author: Martin, J.:

text:
    GEORGE N. CROUSE and Another, Appellants, v. HECTOR B. JOHNSON, as Sheriff of Onondaga County, and Another, Respondents.

      Leming a chattel mortgage, with the fee for filing it, in a town cleric’s officewhen no one is present — affidavit on a confession of judgment in a Justice’s Court — a constable is protected by process regular on its face — Lems of 1833, chapter!' 379, see. 3.
    In an action of replevin, where the question in regard to the title to the property in» question arose between the holders of a certain chattel mortgage and a sheriff and a constable, who had respectively made levies on the property, it appeared that the levies were made in the afternoon of March eleventh; that, on the morning of that day, George Barrow, the agent of the mortgagees, had gone to the town clerk’s office and found it closed; that he returned in the afternoon, found it open hut no one' present; that he placed the mortgage on a desk in the office with the fee for filing it, and wrote on the face of the paper: “File for George Barrow.” The town clerk did not see the mortgage until March twelfth, when he filed it.

      Held, that the mortgage was not filed until March twelfth, and that leaving it in the office, under the circumstances stated, was ineffectual as a filing on March eleventh.
    Some of the judgments under which alevy was made were recovered by confession in Justice’s Court, and were over fifty dollars in amount. Section 8011 of the Code of Civil Procedure requires that in such a case the affidavit accompanying the confession shall state that the confession was not “made or taken” with intent to defraud any creditor. The affidavits omitted the words “ or taken.”

      Held, that, as the executions were regular on their face, the constable, as a ministerial officer, was protected.

      Semble, that the judgments were void, except as to the person making the confession and purchasers in good faith under the judgments.
    Appeal by tlie plaintiffs, George N. Grouse and Robert E. Bentley, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Onondaga on the 22d day of May, 1891, in favor of the defendant, Hector B. Johnson, as sheriff of Onondaga county, and against the plaintiffs for the possession of certain goods, with notice of an intention to bring up for review upon such appeal an order denying a motion for a new trial; and also an appeal from a judgment of the Supreme Court, entered in the same office on the 12th day of June, 1891, in favor of the defendant, Philander Wilson, against the plaintiffs for the possession of certain property, with notice of an intention to bring 'up for review upon the appeal an order denying a motion for a new trial.
    The trial was had at the Onondaga Circuit before the court and a jury.
    On the trial, at the close of the evidence, the court held that so far as the executions in the hands of the respondent Wilson, as constable, were concerned, there was but one question, and that was the amount of his special lien on the property, and that so far as the respondent Johnson, the sheriff, was concerned, that the only question was as to the value of the property taken by him. The case was thereupon submitted to the jury, who found for the defendants.

      J. E. Newell, for the appellants.

      J. Gha/rles Meldram, for respondent Johnson.

      Ghmies R. Milford, for respondent Wilson.
   Martin, J.:

This action was replevin. ■ The plaintiffs claim title to, and the right of possession of the property in question under and by virtue of a chattel mortgage executed and delivered to them by James Thurlow, Jr. The defendants claim to have a special property in the goods, and the right of possession under and by virtue of levies made thereon under executions in their hands against Thurlow. The defendant Johnson was sheriff of Onondaga county, and Wilson was a constable of the town of Skaneateles.

On March 10,1890, to secure the payment of a debt of $100, Thurlow made and delivered to the plaintiffs a chattel mortgage on ■certain personal property, consisting of goods and fixtures in what was known as the brick store, and also on certain other goods and fixtures in a saloon, both of which were in the village of Mottville. At that time Thurlow resided, and the property in question was located in the town of Skaneateles. On March tenth, the plaintiffs’ mortgage was sent by mail from Syracuse to George Barrow, Esq., at Skaneateles, to have it filed in the office of the town clerk of that town. It was received by Barrow in the forenoon of March eleventh. He went to the office of the town clerk at about twelve o’clock m., and about four o’clock p. m., and on both occasions found the office closed. At half-past seven o’clock p. m. he again went to the clerk’s ■office, found it open but no one present. He then placed the plaintiffs’ mortgage on a desk in the office of the clerk, with his fees for filing, and left the following memorandum on the face of the paper: “ Eile for George Barrow.”

There was no evidence that the mortgage came to the notice of the town clerk until the next morning at about eight o’clock, when he took it from his table and marked it as filed at that time. The clerk testified that he first saw the mortgage when it was filed by him.

On the eleventh day of March, at three o’clock and forty-five minutes p. m., the sheriff, under and by virtue of an execution or executions issued against Thurlow, duly levied upon the goods and fixtures in the brick store and took possession of them. On the evening of the same day Thurlow con fessed judgment to three of his creditors bfefore a justice of the peace of the town of Skaneateles, and executions were issued thereon in due form and delivered to the defendant Wilson, who, by virtue thereof, levied upon and took possession of the goods and fixtures in the saloon.

The most important question in this case relates to the filing of the plaintiffs’ chattel mortgage. That it did not, in fact, come to the hands of the clerk until after both defendants had made their levies upon the property in question is not denied. If it was not filed until the clerk actually received it and made the indorsement required, it seems to be conceded by all that the judgments appealed from were proper, unless the judgments confessed, and under which the defendant Wilson levied, were void. The latter question will be separately considered. Hence the precise question we are to consider first is, whether the attempt of the plaintiffs to have their mortgage filed amounted to a filing within the requirements of the statute. (Laws of 1833, chap. 279, § 2.)

While it has been held that it was not a sufficient filing of a chattel mortgage to deliver it to the town clerk when absent from his office, although he indorsed the same as filed when he received it (Hathaway v. Howell, 54 N. Y., 97), and that if there be no clerk,, or if he be absent, the mortgage may be filed with the person in charge of the office (Bishop v. Cook, 13 Barb., 326; Dodge v. Potter, 18 id., 193), still we have been cited to no case, and have found none, that would justify us in holding that an unsuccessful attempt to file a chattel mortgage when the office was closed, or depositing a mortgage on the clerk’s table in the office when no one was present, would constitute a filing within the requirements of the statute. The statute requires clerks to file all chattel mortgages that are presented to them for that purpose, and enter thereon the time of receiving the same, and to deposit them in their office for inspection. To constitute a proper filing requires the act of the clerk or some person in charge of the office. To hold that an unsuccessful attempt to enter the office, or the leaving of a paper therein, constitutes a filing is not, we think, justified by the statute. A chattel mortgage is filed within the meaning of the statute when it is delivered to, received and kept by the proper officer, or some one in charge of the office, for the purpose of the notice the statute intended should be given. (7 Am. and Eng. Encyc. of Law, 961; Appleton Mill Co. v. Warder, 42 Minn., 117.) We think the court properly held that the plaintiffs’ mortgage was not filed until received by the clerk.

This leads us to the consideration of the question of the validity of the judgments confessed, and, if invalid, whether such invalidity affects the parties to this action. The Code of Civil Procedure ■(§ 3011), provides, that where a judgment, confessed before a justice of the peace, is for a sum exceeding fifty dollars, the confession must be accompanied with an affidavit of the defendant and plaintiff that the defendant is honestly and justly indebted to the plaintiff in the sum specified therein over and above all just demands which the defendant has against the plaintiff, and that the confession is not made or taken with intent to defraud any creditor. The affidavits accompanying the confessions involved in this case all omitted the words “ or taken,” so that the affidavits were simply that the confessions were not made with intent to defraud. We are disposed to -think the omission may be fatal to the validity of the judgments ■confessed, except as against a purchaser, in good faith, of property thereunder, and the defendant making the confession. (Code, § 3012.)

Assuming that the judgments confessed were invalid, except as to the defendant and purchasers in good faith, the question as to the effect of such invalidity upon the rights of the parties to this .action becomes important. It must be remembered that the defendant Wilson, who alone is affected by this question, was a constable, ■and had levied upon, and then held possession of the goods taken by him under and by virtue of executions issued by the justice, which were in all respects regular upon their face.

To sustain his right of possession to the goods taken by him, the defendant Wilson invokes the rule that ministerial officers are protected in the execution of process regular upon its face, issued by a •court or officer having general jurisdiction of the subject-matter, or jurisdiction to issue it under special circumstances, although, in fact, jurisdiction of the person or subject-matter did not exist. (Woolsey v. Morris, 96 N. Y., 311, 315; Bodine v. Thurwachter, 34 Hun, 6; Livingston v. Miller, 48 id., 232.)

The foregoing rule seems to be well settled in this State, and is, we think, applicable to this case. Hence it follows that the defendant Wilson was entitled to the possession of the property in question as against the plaintiffs, and the court properly disposed of the case at the trial.

If these views are correct, the judgments and order appealed from should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgments and order affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    THOMAS McLOGHLIN and Another, as Executors of B. F. McLOGHLIN, Deceased, Respondents, v. THE NATIONAL MOHAWK VALLEY BANK, Appellant.

      Banlcs — an agreement to pay interest on a deposit — not dischanyed by notice, if there.■■ • be no payment or tender by the bank — what facts relating to the probability or reason of an act being done may be proved.

