source: Caselaw Access Project

author: Miller, J. Danforth, J.

license: Public Domain

text:
    Wright Robins, Appellant, v. John S. McClure, in Person and as Executor, etc., Respondent.
    (Argued March 18, 1885 ;
    decided November 24, 1885.)
    C., the wife of defendant, died, leaving no descendants or ancestors. She left a will, by which she gave to defendant, her husband, one-half of her residuary estate, the other half to her brother W. and her sister. Defendant was appointed executor, and qualified as such. W. died before the testatrix. The residuary estate consisted solely of personal property. In an action for the construction of the will, held (Danfobth, J., dissenting), that defendant, by virtue of his marital rights, was entitled to that portion of the estate bequeathed to W., which bequest lapsed by reason of his death before that of the testatrix; and that letters of administration were not necessary to protect the husband’s rights.

      Barnes v. Underwood (47 N. Y. 351), distinguished.

      Meet v. Perrins (L. R., 4 Q. R. 536);" S. G. (L. R., 4 Q. B. 500), disapproved.
    The rule of the common law, recognized by the Revised Statutes (2 R. S. 75, §§ 29, 30 ; id. 98, § 79), which authorizes a husband to hold the property of his deceased wife, not only by virtue of administration, but also by virtue of his marital rights, so far as it applies to the case of a wife dying intestate, without leaving descendants, has not been changed by the various acts in relation to married women. (Chap. 200, Laws of 1848 • chap. 375, Laws of 1849; chap. 90, Laws of 1860; chap. 172, Laws of 1862; chap. 782, Laws of 1867). (Danfobth, J., dissenting.)

      Sedgwick v. Stanton (14 N. Y. 289), distinguished.

      It seems that where the husband, as executor, has control over the property of his deceased wife, for all purposes of administration he occupies the same position as if he were administrator, and he acquires the same rights.
    Appeal from judgment of the General Term of the Supreme • Court, in the first judicial department, rendered October 16, 1884, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term. (Reported, below, 33 Hun, 368.) '

    This action was. brought to obtain a judicial construction of the will of Caroline McClure.
    Said Caroline McClure died in the month of November, 1882, leaving a will, which was thereafter proved as a will of real and personal estate, and letters testamentary thereon were issued to defendant John McClure, her husband, one of the executors named in said will, who duly qualified and entered upon his duties as such executor. The testatrix left no descendant or ancestor surviving. She left but one piece of real estate, which she devised to her husband. She also gave to him all her household furniture and effects, and also devised and bequeathed to him the one-half part of all the remainder of her estate, both real and personal, absolutely. The other half was disposed of by the following clause of the will:
    “ I give and bequeath the remainder of my estate, both real and personal, to my brother, Wright Robins, and to my sister, Mi's. Elizabeth Carter, to be equally divided between them, to have and to hold unto them, their heirs and assigns, forever.”
    Elizabeth Carter survived her sister, but the brother, Wright Robins, died before her. The plaintiff in this action is a nephew of the testatrix. She also left certain other nephews and one grand-niece, the heirs-at-law of her deceased brothers. It was admitted by the pleading that defendant has taken possession of all the estate of said testatrix, both real and personal.
    The plaintiff claims that by reason of the death of said Wright Robins in the life-time of said testatrix, the provisions made in said will in his favor lapsed, and that upon her death her next of kin, to-wit, the parties hereinbefore mentioned, became and are entitled to the personal estate bequeathed to said Wright Robins, and to a distribution of the same among them, under the statute of distributions, and that the defendant holds the same in trust for .them as such executor as aforesaid.

      Edward O. James for appellant.
    At common law the husband j upon the death of his wife intestate, as administrator, became entitled to her assets not already reduced by him to possession. (Barnes v. Underwood, 47 N. Y. 851, 354, 355; 22 and 23 Car. II, chap. 10; 23 id., chap. 3.) This right was continued by the Revised Statutes (2 R. S. 56-57, § 1; id. 60, § 21; id. 75, §§ 27, 29, 30; id. .98, § 79), but has been abolished by the Married Women Acts. (Laws 1848, chap. 200; Laws 1849, chap. 375 ; Laws 1853, chap. 576; Laws 1860, chap. 90, §§ 1, 7; Laws 1862, chap. 172, § 7; Laws 1867, chap. 782, §§ 3, 4, 11, 12.) At common law the surplus, or residuum left after payment of debts, was payable to the residuary legatee appointed by the will, and, if there was none, it was a long-settled notion that it devolved to the executor’s own use by virtue of his executorship, but, whenever there was sufficient on the face of the will, by means of a competent legacy or otherwise, to imply that the testator intended that his executor should not have the' residue, the undivided surplus went to the next, of kin. (2 Blackst. Com. 514, 515.) So, if a legacy of the residue, or a part thereof, lapsed, the share thus falling belonged to the testator’s next of kin, and the executor took and held the same in trust for them. (Bagwell v. Dry, 1 P. Wms. 700; Page v. Page, 2 id. 489 ; Owen v. Owen, 1 Atk. 494; Peat v. Chapman, 1 Vesey, Sr., 542; Bennett v. Batchelor, id. 63 ; Armstrong v. Moran, 1 Bradf. 314; Meeker v. Meeker, 5 Redf. 29; Duncan v. Duncan, 4 Abb. N. C. 278.) If such a lapse occurs in the will of a married woman, the executors hold the lapsed portion in trust for her next of kin. There was no right at common law to administration upon a lapsed legacy. Hence there is no means for the husband obtaining title thereto through administration. (Williams v. Seaman, 3 Redf. 148; Fry v. Smith, 10 Abb. N. C. 224; Kearney v. Miss. Soc., id. 274.) One who accepts of a devise or bequest does so on condition of conforming to the will, and he is bound to give full effect, as far as he can, to its legal dispositions. (Caulfield v. Sullivan, 85 N. Y. 153; Chamberlain v. Chamberlain, 43 id. 424; Brown v. Knapp, 79 id. 136; Bullard v. Benson, 1 Demarest, 486.)

      J. W. Pickett for respondent.
    Intestacy occurs in the case of a person dying and leaving a will disposing of none or part only of the personalty. (Code of Civ. Pro., § 2514, par. 1; 2 Kent’s Com. 408; Gill v. Brouwer, 37 N. Y. 549; Lefevre v. Lefevre, 59 id. 434.) Personal property passes as in cases of entire intestacy where it is undisposed of by will. (Fry v. Smith, 10 Abb. N. C. 224; Gill v. Brouwer, 37 N. Y. 549;
      Lefevre v. Lefevre, 59 id. 434; Kerr v. Dougherty, 79 id. 327; Williams v. Seaman, 8 Eedf. 148.) At common law the husband is entitled to the personal- property and choses in action of his wife. They are vested in him at her death, whether reduced to possession or not, in virtue of his marital right, and not solely by his right of administration. (Bright on Husband and Wife, 34; McQueen on Husband and Wife, 46; 2 Kent’s Com. 143; Ransom v. Nichols, 22 N. Y. 110 ; Ryder v. Nulse, 24 id. 372; Barnes v. Underwood, 47 id. 351; Fry v. Smith, 10 Abb. 27. C. 224; Gilman, v. McArdle, 12 id. 414.) The Married Woman’s Acts of 1848 and 1849 made no change in the common law. (Ransom v. Nichols, 22 N. Y. 110; Ryder v. Hulse, 24 id. 312; Barnes v. Underwood, 47 id. 351; Ballance v. Bausch, 8 Abb. Pr. 368; Fry v. Smith, 10 Abb. 27. C. 224; Gilmam v. McArdle, 12 id. 414.) The husband whose wife dies intestate has the right at any time to administer upon her estate and take title to her property, subject only to the payment of debts, and where he does not take out letters of administration he shall be presumed to have assets in his hands sufficient to pay her debts, and shall be liable therefor. (N. Y. R. S. [6th ed.], part 2, chap. 6, tit. 2, § 33; Barnes v. Underwood, 47 N. Y. 351; Gilman, v. McArdle, 12 Abb. 27. C. 414.) The statute of distributions applies only to the personal estates of married women dying intestate leaving descendants them surviving. (R. S. [6th ed.], part 2, chap. 6, tit. 3, § 94; Barnes v. Underwood, 47 N. Y. 351.) Where letters testamentary have been granted, letters of administration are not necessary to protect the husband’s interest in the personal estate of his deceased wife. (Ransom v. Nichols, 22 N. Y. 110; Fry v. Smith, 10 Abb. 27. C. 225, 232-4; Matter of Darvey, 3 Redf. 214.)
   Miller, J.

The question to be determined in this case is whether John S. McClure, the defendant and executor under the last will and testament of his wife, Caroline McClure, is entitled to that portion of the estate of the testatrix which by her will was bequeathed to her brother, Wright Eobins, and which lapsed by reason of Ms death prior to the death of the testatrix.

The testatrix, by her will, devised and bequeathed to her husband certain real estate and personal property, and also one-half of the residue of her estate, both real and personal, absolutely. The remainder, she gave to her brother, Wright Robins, and her sister, Mrs. Elizabeth Garter, to be equally divided between them. She left no descendants or ancestors. The residuary estate consisted solely of personal property. Her husband qualified as executor, and claims to be entitled to that portion of the estate which is lapsed, under the common law, by virtue of Ms marital rights.

The plaintiff claims, as one of the next of Mn and heirs at law, being a son of a deceased brother of the testatrix, Isaac Robins, an interest in such unbeqneathed personal property, • and brings this action on behalf of himself and for the benefit of such next of kin and heirs at law as will come in and contribute to the expenses thereof.

