author: Lawrence, J. : Daniels, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN O’CONNELL, Appellant.

      Crimes — assault in the first degree — an attempt to commit such a crime authorises imprisonment for a term not exceeding one-half the longest sentence prescribed foe' the crime — Penal Code, secs. 220, 686, sub. 2.
    A prisoner was indicted for an assault in the first degree, tlie penalty for which is-imprisonment for not less than five nor more than ten years. He was permitted to plead guilty of an attempt to commit such an assault and was sentenced to-imprisonment for five years. It did not appear from the plea how the attempt was made.

      Held, that the court would infer that it had been made in some manner in which the crime could be committed.
    That an approach with the intent to commit the assault, although not near enough to enable it to be committed, would constitute an attempt to commit an assault.
    That the sentence and conviction were legal under the Penal Code, making the attempt to commit a crime punishable by imprisonment for not more than half the longest time prescribed for the punishment of the crime attempted to be committed.
    Appeal by the defendant John O’Connell from a judgment, rendered in the court of General Sessions of the Peace, held in and for the city and county of New York on the 12th day of December, 1890, whereby he was convicted of an attempt to commit an assault in the first degree, and was directed to be imprisoned in the State prison at hard labor for the term of five years.

      Purdy c6 McLaughlin, for the appellant.

      McKenzie Semple, assistant district attorney, for the People.
   Lawrence, J. :

Tlie prisoner was indicted for tlie crime of assault in tlie first degree, committed as follows :

“The said John O’Connell, late of the city of New York, in the county of New York aforesaid, on the second day of November, in the year of our Lord one thousand eight hundred and ninety, with force and arms, at the city and county aforesaid, in and upon the body of one Thomas Daly, in the peace of the said People then -■and there being, feloniously did malee an assault on him, the •said Thomas Daly, with a certain axe, which tlie said John O’Connell in his right hand then and there had and held, the same being a deadly and dangerous weapon, then and there willfully and feloniously did strike, beat, cut and wound him, the said Thomas Daly, thereby then and there feloniously and wilfully to kill, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and tlieir dignity.”

There was also a second count in tlie indictment, charging an assault in the second degree. The prisoner upon being arraigned upon the said indictment, on the 4th day of December, 1890, pleaded not guilty. On the 8th of December, 1S90, the prisoner, by leave of tlie court and the consent of the district attorney, and being represented by counsel, withdrew the plea of not guilty, “ by him heretofore pleaded, and now jfieads guilty of an attempt to commit assault in the first degree.”

On December 12, 1890, he was arraigned at the bar and the district attorney moved for judgment against him. He was asked what he had to say why judgment should not be pronounced against him, according to law, and he having stated that he had nothing further to say than what he hath heretofore said, it was ordered and adjudged that the said John O’Connell, for the felony aforesaid, of which he was convicted, be imprisoned in the State prison, at hard labor, for the term of five years.

It is now objected that the judgment appealed from is absolutely void on the ground that there is no such offense known to the law as an attempt at assault in the first degree. It is very obvious, from a perusal of the record, that the defendant intended to plead guilty of the commission of a very grave offense. It is also obvious that the indictment charged distinctly and specifically in its first count tliat the defendant had committed an assault in the first degree upon the body of Thomas Daly. The count is in proper form, and it is not challenged as correctly stating a crime defined by the Penal Code. (See § 217.)

This appeal is based upon the assumption that the district attorney and the court were led, by a false and delusive statement of the prisoner’s counsel, into acccepting a plea of guilty to a crime unknown to the law; and the deduction is, therefore, claimed, that the prisoner having confessed to the commission of an act most reprehensible in its character, should be allowed to escape, upon a-pure technicality, from the consequences of his own confession. If such a result is required by the law, the court must so determine, but after carefully examining the record in the case and the authorites cited, we do not think that the law requires tlie court to countenance the absurdity of the defendant’s using his own wrong to escape punishment for a most grievous offense.

It is perfectly well settled in this State that a defendant may, in a criminal case, waive any irregularity which may occur upon the trial. As was said by Earl, J., in Pierson v. The People, etc. (79 N. Y., 429), “ A prisoner may waive a trial by jury and plead guilty; he may waive a plea of au1/re-fois aoqwit by not interposing it or withdrawing it; he may waive or withdraw a challenge to a juror; he could waive his right to have a challenge of a juror for favor tried by triers, and consent that it be tried by the court; he may waive objections to improper or incompetent evidence; in a Court of Special Sessions he may waive a trial by jury and-be tried by the court; he may waive a challenge to the array of jurors by a challenge to the polls; he could consent to the separation of the jury during the trial, when such separation, without such consent, would be ground of error. A man cannot legally be indicted and tried as accessory to a felony until the principal be convicted; and yet, if he go to trial without insisting on the objection, he is held to have waived it. (People v. McKay, 18 Johns., 212; People v. Mather 4 Wend., 229, 245, 246; People v. Rathbun, 21 id., 509, 542; Stephens v. People, 19 N. Y., 549, 563; Gardiner v. People, 6 Parker’s Cr. R., 155.) In People v. Rathbun, Cowen, J., said: The prisoner may even waive his right to a trial at the hands of a jury on the merits by pleading guilty. Having this power, no one will pretend that he cannot consent to anything less. He may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court.” (See, also, People v. Cignarale, 110 N. Y., 32; 1 Bishop on Crim Law [3d ed.], § 18.)

We are of opinion, therefore, that as the defendant voluntarily entered the plea of guilty in this case, and has made no motion in arrest of judgment, nor taken any steps to correct an error, if any error existed, which was created by his own act, it is too late for him now to complain of any informality in either his plea or sentence. (See, also, as to attempts to commit a crime, People v. Bush, 4 Hill, 132; McDermott v. People, 5 Parker’s Cr. R., 102.) But we are of the opinion, further, that no error was committed in either the plea or in the sentence. Common sense, and not ultra refinement and nicety of criticism, should be applied in construing the defendant’s plea. While the utmost care should be taken in criminal cases i to preserve the rights of the accused, he should not be allowed upon specious pretext and cunningly devised expressions to mean one thing and say another. Of what did the defendant really plead guilty in this case? Of a crime, or of the shadow of a crinie? Not the latter. If such had been the understanding of the parties as to the nature of the defendant’s plea it would not have been received. He stood at the bar, indicted for a serious crime, with the district attorney ready to proceed with the trial. Yoluntarily he dispenses with the necessity of that trial by a plea of guilty. A plea of guilty of what crime ? Of what offense ? Obviously a plea of guilty of the crime for which he stood indicted under the first count of the indictment, i. <?., the crime of assault in the first degree, as charged in the indictment. Of an assault upon Thomas Daly with a deadly and dangerous weapon, to wit, an axe. It was to this indictment that the prisoner, by a fair interpretation of his plea, pleaded guilty, and the court would be doing violence to language, in our opinion, to hold otherwise.

The necessary result of these views is that the judgment of the Court of General Sessions was correct and should be affirmed.

Daniels, J.:

The defendant was indicted for feloniously making an assault with an axe upon Thomas Daly, and striking, beating, cutting and wounding him, and thereby intending to kill him. And he was permitted, with the assent of the district attorney, to plead guilty of an attempt to make such assault, and was thereupon sentenced to imprisonment in the State prison for the term of five years. If he had been convicted of the offense charged, his imprisonment would be not less than five nor more than ten years. (Penal Code, § 220.) And for the attempt to commit the crime charged he was punishable for not more than half the longest time prescribed for the punishment of the crime attempted to be committed. (Id., § 685, subd. 2.) His punishment, therefore, will not exceed that to which he subjected himself by his plea, if the act confessed by him has been made a crime by the laws of the State. And if that was within the crime charged in the indictment, he could regularly be convicted of it under this indictment. For upon an indictment for a crime the defendant may be convicted of an attempt to commit the crime charged. (Id., § 35.)

In support of the appeal the objection has been raised that there is no such crime as an attempt to commit an assault in the first degree, which is an assault with a loaded fire-arm, or any other deadly weapon, or by any other means or force likely to produce death, with the intent to kill the person assaulted. (Penal Code, § 217.) To consummate this offense the law requires that the. assault shall be actually made. And to make an assault it is necessary that the accused shall appear to have struck “ at another with a stick or other weapon, or without a weapon, though the party striking misses his aim. So, drawing a sword or bayonet, or even holding up the fist in a menacing manner, throwing a bottle, or glass with intent to wound, or strike; presenting a gun at a person who is within the distance to which the gun will carry; pointing a pitchfork at a person who is within reach, or any other similar act, accompanied with such circumstances as denote at the time an intention, coupled with a present ability, of using actual violence against the person of another.” (1 Russell on Crimes [8th Am. ed.), 750.) This statement of the law includes assaults as they may be variously committed, and its correctness is sustained- by the authorities. (People v. Ryan, 8 N. Y. Supp., 241.) And in its application to the present appeal it was essential to the crime, as it was charged in the indictment, that the defendant should have struck at his adversary with the axe within reaching distance, for, if he did not, there would be manifestly no completed assault. 'Whether the assault charged be made by means of a fire-arm, or any other deadly weapon, it is necessary for the creation of the crime that the person intended to be assailed shall not be so far from the intended assailant as to be beyond all possibility of injury from him.

