiser, and fixing the tax upon the transfer at the figures above named.

As the real estate of the testator did not pass to the United States under the will by reason of the invalidity of a devise of real estate to the United States government, that is not involved in this present controversy. (In the Matter of Fox, 52 N. Y. 537.)

We are required to decide in this case whether a legacy to the government of the United States is subject to the imposition commonly denominated the collateral inheritance tax. The determination of this point seems to be dependent upon the question whether the tax is upon property or upon the right of succession.

The appellants contend that the charge is a tax upon property, and planting themselves upon the fundamental principle of law, that governmental property is ever exempt from taxation, insist that a legacy to the United States government cannot be diminished by the deduction of a succession tax. Contrariwise the respondent contends that the tax is upon the right of succession under a will or by ■devolution in case of intestacy; or, in other words, a tax upon the the privilege of acquiring property by will or inheritance, and is an impost upon the devolution of the estate. If the contention of the appellants is sustained then the appeal must prevail, for government property is always exempt from taxation. The language of th& statute is this : Section 1. “ Taxable transfers.— A tax shall be and is hereby imposed upon the transfer of any property, real or personal.” (Laws of 1892, chap. 399, § 1.)

According to the literal reading the tax is imposed, not levied,, upon the transfer, and not upon the property. It is similar to an impost or duty or a tax laid by government upon property imported into the country, or to the old income tax. In the case of duties-upon goods, the property appraised and its value constitutes the basis of the impost, as it does under this law, and the same is true of income tax or an excise law. The property is the subject of the appraisal, but the subject of the tax is the privilege in all the cases.,

In the case of Wallace v. Meyers (38 Fed. Rep. 184), in the United States Circuit, it was decided that where the property of the' decedent includes "United States bonds, the tax may be assessed upon the basis of their value, and the tax is not imposed upon the bonds, bx;t is merely a tax upon the privilege of acquiring property by inheritance, and in that case it was said, in the opinion of the court, such a tax is no more one upon the bonds than an income tax is one upon the property out of which the income is derived, or an excise tax is one upon the articles manufactured or sold. The bonds are the subject of the appraisal, but the privilege is the subject of, the tax.” The terms of the act of Congress of June 30, 1861 (13 U. S. St. 285), are, “ Taxes on legacies and successions,” and they are quite similar to those of the present statute in respect to the valuation or assessment; the subject-matter of the assessment in that act was held by the Supreme Court in Scholey v. Rew (23 Wall. 331) to be the devolution of the estate or a right to become beneficially entitled to it, and the act was considered as taxing a privilege and not property.

In Virginia the highest court of the State has construed a similar statute as imposing the tax, not upon the property, but upon the-privilege of acquiring it by will or under the intestate laws. (Eyre v. Jacob, 14 Gratt. 422; Miller’s Exrs. v. Com., 21 id. 110.)

The precise question now presented was considered by the Supreme Court of Pennsylvania in Strode v. Com. (52 Penn. St. 181), and the court treated the statute not as taxing property, but as regulating the transmission of the property of decedents, and upon that view held that government securities were properly included in the valuation of the inheritance upon which the tax was assessed.

So it was also held in Matter of Estate of Swift (137 N. Y. 77) that the tax imposed by the Collateral Inheritance Tax Law is not a property tax, but a tax upon the right of succession under a will or devolution in case of intestacy.

In Matter of Estate of G. W. Cullom (5 Misc. Rep. 173) it was decided in the Surrogate’s Court of the city of New York that a bequest to the government of the United States is liable to taxation under the laws relating to taxable transfers of property, and the opinion in that case is quite satisfactory upon this subject.

In view of the language of the statute, and the construction it has received, we feel bound to decide that the tax in question is not upon the property bequeathed, but upon the right of succession, and that, therefore, the orders from which the appeals are taken should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Orders affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    The Germania Savings Bank, Kings County, Appellant, v. The Village of Suspension Bridge in the State of New York, Respondent.

      .Stolen bonds of a milage — bona fide purchaser — delivery ■ — negligence of a village board— “ isme ” defined.

    Delivery is essential to the validity of all written instruments, including promissory notes, bills of exchange and bonds Before such an instrument can be operative there must be a delivery as evidence of a subsisting debt, and until such delivery the paper has no legal inception and is inoperative.
    ■Certain bonds of a village were lithographed, signed and sealed, but were never delivered, or intended to be delivered, for sale; some of them were, however, illegally pledged by a village board issuing them, but subsequently were returned to the board and were directed by it to be destroyed. Thereafter the bonds were stolen from the custody of the board, were sold without its authority, consent or knowledge, and passed into the hands of a bona fide purchaser for value.
      Held, that the bonds so stolen never had a valid inception, and were inoperative; That it was immaterial whether or not the members of the board were careless or negligent in failing to insure the destruction of the bonds;
    That the bonds of a village can only impose liability upon such village in the manner prescribed by the law which authorizes their issue;
    That the term “issue,” as applied to negotiable paper, means its delivery for use and circulation.
    Appeal by tlie plaintiff, the Germania Savings Bank, Kings County, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of February, 1893, upon a decision of the court rendered after a trial at the Kings County Special Term dismissing the plaintiff’s complaint upon the merits and for costs.
    IF. I). Veeder and Tracy O. Becker, for the appellant.
    IF. E. Willey, for the respondent.
   Dykman, J.:

This is an appeal from a judgment dismissing the complaint of the plaintiff, with costs, entered upon the decision of a judge after a trial at Special Term.

The action was for the recovery of interest upon certain bonds of the defendant, and the defense was that the bonds from which the interest coupons were cut were never issued, and never had any inception as such, but were stolen and put upon the market feloniously. The trial judge, after finding the fact of the incorporation of the plaintiff, and that the defendant was a municipal corporation, and that the board of water commissioners of the -defendant was a board legally constituted under the provisions of the statute in relation to the organization of water companies to furnish pure and wholesome water to the inhabitants of villages, made the following specific findings;

Fourth. The said board of water commissioners caused to be lithographed, signed and sealed the four bonds upon which this action is brought, and which bonds were numbered respectively, 234, 235, 236 and 237, and were each'of the denomination of $500, with interest payable semi-annually at the rate of four per cent per annum; that said bonds were never delivered, or intended to be delivered, by the said board of water commissioners for sale.
“ That said board of water commissioners, after the lithographing, signing and sealing of said bonds as aforesaid, directed the same to be destroyed, and believing the same had been destroyed thereafter, caused to be issued bonds of the same denomination and number, but having a larger rate of interest, which said last-mentioned bonds were issued and sold by said board of water commissioners in the place and stead of said bonds upon which this action is brought.
“Fifth. That said bonds, numbered 234, 235, 236 and 237, upon which this action is brought, were stolen and feloniously abstracted from the custody of said board of water commissioners, and were sold without the authority and consent, knowledge or intention of said board to have the same delivered or sold, and no part of the proceeds thereof were received by, or came into the possession of said board of water commissioners, or of the defendant, nor were said bonds negotiated or sold in the name of said board of water commissioners or of the defendant in this action.
“ Sixth. That said bonds upon which this action was brought were never delivered or intended to be delivered by said board of water commissioners for sale; but the same were stolen and negotiated without the knowledge, permission or consent of the said board of water commissioners or of the defendant.
“Seventh. The plaintiff is a Tyona fide purchaser for value of the bonds upon which the action is brought.”

As conclusions of law the judge decided : First, that the defendant is not liable upon said bonds, numbered 234, 235, 236 and 237, set forth and described in the complaint herein, and directed judgment accordingly for the defendant against the plaintiff for a dismissal of the complaint upon the merits, with costs.

It may be stated as a general proposition of law that delivery is essential to the validity of all written instruments. Promissory notes, bills of exchange and bonds are all included in that general rule of law. The mere act of signing a note or bond, and retaining it in the hands of the maker, forms no contract. Before the instrument can be operative there must be a delivery as an evidence of a subsisting debt, and until such delivery the paper has no legal inception and is inoperative. (Marvin v. McCullum, 20 Johns. 288; Hall v. Wilson, 16 Barb. 548; Eastman v. Shaw, 65 N. Y. 528.)

The foregoing principle applied to this case seems to be decisive of the appeal.

These bonds never had a valid inception. They were stolen before delivery, and so were destitute of that essential element of validity; they were neither property nor the subject of ownership. It is a general principle in the law of contracts that no valid obligation can be created by the perpetration of a wrong or a felony. There is an exception to this rule in favor of commercial paper by which a holder of negotiable paper may, under certain circumstances, recover upon it, notwithstanding any infirmity in the title of the person from whom he derived it, but that presupposes a case where the maker had voluntarily parted with the instrument, and it had a valid inception.