By the common law the husband became entitled to that portion of his wife’s personal property of which she was actually possessed at the time of her marriage, or which came to her during coverture. In case of the wife’s death prior to that of her-husband he was authorized to take out letters of administration upon her estate, and, as administrator, after the payment of her debts, if any there were, he retained and became the owner of the assets remaining in his hands as such administrator under the practice then existing, by means of which, before the statute of distributions, the administrator converted and appropriated the assets in his hands to Ms own use. A contest arose between the ecclesiastical and temporal courts concerning the right of the administrator to thus appropriate the funds, which contest was finally settled by the passage of the statute of distributions (22 Car. II, chap. 10), and as doubt still existed in regard to the rights of the husband, an explanatory act (23 Car. II, chap. 3) was passed, by section 25, of which it was declared that this statute should not be construed to extend to the estates of femes covert dying intestate, but that the husband should have the same right to administer and enjoy such estate as before the passage of the said act.

The rule of the common law, which authorized the husband to hold the property of his wife, by virtue of administration, has been extended in this State, so as to entitle him to hold the same also by virtue of his marital rights, and numerous cases sustain this doctrine. In the case of Ransom v. Nichols (22 N. Y. 110], it was held that, where a married woman, possessed of separate personal estate, dies without having made any disposition of it in her life-time, or by way of testamentary appointment, the title thereto vests in her surviving husband, and cannot be affected by the granting of administration upon her estate to any other person. In the case cited, letters of administration had been taken out by a third person upon the wife’s estate, and an action was brought against the maker of a note to recover the amount of the same, which note was originally » given to the deceased wife, and afterward renewed payable to the husband and held by him. It appeared upon the trial that the amount of the note had been settled with the husband and taken up and canceled. It is said in the opinion : “The property, then, in this case, stands precisely upon the footing of choses in action of the wife, which have not been reduced to possession during the coverture. In this event the husband has the right to recover and enjoy them as his own, either as an incident to the marital relation and as flowing from it, or as an incident to his right of administration upon her estate; and for all practical purposes, it is immaterial to which source this right should be referred. This right of administration is secured primarily to the husband by the statute, and indeed, according to some authorities, it exists in the husband Jure mo/riti, and wholly irrespective of any statutory provisions upon the subject.” It will be noticed that the husband did not administer upon the estate of his wife, and hence it was claimed that he had no authority to interfere with her assets or to settle with the defendant who was the maker of the note. The decision expressly overrules this position and upholds his claim by virtue of his marital rights.

In Ryder v. Hulse (24 N. Y. 372), the action was brought for the recovery of certain notes bequeathed by the wife of the plaintiff, who had taken out letters of administration upon her estate, to a third person, which notes had been acquired before the passage of the Married Woman’s Acts of 1848 and 1849, and it was held that the wife had no power to dispose of said notes by will, and that the plaintiff was entitled to recover, and it was laid down in the opinion by Weight, J., that all the personal estate of a wife vests absolutely in the husband at the moment of marriage, and all she acquires during coverture immediately becomes his, and that the same rule applies to choses in action, and as to those she has only a contingent interest; that in the event of the wife’s death the husband does not take the choses in action not then reduced to possession by virtue of any statute of distribution or as next of kin, but the property is already vested in him, and if he should die before recovering, then they would be assets of his estate to be recovered by his representatives, and not by the representatives of his wife; that by his wife’s death her interest becomes extinct, and his becomes absolute, with the right of possession as administrator. It is further said that the same view of the question was taken in the case of Ransom v. Nichols (22 N. Y. 110), which is commented upon, and the rights of the husband by virtue of the marital relation fully sustained.

In Olmsted v. Keyes (85 N. Y. 602) the rule laid down in the cases cited is fully upheld. It is said, in the opinion by Earl, J., that “ all the choses of the wife, not reduced to possession during the joint lives, by the common law, passed to the husband upon her death. * * * He may then release them or take payment of them without administration, if he can get payment. If administration is needed to reduce the choses to possession he is entitled to it, and if there are no debts the administration is solely for his benefit. If, after his wife’s death, the husband does not release, assign or reduce to possession her choses in action during his life-time, then after his death his personal representatives are entitled to administration upon them for the benefit of his estate as part of his assets.” (See, also, Westervelt v. Gregg, 12 N. Y. 210; 2 Kent’s Com. 136, 143; Reeve’s Dom. Rel. [1st ed.] 1.) In Barnes v. Underwood (47 N. Y. 351), it is held in the opinion that, at common law, marriage is an absolute gift to the husband of the goods and chattels and personal property of which the wife is actually possessed and of such as come to her during coverture. As to choses in action marriage is only a qualified gift, conditioned that the husband reduce them to possession during the existence of the marriage relation, and when so recovered the title vests absolutely in him. It is there said that the husband became entitled to the estate of his deceased wife by virtue of the right to administer; that-this right did not depend upon a title existing during marriage, but upon that which he acquired upon her death by the exclusive right to administer her estate as her successor.

In that case no notice is taken of the decisions of this court already cited, which had previously been made and in which it was laid down, as we have seen, that the husband, at common law, became vested with all the personal property of his wife by virtue of the marital relation and not solely as administrator, and as these cases are not considered or discussed in the opinion, and no dissent expressed in reference to the same, the rule therein stated cannot be regarded as overruled or in any way affected or impaired. Until this is done by an authoritative decision of this court they must stand as the settled law of the State applicable to cases involving the same or any similar question.

We are not referred to any case in the English reports where the rule of the common law is stated exactly and in the precise form as in Barnes v. Underwood (supra).

In Fleet v. Perrins, which was first reported in- L. R., 3 Q. B. 536, and afterward on appeal in L. R., 4 Q. B. 500, it was held that, where the defendant received money from a third person, to be appropriated to the use of a married woman, and he wrote telling her he held the money at her disposal and the wife died, and then her husband; and the wife’s administratrix sued the defendant for money had and received to the use of the wife, the action was rightly brought by the wife’s representative, as the facts showed only a chose in action conferred on the wife, with which the husband had not interfered during coverture.

In the case last cited the distinct objection was taken that the action could not be maintained by the plaintiff as administratrix of the wife, on the ground that it was for money received by the defendant for the wife during coverture, and that, as her husband survived her, the administratrix of the husband was alone entitled to sue for the recovery of it. The decision in this case sustains the . doctrine, no doubt, that, where the husband has not interfered with the choses in action of the wife during her life, the same pass to her next, of kin and that his representatives, upon his death, after the death of the wife, have no right thereto as a part of his estate to which he was entitled by virtue of the marital relation.

While it is nowhere laid down in the case last cited that the husband who survives the wife is entitled to her personal estate as administrator and not by virtue of the marital relation, the conclusion arrived at is nevertheless in conflict with the current decisions of the courts of this State, as we have seen, and it should not be followed.

The rule of the common law, as explained by these decisions, was fully recognized by the provisions of the Revised Statutes.

The husband was solely entitled to letters of administration upon his wife’s estate, and if he failed to take out letters he was presumed to have assets in his hands sufficient to pay her debts, and was held liable therefor; and if he died leaving any assets of his wife unadministered, they passed to his executors or administrators as part of his personal estate, but subject to her debts. (2 R. S. 75, § 29). If any one, else administered the husband was entitled to the assets which' remained after the payment of debts.. (2 R. S. 75, § 30). And it was further provided that the statute of distribution should not apply to the personal estate of married women, but it was declared that their husbands might demand, recover and enjoy the same as they are entitled by the rules of the common law. (2 R. S. 98, § 79.) The enactments referred to remained in force until a new system was inaugurated having in view the protection of the rights of married women, under which material changes were made in the laws in respect to the same as they had previously existed. These laws embrace enactments by the legislature at different times, and contained provisions in reference to the separate estates of married women which did not exist at common law or under the statutes of Great Britain, or the statutes of this State, as will be seen by a reference to the same.

The first enactment (Chap. 200, Laws of 1848, as amended by chap. 375, Laws of 1849) declared that the wife’s property should not be subject to the disposal of her husband or liable for his debts, but should continue her sole and separate property as if she were a single female, and she was empowered to take and hold property and convey and devise the same as if she were unmarried. By chapter 576, Laws of 1853, the husband was exempted from the payment of his' wife’s debts contracted before her marriage. By chapter 90, Laws of 1860, and by chapter 172, Laws of 1862, other provisions were made in conformity with the previous enactments, the effect of which was to separate the estate of a married woman from the control of her husband, and confer upon her the same rights as if she were unmarried, and relieve the husband from the liability previously existing for the payment of her debts. Then followed chapter 782, Laws of 1867, which contained other provisions of a similar character, and among other things an amendment to section 79 of the Revised Statutes (supra), by the repeal of its former provisions, and making it read as follows: “ § 79. The preceding provisions respecting the distributions of estates shall apply to the personal estates of married woman dying, leaving descendants them surviving; and the husband of any such deceased married woman shall be entitled to the same distributive share in the personal estate of his wife to which a widow is entitled in the personal estate of her husband, by the provisions of this chapter, and no more.” By section 11 of the same act, section 30 of the Revised Statutes (supra), was repealed.

In view of the changes thus made, the question arises what effect is to be given to the enactments last named. It is claimed by the appellant’s counsel that the amendment of section 79 and the repeal of section 30 did not leave the common law in proprio vigore as the General Term assumes; that they were affirmative of the common law; that where a statute affirmative of the common law is abolished, the common law must likewise be abolished otherwise the repealing act would be a nullity. These provisions made the following changes: First. That under section 79, instead of the husband being entitled to the whole of the wife’s personal estate, he was only entitled by the amendment, when the married woman died leaving descendants, to the same distributive share as a widow would have in the estate of her deceased husband. Second. By the repeal of section 30, where letters of administration were granted to any other person than the husband, the administrator would be bound, in case the person dying left descendants, as provided in section 79, to pay over to the husband only one-third of the personal estate, and divide the balance among the descendants. It will be seen that no provision was made for the distribution of the estate, where a married woman died without leaving any descendants, and leaving a husband her surviving.

