author: Landon, J.:

text:
    The People of the State of New York, Respondent, v. John Y. McKane, Appellant, Impleaded with Others.

      Motraordinary Oyer and Terminer — validity of the appointment — grand jury therefor drawn while another grand jury is in session — Penal Code, §§ 29 and 41c — an abettor is guilty as a principal — publicity of the election-registry — requirements of the law relative to registration — punishment for the violation thereof — charge of a joint crime in an indictment — evidence of acts and declarations of co-conspirators — order of proof — evidence as to the power to ca/rry out the conspiracy — conviction of another crime — judicial notice taken of the population of political divisions— official returns the best evidence of the result of an election — direction limiting the effect of evidence — judgment, when reversed on appeal — evidence of a conversation through a telephone — cross-examination as to reputation —reversal for error in the charge.

    If the language used by the Governor of the State of New York in appointing- an extraordinary term of the Court of Oyer and Terminer is susceptible of two constructions, that one must be preferred which is consistent with a valid appointment instead of that which would render it invalid. Such an appointment is not invalid by reason of the use therein of the words: “I do hereby appoint an extraordinary Court of Oyer and Terminer,’' instead of “an extraordinary term of the Court of Oyer and Terminer.”
    Where a grand jury is drawn for an extraordinary term of a Court of Oyer and Terminer by an order of a judge of the Supreme Court, under the provisions of section 226 of the Code of Criminal Procedure, the statutory authority for drawing the same is ample, notwithstanding the fact that another grand jury, impanelled by the Court of Sessions in the same county in which the extraordinary term of the Court of Oyer and Terminer was appointed to be held, is, at the same time, lawfully in session.

      Under the provisions of sections 29 and 41c of the Penal Code, if any member or clerk of a registry hoard of an election willfully violates any provision of the Election Law relative to the registration of electors, or willfully neglects or refuses to perform any duty imposed on him by law, or is guilty of any fraud in the execution of the duties of his office, he is punishable by imprisonment for not less than two nor more than ten years. If any person aids or abets such member or clerk of a registry board in such violation, whether he himself is present or absent, or if he directly or indirectly counsels, commands, induces or procures any member or clerk of the registry board to commit such willful violation, he is guilty of the same offense, not as an accessory, but as a principal.
    While it may be literally true that a non-existing paper cannot be concealed, an effective way to withhold a paper which the law commands to be made and kept accessible is to refuse to make it, thus withholding its accessibility by withholding its existence; proof, however, that such paper was not made, would tend, in connection with other circumstances, to support an allegation that those whose duty it was to make andkeep the same accessible, had refused to keep it accessible to the public.
    The publicity of the election registry may he subsequent to the mere act of registration, but the law relative to the registration provides for its publicity, to the end that the registration itself shall have all the beneficial effects publicity can give.it, and all the safeguards for verity and fairness which a jealous and vigilant public scrutiny can secure. The publicity of the registry is an essential feature of the law relative to the registration of electors, which law may be regarded as one subject embracing all details necessary to its completeness and efficiency, and every one of such details is a part of the law relative to the registration. If a clerk or member of the registry board withholds the list of voters, which he is required by law to keep accessible to the public; he may be punished for a violation of the law relative to the registration of electors, notwithstanding the fact that the registration was at the time complete.
    The charge in an indictment of the joint commission of a crime by specific individuals implies the charge of the individual guilt of each person joined in the charge, and in a proper case may admit of the conviction of one and the acquittal of another defendant. It is a charge of one crime against two or more defendants.
    Where, upon the trial of a prisoner, a conspiracy is shown to exist, the acts and declarations of any of the conspirators in furtherance of the conspiracy are admissible in evidence against the prisoner if he be a member of the conspiracy; and it is not necessary that the co-conspirator whose acts and declarations in furtherance of the ends of the conspiracy are sought to be put in evidence, should be a party to the record in order to render the same admissible.
    While the general rule is that a conspiracy must be shown before the acts and declarations of the conspirators, other than the defendant on trial, can be admitted in evidence, yet such rule is not so rigid as to require the sacrifice of truth and substance to matters of form, nor to forbid the trial judge to receive evidence in such order and to such extent as will develop as clearly as possible the whole truth. It may be that the whole story must be told before the court or jury can. be sufficiently instructed to pass definitely upon the preliminary fact of the conspiracy itself; and whether there was or was not a conspiracy may be such a disputed question that the defendant is entitled to have the jury pass upon it; it is, therefore, largely in the discretion of the trial court to determine as to the order of proof.
    It is competent to show, upon the trial of a prisoner, that he had the power to carry into execution a conspiracy, as he is charged to have done, through and by means of which the crime in question is alleged to have been committed by him.
    While it is true, as a general rule, that a conviction for one crime should not be obtained by proof of another, yet the rule does not apply where the two crimes are so related that the one involves or implies the other, or is a step in its commission.
    Courts will take judicial notice of the population of political divisions of the State within their jurisdiction, and on a trial upon the question as to such population of political divisions the official enumeration of the inhabitants of a particular political division taken pursuant to chapter 5 of the Laws of 1892 is admissible in evidence.
    As a general rule, no better evidence of the result of an election is obtainable than the official returns afford, and in cases of the nature of a quo warranto, election returns are presumed to be true until shown to be false.
    Where evidence is admissible for legitimate purposes upon the trial of an action, the most to which the party against whom the same is offered is entitled, is to ask that such direction be given by the court to the jury as will limit the effect of such evidence to such legitimate purposes.
    A judgment will not be reversed upon appeal on account of a casual incompetent statement by a witness unexpectedly made during the course of a trial, when no motion was made to strike out the same, unless justice plainly requires the reversal of the judgment.
    A conversation had between a prisoner and a witness through a telephone is admissible in evidence upon the trial of a criminal action upon proof of the fact that the prisoner was the person with whom the conversation through the telephone was had.
    Where, upon the trial of a criminal action, the defendant produces evidence in general terms that his reputation is good, the People are at liberty to ask upon cross-examination what his reputation is in respect to certain important particulars within the reasonable range of the subject introduced by the defendant.
    When, upon the trial of a criminal action, after the charge of the judge to the jury, the defendant withdrew exceptions taken to the refusals of the court to charge as requested, no error in the charge will justify a reversal of the judgment upon an appeal from the judgment rendered against the defendant, unless it be clear that it in fact prejudiced the prisoner.
    It may be said of all material evidence, given upon the trial of a criminal action, that it tends to sustain some affirmative or negative position, and it is not error for a trial judge to charge the jury that certain evidence would tend to sustain a certain inference or an alleged fact, where he does not say how strongly or feebly it tends to sustain the same, and, when he makes the distinction that while he may allude to evidence as tending to establish a certain fact, it is for the jury to determine whether they believe such evidence, and if so, whether it does establish such fact.
    Appeal by the defendant, John Y. McKane, from the judgment of the Supreme Court, rendered at an extraordinary term of the •Kings County Oyer and Terminer on the 19th day of February, 1894, upon the verdict of a jury convicting the defendant of willfully violating a provision of the Election Law relative to the registration of electors.
    The defendant McKane was indicted jointly with the three inspectors for the first election- district of the town of Gravesend. He was not an inspector of election. All the defendants were accused, in one count of the indictment, of willfully violating a provision of the Election Law relative to the registration of electors, and in another count, of willfully neglecting and refusing to perform a duty imposed upon them by such law.
    The facts charged as constituting the crime were the willful refusal and willful neglect of the inspectors to keep the registry lists accessible to the public, McKane inciting and aiding them. The defendant McKane, in pursuance of his demand, was separately tried and convicted ; he was sentenced to imprisonment in the State prison for the term of six’ years.
    The indictment was found by the grand jury convened at an extraordinary court of Oyer and Terminer, appointed by the Governor of the State on the 21st day of November, 1893, to be held in the city of Brooklyn on the 18th of December, 1893.
    Further facts appear in the opinion.

      Edward G. James and George W. Roderick, for the appellant.

      Benjamin F. Tracy and Edwcurd M. Shepard, for the respondent.
   Landon, J.:

The Court of Oyer and Terminer at which the defendant was indicted was held in pursuance of an appointment made by the Governor. Section 234 of the Code of Civil Procedure provides that: The Governor may, when, in his opinion, the public interest so requires, appoint one or more extraordinary General or Special Terms of the Supreme Court, or terms of a Circuit Court or Court of Oyer and Terminer.”

The language of the Governor’s appointment was: “ I do hereby appoint an extraordinary Court of Oyer and Terminer to be held,” etc.

The counsel for the appellant urges that the power to appoint an extraordinary term of the Court of Oyer and Terminer is not complied with by appointing an extraordinary Court of Oyer and Terminer, and that no power exists to appoint such extraordinary court, and hence that the appointment was a nullity, and all that has been done under it is void.

We do not think this contention valid; it is based upon a verbal difference between the form of the statute and the form of the appointment. But there is no mistaking the fact that the Governor intended to appoint and did in fact appoint an extraordinary term of the Court of Oyer and Terminer.

If the language of the appointment is susceptible of two constructions that one must be preferred which validates the appointment, instead of that which invalidates it.

The defendant moved to set aside the indictment -upon the ground that the grand jury of the county of Kings, lawfully impanelled by the Court of Sessions, was in session from December 4 to December 30, 1893, during part of which time the grand jury for this extraordinary term of the Court of Oyer and Terminer, which found the indictment against the defendant, was also in session, the contention being that while one grand jury is lawfully in session another cannot be convened.

