author: Pee Cueiah :

text:
    In the Matter of the Petition of JULIA BLEWITT for the Appointment of a Committee of the Person and Property of JAMES BLEWITT.

      Insane — notice to the lunatic of the application to appoint a commission — not essential to confer jurisdiction — waiver of the objection — order protecting the rights of a lunatic not notified in the first instance— Code of Civil Procedure, secs. 2320, 2325, 2327.
    Upon an appeal from an order denying a motion to vacate a commission in tiie nature of a writ de lunático inquirendo, and all proceedings thereunder, it appeared that no notice of the application for the commission was given to the lunatic.

      Held, that while this was a grave irregularity it did not deprive the court of jurisdiction, since, from the allegations of the petition, it, in the opinion of the court, presumptively appeared that the person proceeded against was a person who, at the time the petition was presented, might have been subject to the appointment of a committee.

      "Where it appears that the alleged, lunatic has been afforded as full opportunity to contest the matter as though he had had notice thereof in the first instance, the court will not set aside the proceedings for want of notice to him.

      It seems, that a proceeding taken by the lunatic to supersede the commission, upon the ground that he had been restored to health, might be a waiver of the objection that he had not had notice.
    Upon the application to set aside the commission the court refused the same, but allowed the petitioner to traverse all the allegations of the original petition, and directed an immediate trial of the issues so found before the same commissioners, who had been appointed in the original proceeding, and before a sheriff’s jury. Held, that such an order sufficiently preserved the rights of the lunatic.
    Appeal by James Blewitt from an order, entered in the office of the clerk of the city -and county of New York on the 16th day of March, 1891, denying his motion to vacate the proceedings herein for want of jurisdiction, and for irregularity.

      Isaac M, Miller, for James Blewitt, appellant.

      Lorenzo .Semple, for Julia Blewitt, committee, etc., respondent.
   Pee Cueiah :

We agree with the learned justice before whom this matter was heard at Special Term, that the omission to give the alleged lunatic notice of the presentation of the petition to the court was a very grave irregularity. (Code of Civil Procedure, § 2325.) But we do not agree with the counsel for the appellant that the failure to give such notice deprived the court of jurisdiction. Linder the Code of Civil Procedure, the jurisdiction of the Supreme Court extends to the custody of the person, and the care of the property of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy or habitual drunkenness. (Code, § 2320.) We think that it presumptively ap>peared, from the allegations contained in the petition, that James Blewitt, at the time of its presentation, was a person in whose case the court, in the exercise of its discretion, could appoint a committee, and that, therefore, under the provisions of section 2327 of the Code it acquired jurisdiction to make the order that a commission issue. Wliil e, therefore, the failure to notify Blewitt of the presentation of the petition was, as already observed, an irregularity of a very grave character, we think that the jurisdiction of this court in the matter cannot be successfully questioned; and if the whole record, now before the court, shows that the alleged lunatic has been, given every opportunity to be heard, which he could have had in the first instance, that the irregularity is not of such a character as to require the court to vacate and set aside all the proceedings heretofore taken. It appears from the record that James Blewitt, on or about the 23d of January, 1891, presented a petition to this court in which, after reciting that on the 12th of June, 1890,. a commission in the nature of a writ de lunatieo inquirendo was issued out of this court against your petitioner, and that on the 23d of June, 1890, an inquisition was taken under the same, whereby “ the petitioner was found a lunatic, and Julia Blewitt, wife of your petitioner, was, on June 25, 1890, appointed by this court, a committee of his person and estate,” the petitioner goes on to aver that “ he is now of sound mind and understanding, and has been so for several months, and lie believes that said commission of lunacy should now be superseded because unnecessary.” The petitioner, therefore, prays “ that an order be granted requiring the before-named committee to show cause, if any there be, to this court on a day certainr why the said commission, inquisition and the proceedings therein should not be superseded and annulled forthwith, and that a writ in the nature of a supersedeas may issue for that purpose.” The hearing upon that order to show cause took place before Mr. Justice INGRAHAM, and after hearing counsel and perusing voluminous affidavits the petition was in all respects denied, and the proceeding dismissed.

It may well be argued that by taking that proceeding James Blewitt cured the irregularity of which lie now complains. The present proceeding came before the court on a motion to vacate and set aside the commission and return thereof, the inquisition, the order appointing the committee and all other proceedings for irregularity, because the said proceedings were without notice to Blewitt, and also because the said inquisition never received the confirmation of this court, and that this court had no jurisdiction to appoint the committee. Upon the hearing of that motion Mr. Justice Beach deniéd the motion to vacate and set aside the commission and the return thereof, the inquisition and the order appointing the committee, but gave leave to the petitioner to traverse the allegations of the original petition, by an answer to be served upon the attorney for the committee within five clays from-the entry of this order, and directed the issue so formed to be tried before the commissioners originally appointed by the court and a sheriffs jury The order further required that teu days’ notice of the time and place of said hearing be given to the said James Blewitt, and that he appear before the said commissioners and jury for examination before them. It was further ordered that the committee pay to the said James Blewitt the sum of $250 to defray his expenses of defense.

TVe are of opinion that by this order all the rights of Blewitt were preserved, and that as the court, notwithstanding the irregularity heretofore referred to, .had obtained jurisdiction of the matter, the whole proceeding should not bo vacted and set aside. The order below will, therefore, be affirmed, but with liberty to James Blewitt to serve the answer provided for in the order, and also alleging his restoration to health within ten days after notice of the order to be entered on this decision.

Present — Yan Beunt, P. J, Daniels and Lawbenoe, JJ.

So ordered.


source: Caselaw Access Project

author: BarRett, J.: INGRAHAM. J. : DaNiels, J.

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH BARONDESS, Appellant.
    Urimes— obtaining money from an employer under a threat to keep the members of a' labor union from returning to work, is not extortion.

    Section 552 of the Penal Code defines the crime of extortion to be “the obtaining of property from another with his consent, induced by a wrongful use of force- or fear, or under color of official right.”
    Section 553 of said Code declares that “fear, such as will constitute extortion, may be induced by a threat to do an unlawful injury to the person or property of the individual threatened, or to any relative of his, or to any member of liisfamily.”
    An indictment, found under said sections, charged the defendant with liavingobtained a check for the sum of $100 from a firm by means of a threat, made by him to them, to do an unlawful injury to their property, that is to say, to imperil and destroy their business and prevent them from carrying on the same.

      Upon tlie trial of this indictment it appeared that the firm were cloak manufacturers, having on hand a large amount of materials cut and ready to make up in their trade, and requiring immediate manufacture; that the defendant was the president and representative of an association of cloak operatives; that troubles as to the rate of wages arose between the firm and its workmen, and the latter stopped work; that after various negotiations the workmen agreed to return, hut did not do so; that upon the firm inquiring the reason,for this tire defendant stated it to be because the firm had not settled with him, and he said that if the firm wanted their workmen hack they must pay him a sum, which was finally fixed at $100, which sum the firm paid.

      Held, that a conviction for extortion founded upon such payment could not be sustained.
    That the alleged threat contained no element of violence, intimidation or physical injury, but was, at most, a threat that unless he was paid the defendant would use his influence to prevent the operatives from returning to work.
    That such a threat was not, within the meaning of the statute, “a threat to do an unlawful injury to the * * * property of the individual threatened ”
    That the offense contemplated by the Penal Code is not a threat, which may be shown, aliunde, to injure property in an indirect way, but one which goes to the direct injury of a specific thing.
    The law relative to extortion, as it existed prior to the Penal Code, reviewed. (Per Barrett, J.)
    That a threat, indictable under said sections of the Penal Code must be “unlawful ” and that neither the defendant’s threat to keep the operatives from work, nor their mere abstention from work, was unlawful in the sense that it involved a criminal oifense. (Daniels, J\, dissenting.),
    Appeal by the defendant, Joseph Barondess, from a judgment of conviction of extortion, rendered against' him at the New York Oyer and Terminer on the 7th day of May, 1891, upon which date he was sentenced to be imprisoned in the State prison at hard labor for the term of one year and nine months.

      Howe c& Hummel, for the appellant.

      Bartow 8. Weeks, for the respondent.
   BarRett, J.:

The main question in this ease is, whether the obtaining of money from another with his consent, induced by a threat to injure the business of the individual threatened by persuading his employees to absent themselves from work is “ extortion,” as that offense is defined in the Penal Code (§§ 552, 553, sub. 1). I held in the cases of The People v. Wilzig, Holdorf and Dannhauser (4 N. Y. Crim.

