text:
    The People of the State of New York, Respondent, v. James Burns, Appellant.

      Power of pardon — conditional commutation of sentence — procedme upon the •violation of the condition thereof.

    The discretion given to the Governor of the State by the Constitution in exercising the power of pardon, is very wide in respect to the conditions which may be attached to pardons and commutations of sentences, no distinction being made between the two forms of executive clemency, and it is within the power of the Governor to grant a commutation upon the express condition that the person whose sentence is commuted shall abstain from the use of intoxicating liquors for five years from the date thereof, and in case such condition shall not be complied with that the prisoner shall be compelled to serve in the State prison the portion of his term then unserved, and the violation by the prisoner of such condition deprives the commutation of all force and effect, and restores to the original sentence the same force and effect as if the commutation had not been granted.
    A person was seized by the warden of a prison upon a charge of the alleged violation of the condition of the commutation of his sentence, and consigned to imprisonment under his original sentence. Thereafter, a writ of habeas corpus was sued out in his behalf, and upon the return thereof his objections to the commitment were in fact sustained on the ground that it was not competent for the warden to seize and recommit him without a hearing on the question of the violation of the condition of his commutation, and the defendant was discharged from the custody of the warden, but an order was then made requiring him to show cause forthwith why he should not be remanded to the State prison under his original sentence for the violation of the condition of his commutation, and that, in the meantime, he be delivered to the sheriff and held by him until so remanded to prison or discharged according to law. The inquiry under such order to show cause was postponed, and upon the adjourned day the prisoner appeared in person and by counsel, a jury was impaneled, evidence taken on the part of the People and of the prisoner, the question of fact tried and submitted to the jury, and a verdict rendered by it in pursuance of which the prisoner was recommitted to the custody of the warden of the State prison. under the original sentence imposed upon him.

      Held, that the defendant had nothing to complain of under such course of procedure, which was justified hy precedent.
    Appeal by the defendant, James Burns, from the judgment,, order and refusal of the Supreme Court to discharge him from imprisonment on the return of a writ of habeas corpus, and alsa from an order entered in the office of the clerk of the county of Cayuga on the 1st day of November, 1893, refusing to grant the defendant a writ of certiorari, and also from the decision of the court, that it had jurisdiction to try the defendant upon the return of a. writ of habeas corpus for the alleged violation of the condition of the commutation of his sentence, and also from the judgment and. verdict upon such trial, entered in said clerk’s office on the 2d.day" of November, 1893, and also from the decision of the court directing the confinement of the defendant until his trial.

      J. II. Keefe, for the appellant.

      G. W. Kellis, District Attorney, for the respondent.
   Dwight, P. J.:

The order appealed from remanded the defendant to the custody of the warden of the State prison at Auburn on the ground that he had violated the condition of the pardon by virtue of which he had. previously been released from such custody.

On the 18th day of May, 1889, the defendant was convicted in. the Herkimer Sessions of the crime of robbery in the first degree and sentenced to imprisonment at hard labor in the Auburn State prison for the term of thirteen years.

On the 10th of January, 1893, the Governor granted a commutation of the punishment, thus imposed, to a like imprisonment for the term of three years, seven months and twenty-two days from May 20, 1889, to terminate January 11, 1893, on which day the defendant was accordingly released from his imprisonment.

The commutation thus granted was upon the express condition, among others, “that the said Burns shall totally abstain from the use of intoxicating liquors for five years from the date hereof, and, if he violate such condition, he shall be compelled to serve in the .State prison, at Auburn the portion of said term now remaining unserved without commutation for good behavior.”

On the 6th day of June, 1893, the defendant was arrested in Rochester, on a charge of robbery, in a saloon, where, according to his own account of himself to the police magistrate, and other evidence, he had been drinking for some time with a party of persons whom he had invited there for that purpose, one of whom complained of being robbed of his watch by the defendant. -Upon these facts being made known to the district attorney at Rochester, he reported the case to the warden of the State prison at Auburn, and the latter dispatched an officer to Rochester, who, under his instructions, brought the defendant back to Auburn, and delivered him to the custody of the warden, who received and consigned him to imprisonment under his original sentence, as having forfeited his commutation by violating the condition upon which it was granted.

On the thirtieth day of October the defendant sued out a writ of habeas corpus, which was allowed by Justice Rumsey, and made returnable before him the next day at an adjourned term of the Court of Oyer and Terminer for Cayuga county. The defendant was produced, accordingly, by the warden of the State prison, who made return of, substantially, the facts above stated. The defendant traversed the return only in respect to the alleged violation of the condition of his commutation, but objected to it for insufficiency on many grounds. The court, in effect, sustained the objection that it was not competent for the warden to seize and recommit the defendant without a hearing on the question of his violation of the condition of his commutation, and accordingly discharged the defendant from the present custody of the warden, but made an order requiring him to show cause, forthwith, before the same court, why he should not be remanded to the State prison under his original sentence, for violation of his conditional pardon, and that in the meantime he be delivered to the sheriff of. Oaynga county, and be held by him until so remanded to prison, or discharged according to law. The inquiry under the order to show cause was postponed until the second day of November. On that day the defendant appeared in person, and by counsel, a jury was duly impaneled, evidence was duly taken on the part of the People and of the defendant, the question of fact was tried, and, after argument of counsel, was specifically submitted to the jury by the court. The jury returned a verdict to the effect that the defendant had violated the above-mentioned condition of his conditional pardon or commutation, and the court thereupon made an order recommitting the defendant to the custody of the warden of the State prison under the sentence originally imposed upon him.

We find no error in the mode of procedure adopted in this case nor in the final order here appealed from.

The Constitution of the State contains the following provision: ■“ The Governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper.”

The discretion here given to the executive is very wide in respect to the conditions which may be attached to pardons and commutations of sentence, no distinction being made between the two forms •of executive clemency, and we cannot doubt that the condition imposed in this case was within that discretion. Such being the case, the violation of that condition deprived the commutation of nil force and éffect and restored to the original sentence the same force and effect as if the commutation had not been granted.

The statutes of the State provide, specifically, no mode of procedure for enforcing the liability to recommitment incurred by a violation of the condition'of a pardon or commutation, but the mode •adopted in this case had the authority of precedent (People v. James, 2 Caines, 57; People v. Potter, 1 Park. Cr. Rep. 47), and it seems to have been one of which the defendant could not complain. He was before the court on a writ of habeas corpus granted on his own application, and lie thereby submitted to the court the whole question of his right to a discharge or his liability to a recommitment. The fact of his original sentence and commitment, and the condition attached to the commutation of that sentence, were •duly proved and not denied. No question of identity was raised. The only question of fact was of the violation of the condition mentioned. In determining that question the court, though possibly not required to do so, might at least with great propriety take the verdict of a jury drawn, as was done, from the panel of jurors summoned and in attendance at the term; and his commitment pending such trial to the custody of the sheriff of the county was strictly in accordance with the statute which prescribes the proceedings on habeas corpus. (Code Civ. Proc. § 2037.)

The question whether it was competent for the Governor to prescribe, by the defendant’s commutation, that his imprisonment under a recommitment for a violation of the condition in question, should be without commutation for good behavior, was not, in any manner, prejudged in this proceeding, but remains to be determined whenever it shall appear that he is otherwise entitled to such commutation.

The order appealed from should be affirmed.

Lewis, Haight and Bradley, JJ., concurred.

So ordered, without costs of this appeal to either party.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    James Kennedy, Respondent, v. Charles N. Strobel, as Executor, etc., of Hannah Rank, Deceased, Appellant.

      Release of mortgaged property — when valid, though without consideration — a delivery of the mortgage unnecessary.

    A release of property from the lien of a chattel mortgage, though given without consideration, is not void if the same is a voluntary and executed gift; and a. delivery of* the mortgage, where it covers property other than that released, is. not necessary to consummate the gift, a delivery of the release being all that is. required.
    Appeal by the defendant, Charles N. Strobel, as executor, etc., of Hannah Rank, deceased, from a judgment of the Supreme' Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 28th day of August, 1893, upon the verdict of a jury for $189.44 after a trial at the Livingston Circuit, and also from an order entered in said clerk’s office on tlie¡ 12th day of June, 1893, denying the defendant’s motion for a new-trial made upon the minutes.

      E. E. Coyne, for the appellant.

      Charles D. Newton, for the respondent.
   Lewis, J.:

Daniel 0. Kennedy, a brother of the plaintiff, executed and delivered to the plaintiff on the 3d day of September, 1892, a chattel mortgage which was in the usual form and covered two horses and a double harness, and was conditioned to pay the plaintiff, one year from its date, $500.

