text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. H. CORNELIA GILBERT, Respondent, v. TIMOTHY MOORE and Others, Assessors of the City of Cohoes, and Others.

      Beoieio of an illegal assessment under chapter 269 of 1880 — reference—refusal by the relator to answer questions of the assessors — sending the matter back to the referee — what acts constitute a change of residence.

    The relator having been assessed, on July 1, 1886, by the assessors of the city of Cohoes upon $20,000 of personal property, appeared before them on grievance day and submitted affidavits tending to show that she had not resided in Cohoes, since May 80, 1886, but had resided and continued to reside in White Creek, Washington county. The assessors refused to strike the assessment off the roll, holding that the relator was still a resident of Cohoes, whereupon the plaintiff' instituted proceedings to review the assessment under chapter 269 of 1880, in which proceedings an order was made referring the matter to a referee, before whom the relator was sworn in behalf of the assessors.
    The relator testified upon the reference that she resided in the town of White Creek, but refused, under the advice of counsel, to testify any further, alleging that the testimony was closed before the assessors, and the only question was one of law, whether upon that testimony the assessment should be stricken off the roll.
    The referee certified to the testimony and to the proceedings had before him. Upon amotion subsequently made by the relator the matter was sent back to the referee to take the testimony of the relator, if the assessors still desired to take the same; the order also directed the relator to appear before the referee and submit ' to an examination by the assessors, which she offered to do.
    The assessors served a notice that they disputed the power of the court to send ■the case back, and did not desire to examine the relator further. Thereafter an order was made denying a motion of the assessors to quash the writ, and it was • directed that the valuation of the relator’s personal property be stricken from the assessment-roll.

      Held, that as the order of reference tvas duly made it was the duty of the relator to answer the questions addressed to her by the assessors touching her place of residence, and that her refusal was, prima facie, a contempt.
    That the Special Term had the power, in its discretion, either to give her an opportunity to purge herself of the contempt, or to take proceedings for her summary punishment, as by striking out her testimony before the assessors or denying her application upon the certiorwi.

    That as the relator offered to submit to an examination before the referee, and the assessors did not accept the offer or introduce other testimony, both parties rested their case upon the testimony given.

      ' That as it appeared by such testimony that the relator had actually hired a house and taken up her residence in it, in White Creek, on June 1, 1886, and continued to reside in it, and had left her residence in Cohoes and had leased a portion of her house and furniture there to a tenant, and had been assessed for taxation in the town of White Creek, she was not a resident of the city of Cohoes on the 1st day of July, 1886, and that the assessment was properly stricken from the roll. .
    Appeal by tlie assessors of the city of Oolioes from an order of the Albany County Special Term, entered on December 27, 1888, in the office of the clerk of Albany county, denying their motion to quash a writ of certiorari, and directing upon the certiorari, return thereto, and testimony taken and other proceedings had, that the assessment of $20,000, valuation of the relator’s personal property, be stricken from the assessment-roll, upon the ground that she was a non-resident of said city on and after the 30th day of May, 1886.
    The relator, on July 1,1886, was assessed in said city upon $20,000 of personal property. She sued out a writ of certiorari to review the assessment, under chapter 269, Laws of 1880. The assessors made return of the assessment-roll embracing such assessment, alleging that the relator was a resident of Cohoes at the time the assessment was made, and the owner of personal property of the value of the assessment; that the relator had appeared before the assessors while they were sitting to hear grievances, and submitted affidavits tending to show that she had not resided in Cohoes since May 30, 1886, but had resided and continued to reside in White Creek, Washington county. It was returned that she was the owner of a dwelling-house in Cohoes, of the assessed value of $8,000, in which she had resided for several years prior to May 30, 1886. Respecting her said dwelling-house and furniture, her affidavit returned by the assessors recited: “ My household furniture at Cohoes, N. Y., has been, since June 1, 1886, rented by me to Mr. Yredenburgh, with my house, to October 1, 1886, and used by him, except a small portion which is stored in four rooms, because he did not want them. A portion of my furniture is in a house rented and occupied by me since May 30, 1886, at said town of White Creek, Washington county, which I had hired and occupied since May 30, 1886, continuously.” She also submitted to the assessors the affidavit of Thomas O. Gifford, to the effect that she was assessed for the year 1886, in the town of White Creek, as a resident and taxpayer therein. The assessors refused to strike off the assessment, holding, in substance, that the relator was still a resident of Cohoes, and her residence in White Creek was evasive and temporary.
    The certiorari and return coining on to be heard at the Special Term, an order was there made against the objection and protest of relator, but without prejudice to the same, sending the matter to a referee. Before the referee, the relator was sworn in behalf of the assessors, and testified that she resided in the town of White Creek, but refused, under the advice of counsel, to testify further, alleging that the testimony was closed before the assessors, and the •only question was one of law whether upon that testimony the assessment should be stricken off the roll. One of the assessors was then sworn; and testified that- during the whole of the month of July, 1886, the relator resided in a house assessed to her in the city of Cohoes. The referee certified to the testimony and proceedings before him, and thereupon the relator moved, at Special Term, that the assessment be vacated. The court ordered that the matter be sent back to the referee “ to take the testimony of the relator, if the respondents still desire to take the same, and such other pertinent testimony as either party desire to introduce,” and the relator was directed to appear before the referee and submit to an examination by the assessors. The assessors then served notice upon the relator’s attorney that they disputed the power of the court to send the case back, and did not desire to examine the relator further or introduce other testimony. The relator offered to submit to their examination; thereupon the relator brought on the motion and hearing-before the Special Term upon the whole proceedings, and the order was made from which this appeal is taken, the assessors giving notice that they intend to bring up for review the order sending the case back to the referee for further hearing.

      P. P. Fiver, for the assessors.

      O. F. Poyle, for the relator.
   Landon, J.:

Section 4 of chapter 269, Laws of 1880, authorized the Special Term, upon the return to the cert/iorwri, to appoint a referee ‘‘ to take such evidence as the court may direct, and report the same to the court.” The reference being duly made, it was the duty of the relator to answer the questions addressed to her by the assessors touching her place of residence. Her refusal was facie a contempt, and the Special Term, upon the second motion, had the discretion to give her an opportunity to purge herself of the contempt, or to take proceedings for her summary punishment as by striking-out her testimony before the assessors, or denying her application upon the certiorari. He gave her further opportunity to testify, if the assessors requested it. They did not request it.

The result is that both parties have rested their case upon the testimony, and the question is whether upon that testimony the relator was a resident of the- city of Cohoes on the 1st day of July, 1886. We think not. She had actually hired a house and taken up her residence in it in White Creek on the first day of June preceding, and continued to reside in it. She had left her residence in Cohoes, and had leased part of her house and furniture to a tenant. She was liable to taxation in White Creek. (Bell v. Pierce, 51 N. Y., 12.) She was aetuallv assessed there. Her principal business — whatever it was — had been in White Creek for a year preceding July 1, 1886. If she had two residences, then, for the purposes of taxation, her residence is deemed to be in the town of that residence in which her principal business was transacted. (Chap. 92, Laws 1850; chap. 116, Laws 1851, § 2.) It may be conceded that the case made by the relator is not entirely free from the suspicion winch the assessors entertained with respect to it, namely, that her change of residence, was temporary and made for the purpose of avoiding taxation. But it is not improbable that if the relator had been fully examined, such suspicions would have been dispelled. She offered, when before the assessors, to submit to examination, but the offer was not then embraced. In the proceedings upon- the certicn'ari she finally offered to submit to their examination, and the offer was rejected. We do not think we ought to impute to her any attempt to suppress the whole truth; nor do we think that the assessors should have rested upon a suspicion, yvkich they had the opportunity to confirm or dispel, but neglected to avail themselves of it.

The order is affirmed, without costs.

Learned, P. J., and. Ingalls, J., concurred.

Order affirmed, without costs.


source: Caselaw Access Project

author: Landon, J.: Learned, P. J.

license: Public Domain

text:
    ELIZABETH R. BRUYN, Respondent. v. BENJAMIN RUSSELL and JAMES B. KEELER, as Executors of JACOB DE WITT, Deceased, Appellants.

      Presumption of consideration in the words, in anote, “for value received,” — none in favor of a pa/rty who attempts and, fuMs to prove an actual consideration— conversation between the plaintiff and one of the executors of the makes' of the note — comparisons of handwriting.

    In ¡in action, brought upon a promissory note lor $5,000, purporting to have been given to the 'plaintiff by the defendants’ testator, the defenses were forgery and a want of consideration. Upon the trial tlie plaintiff produced the promissory note which contained the words “for value received,” and, anticipating the attack by the defendants upon the consideration, attempted to establish it affirmatively by showing that the testator gave her the note because of a promise of marriage existing between her and the testator, and because he desired to reward the life-long acts of kindness which the plaintiff had bestowed upon him and the members of liis household.

      Ifekl, that if the plaintiff had rested her case upon the presumption of consideration, which the note itself imported, the burden would have been cast upon the defendants to overcome that presumption by their evidence.
    That when the plaintiff attempted to establish the consideration affirmatively, and the testimony of the plaintiff very plainly excluded the idea that any other consideration, except that shown by her, existed, the presumption of a valid consideration was no longer of any avail to her.
    That, if it should be found that such consideration attempted to bo shown had not sufficient legal validity to uphold the note, the words “for value received” could not be invoked to supply legal validity to a consideration otherwise ascertained to be invalid.
    Upon the trial the plaintiff was allowed, against the objection and exception of the defendants, to testify that after the death of the testator she had a conversation with one of the defendants, an executor of the testator, in which she narrated to him the conversation between herself and the testator at the time he gave her the note, which embraced the alleged declarations of the testator to the plaintiff respecting her personal acts of kindness to him, the existing promise of marriage between them, and his desire to secure her a portion of his estate.