In this case the decision is placed upon the absolute invalidity of the bonds for want of delivery. The defendant here has not voluntarily placed a paper where it could be used in a wrongful manner. They had no more validity than the undelivered note of an individual. (Codington v. Gilbert, 17 N. Y. 489.)

The distinction is between paper which never was delivered and never had any legal beginning or binding force, and instruments which have been valid and have been delivered.

In the first case, the instrument has no binding force, and imposes no liability; it never was an operative contract, because it had not been delivered to any person as evidence of a subsisting debt. It never was a subsisting security, and had no pre-existing value. It was in the similitude of a legal obligation, but no holder of it was ever entitled to maintain an action upon it if it had been due.

In the second case, the first honest holder could maintain an action upon the paper if it was due, and so may any subsequent bona fide holder sue upon it, even though it came to him through a thief.

The underlying principle is obvious. In the second case the paper at one time imposed liability, and in the first case it never did.

A note made to be discounted at an usurious rate of interest, and indorsed for the accommodation of the maker, falls within the first class and is void (Bennet v. Smith, 15 Johns. 355), and any note or instrument, void as between the parties for usury, is void in the case of a Iona fide holder. That is another case where the void note cannot be validated.

In relation to the claim of the plaintiff, that those bonds were all actually issued, it is to be said that the position is untenable. The term “issue” as applied to negotiable paper means its delivery for use and circulation, and in that sense these bonds never were issued.

Three of these bonds, numbered respectively 234, 235 and 236, were delivered to the contractors, who were creditors of the village, under this resolution: “ August 11th, 1884. On motion, Phillips & Young were allowed two thousand ($2,000) in bonds, to be redeemed by the board on Jan. 1st, 1885, at four per cent.” The three bonds were then delivered to Phillips & Young in pursuance of this resolution and used by them as collateral security and redeemed by the board, and redelivered to it in January, 1885, and Houran, the treasurer, was directed to destroy them. Instead of obeying that direction he sold them. There was no agreement that Phillips & Young should take the bonds in payment of their indebtedness, and the boai’d had no authority to deliver the same to them for any other purpose.

By the statute under which these bonds were issued the commissioners were clothed with authority to borrow money and execute bonds to secure the payment thereof, but the money so borrowed was directed to be appropriated to supplying the village with water, and, of course, could be used in no other manner. (Laws of 1875, chap. 181, § 8.)

Phillips & Young, therefore, never had any title to the bonds so delivered to them. The other bond, No.- 237, never was delivered to any one by the board. We have, therefore, disposed of the case under the theory that these bonds never were issued.

It is unnecessary to inquire or determine whether the members of the board of water commissioners were careless or negligent in failing to insure the destruction of the bonds in question, because the defendant cannot be charged with liability upon that ground; they could only impose liability upon the defendant in the manner prescribed by the law which created them. (Horton v. Town of Thompson, 71 N. Y. 513.)

This remark is not to be taken as an intimation that there was carelessness, because tbe board directed tbe destruction of tbe bonds and was informed that they had been destroyed.

There were many objections to the introduction of testimony during the trial, but they are mostly frivolous, and none of them present any error.

The judgment should be affirmed, with costs.

Barnard, P. J., concurred; Pratt, J., not sitting.

Judgment affirmed, with costs.


text:
    Herman Vogel, Appellant, v. Edward H. Schlueter and Another, Respondents.
    Costs— Code of Ciml Procedure, § 3070.
    The provisions of section 3070 of the Code of Civil Procedure apply wherever an appellant is defeated in the lower court and obtains a more favorable judgment upon appeal.
    Appeal by the plaintiff:, Herman Vogel, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 15th day of April, 1893, vacating and setting aside the taxation of costs made by the Kings county clerk on the 21th day of March, 1893.

      Hemiam, Vogel, appellant, in person.

      Frank JV. O'Brien, for the respondents.
   Dykman, J.:

This action was commenced in a court of a justice of the peace for the recovery of damages for the wrongful conversion of personal property belonging to the plaintiff:.

Upon the trial before a jury, a verdict was rendered in favor of the defendant, and from the judgment entered upon that verdict the plaintiff appealed to the County Court of Kings county, where there was a new trial before a jury and the plaintiff recovered a verdict for twelve dollars and thirty-three cents.

Neither party made any offer to allow judgment after the appeal to the County Court, which was taken July 11, 1891.

TJpon this state of facts, the plaintiff claimed full costs, which were allowed to him by the clerk.

Subsequently an application was made to the county judge of Kings county to set aside the taxation of such costs, and the motion was granted. Erom the order granting such motion the plaintiff has appealed to this court.

The question is under the control of this statutory provision : If an offer is not made and the verdict, report or decision upon the -appeal is more favorable to the appellant by the sum of ten dollars than the verdict or decision in the court below, * * * the appellant is entitled to recover costs upon the appeal. (Code Civ. Proc. § 3070.)

This case fits the statute and the statute meets the case and controls it, and under its provisions the appellant was entitled to full costs.

The plaintiff was unjustly defeated in the lower court when he had a just claim, and he was compelled to appeal or suffer the loss of his claim and pay costs besides.

Upon the appeal lie recovered a judgment more favorable to him by more than ten dollars.

While it may be true in strictness of language that the words “more favorable to the appellant” imply that the judgment in the lower court was in his favor, we yet think the provision has application also when he was defeated in the lower court, and obtains a more favorable judgment upon the appeal. Such was the view of the court in the case of Vanderwerken v. Brown (38 Hun, 234), and we concur in that view.

The order from which the appeal is taken should be reversed, with ten dollars costs and disbursements, and the taxation of costs by the clerk in favor of the appellant should be affirmed.

Pratt, J., concurred; Barnard, P. J., dissented, being for affirmance under McKuskie v. Hendrickson (128 N. Y. 555).

Order vacating taxation of costs reversed, with costs and disbursements.


text:
    Emily Cochran, Respondent, v. Oliver C. Smith, Appellant.

      Highway — inference of the ownership of the fee thereof — road or stream as a boundary to land — construction of a grant — province of the jury.

    11 is an established inference of law that the proprietors of land adjoining a public highway are the owners of the fee of the highway, and that a conveyance of land bounded by a highway carries with it the fee as far as the center thereof, as part of the grant.
    When a road or an unnavigable stream of running water is used as a boundary in a grant of land, the title will pass to the center of the road or stream, unless there be something in the grant to indicate a contrary design. A road is regarded as a line, and its center in such case is the true boundary in the absence of other indications.
    The employment in a grant of the words “by,” “upon” or “along” a road manifests an intention to include the road in the grant to the center line thereof.
    Where the place of beginning in a deed is at the junction of a road and an avenue, the presumption being that the grantor owned to the center of both roads, the place of beginning is the junction of the center lines of the two roads.
    While it is the province of the court to construe a written instrument, yet it is the province of the jury, from all the evidence, to determine the boundary lines of land in controversy in legal xiroceedings.
    Appeal by the defendant, Oliver O. Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 14th day of November, 1892, upon a verdict rendered by direction of the court after a trial at the Suffolk Circuit.

      Timothy M. Griffing, for the appellant.

      1W'ibnot M. /Smith, for the respondent.
   Dykman, J.:

This is an appeal by the defendant from a judgment entered upon a verdict directed by the court in favor of the plaintiff. The action is for trespass on land, and its decision requires the location of the boundary line between the lands of the parties, which originally belonged to Sarah Smith, the mother of the plaintiff and defendant.

In June, 1883, Sarah Smith conveyed to the defendant the land which he now claims, bounded northerly by Bayport highway four rods and sixteen links; westerly by lands of Sarah Smith, the grantor, twenty rods; southerly by her lanas also, eight rods and five finks, and easterly by the land of Edward Gillette twenty rods and ten links, containing about one acre of land. Locust boundary stakes were placed at the corners of the premises so conveyed.

In November, 1885, Sarah Smith conveyed to the plaintiff a parcel of land, of which the boundaries will be given hereinafter.

Our task is the location of the boundary line between these two parcels of land, and that location depends upon the true interpretation of the two deeds. Although such is the general rule, yet there are some aids to be invoked in the construction of these instruments.