    In 1853 B. F. McLoghlin deposited money with a State discount bank upon an agreement that he was to receive interest thereon at three per cent. His deposits continued until May, 1865, when there was due him $2,511.31. In 1865 the State Bank became a national bank. In 1867 the president of the bank told McLoghlin,, in substance, that^he must draw his money, that the bank could pay no more; interest. In 1869 the cashier said the same thing to McLoghlin, who said that, he would leave his money there until he could got some other place to put it. To this the cashier said: “ All right, you can have your money at any time you want it.” The bank never tendered or paid the deposit, nor was the bank in any form released from its original agreement to pay interest. McLoghlin died,, and in 1889 his executors demanded the deposit and interest thereon at three-per cent.

      Held, that the original agreement was still in force and they were entitled to recover..
    As bearing upon the improbability of the defendant’s proposition that their testator had left his money in the bank for more than' twenty years without expecting-interest, the executors were allowed to show the value of the use of money in that vicinity; that the testator had money deposited in other banks which paid him interest, and that a bank had offered him the usual rates for any money he-might have to deposit.

      Held, that the evidence was competent.
    The cases bearing upon this kind of evidence, reviewed.
    Appeal by the defendant, the National Mohawk Valley Bank, from a judgment of. the Supreme Court, entered in the office of the clerk of the county of Cortland on the 4th day of December, 1891, in favor of the plaintiff for $4,500.28, with interest and costs, after-a trial before a referee, with notice of an intention to bring up for review on such appeal the rulings of the referee, the exceptions thereto, the findings of the referee and his refusals to find.
    The plaintiffs, the executors of B. F. McLoghlin, in 1889, at the defendant’s banking-house, and subsequently in their complaint served the same year, demanded payment of a deposit and interest made by the plaintiff’s’ testator in the defendant’s bank.
    The appellant, a national bank, was duly organized as such April 1, 1865. Prior to its organization -as a national bank, and from the year 1852, until it became such, the appellant was a State bank, organized under the laws of the State of New York by the name of "Mohawk Valley Bank.” When the appellant changed its organization from that of a State bank to that of a national bank it took and succeeded to all the business, property, assets, franchises and good will, and assumed and incurred all the liabilities of the said Mohawk Valley Bank.
    On July 8, 1853, the plaintiffs’ testator opened an account with the appellant and became a depositor, depositing with it moneys from that time until about May 25, 1865, and from time to time drew checks, which were paid by the appellant.
    On the 25th of May, 1865, there was a balance due on said account to the testator amounting to the sum of $2,511.31. Between the opening of said account and the 25th of May, 1865, the appellant and the Mohawk Valley Bank had allowed the testator interest upon his deposit and balance of account, and had, at intervals, paid such interest by entering the amount thereof in said account and giving the testator credit therefor. The testator’s deposits were made with the appellant and its predecessor upon the understanding and agreement that the testator should be paid interest thereon and upon the balance thereof. On the 25th of May, 1865, the appellant’s indebtedness to the testator was an interest-bearing account or indebtedness, bearing interest at the rate of three per cent per annum or upwards, which was payable to the testator upon demand, or at the option of the appellant.
    In the year 1867 the testator had an interview with one Burgess, president of the appellant, in the presence of Lowell and Vickerman, who were directors of the appellant. On that occasion the president said to the testator in substance: “You must draw your money. We can pay no interest.” To which the testator replied that the bank would be crippled by the defalcation, and they could afford to pay him interest; that it was not- necessary for him to have the money. The president answered that it was contrary to the rules of the bank to pay interest; that the bank did not pay interest on deposits, and he must withdraw his money; that they could pay no interest. After this, and about the year 1869, the testator said to the cashier, H. D. Alexander, that he had called there some time ago and talked about his deposits with the old gentleman in the back room, who said that they could not pay interest. Mr. Alexander replied : “ That is so, we do not pay anybody interest now. If you desire to deposit your money where they pay interest, you had better take it to a savings bank.” The testator said he would leave his money there until he could get some other place to put it. Mr. Alexander answered: “ All right, you can have your money any time you want it.”
    The appellant never paid, tendered or attempted to pay to the testator, or to any one for him, during his lifetime, the balance of $2,511.31, or the interest thereon or any part thereof. No contract or agreement was made between the appellant and the plaintiffs’ testator changing the account from an interest-bearing to a non-interest-bearing account or debt, nor was there any agreement by which the appellant was released from its obligation to pay interest upon the account. Before this action was commenced the plaintiffs duly demanded the balance of $2,511.31, and interest which had accrued thereon. The appellant offered to ¡lay $2,511.31 in full of its indebtedness, but refused to pay more, or to pay or allow any interest upon that sum.
    The foregoing facts were found by the referee, who held that the plaintiffs were entitled to recover the sum of $2,511.31, with $1,988.97 interest and costs, and directed judgment accordingly.

      J. B. Rafter, for the appellant.

      William P. Goodelle and John Gourtmey, Jr., for the respondents.
   Martin, J.:

The principal controversy between the parties related to the interest upon the money deposited with the defendant by plaintiffs’ testator. The referee found that the money was deposited in pursuance of an agreement or understanding between the plaintiffs’ testator and defendant, that interest should be paid on the testator’s account. This finding was, we think, justified by the evidence.

The referee also found that there was no subsequent valid agreement changing the testator’s account from an interest-bearing to a non-interest-bearing account, or releasing the defendant from its obligation to pay interest thereon. A careful examination of the evidence contained in the appeal-book has failed to disclose to us any such proof, that the agreement to pay interest was either terminated or modified by a subsequent one, as would justify us in disturbing the finding of the referee. While it may be said that the ■defendant evinced a desire, and perhaps a determination, to terminate the agreement to pay interest, still, we think, the evidence was such as to justify the referee in finding that that desire or determination was never carried into execution, and that the ■original agreement between the parties continued in full force. We, therefore, find no error in his conclusion that the plaintiffs were entitled to recover interest on the testator’s account at the rate allowed.

On the trial, the plaintiffs claimed and gave evidence which tended to prove that an agreement existed between the testator and defendant by which interest was to be paid on the testator’s account. The defendant, while substantially admitting that such an agreement had previously existed, gave evidence tending to show that that agreement was superseded or terminated by a subsequent .agreement or understanding between the parties that no interest was to be paid. In answer to the evidence thus given by the ■defendant, the referee permitted the plaintiffs to prove, by several witnesses, the value of the use of money in the vicinity of defendant’s bank; that the testator had money deposited in several other banks, all of which paid interest on such deposits; and that one of the banks offered him the usual rates (five per cent, when left on deposit three months or longer), for any money he might have to deposit. This evidence was objected to as improper, incompetent and immaterial. When the evidence was offered, the plaintiff stated that it was offered for the sole purpose of establishing that the testator’s account was an interest-bearing account, and rebutting the evidence of defendant’s witnesses as to a subsequent agreement. The objection was overruled, and the defendant excepted. The validity of these rulings is one of the important questions in this case.

It is relevant to put in evidence any circumstance which tends-to make the proposition at issue either more or less improbable.” (1 Whart. on Ev., 21.) In this case the defendant sought to establish the fact that its agreement to pay interest had been terminated by a subsequent agreement that no interest should be paid. To rebut the evidence of defendant’s witnesses tending to establish that fact, the evidence objected to was admitted. Proof that during the-time this deposit was held by the defendant the value of the use of money was at least equal to that received by the testator under his-first agreement; that all of his money was deposited in banks and drawing interest, and that he was offered interest at “ going rates ”' on all the money he would deposit in a bank where he resided, tended to show the improbability of the defendant’s claim that the-testator left the money in question on deposit in its bank for twenty years and more under an agreement that he should receive no interest therefor.

In Burlew v. Hubbell (1 T. & C., 235) the defendant, being-pressed for money, applied to plaintiff’s testator for a loan, which was promised, if defendant would give a note signed by himself and one F. Afterwards another person brought to testator a note, signed with the names of F. and the defendant, and received the money thereon. -In an action upon such note, defendant denied the execution thereof; and it was held that evidence showing that the defendant, about the time he applied for the loan, procured from another source the amount he desired to borrow, was admissible to rebut the presumption arising from the circumstance that he was pressed for money.

In Hotchkiss v. Germania Fire Insurance Company (5 Hun, 90), where an action brought on a policy of insurance was defended on the ground that the insured had set the building on fire, it was held that evidence as to what had been offered for rent for the property was properly received as tending to show the value of the building, and that it was greater than the amount insured.

In Pomeroy v. Pierce (5 Hun, 119) the action was for legal services. One B. was the attorney in the suit. It was claimed that plaintiff was employed by B..with the consent and approval of the defendant. This was denied by the defendant, and he offered on the trial to show an agreement between himself andB. that B. should take charge of the case and conduct it for a sum agreed upon. The evidence was excluded. On appeal the court held that the evidence, was admissible as bearing upon the probability of the employment of the plaintiff by the defendant.

In Nicholls v. Van Valkenburgh (15 Hun, 230), which was an action on a note made by defendant’s testator, payable to the order of plaintiff’s testator, and the defense was that the note was not used and was without consideration, it was held that evidence of the financial situation of the parties at the time the note was made, and at its maturity, was admissible to sustain the defendant’s version of the transaction, and to show the improbability of its remaining overdue without a demand for its payment.

In Wallis v. Randall (16 Hun, 33; affirmed, 81 N, Y., 164), where the question was, whether a mortgage was transferred as an absolute payment of a debt of that amount or only as security therefor, it was held that evidence that at the time of the transfer the property covered by the mortgage was worth more than the amount of it and a preceding mortgage thereon, was admissible as tending to show that the transfer of tlie mortgage was intended as a payment.

