author: O’Brien, J.:

text:
    Chu Pawn and Others, Composing the Firm of Yee Long & Co., Appellants, v. Robert J. Irwin, Doing Business as R. J. Irwin & Co., Respondent.

      Compulsory reference — long account — counterclaim.
    A case for a compulsoiy reference on tlie ground that a long account is involved is not presented, in an action brbuglit to recover tbe aggregate of many items of money had and received, where the real controversy (through a reduction of the issues by admissions in the answer) does not involve an account but relates solely to one of the terms of the contract under which the moneys were received, and the real point in dispute between the parties, except with respect to this one item, is as to the rate of compensation which the defendant was to receive for his services.
    A plaintiff’s claim to a compulsory reference cannot be based upon or aided by a counterclaim set up by the defendant.
    Appear by the plaintiffs, Chu Pawn and others, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 3d day of June, 1893, denying the plaintiffs’ motion for a compulsory reference of the action.

      Denis McMahon, for the appellants.

      George A. Strong, for the respondent.
   O’Brien, J.:

The motion was made on the pleadings, the defendant’s bill of particulars of his counterclaim, and on two affidavits, the latter setting forth in detail the issues as understood by one of the plaintiffs and his attorney. Since the court is as competent to judge of what issues are presented by the pleadings as either of these affiants, little weight may he attached to the affidavits, and the motion must, therefore, be disposed of by the construction to be placed .upon the pleadings as to the actual issues between the parties.

The complaint sets forth three causes of action, and the claim is advanced that, by reason of the defense interposed, and more particularly the counterclaim of the defendant, there is involved a long account, which entitles plaintiffs to a compulsory reference.

It appears that plaintiffs, who are importers, employed the defendant, wlio was a custom house broker, to get their goods out of bond, and it is alleged that while acting for them in a fiduciary capacity he obtained at different times different sums, upon representations, charged to be false, that they were called for by the custom house authorities to pay extra duties and penalties imposed on the goods of plaintiffs.

The first cause of action is founded on nineteen several items of money, of large and small amounts, which it is alleged the defendant so received, and in great part embezzled and fraudulently misapplied to his own use. The second cause of action is founded on four items paid by plaintiffs’ auctioneers to defendant, which were deducted from the proceeds of sale of plaintiffs’ goods at auction, and which it is charged were likewise in great part embezzled and fraudulently misapplied by the defendant while acting in a fiduciary capacity. The third cause of action is founded upon ten distinct items of moneys received under circumstances similar to those detailed in the second cause of action. ' In addition, the plaintiffs allege that the aggregate of the sums of money received by the defendant under said three causes of action from the plaintiffs as their custom house broker and in a fiduciary capacity was $15,080.29, and that upon an examination by permission of the treasury department as to the payments upon all importations of plaintiffs, they ascertained that the total of all the duties, penalties and custom house charges amount to $8,526.41, and that the difference between the two aggregates, to wit, the sum of $6,503.48, is the sum which the defendant received and misapplied, and for which they claim judgment.

The answer admits the receipt of all the moneys charged in these various accounts in the complaint, except one item in the first cause of action, which amounts to $331.16 ; and in addition, the first paragraph of the answer admits so much of the complaint as charges that they were received in a fiduciary capacity, and alleges affirmatively the same fiduciary relation.

It is difficult to see, therefore, upon what the argument is based, that under the issues there will be required an examination of a long account, there being practically but one issue, viz., the amount of compensation which the defendant was to receive for his services. The argument based on the counterclaim of defendant does not help tlie plaintiff, for as said, in Untermyer v. Beinhauer (105 N. Y. 521) : The defendant has a constitutional right to trial by jury on the issues presented by the complaint and answer, and he does not waive that right by setting up in addition to his defenses a counterclaim.”

If this could be regarded as an action sounding in tort, then a reference would not be proper. But if we assume, as contended by plaintiffs, that the three causes of action are actions on contract, and if we assume, as we must, that all the items under each contract were covered by a single agreement, it would noth’equire an examination as to the terms and conditions under which each item of money was received by the defendant, but in proof of each contract such terms as apply to all the items would only need to be proved. Moreover, the fact that there is more than one contract alleged by way of separate causes of action does not entitle the plaintiffs to a compulsory reference, because it is only where a long account is involved that such can be demanded. We are, therefore, of opinion, as the respondent contends, that an examination of the pleadings in this action will show that the real controversy does not involve an account, but relates solely to one of the terms, not the nature of the contract, under which the moneys in question were received, and that the real point in dispute between the parties, except with respect to one item, is as to the rate of compensation which the defendant was to receive for his services.

We think, therefore, that the motion was properly disposed of by the court below, and that the order appealed from should be affirmed, with costs.

Yan Brunt, P. J., concurred.

Order affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Appraisal under the Collateral Inheritance Tax Act, passed June 10, 1885, of the Property of Clarissa E. Curtis, Deceased.

      Collateral Inheritance Tax Act of 1885 — taxation of contingent remainders.

    The will of a decedent devised and bequeathed property to the executors in trust, to apply the income to the use of persons who were exempt from taxation under the Collateral Inheritance Tax Act of 1885 (Chap. 483), for their respective lives, and devised and bequeathed all the remainders upon the termination of such life estates to persons who were subject to taxation under the act, in such terms that the interests of such remaindermen were all contingent upon their surviving the life beneficiaries, and if none should so survive the property would not pass under the will and vested in persons exempt from taxation, so that it was impossible to decide at the death of the decedent who would ultimately be entitled to the respective remainder values, or whether the property would vest in possession in persons liable to the inheritance tax or in persons exempt therefrom.

      Held, that no appraisement of the contingent interests of the remaindermen should be made, or the payment of any tax be imposed thereon, immediately on. the death of the decedent, under section 2 of the act; but that such appraisement and taxation should be postponed until such interests become vested in possession on the termination of the trusts, at which time, if vested in parties liable to taxation, the tax was to be fixed and exacted as provided by section 13 of the act.
    Appeal by William Mitchell, as sole acting executor and trustee of the will of Clarissa E. Curtis, deceased, from portions of an order of the surrogate of the county of New York, entered in the office of the surrogate on the 10th day of February, 1893, assessing and fixing a collateral inheritance tax, and from an order of the Surrogate’s Court of said county, entered in the office of the surrogate on the 25th day of July, 1893, affirming the first order.

      Gortlandt Irving, for the appellant.

      Ifd'wcM'd Hassett, for Theodore W. Myers, comptroller of the city of New York, respondent.
   O’Brien, J.:

The testatrix died November 3, 1886, leaving a will which was .admitted to probate, and the question presented on this appeal is as to whether certain remainders to nieces and nephews are liable at the present time to pay any collateral inheritance tax, under chapter 483 of the Laws of 1885.

By the fourth clause of the will the testatrix gave the remainder of her personal property to her executors in trust, to receive the income, and apply the same to the use of her daughters, Clara Isabella Curtis and Julia Frances Munson, during their lives in equal shares, and to the survivor for life. By the fifth clause she devised her real estate or its proceeds to her executors in trust, to divide into eight equal portions, and to receive the income therefrom and apply three portions to the use of her daughter Clara Isabella Curtis during her life, three portions to the use of her daughter Julia Frances Munson during her life, one portion to the use of her granddaughter, Edith Hastings, during her life, and one portion to the use of her grandson, Ernest Hastings, during his life. By the seventh clause of her will the testatrix devised and bequeathed all the remainders upon the said life estates in the real and personal property as follows: One-lialf thereof absolutely to her nieces, Mary Helen Ridgway and Clara Adelaide Tatchenhorst (now ,Clara A. James), children of Edwin Racy, “ and the ether half thereof absolutely to my nephews, Charles II. Racy, Walter Racy and Harold Racy, children of my deceased brother, William H. Racy, that is to say, to such of my said nieces and nephews as shall be living at the time of the successive termination of every such trust in such respective portions and to the issue then living of each of said nephews and nieces then deceased, the issue taking per stirpes and not per capita.”

Ernest Hastings, to whom the testatrix bequeathed one-eighth of her income during his life, died unmarried in June, 188Y. Harold Racy and Walter Racy, two of the three persons to whom she bequeathed one-half of the residue of her real and personal property by the seventh clause of her will, died unmarried, Harold before the death of the testatrix, and Walter after.

The learned surrogate appointed an appraiser to fix and report the value of the interest liable to pay the collateral inheritance tax, and such appraiser reported the values of the various interests of said nephews and nieces in the property of the testatrix, but stated that none of them, except the said interest of Ernest Hastings, which vested upon his death in the four nieces and nephews, was at present liable to taxation, as, “ under the terms of the will, it cannot now be determined who will ultimately be entitled to the respective remainder values above mentioned.”

