author: Freedman, J.

text:
    In the Matter of the Applications of AUGUST J. CHRISTERN, HEINRICH WEINBERGER, and ARNOLD GEISEMAN, to Correct the Record of Proceedings, admitting them to Citizenship of the United States.
    AT SPECIAL TERM,
    OCTOBER, 1878.
    I. Naturalization Laws.
    I. STATE COURTS.

      (a.) Character in which they act under such laws.

    1. Quoad hoc United States courts.
    (5.) Nature of their acts in admitting to citizenship.

    1. Judicial, and act of admission, constitutes a judgment.
    (c.) Record or roll of judgment, what sufficient to constitute.

    1. The preliminary proofs having thereon the initials of the presiding judge, on being filed in the clérk’s office, with the oath of allegiance, constitute a record or roll of the judgment admitting to citizenship.
    1. Entry in a book.—This is not necessary. But if it were, an entry made in alphabetical order, in a book entitled “Naturalizations” or “Naturalization Index,” or “Naturalization Record,” kept in the clerk’s office as part of the records of the office, showing the date of the admission, the name of the applicant, his nationality, the name and residence of the witness, and if the admission was ordered without a previous declaration of inteniions, either on a discharge from the army or on the ground that the applicant had arrived in this country during his minority, specially alluding to such fact, is sufficient. Such a book constitutes a special minute-book. It is not necessary an entry should be made in the general minute-book.

      (d.) Amendment of Record, power as to.

      Decided at Special Term,

      October, 1878.
    Has general power to amend, both at common law, and under the United States statute. In exercising the power they act as a United States court.
    1. Record of Admission to Citizenship, may therefore, if necessary, be amended by directing an entry in the minute-boolc of the fact of such admission nunc pro tunc.

    3. ACT OF 1870 (U. S.) JULY 14, AGAINST USE, AND POSSESSION WITH INTENT TO USE, OF CERTIFICATES.

      (a.) Mffect as to those issued prior to the act.

    1. Applies to but four classes.
    1. Certificates which are forged or counterfeit.
    3. Certificates which though genuine in all respects, and issued pursuant to the direction of the court, were procured by or for the applicants therein named, by means of some imposition or fraud practised on the court.
    3. Certificates issued by the clerk or other officers of the court, without lawful authority, in cases in which there was no appearance and hearing of the applicant in court.
    4. Certificates issued to a person other than the one who uses or attempts to use it.
    3. SUPERVISOR-IN-OHIEF OF ELECTIONS.
    (R. S. U. S. §§ 2,003 to 2,031, 5,424 to 5,429.)

      (a.) Unwarranted claim of.
    1. A claim by him that a certificate of an admission to citizenship by this court, issued by the clerk thereof, and the admission itself, are invalid, on the mere ground that as the clerk of the court did not write out an entry in the general minute-book of the court reciting the proceedings, aud showing the adjudication made, there is no legal record of the judgment of admission, and that consequently the person to whom, such certificate was issued would be subject to criminal prosecution if he should attempt to vote, is untenable and unwarranted.

    Motion to perfect records.

      Algernon S. Sullivan, in support of the motion.
   Freedman, J.

—The object of these applications is to have the record of the proceedings in this court, admitling the applicants to citizenship of the United States, perfected by an entry, nunc pro tunc, of the fact of such admission in the minute-book of the court. Each of the applicants applies separately in his own behalf, and shows, under oath, among other things, the following facts:—That on full preliminary requirements with the statutes of the United States, lie duly applied in open court to be admitted a citizen of the United States: that he took the requisite oaths and supported his application by the necessary and to the court satisfactory proof; that the court gave judgment to admit to citizenship, and that the officiating judge signified his “fiat” to that effect to the clerk of the court, to the applicant and to all whom it might concern, by superscribing the initials of his name upon the written and oath-attested proofs in the case, and delivered the same to the clerk to do thereupon and therewith all that the law required ; that the clerk then and there, in pursuance of such judgment and fiat duly administered, and the applicant duly took and subscribed, the oath commonly called the oath of allegiance ; and that thereupon the clerk issued to the applicant, under the seal of the court, a certificate as evidence of the fact of the adjudication made: that the clerk then indorsed and filed the papers and fiat among the court records, as a part thereof, and entered the name of the applicant and other facts connnected with the application in a book of index of naturalization records, which is one of several books of like character, regularly kept and permanently preserved, among the records of said clerk’s office ; that the applicant has always believed, and been advised, that the proceedings and judgment above recited duly admitted him to citizenship of the United States, but that recently the supervisor-in-chief of elections in this district, claiming to act under the acts of congress relative to the supervision of elections (Rev. St. of the U. S. §§ 2,002 to 2,031), and the punishment of crimes against the naturalization laws (§§ 5,424 to 5,429), has denied the validity ■ of such admission and threatened to subject the applicant to criminal prosecution if he should attempt to vote at the next election, and that the only ground of such denial and threat is that there is no legal record of the judgment admitting to citizenship, for the reason that the clerk did not write out an entry in the minute-book of the court reciting the proceeding and showing the adjudication made. The facts so far referred to are common to the three applications. They differ only in the following particularsAugust J. Christern was admitted on September 15, 1868, at a term of this court held by Judge Jones, and Heinrich Weinberger on October 9, 1868, at a term held by Judge Garvin. Their respective applications were made and granted in accordance with section 21 of an act passed at the second session of the thirty-seventh congress, entitled ‘ ‘ An Act to define the pay and emoluments for certain officers of the army and for other purposes.” , Arnold Geisemann was also admitted during the October term of 1868, but his application was founded upon liis prior declaration of intention to become a citizen, which he had made and filed in this court on June 6, 1853. As an additional fact Heinrich Weinberger shows that the said supervisor of elections retains in his possession the certificate of citizenship issued to Weinberger by this court.

The questions arising from the motions before me are of such great importance that I should have been glad to hear the district-attorney of the United States for the southern district of Hew York, or the supervisor-in-chief, in opposition. I am assured that they were both courteously requested to appear and present their views, but that they declined on the ground that they could not do so consistently with their obligations. I exceedingly regret that they arrived at-this conclusion, because in the decision of the questions involved, no conflict can arise between State and federal jurisdiction. True, in providing for a uniform rule of naturalization pursuant to the constitution of the United States, congress adopted among others the courts of record of the several States having common law jurisdiction and a seal and a clerk, as agents to exercise the power to admit aliens to citizenship. But in exercising this power, the said courts act exclusively under the laws of the United States, and hence are to be deemed quoad hoc courts of the United States. The concurrence of the legislatures of the State, expressed or fairly implied, merely adds the sanction of the State to this delegation of power (Ramsden’s case, 13 How. Pr. 429; People v. Sweetman, 3 Park. Cr. 358). In the absence, therefore, of the benefit which I might have derived from an argument in opposition, I felt it to be my duty to thoroughly examine for myself the grounds of the several motions and all questions arising thereon. In this I have been greatly assisted by the timely suggestions and extensive researches of the learned counsel who appeared in support of the motions.

The power of the motions being, in substance, that a certain defect which is assumed to exist be cured by amendment of the record nunc pro tuna, the first question that presents itself relates to the power of the court to entertain the application.

Section 5,328 of the Revised Statutes of the United States expressly provides that nothing contained in the title, of which sections 5,424 to 5,429, relating to the punishment, of crimes against the naturalization laws form a part, shall be held to take away or impair the. jurisdiction of the courts of the several States under the laws thereof. Under the statutes of the State of Hew York, this court possesses ample power to entertain a similar motion in any action or proceeding which arose under the latvs of the State. But as, in matters of naturalization, the court acts exclusively under the laws of the United States, it may be doubted whether powers conferred by the statute law of the State can be invoked. On the other hand, no restriction upon the power to amend can be found in any act of Congress. From this it follows that the power exists, if it exists at common law, and that it may be exercised by every court which is at liberty to exercise it under the common law. This court belongs to that class of courts, and the existence at common law of the power to amend has been distinctly affirmed in Weed v. The Saratoga and Schenectady Railroad Company (19 Wend. 534), and Leetch v. Atlantic Mutual Insurance Company (4 Daly, 518). In those cases it was held that every court of record has power to allow amendments on equitable grounds in every species of action independently of the terms of statutes. In general, any court of record, unless restricted by statute, may grant an amendment of any proceeding within its jurisdiction. This is a power inherent in the court, and its existence is just as necessary for the purpose of administering justice as the power of the court to vacate its process, order, or judgment to prevent an abuse thereof. Moreover, the Revised Statutes of the United States expressly provide:

Section 954. Ro, summons, writ, declaration, return, process, judgment or other proceedings iii civil causes in any court of the United States shall be abated, arrested, quashed or reversed for any defect or want of form, but such court shall proceed and give judgment according as the right of the cause and matter in law •shall appear to it, without regarding any such defect or want of form, except those which, in cases of demurrer, the party demurring specially sets down together with his demurrer as the cause thereof, and such court shall amend every such defect and want of form other than (hose which the party demurring so expresses, and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall in its discretion and by its rules prescribe.”

This grant of power, given in a plenary form, is but declaratory of the principles as they exist at common law. I therefore have no doubt of the existence of the power and jurisdiction to entertain the application and to grant it, provided a proper case has been made out for its exercise. As a general rule the court will not permit a party to suffer through any delay, or mistake of its own (Clapp v. Graves, 2 Hilt. 317), nor by the delay or mistakes of its officers (Chichester v. Caude, 3 Cow. 39; Neele v. Berryhill, 4 How. Pr. 16; King v. Harris, 34 N. Y.; S. C., 30 Barb. 471; Mechanics’ Bank v. Minthorne, 19 Johns. 244). It is only when the rights of third persons which have in the mean time been acquired in good faith intervene, that relief will not be given ; but even such third persons cannot rely upon a mere technical error which leaves no doubt about what was intended (Close v. Gellespey, 3 Johns. 526).