      Held, that the court erred in admitting the evidence.
    That as this testimony was not evidence that any such conversation took place between the plaintiff and the testator, but was only evidence of the conversation between her and the defendant; although the court instructed the jury thus to regard and limit it, yet the verdict might have been influenced by her testi. mony, as to statements narrated to the defendant, without any evidence that the statements narrated were, in fact, true.
    It was claimed that the defendant, one of the executors, admitted her narrative to be true.

      Held, that as he had no personal knowledge of its truth, his admission could contribute no corroboration of it, and that one executor could not, by his admission, bind his co-executor.

      Tt seems that an admission by executors to bind their estate must be part of the res gesta of its actual settlement by the executors, and partake somewhat of the character of an estoppel.
    The defendants offered to show, by expert testimony, that the note in question and a letter, admitted by the plaintiff to be in her handwriting, were both in the same handwriting.

      Held, that, convincing as such evidence might be in certain cases, it was not admissible, as a comparison of handwriting is only admissible between the disputed writing in question and the genuine handwriting of the person purporting to be the writer of the disputed writing.
    The defendants objected to the testimony of a witness who had frequently seen the testator write, and admitted that he had examined other signatures purporting to be those of the testator, which the witness had not seen him write and which were not produced upon the trial, who testified that he based his opinion principally upon the last-mentioned comparison.

      Held, that as his testimony was not exclusively based upon such last-mentioned comparison, it was properly received.
    Appeal from a judgment in favor of the plaintiff entered, upon the verdict of a jury rendered at the Ulster County Circuit, in the office-of the clerk of the county of Ulster on May 25.1887; and, also, from an order entered on a motion made upon the minutes of the justice presiding at the trial for a new trial and to set aside the verdict, dated April 23,1886 ; and, also, from an order made at'a Special Term in the city of Troy on June 6, 1887, refusing to set aside the verdict upon an affidavit alleging coercion. The appeal from the latter order was not urged upon the argument.
    The action was brought upon a promissory note for $5,000, purporting to have been given to the plaintiff by the defendants’ testator. The defenses were forgery and a want of consideration.

      E. Countoymam,, for the appellants.

      A. T. Clearwater, for the respondent.
   Landon, J.:

The plaintiff produced the promissory note; it contains the words for value received.” In the absence of any further testimony the presumption existed that the note was given upon sufficient consideration. (Raubitschek v. Blank, 80 N. Y., 478 ; Underhill v. Phillip, 10 Hun, 591; Foote v. Valentine, 48 id., 475.) This presumption would prevail until overcome by evidence sufficient to convince the jury that no .valid consideration existed. If the plaintiff had rested her case upon the presumption of consideration which the note itself imports, then the burden would have been cast upon the defendants to overcome by their evidence that presumption, and, of course, if they could not do what it was incumbent upon them to do, the presumption would not be overcome, and its force would remain unbroken. But at the outset of the trial, the plaintiff, anticipating the attack by the defendants upon the consideration, attempted to establish it affirmatively. She undertook to show that the testator gave her the note, because a promise of marriage existed between them, and because he desired to recognize and reward the life-long acts of kindness which the plaintiff had bestowed upon him and the members of his household. The testator was a bachelor. The testimony of the plaintiff very plainly, and, perhaps, expressly excluded the idea that any other consideration existed. Such being the case, the presumption of a valid consideration which the note, unexplained, imported, was no longer of any avail to the plaintiff. If she failed to establish the actual consideration she asserted, she could not ask to recover, because the defendants had not affirmatively overcome the presumption of consideration which the note itself imported; or, if establishing the particular consideration which she asserted, it should be found that such consideration had not sufficient legal validity to uphold the note, the words “ for value received,” in the note, could not be invoked to supply legal validity to a consideration otherwise ascertained to be invalid. The true consideration may be inquired into'. It is presumed to be good until it is shown what it is, but when this is shown, whether by one party or the other, its true character is ascertained. If the good name under which the true consideration was disguised in the note itself could now, in the least degree, improve its real character, the inquiry would liave been in vain; the disguise would still deceive. Tlie object of the inquiry is to strip it off and disclose the real truth. Upon the evidence adduced we do not know whether the note was given upon the consideration suggested, but we do know that such a consideration, and no other, was attempted to be proved. We think, .therefore, that when,-the learned tidal judge instructed the jury that, in determining whether the note was given upon a valid consideration, they should consider that the note itself imported a consideration, and that the onus was upon the defendants to assail it, and that, aside from the consideration imported by the note itself, there were .the facts and circumstances tending to show what the real consideration was, he left the jury to infer that the facts and circumstances strengthened the presumption of consideration which the note imported instead of displacing that presumption or weakening it, and thus prejudiced the case of the defendants.

Whether, if. a valid promise ' of marriage existed between the parties, that would imply a sufficient consideration, without respect to the question whether the one promise was" the consideration or inducement of the other, counsel did not deem it necessary, to consider. .Nor was the question discussed by counsel whether a promise to pay, made in consideration of a promise of marriage, which failed because of the death of one of the parties before the time appointed for the marriage, would present a case of failure of consideration. We, therefore, pass these questions to consider the admissibility of certain testimony which the plaintiff was permitted to give. She testified, notwithstanding the objection of the defendants, that after the death of the testator she had a conversation with one of the defendants, in which she narrated to him the conversation between herself and the testator at the time he gave her the note. She thus, under the form of giving her conversation with the defendant, gave to the jury her alleged conversation with the testator. The latter-conversation embraced the alleged declarations of the testator to the plaintiff respecting her personal acts of kindness to him, the existing promise of marriage between them, and his desire to secure to her a portion of his estate. The trial judge correctly said that this was not evidence that any such conversation took place between the plaintiff and the testator, but was only evidence of the conversation between her and the defendant, and he instructed the jury thus to regard and limit it. But it was the only explicit evidence of any engagement of marriage between tbe plaintiff and the testator, and it is not easy to believe, in view of the verdict, that it was not the most influential in producing it. If so, then the verdict rests upon her testimony of statements narrated to the defendant, without testimony that the statements narrated were true. It is claimed that the defendant, one of the executors, admitted her narrative to be true; but, confessedly, he had no personal knowledge of its truth, and his admission could, therefore, contribute no corroboration of it.

Here are two executors. One executor cannot, by his admission, bind his co-executor. (Finnern v. Hinz, 38 Hun, 465, and cases cited; Potter v. Greene, 20 N. Y. St. Rep., 410.) A sole executor cannot bind the estate by his admission to a third party having no interest. (Church v. Howard, 19 N. Y., 415.) We infer from the cases that an admission by executors to bind their estate must be part of the res gestee of its actual settlement by them, and partake somewhat of the character of estoppel. They are to settle the estate of their testator as the testator left it. They should not by listening, without dissent or with approval, to the interested assertions of claimants, overreach the acts of the testator himself and give to them a character which, but for their complaisance, 'could never be fixed upon them. Rut, within the cases cited, the testimony was not competent. For this error the judgment must be reversed.

We have examined the various assignments of error respecting the proof of the testator’s handwriting and the genuineness of the signature to the note. There is a sort of false courtesy shown by the law to the pretenders to expert knowledge. Witnesses are criticised as failing to show themselves to be experts. They had, in some degree, the knowledge which an expert ought to have, and, in the present state of the law, we do not think the court erred in receiving their opinions. The defendants offered, by expert testimony, to show that the note in question and a letter admitted by the plaintiff to be in her handwriting were both in the same handwriting. Convincing as such evidence might be in certain cases, it does not seem to be admissible. Comparison of handwriting is only admissible between the disputed writing in question and the genuine handwriting of the person purporting to be the writer of the disputed writing. (Peck v. Callaghan, 95 N. Y., 73.)

The defendants object to the testimony of a witness who had frequently seen the testator write, but who admitted that he had examined other signatures purporting to be the testator’s, but which the witness had not seen him write, and which were not produced upon the trial. He testified -that he based his ..opinion principally upon the last-mentioned comparison. As his testimony was not exclusively based upon such comparison, we do not think it could be stricken out. He had the meager qualifications which suffice to his competency, and he had acquired confidence and a firmer opinion by irregular methods. However much unreliable knowledge he had acquired, we do not think it disqualified him, in the absence of testimony that he based his opinion wholly upon it.

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

Learned, P. J., concurred; Inoalls, J., takes no part.

Learned, P. J.

(concurring in tue foregoing opinion)

I would add that an examination of the expert’s testimony, and of the exhibits produced on the trial and shown on the argument, has given me a strong impression against the genuineness of the alleged signature of the deceased. In cases like the present we must always expect that the alleged signature will have a resemblance to genuine signatures, even if not genuine itself. The opinions of those who have seen the person write (whose alleged signature is in question) are little more than statements of such resemblance, unless based on a careful study of the habits of the person in respect to his handwriting, as shown in genuine specimens. How careful such a study may be is shown in Twistleton and Ohabot, “ Handwriting of Junius.”

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


author: Learned, P. J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of JAMES D. TAYLOR, as Sole Surviving, Executor of the Last Will and Testament of WEBSTER WAGNER, Deceased. In the Matter of the Estate of WEBSTER WAGNER, Deceased.