The plaintiff paid to the mortgagor, at the time of the execution and delivery of the mortgage, $114 of the consideration. The balance of the $500 was a past-due indebtedness of the mortgagor to the mortgagee. Daniel C. Kennedy had theretofore, and on the 5th day of September, 1891, executed and delivered to one Hannah Rank, a chattel mortgage upon the same horse and harness described in the plaintiff’s mortgage, and, in addition thereto, one single harness. The latter mortgage was conditioned to pay the mortgagee $1,000 one year from its date. The plaintiff was informed of the existence of this mortgage at the time of taking his mortgage. At the request of the mortgagor, the mortgagee, Hannah Rank, on the 15th day of August, 1892, executed and delivered to the mortgagor a written release from the lien of her mortgage of the property described therein; it purported to be executed for value received, but no money consideration was in fact paid therefor. This release was delivered to the plaintiff at the time of the taking of his mortgage, and he relied thereon in taking his mortgage, and in parting with the $114 heretofore mentioned. Daniel C. Kennedy, the mortgagor, and Miss Rank were, at the time of the giving of the release aforesaid, engaged to be married, and would have been married on the twelfth day of October thereafter, had it not been for her subsequent sickness and death. Miss Rank died on the 19th day of October, 1S92, leaving a last will and testament appointing the defendant executor thereof. The defendant duly qualified as such executor, and thereafter seized and advertised and sold the horses and double harness mortgaged as aforesaid to the plaintiff by virtue of the said mortgage to Miss Rank. The plaintiff forbade the sale, and demanded possession of the property from the defendant, which was refused, and he thereupon brought this action for the conversion of said property, and recovered a verdict for $189.44, being the value of the property converted. The appellant contends that the release having been given without consideration, it was void. Not so if it was a voluntary and executed gift, and the circumstances of its execution and delivery tend to establish that it was a gift. It was natural that Miss Rank should wish to assist her impecunious lover in view of their prospective marriage; she very properly retained possession of the mortgage, as it was a lien upon property which she had not released. Delivery of the mortgage was not necessary to consummate the gift; delivery of the release was all that was required. (Ellis v. Secor, 31 Mich. 189.) After releasing the property from the lien of the mortgage, neither Miss Rank nor her executor had any claim upon it. The defendant was estopped from claiming the property as against the plaintiff. As against a trespasser, the plaintiff’s title to the property was complete, notwithstanding he parted with less than its value at the time of the taking of the mortgage. The defendant, having wrongfully taken the property and sold it, was liable to plaintiff for its full value. The court charged the jury that if they found that the release was executed and delivered to the plaintiff as claimed by him, he was entitled to a verdict for the full value of the property. No exception was taken to the charge. The defendant requested the court to charge the jury that the verdict should not exceed $114, the amount of money advanced; the court refused, and defendant excepted.

If the jury found for the plaintiff they were at liberty to add interest; this exception, therefore, cannot avail the defendant.

The judgment and order should be affirmed.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Judgment and order appealed from affirmed.


text:
    William H. Stone, as Administrator, etc., of Arthur Stone, Deceased, Respondent, v. The Groton Bridge and Manufacturing Company, Appellant.

      Statute of a foreign State giving a cause of action — recovery under, in New Yon'h— the incapacity of a plaintiff to sue must be raised by answer or demu/rrer.

    Although, the statutes of the various States, giving causes of action in case of the death of a person caused by the wrongful act or negligence of another, have no extra-territorial force, the courts of the State of New York, as a matter of comity, where the statutes of the State in which the cause of action arises and that of the State of New York are similar, and where they have jurisdiction of ■defendant, will furnish the machinery to prosecute the claim, but it is the statute of the State wherein the cause of action arose and not that of the State ■of New York which the courts of the latter State will enforce in such cases, .and an action under such statute is maintainable only by the person who, by the terms of the statute of the State wherein the cause of action arose, is authorized to maintain the same.
    The question of the capacity of a plaintiff to sue can be raised only by answer or demurrer, and if not so raised it is deemed to have been waived, but the question whether a complaint states facts sufficient to constitute a cause of action ■can be raised at any time during the trial of the action and need not be presented either by answer or demurrer.
    Appeal by tbe defendant, The Groton Bridge and Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 14th day of J uly, 1893, upon the verdict of a jury for $1,000 after a trial at the Cayuga Circuit, and also from an order entered in said clerk’s office on the 14th day of July, 1893, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes, as amended, in pursuance of a stipulation, by an order entered in said clerk’s office on the 22d day of July, 1893.

      8. D. HalUday, for the appellant.

      H. Greenfield, for the respondent.
   Lewis, J.:

This action was brought by the plaintiff, as administrator of the estate of Arthur Stone, deceased, against the defendant, a domestic corporation, incorporated under the laws of the State of New York, to recover damages for the negligent killing of the intestate by the defendant.

The intestate was a resident of the county of Cayuga, New York. He was an employee of the defendant and was, at the time of the accident which resulted in his death, working upon a bridge which the defendant was engaged in building at Hancock, Maryland. The deceased left him surviving a mother, brothers and sisters, but no father, widow or children.

Plaintiff, a brother of deceased, was duly appointed administrator of Arthur’s estate by the surrogate of Cayuga county, and brought this action as such administrator to recover the damages suscained by the death of the deceased, basing his claim upon a statute of the State of Maryland passed in 1852, which provides for the recovery of damages for the negligent killing of a person in case the person injured, if death had not ensued, would have been entitled to recover.

It further provided that every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused, and shall be brought by and in the name of the State of Maryland for the use of the person entitled to damages. There are other provisions of the act not necessary to be mentioned.

The Maryland statute was fully set out in the plaintiff’s complaint, and it was therein alleged that by virtue of the laws of that State there had accrued to the plaintiff a cause of action against the defendant for the sum of $5,000, for which sum judgment was demanded.

The liability of the defendant was put in issue by the answer, and at the opening of the trial the defendant’s counsel moved for a dismissal of the complaint on the ground that it did not set up facts sufficient to constitute a cause of action, and upon the further ground that there is such a dissimilarity in the statutes of the States of Maryland and of New York that the courts of this State will not, as a matter of comity, enforce the Maryland statute, and further, that the Maryland statute cited provides that the action must be brought in the name of the State of Maryland, and that the action could only be maintained in the name of that State.

At the close of the evidence the defendant renewed his motion on the grounds stated and upon the further ground that the plaintiff had not proved facts sufficient to constitute a cause _ of action.

No question is made but that a cause of action existed against tbe defendant under the laws of the State of Maryland for the killing of the deceased. The question here presented is : Who is entitled to maintain the action and recover the damages ? Can it be prosecuted in the name of the plaintiff as administrator of the estate of his brother?' Although the statutes of the various States, giving causes of action in such cases, have no extra-territorial force, our courts, as a matter of comity, where the statutes of the State in which the cause of action arises and ours are similar, and where we have jurisdiction of the defendant, will furnish the machinery to prosecute the claim; but it is the statute of the State where the cause of action arose that we enforce, and not ours.

The main purpose of the statute of Maryland and ours is similar. In some respects they are unlike.

Under oúr statute the beneficiaries are the husband, wife or next of kin. Under the Maryland act the wife, husband, parent and child of the deceased are the beneficiaries.

Under the facts in this case the mother is the sole beneficiary, as the deceased left no wife, father or child, but left a mother. Neither the brothers nor sisters have any claim under that statute.

Assuming that the matters of difference in the two statutes are not so radical as to prevent our courts enforcing the Maryland act, there is, we think, an insuperable difficulty in the plaintiff’s maintaining this action. As we have seen, the mother is the sole beneficiary.

The entire recovery would go to her. The cause of action arose in the State of Maryland, and the right to prosecute the action here is controlled by the statute of that State.

If the action had been instituted in the State of Maryland it must be prosecuted in the name of that State. If the plaintiff could not have recovered in the courts of Maryland in his name as administrator, we are not able to see how he can prosecute the action here.

It seems to be settled by authority that the action is maintainable only by the person who is, by terms of the statute of the State where the cause of action arose, authorized to maintain it.

In the case of Wooden v. The W. N. Y. & P. R. R. Co. (126 N. Y. 10) plaintiff’s husband was killed in the State of Pennsylvania, through the negligence of the defendant.

She brought an action to recover damages in her own name in the Superior Court of Buffalo, basing her right to recover upon the laws of the State of Pennsylvania.

Under the laws of that State the right of action in such cases is given to the widow for her own benefit and that of the children of the deceased.

It was held that the action was properly brought in her name, and Judge Finch in his opinion says: It is the cause of action created and arising in Pennsylvania which our tribunals vindicate upon principles of comity, and, therefore, must be prosecuted here in the name of the party to whom alone belongs the right of action. And that rule the courts of Pennsylvania enforce where the cause of action arises here by permitting it to be brought by the executor or administrator, to whom, by our law, the right is given, although not by their own.” (Usher v. W. Jersey R. Co., 126 Penn. St. 207.)

The same rule is laid down in Selma, R. & D. R. R. Co. v. Lacey (49 Ga. 106); Belding v. Black Hills & St. Pierre R. R. Co. (52 Am. & Eng. R. R. Cases, 624); Illinois Central R. R. Co. v. Hunter (70 Miss. 471).

Tiffany, in his work on Death by Wrongful Act, section 201,, states the rule to be that “ If the right to sue is given by the foreign statute directly to the beneficiaries they only are entitled to sue, notwithstanding that the statute of the State of the tribunal gives-the right of action to the personal representatives.” The plaintiff, neither personally nor as administrator of his brother’s estate, appears to have any interest in the claim. The mother, who is the sole beneficiary, is not a party to the action, and, so far as appears from the record, was not present at the trial and never had, so far as appears, any knowledge that such an action was pending.