The question therefore remains whether the clerk did omit to do anything in the premises that the law required him to do, and, if so, whether such omission is of sufficient importance to call for a perfection of the record.

The determination of this question involves the construction of the acts of Congress in regard to the naturalization of aliens in force at the time of the admission of the present applicants, and a review of the course and practice of this court in acting under the same. The act of 1802 prescribes as conditions of naturalization that the applicant should have declared two years at least before his admission his intention to become a citizen of the United States (§ 1, subd. 1), and at the time of his application he should swear to support the constitution of the United States and renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty, &c., &c. (§ 1, subd. 2), and that such proceedings should be recorded by the clerk (§ 1, subd. 2). In case the applicant bore any hereditary title, or was of any of the orders of nobility in the kingdom or state from which he came, he was, in addition, required to make an express renunciation of Such title or order of nobility, and this renunciation had to be recorded in the said court (§ 1, subd. 4). It was also provided that the court admitting such alien should be satisfied that he resided within the United States five years at least, &c., &c., and that during that time he behaved as a man of good moral character, &c., &c. (§ 1, subd. 3). The second section of the same act, which prescribed a form for the registry of aliens desirous of becoming citizens of the United States, had been repealed by the act of May 24, 1828. The third section prescribed that every court of record in any individual State having common law jurisdiction, and a seal and clerk or prothonotary, should be considered as a district court within the meaning of said act, and every alien who might have been naturalized in any such court should enjoy the same rights and privileges as if he had been naturalized in a district or circuit court of the United States. By the act of July 17, 1862, it was further provided that any alien of the age of twenty one years and upward, showing an honorable discharge from the army of the United States, a residence of one year within the United States previous to his application, and a good moral character, should be admitted upon proof of these facts and without any previous declaration of his previous declaration of his intention to become a citizen.

These are all the provisions in force in the year Í868 which it will be necessary to consider. They have since that time been incorporated without material change into the Revised Statutes of the United States. From them it will be seen that the only record required to be kept is a record showing the declaration of intention, the oath to support the constitution of the United States, and the renunciation of the foreign jurisdiction and title or order of nobility. No provision existed then, or exists now, except as above stated, as to how the judge presiding over the court-should proceed to satisfy himself of the fulfillment of the conditions prescribed, and no provision was made for the preservation of the oral proofs to be given or the attestation of the adjudication to be made, or for the entry of the fact of such adjudication in any book. Of course, courts do and necessarily must keep some record of their proceedings. But in the absence of statutory regulations upon the subject, the extent and manner of keeping it, is left very much to their sound discretion.

What, then, constitutes a record? “A record,” says Coke upon Littleton (260, a), “is a memorial or remembrance in rolls of parchment of the proceedings and acts of a court of justice which hath power to hold plea according to the course of the common law, of real or mixed actions, &c., &c. . . . During the term wherein any judicial act is done the record remaineth in the breast of the judges of the court and in their remembrance, and therefore the roll is alterable during that term, as the judges shall direct,” &c., &c.

In the course of time rolls of parchment fell into disuse, and the usage sprang up of keeping a memorial or remembrance of the proceedings in a book which was finally designated as the “minute-book.” But this book is a thing of very modern date. In it the clerk keeps a brief account of the proceedings of the court, but such account is never verified or attested by the signature of the judge. It is not, however, the only form of preserving a memorial or remembrance of the proceedings and acts of a court, nor is it the most satisfactory or trustworthy, because it rests entirely upon the intelligence and fidelity of the subordinate clerk who happens to have the charge of it. An order bearing the signature or the initials of the presiding judge must necessarily be at all times more satisfactory and trustworthy. It was therefore held, in The Mayor, &c. of Ludlow and Charlton (9 C. & P.) 242, that a document delivered out by the registrar of the court of chancery as the order of the court is the original order, and that to make it evidence it was not necessary that it should be compared with any book of the orders of the court. From all this it follows that the form of the judgment- record showing the admission of an alien to citizenship, so far as no express provision for it is made by act of Congress, is utterly immaterial. As long as it constitutes a memorial or remembrance of the adjudication made it is sufficient.

Thus in Spratt v. Spratt (4 Pet. 406), Chief Justice Marshall held:—“ The various acts upon the subject submit the decision on the right of aliens to admission as citizens to courts of record. They are to receive testimony, to compare- it with the law, and to judge on both law and fact. This judgment is entered on record as, the judgment of the court. It seems to us, if it be in legal form, to close all inquiry; and, like every other judgment, to be complete evidence of its own validity. The inconvenience which might arise from this principle has been pressed upon the court; but the inconvenience might be still greater if the opposite opinion be established.” In McCarthy v. Marsh (5 N. Y. 263), this decision was held by the court of appeals to be a binding authority upon all the State courts, and hence that court, against the able argument of Charles O’ Conor to the contrary, came to the conclusion that. - the entry in the minutes of the court reciting the compliance of the applicant with the requirements of the law, and showing his admission, contained everything necessary to constitute the entire record of his admission as a citizen ; that it was unnecessary for the plaintiff to give evidence in support of the fact recited, and incompetent for the defendant to contradict it, unless by matter of record importing equal verity; and that without such contradiction the record was conclusive.. In coming to this conclusion the prior case of Ritchie. v. Putnam (13 Wend. 534), was approvingly referred to by Rüggles, Ch. J., in which the supreme court, on the authority of 7 Cranch, 420, had held that it need not appear by the record that all the preliminary requisites to a naturalization had been complied with, but that the judgment of the court, admitting the alien to become a citizen, is conclusive evidence upon that point. And in coming to the same conclusion, Foot, J., expressed the following views, viz.:

“All courts look with favor on proceedings to admit aliens to citizenship, and it is just that they should, for the want of acquaintance with our laws and judicial proceedings, the unsettledness of their residenc.es in general for some years, and the consequent liability to lose their documents and papers, should shield them from technical and sharp objections to their naturalization papers whenever there appears to have been an honest intention to become a citizen and comply with with the laws of our country.”

Of course, in deciding simply in favor of the sufficiency of an entry in the minutes, the • court .of appeals did not decide that the entry could not be made in some other way.

It will now be proper to observe the course and practice followed by the superior court of the city of New York in matters of naturalization.. Prior to 1858 the preliminary proofs and the oath of allegiance of the applicants were in many, if not most cases, written out by the clerk and kept upon loose sheets of paper. The declarations of intention, however, were since ¡November, 1846, kept in a separate book. These loose papers were filed away after the action of the court upon them, as of the date of the respective applications, and kept in the office of the clerk in the same manner as other records were preserved. In_passing upon each application^ the judge holding the court neither signed the papers nor did he affix his initials, but the clerk was required to note the fact of the judgment of admission by an entry in the minutes. Up to 1858 these entries were made in the minutes; but in that year, no doubt in consequence of the large increase in the number of applies tions, the practice was changed. Printed blanks came into general use for making the preliminary proofs and taking the oath of allegiance. If the applicant and his witness, after having been duly sworn to make true answers, answered all questions put to them' to the satisfaction of the, court, the presiding judge, on admitting the applicant to citizenship, signified the fact of having made such adjudication by affixing the initials of Ms name to the application, and thereupon handed the papers to the clerk, with directions to do whatever might remain to be done; the clerk then, in pursuance of such adjudication, fiat and directions, administered, and the applicant in open court took the oath of allegiance, and a certificate was given to the applicant as evidence of the fact of his admission. The papers containing the fiat of the presiding judge, as aforesaid, were thereupon indorsed and filed among the records of the court as a part thereof, and marked filed as of the date of the respective application. An entry was also made in a book, kept in alphabetical order, showing the date of the admission, the name of the applicant, his nationality, the name of his witness, and the residence of such witness, and if the admission was ordered without a previous declaration of intention, either on a discharge from the army, or on the ground that the applicant had arrived in this country during his minority, such fact was specially alluded to. As often as necessary a new book of like character Avas opened upon the same plan. All the books thus kept were permanently preserved among the records of the court. The first book thus opened and kept bears upon the outside the simple title or label “ Naturalization.” The one next in order of time is labeled “Naturalization Index.” Those opened since October 16, 1868, bear the title “Naturalization Record.” The practice, however, of making an entry in the regular minute-book was discontinued. The course and practice as noAv detailed was observed by the court for the folloAving fifteen years, and under it the promovents noAv before the court were admitted in 1868.

Now the files and records of this court distinctly shoAv that the said applicants duly compiled with all the requirements of the law to be performed on their part, and that all the allegations contained in the affidavits iioav submitted by them as to the manner in which the court acted upon and granted their respective applications and in which the clerk perfected the record of the proceedings are true. There is, in addition to the differences already noticed, only the further difference betAveen them that the entry of the fact of the admission of A. J. Christern and of Heinrich Weinberger is contained in the book labelled “Naturalization Index,” and that the entry of the fact of the admission of Arnold Greesemann is contained in the book marked “Naturalization Record.” But the difference in the designations of these books is of no importance, because regard must be had to their contents rather than their outside appearance.

In whichever aspect the case may be considered it clearly and distinctly appears that the clerk, in the performance of the duties assigned to him in thes.e proceedings, was guilty of no omission which rendered the record, as made up by him, invalid. When the presiding judge, on giving judgment in each case admitting the applicant to citizenship, attested the fact thereof by affixing his initials to the preliminary proofs, and delivered the papers so attested to the clerk with the direction, express or implied, to do all that remained to be done, the judicial function was completed, and only ministerial acts remained to be done; and the papers so handed over, together with the oath of allegiance thereupon administered, became the judgment record of the court on being filed as such by the clerk and by reason of such filing. -The record thus made up constituted a sufficient memorial or remembrance within the requirements of the common law. Thus in Parsons v. Willoughby de Broke (13 W. R. 315), it was held by Cookbrnn, Ch. J., and Crompton, Blackburn■ and Mellob, JJ., that a document becomes a record of the court by being delivered to the proper officer of the court, and received and filed by him as such, although it is not numbered or docketed.