The land conveyed to the plaintiff fronts upon two roads; Bay-port highway is on the north and Eairview avenue is on the west, and they form a junction at the northwest corner of her lot.

The Bayport highway also lies north of the land of the defendant, which is east of the land of the plaintiff. The land of the defendant is bounded on the east by land of Edward Gillette, so that the two parcels lie between Eairview avenue on the west, Bayport road on the north, the land of Gillette on the east and other land of Sarah Smith on the south. The east and south lines are undisputed. It is the center line between the two which is in dispute.

It was the design of the grantor of these parties to carve out between those lines two parcels which should each contain one acre of land. ¥e must now divide the land as the grantor intended to do, and that requires the location of the center line. To fix this line it will be necessary to determine whether the conveyance to the plaintiff included any portion of Fairview avenue, and that question' requires some examination. In-approaching it we shall find it useful to observe some well-recognized presumptions. In the first place, it is an established inference of law that the proprietors of land adjoining a public highway are the owners of the fee thereof. (Wager v. Troy Union Railroad Co., 25 N. Y. 526.) Also that a conveyance of land bounded by' a highway carries with it the fee to the center thereof as part of the grant. (Bissell v. R. R. Co., 23 N. Y. 61.) Of course such presumption may be surmounted by evidence.

When a road or an unnavigable stream of running water is used as a boundary in a grant the title will pass to the center of the road or stream unless there be something in the grant to indicate a contrary design.

A road is regarded as a line and its center in such cases is the true boundary in the absence of other indications. (Mott v. Mott, 68 N. Y. 252; White's Bank v. Nichols, 64 id. 71.)

It will be in order now to consider the language employed in describing the land conveyed to the plaintiff, and preliminarily we may state that the location of the line between these parties is dependent upon the westerly line of the plaintiff’s land. If we can locate that westerly line the problem is solved. The language of the description in the plaintiff’s deed is this : Commencing at the northwest corner thereof (i. e., the land conveyed) at the junction of Fairview avenue with the main road running through Bayport, thence running southerly by Fairview avenue 20 rods, thence running easterly 8 rods to lands of Oliver C. Smith (the defendant), thence running northerly by land of Oliver C. Smith 20 rods to the main road running through Bayport, thence running westerly by last-mentioned road 8 rods to the place of beginning. Containing just one acre of land.”

So it is that the place of beginning is the junction of the two roads and the line runs “ by ” Fairview avenue, then easterly, then northerly to the main road,” then westerly by last-mentioned road,” and the employment of the words by ” upon ” or “ along ” a road manifests an intention to include the road in the grant to the center line. (Mott v. Mott, supra.)

Here the place of beginning being the junction of Fairview avenue and the Bayport road, and the presumption being that the grantor of the plaintiff owned to the center of both roads, the place of beginning is the point at the junction of the center line of the two roads. (Halloway v. Delano, 18 N. Y. Supp. 700.) From that point the line runs southerly “ by ” the avenue, and so, in obedience to the rule we have stated, it runs with the center thereof, then returning when the Bayport road is reached, the line runs by ” that road, and so by the center line of the same. The language is plain and free from obscurity, and our conclusion from it is in accordance with all the adjudicated cases and the elementary winters.

This result is strengthened by some undisputed facts.

When the plaintiff’s lot was measured, the measurements commenced in the middle of Fairview avenue at the north end of hei westerly line and a bolt was driven in the ground at that spot.

Again, in the fall of 1890, the surveyor located the line now in dispute in the presence and with the assent of the plaintiff. His survey commenced in the middle of Fairview avenue and gave the plaintiff one acre of land west of that line and gave the defendant all east of that line to the land of Gillette.

Again, if the center of the avenue is taken as the plaintiff’s westerly line, she will have just an acre of land west of the line claimed by the defendant, but if Fairview avenue be excluded from the computation, then she will not have an acre west of the line claimed by her.

Moreover, when the defendant received his deed and when the parties had no reason for misrepresentation, stakes and irons were placed at the corners of his property as he now claims it.

Our conclusion is that the direction of a verdict for the plaintiff was erroneous. While it is the province of the court to construe written instruments, it is yet the province of the jury to determine boundary lines of land in controversy in legal proceedings from all the evidence.

In our view the evidence requires a verdict in favor of the defendant, but the question of fact must be left to the jury under proper instructions as to the legal effect of the deed of conveyance, and the evidence adduced by each party.

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

Barnard, P. J., and Pratt, J., concurred.

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


author: Barnard, P. J.:

text:
    The People of the State of New York, Respondent, v. Daniel L. Mahoney, Appellant.

      Indictment for rn'son — juroi-s that arenot indifferent — testimony of a/n informer— corroboration — opening by the district attorney.

    Tlie law permits testimony of an informer to be received, but corroboration is necessary in order to authorize the conviction thereon of the accused.
    Upon the trial of the defendant on an indictment for arson, one juror stated that he had formed an opinion which was so strong that it would take evidence to remove it, and that he was in doubt as to whether he would give any credence to an accomplice, even if corroborated; that lie would require strong corroborative evidence; another, that his prejudice was so strong against informers that he doubted if lie would believe an informer, even if corroborated.

      Held, that these jurors were not indifferent between the People and the defendant.
    In opening the case under an indictment for arson the district attorney stated that the fire .n question was one of four, all burning at the same time in the town of Castleton.
    Held, that as it was a part of the People's case that the same persons set Are to all of the buildings so on Are, the opening of the district attorney was not improper.
    Appeal by tbe defendant, Daniel L. Mahoney, from a judgment of the Court of Sessions of the county of Richmond, rendered on the 10th day of March, 1893, convicting the defendant of the crime of arson in the third degree.

      Geo. Gallagher and W. J. Powers, for the appellant.

      Thomas W. Fitzgerald, District Attorney, for the People.
   Barnard, P. J.:

The appeal papers show that the defendant and one Morrison were jointly indicted for arson in the third degree in Richmond county; that Mahoney demanded a separate trial, and upon such trial he was convicted of that offense by the jury.

Morrison was called as a witness by the People. The defendant challenged a juror, Sheldon, who testified that he had formed an opinion which was so strong that it would take evidence to remove it, and he spoke very hesitatingly as to whether he would give any credence to an accomplice, even if he was corroborated. He would require strong evidence of corroboration. A challenge was made also to one James O’Brien. This juror testified that his prejudice was so strong against informers that he also was uncertain as lo whether he would believe an informer, even if corroborated by other witnesses. The challenged jurors were not indifferent between the People and the prisoners. The law permits the testimony of an informer. Corroboration is required. These jurors by their examination satisfied the trial court that even if it were fully corroborated, they would not give the proper effect to the testimony of the People.

The district attorney, in opening, stated that the fire in question was the last of four, all burning at the same time in the town of Castleton. This was not improper. It was a history of the surroundings. It was part of the People’s case that the accused set fire to all the buildings so on fire at the same time on the night of December 2, 1892. The accomplice so testified. There was sufficient corroboration of the testimony of the accomplice. The witness Eliza Young places both accused and accomplice at the fire. She tried to put out the fire. The defendant and his accomplice did nothing and were impudent to the witness. Morrison testifies to the fact of Mrs. Young being at the fire as soon as it was started. There is abundant other corroboration to the effect that the defendant and his accomplice were seen together on the night in question, and in the neighborhood of the fires.

The conviction and judgment should be affirmed.

Dykman and Pratt, JJ., concurred.

Conviction and judgment affirmed.


text:
    August Jacobi, Respondent, v. The Order of Germania, Appellant.

      Records of a public natwre — exemplified, copy thereof admissible in evidence.

    If a record is of a public nature, such as the record kept by the pastor of a parish of the birth and baptism of children, an exemplified copy thereof without the production of the original is, and was by the common law, admissible in evidence.
    Section 956 of the Code of Civil Procedure does not refer to church records, and section 963 preserves evidence admissible at common law.

      Appeal by the defendant, the Order of Germania, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of May, 1893, upon the verdict of a jury rendered at the Kings County Circuit, and also from an order entered in said clerk’s- office denying the defendant’s motion to set aside the verdict and for a new trial made upon the exceptions taken during the trial.

      Meyer Atierbaeh and Lewis Sanders, for the appellant.