But that is not an essential circumstance in the case of an attempt. Bor the assailant may load a fire-arm, and then start towards the person to be assailed in order to attain reaching distance of him, or when the assault is intended to be made with an axe, which is the weapon mentioned in the indictment, the accused may obtain and raise it, intending to strike with it, when too far away from the person intended to be struck, and then approach towards that person and be intercepted before he can reach a position of danger to him, which would be an attempt to commit the crime charged. Each act would be an attempt to commit the crime charged, for “ an act done with intent to commit a crime, and tending, but failing to effect its commission, is an attempt to commit that crime.” (Penal Code, § 34.) Por a person who provides himself with an axe with which he intends to kill another, and afterwards approaches towards him to make that use of it, but is prevented from doing so by the flight of the other, or by being himself disarmed, or otherwise prevented from reaching his intended victim, commits acts tending to effect the commission of the ■crime, within the language of this section of the Code. They are .steps in the progress of the crime, but rendered unavailing by ■others frustrating and defeating the execution of the intention upon which the person himself had commenced directly to act. The* ■case thus presented is more than a mere intention which would not be punishable. (McDade v. People, 29 Mich., 50; People v. Murray, 14 Cal., 159.) It would be an intention coupled with acts appropriate to, although not insuring its execution. And that would be an attempt to perpetrate the crime intended to be committed. Por that may be affirmed of a physical act, sufficiently proximate to the result to be caused, as to stand either as the first or some subsequent step in the actual endeavor to bring about or accomplish ■the result. (McDade v. People, supra, 55.) And so the law has been declared by a standard authority, in which it is said that “ so long as an act rests in” bare intention it is not punishable, but immediately when an act is done the law judges not only of the act, but of the intent with which it is done; and if accomplished with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable.” (1 Russ. on Crimes [8th Am. ed.], 46.) And that was stated to be the law in People v. Moran (54 Hun, 279, 286-292), and it has been since established by the final decision in the same case. (123 N. Y., 254.)

In the present case if the defendant approached Daly with the axe in his hand, that of itself would not have been a criminal act; but to approach him in that manner intending to kill him with the axe, when he should be so near as to be able to effect that intent, would be clearly criminal and constitute an act in the way of committing an assault in the first degree. To make the assault itself it was necessary that he should be so near as to be able to strike him, and should attempt to do so. To make an attempt to assault him required no more than that he should arm himself with the axe and" endeavor to place himself in the position to use it by executing his intention to kill. There is a clear distinction between these cases. The first would be the crime itself, the other an attempt to commit it, and that would bring the defendant within the range of the indictment, which included all attempts to commit the assault.

It does not, and could not, appear, from the plea of guilty of the attempt, how that attempt was, in fact, made. But as the attempt could be committed, it is to be inferred from the plea that the defendant had committed it in some manner in which that could be done, and had thereby made himself amenable to punishment under the law. Whether that was done in the way in which it has been stated the attempt might be made, or in some other equally effectual maimer is not important to the case. It is sufficient that the attempt could be committed, and the defendant, by his plea, confessed himself guilty of it. The judgment consequently is free from all ground of error, and should be affirmed, as Mr. Justice Lawrence has in his opinion concluded.

Yan Brunt, P. J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Lawrence, J.:

license: Public Domain

text:
    In the Matter of the Application of JANET KINGSLAND, as Administratrix, etc., of HENRY FOSTER TOPPING, Deceased, to Sell Real Estate.

      Meecutors and administrators — sale of decedent's real estate for the payment of debts— what must be shown by the administrator de bonis non — Gode of Givil Procedure,, sec. 2759, sub. 5.
    The Code of Civil Procedure (§ 2759, sub. 5), relative to sales of a decedent’s1 property for the payment of debts, and the facts to be established upon such an application, requires proof “ that all the personal property of the decedent which could have been applied to payment of the decedent’s debts and funeral expenses, has been so applied, or that the executors or administrators have proceeded with reasonable diligence in converting the personal property into money and applying it to the payment of those debts and funeral expenses, and that it. is insufficient for the payment of the same as established by the decree.”
    Where an administrator, by the exercise of reasonable diligence, could have realized from the property of his intestate sufficient money to pay his intestate’s debts, but did not act with diligence, nor properly apply moneys received, and was succeeded by an administrator de bonis non, who made application for the sale of the decedent’s real property for the payment of such debts, it was

      Held, that such application must be denied.
    An administrator de bonis non takes the estate where his predecessor left it, and upon such an application is bound to show that his predecessor exercised that diligence which would have been required of him (the administrator de bonis non) had he been appointed in the first instance.
    Appeal by George W. Murray, purchaser of real estate formerly-belonging to Henry Foster Topping, Sr., from a decree, entered in the office of the Surrogate’s Court of the county of New York on the 26th day of November, 1890 ; and also from an order of reference, made and entered in said office on the 27th day of February, 1889, and from the report of R. D. Hatch, referee, made thereon and dated August 2, 1889; and also from that portion of an order,, made and entered in said office on the 14-th day of March, 1890, which referred the matter back to said referee for proof as to the ability of Janet Kingsland, as administratrix of Henry Foster Topping, to collect the assets of said deceased, and as to such efforts as she might have already made for that purpose; also from a second report of said referee, made therein and dated June 17, 1890; and also from an order of said court, made and entered in said office oij.
      September 16, 1890, confirming the second'report of said referee and appointing appraisers.

      Da/niel Finn, for George W. Murray, purchaser, appellant.

      F. H. Underhill and Warren W. Foster, for the administratrix, respondent.
   Lawrence, J.:

This is an appeal by George W. Murray, the grantee of Henry Foster Topping, Jr., the son of Henry Foster Topping, Sr., deceased; the said Henry Foster Topping, Jr., being the sole heir-at-law and former administrator of the decedent. A decree was entered directing the sale of real estate belonging to the decedent for the payment of his debts. The father died November 15, 1885, and the son was appointed as his administrator by the surrogate of the county of New York on the 23d of November, 1885. On the 6th of January, 1886, the said Henry Foster Toppiug, Jr., gave to Daniel Finn >a mortgage on the property sought to be sold in this proceeding, and on the 10th of February, 1886, the said Henry Foster Topping, Jr., sold and conveyed the premises in question to the aj>pellant George W. Murray, subject to the mortgage aforesaid. On the 6th of April, 1886, Henry Foster Topping, Jr., as administrator of his father’s estate, filed an inventory thereof, in which the personal estate was appraised by the appraisers at $2,189. The letters of administration granted to the son were revoked on the 17th day of January, 1888, and on May 21, 1888, Janet Kingsland, the petitioner in this proceeding, was appointed administratrix de bonis non in his place.

The son, as administrator, never rendered any account of his proceedings in regard to his father’s estate. This proceeding was commenced in November, 1888, by the present administratrix for the purpose of having the property, conveyed to the appellant as above stated, sold to pay the debts of the decedent. On the 7th day of January, 1889, the citation and petition herein were served ■on the appellant, the petition having been filed on November 21, 1888. The appellant, in his answer to the petition, among other things, prayed that an order might be made requiring the said Henry Foster Topping, Jr., to “render an account of his proceedings as the administrator of the goods, chattels and credits of the said Henry Foster Topping, deceased, and that the amount which shall be found in his hands as administrator as aforesaid, shall be directed to be applied to the payment of the debts and liabilities of the said deceased, and that meanwhile, and until such account has been judicially settled and it has been determined by the court herein, the value and amount of the personal property of the said deceased which came into the hands of the said Henry Foster Topping, Jr., as the administrator as aforesaid, these proceedings shall be adjourned and stayed.”

Topping in his testimony before the referee stated that he was willing to make an account of his proceedings as administrator of his father’s estate. “ I would render that account now if the present administratrix requested me to do so, and I have been willing to-render such an account ever since I came back to New York in 1888, in January.- Neither the administratrix nor her lawyer have asked me to render any account as administrator since I came back to-New York 'in 1888.” At the time of his decease, Tojqung, Sr., left certain personal property, consisting of hay, grain, fai’ming utensils and stock, which was not included in the inventory filed by his administrator, Topping, Jr. That inventory stated that twO’ hundred shares in the Adgate Rotary Loom Company, of the par value of $20,000, were worth only a nominal sum, but that the personal property amounted in value to the sum of $2,489. The evidence before the referee tended to show that the stock and personal property upon the farm, omitted from the administrator’s inventory, was of the value of $2,54J. The property subsequently realized, after deducting the expenses of the sale at auction, the sum of $646..

On the 2'Tth of Februaiy, 1889, an order of reference was made to R. L>. Hatch, Esq., to take proof, and to determine as to the necessity of applying the real property of the decedent to the payment of his debts, and the validity thereof, and directing that all persons having claims against said decedent present and prove them before the referee. On the 2d of August, 1889, the referee made his report in which he found that valid and subsisting debts against the decedent, as set forth in his findings, had been established to the amount of $1,545, with interest from the 10th of March, 1889, and that none of said debts are secured by any judgment or mortgage.. Second. That the present administratrix has proceeded with reasonable diligence in converting the personal property into money, and applying it to the debts of the decedent, and that it is insufficient for the payment of the same. Third. That it is necessary to apply the real property of the decedent to the payment of his debts, and that the petitioner is entitled to a decree for the disposition of such real property mentioned in her petition according to the prayer thereof.