Hep., 403) that it was extortion to procure money by fear induced by the threat to continue a so-called “ boycott,” in which the elements of violence, intimidation and direct injury to tangible personal property were prominent and marked features. It was also ruled in those cases that t-lie threat to. do an unlawful injury to the property ” of another, which is one of the statutory conditions of this offense, might be predicated of an intimidating attitude on the part of those engaged in the overt act without actual violence or direct threat by word of mouth. Actual violence ivas there proved, also actual injury to the complainant’s furniture, goods and fixtures; and the question whether the threat to continue the boycott ” in the manner in which it had been conducted amounted to a threat to continue the physical injury to the complainant’s furniture, goods and fixtures was left to the jury. In the case at bar the elements of violence, intimidation and physical injury to tangible property are entirely wanting. The threats made were not threats of violence, nor was the attitude of the defendant or of his associates an attitude of physical intimidation. The utmost that can be claimed by the prosecution is, that the defendant, as a leader, exercised sufficient influence over the complainant’s employees to keep them from resuming their employment until he was paid the sum finally agreed upon. He utilized that influence and held it over the complainants to accomplish his purpose. The employees, whom he professed to represent, were equally free from violence or from an attitude of intimidation. Thus, the threat, as already stated, was merely that the men would not work until the defendant was paid. Was that a threat to do an unlawful injury to the complainant’s property % The answer, in my judgment, must be in the negative. It certainly was not a threat to do injury to the material or to the other property in the complainant’s place of business. It was, therefore, simply a threat to injure his business or estate; in other words, to reduce his gains or to prevent his making gains. There can be no doubt that an injury to one’s business is an “ injury to property ” for the purposes of a civil action. Indeed, the Code of Civil Procedure (§ 3343, sub. 10), defines an “ injury to property ” as an actionable act whereby the estate of another is lessened. But this definition is expressly limited to the construction of the Civil Code in which it is embodied, while it is conspicuously absent from the list of definitions given in the Penal Code. (Penal Code, § 718.) It must be supposed tbat tlie .legislature thus intended to eliminate mere actionable acts, whereby the estate of another is lessened, from the domain of criminal offenses, .and to limit indictable wrongs to injuries done to personal property, .as such property is defined in the Penal Code. Thus, a threat .unlawfully to injure goods, chattels and effects,” or to deface or destroy “money, evidences of rights in action or written instruments” of a particular description, would be a threat to do an. unlawful injury to property, and would suffice to make out a case ■•of extortion. This view is in harmony with the general purpose ..and intent of criminal jurisprudence, which deals mainly with what is materially evidenced. The opposite view would leave the question of guilt or innocence to be decided, not by the act of the •accused alone, operating upon some tangible thing, but by evidence .aliunde with respect to an intangible condition of affairs. If, for instance, property here means “ business,” then what was the threat, .and liow was it to work an injury to the complainant’s business? It was, as we have seen, a threat to' keep people from working for the complainants. Not. all people, but only the former employees of the complainants. Why should that necessarily woi’k an injury to their business ? Only by showing the urgent present need of workmen; the inability to secure competent persons to fill the places of the former employees; the actual condition of the material required to be manufactured; the extent of existing orders for manufactured goods, and a variety of other considerations going 'to make up the present status of the business. Now, if the complainants could supply the places of the former employees with better workmen at less wages, then the threat would be to benefit the business, not to injure it. But even if the tendency of the act threatened might be to injure the business, how would that help the matter? The statute does not deal with tendencies'or probabilities, much less possibilities. The threat must be to do an unlawful injury to property ; not to do something which may affect it injuriously, but which must injure it.

If the prosecution is right, the statute would operate upon “ good will ” as well as upon reduced profits, in fact, upon property invisible and non-objective, the very existence of which would' have to be brought to light by independent evidence. This could not have been the intention of tlie statute. Tlie corpus delicti is, first, the obtaining of the money or property, and, second, the threat to injure some specific thing by a direct physical attack upon the object of the threat. Property and personare placed in the same category, and the property contemplated is something that can be injured in the same way as “the person” can be injured.

This injury, whether to person or property, must surely be direct. The prosecution, par exemple, cannot say that, although there was no threat to molest the complainant physically, or even to touch his person, yet the menace, if executed, might have affected his nerves and thus injured his person. Consideration of the law as it existed prior to the Penal Code adds force to this construction. At common law, extortion signified any oppression by color of right, but, technically, it was defined to be the taking of money by an officer by reason of his office where none at all was due, or not so much due, or when it was not yet due. (Wharton’s Crim. Law [3d ed.], 833 ; 1 Hawk, B. 68, § 1; The People v. Whaley, 6 Cow., 663.) These rules as to the taking of unlawful fees were codified in the Revised Statutes (2 R. S. [Edmond’s ed.], 669, 670, §§ 5, 6, 7, pages 778, 779, § 17). And we also find there a provision making a verbal or written threat to accuse another of any offense, with intent to extort property or money, a misdemeanor. (2 R. S. [Edmond’s ed.], 712, § 2.) The obtaining of money by force or fear does not, therefore, seem to have been extortion either at common law or under the' Revised Statutes. It was robbery at common law to extort money under the threat of charging one with an unnatural crime. {Iiex v. Jones, 1 Leach, 139 ; Rex v. Donnally, 1 id., 193 ; Rex v. Cannon, Russell & Ryan, 146.) And this view was taken of the provision of the Revised Statutes defining robbery in the second degree, in The People v. McDaniels (1 Park. Cr., 198), notwithstanding the specific legislation to which I have referred making the threat of such an accusation with intent to extort money a misdemeanor. Under the Revised Statutes the sending of a letter threatening to accuse any person of any crime or to do any injury to the person or property of any one with a view or intent to extort any money, etc., was declared to be an attempt to rob. And the fact that this offense was placed in the same class as that of robbery was emphasized in The People v. Griffin (2 Barb., 427).

It will thus be seen that the offense now under consideration, though classed for the first time in the Penal Code as extortion, really completes the legislation against robbery, attempts at robbery and cognate offenses. Section 552 of the Penal Code is in the alternative, treating extortion by force and fear as one thing, and extortion by official action as another. These two methods of extortion are separately defined in subsequent sections, but it is apparent from the language of the section providing the penalty for extortion by force or fear (§ 554) that the latter is but a supplement, under the name of extortion, to robbery in the first, second and third degrees. This section (554) provides for such punishment only when the money or other property has been extorted by force or fear “ under circumstances not amounting to robbery ; ” in other words, when the money or other property has been obtained “ with the consent ” of the complainant, and not “ against his will.” For really the main distinction between robbery in some degree and this form of extortion lies just there. Robbery is the unlawful talcing against the will by means of force or violence or fear of injury, immediate or future, to one’s person or property (Penal Code, § 224), while extortion is the obtaining with consent by similar means. Thus, unless robbery could be predicated of the taking against the complainant’s will of the money here obtained with his consent (that is, in case such money had really been taken against his will), it is difficult to see how extortion can be sustained in a case where it was taken with his consent. It certainly would be a novel indictment for robbery which charged the taking of property against the will of the complainant, by means of fear of injury to his property, e. g., his business, resulting from threats on the part of the robber or highwayman that he would use his influence with the complainant’s landlord not to extend his lease, or with the manufacturers not to sell him goods, or with the banks not to discount his paper.

There is another difficulty in the present case, and that is, that the injury threatened must, in itself, be “unlawful.” Now, the abstention from work, on the part of the operatives, was not unlawful. It is not claimed that they broke any contract of service or hiring, knowing or having reasonable cause to believe that the probable consequence of so doing would be to endanger human life or to cause grievous bodily injury or to expose valuable property to destruction or serious injury. (Penal Code, § 673.) It is not, in fact, pretended that these operatives were working for the complainants under any special contract at all. On the other hand, they were not guilty of “ conspiracy,” for the reason that orderly and peaceful co-operation for the purpose of obtaining an advance' in the rate of wages is expressly excepted from the conspiracy sections. (Penal Code, § 170.) This exception was further emphasized by an amendment to section 675 of the Penal Code, which went into effect on the first of September, in the present year, and which reads as follows: “ But nothing in this Code contained shall be so construed as to prevent any person from demanding an increase-of wages or from assembling and using all lawful means to induce employers to pay such wages, to all persons employed by them, as-shall be a just and fair compensation for services rendered.” (Laws of 1891, chap. 327.)

Thus, the law is unmistakable that s.o long as there is neither violence nor an attitude of intimidation nor interference with others, employees are free to work or to refrain from working, as they please; free individually and free in combination. The attitude of the complainant’s employees, at the time the threat in question was made, was not, therefore, unlawful. It would seem to follow that a threat to induce a continuance of their lawful attitude could not of itself be unlawful, at least in the sense of criminal. Whether a civil action wonld lie for damages sustained by the defendant’s acts; is another question, one with which we have nothing now to do. It is sufficient, for the determination of this case, that the defendant’s threat to use his influence to keep men from working for the complainants, however wrong morally, was not criminal. It was; not a threat to do the complainants an unlawful injury, but to continue a condition of things which, even if injurious, was undoubtedly lawful. The act threatened, that is, the act of advising, persuading: or exhorting the men not to resume work, was not in itself indictable, and was no more unlawful than the act of the men in abstaining-from work. The statutory crime- does not consist of a threat to dean improper or unjust act, nor even of a threat to injure another’s business by lawful means, but to do an unlawful injury to the property of another. Whatever injury was being done to the complain•ant’s business at the time of tlie threat in question was not an unlawful injury. And it follows that the defendant cannot be said to have threatened to do an unlawful injury to such business.

For these reasons the judgment and conviction should be reversed .and a new trial ordered.

