author: Barker, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HIRAM B. EVEREST and CHARLES M. EVEREST, Appellants.

      Indictment for a conspiracy — when held to contain but one count — Code of Criminal Procedure, secs. 275, 276—when unnecessu/ry statements will be regarded as surplusage — the unlawful agreement is the gist of the offense — allegations as to the different means adopted by the conspirators to acwmplish their object ■—• when the people are not required to pi'one all the allegations in the indictment.

    The appellants and three other persons were indicted and charged with a conspiracy to destroy the business and property of the Buffalo Lubricating Oil Company (Limited), and to prevent it from carrying on its business of producing, manufacturing, refining and selling petroleum oil and its products; and to destroy the machinery, buildings, property and products of the said corporation; and to destroy the credit of the company, and to wrongfully and unlawfully entice from the employment of the said corporate on its skilled workmen, and particularly one Miller; and to bribe and hire the said Miller to construct the works of the corporation so that they would not answer the purposes for which they were intended and could not be successfully operated, but would blow up and explode and destroy the stills and other apparatus while in operation; and to hire him to operate its works so that crude petroleum, which it should undertake to convert' into lubricating oil, should be converted into coke, tár and other articles of little value; and to hire Miller and other workmen to build unnecessarily hot fires in its furnaces and convert the oil in its stills into worthless inflammable and explosive gases which would explode and seriously impair the machinery and works of the company; and to institute and maintain suits at law and in equity which the defendants knew to be unfounded in merit, and to hire witnesses to falsely testify in such suits.
    The indictment also set forth several overt acts done and committed by the defendants, in pursuance of their said agreement, which were of the same nature and character as those above set forth, as the means by which the object of the conspiracy was to he accomplished.
    On their arraignment the defendants demurred to the indictment upon the grounds that more than one crime was charged in the indictment, within the meaning of sections 278 and 279 of the Code of Criminal Procedure, to wit: Conspiracy, arson, attempted arson and subornation of perjury; and also that the said crime was charged in the indictment to have been committed in a different manner and by different means, within the meaning of section 279 of the Code of Criminal Procedure, and for that reason the crimes should he charged in separate counts.

      Held, that the indictment contained but one count.
    That, discarding some of the words and paragraphs which might be treated as surplusage, it was, in form and arrangement of the facts stated, in full compliance with the general rules of criminal pleading as prescribed by the Code of Criminal Procedure (§§ 275, 276).
    Before setting forth any acts of the defendants, which were relied upon by the -prosecution as constituting the crimes charged, the indictment stated the nature and character of the business in which the defendants were interested, and the general aims and objects which they had in view in the management of their own business and the gains and profits they received therefrom, as well as those which they in the future hoped to realize, and also the nature and character of the business of the Buffalo Lubricating Company, where it was located, who were interested in the same as shareholders, for the purpose of disclosing the inducements and motives of the accused which moved them to make the unlawful combination charged upon them.

      Held, that although these statements were unnecessary in framing the indictment, and might have been omitted, yet, as the court was unable to see that they in any way misled the defendants, they might be regarded as surplusage.
    That it was, however, clearly competent for the people to prove upon the trial the facts thus alleged as hearing upon the question of the defendants’ guilt.
    That there was but one conspiracy charged and only one combination alleged, the other averments set forth in the indictment, preceding the statements, as to the overt acts done and committed by the defendants, being charged as the means agreed upon by the defendants by which to accomplish the purpose of the conspiracy.

      That one leading principle in the law relating to conspiracies is that the unlawful agreement constitutes the gist of the offense, and when the nature and object of the combination is properly charged in the indictment, the other allegations should be limited to the statement of the means adopted by the accused to carry out the conspiracy, and the overt acts committed by them, to effect the purpose intended.
    The counsel for the appellants contended that each statement in the indictment, as to the means agreed upon by the defendants to destroy the prosecutor’s business and property, was a separate and distinct conspiracy.

      Held, that, if this argument should prevail, it would subject the conspirators to as many separate indictments and trials as there were separate and distinct acts agreed upon by them to be done at the time of performing the conspiracy, as the means by which to accomplish the purpose intended.
    That, as the agreement is the gist of the offense, there cannot be but one trial and conviction where there is but one agreement, although the conspirators may have agreed upon a variety of means by which to accomplish their purpose.
    It was also contended by the appellant’s counsel that, as the indictment charged an indivisible crime, consisting of many elements which were unified by the form of the allegations, the prosecution could not succeed without proving all the elements set out as constituting the crime.

      Held, that this argument failed to recognize the legal principle already stated, that • the gist of the offense consisted in the agreement which constituted but a single act.
    That it is never necessary for the people to prove all the allegations in the indictment if those which are supported by the evidence constitutes the crime charged therein.

      Bork v. The People (91 N. Y., 13); People v. Davis (56 id., 95); O’Connell and others v. The Queen (11 Cl. & Finn., 155) followed.
    That it was unnecessary for the people to prove that the defendants, who were convicted, committed all the unlawful acts which they conspired to do, as if they did any one of them, their complete guilt was established.
    Appeal from a judgment of the Erie county Oyer and Terminer, entered in the office of the cleric of that county on May 8, 1888, imposing upon the defendants a fine of $250 on a verdict finding the defendants guilty of the crime of conspiracy.
    The indictment, as presented by the grand jury, was against the appellants and three other persons, and charged them with a conspiracy to destroy the business and property of the Buffalo Lubricating Oil Company, limited, a domestic corporation, and to prevent it from carrying on its business of producing, manufacturing, refining and selling petroleum oil and its products; and to destroy the machinery, buildings, property and products of the said corporation; and to destroy the credit of the company, and to wrongfully and unlawfully entice from the employment of the said corporation its skilled workmen, and particularly one Albert A. Miller, who was then in the employ of the said corporation; and to bribe and hire the said Albert A. Miller to construct the works of the said corporation so that they would not answer the purpose for which they were intended, and would be defective and could not be successfully operated; but would blow up and explode, and destroy the stills and other apparatus while in operation; and to hire the said Albert A. Miller, then in the employ of the said company, to so operate its works, so that the crude petroleum which it should undertake to refine and convert into lubricating oil should be converted into coke and tar, and other articles of little value, instead of lubricating and refined oils of great value; and to hire the said Albert A. Miller and other workmen of the said company, who might be in its employ, .to build unnecessary hot fires in its furnaces and thereby convert the oil in its stills into worthless, inflammable and explosive gases which would explode and seriously impair the machinery and works of said company; and to institute and maintain suits at law and in equity which the defendants knew to be unfounded in merit; and to falsely represent and state to all purchasers of and dealers in refined and lubricating oils that the said company had no right to manufacture the same and put the same upon the market; and to hire witnesses to falsely testify as witnesses in such suits. These charges are more fully set out in the indictment so as to indicate the nature and character of the means agreed upon by the defendants by which they were to accomplish their general purpose as first set forth in the complaint. The indictment also set forth several overt acts done and committed by the defendants in pursuance of their said agreement, which were of the same nature and character as the above set forth, as the means by which the object of the conspiracy was to be accomplished.
    All the defendants were arraigned and pleaded not guilty. The proof tended to show that a conspiracy was formed of the nature and character charged in the indictment, at Rochester, in this State, and, also, that the defendants convicted induced said Miller-, while in the employ of the company, purposely to mismanage the stills used in the process of distillation, so as to injure the same and lessen their value, and to make the process of refining crude petroleum a failure, resulting in a pecuniary loss to said company; and, also, induced the said Miller to leave the service of the said company. There was a failure of proof to show that the defendants conspired to do all and every one of the other things charged in the indictment as before mentioned, or to prove that they did all the other overt acts alleged in the indictment. On their arraignment the defendants demurred to the indictment, and, among the grounds stated, were the following: That more than one crime is charged in the indictment within the meaning of sections 278 and 279 of the Code of Criminal Procedure, to wit, conspiracy, arson, attempt at arson and subornation of perjury;. and, also, that the said crime is charged in the indictment to have been committed in a different manner and by different means, within the meaning of section 279 of the Code of Criminal Procedure, and for that reason the crime should be charged in separate counts; and, also, that the facts stated in the indictment do not constitute a crime. The demurrer was overruled and all of the defendants pleaded not guilty.

      Theodore Bacon, for the appellants.

      George T. Quinby, district attorney, for the people.
   Barker, J.:

The indictment contains but one count. After a careful analysis of the same, we think it is not subject to the appellants’ criticism that it charges more than one crime. Discarding some of the words and paragraphs, which may be treated as surplusage, it, is in form and arrangement of the facts stated, in full compliance with the general rules of criminal pleading, as prescribed by the Code of Criminal Procedure (§§ 275, 276). The indictment, in its first paragraph, charges the defendants with the crime of conspiracy: They were thus fully notified of the offense imputed to them and for which they were put upon trial. The value and importance to the accused of an exact statement in the indictment of the crime charged is manifest, and cannot be overestimated, as it relieves him of the necessity of making a critical examination of the indictment for the purpose of ascertaining the crime alleged against him and as to which he is called upon to make answer.