In Dishno v. Reynolds (17 Hun, 137), an action brought to-recover money paid to the defendant, it was held proper to show the payment to the plaintiff of money by a third person for the purpose of showing that the party had money from which the payment to the defendant might have been made.

In Cornell v. Markham (19 Hun, 275), it was held that evidence as to the value of services to be rendered was admissible as bearing upon the question whether a certain contract was made. The same was held in Bean v. Carleton (51 Hun, 318).

In Pontius v. The People (21 Hun, 328; affirmed, 82 N. Y., 339), where the defendant claimed that two notes were given to him in consideration of an indebtedness' due him for borrowed money exceeding in amount that of the two notes, it was held that evi-dénce tending to sliow that the defendant was at that time embarrassed in his pecuniary circumstances and pressed by numerous creditors whom he was unable to pay, was admissible as tending to show that he had no money to lend.

In Dryer v. Brown (52 Hun, 321), an action brought to enforce the payment of notes claimed to have been made by a decedent against his executors, who interposed the defenses of usury and want of consideration, it was held that evidence on the part of the defendant tending to show that the payee of the notes, who was alleged in the complaint to have loaned the money constituting the consideration therefor to the decedent, was not possessed of any property or money and had not the pecuniary means to make the loan, was competent.

In Quincey v. White (63 N. Y., 370), which was an action against several jiersons upon an account arising from stock transactions claimed by the plaintiff to have been joint transactions on the part of the defendants, but claimed by one of the defendants to have been several, it was held that evidence that that defendant had a private account running at the time was competent as a circumstance tending to show that the other account was joint, and not several.

The authorities cited seem to uphold the doctrine that evidence of circumstances, which tend to make a proposition at issue between the parties improbable, is admissible to aid the court in correctly .determining such issue.

It must be admitted that the correctness of the rulings under consideration is not wholly free from doubt, but we think the principle of the authorities cited justifies us in upholding them. There are other exceptions taken by the appellant, all of which we have carefully examined, but have found none that would justify a reversal or that need be discussed. These considerations lead to an affirmance of the judgment.

Hardin, P. J., concurred; Merwin, J., dissented.

Judgment affirmed, with costs.


author: Merwin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALBERT CHRISTY, Appellant.

      Grimes — poisoning the horses of another — distinction between this crime and that of cruelty to animals— testimony of an accomplice — credibility—conbt'adicting a witness — indirect proof of the defendant’s bad cho/racter.

    Albert Christy was convicted, under section 654 of the Penal Code, of unlawfully and willfully destroying the personal property of another. The crime consisted in poisoning three horses alleged to be the property of Gilboy Brothers.

      Held, that the conviction was proper.
    That sections 655 and 660 of the Penal Code, relative to cruelty to animals, did not apply to such a case.
    That those sections had regard to the crime without reference to the element of ownership.
    That section 654 did not relate to inanimate objects only, but that horses were “personal property” within its meaning.
    A witness, named Garlock, who was charged to have been an accomplice, testified for the people. On cross-examination he was asked: “ Did you understand by making the statement (as to the details of the crime) which you did make you would relieve yourself from prosecution? ” The question was objected to and excluded.

      Held, that its exclusion was improper.
    That it related to the position of the witness with reference to the complainant and the district attorney, and was material as affecting the credibility of the witness.
    The horses were poisoned about the middle of July. Garlock testified that on two occasions he purchased arsenic for Christy, the first being about the middle of May and the second ten days later. He fixed the date of the second purchase by saying that before he got it he read in a newspaper that a number of Gilboy’s horses were dying. He said that he was sick from June first to about the middle of July.
    The defendant offered to show that no account of the death of the horses appeared in the newspaper in April, May or June.

      Held, that the evidence was competent upon the question whether Garlock made the purchase before the middle of July.
    Upon the cross-examination of one Horn, a witness for the defendant, the people were allowed to prove by him that the defendant had kept a place of bad character.

      Held, that the people had no right to attack in this manner the character of the defendant who was not sworn on the trial.
    Appeal by the defendant Albert Christy from a judgment of the Court of Sessions of Herkimer county, rendered on the 1st day of June, 1891, convicting him of the crime of willfully and unlawfully destroying the personal property of another, as defined in section 654 of tlie Penal Code, under which judgment he was sentenced to imprisonment in a State’s prison for the term of three years.
    In the first count of the indictment the defendant is accused “ of the crime of unlawfully and willfully destroying personal property of another,” and it is specified that on the 10th of July, 1889, at a place named, the defendant did willfully, unlawfully, feloniously and maliciously'kill, destroy and poison unto death three horses, the personal property of the firm of Gilboy Brothers, and of the value of $175. In the second count the defendant is accused “of the crime of willfully and unlawfully destroying personal property of another, contrary to and in violation of section 654 of the Penal Code,” and the specification is substantially as in the first count, except the date is laid on the 15th of July, 1889. Upon the trial the defendant was found guilty as charged in the indictment.
    The statement of Garlock, referred to in the opinion as made to shield him from prosecution, was made to one Harris, who was chief of police of Little Falls.

      J. D. Beckwith, for the appellant.

      Irving R. Bevendorf, for the respondent.
   Merwin, J.:

The defendant claims that the facts alleged in the indictment and the evidence given upon the trial do not constitute the crime of which the defendant was convicted, and that the indictment should have been dismissed.

By section 654 of the Penal Code it is provided that “ a person who unlawfully and willfully destroys or injures any real or personal property of another, in a case where the' punishment thereof is not specially prescribed by statute, is punishable as follows: 1. If the value of the property destroyed, or the diminution in the value of the property by the injury is more than twenty-five dollars, by imprisonment for not more than four years. 2. In any other case, imprisonment for not more than six months, or by a fine of not more than two hundred and fifty dollars, or by both such fine and imprisonment.”

The claim of the defendant is that the crime, if any, is that of cruelty to animals under section 655 of the Penal Code, or section 660; that the punishment thereof is specially prescribed by those sections, and that, therefore, the case is not within the purview of section 654.

By section 655 it is, among other things, provided that a person who unjustifiably injures or kills any animal, or causes it to be done, is guilty of a misdemeanor. By section 660 it is provided that a person who unjustifiably administers any. poisonous substance to an animal is guilty of a misdemeanor. By section 15 of the Penal Code it is provided that: “A person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary or county jail, for not more than one year, or by a fine'of not more than five hundred dollars, or by both.” The inference from this section is that when, by some other provision of the Code, an offense is simply made a misdemeanor, the punishment is not considered as thereby “ specially prescribed.”

By subdivision 27 of section 56 of the Code of Criminal Procedure Courts of Special Sessions have, in the first instance, exclusive jurisdiction to hear and determine charges of misdemeanors for cruelty to animals. It is not claimed that this case was brought before the grand jury by virtue of a certificate under section 57 of the Code of Criminal Procedure. So that apparently, if the theory of the defendant is correct, not only is the crime a misdemeanor simply, but the remedy by indictment is not proper.

Section 654 of the Penal Code is a part of chapter 14 of title 15. This title is “ of crimes against property,” and chapter 14 is of “ malicious mischiefs and other injuries to property.” The subject of “ cruelty to animals ” is under another title, and relates rather to the manner in which an act is done than to an interference with the property rights of others. The term “ personal property ” used in section 654 cannot, as claimed by defendant, be construed to mean only inanimate property. Por, by the rules of construction furnished by the same Code, the term “ personal property ” includes chattels of every description. (Penal Code, § 718, sub. 15 [1891]; People v. Maloney, 1 Park. Crim. Rep., 593; 2 Black. Com., 387.)

Section 654 relates to acts unlawfully and willfully ” done to the property of another; while sections 656 and 660 relate to acts “ unjustifiably ” done without reference to the ownership. It looks reasonably clear that it is not the intention of the statute to exclude from the operation of section 65é all acts that might possibly be included in the other sections. By section 677 it is provided that an act or omission which is made criminal and punishable in different ways by different provisions of law, may be punished under any one of those provisions, but not under more than one.

We are of the opinion that the court below did not err in refusing to dismiss the indictment.

The horses in question died about the 15th or 20th of July, 1889, and there is evidence tending to show that the death was caused by poison which the defendant procured to be administered. This, in effect, was testified to by the witness G arlock, who, however, is charged to have been an accomplice. He was, we think, corroborated by other evidence that tended to connect the defendant with the commission of the crime. (Code of Crim. Pro., § 399.) In the course of his cross-examination, after having testified as follows: “ I don’t know as there was any understanding between Mr. Harris and me, or the district attorney and me, that I would not be prosecuted if I stated to him the matters which I did state,” he was asked the question : Did you understand by making the statement which you did make you would relieve yourself from prosecution ? ” This was objected to and excluded and defendant excepted. This should have been admitted. (Whart. Crim. Ev., § 477.) It related to the position of the witness with reference’ to the complainant and the prosecuting officer, and was competent and material as affecting his credibility.

Garlock testified that upon two occasions, the first about the middle of May, and the second about ten days afterwards, at the request of defendant, he purchased arsenic. The date of the second purchase he fixed by saying that before he got it he read in a newspaper,, the Evening Times, of Little Falls, a statement that a number of Gilboy’s horses were dying. The defendant offered to show that in the months of April, May and June there was in the paper referred to no account of the death of Gilboy’s horses. This was excluded and exception taken. Garlock had testified that he was sick and confined to the house from the first of June to about the middle of July, which was about the time the horses in question were poisoned. If, before Garlock was sick, there was no publication, it would reflect on the question whether he made, any purchase before the horses in controversy died. The evidence should have been admitted.

