author: YaN BkuNt, P. J.:

text:
    HEDWIG BLAECHINSKA, Respondent, v. HOWARD MISSION AND HOME FOR LITTLE WANDERERS, Appellant.

      Husband and wife— the wife is entitled to recover damages for the loss, resulting from personal iiyjury to her; of wages for services rendered to her husband outside of the household.

    A husband is entitled to the services of his wife in respect to household duties, and the right of action for an injury to her which prevents her. rendering such services belongs to the husband.
    A married woman is entitled to recover for the loss of any wages earned outside of her household duties, and such services do not belong to the husband, and when the wife is disabled by reason of an injury from performing them the wife may sue in her own name for the recovery of the resulting damages.
    Where the wife has been accustomed to work for her husband outside of her household duties, and to receive pay therefor from her husband, under an agree-meat for compensation "by which such pay became her own property, such earnings may he considered by the jury in an action brought by her to recover for injuries preventing her further rendition of the services for which they were paid.
    Appeal by the defendant, tlio Howard Mission and Home for Little Wanderers, from a judgment, entered in the office of the clerk of the county of New York on the 26th of April, 1889, in favor of the plaintiff and against the defendant for the sum of $500 damages and costs, and from an order denying the defendant’s motion for a new trial made on the minutes of the court after a trial at the New York Circuit before the court and a jury.

      II. II. Chittenden, for the appellant.

      Ool.wnbus tí-ottsehalk, for the respondent.
   YaN BkuNt, P. J.:

On the 8th of December, 1886, the plaintiff was the wife of Alexander Blaechinska, who was engaged in the manufacturing tailoring business, and while passing in front of premises in Rivington street, occupied by defendant as tenant for a long time previous thereto, she stumbled and fell over a vault cover and was quite severely injured. The vault cover was broken, and the plaintiff testified that she in some way caught her heel in stepping upon the cover and so fell.

This action was brought to recover the damages sustained by the plaintiff, and a recovery having been had, from the judgment thereupon entered this appeal is taken. The questions raised by the appellant are two: First, that the verdict is against the weight of evidence, in that the preponderance of proof showmd that there was no hole in the vault cover in which the plaintiff could catch her foot; and, secondly, that the plaintiff was improperly allowed to recover for the loss of wages which had been previously paid to her by her husband for services rendered by her outside of her household duties.

In respect to the question as to the weight of evidence, upon an examination of the proof of the ease, we think there was sufficient for the jury to find that it was possible for the plaintiff to have met with her accident in the manner described by her. It is conceded that a portion of the vault cover was missing, and it would appear from the evidence that some part of the hole was thereby exposed. That the plaintiff fell and was injured seems to be established beyond doubt, and is not controverted, and that she fell at this particular place, and we cannot say that the testimony in regard to the manner in which the injury happened was untrue because the evidence shows, and particularly the exhibits, that some portion of the hole was exposed in which, perhaps, she might have caught her foot. If this was the case, it having existed for a considerable length of time, the jury were entitled to infer negligence against the defendant.

It appeared from the evidence in the case that the plaintiff had been accustomed to assist her husband in his tailoring business, doing all her household work besides, and that she received a salary of five and six dollars per week from her husband; and she further testified that since the happening of the accident she could not do tailoring as she was able to do it before, and that it was two years and a half that she could not work. She further testified that the money she drew while she was sick and used it for the children for buying shoes, and for the general support of her family, because sometimes her husband had no work and she supplied the money.

It is undoubtedly true that a husband is primarily entitled to the services of his wife in respect to her household duties, and she could not recover for inability to perform those duties. In such a case the right of action would belong to the husband. But that a married woman is entitled to recover for the loss of any wages which she could have earned outside of her household duties, it ' appearing that she had been accustomed to make such earnings, seems to be clearly established by the case of Brooks v. Schwerin (54 N. Y., 343) in which it is held that the services of a wife in the household in the discharge of her domestic duties still belong to her husband, and, so far as her injuries disable her from performing such services for her husband, the loss is his, and not hers. But when she labors for another her services no longer belong to her husband, and whatever she earns belongs to herself; and so far as she is disabled from performing such services by any injury, she can recover for the loss. It is urged, however, that this case is not an authority, because she was not laboring for another, but for her husband, and it is, therefore, claimed that the principles laid down in the case cited are not applicable to the case at bar.

The case of Reynolds v. Robertson (64 N. Y., 589) further illustrates the point under discussion. In that case the plaintiff’s wife rendered services in his house to a boarder therein; she was engaged in no business or service on her own account. She was in charge of her husband’s house, and, as part of her household duties, rendered services to a person in the husband’s house by contract with him. The court say that she was then working for her husband, and not for herself, or on her separate account, and that, notwithstanding the act of 1860, she could still work for her husband and devote all her time and service to him ; and the circumstances of the case were such as to warrant the finding that the services were rendered by the husband through the wife.

The court say: “ These views are not in conflict with Brooks v. Schwerin (54 N. Y., 343). There a poor woman went out to work by the day, earning wages, and it was held that the wages thus earned in labor outside of her household, and entirely disconnected from her household duties, belonged to her. But if the husband takes boarders into his house, or converts his house into a hospital for the sick, and his wife takes charge of his establishment and thus aids him in carrying on his business, in the absence of special proof all her services and earnings belong to her husband. Even under such circumstances the husband might covenant and agree that his wife should receive pay for her services on her own account; but in the absence of some arrangement to that effect, the inference of law and fact would be that she was working for her husband in the discharge of her marital duties.”

The court in this case clearly recognizes the fact that the presumption from the rendition of services may be rebutted by evidence showing the special circumstances of the case and that such rule should not apply. In the case at bar it appears that the plaintiff had been working for her husband, but outside of her household duties, and had been accustomed to receive pay therefor from him, which money was her own property, and that by the accident she was prevented from continuing the rendition of such services.

We think that under the law, as it now stands, there is no distinction as between another party and a husband where there is a distinct agreement for compensation. It is apparent from the authorities cited that if she had been accustomed to work at tailoring for other parties, and had received this salary, its loss could have been given in evidence as an element of damage. This being the case, she being accustomed to receive compensation for the work done for her husband, we see no reason why it may not be taken into consideration by the jury in determining the amount of damages.

The claim that there should have been a special plea made in regard to these damages does not seem to be well taken. They were entirely the result of the injury, and the complaint contains an averment that she was not only prevented from attending to household duties, but from engaging in other employment.

The judgment and order should be affirmed, with costs.

BakRbtt and Babtlbtt, JJ., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: VAN ÜRUNT, P. J. : Babtlett, J.:

license: Public Domain

text:
    JOSEPHINE E. CLASON, Plaintiff, v. ELIZABETH S. BALDWIN, Defendant.

      Declarations against interest — allegation as to mesne profits — necessary to their recovery in a complaint in ejectment.

    Statements made by a debtor at tlie time that he pays the debt are not admissible in evidence as being declarations against his interest, lor the reason that he pays the debt when making the statements and hence has no interest upon which the declarations can operate.
    Where a complaint in an action of ejectment contains no allegations in respect to mesne profits, no mesne profits are recoverable.

      Lamed, v. Hudson (57 N. Y., 151) followed.
    Sections 1496 and 1497 of the Code of Civil Procedure have not effected any change in this particular.
    Exceptions ordered to be heard in the first instance at General Term, after a trial before the court and a jury at the New York Circuit, at which a verdict in favor of the plaintiff was rendered by direction of the court on April 9, 1889.

      Isaac M. Miller, for the motion.

      George W. Siemens, opposed.
   VAN ÜRUNT, P. J. :

This was an action of ejectment brought to recover the possession of real estate in the city of New York. The answer was substantially a general denial. The plaintiff claimed as the child of William J. Clason, in whom a title was asserted to have been proved. The evidence, however, by a strange omission, fails to show who the plaintiff’s father was. It may, perhaps, be inferred that the plaintiff intended to swear that William J. Clason was her father, but she did not do so, and the plaintiff’s case was fatally defective in this respect.

The exception to the evidence of the declarations of Mr. Carter was clearly well taken. What Mr. Carter told the plaintiff about his having collected the rents of these premises was not competent evidence of the fact that he had ever collected the rent of the pi’emises in question.

The theory that such declarations are admissible, because made against the interest of Mr. Carter, cannot prevail. Mr. Carter had no interest in this controversy or property, and hence had no interest against which he could make a declaration. In fact, the proof shows that Mr. Carter did not make any declaration against his interest. What a debtor says when he is discharging a debt cannot be a declaration against his interest, because he pays the debt at the time of making the declaration, and hence has no interest upon which the declaration can operate. Mr. Carter, the evidence shows, says that he collected these rents and paid them over, and that is all. This is no declaration against his interest, as has been shown.

The plaintiff was allowed to recover mesne profits without the complaint containing any allegations respecting the same. In the case of Larned v. Hudson (57 N. Y., 151) this question was expressly decided, and we are unaware of any change in the rule of pleading. The case of Wallace v. Berdell (101 N. Y., 13) in no way asserts any conflicting rule. Neither have sections 1496 and 1497 of the Code of Civil Procedure effected any change.