      .Settlement of an estate, by the pwrties in interest, by their execution of a written sealed release — an administrator of a deceased legatee cannot compel the executors to file an inventory and account — a surrogate cannot pass upon the validity of the release — section 2715 of the Code of Civil Procedure construed.

    Webster Wagner died in January, 1882, leaving liim surviving Ms -widow Susan Wagner and five children. By liis will, after'giving bis family residence, witli the personal property therein, to his widow for life, with the remainder to Norman L. Wagner, one of his sons, and to each of his children certain specific real estate, with the condition in each instance that if a devisee should die, without lawful issue surviving, the property should go to the other children, he gave the residue of his real and personal estate equally to his widow and five children. In January, 1882, letters testamentary werre issued to his widow and to Norman L., his son, and his son-in-law James D. Taylor.
    On March 7, 1885, the widow and all of the five children executed, under their hands and seals, an instrument of that date setting forth the fact of the execu tion of the will and the residuary clause in full and the probate, by which each acknowledged the receipt from the said executrix and executors of “the sum or legacy of seventy-five thousand dollars, to each of us in hand paid, being the one-sixth part of all real estate, all notes, bonds and mortgages, * * * and all othei personal effects not otherwise specifically devised under said last will and testament ■ aforesaid, so given and bequeathed to us as aforesaid, and do acquit, release and discharge the said Susan Wagner, Norman L. Wagner and James D. Taylor of and from all legacies, dues and demands whatsoever under or by virtue of the said last will and testament, or against or out of the estate of the said Webster Wagner.”
    Norman L. Wagner having died, November 4, 1886, intestate, leaving children surviving- him, letters of administration on his estate were issued on November 29, 1886, to Josephine L. Wagner, who, on October 26,1887, upon a petition setting forth part of the will of Webster Wagner, the appointment of the executrix and executors, and that James D. Taylor was his sole surviving executor, that no inventory had been filed, and also her own appointment, applied to the surrogate to compel said surviving- executor to file it. The executor answered setting up that the personal property had boon fully accounted for and, also, the agreement above set forth.

      Upon an appeal from an order of tlie surrogate directing an inventory to be filed, and from an order made by him on a similar application ordering the executor to account:

      Held, that, as to the personal property specifically bequeathed to the widow, Susan Wagner, with remainder to Norman L., the executrix and executors had nothing to do but to deliver it to the life tenant, and that the paper, signed by the widow and Norman L., proved, until contradicted, that that specific legacy was properly delivered.
    That when the executors of a will had fully accounted and settled with all the legatees, and have paid their respective shares and had been discharged by such legatees out of court, the administratrix of one of those legatees could not, without proof of fraud, compel the filing of an inventory.
    That the provisions for filing an inventory and for having accountings were for the benefit of the persons interested, and that if such persons preferred to settle their affairs privately, such settlement should have the same conclusive effect as a similar settlement in any other matter.

      Thomson v. Thomson (1 Bradf., 24); Burwell v. Slum (2 id., 332); dreamer v. Waller (2 Dem., 351); Bonfanti v. Begum'e (3 Bradf., 429); Matter of Bunkel (10 N. Y. St. Bep., 213) distinguished.
    That the surrogate could not pass upon the validity of the release; that a court of equity must decide that question.

      Sevan v. Cooper (72 N. Y., 317); Stilwell v. Ca/rpenter (59 id., 414); Tuelcer v. Tuclcer (4 Keves, 136); Pettigrew v. Foshay (12 Hun, 486). followed; Matter of Bead (41 id., 95; Harris v. Ely (25 N. Y., 138) not followed; Kenny v. Jackson 1 Hagg. Ecc., 105) distinguished.
    It was urged by the respondent that the filing of the inventory and the accounting-should be directed in order to funish facilities for the plaintiff to prove that the-settlement of March, 1885, was fraudulent.

      Held, that this claim could not be sustained, as the plaintiff could, in an action to set aside the settlement, examine the defendant and compel the exhibition of the inventory and all accounts which might be needed, and in such action the whole-matter could be investigated and satisfactorily disposed of.
    It was further claimed by the respondent that by reason of the provisions contained in section 3715 of the Code of Civil Procedure when an application is made by a creditor or a person interested in the estate, and the petitioner alleges an interest and the petition is duly verified, the surrogate must, if satisfied that the executor or administrator is in default, make an order requiring the delinquent to return an inventory.

      Held, that this construction should not be given to such section, as if it were, any person who verified a petition, alleging that he was interested in the estate, however false the allegation might be, could compel an inventory to be filed and an accounting- to be made in reference to an estest-e, in which he had no shadow of interest.
    Appeal by James D. Taylor, as sole surviving executor of tlie last will and testament of "Webster "Wagner, deceased, from a decree entered by direction of the surrogate of Montgomery county on March 5, 1888, directing him to file an inventory, and from a decree of like date requiring him to file an account.
    The deceased died in January, 1882, leaving him surviving his widow, Susan Wagner, and his five children, Norman L. Wagner, Emma C. Taylor, Anna P. Van Vlack, Clara E. Stetson and Annetta Q. Wagner. Py his will he gave his family residence^ with the personal property attached thereto, to his widow for life, with remainder to Norman L. Wagner. Tie gave to each of his children certain specific real estate, with the condition in each instance that if the devisee should die without lawful issue surviving, the property should go to the other children. He then gave the residue of his real and personal estate equally to his widow and his five children, and made his widow, his son, Norman L., and his sondn-law, James H. Taylor, executrix and executors. Letters testamentary were duly issued to them in January, 1882.
    On the 7th day of March, 1885, the widow and all the five children executed, under hand and seal, an instrument of that date, setting forth the fact of the execution of the will, and setting forth fully the aforesaid residuary clause and the probate, and then proceeded as follows:
    “Now, therefore, we, the said Susan Wagner, Norman L. Wagner, Emma O. Taylor, Anna E. Van Vlack, Clara E. Stetson and. Annetta C. Wagner, severally, hereby acknowledge the receipt from the said Susan Wagner, executrix, and Norman L. Wagner and James D. Taylor, executor's, as aforesaid, the sum or legacy of seventy-five thousand dollars to each of us in hand paid, being the one-sixth (£) part of all real estate, all notes, bonds and mortgages, railroad stocks, sleeping car and drawing-room car stocks, and all other personal effects, not otherwise specifically devised under said last will and testament aforesaid, so given and bequeathed to us as aforesaid, and do acquit, release and discharge the said Susan Wagner, Norman L. Wagner and James L>. Taylor of and from all legacies, dues and demands whatsoever, under or by virtue of the said last will and testament or against or out of the-estate of the said Webster Wagner.”
    The instrument closed with a release and discharge of the executrix and executors of and from all legacies, dues and demand whatsoever under or by virtue of said will.
    On the 4th of November, 1886, Norman L. Wagner died intestate, leaving children surviving. Letters of administration on his estate were issued November 29, 1886, to Josephine L. Wagner. Josephine L. Wagner, administratrix, on the 26th day of October, 1887, upon a petition setting forth part of the will of Webster Wagner, the appointment of executrix and executors, and the fact that James I). Taylor was sole surviving executor; her own appointment, and also the fact that no inventory had been filed, applied to compel said sixrviving executor to file such inventory. The surviving executor answered, setting up that the personal estate had been fully accounted for; that the petitioner had no interest therein; that a full statement of, all matters and things pertaining to the personal estate of said decedent was made February 27, 1885, by the executrix and executors to the widow and children, and a paper given thereupon by the Avidow and children, under hand and seal; being that above stated.
    On the hearing before the surrogate the petitioner proved the will and probate, also the will of Susan Wagner and probate, and the petitioner’s appointment as administratrix of Norman L., and as guardian of his children, and rested. The executor proved the instrument above described. There was no other evidence. The surrogate ordered* an inventory to be filed. A similar application was made by the same petitioner to compel the said surviving executor to make an accounting. The same evidence was given and the surrogate ordered an accounting. The surviving executor .appeals from both orders.

      Eselt, Cowen, 'for the executor, appellant.

      Jlwam I. Huston, for Josephine L. Wagner, administratrix, petitioner, respondent.
   Learned, P. J.:

As to the personal property, specifically.bequeathed to the widow, Susan Wagner, with remainder to Norman L., it is-plain that the executrix and executors had nothing to do but to deliver it to the life tenant. The remainderman, Norman L., was entitled to have from her an inventory. Perhaps, in a proper case, he might have security from lier. .But tlie duty of the executrix and executors of William Wagner was performed when they delivered the property to the widow. The paper signed by the widow and Norman L., is proof until contradicted, that that specific legacy was properly delivered. If Norman L. or his widow, the petitioner, seeks to obtain that property, they must proceed against the executors of Busan Wagner’s will.

As to the rest of the property, the question, briefly stated, is this: When the executors of a will have fully accounted and settled with' all the legatees, and have paid them their respective shares and have been discharged by such legatees out of court, can the administratrix of one of those legatees, without proof of any fraud, compel the filing of an inventory ? There certainly seems to be no reason, upon principle, why the parties in interest should not, without any proceeding in court, examine an executor’s inventory and account and settle the same and give him a full discharge. The provisions for filing an inventory and for having accounts are for the benefit of the persons interested, not for the satisfaction of the public or of the assessors; and if such persons prefer to settle their affairs privately, such settlement should have the same conclusive effect as a similar settlement in any other matter. That view is especially strong in the present case, because the petitioner is the representative of one of the executors, who (it is to be presumed) had, and knew of, the inventory of property and the accounts of the executors, and who distributed to himself and the other legatees his and their respective shares, according to the instrument of March 7, 1885. There is mo doubt that, in some court, relief can be had by the petitioner against that instrument, if it was obtained by fraud. But the question here is, whether, notwithstanding- the settlement of which, at present, that instrument is evidence, she has a right to compel the filing of an inventory.

