author:
Van Brunt, P, J.:
      Parker, J.

text:
    The People of the State of New York, Respondent, v. Sara B. Chase, Appellant.

      Dying declarations — their admissibility depends on the facts of each case.

    To render dying declarations admissible in evidence it is not sufficient to show that the declarant believed he was about to die, hut it must also be proved that he was at the time without any hope of recovery ; the fact that the declarant lived nearly three days after the making of the declaration would have little effect in determining the question as to the admissibility of such, declarations.
    It is not necessary that any specific words or phrases should be used by a declarant, exhibiting his condition of mind, in order to render a dying declaration admissible in evidence; the condition of mind of the declarant must be established by the facts and circumstances which surround each individual case.
    (Parker, J., dissenting, on the ground that the facts in this case did not show such condition of mind.}

      Appeal by the defendant, Sara B. Chase, from a judgment of the Court of General Sessions, held in and for the county of New York on the léth day of June, 1893, convicting the .defendant of the crime of manslaughter, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial.

      J. E. Graylill, for the appellant.

      John D. Lindsay, for the respondent.
   Van Brunt, P, J.:

Ve entirely agree with the rule laid down by Mr. Justice Parker in his opinion governing the admission of dying declarations. But we do not think he gives sufficient force to the testimony showing the condition of mind of the deceased at the time of making the declaration, the admission of which is considered fatal to the conviction in the case at bar. We think that had death followed quickly after the making of the declaration in question no doubt could possibly have arisen but that the witness showed that condition of mind in the deceased which justified the court in admitting as evidence a dying declaration. But the fact that the deceased lived nearly three days after making the declaration naturally raises a doubt which otherwise would not have existed. Under such circumstances it does not seem so certain that the declaration was made under the shadow of impending dissolution as where death follows speedily thereafter. This, however, should have but little effect in determining ■ the question as to the admissibility of the declaration. It is the condition of mind of the declarant which determines that question. If it appears that the declarant is conscious of impending death, and without expectation or hope of recovery, even if the final event is postponed longer than had been anticipated, such postponement in no manner affects the condition of mind of the declarant at the time of the making of the declaration ; nor is the situation of the declarant less solemn and awful, nor is every motive to falsity less completely silent. Wo think, therefore, upon a consideration of the testimony in question, that at the time the declarant made the declaration which is the subject of ci’iticism upon this appeal it appeared conclusively that she believed her situation hopeless ; that she believed that death was at hand, and that she was without expectation or hope of recovery.

It is not necessary that any specific words or phrases shall be used by the declarant to exhibit the condition of mind requisite to make a dying declaration admissible. But the question to be determined is, was the court justified in believing, from the nature of the evidence, that her condition of mind was such as the rule which wo have approved requires ? Therefore, in different cases there are variations in the situation and changes of expression, and hence no fixed or absolute standard or formula can be established; but the question of the condition of mind must be determined by the facts and circumstances which surround each individual case.

In the case at bar the evidence upon which the dying declaration was admitted was the testimony of the mother of the deceased, who naturally was agitated because of the impending death of her child; and it is not strange that she was not able to be absolutely certain in regard to the phraseology which was used by her daughter in connection with the dying declaration indicating her state of mind. But the fact that she was not certain of the precise language that was used does not, in our judgment, detract from the value of her testimony, but rather impresses us with the idea that the witness was not willing to make her statement any more exact than her absolute recollection required. But, although she may not have been certain of the precise words which were used by her daughter, it is evident that she honestly gave the substance of that which the daughter said, and that that substance indicated that the daughter knew that she had to die, and that there was no hope of her recovery. This being the deduction which, in our opinion, may not only properly, but must inevitably be drawn from an examination of this witness’ testimony, we think the dying declaration was admissible.

We feel all the force of the argument that death did not follow speedily after the making of this declaration, but it appears from the evidence in the case that both the mother and the daughter did not know but that the next minute death would occur. It seems to us, therefore, that the declaration was made under the circumstances which the law requires in order that it should be admitted in evidence against a defendant charged with crime.

The judgment should be affirmed.

Folleto, J., concurred.

Parker, J.

(dissenting):

Formerly it was the rule that declarations were admissible as dying declarations if made when in extremis and under sense of impending dissolution. Later, the conclusion was reached by the courts that the mere sense of impending death did not constitute such a guaranty of truthfulness as to warrant an omission of the oath and cross-examination.

This conclusion found expression in Woodcock's Case (1 Leach, 502), Lord Chief Baron Eyre asserting “ that the only state which could safely be accepted as sufficient to render the declarations admissible is the state in which every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so 'awful • is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.”

An examination of People v. Smith (104 N. Y. 491-502) and of the authorities collated in a note to People v. Evans (4 N. Y. Crim. Rep. 218) makes it apparent that the rule is authoritatively established that to render dying declarations admissible it will not suffice to show that the declarant believed he was about to die, but it must also be proved that he was at the time without any hope of recovery.

Judge Andrews, in People v. Smith (supra), stated the rule as follows: “ Before admitting them it shall be made clearly to appear that the declarant was in fact resting under the shadow of death from the fatal stroke, and so believed, entertaining no hope of recovery.”

"Whether declarations are made under circumstances which entitle them to be received in evidence under the rule stated presents a question which the court has to consider and determine.

It is not bound to follow blindly the statement of a declarant that he believes he is about to die and is without any hope of recovery. If the other facts proved convince the court that he did at the time have such hope, notwithstanding he went through the formality of saying he did not, the declarations could not be received.

Neither is it necessary that the declarant should say in so many words, “ I believe I am about to die, and I am without any hope of recovery,” in order to entitle the declarations to be received in evidence. It is sufficient if bis conduct and bis statement, considered together, are of such a character as should convince the court that, at the time of making the declarations, the declarant believed that he was about to die, and that from him all hope of recovery had departed.

When in the progress of the trial the district attorney had reached the point where he was prepared to introduce in evidence what he claimed to be the dying declarations of Miss Manzoui, the court gave the jury a recess in order that a preliminary examination might be had in their absence which should enable the court to pass upon its admissibility.

This action was wisely taken for the purpose -of preventing any injustice resulting to the defendant, in the event that the evidence offered on the part of the People should not be admissible.

The witness called for that purpose was Eliza Biggert, the mother of the dead girl. In response to some of the questions put by the district attorney she said: “ Q. What did she say ? A. She said, Mamma, I believe I am going to die; I would like to live to show you what a good girl I could be, but I won’t have the chance.’ The Court: Q. You-were alone with your daughter at the time? A. Yes, sir. She said: ‘I know ! shall die. Donovan, mamma, Florence Donovan, has been the cause of my trouble. lie wanted me to have an operation performed, and get rid of the child. First, I went to Mrs. Diemer’s. She operated on me three times, and then she sent me to Mrs. Chase. She operated on me once, and the baby was born. Florence Donovan’s reason for wanting me to do so wras that he couldn’t support me and give me as good a home as I had, and he gave me the money to get rid of the child.’ There is something else: When he first knew, when Florence first knew, of my condition, he was to marry me and take me away, and so deceive the public, if the child lived, as to the age of it; when he came home he had lost his position or was about to lose it. Then he said that he had lost his position and could not take care of her.’ The Court: Q. Or was about to lose it? A. Yes, sir; and was about to lose it. Q. Now, which do you mean to make it, rnadame? A. That he was about to lose it, but hadn’t yet at the time. Q. That he was about to lose his position, and could not take care of her at the time? A. No, sir. Q. Then 1 will take it out; that lie had lost his position? A. Yes, sir ; and it was his suggestion then that she had the operation performed. Q. Now, you are quoting her, are you? I know it is hard work. A. Yes, sir; it is hard work. District Attorney: Q. Now, have you stated all that Maggie said that you recollect? A. No, sir; I think I haven’t.”