INGRAHAM. J. :

The defendant was indicted for extorting from the firm of Popkin ■& Marks $100, by means of a threat “to do an unlawful injury to their property, that is to say, to injure an'd destroy the said business of them, the said Abraham Popkin and Abraham Marks, and '.to prevent and hinder them from carrying on the same.”

The crime of extortion is defined by section 552 of the Code to be the obtaining of property from 'another, with his consent induced by a wrongful use of force or fear, or under color of official right, and the defendant claimed on the trial, and now claims before us, that he is not guilty of extortion as defined by this act, and that, conceding the testimony offered on behalf of the People to be true, the crime was not proven.

By section 553 of the Penal Code, it is provided that “fear, such •as will constitute extortion, may be induced, by a threat to do an unlawful injury to the person or property of the individual threatened, or to any relative of his, or to any member of his family.” And to support this judgment it must appear that the defendant extorted from the firm of Popkin & Marsh, the $100 mentioned in the indictment by the wrongful use of fear induced by a threat to do an unlawful injury to the property of such firm.

From an analysis of section 553, it appears that the threat to Induce fear, as defined by the section, must contain two elements: 'First. The threat must be to do what is unlawful; and, second, the •'injury must be an injury to the property or person of the individual -threatened, or to a relative of his, or to a member of his family, and unless it appears that what the person threatened to do was unlawful, .and if performed would do an injury to the person or property of •the. person threatened, the party making the threat is not guilty of fhe crime.

In construing this section of the Code, we should give a reasonable construction to the language used, not a forced and unnatural construction extending the meaning of the words so as to include threats which a person of ordinary intelligence would not understand to be within the fair meaning of the language.

Popldn & Marks were cloak manufacturers m the city of Now York. Their employees had left work in consequence of a dispute between themselves and the firm as to wages, and on the ninth of February an agreement was arrived at between the firm and their •employees whereby the employees agreed to return to work on the following morning. On that morning, however, they did not return to work, but the defendant came to the office of the firm accompanied by several of the firm’s employees and at that time he •demanded the sum of $500, saying to Mr. Popkin, “ You have got to pay me $500 to have your people back again to work.” Upon the refusal of Popkin to pay any sum, he reduced his demand to $300, saying: “ If you do not give me the $300, you cannot have your people back again to work, I will take $300 as long as I am here, and as quick as I am going to leave this place it will cost you $500.”

That demand was refused and defendant left his place. In a few minutes Zipkin, one of his companions, returned, and 'after some consultation with Marks, one of the members of the firm, Marks said he would pay the defendant $100. Zipkin left and in a short time returned with defendant who then said “I will take $100. I am doing that as a favor to Zipkin and instead of $300 if you want your people back, I will take $100.”

A check was then drawn by the firm to the order of the defendant and given to him, upon which he drew from the bank account of the firm the sum of $100, and this is the only evidence of any threat made by defendant to Popkin & Marks or to any one.

It seems to me clear, that there was no threat to do an unlawful injury to property. The defendant did not expressly threaten Popkin & Marks that he would do anything himself, there was no statement that he would prevent the men from working; what he said was that they would not return to work. It was certainly not unlawful for these workmen to refuse to work for Popkin & Marks, nor was it unlawful for defendant to advise them not to work. There was no threat, therefore, to do an unlawful act. Defendant did not of his own accord go to the place of business of Popkin & Marks, but was sent for b}r them ; and his statement that the men would not return to work, even if that could be construed into a threat that he would prevent them from returning to work, was not a threat to do an unlawful injury to the property of Popkin & Marks, because of the fact that Unless the men did return Popkin & Marks could not advantageously continue their business.

If one of Popkin & Marks’ employees had refused to work for them, such a refusal, although it might have seriously affected their business, and might have caused them serious loss, would not have been an unlawful injury to their business, because such an employee had the legal right to work for Popkin & Marks or not, -as he pleased; and if it was not unlawful for an employee to refuse to work, it was not unlawful for a third party to advise or induce him to refuse to work, so that a threat of such third party that he would prevent such employee from'working would not be a threat to do an unlawful injury to the employer’s business.

Many illustrations might be given of instances where the exercise of a legal right by one person would cause an injury to the property of another, and where there is no penalty or liability because of the exercise of such right. The owner of a dwelling-house could devote it to business purposes and thereby injure the value of adjoining property. Tet such use would not be an unlawful in jury to the adjoining property, and a threat by the owner to make such a use of his property would not be a threat to do an “ unlawful injury ” to property. It might be said to be a threat to do a “lawful injury” to the adjoining house, but such a threat is not sufficient to sustain a conviction for extortion, and it seems to me equally clear that a threat to induce the owner thereof to so use his house is not a threat to unlawfully injure property, because, if it is not unlawful for the owner to use it for a particular use, it is not unlawful for a person to procure the owner to so use it.

Nor do I think that such a threat can be said to be a threat to do an in jury to property.

There is no evidence that the defendant had any knowledge that Popkin & Marks had any unmanufactured goods on hand at the time of the occurrence in controversy, or that he knew, or had reason to know, that the refusal of the men to return to work would cause injury to any of their property. Popkin & Marks had a right to employ such men as they chose; and their employees had a right to work for whom they chose, and the mere supposition that the refusal of this particular body of men to work for Popkin & Marks would in some way embarrass them in manufacturing goods for their fall trade is all that there is to sustain the charge, that this was a threat to injure property. But it seems to me clear that the evident intent of the statute is that the threat should be to in jure a specific piece of property. There must be the existence of .a res and a threat to injure it.

The section in question is part of chapter 5 of title 16 of the Penal Code. The title treats of crimes against property, and includes arson, burglary and house breaking, forgery and counterfeiting, larceny, embezzlement and extortion. The word property, as defined by section 718 of the Penal Code, would not include a man’s business, and there could not certainly be an indictment for larceny for stealing the business. The meaning of a threat to do an unlawful injury to the person of an individual would be a threat to, in some way, injure his body, and the threat to do an unlawful injury to iiis property, applying the words in their ordinary significance, would be in some way to injure some specific property.

It could hardly be claimed that a threat to injure a person’s character or his professional reputation would be an injury to property within the meaning of this act, and yet such a threat, where the successful conduct of such person’s business depended largely upon his character or reputation, might seriously in jure his business. It is a threat to injure the thing that constitutes the crime, not to do an act which indirectly may do damage to business or its successful conduct. I think, therefore, that the evidence was insufficient to sustain the conviction, and the judgment must be reversed and a new trial ordered.

DaNiels, J.

(dissenting):

The indictment charged the defendant with having obtained a check for the sum of one hundred dollars, and of the value of that amount, from Abraham Popkin and Abraham Marks, who were copartners in trade carrying on business in the city of New York, as cloak manufacturers, by means of a threat made by him to them to do an unlawful injury to their property, that is to say, to injure ■and destroy their business, and prevent and hinder them from carrying on the same. It appeared by the evidence that these two-persons were cloak manufacturers employing a large number of persons in that business, and that in January, 1891, a strike took place by which the persons in their own immediate employment and those employed by contractors, with them, refused to work until a more satisfactory arrangement might be made for their compensation. While these persons were on their strike the firm employed others to manufacture their garments, who were either non-union-persons or else engaged in the employment in violation of the rules of their union. And efforts were made to arrange and agree upon terms which would be satisfactory to the individuals who were out upon the strike, and would induce them to resume their former employment. And in the course of these proceedings the defendant acted on behalf of the persons who were engaged or combined-in the strike. lie acted as their representative and was the manager of the Oloak-maker’s Union. With him also were associated other persons, as a committee, who participated in the negotiations-had with the members of this firm of Popkin & Marks. A result was reached by which a scale of prices was agreed upon and assented to by the defendant, on or about the 24 th of January, 189 L But they proved to be unsatisfactory to the individuals engaged in the strike, and the negotiations were further continued to obtain more advantageous terms by way of compensation for the services of the individuals included in the strike. These were finally obtained on the 9th of February, 1891, and it was agreed that the former-employees of the firm should return to their work, provided the firm discharged the persons from their service who in the meantime had been employed by them. The members of the firm assented to this-condition, as well as the scale of prices, and discharged the persons from their employment who were not members of the union, or who, as members, had been engaged in their employment in violation of the rules or regulations of the order. But the persons-who had been upon the strike did not return to the service of the firm. And evidence was given upon the trial of the indictment by Mr. Popkin, to the effect that he inquired of the defendant why it was that these person had not resumed their employment as that had been arranged between them and the members of the firm. And his evidence is, that the defendant theji informed him that the-persons wlio bad been upon the strike did not return to the employment of the firm for tlie reason that Popkin bad not settled with the defendant. He stated then that be asked the defendant: “"What kind of a settlement have I got with you ? I don’t owe you any-money.” And that the reply was: “You have got to pay me five hundred dollars to have your people back again to work. * * * If you want to have your people back again to work you have got to pay me that amount of money.” I told him “ I didn’t know what for.” Finally he says to me, “ I will take three hundred dollars.” I told him “ I wouldn’t give you one cent, because I don’t know for what.” He says “ If you do not give me the three hundred dollars, you can’t have your people back again to work.” And when this conclusion was reached and asserted, the defendant, together with one of the persons named Zipkin, who was with him, left the store, and shortly afterwards Zipkin returned and said something about a settlement for one hundred dollars This statement was made to Mr. Marks, the other partner. And shortly after that the defendant returned to the store with Mr. Zipkin, and then stated “ I will take one hundred dollars. I am doing that as a favor to Zipkin, and instead of three hundred dollars, if you want your people back, I will take one hundred dollars.” And thereupon a check was given to the defendant, subscribed by the firm, for the sum of one hundred dollars, upon which the defendant received the money. The witness further testified that he believed, at the time the check was paid to the defendant, that the latter had the power to keep his men from returning to their work, and it was in that belief that he paid the money. The evidence given by Marks, the other partner, was not so full or complete as that obtained from the witness Popkin, but it still tended to corroborate the evidence of the latter. And so did that of the witness Bermen, who was the bookkeeper of the firm. ■ It was also stated that the defendant represented himself as having the control of these persons who previously had been in the service of the firm and had agreed to return to that employment.