With this view the learned surrogate did not agree, saying in his opinion: “ The appraiser (however) has fallen into error in concluding that the tax cannot now be assessed. The tax upon the remainder became due and payable, under section 2, immediately upon the death of the decedent, and the act likewise provides that the person whose interest is so taxed may defer the actual payment thereof by filing a bond and renewing the same from time to time until it vests in possession. Should the remainderman die prior to the decease of either of the life tenants, the remainder would then vest in her issue, who would then be the persons required to pay the tax, or continue the security for its payment, until the estate vested in possession.”

Consonant with these views the matter was remitted back to the appraiser, who thereafter filed his report as amended, fixing the amount of the tax for which the contingent interests were liable.

It is conceded that the several life interests created by the will were not liable to the payment of any tax. The executor has paid the tax on all property that vested in the nephews and nieces upon the death of Ernest Hastings.

Thus the present appeal is taken from those portions of the order made upon the coming in of the appraiser’s reports which declared such contingent interests liable to pay at the present time any tax, and from the order affirming the same as fixed by the appraiser.

In the conclusion arrived at by the learned surrogate we are unable to agree. The provisions of the will show that, as to the nephews and nieces of the testatrix, each takes an interest which is contingent upon surviving the termination of the trusts, and unless they so survive they will never receive such interests in possession. As urged by appellant, time is of the essence of the gift, and futurity is annexed to the substance of such gift. There is no present gift. Should any of the nephews or nieces die before the termination of the trusts, leaving no issue (as has happened in the case of one of them, Walter Racy, who died unmarried in December, 1891), the interest of those so dying will entirely cease and pass to the survivors. Should all of the nephews or nieces die before the life beneficiaries, without children, or should they die, leaving children, if the children should die before the termination of the life estates, as the will makes no further provision, the property, including said remainders, would become intestate and vest by law absolutely in Clara I. Curtis, Julia F. Munson and Edith Hastings, the daughters and granddaughter of the testatrix, all of whom are exempt from taxation by the law of 1885.

It is, therefore, clear that at the present time it is impossible to tell whether such property and the remainders therein would vest in possession in persons liable to pay such tax or in persons exempt therefrom, nor can it be determined until such trusts terminate. Neither is it possible, in the other aspect, assuming that the life interests should terminate, to determine which of the nephews and nieces, or the children of such of them as may have died, will succeed to the property.

It would appear that the original position upon these facts taken by the surrogate was, that this was in principle analogous to his decision in In re Clark's Estate (5 N. Y. Supp. 199). As therein said: “ To make the tax accrue at once two things are necessary : First, to determine definitely the fair market value of the property subject to the tax; and, second, the person to whom such property passes. * * * The act does not say that where property is left to A., an exempt person, for life, with a contingent life estate to B., that A. shall be taxed to pay for B.’s prospective enjoyment, even though B. may never enjoy it. The act expressly exempts certain persons and taxes others, and it cannot be rightly held that where property was left for life to an exempt person, and after his death for life to one not exempt, should she survive, that in that event the corpus of the estate which is exempt should be diminished by the amount of the tax upon the happening of an event, which would not make the life tenant liable to the tax, whether it did or did not happen, and which, if the contingency should fail, might throw the estate back to persons who were exempt. Neither the first estate nor the last should be taxed for the contingent second estate. It must be that in case such as this, where it is absolutely impossible to decide to whom the property will go, the intention is that the appraiser shall report the fair market value of the property at decedent’s death, and that the matter must be regarded as suspended until the contingency does or does not happen, at which time, that is, at the death of the life tenant, it can be determined to whom the property will pass, and whether or not it is subject to the tax.’’

With this reasoning of the learned surrogate we entirely concur, and we think that the application oí the same rule to the facts in this ease would have justified the appraiser in reporting as was there done, “ the fair market value of the contingent interests at the date of the death of the decedent,” and in further reporting that in view of the contingent character of the bequests, he could not report the remainder as presently taxable.

The reason for not applying the principles laid down in In re Clark to the interests here sought to be taxed is presumably to be found in the final statement in the opinion of the surrogate, that he did not decide the questions here presented until the Court of Appeals had reached a determination in the Stewart case, which is reported in 131 N. Y. 278. We do not regard that case, however, as in any way overruling the principle applied in In re Ola/rh. The Stewart case is authority for the positions correctly stated in the head note, that the Collateral Inheritance Act of 1885 contemplates not only the taxation of such interests as are capable of valuation at the death of the decedent, but every interest, immediate or future, derived under him not excepted by the act; that contingent interests given by a will which after the death of the testator are converted, before the happening of an event upon which they ai’e limited, into actual vested estates, can then be appraised and taxed under the provision of said act (§ 13), which authorizes the surrogate to appoint an appraiser of property subject to the payment of the tax as often as and whenever occasion requires, who shall appraise the same at its fair market value.

As shown by that case, there are two classes intended to be provided for by the act of 1885, and these are covered by two different sections, viz., sections 2 and 13 of the act. Section 2 relates, as stated in the opinion, to “ cases where property is devised or bequeathed for life or a term of years to a person whose interest is exempted from the payment of any tax, with remainder over to col-laterals or strangers in blood. In these cases the section prescribes that the (entire) property passing under such a devise or bequest shall be appraised immediately after the death of the decedent at what was the fair market value thereof at the time of the death of the decedent, and after deducting the value of the estate for life or years, that the tax prescribed by the act on the remainder shall be immediately due and payable.”

All other property which is the subject of taxation comes within the class controlled by section 13, which authorizes the surrogate to appoint an appraiser as often as and whenever occasion requires.” And as said in the Stewart case: “ It is to be noticed that this section does not, as does the second section, require the valuation to be made immediately upon the death of the decedent, * * ^ nor -x -x -x property appraised thereunder shall be appraised at what was the fair market value thereof at the time of the death of the decedent, as is required in the cases falling under the second section.”

In another part of the opinion it is said: “ But we think that the thirteenth section does include cases like the present, and that contingent interests given by a will which, after the death of the testator, are converted by the happening of the event upon which they are limited into actual vested estates may then be appraised and taxed under the provisions of section 13.”

"We think that the Stewart case and the one at bar are analogous in principle, and that the designation of the person under appointment in the former is equivalent to the survivorship of the nephews and nieces of the testatrix after the death of the life tenants. When the contingency is removed by the termination of the trusts, an appraisement can be made and the tax fixed with perfect fairness to all parties interested. And applying the reasoning in the two cases referred to (In re Clark and the Stewart case) to the facts here appearing, no appraisement of the contingent interests of the collateral relatives should be attempted to be made, nor any tax imposed thereon, until such interests become vested in possession, and, by the removal of the contingency, it appears whether they have so vested in parties liable to taxation or in parties exempt.

The injustice of any other conclusion can be seen when we remember, as said in The Matter of Cager (111 N. Y. 347), “ the tax is upon the individual,” and how it would work, if its payment could be enforced against all tbe nephews and nieces who are living at the death of the testatrix, and who might or might not eventually succeed to the estate, may be shown by taking the case of one of these collaterals who died unmarried after the testatrix, and whose remainder interests under the provisions of the will have passed to others. He neither enjoyed any benefit, nor had he any power of disposition. Not having, therefore, any beneficial interest, it would be a great injustice to hold that he was obliged to pay a tax upon such interest, and now that he is dead that his estate should be charged with such payment, when it would inure entirely to the benefit of others.

With respect to the others who are still living, although by reason of their death before the life tenants they may never come eventually into possession of any interest in the estate, the tax, if now assessed and held to he payable, can be enforced against them, which, if they are unable to pay it, might result in their imprisonment, under the power given to the surrogate to enforce a decree by proceedings for contempt. (Code Civ. Proc. § 2555 ; In the Matter of Prout, 19 N. Y. St. Repr. 318.)

A construction of the act, therefore, which might result in injustice and hardship to those intended to be benefited should not be resorted to, unless the express provisions of the act require such a construction. This, as we have endeavored to point out, is not necessary; and although the fair market value of the contingent interests at the date of the death of the decedent might have been fixed, we think it was wrong to determine the value of the interests, because not capable of valuation, of each of the nephews and nieces in the property, but that, as was done in In re Clark, “ in view of the contingent character of the bequests,” the appraiser should have reported the remainders as not at present taxable.

Our conclusion, therefore, is that the orders appealed from should he reversed, with costs and disbursements.

Van Brunt, P. J., concurred.

Orders reversed, with costs and disbursements.


text:
    Elizabeth Mercer, Appellant, v. William Stuart Mercer, Respondent.

      Divorce — allowance of counsel'fee pendente lite — improper insertion in the judgment— enforcement by contempt proceedings.

    The right to enforce by proceedings as for a contempt compliance with an order made during the pendency of an action for divorce, requiring the husband to pay a certain sum as counsel fee to enable the wife to carry on the action, as provided by section 1769 of the Code of Civil Procedure, is not lost by reason of the fact that the order improperly provided that such allowance might be included in the final judgment in the'action, to be enforced by execution, and that it was thereafter inserted in the judgment.
    Appeal by tbe plaintiff, Elizabeth Mercer, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 14th day of April, 1893, denying the plaintiff’s motion to punish the defendant as for a contempt of court.