On cross-examination she testified in part: “ Defendant’s Counsel : Q. Was not your daughter at the time in regard to which you have just testified in a very weak condition? A. No, sir; she was very strong. When she was dying .she sat right up in the bed and' reached over like this (illustrating) and took hold of the mantelpiece, and raised herself right up in a sitting position and was in a sitting position until she died. The Court: Q. And that was some time after that she died? A. Yes, sir; that was on the 10th, and she died on the 13th. Q. Could you tell that as indicative of her strength at that time? A. Yes, sir; she was very strong. Defendant’s Counsel: Q. Well, on that Friday she seemed pretty strong? A. Yes, sir; so strong that she could get out of bed if we would let her, herself. Q. Did you notice any' remarks made by your daughter which would ordinarily be termed flighty during the period immediately preceding this declaration ? A. No, sir; I don’t know as I did. At times if she woke up .she might talk a little, but when you questioned her she was just as bright as she could be. She understood everything and knew everything. Q. Didn’t she talk rather at random at times? A. Sometimes. Q. Immediately around this period? A. No, sir; no more at that period, nor as much as toward the last. As she grew nearer her death she seemed to grow clearer. Q. Did she talk about any subject in a desultory way ? A. No, sir. Q. Did she state to you that she had absolutely no hope of recovery? A. Yes, sir; she did. Q. Then, when you stated that you had given all that she said, that was not the case — ■ she said more, then ? A. She did, sir. Q. When you stated, in giving her declaration, that you had given it all, she still said this, which you have not given ? A. I think I said that; didn’t I ? The Court: Q. No; did she use those very words? A. Yes, sir. Q. That she had no hope of recovery ? A. Yes, sir. Q. Did she use the words ‘hope of recovery?’ A. No; she said: ‘Hope of getting well.’ Q. Then she didn’t say that she had no hope of recovery? A. No, sir; I supposed it meant the same thing. Q. No; we want her .exact words. She said that she had no hope of getting well ? A. Yes, sir. Q. And did she use the word ‘hope?’ A. Yes, sir; I am sure she did. Defendant’s Counsel: Now, are you absolutely sure that she made use of that expression ? A. She did; she said that; but she might have said it in a little different words. The Court: Q. Now, that is what we want. If it was in different words, counsel is entitled to them ? A. I think I did say before what she .said, that she hoped to get well, but she believed she would not get well. I think those are the words that I used.- She had no chancel believe — no chance. The Court: Q. Then you don’t Say that she said ‘hoped?’ A. No, sir; ‘no chance to get well;’ that is it. Defendant’s Counsel: Q. Then you now change the wording of the •declaration as heretofore given by you ? A. I don’t know; I don’t know whether I change it or not. Q. You change it now, in accordance with your last answer ? A. I don’t know that I change it; I forget what I said before. Q. Very well; what did she say in regard to her hope of recovery? Now, the exact words? Don’t answer the question immediately, but think and give us the exact words that she said ? A. She said that she would like to recover. ‘ I would like to live, but I know I can’t live,’ or ‘ I have no —’ just let me think a moment — ‘ but I know I cañ’t.’ I think that was the word. Q.. Then you are not sure as to the exact words? A. I will remember it in a minute or so. ■ I will think. She said, ‘ Mamma, I would like to live, but I know I can’t live, to show you what a good girl I could be yet.’ Q. Did she say that she expected to die then? A. Yes, sir; that she knew she couldn’t live. Q. Did she say how long she expected to live? A. No, sir; no one could tell that. Q. She didn’t'make the statement, then, to you with death immediately staring her in the face? You were not under the impression that she was going to die as soon as she uttered the words? A. Well, I was under the impression that she would •die at any minute. Q. Well, was she under that impression, from your conversation ? A. Well, I think she must have been, or she couldn’t speak like that. She wouldn’t make use of that if she didn’t think so. Q. Well, she didn’t say anything that indicated that she expected to die immediately ? A. Well, she didn’t give me the minute or the hour. She said that she believed that she would die. Q. That slie could not live? A. Yes, sir. Q. She didn’t say that she had no hope of recovery ? A. No, sir; I don’t believe that she said that. Q. She didn’t say when she expected to die ? A. No, sir; I don’t think she could say that. Q. Did I understand you to say that, at this time, she could get up and go around the room ? A. If we let her; she was so strong; she was so strong up to the very last.”

The trial court, at the close of the examination, ruled that the declarations were admissible, and having in mind that experience induces appellate courts to appreciate the superior opportunities afforded to a trial court for rightly passing upon the sufficiency of preliminary proof, I have reached a different conclusion only after careful consideration and consultation.

I am unable, after reading the evidence, to say that I am convinced that Miss Manzoni had no hope of recovery when she made the declarations to her mother.

It is true that she said, “ Mamma, I believe I am going to die; I would like to live to show you what a good girl I could- be, but I know I won’t have the chance.”

The tone of voice and accentuation with which this sentence was delivered would not unlikely have enabled the listener to determine whether she was wholly without hope of recovery. But neither the trial court nor this court had any assistance of that character. Those words could well be spoken by one dreading and fearing a fatal termination, and yet having hope that her - usual good health and strength of body would enable her to pass the crisis safely.

It does not appear that prior to that time she had been told by any one that there was no hope for her. Indeed, it does not appear that she had been warned that the result of her illness might prove fatal. It appears from the mother’s answers on cross-examination that at the moment of making the declarations she was “ very strong — so strong that she could get out of bed if we would let her herself.” This was three days before her death, and from that time until almost her last hour her physical strength seems to have been remarkably well sustained.

Is it likely that one so young and strong, without warning from any source, would abandon all hope ? Possibly; but it will not be presumed; it must be proved. Instead, we find the witness testifying that she said that she hoped to get well, but she believed that she would not get well,” a statement which would have been sufficient under the old rule, as we have observed, but wholly inadequate to-meet the requirements of the one now established and rigorously enforced by the courts. Other portions of her testimony, it is true, tended to show that she could not recall that her daughter had said that she hoped to get well. But the fact that she contradicted herself in that and other respects does not tend to strengthen the confidence of the court in her testimony, upon which the People solely relied as a foundation for the admission of the declarations so far considered.

This is said in no unkindness, for it is easy to understand that a grief-stricken mother would not be able to accurately recall the words of her child, delivered under the circumstances surrounding the interview about which she testified. Especially so, when at the time she did not appreciate the necessity of carefully treasuring up every word and act, in order that ultimately they might tend to sub-serve the ends of justice.

I advise a reversal of the judgment,

Judgment affirmed.


source: Caselaw Access Project

author: Follett, J.:

license: Public Domain

text:
    Louisa Stokes, Appellant, v. Laura Pease, as Executrix, etc., of Mary Ann Banks, Deceased, Respondent.

      Action by a married woman for services — when maintainable — preswmption that her services belong to her husband — agreement that services shall be provided for by will.

    Under the provisions of section 2 of chapter 90 of the Laws of 1860, and of section 1 of chapter 381 of the Laws of 1884, if a married woman, with the knowledge of her husband, renders services to a third person, pursuant to a contract for compensation, she may maintain an action to recover the price agreed upon or the value of the services rendered.
    The common-law presumption that the services of a wife belong to her husband exists notwithstanding the provisions of chapter 90 of the Laws of 1860 and chapter 381 of the Laws of 1884, but such presumption may be rebutted.
    When services are rendered under an agreement that compensation for them shall be made by will, which is not done, the value of the services may be recovered against the decedent’s estate.

      Appeal by tbe plaintiff, Louisa Stokes, from a judgment of tbe Supreme Court in favor of the defendant, entered in tbe office of tbe clerk of tbe county of New York on tbe 20th day of January, 1894, upon tbe report of a referee appointed under section 2J18 of tbe Code of Civil Procedure.

      T. MeGants Stewart, for tbe appellant.

      William E. Wyatt, for tbe respondent.
   Follett, J.:

Since some time anterior to February 1, 1888, tbe plaintiff has been a married woman, residing with ber husband at No. 125 West Twenty-seventh street. Mrs. Mary Ann Banks, a widow, and tbe plaintiff were sisters. For many years prior to ber death Mrs. Banks was a paralytic and unable to care for herself. From February 1, 1888, until August 1, 1891 — three years and six mouths — she was cared for by tbe plaintiff as a member of her family, at No. 125 West Twenty-seventh street, under an agreement made with tbe plaintiff that she would give and devise ber property to tbe plaintiff. April'15, 1893, Mrs. Banks died leaving a will which was probated June 2, 1893, and letters testamentary thereon were issued to tbe defendant. Testatrix left an estate of $1,300. On tbe 16th of June, 1893, tbe plaintiff presented a claim for twenty dollars a week for ber services as nurse from February 1, 1891, which was rejected, and the claim was referred pursuant to the statute. There is no dispute about tbe facts of tbe case. It was proved that the testatrix agreed with this plaintiff to compensate her for ber care by bequeathing to ber her property. That the care was rendered is‘conceded, together with the fact that nothing has been paid therefor, and that the testatrix'bequeathed no part of ber estate to tbe plaintiff. The referee dismissed tbe claim and ordered a judgment against tbe plaintiff, upon the theory that she being a married woman her services belonged to ber husband, and that they could not be recovered in ber own name. In this, under tbe facts proved, we think be erred.

Section 2 of chapter 90, Laws 1860, provides:

“ § 2. A married woman may bargain, sell, assign and transfer her separate personal property, and carry on any trade or business, and perform any labor or services on ber sole and separate account, and the earnings of any married woman from her trade, business, labor or services shall be hér sole and separate property, and may be used or invested by her in her own name.”

Chapter 381 of the Laws of 1884 provides :

“ § 1. A married woman may contract to the same extent, with like effect and in the same form as if unmarried, and she and her separate estate shall be liable thereon, whether such contract relates to her separate business or estate or otherwise, and in no case shall a charge upon her separate estate be necessary.”