The provisions of the statutes to which we have referred were the subject of consideration in Barnes v. Underwood (supra), and it was there held, that the amendment of the seventy-ninth section of the statute of distribution in 1867, did not affect the right of the husband to administration and enjoyment of his deceased wife’s personal estate, except in the case therein specified, of her dying leaving descendants. Church, Ch. J., after discussing the effect of section-79 as amended, and the repeal of section 30, says: “ It is equally clear that; if that section had been originally enacted in the form as amended in 1867, the rights of the husband would not have been affected by it, except in the single case, therein specified, of the wife’s dying leaving descendants, and, in that case, the husband would have been limited to the distribution thei’ein specified; and such is its only effect and operation now. The twenty-ninth section, giving the husband absolute right of administration and enjoyment, remains in full force, except as qualified by the amendment of the seventy-ninth section in 1867; but the qualification has no application, unless the wife dies leaving descendants. * * * It is unnecessary to determine the effect of the repeal of the thirtieth section, until a case is presented where the husband does not himself administer upon the estate.”

As the testatrix in the case at bar left no descendants, her husband became entitled to the same interest in her personal property as though the amendment of section 79 and the repeal of section 30 had not been made, either as administrator, if he was authorized "to administer upon her effects, or, if not, as we have seen, by virtue of his marital rights under the decisions of the courts in this State. That he was unable to administer by reason of his being executor under his wife’s will could make no difference, as the law established his rights independent of his right to administer. In either case the property belonged to him, and he could not be deprived of his rights because his wife left a will in which provision was made for him, and he was appointed executor and acts as such and accepts a devise and bequest in his favor under the will.

If the husband had not accepted the appointment of executor under the will and refused to qualify, and if an administrator had been appointed with the will annexed, could it be said that he waived his rights as husband at common law and that the estate thereby passed to the next of kin or heirs at law of the deceased ? The amendment of section 79 only affected his interest where the wife died leaving descendants, and under that provision alone it cannot be claimed that the husband would be deprived of his rights at common law, and although the repeal of section 30 left no provision for the payment of assets to the husband by the administrator, as the Married Woman’s Acts of 1848 and 1849, as we have seen and as the authorities hold (Ransom v. Nichols, 22 N. Y. 110; Ryder v. Hulse, 24 id. 372; Barnes v. Underwood, 47 id. 351; Vallance v. Bausch, 8 Abb. Pr. 368; Fry v. Smith, 10 Abb. N. C. 224; Gilman v. McArdle, 12 id. 414), made no change in the common law as to the husband’s rights, it is a fair and legitimate inference that the common law remained in force and was applicable in such a case. The repeal of section 30 was essential to give force to the amendment of section 79, as it was inconsistent with the latter provision, and it does nob appear that it affected any other statute. Under section 29 the husband was still entitled to letters of administration, and the common law alone remained in force. If otherwise competent, he was entitled solely to take out letters of administration, and if he did not take them out he was presumed to have assets in his hands sufficient to pay her debts, and was liable therefor.

While entitled to her estate at common law, there would seem to be no valid ground for holding that he should be deprived of the same if unfortunately, by reason of incompetency, he was unable to administer. In the case considered the husband would have been competent to act as administrator but for the will of his deceased wife, and having acted as executor he holds the portion of the estate as to which she died intestate, in his hands as such. Letters of administration, therefore, are not necessary to protect his interest, and no reason would seem to exist why, as at common law he was entitled to her estate, he could not hold that portion which lapsed by reason of her intestacy in regard to the same.

It may also be remarked that no person but the husband has administered upon the estate of the testatrix, nor was any person in opposition to him entitled to letters of administration. As executor for all purposes of administration he has exercised control over the property of his deceased wife. Although in name there is a difference between executor and administrator, there is really none in fact and in law, and each has control over the personal estate and the distribution of the same. His administration as executor under the will is in most respects the same as if he was an administrator under the statute, and as the portion undisposed of by the testatrix belongs to him, no reason exists why he should not retain it. This view is supported by Fry v. Smith (10 Abb. N. C. 225), which, although a Special Term decision, is entitled to weight. The case of Kearney v. Miss. Soc. (10 Abb. N. C. 274), which was previously decided by the same judge, is claimed to be inconsistent with Fry v. Smith. ' In the first case cited a distinction was made between the two cases, and it was held that if the latter case cited announced doctrines in opposition to the conclusion reached in the former, to that extent it could not be followed. (See, also, Williams v. Seaman, 3 Redf. 148.)

The appellant’s counsel relies upon the case of Sedgwick v. Stanton (14 N. Y. 289), as authority for the position that where a statute affirmative of the common law is abolished, the common law must likewise be abolished. In that case the question presented was in reference to the effect of the repeal of a statute in regard to maintenance, and the court held that the repeal of the statute abolished the common law of which it was declaratory. It will be seen that this related to a particular offense against a law establishing a crime, and under such circumstances there is the strongest reason for holding that when the statute was repealed no crime existed according to law. Section 30 of the Revised Statutes, which has been referred to, was only one of a series of provisions in regard to the distribution of property, and was evidently repealed be-cause it came in conflict with section 79, as amended by the same act that repealed section 30. As it is manifest that it was repealed for the purpose of harmonizing different provisions of law, and other general provisions were left in force, and as to some of these provisions the common law was held to prevail by the decision of the court, the case cited is not in point.

There is nothing, we think, in the decisions or in the statutes which sustains the position that the effect of the Married Woman’s Acts, which authorize her to make a will, is to extinguish the husband’s right to any portion of her personal estate, except so much thereof as the will gives him, where, by the lapse of a legacy, she dies intestate as to some part thereof. In such a case the portion which becomes lapsed is undisposed of, and it is not apparent why it would not be regarded the same as if she had made no will. As to that part, she certainly dies intestate, and no sound reason is urged why the rules relating to intestacy should not be held to apply. JSTo argument, we think, can fairly be derived favorable to the intention of the legislature to abolish the common law in such a case, and the tendency of the decisions in this class of cases is to uphold the rights of the husband at common law unless they are expressly taken away by legislative enactment.

The doctrine of election has no application to this case.

The judgment should be affirmed.

Danforth, J.

(dissenting). It must be conceded that' the

tendency of decisions in this court is to uphold the'rights of the -husband as they existed at common law, and if the facts before us were like those on which the decisions stand, I should feel constrained to assent to the affirmance of the judgment. They are, however, not identical, and I feel at liberty to dissent, putting my vote on what seems to me the true construction of the statutes relating to married women. By their express terms the wife’s estate was to continue her sole and separate property as if she were a single female. (Laws of 1848, chap. 200; 1849, chap. 375; 1860, chap. 90.) As to it, therefore, she is to be regarded as unmarried, and I am unable to see how any portion could pass to her husband jure mwriti. The general contention in support of the judgment is that the quality of separate property is extinguished by the wife’s death. I cannot so read the statutes, nor do I find therein any words of limitation. At common law the woman, by marriage, became merged or incorporated in the man, and the same event vested in him, as by gift, her property. On the other hand, the statute (1848, supra,) not only permits her to retain it with like effect as if unmarried, but expressly declares that it shall not be subject to the disposal of her husband. By these words the intention of the legislature is made plain, and it carries out the title of that act, which is “ for the more effectual protection of the property of married women.” The body of the act shows that this protection is against the rights of the man theretofore acquired by coverture. It is made effective by changing the character of the wife’s estate, and giving it the incidents which belong to the property of a single woman. The statute does not change this character at her death, and it follows that her husband can take no part of it under the common law by virtue of any marital rights. The judgment is to the contrary, and should, I think, be reversed.

Rapallo, Andrews and Earl, JJ., concur with Miller, J.; Danforth, J., dissents; Ruger, Ch. J., and Finch, J., do not vote.

Judgment affirmed.


author: Andrews, J.

text:
    Emma J. Veeder, as Administratrix, etc., Respondent, v. The Village of Little Falls, Appellant.
    In constructing a bridge over the Brie canal in the village of L. F., the State built a wing or retaining wall north of and parallel with the canal; the boundary line of the State lands was about twenty-one inches north of the wall. The village subsequently laid out a street along the northerly side of the canal; the description in the ordinance included said retaining wall and the strip of State land north of it, and said strip was subsequently used as part of the street. There was no railing or guard along the wall, and plaintiff’s intestate in driving along the street on a dark night drove so far south that he,"with his team and wagon, was thrown over into the canal, and he was drowned. A railing on the wall would have prevented the accident. In an action to recover damages, held, that the attempt on the part of the village to appropriate a part of the State lands for the street was a nullity; that the village had no legal right to put a railing on the wall, and no legal negligence could be predicated of an omission so to do, or of a failure of the village to obtain permission of the State to erect such a barrier.

      Sewell v. City of Cohoes (75 N. Y. 45), distinguished.
    It was claimed by plaintiff that defendant should have erected a barrier north of the wall outside of the State property. It appeared that at the west end of the wall there was a space of only eight and one-half feet for teams to pass. Had a barrier been placed on the line of the State lands the traveled way would be but about six and one-half feet. Defendant’s counsel asked the court to charge, if the jury found that a railing or guard north of the wall outside of the State property would he dangerous to the traveling public, the village authorities were not negligent in failing to build it. This was refused. Held error.
    (Argued June 5, 1885;
    decided November 24, 1885.)
    Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made October 7, 1884, which affirmed a judgment in favor of plaintiff; entered upon a verdict, and affirmed an order denying a motion for a new trial.
    This action was brought by plaintiff, as administratrix of the estate of John A. Veeder, deceased, to recover damages for alleged negligence causing the death of her intestate.
    Plaintiff was drowned in the Erie canal, in the village of Little Falls. The negligence complained of was the omission of the village to maintain a barrier between Mohawk street and the canal. The canal runs in an easterly and westerly direction through the village, with the towing-path on the north side. Two streets — German and Bellinger — cross the canal. Mohawk street extends from Bellinger street eastwardly along the north side of the towing-path to German street. The approach along Mohawk street to the north end of the German street canal bridge is over an embankment of earth sloping westward about ninety feet, when it reaches the level of the towing-path and the natural level of the street. For the purpose of keeping this embankment in place, the west wing wall of the bridge was extended westwardly along the entire length of the embankment. This wall at the bridge is eight feet high, and at the west end it is a little less than two feet high. The coping of the wall is substantially on a level with the surface of the street.
    The further material facts are stated in the opinion.