At the close of the case, on the part of the people, a motion was-made for the accpiittal of the defendant, which was denied and the counsel for the defendant excepted to that denial. This motion evidently proceeded upon the theory that the threat which the jury could very well imply or infer, from what is stated to have taken place, was not such a threat as the law required to create the ofíense of extortion. And that position has been taken in support of the present appeal from the judgment.

"Whether the evidence was sufficient to place the case w'ithin the provisions of the law relative to this offense must depend upon the construction which should be given to the statute enacted to define and punish the crime of extortion. It has been declared by section 552 of the Penal Code of the State, that u Extortion is the obtaining of property from another with his consent, induced by a wrongful use of force 'or fear, or' under color of official right.” And by section 553 of the same Code it has been declared that, “ Fear, such as will constitute extortion, may be induced by a threat to do an unlawful injury to the person or property of the individual threatened, or to any relative of his, nr to any member of his family.” Assuming the evidence of the witness Popldn to be reliable, as that may properly be done, inasmuch as the jury appear to have accepted it as truthful, the point is presented whether a threat to prevent the persons who had been upon the strike from returning to and entering the employment of the firm was a threat to do an unlawful injury to the property of this firm. It is stated, in the evidence of the witness first sworn, that they had on hand material cut up and ready for manufacturing and not manufactured, and that what was cut and uncut amounted to the sum of about fifty thousand dollars, and which was designed to be manufactured by the firm in the course of its business. It was also stated that the season for the sale of their manufactured garments closed about the fifteenth of April. The firm, at the time, had become, by the discharge of the persons who had been employed by it, incapable of proceeding with the manufacture of these garments, and had placed itself and the business carried on by it in a state of -entire dependence upon the individuals who had been engaged in the strike. And the effect of what is stated to have been said to one of its members by the defendant was that this business would be interrupted and necessarily remain in suspense until the money which was demanded should be paid over. The defendant, according to the testimony of Mr. Popkin, asserted himself to be in such a relation to the persons on the strike, even after they had adjusted ;their differences as to compensation, as to control their movements and prevent them from returning into the service of the firm unless his demand was satisfied. By this interposition of his authority over the working people, the belief is stated to have been produced that the persons would not return to their employment until this money was paid to the defendant. And that of itself was a threat on his part to injure the property or business of the firm, for the interruption of that business would necessarily be attended with loss to the firm. And a loss resulting from the suspension or interruption of the business would necessarily be an injury to property, and it was to avoid that injury that this money was paid over.

The statute does not require the narrow construction insisted upon by the defendant’s counsel. Bor it has not been, either by its language or reasonable import, confined to the case of an actual injury to some specific article of property, but it has been made to include the threat to do any unlawful injury to property. And business is property, as much so as the articles themselves which are included in its transactions. Besides that, this term “property” has been so defined by subdivisions 9, 14 and .15 of section 718 of the Penal Code as to include the business itself, and the loss resulting from its interruption. By the first of these subdivisions it has been declared that: “ The term ‘ property ’ includes both real and personal property, things in action, money, bank bills, and all articles of value.” And it has been further declared by subdivision 15 of the same section, that the term “ personal property ” includes every description of money, goods, chattels, effects, evidences of rights in action, and all written, instruments by which any pecuniary obligation, right or title to property, real or personal, is created, acknowledged, transferred, increased, defeated, discharged or diminished, and every right and interest therein. And this is conformable to the significance given to the same term by legal writers. For it has been said by Blackstone that property consists in the free use, enjoyment and disposal of all the owner’s acquisitions, without any control or diminution save only by the laws of the land. (1 Blaclcstone’s Com. [Sharswood ed.], 138.)

And in Springfield Fire and Marine Insurance Company v. Allen (43 N. Y., 389), it was stated in the opinion of the court that “ property is a tiling owned, that to which a person has or may have a legal title.” (Id., 395) And in all its'attributes it has been brought within the protection of the Constitution of both the nation and the State by the declaration that no person shall be deprived of property without due process of law. And that includes within this term a business which may be built up for the manufacture and sale of property, as well as the tangible articles themselves employed or used in the course of such business. There would obviously be no reason for so distinguishing the word property,” as it has been used in these sections of the Code, as to apply it solely to tangible articles capable in and of themselves of receiving direct injury by the unlawful or wrongful act of another. The section has not employed the term in that manner, but it has included it in its broad and unrestricted sense, applying its prohibition to whatever may be properly maintained to be property. And the business of persons engaged in it is certainly within the unrestricted significance of the term, as it has been employed, as much a matter of property as any of the goods or garments manufactured or sold in the course of such business. The defendant, consequently, was not entitled to the direction which was asked for in his favor, for tine evidence did tend to establish the existence of an offense within the scope of this indictment.

An exception was also taken to what was stated to have been said and done at one of the meetings held by the cloak-makers.' Mr. Zip-kin was the chairman of that meeting, and was with the defendant at the office of the firm when the prices were fixed. And not only from the evidence given on the part of the prosecution, but from that also produced in behalf of the defendant, it was made to appear that he was their substantial representative, and that his services were employed to harmonize the differences between the cloak-makers and this firm. And both on behalf of the prosecution as. well as the defense the proceedings of the meetings of the cloak-makers were proved in order to exhibit their intention and state of mind concerning the resumption of their employment. They were, in fact, as the evidence indicated the case to be, co-operating together. They asserted their claims, and the defendant endeavored to obtain such concessions as would satisfy these persons. And there was, consequently, no impropriety in showing what was exacted by them as a subject-matter falling within the province of the defendant for negotiation and settlement. There was really no dispute as to theirexactions, or the fact that they co-operated together to secure the concession of their terms, or the settlement upon others which should be satisfactory to them. Both parties were acting to bring-about this result. And to attain it, it became necessary to understand what the cloak-makers themselves required should be made in the way of concessions for advanced compensation for their services. And evidence of what took place at their meeting was admissible for the purpose of proving what they insisted upon, and what the . defendant himself endeavored to secure in their behalf.

The defendant was asked, upon his own examination as a witness, whether he kept the money himself, that sum of $100. This was objected to, and the objection was sustained, and to that an exception was taken. The theory of the defense was, that the defendant demanded this money, not for himself, but as some compensation for the cloak-makers during the time they had been engaged in the strike. And the object of the inquiry was probably to show that he had paid over the $ 100 to them, or for their benefit. And if no other evidence had been given concerning this-money, it would probably have been error to have excluded this answer. But the witness himself had previously stated that lie went with Mr. Zipkin and cashed the check and got the money, and went with Mr. Zipkin to tlie office and delivered the money to the cashier.” He also testified that he stated to Mr. Popkip that he took the money to be distributed between the working people of Popkin & Marks; that he had obtained it at their request as they had instructed him, and did not receive it intending to appropriate any of it to his own use. And that, with the other evidence, included all that was required to be proved to relieve the defendant from this criminal accusation if the-jury had confided in his statement.

He was also interrogated as to remarks that he had made at a meeting at which he .was present as one of the speakers. But there was no error in taking his answer as to what he had said at the meeting as some evidence bearing upon his general intention in the control or management of the affairs of the unions. He stated generally that he believed that the working people had a right to unite themselves and form a union and ask for justice; and that, no doubt, he was correct in stating. This subject was very fully examined in Thomas v. Musical, etc., Union (17 N. Y. St. Rep., 51), in which the writer examined the authorities accessible upon this subject. And it was there concluded that all persons had the right to prescribe the terms upon which they would perform their services. And that this was not only an individual right, but it was one which could be protected by the combination of two or more persons. And it was their right to refuse to render their services for any person who should be offensive or disagreeable to them, or with , any person who should not for any cause receive their approval; that so. far the law permitted all working people to combine together either for their individual or their mutual protection. And while these views were not there expressly accepted by the other members of the court, they are still deemed to be well supported by the authorities. And the case in which they were expressed, as it was, in fact, decided, is no authority to the contrary, for the reason that the decision made by the majority of the court, as well as by the Special Term, was afterwards reversed by the Court of Appeals. (Thomas v. Musical, etc., Union, 30 N. Y. St. Rep., 563.) There was, accordingly, no infringement of the law in what the defendant himself, in this manner, stated he had said, nor by what he after-wards conceded to havé been his additional statement. And no harm, therefore, could have resulted to him from what he admitted to have been his remarks at the meeting.