The petitioner cites several eases which we must examine. (Thomson v. Thomson 1 Bradf., 21). In this case it turned out-on examination that the inventory had been filed. Therefore, there could be no decision as to the right to compel its filing. Burwell v. Shaw (2 Bradf., 322), was not a case in regard to an inventory, but in regard to granting letters. Creamer v. Waller (2 Dem. 351), was the case of a creditor whose debt was disputed, but who showed facts in support thereof. In Bonfanti v. Deguerre (3 Bradf., 429), the executor, in reply to the petitioner, alleged an assignment of the petitioner’s claim. It was held that this was not a sufficient answer. Matter of Dunkel (10 N. Y. St. Rep., 213), held only that an executor could have his commission from a co-executor, notwithstanding his having signed a receipt for his distributive share. In re Brown (3 Civil Pro. R., 39), has nothing to do with the filing of an inventory. (In the Matter of Read, 41 Hun, 95.) This was an application by a distributee to compel an accounting It was opposed by the administrator on the ground of a general release of all claims and demands and of all liability as administrator. The court held that the surrogate could determine the validity of the release, and that an accounting should be ordered. The decision that the surrogate could try the validity of the release is there stated to rest on Harris v. Ely (25 N. Y., 138). In Bevan v. Cooper (72 N. Y., 317), the court say that the remark in Harris v. Ely was obiter, and it is disapproved. Indeed, it may be considered as decided by that case, and by Stilwell v. Carpenter (59 N. Y., 414) and Tucker v. Tucker (4 Keyes, 136), that the surrogate, could not pass upon the validity of the release. The case of Van Sinderen v. Lawrence (20 N. Y. St. Rep., 72), was one in regard to a testamentary trustee, and is said, in the opinion, to be analogous to a similar case in regard to an executor. The plaintiff, a testamentary trustee, stpplied to the surrogate for an accounting. The defendant claimed to be made a party, and was so made. The •plaintiff objected to defendant’s being heard, on the grounds of a release. The surrogate refused to pass on the validity of the release. This action was commenced to restrain the proceedings before the surrogate until decision by the Supreme Court on the validity of the release. The action was sustained. Similar to this is Pettigrew v. Foshay (12 Hun, 486). These cases imply that the proceedings before the surrogate should not go forward until a court of equity had decided that the release is invalid.

The case of Kenny v. Jackson (1 Hagg. Ecc., 105) is repeatedly cited. That was a ease in the Prerogative Court of Canterbury. In the opinion it is remarked that it was claimed that Kenny, the petitioner, was a minor when he released, and that he certainly was a very young man. The court further say that they cannot notice such an instrument, but that if the executor is vexatiously cited lie may liave relief in another court. It would seem, then, that in that case the youth of the petitioner was considered, and, also, that it was thought that some other court could relieve the executor if the proceedings were vexatious. We suppose that if this executor has been cited vexatiously the surrogate should have relieved him, and certainly no question exists in this case as to the legatees being of full and ripe age.

It is worth noting here that the surrogate in his opinion says, that, after an accounting shall have been had, should the petitioner proceed to ask a decree against the executor in respect to any portion of the funds of the estate,'it may then be necessary to determine the validity of the release and its effect. Now, as the filing of an inventory and the having an accounting are of no use unless the petitioner can have a decree for some funds, and as the surrogate cannot try the validity of the release, it would seem that this proceeding must be of no avail. That is, suppose an inventory be filed and an accounting had, and thereupon it should appear that the value of the estate on the 7th of March, 1885, was more than’ six times the amount received by Norman L. Wagner, what then is to be done? An action must be brought to set aside the release on the ground of fraud. If that action should be unsuccessful, then the filing of an inventory and the accounting would have been useless.

But it is strongly urged that the inventory and the accounting should be had in order to furnish facilities for the plaintiff to prove that the settlement of March, 1885, was fraudulent. But all this can substantially be obtained in an action to set aside the settlement. The plaintiff can, in such an action, examine the defendant and compel the exhibition of all the inventory and accounts which may be needed. In such an action the whole matter can be investigated and satisfactorily disposed of.

The petitioner further relies on section 2715 of the CJode of Civil Procedure, subdivision 2. The note informs us that this is intended to settle a question. It is quite as likely to unsettle it. If it means that any person. who will verify a petition, that he is interested, however false the allegation may be, can compel inventories and accountings in an estate in which he has no shadow of interest, it has introduced a most dangerous, principle. Such should not be its construction. No person should, without .reasonable evidence of interest, interfere in the settlement of an estate; and where there has been a voluntary settlement and release by all' the parties interested, the representative of one of those parties should have such settlement and release set aside in a legal manner before the matter should be reopened. The court should not discourage parties from voluntarily making a full settlement in the case of estates of deceased persons any more than in any other matters of trust.

The order of the surrogate shopld be reversed, with costs. The same, also, as to the order of accounting.

.Ingalls, J., concurred; Landon, J., dissented.

Orders of surrogate reversed, with costs on each appeal.


author: Learned, P. J.: Lanuon, J.: Ingalls, J.,

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. LIBBIE E. HEALEY v. HENRY P. FORBES and Others, Commissioners of Excise of the Town of Canton, N. Y.

      A billiard table may be leept in a tamern, if not used for gamtMing — chapter 628 of 1857, section 7.
    Upon a hearing had upon the return to a writ of certiorari, issued to review the proceedings of a board of excise in annulling and revoking the license of the relator as an inn-keeper for suffering a billiard table to be kept in her hotel, it appeared that she kept a billiard table in the house on which persons played upon the terms that the loser should pay for the use of the table.
    By section 7 of title 9 of chapter 20, part i of the Revised Statutes, the keeper of an inn is required to give a bond with the condition that during the time he shall keep such inn he will not keep any billiard table within the tavern. In section 7 of chapter 628 of 1857, the present excise law, the words “billiard table” are omitted.

      Held, that as the statute of 1857 was a penal statute, the omission of those words signified that a billiard table might now be lawfully kept in a hotel if it was not used for gambling purposes.
    That, as it appeared that the loser paid simply the amount that was due the proprietor for the use of the table and the winner took nothing, the provisions of the excise act, preventing her from keeping a gaming table, were not violated.
    Certiorari issued at a Special Term held in Montgomery county •on April 25, 1888, to Henry P. Forbes and others, as commissioners of excise of the town of Canton, N. Y., to review the determination of said board of commissioners in the matter of revoking the license of the petitioner.

      Horace D. Ellsworth, for the relator.

      Almoron Z. Squires, for the respondents.
   Learned, P. J.:

We think that the resolution, revoking the relator’s license,, although it was not delivered to her, was such an act of the board that she has the right to review it. ,

By the vote of the board, on motion of Mr. Forbes, it appears that the license w’as revoked because she suffered gambling in the house, “ as we understand the law.” The question, then, is fairly presented whether on the evidence she did suffer gambling in the house. The evidence, in brief, is that she kept a billiard table in the house on which persons played, upon the terms that the loser should pay for the use of the table. The game of billiards is one of skill, not of chance. It is a game for physical, though not violent, exercise. It is similar in its character to the game, lately so popular, of croquet; and not unlike in character to curling or base ball.

In People v. Sergeant (8 Cow., 139), it was decided that keeping a billiard table where the loser paid for thotable was not gaming within the law which makes the house a nuisance. In Hitchins v. People (39 N. Y., 454), it does not appear what games were played. In an unreported case, the People v. Commissioner of Excise decided in November, 1881, it was held by Mrl Justice Potter that such playing at billiards (the loser paying) was not a violation of the bond given by a hotel-keeper.

In Tanner v. Trustees (5 Hill, 121), however, it was held that a bowling alley kept for hire was'a nuisance at common law. The learned justice who wrote the opinion cited many ancient cases, and spoke of the immorality of Charles the Second, but said that he himself had never seen a game of billiards. Nothing, therefore, was decided as to this game.

It further appears that under the old law, and for many years, the bond of a hotel-keeper was conditioned that he should not keep a. billiard table or other gaining table. Under the present law the words billiard table are omitted, and the condition is that the licensee will not keep a gambling table. The respondents urge that the omission was made because it had been settled that a billiard table was a gambling table and need not be specified. It may quite as well be said that the omission was intended to indicate that a billiard table was not a gambling table. (Laws 185Y, chap. 628, §• Y.)

The case of People v. Cutler (28 Hun, 465) was a conviction of defendant as a disorderly person, and the court held the evidence sufficient under Code of Criminal Procedure (§ 899, subs. 4, Y). ¥e do not think that tliafidecision is conclusive on the present question.

The truth is that the evils and the attraction of gambling arise where there is a large element of chance; and, in construing this statute, we may properly consider the evil aimed at. Our opinion is that the doctrine of People v. Sergeant and of People v. Commissioner of Excise, above cited, is correct, and that keeping a billiard table, even though the loser pays for the use, is not keeping a gambling table within the statute.

The order should be reversed.