The form of an indictment, as set forth in section 276, which was approved by the legislature and recommended to the public prosecutor as a proper form to be observed and followed in preparing an indictment, begins : That a statement be made in the first clause of the name of the crime intended to be charged. The intention and purpose of the pleader in making the averments of fact, as set forth in this indictment, and which follow the general accusation, were made for the manifest purpose of stating the act or acts which constitute the offense previously charged and upon which the people rely to secure a conviction. The form and method of framing an indictment, as prescribed by the statute, is worthy of commendation for its simplicity and ready comprehension by allpersons who have a reasonable degree of intelligence, and should be adhered to by the pleader having charge of prosecution. Before setting fortl" any of the acts of the defendant which were relied upon by the prosecution as constituting the crime charged in the indictment, the indictment states the nature and character of the business in which the defendants were interested and the general aims and objects which they had in view in the management of their own business, and the gains and profits they receive therefrom, as well as those which they, in the future, hope to realize; and it also states the nature and character of the business of the Buffalo Lubricating Oil Company, where it was located, who are interested in the same as shareholders, for the purpose of disclosing the inducements and motives of the accused which moved them to make the unlawful combination charged upon them. These statements were, doubtless, unnecessary in framing the indictment and might have been omitted, but we are unable to see that they, in any way, misled the defendants, and may be regarded as surplusage. It was, however, clearly competent and pertinent for the people to prove the facts, as alleged, as bearing on the question of the defendants’ guilt.

There is but one conspiracy charged, only one combination is alleged. The other averments set forth in the indictment, preceding the statements as to the overt acts done and committed by the defendants, were charged as the means agreed upon by the defendants by which to accomplish the purpose of the conspiracy. If a conspiracy should be formed with one aim and object only, although the means agreed upon by the conspirators by which to accomplish the single purpose in view, were many and various in their character and, if carried out, would naturally tend to produce the result intended by their use, it seems very clear that an indictment setting forth such facts in their proper order in one count would charge but one offense. The successful accomplishment of the alleged conspiracy, by resort to the means set forth in the indictment, could not injure the business, property or estate of any corporation or person, except the Buffalo Lubricating Oil Company and its shareholders. It does not constitute a conspirary under our statutes for persons to combine together to commit a trespass upon or to destroy another’s property. That offense now consists, as defined by the statute, of a combination of two or more individuals to commit a crime, or to do some one of the other acts mentioned in section 168 of the Penal Code. (See, also, 2 B. S., m. p. 692.) One leading principle in the law relating to conspiracies is, that the unlawful agreement constitutes the gist of the offense; and when the nature and object of the combination is properly charged in the indictment, the other allegations, should be limited to a statement of the means adopted by the accused to carry out the conspiracy and the overt acts committed by them to effect the purpose intended. Where an indictment for a conspiracy does not show that the object of the conspiracy comes within the statutory definition of the crime, it should contain averments showing that the accused intended to accomplish the end aimed at by criminal means. (Lambert v. The People, 9 Cow., 578 ; Commonwealth v. Wallace, 16 Gray, 222; Daniel O'Connell amd Others v. The Queen, 11 Cl. & Finn., 155.)

The learned counsel, in support of his argument, contends that each statement in the indictment as to the means agreed upon by the defendants to destroy the prosecutor’s business and property is a separate and distinct conspiracy. The fallacy of this, argument is easily detected. If two of more persons shall conspire to destroy the separate property of A and B,by means which are criminal in themselves, and the destruction of A’s property might be accomplished by the use of some one or more, but not all, of the means agreed upon without causing any injury to the property of B, an indictment ■charging the accused with conspiracy to destroy the property of both A and B might be demurrable on the ground that it charges more than one crime; but such is not this case. If the argument should prevail, it would subject the conspirators to as many separate indictments and trials as there were separate and distinct acts agreed upon by them to .be done at the time of forming the conspiracy, as. the means by which to accomplish the purpose intended. The law does not expose the accused to any such consequences. As the agreement is the gist of the offense there cannot be but one trial and conviction where there is but one agreement, although the conspirators may have agreed upon a variety of means by which to accomplish their purpose. The indictment does not, by any fail-construction, charge but one conspiracy, that is, it alleges only one agreement, and all the other allegations and averments relate to the means, the way and the manner the conspiracy should be carried out, and setting forth the overt acts done by them in their efforts to accomplish the purpose of the combination. If these views are correct, all the other questions presented by the appellant have a ready solution by the application of the general rule applicable to the trial of any indictment which charges but one offense.

It is contended by the learned counsel for the appellants that, as the indictment charges an indivisible crime consisting of many elements which are unified by the form of the allegations, the prosecution cannot succeed without proving all the elements set out as constituting a crime. This argument fails to recognize the legal principle which has been already stated, that the gist of the offense consists in the agreement which constitutes but a single act. The conspiracy is complete when the combination is perfected. It is never necessary for the people to prove all the allegations in the indictment if those which are supported by the evidence constitute the,crime charged therein. If the crime is set out with false circumstances, they may be rejected as not necessary to be proved. Mr. Phillips says it is a “ universal principle, which runs through the whole of the criminal law, that it will be sufficient to prove so much of the indictment. as charges the defendant with a substantive crime; ” and illustrates the rule by saying “ that in an indictment for murder the malice is but a circumstance in aggravation, and may be rejected and the accused be convicted of manslaughter. (1 Phillips’ Ev. [7th London ed.], 202; People v. White, 22 Wend., 167; People v. Jackson, 3 Hill, 92.) The true rule is stated in Bork v. The People (91 N. Y., 13), viz.: “ Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant to have committed them all; and a conviction may be had on proof of the commission of any one of the things without proof of the commission of the others.” (See, also, People v. Davis, 56 N. Y., 95.) The learned counsel for the appellants cites, in support of his contention, the opinion of Lord Chief Justice Tindall in the case of O’Connell (supra), which was adopted by the house of lords, so far as he discussed the question now under consideration. After giving that case careful examination, I must be permitted to say that I think that the propositions of law affirmed in that case, so far as they are applicable, fully support the legal propositions already stated; and may be cited in support of the order overruling the demurrer and the rulings made on the trial of this indictment.

O’Connell and eight others were indicted for conspiracy and the indictment contained eleven counts. The legal questions discussed, so far as the same are pertinent 1 o this case, arose upon the first count, and for brevity the case may be examined as if the indictment contained but one count and that the first. In that count it was charged that the accused did combine, conspire, confederate and agree with each other, "x" * * to create discontent and disaffection among the queen’s subjects; and also to stir up jealousies, hatred and ill-will between different classes of her majesty’s subjects * * * and to excite discontent and disaffection among her majesty’s subjects serving in her majesty’s army; * * * and to cause and to procure and aid and assist in causing and procuring-divers subjects "x" * * unlawfully and seditiously to meet and assemble together at various times and at different places within Ireland, * "x" * and, further, to bring into hatred and disrepute the courts by law established in Ireland for the adminis, tration of justice and to diminish the confidence of her subjects in Ireland in the administration of the law therein, with the intent to induce her majesty’s subjects to withdraw the adjudication of their differences with and claims upon each other from the cognizance of said courts, by law established, and to submit the same to the judgment and determination of other tribunals to be constituted for that purpose. The court then went on to state at full length the various acts which were alleged as overt acts in support of the charge of conspiracy. One of the nine defendants died before the trial was moved; the others pleaded not guilty. By their verdict the jury found that all the defendants did conspire and agree to carry out a part of the unlawful schemes set out in the indictment, and charged therein, enumerating them; and as to the residue of the said indictment, they found Thomas Tierney not guilty." The jury also found the other seven of the conspirators were guilty of a part of the other charges set out in the indictment, and as to the remainder of the charges in the indictment, they found that four of these defendants were not guilty, and that three of the defendants were guilty of a part only of the remainder of the said charges. The house of lords summoned the judges to hear the arguments and to give their advice upon several legal propositions which were formulated by the lord chancellor. Lord Chief Justice Tindall and eight others attended. The legal questions submitted Avere in the form of questions; and among them was the following: Is there any, and if any, what defect in the findings of the jury upon the trial of said indictment; and if so, is there any sufficient ground for reversing the judgment, by reason of any defect in the indictment or of the findings of the jury upon said indictment ? Lord Tindall, in discussing this question, stated that all the judges agreed in the opinion that the findings of the jury upon the first count of the indictment were not supportable in law, upon the ground that the jury not only found the eight defendants to be guilty of a joint conspiracy charged in said count, but also found a certain number of the eight defendants to have been guilty of separate and distinct conspiracies under that count. The reason and the ground for his opinion is stated as follows : That as each count of the indictment charges one conspiracy or unlawful agreement, and no more than one, against all the defendants in such count, so the jury could find only one conspiracy or unlaivful agreement on each separate count; for though it was competent to the jury to find one conspiracy on each count and to have included in that finding all or any number of the defendants, yet it was not competent for them to find some of the defendants guilty of a conspiracy to effect one or more of the objects stated, and others of the defendants guilty of a conspiracy to effect others of the objects stated; because that is, in truth, finding several conspiracies on a count which charges only one. * * * The indictment contains but one charge; the jury cannot find but one.”

