author: Rumsey, J.:

text:
    George B. Swikehard and Others, as Commissioners of Sewerage, etc., in the City of Rochester and in the Town of Gates, Respondents, v. Fred P. Michels and Others, Appellants.

      A local statute providing for the draining of swamps is unconstitutional — power of the Legislature to promde for the construction of sewers in cities — when such work is a proper municipal change — chapter 603 of the Laws of 1892 constitutional— when a statute will not he condemned as unconstitutional — compensation under Condemnation Lano.

    A local bill which has for its sole or its main purpose the drainage of swamps or . lowlands, although such drainage may be required for-the public health, is not constitutional. The Legislature has, however, power by a local act to authorize the construction of a sewer in any city of the State; such act is nowhere prohibited by the Constitution, and, therefore, the Legislature may by statute direct the work to be done and prescribe the manner of doing it.
    The Legislature may provide for the carrying away of sewage when the public health and convenience require it, whether the territory to be drained by the sewer be within the bounds of an incorporated city or village, or be any other portion of the State so thickly settled that health and decency require that sewage and foul refuse matter which may breed pestilence shall be removed; and if the needs of the city demand and the health of its citizens require such an action, the Legislature may direct the city authorities to construct the sewer upon a route selected and pay for it out of the funds of the municipality, the question in such case being whether, upon the whole, the particular enterprise is primarily for the benefit of the people of the city and within the ordinary range of municipal action; if such conditions exist, the purpose is a city purpose although people outside are incidentally benefited ; the law may not only prescribe a sufficient size for such a sewer, but it may also direct such an extension as will supply the future needs of those who live or who are likely to live within the area which might naturally drain into it.
    The fact that more or less water is drawn off into a sewer for the purpose of draining a low piece of ground which happens to lie near it, does not invalidate an act authorizing the construction of the sewer in a city.
    Chapter 603 of the Laws of 1892 is a local act; its principal object is to provide the means of disposing of the sewage which flows out of a certain territory in the city of Rochester and the town adjoining the city limits, and such act is constitutional.
    A statute is to be judged by its practical effect and operation, and so judged is not to be condemned as unconstitutional unless it is clear and plain that some provision of the Constitution has been violated.
    The provision of section 6 of chapter 603 of the Laws of 1892, to the effect that if the commissioners cannot agree with the owners they may proceed under the Condemnation Law, is not objectionable by way of prescribing the mode of condemning the land.

      Notwithstanding the fact that the commissioners are authorized to issue certificates in payment for the land taken, yet as no owner is required to accept them, inasmuch as he may rely on the direction of the final order in the proceedings and insist upon receiving his money before his land is actually taken, there is no objection to such provision.
    Appeal by the defendants, Ered P. Michels and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 17th day of May, 1891, upon the decision of the court, rendered at the Monroe Special Term, decreeing that the condemnation of the real property described in the petition is necessary for the public use, and that the plaintiffs are entitled to take and hold such property for the public use, with notice of an intention to bring up for review o.u such appeal all proceedings antecedent to said judgment.

      Thomas Haines, for the appellants.

      William F. Cogswell, for the respondents.
    Judgment appealed from affirmed, with costs, on opinion of Rum-set, J., at Special Term.
    Present — Dwight, P. J., Lewis, Haight and Bradley, JJ.
   The opinion of the Special Term was as follows:

Rumsey, J.:

This proceeding has been begun under the authority conferred by chapter 603 of the Laws of 1892, providing for the construction of a sewer in certain wards of the city of Rochester and in the town of Gates, which adjoins the city on the west. It has been adjudged that the work is necessary for the public health, and the plaintiffs have been duly appointed commissioners to carry it on. Being unable to agree with the defendants for the purchase of lands required for the sewer, the plaintiffs have taken this proceeding. The answer contains denials of certain allegations of the petition, but those allegations, I think, upon the testimony submitted, are sustained.

The only question here presented is whether the act in question is constitutional.

That the construction of the sewer is required for a public purpose, namely, to preserve the public health, cannot be denied, because it has been so formally decided and adjudged. But the claim of the defendants is that, conceding the public purpose, the act is yet not within the power of the Legislature, because that body is forbidden to pass a local or private bill providing for the drainage -of swamps or other low lands, even for a public purpose.

That this hill is local must be conceded. (People v. Supervisors of Chautauqua, 43 N. Y. 10.) It may, I think, be conceded also that a local hill that has for its-sole or-its-main purpose the drainage of swamps or low lands, although such drainage is required for the public health, is not constitutional, although, in view of the rule that these limitations upon the power of the Legislature are not to be extended (Matter of Gilbert Elevated Ry. Co., 70 N. Y. 361, 371), this may be open to argument if it were necessary to deny it in this case.

But I think it is not to he disputed that the Legislature has now, as it always had, the power, by local act, to authorize the construction of a sewer in any city of the State. Such a power is nowhere prohibited by the Constitution, and, therefore, the Legislature may by statute direct the work to be done, and prescribe the" manner of doing it. (People ex rel. McLean v. Flagg, 46 N. Y. 401; People ex rel. Morrill v. Supervisors of Queens Co., 112 id. 585, 588.) Manifestly, it may provide for the carrying away of sewage when the public health and convenience require it, whether the territory to be drained by the sewer he within the bounds of an incorporated city or village, or be any other portion of the State so thickly settled that health and decency require that sewage and foul refuse matter which may breed pestilence shall be removed.

Indeed, did the needs of the city demand it, and the health of the citizens require such an action, the Legislature might have directed the city authorities to construct the sewer upon the route selected, and pay for it out of the funds of the municipality. (Matter of the Mayor of N. Y., 99 N. Y. 569, 571, 585.)

The question in each case is whether upon the whole the particular enterprise is primarily for the benefit of the people of the city and within the ordinary range of the municipal action.

If those conditions exist, the purpose is a city purpose, although people outside are incidentally benefited. -

When a great trunk sewer is to be built in a laijge and rapidly growing city, proper regard for economy and the interest of the community requires that some thought should be taken for the future growth and wants of the city. The law may, therefore, prescribe not only sufficient size to such a sewer, but may also direct such an extension as will supply the future needs of those who live or are likely to live within the area which might 'naturally drain- into it. (Matter of Mayor of N. Y., 99 N. Y. 569, 591.)

None of these things are seriously disputed by the defendants.

They draw a distinction between the power of the Legislature to drain swamps and low lands for the public health by local acts, which they deny, and the power in the same manner to reqiiire the construction of sewers to carry off the sewage from more or less thickly populated districts, which last power cannot be disputed. But, -of course, the fact that more or less water is drawn off into a sewer for the purpose of draining a low piece of ground which happens to lie near it, does not invalidate the act authorizing its construction.

Indeed, the use of sewers is quite as much to carry away collections of rain and surface water which would otherwise become stagnant, as to carry off sewage, strictly so-called.

Although such results may incidentally take place, it is of no importance if the principal use of the sewer is to do the office which sewers are called upon to do. It is not material that the commissioners have planned too large a sewer, if that be the fact. That must be corrected, if at all, in another way. We are only concerned vrith the provisions and objects of the law.

So, we are brought to the question whether, in fact, this act is one providing for the drainage of swamps and low lands, or for the construction of a conduit to receive the sewage of a large extent of territory actually and potentially the residence of great numbers of people.

The act itself purports to provide for the construction of a sewer in a city and upon adjoining territory, a thing clearly within the power of the Legislature. If we are bound by the title and provisions of the act there can be no doubt that it is constitutional, and I do not see how any question can arise upon it.

Just how far the courts may go behind the ostensible purpose of an act as shown upon its face and examine into its effects and mode of execution to enable them to declare its unconstitutionality seems •to be a little doubtful. In Waterloo W. Mfg. Co. v. Shanahan (128 N. Y. 345) it was held that in deciding these questions the scrutiny which the court might exercise was confined to matters appearing on the face of the bill and to things which were the subject of judicial notice. When the purpose of the bill was one within the power of the Legislature to compass and'the means used were appropriate for that purpose and not forbidden, it was held that a court was not at liberty to take testimony to show that the real effect of the bill was to do something different, and for that reason hold the bill to be unconstitutional. Within that rule there is no reason here to say that the law is not valid. It is passed to accomplish a thing which is within the power of the Legislature and which may lawfully be done by a local act, if we are to accept the bill itself as containing the true statement of its object.

But if that be not so, and we are to examine the testimony to ascertain whether or not the purpose which the law will in fact .accomplish, be within the power of the Legislature by local act, what do we find ?

We find that Deep Hollow creek, so called, is a small stream, taking its rise in the town of Gates near the western limits of the city of Rochester, and running through the city to the Genesee river. That portion of the town of Gates lying adjacent to the city, .and which naturally drains into the creek, is largely opened up by streets and laid out into building lots, and to a considerable extent thickly settled. The streets so laid out are extensions of the city ¡streets, and, though not improved, are opened.