      Ayres cé Walker, for the respondent.
   Barnard, P. J.:

On the 25th of November, 1889, August Jacobi, Jr., a son of the plaintiff, applied to the defendant to become a member of the order with an intent to make a provision for his father in case of his, the son’s, death. No one, by the by-laws of the order, could be admitted as a member who was, at the time of his admission, over fifty years of age. The application stated his age to have been forty-seven on the 18th of February, 1889, and that he was born the 18th of February, 1812. He obtained thereby a contract by which, in consideration of certain yearly payments, $1,000 was to be paid by the defendant to the plaintiff in case of his, the applicant’s, death. The defendant avers in its answer that the applicant was born on the 18th of February, 1835, and was consequently over fifty years of age at his admission as a member of the order, and that in consequence of this misrepresentation the policy is void. The proof upon the trial was very conflicting. The father of the plaintiff testified that the deceased son was born in 1812. A brother and sister of the deceased testified to the same fact. The Wife of deceased and her mother testified that he was born in 1838, and that he was married under that statement of his age. The defendant offered in evidence a certificate of the marriage of the plaintiff in 1835 and a certificate of the birth of the deceased on the 18th of February, 1838, and his baptism on the 1th of March, 1838. These certificates were proven to have been written in the official records of the church books of Katzhutte, principality of Schwaizburgh, Rudolphstadt.

These records are kept by direction of the supervisor of schools and churches, and were kept by the pastor of the parish, and have been kept from time immemorial. At the date of the records a Mr. Kuhne was pastor and the records are in his handwriting. The books were delivered by him to his successor as pastor of the parish, the Reverend M. Huke, who testifies to the truth of the record and to the copies from it. The certificates c:e baptism of the children of the plaintiff, including the deceased son, were made by the pastors Ortloff and Truppel, and are without change or erasure and are admitted to be true copies and admissible if the original record be legal evidence. We think the certificates should have been received. If a record is of a public nature such as this of a church, an exemplified copy of the entries relied on, without production of the original, is admissible. (Jackson v. King, 5 Cow. 237; Lewis v. Marshall, 5 Pet. 470.)

The register proves the fact of marriage and the date as recorded. The register of baptisms does not prove when the child was born, except th4t he was born before the baptism. (Maxwell v. Chapman, 8 Barb. 579; Kennedy v. Doyle, 10 Allen, 161; Whitcher v. McLaughlin, 115 Mass. 167.)

Section 956 of the Code has no bearing upon the question. The section probably does not refer to church records, but section 962 of the Code preserves evidence admissible at common law. Such evidence was admissible at common law. (1 Greenl. Ev. 484; Lynch v. Clerke, 3 Salk. 154.)

Bradford v. Bradford (51 N. Y. 670) was decided upon a question of legitimacy. The registers certified too much.

Fisher v. The Mayor (67 N. Y. 73) referred to the entry made by a private person, and the question decided bears no analogy to a church record.

The judgment and order denying a new .trial should be reversed and a new trial granted, costs to abide event.

Pratt, J., concurred.

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


author: BarNARD, P. J.:

text:
    Edgar L. Ryder, as Assignee, etc., Respondent, v. John Duffy, Sheriff, etc., Appellant.

      Assignee for the benefit of creditors — immediate possession of the assigned property — unpaid debt — title of a husband to money sent to the wife.

    Upon tie trial of an action brought by an assignee for the benefit of creditors against a sheriff for the recovery of possession of certain property taken by the latter under an execution, it was shown that the assignee took immediate possession under the assignment of the assigned property; that such property was immediately advertised for sale at public auction, and in the interval of eight or ten days the assignee sold the property at private sale, the assignor at the request of the assignee aiding in putting up the goods sold, for which the assignee received the purchase price. The assignor was in and about the store, but had no control whatever over the sales.

      Held, that there was a complete failure to show that an immediate possession was not taken and held by the assignee.
    A debtor sent to his creditor, who was his sister, a check for the amount of his indebtedness, intending the same as a present; and such check was received by the sister’s husband without her knowledge.

      Held, that the debtor still owed such debt and that the husband obtained no title to the check so received by him.
    Appeal by the defendant, John Duffy, sheriff of Westchester county, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 1st day of July, 1893, upon the verdict of a jury, directed by the court at the Westchester Circuit, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover certain chattels taken by the defendant from the possession of the plaintiff as assignee of one Edward Nolan, under a general assignment for the benefit of creditors, which contained, among others, the following provision :
    Second, to pay to James O. Driscoll, of Canton, County of St. Lawrence, State of New York, the sum of $1,000, with interest from July 20,1890, due and owing from said party of the first part for moneys loaned, if the residue of said proceeds shall be sufficient for that purpose except to the amount of one-third in value of the assigned estate left after deducting such wages or salaries as provided by chapter 328 of Laws of 1884, as amended by chapter 283 of Laws of 1886, and the expenses of executing sucb trust as aforesaid, and should one-third of the assets of the assignment be insufficient to pay in full this preferred claim, then said assets shall be applied to the payment of the same jpro rata.

      WilUm% Homer, for the appellant.

      Smith Lent, for the respondent.
   BarNARD, P. J.:

Edward Nolan, on the 6th of July, 1892, made a general assignment to the plaintiff. The assignor was a grocer, and his stock of groceries passed by the assignment. There was preferred in the assignment a debt of $1,000 to James O. Driscoll for money loaned by Driscoll to the assignor, as was stated in the assignment. On the 12th of July, 1892, the sheriff, by virtue of an attachment against the property of the assignor, took the property in question from the possession of the assignee. The sheriff justifies the seizure by an averment that the assignment was made by Nolan with intent to defraud his creditors, and that the property was the property of the assignor at the time of the seizure. Upon the trial the assignment was proven, and the fact that immediate possession of the assigned property was taken by the assignee, and that the property was immediately advertised for sale at public auction. In the interval, some eight or ten days, the assignee sold the property at private sale, and the assignor aided in putting up the goods sold, at the request of the assignee, for which the assignee received the purchase price. The assignor was in and about the store up to the sale at public auction, but had no control whatever. There is, therefore, a complete failure of proof tending to show that an immediate possession was not taken and held by the assignee.

The assignor’s wife is a sister of Driscoll. Before her marriage she was her brother’s housekeeper and he owed her $1,000 for that service. He sent her a check for this sum, which the sister handed over to her husband. Driscoll intended this $1,000 as a gift to the assignor’s wife, but she never accepted it as such, and never even knew of his intention. As the case stands Driscoll owed his sister $1,000 for services. He sent a check, which was received by the assignor. He intended this to be a present to the wife, but she knew nothing about it. Driscoll still owes his debt to his sister and the assignor has never obtained any title to the $1,000.

The preference of the debt in the assignment is, therefore, just and legal, and the judgment should be affirmed, with costs.

Dy.kman, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    Elizabeth D. De Lancey, Respondent, v. Henry Piepgras, Appellant, Impleaded with John Hunter, Respondent.

      Judgment — emended nunc pro tunc— Code, §§ 721, 722, 723 — judgment for the possession of land includes structures wrongfully erected thereon.

    A judgment of the Supreme Court had been modified by the Court of Appeals so as to conform to the conditions contained in a certain grant, and the modification had been made in substance in the judgment of the Supreme Court so as to make that judgment conform to the decision of the Court of Appeals, and an execution had been issued thereon for the recovery of the possession of certain real estate; thereafter the person against whom the judgment was recovered applied to the Supreme Court to have inserted in the judgment the very words of the conditions contained in such grant, and such amendment was directed to be made nunc pro tuna.

      Held, that such amendment was within the power of the court. (Code, §§ 721, 722, 723.)
    A judgment to recover the possession of land embraces all structures wrongfully erected upon it.
    Appeal by the defendant, Henry Piepgras, from so much of an order of the Supreme Court, made at the Kings County Special Term on the 17th day of July, 1893, and entered in the office of the clerk of the county of Westchester, as refuses to set aside an execution issued by the plaintiff and the defendant Hunter, directs the modification of such execution, and refuses to set aside the proceedings of the sheriff in delivering the possession of certain premises to the plaintiff and the defendant Hunter.

      Geo. A. JBlaeTc, for Piepgras, appellant.

      Walter D. Edmonds, for plaintiff, respondent.