If,, on the other hand, it be deemed of importance that an entry should be made in some book, the entries contained in the books marked “Naturalization Index” and Naturalization Record” fully answer every requirement that can be made in that respect. These books are in the nature of special minute-books. They contain the record of special proceedings entertained by the court not in the exercise of its ordinary, or general jurisdiction as a court of the State of New York, but in the exercise of a jurisdiction specially delegated to it by act of congress ; and the entries, as they appear therein, present in themselves a better and more detailed record, and at the same time one which is better adapted for purposes of ready reference, than the ordinary entry of the fact of admission would present or be if inserted in the general minute-book of the court. There is no law or rule which forbids this court to keep as many minute-books as it may deem expedient.

In any aspect of the case, therefore, the claim advanced by the chief supervisor of elections for the Southern District of New York, to the effect that the judgments of this court, admitting the' promovents to citizenship respectively are a nullity for want of an entry in the general minute-book, and that consequently the said parties are not citizens'of the United States, is utterly untenable. It rests upon a mere technicality which no court can listen to with patience. His proceedings against the promovents are wholly unjustifiable, for the statutes of the United States, under which he professes to act, confer no such authority upon him.

Section 5,424 of the Revised Statutes provides for the punishment of every applicant or witness who in any proceeding under the naturalization acts, personates any other person than himself, or appears in an assumed or fictitious name, or disposes of or uses any false paper. Section 5,425 makes it unlawful for any person (1) to use or attempt to use any certificate of citizenship, knowing the same to have been unlawfully obtained ; or (2) to knowingly possess a false or forged certificate of citizenship with intent unlawfully to use the same ; or (3) to accept or receive any certificate of citizenship with knowledge that it was frauden tly procured.

Section 5,426 makes it unlawful for any person (1) to in any manner use, as evidence of a right to vote, any certificate of citizenship, knowing the same to have been unlawfully issued ; or (2) to unlawfully use or attempt to use a certificate or order issued in the name of any other person. Section 5,427 applies to persons aiding or abetting.

Section 5,428 makes it unlawful for any person (1) to knowingly use any certificate of naturalization procured through fraud, or by false evidence, or issued by the clerk or any other officer, of the court without any appearance and hearing of the applicant in court and without lawful authority ; or (2) to falsely represent himself to be a citizen of the United States, without having been duly admitted to citizenship, for any fraudulent purpose whatever.

Section 5,429 provides that the provisions of the five preceding sections shall apply to all proceedings had or taken, or attempted to be had or taken, before any court in which any proceedings for naturalization may be commenced or attempted to be commenced.

These provisions originally constituted the act of July 14, 1870, entitled, “ An Act to amend the naturalization laws and to punish crimes against the same, and for other purposes.” Prior to 1870 false swearing by either applicant or witness in a State -court could only be punished, as decided in The People v. Sweetman (3 Park. Cr. 358), by the courts of the United States; and whether an indictment would lie in any such case depended upon the statute of the United States relating to perjury.

Fraud, other than perjury, could not, prior to 1870, be punished criminally at all unless the particular offense could be brought within the thirteenth section of the act of March 3, 1813, entitled “An Act for the regulation of seamen on board the public and private vessels of the United States.” That section made it a felony to falsely make, forge or counterfeit, or cause or procure to be falsely made, forged or counterfeited, any certificate or evidence of citizenship referred to in the act: or to pass, utter or use as true any false, forged or counterfeited certificate of citizenship ; or to make sale or dispose of any certificate of citizenship to any person other than the person for whom it was originailvjssuefl and to whom it may of right belong.

These provisions having been found inadequate, congress passed the act of July 14, 1870.

The provisions of this act apply only to offenses committed subsequent, to the passage of the act. But in order to provide as far as possible a remedy against false and fraudulent certificates of citizenship previously obtained, and yet avoid the objection which might be raised to an ex post facto law, the use of such certificates, and even their possession with intent to use them, was prohibited as therein provided. The certificates the use or possession of which is thus pro- ■ hiblted may be divided into four classes, viz: 1. Certificates which are forged or counterfeit and hence are not at all the act of the court whose seal they profess to bear. 2. Certificates which, though' genuine in all respects and issued pursuant to the direction of the court, were procured by or for the applicants named therein by means of some imposition or fraud practised upon the court. 3. Certificates issued by the clerk or other officer of the court without lawful authority in cases in which there was no appearance and hearing of the applicant in court; and, 4. Certificates issued to a person other than the one who uses or attempts to use them. But the prohibition does not apply to a case in which there was an honest compliance on the part of the applicant with the requirements of the law, and the court, in the exercise of its jurisdiction, made or gave the proper order or judgment, but of which the clerk neglected to make an entry, though he filed it, and although he issued the certificate; in such a case the certificate is valid and conclusive. Much less does it apply to a case like the cases at bar, in which everything was done which the law and the practice of the court required to be done.

If the chief supervisor of elections were possessed of evidence showing that the promovents procured their admission to citizenship by means of a fraud or imposition practised upon the court, and would lay such evidence before this court, I should not hesitate for a moment to vacate the judgments. In all such cases this court will most cheerfully co-operate to punish the guilty parties. Moreover, if such proof exists in any case the guilty party should be indicted and tried in the federal courts, and the offense committed should not be condoned upon a surrender of the false or fraudulent certificate to the chief supervisor of elections, which would leave the record of admission unimpeached, and, under the decisions above referred to, conclusive, and the offender at liberty to procure a duplicate certificate.

But to cast discredit upon the records of this court generally, withdut possessing any such proof, and that by resorting to the merest technicality in cases in which it is conceded that the applicants duly and honestly complied with all the requirements of the law, is a proceeding which deserves the severest condemnation. From 1858 to 1873 about forty thousand aliens, including over one thousand women, were naturalized by this court in precisely the same manner as the promovents were naturalized. If the records of this court were a nullity as to the latter, they would be a nullity as to ’ every one of the forty thousand persons admitted during that period.

True, in 1873, in addition to all that was done during the preceding fifteen years, the practice of malting brief entries in the regular minute-book was resumed, and it has been continued ever since, but this was done because the attention of the court had been drawn, by its present efficient clerk, to the very technicality now insisted upon, and in order to obviate all possible objection on this ground in the future, though possessed of no merit or force. At any rate, this step, taken by way of abundant precaution, cannot detract, as I have already sufficiently demonstrated, from the validity of the prior records.

Certainly, in respect to citizenship, it is of inestimable importance. What sovereignty has a right to command his person, his time, his property and to establish the conditions of his domestic relations and the rule of succession for him and those dear to him is a vital question for every man. What civil and political rights he possesses, and to what sovereignty he must look for protection, depends upon his status as a citizen. If these forty thousand persons did not legally become citizens of the United States, and by virtue thereof citizens of their respective States, the title to real estate of the value of many millions of dollars may hereafter be drawn in question. On the other hand, certainty of citizenship is of equal importance to the government. If these forty thousand persons did not legally become citizens none of them can be held subject to military or jury duty by the federal or any State government.

Even, therefore, if a defect in the record existed in consequence of the omission of some ministerial act by the clerk, the United States government, in the absence of a law; declaring such defect fatal, could not afford to insist upon it. The United States are so largely indebted to immigration for their power, greatness and prosperity that it would be an act of folly to return to the illiberal policy of George III., who, in consequence thereof, stands charged in the Declaration of Independence with having endeavored to prevent the population of the States by obstructing the laws for the naturalization of foreigners and by refusing to pass others to encourage their immigration hither.

I think I have now conclusively established that there is no defect whatever in the record of the admission of the promovents, and that even if absence of an entry in the general minute-book could be deemed a defect it is one which is immaterial and whose disregard is demanded by every consideration of public policy. Indeed, it is one of the fundamental principles of the law that every court is the guardian of its own records and master of its own practice (Broom’s Leg. Max. 127).

There being no defect in the record which requires perfection by amendment the motions must be denied on the ground that no necessity exists for granting them. Heinrich Weinberger, however, may have a duplicate certificate of citizenship in case the chief supervisor of elections shall persist in detaining the original.

MEMORANDUM CASES.


source: Caselaw Access Project

author: Sedgwick, J.,

license: Public Domain

text:
    JOHN A. WYMAN, Plaintiff and Respondent, v. JANE A. CHARLICK, and others, Executrix, &c., of Oliver Charlick, deceased, Defendants and Appellants.

      Decided, June 25, 1877.
    Before Sedgwick, Speir and Freedman, JJ.
    The appeal was from a judgment in favor of plaintiff entered on the report of a referee. The point presented was whether the judgment should be reversed, on questions of fact.

      Robert S. Brown, for appellant.

      Richard H. Huntley, for respondent.
   Sedgwick, J.,

wrote for affirmance.

Speir and Freedman, JJ., concurred.


author: Speir, J.,

text:
    FREDERICK A. POTTS, Plaintiff and Respondent, v. ISAAC MAYER, Impleaded, &c., Defendant and Appellant.

      Decided June 25, 1877.
    Before Sedgwick, Speir and Freedman, JJ.
    The action was brought against Elkin Hyman and Isaac Mayer as members of the firm of Hyman & Mayer, upon a promissory note for $1,571.34, made by them to their own order and indorsed to defendant Kohn, who before its maturity indorsed and delivered it to the plaintiff. It appeared on the trial that the note was given to Hyman for a debt which Mayer owed him. Hyman transferred it to Kohn in consideration of $1,200, paid by Kohn for Hyman’s account. Plaintiff received the note from Kohn and gave him credit therefor as so much cash. , The note was protested at maturity for non-payment, and plaintiff took it up with his own check and charged it back to Kohn, who paid plaintiff nothing on account of the note.
    The court directed a verdict for the plaintiff; from the judgment entered on which, defendant, Mayer, appealed.