      F. De Lysle Smith, for the appellant.

      J. M. Ferguson, for the respondent.
   O’Brien, J.:

By the judgment in this case, it was decreed that plaintiff was entitled to an absolute divorce from the defendant, and in addition to other provisions, including the payment of a certain sum as permanent alimony, it provided that the defendant should pay to the plaintiff’s attorney the sum of $500 as directed by the order of this court, being the sum allowed by said order as a counsel fee to said plaintiff, and that said defendant give to the clerk of this court security for the payment of said allowance for counsel fee within the time and according to the terms by said order provided.” This order, made prior to the entry of tbe judgment, directed that the sum of $500 “ be and the same is hereby allowed to the plaintiff herein as a counsel fee to enable her to prosecute this action.” And then follow provisions directing the defendant to pay and requiring him to give security for such payment, concluding with this recital: And it is hereby further ordered that the said allowance as counsel fee hereby granted may be included in plaintiff’s judgment herein as a part thereof, and that the provision may be made in said judgment that the said plaintiff may have execution from time to time against the said defendant for the collection thereof.”

The defendant not having paid the $500 or given the security as directed by the order, a motion was made to punish him as for a contempt for his misconduct in thus failing, neglecting and refusing to obey said order. The objection was taken below, that inasmuch as there was a direction in the order for including the amount in the judgment, which as shown was so included, *a proceeding as for a contempt would not lie, but that the plaintiff’s sole remedy was an execution upon the judgment. The memorandum of the judge below states: “ The case of Jacquin v. Jacquin (36 Hun, 378) constrains me to deny this motion, without costs.”

In that case, as shown by the opinion, “ the amount directed to be paid by the order was the costs and counsel fee recovered by the final judgment entered in the action.” It was therein held that where, in an action for a separation, the final judgment directs the-defendant to pay to the plaintiff’s attorney a fixed sum as and for her costs and counsel fees, the failure of the defendant to make such payment cannot be treated as a contempt. It will thus be seen that the question therein presented was with respect to costs and counsel fees directed to be paid by a final judgment; whereas, the question here relates to a counsel fee directed to be paid by a pendente lite order. And the decision was there expressly placed upoii the ground that the costs and counsel fees directed by the judgment were not moneys directed to be paid by orders, as provided for in section 1769 of the Code, to enforce compliance with which a proceeding as for a contempt would lie.

That section (Code, § 1769) provides that the court may, during-the pendency of the action, “ from time to time make and modify an order or orders requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action.” And, as said in the opinion in Jacquin v. Jacquin (supra): That section has been limited to orders made during the pendency of the action, by which the husband may be required to pay any sum or sums of money necessary to enable the wife to carry on or defend the action, or to provide for the education and maintenance of the children of the marriage or for the support of the wife.”

The real question, therefore, to be here determined is, whether the allowance made was one within the provisions of section 1769 of the Code, or was one made in the final judgment. By reference to the terms of the order from which we have quoted, and which was entered prior to the judgment, it will be seen that it was a direction for the paymentof a counsel tee pendente Ute. And were it not for the recital that such allowance may be included in plaintiff’s judgment herein as a part thereof, and that the plaintiff may have execution for the collection thereof, no question could arise. It remains then to be determined whether such a recital in the order, coupled with the fact that the judgment directed an execution to issue for the sum thus allowed, took away the plaintiff’s remedy which she otherwise would have had of enforcing the payment thereof by proceedings as for a contempt.

•It is doubtful whether such provision in the judgment is warranted, because section 1769 is seemingly the only authority for an allowance to the plaintiff for the expenses of the action, and this makes no provision for such an allowance in the judgment. In Percival v. Percival (14 N. Y. St. Repr. 255) it is said: “ But the judgment contains a provision awarding to the plaintiff, among other moneys, the sum of three hundred dollars for past expenses which she had incurred prior to the judgment. This sum was improperly inserted in the judgment, inasmuch as the rule as now administered is that expenses pendente Ute, if they are to be awarded at all, must be awarded upon special application, and ca/ivnot properly form a part of the judgment. (Citing Beadleston v. Beadleston, 103 N. Y. 402; 3 N. Y. St. Repr. 634.) To this extent the original judgment must be modified.” In WilUams v. WilUams (25 N. Y. St. Repr. 186) it was said: The counsel fee was unauthorized. The statute (Code Civ. Proc. sec. 1769) only makes provision for costs; that is, in the final judgment. All sums necessary to enable the wife to carry on the suit must be awarded on special motion.”

And in Straus v. Straus (67 Hun, 491) it was said, in construing section 1769 : This section, which is the only authority for an order directing 'payment of the expenses of the wife for counsel in the action, evidently means that such direction shall be given in an order and not in the final judgment.”

These cases, therefore, are all authority for the position that payment of tlie expenses of tlie wife for counsel in the action is not tbe subject of provision by final judgment, but is the subject of a special application, and that payment during the pendency of the action is to be directed by order.

It appearing, therefore, that the amount directed to be paid having been granted upon a special application, made prior to the entry of judgment, to enable plaintiff to prosecute the action, such order was a mandate of the court (notwithstanding the direction to include it in the judgment, and its subsequent insertion), entitling the plaintiff to enfoi’ce compliance therewith by contempt proceedings.

It was made to appear, however, that this allowance was made several days after the case had been tried and a decision awarded in plaintiff’s .favor, the defendant being in default and not appearing on the motion; and it is urged that, being now without^ funds, he should not be punished by a proceeding as for a contempt. These, however, are considerations that might be well addressed to the learned justice who made the original order, or to the judge before whom the motion to punish for contempt shall be heard, the sole question presented for our determination being whether the plaintiff’s only remedy was by execution, as held by the judge below, or whether a proceeding as for a contempt will lie.

Having reached the latter conclusion, it follows that the order appealed from should be reversed, with costs to plaintiff, and with leave to renew the motion.

Van Brunt, R. J., concurred.

Order reversed, with costs to plaintiff, and with leave to renew the motion.


author: Parker, J.:

text:
    Eugene Smith, as Executor, etc., of Richard Patrick, Deceased, Respondent, v. Fredericka Rentz, Appellant.

      Neto trial — surprise — newly discovered evidence.

    A new trial is not to be granted on tbe ground of surprise, where it appears that the moving party was, at the trial, in possession of facts which he could then have presented, but did not because he thought the evidence introduced was sufficient to entitle him to prevail; and it appears that he was not misled by the opposite side, and that the surprise was occasioned rather by the ■decision of the action than by anything in the proceedings of the trial.

      A new trial will not be granted on the ground of newly discovered evidence, where the testimony, upon which the motion is based, with reasonable care could have been obtained and presented at the trial.
    Appeal by tbe defendant, Fredericka Rentz, from an order of tbe Supreme Court, made at tbe New York Special Term on tbe 3d day of April, 1893, upon tbe motion of tbe plaintiff, and entered in tbe office of tbe clerk of tbe city and county of New York, granting a new trial, and also from a judgment in favor of tbe plaintiff, entered in tbe said clerk’s office on tbe lOtb day of May, 1893, upon tbe second report of tbe referee.

      Leopold Leo, for tbe appellant.

      R. B. Olosson, for tbe respondent.
   Parker, J.:

Tbe action was for money paid by the plaintiff’s testator to tbe defendant’s use. Tbe complaint alleged that Mr. Patrick bad been for a number of years prior to bis death tbe banker and general business agent of the defendant; that during this time she deposited moneys with him, and be, at her request, paid moneys to her and for her account, particularly her tax bills, bills of tradesmen and others incurred in tbe maintenance of her household; and that when be died tbe total of tbe sums thus expended exceeded the sums received from her by $3,'114.15. Tbe answer put in issue tbe averments of tbe complaint.

Tbe action was first tried before a referee, whose finding in favor of tbe plaintiff was mainly based on tbe statement of account appearing in tbe ledgers of plaintiff’s testator. Tbe judgment was subsequently reversed by the Court of Appeals on the ground that tbe admission of testator’s books in evidence was error (131 N. Y. 169). A new trial was bad before another referee, who disallowed certain items claimed by tbe plaintiff, aggregating about $1,100. In his opinion be assigned tbe following reason for bis determination in such respect: The only witness who testifies in support of them is John H. Patrick, and it is plain that he does not speak from personal knowledge, but that his testimony rests upon entries in tbe decedent’s books, which are not in evidence.”

If tbe referee was in error, plaintiff had an adequate remedy by appeal. Instead, be moved at Special Term for an order sefting aside tlie report of tlie referee and for a new trial. Tlie attorney for the moving party íd his affidavit, on which in part his motion was based, made the following statement: “ Upon receiving the referee’s report and opinion I was utterly dumbfounded to find that though finding in my favor on every other issue submitted to him, he had disallowed some $1,100 of taxes on the defendant’s property paid by the testator, on the following grounds as stated in his opinion: ”

(Here affiant quotes from the opinion of the referee as we have above, and continues.)