      Joh/n Hunter, Jr., for defendant Hunter, respondent.
   Barnard, P. J.:

Judgment was entered in this action on the 19th of June, 1891. The Court of Appeals had modified the judgment of the Supreme Court so as to conform to the conditions contained in the grant from George III, King of Great Britain, by Robert Monckton, Captain General, to Benjamin Palmer, May 27,1683. Before the entry of judgment the modification was made, in substance, so as to conform to the decision of the Court of Appeals, and an execution was issued on the 21th of J une, 1893, for the recovery of the possession of the premises. Subsequent to the issue of the execution, the defendant Piepgras applied to the court to insert the very words of the conditions in the Palmer grant, but directed the amendment to be made nunc pro imnc.&s of the date of the entry of judgment. There is nothing in the judgment, as modified, which will permit the defendant Piepgras to keep possession of a dock and other structures erected upon the plaintiff’s land. A judgment to recover possession of plaintiff’s land takes all structures wrongfully erected upon it. An action of ejectment would be of no use if such structures had any influence upon the question of the title, which alone fixes the rights of the parties.

The amendment was within the power of the court. (Code, §§ 721, 722, 723.)

The order should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Order refusing motion to vacate lien August 3, 1893, affirmed, with costs and disbursements.


text:
    Elizabeth D. De Lancey, Respondent, v. Henry Piepgras, Appellant, Impleaded with John Hunter, Respondent.

      Injunction restraining resistance to the enforcement of an execution — when proper.

    The plaintiff in an action of ejectment, by virtue of an execution issued upon the judgment entered therein, was put into possession of certain real estate, and thereafter the defendant entered upon such premises by force, removed a structure erected for the shelter of the plaintiff’s employees, and threw it into the waters of Long Island Sound, using violent threats before such seizure of possession and also after it.

      Held, that it was proper to grant an injunction restraining such defendant from all resistance to the enforcement of such execution, and from interfering in any way with the possession of such premises acquired under such execution.
    Appeal by the defendant, Henry Piepgras, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 22d day of July, 1893, directing the defendant to restore to the plaintiff and the defendant Hunter the possession of certain premises, and directing him to desist from any interference with the enforcement of an execution issued upon a certain judgment or any other mandate issued thereiipon.

      Oeo. A. Black, for Piepgras, appellant.

      Walter JD. Edmonds, for the plaintiff (respondent).

      John Hunter, Jr. for defendant Hunter, respondent.
   Barnard, P. J.:

On the 26th of June, 1893, by virtue of an execution in this case, the plaintiff was put into the possession of certain premises at City Island in Westchester county. On the lltli of July, 1893, the defendant Piepgras entered upon the premises by force, removed a structure erected for the shelter of plaintiff’s employees, and threw it into the waters of Long Island Sound. Violent threats preceded and followed this seizure. On this state of facts the court, upon notice, granted an injunction restraining Piepgras from all resistance to the enforcement of*the execution herein, and from interfering, in any way, with the possession of the premises in question. The appellant, Piepgras, claims that the order restraining him was unauthorized by law, and that the plaintiff has no remedy to enforce a judgment except by an execution. The execution failed to answer his purpose, and the question is whether a new action in ejectment is necessary, which would lead to endless litigation, or whether the court can prevent, in this action, interference with the due and orderly execution of its process. The execution would be sufficient in ordinary cases, but here it is not permitted to have its effect. The court has power to prevent a failure of justice and can punish for a contempt any disobedience to its process. Why not. make an order that a party desist from interference with process and that he reinstate a possession given under it, before enforcing obedience to the process of punishment %

The order should, therefore, be affirmed, with costs and disbursements.

Pratt, J., concurred; Dykman, J., not sitting.

Order denying motion to set aside execution affirmed, with costs and disbursements.

       Sic.


text:
    Elizabeth D. De Lancey, Respondent, v. Henry Piepgras, Appellant, Impleaded with John Hunter, Respondent.

      Interference with the process of a court of general jurisdiction — power to enjoin such interference — contempt.

    A court of general jurisdiction can, by an order, enjoin a defendant from interference with the execution of regular process for the delivery of the possession of land under a judgment.
    A person who interferes with process is punishable by proceedings for contempt if his acts defeat or impair the rights of another.
    Appeal by the defendant, Henry Piepgras, from an order of the Supreme Court, made at the Kings County Special Term, entered in the office of the clerk of the county of Westchester on the 26th day of August, 1893, denying the defendant’s motion to vacate an order restraining the defendant from interfering with the execution of a judgment putting the plaintiff in possession of real property.

      Geo. A. Blade, for Piepgras, appellant.

      Walter D. Edmonds, for the plaintiff (respondent).

      John Hunter, Jr., for defendant Hunter, respondent.
   Barnard, P. J.:

Hponthe appeal from the order of July 22,1893, we came to the conclusion that a court of general jurisdiction could, by an order, enjoin a defendant from interference with the execution of regular process for the delivery of the possession of land under a judgment; that such an order would be upheld under the general provisions of a court, to prevent injustice. There could never be a final settlement of a dispute if, after possession was delivered under an execution, the dispossessed party could re-enter by force. A person who interferes with process is punishable by proceedings for a contempt if his acts defeat or impair the rights of another. (King v. Barnes, 113 N. Y. 476.)

The order should be affirmed, with costs and disbursements.

Pratt, J., concurred; Dykman, J., not sitting.

Order granting injunction July 22, 1893, affirmed, with costs and disbursements.


text:
    James D. Heatherington, Appellant, v. Claus Martens, Respondent.

      Evidence justifying the payment by a sheriff to one of two claimants.

    "What evidence will justify an order directing the payment of money "by a sheriff to one of two adverse claimants.
    Appeal by the plaintiff, James D. Heatherington, from an order made by the county judge of Richmond county, at Chambers, and entered in the office of the clerk of the county of Richmond on the 10th day of May, 1893, directing the sheriff of Richmond county to pay to Margaret Fitzpatrick the sum of eighty-six dollars and sixty-eiglit cents.

      Charles L. Hubbell, for the appellant.

      William A. Shortt, for the respondent.
   Dykman, J.:

This is an appeal from an order made by the County Court of Richmond county. The facts upon which the order was based aro these: Martens recovered a judgment against one Faliy on the 19th day of December, 1892, for $418.42, and an execution was issued thereon to the sheriff, who made a levy under it. That judgment was assigned by Martens to Margaret Fitzpatrick, by an instrument made January 3, 1893,'and filed and recorded in the office of the clerk of Richmnd county January 21, 1893. That assignment was made for a valuable consideration and in good faith. Thereafter, on January twenty-third, Heatherington, the appellant, recovered a judgment against Martens for eighty-six dollars and sixty-eight cents in a court of a justice of the peace, and caused execution to be issued thereon to the sheriff. Before the return of the execution the appellant procured an order for the examination of Martens in proceedings supplementary to execution, on the allegation that he had property which he unjustly withheld, and Fahy, who was summoned as a witness, was enjoined from the payment of the judgment held by Misé Fitzpatrick. Martens, not being personally served, failed to attend the examination, and the appellant procured an order requiring him to show cause why he should not be punished for contempt, which was returnable on the fourteenth day of February. .

Martens obtained an order to show cause, returnable the same day, why the order for his examination should not be vacated, upon the ground that the papers upon which it was obtained were insufficient to give jurisdiction.

On the fourteenth of February these motions were heard by the County Court and decided in favor of Martens, and the order for his examination was vacated and the injunction upon Fahy was dissolved. In order, however, to give the appellant an opportunity to examine Martens, it was ordered, by consent, that the amount due on the Martens judgment against Fahy should be turned over to the sheriff, and so much as was claimed by Heatherington upon his judgment against Martens, eighty-eight dollars and sixty-eight cents, should be held by that officer until the further order of the court. Thereupon Fahy paid the full amount of the judgment against him,, the sheriff giving him a receipt for eighty-six dollars and sixty-eight cents, and the balance was turned over to Miss Fitzpatrick, and having thus paid the judgment, Fahy demanded a receipt and satisfaction thereof.

After waiting over seven weeks for the appellant to proceed with the examination of Martens, he offered to submit himself at airy time for that purpose. Miss Fitzpatrick, on March thirtieth, gave notice as provided in the order of February fourteenth, of motion for an order directing the sheriff to pay to her the amount collected by him and held under the order of February fourteenth. On that notice, and the affidavit of herself, Martens and Shortt, and on the order of February fourteenth and the sheriffs receipt, the County Court, after hearing both sides, made an order requiring the payment by the sheriff of the sum of eiglity-six dollars and sixty eight cents remaining in his hands to Miss Fitzpatrick. None of the facts were controverted.

Note.— The rest oí the cases of this term will he found in the next volume, ?4 Hun.— [Reporter.

This statement of facts is abundantly sufficient to show the validity of the order. The sum in dispute was collected on the judgment owned and held by Miss Fitzpatrick, and her title thereto had been in no way impeached.