The creek is an outlet for sewers in the town, from the houses of the people living within the drainage area and from shops and factories, and also for large sewers-within the city limits. The population outside the city is quite large and increasing.

There are already within the drainage area of the sewer in the town 325 houses, the sewage from which either does now, or in no great time hereafter will, drain into the creek. The number of acres in the drainage area is 6,544, of which 877 are within the limits of the city and the remainder lie in the town adjoining the city limits. This land is generally high and rolling, but there are scattered ■through it low and wet spots, some of which are already drained and improved and some of which are still swampy. The total quantity of low land is between 600 and 700 acres, of which about 100 acres are in the city. This low land lies in detached pieces, part of it already opened up for building lots, both outside and inside the city. It is fair to infer that within no long time this drainage area will he thickly settled. Until that occurs, the sewage and drainage water from the now settled parts of the territory can be carried off in a much smaller sewer than the one proposed. But when this territory shall have been built up, the proposed sewer will be none too large to dispose of the sewage and water which will flow into it.

Considering these facts, it is clear that the principal object of the law is to provide means of disposing of the sewage which now flows out of this territory and that which it is reasonable to expect must be taken care of within a short time. It is quite true that much surface water will flow through it and no doubt many wet spots will be drained by it, but such incidental benefits will not warrant the condemnation of the law. It is to be judged by its practical effect and operation (Forster v. Scott, 136 N. Y. 677, 584), and so judged is-not to be condemned unless it is clear and plain that some provision of the Constitution has been violated. (People ex rel. Carter v. Rice, 135 N. Y. 473, 484.) Indeed, it is just as necessary that a sewer should carry off surface water from the streets and low places-as that it should take away the sewage.

Upon all the facts it seems to me that it would be a flagrant abuse of the power of the court to hold that this law was not within the power of the Legislature to enact.

It is further objected that the act is unconstitutional because it does not provide for the payment of a compensation for the land taken. The statute (§ 6) prescribes that if the commissioners cannot agree with the owners they may proceed under the Condemnation Law. This reference to the general law by way of prescribing the mode of condemning land is not objectionable. (People ex rel. Comrs. v. Banks, 67 N. Y. 568.) The Condemnation Act provides not only the manner of procedure to appraise the damages, but it-directs the form of the final order, which is that upon payment of such compensation ” the plaintiff shall be entitled to enter upon the-land, etc. (Civil Code, § 3371.) No lands can be taken unless this is done.

It is true that the commissioners are authorized to issue certificates in payment for lands (§ 11), but no owner is required to accept them. He may if he choose rely on the direction of the final order in the proceedings and insist upon his money before his land is actually taken.

Upon the whole case the plaintiffs are,entitled to an order appointing commissioners to appraise the lands of the defendants.


source: Caselaw Access Project

author: Dwight, P. J.: Bradley, J.

license: Public Domain

text:
    Harry Sneck, Respondent, v. The Travellers’ Insurance Company of Hartford, Conn., Appellant.

      Accident insurance policy — what is a “loss by severance of one entire hand”— erroneous submission of the question to the jury.

    Upon the trial oí an action brought to recover the amount of an accident insurance policy it was shown that in the policy of insurance given by the defendant to the plaintiff was a clause as follows: “If loss by severance of one entire hand or foot results from such injuries” the defendant shall be paid one-third of the principal sum of $2,000 named in lieu of the weekly indemnity therein provided for.
    The plaintiff’s hand was caught in the knives of a planing machine and was cut off three-quarters of an inch back of the knuckle joints and just back of the head of the first bone of the thumb. The severance was of the phalanges and the heads of the metacarpel bones, leaving the palm of the hand covering the carpal and metacarpal bones, except the heads of the latter, and the middle bone of the thumb except its head. He retained the joint at the wrist unimpaired with all the motions it ever had, in all directions. The surgeon who made the amputation testified on behalf of the plaintiff, that “ the portion of the hand which remains is more useful than if the amputation had been at the wrist.” The plaintiff himself testified that what remained of his hand was of considerable use to him.

      Held, that to bring the case within the provision of such clause of the policy the loss must be substantially of the entire hand, both in respect to its structure and its use. (Bradley, J., dissenting.)
    That under the evidence in the case it was manifestly erroneous to submit to the jury the question whether the plaintiff had sustained a loss within the provision of the policy in regard to-a “severance of one entire hand.” (Bradley, J., dissenting.)
    Appeal by the defendant, The Travellers’ Insurance Company of Hartford, Connecticut, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on tlie 29th day of March, 1894, upon the verdict of a jury rendered after a tidal at the Monroe Circuit, and also from an order entered in said clerk’s office on the 29th day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes. ,

      Satterlee dé Ta/ylor, for the appellant.

      Howard W. Sneoh, for the respondent.
   Dwight, P. J.:

The defendant insured the plaintiff, in the sum of ten dollars a week, against loss of time, not exceeding twenty-six weeks, i’esulting from bodily injuries received in a manner described and producing a degree of disability particularly defined; and further, by its policy, undertook that “ if loss Toy severa/noe of one enim'e hand or foot ” should result from such injuries, alone, within ninety days, it would pay him one-third the principal sum of $2,000, named in the policy, in lieu of such weekly indemnity.

By this action the plaintiff sought to recover under the 'second alternative of the above provision, and he was permitted to do so on the theory that he had suffered “ the loss by severance of one entire hand.” An exception taken by the defendant to the charge of the court raises the question whether that theory was supported by the evidence in the case, and the motion for a new trial was made on the ground that the verdict of the jury in that respect was contrary to the evidence.

The evidence is undisputed. The plaintiff’s hand was caught in the knives of a planing machine and was cut off three-fourths of an inch back of the knuckle joints and just back of the head of the second bone of the thumb. Anatomically, the severance was of the phalanges and the heads of the metacarpal bones, leaving the palm and back of the hand covering the carpal and metacarpal bones, except the heads of the latter, and the middle bone of the thumb, except its head, lie retained the joint at the wrist unimpaired, with all the motions it ever had, in all directions. The surgeon who made the amputation, and who was called by the plaintiff, testified: “ The fingers and the heads of all the metacarpal bones were cut off with a planer. * * * ^ little over half of the hand, speaking anatomically, is gone. There are twenty-seven bones in the skeleton of the hand,' Thirteen bones are entirely gone and parts of five more. ■ The parts of the five are simply the heads of the metacarpal bones and (the head of) the middle bone of the .thumb.” The same surgeon testified that the portion of the hand which remains is more useful than if the amputation had been at the wrist, and he illustrated the statement by saying that the plaintiff might use it in pitching hay, grasping the handle of the fork with his right and lifting with his left. The plaintiff himself testified that his left hand is of considerable use to him. There is no evidence to the contrary of that above given.

Upon this evidence it was, we think, manifest error to submit to the jury the question whether the plaintiff had sustained the loss, by severance, of an entire hand. The loss which he sustained was unquestionably by severance, but it was not of the entire hand. He lost all of his fingers, but he retained part of his thumb and nearly the whole of the palm and back of the hand.

There seems to be no room for construction of the language of the contract. To bring the case within the provision in question the loss must be of the entire hand. Of course this means substantially the entire hand, both in respect to its structure and its use. In this case, upon undisputed evidence, there was not such a loss in either respect. Structurally, nearly half his hand was saved to the plaintiff, and the testimony, both of himself and his surgeon, is to the' effect that what he retains is of appreciable and substantial use.

The argument does not seem to admit of elaboration nor the citation of authorities. The case stands upon the unequivocal language of the contract and the undisputed evidence as to the extent of the injury.

We think the judgment and order appealed from must be reversed and a new trial granted.

So ordered, with costs to abide the event.

Lewis and Haight, JJ., concurred.

Bradley, J.

(dissenting) :

The plaintiff was operating a planer when his left hand was severed. The leading question upon the trial was whether the injury suffered by him was loss by severance of the entire hand within the meaning of the policy, because, upon the determination of that fact in the affirmative was dependent the plaintiff’s right to recover anything more than a weekly allowance.

The description given by the plaintiff of the injury is that his hand was cut off from three-quarters of an inch to an inch back of the knuckle joint, and the thumb just back of the head of the bone of the first joint.” And the portion remaining of the hand was shown to the jury. The description of it, as given by the evidence .of a surgeon, is that the fingers and the heads of all the metacarpal bones were cut off ; the thumb had been pressed back and the bone cut off obliquely, and he added that a little over half the hand, speaking anatomically, is gone ; that there are twenty-seven bones in a complete hand; thirteen of them are entirely gone from the plaintiff’s hand and parts of five more, and that the parts gone of the five are the heads of the metacarpal bones and the middle bone of the thumb. These metacarpal bones are those which connect the carpus or wrist with the phalanges or fingers, and constitute what is termed the metacarpus, as the doctor expresses it. He says that the hand commences at the termination of the forearm, and includes the wrist joint. If the removal of the entire hand is essential to the “ loss by severance of one entire hand ” within the meaning of the provisions of the policy, the plaintiff’s recovery cannot be sustained. But it would seem more reasonable in its import to so construe the provision as to confine the application of it to the effect of the loss produced by the severance. Thus interpreted, the right of such indemnity would be given by the defendant’s policy, when, by the severance of the hand or foot, the use of it as such is entirely lost.