Upon the cross-examination of one Horn, a witness for the defendant, the people were allowed to prove that defendant kept, at Ilion, a place of bad character. This was admitted as bearing upon the character of the witness. Its natural and chief effect was, however, upon the character of the defendant, and the people had no right to attack his character in that way. He was not a witness, and had a right to all legal presumptions in his favor. No sufficient reason is apparent for the admission of the testimony. (1 Bishop on Crim. Pro., § 1122.)

The defendant and the Gilboy Brothers were competitors in business, and the people were allowed to prove to a considerable extent the state of feeling between them. Among other things they were allowed to prove in detail actual assaults upon two occasions. It is competent to show against a defendant that he bore toward the party injured enmity of a sort tending to the criminal result. (1 Bishop on Crim. Pro., § 1109.) Threats are admissible. (Id., § 1110.) In the present case it is at least doubtful whether the people were not permitted tó go too far in this line. Be that as it may, the rulings upon the evidence above referred to cannot, in their effect, be deemed immaterial, and it follows that the defendant is entitled to. another trial.

Hardin, P. J., and Martin, J., concurred.

Conviction, order and judgment of .the Court of Sessions of Herkimer county reversed and the clerk directed to enter judgment and remit certified copy thereof, with the return and decision of this court, to the Court of Sessions of Herkimer county, pursuant to sections 547 and 518 of the Code of Criminal Procedure.


author: Hardin, P. J.:

text:
    HELENA A. MEAGHER, Appellant, v. THE LIFE UNION, Respondent.

      Assessment life insurance — effect of a certificate of membership — burden of proof as to membership — assignability of claim — when proofs of death need not be furnished by the beneficiary.

    The issue to a person by an assessment life insurance association of a certificate of membership therein establishes prima facie the fact of membership, and throws upon the association the burden of proving that the person by some act has lost such standing. Such a certificate is assignable after a refusal by the association to pay the loss.
    It was requisite, under such a certificate, to make proofs of death upon blanks which were to be furnished by the association, and the beneficiary applied for blank proofs. To this application the association replied that the policy was void for the non-payment of an assessment and sent no blank proofs.

      Held, that the beneficiary was thereby excused from making proof of death which under the circumstances'would have been of no use to either party to the controversy.
    Appeal by. the plaintiff Helena A. Meagher from a judgment of the Supreme Court, entered in the office of the clerk of Oneida county on the 2d day of February, 1892, dismissing the complaint after a trial at the Oneida Circuit before the court and a jury.
    Plaintiff’s complaint alleges the defendant is a “ domestic corporation duly organized and incorporated under and pursuant to the laws of the State of New York, as a co-operative or assessment life insurance association or society, and located and doing business as such in the city of New York; that the defendant, upon due application therefor, on or about the 3d day of December, 1888, received Honorah Kelly, then of the city of Oswego, State of New York, as a member of the defendant, and thereupon issued to her a certificate or policy of membership therein ; that thereupon the said Honorah Kelly became and was a member of the defendant in good standing ; that in and by said certificate or policy of membership and the contract between said Honorah Kelly and the defendant', the defendant insured the life of said Honorah Kelly in the sum of $1,000, for the benefit of Mary Kelly, daughter of said Honorah Kelly, and thereby agreed that within ninety days after approval of proofs by the executive committee of the defendant of the death of said Honorah Kelly, tbe defendant would pay to said Mary Kelly the sum of $1,000 from the mortuary or benefit fund of the defendant at the time of said death, or from any moneys that should be realized to the said fund from the next premium due from ■ all the members .as in said certificate or policy of membership set forth, provided that the amount due should not exceed the product of one premium payment upon policies in force at the time of said death.” The answer admitted all of the allegations quoted.
    The complaint further alleged that on the 26th day of February, 1891, Honorah Kelly died in the city of Oswego; also that the policy provided that proofs of the death of said Honorah Kelly should be made upon the blank to be furnished by the defendant, and “ after the death of said Honorah Kelly the said Mary Kelly duly applied to the defendant for the blank or blanks mentioned in said certificate or policy of membership for the purpose of making proof as required by said certificate or policy of said membership of the death of said Honorah Kelly; but the defendant declined and refused to furnish such or any blanks therefor, although the defendant was provided with such blanks, and it was the custom of the defendant, upon the death of any of its members, or of the person insured by defendant, to deliver such blanks to or for the beneficiary that proof of death might be made; that therefore and thereby the defendant waived the provisions of-said certificate or policy of membership requiring proofs of the death of said Honorah Kelly to be furnished.” The complaint further alleged that the mortuary or benefit fund of the defendant, at the time of the death of said Honorah Kelly, “ amounted to and was upwards of the sum of $1,000 ; ” and that the defendant has refused to pay the $1,000 due and payable on said certificate or policy of membership, as aforesaid. The complaint further alleged that “ after the claim upon said certificate or policy of membership matured and became vested in said Mary Kelly, as hereinbefore stated, she, for a good and valuable consideration to her duly paid, duly sold, assigned, transferred, conveyed and set over, by an instrument in writing, to this plaintiff her claim, demand and cause of action against the defendant above stated and set out, and this plaintiff thereupon became and now is the owner and holder of the claim under said certificate or policy of membership issued by the defendant, as aforesaid, for $1,000.”

      The defendant in its answer admitted “ that the mortuary and beiiefit fund of the defendant, at the time of the death of said Honorah Kelly, amounted to and was upwards of the sum of $1,000.” * * * And the “ defendant admits that the moneys realized to the said mortuary and benefit fund from the next premiums due after said alleged death on all the members, as in said policy or certificate of membership set forth, whose policies were in force at the time of said alleged death, exceeded the sum of $1,000.” The answer of the defendant also “ admits that it absolutely refused and still refuses to pay the $1,000 named in said policy.” By way of defense the answer alleges that the action was prematurely brought; that no notice was given of the assignment or demand made by the assignee, and that the policy was null and void at the time of the death of Honorah Kelly “ by reason of her failure and that of her beneficiary, or anyone on her or their behalf, to pay the premium which had become due and payable on the 3d day of December, 1890.” Upon the trial proof was given that Honorah Kelly died February 26, 1891; that on .the 11th day of March, 1891, Mary Kelly, her daughter and beneficiary named in the policy, addressed a letter to the defendant in the following words :
    « Mr. Bapph Habdh : “ 0swsao’ Maroh n> I891'
    “ Dear Sir. — Please send me blank proofs of loss on policy 5021, H. Kelley, who died February 26th.
    “ Respectfully yours,
    ‘•MARY KELLEY,
    “Beneficiary.”
    To that letter she received a reply in the following language:
    “ The Life Union. No. 234 Broadway, NewYork. j New York, March 12, 1891. j
    “ Miss Mary Kelly, Oswego, JLf. 7.:

    “Madam. — I have your favor of yesterday, asking for proofs of loss on policy 5021 on life of Mrs. Honnah Kelly. In reply I would state that the last payment made on this policy was September 15th, 1890, and the premium due November 3d, 1890, was not paid. I sent out two notices to this effect asking payment, neither of which were replied to. The policy, therefore, became null and void, and ceased to be in force on November 4th, 1890.
    “ Respectfully yours,
    “ RALPH MARDEN,
    “ Secretary.”
    Proof was also given that the beneficiary, Mary Kelley, on the twenty-first of March, assigned to the plaintiff all and every claim, .and “ all moneys to which I am entitled under and by virtue of a policy of membership issued to and upon the life of Ilonorah Kelly, now deceased, by the Life Union of the city of New York,” by a written assignment wfiich was acknowledged on the 21st of March, 1891. Plaintiff put the policy in evidence bearing date December •3, 1888, issued by the defendant. Among the provisions in the policy was the following: “ Within ninety days after approval of proofs, by the executive committee of the Union, of the death of the .above-named member, if occurring during the continuance of this policy in full force and effect, upon the following conditions, there shall be payable to Mary Kelly, daughter, of Oswego, State of New York, if living at the time of said death, * * * the sum of $1,000 from the mortuary and benefit fund of the Union, at the time of said death, or from any moneys that shall be realized to the said fund from the next premium due on all the members as hereinafter set forth, it being understood and agreed that the amount due shall riot exceed the product of one premium payment on policies in force at time of said death.” Another provision in said policy was as follows : ‘‘ The proofs of loss by which this contract matures must be furnished to the Life Union within six months after death •occurs, and must contain full and true answers, under oath, to all questions asked by the company relating to the life, health and death of the deceased member, and the said proofs must be completed upon the blanks furnished by the Union.”
    At the close of the plaintiff’s evidence the defendant moved to dismiss the complaint and to nonsuit the plaintiff upon several grounds. The nonsuit was granted apparently upon the ground “ that this action is prematurely brought,” and exception was taken by the plaintiff.