      George F. Crumbey for appellant.
    The wall, with the few feet of traveled way on the north, formed an approach or landing to the canal bridge, and was constructively as much a part of the same as the direct approach from German street. (Laws of 1839, chap. 207; 1 R. S. [6th ed.], § 370.) Plaintiff was bound to show affirmatively negligence on the part of the defendant, and absence of negligence contributing to the accident on the part of her intestate. (Curran v. Warren Co., 36 N. Y. 153; Massoth v. D. & H. C. Co., 64 id. 524; Hale v. Smith, 78 id. 480 ; Hart v. H. R. Bridge Co., 84 id. 56 ; 92 id. 658.) The negligence charged against the defendant was an omission of duty to place a guard or barrier on or along the stone wall, and failure to maintain and care for a street lamp, and to show a liability, power or authority to do these things omitted to be done must be shown, and shown by a preponderance of evidence. (2 Dill. Mun. Corp. [3d ed.], 1306; Mayor, etc., v. Conliff, 2 N. Y. 165; Sewell v. City of Cohoes, 78 id. 480.) The law imposed upon the State the duty to maintain at its own expense not only such bridges across the canal as were used by it as a part of its public works, but “ road and street bridges over the enlarged Erie canal in all places where such bridges have been heretofore constructed,” if, in the opinion of the canal commissioners, “ the public convenience requires that they should be continued, whether the same have been heretofore maintained at the expense of the State, or of the towns, cities or villages where they are situate.” (Laws of 1839, chap. 207, § 1; 1 R. S. [6th ed.], § 370.) The landing from Mohawk street was as much an approach to the iron bridge across the canal as the landing from German street. (Carpenter v. City of Cohoes, 81 N. Y. 24.) To place railings or structures of any sort upon the State lands or upon bridges, or their approaches continued by the canal commissioners over the enlarged Erie canal, would have been a trespass even though they appeared upon the maps and in the ordinances of the trustees as parts of the streets of the village. (In re Rhinelander, 68 N. Y. 105; 1 R. S. [6th ed.], § 370.) The permission, implied or expressed, by the State authorities to thus interfere with the State lands or the State structures, while it would justify the acts of the village, would not impose upon the municipal corporation a liability legally charged upon the State, especially in the absence of negligence on the part of the municipality in executing the work under license. (Port Jervis v. Nat. Bk., 96 N. Y. 550.) Where private property or" public property belonging to the State intervenes between the excavation or obstruction or proximate cause of the accident, and the streets of a municipal corporation, the village is not liable to a traveler who gets off the street and meets with injury on property belonging to another; but the owner of the land adjacent to or so near the street as to make its use unsafe and dangerous will be liable to the traveler who, while using ordinary care, falls into or receives injury from, such excavation or obstruction. (Beck v. Carter, 68 N. Y. 283.) There was an entire failure of proof on plaintiff’s part to charge defendant with either of the grounds of negligence alleged in the complaint, hence there was no question for the jury. (Moore v. Goedel, 34 N. Y. 527; Curran v. Warren Co., 36 id. 153; Massoth v. D. & H. C. Co., 64 id. 524.) The accident happened on State property, and whether the proximate cause was the stone wall or the canal, the State was equally liable. (Carpenter v. City of Cohoes, 81 N. Y. 21; Bayes v. N. Y. C. & H. R. R. R. Co., 9 Hun, 63; N. S. Ry. v. Dale, 8 Ell. & Bl. 836; Heacock v. Sherman, 14 Wend. 58 ; Dygert v. Schenck, 24 id. 446 ; Rex v. Kent, 13 East, 220.) The whole slope north of the wall was an approach to the canal bridge, and constructively a part of, the same, and the State, not the village, was charged with the duty of protecting it. (Laws of 1839, chap. 207, § 1.) The State, and not the village, was liable for any injury caused by the obstruction on its own property, even if the village has control of the few feet of the street north of the blue line. (Beck v. Carter, 68 N. Y. 293.) There was no question for the jury in regard to the maintenance of a light. (Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133; Cordell v. N. Y. C. Co., 75 id. 330.)

      Eugene E. Sheldon for respondent.
    A municipal corporation is bound to place guards and barriers as a protection to the traveling public from a dangerous declivity, excavation, or unsafe place, within one of its roads, or without such a road, and so near as to be dangerous to those using the road. (Hyatt v. Rondout, 44 Barb. 385; Hayden v. Attleboro, 7 Gray, 330; Coggswell v. Lexington, 4 Cush. 307; Puffer v. Orange, 122 Mass. 389; Warner v. Holyoke, 112 id. 362.) If Mohawk street was laid out unlawfully, yet defendant having declared Mohawk street to be one of the streets of the village, and having assumed authority to control the land as a street, it is chargeable with the same duties and subject to the same liabilities as if such street had been laid out lawfully, and defendant is estopped from questioning that Mohawk street is a lawful road or street. (Sewell v. City of Cohoes, 75 N. Y. 45, 52; Houfe v. Town of Fulton, 34 Wis. 608; 17 Am. Rep. 463; Stark v. Lancaster, 57 N. H. 88; City Aurora v. Colshire, 55 Ind. 484; Phelps v. Mankato, 23 Minn. 276; Mayor, etc., v. Sheffield, 4 Wall. 189; Brusso v. Buffalo, 90 id. 679.) If it had been shown that there was a duty upon the part of the State to guard the dangerous street, the neglect of the State would furnish no excuse to defendant and no reason why an action should not be maintained against defendant. (Davenport v. Ruckman, 37 N. Y. 574; McMahon v. Second Ave. R. R. Co., 75 id. 231; Abbott v. J. G. & K. H. R. R. Co., 80 id. 27; Mayor, etc., v. T. & L. R. R. Co., 49 id. 657; Brooklyn v. B. C. R. R. Co., 47 id. 475.) A railroad company has just as much right to use or destroy a street as have, the canal authorities. (Dillage v. N. Y. C. R. R. Co., 2 Alb. L. J. 356 ; Baxter v. S. D. R. R. Co., 11 Abb. [N. S.] 178.) The defendant was guilty of negligence in not maintaining lights near this dangerous wall, and particularly, so as to light up the west end. (Weed v. Ballston Spa, 76 N. Y. 333 ; Storr v. Utica, 17 id. 104 ; Buffalo v. Holloway, 7 id. 496 ; Seneca Falls v. Zalinski, 8 Hun, 574.) If there had been no absolute duty to place lights near the wall, yet after the defendant had placed a light at the bridge, the defendant was guilty of negligence in not keeping it in order. (Doan v. D. C. Co., 71 N. Y. 288; Kissinger v. N. Y. & H. R. R. Co., 56 id. 543 ; McGovern v. N. Y. C. & H. R. R. R. Co., 67 id. 423.)
   Andrews, J.

It must be assumed in determining this appeal, that the blue line, which indicates the boundary of the State land on the «northerly side of the Erie canal at Little Falls, west of German street bridge, was located on a line parallel with the wing or retaining wall of the bridge, and about twenty-one inches northerly therefrom. The land north of the wall, within the blue line, being a strip about ninety feet in length, and of the width stated, was used as a part of Mohawk street. The principal negligence charged, is the omission of the village to erect a barrier upon or along the retaining wall to prevent persons traveling in Mohawk street from driving upon or falling over the wall. The retaining wall was constructed by the State as early as 1840, and was a State structure. It served the purpose of protecting the embankment on Mohawk street, made necessary to reach the elevation of the bridge, and it also protected the towing-path from the sliding of the embankment. Mohawk street was laid out in 1832. There was then a bridge at German street. The ordinance of the village laying out Mohawk street described it as running from Bellinger street on the west (along the canal) to the north abutment of the bridge, and as being at that point thirty feet in width, and it designated the center line as terminating on the east at the edge of the bridge abutment sixteen and one-half feet south of the north line of the street. In 1878 the village authorities re-described the streets in the village, and Mohawk street was described as being thirty feet wide at its easterly end. The action of the village authorities in 1832 is inexplicable. The street as described appears to have included not only the whole towing-path of the canal as it was then located, but a part of the water-way. It appears that at the time of the enlargement of the canal but little change was made on the north side of the canal at this point. The description made in 1878 makes the street thirty feet wide at its junction with German street, but it is undisputed that there was only a space of twenty feet, or thereabouts, between the north line of the street and the retaining wall. The retaining wall and the twenty-one inches north of it, in both records, was included in the boundaries of Mohawk street, but the wall and the strip north of it, within the blue line, was the property of the State, which the village could not appropriate for a street, and its attempt to do so was a nullity.

The village, however, by the sufferance of the State, and not as far as appears by any express permission or agreement, used this strip of land along the retaining wall as a part of Mohawk street. It may be said, perhaps, that the State adapted it to such use. The State, when it built the retaining wall, filled in the landing, or space between the retaining wall and the north side of Mohawk street from the foot of the slope at the west end of the wall to the bridge, a distance of about ninety feet, and the State has from time to time graveled the street at this point. The village authorities have also exercised jurisdiction over the street north of the retaining wall. It has repaired the way, directed the removal of obstructions, and in 1836 it attempted to widen .the street at the easterly end, but the project seems to have been abandoned. What has been done by the State and by the village has, so far as appears, been done by each jurisdiction independently, without consultation or mutual agreement.