Somewhat analogous is the case of Sheanon v. Pacific, etc., Ins. Co. (77 Wis. 618; 20 Am. St. Rep. 151), where the question related to the provision of a policy that the company would pay if the insured should suffer the loss of the entire sight of both eyes, or the loss of two entire hands or two entire feet, or one entire hand and one entire foot.” The court held that the loss by the assured of the use of his feet from accidental, cause came within such provision of the policy, and that paralysis of his lower limbs caused by his being shot in the back entitled him to recover as for loss of his feet. No defined manner of the loss of the members was made requisite to relief under that policy. Although it is otherwise in the present case, the requirement of physical severance has relation only to the manner in which the injury must be produced to bring the case within the provisions of the policy for the greater indemnity. And the loss covered by it does not necessarily depend upon the extent of the amputation, but upon the effect of the severance upon the use of the member, and the effect must be the entire loss of the use of it.

The view taken is that a construction more favorable than this to the defendant is not required by the terms of the policy. That is the sense in which it is reasonable to suppose it was intended and understood, and such is the interpretation to which it is fairly entitled. (Hoffman v. Ætna, etc., Ins. Co., 32 N. Y. 405; Herrman v. Merchants’ Ins. Co., 81 id. 184; Darrow v. Family Fund Society, 116 id. 537.)

This was the view taken by the trial court, and the question whether the plaintiff’s loss by the severance of his hand was the loss of the entire use of it was submitted to the jury with instructions that if they found that it was not so the plaintiff was not entitled to recover any portion of the principal sum mentioned in the policy. On the subject of the effect of the severance of the hand upon the use of what remained of it, evidence was given tending to prove, and it must be assumed, that it was more useful for certain purposes than would have been the condition produced if it had been taken off at the wrist joint; that it can be placed under bodies and thus used in raising them, and that it can be used to bear upon bodies to steady them while he is lifting them with the other hand, but that he cannot grasp anything with it. "Whether it would have given him greater inconvenience and been less useful if none of it had remained is not necessarily the question, but the inquiry is whether the loss of it as a hand for its purposes as such was entire. There remained neither fingers, thumb or knuckles.

The evidence warranted the conclusion that for the practical purposes to which the use of a hand is adapted there -was an entire loss of the use of it, and the question was properly submitted to the jury.

For these reasons, not adopting the views of a majority of the court, I think the judgment and order should be affirmed.

Judgment and order appealed from reversed and new trial granted, with costs to abide the event.


author: Bradley, J.:

text:
    The People of the State of New York ex rel. Charles Young v. James C. Stout, Agent and Warden of State Prison at Auburn, N. Y.

      Treaties, the supreme law — indictment- — -judgment of conviction of am, offense not extraditable, when void — jurisdiction of courts to convict of such an offense— writ of habeas corpus — purpose thereof.

    A treaty made between the United States and a foreign country is the supreme law of the land, of which a court is required to take judicial notice.
    Under an indictment charging only the higher degree of a crime a person may be convicted of a lesser degree of the offense.
    A person extradited from a foreign country cannot lawfully, by a judgment of a court, be punished for an offense, committed prior to his extradition, not extraditable by the treaty existing between the United States and such foreign country, until his failure, after an opportunity to do so, to return to the country by which he has been surrendered.
    If a person indicted for the crime of assault in the first degree and also for the crime of assault in the second degree, upon his trial is found guilty of assault in the second degree, he is thereby acquitted of the charge of assault in the first degree.
    The limitation of jurisdiction to try in the United States a person delivered up in a foreign country is dependent upon his having been surrendered pursuant to a treaty. If he is otherwise taken into custody and brought into the jurisdiction of the United States court, no extradition treaty is violated by his trial for any offense, and the same rule is applicable to the trial of a person voluntarily surrendered by the government of a foreign country without reference to an existing treaty between such country and the United States.
    Where a person has been extradited from the kingdom of Great Britain under an indictment charging him with assault in the first degree, pursuant to a treaty between that government and the United States, if upon his trial he is found guilty of the crime of assault in the second degree, he is entitled to demand his liberty and a reasonable time wdthin which to return to the kingdom of Great Britain if the crime of assault in the second degree is not an extraditable offense under the provisions of such treaty.
    Habeas corpus is a common-law writ; its privilege is preserved by the organic law of the State of New York and its legitimate purpose cannot be denied by statute. It is not available to inquire thereby into the mere legality or justice of a judgment or mandate, if the term “legality” or “justice” is not used so as to include questions of jurisdiction or power; but the want of jurisdiction of a tribunal to pronounce a judgment or mandate, by which a prisoner is placed and detained in custody, furnishes to him the right to resort to such writ for relief, and that is the subject of inquiry thereunder.
    If a party is held in custody only by virtue 'of a judgment pronounced when there was no jurisdiction to pronounce the same, either on account of want of jurisdiction or by reason of its being in excess of jurisdiction, the judgment is void and he is not put to an appeal therefrom, but may be released by habeas corpus.
    Return to a writ of habeas corpus issued out of the General Term of the Supreme Court held in and for the fifth judicial department and bearing date the 26th day of September, .1894.

      H. J. <& IF. H. Sullivan, for the relator.

      Howard H. Wiclener and E. O. Aiken, for the defendant.
   Bradley, J.:

By indictment found by the grand jury of Monroe county in June, 1893, containing three counts, the relator was charged (1) with the crime of assault in the first degree made with a loaded revolver, with intent to kill Herbert Guering; (2) with assault in the second degree upon the same person with a loaded revolver and the infliction of grievous bodily harm; (3) with assault in the second degree with an instrument likely to produce grievous bodily harm upon the same person.

The relator was tried upon the indictment in April,-1894, in the Court of Sessions of that county, and by the verdict of the jury found guilty of assault in the second degree. The judgment of the court thereon was that he be'imprisoned in the State prison at Auburn for the term of four years and five months, and he was committed accordingly.

After the rendition of the verdict and before sentence the relator moved in arrest of judgment that the court had no lawful right or jurisdiction to render it for the reason that having been extradited from England on the specific charge of assault with intent to commit murder and having been acquitted of such charge he was entitled to and demanded his liberty that he might have a reasonable time to return to England, in accordance with the provisions of the treaty existing between Great Britain and the United States. The motion was overruled and the judgment before mentioned followed.

The facts upon which the relator seeks to be relieved from the judgment and imprisonment are that shortly after the commission of the act constituting the alleged offense he left this country and went to England, from where he was extradited and brought back to the county of Monroe pursuant to the provisions of a treaty between the two governments, whereby it was agreed that the United States and Her Britannic Majesty should upon mutual requisitions respectively made, deliver up to justice all persons who being charged with the crime of murder or assault with intent to commit murder * * * shall seek an asylum or shall be found within the territories of the other.” It also provides for the manner and means of accomplishing its purpose. (Treaty of 1812, art. 10.)

By a further treaty supplementai’y to that article it was provided that “ No person surrendered by or to either of the high contracting parties, shall be triable or be tried for any crime or offense committed prior to his extradition other than the offense for which he was surrendered until he shall have had an opportunity of returning to the country from which he was surrendered.” (Treaty of 1889, art. 3.)

And further provision was made by the Federal statute for accomplishing the purposes of extradition treaties with foreign countries. (U. S. B. S. tit. 66, §§ 5270-5279.)

In the requisition and warrant of the executive of the United States upon which action was taken in England pursuant to the treaty, with a view to the surrender of the relator, the offense with which he was charged was specifically stated as that of “ assault with intent to commit murder,” and the warrant there issued for the surrender of him to the agent commissioned to receive and bring him to the United States in like manner described the alleged offense upon which the extradition proceedings were had.

The question upon the merits is whether the Court of Sessions of Monroe county exceeded its jurisdiction of the person of the relator in the rendition and execution of the judgment which consigned him to imprisonment. He was not extraditable under the treaty upon the charge of the offense of assault in the second degree. The alleged crime upon which the extradition proceedings were taken and had was assault in the first degree as defined by our statute. (Penal Code, § 217.)

The relator was, therefore, properly put upon trial and tried under the indictment. But he was convicted only of a lesser offense than that for which he had been extradited, and a lesser offense than that for which he was extraditable, by virtue of the treaty between the United States and Great Britain. How then, in view of its provisions, could he lawfully be subjected to the judgment pronounced upon the verdict ? The treaty is the supreme law of the land, and of it the court was required to take judicial notice. (U. S. Const, art. 6, § 1, subd. 2.)

It must be assumed that the relator could not lawfully, by the judgment of the court, be punished for an offense not extraditable by the treaty until his failure, after opportunity to do so, to return to the country in which he had been surrendered. (U. S. v. Rauscher, 119 U. S. 407.)