It is true that the framer of the Code, in his note to section 1496, says that this section was inserted to avoid the rule laid down in Larned v. Hudson (supra); that a separate action must be brought for mesne profits, but if the compiler of the Code had read this case he would have learned that the court therein expressly decided. that a separate action was not necessary to recover mesne profits, but that they might be recovered under appropriate allegations in the action of ejectment.

The reasons why such allegations should be required as a preliminary to a recovery of mesne profits are shown in the case cited, and it is not necessary to repeat them here, and perhaps the only change which section 1496 of the Code has made is to compel the assertion of these causes of action in the action of ejectment which did not exist before. There does not seem to have been any intention, and certainly none such is expressed, to change the rule of pleading upon this subject. The complaint in this action containing no allegations as to mesne profits, none can be recovered under it.

The exceptions must be sustained and a new trial granted.

Baebett, L, concurred.

Babtlett, J.:

I concur on the first ground mentioned in the ojrinion of the .presiding justice.

Exceptions sustained and a new trial granted.


author: YAN Brunt, E. J. :

text:
    E. CLARENCE HOVEY and WILLIAM NELSON BLAKEMAN, Jr., as Executors of the Last Will and Testament of REBECCA E. ROBERTSON, Deceased, Plaintiffs, v. GEORGE E. CHISOLM, Defendant.

      Power of sale of land — to be exercised as “ deemed expedient and for the best interest of all my legatees ” — not properly exercised where there is sufficient personal property topan/ all the legacies —title acquired thereunder.

    A testatrix, by her will, provided that her executors should “have full power and authority at any and all times, in their or his discretion, to sell and dispose of my real estate, or any part thereof, either at private or public sale, as they or he shall deem most expedient and for the best interest of all my legatees herein-before referred to.” By the next item of the will the testatrix gave,. devised and bequeathed to her executors, and to the survivor of them, all the residue of her estate in trust, for the establishment near the city of New York of a summer home for poor females, and directed her executors, or the survivor of them, “to assign, transfer and convey all my said residuary estate, both real and personal, and the proceeds thereof, if sold, to such corporation.”

      The personal property leit lry the testatrix was sufficient in value to pay all her debts, funeral expenses, the expense of the administration of her estate, and all the pecuniary legacies given by her will.

      Held, that the power of sale was qualified by the provision that it must be “ expedient and for the best interest of all my legatees hereinbefore referred to.”
    That' it could not be expedient for the executors 1 o execute the power of sale, under such circumstances, as the legatees would have no interest in its execution.
    That if the executors had on hand sufficient funds to pay all the legacies referred to in the power of sale, they could not give a good title to real property left by the testatrix to a party who purchased knowing this fact.

      Semble, that a purchaser would take a good title under such a power of sale, if he acquired it in good faith and in ignorance of the fact that because of an abundance of assets there was no necessity for the execution of the power, as, under such circumstances, the exercise of the power by the executors would be sufficient evidence that they deemed it expedient to do so.
    Submissiok of a controversy, on an agreed statement of facts, for the decision of the court as to whether the plaintiffs, as executors, were entitled to a judgment for the specific performance by George E. Chisolm of a certain contract or agreement for the sale and purchase of real estate, together with costs, or whether the said George E. Chisolm was entitled to a return of the money paid or deposited under said contract or agreement, together with costs.

      Austen G. Fox, for the plaintiffs.

      John M. Bowers, for the defendant.
   YAN Brunt, E. J. :

The plaintiffs, as executors, made a contract with the defendant for the sale to him of a piece of land of which their testatrix died seized.

The defendant raised various objections to the title, only one of which it is considered necessary to notice here, viz., that the executors under the power of sale contained in the will of their testatrix could not give a good title to the premises in cpestion, and the validity of this objection is presented in this action. The will of the testatrix which was admitted to probate, after directing the payments of her debts gave legacies in various amounts to various persons, and then proceeded as follows :

Thirteenth. I do hereby will and direct that my executors hereinafter named, or such one of them as shall take upon himself the execution of this my last will and testament, shall have full power and authority at any and ail times, in their or his discretion, to sell and dispose of my real estate or any part thereof, either at public or private sale, as they or he shall deem most expedient and for the best interest of all my legatees hereinbefore referred to, giving and granting unto my executors and to the survivor of them, or to such of them as shall take upon himself the execution of this my last will and testament, full power to execute and deliver good and sufficient deed or deeds of conveyance to grant and convey the same to the purchaser or purchasers thereof.

Fourteenth. All the rest, residue and remainder of my property, whatsoever and wheresoever situate, both real and personal, of which I may die seized and possessed, or in any wise entitled to, I give, devise and bequeath to my executors and to the survivor of them, in trust for the establishment, near the city of New York, of a summer home for poor families, for the purpose of enabling poor and indigent families to have, free of expense to them, a short period of rest and recreation in the country during the summer months, and for the permanent endowment of such home to be known as the “ Gilbert A. Robertson Home.” I direct my executors to take prompt measures for the incorporation of a society for the purposes of said trust, and if such society be incorporated within five years next after my decease, and during the lifetime of my said executors or either of them, then I give, devise and bequeath, and I direct my said executors, or the survivor of them, to assign, transfer and convey all my said residuary estate, both real and personal, or the proceeds thereof, if sold, to such corporation.

It is admitted by the submission that the testatrix died possessed of personal property sufficient in value to pay all her debts, funeral expenses, all expenses of administration and all the pecuniary legacies given by her will, and that her executors received from her sufficient personal property to pa/y and discharge all the above obligations. In other words, it is admitted that the plaintiffs received from the property of the testatrix sufficient personal property to discharge all their obligations as executors.

It is urged by the plaintiffs that the testatrix made her executors the sole judges of the expediency of a sale of the whole or a part of the real estate, and that even if that were not so, and it was open to the defendant to show that because of some extrinsic fact the power of sale had become inoperative, yet the burden of proof would be upon the defendant to show such fact, and the bare fact that the testatrix at her death was possessed of personal property that was then sufficient in value to discharge all pecuniary legacies, funeral expenses, debts and expenses of administration, does not show that four months thereafter it could not be expedient and for the best interest of the legatees to sell a part of the real estate; and the execution of the contract of sale is evidence that the executors deemed it expedient to make the sale.

In the foregoing proposition the learned counsel for the plaintiff's has strangely overlooked the terms of the will by which the power of sale is conferred and the conceded facts contained in the submission. No power of sale seems to be conferred by the terms of the will upon the executors if they shall deem it for the best interest of the legatees to sell. It is only in case they deem it “ most expedient and for the best interest of all my legatees herembefore referred to,” that a power of sale is conferred; and if the executors have on hand sufficient funds to meet all the legacies referred to in the power of sale, they certainly cannot give a good title to a party who knows this fact, and who must know that it cannot be expedient for the executors to execute the power of sale under such circumstances, as the legatees can have no interest in its execution, and, therefore, it cannot be for their best interest that such power should be exercised.

If a party, however, should take a title under such a power of sale in good faith, being ignorant of the fact that because of an abundance of assets there was no necessity for the exercise of the power, he would undoubtedly acquire a good title, because under such circumstances the question would not be whether it was, in fact, expedient, but whether the executors deemed it expedient, and the exercise of the power would be sufficient evidence that they did deem it expedient. But where a party knows that the legatees can have no interest in the exercise of the power, because there is ample personal estate to pay all legacies and demands, a different rule must prevail, as the purchaser is aware that under such circumstances. the executor has no power to act.

Suppose a will contained certain legacies and a power of sale, if the executors deemed it for the best interest of the legatees named in those legacies, and all the legacies had lapsed by the death of the legatees before the testator, would it be urged for a moment that the power of sale survived ?

It is tacitly conceded by the argument of the plaintiffs, that if these legacies had been paid the power of sale could not be executed; what is the difference if the executors have in hand ample assets to pay them? Clearly none. In neither of these cases could the legatees have any interest to be advanced by an execution of the power of sale.

The plaintiffs’ counsel claims that even if the defendant can be permitted to show that, because of some extrinsic fact, the power of sale had become inoperative, yet the' burden of proof would be upon him to show such fact, and the court, in the case of a submission of a controversy without action, will not go beyond the very fact stated, in order to help-the defendant to sustain his objection. As an abstract proposition this may be true, but the court is bound by presumptions that of necessity arise from conceded facts, and it must give effect to these presumptions.

In urging this proposition the counsel states that the bare fact that the testatrix at her death possessed sufficient personal property to discharge pecuniary legacies, and all other demands and expenses, does not show that four months thereafter it could not be expedient and for the best interest of the legatees to sell a part of the real estate. There is no such bare fact presented to the court in this action, and the counsel completely overlooks the last two lines in the paragraph of the submission in which the subject is treated of, which are as follows: And that her said executors received from her sufficient personal property to pay and discharge all the foregoing obligations.” The bare fact referred to by counsel is completely clothed by the further admitted fact that the executors had received sufficient funds from the personal estate to meet all obligations; and as they must be presumed, in' the absence of evidence to the contrary, not to have lost or squandered these funds they had them at the time of the execution of this contract of sale, and consequently they could not have deemed it for the best interest of the legatees named in the will, under the power, to sell the real estate, as such legatees could not possibly have any interest to subserve by such sale.