Section 225 of the Code of Criminal Procedure provides that a grand jury must be drawn for every term of the following courts :

“ 2_ * -x- -x- The Court of Sessions of the County of Kings.” Section 226 provides that: “A grand jury may also be drawn, -x- * -x- 3_ j^r the Court of Oyer and Terminer of the county of Kings, upon the order of a judge of the Supreme Court elected in the second judicial district.”

Mr. Justice Cullen, of the second judicial district, made the order for drawing this grand jury. The court was none the less the Court of Oyer and Terminer because the term thereof was extraordinary instead of ordinary. The statutory authority for drawing this grand jury is ample.

The defendant demurred to the indictment in that it did not contain a plain and concise statement of the acts constituting the alleged crime. This defect is alleged to exist in the statement of the acts charged to have been committed by the inspectors.

The crime charged in the first count of the indictment is : "Willfully violating a provision of the Election Law relative to the registration of electors.” Section 41c of the Penal Code provides that: “ Any member or clerk ■ of a registry board who willfully violates .any provision of the Election Law relative to the registration of electors, or willfully neglects or refuses to perform any duty imposed on him by law, or is guilty of any fraud in the execution of the duties of his office, shall be punishable by imprisonment for not less than two nor more than ten years.” Thus the crime charged in' the indictment is a crime specified in the statute. The defendant McKane, however, was neither a member nor clerk of the registry board,

But section 29 of the Penal Code provides: “ A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal.”

Hence it follows that if any member or clerk of the registry board of the first election district willfully violated any provision of the Election Law relative to the registration of electors, and the defendant McKane aided and abetted in such violation, whether he himself was present or absent, or if he directly or indirectly counselled, commanded, induced or procured any member or clerk of tbe registry board to commit such willful violation, he, McKane, was guilty of the same offense, not as an accessory, but as a principal.

The objection that the crime defined in section 41c is therein limited to the officers composing and assisting the registry board, and, therefore, cannot embrace the defendant McKane, is clearly met by section 29, which by the aptness and comprehensiveness of its terms includes whoever does aid and abet the violation of the law, or counsels, commands, induces or procures its violation by the officers charged with its administration. Section 29 makes the acts, not the office of the offender, the test of his crime.

The accusation in the indictment being of a crime defined by the statutes, it remains to be seen whether the acts charged against the defendant constitute the crime whereof he is accused.

Clearly, under the two sections of the Penal Code just cited, the specifications should allege that some clerk or member or members of the registry board did some act or acts which amounted to a willful violation of some provision of the Election Law relative to the registration of electors, and that the defendant McKane aided and abetted, or counselled, commanded, induced or procured the officers, or one or more of them, to do these acts.

From the nature of the case the acts of the officers constituting the violation of the law would seem to be susceptible of plain and direct statement. And we find such'a statement. Sections 31, 32 and 33 of the Election Law (Chap. 680, Laws 1892) provide that the inspectors of election for each election district, elsewhere than in a city, shall meet .on the third and second Saturdays before each general election, and prepare at such meetings a list of the names and residences of persons qualified to vote in such district at such election, which list, when completed, shall be the register of the voters of the district for such election.

The inspectors shall append to the list a certificate to that effect, and this certified list shall remain in the custody of the chairman of the inspectors until the close of the polls on election day. But the inspectors, not later than the Monday following each Saturday of their meeting, shall make three certified copies of such original list and certificate, one of which shall be conspicuously posted in the place where such meetings shall have been held, and one shall be retained by each of the other two inspectors until the close of the polls of such election. Such list and registry of voters, and the certified copies thereof, shall at all reasonable hours be accessible to the public for examination or for making copies thereof.”

The indictment alleges that the inspectors composing the board of registry did make and complete and certify the original list of persons qualified to vote in the first election district at the next general election. It does not allege that they made any certified copies, but does allege that they did willfully and knowingly neglect and refuse to have such lists and register of voters and three certified copies thereof accessible at all reasonable hours to the public for examination and for making copies thereof.

The defendant urges that because it is not alleged that these three copies were made, therefore, it could not be alleged that any one or all of them -were withheld or concealed. It may be literally true that a non-existing paper cannot be concealed, but it is true that an effective way to withhold a paper which the law commands to be made and kept accessible, is to refuse to make it, thus withholding its accessibility by withholding its existence. Proof that it was not made would tend, in connection with other circumstances, to support the allegation that the inspectors refused to make it accessible.

The defendant also contends that the registration was complete, and, therefore, the subsequent withholding or concealment of the list and copies was not a violation of any provision of the law “ relative to the registration.” But the law requires the registry to be made and one copy posted, and the original list and two copies to be otherwise accessible to the public. Thus the publicity of the registry is an essential feature of the law relative to the registration of electors.”

The publicity of the registry may be subsequent to the mere act of registration, but the law relative to the registration provides for its publicity, to the end that the registration itself shall have all the beneficial uses publicity can give it, and all the safeguards for verity and fairness which a jealous and vigilant public scrutiny can secure.

The law relative to the registration may be regarded as one subject, embracing all the details necessary to its completeness and efficiency; thus making every one of such details part of the law “ relative to the registration.”

The indictment then proceeds to specify, in connection with the crime of the inspectors, how the defendant McKane was “ concerned in the commission” of the crime by them : “ And the said John Y. McKane did then and there maliciously, feloniously, unlawfully, willfully and knowingly counsel, command, induce, procure, aid and abet the said John Mr. Murphy, Morton Morris, and John II. Brownhill to so neglect and refuse to have such lists and register of voters and three certified copies thereof at all reasonable hours accessible to the public for examination and for making copies thereof.” The indietment then further alleges that the defendant McICane and the defendants, the inspectors, did feloniously and willfully cause and procure that the said list and register of voters and three certified copies thereof and each of them should not be accessible to the public for examination or for making copies thereof, but should be concealed from the public, whether wanted for examination or making copies thereof.

The defendant does not contend that the acts which charge him with aiding and abetting, commanding, counselling, inducing and procuring, are not sufficiently alleged.

The second count of the indictment differs from the first only in charging the crime; the specification of the facts constituting it are the same as alleged in the first count.

The second count charges the crime as follows : “ And the grand jury, aforesaid, by this indictment, do further accuse the said John Y. McKane, John W. Murphy, Morton Morris and John II. Brown-hill, the said John W. Murphy, Morton. Morris and John II. Brownhill being members of a registry board, of the crime of willfully neglecting and refusing to perform the duties imposed upon them, the said John ~W. Murphy, Morton Morris and John II. Brownhill, by law, as members of a registry board,” etc.

The learned counsel for the defendant insists that since the statute requires the chairman of the inspectors’to take into his custody the original registry list, and each of the other inspectors to take into his custody one of the certified copies, all of which shall be accessible to the public, if the crime proved had been the concealment by one inspector only of his list, without participation by the others, then such crime would not be neglect of duty by the inspectors as members of a registry board, as charged in the indictment, but of the offending inspector only, and, therefore, if the defendant .McKane had aided and abetted him, he would not be guilty of the crime whereof he was accused, but of some other crime.

Theoretically this may be conceded, but the concession would not affect the sufficiency of the indictment, but the sufficiency of the proof of the joint crime charged in the indictment.

The trial court at the request of the'defendant’s counsel charged the jury: “ That although the jury may be satisfied that the defendant was guilty of other crimes or violations of the Election Law, it is tbeir duty to acquit, unless they find him guilty of the particular crime charged in the indictment.”' The court also insti'ueted the jury that their first duty was to determine whether the guilt of the inspectors was made out, and also added: “It is essential, in .other words, to successfully maintain the case for the prosecution that you should be satisfied by proof, which leaves no-reasonable doubt in your minds, that the inspectors of the first election district had neglected and refused, and did neglect and refuse,, to perform the duties which the law imposed on them in respect to-keeping the registry list and certified copies accessible to the public.”

The evidence on the part of the People was directed to showing that the keeping of the registry lists inaccessible to the public was the common purpose and act of all the inspectors. We conclude that the suggestion of error arising from the possible guilt of one-inspector and the innocence of the others, presents a hypothetical, and not the actual case before us.

The defendant specified as a further ground for the demurrer, that more than one crime is charged in the indictment.

The indictment itself clearly shows that each inspector is not charged with a separate crime in addition to the joint crime in which the defendant McKane is charged with participating; of course the charge of the joint commission of a crime implies the charge of the-individual guilt of each person joined in the charge, and in a proper case may admit of the conviction of one and the acquittal of another defendant.

But this is not to charge two separate crimes against one defendant, but to charge one crime against two or more defendants.

This indictment contains three counts; the facts constituting the-crime are the same in each; the crime charged in the first count is the willful violation of the Election Law relative to registration; in the second count, the willful neglect or refusal to perform a duty imposed by law; and in the third, the willful commission by the inspectors of a fraud in the execution of the duties of their office.

Section 41c of the Penal Code, above quoted, groups these three ciimes together. It is possible that cases may arise in which the distinction between these three crimes will be clearly perceived. Upon the trial it was thought that the facts charged as constituting the crime were less clearly applicable to the third enumeration of crime than to the first and second, and thus the third count was abandoned as unnecessary.

The distinction between the two crimes charged in the first and second counts is not here clearly seen. The willful violation of law, and the willful neglect to obey it, must often be different forms of stating the same substance, since both may result from the same acts. Such is the case here.