      George N. Carpenter, for appellant.

      Richard S. Newcomb, for respondent.
   Speir, J.,

wrote for affirmance with costs.

Sedgwick and Freedman, JJ., concurred.


text:
    MICHAEL L. DOYLE, et al., Plaintiffs and Respondents, v. GEORGE H. SHARPE, Defendant and Appellant.

      Decided June 25, 1877.
    Before Speir and Freedman, JJ.
    L U. S. BANKRUPT LAW.
    1. Marshal.
    (a.) Powers and duties in seizure of property of bankrupt.

      William, A. Boyd and Charles E. Whitehead, of counsel, for appellant.
    Arnoux, Rich & Woodford, attorneys, and Wm. H. Arnoux, of counsel, for respondent.
   This was an appeal from a judgment in favor of plaintiffs.

Speir, J.,

wrote for affirmance, holding the case of Doyle v. Sharpe, 41 N. Y. Superior Court, p. 312, was conclusive on all the questions involved.

Freedman, J., concurred.


text:
    THE FARMERS AND MECHANICS’ NATIONAL BANK OF BUFFALO, Plaintiffs and Respondents, v. THOMAS ATKINSON, Impleaded with ERASTUS S. BROWN, Defendant and Appellant.

      Decided June 25, 1877.
    Before Sedgwick and Speir, JJ.
    Appeal from judgment entered on verdict for plaintiff.
    This case involved the same questions as are presented in the case of the Farmers and Mechanics’ National Bank of Buffalo v. Brown, Logan and Preston, reported 10 J. & S. 522.

    The decision in this case is governed by the decision in that.
   Speir, J.,

wrote for affirmance with costs.

Sedgwick, J., concurred.


text:
    GEORGE F. JOHNSON, Plaintiff and Respondent, v. JOSEPH PHILIPS, et al., Defendants and Appellants.

      Decided June 25, 1877.
    Before Speir and Freedman, JJ.

      Appeal from judgment entered upon verdict for plaintiff directed by court, and from order denying motion for new trial.
    The case involves only questions of fact.

      J. H. Whitlegge, for appellants

      Benjamin Merritt, for respondents.
   Speir, J.,

wrote for affirmance with costs.

Freedman, J., concurred.


text:
    THE KNICKERBOCKER LIFE INSURANCE COMPANY, Plaintiff and Appellant, v. GEORGE T. PATTERSON, as Assignee, &c., Defendant and Respondent.

      Decided June 25, 1877.
    Before Sedgwick, Speir and Freedman, JJ.

    Appeal by plaintiff from judgment entered on verdict directed in favor of defendant.

      F. C. Cantine, for appellant.

      J. Hampden Dougherty, for respondent.
   Freedman, J.

—By the agreement executed by certain creditors of. McDonald, Dillont & Company, a corporation organized under the laws of New York, in which the plaintiff, as one of such creditors, joined, it was clearly contemplated between the parties thereto that the assignee to be appointed by the company should not be liable for rent accruing between the execution of the assignment and the first of May thereafter ensuing, but that such rent should be paid _£>?'<> rata uhder the assignment. An immediate sale at auction might have involved a heavy sacrifice, and to prevent this, and to enable the assignee to close out the stock by sales at retail, the above arrangement seems to have beep resorted to, as being, to the advantage of all parties.

The- plaintiff having become a party to the agreement, and the assignment having been made upon the faith thereof, and without passing the lease to the assignee, and the latter having apparently acted under it in good faith, the plaintiff cannot now be permitted to turn around and to hold the defendant liable for the same rent as assignee of the term. As the case stands, it can make no difference whether the assignment was or was not valid.

The judgment should be affirmed with costs.

Sedgwick and Speir, JJ., concurred.


author: Per Curiam.

text:
    MARY BOCKOVER, Administratrix of James H. Bockover, Deceased, Plaintiff and Respondant, v. WILLIAM A. HARRIS and WILLIAM M. HALSTED, impleaded with others, Defendants and Appellants.
    COUNTER-CLAIM—SET-OFF—-RECOUPMENT.
    1. Not allowed, when.

      (a) Joint claims in favor of two out of 'a number of defendants cannot he counter-claimed, set-off or recouped, wheii the action is
      such that a joint judgment cannot be rendered against such two, separately from the others.

      Decided June 25, 1877.
    1. Partnership, Action for account.

      (a) The administratrix of B. brought action against H. and A. and several others, alleging a copartnership between B. and the defendants, and demanding an accounting. H. and A. put in a joint answer, whereby they denied the allegations of the complaint; and for a second defense averred that they, being members of a certain firm, entered into an agreement with the plaintiff in their individual capacities, whereby they employed him to render services for them, and in effect averred that all the services he rendered, and all that he did either for them or the firm, were rendered and done under that agreement; and for a third defense, by way of counter-claim, they set up what they relied on as a cause of action in their joint favor against the plaintiff, arising out of the agreement in the second defense referred to. Plaintiff demurred to the third defense. The demurrer was sustained at special term, Sanford, J., writing, holding above propositions. The answering defendants appealed.
    Before Sedgwick, Speir and Freedman, JJ.

      Evarts, Southmayd & Choate, attorneys, Joseph H. Choate, of counsel, for appellants.

      Weeks & Forster, attorneys, George H. Forster, of counsel, for respondents.
   Per Curiam.

—The opinion of Judge Sanford fully - sustains the order appealed from. It may be added that on the complaint in its present form, the plaintiff could not have judgment against the two defendants who set up the counter-claim, upon the agreement stated in the counter-claim.

Order affirmed with costs.


text:
    FRANCIS B. HEGEMAN, Plaintiff and Respondent, v. MARY A. CANTRELL, Defendant, Appellant.

      Decided June 25, 1877.
    Before Speir and Freedman, JJ.
    Appeal from a special term order denying defendant’s motion for leave to make and serve a proposed case and exceptions.

      Henry H. Morange, for appellant.

      A. H. Wagner, for respondent.
   Per Curiam.

—Order affirmed with costs and disbursements.


text:
    ELIZABETH N. DEAN, Plaintiff and Appellant, v. THE N. Y. CENTRAL AND HUDSON R. R. R. COMPANY, Defendant and Respondent.

      Decided June 25, 1877.
    Before Sedowick, Speir and Freedman, JJ.
    Appeal from judgment for defendant on report of referee.

      Robert I. Little, for appellant.

      Frank Loomis, for respondent.
   The only question involved was whether the evidence was supported by the referee’s findings of fact.

Per Curiam.

—Judgment affirmed with costs.


text:
    NEW YORK GUARANTY AND INDEMNITY COMPANY OF THE CITY OF NEW YORK, Plaintiff and Appellant, v. ANDREW L. ROBERTS, impleaded with LYDIA J. ROBERTS, VALENTINE GLEASON,- GLEASON, and - CORP, Defendant and Respondent.

    I. Execution against the person in custody under order op
    ARREST.
    1. OUTSTANDING FI FA.

    (it.) Sight of defendant in custody under order of arrest, in respect to execution against the person, notwithstanding outstanding fi. fa.

    1. After the expiration of three months from the entry of judgment, upon his executing and delivering to the sheriff a stipulation, consenting that his person betaken under an execution against the person, to be issued by the plaintiff, and releasing the sheriff from all liability, by reason of his executing such execution against the person, as directed by the plaintiff in accordance with law, and as demanded by him of plaintiff, and on executing and delivering to the plaintiff a stipulation, consenting and demanding that plaintiff issue an execution against his person, and in consideration thereof agreeing with the plaintiff that the issuing of such exe-
    cution, and the taking of his person in execution thereunder, should in no way prejudice the rights of the plaintiff under process against the property of said defendant, and that plaintiff shall have the same right to proceed with and enforce process against property, as if an execution against the person had not been issued, and releasing plaintiff from all liability by reason of issuing execution against the person ; and on executing and delivering to plaintiff, with such of his co-defendants as are similarly situated, a stipulation, consenting that plaintiff may issue execution against their persons, notwithstanding process against their property has not been returned, and releasing plaintiff from any liability by reason thereof, and demanding the issue of execution against their persons ; he will he entitled to an order discharging him from custody, unless plaintiff cha/rge him in execution, within a time limited in the order.

      Decided November 5, 1877.
    2. FI. FA. ISSUE AND RETURN OF, BEFORE EXECUTION AGAINST THE PERSON.

      (a.) Waiver of.

    The statutes requiring an execution against the property to be issued and returned before an execution against the person can be issued, are intended for the benefit of the defendant against whose person the execution is to be issued, and can be waived by him.

    Before Speir and Freedman, JJ.
    This is an appeal from an order of date July 2, 1877, directing that the defendant, Andrew L. Roberts, be discharged from custody unless plaintiff issue execution against his person within a certain time limited by the order.
    Defendants, Andrew L. Roberts and Valentine Gleason, were arrested under an order of arrest in this action, judgment having been rendered in the action against the defendants, Andrew L. Roberts, Lydia J. Roberts, Valentine Gleason,-Gleason, his wife, and-Corp ; execution was duly issued thereon against the property of all those defendants, and that execution is still unreturned by the sheriff.
    Plaintiff moved against the sheriff to compel him to return the execution, and its motion was denied.

      After the expiration of three months from the entry of judgment, motion was made to discharge defendant, Andrew L. Roberts, from imprisonment, by reason of plaintiff’s neglect to charge him in execution, and that motion was denied. The sheriff’s excuse for not returning the execution against the property was that he had process in his hands issued prior to the execution in this action, in other actions, and that such actions are undetermined.
    Thereupon defendant, Andrew L. Roberts, upon affidavits and certain stipulations duly executed and acknowledged, again moved that plaintiff be required by an order of this court to issue execution against his person. Upon which motion the order appealed from was made.
    The stipulations were as follows :
    SUPERIOR COURT OF THE CITY OF NEW YORK.