Upon the coming in of this report the surrogate was not satisfied, upon the evidence submitted, that due diligence had been exhibited by the administratrix, and the matter was referred back to the referee for proof as to the petitioner’s ability to collect the assets of the said Henry Foster Topping, Sr., deceased, and as to such efforts as she may have already made for that purpose. Thereupon the referee made a second report in which he found as conclusions of law that “ the administratrix by her counsel and agent has made diligent effort to ascertain the amount of assets belonging to the estate in order to prepare the intermediate account filed by her. Second. That the administratrix has used reasonable diligence to collect the assets received by said administrator Topping and not applied to the payment of debts.” Third. “ From the foregoing facts an attempt by the administratrix to collect from her predecessor, Henry Foster Topping, any' of the assets for which he is liable would be futile.”

Thereupon an order was made by the surrogate overruling the exceptions which had been taken to said report and confirming the same, directing an appraisement of the real estate and ordering that on the coming in of the report of the appraisers a decree issue as prayed for in the petition, etc.; and on the 26th of November, 1890, a final decree was made that the property in question be sold for the purpose of paying the debts alleged to be due from the estate to Richard C. Brown and Janet Kingsland, the petitioner.

From that decree and from the orders of reference herein, and from the order of September 16/1890, confirming the second report of the referee, George W. Murray, the grantee appeals.

The land mentioned in the petition descended to Henry Foster Topping, Jr., as the heir-at-law of his father, subject only to be defeated or charged with the debts of the intestate in the manner provided by tlie statute. (Covell v. Weston, 20 Johns., 414; Pierce v. Alsop, 3 Barb. Ch., 184; Wilson v. Wilson, 13 Barb., 252; Fonda v. Chapman, 23 Hun, 119.)

The provisions of the Code of Civil Procedure relating to the sale of a decedent’s real jiroperty' for the payment of debts and funeral expenses are contained in title 5 of chapter 18 of the Code of Civil Procedure. Section 2759 provides as follows: “ A decree directing the disposition of real property, or of an interest in real property, can be made only where, after due examination, the following facts have been established to the satisfaction of the surrogate.

(1.) That the proceedings have been in conformity to this title.

(2.) That the debts, for the payment of which the decree is made, are the debts of the decedent, or are just and reasonable charges for his funeral expenses, and are justly due.

(3.) That they are not secured by a judgment or mortgage, or expressly charged by the will upon the decedent’s real property or interest in real property; or, if a debt is so secured or charged upon a portion of the real property or interest in real property, that the remedies of the creditor, by virtue of that charge or security, have been exhausted.

(4.) That the property directed to be disposed of was not effectually devised, expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof; or, if so devised or subject, that it is not practicable to enforce the charge or to execute the power, and that the creditor has effectually relinquished the same.

(5.) That all the personal property of the decedent which could have been applied to payment of the decedents debts and funeral expenses has be&n so applied ; or that the executors or administrators have proceeded with reasonable diligence in converting the personal property into money and applying it to the payment of those debts and funeral expenses, and that it is insufficient for the payment of the same as established by the decree.”

It is contended by the appellant that, under the fifth subdivision of this section, it is necessary for the petitioner to establish that the executor or administrator has proceeded with reasonable diligence in converting the personal property into money and applying it to the payment of the debts and funeral expenses, and that it is insuffi dent for the payment of the same as established by the decree. It is further claimed that, upon the evidence before the referee, it is perfectly apparent that if the first administrator had proceeded with reasonable diligence, much more than sufficient personal prop- ■ erty to pay all the debts and funeral expenses of the decedent would have been discovered. This claim proceeds upon the assumption that the present administratrix is bound to show that her predecessor exercised the diligence which would have been required of her if she had been appointed administratrix in the first instance. In this contention we think that the appellant is right.

In Slocum v. English (62 N. Y., 496), Church, Ch. J., in speaking of an application of this character, says: “ The statute commences to run from the date of the original granting of letters of administration, and not (in case of a change of administrator) from the time letters were granted to the administrator who made the sale. An administrator de bonis non takes the estate where his predecessor left it; and in respect to the time of limitation to sell real estate, as well as in most other respects, his administration is a mere continuation of that commenced by the latter. Otherwise the rights of. heirs, devisees, purchasers cmd creditors would be uncertain and indefinite.”

Upon examining the evidence in the case we are of the opinion that the personal property of the decedent was much more than was sufficient to pay the debts. As before stated, the evidence tends most strongly to show that the personal property upon the Orange county farm was worth the sum of $2,541. The fact that a portion of the property up>on the Orange county farm was sold at auction in March, 1886, some months after the death of the decedent, for the net sum of $646, does not, in our opinion, overthrow the force of the testimony of Whitaker as to the value of the whole. Furthermore, the price at which goods are sold at public auction is not conclusive evidence as to their value. It is slight or cogent according to the circumstances, and the sum obtained for a part of the property at an auction sale affords very little evidence of the value of the whole property.

The evidence also shows that the administrator sold the Adgate Rotary Loom Company stock for $1,500. These two items, when added to the personal property appraised by the appraisers at $2,489, were more than sufficient to have paid the debts of the decedent as developed by the evidence. If, therefore, the present administratrix is bound to show, under the fifth subdivision of section 2759 of the Code of Civil Procedure, that all the personal property which could have been applied to the decedent’s debts and funeral expenses has been so applied, or that her predecessor has acted with reasonable diligence in applying the same, and that the personal property is insufficient for the payment of the debts, as established by the decree, we think that she must fail in this proceeding. No attack, so far as the evidence discloses, is made upon the liona fides of the sale to the appellant, and in such a case it appears to us the proper procedure would have been, after the first administrator had again come into the jurisdiction of the court, to require him to make an account of his proceedings, as he expressed a willingness to do, and to stay this proceeding until the coming in of that account. (Estate of Rosenfield, 10 Civ. Pro. R., 204, per Rollins, Surrogate; see, also, Moser v. Cochrane, 107 N. Y., 35.) The learned surrogate apparently based his decision upon the ground that, even where it was not shown that all the personal property has been applied to the payment of the debts of the decedent, but that reasonable diligence to effect the conversion of the assets into money appears, it is within the discretion of the surrogate to order a sale of the real property. This was so under the Revised Statutes, as amended by the Laws of 1837 (chap. 460, §§ 40, 41 and 42), as was decided in the case of Moore v. Moore (14 Barb. Sup. Ct. Rep., 27). But the language of section 2759 of the Code of Civil Procedure, as we understand it, does not vest such a discretion in the surrogate, particularly where it appears, as in this case, upon the evidence that the administrator has not proceeded with reasonable diligence, and that the personal estate, instead of being insufficient, was quite sufficient for the payment of the debts. (Moser v. Cochrane, 107 N. Y., 39.) The surrogate is to be satisfied from the evidence that the facts exist which are stated in the various subdivisions of section 2759,' and his decision upon that evidence is, of course, subject to review. It should also be observed that the amount paid to Mr. Gruber for counsel fees appears to have been $400 more than the amount claimed by him. Mr. Gruber states that the services rendered.by him were worth, about five hundred and fifty dollars. The amount allowed to-him was $950. There is no voucher which shows the payment-for-these services which will enable the court, under section 2734 of the Code of Civil Procedure, to ascertain whether the charge was a proper one, and we think that at least $400 of it ought not to be allowed in disposing of this proceeding. There are various exceptions in the case as to rulings upon evidence, in regard to requests to find and refusals to find, which, in the view we have taken of it, it will be unnecessary for us to examine. For the reasons already stated, we ■ think that the decree of the surrogate should be reversed and the application of the petitioner for tile sale of the decedent’s property should be denied, and her petition dismissed with costs.

Daniels, J., concurred; Yan Brunt, P. J., dissented.

Decree of surrogate reversed and the application of the petitioner - for the sale of the decedent’s property denied, and her petition dismissed with costs.


text:
    JAMES B. TITMAN and Another, as Administrators, Respondents, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Executions — the sheriff of the city and county of New Yorlc is not entitled to cha/rge mileage upon an execution.

    Tlie sheriff of the city and county of New York, under the provisions of chapter 528, Laws of 1890, relating to his office, is not entitled to charge mileage upon an execution, and subdivision 6 of section 330'!' of the Code of Civil Procedure, allowing mileage to sheriffs generally, is, as to the sheriff of the county of New York, repealed by implication by the said act of 1890.
    Appeal by the defendant, the Mayor, Aldermen and Commonalty of the city of New York, from an order, entered in the clerk’s-office of the county of New York on the 12th day of March, 1891, denying the defendants’ motion to review a taxation of the clerk of this court in striking from the defendants’ bill of costs the item of the sheriff’s mileage.

      William JET. Clark and Terence Farley, for the appellant.