Section 279 of the Code óf Criminal Procedure aptly meets such a case It provides : Where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.”

There are many exceptions to the rulings of the court upon the admission of evidence. The learned counsel for the defendant, in pressing these exceptions upon our notice, practically ignores the fact or theory of a conspiracy upon which the People presented their case upon the trial, and the rules applicable in cases of conspiracy under which the trial court admitted much of the evidence excepted tó.

The theory of the People was that the defendant McKane and the inspectors of election of the six election districts of the town of Gravesend, and several members' of the police force, and some members of the town judiciary, entered into a conspiracy to accomplish the concealment of the several registration lists of the six election •districts, that is to say, to prevent any examination or copying of the lists by persons not in political sympathy with McKane, and especially by Mr. William. J. Gaynor and his supporters. Mr. Gaynor at the time was a candidate for election, at the general election about to be held, for the office of justice of the Supreme Court in the second judicial district of the State, a district which embraces Kings county, and thus the town of Gravesend.

If such a conspiracy was shown to exist, then the acts and declarations of any of the conspirators in furtherance of the conspiracy were admissible in evidence against the defendant McKane, one of the members of it.

It is not necessary that the co-eonspirator, whose acts and declarations in furtherance of the ends of the conspiracy are offered in evidence, should be a party to the record.

It is jffain that the indictment or non-indictment of the conspirator whose acts and declarations are offered against his fellow, can neither impart any quality of verity or of relevancy to such acts, and declarations, nor withdraw it from him, and, hence, his inclusion or exclusion as a party to the indictment is not material.

The evidence given tending to prove the conspiracy was circumstantial in its character; from the very nature of the case, part of the evidence tending to prove the conspiracy tended also to prove what the conspirators did in furtherance of it. While the general rale is that the conspiracy must be shown before the acts and declarations of the conspirators, other than the defendant upon trial, can be admitted in evidence, yet this rule, wisely framed for the protection of the defendant, is not so rigid as to require the sacrifice of truth and substance to matters of form, nor to forbid the trial judge to receive evidence in such order and to such extent as will develop as clearly as possible the whole truth. It may well be that the whole story must be told before the court or jury can be sufficiently instructed to pass definitely upon the preliminary fact of the conspiracy itself. And when it is all told, it may yet be such a disputed question that the defendant is entitled to have the jury pass upon it. It must, therefore, in order that justice be not stayed at the threshold of the trial, be left largely to the discretion of the trial court to determine as to the order of proof.

Upon appeal we must look at the whole evidence to see whether the fact of the conspiracy was sufficiently proved to justify the admission of the acts and declarations of the defendant’s co-conspirators as part of the very res gestes of the attempted execution of the conspiracy itself.

We cannot undertake to present it here, but the mere skeleton of the propositions of fact, by which the inference of the existence of the conspiracy was sought to be conclusively lodged in the minds of the court and jury, will show the reason for the admission of the several masses of circumstantial testimony, and at the same time help us to realize its collective force.

I. The motive of the defendant MeKane to form and execute such a conspiracy was alleged to be, to continue and to increase the prestige of political power which he had already acquired, by controlling the vote or the returns of the vote of his town, and abnormally increasing its numerical and almost unanimous total; especially also to deprive Mr. Gaynor of the means of preventing manufactured or swollen returns, adverse to his election.

II. The means and ability of the defendant McKane to, form such a conspiracy embraced a mass of facts, tending to show his extraordinary political, official and financial power in the affairs of his town and townsmen, and his relations with and influence over his alleged co-conspirators.

III. Especially was his opportunity to form and control such a conspiracy increased by the fact that the six election districts of the' town were so laid out that every one of them embraced a part of the town hall building, wherein was located the registration office and polling place of every district.

IY. It was shown that the registry lists in all the districts were kept inaccessible to Mr. Gaynor and his agents, despite their repeated'1 and persistent efforts to obtain access to them, or to some official copy of them. Their efforts to obtain access and the means by which their efforts were baffled, tend to suggest the inquiry and possibly to answer it — by whom were these things instigated, counselled •and abetted, and for what purpose, and how wide must the conspiracy have been to be so successful ?

Y. Mr. Gaynor, finding obstacles to his inspection of the registry-lists apparently interposed by McKane, vigorously asserted and prosecuted his clear right to their inspection both in spite and in contempt of McKane and his power.

This action of Mr. Gaynor seems to have provoked McKane; his power and prestige were threatened, and it is not impossible that-his ' sense of the enormity of the crime was obscured by his ambition to maintain his challenged supremacy.

It is proper also to observe that the People sought to show:

I. That Mr. Gaynor’s agents, upon inquiry and inspection at the polling places in the town hall, did not find any lists posted where they could examine them.

II. That upon inquiry of the single policeman in charge, they were informed that McKane’s order for inspection must first be obtained.

III. That McKane, upon being informed that such obstruction existed, assumed responsibility for it, and promised to remedy it.

IY. Tliat McKane did not keep liis promise, but warned Mr. Gaynor tliat lie would liave a liard job of it.

Y. Tliat Mr. Gaynor notified McKane in writing that be should send tbe necessary men to Gravesend to copy tbe rolls.'

YI. That thereupon pretended copyists were selected from subordinates of tbe appellant, or dependents upon bis favor as chief of tbe police, to monopolize tbe lists so as to keep them inaccessible to Mr. Gaynor’s agents.

YII. That tbe pretended copyists, acting immediately under the direction of one Sutherland, a justice of the peace and member of tbe board of police of Gravesend, did, at tbe town ball, by pretending to make copies, keep tbe lists inaccessible to Mr. Gaynor’s copyists, who made repeated attempts during several days to gain access to the lists. That Sutherland acted in concert with McKane was an inference sought to be proved from all tbe circumstances.

YIII. That Mr. Gaynor applied to tbe Supreme Court for a mandamus against tbe inspectors of all tbe districts, to compel them to permit him to copy tbe lists, but was defeated as to all tbe districts save the sixth, in consequence of tbe affidavits made by the defendant and others, McKane employing counsel for tbe purpose; McKane’s affidavits confirmed some of the above statements.

IX. That Mr. Gaynor by bis agents then sought to obtain copies of tbe lists in tbe hands of tbe individual inspectors in tbe several districts. There were eighteen of these inspectors. Upon inquiry and search, these inspectors were not then found, except that late on Monday before tbe day of election, under pressure of tbe mandamus, an inspector in tbe sixth district permitted bis list, tbe least important of all, to be inspected. .

X. That Mr. Gaynor, failing of success during tbe week ending Saturday preceding tbe election, sent bis copyists, twenty-two in number, to Gravesend about midnight on Saturday, to tbe end that they might find tbe several inspectors at home early Sunday morning, and possibly thus succeed in obtaining at their homes tbe desired copies of tbe lists. When tbe copyists arrived in Gravesend, fourteen alighted at tbe station near the town ball, and were arrested upon tbe order of tbe appellant, who had previously received notice that they were coming to obtain copies of tbe lists. These copyists, thus arrested, were kept in durance until released upon habeas corpus proceedings on the following Monday. These arrests defeated the attempt to procure the copies.

XI. That Mr. Gaynor liad notified McKane that he would have the election watched on election day in order to prevent or detect fraud; he sent sixteen men to Gravesend for the purpose on the Monday evening previous to the election.

About twenty gentlemen volunteered their assistance and rode from Brooklyn to Gravesend in the early morning of election day. Twelve of those gentlemen had received appointments as Republican watchers, in apparent pursuance of section 103 of the Election Law.

They also had ready for service an injunction order issued the previous day by Mr. Justice Barnard, restraining the defendant and others from preventing these Republican watchers from acting as such with the privileges the law confers upon such watchers. By the force exercised by the police of Gravesend, under the direction of the defendant, the men and watchers were assaulted and some of them arrested; the sixteen men sent to watch outside the hall were forcibly kept at such a distance that they were helpless and useless.

The injunction, when an attempt was made to serve it, was treated by the defendant with open contempt.

Reference will be made to some of the evidence tending to show stuffing of the ballot boxes, and the making of false returns.

We can readily understand, as we proceed with the examination of the record, the corroborative support which one series of facts gave to another, the relation which existed between facts at first apparently disconnected and remote from each other; their motive and explanation, if referable to a conspiracy; their apparent inconsequence and irrelevance, if considered apart by themselves, and how-all the facts considered together assumed a cumulating cogency of force, compelling belief in their common inspiration and object.

¥e think that evidence tending to prove the conspiracy was admissible, and also evidence tending to prove what was done in furtherance of it. We will now notice the exceptions to the admissions of evidence.

It was shown that the defendant was the supervisor of his town, chief of police, chairman of the police board, and its treasurer. The People were permitted to prove, the defendant objecting as immaterial and irrelevant, that in his capacity of supervisor the defendant was one of the seven members of the health board of the town and its chairman. This board was charged with the construction of sewers in the town.

The defendant was ashed, upon his cross-examination, the extent to which the health board had constructed sewers in the town, and the debt created thereby. It may have been too trifling to be of significance. The answer was, that the debt created for the purpose was between $400,000 and $500,000.

A witness, Yoorhees, was town clerk and commissioner of investment of moneys from the sale of the common lands of the town. He was asked — defendant objecting — to what officer he paid over the moneys received by him from the investments.

He answered to the defendant as supervisor. Asked as to the amount — defendant’s objection being overruled — he answered that he paid him about $200,000.