Under these statutes if a' married woman, with the knowledge of her husband, renders services to a third person, pursuant to a contract for compensation, she may maintain an action to recover the price agreed or the value of the services rendered. (Adams v. Curtis, 4 Lans. 164; Sheldon v. Button, 5 Hun, 110; Snow v. Cable, 19 id. 280; Rowe v. Comley, 11 Daly, 317; Matter of Kinmer & Gay, 14 N. Y. St. Repr. 618; Brooks v. Schwerin, 54 N. Y. 343; Birkbeck v. Ackroyd, 74 id. 356.)

In addition to the express contract between the plaintiff and the testatrix it appears that the former was engaged in business on her own account as a laundress, and it was shown on the trial that she was compelled to hire extra service because her time was occupied in caring for her sister.

The contract and the facts bring this case within those above cited and without Reynolds v. Robinson (64 N. Y. 589; 82 id. 103) and Coleman v. Burr (93 id. 17). The common-law presumption that the services of the wife belong to the husband exists, notwithstanding the statutes above cited, but under them the presumption may be rebutted, and it was in this case.

When services are rendered under an agreement that compensation for them shall be made by will, which is not done, the value of the services may be recovered against the decedent’s estate. (Robinson v. Raynor, 28 N. Y. 494; Reynolds v. Robinson, 64 id. 589.)

The judgment should be reversed and a new trial granted before a referee to be appointed by this court, with costs to the appellant to abide the event.

O’Brien and Parker, JJ., concurred.

Judgment reversed, new trial ordered before a referee to be appointed by this court, with costs to appellant to abide event.


text:
    Mary E. G. Shaw, Respondent, v. Richard Webber, Appellant.

      Negligence &emdash; damages resulting therefrom &emdash; when, a release may he impeached without restoring the money paid therefor.

    Upon the trial of an action brought to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant, it was shown that the plaintiff had executed a release discharging the defendant from all claim for damages therefor, at the time of the execution of which the defendant paid the plaintiff $100.
    It was contended hy the plaintiff that the execution of such release was secured by fraud; that the plaintiff understood the $100 to he a present, and thought she was signing a receipt therefor.
    On an appeal from a verdict in favor of the plaintiff,

      Neld, that under the circumstances the action was maintainable, and that the plaintiff could impeach the release without first restoring or offering to restore the $100 which she had received.
    Appeal by the defendant, Richard Webber, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in the office of the clerk of the county of New York on the 23d day of December, 1893, upon the verdict of a jury rendered after a trial at the New York Circuit, with notice of au intention to bring up for review on such appeal an order made on a motion heard upon the minutes at the New York Circuit on the 21st day of December, 1893, and entered in said clerk’s office, denying the defendant’s motion for a new trial.

      L. _£! Prendergast, for the appellant.

      P. G. Ilamrivum, for the respondent.
   Follett, J.:

This action was brought to recover damages for a personal injury caused, it is alleged, by the negligence of the defendant and his servants. The defendant is a butcher having a retail store at No. 212 East One Hundred and Twentieth street, and for eight or nine years before January 1, 1890, the plaintiff had been a customer of tbe defendant at this shop, and on tbe date mentioned slie entered tbe shop for tbe purpose of purchasing meat. The floor of the shop was covered with sawdust, and as the plaintiff approached a counter she slipped and fell, severely injuring her knee. She looked for tlie cause of lier fall and saw that she had stepped on a piece of fat or suet which was about a foot in length and about the width of her shoe. She testified that two or three of defendant’s clerks helped her up, but not one of them was called to deny that she fell, and from the cause testified to by her. The evidence was sufficient to sustain the finding that the negligence of the defendant or his servants permitted a piece of suet or fat to be left on the floor and concealed from the view of customers by the sawdust. It was not asserted that the plaintiff, by negligence on her part, contributed to the accident, and the evidence was sufficient to sustain the finding that she was free from fault. The questions of defendant’s negligence and of the plaintiffs freedom therefrom were not really litigated on the trial.

The defendant alleged in his answer that on the 17th of May, 1890, he paid the plaintiff $100, and that she, in consideration thereof, by a written release, executed under her hand and seal, discharged him from all claim for damages. She did execute and deliver such a release, but she testified that it was procured by fraud ; that some person called on her, when the following occurred: “A. Ma introduced me to him, and he asked me questions about my health, and then he said: ‘ I have here a present of $100 from Mrs. Webber,’ and, handing me the money, he said : ‘Now, this is from Mrs. Webber, a present from Mrs. Webber.’ Then he handed me a paper and said: ‘ Please sign this,’ and I was sitting in a chair at the time, not a chair like this, but a stuffed chair, and my foot was upon a stool, and lie bent over and put the paper down and kept hold of the paper all the time, and I was on the point of taking it in my hand, and he said: ‘ That is merely used to show that you have received the money,’ and my mother said : ‘ What is this ? What is it you wish her to sign ? ’ He said : ‘ Nothing at all. It is simply a i-eceipt to show that she received the money,’ and she said: ‘ That is it,’ and still I hesitated to take it, and I was about to take the paper again, and he said: ‘ Oh, don’t be afraid, that is merely a receipt to show that you have received this money, that is all.’ Q. Hid you sign? A. Yes, sir; than I signed it.”

Her testimony was corroborated by her mother and was contradicted by the attorney who gave her the money and procured the release to be executed. He testified that he told the plaintiff that the defendant sent her the money, and that he read and explained the release to her. It is conceded that the defendant’s wife had on a previous occasion made the plaintiff a present of ten dollars, and had once been to see her during her sickness caused by her fall. The question whether the release was obtained by fraud and false representation, that the $100 was a gift from defendant’s wife, was left to the -jury, under instructions to which no exceptions were taken, and the issue was found in favor of the plaintiff. The defendant insisted on the ti-ial, and insists on this appeal, that the plaintiff could not impeach her release or maintain this action, without first restoring or offering to restore the $100 which she received. The difficulty with this position is that the plaintiff testified that she never received a $100 from the defendant in settlement of her cause of action, or for any purpose, but that that sum was given her by defendant’s wife, as was the ten dollars which she previously received. This being found to be true deprives the defendant’s point of all force. This case is within the principle of Cleary v. The Municipal Electric Light Co. (47 N. Y. St. Repr. 172), affirmed by the Court of Appeals on the opinion of the General Term (139 N. Y. 643). In that case a servant brought an action against his master for a personal injury, and it was alleged and testified that, in consideration of $250 paid by the defendant to the plaintiff, the latter had released and discharged the cause of action. The plaintiff testified that the money was paid to and received by him as wages and not as a settlement of the cause of action, and that the release was obtained by false representations. In that case, as in this, it was argued that the action could not be maintained without restoring or offering to restore the money received. In discussing this question it was said: The question of fact thus in issue was submitted to the jury under a charge that if the plaintiff received the money in satisfaction of the claim, or knowingly executed the general release, he could not recover. But if there was no agreement to compromise, and the plaintiff signed the release under the. statement that it was a mere receipt for wagáíFor gratuity, it was no bar to the action. It is conceded that the plaintiff never tendered a return of the money paid him.” In that case, as in this, the plaintiff had a verdict, which was sustained by the General Term and by the -Court of Appeals.

But a single exception taken to the admission or exclusion of evidence is argued — an exception to the refusal of the court to permit the defendant’s attorney to testify to the.details of the conversation which he had, before the action was commenced, with the plaintiff’s attorney in respect to the release. How much the plaintiff’s attorney knew about the release, and how or when it was obtained, and the discussion had between the attorneys, were facts not relevant to any issue in the case.

The judgment and order should be affirmed, with costs.

O’Brien and Parker, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    The People of the State of New York, Respondent, v. Eugene A. Marvin, Appellant.

      Incompetent testimony — when it does not justify a reversal in a criminal case.

    Where, upon the trial of a prisoner for a violation of section 537 of the Penal Code, incompetent testimony is admitted over his objection, if such testimony is not prejudicial to him, and does not affect substantial rights, it is not sufficient under section 543 of the Code of Criminal Procedure, to justify a reversal of judgment.
    Appeal by the defendant, Eugene A. Marvin, from a judgment of the Court of General Sessions, held in and for the city and county of New York on the 23d day of June, 1893, convicting him, under section 527 of the Penal Code, of the crime of printing a letter or circular offering counterfeit money for sale.