      L. Taflin Kellogg, for the respondents.
   Lawrence, J.:

Upon tlie taxation of costs by tlie clerk it was claimed that the defendants were entitled to charge mileage for the sheriff on the execution at the rate of ten cents per mile. The clerk, on objection, struck out the item, which adjustment was sustained on appeal to the Special Term. The defendants claim the right to tax mileage for the sheriff under subdivision 6 of section 3307 of the Code of Civil Procedure, which provides that the sheriff shall be entitled to charge “ for mileage upon an execution, for each mile, going only, ten cents; to be computed as prescribed in subdivision first of this section.” By chapter 523 of the Laws of 1890, entitled “ An act in relation to the office of sheriff of the city and county of New York,” it is provided (sub 6 of § 17) that the sheriff is entitled : “For receiving an execution against property, entering it in his books, searching for property, and postage on the return, when made through the post-office, one dollar and fifty cents. If required by the sheriff, that fee, together with liis fee for the return of the execution, must be paid by tlie person in whose behalf the execution is issued at the time when it is delivered to the sheriff, who is not bound to execute it unless the fee is so paid.”

That act,- with great minuteness and detail, specifies tlie fees which the sheriff of the city and county of New York shall be entitled to receive for the rendition of different services, and in referring to the fees which the sheriff is entitled to receive upon an execution, it omits all reference-to mileage.

By its twenty-third section it repeals all acts and parts of acts inconsistent therewith. - We are of the opinion that the act is to be construed as providing for the fees of -the sheriff of the city and county of New York, as an entirety, and that it is to be regarded as having repealed by implication that part of subdivision 6 of section 3307 of the Code of Civil Procedure, which allows the sheriff for mileage on executions.

In other words, the act provides a general scheme in relation to the fees of the sheriff of the city and county of New York, independently of, and uncontrolled by, the general provisions of the Code of Civil Procedure in relation to the fees of sheriffs. We think this is entirely clear when a comparison is instituted between the sixteen subdivisions of section 17 of the act of 1890, and the twenty-one subdivisions of section 3301 of tlie Code of Civil Procedure. The two' sections will be found to relate mainly to the same services, and the fees for performing the same are as distinctly specified in the act of 1890 as in the general provisions of the Code.

The taxation of the clerk was right; and the order below should, be affirmed, with ten dollars costs and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.:

text:
    MARY C. HIGGINS, Respondent, v. GEORGE G. HALLOCK, Appellant.

      Contracts — considwation — the bom'ding of infant children of a testator, under a promise of his executor to pay therefor, creates a valid individual liability upon the part of such executor.

    A person, wlio was separated from his wife, died leaving infant children unprovided for. Thereupon one Hallock, who was the executor named in the will of their father, directed a boarding-house keeper to take and keep the children, and promised that he would see that she was paid therefor.
    Upon the trial of an action brought by the boarding-house keeper against Hallock to recover the value of such board, neither side requested the submission of any question to the jury.

      Held, that the statement of Hallock must be deemed an unconditional promise to pay for the support of the children, and that performance by the boardinghouse keeper furnished a legal consideration in support thereof.
    Appeal by the defendant George G. Hallock from a judgment, entered in the office of the clerk of the county of New York on the 20th day of May, 1890, in favor of the plaintiff for $840.15 damages and costs, after a trial at the New York Circuit before the court and a jury, at which a verdict was directed by the court; and also from an order, made on the 28th day of April, 1890, denying a motion made by the defendant upon the minutes of the court to set aside the verdict of the jury and direct a new trial.

      8mmtel J. Grooles, for the appellant.

      M. H. Topping, for the respondent.
   Daniels, J.:

The recovery was for the amount owing to the plaintiff for boarding, lodging and otherwise providing for four boys who were the children of Jesse Combs, deceased. They were of the respective ages of nine, ten, fourteen and sixteen years. Their father, who had provided for them, died on the 2d of October, 1887. And the defendant had been nominated an executor of his estate by his will. The two youngest of the children had been with the plaintiff, who was no more than an acquaintance of the family during the last few days of their father’s illness. And on the day of the funeral the inquiry arose as to what should be done with these children, as the wife of their father had separated from him, and his domestic affairs had been managed by a housekeeper.

The evidence of the plaintiff, as well as that of two other persons given in her behalf, was that the defendant, who also was not related to the children, directed the plaintiff, who kept a boarding-house, to take and keep them and he would see her paid. And under that direction she did take, keep and maintain the children, until the amount became due to her for which the verdict was rendered.

This evidence was not controverted by the defendant, and at its close his counsel asked for a dismissal of the complaint on the ground that there was no consideration for the promises and no liability created by it against the defendant. That was denied, and the defendant’s counsel then asked for the direction of a verdict in his favor, which was denied, and an exception taken to the decision, as there also was to the refusal to dismiss the complaint.' The court then, without any further request or proceeding, and in compliance with the motion of the plaintiff’s counsel, directed a verdict in her favor for the amount appearing to be owing to her, and to that the defendant’s counsel excepted.

It is manifest, from this course of proceeding, that each of the counsel regarded the evidence as presenting points of law. Each requested the disposition of the case, as one depending only on the law, and the defendant’s counsel was not disposed to have it submitted in any form to the jury. And the appeals must, for that reason, be disposed of upon that theory. And for its disposition the question arises whether the evidence supported the conclusion that the defendant had, by his promise, rendered himself liable. The inferences warranted by the evidence are to be considered to have been adopted by the court, which might have been drawn by the jury, if the case had been submitted to them for their deliberation, instead of the verdict being directed, as it was, by the court. The question, therefore, is, whether it may be inferred from what is shown to have been said and afterwards done, that the defendant subjected himself to a legal liability for this debt.

He was an executor of the estate named in the will of the deceased father of the children, and may have concluded that it was entirely safe for himself to provide for their support, as he would have the management of their father’s property, and could thereby protect himself against all risk of loss. There was no other person liable for the support of the children, and his promise could not be collateral to the obligation of another, as it is necessary it should he to bring such an undertaking within the statute of frauds. It was not to incur a liability for the debt of another, and which must be in writing, that the promise was made. But it was independent and exclusive of all other persons. And in that situation the defendant agreed that he would see the plaintiff paid her debt for what she should become entitled to for the maintenance of the children. The language may be regarded as somewhat equivocal, but, at the same time, under the attendant circumstances, it will support the inference that the design was to create an absolute liability for the payment of the debt. The children were without the assistance of any person except the defendant, who was named as executor of their father’s estate, and when the inquiry was made concerning their disposition, he directed the plaintiff to take them and provide and care for them, and he would see that she was paid for doing that. She could very well understand that to be an unqualified obligation assumed by him. And if she did, it would, after she had acted upon it and performed on her part, create a legal liability for the debt against him. The court, holding the position of a jury, • .as it did, by the conduct of the trial, had sufficient evidence before it to support the conclusion that such was the understanding, warranted by what had been said, under which she supported and boarded the children. And that this view was adopted is evident from the direction of the verdict, which could not have been otherwise ordered. The case in its controlling features differs entirely from- those referred to as supporting the exceptions, and from all others where similar language, but used under different circumstances, has been considered.

That there was a sufficient consideration for the promise admits of no ground for doubt. The promise was to see that the plaintiff was paid, if she boarded and maintained the children, which she consented to, and afterwards did do. Her performance was the consideration exacted, and that was furnished and supplied by her, and it fully supported the promise.

Both the judgment and the order should be affirmed.

Lawrence, J., concurred.

Judgment and order affirmed.


author: Van Brunt, P. J.;

text:
    MAGDALENA BACH, Respondent, v. THE NEW YORK ELEVATED RAILROAD COMPANY and Another, Appellants.

      Memted mib'oads in New York city — pa/rties to an action for trespass — action by one who is a life tenant only.

    In an action brought for an injunction, and to recover for past damages arising from trespasses caused, as alleged, by the erection of an elevated railroad in the city of New York in front of certain premises, it appeared that the estate in the premises of the party bringing the action was that of a life tenant, with the condition attached that she should not remarry.

      Held, that the owners of the fee should have been made parties to the action, to the end that any damages recovered might be properly apportioned -among the parties in interest.
    Appeal by the defendants, the New York Elevated Railroad Company and the Manhattan Railway Company, from a judgment, entered in the office of the clerk of the county of New York on the 6th day of December, 1890, in favor of the plaintiff for $923.39, after a. trial at Special Term in the county of New York.

      8. B. Rogers, for the appellants.

      O. G. Bennett, for the respondent.
   Van Brunt, P. J.;

This action was brought for an injunction and damages arising from a trespass committed by the erection of the defendant’s railroad in front of premises 360 Ninth avenue.

Upon the opening of the trial of the case and the proof of the title of the plaintiff, it appeared that the only interest in the premises which the plaintiff had was that of a life tenant, provided she so long remained unmarried. Objection was then taken to proceeding with the case because the proper parties were not before the court, which objection was overruled and excejttion taken; and the court having ascertained the probable length of life of the plaintiff, gave permanent damages upon that theory, not apparently regarding the contingency that the plaintiff might marry and thus terminate the estate.

We think, in cases of this description, all the parties should be before the court so that there may be a complete determination of the matter at issue, and that the defendants, in the first place, should not be required to run all the risk of the death of the plaintiff prior to the anticipated time ; and, secondly, in a case such as the one at bar, should not be required to take the hazard of the plaintiff’s remarrying, because it is a well-established historical fact that women are never too old to remarry; and, therefore, if any claim is made because of the age of the plaintiff, that such contingency is not to be feared, common experience shows such claim to be ill founded.

The only way in which there can be a complete determination of the rights of the parties to this action is to bring in those persons who represent the fee, and then to apportion the damages in such way as may be equitable and satisfactory to the parties. Thus the defendants would acquire that which they had paid for without, running the hazards to which attention has already been called.