    Whereas, an execution against the property of the defendants in the above entitled action was duly issued, on the 31st day of January, 1875, to Matthew T. Brennan, then sheriff of the city and county of Hew York, which execution has been duly transferred to you, and has not yet been returned, and
    Whereas, I have executed and delivered to the plaintiff a stipulation demanding that an execution issue'against my jierson, and releasing the said plaintiff from liability by reason thereof.

      Now I, Andrew L. Roberts, one of the defendants in the above entitled action, do hereby consent that you, the sheriff of the city and county of New York, do take my person in execution under an execution against the person to be issued herein by the plaintiff, and I do hereby release and discharge you, the said sheriff,
    from all liability, claims, damages and suits, by reason of your executing the said execution against my person, as directed by the plaintiffs, in accordance with law, and as so demanded by me.
    ANDREW L. ROBERTS.
    June 29, 1877.
    To Bernard Reilly, Esq., Sheriff, &c.
    SUPERIOR COURT OF THE CITY OF NEW YORK.

    Whereas an execution against the property of thé defendants in the above entitled action was issued herein, on the 31st day of January, 1875, to the sheriff of the city and county of New York, and the said execution has not been returned by the said sheriff, and by reason thereof plaintiff has not issued execution herein against the person of this defendant.
    Now therefore I, Andrew L. Roberts, one of the defendants in the above entitled action, do hereby consent and demand that the plaintiff herein forthwith issue an execution against my person in this action, and in consideration thereof I do hereby agree to and with the plaintiff that the issuing of such execution and the taking of my person in execution thereunder shall in no wav prejudice the rights of the plaintiff under the attachment herein and the said execution against the property of the defendant, and that the plaintiffs shall have the same right to proceed with and to enforce the said execution against property as if an execution against my- person had not been issued, and I hereby release and discharge the plaintiff of, and from any and .all suits, claims and damages, by reason of the issuing of such execution against my person.
    Dated June 29th, 1877.
    ANDREW L. ROBERTS, AVILLIAM SUTFHEN, Attorneys for defendant Roberts.
    NEW YORK SUPERIOR COURT.
    The New York Guaranty and Indemnity Company of the 'City of New York against Andrew L. Roberts and Valentine Gleason el at.

    Whereas, an execution against the property of the defendants in above entitled action has heretofore, and more than sixty days previous hereto, been issued to the sheriff of the city and county of New York, and the same has not ye A been returned, and whereas the said sheriff neglects and refuses to return said execution, and by reason thereof the plaintiff is unable, and believes it to be illegal, to issue execution against the persons of these defendants.
    Now therefore, we, two of the above named defendants, now confined in Ludlow street jail, under an order of arrest in said action, do hereby consent that the plaintiff may forthwith issue execution against the persons of these two defendants, notwithstanding said execution against the property of the defendants has not been returned, and we do hereby release the plaintiff from any suits, claims, or damages, by reason thereof.
    And we do hereby severally demand that the plaintiff forthwith issue said execution against the persons of these two defendants.
    ANDREW L. ROBERTS, VALENTINE GLEASON.
    The following opinion was rendered at special term :
    Sanford, J. —I denied the motion to discharge defendant from imprisonment under section 288 of the Code, on the ground that the unexecuted attachments, and outstanding execution against property in the hands of the Sheriff, sufficiently excused the omission of the plaintiff to charge defendant’s person in execution within three months after the entry of judgment, and constituted good cause to the contrary within the meaning of that section.
    I am of opinion, however, that the provision of the statute, express or implied, which prohibits the issuing of an execution against the person, while there is an execution against his property not returned (2 R. S. p. 364, § 6; Code, § 288), are intended for the benefit of the execution debtor, and may be waived by him; that such waiving, accompanied by a stipulation to the effect that the remedies of the judgment creditor under his attachment and execution against property, shall be in no wise impaired by the issuing of an execution against the person of his debtor, and releasing him from all liability by reason thereof, removes all obstacles to the issuing of such an execution, and entitles the defendant to his discharge in so far as such outstanding attachments and executions against property constitute cause to the contrary.
    The defendant.having now executed, acknowledged, and tendered such waiver and stipulation is, in my opinion, entitled to be discharged, unless the plaintiff forthwith charge him in execution in compliance with his demand.
    The order will therefore be that he be discharged from custody, unless execution be issued against his person within ten days after the service upon plaintiffs’ attorneys of a copy of this order, together with the stipulations submitted on this motion.

       The order has been affirmed by the court of appeals.

       The effect of the decision, it would seem, is also to hold that the general rule that the taking the body under a ca. sa. is satisfaction of the judgment, as laid down in Graham's Practice, p.-, is a personal one in favor of the defendant so taken, and may be waived by such defendant; and upon his sole consent to that effect, the taking of his body will cease to so operate.

   Per Curiam.

—The order appealed from should be affirmed, for the reasons assigned by the learned judge who made it.


author: The Court,

text:
    BENJAMIN L. LUDINGTON, Plaintiff, v. AMOS C. BELL, impleaded with JAMES W. BELL, Defendant.
    I. Joint Debtor Act (Laws 1838,' chap. 257).
    1. Compromising debtor.

      (a) Essential requisite to his discharge from further
    LIABILITY.
    The execution of the note or memorandum in writing provided for by the statute, is.
    II. Accord, and, satisfaction.

    1. Individual notes given for part of a firm note.

      (a) A firm note being past due, one of the firm gave to the holder his individual four promissory notes, all dated the same day, payable respectively thirty days, two months, three months and four months after date, and certain cash (the notes and cash equalling one-half the firm note, which was not, however, surrendered), under an agreement that the same should be taken and received in full payment and satisfaction of all claims against him on the firm note. The four notes were subsequently paid.

      Decided November 5, 1877.
    HELD,

      not an accord and satisfaction.

    Before Speib, and Fbeedman, JJ.
    This action was brought to recover the balance due on a promissory note, made by the firm of A. 0. & J. W. Bell, payable to the order of the plaintiff.
    This note was for $4,000, and bore date, February 17, 1872, and was payable February 1, 1873.
    It was claimed by the defendant, Amos 0. Bell, that in January, 1875, he made an agreement with the plaintiff by which, upon payment of $2,000, he was to be released from all further liability on said note. The evidence tended strongly to establish a verbal agreement to this effect.
    It appeared in evidence, that the plaintiff originally held the individual note of the defendant, Amos C. Bell, and that the partnership note on which this action is brought, was given in lieu of such individual note to obtain an extension of time of payment.
    It was conceded on the trial, that on January 11, 1875, Amos C. Bell paid $500 on the note, and gave four notes amounting in the aggregate to $1,500. Defendant claimed that this was done under the above-mentioned agreement.
    At the close of the testimony on both sides, plaintiff moved that the court direct a verdict for plaintiff on the ground that there was no consideration for the alleged agreement, and that nothing short of a release under seal is valid.
    The defendant requested the court to submit to the jury the question as to the settlement and compromise of the defendant, A. 0. Bell, with plaintiff, and the release of said defendant from all liability to plaintiff on said note mentioned in the complaint.

      The court granted the plaintiff’s motion, and refused the defendant’s request, assigning the following reasons:
    The Court.—“The substitution of one note for another extends merely the time of payment, but does not work payment; neither does it extinguish the original liability. Hence a compromise or an attempted compromise by an individual to pay part of the original indebtedness by the -substitution of a new note in the place of the original indebtedness works no satisfaction. Nothing short of a release under seal will work, a satisfaction.
    “ This rule, prior to 1838, applied to a case in which one of several partners, or one of several joint debtors, sought to make a compromise for his own individual benefit with a creditor. To release partners and joint debtors, a statute was passed in 1838, which authorizes one of several partners, or one of several joint debtors, to thus release himself. But it does not touch the question whether such a compromise was made, to be established subsequently by parol evidence. The statute prescribes that ‘ every such debtor or debtors making such composition or compromise shall take from the creditor or creditors with' whom he may make the same, a note or memorandum in writing, exonerating him or them from all and every individual liability incurred by reason of such connection with such copartnership firm, which note or memorandum may be given in evidence by such debtor or debtors under the general issue, in bar of such creditor’s right of recovery against him or them.’
    “ This seems to be a sort of statute of frauds applicable to this class of cases, and as the defendant has not gone to the extent prescribed by the statute, I do not think that he is released. I shall therefore direct a verdict for the plaintiff.”
    Defendants excepted to these rulings. The jury under the direction of the court, rendered a verdict for plaintiff for $2,117.70.
    The court directed the exceptions to be heard in the first instance at general term.

      George W. Lord, attorney, and of counsel, for plaintiff, urged :
    —I. It is well settled, that the payment and acceptance of a less sum in satisfaction of a greater one, does not discharge the debt, although the creditor agrees to accept the lesser sum in full satisfaction (Bunge v. Koop, 5 Robt. 1; S. C., 48 N. Y. 225, 229).
    II. Whether the act of 1838 (chap. 257), entitled “ An Act for the relief of partners and joint debtors,” was intended to overturn the principles of law above stated, and whether it was intended to render valid and binding, an agreement between debtor and creditor, which was not founded upon some new and valuable consideration, may be an open question—but, if such was the intention of the legislature, then we say—
    III. That the only competent evidence of such agreement is a “note or memorandum in writing,” as required by the second section of that act.