On comparing the first count in that indictment with the one now here, it will be observed that they are substantially alike in their c instruction. The lord chief justice, in support of his argument that there was but one conspiracy charged in the first c'ount of the indictment, stated tliac “ the crime of conspiracy is complete if two or more than two should agree to do an illegal thing; that is, to effect some thing in itself unlawful, or to effect, by unlawful means, something which in itself may be indifferent or even lawful. * * * It has accordingly been always held to be the law that the gist of the offense of conspiracy is the bare engagement and association to break the law, whether any act be done in pursuance thereof by the conspiracy or not.” These reasons fully vindicate the indictment before us against the charge of duplicity.

It was unnecessary for the people to prove that the defendants who were convicted committed all the unlawful acts which they conspired to do; if they did any one of them, their complete guilt, was established. Under our statutes a conspiracy, that is, the entering into the confederation merely, is not an indictable offense, except when the agreement by its terms is to commit a felony upon the person of another, or to commit arson or burglary, unless some overt act besides such agreement is done to effect the object thereof. * * * (Sections 168, 171, Penal Code.)

The court was requested to charge the jury that a conspiracy merely to injure a private person by an act not criminal within itself does not come within the statute forbidding a conspiracy to injure trade and commerce; which was refused and an exception taken; that exception was argued on the motion for a new trial before the judge who presided at the Oyer and Terminer, and he held that, while the request was correct, as a legal proposition, that he had charged the jury to that effect before the request was made, and for that reason the exception was not available to secure a new trial. Upon the argument of this appeal the question presented by that exception has not been argued by the counsel for the appellant, and was well answered in the opinion of the learned trial judge which is printed with the case.

The conviction and the judgment entered thereon are affirmed.

All concur, except Haight, J., taking no part.

Judgment and conviction affirmed and proceedings remitted to Erie Oyer and Terminer to proceed thereon.


source: Caselaw Access Project

author: Barker, P. J.:

license: Public Domain

text:
    DANIEL SUPPLEE, Respondent, v. JOB SAYRE, as Administrator, etc., of WILLIAM H. SAYRE, Deceased, Appellant.

      Publication of a notice to creditors to present their claims against the estate of a deceased person — it. B.,pt. 3, sec. 31 of chap. 6, art. 3 — a surety on a bond of the deceased, to entitle himself to costs, must present his claim within the time limited although he ma/y not, then, have any right of action upon it.

    Fetters of administration having been issued, in April, 1873, to the defendant, he, within the time prescribed by statute, caused to be published a notice, in conformity to the provisions of the statute, requiring all persons having claims against the estate of William IF Sayre, deceased, to present the same for payment.
    The plaintiff, who did not, within the time mentioned in the notice, present the claim in suit, subsequently, and in 1883, presented it to the defendant, by whom it was rejected. Thereafter the plaintiff, after having'offered to refer the same, which offer was declined by the defendant, commenced this action to recover the amount of his claim. Upon an appeal from an order awarding costs to the plaintiff, including an extra allowance of costs and charging the same upon the defendant personally:

      Held, that the order should be reversed for the reason that the plaintiff did ,not present his claim to the administrator within the time limited by the notice published by him in pursuance of section 34 of article 3 of chapter 6 of part 3 of the Revised Statutes.

      Horton v. Brown (29 Hun, 654) followed.
    After the publication by the defendant of the notice for the creditors of William H. Sayre to_present their claim to him, the plaintiff was sued, as one of the sureties on the bond .of the said Sayre, and a judgment was recovered against him which he paid, and this action is founded on such payment to recover from the defendant, as the administrator of said William H. Sayre, the sum so paid.

      Held, that the language of the statute was so broad as to require that the claim of the plaintiff should have been presented to the administrator, as required by the notice when the same was published, although the right of action might never exist in favor of the surety against anyone.

      Bradley v. Burwell (3 Denio, 261) followed.
    That a claim made by the counsel for the respondent that the plaintiff was entitled to" costs as against his principal, under the provisions of section 1916 of the Code of Civil Procedure, providing that a surety may recover, in an action against his principal, his reasonable costs and other expenses incurred necessarily, and in good faith, in the prosecution or defense of an action or special proceeding, could not be sustained, as it was manifest that that section did not relate in any manner tto the question whether the costs of this or any action against an executor or •administrator should be charged against him personally.
    Appeal from, an order of the Monroe Special Term, entered in the office of the clerk of Yates county on June 28, 1886,. awarding costs to the plaintiff, including an extra allowance of costs, and charging the same upon the defendant personally.
    Letters of administration were issued to the defendant in April, 1872, and thereafter and within the time prescribed by statute, he -caused to be published a notice in conformity to the provisions of the statute, requiring all persons having claims against the estate of the deceased to present the same for payment. The plaintiff did not, within the time mentioned in the notice, present the claim in suit. Subsequently, and in 1883, the plaintiff presented his claim to the defendant, by whom it was rejected; the plaintiff then offered to refer'the same, which the defendant declined to do, and thereafter and on the 5th day of November, 1883, this action was .commenced.

      John J. Van Allen, for the appellant.

      Charles R. King, for the respondent.
   Barker, P. J.:

The order allowing the plaintiff costs should be reversed on the authority of the reported cases, for the reason that the plaintiff did not present his claim to the administrator within the time limited by the notice published by him, in pursuance of section 34 of chapter 6, article 2 of the Revised Statutes (2 R. S., 88.) (Bradley v. Burwell, 3 Denio, 261; Horton v. Brown, 29 Hun, 654; Clarkson v. Root, 18 Abb. N. C., 462; Bullock v. Bogardus, 1 Denio, 277.) These cases hold that it is one of the prerequisites required by the statute, that the creditor must present his claim within the time limited by law to entitle him to costs. Horton v. Brown (supra) is a recent case, and determines that sections 1835 and 1836 are only re-enactments of the provisions of the Revised Statutes on the same subject, and do not change the rule in relation to costs in actions against executors and administrators. After the publication of the notice by this defendant for the creditors of W illiam H. Sayre to present their claims to him, the plaintiff was sued as one of the sureties on the bond of the said Sayre, and a judgment against him recovered for the moneys remaining in his hands as administrator of Henry Sayre, which he paid, and this action is founded on such payment, to recover from the defendant, as administrator of said William H. Sayre, the sum so paid. These facts present a case precisely like the case of Bradley v. Burwell (supra), and it was there held that the claim must be presented to the administrator as required by the notice, when the same is published, in pursuance of the provisions of the statute, although the right of action might never exist in favor of the surety against any one; that the statute was so broad in its terms that a construction could not be given to it, that it was unnecessary to present the claim within the time limited by the notice in order to secure costs, in case it became necessary to bring an action thereon, and the same should be unnecessarily resisted by the administrator, or he should refuse to refer the same under the provisions of the statute.

The plaintiff also insists that his demand for costs should be determined by the provisions of section 3246 of the Code of Civil Procedure, and that the provisions of 1835 and 1836 are not applicable to this case. The last named sections apply to actions at law where a judgment for a sum of money only is rendered against an executor or administrator. The construction given to the provisions of the Revised Statutes, for which these sections are a substitute, without any change in their legal effect, was that no costs should be recovered against an executor or administrator in any suit at law,” unless the payment of the claim was unreasonably resisted or neglected, or the defendant refused to refer.

Section 3246 provides for the allowance of costs in actions by or against executors or administrators the same as if they were prosecuted or defended by individuals in their own right, except in the hla.RR of cases mentioned in sections 1835 and 1836. In equity actions, as distinguished from actions at law, costs are within the discretion of the court, and section 3246 applies to the former class of actions, and sections 1835 and 1836 apply to the latter. This action is one at law, and the judgment directed to be entered in the plaintiff’s favor, upon the report of the referee, is for a sum of money only. The complaint demands judgment for a specific sum of money and the costs and disbursements of the action. Ho other relief is demanded. The conclusion of law, as found by the referee, is contained in one clause of his report, and is as follows : That the plaintiff is entitled to judgment against the defendant for the sum of two thousand four hundred and sixteen dollars and twelve cents, to be paid out of and enforced against the estate of William IT. Sayre, in the hands of Job Sayre, as administrator of said estate, or which will come to his hands as such.” There is no averment in the complaint or any facts found by the referee which would authorize the entry of judgment for a specific relief or which would be of any benefit or advantage to the plaintiff, except a judgment for the recovery of money for the amount mentioned in the referee’s report. The action is founded on the implied promise of the deceased to indemnify and save harmless the plaintiff against all liability which he incurred as surety for the said deceased, and to refund to him all sums of money which he should pay as surety on the bond of the decedent as one of the administrators of Henry Sayre.

We have not failed to examine the point made by the respondent that he is entitled to costs as against his principal under the provisions of section 1916 of the Code of Civil Procedure. It is manifest, on reading this section, that it does not relate in any manner to the question whether the costs of this or any action against an executor or administrator should be charged against him personally.

Order reversed, with ten dollars costs and disbursements.

All concur.

Order reversed, with ten dollars costs and disbursements.


author: Haight, J.:

text:
    ELIJAH R. SCHOONMAKER, Appellant, v. Mrs. FRANK W. BONNIE and Mrs. ROBERT P. BONNIE, Impleaded, etc., Respondents.

      When an a/wa/rd of costs hy the General Term,, on reversing a judgment, includes all costs taxable in the Supreme Court.