The evidence tends to establish that the intestate on a dark night was driving ‘ pretty fast ” along Mohawk street toward the bridge, and when he approached the west end of the retaining wall, drove too far to the south, so that the right wheels of the wagon were on the towing-path, and the left wheels on the road-bed. When he had proceeded so far that the wall was higher above the towing-path than the axle-trees of the wagon, they caught on the wall, and the intestate with his team and wagon were thrown over into the canal and he was drowned. A railing on the wall would have prevented the accident. But the wall was on the State land. The village had no legal right to put a railing on it, and consequently there was no legal duty on the village to, erect one thereon. Legal negligence on the part of the village cannot be predicated of an omission to do what there was no legal right to do. (Carpenter v. City of Cohoes, 81 N. Y. 21.) Nor can it be predicated, we think, of a failure of the village authorities to obtain permission from the State to erect a barrier on the State land, although such permission, if applied for, might have been granted. The danger was not very obvious, as is shown by the fact that the street had been used in substantially the same condition as it was at the time of the occurrence in question for forty years, without the happening of any accident from the location of the wall. The policy of the State in respect to encroachments on the property of the State devoted to canal purposes is shown by chapter 657 of the Laws of 1866, which makes it the duty of the canal commissioners to cause to be removed from lands taken from the State for the purposes of the canal, except in the thickly built part of cities, all encroachments thereon by buildings, fences or other structures. The trial judge expressly charged that the village had no right or authority to build a guard or barrier upon the wall, unless permitted by the State, and this is not only the law of the case on this appeal, but the proposition is correct in principle. But we think the court erred in refusing to charge as requested by the counsel in behalf of the defendant, that if the jury should find that a railing or guard north of the wall, outside of the State property, would be dangerous to the traveling public, the village authorities were not negligent in failing to build a guard there. The trial judge in denying the motion for a nonsuit, and at the close of the evidence, held that the complaint was broad enough to authorize the jury to determine whether a barrier should have been placed outside of the blue line. It appears that at the west end of the wall there was a space of only about eight and one-half feet between the north face of the wall and the sidewalk on the north side of Mohawk street. The State land extended, as has been said, twenty-one inches north of the wall. If a barrier had been placed on the boundary of the State land, the traveled way, at the west end of the wall, would have been contracted from eight and one-half feet to a little more than six and one half feet. The jury might very well have found that such an obstructian would have constituted a greater danger than the one sought to be avoided, and it could not be negligence in the village to omit to erect a barrier on the boundary line, if such barrier would have rendered the street more unsafe than it was in its existing condition. It is unnecessary to determine whether a verdict could be sustained by reason of any other omission than a failure to erect a barrier along the wall. This was the principal negligence charged, and the defendant was entitled to a proper charge upon the point suggested. The case of Sewell v. City of Cohoes (75 N. Y. 45) 'does not control this case. In that case the city permitted a structure erected by a third person, to overhang the traveled path, rendering its use dangerous, and it was held that the fact that the city had not acquired title to the land which it had assumed to appropriate for a public street, was not a defense to the action. In this case there was no defect in the roadway. The danger, if any, was extrinsic, and arose from a structure made by the State on its own land, over which the village had no control, and with which it had no right to interfere.

For the error in the refusal to charge, as requested, the judgment should be reversed and a new trial granted.

All concur, except Earl, J., taking no part.

Judgment reversed.


author: Miller, J.

text:
    Frank H. Sherwin, Plaintiff in Error, Appellant, v. The People of the State of New York, Defendant in Error, Respondents.
    To warrant an indictment and punishment under the Revised Statutes (2 R. S. 692, § 14), as for a criminal contempt, for a willful disobedience of a “ process or order lawfully issued or made ” by a court of record (2 R. S. 278, § 10), it must appear that the process or order disobeyed was lawfully issued by some court of record as such; it is not sufficient to show that it was issued by a public official without any direct action or determination by the court. A subpoena issued by a district attorney in a criminal action is not such a process or order, and a willful disobedience thereof is not an indictable offense under said statutes.
    (Argued October 5, 1885;
    decided November 24, 1885.)
    These are writs of error and appeals to review judgments of the General Term of the Supreme Court, in the third judicial department, entered upon orders made the third Tuesday of November, 1884, which affirmed judgments of the Court of Oyer and Terminer in and for the county of Albany, convicting plaintiff in error of misdemeanors.
    The material facts are stated in the opinion.

      Thomas H. Edsall for appellant.
    In order to sustain either a charge of a summary character, as for a criminal contempt under 2 R. S. 278,* § 10, or an indictment under 2 R. S. 692,* § 14, it was absolutely essential to aver that the willful disobedience in question was, in the language of the statute, a disobedience “ of some process or order lawfully issued or made by ” some court of record, which court must be named, and with which the proof will correspond. (People v. Gilmore, 26 Hun, 1; 88 N. Y. 626; People v. Riley, 25 Hun, 587; Lansing v. Lansing, 4 Lans. 377; Hosack v. Rogers, 11 Paige, 603 ; Matter of Wattson v. Nelson, 69 N. Y. 537; O'Gara v. Kearney, 77 id. 423; McGarty v. Bennett, 1 M. Law Bul. 26; Matter of Clark, 2 id. 22; Matter of Quinn, 2 id. 38; Matter of Bloomingdale, 1 id. 26.) Assuming that the disobedience of the subpoena was a misdemeanor, and as such indictable, this indictment is not sufficient to charge the offense. (2 Edm. 288, § 10; Clark's Case, 12 Cush. 320; 2 Archbold’s Cr. Pl. [Waterman’s ed.] 290 ; 4 Hawkins’ Pleas of the Crown [7th ed.], 31; People v. Weston, 4 Park. 226; The King v. Cowhurst, 2 Lord Raym. 1363; Souser v. People, 8 Hun, 302.) On error, the questions whether the offense charged, and of which the defendant is convicted, is a crime, and whether the indictment has charged an offense known to the law, are reviewable and available to reverse, even if that objection was not specifically urged at the trial. (People v. Gaffney, 50 N. Y. 425; People v. Fillinger, 15 Abb. 128 ; People v. Babcock, 15 Hun, 347; Polinski v. People, 73 N. Y. 66; People v. Allen, 43 id. 28; People v. McDonnell, 92 id. 657; People v. Thompson, 41 id. 1.) The defendant should have been discharged on the ground that there was no proof of any guilty or criminal intent on his part to disobey the subpoena; that there was no proof of any “ willful disobedience” such as was absolutely required by 2 R. S. 277*, § 10; 3 Greenl. on Ev., 15, § 13. (People v. Aitkin, 19 Hun, 327; People v. Boas, 29 id. 377; Jenkins v. Waldron, 11 Johns. 114; Babcock v. People, 15 Hun, 347.) The sentences imposed upon the defendant were illegal. (2 R. S. 692*, § 14 ; id. 697*, § 40 ; People v. Hartung, 22 N. Y. 95; Shepherd v. People, 25 id. 406.)

      Nathaniel C. Moak for respondent.
    A subpoena is a process of the court. (Yorks v. Peck, 31 Barb. 350; Broom’s Leg. Max. [7th Am. ed.] 817.) Writs and processes may be issued by attorneys. (2 R. S. 278, § 9 ; 1 Burr., Cr. [2d ed.] 52, 53, 94-5, 1 R. S., § 1; 1 Edm. Stat. 86, 88 ; 1 R. S. 97.) Attorneys and counselors are judicial officers. (1 R. S. 97, § 1, subd. 3; id. 98; id. 120, § 24, subd. 3; id. 287, §§ 66, 68 ; 1 Edm. Stat. 86, 89,110,298; Waters v. Whittleman, 22 Barb. 593.) Courts of Oyer and Terminer are provided for by title 4, chapter 1, part 3 of the Bevised Statutes, and are courts of record authorized to issue subpoenas. (1 R. S 204, §§ 28, 29, 30;-. id. 276, § 1; 1 Edm. Stat. 287; 2 R. S. 729, §§ 63, 64; 2 Edm. Stat. 753.) The clerks are allowed to issue blank seals, which may be applied to any process not requiring a previous allowance, such as writs of copias, subpoena, etc. (Graham’s Pr. [2d ed.] 120.) A writ wanting a seal was not, independent of being dispensed with by statute, void, but voidable. (Graham’s Pr. [2d ed.] 120; People v. Dunning, 1 Wend. 16; Jackson v. Brown, 4 Cow. 550; Dominick v. Eacker, 3 Barb. 17.) Disobedience of a subpoena is clearly, under our statute, a criminal offense, punishable: by indictment.
      (People v. Mead, 64 How. 45; 28 Hun, 230 ; 92 N. Y. 419 ; Graham v. Blake, 2 Daly, 55 ; Price v. Hutchinson, L. R., 9 Q. B. 534; Conner v. Wood, 5 Abb. 84; Mead v. Norris, 21 Wis. 310.) Indictment was the proper remedy. It secured the accused the right of trial by jury rather than subjected him to the arbitrary will and power of the offended court or judge. (State v. Spears,2 Spears [S. C.], 23; Whart. Cr. Pr. & Pl. [8th ed.], §§ 959, 960-1; Reg. v. Martin, 5 Cox’s Crim. Cas. 358; U. S. v. Jacobi, 1 Flippen, 109 ; In re Elerbe, 4 Crim. L. Mag. 60; Riggs v. Supervisors, 1 Woolw. [U. S.] 377; Ex parte Kearney, 7 Wheat. 38; New Orleans v. Steamship Co., 20 Wall. 387; Dixon’s Case, 3 Opin. Att’yGen’ls, 622; Conger’s Case, 4 id. 317; Rowan and Wells’ Case, id. 458 ; Hollinsworth v. Duane, Wallace’s C. C. 77.) In cases of misdemeanors, an indictment in the language of the statute is valid. (People v. Taylor, 3 Denio, 91; Cox v. People, 80 N. Y. 502; Frazer v. People, 54 Barb. 306; Tully v. People, 67 N. Y. 15 ; Pontius v. People, 82 id. 339; Eighmy v. People, 79 id. 546; Burns v. People, 59 Barb. 531; Campbell v. People, 8 Wend. 636; Low v. People, 2 Park. Cr. 40; Holmes v. People, 15 Abb. Pr. 159; People v. Treadway, 3 Barb. 470; People v. Bennett, 57 N. Y. 120; People v. Rynders, 12 Wend. 431; 2 R. S. 728, § 52; 2 Edm. Stat. 751; 1 Whart. Cr. L. [7th ed.], §§ 216-218; Tomlinson v. People, 5 Park. 320 ; Commonwealth v. Hall, 97 Mass. 570; Fralich v. People, 65 Barb. 51; Mapes v. People, 69 Ill. 526.) The facts were amply pleaded and the indictment good. (People v. Loop, 3 Park. Cr. 559 ; People v. Rynders, 2 id. 37; People v. Clemens, 26 N. Y. 197 ; Haskins v. People, 16 id. 344; Quinlan v. People, 6 Park. Cr. 9 ; Low v. People, 2 id. 37 ; Holmes v. People, 12 Abb. Pr. 154; Wilson v. People, 5 Park. 178; Rosecrans v. People, 5 N. Y. S. C. 467.) On proof of defendant’s failure to obey the subpoena a prima facie case was made out against him. (People v. Davis, 15 Wend. 608; Commonwealths. Phillips, 3 Pittsb. 427, 430.) It was not necessary to show by direct, affirmative evidence that defendant was a necessary or material witness. (Courtney v. Baker, 3 Denio, 30; Butler v. People, 2 Colo. 295; Matter of Muller, 7 Blatchf. 23; Matter of Rhodes, 65 N. C. 518; Morris v. Whitehead, id. 637; State v. Sauvinet, 24 La. Ann. 119 ; Fanshaw v. Tracey, 4 Biss. 490 ; People v. Mead, 28 Hun, 232; People v. Rathbun, 21 Wend. 509; People v. Adams, 3 Denio, 190; Tecumseh Town Site Case, 3 Neb. 284; Leland v. Cameron, 31 N. Y. 115; People v. Carpenter, 24 id. 86; Moore v. Tracy, 7 Wend. 229; Perkins v. Nugent, 45 Mich. 156 ; Comm. v. Reynolds, 14 Gray, 90.) It was not necessary to show a jury was impaneled, or the trial of the indictment against Phelps was commenced. (Hurd v. Swan, 4 Denio, 75; Barrow v. Humphreys, 3 B. & Ald. 598; Mullett v. Hunt, 1 Crompt. & Mees. 752 ; Dixon v. Lee, 1 Crompt., Mees. & Rosc. 645 ; Cogswell v. Meech, 12 Wend. 147, Penal Code, §§680-1; 2 Bish. Cr. L. [7th ed.] 261; 1 id., § 1067; People v. Fancher, 4 Thomp. & Cooke, 471; People v. Mead, 92 N. Y. 420; People v. Klugman, 49 How. Pr. 488; Matter of Hallenbeck, 55 id. 401; People v. McTameny, 30 Hun, 505 ; Foote v. People, 56 N. Y. 321.)
   Miller, J.