The verdict of the jury has been objected to as against the weight of the evidence. This objection has been raised upon the fact that four witnesses besides the defendant testified that they were present .at the time when the money was demanded by him from Mr. Popkin, .and that he demanded the money not for himself, but to distribute or to divide among the persons who had been out of employment during the period of the strike. Further evidence was given by two witnesses, sworn on behalf of the defendant, as to statements made by Mr. Popkin, that there was no extortion in obtaining the money This, however, was denied by Popkin, and, in effect, also by his wife, who was present at one of the conversations.

Further testimony was also given to prove that the defendant had a good reputation among those who knew and had business intercourse with him; and from the proof, as it appears by the case, there was certainly sufficient, if the jury had credited the statements of tbe witnesses, to secure the defendant’s acquittal. But this court, not- having the advantage of seeing the witnesses and listening to the statements, and observing their manner as the jury did, cannot, on that account, assume that the verdict was not in accordance with the evidence. It will often occur that witnesses may unite in their evidence, as those did so on the part of the defendant, when the jury, from their conduct or appearance upon the stand, will fail to be impressed with the truthfulness of their statements. And the court upon an appeal, where the evidence may be in. that manner rejected, is nor at liberty to say that the jury have erred as long as they had sufficient evidence before them on the part of the prose, cution to justify their verdict. On this subject it has been said that “ when there is evidence on both sides and the case is balanced, and the mind of the court has been called upon to weigh conflicting statements and inferences, and decide upon the credibility of opposing witnesses, much weight must be accorded to the especial adaptation of the trial court to investigate and determine such questions. Any other rule would nullify the peculiar advantages which that tribunal possesses, in observing the manner and appearance of the witnesses produced, and the various physical and mental peculiarities by which the mind of the professional observer determines the degree of credit which ought prudently to be attached to oral testimony.” (Baird v. Mayor, etc., 96 N. Y., 567, 571.) And this principle requires the conclusion of the jury, as it has been expressed by their verdict, to be adopted and maintained by the court, unless the preponderance of evidence is so great as to indicate either a misunderstanding of the case or the influence of prejudice, passion or corruption. The present ease cannot be held to be of that description. It was, on the contrary, entirely proper for the consideration and decision of the jury, and their verdict cannot be set aside as opposed to the weight of the evidence. The judgment, on the contrary, is fully supported by the case as it was presented on the part of the prosecution, notwithstanding the evidence produced in favor of the defendant, and it should be affirmed.

Judgment reversed and new trial ordered.


author: Daniels, J.:

text:
    KATE REYNOLDS, Respondent, v. CATHERINE CLEARY, Appellant.

      Contract for the sale of real estate — what defects in the title will justify a vendee in refusing to accept it.

    'The vendee in a contract to sell and convey lands is entitled to a marketable title, and one concerning which there is no probability of future litigation.
    In an action brought by the vendee under a contract for the sale of real property to recover from the vendor the payment made on account of the purchase, and the damages resulting to the vendee from the vendor’s inability to convey a good title to the premises, it appeared that a covenant running with the land, relative to the non-erection of buildings for noxious trades upon the premises, might still be in force, and that a mortgage affecting the premises had been improperly foreclosed, to which latter defect in the title the vendor offered no other defense than the statute of limitations:

      Held, that the vendee was not bound to accept the title, and might recover the purchase-money paid and the expenses of searching the title.
    Appeal by the defendant Catherine Cleary from a judgment, -entered, after a trial by the court at the New York Equity Term, in the office of the clerk of the city and county of New York on the 15th day of December, 1890, directing a sale of certain real •estate which had been contracted to be sold and conveyed by the defendant to the plaintiff, the title to which was defective, and .awarding the plaintiff $275 for damages and searching fees,

      G-emrje W. McAdam, for the appellant.

      Richard O’ Gorman, for the respondent.
   Daniels, J.:

The action was brought upon a contract for the sale and conveyance of real estate, known as 527 West Eorty-fifth street in the city of New York. By the contract the defendant covenanted to execute and deliver to the plaintiff “ a proper deed containing a general warranty and the usual full covenants for the conveying and assuring to her, or them, the fee simple of the said jiremises, free from all incumbrance, excej>t as aforesaid,” which exception included a mortgage upon the property amounting to the sum of .$5,000. A deed was tendered for the performance of the agreement, which was refused by the plaintiff. This refusal was placed ■upon several grounds, including wliat was alleged to have been a ■defective foreclosure of a mortgage, through which a portion of the title to the property was acquired; and also concerning a covenant, contained in two deeds, through which the title passed, by which the grantees, in such deeds, were made to covenant with the grantor “ That neither the said parties of the second part nor their heirs shall or will at any time hereafter erect or permit, upon any part of the lots of land above described, any slaughter-house, tallow chandlery, glue factory, bone factory., or factory for the boiling or grinding of bones, varnish factory, vitriol factory, distillery, brewery or factory for tanning or dressing hides or skins, or any noxious or dangerous trade or business ; and that in every conveyance of the said premises, or of any part thereof, by the said parties of the second part or their heirs, they shall insert or cause to be inserted a covenant on the part of their grantee or grantees, that the said grantee or grantees, or his or their heirs, will not erect or permit upon any part of the premises conveyed to him or them, any slaughter-house, tallow chandlery, glue factory, bone factory, or factory for the boiling or grinding of bones, varnish factory, vitriol factory, distillery, brewery or factory for 'tanning or dressing hides or skins, or any noxious or dangerous trade or business, and it is agreed that these covenants shall run with the laud.”

The court at the trial did not definitely pass upon the objection raised to the title arising upon this covenant. And it was made to .appear in answer to the objection that the property in-the vicinity of that which is now in controversy had been devoted to the carrying on and transaction of various descriptions of business, and not as residence property. And it may be, from the evidence in the case, that this covenant might be held to have become obsolete and inoperative. (Trustees, etc., v. Thacher, 87 N. Y., 311.) But that was not so surely established as a matter of fact, as to exclude the probability of future litigation for the purpose of maintaining or •contesting the continued force and validity of this covenant. The case, in this respect, differs from that of Clement v. Burtis (121 N. Y., 708), where the covenant related alone to what would probably be a nuisance upon the property, while the covenant in the present case included all such uses of the property as were inconsistent with private residences. And if it shall be continued and maintained, it constituted an incumbrance upon this land. ( Wetmore v. Bruce, 118 N. Y., 319.)

The particular objection upon which it was held that the plaintiff was not bound to accept this title was, that the interest of Austin and James Steele, which they had acquired in the property, was not extinguished or conveyed to the purchaser by the judgment and sale in the foreclosure action. Neither of these persons was personally served with the summons in the foreclosure suit, but they were proceeded against by the publication of the summons under an order made in August, 1860, for that purpose. To entitle the plaintiff in the action to that order, under section 135 of the Code of Procedure, which was then the law, prescribing the practice, it was necessary that it should appear, from the affidavit, that the persons on whom the service was to be made could not, after due diligence, be found within the State. But the affidavit upon which the order of publication was made contained no reference or statement whatever on this subject. It was made wholly upon information, as loosely and unsatisfactory as it could possibly have been drawn, and was clearly insufficient to comply with this requirement of the statute. That was a means by which jurisdiction over the absent defendants was to be' obtained, and the proceeding was clearly pointed out and prescribed by the statute. And as it was not complied with, jurisdiction over the subject was necessarily not obtained by the judge making the order of publication. As the law was then in force, it was an essential necessity that the affidavit should show that the summons could not be personally served upon either of these defendants in the exercise of due diligence observed for that'purpose. But this affidavit wholly failed to make any reference whatever to that subject. A question of similar import was examined in the case of Carlton v. Carlton (85 N. Y., 313), where it was said that: The court or judge to whom the application is made must be satisfied as to the sufficiency of the evidence that due diligence has been used to find the defendant within the State, and that after such diligence he cannot be found therein.” (Id., 314.) In this case the affidavit was wholly silent on' the subject of the exercise of this statutory diligence, and it entirety failed to present any evidence that any effort had been made to find or serve the summons upon either of these defendants. And Peck v. Cook (41 Barb., 549), is an additional authority establishing the indispensable necessity of such proof before the order of publication could be obtained under this provision of the statute. And Greenbaum v. Dwyer (66 How., 266), follows the same construction.

The same section of the Code of Procedure also required that the order should direct a copy of the summons to be forthwith deposited in the post-office, directed to the person to be served at his place of residence, unless it appeared that it was unknown to the party making the application, or could not, with reasonable diligence, be ascertained by him. The order for publication of the summons in this foreclosure action contained no such direction. But it directed that the summons in the action be served upon the defendants Austin and James Steele, and their wives, by publishing the same once a week for twelve weeks, etc., “ and at the same time depositing a summons and copy of the complaint in this action, addressed to the said defendants severally at their last known place of residence as herein-before mentioned, and paying the postage thereon.” This direction was so far from being a compliance with the requirement of the law that it left the party at liberty to deposit the summons and copy of the complaint addressed to the defendants in the post-office at any time during which the publication progressed That publication was to be once a week for twelve weeks, and within the same time this deposit of the summons and complaint in the post-office was allowed to be made.