If the plaintiff should succeed in holding this judgment it would not be a bar to an action brought by the State of Maryland for the benefit of the mother. If the beneficiary in this case were not able to induce the State of Maryland to prosecute her claim she would probably be remediless. If it should be held that she was entitled to maintain an action in our courts in her own name, she being the sole beneficiary, that would not remove the obstacle to the plaintiff’s recovery.

He does not claim to liave any authority from the beneficiary to prosecute this action for her benefit.

The question of the plaintiff’s capacity to sue would be raised only by answer or demurrer. (Code Oiv. Proc. §§ 498, 499.)

And if not so raised it is deemed to have been waived. But whether the complaint states facts sufficient to constitute a cause of action can be raised at any time during the trial, and need not be presented either by answer or demurrer.

The plaintiff here has the legal capacity to sue, but he has no cause of action against the defendant.

The defendant’s motion for a nonsuit should have been granted.

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

Dwight, P. J., Haight and Bradley, JJ., concurred.

Judgment and order appealed from reversed and new trial granted, costs to abide the event.


text:
    The People of the State of New York ex rel. Bernard Ritzenthaler, as Overseer of the Poor, etc., Respondent, v. Edward F. Higgins, Appellant, Impleaded with Others.

      Bastwdy proceedings —jurisdiction of the Municipal Court of the city of Rochester — association of justices — adjournments — section 849 of the Criminal Code.

    Under the provisions of the charter of the city of Rochester it is unnecessary in bastardy proceedings for one justice of the Municipal Court of the city of Rochester to associate himself with another justice thereof up to the time of actually commencing the examination therein, and until that time the justices may alternate in the conduct of the proceedings.
    Section 849 of the Code of Criminal Procedure does not prohibit in bastardy proceedings more than one adjournment, nor adjournments for more than thirty-days, where the adjournments are taken by the consent of both parties; it merely limits the time of any one adjournment, without consent, to thirty days.
    The provisions of the charter of the city of Rochester, authorizing- the prosecution of bastardy proceedings in the Municipal Court of the city of Rochester, contemplate that more than one adjournment may be had, and there is no limit to the number or time of the adjournments necessary for the proper disposal of the case, either before or after the actual commencement of the examination, where they are made by the consent of both parties.

      Appeal by the defendant Edward E. Higgins from a judgment of the Monroe County Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 14th day of September,' 1893, upon the decision of the court, on an appeal from a judgment of the Municipal Court of the city of Rochester.

      Fd/wourd F. Wellington, for the appellant.

      O. D. Kiebel, for the respondent.
   Lewis, J.:

On application of the respondent, based upon the affidavit of Mary Barker, a warrant was issued out of the Municipal Court of Rochester in bastardy proceedings against Dorian Clapp, one of the defendants, on the 21st day of February, 1891. Clapp was brought before George E. Warner, one of the judges of the said court, on the twenty-third day of February. He thereupon made application ■for an adjournment of the examination, and for that purpose executed an undertaking in the sum of $500 with the appellant and another as sureties, and the case was adjourned until the ninth day of March following. Upon the adjourned day the defendant appeared and made a further application to have the hearing adjourned until the twenty-fifth of March, to which time the case was adjourned by consent of the counsel for the People. The hearing was again adjourned at the request of the defendant, the People .consenting, to the 8th day of April, 1891. On the last-named day the counsel who had appeared in the former proceedings for the defendant apjieared in court and asked to have the case adjourned until the fourth of May following, stating as a reason for the request that the defendant was confined in the Monroe county jail upon the charge of seducing the said Mary Barker under promise of marriage. The application was granted and the case was adjourned accordingly. Cn the fourth day of May the counsel for the defendant again appeared and asked to have the case held open for ten minutes to enable him to find his client. The request was granted, but neither Clapp nor his attorney again appeared. Thereupon, Judge WaeNeb associated Judge White, the other Municipal Court judge, with him and they declared the undertaking forfeited, and this action was thereafter commenced against Clapp and the two sureties, the appellant Higgins alone defending.

The case was tried in the Monroe County Court before the spe•cial county judge without a jury. He made a decision directing a judgment against the defendants for the sum of $500, and from the judgment entered upon said decision this appeal was taken by the •defendant Pliggins. By the charter of the city of Rochester the Municipal Court of the city is given jurisdiction in bastardy'proceedings. (Chap. 561, Laws of 1890.) Section 848 of the Code of ■Criminal Procedure provides that the magistrate before whom the defendant is brought must immediately associate with himself •another justice of the peace, and the two magistrates thus associated must inquire as to the charge, must examine on oath the woman who is the mother of or who is pregnant with the bastard in the presence of the defendant in respect to the charge, and hear any testimony which may be offered in relation thereto. Section 849 : Magistrates may, on the application of the defendant, for good cause •adjourn the examination not exceeding 30 days, upon the defendant ■giving an undertaking, with two sufficient sureties, to the effect that he will appear before the magistrates at the time appointed, or that the sureties will pay the sum mentioned therein.”

The provisions of the Code are modified by the charter of Roch•ester in the following particulars: Judges of the Munifcipal Court ■are not required to be associated together until the commencement ■of the examination, and the bond the defendant is required to give to obtain an adjournment must be to the effect that the defendant will appear before the said court at the adjourned time and such other time or times to which adjournment may be had for the purpose of the examination and determination, and will render himself amenable to any process, order or commitment that may be issued or made in such proceedings. The bond in question provided that, If the said Dorian Clapp shall personally appear before the said Munic-, ipal Court at the time and place last aforesaid, and at such other time or times to which adjournments may be had for the purpose of the examination and determination therein and will render himself amenable to any process, order or commitment that may be issued or made in such proceedings, then this obligation to be void, otherwise to remain in full force and virtue.” All the proceedings in the action were had before Judge WarNer down to the last adjourned day; tbey seem to have been regular in that regard, for the charter contemplates that the proceedings shall be conducted before one of the judges until the examination actually commences. Up to that time there seems to be no reason why the judges may not alternate in the conduct of the proceedings.

The only question argued by the appellant which it occurs to us is of sufficient importance to merit consideration is as to whether the bond was invalidated by the adjournment of the proceeding beyond the time limited by section 849, to wit, thirty days. That section, as we have seen, provides that the magistrate may, on the application of the defendant, for good cause adjourn the examination not exceeding thirty days. That section, we think, does not prohibit other adjournments and for a longer time by the consent of both parties. It does not prohibit more than one adjournment at the request of the defendant, but limits the time of any one adjournment to thirty days.

It was held in People ex rel. Van Aken v. Millham (100 N. Y. 273) that the sureties on a bond in a bastardy proceeding under the provisions of the Criminal Code were not released from liability because of the adjournment of the proceedings at the request of the defendant after the examination commenced. It was held that adjournments could be taken from time to time after the commencement of the trial, and the liability of the sureties continued. The provisions of the charter contemplate that more than one adjournment may be had, and there does not seem to be any limit to the number or time for which adjournments necessary for the proper disjiosal of the case may be had either before or after the examination shall be actually entered upon. All the adjournments having been made at the request of the defendant and by consent of both parties, we are of the opinion that the trial court correctly held that the defendant was liable upon the undertaking.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Judgment of the County Court of Monroe county appealed from affirmed, with costs.


author: Dwight, P. J.:

text:
    Elizabeth Lyon, Respondent, v. Mina Whittaker, Appellant.

      Oode of Oiml Procedure, § 829 — evidence of transactions between a witness and Ms grantor not excluded thereby.

    Section 829 of the Code of Civil Procedure does not exclude evidence of any personal transactions between a witness who is a party to the action and the person since deceased, from whom the witness claims title, but only between the witness and the person from whom the other party to the action against whom the testimony is given claims title.
    The fact that a plaintiff claims title to certain notes through her deceased brother does not disqualify her from testifying to all the transactions and communications between herself and him by means of which the title was transferred to her. It is only when it should be made to appear that the defendant claimed title to the notes from the deceased brother that the objection to the plaintiff’s testimony would apply.
    Appeal by tlie defendant, Mina Whittaker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 22d day of December, 1892, upon the verdict of a jury for $660.50, after a trial at the Cattaraugus Circuit, and also from an order entered in the said clerk’s office on the 4th day of September, 1893, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

      W. /S. Thrasher, for the appellant.

      W. II. Henderson, for the respondent.
   Dwight, P. J.:

The action was trover for the alleged conversion of four promissory notes. The answer was a general denial only. All questions relating to two of the notes are eliminated from the case for the purpose of this review, since the verdict of the jury sustained the defense as to those two notes and was rendered in favor of the plaintiff only for the amount of the other two.

The two notes last mentioned were made by W. and C. Thirlman, and ran to the defendant, Mina Whittaker, or bearer. The theory of the plaintiff’s case was that these notes were taken by one Jonathan Milks, the brother of the two parties, in the name of his sister, the defendant, for reasons of his own, and that they remained his property until, on his death bed, he delivered them with other securities to his sister, the plaintiff, as a gift; that after such gift and delivery the defendant, who was present as the nurse or attendant of her brother, took the notes to lay them away for her sister, and that after the brother’s death, which occurred within a day or two, •she refused to give them up to the plaintiff, and claimed them as • her own. This theory was supported by the evidence on the part of the plaintiff and was controverted by the evidence on the part of the defendant; the question of fact thus presented was properly submittted to the jury, and the verdict will not be disturbed for lack of -evidence to support it.