      F. Howe, for the appellant.

      John D. Lvndsanj, for the People, respondent.
   Follett, J.:

The defendant was indicted for the crime of feloniously printing, at the city of New York, on the 16th of December, 1892, a certain letter or circular purporting to advertise and offer for sale and distribution counterfeit money, contrary to section 527 of the Penal Code. A copy of the circular was set out in the indictment, and was marked Exhibit No. 2 on the trial. The defendant interposed the plea of not guilty, but he offered no evidence, except he called seven witnesses wlio testified that he had previously borne a good reputation. The jury rendered a verdict of guilty, and thereupon it was adjudged that the defendant be imprisoned in a State prison, at hard labor, for one year, and pay a fine of $1,000, and stand committed until paid, not exceeding one day for each dollar of the fine imposed, from and after the termination of the year’s imprisonment. The undisputed evidence in this case, which is of the most satisfactory and convincing character, shows that the defendant had been engaged in printing the circular set out in the indictment, and many others similar thereto, for four years. When his place of business was entered by the officers of the law, on the 16th of December, 1892, the circular set out in the indictment and similar ones, Exhibits Nos. 1 and 3, were being printed. It was testified that during four years preceding December 16, 1892, millions of such circulars had been printed by the defendant, and a quantity of them was found in his place of business so large that it required three trucks to remove them to police headquarters. The defendant was not sworn, and, as before stated, no evidence was offered in his behalf, except of previous good reputation. He made no attempt to explain why ho was engaged in printing these circulars, or who his employers were, or wliat use he intended to make of them, or how he intended to dispose of them. The guilt of the defendant was proved beyond a shadow of doubt. He now seeks a reversal of the judgment upon the ground that the court erred in admitting certain testimony.

Anthony Comstock was called as a witness and testified that he was the chief special agent of the New York Society for the Suppression of Vice and an inspector of the post office department of the United States. He testified that in his official capacity he had frequently raided the places of business of men engaged in dealing in “ green goods ” or in advertising counterfeit money for sale, and had made many arrests, and in this way he had become familiar with their circulars, their literature and the mode in which they conducted their business. lie -was allowed to testify, over the defendant’s objection and exception, that the circular set out in the indictment, Exhibit No. 2, was like those usually used by persons engaged in advertising counterfeit money for sale. He was also allowed to testify, over a like, objection, that printed circulars marked Exhibits Nos. 1, 3 and 9 inclusive, were of the kind and character in use by criminals engaged in such business.

It seems to us that this testimony added nothing to the force and effect of the circulars themselves, which, on their face, furnish the most conclusive evidence of the character of the business in which the defendant was engaged, and of his purpose.

Section 527 of the Penal Code, under which the indictment was found, declares that such papers and circulars “shall be deemed presumptive proof of the fraudulent character of such scheme.”

As was said in People v. Chacon (102 N. Y. 669): “ The case against the defendant was so strong, and his murderous intent and his threats were so fully proven, that evidence that Williams had heard of the threats, particularly after the court had just stricken out similar evidence as hearsay, could not have influenced the verdict, and the refusal to strike out the evidence, therefore, furnishes no reason for a reversal of the conviction.” (People v. Buddensieck, 103 N. Y. 487; People v. Dimick, 107 id. 13.) In the last case cited it was said, after referring to sections 542 and 684 of the Code of Criminal Procedure: “ These are mandates of the law-making power, and the courts should, with reason and discretion, give them full force and effect. Giving them the observance due in this case, we find no exception in the record showing that the defendant has been prejudiced in respect to any substantial right.”

In case this testimony was incompetent, which we do not decide, it could not have been prejudicial to the defendant or have affected his substantial rights. Mink, who had been employed by defendant as a printer for several years, and Frosch, who had been so employed for four or five years, and who were found engaged in printing circulars when defendant’s place of business was entered, testified that they were then engaged in printing the circular set out in the indictment. Mink further testified that during the four years preceding December 16, 1892, lie had printed millions of similar circulars. These two men were arrested and the defendant in protesting against it said : “You don’t want to hold these men, * * * I am responsible for anything they did ; what they did they did by my orders.”

Bateman and Wellman, two employees of the defendant in this business, testified that the defendant had long been engaged in this business, and described the extent of it. No attempt was made to contradict any of tliis evidence, and it is apparent that the defendant deliberately engaged in the printing of these circulars and that he knew the purpose for which they were printed. Evidence that similar circulars have been found in the possession of persons engaged in the business of selling or pretending to sell counterfeit money, and that they have been convicted, bore on no issue and could not, under the case made by the People, have harmed the defendant.

As before stated, the defendant’s place of business was searched December 16, 1892, and among other printed matter a circular, known as Exhibit No. 8, was found, which concludes as follows:

“ Keep this for reference.
When you are ready to come and see me send me the following telegraph dispatch: A, Dupont, 304 Morris avenue, Elizabeth, New Jersey.”

In the defendant’s place of business the following letter was found pinned to Exhibit No. 8 :

“ Jersey City, Deo. 12th, 1892.
Friend Marvin :
“ Kindly print mo an outfit of 10 M. on same style as last; 5 M. A. Dupont, Eliz. N. J., and 5 M. II. Durand, 262 W. 116th St. N. Y. city. I want the same circular as I had last order.
“ 5,000 send copying ink No. 1-5,000.
“ 5,000 send magazine No. 1-5,000.
161 would like to have them this week, as I have run out entirely of material.”

The defendant was arrested December 22, 1892.

Mr. Comstock was permitted to testify that between December 16 and 31, 1892 (the exact date he was unable to state), he visited No. 304 Morris avenue, Elizabeth, N. J., and found a new building with only one room on the first floor which had a board partition and a chair in it, the upper story being occupied as a dwelling. It is difficult to see how this evidence could have prejudiced the defendant. The witness also testified that May 15, 1893, he visited Bridgeport, Ct., and that he there found circulars which were copies of those found in defendant’s place of business, and a bill for work done, which was marked No. 11, for identification. The cashier of tbe defendant, Percy Wellman, testified that part of this bill was in defendant’s handwriting. This bill the court refused to receive in evidence and it was stricken from the record. In this there was certainly no error. No error was committed by the court in receiving the evidence at folios 199 and 200, nor in permitting the cross-examination of the witness Tower by the district attorney. After a careful examination of the whole record, we are unable to find any error which affected the substantial rights of the defendant, and this seems to be a case to which section 512 of the Code of Criminal Procedure is particularly applicable. “After hearing the appeal the court must give judgment, without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

Yan Brunt, P. J., and Parker, J., concurred.

Judgment affirmed.


text:
    Fourth Presbyterian Church, Thirty-fourth Street, Plaintiff, v. David Steiner, Defendant.

      Covenants in a deed, not enforoible in equity, justify the allowance of damages at law — unmarketable title.

    It does not necessarily follow from the fact that the performance of certain covenants contained in a deed will not be enforced or their violation restrained by a court of equity, that the damages resulting from their violation cannot be recovered at law.
    Whether certain covenants contained in a deed constituted such an incumbrance on the title of the property in such deed described as to render it unmarketable, considered.
    Submission of a controversy on an agreed statement of facts, under section 1279 of the Code of Civil Procedure.
    On the 29th of April, I860, Jane Aycrigg was the owner in fee simple of four contiguous lots situate on the south side of Thirty-fourth street, every one of which has a frontage of twenty-five feet on said street, and a depth of ninety-eight feet and nine inches. By a deed dated April 29,1865, acknowledged May 1 and duly recorded May 2,1865, she conveyed these lots to George W. Campbell. This deed was executed by the grantor and grantee, and contained the following covenants:

      “ And the said party of the second part, for himself, his heirs, executors, administrators and assigns, as a condition of these presents, doth covenant, grant and agree to and with the said party of the first part, his  h$irs and assigns, that whenever the hereinbeforedescribed premises, or any part thereof, shall be improved, the same shall be improved with good and substantial dwelling houses, constructed of briclc or stone, with fire-proof roof to each house, not inferior in height and style, quality and external appearance to the house known by the street number 108 West Thirty-fourth street» now or formerly belonging to William R. Stewart, and that the whole front of the said premises shall be covered with such dwelling houses (not exceeding five houses) of an equal width of not less than 20 feet each, and without any alley or passageway within the said walls thereof to communicate from the street to the yard, other than the halls or entries of such houses ; but instead of such dwelling houses there may be erected upon the said four lots of ground, at any time prior to the 6th day of December, 1867, a good substantial Presbyterian church edifice, having a front of freestone or marble, and suitable to that part of the city in style and character.