"We are referred to the words “if sold” in the residuary clause of the will, for the purpose of showing that a general power of sale was intended. This may possibly have been the intention of the testatrix, and upon a construction of the will in question, with all the parties in interest before it, the court might be able to harmonize' these conflicting provisions, but the purchaser is not bound to take the risk of such a construction in this action which would bind none of the parties in interest, they not being before the court.

The title offered to the defendant is not free from reasonable doubt, and he should, therefore, have judgment upon the submission, with costs.

Judgment for defendant, with costs.

Barrett and Bartlett, JJ., concurred.

Judgment for defendant, with costs.


author: Barkett, J.: YaN Brimt, P. J.:

text:
    MICHAEL H. CASHMAN, Respondent, v. HUGH M. REYNOLDS and BRIDGET M. REYNOLDS, Appellants.

      An answer cannot be served as an amendment to a, demurrer theretofore served.

    A defendant, who has interposed a demurrer to a complaint, is not entitled, as of course, within twenty days thereafter, to serve an answer as a substitute therefor.
    While he may amend liis demurrer in any way in order to perfect the ease presented on the issue of law, and may make like amendments to an answer in order to perfect the case to he presented upon the issue of fact raised thereby, he cannot turn an issue of law into an issue of fact, or the reverse.
    In order to substitute a demurrer for an answer, or an answer for a demurrer, an application must be made to the court for authority to do so.

      Lmith v, Laird (44 Hun, 530) and Wise v. Qessner (47 id., 306) followed.

      Rdbostélli v. Lfoxon (24 FT. -Y. St. Rep., 894) criticised.
    Appeal by the defendant Bridget M. Reynolds from so much of an ord@r made at a Special Term held in the county of New York on the Utli day of January, 1890, as denied a motion of said defendant to compel the plaintiff’s attorney to accept service of the answer of said defendant, which was served on said attorney January 3, 1890; and also an appeal by the defendant Hugh M. Reynolds from so much of said order as denied a motion on the part of the said last-mentioned defendant to compel the plaintiff’s attorney to accept service of the answer of said last-mentioned defendant, served on said attorney January 3, 1890.
    The action was brought to foreclose two mortgages covering property in the city of New York. The defendants’ time to appeal expired on December 27, 1889, on which day they served- a joint demurrer. On December 28, 1889, the plaintiff gave notice of an application for judgment overruling the demurrer as frivolous. Thereafter, and on January 4, 1890, the defendants served notice that the demurrer was withdrawn, and at the same time each defendant served a verified answer, together with a notice that the same was served as a substitute, for an amendment of the demurrer theretofore served on the 27th day of December, 1889.

      Thadd&ns I). JLenneson, for the appellants.

      Townsend, WcrndeU, for the respondent.
   Barkett, J.:

This order should be affirmed upon 'the authority of Smith v. Laird (44 Hun, 530) and Wise v. Gessner (47 id., 306). I desire, however, as 1 did not take part in these decisions, to express my full concurrence in the views therein expressed. The previous authorities are there sufficiently analyzed, and I find no General Term case, later than Wise v. Gessner, taking a different view of the question under consideration, save Robostelli v. Noxon (24 N. Y. St. Rep., 894). The latter case was decided by the General Term of the second department, and that court (.Mr. Justice Pratt delivering the principal opinion) declined to follow Smith v. Laird, holding that “a demurrer is one form of answer,” and that there is nothing in section 543 of the Code which “ implies that a demurrer cannot be regarded as an answer so long as it remains in the case.” The conclusion which follows this postulate is entirely logical, for if a demurrer is an answer, it can undoubtedly be amended, as an (answer, once, of course, within twenty days after its service. Rut 1 apprehend that a demurrer is not an answer in any legal sense. Section 487 of the Code provides that the only pleading on the part of the defendant is either a demurrer or an answer. The defendant is nowhere permitted, as Mr. Justice Pratt suggests, to emswer the complaint “ by saying that it is not valid as a matter of law.” The answer is as clearly and precisely defined as the demurrer. (Code, § 500.) The fallacy of this postulate becomes apparent when the converse is presented. If, for example, the defendant was thus .entitled to answer, where a demurrer was interposed within the previous twenty days, he would equally be entitled to demur where an answer had been interposed within the like period. To sustain the latter position, under the reasoning of Robostelli v. Noxon, it would be necessary to hold that an answer is one form of demurrer, and that there is nothing in section 512 which implies that an answer cannot be regarded as a demurrer so long as it remains in the case. Mr. Justice Peatt also observes that his “ construction is sustained by a long line of cases, four of which he cites, namely, Betts v. Krindell (13 Civ. Pro. R., 157); Frank v. Bush (2 N. Y. Civ. Pro. R. [Browne], 250); Cooper v. Jones, (4 Sandf., 699); White v. Mayor (5 Abb., 322).

The two first are Special Term decisions of the City Court. Betts v. Krindell-w&a decided upon the authority, in part, of Frank v. Bush, which was preferred to Smith v. Laird. The other two cases seem to have no pertinence whatever to the question under consideration, and I confess my entire inability to follow Mr. Justice Peatt’s observation that “in the case of Cooper v. Jones the precise point was decided by six judges.”

I have read the report of Cooper v. Jones with extreme care, and I find that the only question there presented was whether, after a demurrer to an answer, the defendant may serve cun amended answer, of course, within twenty days. The court held that such an amended answer might be so served, a proposition which admits of no doubt, but which is irrelevant to the precise question under discussion. It would have been quite different if the court had held that, after a demurrer to an answer, the plaintiff might serve a reply, of course, within twenty days.

The case of White v. Mayor is equally inapplicable. The only question there was, whether the plaintiff could amend his complaint more than once, as of course. It is quite clear, therefore, that the learned court, in its refusal to follow Smith v. Laird, was not fortified by the authorities cited, any more that it was by the formula that “ a demurrer is one form of answer.”

Looking at tlie question upon principle, it seems to us a somewhat whimsical misapplication of language to speak of amending a demurrer by an answer or of amending an answer by a demurrer. One can be substituted for the other but cannot be umiended into the other. When an issue, whether of fact or law, is once raised, it must as such be disposed of. If you have demurred, you may amend your demurrer once. If you have answered, you may amend your answer once ; but you cannot, by amendment, change the legal status of the issue. In other words, you cannot by amendment turn an issue of law into an issue of fact, or an issue of fact into an issue of law; that can only be done by withdrawing the one pleading and substituting the other, and this is the ordinary and well-established practice. For instance, when a demurrer to a complaint is overruled, after argument, the court usally gives the defendant leave not to amend, but to withdraw his demurrer and answer over; but when the demurrer is sustained the plaintiff is given leave to amend his complaint. Again, if the demurrer to a counter-claim in an answer is overruled, the plaintiff is given leave, not to amend, but to withdraw his demurrer and reply. If, however, the demurrer is sustained, tlie defendant has leave to amend. The object of the statute, liberally permitting amendments, of course, within twenty days, is to enable parties to correct mistakes in their -pleadings, and even to add to or otherwise perfect them. But they must do this upon the legal lines adopted. If they demur, they may thus perfect their case on tlie issue of law. If they answer, they may do likewise with regard to the issue of fact. If, however, they desire to abandon the legal issue in its fundamental character, and thus necessarily to withdraw their pleading and substitute in its place an equally well-defined pleading of an inherently different character, they must appeal to judicial discretion.

I see no reason, therefore, for deviating from the well-considered cases of Smith v. Laird and Wise v. Gessner, and the order should accordingly be affirmed, with costs.

Bartlett, J., concurred.

YaN Brimt, P. J.:

I concur in the foregoing opinion of Mr. Justice BaRRett. Sections 488 to 499, inclusive, distinctly recognize that a demurrer and answer are different pleadings. They expressly provide that a demurrer shall perform an office which shall not he and cannot be done by answer. Sections 963, 964, 965, 966, further shoiv that answer and demurrer are distinct and different pleadings, as they raise issues of an entirely different nature.

Order affirmed, with costs.


author: BRADY, J. : Bartlett, J.:

text:
    GAVIN J. MOFFATT, Respondent, v. ROBERT FULTON, Appellant, Impleaded, etc.

      ¡Execution, against the. defendant's body for the recovery of money in a, fiduciary capacity— the fact that the money was so received must be alleged in the complaint.

    In an action for tlio recovery of money, in order to justify the taking of the defendant's hody in execution, on the ground that he received the money in a fiduciary capacity, the fact that he so received it must be specifically alleged in the complaint.