    In an action, brought to compel the specific performance of a contract for the sale and conveyance of land, a judgment was awarded by the trial court against all the defendants for a specific performance thereof, which was reversed by the General Term as to Mrs. Frank W. Bonnie and Mrs. Robert P. Bonnie, with costs, upon the ground that as they were not parties to the contract they could not be compelled to release their inchoate right of dower in the lands of which a conveyance was sought.

      Held, that as the General Term had reversed the judgment awarded by the trial court, and, in effect, ordered a final judgment dismissing the complaint as to those parties, and then, in the exercise of the discretion vested in it, had awarded costs, such costs, under such circumstances, included all the costs taxable as such in the Supreme Court, being those of the trial court and of the General Term.
    Appeal from an order of the Erie Special Term, entered in the office of the clerk of Cattaraugus■ county on July 17,1888, ordering a retaxation of the costs of the defendants Mrs. Frank W. Bonnie and Mrs. Robert P. Bonnie.

      Henderson & Wentworth and J. G. Johnson, for the appellant.

      J. J. Inman, for the respondents.
   Haight, J.:

This action was brought to compel a specific performance of a contract for the sale and conveyance of land. . The trial court awarded judgment against the defendants for specific performance. On review of that judgment by this court, it was held that the wives of Frank W. Bonnie and Robert P. Bonnie, not being parties to the contract, could not be compelled to release their inchoate' right of dower in the land of which conveyance was sought. The judgment of the trial court was, therefore, reversed as to Mrs. Frank W. Bonnie and Mrs. Robert P. Bonnie, with costs. The question now raised by this appeal is as to what was meant by the term with costs.” Does it include the costs of the trial court ? The action was brought to procure equitable relief, and the costs were in the discretion of the court. The reversal of the judgment by the General Term as to these women was a holding, in effect, that the trial court should have dismissed the complaint as to them; and the reversal of the judgment without granting a new trial was, in effect, the ordering of judgment in their favor; and had the judgment Of the General Term provided that the judgment of the trial court be reversed, and final judgment ordered for these defendants, with costs, we are inclined to the opinion that they would have been entitled to tax the costs allowed by the Code in the trial court. It is true that the judgment of the General Term in reversing the judgment as to these defendants did not order, in express terms, final judgment in their favor ; yet such was the effect of the judgment entered, and we fail to see why the same result should not follow in reference to the taxation of the costs. The court at General Term have the power tó reverse or affirm the judgment wholly or in part, or to modify it as to any or all of. the parties, or to grant a new trial if necessary. (Code of Civ. Pro., § 1317.) The trial court and the General Term are but branches of one and the same court. The General Term, sitting as a court of review, has the power to review the discretion of the Special Term or the trial court; and in ordering judgment for the defendants for a dismissal of the complaint, with costs, it is understood to include all the costs that were taxable in the Supreme Court, which includes that of the trial and of the court in review. We are aware that in equity actions in the Court of Appeals the words “ with costs,” as used by that court, only means the costs in that court, (In the Matter of the Water Commissioners of Amsterdam, 104 N. Y., 677 ; The Sisters of Charity v. Kelly, 68 id., 628.) But the Court of Appeals is a separate, independent court. The General Term is but a branch of the Supreme Court, the court in which the action was tried. The costs awarded are the costs of that court, and embrace the rejected items, including that for the making and serving of the case.

It is argued that had the judgment been affirmed, with costs, the words “ with costs ” would then have meant only the costs of the review in the General Term. Very true. Had the trial court awarded a judgment dismissing the complaint as to these women, without costs, the affirmance of the judgment by the General Term would continue the judgment as it stood at the time the appeal was taken; and the words with costs ” in that event would only apply to proceedings thereafter taken ; but in the case under consideration the General Term, as we have seen, has reversed the judgment awarded by the trial court, and, in effect, ordered a final judgment dismissing the complaint as to these parties ; and then, in the exercise of the discretion vested in it, has awarded costs, which, under such circumstances as we understand it, includes all the costs taxable as such in the Supreme Court, being those of the trial court and of the General Term. As to the disbursements disallowed for printing cases and of points, we are inclined to the view that they were properly disposed of by the clerk. The Special Term has only allowed such disbursements as have been made or incurred by these women. The opposing affidavits show that they were the wives of Robert P. and Frank W. Bonnie, the parties to the contract; that the'defense was carried on by the husbands; that the printing of the cases and points for review in the General Term was done by the husbands, who took charge of the case on review.

Upon the papers, therefore, as they stand, we think these items of disbursements were properly disallowed. The order of the Special Term should be affirmed, but without costs of this appeal to either party.

Babker, P. J.: Bradley and Dwight, JJ., concurred.

Order affirmed, but without costs of this apj>eal to either party.


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    DEWITT C. LAPHAM, Respondent, v. WILLIAM J. MARSHALL, HENRY H. HICKOX and MARTHA A. MARSHALL, Appellants.

      Power of the legislature to repeal and alter rules of evidence — an answer made in supplementary proceedings under an existing statute, providing that it could not be used against the person making it in civil or criminal proceedings, is not made admissible by the striking out of the word ‘ ‘ civil ” by a subsequent statute.

    Upon an appeal from a judgment declaring that a deed of certain lands executed by the defendant William. J. Marshall to the defendant Henry H. Hickox, and a deed made by the latter to the defendant Martha A. Marshall, were fraudulent and void as against a j udgment held and owned by the plaintiff against the defendantWilliam J. Marshall, it appeared, that upon the trial the question of fraud, which was the only question in serious dispute, was decided against the defendants, and that the jury found that Mrs. Marshall actually paid to her husband $500 as the consideration for the deed, and nothing more.
    Before this action was commenced the plaintiff, in supplementary proceedings instituted against the judgment-debtor, had called and examined as a witness in his behalf the defendant, Martha, whose evidence was reduced to writing and signed by her. On the trial of the special issues in this action the plaintiff offered in evidence, as against the defendant Martha, and against her objection and exception, portions of such deposition, showing the amount of the consideration which she had paid to her husband.

      Reid, that the evidence was incompetent, and was a privileged communication by virtue of the provisions contained in section 2460 of the Code of Civil Procedure, as it existed at the time of the examination, providing that a witness was not excused from answering a question on the ground that his examination would tend to convict him of a fraud, but that an answer “ cannot be used as evidence against the person so answering in a civil or criminal action, or in any other special proceedings, civil or criminal.”

    The plaintiff’s counsel contended that the amendment of 1881, which struck out from the last paragraph of that section the word “civil,” limited the protection given to her answer to criminal proceedings and made her deposition competent evidence in any civil action prosecuted against her; that the statutory provision in question was a mere rule of evidence declared by the legislature, which could be repealed or modified at any time, and that, when so repealed, evidence which had been previously given could be used the same as if the immunity, so far as it was taken away, had never been given.

      Reid, that this contention could not be sustained; that while it is undoubtedly true that the legislature may change or alter a mei;e rule of evidence and establish a new way or manner of proving or disproving a question of fact in controversy, the question under consideration involved something more than a rule of evidence, and the immunity which the statute bestowed upon witnesses examined before the repeal took place continued after the repeal and might be invoked in their behalf when their evidence was sought to be read in a civil action.
    That the provision of the statute which was repealed was as sacred as the one which remained in effect, and it 'would be unjust to the witness not to give her the full benefit of the promise made by the legislature when she gave her evidence, and that no such effect should be given to the amendment.
    Upon the trial the plaintiff, for the purpose of establishing the defendant Marshall’s insolvency at the time of the conveyance, was permitted to give in evidence judgments recovered against him after the deeds were delivered and after the ■ commencement of this action.

      Reid, that they were incompetent evidence, as against the grantee, and that her objection to their reception should have been sustained.
    Appeal from a judgment of the Wayne county Special Term, entered in the office of the clerk of that county on May 23, 1888, declaring that a deed of certain lands executed by William J. Marshall to the defendant Henry H. Iiicltox, and one by the latter to the defendant Martha Á. Marshall, were fraudulent and void as against the judgment held and owned by the plaintiff against the defendant William J. Marshall; and that such deeds be vacated and set aside as against the said judgments; and, also, an appeal from an order of the same Special Term, entered in the same office on March 19, 1887, denying the appellant’s motion for a new trial of special issues tried before the jury.
    This action is in the nature of a judgment-creditor’s bill. The defendant William J. Marshall is the husband of the defendant Martha A., and on the 11th day of April, 1874, he conveyed to the defendant Iiickox the lands in question with the understanding at the time the conveyance was made that he received the title pro forma for the purpose of conveying the same as trustee to the defendant Martha A. After the conveyances were executed the judgment upon which the action was founded was recovered against William J. Marshall for the sum of $533.95. The plaintiff charged that the deeds were without consideration, and were made by all the parties thereto with an intent to" cheat and defraud the creditors of the first named grantor. The answer denied the allegations of fraud, and Mrs. Marshall claims that the same were based upon a valuable consideration paid by her to her husband. Special issues were framed for the purpose of trying the question of fraud, and to ascertain the amount of consideration money, if any, which was paid by the said Martha to her husband for the conveyance. The question of fraud was decided'against the defendants, and the jury found that Mrs. Marshall actually paid to her husband $500 as the consideration for the deed, and nothing more. The motion for a new trial was made by the defendants, founded upon exceptions, which was denied at the same Special Term at which the final hearing was had, and judgment was directed setting aside the conveyances as against the plaintiff’s judgment.