      S. M. lindsley, for the appellant.

      W. H. Lato, for the respondent.
   Hardin, P. J.:

Under the allegations of the complaint and admissions thereof by the defendant, it must be assumed that it is incorporated under, and governed by chapter 175 of the Laws of 1883, and is “engaged in the business of life insurance upon the co-operative or assessment plan.” The defendant issued its policy or certificate of membership to Honorah Kelly, and she thereby became a member of the defendant, and was insured in the sum of $1,000 for the benefit of her daughter, Mary Kelly, which sum the defendant agreed to pay, in. case of the death of the assured, from its mortuary or benefit fund,, or from any moneys that should be realized to said fund from the next premium or assessment due from all the members. It appears-to have been admitted upon the trial that, at the time of the death of Honorah Kelly, the mortuary fund amounted to upwards of $1,000. The production of the certificate of membership established. frima facie Honorah Kelly’s standing as a member of defendant’s association, and cast the burden of j^'oof upon the defendant to show such facts and circumstances as should indicate that she had lost such standing at the time of her death. (Demings v. Supreme Lodge K. of P., 60 Hun, 353; Supreme Lodge v. Johnson, 78 Ind., 111.) The complaint contained an allegation that “said Honorah Kelly became and was a member of the defendant in good standing.” That allegation was admitted expressly by the answer of' the defendant, and must, therefore, be taken as true for all purposes, of the action. (Code, § 522; Quinby v. Carhart, 30 N. E. Rep., 973.)

(2.) After the refusal by the company to furnish blanks, Mary Kelly had an undoubted right to assign any cause of action which she had against the defendant; nothing in the policy prohibited such assignment. (Cook on Life Ins., § 72, p. 118; Mut. Benefit Assn. v. Rolfe, 76 Mich., 146.)

(3.) Under the policy, presumptively, it was the duty of the beneficiary to furnish “ proofs of loss * * * within six months after' death occurs,” and by a provision in the policy such “ proofs must be completed upon the blanks furnished by the Union.” "With a view of carrying forward that duty, the beneficiary applied by letter written on the eleventh of March, and sent to the defendant for “ blank proofs of loss on policy 5021, H. Kelley.” That application seems to have been received by the defendant, considered, acted. upon and a refusal made to furnish the blanks; and the position taken by the company in its refusal was, that “ the policy, therefore, became null and void and ceased to be in force on November 4th, 1890.” After the beneficiary received such notice of such refusal she was entitled to assume that the company would furnish no blanks to her upon which proofs could be made, and that proofs would be unavailing, and that the company absolutely refused to pay.

In section 469, May on Insurance, it is said: “A distinct denial of liability and refusal to pay on the ground that there is no liability' is a waiver of the condition requiring jproofs of the loss. It is equivalent to a declaration that they will not pay, though the proof be furnished; and to require the presentation of proof in such a case, when it can be of no importance to either party, and the conduct of the party in favor of whom the stipulation is made has rendered it practically superfluous, is but an idle formality, the observance of which the law will not sustain. * * * And, of course, the waiver of the proof is a waiver of the condition that payment is not to be made till a limited time after the proof; so that, in such case, suit may be. brought at once upon the denial of liability, although the time within which, after proof of loss, the payment would be demandable may not have expired.” The author cites for the doctrine just stated, Norwich and New York Transportation Company v Western Massachusetts Insurance Company (34 Conn., 561). (See Citizens’ Co. v. Boisvert, 11 Que. L. R., 337.)

The learned- counsel for the respondent calls attention to the case of McConnell v. The Iowa Mutual Aid Association (79 Iowa, 757). The language of the policy in that case differs somewhat from the language of the policy at bar. We think- that case does not overrule the doctrine we have taken from the writers on insurance. We think the language of the court in the case reported, Norwich and New York Transportation Company v. The Western Massachusetts Insurance Company (34 Conn., 561), is appropriate to the case before us and pertinent to the question under consideration. In speaking of a clause in the policy in that case, somewhat similar to the-one before us, Shipman, J., said: “This clause was for the protection or convenience of the underwriters, and when they waived the preliminary proofs they also waived the benefit of this stipulation and rendered it nugatory. It would be absurd to say that they still retained the right to have sixty days within which to pay a loss, which they had declared they would not pay at any time nor under any circumstances.” This doctrine finds countenance in the following cases: Columbian Insurance Company v. Catlett (12 Wheat., 392); Allgree v. The Maryland Insurance Company (6 Har. & Johns., 408); Phillips v. Protection Insurance Company (14 Mo., 220); Williamsbirg City Fire Insurance Company v. Cary (83 Ill., 453); Ætna Insurance Company v. Maguire (51 id., 342); California Insurance Company v. Gracey (15 Col., 70); Travelers' Insurance Company v. Harvey (82 Va., 949). (See, also, Cooper v. U. S. Mut. Accident Association, 57 Hun, 407.)

We think the evidence produced by the plaintiff warrants the conclusion that the defendant absolutely refused to furnish blanks upon which proofs of loss could be made, and that the defendant intended to convey to the beneficiary the idea that proofs of loss would be useless and unavailing, and to take the position that the company absolutely refused to recognize the policy issued by it to Honorah Kelly, and to declare that the same was null and void, and that the beneficiary had no claim upon the defendant. Under such circumstances, we think the defendant was not entitled to delay the plaintiff in the assertion of her claim by suit upon her supposed cause of action against the defendant.

We are, therefore, of the opinion that the nonsuit ought not to be sustained upon the ground suggested at the circuit. We think a new trial should be granted.

Martin, J., concurred; Merwin, J., not sitting.

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


text:
    HEBRON HARRIS, Appellant, v. ALFRED F. CLARK, Respondent.

      Justice’s Oowrt — action on a justice’s judgment which has been docketed in the county clerlás office.

    The Code of Civil Procedure (§ 2862, sub. 6) confers upon justices of the peace jurisdiction of an action “upon a judgment rendered in a court of a justice of the peace, * * * being a court not of record.” Section 3017 of said Code provides for docketing a transcript of such a judgment, and states that “ thenceforth the judgment is deemed a judgment of the County Court of that county and must be enforced accordingly.” Section 1913 of said Code makes it necessary to obtain leave of the court to bring an action upon a “ judgment for a sum of money rendered in a court of record of this State ”
    Hebron Harris brought an action in a Justice’s Court against Alfred F. Clark upon a judgment obtained by him against Clark in a Justice’s Court, on the trial of which action it appeared that the judgment had, by filing a transcript, been docketed in the county clerk’s office.

      Held, that the action was proper.
    That the fact that the judgment was docketed in the county clerk’s office, and was thereafter to be deemed a judgment of the County Court, did not alter the fact that it was actually rendered in, and remained a judgment of, a Justice’s Court, a court not of record, thus bringing the action within the words of section 2862, subdivision 6.

      Hieffenbach v. Boch (112 N. Y., 621) followed.
    That section 1913, which was designed to prevent a multiplicity of suits and the accumulation of costs, applied only to courts of record, and that the same result was reached in Justice’s Court actions by section 3154 of the Code, which prevents further costs except in certain cases.
    Appeal by the plaintiff Hebron Harris from a judgment of the County Court of Onondaga county, entered in the cleric’s office of the county of Onondaga on the 5th day of November, 1891, reversing, with costs, a judgment in favor of the plaintiff for twenty-seven dollars and twenty cents, without costs, rendered by a justice of the peace.
    Upon the return of the summons “plaintiff complained on a judgment rendered by and before S. F. Belknap, J. P. * * * on the 23d day of June, 1891, for $27.02, damages and costs, in favor of plaintiff herein and against defendant herein, and asks judgment for $27.02, and interest, from June 23, 1891.” To that complaint the defendant filed an answer in the following language:
      “ Defendant for his answer alleges general denial, counter-claim and payment of $1.00 on the judgment set out as the cause of action in the complaint. Further, that a transcript of said judgment was. filed in the county clerk’s office of Onondaga county on or about the 13th day of July, 1891; that said judgment then became a judgment of the County Court, and for that reason plaintiff cannot maintain an action upon the judgment set out in the complaint.” Plaintiff offered in evidence the docket showing the recovery of the-judgment on the 23d day of June, 1891.” It is stated in the appeal book as follows: “ Conceded that a transcript of said judgment was filed in Onondaga county clerk’s office July 13th, 1891, at. 10.10 a. m.” No other evidence was given upon the trial. The justice, immediately, on the 5th day of August, 1891, rendered a. judgment for twenty-seven dollars and twenty cents damages, giving no costs to the plaintiff.

      Thomas Hogaño, for the appellant.

      GUI & Stillwell, for the respondent.
   Hardin, P. J.:

Section 2862 of the Code of Civil Procedure confers upon justices of the peace jurisdiction of civil actions enumerated, and subdivision 6 thereof is as follows: 6. An -action upon a judgment rendered in a court of a justice of the peace, or in a district court of the city of New York, or in a justice’s court of a city, being a court not of record.” Presumptively the plaintiff’s action upon a judgment, rendered in a court of a justice of the peace * * * being a court not of record,” was within the jurisdiction of the justice. Plaintiff was entitled to bring an. action upon such a judgment within six years from the time it was rendered. (Code Civ. Pro., § 382, sub. 7.) The language of subdivision 7 is as follows : An action upon a judgment or decree rendered in a court not of record.”'