      H. T. Cleveland, attorney, and E. II. Bowen, of counsel for defendant, urged :
    —I. The memorandum provided for by chapter 257 of the act of 1838, is not the only competent evidence. The agreement may be proved by common law evidence (Sedgwick on Statutory and Constitutional Law, 93, 401; Stafford v. Ingersoll, 3 Hill, 39; Lockwood v. Herrick, 6 Cushing, 465; Rex v. Inhabitants of Birmingham, 8 Barn. & Cress. 29; Cole v. Green, 6 Man. & G. 890; 46 Barb. 110; 59 N. Y 191; 12 Id. 266; 40 Barb. 537; 2 Lans. 455; 39 Barb. 629; 60 N. Y. 430, 434; 40 Id. 537; Jordan & Skaneatelas Plank Road Co. v. Marley, 23 Id. 556).
    II. The contract was a lawful one. Plaintiff ought to have given the note or memorandum. In equity he will be deemed to have done it (21 N. Y. 499; 41 Barb. 283).
    III. The transaction amounted to an accord and satisfaction (Kent v. Reynolds, 8 Hun, 559; Beach v. Bndress, 51 Barb. 570; Gray v. Barton, 55 IV Y. 70, 71). The decisions holding that agreeing to accept or accepting less than the sum due in full, is without consideration, are not cases like this. In this case there was a valuable consideration ; a new security was given, binding A. C. Bell alone. Time of payment was extended, within which time A. 0. Bell had no remedy or right of action for contribution, and within which time the other partner might, as in fact he did, become insolvent. The new notes for part of the original debt were (in case the old note remained in force) decidedly prejudicial to A. C. Bell, the maker, as they subjected him to several and separate actions, and if not taken in payment or as a compromise under the act of 1838, they released the other partner, or at least severed the debt, increasing the liability of this defendant, Amos C. Bell, the maker of the new notes. In various ways the giving of the new and individual notes of A. C. Bell, was prejudicial to him if he was not released from the old note, and that is consideration enough. Within the cases before cited, he was discharged from liability on the old note. And the verdict thereon in this action cannot be sustained.
   The Court,

without writing an opinion, overruled defendant’s exceptions, and ordered judgment for plaintiff, on the verdict, with costs.


text:
    WILLIAM B. CANFIELD, and others, Plaintiffs and Respondents, v. THE BALTIMORE & OHIO RAILROAD COMPANY, Defendants and Appellants.

      Decided November 5, 1877.
    Before Curtis, Ch.- J., Sanford and Freedman, JJ.
    Appeal from a judgment and order denying motion for new trial.
    The action was brought against the defendant as a common carrier, for the loss of certain goods shipped by plaintiff. Plaintiff had a verdict. Defendants appealed from the judgment entered on the verdict, and also from an order denying a motion for a new trial.

      Hutchins & Platt, attorneys, Austin G. Fox and Waldo Hutchins, of counsel, for appellant.

      Estes & Barnard, attorneys and of counsel, for respondent.
   The Court,

without writing an opinion, affirmed the judgment and order.


text:
    THE NEW CASTLE CHEMICAL WORKS, Plaintiff, v. THOMAS REED and CHARLES F. SANBORN, Defendants.

      Decided November 5, 1877.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.
    Exceptions ordered to be heard at general term.
    Action founded on a refusal by defendants to accept goods shipped to them, as per contract. Plaintiff, having, upon due notice to the defendant, stored the goods, and subsequently sold them, brought this action to recover the difference between the net proceeds of such sale qf the goods, and the contract price thereof, being $434.96 in gold, and also the amount expended in and about the cartage, storage and preservation of said goods, being $65.48 in currency,
    Evidence was given on both sides. In the course of the trial defendants excepted to various rulings, admitting, excluding, and refusing to strike out, evidence.
    They also excepted to the denial of their motion, made at the close of plaintiff’s case, for a dismissal of the complaint. This motion was not renewed at- the close of the testimony on both sides.
    The court directed a verdict for plaintiff for $482.71, in gold (being said sum of $434.96, and the interest thereon), and for $72.27, in currency (being said sum of $65 and interest). No exception was taken to this direction. The exceptions were ordered to be heard in the first instance at the general term.

      Anderson & Man, attorneys, and Frederick H. Man, of counsel, for appellants.

      O. J. Wells, attorney, and of counsel, for respondents.
   The Court,

without writing an opinion, overruled the exceptions, and ordered judgment for the plaintiff on the verdict.


text:
    WILSON SMALL v. THE MAYOR, &c., OF N. Y. Before Curtis, Ch. J., Sanford and Freedman, JJ.

      Decided November 7, 1877.
    Judgment affirmed with costs.
   No opinion.


text:
    GEORGE DURYEA, Plaintiff and Respondent, v. ANDREW LESTER, Defendant and Appellant.

      Decided November 12, 1877.

      Trial—Gonduct of.

    1. Request to submit questions of fact to the jury.

      (a) Necessity of.
    Before Sedgwick and Speie, JJ.
    The action was brought to recover commissions for effecting an exchange of personal property for real, estate. The evidence was conflicting as to the employment and as to plaintiffs being the procuring cause. The judge charged the jury that if they believed the testimony of the plaintiff, and upon that found that he was employed as a broker, and that Avhatever services he rendered, he rendered under such employment, then he would be entitled to recover a verdict of $2,580.50. This was excepted to. There was no request to submit to the jury the question as to whether the plaintiff was the procuring cause. There was no dispute as to the amount the plaintiff was entitled to, if he was entitled to recover at all.
    The jury found a verdict for the plaintiff for $2,580.50. Judgment was entered thereon. A motion was made by defendant for a new trial, which was denied. Defendant appealed from the judgment and the order denying the motion for a new trial.
    On the appeal, his counsel urged that the exception to the charge above noted was well taken, because, the charge took from the jury the consideration of the question as to whether plaintiff was the procuring cause, and also because it withdrew from the jury the question of the value of the services. He also claimed that the evidence as to employment was insufficient.

      Vanderpoel, Green & Cuming, attorneys, and A. J. Vanderpoel, of counsel, for appellant.

      A. Edward Woodruff, attorney, and Theron G. Strong, of counsel, for respondent.
   Speir, J.,

writing for affirmance, held that as there was no dispute, but that if plaintiff was entitled to recover at all, he was entitled to recover the amount for which the verdict was given, and as the question of the employment was submitted to the jury, and no request made to submit any other question of fact, there Avas no ground for the exception. He also held that the evidence as to employment was sufficient to sustain the verdict on that point.

Sedgwick, J., concurred.

Judgment and order affirmed with costs.


author: Freedman, J.,

text:
    THOMAS M. TYNG, Plaintiff and Appellant, v. LUTHER R. MARSH, and others, Defendants and Respondents.
    I. Attorney and client.

    1. Agreements as to aTTORNEY’s compensation.
    1. Motion to compel a referee to find the reasonable and act/ual cash, value of services, denied. *

      (a) The referee found that the questions involved in the case, in reference to services wherein the agreement was made, were novel, difficult and important, and that the preparation for the trial, and tlie trial, required and involved much labor, study and skill on the part of the defendants, and the same were diligently bestowed by them; he also found the prominent steps taken by defendants in the litigation, that they paid all the disbursements and procured the security on appeal to the court of appeals ; he also found that plaintiff was unable to pay fees, and that defendants’ compensation in these actions depended on success in one of them; he then found as a twentieth finding, “ The compensation so agreed to be paid said defendants was no more than a fair and reasonable compensation to said defendants under the circumstances, and in view of the contingency on which payment of the same depended.”.
    On the settlement of the case the referee was requested to find, among other tilings:
    “ What was the reasonable and actual cash value of the entire professional services rendered to the plaintiff by defendants in the management and conduct of the three actions at law referred to in the pleadings, and the value of the serices rendered in each of said three actions ?

      Decided, January 7, 1878.
    To this, he answered:
    “The referee declines to answer this.
    “ 1. Because it is immaterial.
    “2. Because there is no evidence in the case which, in the judgment of the referee, would enable him to answer this question other than as stated in twentieth finding of fact in referee’s report.”
    A motion was then made at special term that the case be sent back to the referee with directions to pass specifically and categorically on the matters contained in this request, as well as the matters contained in other requests made. The motion was denied.
    HELD,
    no error.
    Before Cttbtis, Ck. J., Sanford and Freedman, JJ.
    This action was brought against defendants, who are attorneys at law, to recover the sum of $14,253.02, being the balance of $17,253.02, collected by them for the plaintiff from The Commercial Warehouse Company of New York, after deducting the amount which plaintiffs alleged to be a reasonable compensation for their services. ■
    Defendants alleged, that after a long, difficult and laborious litigation in an action brought by the plaintiff against The Commercial Warehouse Company of New York, in which the plaintiff originally acted in." person, and in which they were substituted in Ms place as plaintiff’s attorney, they succeeded in collecting from said Commercial Warehouse Company, the sum of $50,971.19 damages, interest and costs.
    That out of this sum they retained" $15,000,. and $2,253.02 (the latter sum being the amount of the costs included in the $50,971.19), less the sum of $500, which they loaned to plaintiff, and which had never been been repaid. This retention was under and pursuant to an agreement between them and the plaintiff in respect to their compensation for their services.
    The referee reported that defendants were entitled to judgment in their favor on the merits, dismissing the complaint with costs. Plaintiff appealed. The evidence given on the trial was not contained in the appeal book. The only question presented on the appeal from the judgment was, whether the conclusions of law of the referee were supported by his findings of fact.
    Plaintiff also appealed from an order denying a motion made by him to compel the referee to make further findings.