      Hillis v. Bleehert (58 Hun, 499) and Bartlett v. üutorius (25 N. Y. St. Rep., 629), followed.
    Discussion as to the allegations of the complaint which will authorize the issuing of such an execution.
    Appeal by the defendant Robert Fulton from a judgment in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of November, 1888.
    The action was brought to trial upon a demurrer to the fourth separate defense alleged in the answer by way of counter-claim, and thereafter upon the issues of fact which were tried before the court and a jury. An order was entered sustaining the demurrer and directing that the plaintiff have judgment thereon, with leave to the defendant to amend his answer containing said counter-claim, and, the answer not having been amended in pursuance of said permission, the issues of fact were brought to trial and a verdict was rendered in favor of the plaintiff, and it was adjudged that the plaintiff recover $1,789.07, the amount found by the jury, together with costs, and that the judgment might be enforced only against "the joint property of the defendants herein, and the separate property of the said defendant Robert Fulton, wbo was served as aforesaid, and against the person of the said defendant Robert Fulton.
    This is an action to recover tlie proceeds of two promissory notes made by the plaintiff and indorsed by the defendants. Both the plaintiff and defendants were in the paper business at the times mentioned in the evidence. The plaintiff was in business in New Haven, Connecticut, and the defendants were partners under the firm name of the "Weymouth Paper Mills, having an office in New York city in charge of the defendant Fulton. In November, 1886, the plaintiff made and delivered to the defendants a note to their order for $908.19, dated November 15,1886, and payable in three months, for a bill of merchandise. When this note was about to become due the plaintiff found it would be inconvenient for him to pay it. He, therefore, made a similar note for the same amount (Exhibit A), gave it to his salesman, Mr. McDowell, to take to the office of the defendants'and ask them to indorse it, have the same discounted and send the proceeds to him in New 'Haven in time to pay the note (Exhibit B) coming due February eighteenth. On February fifteenth McDowell took the note to Mr. Fulton in New York and told him what Mr. Moffatt had instructed him to tell him. Mr. Fulton said that he did not know whether he could have the note discounted or not, as it was for the same amount as the old one, but that if Mr. Moffatt would make a smaller note he could probably have it discounted. McDowell then asked Mr. Fulton whether he should' take the note back to Mr. Moffatt, and he told him not to, but to leave it with him that afternoon and he would try and have it discounted; and if lie succeeded he would send the proceeds to Mr. Moffatt, and if he did not succeed he would return the note that night and write Mr. Moffatt in regard to it; and Mr. McDowell left the note with him on his promise to return it; either the note or the proceeds wore to be sent to the plaintiff that night. The defendant Fulton did n ot return the note to tb e plaintiff, but indorsed it and gave it to Charles A. Colby, a note broker, on February sixteenth, to have it discounted. Mr. Colby sold the note on Saturday, February nineteenth, and on Monday, February twenty-first, paid the proceeds to the Weymouth Paper Mills by giving to Mr. Fulton his check. Mr. Moffatt paid the note (Exhibit B) at its maturity, February 18, 1887. On February seventeenth the plaintiff went to tlie defendant’s office. Mr. Fulton requested Mr. Moffatt to make a new note for a smaller amount, as it could be more easily discounted than tlie one of February 15,1887. He said there was some doubt .whether he could get that note discounted. At Mr. Fulton’s request lie made a smaller note for $750.60 and gave it to Fulton, telling him if he could get it discounted to return the note (Exhibit A) and the proceeds of the note (Exhibit C). He told him that he wanted the jiroceeds to take care of the note (Exhibit B) coming due February eighteenth. The instructions were that the check for the proceeds was to reach Mr. Moffatt on February eighteenth. The notes were not to be used after that time. The note (Exhibit C) was left by the defendants at their bank to be discounted. Tlie bank discounted the note on March 4, 1887, and passed the proceeds to the credit of the defendants. The note was not held by the bank previous to its discount. The proceeds of neither of the notes (Exhibit A or Exhibit C) have been paid over to the plaintiff. Mr. Moffatt paid the two notes (Exhibits A and C) when they became duo.
    It also appeared on the record that the defendant interposed as a separate answer a counter-claim against the plaintiff arising from the sale and delivery to him by the defendants of goods, wares and merchandise. To this counter-claim the plaintiff demurred on several grounds, among others, that while the cause of action arising out of the facts stated in the complaint was in tort the counterclaim was founded upon contract, and was, therefore, not of the character specified in section 501 of the Code of Civil Procedure. The issues of law created by the demurrer were decided in favor of the plaintiff, with leave to the defendant to amend his answer containing the counter-claim. It also appears that before the cause was opened the defendant’s counsel “moved to dismiss the complaint as to defendant Fulton, for tlie reason that the complaint, as to the first alleged cause of action, does not contain facts sufficient to constitute a cause of action, and, particularly, does not set forth facts constituting an action in tort; also for the separate reason that the complaint, as to the second alleged cause of action, does not set forth facts constituting a cause of action either in tort or upon contract; also for the separate reason that the complaint unites an alleged cause of action proceeding upon the theory of tort, with one proceeding on the theory of contract.” The court denied each motion, and defendant took a separate exception to each denial. And, further, that when the plaintiff’s evidence was. all in, the following incidents marked the close of the case, the defendants, calling no witness:
    DefejndaNt’s CouNSEL — T now move to dismiss on both of the alleged causes of action, on the ground that the facts proved do not constitute either a tort— an actionable conversion — nor the fiduciary relation in respect to either cause of action; and on the ground that it appears that the moneys, the proceeds of the notes, were, by agreement, to be put into the bank of the defendants, and their check was to be sent up to JVIoffatt, and, under those circumstances, the fiduciary relation was not established.
    The Court — The plaintiff sets out the cause of the complaint. Those facts establish sufficient to maintain the cause of action for a conversion, or a cause of action for the receipt of money in a fiduciary capacity. He urges, in his complaint, that he gave those notes to you for discount before a certain time, and that you agreed to have those notes discounted or returned; that you did have them discounted and he lias not got the money. (Motion denied. Exception.)
    DefeNDAnth’ Counsel— I now move, on the same grounds, that your honor direct a verdict in favor of the' defendant Fulton. (Motion denied. Exception.)
    DefeNdants’ Counsel— I rest my caseon that.
    Yerdict directed for plaintiff for $1,789.07. (Defendant duly excepts.)
    Defendant’s Counsel — "Was’the verdict directed on the theory of tort or contract?
    The Court —■ I think the position the plaintiff has taken here is that the money ivas received in a fiduciary capacity. 1 think the allegations of the complaint are sufficient to establish that, and that the plaintiff’s proof is ample to sustain that.
    The following opinion of Judge Brady, which states the case, is modified, it will be observed, in its conclusion, by that of Judge Bartlett, in which Yan Brunt, P. J., concurs, following it.
    i?. Robertson., for the appellant.

      II. W. Taft, for the respondent.
   BRADY, J. :

The provisions of the Code with reference to the plaintiff’s remedy for money received or property collected by a factor, agent, broker or other person in a fiduciary capacity are entirely different from those which existed in 1884, at the time when the decision of Segelken v. Mayor was made (94 N. Y., 473), arid the discussion there indulged in as to the provisions of the Code, as it stood in 1877, is not controlling in this action. Besides, it was held in that case that a person acting in a fiduciary capacity was not subject to an action of tort for mere acts of omission as for not paying over money due, but only for acts of misfeasance. Here the gravamen of the action is misfeasance, there it was not.

By the amendment of 1886 the provisions of sections 549 and 550 were materially, if not radically, changed, as may be seen upon an inspection of the different sections. By subdivision 2 of section 549, as thus amended, it was provided that a defendant might be arrested in an action to recover for money received or to recover property or damages for the conversion or misapplication of property, where it is alleged in the complaint that the money was received or the property was embezzled or fraudulently misapplied by a public officer, or by an attorney, solicitor or counsel, or by an officer or agent of a corporation or banking association in the course of his employment, or by a factor, agent, broker or other person in a fiduciary capacity. It is provided, however, in that subdivision, that where such an allegation is made the plaintiff cannot recover unless he proves the same on the trial of the action.

The question really seems to be whether there is an allegation such as is contemplated and required by the section mentioned. There is no such allegation in the precise language required by the section, but the facts alleged are sufficient to show the receipt of the money on the discount of the notes and the improper application of it, and, therefore, its conversion to the use of the defendants.

It is alleged, for example, after stating the facts, with regard to the execution and delivery of the notes, “ but contrary to said agreement, and wrongfully, said defendants allowed the said note to remain in the hands of said broker, who, on the 19th day of February, 1887, sold or discounted the,same so that it came into the hands of the East River Bank, in the city of New York, an innocent holder for value, who now bolds the same. On the 21st day of February, 1887, said broker paid to said defendants the proceeds of said note, less commission and discount, which were received by them in trust to pay the same to the .plaintiff forthwith.”

And, again, that the defendants mingled said proceeds of said note with the partnership property and they were used and applied by the defendants in their partnership business ; and that they had utterly failed and neglected' to pay the same or any paid thereof, by which failure and neglect the plaintiff has been damaged in the sum of $887.60.

These are the allegations in reference to the first note. In regard to the second, which was delivered to the defendants on the 17th of February, 1887, it is alleged that, relying upon the agreement in trust, to indorse and discount or sell the same for cash and forthwith to pay the j)roceeds to the plaintiff, less the discount and commission as aforesaid, and for no other purpose whatsoever, the plaintiff delivered the note to the defendants; that the note was discounted by the bank to whom it was given for that purpose and the proceeds thereof, less the discount, were paid to and received by the defendants, who thereupon used and applied the same in their partnership business. The complaint then alleges a demand of said proceeds, the neglect and refusal of the defendants to pay, and claims damages in the amount of the discount.

