author: Corlett, J.:

text:
    In the Matter of the Application of the ROCHESTER ELECTRIC RAILWAY COMPANY to Acquire Lands of JENNIE S. WILKIN, JAMES S. PATTEE, MARY TANNER, ELIZA PATTERSON and WILLIAM PATTERSON.

      Street railroad — condemnation of land by it — a map must be filed — rights in a public highway appropriated by a street railroad company.

    It was tlie design of the act, chapter 252 of the Laws of 1884, to confer upon street railroad companies the power to acquire property belonging to private individuals, by condemnation thereof under the exercise of the power of eminent domain.
    A street railroad, in taking proceedings to condemn land which has been used as a public highway, should file a map clearly pointing out the route to be adopted by it so that the parties in interest may determine whether there exists any ground for opposition to such appropriation of the land.
    Where a public highway is controlled and practically owned' by a turnpike company, the right of the public to use the highway remains unimpaired. The turnpike company lias no power to destroy the highway or to limit its operation to its exclusive use by using it for railroad purposes.
    The control and oversight of the commissioners of highways over a road of the town does not cease because a turnpike company has appropriated the same.
    Appeal by certain land owners from an order, entered in tbe office of the clerk of the county of Monroe on the 2éth day of March, 1890, confirming the report of George A. Carnahan, referee, and appointing commissioners In the Matter of the Application of the Rochester Electric Railroad Company' to acquire certain land by the exercise of the right of eminent domain.

      J. & Q. Van Voorhis, for the land owners, appellants.

      James Break Perkms, for the railway company, respondent.
   Corlett, J.:

The highway from Rochester to Charlotte, which is an extension of Lake avenue, is five miles in length. It has been for a long time the main thoroughfare from Rochester to the lake. This highway was bounded by a row of shade trees on each side for nearly the whole length. In 1880 the Rochester and Charlotte Turnpike Road Company was organized for the purpose of maintaining this highway as a turnpike, with a charter extending thirty years. Soon after the company, by purchase from the adjoining land owners, obtained a strip seventeen feet wide on each side for a bridle path, upon which the owners moved back their fences. The language of the deed was: “ For value received of the Rochester and Charlotte Turnpike Road Company, a corporation organized under the laws of the State of New York, we, the undersigned, do hereby respectively grant and convey to the said'corporation and to its successors or assigns a right of way, in, over and through a strip or piece of land seventeen feet in width to be measured and taken off the front of the lands belonging to us respectively, fronting on and along the highway running from the northerly boundary line of the city of Rochester, Monroe county and State of New York, to the village of Charlotte (and formerly known as the Rochester and Charlotte Plank Road), in the town of Greece in said county, for the purpose of building and constructing and operating the turnpike road of said corporation about to be built.”

On the lltli of November, 1887, in consideration of $6,000, said Turnpike Company consented to allow the Rochester Electric Railway Company to construct, operate and maintain its street surface railway along the west side of the bridle path between Rochester and Charlotte. In August of the same year a map and profile were filed by the railroad company calling for such strip twelve feet wide,, on the west edge of the bridle path. The map which was filed had lines indicating the original lines of the roadway, and the dividing lines between that and the bridle path. The petition filed described the strip as follows: The land which it desires belonging to the land owners in the present proceeding was a strip twelve feet wide on the west edge of the bridle path, and no more.

A railroad was built along that route from Rochester to Charlotte. Its motive power was electricity. The present petition was verified on the 15th day of November, 1889. It contains the same phraseology as the one of 1888, except as to dates, parties and route. It makes no mention of the railroad which had been built, and alleges that it has surveyed a route for its road and that it has not been able to purchase the same, and describes a strip of land on the eastern edge of the bridle path twelve feet wide. It also alleges the filing of a map and survey of the route. No map was ever filed except the first one.

An answer was interposed by the objecting land owners and a reference was ordered to John A. Carnahan, Esq., to report the facts with his opinion thereon. He made his report on the 17th day of February, 1890, and decided that the railroad had power to acquire lands without consent in this proceeding; also, that the company was under no obligations to file any map. He further held that no consent from any authorities of the town of Greece had been obtained and that none was necessary. He further reaches the conclusion that the consents of the owners of one-half the value of the property bounded on the highway had been obtained.

This street railroad was built under chapter 252 of the Laws of 1881. Section 1 provides, among other things: “ Such corporations shall also have all the powers and privileges granted, and be subject to all the liabilities imposed by this act, or by the act entitled,£ An act to authorize the formation of railroad corporations and regulate the same,’ passed April 2d, 1850, and the several acts amendatory thereof, except as such acts are herein modified. ”

Section 22 of the act of 1S50, as amended by chapter 560 of the Laws of 1871, provides : “ Every company formed under this act, before constructing any part of their road into or through any county named in their articles of association, shall make a map and profile of the route,” etc.

Section 3 of the Laws of 1881 requires the consent of the local authorities having control of that portion of the streets or highways upon which it is proposed to construct and operate the railroad.

The report of the referee was confirmed; from that order the contesting land owners appeal.

The appellants contend, among other things, that a map should have been filed and that the consent of the local authorities and the highway commissioner of the town of Greece should have been obtained. The appellant also insists that private property cannot be obtained without the consent of the owners. It is manifestly the design of the act of 1881 to confer power upon street railroads to acquire property belonging to private individuals by condemnation. Section 1 provides, among other things, that a street railroad corporation shall have the same powers as those conferred by the act of 1850. Section 3, among other things, provides that a street railroad company may build its road, switches, etc., through, upon and along any of the streets, avenues, roads or highways of such cities, towns, villages, and also through, along a,nd upon a/nyprivate property which said company may acquire for the purpose.

It thus appears that the same power is conferred upon street railroad corporations as upon general railroad corporations, except as limited by the act, which contains nothing prohibiting the taking by condemnation proceedings of private property. The consent required by section 3 implies power to take the lands of those who do not consent. The owners of adjoining lands have title to the highways, subject to the easement; aside from this, it will be observed that the power of street railroads to acquire or build roads is not limited to public highways. It may take any land not connected with highways. The want of condemnation power might utterly prevent the building of the most useful of street railroads.

The learned referee, in his opinion, proceeds upon the assumption that the Boulevard Turnpike Company controlled and practically owned the highway, and that the power of the commissioner over it had practically ceased, and, therefore, his consent was not necessary.

In Walker v. Caywood et al. (31 N. Y., 51) it was held that a public highway does not cease to be such because taken by a plank-road company, and that the right of the public to use the highway remains unimpaired. To the' same effect is Benedict v. Goit (3 Barb., 459). It thus appears that neither a turnpike company or a plank-road corporation has power to destroy a highway or to appropriate it to its exclusive use. The public still have the right to travel upon all its highways until they cease to exist. The diverting a highway from its ordinary use to railroad purposes necessarily involves matter of grave concern to the public as well as land owners. (Craig v. Rochester City and Brighton R. R. Co., 39 N. Y., 404.)

The control and oversight of a commissioner of highways does not cease because a turnpike company appropriates some of the roads of the town. He still owes a duty to the public. A continuous obligation rests upon him to see that the highways of the town are protected and kept for public use and travel. He may be of the ■opinion that the use of twelve feet of a highway for street railroad purposes would inflict no injury upon the traveling public; but he may reach the conclusion that the taking of another twelve feet would practically destroy its usefulness. The turnpike company, as the case shows, sold the privilege of use of the highway to the railroad- company for a large consideration, which, it may be assumed, was kept for the use and benefit of the company, and that the town received no advantage therefrom.

The reasoning of the learned referee proceeds on the assumption that neither the public officers of the town or the public have any concern in a highway, or the uses for which it is appropriated, after it is turned over to a turnpike corporation. This view cannot be sustained. Its adoption would confer upon turnpike companies and plank-road corporations power to destroy the usefulness of the highways of the town without’ its consent, or that of its inhabitants or officers.

The learned referee also argues that there is a broad distinction between the reasons for filing a map in the case of steam corporations and street railroads. But it is quite clear that they do not. extend to the length stated by him. Highways are of varying; width; a railroad track might, without serious inconvenience, be* placed upon one part of a public highway, but would injuriously affect another. It might be so constructed as to seriously interfere with the owners of land on each side of it, or it might be so built as to impose no particular inconvenience. The railroad company, therefore, should file a map clearly pointing out the route, so that-those interested could determine whether there were good grounds of opposition. The absence of a map would frequently prevent-that accurate knowledge which would enable owners and those concerned to determine whether to resist or acquiesce. No reason, therefore, is perceived why a street railroad should be relieved from filing a map the same as steam corporations. Aside from this, as-already shown, street railroads may be built through private lands, outside of any highways, and certainly there would be just as strong-reasons for the, filing of a map in such cases as in that of steam roads. In addition to this, section 1 provides that such corporations, shall have all the powers and be subject to all the liabilities imposed by the general railroad act, except as modified. There is no force* in the contention that the obtaining of twelve feet for a railroad confers authority to appropriate an additional twelve feet.

There is nothing in the act of 1881 which exempts street railroads from filing maps. It is not necessary to determine the question of whether the consents were sufficient, as the conclusions reached as to the highway commissioner. and the filing a map disposes of the-appeal.

The order should be reversed.

Dwight, P. J., and Macomber, J., concurred.

Order appealed from reversed, with ten dollars costs and the: motion denied.


source: Caselaw Access Project

author: ■Coelett, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE W. STEITZ, Chairman, etc., Respondent, v. EDWARD J. RICE, Appellant.