The only question in the case calling for particular consideration is that which was raised by numerous exceptions taken by the defendant to rulings of the court in the admission of the testimony •of the plaintiff relating to personal transactions and communications between her brother and herself. The objections were based, as stated by counsel, on section 829 of the Code of Civil Procedure, but upon examination we think none of them were well taken.

There are two classes of these objections, one of which includes all those which were taken to the testimony of the plaintiff when •she first had the case and was on the stand as a witness for the first time. The defendant’s objection was then, uniformly, to the effect that the evidence was inadmissible, under section 829, because it involved a personal transaction between the witness, plaintiff, and her deceased brother, from whom she claimed title to the notes in question. This objection, it is apparent, was entirely without force. The statute referred to does not exclude evidence of any personal •transactions between the witness — being a party to the action — and the person since deceased, from whom the witness claims title, but •only between the witness and the person from whom the other party to the action — against whom the testimony is given— claims title. In other words, the fact that the plaintiff herself claimed title to the notes under her brother did not disqualify her to testify to all the transactions and communications between herself and him by means of which the title was transferred to her. It was only when, if ■ever, it should be made to appear that the defendant claimed title to the notes from the deceased brother that the objection to the plaintiffs testimony would, apply. The language of the statute is “ Upon the trial of an action * * * a party * * * shall not be examined as a witness in his own behalf, * * * against * * * a person deriving his title * * * from * * * a deceased person * * * concerning a personal transaction or communication between the witness and the deceased person.”

At the time that the evidence so far mentioned was objected to there was not only no evidence that the defendant had derived title to the notes from her brother, but there was no intimation or suggestion by the pleadings or otherwise that she claimed to have done so. Her answer was a general denial merely, and it did not yet. appear that she claimed title to the notes from any source.

The other class of objections, mentioned above, includes those taken to similar testimony of the plaintiff when on the stand the second time, and giving testimony in rebuttal. In the meantime the defendant had been on the stand and testified in her own behalf. Even then, on her direct examination, she did not testify that she had derived title or obtained possession of the notes in question from her brother, nor from what source she had done either. It was only on her cross-examination and by an answer not quite responsive to the question addressed to her that she mentioned her brother in any connection with her claim to these notes. The question was: “ Q. Where had the two Thirlman notes been before, they came to you, if you know ? A.. After I bought them of my brother I kept them. Q. Had they been in the house there?1 A. They had been in Jonathan’s papers.”

This was, certainly, not evidence of the fact that the defendant, ever did purchase the notes of her brother, and it is very doubtful if it is entitled to be regarded as sufficient intimation of her claim to have derived title from him to furnish ground for the objection, taken by the defendant, under section 829, to the subsequent testimony of the plaintiff; nor is it very clear that the objection which was taken to such subsequent testimony was sufficiently explicit to place itself on that ground if it, in fact, existed. The objection, several times repeated, was in this form: Defendant objects that it calls for a personal transaction between the deceased and the witness, and that the witness is incompetent under section 829 of the Code of Civil Procedure; that Jonathan Milk could not by anything he said or did impair tlie defendant’s title in the notes in suit, or transfer title to the plaintiff.”

However —if it were conceded that the objection was sufficiently explicit, and was well founded upon facts which brought the plaintiff’s testimony within the general rule of the statute referred to — yet it was of no avail to the defendant, because the testimony was within the exception to that rule which is provided by the words immediately following those already quoted from the statute. Those words, omitting those which are immaterial here, are as follows: “Except where the * * * person so deriving title * * * is examined in his own behalf * * * concerning the same transaction or communication.”

The plaintiff’s testimony in rebuttal was unmistakably brought within this exception by the fact that the defendant, when on the stand, had testified in her own behalf concerning the same transaction or communication to which the testimony of the plaintiff related. This she did explicitly, by giving her own version of what occurred at that time, and by testifying that the notes in question were not produced or shown to anybody on that occasion.

For the reasons stated we are clearly of the opinion that none of the defendant’s objections to the testimony of the plaintiff were well taken; and aside from the exceptions to these rulings we find none which seem to require discussion.

The judgment and order appealed from must be affirmed.

Lewis, Haight and Bradley, JJ., concurred.

Judgment and order appealed from affirmed.


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    In the Matter of the Judicial Settlement of the Accounts of Philo D. Beard and Another, as Executors, etc., of Caroline M. McCredie, Deceased. Philo D. Beard and Another, Appellants, v. Isa A. McCredie, Respondent.

      Executors and trustees under a will — when the same persons are entitled to commissions in both capacities.

    'To entitle the same persons to commissions as executors of, and trustees under, a will, such will must provide either by express terms or by fair intendment for the separation of the two functions and duties, one duty to precede the other, and to be performed,, or substantially performed, before the latter is begun.
    The first four provisions of a will created no trust, involved no exercise of discretion, vested no estate in the executors, but simply disposed of a certain sum of money and particular articles of personal property by direct gift to the persons therein named.
    The fifth provision thereof assumed that the previous provisions had been fully executed, and dealt with the residue of the estate alone. It gave all the residue of the property of the testatrix, real and personal, in trust to her executors and testamentary trustees, thereafter appointed. It defined the trust created, which was to continue during the life of a daughter of the testatrix, the sole beneficiary thereunder, and it prescribed the final and absolute disposition of the property when the trust should have been fully discharged.
    ‘The sixth and last provision of the will nominated the same persons as the “ executors of, and testamentary trustees under,” the will, and gave to them as executors and testamentary trustees power to sell, etc., and to invest the proceeds of such sales as they might see fit for the purpose of carrying out the provisions of the will.

      Held, that the duties of the executors and trustees were separate and distinct, and that they were entitled to commissions in both capacities.
    Appeal by Philo D. Beard and another, the executors, etc., of Caroline M. McCredie, deceased, from that portion of a decree of the Surrogate’s Court of the county of Erie, entered in the Erie County Surrogate’s Court on the 28th day of July, 1893, determining that the appellants were each entitled only to single copiniis.sions as executors and testamentary trustees.

      J. M. Provorst, for the appellants.

      P. G. Peyburn, for the respondent.
   Dwight, P. J.:

The sole question in this case is whether, under the provisions of the will of Mrs. McCredie, the functions and duties of the appellants, on the one hand as executors and on the other hand as trustees, are so far severable and severed that they are entitled to be allowed compensation in both capacities; or — more specifically — whether as executors they are entitled to commissions for “ paying out ” the trust fund to themselves as trustees. A careful examination of the will of Mrs. McCredie, in the light of the authorities bearing upon the present question, leads us to the conclusion that the question must, in this case, be answered in the affirmative.

The will in question contains six provisions numbered from one to six. The first provides for the payment of debts and funeral expenses; the second provides a pecuniary legacy to the sister of the testatrix; the third, a specific legacy to her adopted son; the fourth, a specific legacy to her daughter.

These four provisions create no trust, involve no exercise of discretion, vest no estate in the executors, but simply dispose of a particular sum of money and particular articles of personal property by direct gift to the persons named therein. So much of the will may, and should have been, completely executed, and the estate so far closed up, immediately on the expiration of the year limited by the statute.

The fifth provision of the will introduces a new order of things. It assumes that the previous provisions of the will have been fully executed, and it deals with the residue of the estate alone. It gives all the rest, residue and remainder of the property of the testatrix, real and personal, in trust, to her executors and testamentary trustees thereafter appointed. It defines the trust thus created, which is to continue during the lifetime of the daughter of the testatrix, who is the sole beneficiary of the trust, and prescribes the' final and absolute disposition of the property when the trust shall have been fully discharged. Throughout this provision of the will the persons charged with its' execution are denominated “ the said trustees.”

The sixth and last provision of the will nominates the appellants as executors of, and testamentary trustees under,” the will, and gives to them, as such executors and testamentary trustees, power to sell, lease, etc., any of the property, real and personal, and invest the same as they may see fit for the purpose of carrying out its provisions.

By a codicil to the will, the testatrix provided two additional pecuniary legacies, and also a bequest to the executors and testamentary trustees of her will, of the sum of $2,500 in trust, to be expended in the construction of a monument in memory of her late husband.

It is apparent that the first two provisions of the codicil fall into the classification of the first four provisions of the will, and, like them, are to he executed before the trust in the residue of the estate can take effect. The same is equally true of the provision for a monument so far as the laying aside and appropriation of the money is concerned. That sum of money, together with the sums named in the several pecuniary bequests, and the articles of personal property specifically bequeathed, must all he withdrawn from the body of the estate before the residue of the estate can go to constitute the trust fund, or can go into the hands of the trustees as such, under the fifth provision of the will.

"We have then, as it seems to us in this will, a scheme for the care and distribution of an estate which not merely pemiits, but practically accomplishes, a separation between the functions of the executors and those of the trustees; in which the two functions cannot be said to be blended for any purpose or to co-exist for any period of time; in which, on the contrary, the duties of the executors are to be ended before those of the trustees are begun.