These allegations undoubtedly brought the case within the provisions of the section mentioned, and authorized the action in reference to both notes. And such was the decision at the Special Term upon the demurrer as we have seen. It may be well to bear in mind that the word property as used in the Code includes both real and personal property.

The defendants were intrusted with the two notes (the proceeds of which they appropriated) for express alternative purposes, either to procure a discount and remit the proceeds at once to the plaintiff or to return the notes. There was no authority, express or implied, to use them for any other purpose or in any other way, and whatever process was employed to accomplish the object could in no way change the obligation imposed. The mere deposit of the sums received upon the discount of the notes in a bank for the purpose of immediate transmission should not be permitted to ehangp the relative position of the parties or lessen the obligation of the defendants. Such an act would be a mere incident in the mode of transmission and would in no way indicate an intention to extend the credit of the defendants for the sums thus received. Besides that, the discount of both notes was not contemplated, and was, therefore, not authorized by the understanding between the parties, either directly or inferentially. It is quite clear that if the first note was discounted the second was not to be, and vice versa. The contention, therefore, that the deposit in the bank changed the relations of the parties cannot be sustained.

It was doubtless, for the reasons assigned here, that when the counter-claim was interposed, resting on contract alone, the court held, upon demurrer, that it could not avail the defendants in this action for the reason that the action was one in tort; and such is the view also of the learned justice presiding in the court below, who said, in answer to a question put to him, whether the verdict was directed upon the theory of tort or contract: I think the position the plaintiff has taken here is, that the money was received in a fiduciary capacity. I think the allegations of the complaint are sufficient to establish that, and that the plaintiff’s proof is ample to sustain that.”

The defendants’ counsel had insisted that the complaint should be dismissed, upon the ground that the facts proved did not constitute a tort, an action for conversion, nor the existence of the fiduciary relation in respect to either cause of action. The term fiduciary involves the idea of trust and confidence, it refers to the integrity and fidelity of the party trusted rather than to his credit. It contemplates good faith, rather than legal obligation, as the basis of a transaction. (1 Wait’s Pr., 619; Stoll v. King, 8 How., 298.) Where a factor receives money to be invested in a specific thing, and the direction is added that he should not appropriate it to any other purpose, the factor acts in a fiduciary capacity and is liable to be arrested for misappropriating the funds. (Noble v. Prescott, 4 E. D. Smith, 139.) The same rule applies to an agent employed to collect money. (Schudder v. Shiells, 17 How., 420; Burhans v. Casey, 4 Sandf., 707.)

It may be said that the views expressed are in conflict with Hillis v. Bleckert (53 Hun, 499), in which it was held that inasmuch as there was no allegation in the complaint that the money mentioned was received by the defendant in a fiduciary capacity, it was deficient in an essential element, having in view the provisions of section 549 of the Code of Civil Procedure. That case differs from this in that it is an action to recover from an agent moneys received by him and not paid over, and in .which the only suggestion of wrong done is contained in the words in reference .to the sums received, “ but has converted the same to his own use,” which was not sufficient to bring the case within the spirit of the section. And in this case, as we have seen, though there is no allegation in the precise language of the section, there is a charge of wrong-doing with regard to the property entrusted to the defendant, which presents, in substance, the element required.

The struggle in this case was evidently to relieve the defendant from personal arrest, and the efforts of the learned counsel were ceaseless and ingenious, but, unfortunately for his client, must be held to have been unavailing.

The judgment must be affirmed.

Bartlett, J.:

I find it difficult to reconcile the conclusion reached by Mr. Justice Brady, in this case, with the decisions of the General Term of this department in Hillis v. Bleckert (53 Hun, 499) and Bartlett v. Sutorius (25 N. Y. St. Rep., 629). If those cases were correctly decided, it seems to me that the judgment under review on this appeal is erroneous, so far as it assumes to authorize the issue of execution against the person of the defendant.

The proof made out a case of money had and received. The learned trial judge held that the complaint and evidence sufficed to establish the fact that the money was received in a fiduciary capacity. But there is no such express averment in the complaint; and in Bartlett v. Sutorius (supra) we held that in an action to recover money, where it was sought to take the defendant’s body in execution on the ground that he had received the money in a fiduciary capacity, the fact that he so received it must be specifically alleged in the complaint.

In view of the decisions to which I have referred, I do not see how that portion of this judgment can be sustained which provides for the issue of execution against the person of the defendant.

I think the judgment should be modified by striking that provision therefrom, and as thus modified should be affirmed, without costs.

Van Brunt, P. J., concurred.

Judgment modified as directed in opinion (of Bartlett, J.), and as modified affirmed, without costs.


author: Beady, J.: Bartlett, J.:

text:
    SAMUEL D. LUX, Appellant, v. ALEXANDER V. DAVIDSON, Sheriff of the City and County of New York, Respondent.

      Action for conversion by an assignee claiming under a fraudulent assignment, against a sheriff acting under an attachment which was set aside after the action for conversion was began — right of an attaching creditor to attach an assignment — demand.

    In an action brought by an assignee, claiming under a general assignment for the benefit of creditors, to recover for the taking and wrongful conversion of personal property, against a sheriff claiming to hold the same by virtue of an attachment issued against the property of the assignors, it appeared upon the trial that the attachment had been vacated subsequent to the bringing of the action, and also that the assignment was fraudulent as against the creditors of the assignors.

      Held, that as the plaintiff had no title to the property, as against the creditors of his assignors, the assignment being- concededly void as against them, and as the attachment was not vacated until after the action for conversion was commenced, and the plaintiff could, therefore, gain no advantage from the assumed invaliduy of that process when the action was begun, the attachment was a protection to the sheriff.
    That the simple fact that the process of attachment had been set aside as having been erroneously granted, did not relate back so as to change the position of the sheriff at the time he took the goods, and render his act in so doing illegal.
    That the defendant, as an attaching creditor, without proof of a -judgment recovered against the assignors and execution thereon returned unsatisfied, was in a position to attack the assignment.

      Quiere, as to the effect of a demand for the return of the property after the attachment had been vacated.

      Appeal by the plaintiff Samuel D. Lux from a judgment, entered in the office of the clerk of the county of New York on the 19th day of April, 1886, after a trial before the court and a jury at the New York Circuit.

      Rudol/ph Scm/pter, for the appellant.
    lf. Bowks Cocknm, for the respondent.
   Beady, J.:

This action was brought to recover for the wrongful conversion and taking of personal property. The plaintiff claimed to be the owner of it by virtue of a general assignment for the benefit of creditors, made, executed and delivered to him by Samuel Michaelis and Moritz Michaelis under which the plaintiff took immediate possession of the property. The defendant claimed immunity under the law by virtue of an attachment which was duly issued against the property of the assignors, and proposed upon the trial to investigate the bona fides of the assignment as matter of defense. To this the plaintiff objected upon the ground that the attachment had been vacated, and the defendant, therefore, was not in a position to avail himself of the defense suggested. The objection was overruled under exception.

The plaintiff, to fortify the position just stated, offered in evidence orders of the Special and General Terms of the City Court vacating the attachment mentioned on the original papers. They were rejected under exception. The defendant’s counsel admitted the taking of the property under the attachment, and the plaintiff’s counsel admitted, in view of the rulings of the court, that if the bona fides of the assignment could be litigated in this controversy, the assignment would be held fraudulent as against creditors. And this admission raises the only question which springs out of this appeal, and it seems to have been decided against the contention of the appellant.

In Bowe v. Arnold (31 Hun, 258), Judge Daniels said: “But if the seizure made by the sheriff under an attachment shall be questioned by an action in favor of the debtor’s vendee, it may be defended upon allegations and evidence showing the title of the latter to be fraudulent,” citing for this proposition the case of Rinchey v. Stryker (28 N. Y., 45). In the ease of Rinchey v. Stryker the subject was thoroughly discussed, and it was held that a party procuring aii attachment was not to be deemed a mere creditor at large of the defendant after the writ was served, but a creditor having a specific lien upon the goods attached, and, further, that the sheriff, as their bailee, had a like lien, and the right to show that the plaintiff’s title to the attached property was fraudulent as against the attaching creditor.

The proposition sought to be maintained by the appellant, namely, that a creditor could not attack a fraudulent assignment by his debtor until lie had proceeded with his claim to judgment and execution was there discussed, and, although seemingly maintained by some cases, was qualified by Denio, J., in Van Heusen v. Radcliff (17 N. Y., 580), who said : “ When a conveyance is said to be void against creditors, the reference is to such parties when clothed with their judgments and executions or such other titles as the law has provided for the collection of debts.” And Bronson, J , in Noble v. Holmes (5 Hill, 194), said: “The sale could not be impeached by a creditor at large; it must be a creditor having a judgment and execution or some other process which authorized a seizure of the goods.” And in Van Etten v. Hurst (6 Hill, 311)( he said: Before creditors can attack a sale by a debtor for fraud “they must show a judgment as well as execution, or where, as in this case, they proceed by attachment, they must show that the justice had jurisdiction and that the process was regularly issued.”