      Contempt — refusal to testify beferre a committee of ct, board of supervisors — proceed- ings must be taken before a judge, and not before the court — a justice is a judge— Code of Civil Procedure, sec. 2266.
    Proceedings to punish a witness who has refused to testify before a committee of a board of supervisors, under the provisions of section 4 of chapter 190 of the Laws of 1858 must be instituted and carried on before a judge, and not before a Special Term of the court.
    A justice of the Supreme Court is a judge within the meaning of the said act of 1858.
    The provisions of section 2266 of the Code of Civil Procedure apply only to a civil action or special proceeding pending in court, and have no application in the case of a witness subpoenaed to appear before a committee of the board of supervisors.
    Appeal by the defendant Edward J. Rice from an order, entered in the Monroe county clerk’s office on the 7th day of February, 1890, convicting the said Rice of a contempt in having willfully refused to answer certain questions put to him by the chairman of a committee of the board of supervisors of the county of Monroe.

      John Van Voorhis, for the appellant.

      Walter H. Hubbell, for the respondent.
   ■Coelett, J.:

On the 9th day of January, 1889, the board of supervisors of Monroe county passed the following resolution :

“ Whereas, It appeal’s from the reports of the committee and trustees of court-house and jail accounts that excessive prices have been paid for materials furnished in the repairs made by the trustees; therefore,
“ Resolved, That a committee of five, including the chairman of the board, be appointed with full power to employ counsel, if deemed necessary, send for papers and persons; to examine witnesses under oath in relation to all matters and transactions connected with the repairs of said court-house from October 1, 1888, to December 1, 1889, and to report the same to the board of supervisors at their earliest convenience.”

A committee was appointed in pursuance of this resolution on the 9th day of February, 1889. Edward J. Rice, the appellant, . J ohn Rice and William H. Rice were brothers. J ohn was a member of the board of supervisors of Monroe county for the years 1888 .and 1889. The firm of Rice Brothers had been for five or six years engaged in plumbing in Rochester. Edward was connected with the firm either as partner or in working for the firm on a salary. Edward denied having any interest in the firm, also denied that he received or was entitled to any salary while doing the repairs on the court-house. John Rice, while acting as a member of the board of supervisors, was appointed one of a committee to investigate the •sanitary condition of the court-house and to report the probable expense of putting it in condition. The committee reported that the probable expense would be $1,100. The board thereupon referred the matters to the trustees of the court-house and jail, with power to act as would best serve the interests of the county. Soon .after the said trustees, by verbal contract, directed the defendant Rice to make such repairs on the court-house as he saw fit. No limitations were imposed upon him, neither as to the character or the amount of the repairs. Rice commenced work and the trustees gave him orders for money at different times as the work progressed, amounting in all to $12,041.26. The job was commenced in February, 1889, and finished in May of the same year. Most of the plumbers and helpers engaged on the work were the employees of Rice Brothers. The only statements of account kept by the defendant appeared on the books of Rice Brothers in the handwriting of Swift, their bookkeeper. All bills rendered to the trustees were in his handwriting and all moneys on orders were paid to him, and when received were deposited in the bank account of Rice Brothers .and to their credit.

All the radiators (thirty-six), that went into the job were ordered by the defendant in the name of Rice Bros., and were charged to and paid for by the firm. Most of the material that went into the job came from the same firm. In some of the bills the firm name was signed by the defendant. It is also claimed on the part of the respondent, and the testimony tends so to show that the defendant charged for large amounts of materials not furnished at exorbitant prices. On examination before the supervisors’ committee the defendant was subpoenaed as a witness. The following questions were put to him on his direct examination: “ How much of the money which you received from the trustees for work done upon this job and materials furnished upon it, did you pay to Rice Brothers?” Also, “Did you ever have a contract of your own for doing plumbing work while you were connected with Rice Brothers until this contract ? ” The witness refused to answer either question, although the committee directed him to do so. The committee thereupon caused this refusal to answer to be reported to Justice Rumsey. Hpon these facts and on the 4th day of February, 1890, the said justice issued an attachment while holding, as the attachment indicates, a Special Term. The justice fixed the bail at $200.

The mandatory part of the attachment was: “ Therefore, we command you to apprehend the said Edward J. Rice of Rochester, N. Y., if he be found in your county, and forthwith bring him before the Supreme Court at the court-house in the city of Rochester, county of Monroe, N. Y., where the said Edward J. Rice is ordered to show cause why he should not be punished according to law. for contempt in refusing to answer each and both of the aforesaid questions so put to him as aforesaid; and have this writ, with your return thereto, filed in the office of the clerk of said court on or before the -5th day of February, 1890, at nine o’clock in the forenoon.

“Witness, Hon. William Rumsey, Justice of our Supreme Court at Rochester, N. Y., this 4th day of February, 1890.
“WM. OLIVER, [Monroe County Seal, Rochester, N. Y.]
OlerlcP

The indorsement of the sheriff was:

“ I hereby certify that on the 5th day of February, 1890, I took into my custody the within named Edward J. Rice, and now have him here before Hon. William Rumsey, Justice of the Supreme Court, in obedience to the written writ.
THOMAS C. HODGSON,
By George H. Lane, Sheriff.
Under SheriffP

On the seventh day of February the following order was made :

The People of the State of New York to the Sheriff of Monroe County, Greeting:
“ Whereas' on the Tth day of February, 1890, by an order made by the Supreme Court at a Special Term thereof, held at the courthouse in Rochester, N. Y., in a proceeding brought by the people on the relation of George W. Steitz, chairman, etc., against Edward J. Rice, it was ordered that the said Edward J. Rice be committed by the sheriff of the county of Monroe to the county jail of Monroe county, to be there detained in close custody until he submit to answer the following question, namely : £ Did you ever have a contract of your own for doing plumbing work while you were connected with Rice Brothers until this contract ? ’ and stated and set forth in said order, or until he be discharged according to law. Then comes the command and is witnessed by Hon. William Rumsey, Justice of the Supreme Court at Rochester, N. Y., this seventh day of February, 1890.
££WM. OLIYER,
££ Clerk ”

It is assumed by counsel on both sides that the order, adjudging the defendant in contempt and inflicting punishment, was made at Special Term. The recital in the order of arrest so shows. It does not, except as above quoted, appear whether the attachment was issued at Special Term or by the justice witnessing it at Chambers. The power exercised by the board of supervisors was conferred by chapter 190 of the Laws of 1858. Section 4 of the act provides whenever a person duly subpoenaed * * * shall refuse * * *■ to answer any question, which a majority thereof shall decide to be. proper and pertinent, he shall be deemed in contempt, and it shall be the duty of the chairman of the board or of the committee, as the case may be, to report the facts to the county judge, or to a judge of the Supreme Court or of the Superior Court or of the Court of Common Pleas of any of the cities of this State, who shall thereupon issue an attachment in the form usual m the court of which he shall Toe judge, directed to the sheriff of the county where such witness was required to appear and testify, commanding the said sheriff to attach such person and forthwith bring him before the judge by whose order the attachment was issued.”

Section 5 provides that, “ on the return of the attachment and the production of the body of the defendant, the said judge shall have jurisdiction of the matter, and the person charged may purge himself of the contempt in the same way, and the same proceedings shall be had, and the same penalties may be imposéd, and the same punishment inflicted as in case of a witness subpoenaed to appear and give evidence on the trial of a civil cause before a Circuit or Special Term of the Supreme Court.” Section 8 provides, “ all orders, decisions and judgments made and given in proceedings under this act by any judge out of court or term, shall be in writing, subscribed by him, and shall be filed in the office of the clerk of the county/where such proceedings are had, and the clerk shall there-' upon enter the proper and necessary orders and rules, and such orders, decisions and judgments shall have the like force and effect as if made and given to the court at a regular term or session thereof.”

The appellant claims that no subpoena was issued or properly served. The case shows the reverse. It was properly served, the fees paid, and he appeared'in pursuance thereof without raising any objection as to the mode of service. The counsel also claims that Justice Rumsey is not a judge of the Supreme Court. This is a technical criticism, and without merit. Section 3343, subdivision 3 of the Code, defines a judge as any judicial officer. If the construction claimed by the learned counsel should obtain, a justice of the Supreme Court could not issue an attachment. (Code of Civ. Pro., §§ 640, 662.)

The real question on this appeal is, whether the Special Term had power to adjudge the defendant in contempt and punish him. The learned counsel for the respondent urges the affirmative of this proposition, and cites section 2269, subdivision 2, and section 2266 of the Code of Civil Procedure in support of his contention. Section 2266 provides as follows: In a case specified in section 14 of this act, or in any other case where it is specially prescribed by law that a court of record or a judge thereof, or a referee appointed by the court, has power to punish by fine and imprisonment, or either or generally as a contempt, a neglect or violation of duty or other misconduct; and a right or remedy of a party to a civil action or special proceeding in the court or before the judge or before the referee may be defeated, impaired, impeded or prejudiced thereby, the offense must be punished as prescribed in this title.” It will be observed that this section only applies to a civil action or special pro needing pending in court. In the matter at bar there was no proceeding in court, but there was one created by a statute before the board of supervisors. The sections of the Code, therefore, have no .application. It may be that the writ of attachment could be construed as made by a justice at chambers. (Phinney v. Broschell, 19 Hun, 116; affirmed, 80 N. Y., 544.) But there is no controversy as to where the attachment was made returnable, or as to the fact that the defendant was adjudged in contempt at Special Term.