These facts were relevant to the question of defendant’s influence and power; it certainly was material to show what these were, because the charge against the defendant implied his possession of them in a very high degree. The facts themselves may have been extraneous to the crime charged, but not extraneous to his power and means to commit it.

The jury would have been justified in acquitting the defendant if upon the whole evidence they had had a reasonable doubt of his possession of sufficient power and influence among the inspectors and other assistants to form and manage such a conspiracy. This point thus became a prime factor in the People’s case, and the evidence in question was relevant, just as the fact that a switchman is an habitual drunkard may be relevant to the question of his care in managing the switch; that an alleged forger is an expert penman may be relevant to the question of his ability to commit the forgery ; that an alleged poisoner by morphine is a medical student, and has attended lectures given upon opium and its effects. (People v. Harris, 136 N. Y. 423.)

The evidence of the division of the town of Gravesend in 1890 into six election districts, so formed that the town hall building covered part of each one of them, which division still continues, was relevant to the fact that the place was favorable to the formation and execution of the alleged consjfiracy. It was objected that in this respect the evidence should be limited to the first election district.

Aside from the propriety of describing the locality as it actually was, it is clear that the conspiracy charged, hi order to obtain its complete ends, must embrace all the election districts of the town.

That the defendant was the adviser of this plan of election districts was, in connection with its adoption, .relevant to the question of his alleged power in the town, and to his prestige as the alleged controller of its vote, and his alleged ambition to continue and increase that prestige. It is not difficult to understand that this device of one town hall, reaching into six election districts, would give to the defendant’s admirers an enlarged estimate of his powers and skill.

The People were permitted to give testimony, over defendant’s objection, tending to show that he had used his official powers to the benefit of several of the Republican watchers at the general election in 1893. One of them was shown to have been awarded by the town board, of which defendant was the chairman, the contract, still in force, for the public electric lighting, amounting to upwards of $50,000 ; and of the other Republican watchers some were policemen, and others saloon keepers in the town,. having a license; thas, some being under their chief and others engaged in a business in which the favor of the police might be desirable.

It was part of the People’s case to prove that the Republican watchers were either in the conspiracy to keep the registry lists inaccessible upon election day to Mr. Gaynor’s agents, or that they co-operated to that end. McKane was known to be a Democrat, but a Democrat who, for personal reasons, sometimes caused or permitted the vote of the town to be returned for the Republican candidates.

The obligations under which the Republican inspeetoi’s at this election were to him, and his official power over them, as well as their means of livelihood, were facts relevant to the probability of their co-operation with him in the objects of the conspiracy. Ilis facility in shifting his support from one party to another, and the fact that personal likes and dislikes influenced him in doing so, were not irrelevant in this respect.

The People were permitted to put in evidence the poll lists kept at the general election for 1893 in the six election districts of the town. Also the registry lists for 1893 of the persons qualified to vote in the same districts, as prepared and certified by the inspectors. Also the poll lists for second, third, fourth and sixth districts for the year 1892.

The defendant objected to these several lists as irrelevant, and as not competent evidence of the facts. The poll lists of 1893, being the official record of the votes actually cast, or recorded as cast, when compared with the registry list for the same election, were material upon the question of the fraudulent character of the registry lists, and thus upon the question of motive for keeping the registry lists inaccessible.

This comparison shows that many persons whose names are in alphabetical order on the registry list are recorded upon the poll lists as voting in the same order. Thus, the names of Ring, Rich, Richardson, Rich, Richter, Rilly, Rigney, Rumph, stand in the order here given upon the registry list of the first district. The same names are found upon the poll list, in the same order, and as voting ballots numbered, respectively, 79, 80, 81, 82, 83, 84, 85, 86.

This remarkable coincidence of sequence in both registry and poll lists touches with striking light the question of the motive and honesty of the construction of the registry and poll lists and of the returns. A false registry list is the obvious condition precedent of a false poll list and of false returns of the election.

The example cited is a sample of others only less striking, not only in the lists of the first district, but also in some of the other districts. The absence of any sufficiently specified place of residence of the voter is not infrequent.

The registry list and poll list of the first district were the acts of the defendants Murphy, Morris and Brownhill, the inspectors for that district, jointly indicted with the defendant McKane, and thus pertinent to the question of their guilt.

The registry and poll lists of three of the other districts contained similar internal evidences of fabrication, and of course of similar motive. Was this similarity in error the result of concert in crime among the several inspectors of the several districts ? The fact was evidence relevant to the question. If of a concert of design and in crime, then a link existed between the registry lists aud poll lists of the first election district and those of the other districts. It was a link that bound acts, apparently distinct, into acts concerted and executed with a community of evil purpose. It was for the judge to decide in the first instance, upon his own inspection as assisted by all the evidence, whether the link existed; if it did not, then the lists of the districts other than the first were inadmissible; if it did exist, they were admissible. To our inspection, as the case is now presented to us, the link is clearly visible, and the lists of the other districts were properly admitted.

These lists taken together tend to prove that the inspectors of the first district were co-conspirators with the inspectors of the other districts, and possibly add something to the meaning of the other evidence tending to connect McKaue with the conspiracy. It is true that the conspiracy thus suggested has for its ultimate purpose a false return of a larger vote than the true one, and that the defendants are only indicted for committing some of the acts leading up to the final result. But the greater includes the less; and to the extent that we can see that the greater was accomplished, to that extent we must infer that the intermediate steps necessary to its accomplishment were also taken. While it is true as a general rule that conviction for one crime should not be obtained by proof of another, yet it is obvious that the rule does not apply where the two crimes are so related that the one involves or implies the other, or is a step in its commission.

The registry lists for 1893 contained 6,580 names as of the electors of the town. Upon the question of motive it was material to show that that number was too great.

The People placed in evidence the official enumeration of the inhabitants of the town of Gravesend, taken February 12, 1892, pursuant to chapter 5, Laws 1892, showing the whole number of inhabitants to have then been 8,343. This cast some light upon the question — it is not necessary that the light should be of absolute clearness and exactness in order to be admissible.

. What is said hereafter in regard to the admission of the election returns is applicable to the admission of the census returns.

The authorities are to the effect that the courts take judicial notice of tlie population of political divisions within their jurisdiction. (1 Greenl. Ev. §§ 4, 5, G; Farley v. McConnell, 7 Lans. 428; 52 N. Y. 630; Mertz v. City of Brooklyn, 33 N. Y. St. Repr. 577; 128 N. Y. 366; 12 Am. & Eng. Eucy. of Law, 174.) We think the census returns were properly admitted.

The defendant, to meet the charge of fraudulently increasing the vote, gave testimony on his direct examination as to the increase of the population of the town since 1890, and as to the vote of the town in 1891 and 1892.

The People, lipón liis cross-examination, put in evidence the election returns for 1891 in the six election districts, and afterwards in rebuttal put in the election returns for 1890 and 1892. It is apparent, we think, that when the defendant testified as to the totals of the vote in 1891 and 1892, lie only testified to his recollection of the statement in the returns of such totals, and hence the returns themselves would be the better evidence. Besides, no objection was made that the returns were not duly made, and deposited in the proper custody. We thence assume that the returns were made by the proper officers, whose means of knowledge were the best possible, whose duty it was to make them, who did so under their oath of office, and who are presumed to have done their duty properly. They were made and preserved by authority of law for the benefit of the public, and they are admissible. (Van Bergen v. Bradley, 36 N. Y. 316.)

As a general rule no better evidence of the results of an election is obtainable than the official returns afford.

If the several clerks and inspectors were called as witnesses, they could not be expected to do more than to verify the accuracy of the returns, a verification which the presumption of the performance of official duty affords.

In cases in the nature of a quo warranto the returns are presumed to be true until shown to be false. (People v. Minck, 21 N. Y. 539; People ex rel. Judson v. Thacker, 55 id. 525.)

The defendant urges that the real purpose of the People in placing in evidence lists and returns other than those of the first election district for the year 1893, was to show that the defendant had been guilty in former years of falsifying the vote and returns. As they were admissible for legitimate purposes, the most the defendant could do was to ask that such directions be given by the court to the jury as would limit their effect to such purposes.

The witness Maxfield testified that he went to the town hall in company with the witness Masterson, at the request of Mr. Mayer and in the interest of Mr. G-aynor, on October twenty-seventh, in order to take copies of the registry lists; these lists ought then to have been accessible in the hall.

They found a man, apparently a policeman, in charge; they told him they wanted to obtain a copy of the lists. The man told them they could not have it without an order from John Y. McKane. They saw no lists and of course obtained no copy. They returned to Brooklyn and reported to Mr. Mayer what had occurred. The People then proved by Mayer that on Monday, the thirtieth, he met the defendant in Brooklyn and stated to him what Maxfield and Masterson had said, as above stated.

The defendant then said, among other things: I gave that man those ordersand added, “ and if you want a copy of the list, why, certainly, you can have it.”

The statement made by the policeman to Maxfield and Master-son was objected to. The defendant insists that the policeman should have been called as a witness.

But when the defendant said, “ I gave the man those orders,” it is plain the defendant adopted as his own the acts and utterances of the policeman.

The People had to show actual obstruction, that is, the facts constituting it; the acts of the policeman and his words constitute the obstruction, or part of it; they were inadmissible unless chargeable to the defendant. The defendant, by his own statement, acknowledged that he was chargeable.

There was no need of calling the policeman ; what he said and did in the act of obstruction was provable by any one who saw and heard him; and McKane made the acknowledgment of his responsibility for the policeman’s acts and words with full knowledge of what they were.