We think, therefore, that the learned judge should have compelled the other parties interested in the fee to have been brought in so that the proper award might be made as a condition of refusing an injunction.

The same question as to the trial by jury, because the action was in the nature of an action for a nuisance, as was raised in the case of Sommer v. New York Elevated, etc., decided herewith, is raised in this case, and the disposition of it there made disposes of that ■exception so far as this case is concerned.

The judgment should be reversed and a new trial ordered, with ■costs to appellants to abide event.

Daniels, J., concurred.

Judgment reversed and new trial ordered, with costs to appellants to abide event.

       Reported post page 148.


text:
    PITTSFIELD NATIONAL BANK, Appellant, v. WILLIAM H. TAILER, Respondent, Impleaded with Others.

      General assignment — complaint — allegations therein that an assignment was void on its face, and also that it was made with, intent to defraud creditors, constitute a statement of hut one cause of action.

    'The complaint of a judgment-creditor, in an action brought to set aside an assignment made for the benefit of creditors, alleged that the assignment was null and void on its face; and, also, that it was made with the intent to hinder, delay and defraud the creditors of the assignors, including the plaintiff.

      Held, that these allegations stated only one cause of action, i. e., one to set aside the assignment, and were made only in support thereof.
    That it was error for the court, upon a motion to make the complaint more definite and certain, to order that the allegations he divided into two causes of action.
    Appeal by the plaintiff, the Pittsfield National Bank, from so much of an order, entered in the office of the clerk of the county of New York on the 9th day of March, 1890, as required the plaintiff to make its complaint definite and certain by separately stating and numbering the alleged causes of action therein, to wit, the claim based upon the allegation that the general assignment referred to in the complaint was null and void upon its face, and the ■claim based upon the allegation of fraud, and requiring plaintiff to serve an amended complaint made definite and certain in tbis manner.

      John J. Adams, for tbe appellant.

      Edward B. Whitney, for the respondent.
   Daniels, J.:

The final object of this action is to set aside a general assignment made by the firm of Ross, Campbell & Co. to the defendantTailer for the benefit of their creditors. The plaintiff is a judgment-creditor of the firm whose execution against their property has been returned unsatisfied. In support of the action it is alleged in the complaint that the assignment is null and void on its face, and also that it was made with the intent to hinder, delay and defraud the -creditors of the assignors, including the plaintiff. And it was for the reason alone that it contained these two statements that the motion was made and sustained that it should be divided into two causes of action.

But the sole object of the action is to set aside the assignment, and to permit the plaintiff to satisfy its debt out of the property and assets of the firm. And these allegations were appropriate to sustain its right to that relief. There was but one cause of action, and these charges were made only for the purpose of supporting it. For that object the plaintiff is not confined to one ground of objection, but whatever objections there may be of this general description can consistently be combined to attain the final end expected to be secured.

This principle was sustained in.an action of this description in Durant v. Pierson (29 State Rep., 510), where it was also held that the objection that the assignment was void upon its face could be taken under the general allegation that it was made to hinder and defraud creditors. And that resulted from the conclusion, necessarily, that the allegation that it was void upon its face was not of itself a distinct and separate cause of action from the allegation that the assignment proceeded from the fraudulent intent of the assignors. And that setting forth different grounds supporting the defendant’s liability for the same transaction was not the statement of different causes of action was also held in Walters v. Continental Insurance Company (5 Hun, 343). And Merchants’ Bank v. Thalheimer (23 Week. Dig., 116), also supports this view. So does Henderson v. Henderson (44 Hun, 420) and Barnes v. Jones (16 W. Dig., 191).

The cases of Stowell v. Chamberlain (60 N. Y., 272) and Bell v. Merrifield (109 id., 202), bear no possible relation to this subject. The effect of preceding actions and judgments upon the controversies then before the court being what was considered and decided in them. While in Wiles v. Suydam (64 id., 173), two distinct and separate grounds of liability, affecting the defendant in two different capacities and under different sections of the statute, were what was held to present two causes of action. The case is plainly distinguishable from this, in which the object to be attained is to set aside one written instrument. And Longprey v. Yates (31 Hun, 432) is still more remote from the present controversy.

The plaintiff assails this assignment as being made in violation of the protection afforded by statute to the rights of creditors. And in support of its action it was entitled to specify the entire fraud which it was alleged had been perpetrated in the creation of the instrument.

In this complaint no more than that has been attempted. And within Marx v. Tailer (12 Civil Pro., 226), as well as the other authorities previously mentioned, that presented but one cause of action.

The order, therefore, should not have been made, and it should be reversed, with ten dollars costs and the disbursements, and the motion denied. .

Yan Brunt, P. J., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion denied.


author: Van Brunt, P. J.:

text:
    SAMUEL GALLE and Others, Respondents, v. ADOLPH TODE and Another, Appellants, Impleaded, etc.

      M’audulent preferences — judgments confessed for bona fide debts, as apart of apian to force a settlement with other creditors, are fraudulent — attachment a po'oper

    Certain debtors being financially embarrassed, and desiring an extension of time ' within which to pay their debts, and wishing to place their property beyond the reach of their creditors, in order to force the granting by the creditors of such extension, formed a corporation, but being warned by attorneys for the creditors that this scheme was fraudulent, the corporation transferred the property back to the debtors, the latter, subsequent to the formation of the corporation, having called a meeting of the creditors and having assured them that no preferences should be given. Thereafter the debtors confessed judgments to certain creditors, who issued executions thereon, and subsequently the debtors called a further meeting of creditors and offered a settlement.

      Held, that, although the judgments were confessed for bona fide debts, they were confessed as a part of the plan of the debtors to force a settlement with the other creditors, and that an attachment was properly granted upon the ground that the debtors had assigned, disposed of and secreted their property with intent to defraud their creditors.
    Appeal by the defendants, Adolpb Tode and John Walling, impleaded with others, from an order, entered in the clerk’s office of the county of New York on the 24th day of April, 1891, denying their motion to vacate a warrant of attachment granted in the above-entitled action on the 27th day of March, 1891.

      JE. J. Myers, for the appellants.

      A. J. Simpson, for the respondents.
   Van Brunt, P. J.:

The attachment in this action was issued upon the ground that the defendants had assigned, disposed of and secreted their property with intent to defraud their creditors.

It was distinctly established that the defendants in this action were in difficulties and desired to get an extension of time, and to devise some plan by which their property could be placed beyond the reach of their creditors, in order that they might procure such extension. The formation of a corporation was first resorted to for the purpose of carrying out this fraudulent scheme, but the defendants having been informed by the attorneys for certain of their creditors and by their own attorneys that this disposition of their property was a fraud upon their creditors and could be set aside, certain meetings were had by the creditors and the defendants, for the purpose of seeing what should be done under the circumstances; and it appears from the affidavits that the defendants assured these creditors that nothing would be done by them towards giving one creditor a preference, and that all the creditors should be treated equally, and should sharq pro rata under the agreement which had been made between the creditors and the defendants. Subsequently the corporation retransferred the property to the defendants, and thereupon the defendants confessed judgments in favor of certain of their creditors, and caused executions to be issued upon such judgments, and then issued' a notice for a meeting of their creditors, at which a statement of the affairs of the defendants was to be given and a proposition for settlement would be submitted.

It needs but a mere statement of these features of the case to show the animus which actuated these defendants. It is urged that the defendants had a right to prefer any creditor whom they might see fit. This is undoubtedly true, if such preference was honestly made, but if made for the purpose of forcing a settlement with the other creditors, then it was fraudulent; and however bona fide the debt might be which was due to the creditor, the fraudulent intent of the parties confessing the judgments invalidates the whole proceeding.

It appears distinctly that the sole object and intent of these parties was to prevent their creditors from seizing upon their property. They resorted to the scheme of a corporation first, and when that was pronounced fraudulent, then they confess these judgments, cover them with executions and say to the creditors, “Now settle.”

These facts appear without dispute; and it further appears that these creditors were lulled to sleep by the promise of these debtors that they would not prefer one creditor over another.

It may be true that the restoration of the property of the defendants by the corporation to them restored them to the position in which they originally were, but they were still overshadowed by the fraudulent intent which actuated them in resorting to that, scheme for the protection of their property against their creditors, and naturally cast suspicion upon any of their acts by which their property was taken away from the legitimate claims of creditors.

The learned counsel for the appellants seems to be of the opinion that because the debts for which the judgments were confessed were bonafid(e, that, therefore, the confessions cannot be assailed. But the difficulty is that it needs something else beside a bona fide debt in order to support the confession of a judgment.

It is necessary that such confession should be given for a bona fide purpose; and it is clear from the evidence in this case, which is undisputed, that there was an intent upon the part of these defendants to force a settlement by placing their property beyond the reach of their creditors.

We think, therefore, that the order sustaining the attachment should be affirmed, with costsv

Daniels, J., concurred.

Order sustaining attachment affirmed, with costs.


text:
    PAUL MORSE RICHARDS, Appellant, v. CHARLES H. LUDINGTON, Respondent.

      Usury — the statutory action to annul the contract is confined solely to the borrower and the lender.