“ I had known from Mr. John H. Patrick, ever since the - commencement of the action in 1888, that he had in point of fact had personal knowledge of these payments, for the simple reason that in most cases he himself had drawn the check that paid them, and in every case had made the payment himself, either taking the check to the office himself, or himself sending it there by mail or messenger ; and I knew that he had used, and needed to use, the memoranda made by himself at the time only to refresh his recollection after the lapse of eight or ten years as to the precise figures of the payments ; whether a given check was for $210 or $211, for instance.”

The general rule is that parties to legal proceedings are required to use attention and diligence in the proper preparation of their causes for trial; and if either fails to do that, and consequently is defeated in whole or in part, when he might otherwise have' succeeded, the fault is his own, for which the courts can ordinarily supply no remedy. An exception to tl¿.e rule is where the conduct of the opposing counsel is such as to mislead counsel. Illustrations of the exception may be found in Chamberlain v. Lindsay (1 Hun, 231) and Continental Bank v. Adams (4 id. 666).

In each of the foregoing cases, in response to inquiry by counsel, his opponent made such answers as Avould naturally have deceived the inquirer. That was not the case here. Plaintiff made no inquiries of tlie defendant touching the items which the referee found he failed to establish by evidence. And defendant did not suggest that the proof was sufficient, or that the items were not to be seriously contested. Nor does plaintiff show that defendant did any act that was prejudicial to him. On the contrary, it distinctly appears from his affidavits that he was in possession of the facts which he could have proved and did not, probably because he thought the evidence introduced was sufficient to entitle the plaintiff to recover the items. The situation presented is one to which a remark in Foster v. Easton (19 N. Y. St. Repr. 447) is applicable: “If there was any surprise in the case, it would seem to have been occasioned rather by the final decision than by anything in the proceedings on the trial.”

Plaintiff was not entitled to a new trial on the ground of newly discovered evidence. According to the affidavit of his counsel it appears that he knew before the trial that his witness had personal knowledge of the facts, which led him to move for a new trial in older that he might prove them. The additional claim was made that certain checks of testator bearing on the subject had been discussed. But he does not say that he made any effort to find them before the trial, or that he could not readily have found them had he deemed it of importance to put them in evidence. They were in his client’s possession all the time, and the mere statement that they were discovered after the trial was not sufficient to grant the plaintiff a new trial. The inference fairly deducible from this statement, considered in connection with the rest of the affidavit, is that the real discovery made after the trial was that the checks were important as evidence.

It is the rule that a new trial will not be granted on the ground of newly discovered evidence where the testimony upon which the motion is based with reasonable care could have been obtained and presented at the trial. (Dillingham v. Flack, 43 N. Y. St. Repr. 806-808.) The rule is a wholesome one and should be observed. Not to do so is to encourage careless preparation for, and unskillful presentation on the trial, resulting in useless annoyance and additional expense to both suitors.

As the order was improperly granted, the judgment resulting from the new trial was unauthorized.

The judgment should be reversed, with costs. The order appealed from should be reversed, with ten dollars costs, and the motion for a new trial denied, with ten dollars costs.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment reversed, with costs. Order reversed, with ten- dollars costs, and the motion for a new trial denied, with ten dollars costs.


text:
    Melvin Stephens, Respondent, v. Robert Lewis Humphryes and Others, Defendants. Edward H. Potter, Purchaser, Appellant.

      Mortgage foreclosm'e — death of a defendant prior to the entry of judgment — a judgment against the deceased is void — sale—notice to a purchaser of defects in the title.

    Where an action is brought to foreclose a mortgage, and prior to the rendering of any decision therein, one of the defendants, who was the owner of an undivided interest in the premises covered by the mortgage, dies, and her heirs or devisees are not brought in as parties defendant, a judgment in the action against her is wholly without authority, and her estate in the premises sought to be foreclosed is wholly unaffected thereby.
    It is a well-settled rule that a purchaser at a mortgage foreclosure sale will not be relieved on account of apparent defects in the property, or of defects in the title of which he had notice, and in reference to which he made his bid.
    Appeal by Edward H. Potter, the purchaser of property at a referee’s sale, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 11th day of August, 1893, overruling the objections of the purchaser to the title of the premises sold, and directing him to complete his purchase thereof.

      Dennis McMahon, for the appellant.

      Smith dh White, for the respondent.
   Parker, J.:

Pursuant to a judgment of foreclosure and sale granted in this action, the referee therein named offered for sale at public auction what purported to be an undivided three-fourths of the premises described in the judgment. Edward H. Potter, through one Chapman, his agent, was the highest bidder at such sale, and the premises were struck down to him at-the price of $9,550. He paid to the referee immediately ten per cent of the purchase money and signed the terms of sale, thereby agreeing to pay the residue of such purchase money on. the 6th day of June, 1893, at which time the referee’s deed was to be delivered. Subsequently the purchaser obtained an extension of time within which to complete his purchase. on the ground that time was needed to enable him to secure, if possible, a conveyance wbicb should have the effect to give a good title to the premises. But his efforts, if any were made, apparently proved unavailing, for, on the sixth of July, he presented to the referee, in writing, certain objections to taking title.

With one exception, these objections were without merit and will not be considered.

The decree directed a sale of an undivided three-fourths interest in and to the premises therein described, and the objection made was that the mortgagors, at the time of the execution and delivery of the mortgage, which was the subject of the foreclosure suit, did not have such an interest in the premises as the judgment decreed should be sold. The facts upon which.that objection was founded are not controverted and may be briefly stated as follows:

In June, 1883, the executrix of Johnson A. Jones began a suit to foreclose two mortgages made by Robert Humphryes in his lifetime, her testator being the mortgagee. Among the parties defendant in that suit were the widow and three children of Robert Humphryes, all of whom were personally served, and thereafter, and on July 17, 1893, appeared therein by attorney. Before the time to answer had expired, Margaret Maria Graff, one of the three children of the deceased mortgagor, died, but the attorney conducting the foreclosure neglected to bring in her heirs as parties defendant, but proceeded to judgment as if she were still living.

The premises were sold pursuant to the judgment of foreclosure and sale October 10, 1883, and the property was struck down in the names of the widow and children of the mortgagor Humphryes.

Subsequently a petition was filed in the name of the widow and three children, and signed by all of them except Margaret Maria Graff, who was then dead, but which fact was not mentioned in the petition reciting the sale of October tenth; the purchase of the property by the petitioners ; that they were entitled to the entire surplus, and praying an order directing the referee to deliver his deed to them upon their paying to him the amount due the plaintiff, with costs and interest.

Such an order was made, in pursuance of which the referee executed and delivered his deed to the petitioners. The grantees in the deed then executed and delivered a mortgage, which this suit was brought to foreclose.

It has evidently been the view of the mortgagee that, upon sale by the referee under the first foreclosure, the title passed to the persons in whose names the property was struck down, four in all, but as Margaret Maria Graff did not, as being dead she could not, execute the mortgage, that by it there was mortgaged to him the interest of three of the four parties, and in pursuance of such contention it was adjudged that three-fourths of the estate should be sold.

But this was error, as Margaret Maria Graff having died before any report of decision was rendered the entry of a judgment as against her was wholly without authority. (Code Civ. Proc. § 765.)

And her estate in the premises sought to be foreclosed was wholly unaffected by the judgment. It is apparent, therefore, that Potter, as the purchaser at the foreclosure sale of May 24, 1893, could not have obtained a three-fourths interest in the estate.

But the contention is that this objection is not available to the purchaser, because he had knowledge of the facts upon which his objection is founded at the time of the sale. It is a well-settled rule that a purchaser at a mortgage foreclosure sale will not .be relieved on account of apparent defects in the property, or of defects in the title of which he had notice, and in reference to which he made his bid. (Riggs v. Pursell, 66 N. Y. 193 ; Fryer v. Rockefeller, 63 id. 268.)

Mr.' White, one of the attorneys for the plaintiff, and the referee each made affidavit that at the sale, and before any bid was made, ■White, in the presence of the agent of the purchaser, who was standing within two or three feet of him at the time, read in a clear loud voice the following:

“ SUPREME COURT — NEW YORK COUNTY.
“ Melvin Stephens, Plff., agst. Robert L. Humphryes et al., Hefts.
Notice to Bidders :
You will please take notice that the three-fourths (f) interest of Robert L. Humphryes, Dorothy Humphryes and Mary E. Hall in the premises described are advertised for sale under the decree. That the title to the premises comes through a foreclosure suit in 1883 and 1884 entitled Jones vs. Humphryes; that it was claimed by the last purchaser on August 9th, 1892, that by the death of a party, Margaret M. Graff, pending that action, that the interest of the said Robert L. Humphryes, Dorothy Humphryes and Mary E. Hall in the premises about to be sold is only two-thirds (■§•) of the fee instead of three-fourths (£•). The objection was overruled by the court on the ground, among others, that the purchaser had notice ; we do not state that the purchaser at this sale will not acquire title to more than two-thirds (■§■) of the fee, but we believe that he will not, and we make this statement for the protection of bidders as well as the plaintiff.
“May mh. 1893.
“ SMITH & WHITE,
“Plaintiff’s Attorneys,
280 Broadway, N. Y.”