The sheriff, by the order of February fourteenth, was made a stakeholder of that sum of money until Iieatherington should have an opportunity to examine Martens and investigate the transaction respecting the assignment. There was, therefore, no question for the court whatever, and it properly decided that the funds should be paid to Miss Fitzpatrick.

The money was collected by the sheriff on the Martens judgment which had been fairly assigned to Miss Fitzpatrick.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Van Brunt, P. J.:

text:
    David H. Houghtaling and Others, Respondents, v. Louisville, New Albany & Chicago Railroad Company, Appellant.
   Judgment affirmed, with costs, and with leave to withdraw the demurrer and answer on payment of the costs and disbursements of the appeal, and costs in the court below.—

Van Brunt, P. J.:

For the reasons stated in the case of Bryce v. The Same Defendant, decided herewith, the judgment should he affirmed, with costs, and with leave to withdraw the demurrer and answer on payment of the costs and disbursements of the appeal, and costs in the court below.

Folíete and Parker, JJ., concurred.


author: Follett, J.:

text:
    Raphael Lewisohn and Others, Respondents, v. William A. Cleverger, Appellant.
   Judgment affirmed, with costs.

Follett, J.:

This action was brought to recover damages for the conversion of thirty-four diamonds and one diamond stud, of the aggregate weight of about thirty-four carats. There was no dispute about tbe number or weight of the diamonds, and but two questions of fact were litigated on the trial: (1) Did the defendant purchase the diamonds in good faith ? (2) What was their value ? The jury found that the defendant purchased in bad faith and that the value of the diamonds was $1,700, which is at the rate of fifty dollars per carat. The evidence is abundant to sustain the verdict that the defendant purchased in bad faith, is liable in trover for the value of the goods, and that they were worth the sum found by the jury. The plaintiffs purchased these and other diamonds on the 8th or 9th of January, 1891, and they were permitted to show the price per carat for which they sold some of the diamonds so purchased. It is urged that this was error. Undoubtedly the price at which the other diamonds were sold was not a relevant fact upon the question of the value of the diamonds converted. This evidence did not go to the right, but to the amount, of recovery, and the evidence being ample to sustain the finding that the goods were of the value assessed by the jury, it is apparent, we think, that the error" did not prejudice the defendant. The judgment should be affirmed, with costs.

Van Brunt, P. J., and Parker, J., concurred.


author: Per Curiam:

text:
    Daniel E. Donovan, Respondent, v. Margaret Clark, Appellant.
   Order affirmed, with ten dollars costs and disbursements.—

Per Curiam:

This action was brought to recover against the defendant as a surety upon an undertaking, and an attachment was f-ranted therein upon the ground that the deendant, a resident of the State, had kept herself concealed therein with intent to evade the service of the summons. In the disposition of this appeal, it is not necessary to recite the facts established by the evidence. Suffice it to say that they necessarily lead to-the conclusion that the defendant was keeping herself concealed with intent’to evade the service of the summons in this action, and it is seldom that such conclusion is so satisfactorily established in cases of this character. The order appealed from should be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., Follett and Parker, JJ.


text:
    Anthony Van Bergen v. Ludwig Lehmaier and Others.
   We think that restitution should be made or a bond given.


text:
    Simon Wormser and Others, Appellants, v. John Nicholas Brown and Others, Respondents.
   Motion denied, with ten dollars costs.


text:
    Benjamin H. Howell, Appellant, v. William W. Tompkins, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Louis Swartz, Respondent, v. Samuel Jerkowski, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Martin Keery, Respondent, v. Charles L. Dimon, Appellant.
   Order modified and affh’med as

modified, without costs.


text:
    Mark Lythgoe, Respondent, v. Jane Smith, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Edwin P. Merritt, Respondent, v. George W. Stickle, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Matter of Manhattan Railway Company, Respondent, v. Henry N. Tabor and Others, Appellants.
   Order reversed, with ten dollars costs and disbursements.


text:
    Charles H. Jenkins, Respondent, v. Henry Rogers, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Hannah Kennedy, as Administratrix, etc., Respondent, v. The Manhattan Railway Company, Appellant.
   Judgment and order afrmed, with costs. No opinion.


text:
    Rosine Bechler, Respondent, v. Commercial Advertiser, Appellant.
   Order affirmed, with, costs.


text:
    The People of the State of New York ex rel. The American Road Machine Company v. The Town Board of Auditors of the Town of Floyd, Oneida County, N. Y.
   The action of the town hoard confirmed, with fifty dollars costs and disbursements. Mem. by Hardin, P. J.


text:
    George G. French, Respondent, v. Susan Row and Another, Appellants.
   Ordered that the appeal of the defendants be dismissed, with costs of the appeal, unless the defendants shall, within twenty days from the service of this order, serve a proposed case and pay the plaintiff ten dollars costs.


author: Hardin, P. J.:

text:
    Alexander Richert, Respondent, v. John Backenstross, Appellant.
   Decision as stated in memorandum of Hardin, P. J., filed with the clerk.—

Motion to vacate judgment herein, and amend the decision “ to conform to the opinion and permitting a reargument ” or permitting an appeal to the Court of Appeals.

Hardin, P. J.:

From the opinion handed down upon the decision, etc., of the appeal, it is apparent that the modification was made of the justice’s judgment, in the exercise of the powers given to the County Court by section 3043, and it was the intent of the court that the respondent should have only ten dollars besides disbursements for his costs in the County Court. In the respect mentioned as to damages, and as just stated as to costs, the judgment of the County Court was modified, so that it remained a judgment for plaintiff of forty-eight dollars and ten dollars costs besides disbursements. (See Code Civ. Proo. § 3066.) (2) The decision, or memorandum thereof, stated that the judgment of the County Court was modified as to damages and costs in the County Court in the respects mentioned, “and as so modified affirmed, without costs of the appeal to either party; ” the last part of the memorandum of decision applies to the costs of the appeal in this court; that must control notwithstanding any expression in the affirmance inconsistent therewith. The decision or memorandum, ana the order entered thereon, may be amended so as to read, viz.: Judgment of the County Court modified, so that it shall award a recovery of only forty-eight dollars damages to the plaintiff, and costs in the sum of ten dollars only, besides the disbursements in the County Court, and any other costs inserted in the judgment entered on the judgment of the County Court are stricken out of the record, neither party to have costs on the appeal to this court. (3) The motion, so far as it asks for a reargument or for leave to appeal to the Court of Appeals, is denied, without costs. Upon serving a copy of this memorandum, eitlier party may, upon five days’ notice, have an order settled before Hardin, P. J. No costs are allowed upon this motion.


text:
    In the Matter of Proceedings to Remove Lewis E. Mosher, Justice of the Peace.
   Order granted, continuing case to next term.


text:
      Holland C. Johnson, Appellant, v. Lewis Warren, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Esther Y. McCarthy, Appellant, v. Eugene McCarthy, Respondent.
   Order reversed, with ten dollars costs and disbursements. Held, (1) that the giving of the undertakings specified in the papers before us, did nob operate per se as a stay of proceedings without the giving of the bond with sureties as provided in the judgment. (Code Civ. Proc. § 1380; Galusha v. Galusha, 108 N. Y. 114.) (2) That if the Supreme Court has power to stay proceedings on the judgment without the giving of the bond called for by the judgment, as intimated in Granger v. Craig (85 N. Y. 619), there is no sufficient reason apparent in the papers before us for the exercise of the discretion of the court in that regard.


text:
    Leah V. Briggs and Others, Appellants, v. Azzle Clark, Respondent.
   Order reversed, without costs; action upon the appeal suspended.


text:
    Horace B. Ensworth, Respondent, v. Albert Wright, Appellant.
   Judgment affirmed, with costs.


text:
    John M. Walker and Another, Appellants, v. Arthur E. McAllister, Respondent, Impleaded, etc.
   Judgment and order reversed and a new trial ordered, with costs to abide the event. Held, (1) the court erred in receiving evidence of Phillips’ conversation with McAllister, at folio 181 of case. (2) Whether on the facts the defendant was entitled to have the case submitted to the jury is at least doubtful, but as the judgment must be. reversed for the error already pointed out, we do not discuss that question.


text:
    Cordelia Green, Respondent, v. Peter Rebyor, Appellant.
   Judgment and order affirmed, ’ witli costs.


text:
    John Flynn, Appellant, v. George D. Lathrop, as Administrator, etc., Respondent.
   Judgment and order affirmed, with costs.