      S. B. McIntyre, for the appellants.

      Stephen K. Williams, for the respondent.
   Barker, P. J.:

The appellant does not claim that the findings of the jury on the special, issues were against the weight of evidence, and we have only to consider the exceptions to the rulings made by the trial judge on the trial of the special issues. The issue of fraud presented the only question in serious dispute. The record shows, and the counsel for the respondent has made his argument as if it were so, that the Special Term, in disposing of the case on the hearing of the question reserved, adopted without modification the facts as found by the jury. This being so, the judgment rests for its support upon the special verdict, and, therefore, the exceptions taken on the trial before the jury are properly here for review. Before this action was commenced the plaintiff instituted supplementary proceedings against the judgment-debtor; and on the hearing before the officer who conducted these proceedings, he called and examined as a witness in his own behalf the defendant Martha, whose evidence was reduced to writing and signed by her. On the trial of the special issues the plaintiff offered in evidence, as against the defendant Martha, portions of such deposition, to which she interposed the objection that the same was incompetent and was a privileged communication by virtue of the provisions of section 2460 of the Code of Civil Procedure, as it existed at the time of the examination.

The objection was overruled and the defendant Martha excepted. The examination was in December, 1880, and the said section was amended in 1881, and this action was commenced thereafter. As enacted, that section provided that a party or a witness examined in a special proceeding, supplementary to execution, is not excused from answering a question on the ground that his examination will tend to convict him of the commission of a fraud, and to prove that he has been a party or privy thereto, or knowing of a conveyance^ assignment, transfer or other disposition of the property for any purpose; * * * but an answer cannot be used as evidence against the person so answering, in a civil or criminal action, ór in any other special proceedings, civil or criminal. The amendment of 1881 struck out from the last paragraph of this section the word civil,” and thereby limiting the prohibition to the use of the evidence against the party or witness to criminal proceeding only. In this State, by legislative enactment, it has been for along time made a misdemeanor for any person to become a party to a conveyance of real or personal property, with an intent to hinder, delay or defraud' creditors, or, being a party thereto, willfully putting the same in use as having been made in good faith. (Penal Code, § 586, 2 R. S. [3d ed.], § 3, p. 776.)

If the conveyance by the judgment-debtor to his wife of the premises mentioned was made by him and received by the defendant Martha, for the purpose of cheating and defrauding creditors as charged in the complaint, and, as established by the final judgment, the defendant Martha was guilty of a crime. At the time of her examination, which toolc place December, 1880, she was liable to a criminal prosecution for the crime which she had committed. And the statute of limitations applicable to that class of offenses had not run against the right of the people to prosecute her for the offense it is alleged she had committed. For these reasons it is conceded that the defendant Martha, when she was on examination before the officer, could have rightfully claimed her privilege and declined to answer the questions propounded to her, bearing upon the question of fraud, except for the qualifying clause of section 2460, which, in terms, declared that ¡any criminating evidence given on an examination of a witness in supplementary proceedings shall not be read against him in any civil or criminal action. The privilege which the law bestows on a witness, that he shall not be compelled to give evidence in any judicial proceeding which would tend to convict him of a crime, has its foundation in the precepts and practice of the common law, which are also incorporated, in the bill of rights contained in article 1, section 6 of our Constitution, which declares that no person shall be compelled, in any criminal case, to be a witness against himself.” The privilege thus secured to the citizen the courts are careful not to invade, and never require a witness to give up the secrets of 1ns own mind, if they would tend to convict him of a crime, unless complete immunity is granted to him by the lawmaking power of the State, which, in terms, prohibits the use of his evidence in a criminal prosecution. Dp to this point in the discussion, the learned counsel who appeared before us on the argument of this appeal do not materially disagree, but, from here onward, their respective arguments are irreconcilable. The plaintiff’s counsel contends that, by the repeal of the provisions of section 2460, that the evidence given by her should not be used against her in a civil action, the protection given to her answer as a privileged communication was limited to criminal proceedings; and that her deposition was competent evidence in any civil action prosecuted against her, where the same would tend to prove any fact in dispute as between herself and the other parties thereto. The argument presented in support of this proposition is, that the statutory provision, so far as it declared that the evidence which might tend to prove that she had been guilty of a fraud, should not be read against her in a civil action, was a mere rule of evidence, declared by the legislature, which could be repealed or modified at any time; and, when so repealed, evidence which had been previously given could be used the same as if the immunity, so far as it was taken away, had never been given. What is a rule of evidence ?

The text writers say that the word evidence, in legal acceptation, includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. (1 Greenl. Ev., § 1.) A rule of evidence may, then, be defined to be the mode and manner of proving the competent facts and circumstances upon which a party relies to establish the fact in dispute in judicial procedure. It is undoubtedly true that the legislature may change or alter the mere rule of evidence and establish a new way or manner of proving or disproving a question of fact in controversy; but we think the question under consideration involves something more than a rule of evidence, and the immunity which the statute bestowed upon witnesses examined before the repeal took place continued after the repeal, and may be invoked in their behalf when their evidence is sought to be read in a civil action. But for the immunity offered by the statute, that the evidence should not be used against a witness in a criminal proceeding, she could not have been compelled to have answered questions propounded to her, relative tó the consideration which she paid for the deed, nor the circumstances attending its execution and delivery. It is true that the indemnity offered by the statute, as it read before the amendment, was broader than it was necessary that the legislature should provide for the purpose of compelling an answer to the inquiry made of the witness, nevertheless, it was one of the considerations which the legislature then thought proper to offer for the purpose of inducing the witness to disclose secrets relative to her’ private transactions. Ho one will contend, that if the legislature* had withdrawn all the indemnity given by the statute, including the' one that the evidence should not be read on a criminal trial, charging the witness with the same fraud as that to which the evidence related, that the. same could be read against the witness upon an indictment, charging that the deed was executed with an intent to cheat and defraud the creditors of the grantor. The provision of the statute which was repealed was as sacred as the one which remained in effect, and it would be unjust to the witness not to give her the full benefit of the promise made by the legislature, when she gave her evidence, and we think that no such effect should be given to the amendment. In determining the effect of the amendment we must assume that the legislature did not mean to violate its promise given to the witness, nor to divest her of an acquired right. It is always to be presumed that a statutory law, as to its legitimate office, was intended to furnish a rule as to future actions, to be applied in cases arising subsequent to its enactment. The law is never to have retroactive effect, unless its express letter or clearly manifest intention requires that it should have such effect.

“In Dash v.Van Kleeck (7 Johns., 503), Kent, Ch. J., says: We are to presume, out of respect to the law-giver, that the statute w;as not meant to act retrospectively,’ and that ‘ a statute ought never to receive such a construction if it be susceptible of any other.’ ” (N. Y. and O. M. R. R. Co. v. Van Horn, 57 N. Y., 473.)

In Palmer v. Conly (4 Denio, 376), Jewett, J., says: “It is a doctrine founded upon general principles of the law, that no statute shall be construed to have a retrospective operation, without express words to that effect, either by an enumeration of the cases in which the act is to have such retrospective operation, or by words which can have no meaning, unless such a construction is adopted.” The only retrospective operation which it would be possible to give to this statute would be to take away from a party or a witness the right which existed before its adoption, for, as a rule of evidence, it could only apply to future examination.

The plaintiff, for the purpose of- establishing Marshall’s insolvency at the time of the conveyances, was permitted to give in evidence judgments recovered against him after the deeds were delivered and after the commencement of this action. We think they were incompetent evidence as against the grantee, Mrs. Marshall, and that her objection to their reception should have prevailed.

The first question submitted to the jury was framed as follows: “ Was the transfer of the premises described in the complaint on the 26th day of May, 1879, by the defendant William J. Marshall, -through the defendant ITenry Ii. ITickox, to the defendant Martha-A. Marshall, made with an intent, on the part of William J. Marshall, to hinder, delay or defraud creditors?” The defendants’ counsel asked the court to charge the jury that if they find that the sole intent of William J. Marshall, in the transfer, was to procure means to discharge the claims of Adriance, Pratt & Co., then their verdict should be in the negative to the first question. The court declined to charge as requested,’but said to the jury, if they found he had no intent to hinder his creditors, or he did not know that the result would be to hinder his creditors, and simply meant to pay the debt-without thinking anything about that, that is so, but refused to charge in the language of the request. The defendant excepted to the refusal to charge as requested and to the charge as made. We think the refusal was a correct ruling, because the effect of the proposition was to change the form and character of the precise question submitted to the jury by the court for their consideration. It was a question for the jury to consider, in passing upon the question submitted, and if they found that the sole intent of Mr. Marshall was to raise money to pay off the claims of Adriance, Pratt & Co., then they might have been satisfied that he had no intent to hinder, delay or defraud creditors. The judge, by the qualifications which he made in the request to charge, in effect, told the jury that if he had no intent to delay or defraud his creditors, then they could answer the question in the negative. Other exceptions were taken to portions of the charge and.also to the refusal to charge several propositions as proposed by the defendants. We have examined them and we see no error.