It will thus be seen that notice was not only given of the facts which constitute the foundation of the purchaser’s objection, but the opinion was expressed that the purchaser would not acquire title to more than two-thirds of the fee.

The purchaser Potter states in his affidavit, That he purchased the three-fourths part of the property in .good faith, relying entirely upon the referee’s statements made in his said advertisement.”

But Chapman, who attended the sale, made the bid in Potter’s name, paid the percentage of purchase money required from him, and signed his name to the memorandum of sale, was his agent, and notice to him at the time of the sale was notice to his principal.

Now, Chapman, the agent, with the affidavits of White and the referee before him asserting the reading of the notice, and Chapman’s close proximity to White at the time it was read, does not deny the reading of the notice, nor that he was stationed two or three feet from White at the time. Neither does he say that he did not hear the notice read, but contents himself with the declaration that he purchased in behalf of Potter, relying entirely on the representations made by the said referee and the auctioneer, through their advertisement and said terms of salq that they were selling, and that the said Potter was purchasing, an undivided three-fourths part of said premises.” It is apparent, therefore, that the learned judge at Special Term was required to determine that Potter purchased with full notice of the facts upon which he founds his objection to a completion of the purchase.

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

Tan Brunt, P. J., and Follett, J., concurred.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    The People of the State of New York, Respondent, v. Philip Derringer, Appellant.

      Question of fact for the jury — error in the ehwrge — when insufficient to justify a reversal • — • how cured — new trial, when ordered in the absence of exceptions.

    Four disinterested witnesses gave evidence upon the trial of a person -under indictment for manslaughter, from which it could be fairly inferred that the prisoner set upon his wife, struck her in the face with such force that she fell repeatedly against the door and upon the floor, and produced injuries sufficient, as testified to by the doctors, to produce cerebral hemorrhage, from which she died, while the prisoner gave testimony, which was uncorroborated, tending to show that he did not inflict the injuries sustained by his wife.

      EM, that the utmost that could be fairly claimed for the prisoner upon the testimony was that it presented upon conflicting evidence a question of fact for the jury.
    Where a witness testifies as to certain statements made by a child too young to be produced in court as a witness, and in his charge the trial judge refers to the statements made by the child as its “ testimony,” the error committed is not sufficient to justify a reversal of the judgment.
    The court charged: “It is not because a man’s character is good that juries are entitled to say that he did not commit the act.” Thereafter two subsequent requests were made by the prisoner’s counsel as to the weight to be attached to, and the benefit to be derived from, the evidence of good character which in the very language of the requests were charged by the trial judge.

      Meld, that even if the charge of the court was justly subject to criticism, the prisoner, because of the charges having been afterward made as requested, had no real grievance.
    It is only where an appellate court is satisfied that a verdict against a prisoner is against the weight of evidence, or against the law, or that justice requires a new trial, that it is justified, in the absence of exceptions, in ordering a new trial.

      Appeal by tbe defendant, Philip Derringer, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered on the 29th day of June, 1891, upon the verdict of a jury convicting the defendant of the crime of manslaughter in the second degree.

      B. JP. Byan, for the appellant.

      Henry B. B. Steepler, for the respondent.
   O’Brien, J.:

By a jury the prisoner’ was eoniveted of the crime of manslaughter hi the second degree, for having beaten his wife on April 14, 1891, from the effects of which she died on the following day. The conviction is assailed upon the following grounds :

First. That he is entirely innocent of the crime charged.

Second. That the defendant did not have a fair and impartial trial.

Third. That improper evidence was introduced and allowed to weigh against the defendant. *

Fourth. That the court in its charge, and during the trial, erroneously stated the law to the jury, which errors brought about the conviction of the defendant, independent and apart from the evidence in the case.

Fifth. That the good character' of the plaintiff, as against the questionable character of the deceased, was not permitted to weigh in his favor.

If the first position is tenable then the judgment of conviction will necessarily fall, and our attention will be mainly directed to the consideration of this question, which in its discussion will involve, to some extent, an' examination of the other grounds urged. The appellant contends that, excepting the testimony of relatives of the deceased as to declarations of the prisoner prior to his wife’s death that he would kill her, and subsequent admissions that he had done so, and to which improper weight was allowed to be given, the record fails to disclose any evidence of defendant’s guilt.

"With respect to prior declarations of his intention to consummate the crime of which he was finally convicted, if made upon a single occasion or to but one person who was a relative of the deceased, there might be some force in the suggestion made of bias on the part of such relative, which would invite scrutiny and which should be carefully weighed before giving full credence thereto. ■ The same remarks are applicable to the declarations and conduct of the prisoner when, after the death of his wife, he was confronted by her relatives and charged with the commission of the crime. It is true that to some he denied it, but to others, if their testimony is to be believed, he either admitted the fact or remained silent when accused of the crime. Thus, the record shows that on a number of occasions, and to different members of the family of the deceased, the prisoner frequently stated that he would kill her, and after her death he either tacitly or expressly admitted that he had done so. But apart from the number of persons to whom these declarations were made, aiid all of whom it could not be assumed testified falsely, there is in the case evidence to show that the prisoner’s treatment of his wife was always marked with.the greatest brutality and cruelty.

If, however, we leave out of consideration all these declarations, and the evidence of his cruel and inhuman treatment of his wife on other occasions, we think that a brief summary of the testimony relating to what occurred on the night preceding her death will amply justify the conclusion reached by the jury.

On April 14, 1891, the prisoner and his wife resided on the top floor, back, of the premises 211 West Thirty-first street. On the same floor and across the hallway lived one Mrs. Denzer; on the floor below one Mary Pendergast and Gussie Haug. In the afternoon of1 that day the wife came up the stairs to her apartments with her little girl Lena. She had been seen at eleven o’clock in the forenoon of that day by Mary Pendergast, and at six o’clock in the afternoon by Mary Murray, and also at about six o’clock by Sarah Bruner and one Peter Cannon. And all these witnesses agree that she was sober, clean and neat in appearance when they saw her. This testimony is material and important in view of the defense set up that, upon returning to his apartments at eight o’clock, the prisoner found his wife in a helpless state of intoxication, and that the falls which, as we shall show, were testified to- by the witnesses as having occurred in the room (and one of which the prisoner admits to have happened) were not due to any act or blow of his, but were the result of her intoxicated condition which caused her to fall from a chair to the floor.

On the evening of that day Mrs. Denzer was in her own kitchen, and was there visited by Mary Murray, Annie Pauley and Mary Pendergast, all being together in Mrs. Denzer’s room when the appellant came up the stairs leading to his apartment. What then occurred, though there is a slight variance in the way in which each of the witnesses told her story, is thus detailed :

Mrs. Denzer testifies that she heard Derringer coming up the stairs after eight o’clock on the evening of April fourteenth. She knew his step because she heard it every night. Pie went into his room and closed the door. She heard him say, God-damn-son-of-a-bitch, where is my supper,” twice, and then there was a heavy fall; the deceased screamed and said, “ Please don’t hit me,” and then there was another heavy fall. The deceased screamed again and said, “ Billy, Billy, I am dying, I am dying! ” The appellant answered, “You God-damn-son-of-a-bitch, die, right there!” and another heavy fall was heard. Mrs. Derringer screamed again, saying, “ Oh, Lena, oh, Lena! ” and then everything was quiet. Derringer then sent the little girl Lena out of the room.

Mary Pendergast testified that she was in the room of Mrs. Denzer on the evening of Tuesday, April fourteenth, at about eight o’clock; that she heard Derringer quarreling with his wife, and heard her fall against the door, and heard her crying; she heard Mrs. Derringer say, “ Oh, please leave me alone,” and heard Derringer say, “ I will show you.”

Annie Pauley testified that on the evening in question she was in Mrs. Denzer’s room; that she heard Derringer’s step, which she knew; that she heard him, when he entered, say, “ You God-damn-son-of-a-bitch,” and then a sound like a slap to right and left in the face, and then a fall. She then heard a second fall, heavier than the first, and heard Mrs. Derringer say, “ Oh, Bill, oh, Bill, I am dying,” to which he replied, “You die, right there, you God-damn-son-of-a-bitch.” Mrs. Derringer then cried out, “ Oh, Lena, oh, Lena, my little child,” and the witness heard nothing more except that she heard Derringer say, before the noise ceased, “You won’t cook any more supper for me.”