He was not convicted of that offense. But it is urged, on the part of the defendant, that as the court had jurisdiction to try him upon the indictment as for assault in the first degree, it was within the power of the court to punish the relator for any lesser degree of the crime of assault for which he should by the jury be convicted on such trial. It is true that upon an indictment charging only the higher degree of the crime a person may be convicted of any lesser degree of it. (Penal Code, §§ 10, 35 ; Code Grim. Proc. §.§ 390, 444.) This is upon the theory that the lesser is included in the higher degree of the offense. (Id. § 445.) But, nevertheless, the minor is not the major offense. And unless the conviction of an assault, less in degree than that with intent to commit murder, was within the contemplation of the extradition treaty, it is not seen that the relation of it to such extraditable charge can bring the lower degree within the purpose or effect of the surrender made pursuant to the treaty. The purpose of the international compact evidently was to confine its execution to those charged with the graver crimes, and it is entitled to no construction which will justify the trial, conviction or punishment of a person surrendered pursuant to it of any degree of assault other than that there mentioned. If anything further in that respect had been intended it may be assumed that such purpose would have been in some manner expressed in the treaty.

The effect of the verdict of conviction for assault in the second degree was acquittal of Young on the charge of assault in the first degree. (People v. McDonald, 49 Hun, 67; People v. Willson, 109 N. Y. 347.)

Before the supplemental treaty of 1889 was made, that of 1842 was in many cases so construed as not to permit the trial of a person delivered up in execution of tlie treaty for any offense other than that for which he was extradited while his custody, taken by such surrender, continued. (Commonwealth v. Hawes, 13 Bush, 697; 26 Am. Rep. 242; State v. Vanderpool, 39 Ohio St. 273; 48 Am. Rep. 431; Ex parte Hibbs, 26 Fed. Rep. 421, 431.) And such is the import of the Federal statute on the subject. (U. S. R. S. §§ 5272, 5275.)

In U. S. v. Rauscher (119 U. S. 407, 432), decided in 1886, where the court distinctly • so held, it was said: “We do not think the circumstance that the same evidence might be sufficient to convict for the minor offense, which was produced before the committing magistrate to support the graver charge, justifies this departure from the principles of the treaty.” This construction of the treaty, as well as such effect of it, was by expression obiter recognized with approval in People ex rel. Post v. Cross (135 N. Y. 540).

The view expressed by Chief Judge Church in Adriance v. Lagrave (59 N. Y. 110, 115), that there was no treaty provision denying the right to try for any other than the extraditable offense, is not applicable to the situation afterwards produced by the supplemental provision of the convention of 1889.

The limitation of the jurisdiction to try here a person delivered up in a foreign country is dependent upon his surrender pursuant to a treaty having such effect. If he is otherwise taken into custody and brought into the jurisdiction of our courts, no extradition treaty is-violated by the trial of him for any offense. (Ker v. Illinois, 119 U. S. 436.) And the same rule would be applicable to the trial of a person voluntarily surrendered by the government of a foreign country without reference to the treaty on that subject between that and this country.

It is here urged by the defendant’s counsel that the surrender of the relator should be treated as having been so made as not to confine the right of trial to the extraditable offense of the treaty. The reason asserted for such contention is that the indictment was present at the hearing had preliminarily to the surrender, and it should be assumed that he was delivered up for trial on the charge of assault in any of the degrees alleged in the indictment. Nothing appears to justify such inference or conclusion. The proceedings in England, as they appear by the documentary evidence, were had pursuant to the treaty, and this appears by the warrant there issued wherein the alleged offense upon which lie was surrendered is distinctly stated to be that of assault with intent to commit murder.

The further question is raised whether relief can be had by habeas corpus, and it is insisted that the only remedy available to the relator is in review of the judgment by appeal, and that at all events that remedy should first be exhausted.

The statute provides that the court before which a person is brought by virtue of the writ of habeas corpus must examine into the facts alleged in the return, and into the cause of the imprisonment, and must make a final order to discharge him therefor if no lawful cause for the imprisonment is shown. (Code Civ. Proc. § 2031.) But if it appears that hefis detained “ by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction,” he must be remanded. (Id. § 2032.)

Habeas corpus is a common-law writ, and the privilege of it is preserved by the organic law of the State (Const, art. 1, § 4); and, therefore, its legitimate purpose cannot be denied by statute. It is not available to inquire into the mere legality or justice of a judgment or mandate. For that purpose the remedy of the prisoner is by review. (People ex rel. Danziger v. House of Mercy, 128 N. Y. 180; People ex rel. Gunn v. Webster, 75 Hun, 278; Ex parte Fonda, 117 U. S. 516; In re Wood, 140 id. 278.) But the term “legality” or “justice,” in the sense so used, is not deemed to include questions of jurisdiction or power. And the want of jurisdiction of the tribunal to pronounce the judgment or mandate by which the prisoner is placed and detained in custody furnishes to him the right to resort to the writ for relief, and that is the subject of inquiry. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Frey v. The Warden, etc., 100 id. 20; People ex rel. Danziger v. House of Mercy, supra)

In the present case the jurisdiction of the Court of Sessions, as respects the person and subject-matter, to try the relator upon the charge of assault with intent to kill, cannot be questioned. This was the offense alleged in the first count of the indictment. He was, therefore, properly put upon trial in that court. But by virtue of the supreme law of the land the custody of the relator was so qualified as not to exist other than for the purposes of his trial upon that specific charge. For any other purpose his person was beyond the legitimate control of the court —■ excluded from it by force of the international treaty before mentioned. If that charge had been stricken from the bill the lawful custody and jurisdiction would have ceased, and he would have been enabled to return to the country from which he had been extradited. The like effect followed his acquittal of that offense, which was the result given by the verdict for an assault in a minor degree only. In that view it would seem that the question is no different than it would have been if the indictment upon which he was tried had not contained the count for assault in the first degree. Then he could not have been tried without violation of the treaty pursuant to which he was extradited, and (as held in U. & v. Hausoher) he was clothed with the right of exemption from trial for any other than the one offense until he had the opportunity to return to the country from which he was taken. It follows that there was no jurisdiction to pronounce the judgment for execution against the relator. And, as said by Judge Allen in the Tweed Case (60 N. Y. 591): “A party held only by virtue of judgments thus pronounced, and, therefore, void for want of jurisdiction, or by reason of the excess of jurisdiction, is not put to his writ of error (appeal), but may be released by habeas corpus.”

These views lead to the conclusion that the relator is entitled to his discharge from imprisonment.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Ordered that the relator, Charles Young, be and he hereby is discharged from imprisoment. But let the execution of this order be suspended for five days after the service of a copy of this order upon the district attorney of Monroe county.


text:
    Sarah A. Burtis, Plaintiff, v. Thomas V. Dickinson and Another, Defendants. Charles D. Marshall, Plaintiff, v. Thomas V. Dickinson and Another, Defendants. Ludwig Nissen and Alexander C. Chase, Plaintiffs, v. Thomas V. Dickinson and Another, Defendants. German-American Bank, Plaintiff, v. Thomas V. Dickinson and Another, Defendants.

      Wa/rrant of attachment — right of attaching creditors to enforce their lien — levy thereunder on property transferred by the debtor.

    ■Where a warrant of attachment has been levied upon property, the attaching creditors are permitted to enforce their asserted right to a lien thereunder upon the ground of fraud on the part of the debtor or for any reason which would tend to support the attachment against the claim of others.
    The mere lien of a warrant of attachment before judgment does not support an action by the creditor at large to set aside as fraudulent a prior charge upon, or apparent title to, the personal property attached, nor is such remedy essential for the protection of the attaching creditor, because the officer has the custody of the property and^ affirmative action is with those asserting title or claim adverse to the lien of the attachment.
    To create a specific lien by attachment it is necessary that the attachment should be levied upon property, and where the property of a debtor was not in the custody of the sheriff at the time the warrant of attachment against such debtor was delivered to him, and the attachment was not levied upon such property, and the attaching creditors had no judgment against the debtor, they cannot maintain an action in aid of an execution, nor have they standing in court to move that certain judgments against their debtor be vacated.
    A creditor’s right by virtue of his attachment to contest adverse claims upon the property of his debtor is dependent upon a specific lien acquired by the levy of the attachment thereon, which levy may be made although there has been an apparent transfer of his property Dy the debtor.
    Appeal by Ludwig Nissen, Emil Knopf and John W. Ruefer, composing the firm of Ludwig Nissen & Co., attaching creditors of the defendants, Thomas Y. Dickinson and another, from four orders of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 13th day of June, 1894, denying motions to vacate the judgment entered against said defendants in each of four actions.

      Mwtin Olcwh, -for the attaching creditors, appellants.