    An action brought, pursuant to part 2, chapter 4, title 3, section 3 et seq. of the Revised Statutes, to annul a contract for the loan of money made at an unlawful rate of interest, and to recover what the lender has received in violation of the statute, is a controversy confined to the borrower and the lender.
    Hence, where, after such an action is brought, the borrower makes an assignment for the benefit of his creditors, it is improper for the court to order such assignee to be made a party defendant to the action.
    Appeal by the plaintiff, Paul Morse Richards, and by Edgar A. Tredwell, as his assignee, from so much of an order, entered in the office of the clerk of the county of New York on the 30th day of January, 1891, as directed that said Tredwell, as such assignee, be made a party defendant in this action, and that the summons and complaint and all proceedings herein be amended to that effect.

      Thomas J. Keigham, for the appellants.

      Amasa Richard Angelí, for the respondent.
   Daniels, J.:

The plaintiff has brought this action to set aside an agreement' made by him with the defendant for the loan of money and to obtain a return of collaterals held by way of security for the loan, on the ground that it was made for a usurious rate and reservation of interest. Two days after the action was begun the plaintiff made a general assignment for the benefit of his creditors. And soon afterwai’ds the defendant made the motion resulting in this order. Its object was to substitute the assignee as plaintiff, but that was denied, and he was directed to be joined as a defendant. From that order both himself and the plaintiff have appealed.

This action has been brought under a statute of this State, authorizing the borrower of money at an unlawful rate of interest to maintain an action to annul the contract for the loan, and to recover money, goods or things in action received by the lender as security for the loan in violation of the act. And that action may be maintained by the borrower without the payment or the offer to pay any part of the principal or interest of the loan. (2 R. S. [6th ed.], 1164, 1165.)

The right to maintain it has been specially restricted to the borrower. (Wheelock v. Lee, 64 N. Y., 243.) The controversy is wholly, therefore, between himself and the lender. And no other person can, as this action is presented by the pleadings, be either a necessary or proper party to it. To substitute the assignee for the borrower would at once have defeated the suit, and to add him as a defendant would be of not the least service to the defendant in the way of aiding him in his defense to it. The effect would be to delay its progress by requiring the complaint to be framed anew, and a further and useless attribute added to the action which could be of no benefit to the plaintiff or the defendant. In this respect the case is within the principle followed in Chapman v. Forbes (123 N. Y., 532). No beneficial result to any one can legally follow from the order, and as both the assignee and the plaintiff object to it, the order should be reversed, with ten dollars costs and the disbursements, and the motion denied.

Van Brunt, P. J., and Lawrence, J., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion denied.


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

text:
    MOSER & HEIDENHEIMER MALTING COMPANY, Appellant, v. GEORGE LAWRENCE and Another, Respondents.

      Order of arrest granted, in the fifth judicial district — motion to vacate denied, with leave to renew it at Special Term — what court has jurisdiction to hear the renewal motion when the venue is in the first judicial district — Oode of Giml Procedure, sec. 769 — hail.

    An order of arrest was granted' in an action, the place of trial of which was the county of New York, by a justice in Onondaga county. The defendants moved in that county before said justice, without notice, and subsequently, on notice to the plaintiff, to vacate such order. Both motions were denied. Upon the last motion, papers other than the original ones were used, and the motion was denied “ without prejudice to defendants’ right to renew the same at Special Term.”
    A renewal of the motion was made and heard in the county of Onondaga in the fifth judicial district.

      Held, that the place of trial being in the first judicial district, and the justice having directed the renewal motion to be heard “ at Special Term,” no court, other than one held in the first judicial district had jurisdiction to hear such motion.
    The amount of bail which may be properly required in a civil action, considered by Yan Brunt, P. J.
    Appeal by .the plaintiff, tbe Moser & Heidenbeimer Malting Company, from an order, entered in tbe clerk’s office of the county of New York, vacating an order of arrest granted, in the above-entitled action, on the 5th day of February, 1891, and directing the discharge of the defendants from arrest under said order.

      Louis Marshall, for the appellant.

      W. & Andrews, for the repondents.
   Daniels, J.:

The order of arrest was made by Mr. Justice Kennedy, and that entitled the defendants to move before him as such justice, without notice, and, also, with notice to the plaintiffs to vacate it. (Code Civ. Pro., §568.) They made each of those motions, and they were denied by Justice Kennedy. In the denial of the last motion the order directed that it was without prejudice to defendants’ right to renew the same at Special Term.” The section just referred to did not provide for the making of that motion at a Special Term held in his own district, or by Justice Kennedy. It authorized him, at a Special Term held by himself, to hear and decide an application to vacate the order on the papers on which it was granted. That could be made either with or without notice. But when made in either mode, the application was to be heard only on the papers on which the order was founded. When the application proceeded upon proof by affidavit on the part of the defendants, then this section has authorized it to be made to the court itself, or to any judge of the court. If made to the court, it has not been provided that it can be made to any court, or to the court held in the district in which the order has been made. But that has been left subject to other provisions declaring to what court the motion may be addressed. That was the final condition in which this action was left by the order, that the motion was to be made at a Special Term. And when a motion is to be made at the Special Term, section 769 of this Code lias, declared where it shall be made. That is, at a court held in the district or a county adjoining the district in which the action is triable. But when the action is triable in the first judicial district, then the motion must be made there.

The place of trial in this action is the county of New York, forming the first judicial district. The action was there triable, therefore; and as the motion to discharge the order of arrest was to be made only at Special Term by the order which Justice Kennedy finally made, and under which the motion was brought on, it should have been made in the first district.

So much of the order of Justice Kennedy as permitted the renewal of the motion, is free from all possible ambiguity. It was to be at Special Term, and that included only the Special Term having the power under the law to hear it. And as no Special Term out of the' first judicial district had that power, it follows that the Special Term held in the city of Syracuse, which is in the fifth judicial district, and- which heard and decided the motion,, was without that authority. And the case of Sutton v. Sabey (22 Hun, 557), fully sustains this construction of the law. The order vacating the order of arrest was accordingly made without jurisdiction over the subject, and should, without considering the merits, be reversed, with ten dollars costs and the disbursements.

Lawrence, J., concurred.

Van Brunt, P. J.:

It appears tliat the order of arrest in question was originally granted by Mr. Justice Kennedy, and a motion made to vacate the-order upon the papers upon which it was granted before him, which motion was denied without prejudice to a renewal. The second motion was made before Mr. Justice Kennedy upon the papers, upon which the order was granted and certain additional affidavits. This motion was also denied upon the merits without prejudice to defendant’s right to renew it at Special Term. A third motion was then made before the same judge at the Onondaga Special Term, although the venue of the action was laid in New York county. The plaintiff objected to the hearing of the motion out of the first judicial district on the ground that the action was triable in said district. This objection was overruled by the court, and it thereupon, notwithstanding such objection, proceeded to hear the motion. It is now urged upon this appeal that the objection was well taken.

It is undoubtedly true that all motions in cases in the first judicial district must be made in that district; but as the motion in question was not a motion of right, but leave to make the same had been granted as a favor, the court'making the order had a right to-prescribe that the motion might be made elsewhere than in the district in which the case was triable.

It is true the phraseology of the order does not necessarily bear this construction, but it having been so interpreted by the judge who-made the same, it undoubtedly -was his intention to allow the motion to be made before him at Special Term, and with his interpretation of his own order we do not think we ought to interfere.

This action was one of replevin to recover possession of 23,899' bushels of malt made of New York and western barley. Upon the usual affidavits and undertaking, a requisition was issued to the= sheriff of Onondaga and Madison counties to replevin the same. Both sheriffs made return that they could not take the property since it had been eloigned, sold, removed and disposed of. The-plaintiff thereupon amended its complaint by setting forth the fact that the malt had been sold, removed and disposed of by defendants so that the same and no part thereof could be found and taken by the sheriff, with the intent that it should not be so found and taken,, and to deprive the plaintiff of the benefit thereof.

The defendants answered this complaint, alleging an agreement between the plaintiff and defendants to malt for it 50,000 bushels ■of barley, and deliver such malt to the plaintiff, and that they performed this agreement according to its terms, and subsequently malted for the plaintiff about 30,000 bushels of barley, and that they remained indebted to the plaintiff in the sum of $4,500, and prayed judgment that the complaint might be dismissed, except so far as to allow the plaintiff to take judgment against them for the sum of $4,500, with costs. Subsequently plaintiff procured an order of arrest against both defendants, upon the ground that the defendants had removed the chattels sought to be recovered in the action with intent that they should not be found or taken, and depriving .the plaintiff of the benefit thereof. A motion to vacate said order, as above mentioned, was made, and from the order finally vacating the order of arrest this appeal is taken.