It is supposed by the appellant that the case of McKinley v. Bowe (97 N. Y., 93) is an adjudication in his favor, and one which sustains his contention with regard to the necessity of having a 'judgment. That case, it may be justly said, is imperfectly reported, but, so far as it can be understood, it seems to have been an action to recover from Bowe, as sheriff, property which he seized upon by virtue of an execution, the plaintiff claiming under a chattel mortgage executed by one Carpenter, the judgment-debtor. The court said that Bowe was a trespasser if he took the property of McKinley upon an execution against Carpenter, and that the other defendants were equally liable since they indemnified the officer and directed the taking. The court further said, whether the court was right in holding that there was no such actual change of possession as made the mortgage void, or whether there was such dispute upon the facts as required a submission to- the jury, they need not then to determine, for the conclusion had been reached that the defendants were not in a position to attack the transfer for fraud, since they did not show themselves to be creditors of Carpenter and prove a judgment against him; and that the only answer made to this difficulty was that the plaintiffs gave no proof of a taking by the defendants, and were obliged to make out their case by resort to the admissions of the answer, which admitted not a wrongful but a rightful taking by virtue of a judgment and execution against Carpenter, which are fully set out in the pleadings. And then the court said, that if the plaintiffs made no case without resort to the answer to prove the taking, there was great force in the contention that they must take the admission as it was made, and not dismember it, but that it was not necessary to decide that question, since, wholly independent of that admission, there was evidence enough to warrant the jury in finding the taking by the defendants. Thus, it was held, that the plaintiff’s case was made out, and that the defendants not having-given proof upon the subject had not put themselves in the position of creditors, and could not assail the plaintiff’s title, therefore, as fraudulent. And the court further naively remarked that both parties tried the case as if they were equally afraid of the truth, the defendants omitting to prove their judgment and the plaintiff giving-no evidence showing the consideration of their note secured by the mortgage. Neither in the proof nor in the opinion of the court is there any suggestion in reference to the effect of an attachment, and the cases to which reference has been made herein are not cited. That case cannot, therefore, be regarded as at all controlling of the question herein involved.

It may be further observed that the plaintiff has no title to the property against the creditors of his assignors, the assignment being admittedly void as against them; and it appears that, although the attachment was vacated, that incident did not occur until after this action was commenced, and the plaintiff can gain no advantage, therefore, from the assumed invalidity of that process when the suit was commenced. Its existence was a protection to the sheriff, under such circumstances, in any event.

The case discussed, therefore, in these several aspects, leaves no doubt of the validity of the judgment appealed from, and it should be affirmed, with costs.

Van Brunt, P. J.,' concurred.

Bartlett, J.:

The property which is the subject of dispute in this action was seized by the sheriff under a warrant of attachment against the members of the firm of S. Michaelis & Co. At the time the goods in question were in the possession of the plaintiff, claiming to be the general assignee of the firm for the benefit of its creditors. He has brought this suit against the sheriff to recover damages on two grounds: First, because he claims that the taking of the property under the attachment was illegal; and, secondly, because he claims that the sheriff wrongfully refused to deliver up the property after the plaintiff had duly demanded that the same should be returned to him.

There is no proof of any demand for a return of the goods after the levy; so that this appeal really turns upon the question whether the original taking by the sheriff was lawful. I am unable to see why it was not. There is a stipulation in the record admitting that the property was taken under the attachment set forth in the answer, and the case was evidently disposed of at the circuit upon the strength of this admission. The attachment was issued in a suit in the City Court against Samuel Michaelis and Moritz Michaelis by Edward Friend et al., and the warrant commanded the present defendant, as sheriff of the city and county of New York, to attach sufficient property of the said Samuel Michaelis and Moritz Michaelis to satisfy the demand of the plaintiffs in that action. The process thus issued to the sheriff constituted ample authority for his action in levying upon any property which he could find belonging to Samuel Michaelis and Moritz Michaelis within the county of New York. For the purposes of this litigation, it is not open to dispute that the property in controversy here was theirs; since it is admitted in the case that if the good faith of the assignment from Samuel Michaelis and Moritz Michaelis to the plaintiff can be litigated in the present action, the assignment is to be deemed fraudulent as against the creditors of the assignors. If the assignment is fraudulent, of course the plaintiff has no title as against the claims of creditors; but he contends that the defendant is not in a position to question his title, inasmuch as that can be done only in behalf of a judgment-creditor or a creditor having an attachment, and the defendant, he says, represents neither.

But at the time of the taking the sheriff certainly did represent an attachment-creditor. There is no suggestion that the attachment was void. As long as it remained in force, therefore, it was a complete justification to the defendant. (Day v. Bach, 87 N. Y., 56.) The simple fact that the process has since been set aside, as having been erroneously granted, does not relate back so as to change the position of the sheriff at the time he took the goods, and render his act in so doing illegal. It might'well affect his rig] it to retain possession of the property, if a return had been demanded subsequently, that is to say, after the attachment was vacated; but prior to that time, in view of the stipulation as to the fraudulent character of the assignment as against creditors, the sheriff held the property as the representative of a creditor having a specific lien thereon by attachment, and his custody was, therefore, lawful. (Rinchey v. Stryker, 28 N. Y., 45.)

As has been suggested, a different question would arise if there were any proof of a demand for the return of the property after the attachment was vacated ; but, on the record before us, I think the case was properly decided below.

I am, therefore, in favor of affirming the judgment.

Judgment, affirmed, with costs.


author: Van Brunt, P., J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. DILWORTH CHOATE, v. GEORGE C. BARRETT, a Justice, etc., of the Court of Oyer and Terminer for the City and County of New York, Respondent.

      Criminal contempt — a reporter of a newspaper who, intending to overhear their deliberations, conceals himself in a jury-room, is guilty thereof — -what act is done in the presence of the court — jeopardy a second time for the same offense.

    A petit jury is a constituent part oí tlie court, and the petit jury-room is an adjunct to the court, and where a person, for the purpose of overhearing- what is said by the members of the jury, in their consultation previous to rendering a verdict, conceals himself in the jury-room and overhears such conversation, he is guilt y of a contempt of court and of disorderly behavior in tlie presence of one of the constituent parts of the court while engaged in the business devolved upon it by law.
    The presence of the judge is not essential to the commission of such a contempt.
    A reporter for a newspaper, who had unlawfully intruded into a jury-room and overheard the consultation of the jury in reference to the verdict to he rendered by it, was discovered and brought before the court by which the facts were ascertained, and it was determined that the court had no jurisdiction to act in the then condition of the ease and lie was discharged. Subsequently, when proper proof ivas presented to the court, an order was issued that he show cause why he should not be punished for a criminal contempt. On the return of this order, it was claimed that the prior proceeding of the court discharging the reporter constituted such a determination as that the relator could not he a second time placed in jeopardy for the same offense.

      Held, that such claim could not be sustained; that although section 10 of the Code of Civil Procedure stales that a contempt committed in the presence of the court may be punished summarily, it does not provide that where the offense has been so committed in the presence of the court, but the judge has failed to see it, he must proceed without proofs or process.
    The fact that, following the definition of a criminal contempt in the Penal Code there occurs the following- words, "which do not appear in the provision upon that subject in the Code of Civil Procedure, namely: “Behavior of a like character committed in the presence * * * of a jury while actually sitting for the trial of a cause, or upon an inquest or other proceeding authorized by law,” does not show that it -was the intention of the legislature to withdraw such conduct from the consideration of the court as a criminal contempt within the provisions of the, Code of Civil Procedure.
    Writ of certiorari directed to issue by an order of April 5,1890, made at. a Special Term of tlie Supreme Court held in the comity of New York, requiring Hon. George C. Barrett, one of the justices of the Supreme Court, assigned to and presiding at the Court of Oyer and Terminer, -to return to the General Term of that court all proceedings had before him, and all orders, papers, proofs, testimony and affidavits concerning the commitment of one .Dilworth Choate for contempt of court. It appeared by the return that while awaiting the end of the judge’s charge a ‘‘World” reporter discovered where the jury so charged would be sent to hold their deliberation and concealed himself in the jury-room, where he remained until the jury entered the room for the purpose of deliberating upon their verdict, and there listened to the deliberation which took place among the members of that body.

      F. R. Ooudert and Albert Reyncoud, for the relator.

      John W. Goff.\ for the respondent.
   Van Brunt, P., J. :

Little need be added to the opinion rendered by Mr. Justice Barrett upon the return of the order to show cause why the relator should not be punished for contempt.

We think that it is therein conclusively established that a petit jury is a body directly and immediately a constituent part of the court, and the petit jury-room an adjunct to the court; and that the petit jury is as much a part of the court as the judge himself who presides.

The judge is not the court; the court-room is not the court; the jury-room is not the court; nor is the petit jury the court. But the court consists of all these combined; and wherever any constituent part of the court is engaged in the prosecution of the business of the court according to law, there' the court is present.