      George O. Miller, for the respondents.
   Bradley, J.:

The defendants, husband and wife, were engaged on March 27, 1894, as partners in the sale of jewelry at the city of Buffalo. On that day judgments in the above-entitled actions were entered against them upon their confession, and executions upon three of them were issued to the sheriff of Erie county, who levied them upon the stock of goods, etc., in the store occupied by the defendants. On the same day an execution issued upon a judgment recovered by action against them by the Queen City Bank was also delivered to the sheriff and by him levied upon the property.

The execution upon the judgment of the German-American Bank was delivered to the sheriff March 31,1894. The property was by him sold’by virtue of the executions April 3, 1894, for the sum of $15,000. The appellants, Ludwig Nissen & Go., afterwards commenced an action against the same defendants, and on May 3, 1894, a warrant of attachment was issued therein and delivered to the same sheriff, who declined to levy it upon the property for the asserted reason that the title to it had by such execution sale passed to the purchaser.

The appellants founded their motion upon the charge:

(1) That the statements of confession were defective and insufficient to support the judgments entered thereon.

(2) That the defendant Matilda J. Dickinson, being a manned woman, was incapable of making effectual confession of the judgments.

(3) That the judgments so entered are fraudulent and void as against the appellants.

All the judgments were entered in this court. And the validity of the Queen City Bank judgment is not questioned.

For the purposes of the question the motion may have such treatment as an action brought by the appellants for a like purpose would be entitled to. If the attachment had been levied upon the property, it is clear that they would be j)erniitted to defend their asserted right to the lien of it upon the ground of fraud or for any reason which would tend to support it against the claim of others. (Hall v. Stryker, 27 N. Y. 596; Rinchey v. Stryker, 28 id. 45; Thurber v. Blanck, 50 id. 80.)

• The mere lien of attachment before judgment does not support an action by the creditor at large to set aside as fraudulent a prior charge upon or apparent title to property. Nor is such remedy essential for the protection of the attaching creditor, because the officer in such case has the custody of the property, and affirmative action is with those asserting title or claim adverse to the lien, of the attachment.

In Mechanics', etc., Bank v. Dakin (51 N. Y. 519) the plaintiff had’ not only the levy of his attachment, but also judgment and execution. And in People ex rel. Cauffman et al. v. Van Buren (136 N. Y. 252) the relators had caused an • attachment to be levied upon the property in question which had been levied upon and advertised for sale by virtue of executions of judgment creditors. Thereupon, in an action commenced by the relators against the sheriff and such judgment creditors, an injunction order was made and served restraining them from selling or disposing of the property during the pendency of the action. For proceeding to dispose of the property in violation of the injunction, they were held to have been in contempt, and subjected to a fine in consequence. The court held that an action for such injunctive purposes is maintainable.

To create a specific lien by attachment it is essential that it be levied upon property. (Van Camp v. Searle, 79 Hun, 134.) In the present case the property in question was not in the custody of the sheriff at the time the attachment was delivered to him, nor was the attachment levied upon it, nor did the appellants have any judgment against the debtors, and, therefore, could have no action in aid of an execution.

The appellants’ counsel cited Falconer v. Freeman (4 Sandf. Ch. 565) in support of the purpose of the motion. But the attachment there was issued under the Revised Statutes, and was necessarily for the benefit of all the creditors of the debtor. And there an injunction was issued to enable the plaintiff to have the attachment levied. The injunction was alleged to be necessary to restrain the defendants from disposition of the proceeds of. the sale which was then advertised of the property.

In view of the situation so presented, the motion to dissolve the injunction was denied, although, as a rule, an action for the other purposes of the relief sought could not generally be maintained before trustees were appointed. (Wintringham v. Wintringham, 20 Johns. 296; Fort v. Fort, 9 Wend. 442.)

At that time the proceeding by attachment was treated as a suit, and the trustees appointed in it were, by the statute, deemed vested with the estate, real and personal, of the debtor, with power to sue, etc. (2 R. S. 41, §§ 6, J; In re Brown, 21 Wend. 316.) The Fal-' coner case has no necessary application to attachment proceedings under the present statute. The creditor makes use of it for his benefit alone. His right, by virtue of his attachment to contest .adverse claims upon the property, is dependent upon a specific lien acquired by the levy of it thereon. And such levy may be made although there has been an apparent transfer of it by the debtor. (Skinner v. Oettenger, 14 Abb. 109.)

Without the consideration of any other question the conclusion follows that there is no support for the motion, and the oi’def should be affirmed.

Dwight, P. J., concurred: Lewis, J., not sitting.

Orders in all of the cases affirmed, with but a single bill of costs of ten dollars and disbursements.


author: Bradley, J.;

text:
    Charles S. Laney, Appellant, v. Rochester Railway Company, Respondent.

      Stay of proceedings — when and by whom, it may be granted — consPruction of a stipulation— a final determination of the issues is not had pending cm appeal.

    An order to stay proceedings upon a judgment appealed from may be made by a judge out of court, and sucb stay may bo operative during tbe pendency of the appeal; and if the judgment was rendered in the Supreme Court a stay thereof may, in a proper case, be granted by a Supreme Court judge, although an appeal has been taken from such judgment to the Court of Appeals.
    When an appeal is taken from a judgment the issues are not deemed finally determined until the result of the review is reached.
    It was stipulated between the parties to an action that a temporary injunction awarded therein should be vacated; that the issues should be referred to a referee named, and that if finally determined in favor of the plaintiff the defendant should, within thirty days from such final determination, institute condemnation proceeding's, and that the defendant should give a bond, conditioned that it would so institute such proceedings and pay the amount of damages awarded in them.
    The reference was perfected, the bond given and the trial had, the determination being in favor of the plaintiff. An appeal was taken to the General Term of the Supreme Court, and the judgment was there affirmed; subsequently an appeal was taken to the Court of Appeals.

      Held, that, within the meaning of the stipulation, there was no final determination of the issues until the judgment of the Court of Appeals was rendered.
    Appeal by the plaintiff, Charles S. Laney, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 8th day of September, 1894, denying the plaintiff’s motion to vacate an order staying the proceedings on the part of the plaintiff in the action, pending an appeal taken by the defendant to the Court of Appeals.

      Quincy Vcm VoorMs, for the appellant.

      Charles J. Bissell, for the respondent.
   Bradley, J.;

The main purpose of the action is to restrain the defendant from constructing a railroad in Elm street in front of plaintiff’s premises in the city of Rochester. In the outset of the action a temporary injunction was obtained. This was pursuant to stipulation of the parties afterwards vacated, and the issues were tried before a referee, who directed judgment for the plaintiff, which was affirmed by the General Term. Thereupon the defendant appealed to the Coui’t of Appeals, and upon the application of the defendant an order was made by a justice of this court staying proceedings on the part of the plaintiff to enforce the injunction awarded by the judgment.

The motion to vacate that order was denied by the order appealed from.

The plaintiff’s counsel insists :

(1) That it was not within the power of a justice at Chambers to make ex parte the order, staying proceedings.

(2) That the defendant is precluded by the stipulation of the parties from taking an appeal to the Court of Appeals.

An order to stay proceedings upon a judgment appealed from may be made by a judge out of court, and sucli stay may be operative during the pendency of tbe appeal. (Code Civ. Proc. § 775 ; Hull v. Hart, 27 Hun, 21.)

The judgment being in this court no reason appears why the order may not have been granted by the judge who made it although ■■an appeal had been taken to the Court of Appeals. (Judson v. Gray, 17 How. 289.)

The other proposition is founded upon the stipulation of the parties made before the trial, by which it was stipulated that the temporary injunction should be vacated, that the issues be referred to a referee named, that if the issues be finally determined in favor of the plaintiff the defendant should, within thirty days from such final determination, institute condemnation proceedings, and that the ■defendant should give a bond conditioned that it would so institute such proceedings and pay the amount of damages awarded in them.

The reference was perfected, the bond given and the trial had as before mentioned. The view urged on the part of the plaintiff is that the issues were finally determined within the meaning of the stipulation when judgment was entered upon the report of the referee, and, therefore, the defendant was required to acquiesce in that judgment and proceed to exercise the right of eminent domain.

If that had been the mutual understanding or purpose of the parties it could have been so expressed as to limit the determination to that judgment which the referee should direct.

It is a final judgment as distinguished from an interlocutory one, and until the appeal was taken it was a final determination, and if affirmed it will remain such. But when an appeal is taken from a judgment the issues are not deemed finally determined until a result of the review is reached. The controversy of the parties arising upon the issues continues on the review, and the determination of it finally by adjudication is that of the issues. It would seem to follow that the use of the word “ issues ” does not give to the stipulation the restricted meaning sought to be applied to it, and that the substantial import of it would have been no different if the word “ action ” in place of issues ” had been used. The intent of the parties im making the stipulation must be treated as that which its terms import.

The order staying proceedings may be so dealt with by the court that it shall not become oppressive to the plaintiff or prejudicial to his rights. If the defendant fail to proceed with reasonable diligence to permit the appeal to be heard and determined, the plaintiff may by order be relieved from it, and the court will, if occasion requires, direct that the defendant give such further security as may be deemed necessary for the protection of the plaintiff in his remedy for relief. Those questions do not arise on this appeal.