The case before us seems, therefore, to respond in favor of the contention of the appellants, to all the tests which our courts have applied in several recent cases for the purpose of determining whether the functions of executors and trustees im the same will were to be regarded as separate and distinct, and whether, accordingly, the persons exercising those functions were entitled to compensation in both capacities.

The cases referred to are. Johnson v. Lawrence (95 N. Y. 154) Laytin v. Davidson (29 Hun, 622; 95 N. Y. 263); Phœnix v. Livingston (101 id. 454); Matter of McAlpine (15 N. Y. St. Repr. 532; 126 N. Y. 285); Matter of Crawford (113 id. 560). The doctrine of all these cases was the same though the results reached differed from each other. In the first of the cases cited the two functi'ons were found to co-exist throughout the administration of the estate and to be inseparable, and double commissions were denied. As was said by Finch, J., in writing the opinion : “ It is apparent that from the very beginning the duties of the executors were blended inseparably with the trust duties and were so intended to remain ; * * * There was no point of time prior to that division, at which it could be said that one function ended and the other began. * * * As a trust duty it sprang into life at the same instant with the executorship and inextricably blended with it.” The examination already given to the will in the case at bar has shown, we think, that it presents the reverse of the propositions above stated, and that, on the other hand, it corresponds to the propositions contained in the statement in the same opinion, of the rule “ that to entitle the same persons to commissions as executors and as trustees, the will must provide, either by express terms or by fair intendment, for the separation of the two functions and duties, one duty to precede the other and to be performed before the latter is begun, or substantially so performed.”

In the case of MoAlpine the same rule was applied with the same result, it being considered that the will ” in that case “ does not provide for the separate and successive duties, but that the trust duties and those of the executors have co-existed from the issue of letters testamentary to the present time, and will so co-exist down to the final execution of all the powers and duties, created and prescribed by the will.”

In Laytin v. Davidson the application of the same test afforded the contrary result. In the opinion in the Court of Appeals Andrews, J., said: “ The will clearly contemplated a period of time when the duties of executors, as such, should end, and they should assume the character exclusively of trustees for the widow and children of the testator. The duty to pay debts and the legacies presently payable, and to construct a burial vault, ivas strictly executorial, and, upon the accomplishment of these purposes, the property was given ‘ upon the further trust ’ to divide the residue, etc. The duty of division into shares and to receive and apply the income of the several shares to the use of • the beneficiaries respectively could not be performed until the residue was ascertained by an accounting.”

In Phoenix v. Livingston the persons charged with the administration of the estate were, as in this case, denominated “ executors of, and testamentary trustees under,” the will, and in the opinion in that case EiNch, J., says of them: They were first to act as execu•tors of the will and then as- trustees under it. * * * The accounts of the executors as such were settled and there was left nothing but the trust estates to -be managed for the beneficiaries. * * * We think it was a proper case for the allowance of commissions to the same persons first in the character of executors and then in that of trustees.”

In the case of Gra/wford, the last of those cited, the residuary estate was„given to the executors in trust, with authority to sell the real estate and to divide the whole into specified parts, which were to be kept invested and the income paid to the beneficiaries named. The provision was in all respects material to this inquiry, the same ■as in this case. And in that case the court by Peokham, J., said: “ Lastly, we think that the court at General Term was right in awarding double commissions. As executors it was their duty to pay the debts of the deceased, and then all the residue of the property which was not devised or bequeathed to others, was, by the third clause of the testator’s will, given to the executors in trust for the purposes therein mentioned. * * * We think that after the sale of the real estate and the payment of debts the duty of the executors ended by the payment to the trustees (themselves) of the 32 parts into which the estate directed to be paid over to them was to be divided. Erom that time th§ duties of the trustees commenced, and they were to invest in their names as trustees the five, eight and nineteen parts respectively, in accordance with the directions of the will, and at the death of the testator’s daughters respectively the trust estate is to be paid by them as trustees and not as. executors. This gives them the right to double commissions.”

It seems to ns that the case in hand is quite as clearly one in which the duties and functions of executors are distinct and separate from those of trustees, as either of the cases cited in which the rule of separation was applied and double commissions allowed.

The decree of the surrogate should be modified so as to provide for the discharge of the executors as such, upon the settlement and allowance of their account, the transfer to themselves as trustees of tbe entire residue of the estate appearing upon the account as settled, and the allowance to them of the usual commissions for receiving and paying out as executors and for receiving as trustees..

Lewis, Haight and Bbadley, JJ\, concurred.

Decree of the Surrogate’s Court of the county of Erie appealed from modified as indicated in the opinion, and as so modified affirmed and case remitted to that court to proceed therein, with, costs of this appeal to the appellant payable out of the estate.


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    Matthew G. Elliott, Respondent, v. Elijah S. Smith, Appellant, and Others.

      Equitable relief— when the collection of a, judgment will not be restrained to await the result of another suit— equitable set-off.

    The doctrine of equitable set-off has never been applied to restrain the collection of a judgment actually obtained, pending the prosecution of an action only just commenced, in anticipation of a possible judgment in the latter action which might be applied in payment of the former judgment, and in ordinary-cases such relief will not be granted.
    Something more than the mere existence of reciprocal and independent demands; is required to authorize a set-olf in equity, which is not allowable under the-Statute of Set-offs. Circumstances must be shown from which it can be* inferred that one debt was contracted.on the faith of the other, or that there-was an agreement between the parties that the one should be deducted from the other, or some other intervening equity, which renders the interposition of the* court necessary for the creditor’s protection, and equity decrees a set-off independently of the statute only where mutual debts exist, or where there was either an express or implied agreement of stoppage pro tanto, or mutual credits.
    Appeal by the defendant, Elijah S. Smith, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 4th day of December, 1893, continuing in force a preliminary injunction order-granted on the 30th day of October, 1893.

      G. Z. Lincoln, for the appellant.

      A. D. Scott, for the respondent.
   Dwight, P. J.:

Tbe action is for tbe foreclosure of a mortgage of real estate made by tbe defendant, and tbe injunction, wbicb is prayed for in the complaint and was granted temporarily on tbe ex jpa/rte application of tbe plaintiff, restrains tbe defendant from collecting or disposing of a judgment wbicb be has recovered and now holds against tbe plaintiff, and upon wbicb execution has been issued, until tbe determination of this action and tbe sale of the mortgaged premises, and tbe entry of judgment therein for a deficiency, if a deficiency shall arise on such sale, to tbe eiid that tbe amount of such deficiency may be applied on tbe defendant’s judgment, above mentioned, in payment thereof.

We believe that the granting of tbe relief here prayed for, aside from tbe foreclosure of tbe mortgage, would be entirely unprecedented. So far ‘as we are advised, tbe doctrine of equitable set-off has never been applied to restrain tbe collection of a judgment actually obtained, pending tbe prosecution of an action only just commenced, in anticipation of a possible judgment in tbe latter action which might be applied in payment of tbe former judgment. But if, in any conceivable case, equity might possibly grant such relief, it seems very clear that tbe present, on tbe undisputed facts, is not such a case. The facts, in addition to those already stated, are, concisely, as follows :

Tbe claim on which the defendant obtained judgment was one of several years’ standing against tbe plaintiff as surviving partner of an insolvent banking firm. From the time of tbe failure of that firm in 1882, tbe plaintiff remained insolvent until, under tbe will of a deceased uncle, wbicb was admitted to probate in tbe State of Connecticut in May, 1892, be became entitled to personal property of tbe value of about $18,000. Soon after that time he made an effort to compromise tbe claims against him, including that of tbe defendant, at twenty cents on the dollar, representing that be was insolvent, but that bis wife would raise tbe money to pay tbe compromise if it could be effected at a small figure. The defendant refused to enter into a compromise agreement, and, having ascertained tbe facts in regard to tbe legacy in Connecticut, he •commenced bis action against tbe plaintiff in November, 1892, and obtained the judgment in question for $1,093.02, which was perfected and docketed in Cattaraugus county on tlie 2d day of June, 1893. On the twenty-eighth day of the same month the plaintiff procured the assignment to himself of the mortgage in suit; and in October commenced this action and procured the preliminary injunction, with an order to show cause, upon the return of which the order was made from which this appeal was taken.

In his complaint the plaintiff alleges that the defendant is insolvent ; that the mortgaged premises, which consist of a farm of 100 acres, are worth not to exceed the sum of $2,500, and are incumbered by six several mortgages, all prior in lien to that in suit, aggregating in amount about the sum of $4,500, besides interest, and that the amount of the mortgage in suit, including interest, wag $118.67, it having been reduced to that sum, after it came into the plaintiff’s hands,-by a payment to him of $450, insurance money, under an insurance clause contained in it.

The allegation in the complaint in respect to the value of the farm was supported only by an affidavit of two near relatives of the plaintiff, one of whom is an attorney at law and the other a miller, while the proofs on the part of the defendant contain the affidavits of a very large number of farmers, all of them residents' and several of them officials of the town in which the premises are situated, who put the value of the farm at not less than $3,800, while the proofs conclusively show that all of the incumbrances mentioned in the complaint, prior to the mortgage in suit, have been fully paid and discharged, except two which aggregate the sum of $2,200 only.