Lanuon, J.:

The statute now omits a billiard table; it formerly specified it. It is a penal statute, and the omission signifies that a billiard table may be lawfully kept, if not used for gambling. I do not think it safe to say that billiards are not a game of chance, but of skill. That depends, in part, upon whether the players are experts or not. The terms “scratch” or “fluke” are of the nomenclature of the chances of the game. Be that as it may, when the game is played upon a hired table, if the loser pays the hire, he simply pays what is due the proprietor; the winner takes nothing. If, directly or indirectly, anything else, as cigars or drinks or money, should be at stake, then a case of gambling would exist. T think the legislature must have had this distinction in view, and I, therefore, concur in the result.

Ingalls, J.,

concurred.

Order of board annulling license reversed.


author: Landon, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK ROSE, Appellant.
    . Presumption that a grand jury was sworn — objection to an entire question, a part of which is allowable and a part not — refusal to change that the neglect m' refusal to testify does not create a presnuvption against a pcvrty accused of crime..

    Upon an appeal from a judgment of conviction, under an indictment for robbery in the first degree, the defendant objected that tlie grand jury was not duly sworn. The affidavits submitted by him showed that the persons sworn as grand 'jurors were called and took their proper places; that a foreman was chosen and sworn in the usual form, standing in the presence of the court and . of his fellows; that immediately thereafter the deputy clerk, intending to administer the usual oath to the other grand jurors, read over the same to them in their presence and hearing.
    It appeared that the jurors were there to take the oath, and intended to take it; that this ceremony took place in tlie presence of the county judge, and that no objection was made by any one and no suggetion was offered of any other or different form of administering the oath.

      Held, that the presumption was that the statutory requirements were substantially observed.
    That the recital in the indictment that “the jurors of the People of the State of New York, in and for the body of the county of Ulster, then and there being duly sworn, affirmed and charged, upon their oath and affirmation, to inquire ■ for the People,” etc., had not been impeached.
    A witness gave testimony for the defense tending to establish an alibi. The district attorney, notwithstanding the defendant’s objection and exception, was permitted to ask him: “ Were you arrested and convicted at Clintondale for an offense or crime?” He answered: “I don’t know whether I was convicted or not; I was arrested and they told me to move out of town, so I moved.”

      Held, that it was proper to ask him if he had been convicted of crime, but not proper to ask him if he had been arrested.
    That as part of the question was allowable and part not, and the objection was taken to the whole question, and the attention of the court was not called to the inadmissible portion, the objection was properly overruled.
    The court refused to comply with the request of the defendant’s counsel, to charge the jury to “ disregard the remarks of the district attorney in respect to the fact that Rose (the defendant) was not sworn, and that they could draw no inference against him from that fact; that they could not consider it one way or the other; that it creates no inference of guilt. ”

      Held, that as section 893 of the Code of Criminal Procedure declares that the defendant’s “ neglect or refusal to testify does not create any presumption against him,” it was the duty of the court, by proper instructions to the jury, to protect the defendant against tlie prejudice or inference which might result from remarks made upon this subject by the district attorney, and that the judgment of conviction and sentence in this case should be reversed.
    Appeal from a judgment of conviction of the defendant upon an indictment charging him with robbery in the first degree after a trial at the Ulster County Sessions; and also from an order of the said Court of Sessions, made on October 17, 1887, refusing and denying a motion to set aside the indictment herein, and from the whole of said order; and also from an order of the said Court of Sessions, made on the same day disallowing a demurrer to the indictment herein; and also from an order of the said Court of Sessions, made on December 20, 1887, refusing and denying a motion for a new trial herein, and from the whole of the said order.

      A. H. Van Burén, for the appellant.

      J. W. Vamderlyn, for the People.
   Landon, J. :

The objection that the indictment contained two counts, one for robbery in the first degree and the other for larceny in the first degree, is not valid. The district attorney could not be quite sure that the evidence would establish the higher crime, and he therefore had a count for the lower one. “ Where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.” (Code Grim. Pro., § 279.) It was reasonably clear, upon the face of the indictment, that the second count embraced the same acts as the first. The defendant was plainly advised by the indictment that he was not charged with two separate offenses, but that his single offense was charged as a robbery and larceny, meaning that it was either the one or the other.

The defendant objects that the grand jury was not duly sworn. If the fact is established, the body of men acting as a grand jury was incompetent to act, and the paper purporting to be an indictment was not a true bill ” or legal indictment. Upon the defendant’s arraignment, and before pleading, he moved to set aside the indictment, alleging the fact to be that the persons who acted as the grand jury had not been duly sworn. Affidavits were submitted in support of the allegation. The affidavit of Stephen D. Hood, after reciting the opening of the court and tlie calling the names of the persons returned as grtand jurors, and their taking their seats in the jury-box, proceeds: “ That after said persons were so in said jury-box, the said Hon. William S. Kenton «appointed Joseph E. Hasbrouck to act as foreman of said grand jury. That immediately thereafter the said Israel Snyder told said Joseph E. Hasbrouck to stand up and hold up his right hand. The said Joseph E. Hasbrouck thereupon stood up, and the said Israel Snyder immediately read to him from a book what purported to be the oath prescribed by law to be administered to the foreman of grand juries. The said foreman did not request to be sworn in any other manner than by laying his hands upon the Gospels, but he was not so sworn, but by the uplifted-hand. That immediately thereafter the said Israel Snyder, without stopping in his reading and without asking the remaining persons, so returned as grand jurors and in said jury-box, to stand up or to raise their hands, and without they or any of them standing up or raising, their hands, and without addressing them, or either of them, in any manner, continued reading from said book what' deponent understood to be the oath prescribed by law to be administered to grand jurors. That after said Israel Snyder had so finished, none of the said persons made any reply,' or in any manner recognized or acknowledged that they had taken an oath. That immediately thereafter said persons were charged by Hon. William S. Kenton, and the then retired from the court-room.”

The affidavit of the deputy county clerk is as follows': That lie attended a Court of Sessions of the county of Ulster, held at the court-house in the city of Kingston on the said 26th day of September, 1887, in his official capacity and as the clerk of the said court; that a grand jury had been summoned and were in attendance at said court on the said 26th day of September, 1887; that this deponent, acting as aforesaid, did, at the time and place aforesaid, administer to the foreman of the said grand jury, who had been then and there duly appointed by the court, the oath in the usual form and in the manner required by law; that thereafter, and at the same time and place, deponent did administer to the remaining members of the grand jury (except one, who thereafter affirmed) the usual oath in the form and in the manner required by law; that at the said time and place, and at the time of the administration of the said oath, the grand jurors, and each of them, did give their attention thereto, and that the said grand jurors and each of them (except the one thereafter appearing as aforesaid) did thereupon, and immediately after the said oath was administeredpmanifest their consent thereto; and did then and there, and in the presence of said court, assent to the contents thereof; and they and each of them did, then and there, take the said oath in due and legal form and manner, except one grand juror, to wit, Egbert Johnson, who was not present at the time and place aforesaid, but who thereafter appeared in court and took the oath as a grand juror in the manner and form required by law.

Mr. Hood’s affidavit is corroborated by affidavits of members of the bar, well known to the members of this court. We have no doubt that it details the facts, and that Mr. Snyder’s affidavit, in the particulars in which it seems to differ, is to be construed as his construction of the facts.

On the affidavits submitted by the defendant the case is this i The persons returned as grand jurors were called and took their proper places. A foreman was chosen and sworn in the usual form, standing in the presence of the court and of his fellows. Immediately thereafter the deputy clerk intended to administer the usual oath to the other jurors, and read over the same to them in their presence and hearing. The jurors were there to take the oath and intended to take it. This ceremony took place in the presence, and the law presumes, under the direction of the learned county judge. It can scarcely be doubted that the somewhat scant and hasty observance by the deputy clerk of the usual deliberate and solemn forms arrested the attention of the learned presiding judge no less than it did that of the experienced members of the bar, whose affidavits are presented, and that he concluded, and in effect decided, that the oath was duly administered. Granted the presence of the jurors for the purpose of taking the oath; the presence of the clerk to administer it; the reading of the oath to the jurors by the clerk; no objection by any one; no suggestion of any other, or different form; the supervising presence and watchfulness of the intelligent court, and the presumption is that the statutory requirements were substantially observed. The forms, no doubt, suffered a loss of the impressiveness always desirable upon such an occasion. but liable to some sacrifice at the hands of inexperience. The presiding judge did not think it necessary to interpose either at the time or when this motion was made. Upon all the facts we conclude that the recital in the indictment, that “ the jurors of the People of the State of New York, in and for the body of the county of Ulster, then and there being duly sworn, affirmed and charged upon their oath and affirmation to inquire for the People,” etc., has not been impeached.