      “ And the party of the second part, for himself, his heirs, executors, administrators and assigns, as a further condition of these presents, doth covenant, grant and agree to and with the party of the first part,, her heirs and assigns, that neither the party of the second part, nor his heirs or assigns, shall or will erect, or suffer to be erected, on the said premises, or any part thereof, any stable, or will permit or suffer said premises, or any building which may at any time be erected thereon, to be used for any kind of trade, manufactory or-business whatsoever, or for a tenement or community house.
    “ And the said party of the second part, for himself, his heirs, executors, administrators and assigns, doth covenant and agree with the said party of the first part and her heirs that in case the party of the second part, his heirs or assigns, or any or either of them, shall make default in the performance of the above-written covenants on liis or their part to be observed, or any or either of them, or any part of either of them, then and in such case the party or parties so making default shall pay to the party of the first part or her heirs the sum of two thousand, dollars ($2,000) as liquidated damages in -the premises for each one of the said lots on or as to which such default or breach of covenant shall have been made or occurred.”
    By a deed dated March 1, 1865, acknowledged May 1 and duly recorded May 2, 1865, George ~W. Campbell conveyed the lots to the Grand Street Presbyterian Church, “ subject to, and it is understood and agreed by the parties of the second part, to and with the party of the first part and his legal representatives, by the acceptance of these presents, this is made upon the express condition that the parties of the second part, their successors and assigns, do hereby assume to perform each and every of the covenants as the part of said Campbell set forth in a certain deed of said premises from Jane Aycrigg to said Campbell, bearing date the 29th day of April, 1865, to the purposes and with the same force and intent as if each of said covenants were specifically set forth in these covenants, and as if the parties of the second part had received the covenants direct from said Jane Aycrigg instead of said Campbell, and had covenants directly with said Jane Aycrigg to the same effect as the said Campbell had done in the deed to him aforesaid.”
    Subsequently the name of the corporation was duly changed to “ Fourth Presbyterian Church, Thirty-fourth street.”
    Jane Aycrigg in her lifetime owned other lots near to said four lots, part of which she conveyed to various grantees by deeds containing similar restrictions, and she died seized of other lots in that neighborhood which she devised by her will.
    December 28, 1892, the parties to this submission entered into a written executory contract by which the Fourth Presbyterian Church, Thirty-fourth street, agreed to sell and convey in fee simple, and David Steiner to purchase, a part of the four lots, eighty feet in width on the street by ninety-eight feet and nine inches in depth. The vendee refused to take the title because of the restrictive covenant herein set forth unless the vendor would abate $2,000 per lot from the purchase price. In addition to the foregoing facts, the submission contained the following facts agreed on:
    “IX. The locality wherein the said premises are situated and located, and the immediate neighborhood of said premises, was, at the date of the deed, devoted and dedicated to residences of a high •class and expensive nature, and no buildings for trade purposes whatsoever, or for tenement and community houses, were situated therein.
    “ X. That in furtherance of an intention and purpose to restrict the said neighborhood locality, and limit, restrict and circumscribe the use of said property so conveyed as aforesaid, the said covenant was put in said agreements and deeds to maintain and preserve the said neighborhood free from, and unoccupied by, all buildings' devoted to, used for or intended to be used for trade purposes, or used and occupied, or intended to be used or occupied, for tenement or community houses.
    “ XI. That for a long number of years, to wit, until about 1892,. ■ the said premises in question were restricted and limited in the use thereof to church property, and the immediate neighborhood restricted to high class residences and dwelling houses.

      “ XII. That thereafter, and since about the year 1892, the said neighborhood has deteriorated as a first-class neighborhood for dwelling houses and residences, and the premises in question become unfit for use as church property, and the houses in and about said locality and neighborhood have become occupied for business and trade purposes and by theaters, music halls and places of amusement, and the dwellings and residences become devoted to and occupied for trade, commercial and business purposes, and has become totally unfit for the use to which the said neighborhood was limited and restricted by the said covenants in said agreements and deeds contained.
    “ XIII. That for many years last past there have been great and extensive changes in the character and location of said premises and of the premises mentioned in the said agreements and deeds, and iii the surroundings and nature thereof, and in the uses of the said premises and contiguous property, and in the business of the vicinage, rendering it injurious, inequitable and inexpedient to observe, enforce and maintain the said covenants limiting and restricting the tise of said premises.
    “ XIY. That to enforce and uphold the said covenant in preventing the use of said premises for present purposes, according to the change wrought by the growth of the city, would be to inflict great and irreparable injury upon the owners thereof, and prevent the same from being put to practical and reasonable use and enjoyment thereof under tlie conditions now existing in the neighborhood in which said property is located.
    “ XV. That the change in the neighborhood so wrought and at present existing was impossible to be foreseen by the original owner thereof in the year 1865, when the covenant restricting and limiting the use thereof was made.”
    Upon these facts the following question is submitted for determination:

      “ Whether or not the said covenants constitute an incumbrance or cloud upon the title of the church, rendering it unmarketable for general purposes.”

      Delos McCurdy, for the plaintiff.

      Emanuel J. Myers, for'the defendant.

      Sic.

   Follett, J.:

Assuming that the statements contained in the submission are true, and that all of the facts relevant to the question submitted are contained therein, it is clear that the case falls within the princijile laid down in the class of cases of which The Trustees of Columbia College v. Thacher (87 N. Y. 311) is a type, and that the performance of the covenants would not be enforced or their violation restrained by a court of equity; nevertheless, the damages sustained by the violation of tlie covenants might be recovered at law by the owners of the adjoining lots, to which this negative easement created by the covenant has attached. We assume from the submission, though it is not expressly stated, that there are many lots to which the easement is attached. In case an action should be brought, by a lot owner to restrain the violation of the covenants and recover damages for their violation, and the facts should be found as stated in the submission and no others, equitable relief would be refused and the damages awarded would be nominal. However, whoever owns the lot in question will be exposed to actions by the owners of the adjacent lots either for the purpose of enforcing the performance of the covenants restraining their violation or for damages. This is not the kind of title that a purchaser under this contract is entitled to receive. It is suggested that there be deducted from the contract price $2,000 per lot, and that the vendor be compelled to convey on those terms. The covenant, while it liquidates the damages as between Mrs. Aycrigg, her heirs and representatives, and the owner of the lot in question, does not assume to liquidate the damages which may be sustained by the owners of neighboring lots who are entitled to the benefit of the covenant. The covenants contained in the deed constitute such an incumbrance upon the title that the defendant should not be compelled to perform his contract, and is entitled to recover the sum which he has paid on the contract, with interest.

A judgment should be entered accordingly in his favor and against the plaintiff, with costs.

O’Brien and Parker, JJ., concurred.

Judgment ordered in favor of defendant and against the plaintiff, with costs.


author: Eollett, J.: Parker, J.

text:
    William Ebling, Plaintiff, v. Henry Dreyer, Defendant.

      Will devising land in parcels — power of the Legislatwre to authorize the sale of the interests of infants therein — it cannot direct the deduction of the value of life estates on sepa/i'ate parcels from the gross proceeds.

    The will of a testator contained the following clause: "Item. The piece of ground owned by me in Westchester county, on Union avenue and Westchester road, I order and direct to be divided into 4 equal parts or shares lengthwise ; the part or share fronting on the Westchester road I give, devise and bequeath to my son Joseph ; the part next adjoining to my daughter Annie; the part next adjoining to my daughter Sarah, and the part next adjoining to my daughter Elizabeth, the land so devised to be held by them respectively during their natural lives, and upon their deaths respectively to their respective children forever; subject, however, to the dower interest of my said wife.”

      Held, that each one of the testator’s four children, having children at the testator’s death, took a life estate in a separate parcel of land, and his or her children took a vested remainder in the same parcel, subject to open and let in after-born children.
    That none of the four children or their children, born or unborn, had any vested or contingent interest in more than one parcel of land.
    Under the Constitution of the State of New York the Legislature may, by a public or private act, authorize the sale of the real estate of infants or other persons non sui juris, and a sale made in pursuance of such an act will divest the title of such persons if i.t appear that reasons existed justifying such sale, jjjovided that contingent interests, if there are any, are protected; but the Legislature has no power to authorize the sale of four separate pieces of land in which four separate families of infants are severally interested, and direct that the avails of the sales be brought into a common fund, and that the liens and interests of the life tenants be deducted from the entire fund, based on the av.erage age of all of the life tenants, as the effect of such an act would be to give the property of some of the infants to others.
    (Parker, J., dissenting from the result.)
    Submission of a controversy upon an agreed statement of facts, under section 1219 of the Code of Civil Procedure.

      Rudolf Dulon, for the plaintiff.

      Edward E. Sprague, for the defendant.
   Eollett, J.:

June 1, 1892, the litigants entered into a written contract by which the plaintiff agreed to sell, and the defendant to purchase, certain real estate for $3,400, the title of which was to be conveyed in fee simple and free from incumbrances. The defendant paid $340 towards the purchase price and $68 fees of the auctioneer and salesroom. The contract was to be closed and the premises conveyed July 6, 1892, -when the plaintiff tendered a deed sufficient in form, which the defendant refused to accept on the ground that the plaintiff was unable to vest the defendant with an absolute title to the land in fee simple. The question submitted is whether the plaintiff is able to convey the real estate to the defendant by a good title in fee simple. The plaintiff demands a judgment for the remainder of the purchase price, $3,060, with interest from July 6, 1892, with costs, and the defendant demands a judgment for $408, the amount of the sums paid by him, with interest from July 6, 1892, with costs.