We are now to consider whether anew trial should be granted for the errors which we have indicated. As to the reception of the judgment-rolls as evidence upon the question of Mr. Marshall’s insolvency, the error is not so serious as to induce us to grant a new trial,' in view of the rule which prevails in this class of eases, and is stated in section 1003 of the Code of Civil Procedure, that in an application for a new trial, on the ground of error in the admission or the exclusion of evidence, or any other ruling or direction of the judge upon the trial, the error may, in the discretion of the court which refused it, "be disregarded, if the court is of the opinion that substantial justice does not require that a new trial should be granted. There was no real dispute on the trial; as a matter of fact, Marshall was insolvent when the lands were deeded. As to the other error which we have indicated, we think it so serious in its character that it cannot be disregarded, and that substantial justice does require that a new trial should be granted, and that the question of fraud be tried and determined upon legitimate and unexceptionable evidence. The portions of Mrs. Marshall’s evidence given in supplementary proceedings, and which was read on this trial, relate to the question of fraud; it bears on the important question as to the amount, and also the mode and manner of paying the consideration for the deed. It is manifest, upon reading the whole case, that the jury were led to believe that the transaction was fraudulent for the reason that the consideration paid was not adequate, as they found that she only paid the sum of $500.

There is some reason for the contention that the introduction of this evidence compelled the appellant to take the stand as a witness in her own behalf, for the purpose of explaining some parts of her evidence, given before the officer who conducted the supplementary proceedings. The reception of the evidence deprived the appellant of what we regard as a most sacred as well as substantial right, and, unless it can be very clearly demonstrated, as we think it has not been, that no injury resulted to the appellant from its reception, a new trial should be granted.

Judgment reversed and new tidal granted upon the special issues, and the costs of this appeal to abide the final award of costs.

All concurred except Bbadley, J., who concurred in the result.

Judgment and order reversed and new trial ordered upon the special issues, costs of the appeal to abide the final award of costs.


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    THE SAVINGS ASSOCIATION OF ST. LOUIS, Respondent, v. EDWARD W. O’BRIEN, as Administrator, etc., of JOHN W. CONLOGUE, Deceased, Appellant.

      Action by a judgment-creditor of a railroad corporation, organized in another State, against holders of its shares to enforce a statutory liability created by the Irnos of that State—when allegations as to the construction of the statute, by the courts of that State, cannot be controverted on a demurrer—the courts of this State will generally follow the construction so placed upon it—statutory remedy, if prescribed, it must be followed.

    Upon an appeal from an interlocutory judgment, entered upon a decision overruling the defendant’s demurrer to the plaintiff’s complaint, it appeared that the defendant’s intestate died in this State the owner of 250 shares, of the par value of $100'each, of the capital stock of the Illinois, Missouri and Texas Railroad Company, a corporation organized under the laws of the State of Missouri, and that the plaintiff was a banking corporation, organized under the laws of the same State; that, in an action prosecuted in the courts of the State of Missouri, it had recovered a judgment against the said railroad company for the sum of $33,973, upon which an execution against the property of the railroad company was issued in due form of law and returned unsatisfied, and that the said judgment remained wholly unpaid.
    This action was brought by the plaintiff to recover from the defendant, as administrator of John W. Conlogue, an amount equal to the par value of the stock owned by said Conlogue at the time of the dissolution of the said corporation, to be applied towards the satisfaction of the plaintiff’s debt, represented in and by the said judgment, upon the ground, as claimed by the plaintiff, that the shareholders of the said corporation were, by the laws of the State of Missouri (1 Wagner’s Stat., §| 13, 22, chap. 37, art. 1, p. 291), personally liable to the creditors of the corporation, in an amount equal to the par value of each share of the capital stock owned by them.
    It was alleged in the complaint that, by the provisions of the statute set forth therein, as defined, construed and enforced by the courts of the State of Missouri, when any railroad corporation, organized under and by virtue of the laws of that State, shall have become dissolved, any creditor of such corporation, upon the return of an execution against it unsatisfied, may have an action against any stockholder of such corporation, who shall have been such at the time of the dissolution, to collect the par value of such stock so owned by him, and such stockholder and his estate shall be liable to pay the same to the amount unpaid on the judgment recovered against the corporation.

      Held, as the inquiry as to what are the laws of another State presents a question of fact, and when necessary may be alleged in the pleadings as a fact, that these allegations, as to the meaning and purpose of the statute under consideration, must be received as true in disposing of the demurrer.

      That the construction placed upon the statutes of another State by the courts of that State is, as a general rule, controlling and will be followed by the courts of this State.

      Jessup v. Carnegie (80 N. Y., 441) followed.
    That, as it was alleged that the highest court of the State of Missouri had given a construction to the statute on which the plaintiff relied as giving him the right of action against the defendant, the court was not, under the foregoing rule, • permitted to decide, de novo, whether the adjudication was correct or not.
    'That it was to be presumed that the decedent purchased the stock which he held at the time of the dissolution with full knowledge of the statute, and the construction which had been given to it by the courts of that State, and consented to assume the obligations imposed thereby.
    That this was not a judgment-creditor’s suit, as actions of that character are authorized under and by the laws of this State, but was an action at law to enforce a liability between the shareholder and the creditor of the company.
    Where a statute creates a right or liability and prescribes a remedy, such remedy is the only one that can be resorted to for the purpose of enforcing the liability; but where a general liability is created by statute and no particular remedy is prescribed the liability may be enforced by an appropriate common-law action.
    The complaint alleged that the intestate purchased his shares of stock from the company, for which he agreed to pay their par value, and that at the time of the dissolution he remained indebted to the company in that sum, and the plaintiff claimed that, under the sections of the statute referred to, he was entitled to recover in this action so much of that indebtedness as might be necessary to extinguish the amount of his judgment.

      Held,, that, even if it were true that the estate of the deceased was indebted for the purchase-price of the stock, yet, as the statute contained no provision authorizing any of the creditors of the company to maintain an action to recover such indebtedness, such right of action belonged to the officers of the law, who, since its dissolution, represented the shareholders and creditors of the corporation.
    Appeal from an interlocutory judgment entered upon a decision rendered at the Steuben Special Term March, 1888, overruling the defendant’s demurrer to the plaintiff’s complaint.
    The grounds of the demurrer are (1) that the court has no jurisdiction of the subject of the action; (2) that the complaint does not state facts sufficient to constitute a cause of action; (3) that the complaint does not state facts sufficient to constitute a cause of action in favor of the plaintiff against the defendant.

      George T. Spencer, for the appellant.

      F. A. Williams, for the respondent.
   Barker, P. J.:

The defendant’s intestate died in this State the owner of- 250 shares, of the par value of $100 each, of the capital stock of the Illinois, Missouri and Texas Railroad Company, a corporation organized under the laws of the State of Missouri. The plaintiff is a banking corporation organized under the laws of the same State, and authorized to maintain actions at law for the purpose of collecting debts due it. The plaintiff, in an action prosecuted in the courts of the State of Missouri, recovered a judgment against the said railroad company for the sum of $33,973, upon which an execution against the property of the defendant was issued in due form of law and returned unsatisfied, and the said judgment remained wholly unpaid. This action is prosecuted for the purpose of recovering from the defendant, as the administrator of the estate of John W. Conlogue, an amount equal to the par value of the stock owned by him at the time of the dissolution of the said corporation, tó be applied towards the satisfaction of the plaintiff’s debt represented in and by the said judgment upon the grounds, as claimed by the plaintiff, that the shareholders of the said corporation are by the laws' of the State of Missouri personally liable to the creditors of such corporation in an amount equal to the par value of each share of the capital stock owned by them. The defendant denies the alleged liability, and insists if any liability whatever exists against the stockholders in favor of the creditors of said corporation, the same can only be enforced in the courts of the State of Missouri, by the laws of which State the liability was created.

The questions presented by the demurrer depend for their solution upon the proper construction to be given to the statutes of the State of Missouri relative to the subject; and the plaintiff has set forth in his complaint the provisions thereof on which, as he contends, the stockholders’ liability is founded. The sections of the statute set forth in the complaint are contained in chapter 37, article 1, volume 1, page 291, of Wagner’s Statutes, of which section 13 is as follows : “ If any execution shall have been issued against the property or effects of a corporation, and if there cannot be found whereon to levy such execution, then such execution may be issued against any of the stockholders to an extent equal in amount, to the amount of stock by him or her owned, together with any amount unpaid thereon; provided, always, that no execution shall issue against any stockholder, except upon an order of the court in which the action, suit, or other proceeding shall have been brought or instituted, made upon motion in open court, after sufficient notice in writing to the person sought to be charged; and upon such motion, such court may order execution to issue accordingly.” Section 22 is as follows : “ If any company formed under this act dissolve, leaves debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the company in such suit; and if judgment is rendered and execution satisfied, the defendant or defendants may sue all who were stockholders at the time of the dissolution for the recovery of the portion of such debt for which they were liable, and the execution upon judgment shall direct the collection to be made from the property of each stockholder, respectively ; and if any number of stockholders, defendants in the case shall not have property enough to satisfy his or their portion of the execution, then the amount of the deficiency shall be divided equally amongst all the remaining stockholders, and collection be made accordingly, deducting from the amount a sum in proportion to the amount of the stock owned by the plaintiff at the time the company was dissolved.” We think it is substantially averred in the complaint, that the provisions of these sections are applicable to all railroad corporations organized after their adoption by the legislature of that State, and that the railroad company in which the intestate was a shareholder was created after the said sections became a law.