The order should be affirmed.

Dwight, P. J., and Lewis, J., concurred; Haight, J., absent.

Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Mary A. Knope, Respondent, v. Joseph Nunn, Appellant.

      A bond and mortgage taken upon the sale of land, owned by two tenants in common,, in the name of'one — remedy of the other tena/nt in common.

    It was shown upon the trial of an action that the plaintiff and the defendant had been the owners in common of certain real estate, and that a deed thereof was executed by them, and given to the defendant to deliver; that the defendant-delivered the deed to the purchaser, and received back a bond and mortgage in his name alone.

      Held, that the plaintiff was at liberty to treat the action of the defendant, in taking the security in his own name only, without her consent, as the appropriation of it for his own benefit, and that defendant was, therefore, liable to her for the share of the proceeds of the sale to which she was entitled;
    That if by the terms of such security the plaintiff had no interest therein, the-defendant was not in a situation to effectually assert, as a defense to an action brought against him by the plaintiff to recover her share of the purchase price, that she in fact had an interest therein;
    That although the taking of the security by the defendant was not the receipt of the purchase money, yet the appropriation to himself of the security taken enabled the plaintiff to charge him with the purchase money as effectually as if it had been actually paid to and received by him;
    That the plaintiff was at liberty to elect to treat the defendant, to the extent of her interest in the purchase money and as the holder of such security, as a trustee in her behalf, and to have the trust enforced accordingly, but that she was not required to do so.
    Appeal by tbe defendant, Joseph Nunri, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 19th day of April, 1894, upon the verdict of a jury, and also from an order entered in the said clerk’s office on the 12th day of May, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Pat/rich McIntyre, for the appellant.

      John A. Bernha/rd, for the respondent.
   Bradley, J.:

The purpose of the action is to recover an amount of the alleged proceeds of the sale of certain real estate to which f>rior to the sale the parties had the title as tenants in common, and of which the plaintiff was the owner of an undivided third part. They united in a deed of conveyance to one Hirschfield of date June 5, 1889, for the consideration of $5,000. The deed so executed was then taken by the defendant for delivery to the grantee named in it when the transaction of the sale should be completed. He afterwards, on July 17, 1889, delivered the deed to such grantee, who executed and delivered to the defendant his bond with a mortgage on the premises payable to him alone to secure $4,000 of the purchase money in four years and interest semi-annually. The defendant paid to the plaintiff $1,250 on account of her interest in the proceeds of the sale.

As only $1,000 of the principal sum secured by the bond and mortgage had been paid, it is insisted by the defendant’s counsel that the plaintiff was not entitled to recover. But the evidence on the part of the plaintiff is to the effect that credit was given to the purchaser, and the bond and mortgage for the purchase money taken by the defendant in his name without her knowledge or consent. This was a controverted question of fact at the trial, upon which the jury found with the plaintiff, and she recovered the amount of the residue of her portion of the purchase money.

This was permitted by the evidence. The parties had an interest in common in the proceeds of the sale, and the plaintiff was at liberty to treat the action of the defendant in taking the security in his name alone, without her consent, as the appropriation of it for his own benefit, and the defendant, therefore, as liable to her for the share of the proceeds of the sale to which she was entitled. (Coles v. Coles, 15 Johns. 159.)

While it is true, as urged on the part of the defendant, that the talcing of security for it was not the receipt of the purchase money, the appropriation to himself of the securities so taken by him without the consent of the plaintiff enabled her to charge him with the purchase money as effectually as if it had been actually paid to and received by him. The conclusion of fact as found by the jury, that the plaintiff neither consented to the taking by him of the securities nor in any manner ratified it, was warranted by the evidence. While she might have elected to treat the defendant to the extent of her interest in the purchase money and as holder of the bond and mortgage as trustee in her behalf and enforced the trust accordingly, she was not required to do so.

As represented by the plaintiff’s evidence, the defendant never offered to transfer to her any interest in the bond and mortgage, nor ever advised her that he had taken them, nor did she learn that he had taken them until this action was commenced.

Therefore, inasmuch as the plaintiff had by the terms of the securities no apparent interest in them, the defendant is not in a situation to effectually assert as a defense that she in fact had any. Their terms import that they were taken for himself alone, and she elects to so treat them. And this in view of the facts found she is at liberty to do. (Floyd v. Day, 3 Mass. 403; Beardsley v. Root, 11 Johns. 464; Chappell v. Dann, 21 Barb. 17; Allen v. Brown, 51 id. 86, 92; 44 N. Y. 228.)

Although as between the defendant and the grantee the giving of the bond and mortgage is not payment of the consideration (8 Johns. 156) it is in the obligation of the lattei so secured, and the defendant as against the plaintiff cannot effectually assert that the remedy is other than his alone upon those instruments to recover, collect and receive the purchase money.

In Corlies v. Cumming (6 Cow. 181) the question arose between a factor who had advanced money and his principal. The factor in such case is the nominal party dealing with goods consigned to him for sale on commission. He is not required to disclose the name of his principal. He may sue in his own name. He in that' manner represents his principal in making contracts of sale withimthe power conferred upon him. This is peculiar to that class of agency. (Ladd v. Arkell, 5 J. & S. 35; 8 id. 150.)

It is unnecessary to inquire whether a demand of the money was requisite, as no such question was raised at the trial.

There was no error in the refusal of the court to direct a verdict for the defendant or a verdict in his favor for the sum of $689.96, as requested. And whether the defendant was entitled to recover or have allowed to him any and if so what sum on account of rents of premises of which the father of the parties died seized, collected or received by the plaintiff, was a question of fact upon the evidence. No request was made for the submission of such question to the jury, nor was any exception specifically taken to the dismissal of it from their consideration. It is, therefore, deemed unnecessary, and under the circumstances of the case not desirable, to consider the question whether or not the court was correct in the view taken that the alleged counterclaim for such rent was necessarily subject-matter involved in the issues of another action pending between the parties for an accounting. (Ormes v. Dauchy, 82 N. Y. 443; Kirtz v. Peck, 113 id. 222.)

Sufficient appears to indicate that it is properly the subject of an action for that purpose. And the evidence does not clearly show a basis for recovery by the defendant of a specific sum for rents which came to the plaintiff’s hands during the lifetime of the mother of the parties. The deed of conveyance was made by them shortly after her death. No other question requires consideration.

The judgment should be affirmed.

Dwight, P. J"., Lewis and Haight, JJ., concurred.

Judgment and order of County Court of Monroe county appealed .from affirmed.


author: Bkadley, J.:

text:
    Adran J. Reynolds, Respondent, v. City of Niagara Falls, Appellant.

      Damages for personal injuries — evidence of physicians — rule of statutory construction— section 75 of chapter 120 c/1886, not repealed by section 86 of chapter 683' o/1892.
    Upon the trial of an action brought to recover damages for personal injuries the plaintiff was asked whether a doctor had presented to him a bill for his services. After his answer in the affirmative the defendant’s objection thereto on the ground that he could not recover for medical services unless he had paid for them was overruled and an exception was taken. The plaintiff further answered that “the amount of the bill was twenty dollars.” He was then asked a similar question as to another doctor, followed by a like objection, ruling and exception, and the plaintiff answered “sixty dollars.”
    The doctors were called as witnesses, and the former testified that he charged the plaintiff twenty dollars for his services, and that the charge was reasonable, and the other doctor testified that his services were worth $100.

      EM, that the evidence given by the plaintiff might not, alone, have entitled such charges for medical services to be considered by the jury, but that the evidence of the doctors was sufficient for that purpose;
    That there was no error in the charge to the jury, to the effect that they were permitted to include in the damages the amount of the expenses incurred by plaintiff for such medical treatment.
    Upon the trial of such action, one of the doctors who had treated the plaintiff for a short time immediately following his injury, and had examined him again at the time of the trial, was asked: “In your opinion, is the present condition which you found permanent or not?” And, after a general objection and exception, he answered: “I am inclined to believe that it is permanent.” Thereupon the motion of the defendant’s counsel to strike out the answer was denied and an exception was taken. The witness further testified: “ My opinion is that it is permanent.”
    The injury as described by the doctors was a fracture of the neck of the right femur and, as a consequence of this fracture of the thigh bone, the right leg of the plaintiff had shortened about three-fourths of an inch, and the doctor testified that the movement of it was somewhat limited.

      Held, that by such evidence the doctor expressed his opinion about the continuance of the known present condition of the plaintiff’s limb, and that it was clearly competent.
    It is a rule of statutory construction/hat a general statute will not, by implication, have the effect to defeat the operation of a special and local statute, unless it is manifest that such was the legislative intent.
    The provisions of section 75 of chapter 120 of the Laws of 1886, which permits the commissioners of deeds of the city of Lockport to exercise their official power beyond its municipal limits and within the county of Niagara, are in force notwithstanding the provisions of section 86 of chapter 683 of the Laws of 1892.
    Appeal by tbe defendant, the City of Niagara Falls, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 5th day of July, 1894, upon the verdict of a jury rendered after a trial at the Niagara Circuit, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 11th day of July, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      FrcmJc H. lomes, for the appellant.