August 11,1863, Joseph Cudlipp died seized in fee simple of nine and eighty-five-one-hundredths acres of land in the town of Morrisania, which he devised as follows:

“Item,. The piece of ground oivned by me in Westchester county, on Union avenue and Westchester road, I order and direct to be divided into 4 equal parts or shares lengthwise; the part or share fronting on the Westchester road I give, devise and bequeath to my son Joseph; the part next adjoining to my daughter Annie; the part next adjoining to my daughter Sarah, and the part next adjoining to my daughter Elizabeth, the land so devised to be held by them respectively during their natural lives, and upon their deaths respectively to their respective children forever; subject, however, to the dower interest of my said wife.”

September 22, 1863, the will was duly admitted to probate and recorded. The testator left him surviving the four children mentioned in said devise, who were his only heirs, and a widow, who died February 13,1869. When he died his daughter Elizabeth was married and had five children. His daughter Sarah had no children when he died or when the land was sold, but now has children. It does not appear whether Joseph or Annie had children at the testator’s death, but if either had they died before the land was sold, for it appears by the submission that the children of each living when the land was sold were born since the death of the testator.

By the devise every one of the four children, having children at the testator’s death, took a life estate in a separate parcel of land, and his or her children a vested remainder in the same parcel, subject to open and let in after-born children. These devises to the four children and to their children respectively were as distinct and separate as though the four parcels had been situate in different townships. Elizabeth and her children took the title to the parcel (No. 4) devised to them, but they had no interest, legal or equitable, in any one of the other three parcels, and lione of the other thr.ee life tenants or their children had any title to or interest in the parcel devised to Elizabeth and to her children. None of the four children, or their children, born or unborn, had any vested or contingent interest in more than one parcel.

This being the situation of the title, an act was passed May 2, 1872 (Chap. 479, Laws 1872), by which the Supreme Court was authorized, upon the application of the four children and their legal issue in being, to sell in fee simple absolute said lands or any part thereof, at one time or at different times, as might be adjudged to be expedient. The act provides that if the court should order a sale of the premises a referee should be appointed, under whose direction it should be made, who should convey the premises sold upon the court’s confirming the sale. The act declared that the conweyances made pursuant to such authority should vest in the purchaser or purchasers the fee simple absolute against all persons having any interest in the land under said last will, whether in being •or not.

The 4th section provides that the referee pay the expenses of the sale, all unpaid taxes, liens and charges on the land, and pay the residue to such trust company as the court may direct, to be invested in the name of the treasurer of the county of "Westchester, on bonds secured by mortgages upon real estate in this State, for the benefit of such persons as are or may become interested in such lands. The ■■act provides that the life tenants (they consenting) be paid a gross sum in lieu of their several life interests in the premises, pursuant to section 52 of title 3, chapter 5 of part 3 of the Revised Statutes.

On the 8th of August, 18Y2, the petition to the Supreme Court was verified by the four children of the testator, and by all of their children, then of the age of fourteen years and upwards, and by Charles A. Elammer, the next friend and guardian of all of their •children under fourteen years of age, praying that the real estate be sold pursuant to the provisions of said act. The petition contains allegations sufficient to authorize the sale of real estate of infants pursuant to the general statutes of this State. A guardian ad, litem was appointed for the infants, and a referee to. inquire as to the truth of the allegations set forth in the petition, who reported that a sale of the lands woulcl he for the benefit of all of the parties in interest.

Upon this report the court directed the referee to subdivide the tract composed of the four parcels into ordinary city lots, make a •map thereof, file it in the office of the register of deeds of "West'chester county, and sell the lots. The tract was subdivided into 118 lots, and a mnp made of it and filed. Nos. 28, 29, 30, 31, 32, 33, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 45,' 46, 47, 48, 49, 80, 31, 113, 114, 115 included some of the land devised to Joseph and his children (parcel No. 1) and some of the land devised to Annie and her children (parcel No. 2). Lots Nos. 8, 22, 23, 24, 25, 26, 27, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 88, 89, 90, 91, 92, 93, 94, 105, 106, 107 included some of the land devised to Annie and to her children (parcel No. 2) and some of the land devised to Sarah •and to her children (parcel No. 3).

The land which the plaintiff agreed to convey, and the defendant to purchase, embraces lots 88, 89, 90 and the east half of 91, the greater portions of which were devised to Sarah and to her children and portions of which were devised to Annie and to her children.

The order directed the referee to pay the expenses of the sale, attorneys’ fees and the liens for taxes, and then pay the residue to a trust company, to be invested by it on bonds secured by mortgages on real estate, within this State, for the benefit of such persons as are or may become interested in said lands, premises and real estate.

Whether all of the parcels were of equal value or whether the liens for assessments were for equal amounts on every parcel, does not appear. Take, for example, the parcel devised to Elizabeth and to her children, the title to which vested on the death of the testator, the act does not provide that the‘value of her life estate, computed with reference to her age, shall be paid to her and the remainder invested for her children,' but in some way the supposed value of the four life estates was deducted from the avails of the sale of the four parcels after-deducting expenses and assessments. It seems that the interests of the life tenants were arrived at by averaging their ages, their average expectation of life being fixed at-thirty-one years.

The act provides no means for determining the value of the different parcels and for distributing the values of each parcel to each family according to its value, but all of the values are, by the act, to be mingled in a common fund.

By this act of the Legislature and the proceedings thereunder the infant owners of the part of the least value were given part of the values arising from the sale of the parcels of the greatest value, and the infant owners of the parcel of the greatest value have been compelled to give part of their property to the owners of the parcels of the least value. Again, the children of each life tenant had the right to have the gross value of the life estate of their father or mother ascertained with reference to his or her age, which was not done. The children of the oldest life tenant, apparently Elizabeth, had the right to have the value of the life estate of their mother determined according to her age, and not by the average age of all of the life tenants, who were younger, for by this means part of the interest of Elizabeth’s children was taken from them and given to the other life tenants and to their children.

The life tenants had no interest in common in these parcels, nor had the children of any one of the life tenants any interest in common with the children of the other life tenants in the parcels. They had no interest which could be partitioned. The fact that the four separate parcels were contiguous is not a controlling or material fact, for the act is open to the same objections that it would have been had the parcels not been contiguous. This act authorizes these four parcels to be sold, not separately, and the avails of every parcel invested for those interested in the particular parcel after paying the liens thereon, but the assessments on all of the pai’cels are to be deducted from the avails derived from the sale of all of the lands. We have looked to see if this sale made under this act can be sustained on the ground that it was necessarily made for the payment of taxes, but such a necessity is not shown to have existed, at least for the sale of the entire tract; and, again, every one of the parcels was not sold, or assumed to be sold for»taxes, which were a lien on it, but all the parcels were sold and the amount of the liens on all were paid from the proceeds arising from a sale of the four parcels.

Under the Constitution of this State -the Legislature may, by a public or private act, authorize the sale of the real estate of infants or of persons not suijwús, and a sale made in pursuance of such an act will divest the title of such persons if it appear that reasons existed justifying the sale (Cochran v. Van Surlay, 20 Wend. 365; Powers v. Bergen, 6 N. Y. 358; Leggett v. Hunter, 19 id. 445; Brevoort v. Grace, 53 id. 245), provided that contingent interests, if there are any, are protected. (Brevoort v. Grace, supra; Monarque v. Monarque, 80 N. Y. 320; Kent v. Church of St. Michael, 136 id. 10.) But those cases are no authority for the position that the Legislature may authorize the sale of four separate parcels of land in which four separate families of infants are severally interested, and that the avails of the sale be brought into a common fund, and that the liens and the interests of the life tenants be deducted from the entire fund based on the average age of all of the life tenants. The effect of such an act would seem to be to give the property of some of the infants to others, which we are not prepared to hold to be within the power of the Legislature.

If, by reason of facts existing at the testator’s death, and not clearly disclosed by this submission, any one of the four children took the fee of his or her parcel, his or her assent to the mode of sale adopted divested him or her of title. But this question has not been argued, and the facts are not sufficiently presented by the submission to authorize the court to determine it.

We do not declare the act of the Legislature unconstitutional, and the procedure had thereunder -wholly ineffectual to divest the title of all of the children of the four life tenants, because this submission relates to a small part of the land, and the owners of the other lots into which the land was subdivided are not before the court, and there may be facts not contained in the submission which might influence the result. The title of the present owners of other lots should not be condemned without their being heard, but we are of the opinion that the title tendered by the plaintiff to the defendant is so doubtful that the latter should not be required to perform the contract.

A judgment should be ordered in favor of the defendant for $408, with interest from July 6, 1892, with costs.

Yan Brunt, P. J., concurred.

Parker, J.

(dissenting):

Plaintiff and defendant entered into a contract for the sale and purchase of certain lands, of which the premises in controversy constitute a part. Defendant refused performance, assigning as a reason that plaintiff was unable to give him a good and marketable title. Plaintiff’s predecessor in title, Joseph Cudlipp, by his will, admitted to probate in the year 1863, devised such lands as follows:

“ Item. The piece of ground owned by me in Westchester county, on Union avenue and Westchester road, I order and direct to be divided into four equal parts or shares lengthwise; the part or share fronting on the Westchester road I give, devise and bequeath to my son Joseph; the part next adjoining to my daughter Annie ; the part next adjoining to my daughter Sarah, and the part next adjoining to my daughter Elizabeth, the land so devised to be held by them respectively during their natural lives, and upon their deaths respectively to their respective children forever; subject, however, to the dower interest of my said wife.”