In section 3017 it is provided that a justice of the peace, who renders a judgment, “ must, upon the application of the party in whose favor the judgment was rendered and payment of the fee therefor deliver to him a transcript of the judgment. The county clerk of the county in which the judgment was rendered must, upon the presentation of the transcript and payment of the fee therefor, indorse thereupon the date of its receipt, file it in his office and docket the judgment as of the time of the receipt of the transcript, in the book kept by him for that purpose. * * * Thenceforth the judgment is deemed a judgment of the County Court of that county and must.be enforced accordingly.” •

In Dieffenbach v. Roch (112 N. Y., 621), construction was given to section 3017, section 382 and section 1913 of the Code, and it was held, “Although under the Code of Civil Procedure (§ 3017), upon the docketing of a justice’s judgment in the county clerk’s office, it becomes a statutory judgment of the County Court, it is not a judgment ‘ rendered ’ in that court, but remains ‘ a judgment rendered in a court not of record,’ within the meaning of the provision of said Code (§ 382), declaring that an action upon such a judgment must be commenced within six years after a £ final judgment was rendered.’ ” In the course of the opinion it was said: ‘After a justice’s judgment has been docketed in the county clerk’s office, it becomes a mere statutory judgment of the County Court. It is not, in fact, a judgment of that court. There has been no judicial action there, and no judgment has been, in fact, entered or rendered. It is simply to be deemed a judgment of that court. Such a judgment has not been twice rendered, once in the Justice’s Court and once in the County Court; and as it may be docketed in all the counties of the State, it certainly cannot be deemed to have been rendered in every county where it has been docketed.” The prohibition in section 1913 of the Code of Civil Procedure against “ an action upon a judgment for a sum of money rendered in a court of record of the State ” does not, in terms, relate to a judgment rendered in a Justice’s Court. It is insisted in behalf of the respondent, that because a transcript was filed in the clerk’s office that the action was upon a judgment “ rendered in a court of record of the State,” to wit, the County Court of Onondaga county. "We think the reasoning and logic used in Dieffenbach v. Roch (supra), are adverse to the contention of the respondent. The cases to which he refers us of Lyon v. Manly (10 Abb., 337), and Baldwin v. Roberts (30 Hun, 163), were decided prior to the Dieffenbach case.

Section 3017 differs from section 71 of the Code of 1849, referred to in Lyon v. Manly (32 Barb., 53; S. C., 10 Abb., 337)

Iii the act of 1849 it is provided in the section that upon filing and docketing, it “ shall be a judgment of the County Court.”

In section 3011 the provision is, after providing for the docketing of the judgment, as follows: “ Thenceforth the judgment is deemed a judgment of the County Court of that county, and must be enforced accordingly.”

Baldwin v. Roberts (30 Hun, 163), seems to have followed Lyon t. Manly (supra).

In Church v. Van Buren (55 How., 489) it was said that the object of the restriction in section II, and the same may be said of the restriction in section 1913, “ was to prevent a multiplicity of .suits and accumulation of costs. The statute was aimed at the evil practice and designed to cut it off and prevent it.”

It seems the same object is obtained by the restriction in section 3154 of the Code of Civil Procedure in respect to actions upon a justice’s judgment, as that section provides that if such an action shall be brought “within five years after the rendition thereof against a defendant, upon whom the summons was personally served, no costs can be recovered, except,” etc.

Our conclusion is that, as the plaintiff’s judgment upon which lie recovered was not “ rendered in a court of record of the State,” the restriction in section 1913 of the Code does not apply.

Following the views expressed, the judgment of the County Court reversing the justice’s judgment must be reversed and the judgment of the Justice’s Court affirmed, with costs.

MaetiN and MeewiN, JJ., concurred.

Judgment of the County Court reversed and the judgment of the justice affirmed, with costs.


text:
    MARCUS BROUNSTEIN, Respondent, v. DAVID A. SAHLEIN and Others, Appellants.

      Malicious prosecution — maintainable for a taking of goods by replevin — am, involuntary discontinuance of an action is not evidence of a want of probable cause.

    David A. Sahlein and others, who are the same persons named as defendants in the present action, brought an action in replevin, in December, 1882, against the present plaintiff Marcus Brounstein -to recover the possession of certain goods upon the ground of fraud, and took possession by the sheriff of a part of the goods. One of two other actions, brought by other creditors of Brounstein upon a similar theory and state of facts, was subsequently decided in Brounstein’s favor. Thereupon Sahlein and the others discontinued their actions under a stipulation which, in terms, permitted Brounstein to enter judgment dismissing the complaint upon the merits, and adjudging that the title to the disputed property was still in him, it having been understood between the attorneys that all the cases should abide the decision in one case.
    In 1887 Brounstein brought and subsequently recovered judgment in the present action against Sahlein and others for malicious prosecution, basing it upon the replevin action and the taking of his goods therein.
    Upon an appeal by the defendants:

      Held, that as it appeared that Brounstein’s property was interfered with, and his business largely injured by the replevin action, he could maintain an action for malicious prosecution.
    That an arrest and holding to bail in the action alleged to be malicious were not indispensably necessary to the maintenance of an action for the recovery of damages for such malicious prosecution.
    That, under the circumstances, the discontinuance of the action of Sahlein and others against Brounstein was not a voluntary act upon the part of Sahlein, and that, therefore, it was error for the court to charge that such discontinuance -whs prima facie evidence of a want of probable cause.
    Appeal by the defendants, David A. Salilein, Leopold ’Wilczinski and Maurice D. Salilein, from a judgment of tlie Supreme Court, entered in tbe office of tlie clerk of the county of Onondaga on the 14th day of March, 1891, upon a verdict in favor of the plaintiff for $3,000; and also from an order of said court, entered in said clerk’s office on the 11th day of March, 1891, denying a motion for a new trial after a trial at the Onondaga Circuit before the court and a jury.

      W. G. Tracy, for the appellants.

      Louis Marshall, for the respondent.
   Merwin, J.:

On or about December 4, 1882, the defendants in this action brought an action in replevin against the plaintiff herein to recover the possession of goods to the amount of about one thousand four hundred dollars, which had been, a short time previous, purchased by Brounstein of these defendants or their assignors, Levinson & Co. The purchases by Brounstein were on time that had not expired, and the theory of the replevin action was that the purchases were fraudulent so that the defendants had a right to rescind the sale and recover the property itself. A portion of the property was taken from Brounstein by the sheriff upon the process issued. Two similar actions were previously brought by other creditors against Brounstein. One of the latter was afterwards brought to trial and resulted in a verdict in favor of Brounstein. Thereupon the action of Salilien against Brounstein was discontinued. Soon after that the present action was brought. The plaintiff claims that the action in replevin was brought without probable cause and from malice, and the verdict of the jury is to that effect.

At the outset the appellants claim that an action for malicious prosecution cannot be maintained for the bringing of a civil action in replevin and the taking of goods therein. No case in this State is cited to sustain the proposition. On the contrary, it was long ago held in Pangburn v. Bull (1 Wend., 345), that an arrest and holding to bail are not indispensably necessary to the maintenance of an action for a malicious prosecution. In Bump v. Betts (19 Wend., 421), it is said by NelsoN, Oh. J., that the action lies against any person who maliciously and without probable cause prosecutes another, whereby the party prosecuted sustains an injury either in person, property or reputation. (See, also, Dempsey v. Lepp, 52 How. Pr., 11; Lawton v. Green, 64 N. Y., 331; Shafer v Loucks, 58 Barb., 426; Whipple v. Fuller, 11 Conn., 582; Closson v. Staples, 42 Vt., 209; 14 Am. and Eng. Encyc., 34.) In the present case not only was the property of the plaintiff interfered with, but his business was largely injured, and, if the plaintiff is correct upon the facts, the process of the court was improperly used by the defendants to his great damage. We think the action is maintainable so far as the form is concerned.

It is further claimed by the appellants that the court erred to their injury in its charge as to the effect of the discontinuance of the replevin action. The appellants asked the court to charge: “ That the discontimiance of the replevin action brought by the -defendants does not, under the circumstances of this case, constitute a want of probable cause.” To this the court replied: “ I decline to charge in that form, but I do charge it, adding these words, * but is prima, facie evidence of such want.’ ” Exception was duly taken. The judgment of discontinuance was entered upon a stipulation signed by the attorneys of both parties, which, after reciting the commencement of the action and the joining of issue, proceeded as follows : “And the plaintiffs being desirous of discontinuing the -same, it is hereby stipulated that the defendant may, upon filing this stipulation upon said discontinuance, enter judgment against the above-named plaintiffs, without further application to the court, in his favor, dismissing the plaintiffs’ complaint herein upon the merits, and adjudging that the title of the property involved in this action was, on the 4th day of December, 1882, and still is, in the defendant,” and the terms of the judgment, including the damages and costs, were provided for. It appears from the record before us, without dispute, that this stipulation was made after a trial and verdict for Brounstein in one of the cases, and in pursuance of an understanding between the attorneys of the respective parties that ripon the trial of one of the cases the others should abide the event. The issues involved in each were the same. So that, practically, the trial of one was the trial of the whole. In this view the discontinuance was not a voluntary one within the rule laid down in Burhans v. Sanford (19 Wend., 417). An acquittal is not prima facie evidence of want of probable cause (Scott v. Simpson, 1 Sandf., 601), nor is a neglect to prosecute (Gorton v. De Angelis, 6 Wend., 418). We think it should not have been held that, under the circumstances of this case, the discontinuance was primeo faeie evidence of want of probable cause. The error in that regard is of sufficient materiality to call for a new trial.

The appellants also claim that the court erred in declining to charge as they requested in regard to the effect of advice of counsel, and they refer to some cases which, as they claim, sustain their position. The rule laid down in Hazzard v. Flury (120 N. Y., 227) seems to throw some doubt upon the correctness of appellant’s position. It is not, however, necessary here to pass upon that and some other questions that are presented, as upon a new trial a different-situation may appear.