The defendant was convicted on an indictment for contempt in disobeying a subpoena issued by the district attorney of Albany county in a criminal case, and he pleaded guilty to two other indictments of the same character. He was sentenced for each of the offenses charged, and the question now presented involves the validity of these indictments.

If the indictments did not impute to the defendant a criminal offense in violation of the statutes of this State (and were defective in charging such offense), then they are insufficient to sustain a verdict of guilty or a sentence after conviction or after a plea of guilty.

The indictments are founded upon the provisions contained in 2 R. S. 692, § 14, which declare that every person who shall be guilty of any criminal contempt enumerated in the second title of the third chapter of the third part of the Be-vised Statutes, shall be liable to indictment therefor as a misdemeanor, and upon conviction shall be punished as hereinafter prescribed.”

To make out an offense within this provision and sustain a, conviction under the same, the indictment must charge that the defendant was guilty of some act which constituted a criminal contempt in violation of the statute cited. The only acts which constitute a criminal contempt within the provisions of section 14 are specified in section 10 of 2 E. S. 278, which declares, “ Every court of record shall have power to punish as for a criminal contempt persons guilty of either of the following acts and no others * * * (subd. 3.) Willful disobedience of any process or order lawfully issued or made by it.”

The subsequent sections (11, 12 and 15) make provision in reference to the punishment to be inflicted in case of a violation of the provisions of the tenth section.

The charge made in the indictments against the defendant can only rest upon subdivision 3 of section 10, above quoted, and in order to sustain the indictments a case must be made .out within the language and meaning of that subdivision, and there must be a willful disobedience of a process or order lawfully issued or made by the court in the exercise of its legal authority.

The court alone can issue the process or make the order, a violation of which constitutes the contempt, and it cannot lawfully be issued or made by any intermediate authority. It was evidently intended by the statute that the contempt, which was the subject of condemnation and punishment, should be a matter of consideration by the court itself, and that it should pronounce ju gment as to its character and the punishment that should be inflicted.

Each of the indictments against the defendant, among other things, alleges that the writ of subpoena was duly and lawfully issued by the district attorney and tested in the name of a justice of the Supreme Court, and directed to the defendant, commanding him to appear at a Court of Oyer and Terminer at a time specified; that it was lawfully served on the defendant; that he was notified to appear and give evidence according to the exigency of the writ and that he failed to do so. There is no allegation that any process or order was lawfully issued or made by any court of record, and although it is stated to be a writ issued by the people, such statement does not necessarily establish it as a process or order issued or made by a court of record. The allegations in the indictment that it was called a subpoena, and that it was lawfully issued and tested by a justice of the Supreme Court, did not make it a process or order lawfully issued or made by any court of record. Something more was required to bring it within the statute ; it should have been made to appear that a court of record duly organized had issued the process or made the order which was disobeyed.

It will be observed that section 10, subdivision 3, instead of declaring that a willful disobedience of any order or process of the court can be punished as a criminal contempt, defines the process or order which cannot be disobeyed without subjecting the party to indictment for a misdemeanor, by the use of the terms lawfully issued or made by it,” thus indicating an intention to include only such process or order as was expressly directed by the court itself while acting officially in the discharge of its functions.

Courts of Oyer and Terminer have power to issue subpoenas (2 R. S. 276, § 1) but the subpoena described purports to be issued either by a justice of the Supreme Court or by the district attorney. It is difficult to see how such a process can be regarded as issuing from or as an order made by any court of record. Section 10, subdivision 3 is highly penal in its character, and cannot well be said to embrace a case where the process or order was not in fact lawfully issued or made by a court of record duly constituted for that purpose.

The allegation in the indictment that the process was duly issued by the district attorney is inconsistent with the position that it was issued by a court of record. The writ of subpoena which was issued was expressly authorized by 2 R. S. 729, £§ 63 and 64, where power is conferred upon the district attorney to issue subpoenas for witnesses in the precise form alleged. The process was a subpoena issued by the district attorney alone, and the court took no part in his official act in this respect. It is nowhere alleged in the indictment that the subpoena in question was a process lawfully issued by the order of any court of record. Without this there was no power to punish by indictment for a criminal contempt within the language and meaning of the statute To sustain a charge for a criminal contempt under section 10 and an indictment under section 14 it should be averred and made to appear that the willful disobedience alleged -was, within the terms of the statute, a distinct and clear disobedience of the' process or order of the" court of record stated in the indictment.

In People v. Gilmore (26 Hun, 1) it was held that to warrant punishment as for a criminal .contempt the mandate, process or order disobeyed must have been lawfully issued or made by some court of record as such, and it was said in the opinion by Davis, J., that if not so issued by a court of record, as such court of record, then another and quite different statute would be applicable to the case. In People v. Piley (25 Hun, 587), Gilbert, J., says: “ There exists no undefined power authorizing the commitment of citizens for contempt in cases defined and limited by statute.’’ (See, also, Matter of Watson v. Nelson, 69 N. Y. 537; O'Gara v. Kearney, 77 id. 423.)

The views already expressed are also supported by the notes of the revisers of the statutes, and the other provisions of the statutes in regard to contempts which are not criminal.

In their notes on section 10 (5 Edm. 426) the revisers say: A solid and obvious distinction exists between contempts, strictly such, and those offenses which go by that name, but which are punished as contempts only for the purpose of enforcing some civil remedy: This distinction has been observed, and the former are intended to be included in the preceding sections. The latter class are treated of subsequently, among miscellaneous proceedings in civil cases.”

From these remarks it is quite obvious that the contempts which are subsequently provided for among miscellaneous proceedings in civil cases were not intended to be included among criminal contempts. It follows that the framers of the statute never intended that the disobedience of a subpoena in civil cases should be regarded as a criminal contempt.

The provision of section 26 (2 R. S. 538), declaring that “ persons proceeded against, according to the provisions of this title, shall, notwithstanding, be liable to indictment for the same misconduct, if it be an indictable offense,” is not in conflict with the position last stated. This section merely recognizes the fact that there may be some provision of the statute which makes one or more of the simple contempts a crime, but it does not sanction the idea that disobedience of a subpoena is a criminal contempt, indictable as a misdemeanor under the statute which declares such contempts to be misdemeanors. The distinction made by the revisers is repeated in their note to title 13, chapter 8 of part third of the Revised Statutes (5 Edm. 502), entitled “ of proceedings as for contempts, to enforce civil remedies, and to protect the rights of parties in civil actions.” After having pointed out the distinction between contempts which are really such, and those which are treated as contempts for the mere purpose of enforcing some civil remedy, they say the former class has been provided for. “It is the object of this title to provide for the latter class.” As provision is made, in the title to which this note is appended, to punish the failure to obey a subpoena, there would seem to be no question that the revisers did not intend to make the disobedience of a subpoena a criminal contempt.

Independent of the provisions of the statute in regard to criminal contempts, there are other enactments relating to the disobedience of subpoenas issued by an attorney in civil actions, or county clerk or district attorney in criminal cases, which define the penalties to which a defaulting witness in such cases subjects himself, and such penalties being designated and no others attached to the same, they must be regarded as alone intended to be inflicted. The explicit provisions of these statutes are controlling and conclusive, and clearly indicate the intention of the law-makers to provide specially for such cases and that they should not, by any rule of construction, be considered as embraced within the provisions of law in regard to a willful disobedience of an order or process lawfully made or issued by a competent court. All other provisions, therefore, must be excluded, and the penalty incurred must be limited to these plain enactments which furnish ample remedies in such cases, as will be seen from an examination of the same.