In Heishon v. Knickerbocker Fire Insurance Company (77 N. Y., 278) it was held that, where a writ is purely a statutory one, the mode pointed out by the statute must be followed; that, therefore, a Special Term had no power to grant an order for the examination of a defendant for the purpose of enabling the plaintiff to make and serve his complaint.

The doctrine of this case would seem to be decisive of this appeal. The statute shows that the proceeding must be before a judge; here it was at Special Term.

It follows that the order appealed from must be reversed.

Dwight, P. J., and Maoomber, J., concurred.

Order appealed from reversed, with costs, and the appellant discharged.


text:
    FRANK T. La CROY, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Master and servant — neglect by the master to furnish proper appliances — rules of a railroad company, how they must be brought to the attention of an employee.

    In an action brought by a brakeman to recover damages arising from injuries received by Mm wliile employed upon the defendant’s road, alleged to have arisen through its neglect to furnish safe and sufficient cars and brakes for the • use of the train, a defense was interposed that the plaintiff had disobeyed the standing rules of the company, which required him to inspect the brakes, the neglect to comply with which rules was alleged to have caused the disaster.

      Upon the trial of the action the court charged the jury that the rules of the company were reasonable; and also charged, in substance, that if the plaintiff had notice or knowledge of them it was his duty in all respects to obey them; that, unless the rules were brought to the plaintiff’s attention, so that he knew or was informed of their existence, or unless they were put into his possession to be read by him, and if he was not informed of the book containing instructions as to his duties, and was ignorant of them, that he would not be bound by them.

      Held, .that the charge was proper.
    That it was the company's duty to give full and explicit instructions, as well in the case of its employees as in that of third persons, where life or property were involved.
    Appeal by the defendant from a judgment, entered in the office of the clerk of the county of Chautauqua on the 25 th day of May, 1889, with notice of an intention to bring up for review upon such appeal an order-, dated May 17, 1889, denying defendant’s motion for a new trial on the minutes.
    The action was tried at the Chautauqua Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff against the defendant for $3,500. The action was brought to recover damages for personal injuries sustained by the plaintiff while in defendant’s employ, because of the alleged neglect of the defendant to furnish safe and sufficient cars and brakes to be used by the plaintiff in such employment.

      James H. Stevens, for the appellant.

      John Q. Record, for the respondent.
   Corlett, J.:

In April, 1887, forty cars loaded with coal were run by defendant on its track from Brockwayville, in the State of Pennsylvania, northerly in the direction of Bradford. Johnsonburg was a terminal station on the route where the train stopped two hours, taking a. side track. The plaintiff was one of the four brakemen who started with the train upon which there was a conductor, engineer and fireman. The distance between Brockwayville and Bradford was upwards of sixty miles, and the time would be from seven to forty-eight hours. The defendant’s road is down grade going east, or rather north, after leaving Crawford Junction, on an average of from 100 to 102 feet to the mile for a distance of five or six miles, the steepest part being about half a mile outside of Crawford Junction, but the grade is not uniform, in some places greater than others. While going down this grade the train went to pieces and the cars were piled one upon another. A wheel was broken and the plaintiff was severely in jured in the disaster. At the time of the accident the train was running at the rate of about sixty miles an hour. In January, 1888, the plaintiff brought this action, which was tried in May, 1889, at Mayville, and resultéd in a verdict for the plaintiff of $3,500. A motion for a new trial was made on the minutes and denied ; judgment was entered and the defendant appealed to this court.

The position of the plaintiff on the trial was, that the defendant neglected to furnish safe and sufficient cars and brakes for the use of the train. The defense was based on the assumption that the plaintiff disobeyed the standing rules of the company, which caused the disaster. Those rules, so far as material, are as follows:

“ Brakemen of freight trains will receive instructions from the division superintendents; they will be under the immediate' control and must obey the orders of the freight train conductors; at terminal stations they must obey the order of the yard-master. They will have the duty of coupling the freight cars, applying the brakes, using the signals, working the switches when their trains are using switches, where there are no switchmen, assisting in loading and unloading freight, and the care of freight cars and caboose of their train while their train is on the road, and will be held responsible for the strict performance of their duties in accordance with the rules of the company, and for prompt obedience to all orders of the con■ductors. They must report for duty at the terminal stations at the time appointed and assist in the shifting and making up of trains ; before starting they must test the hand-brakes and see that they are in proper condition and work easily, and see that the train signals are in good order and ready for immediate use. They must not leave their brakes while the train is in motion nor take any other position in the train than that assigned them by the conductor.”

By these instructions it was the duty of the plaintiff before the train left Brockwayville to inspect the brakes if he had knowledge or notice of these rules, and also at Johnsonburg. The evidence shows that the plaintiff made no inspection. There was an implied contract between the plaintiff and defendant when he. entered their employ as a brakeman that the cars upon which he was to labor should be reasonably safe, also the brakes, and that they should be in working order. The breaches of duty by the defendant, alleged on the part of the plaintiff, were that there were not a sufficient, number of brakes and that they were not in proper order. The evidence tended to show that these forty cars loaded with coal required from thirty to thirty-five brakes to make them safe going down grade, and also tended to show that there were not this number of brakes; also, that many of them were defective, and that, in view of the grade, the defendant was negligent in omitting to furnish a-sufficient number of brakes; also that it omitted to keep them in proper condition. ■

The general rules of the defendant provide, among other things,, that officers, agents and employees must become familiar with the regulations of the company and observe the rules and strictly enforce them -upon those under their control, and that ignorance of the rules will not exempt or excuse them for neglect of duty. Unless the plaintiff was negligent in omitting to comply with the rules it is not claimed that he neglected any duty at or before the. accident which in any way contributed to its production. The plaintiff testified on the trial that he never read those instructions; that he never received any information of the existence or import of the directions above quoted, and that he was ignorant of their existence. The trial justice charged the jury, in substance, that those instructions were- reasonable, and that if the plaintiff had knowledge or notice of them it was his duty in all respects to obey. The justice further charged that, unless they were brought to the plaintiff’s attention so that he knew or was informed of their existence, or unless put in his possession to be read by him, and if he was not informed of this book containing instructions as to his duties, and was ignorant of them, or unless it was put where it was accessible to him, that they would not bind him and he would not be guilty of negligence for want of knowledge of what they were. That if the plaintiff knew his duty it was manifest he had neglected it by omitting to examine or inspect the brakes.

The result of this appeal depends upon the correctness of the charge of the trial justice upon this question. All the rules and regulations of the company must be construed in reference to known facts and obvious surroundings. A brakeman, while an employee, occupies a comparatively subordinate position. It is reasonable to assume that he would not be active or vigilant in acquiring a knowledge of printed or written rules unless his attention was called to them. It is fair to assume that when a brakeman is employed, the duty devolves upon the company of calling his attention to its written or printed rules needful to him, and either furnish him with copies or inform him where he will find them. Ordinary observation teaches that unless a laborer’s attention is called and directed to such matters their necessity or importance will not occur to him, even though he knows, in a general way, of their existence. lie would naturally assume that they were for the information and instruction of those in position and authority, and that no personal obligation rested upon him to examine and master their contents.

It is matter of universal observation that those employed to perform manual labor, upon whom no duty of supervision or direction is imposed, are not vigilant in acquiring knowledge of their own obligations beyond instructions or information distinctly given or conveyed. As to third persons, where life or property is involved, it would not be a reasonable excuse for the company to say instructions were printed, and the employees, if vigilant, might have familiarized themselves with their nature and import. The answer would be, where liability turned on that question, that the company’s duties required the giving of full and explicit instructions. The question here presented is whether a different rule obtains between the company and the brakeman.

In the light of the above suggestions it ought not to be absolved from' liability, unless it imparts full and clear information to its employees. It ought not to be allowed to escape on conjecture or possibilities. "While the brakeman assumes, by virtue of his employment, the risks incident to his vocation, still, naturally, the acquisition of a knowledge of written or printed rules was not included among those risks, which should be limited to the ordinary and visible hazards incident to the discharge of his duties. Testing the charge by these rules, it is not believed that the learned justice fell into an error which requires a reversal.

In Ford v. Lake Shore and Michigan Southern Railroad Company (27 N. Y. St. Rep., 218) and Byrnes v. New York, Lake Erie and Western Railroad Company (113 N. Y., 250), a construction of questions of fact by the court disposed of each case. The same is true of Disher v. New York Central Railroad Company (2 N. Y. St. Rep., 277; affirmed, 22 id., 1000), where the facts were more analogous to those in the case at bar. It does not appeal that the damages were so excessive as to require a modification on that ground.

The judgment and order should be affirmed.

Dwight, P. J., concurred in result.

Judgment and order appealed from affirmed.


text:
    MARY BURROWS SMITH, Respondent, v. HENRY J. ANDERSON, as Receiver of the FIRST NATIONAL BANK OF ALBION, New York, and the FIRST NATIONAL BANK OF ALBION, Appellants.

      Inability of a bank whose president deposits in the bank, and thereafter draws out and converts to his own use, the money of a third person.

    Where the president of a bank receives funds which he deposits with the bank, the bank is chargeable with all the knowledge ¡possessed by its president in respect thereto; and in case the president, having thus deposited the money to himself, as the attorney for the real owner, subsequently withdraws the money from the bank and misappropriates it, the bank becomes liable to the owner of the funds which have thus been converted by its president.
    Appeal by the defendants from a judgment, entered in the office of tbe clerk of the county of Orleans on the 14th day of October, 1889, upon the report of a referee to whom the issues were referred.
    • William N. Cogsioell, for the appellants.