      Thomas M. Tyng, plaintiff and appellant, in person, on the points mentioned in the head-note, urged :
    —The referee erred in refusing to pass specifically upon the actual reasonable value of the defendant’s services. - Not only was this a very material issue in this cause, but the action cannot be properly decided, until this fact is specifically passed upon (Haight v. Moore, 5 J. & S. 161). There was evidence upon which such a finding could have been made, had the referee deemed i.t material. The main reason why the referee refused to make a finding upon the subject was that it was immaterial. His refusal to pass upon this question was duly excepted to, and his erroneous action is thus properly presented for review' as a question of law (Code of Civ. Pro. § 993; Vanslyke v. Hyatt, 46 N. Y. 259; Rogers v. Wheeler, 52 Id. 262; Fallman v. Bressler, 58 Id. 123; Dalrymple v. Hillenbrand, 62 Id. 5; Smith v. Glen Falls Ins. Co., Id. 85). Even if the compensation of the defendants was purely contingent upon their success, that does not make the actual value of their services an immaterial fact here (Wright v. Wright, 9 J. & S. 432).

      Marsh & Wallis, attorneys, Wm. E. Shepard, of counsel, for respondent.
   Freedman, J.,

wrote for affirmance.

Curtis, Ch. J., and Sanford, J., concurred.

Judgment and order severally affirmed, with, costs.


text:
    HELEN J. CANZI, Plaintiff and Appellant, v. WILLIAM C. CONNER, Sheriff, and others, Defendants and Respondents.

      Decided January 7, 1878

      Practice.

    1. Case on appeal, settlement of by the judge. Allowing a
    PROPOSED AMENDMENT IN ACCORDANCE WITH THE STENOGRAPHIC
    NOTES.

      (a) Effect of. Assumed to have been settled in accordance with the judge’s minutes.
    (5) Weight of. The evidence furnished by such settlement as to the real fact preponderates over that of the affidavit of the counsel who tried the cause for the party making the case, to the effect that the proposed case embodied the fact as it occurred, and suggesting a cause which might have led to its having escaped the attention and notice both of the judge and stenographer.
    Before Curtis, Ch. J., Van Vorst, and Freedman, JJ.
    Appeal from an order entered at the request of appellant, allowing an amendment to her proposed case, by which certain exceptions therein stated to have have been taken by her were stricken thereout.

      The affidavit mentioned in the head-note was as follows:
    “ W. S. Wolf, plaintiff’s attorney, being duly sworn, says: that I tried the above-entitled action as counsel for the plaintiff, commencing October 3, 1876, and that I sat near the railing in front of the stenographer, and that when Justice Sanford read the defendant’s request to charge at the close of each request, after' he announced his decision to charge accordingly, I stated in a low voice, ‘ Plaintiff excepts.’ I supposed that the stenographer heard me ; at least Louis Canzi, who sat at my side, asked me what I made that speech for. That at'the close of the charge I excepted generally and specially to the charge. I was suffering from a cold in my head during said trial, and was partially deaf and could not tell how loud I spoke, but I thought I spoke loud enough for the stenographer to hear me. That the attorneys for Boethlisberger and Gerber have not objected to the ease as served, and have served notice of argument for next general term. That the sheriff’s attorneys alone object.”

      W. S. Wolf, attorney, and Roeellus S. Guernsey, of counsel, for appellant.

      Vanderpoel, Green & Cuming, attorneys, and Almon Goodwin, of counsel for respondent.
   Freedman, J.,

wrote for dismissing the appeal from the order holding the propositions stated in the head-note.

Curtis, Ch. J., and Van Vorst, J., concurred.


author: By the Court.—Freedman, J.

text:
    JOHN C. RUST, Plaintiff and Respondent, v. CHARLES HAUSELT, Defendant and Appellant.

      Decided January 7, 1877.
    Stipulation not vacated, when.
    Where a party enters into one for the purpose of obtaining that which he could not otherwise have procured, and thereby obtains it, he should not be relieved from it.
    Before Curtis, Ch. J., Sanford, and Freedman, JJ.
   By the Court.—Freedman, J.

—In order to obtain a hearing in the court of appeals, the defendant and appellant stipulated that the order made by the general term of this court on May 8, 1876, be amended in certain particulars.

Having thus secured a hearing which he could not have otherwise procured, and compelled the respondent to meet his argument on the merits of the case, it seems to me but just and proper that he should be held bound by it.

The fact that the hearing resulted in an unfavorable decision, furnishes no. reason to the contrary.

The motion to vacate the order of November 5, 1877, should be denied with ten dollars costs.

Curtis, Ch. J., and Sanford, J., concurred.


author: The court,

text:
    FRANCIS NEHER, Plaintiff and Respondent, v. JOHN McDONOUGH, Impleaded, &c., Defendant and Appellant.

      Decided February 4, 1878.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.
    Appeal by the defendant McDonough from an order appointing a receiver herein and directing him to pay to the receiver $346.13.

      S. V. Cooper, for appellant.

      S. Jones, for respondent.
   The court,

in an opinion by Curtis, Ch. J., held as follows:—The facts disclosed upon the appeal show that it was proper, for the protection of the property and of the lien claimed by the plaintiff, as well as the rights of all the parties, that a receiver should have been appointed.

. The order appealed from should be affirmed with costs.

Sedgwick and Freedman, JJ., concurred.


text:
    JULES S. ABECASIS, Plaintiff and Respondent, v. MORGAN GRAY, Defendant and Appellant.

      Decided February 4, 1878.
    WAREHOUSEMEN, THEIR LIABILITY.
    A warehouseman is liable for goods stored with him absolutely, unless he can show that they were lost or destroyed through no fault of his own. Mere inability to deliver is itself prima facie evidence of negligence. To relieve himself from liability to the bailor, the warehouseman, as bailee, must fully account for the goods, and this he can only do by showing the manner of their loss or destruction, and that the same occurred in spite of proper care and diligence on his part. Thus even proof of larceny or burglary does not of itself relieve the warehouseman. He must, in addition, show that he did not in any wise contribute by any neglect or want of precaution on his part (Schwerin ». McKee, 51 N. T. 180; Coleman v. Livingston, 37 W. T. Superior Ot. [4 J. & S.] 32; Claflin v. Meyer, page 1, supra).

    Before Curtis, Ch. J., and Freedman, J.
    Appeal by defendant from judgment entered upon the verdict of a jury, and from order denying motion for new trial.

      Geo. Wilcox, for appellant.

      G. A. Seixas, for respondent.
   Freedman, J.,

wrote for affirmance, with costs, laying down above principles, and holding that the case was properly submitted to the jury.

Curtis, Ch. J., concurred.


author: Curtis, Ch. J.,

text:
    CHARLES HAUSELT, for himself, &c., Plaintiff and Appellant, v. FREDERICK VILMAR and CHARLES F. TAG, Defendants and Respondents.

      Decided February 4, 1878.
    Befdre Curtis, Ch. J., and Freedman, J.
    Appeal by the plaintiff from á judgment at special term, dismissing the complaint upon the merits, and from ah order of judge at chambers, declining to entertain the plaintiff’s motion for an order requiring the judge before whom the action was tried to pass upon or find plaintiff’s proposed requests to find.
    The action was to vacate and set aside a general assignhient for benefit Of creditors, without preferences, on ground that same was made to defraud, hinder and delay creditors, &c.

      Lewis Sanders, for appellants.

      Ed. Solomon, for respondent, Charles F. Tag.

      Charles Wehle, for respondent, Frederick Vilmar.
   Curtis, Ch. J.,

wrote for affirmance of judgment apd order appealed from with costs.

Feeedíian, J".* concurred.


text:
    ROBERT FLEMING, Plaintiff and Respondent, v. THE CONSOLIDATED FRUIT JAR COMPANY, Defendant and Appellant.

      Decided February 4, 1878.
    Before Curtis, Ch. J., and Sedgwick and Freedman, JJ.
    Appeal from judgment in favor of plaintiff.
    The action was brought by the owner of certain stock against the corporation to compel a transfer thereof upon the books of the company to him. The answer set up ownership of stock in another person, against whom an action had been brought, and an attachment issued, and the stock attached in tke hands of defendant. The only question was as to the fact of ownership.

      Smith & Woodward, for appellants.

      Coudert Brothers, for respondent.
   Sedgwick, J.,

wrote for affirmance with costs.

Curtis, Ch. J., and Freedman, J., concurred.


text:
    HELMUTH KRANICH, et al., Plaintiffs and Appellants, v. JOHN REYNOLDS, Defendant and Respondent.

      Decided, February 4, 1878.
    Questions Involved.
    1. Whether" the evidence was such as to call for a reversal.
    2. Whether the referee was bound to find upon the evidence credited by him as an additional fact that the sale alleged in the answer to have been made to the defendant, was in fact made to defendant’s wife.
    3. Whether the bare fact that notwithstanding the allegations in the answer, the defendant and his wife, in certain parts of their testimony given at the trial, treated the sale as having been made to the wife, was of such controlling importance as to call on the referee to discredit their whole testimony.
    Before Curtis, Ch. J., Sedgwick, and Freedman, JJ.
    The action was for the wrongful detention of a piano. By his answer defendant claimed title by virtue of a sale to him by plaintiffs.
    The issues were tried by a referee.
    On the trial, the plaintiffs proceeded on the theory that the sale was to defendant, but void by reason of his fraud.
    The referee, on conflicting evidence, found for defendant.
    From the judgment entered on his report plaintiffs appealed.

      Schatz & Salmon, attorneys, and F. G. Salmon, of counsel, for appellants.

      M. C. Milnor, attorney, and of counsel, for respondent.
   Freedman, J.,

wrote for affirmance, holding: As to the first question in the head-note that it was not; as to the second, that he was not bound to make such finding; and as to the third, that such fact was not of such controlling importance as to call on the referee to discredit the evidence.

Curtis, Ch. J., and Sedgwick, J., concurred.


text:
    THE NEW BOSTON COAL MINING COMPANY, Plaintiff and Respondent, v. DANIEL PACKER, et al., Defendant and Appellant.

      Decided March 4, 1878.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.
    Appeal from judgment entered upon the report of a referee.
    This case involves only questions of fact.