The statute in regard to “ witnesses, their privileges and compelling their attendance ” (2 R. S. 400, § 42), after providing the mode of their subpoena, prescribes (§ 43) the penalties for non-attendance, and among those is, he “ shall be deemed guilty of a contempt of the court out of which such subpoena issued.” If a criminal contempt was intended it would no doubt have been so declared, for there is a marked difference, as we have seen, between a civil and a criminal contempt under the Revised Statutes. It is a reasonable and fair intendment from the language employed and from the omission to declare otherwise, that it was the intention of the legislature to make full and ample provision for a contempt committed in the cases enumerated, and it would be going very far to hold that under the previous provision a party could be subjected to the penalty arising from a criminal contempt.

A further provision is made for the punishment of contempts in proceedings as for contempts to enforce civil remedies and to protect the rights of parties in civil actions, among which are enumerated all persons summoned as witnesses for refusing or neglecting to obey such summons.” (2 R. S. 535, § 1, subd. 5.) The distinction is thus maintained between the two classes of contempts.. The punishment on conviction for a criminal contempt was (2 R. S. 278, § 11) a fine of $250, and an imprisonment for thirty days. Such conviction was (§ 15) no bar to an indictment for the same offense if it- was indictable, but the court in passing sentence were to take into consideration the punishment previously inflicted.

Section 14, as we have seen, provides that a person guilty of any criminal contempt named in section 10 (supra), shall be liable to indictment for the same as a misdemeanor and punished as thereinafter prescribed, and by section 40 (2 R. S. 697) such punishment was by imprisonment in a county jail not exceeding one year or by fine not exceeding $250, or by both. It is not to be supposed that it was intended to embrace in the punishment prescribed the failure to obey the subpoena issued by a district attorney in a criminal case or by an attorney in a civil action.

Aside, however, from the statutes to which reference has been had, the question considered is, we think, fully settled and disposed of by the provision contained in section 64 of article 2, title 4, chapter 4, part 4 of the Revised Statutes, which is entitled of indictments and proceedings thereon. This section fully prescribes the penalty for willfully neglecting to obey a subpoena issued by a district attorney in a criminal case, and settles definitely any doubt which might possibly arise upon the question whether a criminal contempt had been committed. It declares that such disobedience is to be “ punished in the same manner and upon like proceedings as provided by law in cases of subpoenas returnable at any Circuit Court; and the person guilty of such disobedience shall be liable to the party at whose instance such subpoena issued in the same manner and to the same extent as in cases of subpoenas issued in anyecivil suit, thus evincing unmistakably that such disobedience of a district attorney’s subpoena stands upon precisely the same ground as, and that it is not a criminal contempt any more than refusing to answer a subpoena in a civil case. By the statute to which reference has been had a violation of a subpoena in either case renders the witness amenable to the same consequences as for a simple contempt to be punished in the same manner and to the same extent and upon proceedings of the same character.

In the face of an express statute providing in clear and unmistakable language for the penalty to be incurred, there is no valid ground for holding that other penalties are to be inflicted which are, at least, of doubtful application, and for which the statute itself, under which they are sought to be enforced, does not clearly and directly provide.

It is a well-established rule of law that statutes which create criminal offenses are to receive a strict and not a liberal construction, and they should not be enlarged by interpretation beyond their fair meaning and import. The multiplication of offenses by construction of penal statutes is in conflict with the general policy of the law, and a statutory crime can only be created by phraseology which is clear, direct and unquestionable as to its intention. Unless this is manifest, the language employed cannot be held to include a criminal charge. If a new criminal offense was intended to be created by section 10, subdivision 3 (supra), it was only when a competent tribunal, sitting as a court and exercising its functions as such, had made . a lawful order or directed a process to be issued, and not in a case where the order could be imputed to it by a mere fiction of law.

The Court of Oyer and Terminer as originally organized had power under the Revised Statutes (2 R. S. 276, § 1, subd. 1.) to issue writs including a subpoena, and original subpoenas of courts of record were required to be issued under the seal of the court and indorsed by the attorney. (2 R. S. 277, §§ 8, 9.)

But the provisions in regard to the issuing of subpoenas in criminal cases are special, and power is given to the district attorney, as an officer under the law, to issue subpoenas which are different from the subpoenas originally intended to be issued by the Court of Oyer and Terminer and under its seal. By 2 R. S. 729, § 63, the district attorney is authorized to. issue subpoenas without the seal of the court, and they are declared to be as valid as if the seal of the court had been affixed thereto. A subpoena thus issued had the same validity as if it had been signed by the clerk and issued under the seal of the court. As we have already seen, under section 64, the punishment for disobedience of a subpoena issued by the district attorney is the same as in civil cases.

It is thus apparent that it was not intended by the legislature in conferring authority upon the district attorney to issue subpoenas, and in providing for the failure to obey the same, to create an offense within the meaning of section 10, subdivision 3 (supra), or to regard the disobedience of the same as a willful violation of an order made or a process issued by the court itself. Such a subpoena is not issued by the court itself or under its seal, but it is a subpoena issued under the statute by an officer of the court expressly authorized for that purpose. If the disobedience of a subpoena issued by the district attorney is a misdemeanor liable to be punished under indictment as provided by section 14 (supra), then the same rule would be applicable to innumerable cases where subpoenas are authorized to be issued, and for which the statute has provided, which it is needless to enumerate.

The learned counsel for the respondent insists that the subpoena in question was a process of the court and properly issued by the district attorney with the same effect as if issued on a special order of the court. While as a matter of form and by legal fiction a subpoena may be regarded as issuing out of and by order of the court, and, for certain purposes, as the act or mandate of the court and a party upon whom it is served may be compelled to obey the same, and upon failure to do so be punished for disobedience and for his contempt of the authority of the court, upon a proper application, after he has had full opportunity to be heard in his own defense, as we have already seen, a subpoena thus issued is neither ' a process nor order of the court which is named or embraced within the provisions of the section of the Revised Statutes already cited. The process or order referred to is one which emanates from the court, while sitting as such, and it requires something to be done by the party to whom it is issued or directed which is within the province of the court to direct, and which it has full power and authority to command in its capacity as, a judicial tribunal. It does not include a process issued merely by the act of a public official without any direct action or determination of the court.

After a careful examination we are satisfied there is no authority for the doctrine that the disobedience of a subpoena under our statute, or otherwise, is a criminal offense punishable by indictment, and no adjudicated case upholds such a rule. When, the defendant’s case was presented to this court on certain preliminary questions growing out of his arrest in the city of New York, the precise point now under discussion was neither considered nor determined, and the decision then made is not an authority which sustains the position taken by the respondent’s counsel. (People, ex rel. Sherwin, v. Mead, 92 N. Y. 415.)

We may concede that a party refusing to obey a subpoena, or in any way obstructing the service of papers, is by law in contempt, but it by no means follows that the proper mode of punishment is by a proceeding by indictment. The usual mode of punishing the offender is by an application to the court, upon notice, where the parties can have an opportunity to be heard and make an excuse, if any they have, for their conduct in disregarding or disobeying the subpoena.

Whether a willful contempt is an offense punishable by indictment at common law is not material to determine in the case now considered, as the question to be decided depends upon the interpretation to be given to the statutory provisions which have been cited and which bear upon the subject.

After careful consideration we are brought to the conclusion that neither of the indictments against the defendant contains a legal charge against him of any offense for which he could properly and lawfully be punished either for a criminal contempt or a misdemeanor.

The result at which we have arrived disposes of the case and renders it unimportant to examine and consider the numerous other questions raised. It follows that the conviction had, and the sentences imposed for offenses not authorized by law were erroneous, illegal and void. They should, therefore, be reversed and annulled, the indictments quashed and the defend; ant discharged.

All concur, except Finch, J., not voting.

Judgment accordingly.


text:
    The Continental Store Service Company, Appellant, v. Curtis Clark et al., Respondents.
    (Argued June 18, 1885 ;
    decided November 24, 1885.)
    While a State court has jurisdiction to decide questions as to the title to letters-patent granted by the Federal government, or of an action on a contract, although such action involves the validity of a patent, it has no authority to restrain a party from using the patent pendente lite, or in any way to pass upon a question as to an infringement of the patent right; as to this, the Federal courts have exclusive jurisdiction.

      Hartell v. Tilghman (99 U. S. 547), distinguished.
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made March 27, 1885, which modified, and affirmed as modified, an order of Special Térm.
    The particulars in which the order was modified, and the material facts pertinent thereto, are stated in the opinion.

      John Murray Mitchell for appellant.
    This action is one based on contract and is exclusively within the jurisdiction of the State courts, the parties being residents of the State. (Middlebrook v. Broadbent, 47 N. Y. 444; Meserole v. Libby, 6 Blatchf. 356; Rich v. Atwater, 16 Conn. 409; Keith v. Hobbs, 69 Mo. 84.) Where a suit is brought on a contract of which a patent is the subject-matter, the case arises on or out of the contract, and not under the patent laws. (Hartel v. Tilghman, 99 U. S. 547.) And where, as in the case at bar, on the question arising between citizens of the same State, the contract is not one provided for by act of Congress, the United States courts have no jurisdiction over a dispute arising out of it. (Curtis’ Law of Patents [4th ed.], 655; Goodyear v. Day, 1 Blatchf. 565; Blanchard v. Sprague, 1 Cliff. 288; Wilson v. Sandford, 10 How. [U. S.] 99; Goodyear v. Day, 1 Blatchf. 565; Hill v. Whitcomb, 1 Holmes, 317; Teas v. Albright, 13 Fed. 413 ; Burr v. Gregory, 2 Paine, 426; Meserole v. Libby, 6 Blatchf. 356.) If a Federal court obtains jurisdiction by reason of an infringement of a patent it may then inquire into the question of title or of contract between citizens of the same State, which could not come before it directly. (Bloomer v. Gilpin, 4 Fish. 50.) In like manner a State court, having obtained jurisdiction by reason of contract, can determine other matters incidental to that question even as to the validity of the patents and the protection of the property rights covered by said contract. (Sherman v. Champlain Co., 31 N. 162; McKenzie v. Bailie, 4 C. L. B. 289; Rich v. Atwater, 16 Conn. 409 ; Billing v. Ames, 32 Mo. 265; Meserole v. Libby, 6 Blatchf. 356.) It is. questionable whether the Federal courts will sustain an action for infringement unless the complainant has the legal right or title. (Orr v. Merrill, 1 Woodb. & M. 376 ; Gaylor v. Wilder, 10 How. 477 ; North v. Kershaw, 4 Blatchf. 70.) The appellant here has an equitable right to these patents and may seek the protection of the court by injunction until it has obtained the legal title. (Parsons v. Barnard, 7 Johns. 144; Burrall v. Jewett, 2 Paige, 144; Dudley v. Mahay, 3 N. Y. 2; Hovey v. Rubber Co., 57 id. 125 ; Dewitt v. Elmira, 66 id. 459 ; Gibson v. Woodworth, 8 Paige, 132; Tomlinson v. Battel, 4 Abb. Pr. 266.)