It appeared that on the 22d of October, 1889, the defendants entered into "a contract with the plaintiff, whereby they agreed to malt, during the season of 1889-90, fifty thousand bushels of barley for the plaintiff in their malt-houses, situate at Manlius and Canastota, upon the following terms : The charge for malting to be ten cents per bushel upon the cost-price of the barley, qfiaintiff to receive the entire amount of the malt (including increase) made from the barley purchased for them at the cost of the barley, and ten cents advance on said cost, the malt to be delivered free of all charges, whether for lighterage or terminal charges at New York or Brooklyn. ,The defendants agreed to make drafts at three months, without interest, for the amount they paid for the barley, and they also agreed to effect insurance on all barley purchased for the plaintiff, and the malt on hand made from such barley, said insurance policies to be made for and in the name of the plaintiff. They also agreed not to draw for more than four cents per bushel above cost-price of barley for necessary running expenses of their malt-house. This contract seems to have been entirely fulfilled, and on the 21st of January, 1890, the plaintiff telegraphed the defendants as follows : “Do not buy any more barley, as this completes our contract; will not accept more.” And on the same day wrote as follows: “We received statement showing that you bought 50,100 bushels of barley. As this is more than our contract calls for, you will please not buy another bushel, as we will not accept any more.” On the twenty-second of Januai-y plaintiff wrote another letter in which it says: “You may continue buying for malting for us until we let you know to stop, but you must not buy any western, as we will not accept it,” etc.

It further appeared that subsequently a large quantity of western barley was delivered to and received by the defendants at Manlius and Oanastota, a portion of which was paid for by money raised on drafts upon the plaintiff, who was informed of said purchase, and the balance was paid by the defendants accepting drafts drawn on them, which were not paid, and judgment on said drafts was subsequently obtained against the defendants, amounting in the aggregate to the sum of over five thousand dollars. On the 3d of March, 1890, the plaintiff wrote to the defendants to ship ten ear loads of malt, half western, thus showing that it had ratified the purchase of the western barley and had receded from its instructions to the defendants not to purchase any such barley.

It further appears that the defendants had disposed of a large quantity of malt to other parties, which the plaintiff claimed to have been part of the malt belonging to it and made out of barley purchased by the defendants with its money. The learned judge below based his decision upon the ground that the plaintiff did not secure to itself the title of the barley bought and malted after the new or substituted agreement on January 22, 1890, because by its terms the defendants had no authority to purchase and malt for the plaintiff any western barley, and that the title of the western barley bought by the defendants after the making of the new agreement did not, therefore, vest in the plaintiff, even though the same had been wholly paid for by money raised from drafts accepted by it; that if the plaintiff furnished money to the defendants with instructions to purchase New York State barley only, and with the distinct prohibition against buying western barley, and the defendants appropriated the money, in whole or in part, to buy the prohibited barley, the title to that would not vest in the plaintiff until it had actually received the malt made therefrom by delivery to it, and thereby ratified the unauthorized act.

-We think that the learned judge has overlooked the fact that the prohibition contained in the contract of January twenty-second was waived, and that the defendants reported to the plaintiff the purchase •of western barley, and. that the plaintiff; authorized the purchase of western barley, and that such barley came under the terms of the • contract of October precisely the same as State barley purchased by the defendants for the plaintiff.

It is true that a portion of this western barley was bought by the ■defendants on their credit, and which they have not paid for. But the plaintiff did not lose the title to its property because the defendants have so confused it with tlieir own, which they had no right to ■do, tliat its identity could not be traced.

It seems to us, when we take into consideration the fact that the prohibition against the purchase of western barley had been withdrawn, that the claim that the title to the barley purchased by the money of the plaintiff did not vest in the plaintiff cannot be .sustained.

Now, it is clear from the evidence that the defendants have disposed of malt which the plaintiff would have had a right to take in this proceeding had they found it in the possession of the defendants. It is clear, from the nature of the contract of October, 1889, that it was the understanding of the parties that the title to this barley should be in the plaintiff, as also in the malt made therefrom. It was the plaintiff’s money that was paid for it. The only additional money which the defendants were to get was the ten per cent as compensation for malting the barley. The barley was to be insured in the name of the plaintiff, a very clear indication as to where the parties understood the title of the barley to be. If the defendants violated the instructions of the plaintiff in the purchase with their money of merchandise different from that which they were authorized to purchase, as between the plaintiff and the defendant, the plaintiff had a right to ratify the purchase and claim the property which had been bought by their agents with their money.

But it is not necessary to resort to any principle of this description, as it is clear, as already stated, that the prohibition against the purchase of western barley had been withdrawn; the purchase had been recognized and the title to the western barley, bought with the money of the plaintiff, passed to the plaintiff. We think, therefore, that the learned judge in the court below erred in coming to the conclusion that no title to any of this western barley passed to tlie plaintiff; and as considerable of tlie malt eloigned was produced from western barley, that, therefore, no order of arrest should have been granted.

But we think that the amount of bail required, in the order of arrest was excessive. It seems to have been assumed by the learned judge in the court below that there is some difference in the object of giving bail in a civil and criminal suit, for he says: Upon the trial of an indictment for any crime * * * the accused party is entitled to bail not excessive, but for his personal appearance only. Upon this order of arrest (in a civil action), bail of this character is not available to the defendants, but instead that required is beyond their ability to furnish,” etc.

We had supposed that all that bail in a civil action was given for, was, to secure the appearance of the defendant in answer to the execution against his person, and that bail is given in a criminal action for the purpose of securing the appearance of the defendant at the trial of the indictment and subjecting himself to the judgment of the court — precisely the same thing.

Now, since the virtual abolition of imprisonment for debt, making the longest term of imprisonment less than that which would be imposed on an indictment for misdemeanor, bail in a civil action should be in some degree proportioned to the penalty which might be inflicted on the defendant who has become subject to' arrest, and does not depend upon the amount of the claim, because, be the claim great or small, the defendant cannot be imprisoned as long as he might be upon conviction upon an indictment for almost any kind of misdemeanor.

We think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements.

Order reversed, with ten dollars costs and disbursements.


author: Lawrence, J.: Daniels, J.: Yan Brunt, P. J.

text:
    JOHN H. DWIGHT and Another, Respondents, v. HOWARD G. BADGLEY, Appellant.

      Wager contracts — the intention of one party to such a contract may be shown— evidence of similar prior transactions between the pa/riies incompetent — evidence as to a general custom.

    In an action brought to recover for certain grain sold by the plaintiffs to the defendant a defense was interposed that the contracts were in violation of the statute as to betting and gaining (R. S., part 1, chap. 20, tit. 8, art. 3, § 8 [3 R. 8., 8th ed.], p. 2218), in that the parties had no intention of making an actual sale and delivery, but intended the one to pay to the other the difference between the contract and the market-price of the commodity in question.

      Held,, that the defendant might show that it was his understanding and intention that none of the grain in question should be delivered to him, but that the difference in the market-price should be adiusted between the parties.
    That it was not competent for the defendant to show similar transactions between , the parties which took place prior to the bringing of the present action.
    Before evidence is competent to show what a general custom is, it must be shown that a general custom exists.
    Appeal by the defendant Howard G. Badgley from a judgment, entered in the clerk’s office of the county of New York on the 25th day of April, 1890, in favor of the plaintiff for $2,652.17; and also from an order, entered in said clerk’s office on the 1st day of May, 1890, denying defendant’s motion to set aside the verdict directed by the court herein, and for a new trial, after a trial had before the court and a jury at the New York Circuit.

      Edwin JR. JLemitt, for the appellant,

      Robert Sewell, for the respondents.
   Lawrence, J.:

The complaint alleges that the defendant is indebted to the plaintiff in the sum of $1,997.50 upon'an account for certain goods purchased, services rendered and moneys advanced between certain specified dates; that payment of said sum has been duly demanded, but that no part thereof has been paid.

A bill of particulars, showing the account between the parties, follows the complaint in the printed case, by which it appears that the amount claimed by the plaintiffs is due to them.

The defendant in his answer denies, among other things, any indebtedness to the plaintiffs, and avers, as an affirmative defense, that the plaintiffs, at the times mentioned in the complaint, were not dealers in the merchandise mentioned therein, nor had they possession or control thereof. Also, that at the times mentioned in said complaint, and any and all transactions mentioned in said complaint, between these plaintiffs and this defendant, were had with the intent of the parties hereto not to make any actual sale or delivery thereof, but at maturity of the said contracts or transactions, that the difference between the market-value and the contract-price should be paid by one party to the other.”

“ That the market-price of such merchandise at the maturity of the contracts was, at the times of making the contracts, contingent and uncertain; and that the contracts were mere wagers on the-future market-price thereof, and contrary to the statute.”

The learned justice before whom this cause was tried, at the conclusion of the evidence of both parties, directed a verdict in favor of the plaintiffs for the sum of $2,357.05, which verdict the defendant’s counsel moved to set aside, as contrary to law. He also moved for a new trial upon the minutes and upon the exceptions taken, and upon all the grounds stated in section 999 of the Code of Civil Procedure. This motion being denied, the defendant’s counsel excepted.

"We will consider the exceptions taken by the defendant’s counsel in the order in which they appear in the case. On the cross-examination of Mr. Hodge the broker of Dwight & Gillette, through whom the sales and purchases for the defendant were effected, the' witness was asked this question : “ Was that wheat ever delivered to; Mr. Badgley ? ”

It appeared by his previous testimony that, prior to the transactions involved in this action, the witness had other transactions, with Mr. Badgley, the defendant, on account of the firm of Dwight. & Gillette, the plaintiffs. We think the ruling of the learned, justice was correct.