The allegation of the insolvency of the defendant is not denied by him, except that his affidavit states that no judgment has ever been recovered against him; but, of course, the *fact of the defendant’s insolvency is of no effect to establish an equity in favor of the plaintiff’s case if it be true that his specific lien is, itself, ample security for the payment of his claim.

Upon all the facts thus disclosed we think the plaintiff fails to establish any equities which entitle him to the extraordinary remedy of an injunction. He took the assignment of the mortgage after the defendant recovered his judgment against him, and evidently for the purpose of preventing or impeding the collection of that judgment; it does not appear how much he paid, or that he paid anything for the mortgage, and if the security was or was finder-stood to be as inadequate as bis allegations would make it appear, it is not to be supposed that he took'it except at a very considerable discount. In any case his venture was largely speculative and he should be content to await its issue in the ordinary course of litigation.

In no aspect of the case, leased upon the proofs before us, does the plaintiff seem to be entitled to the relief in question. On general principles and aside from special considerations which arise in this case, the claims involved are not such as are subject to equitable set-off. (Hatch v. The Mayor, etc., 82 N. Y. 442; Pond v. Harwood, 139 id. 111.) In both of these cases the rule is stated, in substantially the same language, that Something more than the mere existence of reciprocal and independent demands is required to authorize a set-off in equity when not allowable under the Statute of Set-offs. Circumstances must be shown from which it can be inferred that one debt was contracted on the faith of the other, or that there was an agreement between the parties that the one should be deducted from the other, or some other intervening equity which renders the interposition of that court necessary for the creditor’s protection ; ” and in the latter of the two cases the court refers with approval to the statement by the vice-chancellor in Hackett v. Connett (2 Edw. Ch. 73), that although chancery has sometimes exercised the power of decreeing a set-off, before or independently of the statute, it has only done so where mutual debts existed, and where there was either an express or implied agreement of stoppage pro tanto, or mutual credits.” The case at bar is the farthest possible from meeting the requirements of the rule as last stated; and if it is to be brought within the rule at all, it must be by virtue of some particular intervening equity which demands the extraordinary interposition of the court in the plaintiff’s behalf. But it is very apparent, we think, that all the particular circumstances of this case make against the application of the rule and not in its favor. The fact.chiefly urged as raising an equity in favor of the plaintiff is that of the insolvency of the defendant. But, as we have already said, that fact has no consequence if the claim of the plaintiff is sufficiently secured by his specific lien, and the proof largely preponderates in favor of the latter conclusion. But, even if it were otherwise, the plaintiff can assert no equity based upon the fact of insolvency. He took his assignment of the mortgage with full knowledge of that fact, and — if the allegations of bis complaint are true — in tbe belief that the security was largely inadequate if not wholly worthless as such. Ife does not make it appear that he paid anything for the mortgage, and he has already realized upon it more than he had any reason to expect, and is likely to realize a good deal more, if not the full face of the security, fie has no claim to the equitable interposition of the court in his behalf. (Pond v. Harwood, supra.)

The order continuing the injunction must be reversed, with ten dollars costs, and the disbursements of this appeal and the motion denied, with ten dollars costs.

Lewis, Haight and Bradley, JJ., concurred.

Order appealed from reversed, with ten dollars costs, and disbursements and motion denied, with ten dollars costs.


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    The People of the State of New York, Respondent, v. Henry J. Warren, Appellant.

      Section 504 of title 24 of chapter 105 of 1891 is not in violation of the Constitution ' of the State or of the United States.

    Section. 504 of title 24 of chapter 105 of the Laws of 1891, providing that in contracting for any work to he done for the city of Buffalo the contractor “ shall hind himself, in the performance of such work, not to discriminate either as to workmen or wages against members of labor organizations, or to accept any more than eight hours as a day’s work, to be performed within nine consecutive hours,” is not unconstitutional, void or in violation of the provisions of ■section 1 of article 14 of the Constitution of the United States, or of the provisions of section 1 of article 1 of the Constitution of the State of New York.
    Appeal by the defendant, Henry J. "Warren, from a judgment of the Court of Sessions, held in and for the county of Erie, entered in the office of the clerk of the county of Erie on the 9th day of November, 1893, affirming the judgment and sentence of the Police Court of the city of Buffalo, convicting the appellant of a misdemeanor in violating section 504 of title 24 of chapter 105 of the Laws of 1891.

      F. R. Perhi/ns, for the appellant.

      R. J. Fenefrioh, Assistcmt Disi/rict Attorney, for the respondent.
   Dwight, P. J.:

Tbe offense Charged in the complaint before the police magistrate was a violation of section 504 of chapter 105 of the Laws of 1891, entitled “An act to revise the charter of the city of Buffalo.” The following is the text of the section mentioned: In contracting for any wort required to be done by the city a clause shall be inserted that the contractor ■ stibmitting proposals shall bind himself in the performance of such work not to discriminate either as to workmen or wages against members of labor organizations, or to accept any more than eight hours as a day’s work, to be performed within nine consecutive hours. Nor shall any man or set of men be employed for more than eight hours in twenty-four consecutive hours except in case of necessity, in which case pay for such labor shall be at the rate of time and one-half for all time in excess of such eight hours.”

In October, 1893, the Barber Asphalt Paving Company was engaged, under a contract with the city of Buffalo, in paving Delaware avenue in that city. The defendant was the superintendent of the company, and as such was charged with the hiring of laborers employed on the work, and regulating and prescribing their hours of labor. On the ninth, and several successive days of that month, the defendant employed the complainant and other laborers on the work mentioned, and caused them to work ten hours of the twenty-four hours of each day. There was no special necessity for extra labor, and no extra wages were paid or promised therefor.

The defendant having been convicted in the Police Court of a misdemeanor for violating the prohibition contained in the statute quoted above, appealed from that judgment to the Court of Sessions, and in his affidavit of appeal he alleged as the sole ground of error that the statute in question was “ unconstitutional and void, and in violation of and contrary to article 14, section 1 of the Constitution of the United States, which reads as follows: ‘No State shall make or enforce any law ■which shall abridge the privileges or immunities of citizens of the United States; ’ also section 1 of article 1 of the Constitution of the State of New York, which reads as follows: £No member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.’ ”

No other ground of error is argued or suggested on this appeal, " and no other can properly be considered here. (People ex rel. Baker v. Beatty, 39 Hun, 476; People v. McGann, 43 id. 55; People v. Jewett, 69 id. 550.)

The objection specified we regard as wholly without force. The only right, privilege or immunity of any citizen of the United States which, it is charged, may be abridged ■— or of which, it is charged, any member of this State may be deprived by the operation of the statute in question — is what has been called, in language quoted by counsel, the sacred right of labor; ” by which we understand to be intended the right of every man to do such lawful work as he finds employment to do, on such terms as he can agree upon with his employer. We do not understand that there is any right of labor which goes beyond that. No man has a right to labor for me unless I employ him, and in fixing the terms of the employment my right is as good as his. He can no more compel me to his terms than I can compel him to mine. If my terms do not suit him he may seek employment elsewhere; if his terms do not suit me I may employ another man. Thus the liberty of both is respected, and no right of either is infringed. Of course, the terms of employment, include the hours of labor. I may hire a man to work for me by day or by night, and for one hour or twelve of the twenty-four. And so might'the city of Buffalo, except that, in respect to one class of .work, viz.) that done under contract, it chose to have a provision inserted in its organic law to the effect that such work should be done for it by day’s work of eight hours each, and that all its contracts should so provide.

By means of the statute in question, therefore, the tei’ms of employment of laborers on contract work for the city of Buffalo are fixed, on the part of the city, and it remains for the laborer seeking employment to accept or refuse those terms. If he insists upoff working more than eight hours a day he may seek other employment, either for the whole or for the excess of his time. His liberty of choice is not interfered with, nor his right ,to labor infringed. As in the illustration previously employed, he has no right to labor for the city of Buffalo except upon the terms offered in its behalf.

We see, on principle, no ground for the contention of the appellant, that the statute in question violates any provision of the Constitution either of this State or of the United States; and we believe that contention to be equally unsupported by authority. The question involved in the familiar cases cited by counsel for the appellant does not seem to be germane to the discussion in the case before us. Those are The Slaughter House Cases (83 U.S. [16 Wall.] 97); The Stockton Laundry Case (26 Fed. Rep. 611); The Oleomargarine Case (People v. Marx) (99 N. Y. 386); The Tenement House Tobacco Manufactory Case (Matter of Jacobs) (98 id. 98), and others of similar purport and effect. The principle upheld and enforced in all these cases is that among the rights, privileges and immunities, mentioned in the two constitutional provisions above quoted, which of right belong to citizens of all free governments, is to be numbered (in the language of Field, J., in the Slaughter House Gases), “ The right to pursue a lawful employment in a lawful manner without other restraint than such as equally affects all persons.” We think it very clear, from the discussion already had, that the principle so amply defended is not impugned by the statutory enactment there in question. In order to he obnoxious to the principle so defined the statute must do something more than fix the terms upon which a single municipal corporation may require laborers on its works to be employed.

A precisely similar statute was enacted in 1892 by the Congress of the United States, in respect to the employment of laborers on the public works of the government or of the District of Columbia. We are not aware that the constitutionality of that act has ever been questioned. Its particular application was disputed by the defendant and denied by the court in the case of The United States v. Ollinger (55 Fed. Rep. 959). But the decision was distinctly 'upon the ground that the defendant was not a contractor with the government within the meaning of the statute. No such question is presented in this case.