      W. A. Sutherland, for the respondent.
   Corlett, J.:

The First National Bank of Albion was organized and commenced business on the 22d day of December, 1863, at Albion, in the county of Orleans. Roswell S. Burrows was its originator and first president. He died in March, 1879, leaving a will by which he appointed five persons Ms executors. Four qualified, including Albert S. Warner; one died; two appointed Warner in their place, they taking no active part, and, at the time of the transactions hereafter mentioned Warner was practically the managing executor, and was also president of the bank. The bank continued business until the 22d day of August, 1884, when it closed its doors; its president, Warner, absconded, and the defendant was appointed receiver.

On the 15th day of March, 1884, the American Loan and Trust Company of New York executed its check to the plaintiff for $25,000 and delivered it to Isaac Signor, her attorney. The cheek was drawn on the Third National Bank of New York, and was afterwards indorsed by the plaintiff through Signor, her attorney, and by him delivered to Warner. Warner thereupon indorsed the check as follows: “ Pay to Gr. L. Hutchins or order for collection. A. S. Warner, President.” Hutchins was at that time cashier of the Third National Bank of New York, and Warner delivered the check to him. The Third National Bank was the correspondent of the First National Bank of Albion. On the 18th day of March, 1881, the First National Bank of Albion charged this $25,000 to the Third National Bank in the following words: Third National Bank of New York. Amount deposited by A. S. Warner, P’t, $25,000.00.”

On the same day the First National Bank entered upon its journal a credit in favor of the plaintiff as follows: “ Mary Burrows Smith, proceeds of loan, $25,000.00.” The First National Bank drew drafts on the Third National Bank on this deposit, of which $9,448.48 were paid to the plaintiff, leaving a balance of $15,551.52. Between the 25th day of March and the 13th day of August, 1884, the ¡plaintiff delivered to Warner for deposit in the First National Bank, in the aggregate, $14,218.03. Warner, without the knowledge or consent of the plaintiff, deposited such moneys in the First National Bank, or with its New York correspondent, to the credit of the First National Bank, and entered the same upon the books of the First National Bank in his own name as attorney for the plaintiff. She did not know until after the suspension of the bank that the account stood in the name of Albert S. Warner as such attorney. Warner, from time to time, drew checks as attorney against this account up to the time of the suspension, when the account was closed and balancecl on the hooks. Of this deposit the plaintiff received for her own benefit $5,583.17, but the rest was not used for her benefit, or drawn with her knowledge or authority. -

This action was brought by the plaintiff to recover these balances.. The answer admitted the formal allegations in the complaint, denied knowledge sufficient to form a belief as to the balance, and then .alleged, upon information and belief, that the $25,000 charged in tli& complaint was, in fact, a loan to Warner. Payment is not pleaded.. The issues were referred, the referee made his report in September,, 1889, found the facts above stated, and directed judgment for the plaintiff against the defendant. This appeal is from the judgment entered upon the report.

In Moore v. The American Loan and Trust Company (115 N. Y., 65), it was decided, in substance, that the plaintiff borrowed the $25,000 from the trust company. The question upon this appeal is whether, upon the facts found by the referee and the undisputed evidence, the defendant, as receiver, is liable.

In Holden v. New York and Erie Bank (72 N. Y., 286); Village of Port Jervis v. First National Bank (96 id., 550); Cragie v. Hadley (99 id., 131); Bartow v. People (78 id., 377); Fishkill Savings Institution v. Bostwick (92 id., 561) and Fishkill Savings Institution v. National Bank (80 id., 162), the principle was. decided on various facts that where a person occupying the position of Warner, the president, receives moneys which are deposited in the bank, his knowledge will be treated as that of the bank and it is liable to the depositor, even though the president misappropriates, the moneys. If Warner had converted the money without the bank having received it, or without credit being given on its books, it would not be liable. But when its president receives funds which go into the bank, it is chargeable with all the knowledge possessed by him, otherwise those dealing with banks would be without remedy in case of fraud or misappropriation on the part of its president.

In the case at bar the plaintiff received credit on the books of the bank for $25,000, and, except as to the amount received by her, the bank or its president had the benefit of the moneys. The $11,218.03 were deposited in the bank. The fact that the president, without the knowledge or consent of the plaintiff, credited the money to himself as her attorney, and then misappropriated the funds, cannot be urged by the bank or its receiver as a defense, for the reasons-above stated. If by such a form of entry of the deposit the bank, in case of improper entries by its president on its books, or a misappropriation by him of the moneys could throw the loss upon the depositor, great mischief would result. The innocent depositor instead of the bank would lose the moneys misappropriated by its president. No authority has been cited by the learned counsel for the defendant in support of such a proposition. In the nature of things, the maxim must apply, that where one of two innocent parties sustains a loss by the fraud of a third, it shall fall upon the one whose act has enabled the fraud to be committed. (Moore v. Metropolitan National Bank, 55 N. Y., 41-47.) The bank created its president, and if, through his fraud, it- or a third person must suffer, the maxim protects the customer. All the moneys having been deposited, payment is an affirmative defense. (Seward v. Torrence, 3 Hun, 220; Brazill v. Isham, 12 N. Y., 9; McKyring v. Bull, 16 id., 297; Kelsey v. Western, 2 id., 506; Getman v. Second National Bank of Oswego, 23 Hun, 498.)

Beyond the amount admitted to have been received by the plaintiff, in the absence of the defense of payment, the claim that sufficient credit was not given would not seem to be available. But it does not satisfactorily appear from the whole case that the referee awarded too large a sum on the assumption that the answer was sufficient. The deposits to the full amount having been proved, it devolved upon the defendant to show payment.

The judgment must be affirmed.

Dwight, P. J., and Macomber, J., concurred in result.

Judgment appealed from affirmed, with costs.


author: Dwight, P. J.:

text:
    GEORGE HENRY, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Physician — evidence as to his examination of an injured person — when the relation of physician and patient does not exist.

    In an action brought to recover damages arising from personal injuries alleged to have been sustained by the plaintiff while a passenger on the defendant’s railroad, through the latter’s negligence, the defendant called as a witness one Wilcox, a physician and surgeon, who testified that some two weeks before the accident the attending physician of the plaintiff brought the plaintiff to the witness’ office and asked the witness to examine the plaintiff and see what was the matter with him; and that he made such examination, and, among other things, examined hisribs. He then was asked: “Did you find any fractured rib?” This question was objected to as incompetent, under section 834 of the Code of Civil Proceedure, and the objection was sustained.

      Held, that the burden of showing that the relation of physician and patient existed between Wilcox and the plaintiff, rested upon the latter.
    That it did not appear in this case that such relation existed between Wilcox and the plaintiff, or that the information afforded by the examination was necessary in order to enable Wilcox to act in the capacity of physician to the plaintiff. That the question was a proper one.
    Appeal by the defendant from a judgment, entered in tlie office ■of tlie clerk of tlie county of Cattaraugus on the átli day of June, 1889, after a trial before tlie court and a jury at the Cattaraugus Circuit, at which a verdict was rendered in favor of the plaintiff for $1,250, with notice of an intention to bring up for review upon such appeal an order, dated on or about the 31st day of May, 1889, which denied defendant’s motion for a new trial on the minutes.

      J. H. Stevens, for the appellant.

      Ansley & Davie, for the respondent.
   Dwight, P. J.:

The single exception taken by the defendant in this case must be fatal to the judgment. The action was for a personal injury alleged to have been sustained by the plaintiff when a passenger on the defendant’s road. The question litigated was of the existence and extent of the injury, the principal injury complained of- being a broken rib. The defendant called as witness a physician and surgeon, Dr. Wilcox, who testified that, some two weeks after the-accident, the attending physician of the plaintiff brought the latter to the office of the witness an'd asked him to examine the plaintiff' and see what was the matter with him; and that he made such examination, and among other things examined his ribs. He was thereupon asked: Did you find any fractured rib % ” To this question the plaintiff objected as incompetent under section 834 of the Code. The objection was sustained and the defendant excepted.

We think the question was not shown to be within the exclusion of the statute referred to. That statute is specific in its definition of the matters which the physician is forbidden to disclose. The exclusion is confined to “ information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” It is clear that, to bring the case within the provision of the statute, it must appear that the relation of physician and patient. existed between the examining physician and the person examined, and even that is not sufficient; it must also appear that the information obtained was necessary to enable the physician to act in that capacity.

There is nothing in this case to show that Dr. Wilcox was requested or expected to treat or prescribe for the plaintiff, nor toad vise in respect to his treatment, nor that he did either. So far as appears, the purpose of procuring the examination was to qualify — or, as counsel for the defendant suggests, to disqualify — the physician as a witness on the trial of the plaintiff’s action. The error of the learned court at the circuit was in holding that it was the duty of the defendant offering the testimony to show that the relation of physician and patient did not exist, and, therefore, that the objection did not apply. Clearly it was incumbent upon the plaintiff to support his objection by proof of the facts necessary to bring the case within the definition upon which the objection was based.

For the error of the exclusion of the testimony of Dr. Wilcox, as the case stood, the judgment and order must be reversed and a new trial granted.

Macombeb and Corlett, JJ., concurred.