      Samuel W. Wiess for respondents.
    Any and ' all patent rights originate from and are wholly based on the Federal Constitution and the laws of the United States. (Dudley v. Mayhew, 3 N. Y. 9.) The Revised Statutes of the United States vest in the courts of the United States jurisdiction of all cases and proceedings arising under its patent right laws, exclusive of the courts of the several States. (U. S. R. S., §711, subd. 5; id., §§4919,4921.) The courts of this State have no jurisdiction either of an action to restrain the infringement of patent rights, or to restrain an injury to a right created by and under the patent laws of the United States. (Dudley v. Mayhew, 3 N. Y. 9; Dewitt v. Elmira N. Mfg. Co., 66 id. 459 ; Parsons v. Barnard, 7 Johns. 114; Potter v. Mc Pherson, 21 Hun, 562.) It makes no difference what form the action assumes, if its object is to secure protection against infringement of patent rights, the State court must decline to exercise any power or jurisdiction. (Dewitt v. Elmira N. Mfg. Co., 66 N. Y. 459.) The exclusion, by the Federal statute, of the courts of the States from redressing trespasses to patent rights has deprived them' of jurisdiction over the subject-matter of such trespasses. (Hunt v. Hunt, 72 N. Y. 228.) Courts of this State are not ousted of jurisdiction of causes which are properly cognizable by them, because patent rights enter into them collaterally. (Middlebrook v. Broadbent, 47 N. Y. 443; Brown v. Sherman, 20 How. [U. S.] 55). The relief which a court of equity can give is only co-extensive with its jurisdiction of the subject-matter. (Kershaw v. Thompson, 4 Johns. Ch. 610.) A temporary injunction cannot be granted except in cases provided by the Code. (Code of Civ. Pro., §§ 602, 603, 604 ; Erie Ry. Co. v. Bamsay, 45 N. Y. 465; Fellows v. Hermans, 13 Abb. [N. S.] 1; McHenry v. Jewett, 90 N. Y. 58.)
   Miller, J.

This action was brought to compel the specific performance of a written agreement, under seal, and to remove a cloud on the title of the plaintiff to certain property manufactured by the plaintiff by virtue of the written agreement before named, and as assignee of the same and of certain patents therein mentioned, and to prevent respondents from using the patents pendente lite.

The patents in question relate to the cash car system, in use in stores, issued to Milton Clark. The plaintiff claimed to have acquired the title to these patents by virtue of an assignment thereof, and the same claim was made on behalf of the defendants, The Eew York Store Service Company insisting that they had acquired a superior title.

A preliminary injunction was granted, and on the return day of the order to show cause and on the hearing of the motion, an order was made making the preliminary injunction permanent. until the termination of the action. A n appeal was taken to the General Term, which modified the order so far as it restrained the defendants from putting up or in use implements, machines, etc., or any of them, under said patents and systems, on the ground that it was made without authority. The decision of the General Term is claimed to be erroneous, on the ground that the action is based on contract and is exclusively within the jurisdiction of the State courts, the parties being residents of this State. It is no doubt true, and.numerous authorities hold that the -State courts have jurisdiction of an action on contract although such action involves the validity of a patent. (Middlebrook v. Broadbent, 47 N. Y. 444; Messerole v. Libby, 6 Blatchf. 356; Rich v. Hotchkss, 16 Conn. 409.)

It is very apparent that cases may arise upon contracts relating to patents and their validity, which are especially within the power and jurisdiction of the State' courts, but it by no means follows necessarily that this jurisdiction confers upon the State courts the right to adjudicate and determine questions arising as to infringements made upon rights and privileges which are secured by patents issued by the government. The intei'pretation of the contract, the effect to be given to its various parts, and even the right to the patent, may well be the subject of consideration within the courts of the State, while any interference beyond this is in contravention of the general rule that in such an action the jurisdiction rests exclusively within the courts of the United States. In the case now considered the facts which would have been disclosed upon the trial would have authorized the court to determine as to the title of the parties claiming the patents, and to adjudicate in reference to any violation of the contract which affected their interest, except so far as it might interfere with the infringement of the patents and the interests conferred by the same upon the patentee and his assignee.

It cannot be said, we think, where a suit is brought upon a contract relating to a patent, where it is sought to prevent an infringement upon the rights of the patentee, that the case presented arises exclusively under a contract and not under the patent laws. It may arise under a contract so far as an interpretation of the same is required and demanded, but where it is sought in addition to prevent an infringement of the patent and by injunction to restrain the defendant from an invasion of the plaintiff’s rights in the use of the patent, it cannot be claimed that it does not arise under the patent laws, and that, by seeking relief against an infringement upon the rights of a patentee, there is no interference with the jurisdiction conferred upon the courts of the United States in such a case. The appellant relies in this connection upon Hartell v. Tilghman (99 U. S. 547). That case arose under a contract in reference to the use of an invention of the plaintiff, and it was" claimed that the defendants refused to do certain things which, it was charged, were a part of the contract. The defendants admitted the use of the patent and a liability for the use of the same and a tender of all that was due to the plaintiff under the contract and their readiness to perform the same. The court held that there was no question in the case arising under the patent laws of the United States or involving a consideration thereof; that there was no denial of the validity of the plaintiff’s patent except as he had parted with that right by contract and that such a case was not cognizable in the courts of the United States by reason of the subject-matter. It was said in the opinion by Miller, J., that if the contract was to be rescinded it could only be done by a mutual agreement or by a decree of a court of justice. If one party disregards it, it can be specifically enforced against him, or damages can be recovered for its violation. There was no question of infringement in the case, and hence it is not applicable to the point pre- ' sented here.

We have examined the other cases cited by the appellant in support of the position that the State court has jurisdiction in the case considered, and we do not find that any of them sustain that view where a question as to the infringement of a patent is involved. The Federal courts have exclusive jurisdiction, under the Constitution and laws of the United States, in cases of any infringement of the rights granted by a patent issued by the authority of the government, and where such rights are conferred by law and a remedy is provided as to the forum where the same may be enforced, the party must be restricted to the remedy and the forum provided. The decisions of the courts of this State are quite uniform in holding that they have no jurisdiction in an action to prevent an infringement upon a patent right or to restrain the violation of a right conferred by authority of the patent laws of the United States. (De Witt v. Elmira Nobles Mfg. Co., 66 N. Y. 459 ; Hovey v. Rubber Tip Pencil Co., 57 id. 119 ; Dudley v. Mayhew, 3 id. 9; Parsons v. Barnard, 7 Johns. 143 ; Livingston v. Van Ingen, 9 id. 582.)

In De Witt v. Elmira, etc., Co. (supra) it was held that one owning an undivided interest in letters-patent cannot maintain an action in a State court to recover compensation for the use of the patent to the extent of his interest from one using it without his permission. The cause of action does not arise upon contract, but is simply the infringement of a patent right, and so arises under the patent laws of the United States; the United States courts, therefore, have exclusive jurisdiction.

It is insisted by the appellant that that case is distinguishable from the one at bar, as the claim was not on contract as is the case here, but was. for the recovery of money damages and not for an injunction pendente lite, and was an action for infringement. It is true there is a distinction existing between these cases, but the rule laid down is applicable here so far as it relates to the plaintiff’s claim in reference to an infringement of his rights as the owner of the patents, and it is not held that this rule does not apply where an action is brought involving the rights of the parties under a contract and where a question arises as to an infringement of a patent. The courts of this State have an undoubted right to adjudicate upon questions arising in reference to the title to letters-patent as well as other questions as to the rights of parties which do not come within the provisions of law relating to patent rights. In such cases the right secured by the patent is collateral to the main purpose and object of the action, and when this is the case the State courts have jurisdiction to determine the controversy (Middlebrook v. Broadbent, 47 N. Y. 443), and while they have authority to this extent they cannot acquire jurisdiction beyond this. Here is the dividing line and a State court cannot grant relief beyond its jurisdiction as an incident to other relief which is within its power.. It may determine what the contract is and in whom the title to the patent is vested, but it has no right to say that a party shall be enjoined from using the patent, or in any way to pass upon any question arising as to its infringement. In view of the authorities cited and the rule applicable to such a case we think it is clear that where a State court has obtained jurisdiction, by reason of the contract, it has no authority to determine matters which relate to an infringement of a patent.

Mor can it be claimed, we think, that there was no question of infringement in the case presented. Although both the parties claimed the right to manufacture the same article under the same patents, and to own the patents, yet it is very plain that the party who was not the owner, who sought to enjoy and reap the benefits of the patents by the manufacture and-sale of the same, was infringing upon the rights of the one who possessed the actual title.

An action for an infringement lies in favor of the owner of a patent against any one who claims to manufacture, use or enjoy the same in opposition to his rights, and it makes no difference whether the defendant violates the rights of the plaintiff on the ground that the patents are invalid, or that the plaintiff is not or that he is the owner of the same.

After a careful examination of the question discussed we are brought to the conclusion that no error was committed by the General Term in modifying the order of the Special Term.

The order appealed from should be affirmed.

Ruger, Ch. J., Earl and Finch, JJ., concur; Andrews, Rapallo and Danforth, JJ., dissent.

Order affirmed.