In this case it is sought to stamp a transaction as illegal, as being; in contravention of the provisions of the Devised Statuses against, wagers or gaining. The statute is penal in its nature, and the burden of proof is upon the defendant to establish the illegality of the; contract. (Story v. Salomon, 71 N. Y., 420.) Even if the parties had been guilty of entering into illegal contracts prior to the transactions upon which this action is based, as the plaintiffs are entitled to the strictest proof in this case, we think that proof of former transactions alleged to be illegal, not embraced within the times specified in the bill of particulars was not competent.

The next exception was to the exclusion of the question of the ■case as follows: Q. At the time of making these contracts for the purchase of this wheat and corn, was it not your intention and the intention of Mr. Badgley to adjust the differences between the market-price in buying and the market-price in selling ? ” The ■exception was not well taken. The question was too broad. It ■called not only for the intention of the witness, which might have been admissible, but also for the intention of the defendant.. As to the defendant’s intention, the witness was clearly incompetent to speak.

The exception to the ruling as to what was the general custom as to the delivery of the wheat or corn cannot be sustained, for the reason that no such custom is pleaded, and because no evidence had been given tending to show that the parties had any knowledge of ■such custom, nor that any general custom existed in relation to such •transactions as are involved in this controversy.

The establishment of the existence of a general custom by evidence should have preceded the question which was put to the witness, and before such custom was established the witness could not properly be called upon to give a statement as to what the custom was. (Harris v. Tumbridge, 83 N. Y., 93.)

The observations just made apply with equal force to the exception, upon disallowing the questions to the defendant Badgley as to his transactions with the plaintiffs prior to December 30, 1886. 'The question put to the defendant as to his intention and understanding that none of the grain should be delivered to him, but that the difference in the market-price should be adjusted between the parties, should, we think, have been allowed. While the answer to it would not have conclusively shown what the intention of the plaintiffs was in entering upon the course of dealings with the defendant, referred to by the witness, it involved an answer which the defendant was entitled to have presented to the jury, and which might have aided them in determining what was the real intention of the parties. (Peck v. Doran & Wright Co., 10 N. Y. Supp., 401; 57 Hun, 343; Kenyon v. Luther, 4 N. Y. Supp. 498, and cases cited.)

The case of Kenyon v. Luther (supra), decided by the General Term of the fourth department, is directly in point. That was an action brought to recover for commissions earned and losses sustained by plaintiff under a contract with the defendant for the sale of a large amount of wheat. The defense set up was that such contract was intended as a cover for a gambling transaction, and that it was illegal and void under the statute. Upon the trial the ■defendants were asked directly whether they intended at the time to purchase or hold any wheat; or to sell any wheat; or whether it was their intention to tender or call for the grain, or were to settle the difference between the price at which it was sold and the market-price at the future day.

The questions calling for the intention of the defendants were •objected to by the plaintiff’s counsel, and the objections were sustained. Upon appeal it was held that the exclusion of the questions was error; that the defendants were entitled to show what their intention was, and that such evidence should have been submitted to the jury. Upon a subsequent appeal, after a verdict had been rendered in favor of the defendants, the court affirmed the judgment. {See 10 N. Y. Supp., 951.)

For the error of the learned justice in excluding this question we are of the opinion that the judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Daniels, J.:

If the question as to the defendant’s intention had been answered, it might have been followed by further evidence indicating the intention of the plaintiffs to have been the same. But, without an answer to this question, it would be useless to offer to make such further proof. If the answer had been taken the defendant might also have been in a position to submit the further inquiry to the jury, from the course of the dealings concerning the subject in controversy, whether that was not also the intention of the plaintiffs. By excluding the answer the defendant was not only deprived of this position, but the evidence, if it could have been given of the intention of the plaintiffs, was rendered wholly inoperative. In this class of cases all pertinent evidence should be received to discover the true nature of the transactions. The design generally is to avoid exposure and evade the law, and that should be prevented when it can be done by receiving in evidence all pertinent answers having the effect of disclosing the true nature of the transactions.

I agree with Mr. Justice Lawrence that there should be a reversal of the judgment and a new trial.

Yan Brunt, P. J.

(dissenting):

Although I agree that it was error to .exclude the question as to what the defendant’s intentions were, such error in no way injured the defendant, because, in the absence of proof that the plaintiffs had a similar intention, the defendant’s intention would not make the contract void. It is true that an attempt was made to prove what the intention of the plaintiffs was, but not by competent evidence.

The defendant, not sustaining any injury by the exclusion of the question relating to his own intention, the judgment should not be reversed because of that error.

I think, therefore, that the judgment and order should be affirmed, with costs.

Judgment reversed and new trial ordered, with costs to appellant to abide event.


text:
    CAROLINE W. SOMMER, Respondent, v. THE NEW YORK ELEVATED RAILWAY and Another, Appellants.

      Joinder of legal and equitable causes of action — plaintiff cannot thereby deprive the 1 defendant of her right to try the legal branch of the ease by a jury.

    Where in an action brought to recover past and future damages, arising from the erection of an elevated railroad in the city of New York, it appeared that the heirs of the former owner of the fee had assigned such past damages to the plaintiff soon after she had taken title to the land.

      Held, that said claim for past damages was a separate and distinct matter not connected with the right to seek equitable relief against the continuance of the trespass, and hence, as to that branch of the case, the defendants were entitled to a jury trial.
    That, by joining in one complaint an equitable and a legal cause of action, the plaintiff could not deprive the defendants of their right to try the legal cause of action by a jury.

      Appeal by the defendants, the New York Elevated Railroad Company and the Manhattan Railway Company, from a judgment, entered in the office of the clerk of the county of New York on the 6th day of December, 1890, in favor of plaintiff, after a trial at the New York Special Term before the court.

      8. B. Rogers, for the appellants.

      O. Q. Bjinnett, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages, past and future, arising from the erection of the railroad in front of the premises 358 Ninth avenue. The plaintiff purchased this property on the 2d of July, 1888. She is the wife of Louis Sommer, one of the four heirs-at-law of Philip Sommer, deceased, who died in 1874 intestate, seized in fee of the premises, and leaving him surviving four children and a widow, since deceased. The children continued to hold the title to and remained in possession of the premises until the 2d of July, 1888, when the property was conveyed to one Charles A. Elammer who, on the same day, conveyed the premises to the plaintiff.

This action was begun on the 12th of February, 1889. On the 6th of February, 1889, by an assignment in writing, the children of Philip Sommer, the tenants in common, sold and transferred to the plaintiff all their right, title and interest in and to any damage arising by reason of the maintenance and operation by the defendants of the elevated railroad and structure in front of said premises. The plaintiff asks for an injunction in case of non-payment of the damages to the fee, and, incidental thereto, for the past damages accruing as soon as she acquired the title to the property, and, also, for the damages which had accrued to her predecessors in title and which had been assigned to her. The answer alleged, amongst other things, that for the injuries or cause of action alleged in the complaint the plaintiff had a complete and adequate remedy at law. When the case came on for trial the counsel moved, amongst other things, that the issue of past damages under the assignment be sent “ to the circuit of this court ” (the counsel evidently not being aware that the Circuit Court is not a part of- the Supreme Court, but an independent tribunal), for trial by jury, upon the ground that the defendant was entitled to such form of trial as a matter of right. This motion was denied, and in such denial we think error was committed.

The action for past damages was strictly an action at law; such right to claim damages had been severed from the realty, and the plaintiff had procured title to the same by assignment. It was in no way connected with or incidental to her right to obtain an injunction in case future damages to the fee were not paid. The cause of action for those damages which have been assigned was separate and distinct. The right to their recovery by the conveyance of the premises had been severed and disconnected from the right to seek equitable relief against the continuance of the trespass.

Under these circumstances the defendants had a right to a trial by a jury in respect to that cause of action. This principle seems to have been distinctly enunciated in Wheelock v. Lee (74 N. Y., 495), where it is held that the joinder of an equitable cause of action with others purely legal does not deprive the defendant of a right to a trial by jury, and that when such an action is brought to a trial at Special Term, and the defendant demands a jury trial, the judge must determine whether any of the grounds upon which a recovery are sought are such as at the adoption of the Constitution were redressed by an action at law, and if so, should direct the case to be tried by a jury at circuit, or, at all events, should refuse to try the cause without a jury.

By joining the legal cause of action with the equitable one the plaintiff has no power to deprive the defendant of the constitutional right to a trial by jury. Although the plaintiff may himself, by joining such causes of action, be deprived of the right to a trial by jury, such joinder in no way affects the rights of the defendant. This case, so far as the assigned damages were concerned, was an action for damages for a past trespass in respect to which no equitable relief could be granted, and the defendant was entitled to a jury trial in respect thereto.

The point that defendant was entitled to a jury trial as to the whole cause of action, because the complaint alleged a nuisance, is not well taken. The allegations in the complaint are just as consistent with the action of trespass as with the action for a nuisance. There is nothing which stamps the complaint with the character of an action for a nuisance such as there Mia's in the case of Libmann v. Manhattan Railroad Company (59 Hun, 428), and if there was any doubt upon that proposition the defendant should have called upon the plaintiff to declare before proceeding with the trial whether he claimed equitable relief because of a continuing trespass or because of a nuisance. Under such circumstances, if the-plaintiff had claimed damages upon the ground of a nuisance, then, clearly, the defendant would have been entitled to a jury trial; but such did not appear.

We think that the judgment must be reversed and a new trial ordered, with costs to appellant to abide event.

Daniels, J., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.