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


author: CORLETT, J. :

text:
    WESLEY MANDEVILLE, as Receiver of the Property of HENRY J. BECK, Appellant, v. EDWARD H. AVERY, Respondent, Impleaded with HENRY J. BECK and Another.

      Chattel mortgage which is valid as between moi'tgagor and mortgagee, but invalid as to other creditors of the mortgagor — rights of such other creditors as against the mortgagee.

    Where the amount of a chattel mortgage, valid as between the mortgagor and the mortgagee and given to secure an honest debt, has been paid out of the mortgaged property, another creditor of such debtor cannot compel the mortgagee to pay back the amount so received by him upon the ground that the mortgage was given with intent to hinder, delay and defraud such latter creditor.
    The fact that the execution of a chattel mortgage was not accompanied by an immediate delivery, nor followed by an actual or continued change of possession of the chattels covered thereby, and that it was agreed between the parties that the mortgagor should continue to deal with the mortgaged property and sell the same in the course of business as his own property, and that the said mortgagor did, in fact, so dispose of a part of said property, does not authorize a creditor of the mortgagor, after the debt of the mortgagee has been paid from the proceeds of such mortgage, to sue the mortgagee to recover the amount of the debt so realized by him.
    Appeal by tbe plaintiff Wesley Mandeville, as receiver, etc., from a judgment, entered in the office of the clerk of the county of Monroe on the 5th day of June, 1889, in favor of the defendant) Edward H. Avery, dismissing the plaintiff’s complaint, with costs, after a trial at the Monroe Circuit before the court and a jury.

      Damid Hays, for the appellant.

      J. O. <& G. I. Avery, for the respondent.
   CORLETT, J. :

The defendant Beck, in September, 1886, was engaged in the boot and shoe business at the city of Auburn. On the thirteenth of November of that year Lewis P. Ross, a jobber in boots and shoes at Rochester, sold and delivered to Beck a bill of goods in his line. On the 11th day of March, 1887, Ross recovered a judgment for those goods in the Supreme Court for $931.61, damages and costs. Execution was issued and returned unsatisfied, and such proceedings were liad, that on the 13tli day of May, 1887, the plaintiff was appointed receiver. On the 24th day of January, 18S7, said Beck executed to the National Bank of Auburn a chattel mortgage to secure $1,150, and on the eighth day of February of the same year he executed another chattel mortgage to the defendant, Edward II. Avery, to secure $290, with interest. The mortgages covered the stock in trade of the defendant Beck, and in March, 1887, the Bank of Auburn assigned its mortgage to the defendant Avery. These two mortgages were given to secure honest debts, and the validity of the last one is not assailed for any reason. On the 16th day of March, 1887, both mortgages were foreclosed and the property sold for $1,350.50. The proceeds were at once applied to the payment of the debts of $ 1,440 secured by the two mortgages.

On the 16th day of February, 1887, Ross caused the goods covered by the mortgages to be attached. Avery replevied the property which was sold under the mortgages as above stated. The replevin ■action resulted in favor of Avery. The' present action was commenced about the 1st of June, 1887. Issue was joined and it came on for trial at an equity term held in Rochester, and the trial court decided that the action was one of law and sent it to the circuit for trial. Two specific questions were submitted to the jury on that trial, each of which was answered in the affirmative. Those questions were : (1.) “Was the mortgage to the National Bank of Auburn, dated January 24,1884, executed upon an agreement or understanding with the bank that the mortgagor might remain in possession of the property covered by the mortgage and sell the same in substantially the same manner as before the execution of the mortgage and use the avails ? ” (2.) “ Did the plaintiff, with full knowledge that such an arrangement had been entered into, assent to the same ? ”

The mortgage of $290 was, in all respects, held to be valid. After the answering of those questions, motion was made for judgment on the verdict, which was granted. A motion was made by the plaintiff for a new trial, which was denied, and, from the judgment entered the plaintiff appealed to this court, where the judgment was reversed and a new trial ordered (20 N. Y. St. Rep., 801) on the ground that the action was an equitable one and should have been tried at Special Term. A trial was afterwards had on the equity side at the Special Term, where the two findings above stated were adopted and the complaint was dismissed. Judgment was entered and the plaintiff appealed to this court.

The complaint in this action alleges, in substance, the recovery of the judgment, the appointment of the plaintiff as receiver, the-execution of the chattel mortgages, the sale of the property under them, and then alleges that Avery was president of the said bank, and that the said mortgages were made by the said Beck and the said Avery with intent to hinder, delay and defraud the creditors of said Beck, and particularly the said Ross. That they were executed for more than the amount due from-the said Beck; that they were not accompanied by an immediate delivery or followed by an actual or continued change of possession of the chattels mentioned ; that when the same were made it was understood and agreed between the parties thereto that the mortgagor should continue to deal with the mortgaged property and sell the same in the ordinary course of business as his own property, and the said Beck did, in fact, after the execution of said mortgages and for some period thereafter, with the consent of the mortgagees, dispose of the said property, or a part thereof, and appropriate the proceeds of the sale thereof to his own use by selling as a retail merchant to his customers.”

The complaint further alleges that Avery never accounted to Beck or the plaintiff, as receiver; the insolvency of Beck, and that the judgment remains unpaid. The prayer is to the effect that the mortgages be adjudged fraudulent and void and that Avery be required to account for the property or its proceeds.

On the trial it appeared that when Ross heard of the mortgages he sent his agent, Gordon, to Auburn to get an explanation from Avery; that a conversation, occurred between them, which was to the effect that Gordon asked Avery why he took the mortgage after he was given to understand that the liens for which the mortgage was taken should be without security; that Avery replied that Beck was pressed by other creditors and offered to secure the debt by mortgage, which he did; that the bank would let him go on, the same as if no mortgage had been made; that Gordon replied to the effect that if Beck would continue in business, and pay Ross a little now and then, he would be satisfied, and that Beck had some goods, left which were out of season, and that if he would return them he would get credit. Avery replied he had no objections. None of the goods were returned, nor did Beck afterwards make any payments. The trial justice held, in substance, that the debts secured by the mortgage were honest, and that after hearing Avery’s statement, Ross concluded to acquiesce in the mortgages, and that he assented to them with full knowledge of all the facts.

It will be noticed that the goods were taken by virtue of the two mortgages. It is agreed that the second mortgage of $290 was valid. It was adjudged in the replevin suit that, as against the attachment, Avery was in the lawful possession of the property under his mortgages. There is no question as to the validity of the mortgages between Ross and the bank or him and Avery. They were given to secure honest debts, and as against the mortgagor valid and enforceable. In the case at bar the property was sold and the debts paid before any lien was acquired by the receiver. No lien was obtained by virtue of the attachment, because Avery succeeded as against the sheriff in establishing his superior right to the property. Judgment had been recovered, execution issued and returned nulla bona, so there was no lien by virtue of any levy at the time the receiver was appointed, which was not until long after the sale trader the chattel mortgages and the application of the proceeds in the payment of the debts they were given to secure. This action was not commenced until more than two months after the debts secured by the chattel mortgages had been paid by the sale of the property, and nothing appears to show that the sale was not in all respects regular, or that the debts they were given to secure were not extinguished to the extent of the payment.

The learned and diligent counsel for the appellant has not called attention to any authority going to the length of holding that when an honest debt has once been paid out of the debtor’s property, another creditor can compel him to refund, because as against creditors the mortgage given to secure a paid debt would have been adjudged void. In a controversy between different creditors the one who • is most vigilant and prior in point of time usually has the advantage. Where a creditor is so diligent as to acquire a lien on property applicable to his debt, before payment of another secured by a mortgage void as against creditors, he is in a position to show that his lien is superior, and remove the fraudulent obstruction. But no such question is involved in the case at bar; all these debts were honest; the judgment was valid against everybody;. the mortgages between the parties were valid; the debts they were given to secure bona fide \ and although one of the mortgages could be adjudged void against creditors, it being valid between the parties, and the debt it was given to secure paid before proceedings commenced or lien acquired, the law will leave the parties where it finds them, and such seems to be the reasoning of the authorities. (Hone v. Henriquez, 13 Wend., 240; Brown v. Platt, 8 Bosw., 324; Haggerty v. Palmer, 6 Johns. Ch., 437; Grover v. Wakeman, 11 Wend., 187; Averill v. Loucks, 6 Barb., 470.)

The judgment must be affirmed.

Macomber, J., concurred; Dwight, P. J., not sitting.

Judgment appealed from affirmed, with costs.


author: Van Brunt, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES A. FLACK, WILLIAM L. FLACK and JOSEPH MEEKS, Appellants.

      Whether, under admitted facts, a decree is fraudulent and void is a question for the court — referee acting criminally by direction or'consent of the court — conspiracy — verdict of a jury not set aside because of the intrusion of a third pmdy into the jury-room — waiver.

    On the trial of an indictment, alleging that a husband and his confederates had conspired together to obtain a divorce without the knowledge or consent of the wife, there was no dispute as to the facts relating to the manner in which the decree had been obtained, and the judge in charging the jury characterized the decree of divorce as a fraudulent decree.