      P. F. Kmg, for the respondent.
   Bkadley, J.:

The plaintiff, in walking on the sidewalk along the westerly side of Main street in the city of Niagara Falls on the evening of June 23, 1893, stepped into a hole in the walk and sustained an injury.

He brought the action to recover the damages he sustained. The hole in the walk, about seven inches in width, extending across the walk, and about the same depth, was occasioned by the absence of a plank. And the evidence tended to prove that it had been in that condition two or three months at that time; that the street was a main thoroughfare of the city. The conclusion was warranted upon the evidence that the defect in the walk at the time in question was attributable to the negligence of the defendant, and that the plaintiff was free from contributory negligence. Those questions were fairly submitted to the jury and they found upon them in the affirmative.

The questions presented by the defendant for consideration arise on exceptions to the reception and retention of evidence and to a certain proposition of the charge made by the court to the jury. The plaintiff was treated for his injury by two physicians, Doctors McBlane and Cole. He was asked: Did Dr. McBlane present you a bill for his services ? ” After his answer in the affirmative, objection upon the ground that he could not recover for medical services unless he had paid for them was overruled and exception taken. The plaintiff further answered: The amount of the bill was twenty dollars.” He was then asked a similar question as to Dr. Cole, followed by a like objection, ruling and exception, and the plaintiff answered “ sixty dollars.” Those doctors were called as witnesses, and the former testified that he charged the plaintiff twenty dollars for his services, and that the charge was reasonable, and Dr. Cole testified that his services were worth $100. Although the evidence thus given by the plaintiff may not alone have entitled those charges for medical services to consideration by the jury the evidence of the doctors was sufficient for that purpose. (Gumb v. Ry. Co., 114 N. Y. 411.) And there was no error in the charge to the jury to the effect that they were permitted to include in the damages the amount of the expense incurred by the plaintiff for such medical treatment. While it may not have been essentially material for any legitimate purpose of the action to prove that the plaintiff spoke the German as well as the English language there was no error prejudicial to the defendant in his evidence to that effect.

Dr. McBlane, who had treated the plaintiff for a short time immediately following the injury, and saw and examined him again at the time of the trial, was asked, In your opinion is the present condition which you found permanent or not ? ” and after a general objection and exception answered, I am inclined to believe that it is permanent.” Thereupon the motion of the defendant’s counsel to strike out the answer was denied and exception taken. The witness further testified: “ IVIy opinion is that it is permanent.” The injury as described by the doctors was a fracture of the neck of the right femur and, as the consequence of this fracture of the thigh bone, the right leg of the plaintiff had shortened about three-fourths of an inch, and' the doctor testified that the movement of it was somewhat limited. It was to this condition that he referred in the expression of his opinion. It is urged by the defendant’s counsel that this evidence was merely speculative as to the possible developments and the condition of the limb in the future, and within the doctrine of Strohm v. N. Y., L. E. & W. R. R. Co. (96 N. Y. 305) inadmissible. Such is not the nature of the evidence. By it the doctor expressed his opinion about the continuance of the known present condition of the plaintiff’s limb. This was clearly competent. (Griswold v. N. Y. C., etc., R. R. Co., 44 Hun, 236; 115 N. Y. 61; McLain v. Brooklyn City R. R. Co., 116 id. 459; Alberti v. N. Y., L. E. & W. R. R. Co., 118 id. 77.)

By the charter of the defendant it was a condition precedent to the maintenance of an action for the cause alleged by the plaintiff that the claim, in writing, be presented to the common council within thirty days after the date of the injury, verified by affidavit. (Laws 1892, chap. 143, § 53.) The plaintiff’s claim in writing was in due time presented to the common council of the defendant, and it was verified by affidavit taken at Niagara Falls before A. O. Morgan, commissioner of deeds of the city of Lockport, N. Y. It was filed with the city clerk and brought to the attention of the common council, and referred to the city attorney. No question was raised as to its sufficiency prior to the time of the trial. When it was offered in evidence objection was interposed on the ground that the affidavit taken before the commissioner of deeds of the city of Lockport was an ineffectual verification of the claim because he had no authority to take it. And it is now insisted by the counsel for the defendant that such commissioner had no power to perform such an official act beyond the limits of the city of Lockport. By the charter of the city of Lockport it is provided that the commissioners of deeds of the city may administer oaths, etc., at any place within the county of Niagara. (Laws 1886, chap. 120, § 75.) This would seem to relieve the verification of the claim from any question of power of that officer to take the affidavit where it was taken in the county, unless in its exercise he was restricted to his city by the provisions of the later statute that commissioners of deeds shall be appointed by the common council of cities and that they “ shall have power to take proof and acknowledgment of all written instruments.” (Laws 1892, chap. 683, § 86.)

The methpd of appointment thus mentioned is the same as that prescribed by section 33 of the charter of the city of Lockport.

It may be assumed that if the power of the commissioner of deeds of that city is dependent upon the later statute the exercise of it would be locally confined to his city, and that such limitation will be implied when nothing appears to the contrary. But the special statute on the subject of the power of the commissioner of deeds of the city of Lockport is not in terms repealed or superseded by the general statute of 1892. And it is a rule of construction that a general statute will not by implication have the effect to defeat the operation of a special and local one, unless it is manifest that such was the legislative intent. (Matter of Commissioners, etc., 50 N. Y. 493; People v. Quigg, 59 id. 83; Van Penburgh v. Village of Greenbush, 66 id. 1; Matter of D. & H. C. Co., 69 id. 209; Whipple v. Christian, 80 id. 523.)

The provision of the charter of the city of Lockport which permits its commissioners of deeds to exercise their official power beyond its municipal limits and within the county of Niagara is deemed in force notwithstanding the provisions of the later statute before mentioned.

And for that reason, without considering any other, the exception to the introduction in evidence of the verified claim was not well taken.

No other question requires any expression of consideration.

The judgment and order should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.


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    Mary O’Connell, Respondent, v. Morris Samuel and Others, Appellants.

      Won-suit — improper denial thereof, cured by subsequent evidence — liability for cm employeds torts — when one entering another’s house and committing an assault is a trespasser from the beginning — right to expel him.

    Upon the trial of an action, a motion was made by certain of the defendants at the close of the plaintiff’s case for a dismissal of the case as to them, on the ground that there was no evidence to support the action against them, and such motion was denied.

      Weld,, that the objection that the motion was improperly denied was obviated if evidence was afterwards given sufficient to charge such defendants with liability.
    A person in the service of a company was engaged in making collections of money due it for property leased by such company, with instructions to retake the property from those who were in arrears, and were supposed to intend not to pay therefor.

      Meld, that when such person proceeded to take such property he was acting in the business of his employer, and in the scope of his employment;
    That although the action to accomplish such purpose became willful on his part, his employers were not for that reason necessarily relieved from the consequences of his conduct, while so engaged, where it was prejudicial to others, for which such person would himself he personally liable.
    The rule that if a person enters the house of another, without objection from the owner thereof, and there commits an assault upon the owner, he is a trespasser from the beginning, is applicable only to the case where the party enters under authority given by law, and not where he enters by license or permission of a person authorized to grant it.
    If a person, after entering the house of another, makes an unlawful assault upon the owner thereof, the owner has the right to use force to expel him from the house, and resistance on his part to an attempt by the owner to expel him therefrom is not justified.
    Appeal by the defendants, Morris Samuel and others, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 14th day of April, 1894, upon the verdict of a jury, with notice of an intention to bring up for review on such appeal an order made on the 29th day of January, 1894, denying the defendants’ motion for a new trial made upon the minutes.

      8. D. Bentley, for the appellants.

      B. Keeler, for the respondent.
   Bradley, J.:

The action is founded upon the charge that in October, 1893, the defendant Beechler made an assault upon the plaintiff and beat her; that he was then engaged in the service of the other defendants, and that, by reason of such relation, they are chargeable with the injurious consequences suffered by her.

The defendants Samuel, carrying on business in the name of the People’s Credit Company, in the city of Rochester, by written contract to that effect, leased to the plaintiff a baby carriage at the weekly rental of one dollar, title to pass to her on payment of thirteen dollars and fifty cents, in the meantime title to remain in the company, with the right on default in payment to retake the property. The plaintiff, having paid nine dollars, defaulted in payment, and, at the time 'in question, the defendant Beechler called at the residence of the plaintiff to obtain payment or the possession of the carriage. He was informed by her that she was not prepared to pay, and he expressed his purpose to take it. To this she did not consent. And the evidence on the part of the plaintiff tended to prove that she resisted his effort to enter the house; that he overcame her resistance and entered, and that in doing so .he assaulted her, tearing her dress, and inflicting upon her some bodily injury. There was some conflict in the testimony of the parties in that respect. But the question of fact may be deemed disposed of by the verdict of the jury in favor of the plaintiff. At the close of the evidence ’ on the part of the plaintiff, and before any was introduced on the defense, motion made in behalf of the defendants Samuel for dismissal of the complaint as to them was denied, and exception taken. It is urged that this was error, because there was no evidence to support the action against them. There might have been some force in the exception on this review if nothing further had appeared to charge them.