text:
    Seymour Smith, Respondent, v. George Barnard, Appellant.
   Judgment affirmed, with costs.


text:
    Havana Journal, Appellant, v. Sewell Pike, Respondent.
   Judgment affirmed, with costs.


text:
    Havana Journal, Appellant, v. Mary E. Weed and Others, Respondents.
   Judgment affirmed, with costs.


text:
    Daniel Schmeer, as Administrator, etc., Appellant, v. Gas Light Company of Syracuse, Respondent.
   Judgment affirmed, with costs.


text:
    Isaiah J. De Foe, Appellant, v. Mary Baltz, Respondent.
   Judgment reversed and a new trial ordered, with costs to abide the event. Held, that the evidence presented a question of fact which ought to have been submitted to the jury.


text:
    Benjamin Blackburn, Appellant, v. The Rome, Watertown and Ogdensburgh Railroad Company, Respondent.
   Judgment affirmed, with coste. (See Redmond v. Same Defendant, 31 N. Y. St. Repr. 366, and cases cited therein.)


text:
    Thomas Fanning, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed, with costs.


text:
    Catherine Boland, as Administratrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment and order reversed and a new trial ordered, with costs to abide the event. Held, that the question of damages should have been submitted to the jury. (47 N. Y. 317, Ihl v. Forty-second Street R. R. Co.; 23 Hun, 449, Gorham v. The Central & H. R. R. R. Co.; 110 N. Y. 504, Birkett v. Knickerbocker Ice Co.; 117 id. 542, Murray v. Usher; § 1904, Code Civ. Proc.)


text:
    Moses Nelson, Appellant, v. Jason Burchell, Respondent.
   Judgment affirmed, with costs.


text:
    Wilson H. Gardinier, Appellant, v. Mary J. Perry and Others, Respondents.
   Judgment and order affirmed, with costs.


text:
    Simon D. Paddock, Appellant, v. Patrick Guyder, Respondent.
   Interlocutory judgment affirmed, with costs. (See 33 Hun, 34; 21 N. Y. St. Repr. 326; 104 N. Y. 518; 133 id. 242.)


text:
    LaFayette Denio, Respondent, v. John Lord, Appellant.
   Judgment and order affirmed, with costs.


text:
    William Klein, Respondent, v. John Wegman, Appellant.

      Order refusing to open a default — when justified.

    When an order refusing to open a default upon an application to punish the defaulting party for contempt is justified.
    Appeal by the defendant, John Wegman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the Jtli day of August, 1893, refusing to open the default taken against him upon his failure to appear in opposition to a motion to punish him for contempt.

      W. B. Yeecler, for the appellant.

      Geo. F. Murray and Geo. IF". Wingate, for the respondent.
   Barnard, P. J.:

The plaintiff and defendant were owners of adjoining property. The defendant erected his building so as to encroach on the plaintiff’s premises. The plaintiff commenced an action to restrain the encroachment and procured a decree that the defendant was required to remove the encroachment within twenty days after service of a certified copy of the judgment and in accordance with its directions. The defendant has not done so. Upon an application to the court to punish him for his contempt the defendant made no appearance, and an order was made adjudging him guilty and imposing a fine and directing his confinement in close custody until he obeyed the judgment. The defendant made application to open his default and this was denied. The appeal is from this order. The order was right. The affidavits excuse the contempt.by alleging that the encroachment is slight; that the defendant has sold his property and the purchaser will not let the defendant outer upon it to comply with the judgment; and that the plaintiff will not permit defendant to enter upon his property for the same purpose. The defendant has given a bond to indemnify his vendee against the encroachment, and the plaintiff, although he refused at first to allow it, notified the defendant before these proceedings were commenced that he could enter on his la,nd to remove the encroachment. The extent of the same is not material. If it was so considerable as to be valuable enough to take, and the judgment ordered its removal, the defendant owes obedience to the judgment. If the papers, read upon the motion to open the default, had been read on the motion to punish for contempt, they would furnish no defense for the disobedience of the judgment. A motion to set aside the default would be reached on the merits. The defendant does not seem to be willing to obey the judgment. He put up the house in defiance of the pending suit to restrain him. "When sold, gave a bond to justify the obstruction, and then asserts that the purchaser from him will not let him remove it.

The order should be affirmed, with costs and disbursements.

Pratt and Dykman, JJ., concurred.

Order affirmed, with costs and disbursements.


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    John Adamson, Respondent, v. The Union Railroad Company of the City of Brooklyn, Appellant, Impleaded, etc.

      Action to nullify an illegal official act — bad faith sufficient — corruption and fraud ■need not be shown —prevention of the realization of money by a city is a toaste of ‘municipal funds— “fraud” defined.

    Bad faith amounting to fraud is sufficient to justify an action, under chapter 301 of Laws of 1892, hy a private individual to prevent an illegal official act on the part of municipal officers, or to prevent the waste and injury of public property. It is not essential that corruption and fraud be shown.
    The common council of a city refused to entertain the proposition of a certain street railway company, hy which the city would have realized $80,000 for a franchise requested, and the same franchise was granted to another company, whose proposition did not involve its paying the city any compensation therefor.
    In an action brought to restrain the latter company from constructing its road under the franchise so granted to it, the trial judge found that the act of granting the franchise was wrongful and in had faith, and a breach of the official duty of the city officials.

      Held, that a case of malfeasance was established ;
    That while there might possibly be a case where circumstances would justify such a course, the action of the officials was, in the case at bar, illegal, wasteful and fraudulent;
    The prevention of the realization of money hy a city is equivalent to a waste of the public funds of the municipality.
    Fraud, in its broad significance, includes all acts and omissions which involve a breach of legal duty injurious to others.
    Appeal by tbe defendant, The Union Railroad Company of the city of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of July, 1893, upon a decision of the court rendered after a trial at the Kings County Special Term, annulling and declaring void a grant made to it.

      James C. Church, for the appellant.

      Edward M. Grout, for the respondent.
   Dykman, J.:

This is an appeal from a judgment procured at Special Term, which adjudged the consent of the local authorities granting to the defendant corporation permission to build its railroad to be illegal, and restraining that corporation from constructing any part of its road.

It is tlie object of the action to procure a judgment which shall declare the grant to the corporation set oitt in the complaint to be illegal, and restrain that company from doing any act or taking any step toward the construction of a railroad over the streets and avenues described.

The complaint contains the following allegations: The plaintiff is a citizen, resident and freeholder of tlie city of Brooklyn, and owns real estate therein which is assessed for more than $ 1,000; that he is liable to be assessed in the city of Brooklyn, and has been so assessed and has paid taxes there within one year previous to the commencement of this action. It is also alleged that tlie plaintiff’s dwelling house is situated on tlie southerly side of Union street in the city of Brooklyn; that the city of Brooklyn is a municipal corporation, and that the Union Railroad Company is a domestic railroad corporation ; that the individuals named as defendants are members of the common council of the city of Brooklyn, and, as such, were trustees of the property, funds, effects and estate of the city.

In or about the month of June, 1892, tlie defendant railroad company and the Union Street Railway Company, another domestic railway corporation, made application to the common council for leave to construct, operate and maintain a street surface railway to be run by electric power along certain streets in the city of Brooklyn.

The common council, first through a committee and afterwards as a whole body, heard the applications at the same time. The Union Street Railway Company then and there offered the said committee and the common council to pay the sum of $30,000 for a grant from the city authorities for the right to construct and operate such railroad through such streets, and was ready and able to pay the same. The defendant railway corporation made no offer whatever for such grant. Each of the railway companies proposed to build and operate, and would have built and operated, the same kind of a railway, and there was no difference between them, and no preference could, for any reason, be given to the one'over the other.

The common council and its committee wrongfully and willfully, and in violation of their official duties to the city and the taxpayers, and in waste of tlie property, funds, effects and estate of the city, solely in order to favor the said defendant railway company and the persons avIio are incorporators and stockholders' thereof, and colluding with such persons, with intent to cheat and defraud said city out of the value of said leave to construct, operate and maintain said railroad, refused to entertain the offer of the Union Street Railway Company, and ignored and refused to consider the same, and on the Ith day of July, 1892, voted to give leave to construct, operate and maintain such street surface railway on the said streets and avenues to the defendant railway company and exacted no terms or compensation therefor. The resolution granting said leave thereafter came before the mayor of the city of Brooklyn and was vetoed by him on the grounds, among others, that the same was illegal and wasteful, and that the leave to construct, operate and maintain such railroad if of any value to any railroad company was also of value to the city of Brooklyn, and the city of Brooklyn should receive compensation therefor.