It might as well be said that a contempt committed before a judge holding a court, and conducting the business devolved upon the court by law in the absence of the jury, is not committed in the immediate view and presence of the court because of the absence of the jury, a constituent part of the court, as to say that a contempt committed in the presence of the jury while they are engaged in performing the functions devolved upon them by law, and which must be performed out of the sight and hearing of the judge or anybody else, is not committed in the immediate view and presence of the court.

It seems to us to be clear that any disorderly, contemptuous or insolent behavior committed in the presence of any one of the constituent parts of the court while engaged in the business devolved upon it by law must be a contempt committed in the immediate view and presence of the court. If the presence of the judge is essential to the commission of a contempt, we can see no reason why the presence of the jury is not equally indispensable, because each are necessary constituent parts of the court, and each have functions which may in one case, and must in the other, be performed without the presence of both.

It would seem that the provisions of law regulating criminal con-tempts. were intended to protect the court during the whole, and each and every part, of its sittings from disorderly, contemptuous or insolent behavior.

There is another point, however, raised by the relator which requires, perhaps, a more extended consideration, not because there is any doubt as to the disposition which should be made of the question, but in order that the facts may distinctly appear. It is urged that the relator could not be a second time placed in jeopardy for the same offense under the same provision of law. The facts attending the commission of the contempt seem to be as follows :

There had been on trial, proceeding for several days before the Court of Oyer and Terminer, a criminal action which had excited considerable public attention. The trial had so far progressed that the evidence had been finished, the counsel had summed up, the court had charged the jury, and the jury had retired to the jury-room for deliberation. The judge presiding at the trial had left the bench and was awaiting the deliberations of the jury in another room in the court-house. After the jury had been deliberating for a period of about two and a half hours, and had written a communication to the presiding judge requesting some further instructions in regard to the law, the jurors discovered the relator, a reporter of one of the daily newspapers, concealed behind some curtains in the jury-room, where he had, prior to the entry of the jury into the jury-room, secreted himself for the purpose of taking notes of their deliberations and publishing the same in the newspaper which he represented. Immediately upon this discovery the jurors called in one of the officers of the court who had charge of the jury, and delivered this person into his custody. The officer immediately notified the judge, who returned to the court-room, and the relator was brought before him. He was questioned by the judge and was ordered to deliver up the notes which he had taken of the deliberations of the jury, and did so. He -was requested to promise not to publish any of the deliberations of the jury, which he refused to do. He was then discharged from custody, and published that which he had thus stó'len. Subsequently an order to show cause was issued by the said judge why he should not be punished for a criminal contempt. The relator presented affidavits denying that he had committed any contempt or intended to commit any. After consideration the relator was adjudged guilty of a criminal contempt, and a commitment was issued by the Court of Oyer and Terminer directing the sheriff of the county of New York to hold him in custody in the common jail for thirty days, and in default of payment of a fine of $250 for thirty days additional.

Upon the.hearing of the order to show cause, the relator objected that he had already been arraigned and discharged for the same alleged offense, also, that the act with which he was charged does not constitute a criminal contempt under the provisions relative thereto, and that the court had no jurisdiction of the premises.

It is undoubtedly true that a person cannot be a second time placed in jeopardy for the same offense under the same provision of law. And it is urged, upon the part of the relator, that the first proceedings, however summary, were as fully complete in themselves and as thorough proceedings to punish for the alleged offense as though they had been conducted with all the formalities of a trial before a jury and a consequent dismissal.

This proposition we think to be entirely erroneous. There was no trial at all. The relator was brought before the court, -in order that the court might make an inquiry into the disturbance which had arisen and by which the deliberations of the jury had been interfered with. It was necessary for the court to ascertain whether such a condition of affairs had arisen as to preclude the jury from the further consideration of the questions which had been committed to them for decision. All that the court did in the investigation which it conducted was to ascertain the facts and determine whether those facts called upon it then and there to act, and if so, what action was necessary. The judge, upon ascertaining the facts, released the relator from custody because he was of the opinion that he had no jurisdiction to act in the then position of the case; and when proof was presented before the judge upon which he could call upon the relator to answer, he did so call, and the relator having been adjudged guilty of a flagrant contempt, he was punished therefor. The judge in no manner determined, in a proceeding of which he had entertained jurisdiction, that the relator should not be punished. All that he determined was that, in the then condition of the case, he was not m a position to adjudicate thereon, and the relator was permitted to depart.

It is true that the judge said to the relator that if he had taken any notes, “ I direct you to produce them, and if you refuse, I then will act,” but nothing was said as to what action could or would be taken. The statement of the learned judge in regard to the decision in the Munsell Case ivas a mere expression of opinion, not an adjudication. It could not possibly bfe an adjudication unless he had acquired jurisdiction of the relator and passed upon his offense. The relator, therefore, was not put in jeopardy by reason of the proceedings taken upon the night when his disgraceful action was discovered. •

It is true that section 10 of the Code of Civil Procedure states that a contempt committed in the presence of the court may be punished summarily, but it does not say that it must be so punished, or that, although the offense has been so committed in the presence of the court, but the judge has failed to see the same, he must proceed without proofs or process. The fallacy upon which the whole of this point rests seems to be, that an offense cannot be committed in the presence of the court if the judge does not see it, and cannot assert the facts in his warrant of commitment of his own knowledge that the offense has been committed.

Suppose, for example, that during the progress of a trial, while the judge is on the bench and the jury in its seat, a communication is made to one of the jurymen which the judge does not see, but of which he is informed. Can he commit the offender without some proof of the commission of the offense ? And yet even the most critical would say that this offense was committed in his immediate presence, and still he would be entirely unable to certify of his own knowledge that the offense had been committed. It would be necessary that he should have proof, and he is entitled to the time necessary to enable him to have the proof presented before him in a legal and formal manner.

Our attention is called to the difference between the definitions of a criminal contempt given in the Penal Code and the Code of Civil Procedure. In both a criminal contempt is defined to be disorderly, contemptuous or insolent behavior committed during the sitting of the court, in its immediate view and presence, and directly tending to interrupt its proceedings or impair the respect due to its authority. In the Penal Code (§ 143) is contained the further definition: “ Behavior of a like character committed in the presence * * * of a jury while actually sitting for the trial of a cause, or upon an inquest or other proceeding authorized by law.” This subdivision does not appear in the Code of Civil Procedure, and it is urged that it was the intention of the legislature to withdraw such conduct from the consideration of the courts as a criminal contempt. But giving the broadest interpretation possible to the subdivision, what the first clause cited of this provision was intended to mean is not entirely apparent, because it is difficult to see how a contempt could be committed in the presence of a jury, while actually sitting for the trial of a cause, without being committed in the presence of the court, which.is provided for in the previous subdivision, as juries do not sit in the trial of causes in the absence of the court. If the Code of Civil Procedure had been passed after the Penal Code, the argument might, perhaps, have had some force. But the Code of Civil Procedure was passed first, and the right to punish a contempt committed in the presence of the jury depended upon the well-accepted construction that, as the jury were a part of the court, contempts committed before them were committed in the presence of the court. In the Penal Code the codifiers seem to have attempted^ without much success, to leave no possible ground for argument, so far as that Code was concerned, that the jury in its deliberations was a part of the court. It was by no means an expression of the legislative intent or the legislative opinion that such commitment did not come within the provisions of subdivision 1 of section 8 of the Code of Civil Procedure.

Upon the whole case, therefore, it seems to ns that the court had jurisdiction to punish the relator for the contempt which he had committed, and that the writ of certiorari should be dismissed, with costs.

Brady and O’Brien, JJ., concurred.

Writ of certiorari dismissed, with costs.


author: Williams, J.: Martin, J.

text:
    THOMAS H. BUTLER, Appellant, v. THE CITY OF OSWEGO and HENRY M. WHITNEY, Respondents.

      Assessment of real property to a non-resident — in an action to set it aside the burden of shaming non-residence rests on the plaintiff — one request to find several facts.

    Under section. 2 of title 2 of chapter 13 of part 1 of the Revised Statutes, as amended by chapter 152 of 1878, real property cannot, in any case, be assessed to a non-resident.