With neither authority to support it, nor a clear balance of reason in its favor, the contention of the defendant must be disallowed..

The judgment appealed from should be affirmed.

Lewis, Haight and Beadley, JJ., concurred.

Judgment and conviction of the Court of Sessions of Erie county appealed from affirmed and case remitted to that court to proceed thereon.


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    Clarence Delafield, Appellant, v. The Village of Westfield, Respondent.

      •Oontraet — a note at the foot of the specifications forms pa/rt of the contract — wa/rranty of the quality of the material to he excavated — when “completed” will he construed to mean “done" oi' “performed

    At the end of the specifications for laying a vitrified pipe line there was written, the following words: “Note. The vitrified pipe line is mostly, and the tunnels are entirely, to he in soft shale rock.” At the time the specifications were circulated to bidders the vitrified pipe line had not been staked out, hut at the time the proposal was executed hy the person to whom the contract was awarded such line was located, and the contractor relied upon the note at the foot of the specifications in making' his estimate. The formal contract made no mention of such note, hut the specifications and proposal were therein referred to.

      field, that such note was a part of the contract, and that it amounted to a warranty as to the quality of the material to he excavated.
    A rational and equitable construction should he given to a contract for the construction of a reservoir and pipe line, with a view to carry out rather than defeat the intentions of the parties thereto, and in aid of such construction the situation and condition of the parties at the time of making the contract should he considered.
    The word “completed,” as used in a building contract, in reference to the work and the time when estimates were to he made, construed to mean “done” or “ performed.”
    Appeal by the plaintiff, Clarence Delafield, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 29th day of August, 1893, upon the report of a referee.

      William J. Ourtis, for the appellant.

      Franlt W. Stevens, for the respondent.
   Lewis, J.:

In the year 1889 the village of Westfield caused to be prepared plans and specifications for water works for the village. Rids were invited from contractors. The plaintiff, who was a contractor and engineer, submitted a bid or proposal sheet for the work, which was accepted by the defendant, and a written contract based upon the plans and specifications and proposal sheet was entered into between tbe parties on tbe 19tb day of July, 1889. Tbe scheme contemplated taking the water from a stream several miles from tire village at a point called the in-take. From this point tbe water was to be first conducted through a vitrified pipe line to a point upon tbe lands of one Hawley, where were to be constructed a filter and small reservoir, known in tbe case as tbe Hawley filter and reservoir. From there a pipe line was to conduct tbe water to the village, where it was to be distributed through iron mains along the various streets specified in the contract. These mains connected with a large reservoir upon the lands of one Kent, known in the case as the Kent reservoir. A full and particular description of the various parts of the system was contained in the specifications, and particular rules were stated to guide bidders. For the reservoirs excavations and filling bids were required to be made by the solid yard, once measured only in the dykes; for the ditches by the solid yard of excavation only; for the iron and vitrified pipe lines by the running foot. At the end of the specifications was the following: “ Note. The vitrified pipe line is mostly and the tunnels are entirely to be in soft shale rock.” The plaintiff’s proposal sheet was submitted to the defendant in line with the specifications with a few modifications. He bid a lump sum of $1,500 for the Hawley filter and cistern ; $100 for the valve house at the main reservoir; for the work upon the Kent reservoir, twenty-one cents -per cubic yard measured in the dyke, modifying, as will be observed, the defendant’s specifications, which provided that the filling should be measured once only in the dykes ; for the vitrified and iron pipe by the running foot at different prices stated in the bid, and under the head of “ ítemarks ” stated: “ This hid to be considered only as a whole and in no case as a part.” “I____hereby agree to enter into a formal contract with you to furnish such labor and materials, according to the advertisement and specification, within five days after notice is given to me .... that you are willing to accept the proposal in all as called for in the advertisement.” Plaintiff’s bid was accepted by the defendant, and a written contract was entered into by the parties on the 1st day of July, 1889, which provided, among other things, that the plaintiff, in consideration of the payments to be made to him by the village, agreed to furnish all the labor and materials and do the work required to complete the work as named in the proposal sheet annexed, as the same is more fully described in the printed and written specifications hereto annexed; that he would do the work according to the plans and specifications, according to the true intent and meaning of his proposal sheet and such plans and specifications. The contract required the village to appoint a competent person to supervise the work as it progressed; it further provides as follows: “ The party of the first part (the village) agrees that their executive committee will cause an estimate to be made before the 10th day of each month of the value of the labor and materials on all work completed up to the first day of the same month, and will, on said tenth day of each month, pay to the party of the second part (the defendant) as a partial payment, ninety per cent of the contract price of such completed work; and will, within twenty days after the completion of the work, cause a final and complete estimate of the labor and materials furnished by the party of the second part under this contract, in accordance with said proposal sheet and specifications, and accepted by the board under this agreement; and will j)ay to the party of the second part at the ratio named in this proposal sheet, the balance found him due, without undue delay.” It further provided that if the plaintiff failed to prosecute the work diligently, and complete the same by the 1st day of December, 1889, to the satisfaction of the village, it was at liberty to suspend the execution of the agreement, and annul the same. The plaintiff made a deposit of $2,000 as security for the performance of .the contract. This, the contract provided, should be repaid to him upon the completion of the work. The plaintiff entered upon the work and prosecuted the same till the fore part of December, when the defendant, being dissatisfied with the progress and the manner of performing the work, terminated the contract; and this action was brought by the plaintiff to recover $10,000 damages for breach of the contract. The case was referred to a referee to hear and determine, and he reported in favor of the plaintiff for the amount of the deposit, $2,000, and interest, and an item or two of extra work, amounting in all to the sum of $2,515.70. From the judgment entered this appeal was taken. Whether the conclusions of the referee are to be sustained, depends upon the construction which should be given to the contract. He held that the plaintiff had failéd to perform the contract within the time agreed, and to perform the work as agreed, and that tlie defendant was, therefore, justified in declaring the contract terminated. Within a few days after making the contract, plaintiff commenced work upon the Kent reservoir. In a few days thereafter he received notice in writing from Kent, the owner of the land on which the reservoir was being constructed, directing him to discontinue work, for the reason stated in the notice that no arrangement had been made for the purchase of the land by the defendant, and threatened to prosecute the plaintiff if he did not desist.. The plaintiff, upon advice of his counsel, ceased work upon the reservoir for something over a month. The village had caused a survey and map to be made of the land of Kent intended to be taken, and had filed the same, pursuant to chapter 211 of the Laws of 1885, and, therefore, had the right to enter upon the land, but this was not known to the plaintiff during the suspension of his work thereon. Tlie lawyer with whom he advised does not seem to have been aware of this act; he had in mind, undoubtedly, as was quite natural he should, the General Condemnation Law; the plaintiff testified that he relied upon the advice of his counsel, and suspended work because of the notice, and his evidence in that particular is not contradicted.

It is also contended by the plaintiff, and the evidence tends to show, that in digging the trenches and tunnels for the vitrified pipe line he encountered a very large amount of hard rock; that the excavations for the tunnels, instead of being entirely in soft shale rock, were largely made up of hard rock which required blasting, and that he was in consequence very greatly delayed in the progress of the work. The learned referee held and decided that the note mentioned at the end of the specifications, that the vitrified pipe line is mostly, and that the tunnels are entirely, to be in soft shale rock, was not a part of the contract for the reason, as stated in his opinion printed in the case, that at the time the plans and specifications were circulated the vitrified pipe line had not been staked out and located, but that at the time the proposal sheet was executed by the plaintiff and delivered to the defendant, the line had been staked out and located so that it could be traced and followed, •and that the plaintiff in his proposal sheet offered to do the work :in a complete manner according to the specifications, and that the .formal contract made no mention of this note at the foot of the specifications. There were 1,225 feet of tunnels as estimated in the plaintiff’s proposal. His bid was for the entire vitrified pipe line without extra charge for the tunnelling. The plans and specifications and the proposal bid of the plaintiff are all referred to in the contract and are stated to be annexed thereto ; they were without objection received in evidence. While the exact route of the pipe line had not been located at the time bids were invited, the evidence tends to show $iat the plaintiff relied ,in making his bid upon the representation as to'the character of the excavations, and assumed that it was as described in the defendant’s specifications, and we think it must be held to be a part of the contract, and that it amounted to a warranty on the part of the defendant as to the quality of the excavation.

It is a matter of common knowledge that in making contracts for such work, the character of the material to be excavated is an important factor.

The referee construed that part of the contract requiring the defendant to make an estimate before the tenth day of each month, of the value of the labor and materials on all work completed up to the first day of the same month, to mean, as applied to the pipe line, that before the plaintiff was entitled to an estimate he must have the portion of the work for which he required an estimate entirely completed; that is to say, he must have dug the trench, laid the pipe, soldered the joints, filled the trench and levelled the ground over the trench, and as to the work upon the Kent reservoir, that he was not entitled to an estimate until it was entirely completed.

For the work upon the Kent reservoir, as stated, the plaintiff was to receive twenty-one cents per cubic yard for excavating and placing earth in the dyke.