Thereafter the Legislature, by chapter 479 of the Laws of 1872, enacted that, on the application of the four life tenants and their lawful issue iu being, tbe Supreme Court might authorize the sale in fee simple absolute of the lands so devised, or any part or parts thereof, at one time or from time to time, as might be adjudged to be expedient and calculated to promote the interest of those who would be entitled to the lands upon the deaths of the life tenants, according to the provisions of the will, whether in being or not, or whether having a present or contingent interest in the land. It further provided the practice to be adopted by which such matters as should be passed upon by the court should be properly brought before it for consideration and determination.

At the time of the passage of the act the only persons having an interest in the premises by virtue of the devise, who were of full age, were the four life tenants. So the Legislature, by requiring that the proceedings for the sale should not be had unless upon the petition of the life tenant, did hot come in conflict with the decision in Powers v. Bergen (6 N. Y. 358) and Brevoort v. Grace (53 id. 245), in which cases it was held that the Legislature is without constitutional authority to authorize by special act the sale of private property belonging to adults.

The practice required by the statute obviated the difficulty which was presented in Brevoort’s case. But while the cases cited supra deny the right of the Legislature to authorize the sale of the private property of adults for other than public use, without their consent, they determine the law to be that the Legislature may, by special statute, authorize a sale of the lands of infants or other incompetents in behalf of whom the Legislature acts, because they cannot act for themselves, and this power extends to the future contingent interest of those not in being.

The Legislature having power to authorize the sale, the manner in which the matter shall be brought to the attention of and passed upon by the courts in determining whether such a condition exists as the Legislature had in contemplation in passing the act, to wit, a condition which requires a sale in order to subserve the best interests of the infant remaindermen, as well as the future contingent interest of those not in being, is a question which the Legislature had full authority to determine. Now, after the passage of the act proceedings were instituted in the Supreme Court in conformity with its provisions. The petition set forth the facts Avhich the petitioners alleged sliow the necessity for a sale, and contained a prayer that the property be sold, and was signed by all the adults having an interest of any kind in the premises.

The petition, in stating the reasons for the expediency of the sale, among other things, set forth that the land, which consisted of about ten acres, was wholly unproductive; that its assessed value was many times greater than at the testator’s death; that the taxes were exceedingly large and will greatly increase from year to year; that the means of the four life tenants were small; that their cliildi’en had no property except the interest in the property devised, and unless sold the land would become so incumbered by taxes and assessments and sales thereof as to leave the interest of the remaindermen of little or no value.

The result of the proceedings was an adjudication by the court that a sale was expedient and calculated to promote the interests of those who would be entitled to the land under the testator’s will, whether in being or not, or having a present or contingent interest. This question the court was authorized to determine by the statute providing that the proceedings, should be instituted, and the necessary steps having been taken to invest it with jurisdiction as to all of the parties, whether in being or not, its determination was final and cannot be subjected to collateral attack. Indeed, it is hardly probable that any objection would have been taken but for the existence of the fact now to be stated.

By the devise the lands were divided into four equal parts, the use of each one of the parts specified being given to one of his children during life, and upfon death the fee to his or her children. Now, after the will was admitted to probate, but before the passage of the act of 1872 (supra,), the commissioners of taxes and assessments, in pursuance of chapter 841 of the Laws of 1868, laid out streets through such premises, both lengthwise and crosswise, and duly made and filed maps in conformity therewith.

The method adopted by the commissioners in laying out these streets did not conform to the line of division as fixed by the testator, and as a result the third part, for instance, which was devised to the use of his daughter Sarah, had no frontage whatever upon a street running lengthwise through the property, while the second part, the use of which was given to the daughter .Annie, during life, liad a frontage upon the street upon both sides, but the lots had but little depth.

The result of laying out the streets through the lands was to increase the value of one of the devised parts more than others, and it is claimed that for such reason the four parcels should have been separately sold, so that the parcels deriving the greater advantage from the said improvement should realize, for the benefit of those interested therein, a proportionately enhanced sum.

The first impression suggested by this statement is that defendant’s contention is somewhat plausible, but a moment’s reflection shows it to be without merit, for the reason tersely and clearly stated in Matter of Field (131 N. Y. 184): “ The proceeds, which thus take the place of the land, are still to be treated as land for the purpose of measuring all rights therein, and their preservation is secured by requiring them to be paid into court and invested under its direction.” (See, also, Kent v. Church of St. Michael, 136 N. Y. 10.)

The result of the proceedings and the sale had thereunder has been to substitute the money, which represents the value of the land, in its place. ,No attempt was made to determine the rights of the several parties therein as between themselves other than the life tenants, and when the time comes for the distribution of the proceeds of the property among those entitled to it, the court can and will, if properly requested, inquire concerning it and determine the rights and interests of the several parties.

It is urged that the determination of the gross value of the several life estates and their payment out of the fund, in the manner authorized by the statute, constitutes a fatal defect. Not so if the position already asserted be sound, that the intent and legal effect of the statute was to substitute the proceeds of the sale for the land sold, to be thereafter apportioned according to the rights of the several parties interested. For the life tenants in the aggregate received no greater sum than would have been awarded to them had a division of the fund been made before computing the value of their respective estates.

It may well be that, as between the life tenants, there has not been such a division as should have been made. But, as they ai*e alone interested in such injustice as may have resulted, there is no source from which legal complaint can flow, as they have consented to the basis adopted for distribution and accepted the payments made thereunder.

"What proportion of the aggregate amount paid out in satisfaction of the several life estates shall be borne by each of the four separate estates must be determined by the court when it comes to adjudicate upon the value of the several interests and decree distribution.

That which was done cannot be questioned, because the Legislar ture had power to authorize it, to wit, a sale of the property after a determination by the court that there existed a situation which rendered it expedient and necessary that a sale would be had. And the proceeds, having been paid into court, now stand in the place of the land for which it was paid, and it is of no consequence, so far as the title is concerned, when the court shall undertake to determine the lights of the several parties, nor how it shall be determined.

The proceedings having been regular, it is to the fund and not to the land that those, in whose behalf and interests the sale was made, will have to turn, in order to secure that which of right belongs to them.

Not only was the procedure adopted in selling the property regular, but it was Aviso from a business standpoint, for in no other way could so much money liavo been realized from it.

I advise that judgment be entered in favor of the plaintiff for a specific performance as demanded in the submission, with costs.

Judgment ordered in favor of defendant for $408, with interest from July 6, 1892, with costs.


text:
    Felix St. Anna Govin and Others, Respondents, v. Luciana Govin de Miranda, Individually and as Executrix, etc., of Felix Govin y Pinto, Deceased, Appellant.

      lies adjudicata — interest presu/mptively follows the ownership of the contract — declaration of trust — Statute of Limitations■ — judgment in replevin for the recovery of bonds ■ — • when not a bar to the recovery of interest collected thereon.

    The conclnsiveness oí a judgment rendered in an action cannot be destroyed by showing, in a second action between the same parties, that a fact existed which, had it been proved in the first action, would have resulted in a wholly different judgment.

      The interest payable by the terms of a contract is but an incident thereof, and . presumptively belongs to whoever owns the contract when the interest falls due. Such presumption may be rebutted and overthrown by showing that the owner has assigned the interest due or becoming due, and, in case such interest is payable upon the presentation of coupons, by showing that they have been detached and transferred by the owner.
    Where, in an action to recover certain bonds or the value thereof, it was determined that the plaintiffs were the owners of such bonds, in a subsequent action brought by the same plaintiffs against the same defendant to recover the interest on such bonds, collected by the defendant or her testator, the question as to the ownership of the bonds cannot be raised, although it appears in the second action that the testator had purchased and paid for the bonds in dispute, which fact was not shown on the former trial.
    After the death of a testator there was found in his safe a sealed envelope, on which there was the following indorsement: “A declaration in favor of Emilia, Felix, Guillermina Govin and Luz Diaz y Sanchez, who lived in 147 E. 39th street.” This envelope contained an instrument of which the following is a copy:
    “ In possession of Ramon M. Estevez there are sixty thousand dollars in U. S. bonds, which I declare belong to the three children, brother and sisters, Emilia, Felix and Guillermina Govin, residents of this city, living at 147 E. 39th St. Besides, in my box there is a legacy which contains §29,000 R. R. bonds, Iowa Division; of these ten thousand belong to Luz Diaz y Sanchez, mother of the above-mentioned individuals; she has a note for same signed by me, and the rest belongs to the above-mentioned Emilia, Felix and Guillermina in equal parts.
    “No one may go contrary or against this declaration, as it is based under conscience and justice; to me alone is reserved the right to do with this money as I deem proper.
    “ New York,Due. 8th, 1883. FELIX GOYIN Y PINTO.
    “Acknowledged before me this 15th ) day of December, 1883. >
    “ Jas. W. Hale,

      “Notario Publico,

    “4 Hanover St.”