      Meld, that it was for the court to say whether the law had been contravened in the procurement of the decree, in such wise as to render it fraudulent and void; and if it was void because of fraud, the court was justified in so characterizing it.
    It is no defense to a referee that acts committed by him, constituting forgery and perjury on his part, were committed by the direction or with the consent of the court.
    A judge is utterly without jurisdiction to direct the performance of acts which must necessarily result in the perpetration of a fraud upon the court, rendering absolutely void all action had thereunder.
    While a confederation to do an act innocent in itself does not become a criminal act unless the act is done with knowledge that it is prohibited, yet where the act to be done cannot be innocent the confederation and agreement to do it are necessarily corrupt, and the only question in a case of the latter kind to be left to the jury is whether there was a confederation to effect the result by unlawful means, the court necessarily being the judge as to whether the means were lawful or unlawful.
    Where it appears that the verdict of a jury was in no manner affected by reason of the intrusion into the jury-room of a newspaper reporter without the knowledge of the jurors, and it is evident that no damage has resulted to the parties against whom the verdict was rendered, the verdict will not be set aside because of such action on the part of the reporter.
    Where, with full knowledge of such facts, parties against whom the verdict is. subsequently rendered permit the trial to go on and the jury to be sent back without objection on their part and ask that instructions be given to the jury on their behalf, such acts constitute a waiver of any objection to the verdict of the jury.
    Appeal by the defendants from a judgment and conviction of the crime of conspiracy, rendered against them by a Court of Oyer and Terminer held in and for the city and county of New York on the 31st day of March, 1890.

      Horace Russell, for the appellants.

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

The questions presented upon mis appeal arise entirely upon exceptions taken to the charge of the judge.

The appellants, together with one Joseph Meeks, were convicted of a conspiracy for the perversion of justice and of the due administration of the law, by procuring by unlawful means a decree of divorce. The indictment under which this conviction was had contained many counts, which, however, may be summarized as. follows: First. A conspiracy to obtain a divorce without the knowledge and consent of the plaintiff therein ; secondly, a conspiracy to obtain a divorce by unlawful means.

Although a large number of exceptions to the charge of the learned judge who presided at the trial were taken, our attention has been called to the following only:

First. An exception to the statement of the court that “this-judgment record ” (referring to the decree of divorce), is a record of a fraudulent divorce, that of that there can be no doubt whatever ; that it is unquestionably fraudulent.”

Second. An exception to the following language of the court, contained in instructions to the jury, as to the duties of the referee in the taking of the testimony of the witnesses in an action for ■divorce. “ If the referee had done his duty, would she (referring to one of the witnesses) have said she first knew him fifteen years ■ago as Reynolds ? She says now she never did.”

Third. That the court erred in its charge that it was no excuse for Meeks if he performed the acts he did perform by the consent of Judge Bookstaver.

Our attention is called to the following requests and exceptions in connection with this point: I ask your honor to charge that Judge Bookstaver was the judge of the regularity of the proceedings and the sufficiency of the papers. The court so charged.

Mr. Bird — I ask your honor to charge that if Judge Bookstaver knew, when the papers were brought back to him, that the changes had been made in them as testified to by the defendant Meeks, that then this jury cannot find Mr. Meeks guilty.

The court declined so to charge; exception taken.

Mr. Bird — I ask your honor to charge that it was in the power of Judge Bookstaver verbally to direct changes of the character made here.

The Court — I decline so to charge and charge the direct reverse.

Mr. Bird — I except to that and to the qualification on behalf of each of the defendants. I ask your honor to charge the jury that Judge Bookstaver, being the judge to whom the papers were presented, was the sole judge of the sufficiency of the proof.

The Court — Yes.

Mr. Bird — I ask your honor to charge that, if that is so, this record is not a fraudulent record.

The Court — I decline so to charge.

Exception taken.

The counsel for Meeks then asked the court to charge that if Mr. Meeks did what he did, what he has sworn to upon this stand, upon the direction of Judge Bookstaver, without any criminal connection with any other person, but simply obeyed the order of the judge who had competent jurisdiction over the case, he committed no crime whatever.

The Court — “I charge the part which refers to his criminal act, but everything in relation to his having done it by the direction of Judge Bookstaver I decline to charge.”

The counsel then requested the court to charge that Judge Book-stayer had exclusive power to give directions to Mr. Meeks, he being his referee.

The Court — He had no authority to direct Mr. Meeks or anybody else to change, erase or make any alterations such as have been made here in that record, and if he did so, he himself was derelict in his duty.

The counsel excepted to the refusal of the charge as requested and to the qualification as charged. The counsel asked the court to charge that if the jury believe that Judge Bookstaver gave Meeks a verbal order to have a change of attorneys made, and that Meeks effectuated that purpose as he has described upon the witness stand without any intent to commit a crime, and that Judge Bookstaver was not imposed upon, but acted upon his own official judgment and upon the papers presented to him by Meeks, that then they must acquit the defendant Meeks.

The Court — I decline to charge that. So far as the criminal intent is concerned, it is correct. Everything about Judge Bookstaver’s verbal order, etc., I decline to charge.

Exception- was also taken to the following language in the charge: That ignorance on the part of the defendants, or any of them, of the meaning of this statute cannot be a shield to them if you believe that they have committed the acts. If you believe, beyond a reasonable doubt, that they have committed the acts which constitute the offense as I have defined it to you, then they are guilty.” And the court thereupon defined a criminal intent to be the doing of an unlawful act intending to do it, and that ignorance of the law has nothing to do with it.

The court was also asked to charge as follows, which it did:

That mere concert is not conspiracy; persons who agree to do an act innocent in itself, in good faith, not by the use of criminal means, do not become conspirators because it turns out afterwards that the act was prohibited by statute.”

The court was also asked to charge the jury, which it did, that the jury must not guess that there was a conspiracy, but that they could only find the same from the legal evidence of the witnesses proving the same beyond reasonable doubt.

The court also charged in the following language: If, in stating either conceded facts or the facts proved on one side and controverted upon the other, such facts as so stated seem to weigh one way or the other, pray do not consider me as commenting on such facts, expressing an opinion upon them.” Also : “ The two questions for you to determine are, first, whether the suit which resulted in this decree was fraudulently and falsely instituted. * * * Then the other question for your consideration is, was this fraudulent decree obtained by fraudulent means?” And, also: “Now, when I pronounce this a fraudulent decree I do not mean to characterize the conduct of the defendants, which I want to leave exclusively to you.”

Again: “ Now, the first questionin this case, as you see, is whether the suit itself was falsely instituted, and that depends upon two considerations. The first is, of course, whether Mrs. Flack is to be credited in her statement that she did not authorize the suit to be brought for an actual divorce. This is a question exclusively for you, and concerning it I desire to express no opinion nor to affect your judgment in the least.”

Also : “ It will be for you to say, gentlemen, on the facts, whether these defendants are guilty of having obtained this decree of divorce by fraudulent or unlawful means. On that point it is proper to say that whether there was a genuine cause of action is not the question. The question is whether the law has been abused or perverted by practices which are fraudulent.”

The court also charged that if the jury believed the defendant Meeks did all the acts testified to in the case without conspiring with the other defendants or anybody else, they must acquit him.

And again: “Now, gentlemen, apply the rules with regard to conspiracy which I have given you and the general principles of law which I have stated, and take all the evidence here which is before you, the uncontradicted and that which is in conflict, and look at the entire case in its length and breadth; I leave it for you then to say whether there is or is not any reasonable doubt of the guilt of these defendants. If there is any reasonable doubt as to the guilt of one of them, he is entitled to it. If there is such doubt as to all of them, they are all entitled to it. If there is no reasonable doubt as to the guilt of any of them, you should so declare by a verdict.”

It will be noticed that all these exceptions really relate but to two subjects, viz., the characterization by the judge of the decree of divorce which had been obtained as a fraudulent decree and to the definition given of a criminal intent.

It is urged upon the part of the appellants that by this charge the judge usurped the privileges and functions of the jury, and dictated to them, as matter of law, or as a matter of mixed law and fact, what should have been left to them to find as a matter of fact, or as a matter of mixed law and fact, under proper instructions as to the law from the court. And, as an enforcement of this proposition, it is also urged that one of the questions on the trial was whether the divorce was fraudulent; and that the determination of the question involved not only the acts of the defendants, but the intent which was to be inferred by the jury from these acts; that is, not only the physical but the inferential facts; that it was not enough to secure a conviction that certain unlawful acts were done, but those acts must have been done in pursuance of a conspiracy animated by a corrupt purpose to procure a fraudulent divorce.

We think that, upon a consideration of the case, it will be seen that the learned counsel for the defendants has mistaken the question upon which the jury was called upon to pass, and that the principal question on the trial was not whether the divorce which had been procured was fraudulent, but whether there had been a conspiracy upon the part of each of these defendants with some other person or persons for the purpose of procuring a divorce by unlawful means. It is undoubtedly true that in a criminal case the court has no power to charge the jury that the defendants are guilty; and for that reason, upon the trial of an indictment for homicide, it was held to be error for the court to charge that if they believed the evidence of certain witnesses the defendant was guilty of murder.

This was held to be error, because although the homicide might be established beyond question, yet it was for the jury to say whether the homicide had been committed with the intent to kill, which was a necessary ingredient of the crime of murder; and as intent is necessarily a mental operation, the existence of which can only be inferred from established words and acts, the jury alone could draw this inference. (McKenna v. People, 81 N. Y., 360.) So it was held that it was error in the case of a defendant indicted for burglary with intent to commit larceny for the court to charge that the evidence showed that the burglary had been committed, because, although the evidence may have shown, that there had been a breaking into the premises, it did not show that a burglary had been committed unless it showed a breaking into with intent to steal, the intent being a part of the definition of burglary; and for the reason already stated the jury alone could draw the inference of intent. (People v. Marks, 4 Park. Crim. R., 151.)