It has been urged that these defects in the foreclosure proceedings have been substantially avoided or removed by the subsequent possession of this property. And for that purpose it was shown that the land had been in the possession of Timothy Cleary, and that, before his possession, there had been erected and maintained a blacksmith shop upon a part of the property, and that there were sheds standing upon its rear. But how much of the land was covered in this manner he was unable to say. But, according to his recollection, these buildings were upon the lot before 1872, and extending back twenty-six years prior to the trial, and the grantor of the premises to his wife put the present building upon the land in 1871. It was further shown by James Falon that he had a blacksmith shop on the lot, and he purchased the property in September,

IIun — Yon. LXI 75 1864, and remained in tlie possession of it until it was conveyed to "William Meikle, who was the grantor of the plaintiff.

The evidence upon this subject of possession was weak and indeterminate. It might be sufficient to induce a jury to conclude that the entire lot had been held adversely by these parties for a period exceeding twenty years. And so a jury would also be at liberty to find, as a matter of fact, that there had been no adverse holding of fhe entire lot during that period. The question would necessarily be one of fact, depending upon the testimony of witnesses having knowledge of the manner in which the premises had been occupied and used. It would, at the best, leave the title in a controverted condition, attended with the risk that these persons upon whom this -service of the summons was made by publication would still be at liberty to redeem their interest in the property from the foreclosure .and sale. And when that is the nature of the proceeding, a party entitled to such a conveyance, as it was covenanted the plaintiff should receive, is not bound legally to accept the title. (Shriver v. Shriver, 86 N. Y., 576, 584, 585; Aldrich v. Bailey, 28 N. Y. St. Rep., 571; Fleming v. Burnham, 100 N. Y., 1.)

The case in this respect is quite distinguishable from that of Ottinger v. Strasburger (33 Hun, 466), which was affirmed in 102 New York, 692. There the evidence was substantial, and to a reasonable degree certain, that the title had become firmly established by the possession which had been enjoyed and held under the different devises and deed. But in this action such was not the fact, for the evidence was loose and indecisive, leaving the title to this lot subject to a probability at least of future controversy and litigation. And such a title is not required to be accepted by the vendee in a contract for the conveyance of land with the covenants mentioned In this agreement. (Vought v. Williams, 120 N. Y., 253.)

The judgment rendered for the recovery of the amount paid by ifche plaintiff, and the expense of searching the title was authorized by the facts, and it should be affirmed, with costs.

Yan Brunt, P. L, and Lambert, J., concurred.

Judgment affirmed, with costs.


text:
    FOO LONG, Respondent, v. THE AMERICAN SURETY COMPANY, Appellant.

      Surety — undertaking on a/ppeal — judgment of afjh'mance entered on a stipulation— proof of collusion and fraudulent intent.

      A. money judgment having been recovered in June, 1888, by Foo Long against one Chu Fong, an appeal was taken therefrom to the General Term, upon which an undertaking was given to stay execution, signed by a surety company. At General Term the judgment was reversed and a new trial was ordered, and in September, 1889, Foo Long appealed from such judgment of reversal to the Court of Appeals.
    While the appeal was pending in that court the parties thereto entered into a stipulation, that a judgment be entered reversing the judgment at General Term, and affirming absolutely the judgment at circuit. Acting, wholly, upon which stipulation the Court of Appeals, in January, 1891, .gave judgment in accordance therewith.
    In an action subsequently brought against the surety company to recover the amount of the judgment under its undertaking, ike company defended upon the ground that the stipulation was collusive and fraudulent; and upon the question of the insolvency of Chu Fong it offered to show that several judgments had been recovered against him by other parties in the spring and summer of 1890.

      Meld, that the rejection of this evidence was error.
    That such evidence was competent, under the circumstances of this case, upon the question whether the stipulation had not been entered into as a fraudulent device to force the surety company to pay the judgment.
    Appeal by tbe defendant, the American Surety Company, from a judgment, entered in the office of the clerk of the city and county of New York on the 8th day of June, 1891, upon a verdict for the plaintiff for $4,465.97, after a trial at the New York Circuit before the court and a jury.

      Arnold do Greene, for the appellant.

      Joseph N. Tuttle, for the respondent.
   Daniels, J.:

The plaintiff Foo Long recovered a judgment against Chu Eong on a trial at the circuit on the 28th of June, 1888, for the sum of $3,798.99. An appeal was taken from this judgment to the General Term, and on the appeal the defendant in this action became the ' surety for the defendant in the judgment recovered, at the circuit. The undertaking subscribed by the defendant in this action was in the form prescribed by the Code, by which it undertook and agreed that the” appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding five hundred dollars, and also if the judgment appealed from, or any part thereof, should be affirmed, or the appeal be dismissed, the appellant would pay the sum directed to be paid by the judgment or the part thereof as to which the judgment should be affirmed. After the hearing at the General Term, that court by its decision reversed the judgment recovered by the plaintiff at the circuit and ordered a new trial, with costs to the appellaut in that action to abide the event. The order containing these directions was entered on the 9th of July, 1889, and in September following the plaintiff appealed to the Court of Appeals and a return was made to that court and the appeal noticed for argument and placed upon the calendar,- but before it was reached a stipulation was made between the parties to . that action and their attorneys, by which it was consented that a judgment should be entered reversing the judgment of the General Term and affirming absolutely the judgment of the circuit. This consent was brought to the attention of the Court of A ppeals, and on the 12th of January, 1891, that court, on reading and filing the stipulation, adjudged that the judgment of the General Term of the Supreme Court should be and the same was reversed, and the judgment of the court upon the verdict at the circuit should be and the same was affirmed absolutely. ' The remittitur of the Court of Appeals was transmitted to the Supreme Court, where judgment was entered pursuant to these directions of the Court of Appeals. And, after delaying further proceedings for the time required by the Code of Civil Procedure, this action was brought against the defendant upon the undertaking given on the appeal to the General Term. The defendant resisted its liabiiity on the ground, among others, that the agreement resulting in the judgment or order of the Court of Appeals, and followed by the judgment of the Supreme Court thereon, was fraudulent and collusive, and entered into with a design of- wrongfully enforcing the undertaking on appeal against this defendant.

Upon the trial of the issues framed in this action, at the circuit, these facts were all made to appear, and the defendant further }3ro-posed to prove that other judgments had been recovered before this stipulation was made against Chu Fong, the defendant in the original action. The first of the judgments offered in evidence was recovered by Seth R. Johnson against Chu Fong and others, on the 9th of April, 1890, for the sum of $2,448.72. The second was recovered by Isaac Levy against Chu Fong and another, on the 23d of June, 1890, for the sum of $2,890.89; and a third judgment was recovered by confession, on the 12th of July, 1890, for the sum of $3,000. These three judgments were recovered after the recovery of the judgment against Chu Fong, at the circuit, and before the making of the stipulation for the reversal of the judgment of the General Term, and the affirmance of the judgment recovered at the circuit by the plaintiff against Chu Fong.

Proof of these judgments was objected to by the plaintiff’s -counsel as immaterial and incompetent, and the court sustained the objection, to which decision defendant’s counsel excepted. At the close of the evidence in the case the defendant’s counsel requested the court to direct a verdict in its favor. That was refused and the ■defendant then excepted. A further request was then made for leave to submit the case to the jury on the question of fraud and collusion. That was denied and the defendant’s counsel excepted, and the court then directed a verdict in favor of the plaintiff for the sum of $4,465.97, and to that an exception was taken by the defendant; and the disposition of the appeal depends upon the correctness of these rulings by which the proof of the judgments was excluded, and the action was finally disposed of by the court.