In the same conversation between Mayer and the defendant, Mayer testified that defendant said: You can have a copy of this list; I said: Will you give me such an order; he said: Yes, I will do more; I will see Johnnie Murphy, and have him telephone down and tell tlie man to give you a copy of the list.” Murphy is a defendant, was then in defendant’s employ, and was one of the inspectors for the first election district.

Mayer testified that on the same afternoon he met Murphy in defendant’s office in Brooklyn, and asked him: “ Did McKane give you an order for me to get copies of the registry list at Graves-end?” Murphy answered “No.” Mayer: “Did he tell you to telephone down to the town hall to have the man in charge there let me copy those lists ? ” Murphy: “No.” Mayer: “ Please call his attention to it; he just promised me to do that in the street.”

The defendant was absent, and the objection to the conversation last quoted is upon that ground.

The conversation was admissible. Mayer was now prosecuting his quest for the lists, through Murphy, the inspector who ought to help him and whom McKane had promised to render serviceable. It was important for Mayer to find out whether Murphy would really help him, and the direct wray was to ask him. So far as Murphy wTas concerned he was continuing his obstruction. Incidentally Mayer obtained this information by asking if McKane had yet given him orders. If the sole point of this testimony had been to prove that McKane had not given the orders the objection, perhaps, would be valid. But the whole conversation is pertinent to the question of Murphy’s guilt; it tends to show that he was persevering in a refusal to act -without an order from McKane.

Mayer further testified that still later in the same afternoon, in his own office, Mr. Gaynor and the defendant Murphy being present, McKane absent, Murphy said:

“ Mr. Mayer, you are mistaken; Mr. McKane did not say he would give you an order.”

Mayer.— “ He certainly did say so.”

Gaynor.— “ What do you mean by saying I can’t have a copy of this registry list without an order from Mr. McKane; anybody can copy those lists, and I am going to have a copy of them.”

Murphy.— “Well, we are not going to let everybody that comes down there go in and copy this list; we don’t know that every man who comes down there is a friend, or a foe, or a thief ; Mr. McKane says he wall have a copy of the list made and given to you.”

Gaynor. — • “ I don’t want such a copy; I am going to have my own copy ; I am going to have a copy that can be sworn to in court.”

These declarations of the defendant Murphy were themselves acts of obstruction. He thus opposed Mayer and Gaynor in their efforts to get thé lists, and tried to make it more difficult for them. They Avere his evasive acts in liis part of the crime, intended to delay and baffle Mayer and Gaynor, and not his confession or recital of past criminality. At least the jury might so regard them, and might also infer that ho Avas still submissive to the influence of McKane.

McKane’s declaration to Mayer as to the orders he would give to Murphy, and Murphy’s declaration to Mayer and Gaynor showing liis persistence in his obstructions, in the absence of such orders, respectively, afforded one item of evidence against McKane, and another against Murphy, showing how each one stood as to a common pmrpose and as to his own part in it.

Three orders Avero granted by Mr. Justice Cullen on November first, one directed to the inspectors of the first election district, the others to the inspectors of the fourth and fifth districts, severally, to sIioav cause in the Suptreme Court the folloAving day Avhy a peremptory mandamus should not issue requiring them to alloAv Mr. Gaynor and liis agents to inspect and copy the registry lists of each district. The AA’itness Shanahan testified that he served the order for the fourth district upen G. Morris and Tuttle, two of the inspectors for that district. That in making the service upon Morris ho told him what the piapers were, and that lie had just served Mr. Tuttle, “and that he (Tuttle) told me he Avas going to hand the piaper to Mr. McKane.” This remark of the witness was made in response to the question, “ "What did you then say to him ? ” meaning when he served the piapiers upion him. “ Objected to as immaterial and incompietent.”

“ The Court.— I think Avliat he said may be taken, not what the inspiector said to him.”

This remark was made by the court, plainly upion the correct theory, that it Avas propier to receive evidence that the inspectors were at the time of and by the service of the piapers fully advised of the desire of Mr. Gaynor to obtain access to the registry list. The witness in answering -the question introduced, among other matters strictly within the ruling of the court, this statement of what Inspector Tuttle liad said ; that statement though literally within the ruling of the court was not within the spirit of the ruling. It was for the counsel for the defendant to move to strike it out if he was not content with it. This he did not do.

To allege as error now a casual incompetent statement of the witness, unexpectedly made, but which at the time was not deemed important enough to suggest a motion to strike' it out, ought not to be tolerated unless justice plainly requires it.

It appears from the evidence that McKane did assist in resisting these applications for a mandamus, and it does not seem to be material whether he did so upon the papers served upon Mr. Tuttle, or some other inspector. His assistan ce in defending all the inspectors with their consent is shown. Mr. Tuttle’s remark that he would take one step in a transaction becomes unimportant in the presence of the evidence that the other steps he did take embrace this one and many more.

The admissibility of Mr. Grout’s testimony as to the conversation over the telephone between himself and a person that he supposed to be McKane, depended upon the preliminary fact that such person was shown to be McKane. Upon the evidence there can be no reasonable doubt of it. The suggestion of the erroneous transmission by the telephone of McKane’s part of the conversation seems to be founded upon Mr. Grout’s inability to remember the exact words of a single sentence of it' — an obvious non sequitur.

Mr. Mayer, in the interest of Mr. Gaynor, went to the Gravesend town hall October thirty-first, with twelve copyists, with the view of obtaining copies of" the registry lists. He described the manner in which his efforts were obstructed and baffled; he was corroborated by other witnesses. It is enough to say, without going into details, that the obstructive tactics seem to have been systematic and successful.

The defendant was absent, but the evidence certainly was admissible, both as tending to imply the existence of the conspiracy, and to show the acts and declarations of the conspirators and their agents in furtherance of it.

Mr. Mayer on the same day visited Mr. Johnson, one of the inspectors of the sixth district, at his house in Gravesend, and made formal demand of him of the copy of the list which ought to have been in his possession. It was not produced. Why not? Was it because lie also "was in the conspiracy ?

Mr. Mayer also went to the house of Mr. Cropsey, another inspector of the same district. He did not see Mr. Cropsey, but he inquired of the lady in charge of the house, stated his business, and asked permission to see the list. Tbe lady, answering that she knew Mr. Cropsey to be an inspector, further answered that be was' absent, and she knew nothing about tbe matter.

Mr. Mayer testified to an interview, substantially similar, at tbe bouse of Mr. Crandall, another inspector for tbe sixth district.

Mr. Grout, on November thirtieth, visited tbe same bouses, could not find tbe inspectors, and bad a similar interview with tbe person in charge of each house.

Other witnesses testified to like visits, like interviews and like-results at tbe bouses of other inspectors.

Tbe learned presiding judge said in admitting this testimony : There is sufficient evidence upon which to base an inference that what was done with regard to these inspectors was part of a scheme-which comprehended all; that the covert motive actuating the defendant Avith regard to all can be shown.”

We think the evidence Avas admissible ; obstacles to the pursuit of the registry lists could not be Avell understood without evidence of the details both of the pursuit and. the obstacles. Standing alone and apart from the defendant, any one several pursuit and its defeat might seem to be inadmissible. But the question for the jury was, did they severally stand alone and apart from the defendant, or did they stand each in its place, as part of the obstruction and defense at that place against Mr. Gaynor’s search for the registry lists, and did they thus in effect stand together ? Hid McKane stand apart from the campaign of obstruction, or was he its leader ?

This view applies to the evidence detailing the series of the attacks by Mr. Gayuor, and the resistance, offensive, defensive and repulsive, apparently planned, operated and maintained for his defeat. McKane Avas not ahvays in view, but the evidence shows that he Avas at the front at the opening of the controversy, at several of its intermediate stages, and conspicuously so, under color of his office as chief of policy when it assumed its grosser features of personal intimidation and outrage.

The official powers of the magistrate Newton were put in requisition to effect the imprisonment of some of Mr. Gaynor’s assistants. How far his official powers were lent to the support of the scheme of obstruction was a proper subject of inquiry, in view of the evidence given tending to connect him with the conspiracy.

Michael Hyan was an inspector for the second district.. He was also principal of the public school on Ooney Island, a part of the town of Gravesend. When the quest for the copies of the registry lists in the hands of the individual inspectors was being made during the week preceding the election, search was unsuccessfully made for him. There were six teachers under him in the public school; one of them, Clara P. Daly, testified that he was absent from the school on Thursday, Friday and Monday preceding election day, Saturday being a holiday ; that such continued absence was unusual. She was also permitted to testify to the number of pupils in the-school. The counsel for the defendant assumes that this was done for the purpose of showing the disproportion between pupils and voters. But its purpose seems to have been to show that the school was large epougli to need the principal’s customary attendance on the days in question, and thus his absence might be referable to his co-operation in the scheme of- suppressing the registry lists. The circumstance may have been slight, but we cannot say that it could not be considered in connection with the other testimony.

Several witnesses were called by the defendant who testified to his good reputation. On cross-examination the People were permitted to ask them as to his reputation in connection with certain specified transactions involving the questionable use of his power and influence. • This was permissible. The defendant having introduced evidence in general terms that his reputation was good, the-People certainly were at liberty to show, upon cross-examination, what it was with respect to important particulars.