A witness gave testimony for the defense, tending to show an alibi. The district attorney, notwithstanding the defendant’s objection, was permitted to ask him: “Were you arrested and convicted, while at Clintondale, for an offense or crime ? ” He answered: “ I don’t know whether I was convicted or not; I was arrested and they told me to move out of town, so I moved.” It was proper to ask him if he had been convicted of crime. (Penal Code, § 714; People v. Noelke, 94 N. Y., 137.) It was not proper to ask him-if he had been arrested. That called for a specific act done by, others, not pertinent to the present issue, and touching which it could not be known that the witness was at fault. (Id., and cases there cited; People v. Irving, 95 N. Y., 541.) Part of the question was allowable and part not. The objection was to the whole question. If an offer of evidence embraces matter not admissible, the whole may be rejected. (Hosley v. Black, 28 N. Y., 438; Gardner v. Barden, 34 id., 433, 438.) Where admissible and inadmissible evidence is contained in a letter, the letter may be received as to the admissible evidence. (Dutchess Co. v. Harding, 49 N. Y., 321.) In a case like the one last cited, unless the objection is specifically taken to the inadmissible part, it is not error to receive the whole letter. (Day v. Roth, 18 N. Y., 448; Requa v. Holmes, 16 id., 193.) If part of an answer is admissible and part not, the attention of the court must be called by the objection to the inadmissible portion, otherwise the objection is invalid. (Wallis v. Randall, 81 N. Y., 164.) An exception, whether to the admission or exclusion of evidence, is not well taken unless the attention of the coimt was, at the time, fairly called to the particular matter, respecting which a different ruling is now claimed to have been the exceptant’s right. Here the court ■could well say, the objection is overruled because you can prove a conviction. It was then the duty of counsel, if he would save his exception, to suggest, but not an arrest.

If, on the other hand, the court had excluded the evidence because an arrest cannot be proved, it would have been the duty of the district attorney to suggest, but the conviction can be. It is plain that in either case the court would have separated the proper from the improper, and it is the office of counsel to give the necessary help.

The district attorney, in his address to the jury, commented upon the fact that the defendant had not been sworn as follows : “ Why has not the defendant been sworn % lie could tell where he was this night, and ” — whereupon the defendant’s counsel interposed and asked the court to direct the district attorney that lie mu'st not refer to the fact that the defendant had not been sworn. The court remarked: “ That is so; I don’t think he will do so now.” The district attorney continued: “Well, gentlemen, that is so; I cannot refer to the fact that Rose lias not been sworn, if I could, I could say to you that if he took the stand he could tell you where he was this night and what he was doing.” The defendant’s counsel again interposed and asked to have the remarks of the district attorney stricken out. The court said: “ Strike them out.” Defendant’s counsel then asked the court to instruct the jury “ that they must disregard the remarks of the district attorney in respect to the fact that Rose was not sworn, and that they could draw no inference against him from that fact; that they could not consider it one way or the other; that it creates no inference of guilt.” The court remarked: “I do not think the district attorney will go on any further.” Defendant’s counsel said: “I except to. the refusal of the court.”

These facts appear in an affidavit of the defendant’s counsel, upon which a motion was made, after the verdict and before sentence, for a new trial. The motion was denied. The statement in the affidavit was not contradicted, and the affidavit and proceedings thereupon are returned as a part of the record certified by the presiding judge. We think we ought to consider the exception. The district attorney violated the rights of the defendant in commenting to the jury upon the significance of his neglect or refusal to testify in his own behalf. Section 393, Code of Criminal Procedure, declares that the defendant’s “ neglect or refusal to testify does not create any presumption against him.” This statutory declaration is not in accord with experience, but its practical meaning is that the court and jury must, so far as they can, determine his case without prejudice or inference against him, foimded upon his omission to testify. It was the duty of the court, by proper instruction to the jury, to protect the defendant against the prejudice or inference, which the district attorney’s remarks suggested — certainly upon proper request. The matter was of the utmost importance to the .defendant, and the request of his counsel should have been explicitly granted. As it was, the comments of the district attorney and the request of his counsel were disposed of in a manner well calculated to impress the jury with the idea that the district attorney was only technically wrong but substantially right, and that the request of defendant’s counsel was of small moment.

The judgment of conviction and sentence should be reversed, and new trial granted.

Learned, P. J., and Ingalls, J., concurred.

Judgment and conviction reversed, new trial granted.


author: Landon, J.:

text:
    CHARLES BELANGER, Appellant, v. HARVEY DANA, Respondent.

      One partner cannot ■maintain an action against his copartner for a eoivo&i'sion of firm assets, after a dissolution.

    On March, 1887, tlie plaintiff and defendant bought a steam saw-mill jointly, and agreed to share equally in the profits or losses which might accrue from the venture, and gave as part of the purchase-price of the mill their four joint notes for $100 each, payable at the St. Lawrence County Bank, with interest. In July, 1887, they sold the mill to one Dobson at a profit, and received payment from him of the purchase-price, less $400. The parties accounted with each other and divided the surplus, over and above the $400 due them from Dobson, as the balance of his purchase-price of the mill, and agreed that this sum should, when collected, be paid to take up the said four notes which were then outstanding.
    A few days after, Dobson having paid this sum to the defendant, he sent it by express to the bank, which, by mistake, applied half of it upon two of the aforesaid joint notes of the parties, and the other half upon the individual note of the defendant, who afterwards, witli full knowledge of all the facts, ratified the act of the bank and converted the misappropriated moneys to his own use, as a, result of which the plaintiff was compelled to pay the two remaining joint notes, with costs.

      Held, that an action for a wrongful conversion of the money by the defendant could not be maintained by the plaintiff.
    That while, upon the dissolution of the partnership, the partners thenceforth became distinct persons and tenants in common of the joint stock, yet as to partnership debts and for the purpose of closing partnership affairs, a partnership relation still existed, and, therefore, the conversion by the defendant of the fund was not a conversion of the property by him as a tenant in common.

      It seems to be well settled in this State that one partner cannot recover at law against another, except affer a full accounting, a balance strack axxd express promise to pay.
    Appeal by the plaintiff from a judgment dismissing tlie complaint directed by the court upon the trial before a jury at the St. Lawrence County Circuit, entered in the St. Lawrence county clerk’s office December 10, 18S8.
    The action was brought to recover because of the alleged conversion by the defendant of money which he received for the benefit of both parties, and which he agreed should be applied in payment of certain outstanding joint notes of the parties.
    The facts were as follows: In March, 1887, plaintiff and defendant bought a steam saw-mill jointly, and agreed to share equally in the profit and loss which might accrue from the venture. They gave as part of the purchase-price of the mill their four joint notes for $100, each to the order of one Barlow, dated March 9, 1887, payable at the St. Lawrence County Bank, with interest, on the 15th days of May, July, September and November, 1887, respectively. In July, 1887, they sold the mill to one Dobson at a profit, and received payment and satisfaction from him for the purchase-price, less $400. The defendant’s share of the surplus of the purchase-money, over the $400, was $217, which he testifies he received, and his answer alleges that the plaintiff received the like sum. The case does not explicitly show that the plaintiff received $217, but it may be inferred that he did, and lie conceded it upon the argument. It was then agreed by the parties that the $400 due from Dobson should be applied to take up their four several notes of $100, each given to the order of Barlow. Three of these notes were at the St. Lawrence County Bank, and one was held by the Troy Belting Company. The said bank at the same time held a note for $200 against the defendant with which the plaintiff had no connection.
    In August, 1881, Dobson paid in money and his note (which the bank had agreed to accept), $405, in satisfaction of the money due to the parties upon the price of the mill. The defendant forwarded this money by express to the St. Lawrence County Bank, intending it as payment of the four notes of $100 each, of which he and the plaintiff were joint makers. He was not explicit in his instructions and the bank applied the money upon two of the joint notes of the parties and upon the individual note for $200 of the defendant. The remaining two notes of the plaintiff and defendant remained unpaid. The defendant represented to the plaintiff that he had paid them, and he alleges in his answer that he had paid them. The plaintiff was subsequently sued upon these notes and then notified the defendant, who. told him he had the four notes at home and not to put in any answer. Before paying the judgments plaintiff asked the defendant to pay them.
    _ZF. L. Pobmson, for the appellant.

      Thomas Sjoratt, for the respondent.
   Landon, J.:

It is conceded that a partnership existed between the parties respecting the mill. But when the mill was sold the joint venture was at an end and the partnership dissolved. A partnership is terminated by the accomplishment of the business or venture for which it was formed. (Kennedy v. Porter, 109 N. Y., 526, 548.)

The parties accounted with each other and divided the surplus • over and above the $400 due them from Dobson as the balance of his purchase-price of the mill. This sum the parties agreed should, when collected, be paid to take up their four joint notes of $100 ■ each, which were outstanding and payable at the St. Lawrence County Bank. A few days after, Dobson paid this sum to the defendant, and he sent it by express to the bank, and the bank, by mistake, applied half of it upon two of the notes of the parties and the other half upon the individual note of the defendant. The defendant afterwards, with full knowledge of the mistake, or with such repeated notice as charged him with full knowledge of all the. facts, ratified the mistake, and thus, by adoption, wrongfully converted the misappropriated moneys to his own use. The plaintiff has, in consequence, been compelled to pay the two remaining joint notes, with costs, and the defendant has refused to do anything to rectify the wrong.