HaebiN, P. J., and Marten, J., concurred.

Judgment and order reversed upon the exceptions and a new trial ordered, with costs to abide the event.


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    DAVID COLLIN and Another, as Executors of ASEL WILCOX, Deceased, Respondents, v. ASEL WILCOX and Others, Appellants, Impleaded with Others, Defendants.

      Legacies — deferred in payment until final distribution, but cha/rged on the estate generally— a new security, taken by executors and set apart to pay the legacies, does not exonerate the residue of the estate.

    Asel Wilcox died in 1867, leaving a will wliicli was proved in that year, and two-sons, Franklin and Asel F., and also three daughters. He directed by his will that the debts and specific legacies should be first paid out of his real and personal estate, and authorized his executors to sell and convey his real estate and to invest the avails in bond and mortgage. He gave to Asel, son of his son Franklin, $1,000, to be paid him at majority, with interest, from one year after the death of the testator; and also provided that if his son Franklin should have any other son or sons, or if his son Asel F. should have any son or sons before a final distribution of the property, then he gave to each grandson $1,000, to' be paid to him at majority, without interest. By the tenth clause the testator devised the residue of his estate to his five children equally, the daughters, however, to have only a life estate in their shares, with remainder to their children.
    Asel F. Wilcox, who was sole managing executor, accounted in 1878 and in 1877, and on both occasions large sums were found in his hands, which he was directed to hold, among other things, for the benefit of children of Asel F. and Franklin Wilcox, who had been born in the meantime.
    In December, 1878, Asel F. Wilcox executed a bond to himself and the other executors to secure the shares of six grandchildren entitled to legacies under the will, and as collateral thereto gave a chattel mortgage, and as additional security gave a real estate mortgage for a part of the debt. The Special Term found that in taking this bond and the mortgages the executors “ intended to, and did thereby, sequestrate and set apart from the principal of said estate the sum of $7,847.55 as a fund for the payment of the legacies” to the grandsons.
    At this time Asel F. was solvent and the mortgaged property was sufficient in value to pay the legacies, but in 1879 Asel F. became insolvent.

      In 1888 an action was brought for the construction of the will, on the trial of which it appeared that the property described above as sequestrated, and set apart to pay the legacies, was insufficient for that purpose, but that there were in the hands of the executors, excluding securities set apart to the daughters, moneys, and real estate unappropriated by the executors to any specific purpose. The personal property, however, was not sufficient to make the shares of the; daughters of Asel Wilcox equal to those of the sons.

      Held, that the power to sell the real estate amounted, under the circumstances, to a direction to sell it, and that it must, therefore, be treated as personal property.
    That the legacies to the grandsons were by the will charged upon the estate.generally.
    That the act of the executors in taking from Asel F. Wilcox his bond and the mortgages was improper as regarded the security taken.
    That it had not the effect to exonerate the rest of the estate from the lien of the legacies, it having been done without the consent of the legatees and without any authority from the court, neither of the surrogate’s decrees having set apart a particular fund for their payment.
    That the grandchildren, as legatees, had a right to reach the general funds remaining in the hands of the executors, although this would result in a loss to the-residuary legatees.
    Appeal by tlie defendants, A. Foster Wilcox, Lincoln Wilcox,. Boscoe Wilcox, Balph Wilcox and Willard T. Wilcox, and eacli of them, from so much of a judgment of the Supreme Court, entered, after a trial by the court, in the clerk’s office of the county of Onondaga on the 18th day of August, 1891, as is hereinafter specified.

      First. Said defendants appeal from so much of the third subdivision of said judgment as determines that the amount of the legacy to Grant Wilcox should be held generally by the executors as security for Asel F. Wilcox’s judgment or debt; said defendants claiming that such legacy should enure to their benefit to the amount of their several legacies.

      Second. Said defendants appeal from so much of said judgment as is contained in the fifth subdivision thereof, and each and every part thereof, namely:
    5. That “ the bond and mortgage dated December 16,1878, mentioned in the thirteenth and fourteenth findings of fact, and the sum of $7,347.55 secured thereby became, by the action of the executors with respect thereto, a fund for the payment of legacies, to grandsons, given by the ninth subdivision of said will, all amounts received by said executors to apply upon, or realized from said bond and mortgages, should be held and retained by them as a fund to pay said legacies; and the interest or income hereafter derived therefrom should' be retained for the same purpose, if necessary, to make good losses or deficiency of any kind in said fund. If the amounts so received and realized be sufficient, the legacies to the six sons of Asel F. Wilcox should be paid in full as they respectively fall due; if not sufficient, such legacies should absáepro rata and be paid pro rata from said fund. The deficiency, if any, cannot be made good out of the general estate.” It is hereby so adjudged and decreed and judgment is hereby entered in accordance therewith and the aforesaid thirteenth and fourteenth findings of fact, as thereinbefore stated.

      Third. Said defendants specially appeal from that part of said judgment contained in the fifth subdivision thereof which reads as follows: “ If not sufficient such legacy should abate pro rata, and be paid pro rata, from said fund. The deficiency, if any, cannot be made good out of the general estate.”
    And also an appeal by the defendants, Asel Wilcox and Isabella Wilcox, his wife; Henry Wilcox and Bessie Wilcox, his wife; and Henry H. Case, as administrator of Franklin Wilcox, deceased, from the following portions of a judgment of the Supreme Court} entered, after a trial by the court at the Onondaga Special Term, in the office of the clerk of the county of Onondaga on the 18th day of August, 1891, namely, from paragraphs: —
    1. That, in the absence of a “final distribution” of the property of Asel Wilcox, deceased, as found in the ninth finding of fact, each of the six sons of the defendant Asel F. Wilcox took at his birth a vested right in a legacy of $1,000, payable, without interest, at his attaining the age of twenty-one years, under the ninth subdivision of said will, it is hereby so adjudged and decreed, and judgment hereby ordered and entered in accordance therewith.
    6. That “ the plaintiffs, as acting executors by said will, with the co-operation of their co-executor, Asel F. Wilcox, whenever such co-operation is necessary, should proceed at once to sell the lands at Sodus Bay, hereinbefore mentioned, and any other lands belonging to the testator, Asel F. Wilcox, at the time of his death and not heretofore disposed of; and to convert into money whatever of said estate remains in their hands, and from the proceeds make such payments as will secure equality between the residuary legatees mentioned in the tenth subdivision of said will, as required by said will; if unable to secure such equality without further instruction from the com-t they should make a full accounting of all their transactions with respect to said estate since October 8, 1877; and all receipts and disbursements on account of said estate, and all money, securities and property of every kind belonging to said estate, and remaining in their hands or under their control, and take the direction of the court as to the final settlement of said estate, and final distribution of the property belonging thereto.” It is hereby so adjudged and decreed, and judgment is hereby ordered and entered in accordance therewith.
    7. That “ the securities set apart and held in trust for the three daughters of the deceased testator and for their children, as found in the twenty-seventh finding of facts, are the property of the said daughters and their children, and should be charged to them as payments made on account of the residuary legacies given to them by said will, the daughters having, respectively, life estates therein, with remainder absolute to their children as provided in said will.” It is hereby so adjudged and' decreed, and judgment is hereby ordered and entered in accordance therewith.
    8. That, “should any of the.daughters of the testator with their •children desire to withdraw from the hands of the executors the securities held in trust for them, or should any of the said daughters and their children desire to divide the life interest and remainder interest in said residuary legacies, and the securities held on account thereof, the decree to be entered hereon may provide for the entry, upon proper notice to the parties in interest, of an order or decree, or orders and decrees supplementary hereto, providing for such withdrawal upon the giving satisfactory security to such children that they should receive at the proper time their respective shares of the principal of said securities, or for such division in such manner as may be just and equitable, or for both such withdrawal and division.” It is hereby so adjudged and decreed, and judgment is hereby ordered and entered in accordance therewith; and any such supplementary order or decree may be had and entered as aforesaid provided.
    9. That “ the suit mentioned in the thirty-first finding of facts is not a bar to the maintenance of this action.” It is hereby SO' adjudged and decreed, and judgment is hereby ordered and entered in accordance therewith.
    The action was brought in 1888 to obtain a construction of the will of Asel Wilcox, and the directions to the plaintiffs as to the administration of the estate.

      Iyman <& James, for the appellants.

      N. S. Gha/pman and W. S. Andrews, for the respondents.
   Merwin, J.:

On the 5th of June, 1867, Asel Wilcox, of Manlius, in Onondaga county, died, leaving a will and codidil which were duly proved on June 27, 1867. He left two sons, Franklin and Asel F., and three daughters. By the ninth clause of the will he gave to his grandson Asel, the son of his son Franklin, $1,000, to be paid to him upon his arrival at the age of twenty-one years, with interest from one year after his death, and he also provided that “ if he, said Franklin, shall have any other son or sons, or my son, Asel F., shall have any son or sons, lawful heirs, before a final distribution of my.property, I give and bequeath unto each such grandson the sum of one thousand dollars, to be paid him, without interest, on arriving at the age of twenty-one years.” By the tenth clause, he gave and devised all the rest and residue of his estate, real and personal, to his five children, to be divided equally between them, the daughters to have only a life estate, with remainder over to the children of each. By a prior provision he directed that his debts and the specific legacies thereinafter named should be first paid out of his personal and real estate. The executors were authorized to sell and convey any part or all of his real estate, and invest the avails on good landed security by bond and mortgage, but they should not be compelled to sell any of the real estate under five years, nor his Sodus Bay estate under ten years from his death.