There is another class of cases in which the question of intent must necessarily be submitted to the jury, and that is where two or more persons are indicted for the crime of conspiracy it is not enough to prove them guilty to show that' they have made .an agreement to do an act innocent in itself, and that the act which was the object of the agreement was prohibited, but it must, in .addition, be shown that the confederation was corrupt and that the .agreement must have been entered into with an evil purpose, as distinguished from a purpose simply to do an act, innocent in itself, in ignorance of the prohibition. And it is said: Persons who agree to do an act innocent in itself, in good faith, without the use of ■criminal means, are not converted into conspirators because it turns out that the act contemplated was prohibited by statute. The .actual intention belongs to the definition of the offense, and must be ■shown to justify a conviction for conspiracy.” In other words, a confederation to-do an act innocent in itself does not become a criminal act unless the agreement to do .the act is with knowledge that it is prohibited, because otherwise the confederation cannot be corrupt. (People v. Powell, 63 N. Y., 88.) But this rule has no application to a confederation to do acts which never, in themselves, can be innocent, and, therefore, the very confederation to do them makes the confederation corrupt; and the only •question in a case of this description to be left to the jury is, whether there was a confederation to effect the result by unlawful means, the court necessarily being the judge as to whether the means were lawful or unlawful.

In the case at bar we find that the defendants were indicted for a ■conspiracy to procure a divorce by unlawful means. The learned judge in his charge to the jury gave the definition of a conspiracy as contained in the Penal Code, as follows : If two or more persons conspire, either * * * falsely to institute or maintain an action or special proceeding * * * or to commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws, each oí them is guilty of a misdemeanor.”

The court then called the attention of the jury to the fact that there are two kinds of conspiracy, one a conspiracy to do an unlawful act, unlawful in itself, even if the most righteous means are resorted to; and, second, a conspiracy to perform a lawful act by unlawful means, and the jury were instructed that a combination for the accomplishment of unlawful acts by lawful means, or lawful acts by unlawful means, each constituted a conspiracy.

The attention of the jury was then called to the further fact that a conspiracy requires two or more persons to be involved in it, and that there are many acts which may be performed by one man with impunity, which two or more persons together cannot perform with impunity; and that it is the essence of the conspiracy doctrine that there should be a combination of two or more; and unless the jury could find a combination between each of these defendants with some other person to procure this default by unlawful means, there must be an acquittal. And in various parts of the charge the attention of the jury is specially called to the fact that if the acts which were testified to were done by any of these individuals without conspiring with the other defendants or anybody else, they were not guilty.

The evidence upon the part of Meeks shows, and this is the foundation of the judge’s charge in reference to this matter, that this- decree which the court pronounced to be a fraudulent decree was obtained substantially under the following circumstances, and upon the following papers: A summons and complaint had been served upon the defendant James A. Flack in a divorce proceeding and no answer had been put in. An application had been made for an order of reference, which had been granted. Certain proceedings, the irregularities in which it is not necessary to mention, were had before the referee named in the order, who made his report. The referee, Mr. Meeks, presented such report with a proposed decree to the judge of the court in which the action had been brought, and the judge objected to the entering of that decree, whereupon Meeks, by direction of the judge, as he claims, took all the papers, destroyed the original summons, substituted a new one antedated, saw "Wright put his name to it as plaintiff’s attorney,, and prepared an affidavit of regularity which "Wright swore to.. The previous attorney’s name was erased from the complaint, and this was also signed by Wright. The affidavit of service of the original summons and complaint was attached to the new summons and complaint; a new order of reference was prepared, and a proposed decree; and all these papers were presented by Meeks without any service of the new summons within a few days after their creation to the judge of the court in which the previous action had been commenced, and a decree of divorce procured.

It appears from the record that it was claimed upon the trial that-these proceedings were irregularities, and it was to meet this argument on the part of the defendants that the learned judge charged the jury that these were not irregularities, because the court had never acquired jurisdiction, and that, because there was not a single-paper in that record but which was false, therefore, as matter of' law, the decree was fraudulent.

Upon the uncontradicted evidence given upon this trial the court would have been compelled to charge that this decree was void. There was no pretense that the summons upon which it had been, granted had ever been served. There was no pretense that Wright, had ever been authorized to appear as the plaintiff’s attorney. There-was no pretense but that the affidavit of the service of the summons- and complaint Was false as attached to the summons and complaint upon which the decree was granted. There was no pretense but that the affidavit of regularity was false. There was no pretense but that the report of the referee was untrue in that no proceedings were taken before the referee subsequent to the order of reference contained in the judgment-roll. And it is clear that no body but the court could judge as to whether, under these circumstances, the court had ever acquired jurisdiction under the decree. But it is urged that, because the learned judge characterized the decree as fraudulent and because fraud is always a mixed question of law and fact, therefore it was error.

If the decree was void, why was it void ? Simply because of the-fraudulent means used in its procurement; simply because there-was not a single paper in the whole roll which constituted the judgment-roll and which preceded the decree but was false and fraudulent in law. , And we repeat, who was to judge as to whether the law had been cheated and defrauded by the manner in which this ■decree had been obtained? Was it for the jury? There was no dispute as to these facts. Was it not, then, for the court to say whether the law had been contravened in the procurement of that ■decree rendering it fraudulent and void ? If it was void because of fraud, we can see no reason why the court should not characterize its nothingness by the proper appellation.

The jury was expressly charged that even these facts did not make any of the defendants guilty of the offense charged in the indictment, because the court said, “ whether this judgment and these proceedings were the result of a conspiracy entered into by these defendants is a question which if you (the jury) solve in favor of the people, you must so solve beyond what is called in law any reasonable doubt” before any one of them could be convicted; and the jury were expressly instructed that an individual accused of a crime is entitled to have it left to the jury to form their own conclusion upon the evidence, whether he has or has not committed the particular crime charged against him. It clearly was .a duty imposed upon the court to instruct the jury as to whether the procedure, which was confessed to by the defendant Meeks, was a perversion of the law. The jury are not the judge of both the law and the facts. It was for the court to characterize the acts ■established as having been done by Meeks, and it was not for the jury to determine whether they were in accordance with the statute ■or not. And this is all that the court did in declaring that this decree was fraudulent because it was not founded upon a single honest paper, the defendant Meeks having full knowledge thereof.

The question of the. intent with which these acts were done had no bearing upon the guilt or innocence of the defendants under the rule laid down in the case of People v. Powell (supra). It is only when the act done is innocent in itself that the intent with which it is done becomes material. We do not think, however, that any one will have the hardihood to claim that the manufacture of false papers and the procurement of a divorce thereon could, under these circumstances, be innocent acts; and, therefore, the charge of the ■court that the doing of the acts, intending to do them, showed a criminal intent was clearly correct, such acts being mala in se.

It is to be observed, however, that these exceptions have no relation whatever to the guilt of the defendant James A. Flack. The jury were instructed that he was not connected, directly or indirectly, with these fraudulent changes which took place after "Wright was consulted, and that the case against him depended upon the manner in which this action was brought, charging adultery with Susan F. Reynolds, and upon the acts done with reference to the-preparation of the evidence of the witnesses whose depositions, appeal' attached to the referee’s report; and the jury were instructed that Meeks was not affected by this consideration, but by what, happened after he went to Wright, and that the question of the-guilt of William L. Flack depended upon the consideration which the jury gave to the evidence as to his participation throughout in. the divorce proceedings which were taken.

The learned judge was careful to distinguish between the parts which the various defendants, who were then on trial before him, took in the proceedings which culminated in the indictments under which they were being tried; that there was no connection between the acts done by Meeks and the defendant James A. Flack; that if' James A. Flack was guilty, his crime had been committed prior to the time when the fraudulent acts of Meeks commenced; and that, he had no connection whatever with those acts, and the connection of the defendant William L. Flack with those subsequent proceedings depended upon the weight which the jury gave to the evidence produced before them.

It seems to be clear, therefore, that in the exceptions to the characterization by the learned judge of this decree as fraudulent the-defendant James A. Flack has no interest, and that only the defendants William L. Flack and Meeks could possibly be affected by the charge of the court in this respect, even if it were erroneous. But. we think it has been clearly shown that the court had the right to judge as to whether Meeks’ procedure was lawful or unlawful, and as to whether these proceedings were mere irregularities or frauds upon the court; and that there was no question whatever for the jury upon this point; and it should be borne in mind, in the consideration of this-question, that the court charged expressly that, although Meeks was guilty of these unlawful acts in the procurement of this decree, if he did it alone he was not guilty of the offense charged, but that. it was necessary that the jury should find that he conspired with some other person for the attainment of this end by unlawful means, and thus was guilty of a conspiracy for the perversion of justice and of the due administration of the law. Again and again, throughout the charge, did the court call the attention of the jury to the necessity of finding a combination between the defendants and some other person or persons to do these acts before a conviction could follow. If it was a fraud upon the court to procure a decree of divorce upon papers, every one of which was stamped with confessed dishonesty, then the learned judge would be derelict in his duty to the people by characterizing them otherwise than lie has done. In law, at least, fraudulent means can never culminate in honest results.

This brings us to the consideration of the claim that the learned judge erred in his commentaries upon the manner in which Meeks performed his duties as a referee. We can see no error in the charge of the court in that respect. The court was bound to instruct the jury as to what was the regular method of proceeding.