Mary Murray testified that she was in Mrs. Denzer’s rooms between eight and half-past eight o’clock on the evening of April fourteenth, Tuesday. She heard quarreling next door in Derringer’s rooms, and in a little while heard a heavy fall. She then heard Mrs. Derringer say, “ Oh, Billy, oh, Billy, I am dying.” He replied, “ God-damn-son-of-a-bitch, die, right there.” She recognized both the voice of Mrs. Derringer and of the appellant. Everything then became quiet.

Mrs. Haug, a tenant of the same house, living on the floor immediately below the rooms of the appellant, was out upon her fire escape taking in her clothes on that evening. She heard Mrs. Derringer crying, and heard him scolding and slapping her, calling her a bitch and a son-of-a-bitch. Mrs. Haug then heard a terrible fall and heard Mrs. Derringer scream; and afterward all was still.

After this scene Mrs. Denzer heard Derringer open the door and let out the child Lena, who went to the residence of her mother’s father, Thomas Finnan, at No. 204 West Thirty-second street.

After the child had left the rooms, Derringer went down stairs, and within about five minutes was seen by Mary Murray to return, bringing with him a short stout young man whom she did not know. Derringer and this young man entered the rooms, closing the door behind them. The identity of this third person is placed in doubt by the prisoner’s statement that the only one who entered the rooms that night besides himself was the father of his wife, who, having inquired for his daughter and being told that she was in bed, did not go into the bedroom, but returned to his own house. Whether the wife at the time her father called on that evening was dead or alive will always be a matter of conjecture, though the prisoner testifies that she was asleep on the bed, where she remained until some time between one and two o’clock, when, having fallen out upon the floor, he got up and replaced her on the bed, and that upon awakening about five o’clock in the morning he found that in the meantime she had died, and that he thereupon went and notified her relatives. On their reaching the house they found the deceased lying on the bed, with one foot hanging out, her hair dishevelled and thrown over her face, and her hands thrown up; her lips were swollen and smeared with blood; there was a large bruise over the right eye, and the sheet was bloody; the back of her hand was smeared with blood from her wrist to the tips of her fingers, as if she had wiped her mouth with the back of her hand.

The prisoner testified that he arrived home at eight o’clock that evening, and on entering asked his wife if she had any supper for Mm, and that Ms child said that she was hungry and' had had no supper yet; that he then turned round a,nd spoke to his wife, then went into the hall, and in the meantime she had fallen, from the chair up against the door ; that he then sent the child to her grandmother’s, and with that the wife jumped from the floor and attacked him, when he slapped her on each side of the face; that she then went into the front room from the kitchen where she stayed a few minutes, “ until I had the child’s hat and shawl on, and then I took her and laid her in the bed and she went to sleep, and I left her there.” That the child went out and subsequently came back with his father-in-law. “ lie managed to undress the young one and put her to bed. I went and took off my wife’s shoes. She was breathing regularly; I had no apprehension that she had seriously injured herself when she fell off the chair. Then I undressed and went to bed; it was about eleven o’clock; I put the light down and laid in bed then; I guess it must have been one or two when I heard another fall, and found that she had fallen between the crib and the bed. I picked her up and she went back the same way as she had laid before, and I thought no more of it. * * * I went to sleep and woke up next morning and found her dead.”

The claim advanced that the evidence of the People’s witnesses, offset by this uncorroborated statement of the prisoner, supports the contention that he is entirely innocent of the crime charged, seems to us to show a failure to apprehend the force and effect of evidence. Here are four disinterested witnesses, all of whom gave testimony from which it could fairly be inferred that, on returning home that night, the prisoner set upon Ms wife, striking her in the face with such force that she fell repeatedly against the door and upon the floor, and producing injuries sufficient, as testified to by the doctors, to produce cerebral hemorrhage, from which she died. The utmost that could be fairly claimed for the prisoner upon the testimony is, that it presented, upon conflicting evidence, a question of fact, and with respect to the rule that should govern tiffs court upon appeal we have had occasion repeatedly to quote from the opinion of this General Term in Carrington v. The People (6 Parker Crim. Rep. 342), wherein Daniel, J., says :

It is a determine
familiar principle in our jurisprudence that the jury shall all questions of fact presented in the controversy submitted to their deliberation, even though the evidence upon which they arise may be slight and in a great measure unsatisfactory. The law regards the court as possessing no superior qualifications over the jury for the determination of mere questions of fact.”

It will be seen, therefore, that, apart from the prior or subsequent declarations and conduct of the prisoner, sufficient evidence was given to render it a case which should properly have been submitted to the jury. But when, in addition, we consider these declarations and the conduct of the prisoner in the light of the surrounding circumstances, the conclusion is almost irresistibly forced upon us that the prisoner was responsible for his wife’s death.

It is unnecessary to detail all these circumstances, but one in particular, upon which an exception is predicated, requires to be briefly noticed.

Mrs. Nolte, a sister of deceased, at about half-past six on Wednesday morning, the fifteenth, went to the residence of her father, where she saw the child, Lena Derringer, and had a conversation' with her. This child at the time was about four years old. Mrs. Nolte thereafter went to the prisoner’s rooms, where she found her father and her sister, Mary Finnan. The prisoner shortly afterwards, came in from the undertaker’s, and the conversation which Mrs. Nolte says then occurred between her and the prisoner is here given in her words: “ I cried, and I said, ‘ Oh, Billy, you have killed her at last;’ I said, ‘You have often said you would do it.’ He said, ‘ I did not.’ I says, ‘ Your child Lena is after telling me over in my father’s how papa beat mamma; he beat her awful hard, Aunt Maggie, and knocked her down, and then threw her on the bed.’ ” To this Derringer made no reply.

If this statement is to be credited, it is a strong corroborating circumstance tending to show the prisoner’s guilt. Here was a statement made by the sister-in-law, charging him with having committed the crime, and basing such charge upon a statement made by his: own child that he had beaten the deceased and thrown her on the bed, where it is stated she was on the following morning found dead. This testimony was referred to by the learned trial judge in his-charge to the jury, and some stress placed upon it, because it was justly regarded by him as significant. In his charge referring to it, he says:

Now, that child was a child of tender years, and a child whose testimony could not be produced in this court, because she was too young to be sworn as a witness in this case, but her testimony is, in this case, in the form of a conversation had with this defendant. You are not entitled to give it all the weight and authority that you would give to it if it were testified to by a person of mature years, but it is something that you can consider in the case, and give it the weight that you think it is entitled to.”

The learned judge, it will be observed, spoke of the child’s testimony ” when he undoubtedly had it in mind to refer to her statement, but we do not think this error sufficient to justify a reversal of the judgment. There can be no doubt that it was entirely competent to have permitted Mrs. Nolte to testify as to what she said in the presence of the prisoner, and it cannot be assumed that the jury were misled by this statement of the court, because they were aware that the child was not examined, and they had knowledge of the way in which the statement made by the child to Mrs. Nolte got upon the record.

Another error assigned by appellant is directed to the court’s charge upon the weight to bo given to good character. It is insisted that his charge, it is not because a man’s character' is good that juries are entitled to say that he did not comit the act,” is contrary to the rule laid down in People v. McQuade (110 N. Y. 309). Though this criticism be just, the prisoner has no real.grievance, because, with respect to this question of character, two specific requests were made as to the weight to be attached thereto and the benefit to be derived from evidence of good character, which, in the very language of the requests, were charged by the learned trial judge.

A number of other grounds of error are assigned, but none of which in our judgment affected a substantial right, and, therefore, under the provisions of the Code of Criminal Procedure (§ 542) it becomes our duty “ to give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” In this connection, also, it should be remembered that few, if .any, of these alleged errors are presented upon exceptions properly taken, and, therefore, it would only be in a case where the appellate ■court was satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below ” (Code Grim. Proc. § 527), that the court, in the absence of such exceptions, would be justified in ordering a new trial. It is with this provision in mind that we have examined the entire record for the purpose of determining whether, upon the merits, justice requires that a new trial shall be had ; and with the jury, we are of opinion that the crime as charged was established, and that none ot the errors assigned demands that their verdict be disturbed.

The case presents some phases of life which we are glad to think are exceedingly rare and exceptional. The prisoner was unfortunate in having been mated to a drunken wife. But any sympathy that might from this circumstance have been extended to him is entirely obliterated when we recall, as the record here discloses, that this was used as a pretext for the most cruel and inhuman conduct towards her, on occasions so frequent that one of the witnesses was led into stating that she heard him beat her every night. This was no doubt an exaggeration, but is indicative of the frequency with which, in the presence of his little child, he beat and ill-treated the woman he had promised to protect, and towards whom, in his defense, not a single act of kindness was shown, but whose entreaties when assaulted by him, even though it may have been in her drunken stupor, were met by the vilest and filthiest language that could be addressed by one human being to another.

"We find no reason for disturbing this conviction, and think that the judgment appealed from should be affirmed.

Follett and Parker, JJ., concurred.

Judgment affirmed.


author: O’Brien, P. J.:

text:
    William T. B. Milliken, as Executor, etc., Appellant, v. Ellen Golden and Another, as Administrators, Respondents.