But, as evidence afterwards given tended to prove their relation to the other defendant in the business in which he was engaged at the time in question, the objection was obviated. (Painton v. N. C. Ry. Co., 83 N. Y. 7.)

It is also insisted that the'assault made by the defendant Beechler upon the plaintiff was beyond the scope of his employment, and, therefore, that the other defendants are not chargeable with its consequences. He was in the service of the People’s Credit Company in making collections of money due for such property so leased by the company, with instructions to retake the property from those who were in arrears, and supposed to intend not to pay. The defendant Beechler had unsuccessfully called upon the plaintiff for payment several times before this occasion. And then he may have had some reason to suppose that any further effort for that purpose would be -futile. He, of course, was not instructed to use forcible means to enter houses, or to do acts of personal violence to get possession of the goods. But when he proceeded to take the property he was acting in the business of his employers, and in that sense in the scope of his employment, and although his action to accomplish such purpose may have been or become willful on his part, his employers were not for that reason necessarily relieved from the consequences of his conduct while so engaged, prejudicial to others, for which he would be personally liable. In the present case the conclusion was warranted by the evidence that although the defendant Beechler may have deviated from the instructions of his employers in proceeding to get possession of the property, he did not depart from his purpose of reclaiming the property for them, and consequently may throughout have acted within the scope of his employment. (Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129; Mott v. Consumers’ Ice Co., 73 id. 543; Quinn v. Power, 87 id. 535; Palmeri v. Manhattan Ry. Co., 133 id. 261.)

The cases cited by the defendants’ counsel, where it was held that the injuries complained of were not inflicted by the servants while acting in the scope of their employment, are distinguishable from the case at bar, and the dieta in some of them are not sustained by the later cases on the subject.

The charge of the court to the jury in that .respect was that if they found that Beechler willfully assaulted the plaintiff he alone was liable, and the other defendants were not liable for the assault “ unless * * * the assault was committed while he was carrying out the purpose for which he was sent there, and while he was endeavoring to do what he believed to be within the scope of his authority in taking this carriage.”

The defendants were not entitled to a more favorable submission of the question to the jury. Although the matter of the belief of the defendant Beechler, that he was acting within the scope of his employment, does not go in support of the fact that he was doing so, it bears upon his good faith only in executing the purpose mentioned in the proposition to which it added nothing prejudicial to the defendants.

In charging as a legal proposition that if the jury found that Beechler entered the house without the plaintiff’s objection, and there committed an assault on her, he was a trespasser from the beginning, the court erred. That rule is applicable when a party enters under authority given by law, and not if he does so by license or permission of a person authorized to grant it. (Allen v. Crofoot, 5 Wend. 506; Dumont v. Smith, 4 Den. 319.) This part of the charge was followed immediately by the instruction “ That is to say, if he entered her house upon her invitation, and after he got in there he committed an unlawful assault, he is in the same position, so far as his responsibility for that assault is concerned, as if he had ■entered the house in the first instance without her permission.” This was well enough in view of the fact that the action was not treated as one "for trespass upon the premises.

The court further charged the jury that “ if you find that he tried to effect an entrance upon those premises without her permission, ■or having upon her permission entered the house, and that he then committed an unlawful assault upon her, then I charge you that whatever he did in defending himself from the force she used, he did unlawfully and he' is liable for the assault.” Also charged them that you are to determine whether he entered lawfully or unlawfully upon these premises, but you are not at liberty to bring in any damages whatsoever for the trespass upon the land for his unlawfully entering into the house of this plaintiff. The sole question here is whether there was an assault committed upon her person or not, but in determining whether there was such an assault it may become necessary for you to consider whether he was a trespasser when he entered upon the premises.” These last two propositions in relation to the erroneous one before mentioned apparently seem to give some force to the exception taken to the latter, and thus arises a question not free from difficulty.

But in view of the evidence and of the charge as a whole it is evident that the defendants were not prejudiced by that specific portion of it. The court charged the jury that if the plaintiff made .an attack on Beechler without any attempt on his part to crowd his way into the house or to enter it against her permission he had the right to defend himself from an assault made upon him by her. The instruction to the jury was to the effect that the plaintiff was not justified in using force against Beechler unless he unlawfully and by force sought to enter the house without her consent, or made an assault upon her after he had entered it.

If after he entered the house he made an unlawful assault upon the plaintiff it cannot well be insisted that she had not the right to use force to expel him from the house, and that resistance on his part to such attempt would have been justified. It is not held to to the contrary in People v. Gulick (Hill & Denio, 229).

In the view taken of the case there was no error prejudicial to-the defendants in any of the rulings on the trial.

The judgment and order should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.


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    Charles L. Eastman, Respondent, v. Emily H. Gray, Appellant, Impleaded with Another.

      Costs — the granting thereof to a successful defendant under the Code of Civil Procedure, § 3229, is diseretiona/ry — right and status of a defendant who answers, and of one who is in default.

    In all actions where the plaintiff is entitled, as a matter of course, to recover costs against some only of the defendants, section 3229 of the Code of Civil Procedure makes the right of the successful defendant in the same action to costs dependent upon the discretion of the court.
    One, of two or more defendants brought into court, who alone defends an action, cannot be treated as the only defendant in the action in respect to the award of' costs.
    All of the defendants are made adverse parties by the process, and its service-upon them, and the relation thus created does not cease to exist as to those who are in default, or continue alone as to those who defend.
    Appeal by the defendant, Emily H. Gray, from an order of the Supreme Court, made at the Yates Special Term and entered in the-office of the clerk of the county of Yates on the 10th day of September, 1894, striking from a judgment, docketed and entered in favor of the defendant and against the plaintiff, the portion thereof awarding the costs of the action in favor of the defendant and against the plaintiff.

      John T. Knox, for the appellant.

      William JI. Fiero, for the respondent.
   Bradley, J.:

The action was brought against David G. Gray, as maker, and the-defendant Emily H. Gray, as indorser, of a promissory note. The-latter alone defended. Judgment by default was taken against tlie maker, with costs. The issue made by the answer of the other defendant was tried and a Verdict was.directed in her favor, upon which, without any direction of the court, judgment was entered for her costs, adjusted by the clerk.

The question is whether she was, as,of course, entitled to costs. The right of a party to costs is dependent upon the statute. The plaintiff was entitled to recover costs against the defendant David G. Gray, the maker of the note. (Code Civ. Proc. § 3228.) By the next section it is provided that the defendant is entitled to costs, of course, upon the rendition of judgment in an action specified in the preceding section, unless the plaintiff is entitled to costs. “ But where in such an action against two or more defendants, the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants are entitled to costs of course.” (Id. § 3229.) The latter section takes the place of sections 305 and 306 of .the Code of Procedure, which, since 1880, has been superseded by the Code of Civil Procedure. No substantial change has been made by it in the construction and effect of those two sections as they existed after 1851. Prior to that time the right of a plaintiff to costs on recovery against some only of the defendants in an action at law did not deny to the successful defendant in the same action the right as of course to recover them. (Daniels v. Lyon, 9 N. Y. 549.) In that year section 306 of the Code of Procedure was so amended as not to entitle him of course in such case to recover costs. (Allis v. Wheeler, 56 N. Y. 50; Royce v. Jones, 23 Hun, 453.)

The provisions of those sections, 305 and 306, are embraced in section 3229 of the present Code, and the latter section is entitled to the like construction, as its terms quite clearly import. (Yamato Trading Co. v. Hoexter, 44 Hun, 491.)

It would seem reasonable to give one of two or more defendants who alone and successfully defends the same advantages as to costs that he who is á single-defendant has in an action at law. But in all actions where the plaintiff is entitled of course to recover costs the statute referred to has made the right of a successful defendant in the same action to costs dependent upon the discretion of the court.

As defined by tbe statute, tbe party prosecuting a civil action is styled tbe plaintiff ; tbe adverse party is styled tbe defendant.” (Code Civ. Proc. § 3338.)

It is not seen that one of two or more defendants brought into court, who alone defends, can be treated as tbe only defendant in tbe action. Both or all of'them are made adverse parties by tbe process and its service upon them. Tbe relation thus created does not cease to exist as to those who default, or continue alone as to those who defend. Tbe right to judgment then arises as against tbe former, and as respects tbe latter tbe result of tbe issue is postponed

Tbe view, therefore, is that tbe ' appellant is not entitled as of course to costs.

Tbe order should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.