On the argument the learned counsel for the respondent conceded that the remedy given to the judgment-creditors of the corporation by the provisions of section 13 can only be enforced in the courts of the State of Missouri, and in the mode and by the process therein prescribed. This brings us to the consideration of the serious and important question presented by the demurrer, whether under section 22 the personal liability, imposed on the stockholders to the extent of the par value of the shares held by them, may be enforced by the creditors of the corporation in a common-law action brought by them in any jurisdiction outside of the State of Missouri ? The answer which must be made to this question is found in the decisions of the courts of this State, and it is against the defendant’s contention ; for it has been frequently held under similar statutes that a personal liability is created on the part of the shareholder which may be enforced in a common-law action in any State where the shareholder may be found. ' Every shareholder in a corporation is supposed to be cognizant of the provisions of its charter, and the o-eneral laws of the State which relate to his duties as such shareholder; and which define the nature and extent of his liability to the creditors of the corporation. After paying for his stock at the subscription or contract-price to be paid therefor, the shareholder is under no other pecuniary obligation to the corporation or its creditors unless the same is imposed by some statute; there is no further common-law liability arising out of the transaction. If the charter of the corporation or the general laws of the State creating it declare a personal liability against the shareholders equal to the amount of the capital stock which may be enforced in the name and for the benefit of any creditor, and does not prescribe the mode and manner of enforcing such liabilities, then the liability follows the person of the stockholder, and may be enforced as other personal obligations are enforced according to the course of procedure existing in the place where the individual sought to be charged is found; but if the effect of the statutory provision is not to charge the property of the stockholder generally, but only to an amount equal to the stock upon prescribed conditions and by a specific process, the remedy of the creditor must be sought according to the terms and by the means prescribed by the charter. (Lowry v. Inman, 46 N. Y., 119.) It is a general rule of law that where a statute creates a right or liability and prescribes a remedy, such remedy is the only one which can be resorted to for the purpose of enforcing the liability. The legal questions involved in the discussion, whether the statute under consideration creates a personal liability on the part of the shareholders, and, also, whether it does or does not prescribe a specific mode of process for its enforcement, are stated in the case of Pollard v. Bailey (20 Wall. [U. S.], 526), as follows: “ The individual liability of stockholders in a corporation for the payment of its debts is always a creature of statute. At common law it does not exist. The statute which creates it may also declare the purposes of its creation, and provide for the manner of its enforcement. * * * (In this case) the liability and the remedy were created by the same statute. This being so, the remedy provided is exclusive of all others. A general liability created by statute without a remedy may be enforced by an appropriate common-law action. But where the provision for the liability is coupled with a provision for a special remedy, that remedy, and that alone, must be employed.” (Fourth Nat. Bank v. Francklyn, 120 U. S., 747; Flash v. Conn., 109 id., 371; Corning v. McCullough, 1 N. Y., 47.)

By section 22, as above quoted, it is declared in positive terms that when a corporation has been dissolved, leaving debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the company in such suit. In the same section there is also a provision giving the stockholder sued by a creditor, in case judgment is rendered against him, which he shall have paid, a remedy by a suit in equity against all the other stockholders to enforce contribution and to secure complete indemnity. It is singular that a statute of the importance of this one should be enacted without a more definite declaration for whose benefit the right of action is given, and, also, a statement defining the measure of the stockholders’ liability. Notwithstanding the obscurity of the statute, it may be freely inferred that the liability imposed is a personal obligation, and may be enforced as other obligations may be enforced against individuals by a common-law action. No .special course of procedure against the stockholder is indicated by this section, and from all the provisions contained in the sections quoted, it may be inferred that the debt which may be enforced by the action must be one owing by the corporation to some one of its creditors. The remedy given a stockholder by the provisions of the same statute, to enforce contribution from the other shareholders, must be by an original suit instituted against them. If such contributions could be enforced in any way or manner in the suit prosecuted by the creditor against the shareholder, then it would be very clear that the right given the creditor to sue the shareholder is accompanied by a special remedy, and that would exclude all other means for the enforcement of the stockholder’s liability. We find no provision in the statute declaring that the liability of the other stockholders to contribute is made to depend upon the condition that the shareholder’s liability to a creditor should be enforced in the courts of the State of Missouri. Wherever a stockholder may be sued by a creditor for the purpose of enforcing the former’s liability, the extent and nature of his liability is fixed by the statute, and lie must pay the judgment recovered against him before he can make claim for indemnity against the other shareholders. Without a clear, provision to the contrary, the creditor’s right to maintain suits against a shareholder should not be limited to those stockholders who are residents of or might be found within that State, for it is fair to infer from the business which the corporation was authorized to do, that it would have transactions and dealings with parties not residents of the State of Missouri. The provisions of the statute, which we deem doubtful and obscm’e as to their meaning, have received an interpretation by the highest courts of the State of Missouri, which we may accept and follow as our guide in declaring the rights of creditors and the obligations of stockholders under the same. In the cases hereafter cited it has been held that, under said section 22, a stockholder is liable to the creditors of the corporation to the amount of the par value of his stock, and tha,t such liability may be enforced after the company has been dissolved, in a suit in the nature of an action at common law, in the name of and for the benefit of an individual creditor against any stockholder, who was such at the time of the dissolution. (Perry v. Turner, 55 Mo., 418; State Savings Association v. Kellogg, 63 id., 540; S. C., 52 id., 583; Donnelly v. Mulhwal, 12 Mo. App. Rep., 139.)

It is alleged in the complaint that by the provisions of the statute set forth therein, as defined, construed, administered and enforced by the courts of the State of Missouri, when any railroad corporation, organized under and by virtue of the laws of that State, shall have become dissolved, any creditor of such corporation, upon return of an execution against it unsatisfied, may have an action against any stockholder of such corporation who shall have been such at the time of the dissolution, to collect the par value of such stock so owned by him, and such stockholder and his estate shall be liable to pay the same to the amount unpaid on the judgment recovered against the corporation. This averment as to the meaning and purpose of the statute under consideration must be received as true in disposing of the demurrer.

The inquiry as to what are the laws of another State presents a question of fact, and, when necessary, may be alleged in the pleadings as a fact. The construction placed upon the statutes of another State by the courts of that State is, as a general rule, controlling, and will be followed by the courts of this State. (Jessup v. Carnegie, 80 N. Y., 441.) As it is alleged that the highest court of the State of Missouri has given a construction to the statute on which the plaintiff relies as giving him a right of action against the defendant, we are not, under the foregoing rule, permitted to decide, de novo, whether the adjudication was correct or not.

It is to be presumed that the decedent purchased the stock which he held at the time of the dissolution, with full knowledge of the statute and the construction which had been given to it by the courts of that State, and consented' to assume the obligations imposed thereby. The recovery of a judgment by the plaintiff against the corporation in the State of Missouri, and the return of an execution unsatisfied, is a compliance with the condition precedent, as the same is alleged in the complaint upon which the liability of the decedent, as a stockholder, is made to depend.

This is not a judgment-creditor’s suit, as actions of that character are authorized under and by the laws of this State, but is an action at law to enforce a liability in the nature of a contract between a shareholder and a creditor of the company. (Flash v. Conn., 109 U. S., 371.) The remedy provided in section 13, by which the defendant’s obligation to a creditor may be enforced, is special and wholly distinct and independent of the right to resort to an original action as given by section 22, and thus the laws of the State of Missouri confers two remedies in behalf of the creditor, and he may elect which he will pursue.

In the complaint it is alleged that the intestate purchased his shares of stock from the company, for which he agreed to pay their par value, and that at the time of the dissolution he remained indebted to the company in that sum, and the plaintiff claims that, under the sections of the statutes referred to, the plaintiff in this action is ’entitled to recover so much of that indebtedness as may be necessary to extinguish the amount of its judgment. If it be true, as is alleged, that the estate of the deceased is indebted for the purchase-price of the stock, we fail to discover any provision in the statute authorizing any of the creditors of the company to maintain an action to recover such indebtedness, for, unless some statute otherwise provides, such right of action belongs to the officer of the law who, since its dissolution, represents the shareholders and creditors of the corporation.

We think the complaint avers the fact to be, that the corporation was dissolved before the commencement of this action, and that at that time the intestate owned the number of shares stated. Conceding, as we must, in disposing of the demurrer, that all the facts averred in the complaint are true, then we think a good cause of action against the defendant was stated in the complaint.

The judgment should be affirmed, with costs, and leave given the defendant .to withdraw the demurrer and to answer within forty days, on payment of the costs of the demurrer and of this appeal.

All concur.

Judgment affirmed, with costs, with leave to defendant to withdraw demurrer in forty days, and to answer on payment of the costs of this appeal and of the demurrer.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ISRAEL P. GRANT and LEWIS M. SMITH, Respondents, v. SAMUEL WARNER, Appellant.

      Supplementary proceedings — the referee cannot compel a witness to be sworn, before the order has been served on the judgment-debtoi'— the attendance of third persons cannot be enforced except by subpoena—section 2433 of the Code of Givil Procedure, prescribing the manner of reviewing ot'ders in these proceedings, does not apply to orders punishing witnesses for contempt.