Certainly so, within a reasonable range of the subject introduced by the defendant. It may be that some of the particulars thus introduced strengthened the case of the People in respect of the peculiar power and influence of the defendant among his townsmen, but in the absence of the abuse of the right of cross-examination, we cannot find error requiring reversal from the mere fact that the testimony might have touched not only the defendant’s character,. but also the probability of the truth of the charge against him. To hold this to be error would be to invite a defendant, whose case is ■desperate, to spread a net in which to ensnare the People.

The defendant presses some objections to the charge to the jury. It is doubtful whether there are any exceptions. Written requests to charge, presented by counsel, were passed upon by the court before making the main charge. Two exceptions were then taken. At the close of the main charge one of the defendant’s counsel said: “ I desire to withdraw the exceptions I took.” Whether he did this because he was impressed with the fairness and correctness of the ■charge, or because he preferred to give the jury the idea that he regarded it as favorable to the defendant — certain it is that he thus waived his right to try to procure by exception any modification of it. If the after-examination detects any errors, they will not justify .a reversal, unless it is clear that they in fact prejudiced the defendant, notwithstanding the artfulness of counsel in attempting to nullify their influence.

Objection is especially made to the following portion of the •charge in respect to the testimony of Mr. Mayer, already referred to, and contradicted by the defendant, to the effect that in his interview with the defendant, the latter said in effect that he did give to tlip person in charge of the town hall the direction not to allow any person to have a copy of the registry lists without an order from himself:

“Now, if the defendant really did acknowledge giving a direction of this kind, that admission in connection with the other circumstances of the case would tend to sustain the inference that at that time he already possessed control over these registry lists, if not the actual custody of them.”

It may be said of all material evidence that it does tend to sustain some affirmative or negative position; its admission implies so much; it was not error for the judge to say so of the testimony in question; he did not say how strongly or feebly it tended; if he had undertaken to say that he would have been dangerously near trenching upon the province of the jury.

Elsewhere, the court brought out the distinction that while it might allude to evidence tending to establish-.some fact in the case, it was for the jury to determine whether they believed the evidence, and, if so, whether it did establish such fact.

We may safely assume, we think, that at the time this distinction was clearly understood.

The instructions given by the court as to the duties of the inspectors in regard to the posting and accessibility of the registry lists or copies, seem to be favorable to the inspectors, to the extreme limit of permissible liberality.

The criticisms of other portions of the charge do not seem to us to require special mention. Finally, the defendant contends that the verdict is against the evidence. The foregoing opinion is in the main confined to the examination of such of the exceptions taken upon the trial, which the defendant presses upon our attention, as seem to us worthy of written mention. This examination serves to develop to some extent the nature of the case; we do not think it necessary to undertake the additional labor of collating and arranging in lucid order the testimony necessary to a clear presentation of the whole case; it must suffice to say that we have examined it, and the examination satisfies us that the verdict is supported and justified by the evidence.

Judgment of conviction and sentence affirmed.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Brown, P. J.:

license: Public Domain

text:
    John Bohleber, Respondent, v. August Waelden and Another, Appellants.

      Equity • — canceling an instrument fot'fraud or mistake — non-performance of a contract, which is the consideration for an assignment of a policy of life insurance ■ — • a purchaser from the assignee is not obliged to perform it.

    The jurisdiction of a court of equity to cancel an instrument is exercised only when fraud or mistake is alleged and proved.
    The omission hy the assignee of a policy of life insurance to keep and perform the obligations of a contract which was the consideration of the assignment, where, by the terms of the agreement the performance of the contract was to begin-after the execution and delivery of the assignment, cannot be made the ground for setting aside the assignment. It may afford a basis for an equitable action for specific performance or a legal action for damages, but it will not sustain an action to annul the instrument of which it was made the consideration.
    Where an assignment of a life insurance policy is not given as security but as the consideration for an agreement to support the assignors, the title to the: policy, subject to the conditions therein stated, upon the delivery thereof, vests in the assignee, and upon the death of the assured becomes .absolute.
    The assignee can sell the policy and transfer a good title thereto, and his assignment thereof to another is not subject to any equities between the parties to the agreement which was the consideration for the original assignment of the insurance policy.
    Appeal by tbe defendants, August Waelden and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of'the county of Kings on the 5 th day of January, 1894, upon the decision of the court rendered after a trial at the Kings County Special Term.

      K T. Maddcoos, for the appellants.

      F. Solmger, for the respondent.
   Brown, P. J.:

This case has been before this court on a prior appeal by the plaintiff from a dismissal of the complaint. (69 Hun, 79.) It was then assumed that the assignment to Schmidt was made upon his promise to pay the premiums and keep the policy alive, and that it was qualified by the words “ as interest may appear.” Under those facts it. was held that plaintiff was entitled to an accounting and to a reassignment upon payment of what was due to the defendants for premiums paid by them.

The case now before us as made by the pleadings, evidence and findings is very different from that stated in the opinion of Justice Barnard, and we feel at liberty to consider it disembarrassed from the former decision.

It appeared that in August, 1877, the Equitable Life Assurance Society, in consideration of seventeen dollars and ninety-one cents, payable by Maria Bohleber, plaintiff’s wife, and of quarterly' premiums to be paid during the continuance of the policy, issued its policy of insurance on the plaintiff’s life, payable “ to the said wife for her sole use, if living, in conformity with the statute, and if not living, to the children of said John Bohleber or their guardian for their use, or if there be no such children or wife surviving, then to the executors, administrators or assigns of said John.”

On December 14, 1889, said Maria Bohleber and John Bohleber executed and delivered an assignment of said policy to the appellant Charles Schmidt, “ as interest may appear.” On March twenty-eighth Schmidt executed and delivered to the appellant Waelden an assignment of said policy absolute in form.

The court found that no fraud or mutual mistake was proven against the defendants or either of them upon obtaining the assignment to Schmidt. The plaintiff’s wife died in April, 1890, and no children survived her.

■ The complaint alleged and the court found that the assignment to Schmidt wras made on his promise to pay the premiums and “ keep the plaintiff and his wife from want and from distress caused by lack of funds or sickness.” And that in September, 1890, said •defendant refused to render assistance to the plaintiff, although he was then in want and distress, and thereafter failed to support him.

I can find no evidence in the case that Schmidt ever refused to support the plaintiff. All that the plaintiff testified to on his direct examination was that Schmidt lived on Marcy avenue and moved from there to the country in December, 1890, and that he did not move with him because Schmidt did not take him with him!'

Being recalled in rebuttal, he said: “ I did nothing about going with Schmidt when he moved, from Marcy avenue to the country; I did not move with him. * * "" He didn’t say anything to me. On the contrary, I helped him move out for a whole week, and I ■supposed that when he got settled there and in order that he would take me out with Mm. He never offered to take me.

“ Q. Did you ever offer to go with him ? A. No, I did not. I have thought that he would send his son for me and take me to him. I was living in a hired room at the time, for which I paid three dollars a month.”

Upon the plaintiff’s theory of the case, therefore, he failed, as he certainly could not be entitled to the relief he seeks until the defend■ant was in default by a refusal to perform his contract.

But independent of this finding, this section cannot be sustained without disregarding well-settled rules of law. We may assume for the purpose of this appeal, without deciding it, that under the condition of the policy relating to payment, the plaintiff, by the death of Ms wife and children, acquired a vested interest therein which •entitled him to maintain an action for its protection.

But the rule is well settled that the jurisdiction of a court of equity to cancel an instrument is exercised only upon allegation and proof of fraud or mistake. ( Wilson v. Deen, 14 N. Y. 531-535; Herrick v. Starkweather, 54 Hun, 532.)

No such allegations are made in the complaint, and no evidence thereof was given upon the trial, and the court distinctly found that the assignment to Schmidt was not the product of any fraud or mistake.

The charge is that the defendant Schmidt failed to keep and perform the contract which was the consideration of the assignment.

By the very terms of the agreement, its performance by Schmidt was to begin after the execution and delivery of the assignment, and the omission to perform it cannot be made the ground for setting aside the assignment.

It may afford a basis for an equitable action for specific performance or a legal action for damages, but not an action to annul the instrument of which it was made the consideration.

The expression “ as interest may appear,” contained in the assignment, adds nothing to the'plaintiff’s ease. There was no indebtedness to Schmidt from plaintiff or his wife; and the words quoted appear to be without meaning in the contract actually proven.

Schmidt had no interest in the policy except such as he acquired by the assignment. It was not given as security, but as a consideration for his agreement to support the assignors.

Under settled rules of law the title to the policy subject to the conditions therein stated upon the delivery of the assignment vested in Schmidt, and upon the death of plaintiff’s wife became absolute. He could sell it and transfer a good title, and his assignment to. Waelden was not subject to any equities in the plaintiff.

Eor these reasons the judgment must be reversed and a new trial granted, costs to abide the event.

Dykman and Cullen, JJ., concurred.

Judgment reversed and new trial granted, costs to abide event.


author: Rrown, P. J.:

text:
    John J. Radley, as Administrator, etc., of Frank X. Radley, Deceased, and Another, Respondents, v. Lillie A. Riker, Appellant, Impleaded with Another.

      Agreement by a wife to live with her husband at a c&rtain place— not a legal consideration for a conveyance of real estate to 'her.

    An agreement made by a wife with her husband to remove from the city of New York and to live with her husband in Dutchess county, is not a legal consideration for a grant of real estate to her from her husband, nor will it suffice to support the same as against the claims of the husband’s creditors.
    Appeal by the defendant, Lillie A. Riker, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Dutchess on the 18th day of November, 1893, upon the decision of the court rendered after a trial at the Dutchess Special Term.
    The action was brought to set aside two deeds, one from William H. Riker to George F. Martens, and the other from George F. Martens to Lillie A. Riker.