The appellants upon this appeal are the five sons of Asel F. Wilcox, and the questions here relate to the remedy they have for the collection of their legacies. One was of age when this action was commenced, one has since become of age, and the others are still minors. •

The executors named in the codicil were the plaintiffs and Asel F. Wilcox. The testator provided that the latter should have chief ■charge of the estate. On the 8th of August, 1873, an accounting was commenced before the surrogate of Onondaga county by Asel F. Wilcox, as sole managing executor, of his acts and transactions to that date. This accounting was continued from time to time to June 25, 1877, when a decree was made as of August 8, 1873, .stating and allowing the accounts of the executor to that date. By this decree it appears'that there was then in the hands of the executor, after crediting him with all payments made, the sum of '$51,636.43. Certain payments to Franklin Wilcox upon his share were authorized, and the executor was also authorized to retain certain sums on his own.share. He was directed to retain and hold in trust such sum of his own share as shall be necessary to pay one-fifth part of all the legacies to the grandsons of the testator born before the final distribution of the estate, and also to retain and hold in trust so much of the share of Franklin as may be necessary to pay one-fifth of all said legacies. He was directed “to pay the ■several legacies of $1,000 each to said grandsons out of the principal ■of the estate as such grandsons shall respectively arrive at the age of twenty-one years,” and it was provided that in case of diminution of the principal of the estate by the payment of any of those legacies, each share would bear and contribute one-fifth of such ■diminution. He was also directed to keep such sums as may, from time to time, belong to the respective shares of the daughters •“ securely invested, paying over the net income to them, respectively, annually during. their natural lives, and to finally distribute to the children of each daughter of the testator the principal money belonging to such share, the same being one equal fifth part of the residuum of the estate after paying the specific and general legacies provided in said will.” Special provision was made in the decree for the payment of the legacy to Asel C. Wilcox, the oldest grandson.

On the 23d of July, 1877, a second accounting was commenced before the surrogate concerning the acts and transactions of said executor from August 8, 1873. A decree was entered on October 8,1877, stating and allowing the account to the time of such accounting. At this time there was in the hands of said executor, in cash and securities belonging to the estate, including the sum of $2,060.89' of Franklin Wilcox’s share and the same amount of the share of the executor set apart and reserved by the executor for the payment of the grandsons’ legacies, the sum of $31,057.55. By the decree-above referred to it was directed “ that the above sums, amounting to $31,057.55, be held in trust for the purposes mentioned in said will, as adjudged in said former decree in this matter; and that-annually or oftener the net income thereof be paid to the persons, entitled to the same according to the provisions of said will.”

At the time of the second accounting there was found to be and: was in the hands, of Asel F. Wilcox, the managing executor, the-sum of $7,347.55, which was uninvested and unsecured, and was a part of the principal of the estate. On the 16th of December, 1878,. Asel F., for the purpose of securing the payment of this sum and interest, executed to all the executors, being said Asel and the-' plaintiffs, his bond, conditioned for the payment of $1,000 of the-principal to each of the grandsons entitled to a legacy of that amount or their representatives, when such legacy should be payable, the-, balance to the other parties in interest. As collateral security for three-fifths of the amount a chattel mortgage was given, and for two-fifths a real estate mortgage, which was also to be collateral to the-chattel mortgage. It is found by the Special Term that the executors ■ in taking this bond and the mortgages, “intended to and did thereby sequestrate and set apart from the principal of said estate the said, sum of $7,347.55 as a fund for the payment of the legacies ”■ to the grandsons. Asel F. was then solvent and the property covered by the mortgages was then of value sufficient to furnish ample security for the payment of the legacies. At this time there were six grandsons, or their representatives, that would in the future be entitled, to legacies. Of these grandsons one was the son of Franklin Wilcox and five were the sons of Asel F. Wilcox. Thereafter and on December 6, 1879, another son, the appellant, Willard T. Wilcox, was born to said Asel F.

Since 1879 Asel F. has been insolvent and the executors are-unable to collect, upon said bond and mortgages, sufficient to pay the legacies in full. None of the legacies to the sons of Asel have been paid, except that the defendant A. Foster Wilcox has received a part of his share.

Asel F. Wilcox withdrew from, the active management of the estate in 1880 and turned over to the plaintiffs, his co-executors, all the property and securities of the estate, except the chattel mortgage Since then the plaintiffs have -set apart and held in trust for the shares of the daughters under the residuary clause, securities-belonging to the estate to certain amounts, but hot sufficient to mate the shares of the daughters equal to what the sons have received into the sum of $1,384.37 for each share. Aside from the property so set apart, there is in the hands of the executors and treated as unappropriated property about the sum of $2,000 of the personal estate, and also real estate undisposed of to the value of from four to five thousand dollars. Aside from the real estate, there is not enough to make the shares of the residuary legatees equal.

It seems to be conceded that the power to sell real estate was, by implication, a direction to sell. If so, there was an equitable conversion of the real estate into personalty, and this is to be borne in mind in construing the will.

I do not understand that the appellants make any claim upon the securities already set apart by.the plaintiffs to the shares of the daughters above referred to. The court below, in the seventh finding of law, found, as matter of law, that they were to be treated as payments to such shares, and to belong absolutely to the daughters and the remaindermen. This finding is not excepted to. The claim, therefore, of the appellants refers to this unappropriated personal property and the undisposed of real estate. • These items are understood to be amply sufficient to .provide for the deficiency of the legacies, but not enough for that deficiency, and also to make up the daughters’ shares equal to what the sons have received.

■ It was decided by the Special Term that the grandsons in the collection of their legacies were limited to the security furnished by the bond and mortgages of December 16, 1878, and that if enough could not be realized from them to pay the legacies in full, the deficiency could not be made good out of the general estate. Whether this conclusion of the Special Term is correct is the main question here.

By the will there was no provision for setting apart a fund for the payment of these legacies. They were made a charge generally upon the estate. Iirthe first decree there was a provision that these legacies, as they became clue, should be paid from the principal of the estate, and, when so paid, each share to be diminished accordingly. No fund was directed tobe set apart for that special purpose. The executor was directed to retain and hold in trust so much of his own share as would be necessary to pay one-fifth of the legacies, and a like amount from the share of his brother Franklin. The entire amount of the other shares he held, as the daughters were only entitled to the income. The second accounting shows that the executor had retained about two thousand dollars from his own share and the same from that of his brother. The decree. directed the whole fund to be held in trust for the purposes mentioned in the former decree. There was no setting apart of a fund for the legacies. There was no direction of the court as to the amount or kind of any investment for that purpose.

So that, for aught I see, the question whether the investment of December, 1878, is to have the effect that has been given to it depends upon whether the act of the executors in setting apart this fund is sufficient of itself to exonerate the balance of the estate from the charge which, coneededly, was upon it up to that time.

It is not found, nor does the evidence show, that the security taken was one in which, under the law, the executors would have had the right to invest a trust fund. That being so, the rule laid down in Leitch v. Wells (18 N. Y., 585) would be somewhat apjDlicable. It is there said that, in case a fixed sum is bequeathed to executors in trust to pay the income to one party, and at his death divide the principal among others, the executors cannot, without the consent of the beneficiary, or, in case they are infants, without an order of court, set apart and appropriate bank stocks to the satisfaction of the trust, and release the residue of the estate from its liability to perform the trust.

In 2 Williams on Executors (6 Am. ed., 1511), it is said: “ When a fund has been appropriated for the payment of an annuity given by will, a question may arise whether the legatee is to suffer the loss consequent on the partial failure of the fund. In cases where the annuity is a charge upon the whole personal estate, it seems clear that the executor cannot affect the legatee’s right to the entire annuity by any appropriation,” and many cases are referred to. If an estate shrinks, whether by devastavit of the executor or otherwise, the loss primarily falls upon the residuary legatee. (Baker v. Farmer, L. B., 3 Chan. App. Cases, 537; 2 Williams on Exrs., 1465; 13 Am. and Eng. Encyc. of Law, 132.)

We are of the opinion that the executors had no right to limit the lien of the legacies, and that their act in setting apart the bonds and mortgages did not exonerate the balance of the estate, and cannot be deemed the equivalent of a payment of the legacies. It follows that the appellants are right in their position that they can reach the general fund in the hands of the executors in preference to the •claims of the residuary legatees to apply the same to equalize the residuary payments.

It was apparently claimed by the jilaintiffs at the trial that the appellant Willard T. Wilcox was not entitled to a legacy upon the ground that upon the second accounting there was a final distribution of the property, and he was not born until December 6, 1879. The Special Term held to' the contrary, and no ajjpeal is before us from that part of the judgment. It is not necessary, therefore, to consider the question.

It follows that the judgment should be modified so as to allow the appellants payment in full of their legacies from any of the testator’s estate remaining in the executors’ hands, and not covered by the seventh finding of law. The appellants should also have costs of the action and of the appeal payable iron the estate.

Hardin, P. J., and Martin, J., concurred.

Judgment modified as stated in the opinion and as modified affirmed, with costs to the appellants of the appeal and of the action, payable out of the estate. Judgment to be settled before Merwin, J.