      Meld, that the words “ No one may go contrary or against this declaration, as it is based under conscience and justice; to me alone is reserved the right to do with this money as I deem proper,” were not intended to limit but to make certain the rights of the beneficiaries, and was an assertion by the declarant that he had the right to do as he chose with the bonds, and that third persons had no right to question the disposition which he made of them, and the declarant did not reserve or intend to reserve to himself thereby the right to dispose of the accruing interest on the bonds which he declared belonged to the beneficiaries in such declaration named.
    The Statute of Limitations does not run in favor of a trustee as against his beneficiaries, until the trustee has refused to execute the trust.

      The judgment recovered in a replevin action brought to obtain the possession of certain bonds or the value thereof, is not a bar to a subsequent action, brought ■ against the defendant in the replevin suit, to recover the amount of interest which she or her testator collected on such bonds, where it appears that the defendant’s testator never refused to deliver the bonds to the plaintiffs, but held the securities as their agent, and that the defendant, his executrix, did not convert the bonds until she refused to deliver them up upon the demand of the plaintiffs. In such case the collection of the interest by the testator and his executrix before the refusal of the latter to deliver the bonds to the plaintiffs was not a wrongful but a legal act, and the liability of the defendant and her testator to account as agent for the collection of interest made formed no part of the claim for damages for the wrongful detention of the bonds.
    • Appeal by tlie defendant, Luciana Govin de Miranda, individually and as executrix, etc., of Felix Govin y Pinto, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 15th day of February, 1891, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit, and also from an order made on the 12th day of February, 1891, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      Edward G. James, for the appellant.

      Abram IGling, for the respondents.
   Follett, J.:

Prior to December 8, 1883, Felix Govin y Pinto purchased and paid for thirty-eight coupon bonds issued by the Chicago, Burlington and Quincy Railroad Company for $1,000 each, bearing interest at the rate of four per cent per annum, payable semi-annually, the payment of which was secured by a mortgage upon the Iowa division of said corporation.

On the 8th of December, 1883, Felix Govin y Pinto executed an instrument, written by himself, of which the following is a copy: .

In possession of Ramon M. Estevez there are sixty thousand dollars in U. S. bonds, which I declare belong to the three children, brother and sisters, Emilia, Felix and Guillermina Govin, residents of this city, living at 117 E. 39th St. Besides, in my box there is a legacy which contains $29,000 R. R. bonds, Iowa Division; of these ten thousand belong to Luz Diaz y Sanchez, mother of the above-mentioned individuals; slie lias a note for same signed by me, and the rest belongs to the above-mentioned Emilia, Felix and Guillermina in equal parts.
“ No one may go contrary or against this declaration, as it is based under conscience and justice; to me alone is reserved the right to do with this money as I deem proper. '
“New York, Dec. 8th, 1883. FELIX GOVIN Y PINTO.
“ Acknowledged before me this 1 15th day of December, 1883- f
“ Jas. W. Hale,
“ Notario Publico,
“ 4 Hanover St.”

This instrument was sealed in an envelope on which was the following indorsement: “A declaration in favor of Emilia, Felix, Guillermina Govin and Luz Diaz y Sanchez, who lived in 147 E. .39th street.”

May 23,1891, Felix Govin y Pinto died at the city of New York, leaving a last will and testament, which was duly probated November 20, 1891, and letters testamentary thereon were on that day issued to the defendant, who accepted the trust and entered on the execution thereof. After the death of the testator the declaration of trust, sealed in an envelope and indorsed as above stated, was found in the safe, and there were also found in the vault of a safe deposit company thirty-eight bonds of the Chicago, Burlington and Quincy Railroad Company of the kind above described. The testator collected the interest which fell due on these bonds during his lifetime, and subsequent to his death the interest was collected by the defendant. „

It is conceded that the testator in his lifetime supported the plaintiffs in this action, who with their mother, Luz Diaz y Sanchez, lived together as a family at No. 147 East Thirty-ninth street, New York city.

Whether the testator and the plaintiffs’ mother were married is a ■disputed question.

January 13, 1892, the plaintiffs demanded that the defendant •deliver to them nineteen of the Chicago, Burlington and Quincy bonds, which, was refused, and March 25, 1892, these plaintiffs brought against this defendant an action in replevin for the recovery of the bonds, in which an issue was joined and resulted in a judgment for the recovery of the bonds, or, in default of their delivery, for the recovery of their value ($17,950), with interest thereon at the rate of six per cent per annum from January 13, 1892, to February 27, 1893, the date of the trial of that action, which judgment was affirmed December 22, 1893, by the Court of Appeals. (140 N. Y. 474.) Whether the bonds have been restored or the judgment for their value paid does not appear.

On the 22d of August, 1893, this action was begun to recover the interest on the nineteen bonds collected by the testator in his lifetime and by the defendant as his executor, with interest on the sums so semi-annually collected. On the trial a verdict was directed for $12,034.80, which amount seems to have been agreed upon, or, at least, not contested. Ilow much of this sum was for coupons collected by the testator, or how much for coupons collected by the defendant, does not appear, nor does the record disclose the particular semi-annual payments of interest covered by the verdict or the amount allowed for interest on such semi-annual payments as were included in the sum recovered.

It has been finally determined in the replevin action that the plaintiffs on the 8th of December, 1883, were and have since remained the owners of - nineteen of the bonds of the Chicago, Burlington and Quincy railroad, which judgment is conclusive of the question of title to the bonds, and cannot be litigated in this action.

The fact that it appears in this case that the testator, prior to December 8, 1883, purchased and paid for the bonds in dispute, which fact was not shown on the former trial, does not authorize this court to reconsider the question of ownership. If this fact is a controlling one upon the rights of the litigants, the defendant should have proved it on the trial of the former action, or, if unknown at that date, she should have moved for a new trial on the ground of newly discovered evidence. The conclusiveness of the first judgment cannot be destroyed by showing that a fact existed which, had it been proved, would have produced a wholly different judgment. (The Williamsburgh Savings Bank v. The Town of Solon, 136 N. Y. 465.) This rule is so elementary that it does not need to be supported by the citation of cases. To hold the contrary would ■ destroy the effect of judgments and permit questions once settled to be re-litigated upon the discovery of some new fact.

It being conceded that the defendant and her testator collected the interest on plaintiffs’ bonds, it is difficult to see on what theory the defendant can escapea judgment for the recovery of the amount so collected without establishing an affirmative defense.

The interest payable by the terms of a contract is but an incident thereof and presumptively belongs to whoever owns the contract when the interest falls due. This is a rebuttable presumption which may be overthrown by showing that the owner had assigned the interest due or becoming due, and in case it is payable upon the presentation of coupons, that they have been detached and transferred by the owner. There is no evidence in this case indicative of an intention on the part of the plaintiffs to relinquish the interest, and the only fact to which we are referred tending to show that the interest belonged, not to the plaintiffs, but to the1 testator, is the last clause of the instrument of December 8, 1893 : “No one may go contrary or against this declaration, as it is based under conscience and justice; to me alone is reserved the right to do with this money as I deem proper.” This language was not intended to limit but to make certain the rights of the beneficiaries, and it is an assertion by the declarant that he had the right to do as he chose with the bonds, and that third persons had no right to question the disposition which he made of them. The declarant, by this clause, did not reserve, or intend to reserve, to himself the right to dispose of the accruing interest on the bonds, which he declared belonged to the beneficiaries.

The Statute of Limitations is not a bar for several reasons : First, the testator became a trustee for the beneficiaries, and the statute did not begin to run until he had refused to execute the trust. Further than this we are unable to determine from the record in this case for how long a period the plaintiffs were permitted to recover the semi-annual interest, nor how much was recovered on account of the collections made by defendant and how much on account of the collections made by the testator. Had the defendant intended to raise the question that recovery for some part of the interest collected was barred by the statute, she should have shown how much was collected anterior to the six or ten years preceding the date of the commencement of the action.

It is urged that the judgment in the replevin action is a bar to this, on the theory that the first judgment is the measure of the defendant’s liability to the plaintiffs for the conversion of the bonds. So it is. But the defendant’s testator never refused to deliver these bonds to the plaintiffs, but held the securities as an agent, and the defendant did not convert the bonds until she refused to deliver them upon the demand of the plaintiffs, who in the first action could recover only the bonds and the damages for their unlawful detention, which damages began to accrue from the date of such detention. The collections of the interest by the testator and by the defendant before her refusal to deliver were not •wrongful but legal acts, and their liability to account as agents for the collections formed no part of the claim for damages for the wrongful detention of 'the bonds.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.