      Thos. J. Farrell and George F. Martens, for the appellant.

      James E. KelVy, for the respondents.
   Rrown, P. J.:

This action was brought to set aside two deeds which transferred to the appellant from her husband, William H. Riker, real estate in Dutchess county.

The deeds were dated July, 1891, and the evidence clearly established that at that time William H. Riker was owing large amounts of money and was insolvent.

No consideration was paid by the grantee in either deed, but the appellant sought to sustain them by evidence that the property in question was acquired by the husband in exchange for property situated on Sixty-eighth street, in New York, and that when such exchange was under discussion she refused to execute the deed, and that it was thereupon agreed that in consideration of the release by her of her inchoate right of dower in the New York property the Dutchess county property should be transferred to her, subject to a mortgage of $5,000. ■

The trial court refused to find that such an agreement was made, and this finding is supported by the testimony. The interest of the appellant and her husband in the result of the trial was such as to make the credibility of their testimony a subject for the consideration of the court, and we are not disposed to disturb its conclusion. The only other testimony on the question was that of Mr. "Williams, the grantor of the property in question.

His testimony was as follows: That at an interview with Mr. and Mrs. Riker at their home prior to the sale, “ Mrs. Riker seemed to object to the exchange, and he (the husband) told her if she would consent he would give her the deed of the Millerton property. Q. And she assented to it at that time ? A. I don’t know as she did at that time; I gave the deed to the husband, I think. Q. How came it that you made the deed out to him at that time ? A. I supposed he asked me to; * * * I made it as he required it.”

This evidence, while it corroborates the appellant to some extent, did not show that an agreement was made, and the fact that the title was taken by the husband and remained in him for upwards of a year, and until he became insolvent, was strong evidence that the conveyance was not made for such consideration.

After the exchange was made, and prior to the conveyance to the appellant, her husband had contracted large obligations, among which was that upon which the judgment held by the plaintiffs intestate was recovered, and Mr. G-renough, one of the firm with whom he had contracted, was informed by him that he was the owner of the property in suit.

The circumstances all tended to contradict the appellant’s claim, and we are of the opinion that the conclusion of the court is amply sustained by the evidence.

The appellant also contends that a consideration for the deed exists in an agreement upon her part to remove from the city and live with her husband in Dutchess county.

That fact, if true, would not constitute a legal consideration and would not sustain the deed against the claim of creditors.

The judgment must be affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of the Petition of The Brooklyn Elevated Railroad Company, Appellant, Relative to Acquiring Title to Real Estate, or a Right of Way on Myrtle Avenue, in the City of Brooklyn and County of Kings. In Re Thomas J. Sinnott and Others, Owners of Parcel 69. In Re Sarah Gater, Owner of Parcel 177. In Re Charles H. S. Bulkley, Owner of Parcel 196. In Re Isaac O. Horton, Owner of Parcel 197. In Re John Englis, Owner of Parcel 198. In Re John Englis, Owner of Parcel 199.

      Report of commissioners of appraisal — remew thereof Toy the Special and General Terms — when properly set aside— Code of Civil Procedure, §§ 3370, 3371.
    .The purpose of section 3370 of the Code of Civil Procedure is that a landowner should have the benefit of the exchange of views and the comparison of ideas, which would come from a consultation together qf all the commissioners of appraisal appointed to take his real estate against his will, and although it might be that the result would not have been different if such consultation had taken place, the failure to comply with such provisions of the statute is an objection of sufficient weight to justify the setting aside of the report of the commissioners of appraisal and the directing of a new appraisal.
    Section 3371 of the Code of Civil Procedure expressly confers the power upon the Special Term of the Supreme Court to set aside the report of commissioners of appraisal in condemnation proceedings for irregularity, error of law, or upon the ground that the award is excessive or insufficient, and the award should be reviewed at Special, and General Terms upon the facts as well as upon the law.
    Appeal by the petitioner, The Brooklyn Elevated Railroad Company, from four orders of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of March, 1894, setting aside the report of the commissioners of appraisal as to parcels 69, 177, 196, 197,198 and 199, respectively, and as resettled and amended by four orders entered in said clerk’s office on the 12th day of March, 1894, and also from said four orders of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of March, 1894, denying the petitioner’s motion to resettle said orders entered on March 5,1894, and modifying the same.

      W. IT. Gohen, for the appellant.

      Francis Fusel Whitney, for the respondents.

      Thomas H. Troy, guardian ad litem, for Sinnotts, infants.
   Brown, P. J.:

The misconduct of one of the commissioners in these proceedings was of so gross a character that the reports should not be confirmed, unless the landowners have waived all objections thereto.

One of the commissioners was absent from every hearing, frequently two were absent, and very much of the testimony was given before a single commissioner.

Two reports were made. The one made by Commissioner Huber states that he had viewed the premises described in the petition, and had been informed and believed that his co-commissioners had heard the proofs and allegations of the parties, and that the testimony had been reduced to writing. That he had been furnished with a copy of, said testimony, which was stated to be correct. That he had carefully read the same, and had determined the compensation which ought justly to be made to the owner. The compensation awarded in each case was six cents. But in the Sinnott case no award was made by either report to the infant Charles P. Sinnott, and Commissioner Huber omitted also to make any to the infant John F. Sinnott.

A trial conducted as these were is a farce, and the misconduct of the commissioners deprived the reports of that respect which is always due to the determination of a judicial tribunal. But it is said that the property owners consented that the testimony should be taken and the hearing proceed on each occasion in the absence of one and sometimes of two commissioners, and such is the record so far as the adult owners are .concerned. Notwithstanding such consent, we are of the opinion that the orders appealed from should be sustained, unless the awards have the support of the decided weight of the evidence.

A litigant ought not to be placed in the position where he is required to proceed with the trial in the absence of the judge. There is a sort of moral coercion in the suggestion that he do so which is opposed to our sense of justice. And gentlemen who are appointed to such responsible positions as commissioners to appraise the value of property taken by the State against the will of the owner should devote to the trials the time and attention necessary to a fair and just consideration of the case or else resign. Commissioner Iiuber violated nearly every duty imposed upon him by statute, and evidently misunderstood the character of the position he held, and if his failure to attend the hearings had been called to the attention of- the court, there is no doubt that he would have been promptly removed.

The guardian ad litem, however, did not consent, and if he had the question whether the award should stand as to the infants, would depend upon what was for the best interests of their estate and not on what the guardian had agreed to. And in the case of John and Charles Sinnott, we should hesitate in any event to deny to them the right to be upon an equality with their co-owners and enjoy the award of six cents which the commissioners denied to them alone of all the owners.

But in relation to the adult owners there is one objection to the award which they have not waived.

The statute requires that, after the testimony iix each case is closed, the commissioners, or a xnajority of them, all being px-esent,” shall, without unnecessary delay, ascertain and determine the compeixsation to be awarded to the owner’s, etc. (Oode Oiv. Proc. § 3370.)

This requirement was not complied with. Commissioner Huber made a separate repox-t in which he stated that he was not present at any of the meetings.

The report signed by the other two commissioners states that after the testimony was closed they determined the compensation to be made to the owners, and made use of the expression “ we all being pi-esent.” It is apparent, however’, from the context of the report, that this expression referred only to the two commissioners who signed it.

The purpose of the statute was that the landowner should have the benefit of the exchange of views and the comparison of ideas which would come from a consultation together of all the commissioners. This has been denied them in these cases, and, while I do not think the result would have been different if such a consultation had taken place, the failure to comply with the command of the statute is an objection of sufficient weight to support the orders appealed from. The learned counsel for the appellant contends that the reports of commissioners in proceedings of this character should be set aside only for gross and palpable errors of law. If such be the rule, I think I have pointed out sufficient grounds for its application in the cases before the court.

But such is not the rule under the present Condemnation Law. Section 3371 of the Code of Civil Procedure expressly confers the power upon the Special Term to set aside the report for irregularity, or for error of law in the proceedings before the commissioners, or upon the ground that the award is excessive or insufficient.”

The rule which requires the testimony to be reduced to writing and attached to the report, and the power given to the Special Term to set aside the awards when excessive or insufficient, and the right of appeal which each party has upon a case made as in civil actions, all import that the intention of the Legislature was that the award should be reviewed at Special and General Term upon the facts as well as upon the law. We, therefore, come to the question whether the awards before us have the support of the weight of the testimony. As.we have determined that there must be a new trial upon which the evidence before us may be reproduced, an extended discussion thereof would not be proper. As is usual, the expert witnesses who testified as to the effect of the railroad upon the value of the property, did not agree; and, assuming that the commissioners adopted the views of the witnesses called by the railroad company, their award cannot be said to be without some evidence to support it. But a pre-eminent fact in all the cases is that the rents of the property have decreased since the construction of the road, and this fact is not satisfactorily explained by those witnesses who think that the property has during the same period increased in value.

It is sufficient to say that the testimony is of such character that it would have permitted a different result, and it does not clearly preponderate in favor of the award.

Taken in connection with the fact that there has not been a fair trial, and no just or proper consideration of the case by the commissioners, the reports were properly set aside and a new appraisal ordered.

The orders appealed from should be affirmed.

Dykman and Cullen, -J.J., concurred.