      Weeks & Forster, attorneys, and George H. Forster, of counsel, for respondents.

      Butler, Stillman & Hubbard, attorneys, and Thomas H. Hubbard, of counsel, for appellants.
   Sedgwick, J.,

wrote for affirmance with costs.

Curtis, Ch. J., and Freedman, J., concurred.


author: By the Court. Curtis, Ch. J. Concurring Opinion of Sanford, J.

text:
    HENRY HOFFMAN, an Infant, &c., Plaintiff and Appellant, v. NEW YORK CENTRAL & H. R. R. R. CO., Defendant and Respondent.
    Master and Servant.—Railroad Companies.
    If the master, when sued for an injury resulting from the tortious act of his servant while apparently engaged in executing his orders, claims exemption on the ground that the servant was in fact pursuing his own purposes, without reference to his master’s business and was acting maliciously and willfully, it must, ordinarily, be left to the jury to determine the issue.
    Where different inferences may he drawn from the facts proved, and, when, in one view, they may be consistent with the liability of the master, the case must be left to the jury (Rownes ». Del. Lack. & Western R. R. Co., 64 W T. 129).
    When a train is in motion and a man appears with a conductor’s cap and badge and acts as such and is so recognized, it must be presumed that he is in the railroad company’s employment as a conductor.
    The duty of protecting the train from trespassers, and of removing them from it, seems to be incident to, and within the scope of such powers as belong to the person in charge of it,—i. e., the conductor.

      Before Curtis, Ch. J., and Sanford, J.

      Decided April 1, 1878.
    Appeal from a judgment entered in the defendant’s favor upon the dismissal of the plaintiff’s complaint. The facts are sufficiently stated in the opinion of the court.

      Nelson Smith, for appellant.

      Franli Loomis, for respondents.
   By the Court. Curtis, Ch. J.

The learned judge before whom this cause was tried at the special term, dismissed the complaint, to which the defendant excepted. The action is to recover damages for an injury to the person.

The testimony shows, that the plaintiff, a lad eight years of age, while on his way to school, jumped upon the platform of one of the cars of defendant’s outgoing train in Eleventh avenue, to ride from Tliirty-ninth street to Forty-fourth street. That he sat upon the step or platform, and that, a little above Fortieth street, hearing the door of the car open, he rose up, and a man neatly dressed with a conductor’s cap and badge on, came out, looked at him, and, without saying anything, gave him a kick, and kicked him off on to the ground. He fell with his right leg under the wheels of the car. The leg was crushed and had to be amputated.

When a train is in motion, and a man appears with a conductor’s cap and badge, and acts as such, and is so recognized, it must be presumed, that he is in the railroad company’s employment as a conductor. It must also be regarded that a conductor is one of the necessary agencies for the the conducting, control, and management of a train. The term, and the office, and the duties resulting from it, are common and well known, as well as those of a brakeman and an engineer (Hughes v. New York and New Haven R. R. Co., 4 J. & S. 222). The duty of protecting the train from trespassers, and of removing them from it, seems to be incident to, and within the scope of such powers as belong to the person in charge of it. In addition to this, the rules and regulations of the defendant’s road read in evidence place the conductor in charge of the train upon the road, and make him responsible for its management. They apparently make it his duty not to allow trespassers upon the cars, and to protect the train from them. The reasonable discharge of this duty might require him under some circumstances to remove them from the train; such an act would be within the scope of his employment.

The defendant moved, at the trial, that the complaint be dismissed, upon the grounds that this act of the conductor was willful and malicious, and without the scope of his authority, and that the negligence of the plaintiff contributed to the injury. The motion was granted, and the plaintiff excepted, and among other things excepted to the refusal of his request that the question be submitted to the jury, whether the act of the conductor was malicious.

Although the lad was a trespasser, he was entitled to be protected against unnecessary injury on the part of those exercising the right of removing him, and there is no justification for doing it so recklessly or carelessly as to imperil his life and cause the loss of a limb.

A question presented is whether this request of the plaintiff, in view of all the facts and circumstances, to go to the jury as to there being any malice in the act of the conductor, should have been granted.

It appears to me that this is a case where the conductor acted without malice or ill feeling towards the plaintiff. There was nothing in the conduct of this child of eight years of age to beget malice towards it on the part of the conductor. It is more consistent with the testimony presented, that the conductor acted through heedlessness, or zeal, or impetuosity or infirmity of disposition, and used more force than was necessary to accomplish what he felt was a duty resting upon him ; that is, to keep the platform of the car clear of trespassers.

Even if the defendant is exonerated from liability for the willful and malicious act of its servant, the question whether such was the character of the act still remains a fact for the determination of a jury. In the casé of Johnson v. Second Avenue R. R. Co. (47 N. Y. 274), where the conductor, in removing a person from the car for the non-payment of his fare, in doing so, struck him unnecessarily in the face, the court held that the question whether this act was willful or malicious, or arising from zeal or impetuosity of temper in the discharge of what he deemed to be his duty, was a question of fact, and that it should have been left to the jury. This ruling is cited and followed in Rounds v. Del. L. & W. R. R. Co. (64 N. Y. 129). In this latter case, which varies from the present one, there is the difference that it was a baggage-man who kicked the boy off the platform of the train, and that there were printed notices posted up, one in the baggage car, and another one near where the plaintiff was standing on the platform, to the effect that no one would be allowed to ride on the baggage car, except regalar train men, and that the conductor and baggage-man must see this order strictly enforced.

What authority was conferred on the baggage-man, and from what source it emanated, is less clear, than the authority of the conductor in the present case, to remove a trespasser from the platform; yet the court held that this question of fact, whether the violence of the baggage-man was willful and malicious, was one that must be submitted to the jury. The principle that governs is thus stated in the opinion of Andrews, J.: “ There may be cases where this rule does not apply, and where the court would be justified in taking the case from the jury; but where different inferences may be drawn from the facts proved, and when, in one view, they may be consistent with the liability of the master, the case must be left to the jury.”

I incline to the view that the cases above referred to, and which are later decisions than that of Isaacs v. Third Avenue R. R. Co., 47 N. Y. 122, control the question in the case under consideration; and that, being governed by them, we must hold that the question of the existence, on the part of the conductor, of willfulness and malice in his act as a question of fact, should have been submitted to the jury. .

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

Concurring Opinion of Sanford, J.

In the case of Hughes v. N. Y. and N. Haven R. R. Co. (36 N. Y. Super. Ct. [4 J. & S.] 222), a railroad company was exonerated from liability for the act of a brakeman in its employ, who forcibly ejected a trespasser from the platform of a freight train while in motion. The grounds of the decision are, that while the train was moving at a rate which rendered such ejection dangerous, it was unlawful for any one to eject even a trespasser therefrom, and that while it might be presumed that by his general powers the brakeman was authorized, in a proper manner, and under proper circumstances, to remove intruders, his authority would not be deemed to extend to or cover a case in which it would have been unlawful for his employers to do the act which he assumed to perform. The court followed the precedent established in Isaacs v. Third Avenue R. R. Co. (47 N. Y. 122), where it was held that the defendants were not liable for the act of their servant, a conductor, who refused to stop his car at the instance of a passenger about to alight, and forcibly ejected her from the platform, while the car was in motion. In following that case, the distinction between it and that of Jackson v. Second Avenue R. R. Co. (47 N. Y. 274) was carefully pointed out. The conductor having in Jackson’s case stopped the car in order to put off the passenger who had refused payment of the fare demanded. Under the authority of Isaacs v. Third Avenue R. R. Co. the act of the brakeman was held to be a personal tort, for which he alone, and not his employers, were responsible. The same principle seems applicable to tbe case now under consideration, and it would be our duty to adopt or apply it, were it not for the controlling authority of a still more recent decision of the court of appeals, in which it is said, “ If the master, when sued for an injury resulting from the tortious act of his servant, while apparently engaged in executing his orders, claims exemption on the ground that the servant was, in fact, pursuing his own purposes, without reference to his master’s business, and was acting maliciously and willfully, it must ordinarily be left to the jury to determine the issue,” and that where different inferences may be drawn from the facts proved, and when, in one view, they may be consistent with the liability of the master, the case must be left to the jury (Rounds v. Del. Lack. & W. R. R. Co., 64 N. Y. 129).

While I should personally regard the conduct of the conductor in this case, as willful, violent and reckless, to a degree even more reprehensible than was made to appear, either in the case of Isaacs v. Third Avenue R. R. Co., or in that of Hughes v. New York & New Haven R. R. Co., and as constituting a criminal assault, altogether beyond the scope of his employment, it may be that others would draw a different inference from the evidence, and if so, a non-suit should not have been ordered. The cases of Isaacs v. Third Avenue R. R. Co., and of Hughes v. New York & New Haven R. R. Co. were called to the attention of the court, in Rounds v. Delaware, Lackawana and Western R. R. Co., but were not commented upon in the opinion there rendered. That they were not followed, is a sufficient reason for regarding as abrogated the rule they were understood to have confirmed.

In Cohen v. Dry Dock, East Broadway and Battery R. R. Co. (40 Super. Ct. [8 J. & S.] 368; affirmed in court of appeals, March 27, 1877, 4 Ho. 7 Weekly Dig. 334, but not yet reported), the action of defendant’s servant, the driver of a horse railroad car, was much less flagrant and vicious, and therefore less indicative of a willful and malicious purpose than that of the defendants’ conductor in the case at bar, and the facts clearly distinguished the case as the court held, from Isaacs v. Third Avenue R. R. Co. The facts and circumstances, as they appeared in evidence, in Rounds v. Delaware, Lackawana and Western R. R. Co., are, however, too closely analogous, both to those in Isaacs’ case and to those now under consideration, to admit of any substantial distinction; and for that reason I concur with the chief justice in directing that the judgment appealed from be reversed and a new trial ordered.