The learned referee finds that the plaintiff commenced work upon the reservoir and put into the embankment or dyke between seven and nine thousand yards of earth, but that at the time he abandoned the work there was left considerable work to be done to complete the same, and that he was not entitled to an estimate upon it for the reason that he had not entirely completed it.

He found as a conclusion of law that for work and labor done on the vitrified and iron pipe line the plaintiff was not entitled to an estimate for tlie value of the work done and the materials furnished and supplied on the first of every month, unless as a matter of fact, tlie trenches had been dug and the pipe laid therein and covered so as to be in full compliance with the terms of the contract on that subject,” and lie applied that rule to all the work which had been done when tlie contract was declared terminated by defendant. A rational and equitable construction should be given to this contract with a view to effectuate rather than defeat the intentions of the parties in making it. It will aid in its construction to consider the situation and 'condition of the parties at the time the contract was made. The defendant was desirous of obtaining a water system; to that end it was necessary that the party doing the work should be furnished with funds, at stated periods, as the work progressed, in amounts as large as it was safe for the village to advance. It was agreed that monthly estimates should be made, and that the defendant should pay ninety per cent of the value of the labor and materials on all work completed up to the first day of the month. The ten per cent was reserved as a factor of safety to the defendant. The contract contemplated that the village would employ an expert engineer, who should at the beginning of each month make an estimate of. the amount of work completed by the plaintiff, and determine the amount which it would be prudent, under the contract, for the village to pay him to aid him in carrying on his work. There was no practical difficulty in the expert engineer estimating the amount the plaintiff was entitled to-for the work performed at the close of a month, taking into view the contract price for the work.

It was not absolutely essential that the work should be finished and completed to enable him to make such an estimate. It is suggested by respondent’s counsel that there was no basis for such an estimate until the work was completed, as some portions of the line might be more expensive than other parts, and if the engineer was to estimate it in detail it might lead to an over estimate. "We are not able to appreciate the force of this suggestion; we must assume that an educated and competent engineer, knowing the amount to be paid for the different parts of the work, would be able to estimate with reasonable accuracy the proportion of the work done at any stage in its progress. The plaintiff would not be entitled to an estimate until some material, substantial part of the work had been performed. The plaintiff had done a very considerable ■amount of labor upon the Kent reservoir; there was no apparent ■difficulty in estimating the amount; the work upon it extended ■over several months, and we are not willing to accept the theory that the contract contemplated an entire completion of the Kent reservoir before the contractor was entitled to an estimate; the parties did not so construe the contact, for in making estimates they •did not measure the length of the pipe which had been laid, and the. work thereon entirely completed, but general estimates were made of work as it progressed. While the contract speaks of .an estimate being made upon work completed, we think the parties used the word “ completed ” in the sense of work done or performed. ■“ Completed ” is defined by lexicographers as to consummate, execute, achieve, realize.” After the October estimate and payment the plaintiff, needing more money to prosecute the work, applied to the defendant to advance him the sum of $7,500 as a payment up>on his contract. He had at the time a large quantity of iron pip>e upion the ground .which had not been laid in the trenches; the defendant agreed to and did make the advance, and the plaintiff gave to the defendant a written bill of sale of the pápe in words and figures following:

“ Westfield, N. Y., October 14, 1889.

“ In consideration of the board of water commissioners of the village of Westfield advancing to me the sum of seven thousand five hundred dollars over and above the estimate made on the 8th inst., T hereby sell, transfer, assign and set over unto the said commissioners all the iron pipre and specials and vitrified pipe and specials ■distributed along the line of the piropjosed water works and at the railroad station, to belong to and be a part of the system of the water works property as uncompleted work on my contract with the ■said board, which pipe now belongs to me and is free from any other •claim or incumbrance whatever, excepit as by this instrument.”

(Signed by the plaintiff.)

A part of this iron pfipe was afterwards laid in trenches by the plaintiff; the remainder of it, the referee not finding the precise amount, was left upon the premises at the time the plaintiff quit the job, and was thereafter used by the defendant in completing the work.

The referee held that the plaintiff was not entitled to credit for the value of the pipe thus transferred to defendant, or any part thereof, as it was not laid in trenches and covered as required by the contract, so as to become a part of completed work.

The referee found that at the contract price the work which had been completed on the tenth day of December, when plaintiff left the job, amounted t© $28,328.85. What it would have been had he given a different construction to the contract does not appear. It would manifestly have been a much larger sum, for the work on the Kent reservoir alone, for which nothing was allowed, amounted at the contract price to from $1,500 to $2,000. Had plaintiff been credited with the value of the pipe sold to the defendant the amount would have been that much larger.

If our views of the construction which should have been given .to the contract are correct, it follows that the judgment should be reversed and a new trial granted, with costs to abide the event!

Dwight, P. J., and Bradley, J., concurred; Haight, J., concurred in the result.

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


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    Charles H. Reynolds, Respondent, v. Albert Haywood and Another, as Executors, etc., of Rufus Haywood, Deceased, Appellants.

      Malicious prosecution —evidence of a second attempt to indict, not eha/rged in the complaint — an objection to evidence must state the grounds thereof.

    In an action to recover damages for a malicious prosecution, it is proper, on tlie question of the malice of the defendant, to show that at a time prior to the commencement of the action he made a second attempt to indict the plaintiff, although but one cause of action, based upon a previous presentation to the grand jury of a charge against the plaintiff, be stated in the complaint.
    "Where a person was manifestly engaged in attempting to use a criminal process to enforce the collection of a civil debt, it is competent., upon the trial of an action brought against him for malicious prosecution, to show what his agent said and did in carrying out his instructions.

      Where no specific objection was made to the admission of incompetent evidence upon the trial of an action, and no grounds of objection were stated in regard to the same, the reception thereof cannot avail the appellants upon an appeal.
    Although immaterial evidence be admitted upon the trial of an action, it may not be of sufficient importance to justify, upon appeal, a reversal of the judgment rendered.
    Appeal by the defendants, Albert Haywood and another, as executors, etc., of Rufus Haywood, deceased, from a judgment of the County Court of Chautauqua county in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 25th day of July, 1893, upon the verdict of a jury for $500, with notice of an intention to bring up for review on such appeal an order or interlocutory judgment entered in said clerk’s office on the 11th day of August, 1893, denying the defendants’ motion for a new trial made upon a case and exceptions.

      George Bwrher, for the appellants.

      J. G.. Record, for the respondent.
   Lewis, J.:

This action was brought against the decedent, Rufus Haywood, to recover damages for malicious prosecution in causing the arrest and imprisonment of the plaintiff upon the charge of grand larceny.

Plaintiff recovered a verdict. The defendant Haywood, after the recovery of the verdict, died. By an order of the court, his executors were substituted as defendants and brought this appeal.

The appellants rely for a reversal of the judgment upon exceptions taken by the defendant at the trial to the reception of evidence offered by the plaintiff. But one cause of action for malicious prosecution was stated in the plaintiff’s complaint, and that consisted in the defendant causing the plaintiff’s arrest and examination before the magistrate on the charge of grand larceny, and the presentation thereafter of the same charge to a grand jury in the county, the complaint being there dismissed. The plaintiff was permitted, over the objection of the defendant, to show that after once presenting the charge against the plaintiff to a grand jury of the county, the defendant again presented the same charge against the plaintiff tO’ another grand jury. This evidence was objected to on the ground ■ that it is not alleged in the answer.” It is claimed by the appellants that notwithstanding it appears that in making the objection the word ££ answer ” was used instead of the word £C complaint,” that we must assume that the objector intended to use the word “ complaint,” and that it must have been so understood by the court at the time. Assuming this to.be so, it is quité doubtful if the form of the objection was such as to avail the defendants. It was competent to show on the question of .malice of the defendant that at a time prior to the commencement of the action he made a second attempt to indict the plaintiff.

It does not appear from the record when the action wras in fact commenced, and the ground of the objection not being that the second appearance before the grand jury was after the commencement of the action, it must be held that the objection was not sufficiently specific to avail the defendant upon appeal. The defendant placed the warrant for the arrest of the plaintiff in the hands of the officer Lake and directed him that in case he could induce the plaintiff to pay or secure a demand the defendant had against the plaintiff, he need not execute the warrant. Plaintiff was permitted, against the objection of the defendant, to prove what the officer Lake said to the plaintiff and others who were present at the time of the arrest, 'as -to what he was instructed by the defendant to do, or not to do, provided the plaintiff would pay or secure the debt. Most of the evidence complained of was competent as bearing upon the question of the defendant’s malice. He was manifestly engaged in an attempt to use the criminal process to enforce the collection of a civil debt, and it was competent to show what his agent Lake said and did in carrying out his instructions. Lake, in the course of the conversation, made statements as to the kind of man Haywood was, which were not competent evidence, but .no specific objection was made to this evidence, no grounds of the objections were stated, and, therefore, they cannot avail the defendants upon this appeal. The evidence that Haywood appeared to be angry at the trial of a civil action between the parties was not material, but it was not of sufficient importance to justify a reversal of the judgment.

The judgment and order appealed from should be affirmed.

Dwight, P. L, Haight and Bkadley, JJ., concurred.

Judgment and order appealed from affirmed.