Orders affirmed, with costs.


author: Dykman, J.:

text:
    William T. Reynolds, as Executor, etc., of Walter P. Denslow, Deceased, Respondent, v. Van Buren Denslow and Another, Appellants, Impleaded with Annie N. Turner and Others, Defendants.

      Uses and trusts — trust limitations given effect as powers in trust — as powers they an'e unlimited.

    While all express trusts are abolished except those enumerated in section 55 of the Statute of Uses and Trusts, yet that statute has not stripped the owners of property of the power to impress upon their estates limitations possessing the characteristics of trusts; trust limitations, if lawful, may be given effect as powers in trust.
    The statute does not enumerate or define the acts which may be done under a power as in the case of trusts, and such acts are practically unlimited.
    Powers may be created for any lawful purpose, by any language which indicates an intention to bestow them, and to do any act which the grantor might himself lawfully do.
    Appeal by the defendants, Yan Burén Denslow and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Dutchess on the 29th day of December, 1893, upon the decision of the court, rendered after a trial at the Dutchess Special Term, construing the last will and testament of Walter P. Denslow, deceased.

      Benjamín B. Kenyon, for the appellants.

      J. S. Van Gleef’ for the respondent.
   Dykman, J.:

The object of this action was to procure a judicial construction of the last will and testament of Walter P. Denslow, deceased.

The questions for determination are presented by the twelfth, thirteenth and fifteenth clauses of the will, which read as follows:

“ Twelfth. I give unto my wife, Susan F. Denslow, tlie use, during her natural life, of all my real estate of every kind of which I ■die seized of, with full power to collect and use the income and profits therefrom.

Thirteenth. At the death of my wife, or in case she shall not ■survive me, I give and devise all my estate, both real and personal, and not herein otherwise disposed of, unto my executors hereinafter named, in trust for the following uses and purposes, viz.: To sell ■and convert the whole thereof into cash, and for that purpose I hereby give and grant unto them full power and authority to sell the same, and give and deliver good and sufficient deeds and other instruments therefor, and I order and direct that they divide the proceeds of such sales into six equal parts, and that they pay over and deliver unto Ruby Brooks one of such equal sixth parts, and in case that she shall not survive my wife, then I direct that -that said one-sixth part be paid over and divided equally among the children of said Ruby Brooks, share and share alike, and further, that said ■executors pay over and deliver unto the said Olive Sykes, wife of said Edmund T. Sykes, two of such equal sixth parts, and in case she shall not survive my said wife, then that they pay over and divide the same equally among the children of said Olive Sykes, who shall ■survive my wife, share and share alike, and further, that said executors pay over to my brother Oliver C. Denslow one of said equal ■one-sixth parts, and in case he shall not survive my said wife, that then they pay over and divide the said one-sixth part equally among the children of said Oliver 0. Denslow, who shall survive my wife, and further, that said executors pay over and deliver one of said equal one-sixth parts equally among the children of my brother John W. Denslow,-who shall survive my wife, share and share alike, and further, that said executors pay over and divide one of said equal one-sixth parts equally among the nephews and nieces by blood of my said wife, Susan F. Denslow, share and share alike.

“ Fifteenth. If at any time during the lifetime of my wife, my executors hereinafter named, shall in their opinion, deem it best for the interest of my estate, that any or all of the real estate of which I die seized of should be sold, and my said wife shall consent to such sale, then and in that case, I hereby authorize and empower my executors hereinafter named to sell and convey any and all of my real estate, and give good and sufficient deeds therefor, and I hereby direct them to invest the proceeds of such sale or sales upon securities authorized by law, and the rules and practice of the courts, and quarterly, half-yearly or yearly, as they shall receive the income therefrom, to pay such income over unto my said wife, Susan E. Denslow, during the term of her natural life.”

The cause was tried at a Special Term of the court, and a judgment rendered in favor of the validity of the will. Two of the defendants have appealed from the judgment.

It is the contention of the appellants that the devise of the real property to the executors in trust is invalid as a trust because it fails to empower the trustees to receive the rents and profits, and cannot be valid and executed as a power in trust because the purpose for which the trust was intended to be created is one for which a valid trust is authorized by subdivision 2 of section 55 of the Statute of Uses and Trusts.

The respondent does not contend that the devise of the property to the executors was valid as a trust, but he insists upon its validity as a power, and so the trial court decided.

The statute upon which the judgment is based is this : “ A devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees, but the trust shall be valid as a power, and the lands shall descend to the heirs or pass to the devisees of the testator, subject to the execution of the power.” (1 R S. 129, § 56.)

While it is true that all express trusts are abolished except those enumerated in section 55 of the statute, yet that statute has not stripped the owners of property of the power to impress upon their estates limitations possessing the characteristics of trusts. Trust limitations, if lawful, may be effectuated as powers in trust. The statute does not enumerate or define the acts which may be done under a power, as in the case of trusts, and they are practically unlimited. Powers may be created for any lawful purpose, by any language which indicates an intention to bestow them, and to do any act which the grantor might himself lawfully perform.

The cases of Blanchard v. Blanchard (4 Hun, 288) and Bel mont v. O’Brien (12 N. Y. 405) are authority for the foregoing statements.

It is easily gathered from the language of section 56, above quoted, that section 58 of the statute was not aimed against the creation of powers. The provision is that' where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate vests in the trustee; that is the only effect of such an effort; but if the trust authorizes the performance of any act lawful under a power, it shall be valid as a power in trust.

It requires no argument to prove that it was perfectly lawful for this testator to bestow a power upon his executors to sell his property, divide the proceeds into six equal parts, and distribute them as directed.

In the case of Germond v. Jones (2 Hill, 569) the testator devised and bequeathed all his real and personal property to his brother in trust, to sell and dispose of the same, and out of the proceeds to pay debts and legacies, the residue to belong to the trustee. It was held that the trustee took no estate in the land, that the will created a power in trust, and upon the death of the testator the fee descended to the heirs. In that case Judge Bronson, who delivered the opinion of the court, said: “ In most of its features this appears to me to be a very plain case. The testator has devised all his property, real and personal, to his brother, Smith Germond, in trust to pay debts and legacies. This was a good express trust, or rather, power in trust, under our new Code in relation to uses, trusts and powers. (1R. S. 128,129,134, §§ 55, 56, 94.) At the common law the estate would have passed to the trustee, but even then his widow would not have been entitled to dower. A woman is not dowable of a trust estate. But under our statute Smith Germond took no estate whatever in the land. He had authority to sell, but was not empowered to receive the rents and profits, and in such a. case the trust is nothing more than a power, and the land descends to the heir subject to the execution of the power.”

There have ever been powers in the nature of trusts, and even some of the trusts specified in section 55 are simply powers in trust. They may be created for many useful purposes, and it was wise to leave their purposes unrestricted. "We, therefore, concur in the judgment and all its provisions.

Some minor and unimportant points raised by the appellants have received examination, but they present no error.

The judgment should be affirmed,, with costs.

Brown, P. J., and Cullen, J., concurred.

Judgment affirmed, with costs.


author: Dykman, J.: Cullen, J.:

text:
    The National Spraker Bank of Canajoharie, Respondent, v. Geo. C. Treadwell Company, Appellant, Impleaded with Another.

      Promissory note of a corporation — that it was signed by its president, and not by its treasurer, is not a defense.

    The fact that a promissory note was made by the president of a corporation, and was not signed by its treasurer in accordance with the by-laws of the company, constitutes no defense to an action thereon if the paper was not diverted from its original purpose, went into the hands of a bona fide holder and the company received the benefit of the proceeds.
    Appeal by the defendant, the Geo. 0. Treadwell Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of February, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 6th day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Edwa/rd F. O’Dwyer, for the appellant.

      William G. Oooke, for the respondent.
   Dykman, J.:

This is an action upon a promissory note, of which the following is a copy:

“ Albany, N. Y., March 10, 1893.

Five months after date we promise to pay to the order of Geo. H. Treadwell, five thousand -^fy dollars at Hotchkiss & Co.’s Banking House, 31-33 Broadway, New York, without defalcation, for value received.

“ $5,000-^. « GEO. C. TREADWELL CO.,

“ Geo. H. Treadwell, President.”

Tbe note was indorsed by George H. Treadwell and Hotchkiss & Co.

The defense consisted of a denial of tbe making of tbe note by tbe company, but tbat did not signify tbat tbe note was not made by tbe president, but was based upon tbe theory tbat tbe president was destitute of authority to execute tbe paper.

It appeared from tbe evidence tbat tbe note was made and delivered to tbe plaintiff in renewal of a former note of tbe same party which bad been discounted by tbe plaintiff.

When, therefore, tbe paper was produced by tbe plaintiff upon the trial and proven as it was, a case was made which required an answer.

Tbe fact tbat tbe paper was made by tbe president of tbe corporation, and was not signed by tbe treasurer, in accordance with tbe by-laws of tbe company, constitutes no defense.

Tbe paper was not diverted from its original purpose, and went into tbe bands of a Iona fide bolder, and tbe company received tbe benefit of tbe proceeds.

Tbe defense failed, and as there was no disputed question of fact tbe court properly directed a verdict for tbe plaintiff.

The judgment should be affirmed, with costs.

Brown, P. J., concurred.

Cullen, J.:

I concur on tbe ground tbat tbe evidence was sufficient to go to tbe jury and tbat no exception was taken to tbe direction of a verdict.

Judgment affirmed, with costs.