      Johnson v. Lea/m (30 Barb., 616), not followed.
    In an action brought to set aside an assessment upon real property as illegal, and to recover back the taxes and other moneys paid on account thereof, the burden of proving the fact of the non-residence of a party to whom the land was assessed rests upon the plaintiff.
    A request to find one fact, coupled with other facts which latter, under the evidence, the court could not properly find, does not present the question as to whether the court erred in refusing to find the one fact requested to be found, which might have been properly found to have been established by the evidence.
    Appeal, by the plaintiff from a judgment, entered in tire office of the cleric of the county of Oswego on the 28th day of June, 1889, after a trial before the court at the Oswego Special Term, at which a decision was rendered in favor of the defendants directing that the complaint be dismissed, with costs.
    The action was brought to set aside an alleged illegal assessment upon real property, and to recover back taxes and other moneys paid out on account thereof. The assessment was laid under section 2 of title 2 of chapter 13 of part 1 of the Revised Statutes, as amended by chapter 152 of the Laws of 1878. The findings of fact by the trial court were substantially as follows:
    The assessment was made in 1864 upon real estate in the second ward of Oswego, to and in the name of one William Averill, and the tax was levied thereon. The amount of the tax was not paid, but was returned as unpaid. The property was advertised and sold for the payment of the tax, amounting to eight dollars and twenty-five cents, on the 28th of October, 1865. The defendant Whitney bid in the property, paid the amount of the tax, and received the usual certificate. In 1867 plaintiff’s wife purchased the property of one Charles H. Bonnell, and since then she and her husband have occupied the premises, personally or hy tenants. In April, 1885, notice of the tax sale, and a requisition to redeem within three months, signed by defendant Whitney, was served upon Lewis, a tenant, and he sent it to plaintiff, who was until then ignorant of the assessment and sale. In May or June, 1885, the plaintiff sent his agent, Hamilton, thirty-three dollars with which to settle the tax claim of defendant Whitney, and Hamilton paid Whitney from these moneys twenty-seven dollars, and thereupon, August 12, 1885, Whitney surrendered the certificate of sale to the city clerk, with direction to cancel the same of record, and the same was canceled accordingly on the same day. The evidence did not show whether the property when assessed was occupied or unoccupied, who the owner then was, or whether such owner was a resident or non-resident of the city.
    In the spring or summer of 1888 the plaintiff first discovered the facts upon which he claims the assessment was illegal, and then he demanded of Whitney repayment of the money that had been paid him, -which was refused, and this action was brought September 6, 1888. The court was requested in behalf of plaintiff to find other facts, but declined to do so. The only requests which seem to be material to the questions involved upon this appeal are the first and sixth, which read as follows:
    “ 1st. As a matter of ‘fact, under the evidence, that lot No. 287, in Block 53, 36 x 66, 100 feet front, north-west corner, was erroneously assessed to one William Averill, as the owner or occupant thereof, and as resident property in the year 1864, as appears hy the assessment-rolls of the Second and Fourth wards of the city of Oswego for that year, for $8.25.
    “ 6th. That as a further or additional finding of fact that William Averill was not in the year A. D. 1864, nor at any time, either the owner or occupant of the premises described in the. complaint, and was not at any time a resident of the city of Oswego.”
    The decision was based upon the legal propositions that the plaintiff had the burden of showing that the assessment and tax were illegal, and had failed to make such proof.

      W. IT. Gmdenier, for the appellant:

      Thomas-H. King, for the city, respondent.

      Charles Rhodes, for Whitney, respondent.
   Williams, J.:

The only ground upon which the plaintiff, under the evidence, could claim the assessment to be illegal was, that William Averill, to whom it was made, was a non-resident of the city of Oswego. There was no proof the person to whom it was assessed was not the owner, and it was not shown whether the property was occupied or not. The mere fact it appeared to have been twice assessed on the same roll did not show this was the invalid and the other the valid assessment. Nor did the fact of the payment of the tax levied upon the other assessment show that was the valid and this was the invalid assessment. In order to determine which was the valid assessment it would need to be shown who was the owner or occupant of the property, and such evidence was not given. There seems to be no ground upon which the assessment could have been held invalid, unless it be that Averill, to whom it was assessed, was a non-resident.

It was held in Johnson v. Learn (30 Barb., 616), decided in 1859, that land occupied by a person, not the owner, could be assessed to the owner though a non-resident, the court saying: “ Before the amendment of 1851, the second section read as follows: § 2. ‘Land owned by a person residing in the town or ward where the saone is situated, but occupied by another person, may be assessed in the name of the owner or occupant.’ ”

■Since such amendment it reads as follows: “ Land occupied by a person other than the owner may be assessed to the owner, or occupa/nt, or as non-resident lands.”

The change in this section is significant and important. * -x- * ft jg obvious that the statute, as amended, empowers the assessors of a town to assess lands therein situated, occupied by a person other than the owner (though owned by a non-resident), to the owner, or to the occupant, or as non-resident lands. * * * This leaves to the assessors a reasonable discretion in such cases, to be exercised with a view to the mode most likely to insure the prompt and certain collection of the tax.”

In Buffalo and State Line Railroad Company v. Supervisors of Erie County (48 N. Y., 101, decided in 1871), Earl, J., says, with reference to these provisions of the statute: “ Section 2 provides that land occupied by a person other than the owner may be assessed to the owner, or occupant, or as non-resident land. This section undoubtedly means that when the owner and occupant both reside in the town where the land is situated the land may be assessed to either. When the owner does not reside in the town, and the occupant does, it must be assessed to the occupant; and when neither of them reside in the town, it must be assessed as non-resident land. * * * Taking all the provisions, of the statute together, it seepas to me quite plain that there is no authority for placing upon the assessment-roll for a tax, in personam, the name of any person not an inhabitant of the town.”

In 1818, by chapter 152, this section 2 was amended so as to read as follows : “ Lands occupied by a person other than the owner, may be assessed to the occupant, as lands of non-residents, or, if the otoner resides in the country in which such lands are located, to such owner.”

In Hilton v. Fonda (86 N. Y., 347, decided in 1881) Folger, Ch. J., says, with reference to the provisions of the statute, in question: “It is now seen that the assessors of a town have no power by law to assess lands, though lying in their town, to one who is not a resident of that town or of their, county. They have no jurisdiction of his person whereby they can lawfully initiate a charge against him personally for a tax because of lands owned by him in their town. They have jurisdiction to value the landsj none to value them against him. The jurisdiction to value the lands as those of a non-resident does not give jurisdiction to assess them to the owner, he being a non-resident.”

In Stewart v. Crysler (100 N. Y., 382, decided in 1885), Finch, J., says, with reference to these provisions of the statute : “ Before the amendment of 1878, chapter 152, the proper construction of the enactment had been determined in this court. (48 N. Y., 101.) It was ruled that when the owner and occupant both reside in the town where the land is situated, it may be assessed to either; where the owner does not reside in the town, but there is an occu • pant who does, it must be assessed to the occupant; and when neither of them reside in the town it must be assessed as non-resident land. The statute as amended (in 1878) passed under our view (in Hilton v. Fonda, 86 N. Y., 346). The result of that review was stated to be 'that the assessors of a town have no power by law to assess lands, though lying in their town, to one who is not a resident of that town or of their county.’ ”

The law must, therefore, be regarded as settled, that property cannot be assessed to a non-resident; and prior to the act of 1878 could not be assessed to a person unless he was a resident of the city in which the assessment was made. The doctrine laid down in 30 Barbour was incorrect. So that in this case the assessment was invalid if William Averill, the person to whom it was made, was not a resident of the city of Oswego. The plaintiff, however, had the burden of proving the fact of non-residence.

There was some evidence given on the trial upon this question by plaintiff, but it was not very satisfactory. At one moment he seemed to be testifying from what Averill had told him and at another from his own knowledge. The trial court did not find the fact of non-residence. The plaintiff only requested the fact to be found in connection with other facts. There was no request as to this fact alone. The court could not, under the evidence, find the other facts as requested, and, therefore, properly refused to find the whole, to which an exception was taken. It cannot be said such an exception raises the question of error in refusing to find as to the fact of non-residence alone. But even if it does, I should be unwilling to reverse the judgment in the case because the trial court refused to find this fact upon the evidence. The credibility of the witness and the effect to be given to his evidence was for the trial court, and the court might well have refused to credit the knowledge or truthfulness of the witness.

I think, as found by the trial court, there was no case made out showing the invalidity of-the assessment, and the complaint was properly dismissed, with costs.

The judgment should be affirmed, with costs.

Hardin, P. J., concurred.

Martin, J.

(dissenting):

While I concur with my brother Williams in his conclusion that the assessment in cpiestion was invalid if Averill was a non-resident, and that the burden of establishing that fact was upon the plaintiff, I am unable to concur in that portion of the opinion which results in the conclusion that the judgment should be affirmed.

It is quite manifest that the learned trial justice misapprehended the law applicable to this case; that, by reason thereof, he deemed the non-residence of Averill as insufficient to render the assessment invalid, and for that reason alone, and not because he discredited the plaintiff’s evidence, he failed to find upon the question of Aver-ill’s non-residence. His opinion clearly shows this, as he says: “ The evidence authorizes the finding that Averill was non-resident, but that is not enough.” Again, he says: “ The plaintiff was bound to also show either that the lands were unoccupied, and, therefore, non-resident, if Averill was the owner, or that Averill washiot the owner.”

The proof of Averill’s non-residence was wholly undisputed. It is true this was proved by the testimony of an interested party, and the court was not bound to refrain from exercising its judgment or to blindly adopt his testimony. But when the court says that the evidence authorizes the finding that he was a non-resident, it becomes clearly manifest that the testimony was considered worthy of credit, and that the court would have so found but for its misconception of the law.

It may be that no exception was taken by the appellant which pointedly raised this question ; but, be that as it may, this court has the power, and it is its duty, upon an examination of the whole case, to determine whether the decision was against the weight of evidence and. contrary to law and justice, and, if of the opinion that it was, to grant a new trial. (Whitaker v. D. and H. C. Co., 22 N. Y. St. Rep., 409; Mandeville v. Marvin, 30 Hun, 282, and cases cited in opinions.)

I am of the opinion that justice requires a reversal of the judgment, and that a new trial be granted.

Judgment affirmed, with costs.