    Proceedings supplementary to execution having been instituted against one Ira W. Warner, a judgment-debtor, the referee, on the same day on which the order was granted to examine the judgment-debtor, issued a subpoena, directed to Samuel Warner, the present appellant, requiring him to appear before the referee at the same time and place that the judgment-debtor was required to appear and give evidence, which subpoena was duly served on the appellant,and his fees paid,before the return day named in the order. The judgment debtor was not, at the time the order was granted, within the State, and the order was never served on him, nor did he appear before the referee. The appellant having, in obedience to the subpmna, appeared before the referee was called to the stand, and asked by the referee to be sworn as a witness; acting on the advice of his counsel he refused to be sworn on the ground, which he stated to the referee, that as the order had not been served on the judgment-debtor the referee had no jurisdiction to proceed in the matter.

      Upon an appeal "by Samuel Warner from an order made in such proceedings, which adjudged him to be guilty of contempt for so refusing to testify, and imposed a fine of nine dollars and four cents, and required the appellant to appear at a place, and on a day named-in the order, to be then and there sworn as a witness for the judgment-creditors, and to answer all proper questions relating to the property of the judgment-debtor, and in the event of his failure so to do to be regarded as in contempt of court.

      Held, that the appellant was not in any sense a party to the proceedings.
    That, before the officer granting the order, or a referee appointed by him to examine the judgment-debtor, could acquire jurisdiction over a' witness and compel him to submit to an examination the order must be served on the judgment-debtor and the officer or referee thus acquire jurisdiction over him as well as over the subject-matter.
    That, without the personal service of the order, in the manner prescribed by section 2452 of the Code of Civil Procedure, before the time of the return thereof, no jurisdiction was acquired over the person of the judgment-debtor, and all right to proceed in the matter was gone, and any proceedings taken in the matter thereafter would be void.
    That the witness showed a reasonable excuse for not consenting to be examined as a witness.
    That the provision of the order requiring the appellant to appear before the referee on a future day and submit to an examination, and providing that on his failure so to do he would be deemed guilty of contempt of court, was void for the reason that the proceedings had come to an end, and also because the county judge had no authority to enforce the attendance of a witness in any case by a mere order; as the appearance of a third person on behalf of the parties to the proceeding, to be examined as a witness, can only be enforced by due service of the process of a subpoena as upon the trial of an action.
    The respondents contended that this court had no jurisdiction to review the order, because the appellants appealed from the order directly to the General Term, which was not permitted by the provisions of section 2433 of the Code of Civil Procedure.

      Held, that the mode of review prescribed by that section had no application to an order made in proceedings to punish a witness for contempt, as the provisions of that section were limited to orders which effect only parties to the pending proceedings; that, although the conduct of the witness complained of may have taken place in and as a part of such proceedings, the proceedings to punish him for contempt were original in their character and fully independent of the other proceedings.
    Appeal "by Samuel Warner from an order made by the surrogate of Steuben county, acting as county judge in supplementary proceedings, adjudging the appellant guilty of contempt for refusing to testify as a witness before a referee appointed in such proceedings to examine Ira W. Warner, the judgment-debtor, concerning his property, in an action in which the relators were plaintiffs, and imposing a fine of nine dollars and four cents. Samuel Warner appealed from the order directly to the General Term.

      Francis A. Williams, for the appellant.

      Baldwin & Baldwin, for the respondents.
   Barker, P. J.:

The relators instituted proceedings supplementary to execution against Ira Warner, before the surrogate of Steuben county, acting as county judge for that county. The proceedings, were founded on the remedy prescribed in subdivision 1, section 2432 of the Code of Civil Procedure. An execution against the property of Ira Warner, the judgment-debtor, having been issued to the sheriff of Steuben county and returned unsatisfied. The order appointed a referee to take the examination of the judgment-debtor, and a day was named in such order on which he was required to appear before the referee and submit to an examination concerning his property. The appellant contends that that order was irregularly allowed, but for all the purposes of this appeal it will be considered as properly granted. On the same day on which the order was granted the referee issued a subpoena, directed to the appellant, requiring him to appear before the referee at the same time and place that the judgment-debtor was required to appear and to give evidence in behalf of the judgment-creditors. This process was duly served on the appellant and his fees paid before the return day named in'the. order. The judgment-debtor was not, at the time the order was granted, within the State, and the same was never 'served on him, nor did he appear before the referee. The appellant, in obedience to the subpoena, appeared before the referee, who, at the request of the judgment-creditors, called the appellant to the stand and asked him to be sworn as a witness, and he, on the advice of counsel, refused to be sworn, on the ground, which he stated to the referee that, as the order had not been served on the judgment-debtor, the referee had no jurisdiction to proceed in the matter. Thereupon the referee adjourned the proceedings to a future day. The intermediate proceedings up to and including the imposition of the fine, need not be stated, for, if the witness was guilty of a contempt in refusing to be sworn, then no error is claimed by the imposition of the fine. In addition to imposing the fine, the order appealed from contained a provision requiring the appellant to appear at a place and on a day named in said order, to which day and place the proceedings had been adjourned by the referee, and then and there be sworn as a witness for the judgment-creditors, and to answer all proper questions relating to the property of the judgment-debtor, Ira Warner, and in the event of his failing to do so, to be regarded in contempt of court.

The appellant was not in any sense a party to the proceedings. The process required to be served on him required him to appear before the referee as a witness in behalf of the judgment-creditors. They had the right to examine witnesses before the referee for the purpose of discovering the debtor’s property, if he had any which could not be reached by execution (Code, § 2444), but before the officer granting the order, or referee appointed by him to examine the judgment-debtor, could acquire jurisdiction over a witness and compel him to submit to an examination, the order must be seiwed on the judgment debtor and the officer or referee thus acquire jurisdiction over him, as well as o£ the subject matter.

Without the personal service of the order, in tire manner prescribed by section 2452, before the time for the return thereof, no jurisdiction was acquired over the person of the judgment debtor and all right to proceed in the matter was gone; and if any proceedings should be taken in the matter thereafter, they would be void. (Henderson v. Stone, 40 How. Pr., 333; Riddle & Bullard on Sup. Pro., 102.)

As the judgment-debtor could not be disturbed in his property rights by these proceedings for the want of the service of the order, it follows, as matter of course, that third parties could not be detained and required to submit to an examination as witnesses in a matter which could not result in any order or decree which would be of advantage to the judgment-creditor. The right to the process of subpoena and to examine witnesses before the referee was gone as soon as the proceedings were terminated by the action of the parties or by operation of law.

The witness showed a reasonable excuse for not consenting to be examined as a witness. The power of a court to punish a witness for contempt proceeds not upon the ground of any damage sustained by a suitor in court, but is given to vindicate the dignity of the court, and a perfectly clear case should be established before a resort is had to this extraordinary jurisdiction. (1 Greenleaf on Evidence, § 319.)

The provision of the order requiring the • appellant to appear before the referee on a future day and to submit to an examination and on his failure to do so, he would be deemed guilty of contempt was also void, for the reason that the proceedings had come to an end; and also because the county judge had no authority to enforce the attendance of witnesses in any case by mere order. The appearance of third persons on behalf of the parties to the proceedings to be examined as witnesses can only be enforced by due service of the process of subpoena as upon the trial of an action. (Code, §§ 852, 2444.) The statute gives the aggrieved party a right of action against a witness who refuses to obey a subpoena duly served in which he may recover the damages lie has sustained in consequence of the failure, and fifty dollars in addition thereto. (Code, §§ 853, 855.) In such an action the plaintiff is required to show, in-order to sustain a recovery, that the witness was material, and that he sustained damages from his non-attendance. (Courtney v. Balter, 3 Denio, 27; Carrington v. Hutson, 28 Hun, 371.)

It is manifest that the plaintiff could not make a case for the recovery of damages, or for the penalty given by the statute, against the appellant upon the facts disclosed by the record, for the reason that the proceedings) were terminated by the failure to serve the order on the judgment-debtor. We think it clear that the witness stated to the referee a good and valid reason for refusing to be sworn, and .that he was not guilty of contempt.

The respondents contend that this court has no jurisdiction to review the order, and that the appeal should be dismissed. The .objection is based on the provisions of section 2433, which prescribes the manner, and the only maimer,of reviewing an order made in supplementary proceedings, and it is admitted that it does not permit of an appeal from such an order directly to the General Term; but the mode of review prescribed by that section has no application to an order made in proceedings to punish a witness for contempt, as the .provisions of that section are limited to orders which affect only parties to the pending proceedings. Proceedings against a witness for contempt for refusing to comply with the process of a subpoena are not to indemnify the aggrieved party against any loss he may have sustained by reason of the refusal of the witness to testify; but are supported for the purpose of vindicating the power and dignity of the court, whose process has been treated by him with contempt. Proceedings for that reason may be carried on against the witness who has refused to testify after the proceedings in which he was subpoenaed to appear has been terminated. Although the conduct of the witness complained of may have taken |>lace pending and as a part of such matter, the proceedings to punish him for contempt are original in their character, and are independent of the other proceedings. An appeal from the order directly to this court ivas, proper under section 1348.

The order appealed from should be reversed, with ten dollars, costs and disbursements.

All concur.

Order reversed, with ten dollars costs and disbursements.