This action is not for an accounting in which the moneys received by the defendant and the amount paid by the plaintiff might be adduced, and the balance in favor of the plaintiff be made the measure of his recovery, but it is for a wrongful conversion by the defendant. We do not think it can be maintained. Upon the dissolution of a partnership, the partners thenceforth become distinct persons and tenants in common of the joint stock.. (3 Kent’s Com., m. p. 63.) But as to partnership debts, and for the purpose of closing the partnership affairs, the partnership relations still exist. Neither party, however, can do anything to impose a new obligation upon the other without his consent. (Gates v. Beecher, 60 N. Y., 518.) The tenancy in common, therefore, between the partners is incomplete with respect to partnership property devoted to the payment of partnership debts, or held by either partner for that purpose. (Murray v. Mumford, 6 Cow., 441.) The conversion by the defendant of the common fund was not, therefore, a conversion of property by him as tenant in common, but as partner, and hence the rule invoked by the plaintiff that where personal property is held in co-tenancy, its conversion by one tenant, to the absolute denial of the light of the other, gives the latter a cause of action, does not apply. (Osborn v. Schenck, 83 N. Y., 201.) The plaintiff insists that since the partnership affairs were all settled, except with respect to the payment of the joint notes, for which the defendant held the funds under promise to pay, the partnership relation was eliminated, and the case is not affected by it. (Howard v. France, 43 N. Y., 593 ; Crater v. Bininger, 45 id., 545, 549.) But these cases and many others are to the effect that the partnership relation must have fully ceased, with respect to the transaction in question, before an action at law, as distinguished from an action in equity, can be maintained by one partner against the other. In other words, the transaction must either never have been part of, or must have been completely separated from the partnership affairs in order to form a separate cause of action at law. Thus, it is said, to be well settled in this State that one partner cannot recover at law against another, except after a full accounting, balance struck, and express promise to pay." (Casey v. Brush, 2 Cai., 294; Westerlo v. Evertson, 1 Wend., 532; Halstead v. Schmelzel, 17 Johns., 80; Bloss v. Chittenden, 2 T. & C., 11; Buell v. Cole, 54 Barb., 353.) And such an action,, when maintainable, it is seen is not ex delicto.

The difficulty with the plaintiff’s case is that the defendant was still acting as partner in settling partnership affairs. He betrayed his trust and thus subjected himself to the usual liability which one partner incurs to the other respecting partnership affairs. He converted partnership money, he being, one of the partners. As he cannot sue himself, and cannot be sued for the wrong, except by all. the partners, this action fails.

Judgment affirmed, with costs.

Learned, P. J., and Ingalls, J., concurred in the result.

Judgment affirmed, with costs.


text:
    ALEXANDER McLEAN, Administrator, etc., of JOHN FAHERTY, Deceased, Respondent, v. THE SCHUYLER STEAM TOW-BOAT LINE, Appellant.

      Apa/riy attempting to relieve himself from an injury, occasioned bg the negligence of another person, is bound to use ordinary care not• to unnecessarily injure the latter's property.

    On tlie niglit of tlie 8tli of June, 1886, a schooner, which was owned by Faherly, tlie plaintiff’s intestate, was floating down the Hudson river on an ebb-tide laden with a cargo of brick. The defendant’s steamboat, the Connecticut, was at the same time towing a fleet of sixty canal-boats down the river, the steamboat being 50 ) feet in advance of the fleet, which was connected with it by four hawsers; two steam tugs of tlie defendant accompanied the steamboat.
    In consequence of the negligence of tlie owner of the schooner, who was also its captain, the schooner was caught and thrown upon one of the hawsers joining the fleet to the steamboat, and was carried in this position along with the tow for about two miles. The captain of the steamboat then sent one of liis tugs with orders to get the schooner off the hawsers as soon as possible, and in doing tliis the rudder and also some of the planks -were torn off of the schooner, which soon thereafter sank.
    Upon an appeal from a judgment in favor of the plaintiff’s intestate, entered upon the report of a referee in an action brought by the plaintiff’s intestate to recover damages alleged to have been occasioned by the defendant’s negligence:

      Held, that as the negligence of the plaintiff’s intestate caused the schooner to be thrown upon the defendant’s hawsers, the duty of extraordinary diligence in getting off the hawsers was imposed upon him.
    That it was the defendant’s duty to use' only ordinary care not to do unnecessary injury to the schooner in getting her off the hawser.
    The referee found that the captain of the steamboat, after being told that the hawser was between the stern-post and rudder, proceeded to pull her off.

      Held, that as it was obvious that without removing the hawser from that position the stern-post must be torn off and the schooner otherwise injured, that the captain did not use ordinary care to avoid doing unnecessary injury to the schooner.
    Appeal from a judgment, entered in favor of the plaintiff, upon flie report of a referee, in the office of the clerk of Albany county, on July 28, 1888.
    Faherty owned and was captain of a schooner on the Hudson river. On the night of the 8th of June, 1886, when there was no wind, she was floating down the river on an ebb tide laden with a cargo of brick. She had the usual red and green lights upon her port and starboard sides. These were not visible from her rear. She was about 150 feet from the west shore. The moon was about two hours and three-quarters high, and the schooner was in the shadow of the hills on the west bank of the river.
    The defendant’s steamboat, the “ Connecticut,” was, at the same time, towing a fleet of sixty canal boats down the river. The steamboat was 500 feet in advance of the fleet and four hawsers connected the steamboat and fleet. Two steam tugs of defendant accompanied the steamboat. Faherty saw the steamboat when she was two miles •away. It was his duty then to show a lighted torch upon the point or quarter of his schooner towards which the steamboat was approaching. (H. S. H. S., § 4234.) This he did not do. The result was the shooner was not seen from the Connecticut until she came abreast of the schooner. The river makes a sharp turn at "West Point, and it was obvious that the schooner would be caught in the loop to be formed by tbe steamboat and fleet in rounding the turn. The schooner was so caught and was thrown upon one of the hawsers joining the fleet to the steamboat.

      The referee finds that the schooner became thus entangled in consequence of the negligence of her owner and master, the plaintiff’s intestate. While in this position she was carried along with the tow for about two miles. The captain of the steamboat then sent one of his tugs with orders to get the schooner off the hawser as soon as possible. In doing this the rudder of the schooner was torn off,, also some of her planlcs, and she soon sank.

      Worthmgton Frothingham, for the appellant.

      F. Gountryma/n, for the respondent.
   Landon, J.:

The plaintiff’s negligence caused his schooner to be thrown upon the defendant’s hawser, with which defendant, by means of the steamboat Connecticut, was towing a fleet of canal boats down the river. The schooner was between the canal boats and the defendant’s steamboat. It was plaintiff’s duty to be extraordinarily diligent in getting off the hawser. It was defendant’s duty to use ordinary care to do no unnecessary injury to the schooner in assisting in getting her off the hawser. (Mark v. Hudson River Bridge Co., 103 N. Y., 28.)

Upon the facts found by the referee, the defendant did not use ordinary care to avoid doing unnecessary injury to the schooner, but. proceeded to pull her off after being told that the hawser was between the stern-post and the rudder, and when it was obvious that without removing the hawser from that position the sternqiost would be torn off and the schooner otherwise injured. The finding of the referee is within the evidence, and we see no reason to dissent from it. The negligence of the plaintiff by which his schooner fell into this place of danger, and became a nuisance to the defendant, was not the proximate cause of the injury to the schooner. That was caused by the defendant’s reckless disregard of the consequences of proceeding to pull the schooner off the hawser without taking the precautions known to be necessary in order to avoid doing her unnecessary injury. True, the referee finds that the schooner’s con- • dition was “ desperate ” when lying on the hawser between the fleet of canal boats and the steamboat propelling them. JBut that desperate condition consisted in the plaintiff’s inability to extricate liis schooner without the proper precaution and assistance on the part of the men in charge of the steamboat. The proper things to do were suggested by the plaintiff; they would involve a small delay on the part of the defendant; this delay was refused and the defendant pulled off the schooner in reckless disregard of the con.sequences reasonably to be apprehended, and which, with ordinary care, might have been avoided.

Tire objection to tbe question put by tlie defendant to tbe captain of tbe steamboat, whether, in his opinion, anything could have been done by him or his steamboat better than was done, was properly sustained. The negligence charged against the defendant consisted of the simple act of pulling the schooner off the hawser under such conditions as must tear the rudder from the schooner. No expert .knowledge was needed to understand so simple a situation and its consequences, and the substitution of an opinion for tbe facts would manifestly be improper.

Tbe judgment should be affirmed, with costs.

Learned, P. J'., and Ingalls, J., concurred.

Judgment affirmed, with costs.


author: 'Learned, P. J.:

text:
    WILLIAM S. KENNEDY, as Receiver of the Property of JACOB C. WOOD and JOHN V. D. S. MERRILL, Appellant, v. JACOB C. WOOD and JOHN V. D. S. MERRILL and JAMES M. McDONNELL, Respondents.

      Receiver in supplemenlarry proceedings — action by, to set aside a general assignment — declamations of the assignors as to their solvency — a statement made by a pczrty to an action is admissible against him without his attention homing been previously called to it — a general assignee is not a purchaser for value.

    In an action by a receiver, appointed in supplementary proceedings, to set aside a general assignment made by the defendants Wood and Merrill to the defendant McDonnell, the plaintiff offered to show declarations of the assignors, made June 14,1883, that they had a surplus of $100,000, and declarations, made shortly before the general assignment, that they were then better-off than in 1883; this offer being made in connection with the general assignment in which the firm appeared to be largely insolvent.

      Held, that the declarations oí the defendant assignors, Wood and Merrill, were material evidence against them, as the question whether the assignors were, and knew themselves to be, largely solvent, was material on the question of fraudulent intent.
    The plaintiffs also offered evidence of statements in regard to their solvency, made by the assignors in May, 1886, to Burt & Go., with a view of making a purchase which was actually made. Burt <& Co. were placed in the third class of the creditors preferrrd by the assignee.

      Held, that it was error to exclude this evidence as it was admissible and material against the assignors.
    That the evidence above referred to was also admissible as against the assignee.

      Loos v. Williinson (110 N. Y., 195); Van Boohs v. Kretz and others (72 id., 548) followed; Paige v. Cagwin (7 Hill, 361); Brisbane v. Pratt (4 Den., 63); Bullís v. Montgomery (50 N. Y., 352) distinguished.
    The assignment, after directing the payment of expenses, provided for the payment of debts, not specifying the amount, to certain persons named in the second item, among whom was Thornton Kinney. The schedtile named the amount owing to him as $750. The plaintiff asksd the court to charge that the assignment was fraudulent, because this was an individual debt of Merrill’s.