It is urged that in the charge the court assumed that one of the witnesses told the truth upon the stand and did not tell the truth in the deposition taken before Meeks; that this was an inference of fact, and it should not have been charged that the witness told the truth on the stand and that a different state of facts would have been elicited by Meeks if he had conducted an examination.

No such question is raised by the exception to this portion of the charge, and the attention of the court was not called by anything that was said to this particular language which was used. But we think that the' interpretation placed upon the language by the counsel for the appellant is not correct, upon reading the paragraph in full.

It was established by uncontradicted evidence that the depositions as sworn to before Meeks, as referee, did not contain the truth, and it was because of this fact that the court probably used the language to which attention is now called. All that was intended to be presented to the jury was whether the referee, upon proper examination, would have secured the facts as the witness told them upon the stand, which is evidenced by the next sentence in the charge. “ If the referee had elicited that fact by an examination of the witness,” etc., clearly leaving the matter wholly open. If the attention of the court had been called to the use of the word “ truth ” by any properly directed exception, the language would undoubtedly have been changed, as there was no intention exhibited upon the part of the court to usurp the province of the jury in this respect, as the jury were again and again instructed that they were to be the judges of the facts, and not the court, so far as they depended upon the evidence of the witnesses.

The next error claimed is that the court erred in its charge that it was no excuse for Meeks if he performed the acts which he did perform by the consent of Judge Bookstavee, or under his direction. In support of this proposition our attention is called to the People v. Crounse (51 Hun, 489), where a party was indicted and convicted of maintaining a public nuisance in constructing an embankment upon private land, thereby causing surface water to flow upon the public highway. The defendant undertook to give evidence showing that the act done by him was done by the direction of the commissioners of highways, and the court held that it was competent evidence, basing their decision upon the fact that, although the commissioners of highways might fail in judgment, the act having been done pursuant to their directions, could not be punished criminally.

We fail to see the application of this case to the facts established in the case at bar. Judge Bookstavee had no right to direct Meeks to commit acts which, under no circumstances, could be other than criminal. Judge Bookstavee had no power to direct the commission of forgery and perjury upon which to found a decree, so as to shield the party following the direction from the consequences of his acts. In the case cited there was a mere error of judgment on the part of the commissioner of highways. He had a right to direct the act to be done, provided it was done without public injury, and, therefore, the defendant in the case cited, if acting under such authority, did not act unlawfully, and hence his action would not come within the terms of the Penal Code. But Judge Bookstavee, if he did so direct, had no power to direct the commission of acts which would result in the perpetration of a fraud upon the court. It is to be borne in mind, as the learned judge charged the jury, that the judge is not the court; that he is the mere servant and administrator of; the law, and that the judges are the servants of the people to perform their duties in accordance with the law; and that a judge is utterly without jurisdiction to direct the performance of acts which must necessarily result in the perpetration of a fraud upon the court, and rendering absolutely void all action had thereon. Such a case is not the ease of an error of judgment. It is a case of the perversion of judgment.

The only other exception which appears upon the counsel’s brief is one which is not argued at length, and it is to the effect that the court erred in denying a motion for a new trial, based upon the intrusion of a "World reporter into the jury-room during their deliberations.

It appearing in the record of this case, from the affidavits of the jurors, that their judgment was in no manner affected by reason of the intrusion of this man without their knowledge into the jury-room, it is evident that the defendants have sustained no damage, and consequently the verdict cannot be set aside upon that ground.

But it is also clear that whatever rights the defendants may have had by reason of the happening of this incident, they were waived by the subsequent conduct of the defendants and their counsel.

After they had full knowledge of the facts they permitted the trial to go on and the jury to be sent back without objection, and asked the court to give instructions to the jury on their behalf, the refusal to give some of which forms one of the grounds upon which this appeal is founded.

Under such circumstances, the defendants cannot now be heard to claim immunity because of this alleged irregularity. They had their opportunity to object to the sending back of this jury. They did not, and they cannot now be allowed to assume the position of speculating upon the verdict of the jury; if it was in their favor, they would be discharged; if against them, it would be set aside.

An examination of the whole case shows that the learned judge presiding at the trial in no manner usurped the functions of the jury. He repeatedly told the jury that the guilt or innocence of the defendants was a question exclusively for them to determine, and in respect to which he did not wish or intend to influence their judgment. Where conceded acts were frauds upon the court because wholly unlawful, he so characterized them, as he was bound to do, and it was for him alone so to do. As has already been said, it was not the province of the jury to determine whether an established act was lawful or unlawful. Such question is one of law exclusively for the court.

There do not appear to be any errors which would justify a reversal of the judgment, and it should be affirmed.

Brady and Daniels, JJ., concurred.

Judgment affirmed.


text:
    RICHARD J. MORRISSON, Public Administrator of the Goods, Chattels and Credits of JOSEPH E. MILLER, Deceased, Appellant, v. THE MUTUAL LIFE INSURANCE COMPANY OF THE CITY OF NEW YORK, Respondent.

      Insurance policy issued to a resident of another State — the public administrator of the city of New York cannot enforce it.

    A public administrator in the city of New York cannot enforce the payment of a policy of insurance, issued to a resident of the State of Maine, where the policy has never been within the State of New York, although issued by a company incorporated under the laws of, and whose principal office was and is within, the State of New York.

      Nolyoker. Mutual Insurance Company (23Hun, 75; affirmed in 84 N. Y., 648) cited-
    Appeal by the plaintiff from a judgment, entered in the office of the clerk of the county of New York on the 9th day of December, 1889, after a trial at the New York Circuit, at which the complaint was dismissed upon the merits, with costs to the defendant.
    The action was brought to recover the amount payable under a policy of insurance issued by the defendant upon the life of Joseph E. Miller, who was a resident of South Hadley, in the State of Massachusetts, where he died on the 13th day of September, 1886. On the 4th day of May, 1887, the plaintiff was appointed, by the Surrogate’s Court of the county of New York, the administrator of all and singular the goods, chattels and credits which were of said Joseph E. Miller, and the plaintiff duly qualified and entered upon the discharge of his duties as such administrator.

      O. F. Ilibbard, for the appellant.

      Juli&n T. Davies, for the respondent.
   Van Brunt, P. J.:

In March, 1873, the defendant, at the city of New York, issued to one Joseph E. Miller a policy of insurance upon his life. In September, 1886, said Miller died in the State of Massachusetts, being at the time of his death a resident of the State of Maine, and was at the time of his death in possession of said policy. In N ovember, 1886, one Chase was duly appointed the administrator of the estate of said Miller in the State of Maine, and duly received said policy and remained in possession thereof until the sñrrender as hereinafter mentioned, and served upon the defendant notice and due proof of the death of said Miller, and demanded payment of the amount of said policy, and in November, 1887, began an action against the defendant for the recovery of the amount due on said policy. That service in said action was made in the State of Maine upon an agent of the defendant appointed pursuant to the laws of said State. In May, 1887, the plaintiff -was appointed in New York an administrator of the estate of said Miller, and in June, payment of the amount due on said policy was demanded by the plaintiff. In August.this action was begun to recover said amount.

In October, 1887, a judgment was rendered in the Maine action .and execution issued therein, and on the nineteenth of that month the Maine judgment was paid and satisfied and the policy surrendered by said Chase.

Upon the trial of this action the complaint was dismissed on the merits and judgment thereupon entered for the defendant, from which this appeal was taken. It is claimed by the plaintiff that the case of Holyoke v. Mutual Insurance Company (22 Hun, 75; affirmed, without opinion, 84 N. Y., 648) sustains his right of recovery in this action. An examination of that case, however, we think shows that it is, perhaps, a diréct authority in support of the judgment herein.

In the case of Holyoke v. Mutual Insurance Company, one Perkins, a resident of Maine, had assigned a policy of insurance upon his life to one Holyoke, a resident of this State. Holyoke having died .letters testamentary were issued to the plaintiff, and subsequently letters of administration, with the will annexed of the estate of Holyoke, were issued in Maine to one Bonney. The plaintiff received the assignment of the policy, but the policy itself was in Maine, and received by Bonney as such administrator; upon being paid the amount of the policy Bonney .assigned the same to another person residing in Maine, and the action was brought by the plaintiff to recover the amount of the policy in the courts of this State, and the court held that because the policy was in Maine that it there formed part of the property of the testator and belonged to the administrator in Maine.

The policy in question never having been in this State, could not, under the principle of the foregoing case, form any part of the assets of the deceased to which the plaintiff acquired title. But it is urged that the debtor being here, and the administrator in Maine not being able to sue the debtor, that therefore the other principle announced in the case cited, that if a debtor pays to an administrator of his ■creditor appointed in the State where he resides he cannot be sued •elsewhere, applies. An examination of the case shows that the ground upon which such a payment is protected is, because the debtor cannot be compelled to pay elsewhere ; but the case also holds that- such a payment will not be protected if there exists a written •contract creating the indebtedness which is not held by the party claiming payment, but it is within another jurisdiction. If the plaintiff had possession of the policy in question, then his case would have been identical with that of Holyoke v. Mutual Insurance Company, but the want of such possession is fatal to his action.

The following cases, New England Mutual Life Insurance Company v. Woodworth (111 U. S., 138); Holmes v. Remsen (4 Johns. Ch., 460); Embree v. Hanna (5 Johns., 101) support the view taken. The plaintiff never having obtained the title to the policy in question or the right to the possession thereof, cannot maintain this action.

The judgment appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.