By the terms of the undertaking the defendant became bound to pay the judgment recovered, as well as the costs, if that recovery was not brought about by the fraudulent action of the parties to the appeal in the' Court of Appeals. If, as a matter of law, the decision of the General Term, reversing the judgment recovered at the circuit, could not be sustained, then the defendant was concluded by the stipulation entered.into between the parties and their attorneys, and the judgment finally entered pursuant to that authority. But it had the right to resist this liability on the ground alleged in the answer that the agreement and the proceedings following it resulting in the judgment were fraudulent and collusive. The burden of establishing this theory of the case rested upon the defendant, and the facts, as they were disclosed, were claimed in its behalf sufficiently to maintain this theory to entitle it to have the question submitted to the jury. The case contains the evidence taken at the trial in the original action, together with the decision and opinion of the General Term, and from the decision which was there made and the opinion previously given it appears that the judgment at the circuit was reversed, because of improper rulings contained in the charge, which was delivered to the jury. The presumption is that this decision was supported by the facts appealing before the court, and that presumption was not overcome by the proceedings afterwards taken in the Court of Appeals, for that court made no examination whatever into the merits of the appeal or the decision made by the General Term. But the directions which were given by that tribunal were wholly founded upon the stipulations or agreement of the parties and their attorneys. No adjudication, therefore, was, in fact, made by which this presumption of the correctness of the determination of the General Term was in the least affected or diminished in force, but the parties and their attorneys, with that presumption existing as to the accuracy of the decision of the General Term, entered into the agreement tose! aside that decision and to restore the judgment on the verdict which had been reversed by it. The case in this respect accordingly differs from those in which the point has arisen, whether the surety in an undertaking or bond would become liable for the payment of a judgment entered by the consent of the parties to the litigation. Where no adverse decision has been previously made, there it has been held that the parties may in good faith agree upon a recovery which will be binding upon the surety in the bond or undertaking affected by it. That was the condition of the ease in Conner v. Reeves (35 Hun, 507, which was affirmed in 103 N. Y., 527), and the facts also were similar in Steinbock v. Evans (122 id., 551). In the case of Tracy v. Maloney (105 Mass., 90) the 'judgment was recovered by default, and appears to have been free from the imputation of collusion or fraud ; and the judgment was equally free from suspicion in Cutter v. Evans (115 Mass., 27), in both of which cases 'it was. held that the surety in the bond had become liable by reason of the non-payment of these judgments by the principal. A similar ruling controlled the case of Ammons v. Whitehead (31 Miss., 99, 104). There the action was compromised by the principal before a trial had been had in the Circuit Court, in which a new trial was to take place. In Bailey v. Rosenthal (56 Mo., 385) a nonsuit was set aside, and the plaintiff finally had judgment in his favor, while in Chase v. Beraud (29 Cal., 138) the appeal liad been dismissed by consent of the attorneys for the appellant. And, as there appeared to be no fraud in the case, the judgment was held to be binding against the sureties in the undertaking on the appeal. These cases, as well as those decided in this State, all differ in their facts from the present controversy. There was no evidence presented in either of them which directly tended to maintain the fact to be that the consent entered into, and the judgment recovered upon it, were in any respect collusive or fraudulent. Neither had there been an adjudication by the court, as^here was in this instance, that a preceding judgment or decision should be set aside and a judgment had been entered directly in conflict with such decision. These are important facts, distinguishing this case from all the others which have been referred to. Here the court, on the argument of an appeal, deliberately decided that the judgment which had been recovered, and from which the appeal had been taken was erroneous, and should be reversed and a new trial of the issue should take place; and, as has already been stated, the presumption is that this decision of the General Term was strictly accurate, and when the parties agree, as they did, to set it aside, and to an affirmance of the judgment recovered on the verdict, their acts afforded some grounds/certainly, for the belief that they intended a fraud upon the surety in the undertaking on the appeal. At that time, it appears from the offer to give in evidence the three judgments recovered against Cliu Fong, that he probably was insolvent and could not, therefore, by legal proceedings, be compelled to pay the judgment which had been recovered by the plaintiff against him. This fact would have been fairly established, certainly so far as to render it proper for the consideration of the jury, if the judgments had been received in evidence, and they were material evidence so far as they had a tendency to prove this to be the financial condition of Chu Fong. And if they had been received in evidence, then the case would appear to be jiroper for its submission to the jury upon the issue affirming that collusion, and fraud had intervened and produced the consent which was entered into and the proceedings following it. It is so remarkable and unusual for a person to surrender an advantage secured by a favorable decision of an appellate tribunal, that this fact of itself creates the suspicion that there was some motive operating, or some object to be thereby attained, not entirely consistent with good faith or fair dealing. That was the situation of this defendant, Chu Fong. lie had a decision in his favor. Upon a further trial he might, under its weight and effect, be relieved entirely from liability; and yet this advantage was apparently surrendered for no consideration, and the judgment in conflict with the decision allowed to be restored, as it had been entered against himself. And it was a fair matter of argument, if these judgments had been read in evidence, that the object intended to be attained was to fix the liability of the defendant upon the undertaking, by which it should be obliged to pay the plaintiff the amount of his judgment.

The exception taken to the exclusion of the judgments as evidence seems to be well founded, and so does that to the direction of a verdict and the refusal of the court to submit the question of fraud and collusion to the jury. Those charges ordinarily depend upon indirect proof to maintain them. It is not to be expected that the parties to a fraudulent transaction will themselves confess the accomplishment of that end to have been their object. But when an issue of this description arises in the course of a legal controversy, circumstances are usually the most persuasive evidence attainable to maintain it. Such circumstances appeared in this case, and instead of a verdict being directed against the defendant the issue should have been submitted to the jury.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the defendant to abide the result.

Van Brunt, P. J., and Ingraham, J., concurred.

Judgment reversed and new trial ordered, with costs to the defendant to abide the result.


author: Daniels, J. :

text:
    JAMES E. NICHOLS and Others, Appellants, v. JOHN F. WELLINGS and Others, Respondents.

      Assignments —fraudulent preference inf mor of a wife for moneys given by a husband to the wife for household expenses, not so expended, and by her returned to him.

    An assignor, wlio made an assignment for the benefit of creditors, had been in the habit, for many years prior to the making of the assignment, of giving to his wife for household expenses a certain sum of money weekly. She did not expend all of this sum for that purpose, and from time to time loaned or returned to him the unexpended balances. There was no evidence tending to show that he had made her a gift of such unexpended balances. Subsequently the assignor, in making a general assignment, preferred his wife as a creditor in an amount equal to the sum of such balances.

      Held, that the preference was fraudulent as to creditors and the assignment void.
    Appeal by the plaintiffs, James E. Nichols, Louis Schott, Thomas M. McCarthy, Thomas W. Ormiston, John H. Mohlman and Diednch Schmidt, from a judgment, entered in the office of the •clerk of the city and county of New York on the 10th day of June, 1891, dismissing their complaint upon the merits, with costs, after a trial at the New York Special Term.
    The action was brought to set aside an assignment made by the •defendant John F. Wellings to one Edward F. Davenport, and a confession of judgment by said defendant to the defendant Jeannette F. White, his wife. The judgments in favor of the plaintiffs, upon which the action was based were respectively recovered on •July 23 and 21, 1889.

      Henry D. Hotchkiss, for the appellants.

      Hugo Ilirsh and John H. Kemble, for the respondents.
   Daniels, J. :

The plaintiffs are judgment-creditors of John F. Wellings, one of the defendants, and after the return of executions issued upon the judgments and returned unsatisfied, this action was commenced to .set aside the general assignment of the judgment-debtor, and also a judgment confessed by him to the defendant Jeannette F. White. The assignment was made on the 25th of June, 1889, and the judgment was confessed on the twelfth of July of the same year. The judgments upon which the executions were issued, were recovered on the twenty-third and twenty-fourth of July of that-year. By the assignment, the wife of the assignor was preferred for the sum of $900. Other preferences were contained in the assignment, for which the judgment was confessed by the judgment-debtor.

The evidence given upon the trial left no ground for dispute as to the important facts, and in support of the allegation that the assignment was made to hinder, delay or defraud the creditors of the assignor, it was proved that while he was in business he delivered to his wife the sum of ten dollars each week to provide for the expenses of the household, and their testimony is that he from time to time borrowed money from her amounting to the estimated sum of $900, for which the jireference was given to her. There was no evidence upon the trial that the ten dollars delivered to the wife by the assignor each week was intended to be a) gift of the surplus beyond the expenditures necessary for the maintenance of the household ; but the utmost which the evidence proves is that this sum of ten dollars each week was delivered by the assignor to his wife to pay the expenses of maintaining the family. Ilis evidence was such as to establish the fact that the money in this manner delivered to the wife remained the property of the assignor, for he entered into no agreement, either express or implied, that she should become the owner of the surplus, if any there should be ; and to constitute a gift, the evidence is required to establish the fact that it was intended by the donor that the title to the property alleged to be given shall be intended to vest in the donee. And that fact is required to be made out by evidence reasonably clear and tending to establish it. (Shuttleworth v. Winter, 55 N. Y., 624-629.) And when it is remembered, as the court held the law to be in Manchester v. Tibbetts (121 N. Y., 219-222), that dealings between a husband and wife resulting in the appropriation of his property to her are required to be closely scrutinized, the conclusion is inevitable that there was no such agreement proved by this evidence as gave the wife the title to the-surplus remaining in her hands from this weekly allowance,' but that surplus which formed the fund loaned to him remained as completely the property of the assignor as though he had delivered a larger amount than was necessary to an agent for the payment of a debt, where the surplus would most unquestionably belong to the debtor. There is also reason, for believing that this was considered to be the result of these dealings, for the wife returned to her husband the money which she had on hand as that was requested by him, and, apparently, in no more than one instance did he acknowledge himself to be her debtor on account of the receipt of that money, and then it is stated that a note was made by him to her for the sum of $200, which, however, was not produced upon the trial.

It is not necessary to inquire whether so much of the transaction as was included within the note constituted a valid claim against the assignor, for, if the residue of the preference, amounting to the sum of $700, is unfounded, that of itself is sufficient to annul the assignment. (Russell v. Winne, 37 N. Y., 591.) And that so much of the preference was unfounded clearly results from this state of the evidence, and the effect of making that preference by the assignment would necessarily be to hinder, delay or defraud the creditors of the assignor; and where such an intention exists, there the law, under the-express mandate of the statute, declares the entire instrument to be inoperative and void as against creditors.