Thereafter the common council wrongfully and willfully, and in violation of their official duties to the city and taxpayers, wasted the property and funds of the city, solely to favor the defendant railway company and the persons who are incorporators and stockholders thereof, and colluded with such persons with intent to cheat and defraud said city out of tlie value of said leave to construct, operate and maintain such railroad, by again refusing to entertain the offer of the Union Street Railway Company, and ignored and refused to consider the same, and passed the said resolution over said veto.

The right to construct, operate and maintain a street surface railway over the said streets and avenues is a valuable right, for which the city of Brooklyn could realize a large sum of money, little less than the sum of $30,000.

The plaintiff has requested the defendant the city of • Brooklyn, through its mayor, to bring or cause to be .brought an action to have tlie said grant declared null and void, but the said defendant has neglected and failed so to do.

The cause was tried before a judge, who found that the plaintiff is a citizen of the city of Brooklyn, a freeholder and elector therein, and that his assessment on real estate therein owned by him amounts to more than $1,000, and he is liable to be taxed upon such assessment in such city, and lias been so assessed, and lias so paid taxes in said city on such assessment for one year previous to the commencement of this action. That the city of Brooklyn is a municipal corporation. The defendant, the Union Railroad Company, and the Union Street Railway Company also, are domestic corporations. The individual defendants are members of the common council of the city of Brooklyn. Shortly after the incorporation of the Union Railroad Company of the city of Brooklyn, it made written application to the common council for their consent to the construction and operation of its railroad upon the streets and avenues described in its charter; but no decisive action was at that time taken in regard to such written application.

The two railroad corporations, the Union Railroad Company and the Union Street Railway Company, made application to the common council for leave to construct, operate and maintain a street surface railroad, to be operated by electric power along certain streets in the said city, the route described in both applications being the same.

The attorney for the Union Street Railway Company offered to the committee to pay to the said city $30,000 for the right applied for; that said committee failed, refused and neglected to entertain the offer of $30,000, and reported in writing to the common council, recommending that the said right be given to the defendant railroad company, and failed and neglected to report the said offer of the $30,000 to the common council. The committee, and the members thereof, purposely and in bad faith, and in order to prevent the consideration of the said offer by the common council, failed to report the same, and the common council passed a resolution granting the consent asked for by the Union Railroad Company. The offer of $30,000 was not entertained or considered by the common council, but that body by resolution granted the right to build and operate such road along the entire route to the defendant railway company, without obtaining or exacting any equivalent conditions, or obtaining any service or advantage which the other company would not also have furnished to the city and public, and without obtaining any compensation for such permission, and gave away the said franchise without recognizing the proposition and offer of the Union Street Railway Company. That neither the committee nor the common council were influenced in their action by any differences in accommodation or public service between the said two companies by the railroads they intended to build and operate.

As conclusions of law, the judge decided that the neglect to entertain the offer of $30,000 and report the same to the common council was a breach of official duty by the members of the committee, and unlawful and done in bad faith; that the committee and common council were recpiired by law to entertain the said offer, and the said committee were required by law to report the same to said common council, and it was the duty of the common council to entertain and consider the said offer, and to make the said, grant to the company offering and ready to pay the said sum of $30,000 therefor, there being no satisfactory offer or inducement held out by the other company. That the refusal- to entertain the proposition in the said petition and the said offer, and the giving away of the said right or franchise notwithstanding the same, for no consideration, and without exacting or receiving any equivalent, was wrongful and in bad faith, and a breach of official duty by the official defendants, and that the plaintiff was entitled to judgment enjoining the defendants and each of them from proceeding further with such illegal action, or from constructing or permitting the construction of the said road, and also annulling the said action of the common council, and declaring void and of no effect its said resolution or grant.

These findings are amply sustained by the evidence, and judgment was entered in accordance therewith pursuant to the first part of the prayer of the complaint, and the Union Railroad Company has appealed therefrom to this court.

This action was tried and decided upon the theory that the plaintiff was a taxpayer, and in reference to the rights of taxpayers to entertain such actions under chapter 301 of the Laws of 1892, and we shall so consider it.

The portion of section 1, which is material to this action, reads as follows: “ All officers, agents, commissioners and other persons acting, or who hare acted, for and on behalf of any county, town, village or municipal corporation in this State, and each and every one of them, may be prosecuted, and an action or actions may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and. make good any property, funds or estate of such county, town, village or municipal corporation by any person or corporation whose assessment, or by any number of persons or corporations jointly, the sum of whose assessments shall amount to one thousand dollars, and who shall be liable to pay taxes on such assessment or assessments in the county, town, village or municipal corporation to prevent the waste or injury of whose property the action is brought, or who have been assessed or paid taxes therein upon any assessment or assessments of the above-named amount, within one year previous to the commencement of any such action or actions.”

The object of the action so authorized must be to prevent an illegal official act, or to prevent waste or injury to any property, funds or estate of such county, town, village or municipal corporation. Civil actions by private individuals to prevent waste and injury of public property, protect taxpayers and restrain official malfeasance, were unknown to the common law, and were first authorized in this State in 1872, in consequence of the stupendous frauds perpetrated in the city of New York about that time.

The first act authorized an action against officers and agents of counties, towns and ■ municipal corporations of the State to prevent waste or injury to property or funds thereof. (Laws of 1872, chap. 161.)

Thereafter this act was incorporated into section 1925 of the Code of Civil Procedure. Then came chapter 52G of the Laws of 1879, which gave the action for the same purpose in substantially the same language. That was followed by chapter 435 of the Laws of 1880, in the same terms so far as the relief was concerned.

The first act of 1872 was entitled “ An act for the protection of taxpayers against the frauds, embezzlements and wrongful acts of public officers and agents,” and down to 1880 the acts were amendatory of that statute.

Then came the act of 1881, which was an independent statute, entitled “ An act for the protection of taxpayers,” and in it for the first time were these words : “ To prevent any illegal official act on the part of any such officers,” followed by the words £‘ or to prevent waste,” etc. (Chap. 531, Laws of 1881.) That law repealed chapter 435 of the Laws of 18G0.

To that law there was an amendment in 1887, but substantially the same -words wére employed in specifying the relief authorized as in the law of 1SS1. (Chap. (373, Laws of 1887.) That statute was followed by chapter 301 of the Laws of 1892, from which we have quoted. The history of legislation on this subject shows how progressive have been the enactments. Instead of an abridgment of its scope, or a relaxation of its rigor, the Legislature has extended its sweep and augmented its severity, and that is a sufficient admonition against any circumscription of its operation. All the statutes have been in the interest of the public and aimed at frauds and wrongful acts of public officers and agents.

It is the insistance of the appellant that bad faith is insufficient to justify this action, and that nothing short of corruption and fraud will suffice, and of that there is no proof. We cannot concur with this view. It was stated in substance in the opinion of the Court of Appeals in Tolcott v. City of Buffalo (125 N. Y. 280) that fraud, or bad faith amounting to fraud, brought a case within the operation of this statute.

Here the common council refused to entertain the proposition of the Union Street Eailway Company, by which the city woidd have realized the sum of $30,000 for the same franchise which was bestowed without compensation, and the trial judge found that act was wrongful, in bad faith and a breach of official duty of the official defendants.

Plainly it was a case of malfeasance, and judged by the motives which actuate men the inference is easily drawn that the action was»collusive. If the object was not to favor the defendant corporation the act is inexplicable. That favor was a pecuniary injury to the municipality and the act was a fraud upon the city. Official misconduct and bad faith are so near the domain of fraud that the line of partition is indistinguishable. While it is difficult to give a precise definition of fraud, yet in its broad signification it includes all acts and omissions which involve a breach óf legal duty, injurious to others.

In fact, to the eye of an ordinary observer, the fraud here is palpable. One company offered $30,000 for the franchise, and the offer was refused, and the other offered nothing and received the franchise.

While there may possibly be a case where circumstances would justify such a course, yet this record discloses no such justification.

We concur fully with the trial judge that the prevention of the realization of .money by the city is equivalent to waste of the public funds of the municipality.

In fact, we concur in the opinion of the trial judge entirely, and deem further elaboration unnecessary.

In conclusion, we say the action of the officials was illegal, wasteful and fraudulent, and the judgment should he affirmed, with costs.

Barnard, P. J., concurred.

Judgment affirmed, with costs.