      Held, that as there was evidence to show some indebtedne_ss of the firm to Kinney, it was not error to refuse this request.
    The plaintiff, on the cross-examination of Merrill, offered in evidence Merrill’s sworn statement that this $750 was money which Kinney had deposited with Merrill, and which Merrill had loaned to the firm. This evidence was rejected on the ground that the witness had not been interrogated on the trial as to whether that was the fact.

      Held, that itwas error to exclude it, as the statements of a party can always be given in evidence against him whether he is a witness or not, and that it is not necessary to examine him previously as to whether he had made such statements.
    About January, 1879, one Alice Pay died in Vermont. On a petition of the heirs, four in number, stating that Merrill was the oldest male heir, he was appointed administrator. As such administrator he loaned to his firm over $5,000, which sum was preferred in the first class.

      Held, That a claim made by the plaintiff, that this was a provision for the assignor’s benefit, could not be sustained as there was no proof to show what interest, if any, Merrill had in the Pay estate at the time of the assignment.
    A question, asked by the defendants of McDonnell, the assignee, whether he had any intent to hinder and defraud the creditors of the assignors, which was objected to by the plaintiff as incompetent, was allowed.

      Held, that the'court erred in overruling the objection as his intent was not material, inasmuch as he was not a purchaser for value.
    Appeal by the plaintiff from a judgment, entered upon the verdict of a jury, rendered in favor of the defendants at the Rensselaer Circuit, in the Rensselaer County clerk’s office, December 29, 1887; and from an order entered January-27, 1888, denying the plaintiff’s motion to set aside the verdict and for a new trial.
    This action was brought by a receiver appointed in supplementary proceedings to set aside a general assignment made by defendants Wood and Merrill to defendant McDonnell. The case was tried before Justice Edwards and a jury. The jury found a verdict for defendants, and judgment accordingly was granted thereon. From this judgment, and the order denying the motion to set aside the verdict, the plaintiff appeals.

      Henry A. King and Frank 8. Flack, for the appellant.

      Edgar L. Fwrsman, for the respondents.
   'Learned, P. J.:

The assignment was made October 30, 1886. The plaintiff offered to show declarations of the assignors, made June 14, 1883, that they had a surplus of $100,000, and declarations shortly before the general assignment, that they were then better off than in 1883; this offer being in connection with the general assignment in which the firm appeared to be largely insolvent. This testimony was excluded, and plaintiff excepts.

The assignors, Wood and Merrill, were parties defendant. The complaint alleged that the assignment was made with intent to hinder, delay and defraud, etc. This was denied by all defendants, and an issue was thus raised on this allegation. If the assignment was made with such intent on the part of the assignors, it was void. Starin v. Kelly, 88 N. Y., 418.) The declarations of the assignors were evidence against them; and they were defendants. (Loos v. Wilkinson, 110 N. Y., 195 ; Van Sachs v. Kretz, 72 N. Y., 548.) This testimony, then, was admissible. Was it material? It tended to show that shortly before making the assignment the assignors were worth more than $100,000 above their debts. It must be observed that this is not the case of debtors obtaining credit by false representations of solvency, and thereafter making an assignment. (Tim v. Smith, 13 Abb. N. C., 31.) It is a question whether evidence that the assignors were and knew themselves to be largely solvent is material on the question of fraudulent intent. We think it is. An assignor, believing that he was worth $100,000 above his debts, would not be likely to make a general assignment with an honest intent. We will not say that a solvent debtor may not honestly make a general assignment. But we think that proof of the debtor’s solvency, known to himself, might be some evidence on the question of his intent in making the assignment. The plaintiff also offered evidence of statements of solvency made by the assignors in May, 1886, to Burt & Co., with a view of making a purchase, which was actually made; Burt & Co. being creditors of the assignors placed in the third-class. This was excluded and an exception was taken. This evidence also was admissible and material against the assignors.

The question, then, remains, was the evidence above referred to admissible against the assignee. The affirmative is laid down in Loos v. Wilkinson (ut supra, 211). So it is practically held in Van Sachs v. Kretz and others (72 N. Y., 518, 551, 555). It is there pointed out that a general assignment for creditors is not a purchase for value; that this relation between a bankrupt and his assignee creates an identity of interest between them which makes his (i. the bankrupts’) declarations evidence against his assignee. In Coyne v. Weaver (81 N. Y., 386, 392) the court, speaking of declarations of an assignor, says, that they were inadmissible because made after the assignment and delivery of possession under it; thus by implication stating that they would have been admissible if made before.

The question as to the admissibility of statements made by the ' prior owner of property against a subsequent owner has generally arisen in litigations as to the value or validity of thé transferred property. Thus in Paige v. Cagwin (7 Hill, 361) the statement affected the validity of the note. So in Brisbane v. Pratt (1 Den., 63). In the present case the. statements are offered, not to affect the value or validity of property transferred, but to affect the validity of the transfer. But' we think that the same rule must apply, and that it is applied in Loos v. Wilkinson (ut supra). The general assignee for the benefit of creditors is but the instrument through which the assignor attempts to dispose of his property. 'If the assignor had avowed his intention to defraud his creditors by making an assignment, we see no reason why such avowal should not be .evidence of his fraudulent intent even against the assignee.

The case of Bullis v. Montgomery (50 N. Y., 352), cited by defendant, does not apply. The statements held incompetent were made by tbe assignor before be purchased the assigned property, and not even while purchasing it. They were intended to prove fraud in the purchase, not in the subsequent assignment.

The assignment, after payment of expenses, provided for the payment of debts, not specifying the amount, to certain persons named in the second item, among them to Thornton Kinney. The schedule named the amount owing Kinney as $750. The plaintiff asked the court to charge that the assignment was fraudulent, because this was an individual debt of Merrill’s. The court refused. As to a part, viz., $400, of this amount, the testimony is not very clear. According to Merrill’s testimony at one place, he says that Kinney wanted some money “I owed him;” that he, Merrill, took this amount, $400, from the firm; did not pay it to Kinney; did charge himself with it, and did credit Kinney with the amount on the books of the firm. Of course, if Merrill credited Kinney on the books of the firm with $400, which he personally owed Kinney, the entry was false, and was either a blunder or a fraud. The firm did not owe Kinney $400, which Merrill had taken from the firm and put into his own pocket. There appears, however, to have been some indebtedness of the firm to Kinney, and, we think, it was not error to refuse this request to charge.

The plaintiff, on cross-examination of Merrill, offered in evidence Merrill’s sworn statement that this $750 was money which Kinney had deposited with Merrill, and which Merrill had loaned to the firm. This was objected to as incompetent and inadmissible. This was apparently upon the ground that the'witness had not been interrogated on this trial whether that was the fact, and, therefore, that it could not be used to contradict him, and was mere declaration. Perhaps Merrill had not, on this trial, expressly stated that the $750 was a debt owing by the firm, and, therefore, contradictory statements made previously would not have been admissible merely as impeaching the credibility of the witness. But the statements of a party can always be given in evidence against him, whether he is a witness or not. It is not necessary to examine him previously as to whether he has made such statements. On the principle heretofore stated, these statements of Merrill were primary evidence against him. The statement was made after the assignment, and hence was not evidence against the assignee.

About January, 1879, Alice Fay died in Yermont. On a petition of the heirs (so expressed), four in number, stating- that Merrill was the oldest male heir, he was appointed administrator. As such administrator he loaned to this firm over $5,000, which sum was preferred in the first class. The plaintiff claims that this was a provision for the assignor’s benefit, and hence the assignment was fraudulent. One answer to this is that there is no proof what interest, if any, Merrill had in the Fay estate at the time of the assignment. '■ There is no evidence on that subject, except what is above stated. What interest, if any, the oldest male heir has in personal property under the laws of Yermont, we do not know.' Merrill may have long before parted witn any interest which he had. The Yanderspeigle estate seems to have been given to Merrill in trust for one Yanderspeigle. That estate was preferred in the assignment to the extent of about $3,000. In this instance we do not see that Merrill had any personal interest.

The question was asked by defendants of McDonnell, the assignee, whether he had any intent to hinder, delay and defraud, etc. This was objected to by plaintiffs as incompetent, but was allowed. His intent was not material, as he was not a purchaser for value. (Talcott v. Hess, 31 Hun, 282; Loos v. Wilkinson, ut supra, 209.) No charge was made in the complaint that he had any fraudulent intent.

Gordon, a member of the firm of Burt & Go., who were in the third class, was a witness for plaintiff. The court charged, at defendant’s request, that if the assigned property was not more than enough to pay the first and second classes, Gordon had an interest in plaintiff’s success. The plaintiffs excepted. Burt & Go. were not attaching creditors in the action. The action was not brought for the benefit of all who might join. The relief asked was that the assignment might be declared void as to the creditors in whose behalf it was instituted. Therefore, we do not see how 'Gordon had any interest in plaintiff’s success. This part of the charge may have prejudiced the jury.

There are some other points which it is unnecessary to discuss. Nor do we think it best to say anything as to the merits of tbe case. We might improperly influence a jury under a second trial. We, therefore, confine ourselves to pointing out some errors which, we think, were committed.

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

Law don, J., concurred; Ingalls, J., taking no part.

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