      Conveyance subject toa mortgage, without notice to the mortgagee — evidence as ta actual and nominal ownership of a mortgage — usurious transaction. ■

    A clause in a deed making it subject to a mortgage may, by tbe judgment in an action to which the owner of the mortgage is not a party,' be eliminated from the conveyance without the consent of the mortgagee.
    The evidence that will not justify a referee in holding a person to be the actual, and not the nominal, owner of a mortgage, considered and commented upon,
    A person borrowed §4,500 of another, who paid the same by canceling a mort- ‘ gage and notes of the borrower, by deducting from the balance a bonus of $800 for procuring the loan, and by giving $1,100 to the borrower. The canceled indebtedness, at the time of the giving of the mortgage to secure the payment of §4,500 from the borrower to the lender, amounted to §2,265.84.
    The amount of $1,100 was arrived at by computing the interest on the mortgage discharged at the rate of one and a half per cent per month and the exaction of §540 instead of $300, the amount due on the notes, in addition to the bonus of $300.

      Held, that the transaction was a single one and was usurious.
    Appeal by the plaintiff, William T. B. Milliken, as executor of the last will and testament of John Ii. Ilillier, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the city and county of New York on the 25th day of January, 1893, upon the report of a referee dismissing the plaintiff’s complaint, with costs, and directing that the injunction staying the foreclosure of the mortgage be vacated, and that said action proceed to judgment and a sale of the mortgaged premises.

      Thomas G. Shea/rmam,, for the appellant.

      Si&ney F. Rawson, for the respondents.
   O’Brien, P. J.:

This action was commenced by John II. Hillier to compel the surrender and cancellation of a bond and mortgage for $4,500, which were executed by him on December 1,1874, to the defendant Ellen Golden, and to restrain a suit which had been commenced by Ellen Golden against George H. Wooster to foreclose the mortgage. The mortgage covers property on Staten Island, which, in February, 18YY, was conveyed by Hillier, the mortgagor, to George H. Wooster by a deed containing the usual full covenants and warranty. The complaint sets up usury and alleges that William Hastings was the real party in interest, and made the loan with his own funds, using the name of his sister Ellen Golden, who was a married woman, merely as a cover for the usury; that Wooster, to whom the premises had been conveyed free and clear of all incumbrances, could not set up the usury in a suit brought to foreclose the mortgage, and that Ilillier would, therefore, under the covenants contained in his deed, be liable to indemnify Wooster against the judgment of foreclosure and sale.

It appears that after the mortgage had been made by Hillier to the defendant Golden an arrangement was made between the former and one Wooster to exchange equities which each of them had, Hillier in the Staten Island property mortgaged to Golden, and Wooster in certain property in the city of New York. No money passed, but Hillier and Wooster simply exchanged deeds, each one taking the exchanged property subject to the mortgage thereon. Wooster having neglected to pay interest on the Staten Island property, the defendant Golden commenced a foreclosure action, in which Wooster interposed the plea of usury. This answer was adjudged frivolous, and upon appeal such judgment was affirmed.

Thereafter, in a suit between Wooster and Hillier, and without notice to Mi’s. Golden, the mortgagee, a judgment was taken expunging from the record and from the deed the subject clause in the deed to Wooster, leaving the subject clause in the New York property deed intact. Thereafter this action was brought in the name of Hillier to enjoin the foreclosure of the Golden mortgage on the ground that it was usurious.

The decisive question presented upon this appeal is, whether the money represented by the Golden mortgage was the money of Mrs. Golden or of one William Hastings. If the latter, we think that, upon the facts here appearing, showing that on prior loans made, interest was deducted at the rate of one and a half per 'cent a- month and in addition thereto a bonus of $300, a case of usury was established. The learned referee did not determine this question of whether or not the transaction was usurious, having found as a fact that the moneys represented by the Golden mortgage were moneys actually advanced bf Mrs. Golden, as to whom no proof was offered that would as against her taint the transaction with usury. If the conclusion, therefore, of the referee is sustained by the evidence, that the consideration realized by the plaintiff’s decedent Sillier “ from the defendant Ellen Golden for the making of said bond and mortgage was the sum of $4,500 paid by defendant Golden to the plaintiff at the time of the making and delivery by plaintiff to defendant Golden of said bond and mortgage aforesaid,” then that is the end of plaintiff’s case. If otherwise, the judgment should be reversed and a new trial ordered.

By the testimony it is shown that prior to 1877 Hastings acquired a mortgage for $1,750 on Hillier’s Staten Island property, which mortgage had been formerly held by one Meyers, who had commenced a suit to foreclose it. and at Hillier’s request Hastings purchased the mortgage and advanced the foreclosure costs. In addition to this, Hastings held Hillier’s notes, upon which there was due about $300, making Hillier’s indebtedness, a.t the time of the taking of the mortgage in Golden’s name, $2,265.84. Nevertheless, it appears that after deducting the amount of Hillier’s indebtedness, and a bonus of $300 for procuring the loan, there was paid over to Hillier but the sum of $1,100. How this was made up is shown by one of the exhibits in the case wherein it appears that interest was computed at the rate of one and a half per cent per month upon the Meyers mortgage, and the exaction of $540 instead of the $300 due on the notes, and the payment of the additional bonus of $300.

These facts are beyond dispute, as is also the fact that ITillier never, prior to the time that the mortgage was given, nor at any time, knew or had any transactions personally with Mrs. Golden. She, it. appears, was a married woman and a sister of William Hastings, and took no part in the transaction leading up to the loan, but throughout, so far as she appeared, was represented by either Mr. Hastings or his son. It also appears that the application for the loan, first of $5,000, and subsequently of $4,500, wTas made by Ilillier to William Hastings and his son, who agreed to procure the loan for him; that subsequently they stated that the loan had been procured from Mrs. Golden, and that as a result the attorney was instructed to draw up the bond and mortgage in the name of Mrs. Golden as mortgagee. The money advanced by way of loan came from the bank account of the son, who testified that some ten days prior to the closing of the loan his father had given him a check for the amount, which he had deposited in his own bank, and out of which he subsequently drew the money, so that he had the bills, present on the day when the loan was closed. It thus appears that, the money came from the bank account of William Hastings; and apart from the statement of the son that it was the money of Mrs. Golden, and of the attorney who drew the papers that he was told by Hillier, who seemed to doubt the accuracy of the statement, that it was the money of Mrs. Golden, there is no evidence in the case, that she herself advanced the money; but, on the contrary, not only the circumstance connected with the manner in which the money was procured by the son upon the check of liis father, but many other circumstances in the case would seem to indicate that William Hastings, and not Mrs. Golden, was the real party in interest.

Hillier testified that until he executed the bond and mortgage he had never heard of, never seen, never written to, and had never known anything about Mrs. Golden ; and the only contradiction of this testimony is in the statement of the attorney, that just prior to-the making of the mortgage Ilillier told him, to use his own language, “in a sneering manner, as if he doubted the truth of it, that Mrs. Golden was to make the loan,” and the statement of the son, that he at one time prior to the mortgage had told Hillier that Mrs. Golden was to advance the money. In addition, it was shown that two years and over after the date of the mortgage William Hastings wrote to Wooster, who then owned the mortgaged premises, that he held the mortgage on the property, and he in the-previous January received and receipted for the interest on the mortgage. As against the recollection of the attorney, there was placed in evidence his bill for services rendered upon the closing of the mortgage, by which it appears that the amount charged was “ to-services rendered and disbursements in the matter of the mortgage-for $4,500 from J. H. Hillier and wife to William Hastings.”' Thus, the record shows that prior to the execution of the mortgage-Hillier had many business transactions with William Hastings, who-held a mortgage on the property, which was discharged, together with a note, with the moneys represented by the present mortgage. That the application was made to William Hastings, and that he was present and received a large portion of the moneys to the •extent already stated, is uncontradicted.

On the other hand, except the statement of the son, because that •of the attorney was mere hearsay, he not claiming to have any actual knowledge on the subject, no evidence was produced to ¡show that the money advanced for the mortgage was Mrs. Golden’s. And it is a significant fact that in this condition of the record she was .not called as a witness upon the trial, nor was any satisfactory •evidence given to show that she had advanced any portion of the •consideration for the mortgage. We say no satisfactory evidence was given, advisedly, because the statement of the son that the money was Mrs. Golden’s is very materially affected when we recall the fact that upon cross-examination he stated the source from which he received the money, namely, a check from his father which he deposited in bank and from which he subsequently drew the money. He does not say of his own knowledge that his father got the money represented by the check from Mrs. Golden ; and the case is barren of any evidence, other than his mere naked statement, to show that Mrs. Golden advanced any portion of the money that was loaned to Hillier.

We think, therefore, that in view of the prima facie case which was made out upon all the facts and circumstances connected with the transaction, in the absence of anything to show that Mrs. •Golden, beyond the use of her name, was in any way connected with the mortgage, the preponderance of the evidence was hi favor •of plaintiff’s contention that Mrs. Golden was the nominal and not the actual owner of the mortgage, which in fact belonged to William Hastings.