The judgment confessed to the defendant, Jeannette E. "White, for the benefit of herself, and as the assignee of other preferred creditors, was entered to secure them against the contingency that the assignment itself should not be maintained, and that fact indicates the belief on the part of the preferred creditors that there was-danger from some cause that the assignment might be declared invalid; and to the same extent as the preference contained in the assignment was unfounded, this judgment is also attended with the same infirmity, for it has certainly been confessed for too large an amount, so far as it represents the preference given to the wife of' the judgment-debtor; and that of itself, without any actual intent to defraud the creditors, would require the judgment to be reduced by deducting so much of its amount as represents the unlawful preference given to the wife of the assignor. And if there were an actual intent to defraud the creditors by the assignment and this confession of judgment, or by the confession of the judgment alone, it would require to be entirely vacated and set aside for that reason. But whether the judgment may be maintained in part, so far as it is dependent upon actual pre existing debts, it is not necessary should be now decided, for it is sufficient to entitle the,plaintiff to another-trial of tlie action, that the assignment itself cannot, under this state of the evidence, be sustained. The judgment should be reversed and a new trial ordered, with -costs to the plaintiffs to abide the event.

Yan Brunt, P. J., concurred.

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


author: Ingraham, J.:

text:
    CONSTANCE B. PRICE, Respondent, v. WALTER J. PRICE and Others, Appellants.

      ■Costs in an action for dower are a matter of right — wha,t costs are recoverable where costs cm'e given by the Court of Appeals — motion costs are discretionaery— a reference had, under a judgment awarding dower, to admeasure it, is not a ‘ ‘ trial” for the purpose of costs— Code of Civil Procedure, secs. 8238, 8251.
    In an action brought to recover dower an order of reference to hear and. determine the issues was made to Mr. Anderson, who dismissed the complaint. Upon appeal the General Term reversed the judgment and ordered judgment absolute for the plaintiff, sending the matter to Mr. Yan Slyke, as referee, to admeasure dower, whose report was confirmed and judgment was ordered at Special Term against all the defendants.
    Upon an appeal from this judgment the General Term affirmed it. From the judgment of affirmance all parties appealed to the Court of Appeals, which reversed the judgment, and also reversed all tlie orders entered after the judgment granted upon the report of Mr. Anderson. It further affirmed the judgment-entered upon Mr. Anderson’s report, “ with cqsts to each of the defendants appearing by separate attorneys.”
    Upon an appeai by the defendants from an order denying their motion fora retaxation of costs:

      I-Ield, that the action was one in which, upon an appeal from a final judgment and its affirmance, the respondents were entitled to costs as a matter of right
    'That said defendants, as respondents, were entitled to costs of the appeal to the General Term from the judgment dismissing the complaint, entered upon the report of Mr Anderson, and of the further appeal to the Court of Appeals.
    'That said defendants, as appellants, were further entitled to the costs of the appeal to the General Term from the judgment which confirmed the report of Mr Yan Slyke.
    'That neither party was entitled to costs upon the appeal of the plaintiff from the judgment entered upon the decision of tlie General Term, since, by the entire reversal, upon the appeal of the defendants, of the judgment'entered upon said decision, there had been no decision made by the Court oí Appeals upon said appeal oí the plaintiff.
    A number of motions had been made in the action before it reached the Court of Appeals, in which the plaintiff had been, allowed costs. The Court of Appeals reversed all the orders entered upon said motions.

      Held, that as the matter of motion costs was discretionary, the court would not allow to the defendants costs of each motion, in which the plaintiff had in the first instance been awarded such costs.
    That a reference to admeasure dower is an interlocutory proceeding, and is not a trial within section 8251 of the Code of Civil Procedure, and that consequently the defendants were not entitled to tax costs as of a trial before Mr. Anderson, and of a second trial before Mr. Yan Slyke.
    Appeals by the defendants, Walter J. Price, Caroline P. Paine, Prank N. Price, and James Dmme, as executor of Charles G. Price, deceased; Josephine Little, Lillie 3VI. Price, the Glens Palls Insurance Company and the Rector, Church Wardens and Vestrymen of St. John the Evangelist’s Church, from an order, entered in the office of the clerk of the city and county of New York on the 12th day of June, 1891, affirming the taxation by said clerk of the bills of costs of the several defendants herein.
    The referee appointed to hear and determine the action was Mr. H. II. Anderson. The referee appointed by the interlocutory judgment giving the plaintiff dower, to admeasure the same, was Mr. George W. Van Slyke.

      James R. Marvin, for the appellants.

      George II Starr, for the respondent.
   Ingraham, J.:

This action was brought to recover dower. The issues were referred to a referee to hear and determine, who reported in favor of the defendants dismissing the complaint.

Upon an appeal from the judgment entered on such report, the judgment was reversed by the General Term and judgment absolute ordered for the plaintiff, whereby it was referred to a referee to admeasure the plaintiff’s dower.

The report of the referee was finally confirmed and judgment ordered against all the defendants awarding plaintiff dower, damages and costs. This judgment was affirmed by this court, whereupon both parties appealed to the Court of Appeals; the judgment and orders, subsequent to the judgment entered on the report of the referee who tried- the issues in the action, were reversed, and the judgment entered upon the report of the referee dismissing the complaint, with costs, was affirmed, with costs to each of the defend.ants appearing by separate attorneys, and we have to determine the costs to which defendants are entitled.

This is an action specified in section 3228 of the Code; and upon •an appeal from a final judgment, if the judgment is affirmed, the respondent is entitled to costs as a matter of right. The defendants were the respondents on the appeal to the General Term from the judgment dismissing the complaint, and as that judgment has been affirmed they are entitled to costs of the appeal from that judgment to the General .Term, as well as to the Court of Appeals.

"We think, also, that the defendants should have been allowed the costs to which an appellant is entitled on the appeal to the General Term from the judgment entered on the report of the referee appointed to admeasure dower. On that appeal the defendants were the appellants, and as the judgment was reversed under section 3238 of the Code the appellants were entitled to costs. We think, therefore, that defendants were entitled to the costs of respondents on the first appeal to the General Term, and to the costs, as appellants, on the •second appeal to General Term and on the appeal to the Court of Appeals. This ruling is in accordance with the decision of the Court of Appeals in the case of Murtha v. Curley (92 N. Y., 360).

Neither party is entitled to costs on the appeal of the plaintiff: from the judgment entered on the decision of the General Term, because that judgment has never been either affirmed or reversed. On that -appeal the defendants, who now ask to tax their costs as respondents, •could only be entitled to costs in ease the judgment on the appeal of the plaintiff was affirmed. (Code, § 3238.) As the judgment on that appeal was not affirmed, the judgment having been entirely reversed ■on the appeal of the defendants, there was no decision of that appeal ■and neither party is entitled to costs thereon.

The defendants also ask the court to tax ten dollars costs for each of the motions where costs were allowed to the plaintiff by the orders which were reversed.

Motion costs are in the discretion of the court that decides the motion. -It does not follow that the court, in the exercise of that ■discretion, would have granted costs of motion to defendants if the motion liad been denied, because it granted costs to plaintiff when tbe motion was granted. A party is not entitled to be allowed motion costs unless be can present an order in which such costs are allowed by tbe court making tbe order. In this case no such order is produced.

So far as the allowance of costs are discretionary in tbe Supreme Court, a general award of “ costs ” by tbe Court of Appeals applied only to costs on tbe appeal to that court. (In re Protestant E. Pulic School, 86 N. Y., 397.) Tbe clerk, therefore, was correct in refusing to allow defendants tbe costs of tbe motions.

Tbe defendants also asked to be allowed costs as upon a trial for each of the two proceedings before tbe referee under tbe interlocutory judgment entered upon tbe decision of the General Term.

It is clear, however, that there was but one trial of tbe action. That was tbe trial before tbe referee to bear and determine, and, in tbe judgment dismissing tbe complaint entered upon tbe report of that referee, the costs for that trial were allowed. The proceedings on tbe subsequent bearings were not trials of tbe action; tbe case bad been tried and a judgment entered by tbe General Term in favor of tbe plaintiff. Tbe referee was ordered to ascertain tbe specific interest of the parties to tbe action in tbe property described in tbe complaint, and to set apart to tbe plaintiff tbe portion of said property to which she was entitled, and to state an account between certain of tbe parties so as to ascertain tbe amount that plaintiff was entitled to recover. Such a reference is interlocutory in its character, and is not a trial within section 3251 of tbe Oode.

Ye think, therefore, that defendants were entitled to costs as respondents on tbe first appeal .to tbe General Term, to costs as appellants on tbe second appeal to tbe General Term, and to costs as appellants on tbe appeal to tbe Court of Appeals.

Tbe order should be reversed and a retaxation ordered in accordance with tbe views here expressed, with ten dollars costs and disbursements of this appeal to tbe appellants.

Yak Brunt, P. J., and Daniels, J., concurred.

Order reversed and a retaxation ordered in accordance with directions expressed in opinion, with ten dollars costs and disbursements of this appeal.