The only hesitancy in reaching this conclusion upon the record ¡arises from the fact that the plaintiff’s case is made to depend to a great extent upon the testimony of Hillier, which was taken before trial, and his deposition read, he having in the meantime died. William Hastings had also died prior to the trial, and the defendant William H. Hastings, his son, as his administrator, was substituted. Much of Hillier’s testimony relates to personal transactions between himself and William Hastings, deceased, and a question is presentéd .as to whether or not this was competent under section 829 of the Code. Upon the record, however, it is not made to appear that any objection was taken to such testimony and the question is not, therefore, before us.

We must assume, therefore, that this testimony was received without objection, and must be considered as part of the evidence in support of plaintiff’s contention. With such evidence in, and in the absence of any evidence showing that Mrs. Golden was the real party in interest, we think the referee erred in finding that Hillier received “ from the defendant Ellen Golden, for the making of said bond and mortgage, the sum of $4,500.”

It is strenuously urged, however, by respondent, that whether Mrs. Golden was the real or nominal owner of the bond and mortgage, this action cannot be maintained for the reason that Iiillier conveyed the property to Wooster subject to the mortgage, and that thus the rights of the parties were fixed, and that the subsequent suit between Wooster and Iiillier, by which the clause making the property subject to the mortgage was stricken out without notice to Mrs. Golden, in no way affected or impaired the rights of whomsoever owned the mortgage. The answer to this proposition we think is to be found in the case of Knickerbooker Life Ins. Co. v. Nelson (78 N. Y. 137), wherein it was held that such a subject clause may be eliminated from a conveyance without the consent of the mortgagee.

Another argument suggested for upholding the judgment is, that the transaction was not usurious either upon the plaintiff’s own showing or upon the facts as proved by the defendants, it being insisted that what occurred with respect to the payments by Ilillier to Hastings when they came to close the loan would not constitute usury; that the most that such evidence showed was that Iiillier paid usurious interest on this settlement upon confessedly invalid advances before then made, and that the agreement to be bound for any interest when computed upon an overdue claim does not constitute usury. The answer to this, however, it seems to us, is afforded by the transaction itself, which was a single one. The procuring of the loan and the payment of the usury was part and parcel of a single transaction. Hillier did not pay. off his obligations and afterwards go to Hastings and obtain the loan in question. He borrowed $4,500, out of which Hastings had the right to retain the amouut legally due on the $1,750 mortgage and on the note and no more. As a matter of fact, however, lie retained much more than this, and this additional sum thus retained constituted the usury. But it is not necessary for us to determine that question, for the reason that the referee found that whether there was or was not usury was immaterial, which was an entirely proper conclusion to be reached in view of his other conclusion that the money was Mrs. Golden’s and had been advanced by her.

The other questions presented upon this appeal need not be considered, in view of our opinion of the force and effect of the evidence upon the main question as to whether Mrs. Golden was the nominal or actual person in the transaction. We think that the plaintiff had made out a prima faaie case, which placed upon the defendants the burden of showing that she had really advanced the money; and the burden thus placed upon them we do not find to have been sustained. Eor this reason, we think that the conclusion reached by the referee upon this question was against the preponderance of evidence, and that the defendants may have an opportunity of presenting such evidence if it exists there should be a new trial.

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

Follett and Parker, JJ., concurred.

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


author: Eollett, J.:

text:
    William M. Tebo, Respondent, v. Henry G. Jordan and Others, Appellants.

      A vessel not convmanded by competent officers is unseamorthy— unlicensed pilot not necessarily incompetent — burden of pi'oof— excuse for accident

    A vessel not commanded by competent officers is nnseaworthy, but it is not as a matter of law unseaworthy because it is navigated by an unlicensed pilot, even though it is required by statute that the vessel should have a licensed pilot in command.
    The fact that a vessel is not under the charge of a licensed pilot casts the burden upon the owners thereof to show that at the time of the accident it was in the. command of a competent master or pilot.

      What evidence is sufficient to justify a jury in finding that an unlicensed pilot in command of a tug was competent.
    Running a vessel upon a well-known obstruction or shore can only be excused by some peril of the sea which rendered the accident unavoidable with the exercise of skill and good judgment.
    Appeal by the defendants, Henry Gr. Jordan and others, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the-24th day of May, 1893, upon the verdict of a jury after a trial at' the New York Circuit, and also from an order entered in said New York county clerk’s office on the 23d day of May, 1893, denying the defendants’ motion for a new trial made upon the minutes.

      J. A. Shoudy, for the appellants.

      W. W. •Goodrich, for the respondent.
   Eollett, J.:

This action was brought to recover the contract price for the serv-r ices of the steam tug \B. T. JImilcmd, rendered between October 26, 1888, and January 8, 1889. The defense interposed is that the tug was unseaworthy, and that, by the negligence of its officers and pilot, the defendants’ vessels, which the tug had in tow, were greatly injured.

All of the questions involved in this appeal, except two, were-disposed of when the case was before this court on the last appeal. (67 Hun, 392.)

It is now urged that the tug was unseaworthy because, at the time of the standings by which the defendants’ barges were-injured, the pilot in charge had not been licensed by the inspectors of steamboats.

Section 4401 of the Revised Statutes of the United States provides : Every coastwise, seagoing steam vessel subject to the navigation laws of the United States, and to the rules and regulations aforesaid, not sailing under register, shall, when under way, except on the high seas, be under the control and direction of pilots, licensed by the inspectors of steamboats.”

It was admitted that the Baviland was an enrolled vessel and net-sailing under a register.

Section 4427 of the Revised Statutes provides that The officers-navigating such vessels (tugs) shall be licensed in conformity with the provisions of this Title, and shall be subject to the same provisions of law as officers navigating passenger steamers.”

The strandings of which the defendants complain did not occur upon the high seas, but within waters which were in the jurisdiction of the State of Massachusetts. It was conceded that, at the time of the accident, the tug was not in charge of a licensed pilot, and the court was asked to hold, as a question of law, that this was a breach of the contract and a defense to the action. The court refused so to hold, and submitted the question to the jury whether the pilot in command was or was not competent, in a charge to which, in this respect, no exception was taken. The jury found this issue for the plaintiff, and, as we think, upon sufficient evidence. The Uavilmid, .at the time of the accident, was piloted by 'William TI. Barnard, who testified: “I am fifty-nine .years old; seafaring life has been my occupation; I am a pilot; I pretend to be; never was questioned before; have been a pilot ever since I have been master, 36 years; I have been master of a sailing vessel 36 years; I never held a license from the United States or any other authorities as a pilot; I have had a license as master; I have had over 40 years’ experience in a running over the voyage from New York or Newport News to Boston ; I have been over it hundreds of times ; I have been coast-wise 20 years steady from Cape Ilenry the whole length of the coast; at the time of this charter party I was familiar with the route from Newport Nows to Boston; that was the first time I ever towed barges; in all these voyages I acted always as pilot, and never had it questioned before; I know the route and the lighthouse; am acquainted with the tides and the set of the tides, with Stone Horse ledge and Handkerchief light and Monomoy light and Shovelful light; am also familiar with the course of the channel and of the lights and tides in entering Boston harbor; have been traveling over this route for twenty or thirty years.”

No evidence was offered tending to show that the pilot was incompetent, except the fact that an accident occurred.

Under tins charter party the law implies a warranty that the tug was seaworthy, and a vessel not commanded by competent officers is unseaworthy. (Tebo v. Jordan, 67 Hun, 392, and cases there cited.) But a vessel is not, as a matter of law, unseaworthy because if is navigated by an unlicensed pilot, provided he is competent, even though a statute requires that the vessel should have a licensed pilot in command. (Flanigen v. Washington Ins. Co., 7 Barr, 306; 1 Par. Mar. Ins. 385 ; 1 Par. Mar. Law, 143.) The question is not unlike those arising under statutes or municipal ordinances prescribing the rate of speed beyond which trains shall not be run.

In the case of an accident the fact that the train exceeded the prescribed rate of speed is not proof but evidence of negligence, which may be rebutted, and, in this case, the absence of a licensed pilot cast the' burden on the plaintiff of showing that the vessel, when it was stranded, was in command of a competent master or pilot..

The defendants’ counsel requested the court to charge: “ 10. That, the fact of running upon a well-known shore is of itself presumptive evidence of negligence.” The court declined to adopt the language of the request and the defendants excepted, and thereupon asked the court to charge : “11. That running upon a well-known obstruction or shore can only be excused by some peril of the sea which rendered the accident unavoidable, with the exercise of skill and good judgment.” This the court charged. The rule of evidence applicable to the case was correctly expressed by the eleventh request, and no error was committed in refusing to charge the tenth, request.

The judgment and order should be affirmed, with costs.

Yan Brunt, P. J., and Parker, J\, concurred.

Judgment and order affirmed, with costs.